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Carleton Harris, Chief Justice.
Tbis is a Workmen’s Compensation case. Jim Jolly was employed by J. M. Hampton and Sons Lumber Company, as a sawmill worker, near Mt. Ida, Arkansas. On the morning of October 13, 1959, Jolly, while performing the duties of Ms employment, came in contact with a defective conduit carrying electricity, and received an electric shock, and burns about the face, arm and leg. He was rendered unconscious for several hours, and was taken to St. Joseph’s Hospital in Hot Springs, where he was hos pitalized under the care of the Burton-Eisele Clinic. Jolly was discharged a few days later, hut between November 11,1959, and the middle of April, 1960, appellant was, at intervals, in St. Joseph’s Hospital for more than 40 days for treatment, and for skin grafting on his face, mainly the lip and nose. Jolly was paid compensation for a period of twenty-seven weeks and five days, and on April 25th, received his final check in the amount of $36.49, which he refused to cash. On the same date, he resumed work at Hampton’s Mill. His duties were different from those engaged in before the accident, but his pay was the same. Claim for additional compensation was filed, wherein Jolly sought compensation for disfigurement, and permanent partial disability for loss of hearing and impairment of eye-sight. After a hearing before the full Commission, Jolly’s claim was denied and dismissed by that tribunal, and on appeal to the Montgomery Circuit Court, the Commission was affirmed. From such judgment of the court, comes this appeal. Appellant relies upon four points for reversal, the first three dealing with the failure of the Commission and Court to make an award for disfigurement, and the fourth, dealing with Jolly’s failure to receive an award for permanent partial disability. The first three points are all related, and we will discuss them together.
J oily, 55 years of age, testified that he was burned on the leg, arm, face, nose, head and lip — “All of my lip come out. ’ ’ He testified that part of one ear was removed in order to repair his nose, and, when meeting people, he was embarrassed because of his scars. The report of Dr. James A. Jenkins was offered by appellant, and pertinent portions are as follows:
“There is a skin graft scar, wedge shaped, approximately 2x1 1/2 x 1 1/2 cm., in the upper lip, and a nearly circular scar from skin grafting on the left nasal ala. There is a 12 x 15 cm. scar on the lateral aspect on the middle one-third of the left leg. He also has a very mild hyperopia. Neurological examination reveals an anesthesia of the upper lift and left nasal ala. There is also a donor site scar from the skin graft on the helix of the left ear.
It is my opinion that these scars are of disfiguring nature on his face and are permanent. The anesthesia associated with these scars is also permanent.”
Two letters from Dr. James H. French of the BurtonEisele Clinic, relative to Jolly’s condition, were offered in evidence as follows:
“Mr. Jolly was operated April 9, 1960, at which time he had division of the pedicle graft from the cheek to the nose, and further plastic repair to the upper lip. He was discharged from the hospital April 14, 1960, and was last seen in this office April 18, 1960. He was discharged to return to work April 25, 1960.
This patient will be left with noticeable scars about the upper lip and nose, but his prognosis otherwise is good. * * *
Mr. Jolly’s disability will be of a cosmetic nature, that is, scarring of the lips, nose, left cheek and ear. There should be no other physical handicap resulting from his injury.”
Appellant vigorously contends that the disfigurement alone warranted an award. Cases are cited from four states in support of his argument, vis, New York, Illinois, South Carolina, and New Jersey, but these cases are really of no aid to appellant, for statutes of those states are different from the Arkansas Statute. Section 81-1313, Ark. Stats., Anno., subsection (g) provides:
“The Commission shall award compensation for serious and permanent facial or head disfigurement in a sum not to exceed two thousand ($2,000.00) dollars, based solely upon the effect such disfigurement shall have on the future earning capacity of the injured employee in similar employment. No award for disfigurement shall be entered until twelve (12) months after the injury. ’ ’
The statutes of the states referred to do not contain the italicized provision. Of course, under this provision, the authority of the Commission to make an award for disfigurement is somewhat limited. Actually, this Court has already held that the only compensable disfigurement is one that affects earning capacity in a similar employment. Long-Bell Lumber Company v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920. It is true that that decision was rendered under our first Workmen’s Compensation Act (Act 319 of 1937), but the provisions of the section of that act relating to disfigurement are substantially the same as the present statute. If anything, it appears that the present statute requires even more of a showing that the disfigurement must affect the future earning capacity of the injured employee.
There is no substantial evidence in this record that Jolly’s future employment has been impaired because of the disfigurement. Perhaps one could be so horribly disfigured that his appearance in itself would furnish sufficient evidence that employers would not be prone to employ him, and, of course, people engaged in some vocations or professions would be more adversely affected by disfigurement than those employed in other occupations. For instance, a receptionist, model, beautician, salesman, teacher, i.e., people who constantly deal with, and are before the public, would be much more apt to be refused employment because of their appearance than persons who were seeking employment in capacities where they would only come in contact with fellow employees. In the case before us, Mr. Jolly testified that he believed he was a better looking man before the accident, and this is undoubtedly true, but again, the award is only made when his future earning capacity in similar employment is affected. The Commission found:
"It is true that there are some appearances of disfigurement of claimant’s face, though skillful plastic surgery has tended to reduce it to a considerable extent. However, there is no evidence in the case to meet the requirement of the statute that such disfigurement has had effect upon the claimant’s future earning capacity in similar employment.”
Appellant contends that the Commission acted arbitrarily in refusing to accept the proffered evidence of Delbert Byers, a witness on behalf of appellant, who was asked the question: "Do you know whether or not that facial condition that he’s got, would interfere with getting employment in your part of the country over there?” A. “Well, it would to a certain extent.” Objection was made by appellees and the objection was sustained.
We agree that this was not competent evidence. Byers, a son-in-law of Jolly, possessed no particular qualifications for determining the likelihood of Jolly’s being refused employment. The record does not reflect that he was an employer, or a personnel director, or that he had any experience in employing job applicants. Of course, were it otherwise, the answer is far from positive, and the phrase, "it would to a certain extent”, is rather vague; likewise, there is no reference to the type of employment the witness referred to. There is no evidence in the record that Jolly had been refused employment, or (with the exception of the statement of Byers) that his disfigurement will cause, or tend to cause, any refusal in the future of employment similar to that engaged in at the time the injury was received. Actually, it is difficult to determine from the record the extent or seriousness of the disfigurement. There are no pictures of Jolly in the record, and accordingly, we have no manner of ascertaining his exact appearance. While the condition is permanent, the finding of the Commission, heretofore quoted would indicate that appellant’s appearance is not abhorrent or repugnant. It follows that this contention must fail.
Appellant contends that he is entitled to compensation for permanent partial disability for loss of hearing and impairment of eyesight. Jolly testified he had “good” vision and hearing prior to the accident. He stated that it is now difficult to hear anything at all while in noisy surroundings; that he did not wear glasses before he was injured. Audrie Black, a fellow employee, stated Jolly was always “a little hard of hearing”, but the condition had worsened since the injury. Delbert Byers testified that his father-in-law formerly helped his (Jolly’s) grandchildren with their school lessons, but “he just can’t see that fine print in them books any more.” He stated that Jolly formerly would read the paper, but had ceased to do so; that when the television was in operation, it was necessary to walk over to appellant’s chair in order to make him understand conversation. ‘ ‘ To me, he just can’t separate two different rackets apart. He can’t — he is just liable to start talking to you about something you haven’t even mentioned when you ask him something.” The witness said that appellant’s hearing was somewhat defective before the accident, but had grown considerably worse since that time. Jolly’s wife, Victoria, testified that her husband could not hear as well as before he received the injury, though she did admit some prior difficulty. “One of his ear drums was affected when he was a child, and that’s all of the trouble that there was any way at all.” She stated that his hearing was failing “a little” before the accident, “not too much.” Morgan Hampton, an employee of the lumber company, testified that he thought Jolly’s hearing was worse after receiving the burns.
The Commission, in compliance with a request of appellant’s counsel, appointed two physicians to examine J oily, with the view of determining whether his condition was attributable to the injury that he had received. Dr. H. A. Ted Bailey, Jr., was appointed to make an examination relative to loss of hearing, and Dr. John M. Fulmer was directed to make an examination with regard to Jolly’s vision. Dr. Bailey issued the following report:
“I examined Mr. Jim-Jolly today; 2/13/61, and Ms ear canals were normal except for a large piece of wax wliicli was removed from the left canal. The drums were both perfectly normal. Tuning fork tests and audiometric examination demonstrated a high tone hearing loss which is due to damage to the nerve of hearing on each side: AMA percentage loss was 42% in the right ear and 15% in the left. Inasmuch as his repeated pure tone testing came out the same each time and because the speech audiometry was compatible with the results of the pure tone tests we feel that this represents a true loss of hearing and this patient was not giving false responses in any way. As to the cause of his hearing loss, I am not familiar with any work in the medical literature and I have had no personal experience where an electric shock has caused any hearing damage. It is my opinion that most likely this hearing loss was not produced by the electrical shock which this patient had two years ago.”
Dr. Fulmer, on February 15, 1961, issued his report as follows:
“The positive findings in this case are the pterygiums and the early cataract of the right eye. The pterygiums are not related to Ms injury. The corrected visual acuity of 2/25+ would represent a visual loss of 3% in each eye and this is due to the astigmatism produced by the pterygiums. His difficulty in reading without glasses is due to presbyopia and is normal for a person of his age (55).
In determining the cause of the early cataract in the right eye, two factors have to be evaluated, the first factor is age and the second factor is electrical shock. Both factors can produce this type of cataract and I cannot differentiate or prove which factor is at fault. At the present time the cataract is not interfering with his vision but may very well do so within the next two to six years. I know of no way to prove whether or not the cataract is the direct result of his electrical shock or not.”
Of course, under our oft repeated rule, we are only concerned with whether there was any substantial evidence to support the findings of the Commission. We hold that Dr. Bailey’s report constitutes substantial evidence to support the finding made.
As to the alleged loss of vision, Dr. Fulmer’s report finds that pterygiums were not related to the injury, and he states that it is normal for a person of Jolly’s age to find it difficult to read without glasses. As will be noted, the report is not positive as to the cause of the cataract in the right eye, the doctor stating that this could be due to the age factor or to electrical shock. It is necessary that a claimant establish that his disability is occasioned by the injury received in the course of employment. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. Dr. Fulmer did state positively that the cataract is not presently interfering with appellant’s vision, so, of course, it could have no effect upon his present complaint. At any rate, it was within the province of the Commission to determine which factor applied. We cannot say, particularly in view of the overall report, that the Commission’s findings were not supported by substantial evidence.
Affirmed.
Johnson, J., dissents in part.
Emphasis supplied.
Under Act 319 of 1937: “The Commission shall award proper and equitable compensation for serious and permanent facial or head disfigurement, but not exceeding the sum of two thousand dollars ($2,000.00), provided, however, that in making such an award the Commission shall consider only the effect such disfigurement shall have on the future earning capacity of the injured employee in similar employment; and provided, further, that no such award shall be entered until 12 months after the injury.” | [
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Kirby, J.,
(after stating the facts). The statute authorizes the organization of any particular locality in a city or incorporated town into an improvement district, and assessment of the real property therein for the purpose of constructing any local improvement of a public nature in the manner set forth therein. It provides for the appointment by the council of three persons, owners of real property in the district, who shall compose a board of improvement for it, and this board is required to form plans for the improvement in accordance with the prayer of the petition, and procure estimates of the cost thereof, and to construct and complete the improvement in accordance with the ordinance providing therefor and the law relating thereto. Kirby’s Digest, § § 5664-5742.
The statute also provides that the boards of improvement for such districts “shall have control of the construction of the improvements in their districts.” Kirby’s Digest, § 5718.
The court has already held that the building of abridge across a stream within a city is a local improve ment of a public nature, for which an improvement district may he organized. Ferguson v. McLean, 113 Ark. 193.
It is the purpose of the improvement district attempted to be organized -herein, however, to aid Pulaski County in the construction of a free bridge across the Arkansas Eiver between the cities of Little Eock and Argenta, the improyement district to pay $200,000 for the construction of the improvement, and the remainder of the cost thereof to be borne by the county of Pulaski. The county court has the authority to build the bridge but can do so only in accordance with the law, and would have to appoint a commission of two persons, who in conjunction with the judge would constitute a board of commissioners for the construction of the bridge, having all authority to agree upon the plans and specifications and award the contract therefor, and accept the improvement upon its completion. Kirby’s Digest, § § 548, 549. The law does not contemplate, and there can not be two boards of improvement or -commissioners in control of the construction of the one improvement, and the county court is given the power to construct bridges of this kind, and in exercising such power when it undertakes it would necessarily do so to the exclusion, of any other agency than that provided for-under the law. It may be desirable to have a free bridge constructed under the terms proposed in the -ordinance, and that it could be secured for less cost to the district by this contribution by it of the designated sum to the improvement and in aid of the county, but the law makes no provision whatever for a local improvement district aiding the county in the construction of such an improvement. It is true this court held in McDonnell v. Improvement District, 97 Ark. 334, that an improvement district could receive contributions from the county and -city to the proposed improvement to reduce the cost of the improvement to the limited 20 per cent of the value of the real property in the district, the law meaning only to limit the amount which can be assessed against the real property of the district and not the total cost of the improvement when outside contributions reduce it to the prescribed percentage of the real property valuation. Although an improvement district may accept such contributions, there is no power given by law to such a district to levy assessments and make contributions to aid other agencies in the making of the improvement, notwithstanding it could thus secure a desired local improvement at a much less expense to the property owners than would be required if it was constructed by the district itself. Municipal corporations and improvement districts therein are both creatures of the statute and the Legislature has not seen fit to give this power or authority to the city to be delegated to the district nor to the district after its organization by the city council, the city being without power to authorize an improvement district to levy assessments for aiding another agency in the making of the improvement, and such district when organized, having no authority under the law to do so. The ordinance is void, and error was committed in sustaining the demurrer to the complaint. The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the complaint. | [
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Smith, J.,
(after stating the facts). It will be observed -that the order of the court which appellant says is res judicata was not one sustaining a demurrer and dismissing a complaint, but was one overruling a demurrer and allowing thirty days in which to file an answer. The cause was then continued for the term. This was not a final order, and did not adjudge the rights of the parties, and there was nothing to prevent the court from reconsidering the demurrer, while said cause was still pending and undisposed of 'before him, and from changing his opinion and decision if he saw proper to do so.
In the case of Luttrell v. Reynolds, 63 Ark. 254, it was held that an order sustaining a demurrer and entering a judgment of dismissal thereon is final and conclusive until reversed on appeal. It was so held, because such order was an adjudication of the rights of the parties. But in the case of Adams v. Primmer, 102 Ark. 380, it was said that “where a trial court sustained a demurrer to a complaint, without entering any further order or judgment, its action was not final, and the order can not he appealed from.” To the same effect are the cases of Atkins v. Graham, 99 Ark. 496, and Moody v. J., L. C. & E. Ry. Co., 83 Ark. 371. In the ease of Atkins y. Graham, supra, it was said: “The order simply sustaining the demurrer to the complaint did not finally determine the merits of the ease, and was not a final judgment. An appeal only lies in this court from a final judgment of the lower court. ’ ’
The chancery court in overruling the demurrer did not adjudge the rights of the parties, and consequently there was no final order from which an appeal could be taken.
We think appellee’s position that the chancery court was without jurisdiction was well taken because appellant had a complete remedy at law. Wood v. Stewart, 81 Ark. 41; Wadkins v. Merchants Bank of Vandervoort, 96 Ark. 465, and eases there cited.
But the failure of appellant to proceed in the proper court was no ground for dismissal of his complaint, and the cause should have been transferred to the circuit court, had a cause of action been stated in the complaint. Wood v. Stewart, supra. But the chancery court properly dismissed the complaint because it did not in fact state a cause of action. It was not alleged that any fraud had been practiced upon the circuit court in procuring the dismissal of the appeal from the justice of the peace, and if the action of the circuit court in dismissing the appeal was erroneous, appellant’s remedy was by appeal to this court, from that order.
The decree of the chancellor is therefore affirmed. | [
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Hart, J.,
(after stating the facts). The unauthorized alteration of a promissory note by raising the rate of interest is a material alteration and avoids the note. Exchange National Bank v. Little, 111 Ark. 263, 164 S. W. (Ark.) 731; N. Y. Life Ins. Co. v. Martindale et al., 75 Kan. 142, 12 Am. & Eng. Ann. Cas. 677.
In the case of McDougall v. Walling, 15 Wash. 78, 55 Am. St. Rep. 871, the court held:
“1. An agreement extending* the time of payment made by the principal debtor with the holder of a note inust, in order to release the surety, be such an agreement as the principal debtor may enforce.
‘ ‘ 2. An agreement between tbe principal debtor and tbe bolder of tbe indebtedness to extend tbe time for its payment, made upon a false representation that the surety desired and consented to such extension will not release the surety, because the fraudulent misrepresentation employed in procuring it makes the agreement itself invalid, unenforceable, and not binding on the principal debtor.”
In the case of Bangs v. Strong, 10 Paige (N. Y.) 11, the court held that where an agreement is obtained from the creditor by a principal debtor upon a false representation of the latter that the surety had authorized him to make it, and the surety afterward refused to assent to the agreement, the creditor will be.at liberty to repudiate it.
It is contended by counsel for defendant that the testimony does not bring the case within the principles of law decided in these cases. They contend that the testimony amounts to no more than a representation by Compton that, in his judgment, the sureties would still be liable on the note. We do not agree with them in this contention. We think that the jury was warranted in finding that Compton represented to Martin that the sureties had agreed that the alteration might be made in the note. In other words, the jury might have inferred from-the testimony of Martin, considered as a whole, that Compton represented to Martin that the sureties to the note had assented to the new arrangement and that such representations were false. In such case the sureties would not be discharged unless the plaintiff had acted under the agreement after she was aware of the fact that it had been entered into without authority and that the sureties refused to assent to the same.
In-the case of the State v. Churchill et al., 48 Ark. 426, the court said that there is no better settled principle than that to hold one bound by any word or act as a waiver it must be shown that he spoke or acted with a knowledge of all the facts and circumstances attending the creation of the right he is alleged to have waived.
In 2 Cyc. 174, it is said: “Ordinarily, a plaintiff can not avoid the effect of an alteration of which he is chargeable with knowledge after he has brought suit upon the instrument in its altered form, since by suing upon the altered instrument he is deemed to. have ratified the alteration; but if the suit is brought without knowledge of the alteration this will not amount to a ratification. ”,
The testimony on the part of the plaintiff tends to show that at the time she originally instituted this action she did not have any knowledge that the defendant, Waugh, had not assented to the alteration in the note. She testified that she did hot subsequently acquire such knowledge until after she instituted the suit, and that as soon as she found out that Waugh claimed that he had not assented to the alteration she repudiated any rights under the note as altered and filed an amended complaint In which she sought to recover upon the instrument as originally executed. The question of whether the alteration in the note was procured by the false representations of Compton to the effect that the sureties had consented thereto was submitted to the jury upon proper instructions.
The court also submitted to the jury the question of whether the plaintiff ratified the alteration in the note by her subsequent assent or acquiescence after she learned that the defendant, Waugh, claimed that such alteration had been made without his knowledge or consent. Objection is made by the defendant to one of these instructions because he was singled out in the instruction. We do not deem it necessary to set out the instruction. It is sufficient to say that the particular reference was made to Waugh because he was the only solvent signer to the note and was the only real def endant to the action.
Again, it is contended by counsel for defendant that the court erred in refusing to .give instruction No. 2, which is as follows:
‘ ‘ In order to vitiate a contract on the ground of fraudulent representation or fraud, the misrepresentation or fraud must relate to a matter material to the contract and in regard to which the other party had a right to rely, and did rely. If the means of information as to the matters represented is equally accessible to both parties, they will be presumed to have Informed themselves, and if they have not done so they must abide the consequences of their own carelessness.”-
There was no error in refusing this instruction. It is not claimed by plaintiff that she made a contract with the defendant, Waugh, for a change of the rate of interest in the note. She seeks to recover on the ground that Porter, one of the original makers of the note, represented' to her that he had secured the consent of the sureties to make, the alteration in the note, and that by such fraudulent representations procured her consent to the change in the note. If her testimony was true, there was no valid and binding agreement entered into between her and Porter for an alteration in the note, and the act of Porter in -changing the note amounted to no more than the spoliation of it.
Other assignments of error are urged upon us for the reversal of the judgment, but we have carefully considered the instructions given by the court, as well -as those refused by it, and are of the opinion that the respective theories of the parties were fully and fairly submitted to the jury. We find no prejudicial error in the record, and the judgment will be affirmed. | [
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• Fletcher, Special Judge.
This was a proceeding by the Louisiana, Arkansas & Missouri Railway Company .against D. H. Reynolds, in the Chicot circuit court, to .condemn a right of way over his lands. After the railway company had, in compliance with an order of the .circuit judge in vacation, deposited $2000, subject to the order of the court, in a bank at Little Rock, to secure Reynolds for any damages which might accrue to him on account of the right of way, it filed a motion •for leave to dismiss the proceeding, and to have the .amount deposited in bank refunded to it. This motion was sustained by the court, against the objection of Reynolds, and he has appealed.
The motion, alleged “that the plaintiff has not, at .any time, entered upon any of the lands described in the petition, or damaged or injured the same; that the plaintiff corporation deems the proposed route impracticable,- and too expensive for construction.” Appellant -does not deny any of the allegations contained in the «notion; nor does he claim that the proceeding was not instituted by the company in good faith. His contention is that the “company has no right to dismiss this proceeding without first surrendering the deposit.”
The constitution provides that “no property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation * * * shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.” Const, art. 12, sec. 9.
The statute relating to proceedings to condemn provides that “where the determination of questions in controversy in such proceedings is likely to retard the progress of work on or the business of such railroad coijipany, the court, or judge in vacation, shall designate an amount of money to be deposited by such company, subject to the order of court, and for the purpose of making such compensation, when the amount thereof shall have been assessed as aforesaid.” “Whenever such deposit shall have been made, in compliance with the order of the court or judge, it shall be lawful for such company to enter upon such land, and proceed with their work through and over the lands in controversy, prior to the assessment and payment of damages for the use and right to be determined as aforesaid.” Mansfield’s Digest, sec. 5464, 5465. In Ex parte Reynolds, 52 Ark. 331, it was held that this statute is in harmony with the constitutional provision above quoted, and the order of the judge requiring the deposit in this case was sustained.
The constitution and statute are unambiguous. The purpose for which the deposit is required is apparent. By making the deposit the railroad company merely acquires the right to enter upon the land and proceed with its work pending an assessment of damages. Its right to the property is not complete until the damages have been paid. The deposit is not made for the owner of the land, but, to the order of the court, to secure to him the payment of such damages as may be awarded by the jury.
The proceeding is purely statutory. There is no provision in the constitution or statute that a party wha has once instituted proceedings to condemn property shall be bound to go on and complete the proceedings and take the property. There is nothing in either which works a forfeiture of the deposit, or which fixes a charge upon it, beyond the amount of damages which may be sustained by the land owner by reason of the proceedings. If no damages are sustained by him, none can be awarded! by a jury. Lewis on Eminent Domain, secs. 612, 655, 658; White v. Wabash etc. Railroad, 64 Iowa, 281; Blackshire v. Railroad, 13 Kansas, 514; State v. Mills, 29 Wis. 324; Carson v. Hartford, 48 Conn. 86; Stacey v. Railroad, 27 Vt. 39; Bergman v. Railroad, 21 Minn. 533; Sherwood v. Railroad, 21 Minn. 126; Boom Company v. Patterson, 98 U. S. 406; Chicago etc. Railroad v. Gates, 120 Ill. 87; Denver etc. Railroad v. Lamborn, 8 Col. 380; O'Neill v. Freeholders, 41 N. J. L. 161; Williams v. Railroad, 60 Miss. 706; Peoria etc. Railroad v. Railroad, 66 Ill. 175; St. Louis etc. Railroad v. Teters, 68 Ill. 150; St. Joseph etc. Railway Company v. Callender, 13 Kansas, 500; Corbin v. Railway Company, 66 Iowa, 74; Ont. Railroad v. Wilder, 17 Kansas, 247; Oregon Ry. Co. v. Bridwell, 11 Oregon, 283; Springfield etc. Railroad v. Turner, 68 Ill. 188; State v. Railroad, 17 Ohio St. 108; Derby v. Gage, 60 Mich. 1.
Affirmed.
Wood, J., was disqualified. | [
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Wood, J.,
(after stating the facts). The appellant asked for an instructed verdict in his favor upon the undisputed evidence, and he was entitled to it.
Viewing the evidence in the most favorable light for the appellee, the promise of appellant to be responsible ’ for the negro whom the appellee had in custody meant no more than if the negro was released and failed to pay the judgment against him, that he (appellant) would pay the same.
The testimony showed that, after the negro was released and had gone away, the appellee continued a search for him for something like six months before he mentioned the matter to appellant about paying the fine. The reason he gave for this conduct was that he thought that appellant was also endeavoring to retake the riegro, Frank Daniels.
The appellant testified that he did not promise to pay the negro’s fine, but wanted the negro released, so that the latter could see his father-in-law and get the money to pay Ms fine. Appellant said lie had never seen the negro before be was employed to defend Mm.
The effect of the undisputed testimony was tantamount to a promise on the part of appellant to pay the negro’s fine and costs in the event that the negro did not pay it himself. The negro was not discharged from the obligation to pay the fine and costs by the promise of appellant to pay the same. The judgment was not satisfied by virtue of that promise, and, if the negro had been recaptured, he would have been liable for the fine and costs. There was no new and independent consideration beneficial to appellant, and inducing him to make the promise upon which appellee relies. The promise of the appellant, at most, was but a collateral undertaking to satisfy the judgment against the negro, Daniels, in the event that Daniels, himself, was not made to pay the same. And the promise was therefore clearly witMn the statute of frauds.
The language of appellant to the .effect that he would ' be responsible for the negro, that he was going to appeal the case, could have no other meaning than that, if the Supreme Court affirmed the judgment and Daniels did not pay it and was not present so that he could be taken into custody and forced to pay it, that in that event appellant would pay it. In other words, it was not an unconditional promise upon the part of appellant to pay the judgment against Daniels, but was only a promise to be surety for Mm, and to see that he paid it. In other words, this record shows that the main purpose of appellant was to answer for Daniels, but not to “subserve some pecuniary business purpose of his own, involving either benefit to himself or damage” to the appellee. His promise, therefore, was within the statute of frauds. Kirby’s Digest, § 3654, subdiv. 2; Kurtz v. Adams, 12 Ark 174; Chapline v. Atkinson, 45 Ark. 67; Scott v. Moore; 89 Ark. 324; Gale v. Harp, 64 Ark. 465; Long v. McDaniel, 76 Ark. 292.
It follows that the court erred in not granting appellant’s prayer for instruction, directing the jury to return a verdict in his favor.
The judgment is therefore reversed, and the cause is dismissed. | [
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Hart, J.,
(after stating the facts). Counsel for plaintiff seek to uphold the decree of the chancellor upon the authority of McCulloch v. Chatfield, 67 Fed. 877. In that case, McCulloch, Chatfield, Allen and others entered into a written contract for the purchase and sale of certain lands. Under the terms of the contract, the title to the land to be purchased was placed in Chatfield, and he was to have the full and absolute control of the land and of the sale thereof, being only required to account for the proceeds of sale. After the land was sold and the expenses paid, the proceeds of sale were to be divided between the respective parties in proportion to the amounts they had paid in. The court held that the agreement contemplated that the trustee appointed in it should hold the title to such land as might be acquired under the agreement, dispose of the same to the best advantage possible, and convey the same when sold by his individual deed. The only limitation placed upon his powers was that he should not sell any of the land for less than one dollar per acre without the consent of all parties in interest. Under these circumstances, the court said that the trust created by the agreement plainly belonged to that class of trusts where the beneficiaries acquired no estate in lands held by the trustee until after they are sold, when their rights attach to the proceeds of sale; that under the terms of the agreement, the title to the land acquired was taken in the name of the trustee for the express purpose of enabling him to sell it without let or hindrance and to divide the proceeds among those who might become interested in the speculation. Therefore, the court held that McCulloch was not entitled to a decree adjudging that he was the owner of an undivided interest in the property, as a decree of that nature would very likely interfere with the dominion over the property which the trustee was entitled to exercise so long as he acted in good faith and was guilty of no dereliction of duty. It may be noted that there was no allegation that the trustee had acted fraudulently in that case. It was not even charged or proved that he had been either negligent or inefficient in the discharge of his duties.
It is true in the case at bar the defendant, Bonner, did not expend any money in the purchase of the land, but only contributed his time, labor, skill and judgment in the purchase thereof. Under the terms of the agreement, the titles were all to be taken in the name of Johnson, who advanced the money to pay for the land, but hereafter the facts in the case at bar are essentially different from those in the case of McCulloch v. Chatfield, supra. In that case the duties and responsibilities of McCulloch ended when the title was taken in the name of Chatfield, and Chatfield had the absolute power to dispose of the lands in any manner, and for whatever price •he saw fit, so long as he acted in good faith. Here the contract provided that the lands were to be disposed of under the joint direction of all the parties to the contract. This gave Bonner something more than a mere interest in the profits after the lands were sold; it gave him an interest in the lands themselves. Johnson held the legal title, but he could not convey the lands without the consent of Bonner. In the case of Seymour v. Freer, 8 Wall. (U. S.) 202, the court said:
“A trust is where there are rights, titles and interests in property distinct from the legal ownership. In such cases, the legal title, in the -eye of the law, carries with it, to the holder, absolute dominion; but behind it lie beneficial rights and interests in the same property belonging to another. These rights, to the extent to which they exist, are a charge upon the property, and constitute an equity which a court of equity will protect and enforce whenever its aid for that purpose is properly invoked. Interests in real estate, purely contingent, may be made the subject of contract and equitable cognizance, as between the proper parties.”
We think the principles there announced control the present case. The object of the trust here was the sale of the property, and the parties to the agreement were to agree upon the manner of its disposition. This gave the parties to the agreement a joint interest in the property. Johnson held the legal title, but the rights of Bonner are as valid in equity as those of Johnson are at law. Bonner, in his cross complaint, alleges that Johnson sold the property without his consent at a'price very much less than they had been previously offered for the lands, and for a less price than the lands were worth when sold; that the plaintiff corporation was formed by persons for the express purpose of buying the lands at the same, price for which they were purchased under the agreement under consideration; that Johnson, Bolfe and the other incorporators had full knowledge of his rights and interest in the lands, and that said lands were purchased by the corporation for the express purpose of defrauding him and of depriving him of his interest in the land. Under the ¡allegations of lids 'cross-complainlt, the grantee took the title subject to the trust upon which Johnson held the property, and a court of equity will deal with it as if the title to the land still remained in Johnson. Therefore, we think the court erred in sustaining the demurrer to the defendant’s answer and cross complaint, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Humphreys, J.
This is a suit by appellants against appellees for $3,000 damages growing out of an alleged breach of the following construction contract:
“This agreement, made and entered into this 22nd day of September, A. D., 1921, by and between the Bouse & Hely Construction Company, a copartnership consisting of John H. Bouse and Norman L. Hely, of Cape Girardeau, Missouri, hereinafter called the first party, and B. J. Sanford, of Blytheville, Arkansas, hereinafter called the second party.
“Witnesseth that, whereas the first party entered into contract with the Good Boads Construction Company, a corporation of the State of Hlinois, duly authorized to transact business in the State of Arkansas, said company has contracted with the Blytheville-' Manila-Leaohville Boad Improvement District of Mississippi County, Arkansas, to do all that portion of the work of the Blytheville-Manila-Leachville Boad, begin ning in the city of Blytheville at station No. 1519 plus 16.5, as shown, by the plans and ‘specifications of the said road district, and continues to a point west of Blythe-ville where the first drainage ditch -crosses the said road at station No. 1397 plus 41.3, a distance of añoroxi-mately two miles from the beginning of the road in the city of Blytheville.
“Whereas, the first party hereby sublets to the second party sail the grading, subgrading, and g preparing the roadbed, making of the dirt shoulders and side-ditches to comply strictly with the contract -and specifications of the Blytheville-Manila-Leachville Road Improvement District, sand it is hereby-understood that the second party shall do only such grading and earth work as may be required ¡and -set forth in said plans and specifications on the right-of-way of the road, not including any grading or ditching called for in said plans and specifications that is not in the right-of-way of the road.
“Whereas, the second party agrees to furnish all the tools and equipment and perform each and every act as called for in the specifications, which -specifications shall be -made a part of this contract, necessary so that the grading will pass the engineer’s inspection, and be in a suitable condition, as called for in the specifications, to be paved with concrete as called for in the specifications.
“Whereas, the second -party agrees to at all times keep enough teams 'and other equipment at work so as to have the grading completed and ready for the concrete paving ahead of the point at which the paving is being done, so ¡as not to delay the paving work being done by the first party.
“Whereas, the second party agrees to do any and all grubbing and clearing and fence moving that may be required in the portion of the work covered under this contract.
“Whereas, it is hereby understood that the original plans and specifications to the Blytheville-Manila-Leach-ville Boad Improvement District provided that a twenty-six (26 ft.) foot concrete pavement be constructed in approximately the first half mile in the city of Blytheville, and that a nine (9 ft.) foot concrete pavement with four (4 ft.) foot gravel shoulders on either side is to be constructed from the termination of the twenty-six (26 ft.) foot pavement, and that it is contemplated by the engineer and the board of commissioners that the nine (9 ft.) foot concrete pavement for the purpose of obtaining State and Federal aid be increased to sixteen (16 ft.) foot concrete pavement, and the four (4 ft.) foot gravel shoulders originally provided for entirely eliminated.
“Whereas, it is hereby agreed and understood that the price per cubic yard to be paid the second party for this work shall cover any and all grading, subgrading or ditching that shall be called for under the specifications of this contract.
“Whereas, for and in consideration of this work, the first party agrees to pay the second party one hundred fifty ($150) dollars per acre for clearing and grubbing, and one hundred dollars per acre for grubbing without. clearing, thirty (30) cents per rod for fence moving, and twenty-five (25) cents per cubic yard for grading and excavating.
“Whereas, payment for the work performed by the second party, when completed according to the plans and. specifications and under conditions and provisions herein set forth, shall be made by the first party, in cash, on the' estimate of the engineer of the aforesaid road district, when approved by the board of commissioners, on or about the 10th day of the month following the completion of the previous month’s work, such payment to be governed by the engineer’s estimate in cubic yards of the work completed during the previous month. Ten (10) per cent, of such estimate shall be retained by first party until all the work covered in this contract is fully completed and accepted by the engineers of the aforesaid road district, and when satisfactory evidence- is furnished by the second parties that no liens .or claim® exist against said work.”
The proceeds that should arise from the contract were assigned to Browne & Billings, a partnership composed of E. J. Browne and R. J. Billings, to secure them for advances which should be made by them for the purpose of carrying out the contract. It is alleged in, the complaint that appellant, by reason >of appellees violating their said contract and refusing to permit said appellants to pursue the work thereunder, and to complete same in -compliance with said contract, sustained dam-áges in the sum of $2,250 profit which they would have made had they been permitted to complete said contract, and $750 expénded in feeding their teams during delays occasioned by a wrongful refusal of appellees to permit them to work.
Appellees filed an answer denying the material allegations-of the complaint and the right of recovery of any amount on the part of appellant.
The cause was submitted upon the pleadings and testimony, at the conclusion of which the court instructed a verdict for appellees, -over the objection and exception of appellants. A judgment was rendered in favor of appellees, in accordance with the verdict, from which is this appeal.
The record reflects that Sanford was interrupted a number of times in the prosecution of the work during the fall, under orders of the engineer of the district, which orders were communicated to him by appellees; that in January the work ceased until in the spring, on account of weather conditions; that when ordered to return to work in the -spring his teams were in use elsewhere, and he could not do so; that during the delays in the fall Sanford was unable to secure work for his teams elsewhere, and was compelled to expend large 'amounts for drivers, and feed while 'holding the teams in readiness to work. Over the objection of appellants, the court permitted appellees to introduce the contract and supplemental contract between the original contractor and road district, the contract between the original contractor and appellees, and the original plans and specifications for the construction of the road, all of which are referred to in the contract between Sanford and ap-pellees. Under the original plans and specifications, made a part of the contract between 'Sanford and ap-pellees, the district reserved the right to make any changes in the width of the road and method of construction thereof so as to meet Federal aid requirements, and it was provided in said specifications that “no allowance would he made for anticipated profits” in case such changes were made. The specifications also vested in the engineer of the district the right to determine the amount 'and quality of the work, and provided that the contractors should be paid only upon the estimates of said engineer. The specifications also provided that, in case the work was suspended by the engineer or directors of the district, on account of weather conditions or other cause, an extension of time should be granted for the completion of the work greater than the delay occasioned by the suspension. The specifications also provided for temporary suspension of the work. Section 59 of the specifications is as follows:
“The directors or engineer may stop the work wholly, or in part, for such period or periods as they may deem necessary because of unsuitable weather or such other conditions as are considered unfavorable for the prosecution of the work, or for such time as they may consider necessary because of the failure on the part of the contractor to carry out orders given. If work is suspended, the contractor shall place the materials and equipment in neat piles, protected from the elements, so as to avoid obstruction of traffic. No allowance of any kind will be made for such suspension of work except an extension of time for 'completion of the contract.”
Appellant’s insistence for a reversal of the judgment is that the trial court erred in holding that appellants were bound by section 59 of the plans and specifications quoted above. It is admitted that, if bound by said section, the court correctly admitted the plans, specifications, and contracts in evidence. Appellants contend, however, that the reference made to the plans and specifications in the contract was for the sole purpose of indicating when work was to be done and the •manner of doing same. We cannot agree with learned counsel in thus restricting the reference. Reference was first made to the original contracts, and the only purpose which can be attributed to such reference is that the origiilal contracts were intended by the parties as a basis for the subcontract. Reference was next made to the original plans and specifications by making them a part of the subcontract. The language bound Sanford to “perform each and every act as called for in the specifications.” We think this meant that Sanford should be bound as completely by the provisions contained in the specifications as the original. contractor, so far as that portion of the road is concerned which he agreed to build. It is undisputed that the work was suspended from time to time by order of the engineer. It does not appear that the suspensions were arbitrarily made. Changes were made in the width and construction of the road to meet Federal aid requirements, and on this account the time was extended by supplemental contract for the completion of the road. The court correctly construed the contract, and, under the undisputed facts, properly directed a verdict for appellees.
The judgment is affirmed. | [
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Humphreys, J.
This is a suit in equity to set aside as fraudulent two deeds of date December 28, 1920, and to subject the real estate therein conveyed to the payment of a deficiency judgment in the sum of $4,377.81, obtained by appellant against appellee in a foreclosure proceeding in the chancery court of Johnson County. The foreclosure proceeding was upon a renewal note of $8,367.93 dated June 1, 1921, and secured by a mortgage on the Sam Mayes place. The renewal note and mortgage represented a balance due upon a $9,500 note and mortgage of date April 3, 1920, and due June 1, 1921. The $9,500 note and mortgage evidenced a loan from appellant to appellee and Ms son, V. I. Herring, obtained upon the following financial statement of J. V. Herring, filed in writing with the appellant as a basis for credit:
“For the purpose of procuring credit from time to time with you, for my negotiable paper or otherwise, I ■furnish the following as a true and accurate statement of my financial condition on April 1, 1920, which may hereafter be considered as representing a true statement of my financial condition, unless notice of change.
“assets.
Cash in bank..$ 103.00
Bills receivable. 3,220.00
Accounts receivable... 500.00
Real estate in name of firm. 19,000.00
Machinery and fixtures. 1,000.00
Livestock on hand. 750.00
“Total. .$24,573.00
‘1 LIABILITIES.
Notes payable to bank.$ 9,500.00
Total liabilities..■.$ 9,500.00
Net worth . 15,073.00
“Total.$24,573.00
“ J. Y. Herring/-’
Seven thousand dollars of the money was borrowed to pay the purchase price of the Sam Mayes place and the balance to cover advances which had been made to buy mules. The title to the Mayes place was taken in the name of Y. I. Herring. The $9,500 note, as well as the renewal note for $8,367.93, was signed by appellee and Y. I. Herring. The mortgage given to secure the respective notes on the Mayes place was signed by Y. I. Herring and his wife. In addition to this mortgage, appellee transferred notes in the sum of $3,000 to appellant, which he had taken in payment for mules, as collateral security for the payment of the notes. On December 28, 1920, appellee conveyed all of Ms real estate to his son, Y. I. Herring, for an expressed consideration of $8,000, $1,000 cash and the balance on time, with a vendor’s lien for same retained in the deed. On the same day Y. I. Herring conveyed said real estate to his mother, Elizabeth C. Herring. The deeds were recorded immediately after execution. A short time after the deeds were delivered appellee executed a deed to his wife, Elizabeth C. Herring, releasing the vendor’s lien of $7,000 retained in the deed from appellant to his son. No present consideration passed upon the execution and delivery of either deed. According to the testimony of ap-pellee, his .purpose was to vest title to said real estate in his wife in satisfaction of various sums she had advanced to him from time to time to use in his business. Concerning the indirect manner of placing the title of the real caíate in Elizabeth'C. Herring, appellee said he was advised by Mr. Byington, an abstracter, of the method by which it should be done. In a few days after the execution of the deeds aforesaid appellee transferred his personal property, consisting largely of household goods, to his wife, being under the impression at the time that it was necessary to do so in order to keep other creditors from reaching1 it. The household goods, however, were exempt under the law. When appellee and his son renewed their note on June 1, 1921, they did not inform appellant that all the real estate included in the statement as a basis for credit had been conveyed to Elizabeth 0. Herring’. When the renewal note matured, appellee and his son were unable to pay it, and a foreclosure suit was instituted and prosecuted to a conclusion in the chancery court of Johnson County. In that suit the indebtedness was reduced to a judgment, and the proceeds from the foreclosure sale of the Mayes place, together with a small collection on the mule notes, were applied as a payment thereon, leaving a balance of $4,377.81. It is sought by the instant suit to.collect this balance out of the real estate conveyed by appellee to his wife, the insolvency of appellee and his son being alleged in the bill and not specifically denied in the answer thereto. The deeds are attacked upon the ground that the transfer of the lands contained therein rendered ap-pellee insolvent, and was without consideration. The chancery court found this issue against appellant, and dismissed its bill for want of equity, from which is this appeal.
Appellant contends tit at the findings of the trial court are against the weight of the evidence. Appellee conveyed all his property, both real and personal, to his wife, except the Mayes place and the mule notes. According to his testimony, this did not affect his solvency. He testified that about the time he conveyed the lands to his wife he was offered $8,000 for the Mayes place, which he refused,.holding same for $10,000. A. N. Ragon, tlie president of appellant bank, testified that appellee tried to sell the place, but was unable to do so. Appellee purchased it for $7,000, and at the foreclosure sale it brought only $5,000. The mule notes proved to be worthless. Appellant succeeded in collecting' only $81 out of them. A. N. Ragon and the cashier of appellant bank, R. D. Dunlap, testified that the loan was greater than the value of the Mayes place. A careful reading of the testimony bearing upon this point has convinced us that the mule notes and the Mayes place were insufficient in value to pay the indebtedness at the time appellee conveyed his other lands to his wife. We are also of the opinion, after reading the testimony, that the circuitous conveyances of the real estate by ap-pellee to his wife were without consideration. No present consideration passed when the conveyances were made. The claim is that the conveyances were -^ade in satisfaction of a preexisting indebtedness of about $8,000 from appellee to his wife. Appellee and his wife testified that she had advanced him various sums of money, covering a period of five or six years, to use in his business. Tt is not claimed that the amounts advanced were charged by appellee’s wife to him or that accounts were kept between them. No evidences of indebtedness were issued by appellee and delivered to his wife, and there was no promise on Ins paid to pay 'her any definite amount at any certain time. Mrs. Herring produced checks for small amounts, totaling $600, covering a long period of time, which-she had drawn in favor of her husband, and which were cashed by him. Some of these checks were used by him in his business and others were used for her personal benefit. Appellee made a written statement at the time he procured the loan from appellant, that he did not owe any one except appellant bank. He did not intimate that he owed his wife anything. We think the testimony insufficient to show that appellee and his wife dealt with each other as debtor and creditor. The manner of making such advances as were made in dicated very clearly that they were intended as gifts. They were not treated by the parties as loans. This court said, in the case of Davis v. Yonge, 74 Ark. 166, that “when a wife allows her husband to use her money as his own for a long period of time, to purchase property with it in his own name, and to obtain credit upon the faith of his being the owner thereof, she will not be allowed to claim such propert}^ against his creditors.” The same doctrine was announced in the later cases of Harris v. Smith, 133 Ark. 260, and Bunch v. Crowe, 134 Ark. 242. It was necessary to prove the insolvency of V. I. Herring as a prerequisite to recovery herein, as his insolvency was alleged and not denied.
For the error indicated the decree is reversed and the cause remanded, with instructions to cancel the conveyances and to subject the real estate conveyed in them, as far as may be necessary, to the payment of appellant’s deficiency judgment. | [
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McCulloch, J.
Appellant, Mrs. Ida M. Hardy, resides in the city of Little Rock, and she owns a farm, consisting of several hundred acres of land in cultivation, near the town of Foreman, in Little River Oounty. ■ Sbe caused the land to be cultivated by tenants from year to year, and in the year 1920 she rented the land to J. D. Hensley and his son, Osh Hensley. She agreed to assist the Hensleys in obtaining supplies during the year, and on March 27, 1920, she joined them in the execution of- a note for the sum of $800, payable to W.. M. Gathright, a merchant at Foreman, with the agreement that the note should be delivered to Gathright for the purpose of inducing him to furnish supplies to the Hensleys to the extent of the amount of the note, which was made payable on October 1, 1920, with interest. Appellant was living in Little Rock at that time, and the negotiations between her and .the Hensleys were conducted by correspondence, The note was mailed to her, and she signed it and returned it to J. D. Hensley, with authority to deliver it to Gathright. Hensley, after receiving the note, decided to trade with appellee, a copartnership composed of certain individuals doing business under the name of New Rocky Grocery Company, and he took the note to the managers of appellee’s business and opened up negotiations in order to have appellees furnish the supplies. Appellees agreed with Hensley to furnish him supplies to the amount of the note, and there was a change made in the note by erasure of the name of Gathright as payee and the substitution of appellees, under their copartnership name.
Appellees proceeded to furnish supplies throughout the year to the Hensleys, and they instituted this action, after the maturity of the note and refusal of appellant to pay, to recover the amount of the note.
The suit was first instituted in the chancery court, but the court treated a demurrer to the complaint as a motion to transfer, and ordered the cause transferred to the circuit court, where an amended complaint was filed, which, in addition to setting out the cause of action on the note, contained k second paragraph asking a recovery on the account. There was a trial of the case before a jury, and a verdict resulted in favor of appellees. Judgment was rendered accordingly, from which an appeal has been prosecuted.
Time was given by the court for filing a bill of exceptions, and what purports to be a bill of exceptions, with, the approval of counsel on both sides, was filed within the time allowed. Counsel for appellees contend, however, that the bill of exceptions was not properly certified. The bill of exceptions was not signed by the judge, but it was signed by counsel on both sides and marked “O. K. ” The bill of exceptions was designated as such in the caption, and was only certified by the stenographer, who stated in his certificate that it was a correct transcript of the oral proceeding. At the conclusion it is marked in pencil, ‘‘bill of exceptions,” immediately preceding the signatures of counsel, and, as before stated, the signatures followed the designation “0. K”
The statutes of this State provide that a bill of exceptions may be certified in a civil case by agreement of counsel, and we have held that it must be an unequivocal certificate.
We think that the use of the well-bnown term of approval is sufficient to indicate that it was intended as a certificate to the bill of exceptions, which bore the caption as such. This term has a well-known significance. While its origin is in doubt, it is now recognized by lexicographers as indicating unequivocal approval, and we see no reason why the term should not be accepted as a certificate of the correctness of the bill of exceptions. The statute provides no express form in which the approval shall be manifested, and any word which clearly indicates the intention of the parties to agree upon the instrument as a bill of exceptions, or history of the trial, will be accepted as such. We therefore accept the bill of exceptions as approved, as far as it goes.. There are, however, many exceptions presented here with reference to the court’s charge,-but the bill of exceptions, as approved, does not contain the instructions nor any call for them, therefore we are not at liberty to consider these exceptions. It is true that on certiorari appellant has brought up, under certificate of the clerk, instructions found on file with the other papers in the case, but, as before stated, there was no call in the bill of exceptions for these instructions, and they cannot be considered as a part of the bill of exceptions. Newton v. Russian, 74 Ark. 88. All of the assignments of error with respect to the instructions must therefore fail.
It is earnestly contended, however, that the evidence is not sufficient to sustain the verdict, .and this question is properly presented, for the evidence is fully set forth in the bill of exceptions, and in the motion for a new trial the question of the insufficiency of the evidence is properly raised.
Appellant contended, and so testified, that, while she joined in the execution of the note to be delivered to Gathright, she did not authorize the erasure of Gath-right’s name and the substitution of appellees’ as payees in the note, that she did not have any knowledge of the substitution until after the maturity of the note, and that she did not ratify it. She testified that she did not enter into any obligation with appellees in any other form to pay for supplies furnished to her tenants.
It is undisputed that appellant did not authorize the substitution of appellees as payees in the note, and that she did not know of the change at the time, and intrusting to Hensley the custody of the note, with authority to deliver it to Gathright, the payee, did not carry with it apparent authority to change the name of the payee. The change was apparent on its face, and it is undisputed that appellees knew of the substitution. There is a little conflict in the testimony as to the circumstances under which the substitution was made, but it is undisputed that the change was made in a conference between Hensley and witness 'Covington, who was then a member of the firm. According to Hensley’s testimony, he proposed to Covington that the note be returned to appellant and that a new note be obtained from her, payable to appellees, but Covington said that it'would be hnnec- essary to do that, that, it would be just as easy to erase Gathriglit’s name and substitute appellees’ as the payees, and that this was done. Covington testified that Hensley authorized hin-n to make the substitution. We think, however, that the evidence is sufficient to sustain the finding that appellant, with knowledge of all the facts, had ratified the substitution of appellees as payees of the note. Appellees furnished to the Hensleys supplies to the extent of the note, and about the time the note matured, or at least a few days afterwards, appellees wrote to appellant notifying her of the maturity of the note, and calling on her for payment. The letter is not brought into the record, but appellant was examined with reference to it, and it is fairly inferable from her testimony that she was apprised of its contents, to the effect that ap-pellees were holders of the note that she had signed, and that, with this knowledge, she ratified the act of substitution. She immediately replied, in a letter to appellees, acknowledging receipt of their letter, and, after making some reference to the crops of the Hensleys, she made this statement: “I am not able to pay anything now myself, so you will look to him for pay. I did not know the note was due yet. You surely can wait until he gathers his crop and let him pay as he gets his cotton out. Let me hear from you how he gets on. ’ ’
There was other correspondence, which shows that appellant was treating the note as a valid liability. Letters were written by her husband, 'which she says were not expressly authorized, but it is a .fair inference to be drawn from the testimony that she intrusted her business to her husband, who wrote the letters. The letter referred to above, however,, was written by appellant herself. She states that at the time she wrote this letter she did not know of the erasure and substitution of ap-pellees as payees, but supposed that the note had been transferred by Gathright.
According to the evidence, the substitution was made innocently and without any intention to perpetrate a fraud, and for the sole purpose of securing supplies for appellant’s tenants. Tlie parties, in making the erasure and substitution, clearly intended merely a method of transferring the note from Gathright to appellees.
If appellant, with knowledge that appellees had furnished supplies to the Hensleys on the faith of this note, ratified it by treating it as an existing liability on her part, it is unimportant that she supposed at the time that the note had been transferred by Gathright, instead of the name of appellees being substituted.
There are several assignments of error with respect to the admission of testimony. The first one is that the court erred in permitting appellees to ask appellant the question whether or not it made any difference to her where the Hensleys obtained supplies — whether they obtained them from Gathright or from appellees. We think this testimony was competent for the purpose of showing appellant’s state of mind with respect to the ratification. In other words, it was competent to show, in determining whether or not she ratified the substitution, that it was a matter of indifference to her whether the tenants obtained the supplies' from Gathright or appel-lees. Moreover, the answer of appellant to the inquiry completely dissipated any prejudicial effect which the inquiry might have had, even if it was incompetent. She replied to the inquiry by stating that she preferred to deal with Gathright because she liad met him and had had a talk with Gathright prior to the execution of the note.
Again, it is contended that error was committed in permitting witness' Covington to state that the erasure in the note and the substitution of appellees as payees was made at the suggestion or request of Hensley. This was competent as tending to show that the substitution uvas innocently made and without intention to defraud, and under an assertion of authority by Hensley to act for appellant. It was not competent as substantive evidence of any authority on the part of Hensley to direct the change to be made, but, if appellant desired a re-. striction to be put upon the consideration of tbe testimony to a particular purpose, a request to that effect should have been made. It does not appear from the record that any such request was made, and we do not think there was any error in this respect.
Another assignment relates to the admission of the testimony of the witness Pullen, one of the appellees, to the effect that they would not have advanced supplies to .Hensley without security. This was competent to show that appellees advanced the supplies in good faith and upon the honest belief that they were holding the note executed by appellant as security for the debt.
There are other assignments not of sufficient importance to discuss, and, on the whole, we find no error in the record, and the judgment is affirmed.
Hart, J., dissents. | [
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Hart, J.
Elton Kirby, George Lackey, O. O. Fisher, Guy Westbrook and Bradley Scott were each fined in the police court of the city of Paragould upon the charge of running a soda fountain without having paid the license fee required by the city ordinance, and, upon appeal to the circuit court, the cases were consolidated. Upon a trial before a jury each defendant was fined .in the sum of $30, and from the judgment of conviction an appeal has been duly prosecuted to this court.
No objections were made or exceptions saved to the instructions of the court, and the only issue raised by the appeal is whether or not the evidence is legally sufficient to support the verdict.
The city ordinance required each keeper or proprietor of a soda fountain to pay an annual license fee of $30. The vocation of selling soda water and soft drinks is a proper subject of police regulation, because it affects the public health and welfare generally. It is a matter of common knowledge that impure milk and uncleanliness generally, if permitted at public drinking fountains, would be a fruitful source of disease, and it needs no discussion to show that the business is one 'which particularly falls within the power of the State and its municipalities to regulate, upon the same principle as a meat market or restaurant. Trigg v. Dixon, 96 Ark. 199, and Fort Smith v. Gunter, 106 Ark. 371.
But it is insisted that the amount of the license required was unnecessary for the purpose of regulation, and is therefore arbitrary. It is true that the defendants testified that but little attention was paid to their places of business by the city health officer; but that is not the controlling test. In the exercise of the police power for the purpose of regulation, the city council has the right to consider what may have to be done by the city health officer and the police department in the way of regulation; and the authority of a municipality in fixing the amount of the license will not be reviewed by the courts unless there is an abuse of its discretion. It must fix such a charge for a license as will bear some reasonable relation to the necessary expense involved in the regulation. This, however, will include the cost of issuing the license and a reasonable sum for the expense of supervision. Paragould is a city of the first class, with over 6,000 inhabitants. Dr. F. N. Scott was the city health officer, at a salary of $25 per month. It was a part of his duty to inspect the places where soft drinks were sold in tlie city of Paragould and to keep general supervision over them, to the end that the milk and other articles sold therefrom should be kept free from impurities and thus prevent the spread of disease to those drinking at such fountains.
An ordinance will not be declared -void where the license provided is not disproportionate to the probable cost of its enforcement and the regulation of the business to which the ordinance applies. Considering the nature of the business, the amount of time and expense required for a proper supervision of it, and the benefit to the health of the inha bitans of the city, it cannot be said that the license fee required in this case is arbitrary or unreasonable.
It follows that the judgment in each case will be affirmed. | [
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Smith, J.
The parties to this litigation entered into the following written contract:
‘‘Escrow Agreement.
“This agreement made and entered into this 14th day of January, 1921, b}*" and between W. J. Goodwin, attorney in fact, for IT. M. Geren and Julia Geren, bis wife, party of the first part, and W. P. Garrison, of Little Rock, Arkansas, party of the second part, witnesseth:
“The party of the first part has executed an oil and gas lease to certain lands situated in section 22, township 17 south, range 15 west, in Union County, and the party of the second part attaches to said lease his draft in the amount of twelve thousand two hundred fifty ($12,250) dollars. In addition to the amount of $12,250, the party of the second part deposits herewith two thousand ($2,000) dollars cash, to be paid to the party of the first part when title to said land is passed by the attorney for the party of the second part. A copy of the opinion of the attorney selected by the party of the second part, exhibited to the bank by the party of the first part, shall be authority for the payment of the said two thousand ($2,000) dollars.
“The party of the first part shall furnish and deliver abstract of title to land described in said oil and gas lease within two days from date hereof, showing-good and merchantable title to said lease to be vested in party of the first part. Party of the second part shall have said abstract examined and said title to said lease passed upon by a competent attorney within five days from date of this instrument. If title is good and merchantable, then the bank hereinafter named shall pay said sum of two thousand ($2,000) dollars to party' of the first part, and shall hold the said draft for twelve thousand two hundred fifty ($12,250) dollars, and the said oil and gas lease, for a period of'fifteen days from date before final payment is made. The opinion of said attorney shall be in writing, and if he shall hold said title is defective, then all defects shall be clearly indicated and set forth by him in writing. If said title is defective, then party of the first part shall have five days from the date said attorney’s opinion is delivered to him within which to cure said defects, and if he should fail to cure said defects, then said lease shall be delivered, at the expiration of the time limit of fifteen (15) days, to the party of the first part, and said sum of money shall be delivered and paid over by said bank to the party of the second part. It is distinctly understood that the party of the second part shall have a total of fifteen (15) days from date within which to make balance of payment of twelve thousand two hundred fifty ($12,250) dollars. It is agreed by and between the parties hereto that this instrument shall be deposited in escrow with the Citizens’ National Bank of El Dorado, Arkansas.
“In witness whereof we have hereunto . set our hands on this 14th day of January, 1921A
An abstract of the title to the land described was examined by Marsh & Marlin, a firm of attorneys practicing at El Dorado, and a written opinion was prepared by them on January 21, 1921, in which they advised that Geren had a good and indefeasible title, subject only to an outstanding lease — an objection which was immediately met by the reassignment of the lease.
After the approval of the title by Marsh & Marlin, the surrender of the $2,000 cash and the draft was demanded. This demand was refused, whereupon Geren brought suit for the specific performance of the lease, and made the bank a party.
Garrison answered, and filed a cross-complaint. He alleged that' Marsh & Marlin were not the attorneys of his selection, and that he was therefore not bound by their opinion. He also alleged that the lease did not contain the recitals and agreements upon which he and Geren had agreed, and that the execution of the original escrow agreement had been procured by the false representation that no part of the land described was within the corporate limits of the city of El Dorado, whereas a material part of the land was situated within the corporate limits of that city, and therefore subject to certain municipal regulations in regard to drilling for oil and in piping oil from a producing well which did not obtain and were not in force outside of the city. By way of cross-complaint he alleged that he sustained a loss of $11,000, because some third parties refused to carry out a trade with him for'the reason that the title shown by the abstract was not good and merchantable.
Geren brought this suit to enforce specific performance of the contract, and from a decree in his favor Garrison has appealed.
The principal question in the case is the one of fact whether Marsh & Marlin were the attorneys designated by Garrison to examine and pass upon the title. The court below expresslv found the fact to be “that an ab-tract of title was duly furnished by plaintiff to the at torney selected by the defendant, and on January 21, 1921, the attorney so selected by said defendant approved the title, in a written opinion which was delivered to the defendant.”
We concur in this finding of fact, and as- the parties, by their agreement, made Marsh & Marlin the arbiters to determine the validity of the title, the opinion so prepared can only be questioned for fraud or mistake. LeRoy v. Harwood, 119 Ark. 418; Whitener-London Realty Co. v. Ritter, 94 Ark. 263; Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Lewelling & Price-Williams v. St. Francis County Road Imp. Dist. No. 1, 158 Ark. 91; Williams v. Board of Directors, 100 Ark. 166; Drainage Dist. v. Kochtitzhy, 146 Ark. 494.
It appears that Garrison procured the written opinion of another firm of attorneys under date of April 5, 1921. This was, of course, long after the time limited by the escrow agreement, but this opinion did not disapprove the title. It called attention to the outstanding lease referred to in the opinion of Marsh & Marlin, and it also called attention to the fact that there was a missing link in the chain of title, but there may have been some showing in the abstract (which is not in the record) from which it appeared that the title was good and merchantable. notwithstanding this missing link. Hinton v. Martin, 151 Ark. 343; Dalton v. Lybarger, 152 Ark. 192.
There appears to be no substantial testhnunv to support the allegation that the execution of the agreement set out above had been procured through false, representations as to the location of the land: and the court express!v found against Garrison on the allegation of loss of profits resulting from the defective title. We also concur in this finding.
Garrison testified that the lease called for in the escrow .agreement never became a valid and binding contract, because he never assented to it or signed it. If his signature was essential to the validitv of the lease, he could easily have signed, as that opportunity was afforded. A reading of the escrow agreement clearly indicates that the terms of the lease itself .had been agreed upon, and upon the approval of the title nothing remained to he done except to deliver the lease to Garrison and the money and the draft to Geren, as the lease .was attached to the draft. Garrison testified that the lease tendered was not such as he had agreed to accept, in this, that the lease he agreed to accept called for a rental of a dollar per acre per annum, and the rent for a gas well in use was $200; whereas the lease offered in evidence called for $285 for the '57 acres of land embraced in the lease and $500 a year for gas rental.
On the other hand, the agent and attorney for Geren who acted for him in the matter testified that the terms and conditions of the lease were discussed in minute detail, and were fully agreed upon, and that he prepared the lease in Garrison’s presence, and they discussed it in every detail as its preparation proceeded, and that as completed it was fully approved b}^ Garrison, and nothing was left to be done except to execute and deliver it; and that the lease as thus prepared and agreed upon was delivered to Marsh & Marlin, along with the abstract.
The court below accepted this testimony; and so do we, for it accords with the recitals of the escrow agreement, and Garrison should have accepted the lease tendered.
The court decreed a specific performance of the contract, and we think the testimony warranted that action. The grantor, as well as the grantee, may maintain suit for specific performance. Robinson v. Florence Sanitarium, 149 Ark. 355; Dollar v. Knight, 145 Ark. 522; Wilkins v. Eanes, 126 Ark. 339.
The', controlling question is whether. or not Geren complied with the escrow agreement by furnishing a good and merchantable title which was approved by his attorney, and tendered a written lease the provisions of which conformed to the agreement of the parties. The court below decided-these questions in favor of Geren, and -so do we, and, having done so, the remaining question is whether the lease contract will be specifically enforced.
The conditions of the escrow agreement having been met, it became the duty of Garrison to accept the lease which had been placed in escrow and pay for it, if the lease tendered was the one called for by the escrow agreement. Master v. Clark, 89 Ark. 191; 21 C. J. § 34, chap. Escrows; Roach v. Malone Mercantile Co., 135 Ark. 69.
The lease itself then became the contract between the parties, and we must look to it to ascertain the relative rights and obligations of the parties. There is nothing indefinite or uncertain about this lease, and we perceive no reason why the court should withhold the relief of specific performance, and the decree to that effect is affirmed. | [
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Hart, J.,
(after stating the facts). The judgment of the circuit court was wrong. It is true that, according to Light v. Self, 138 Ark. 221, and other decisions of this court, the records of the county court showing that no proceedings were had on the general county court record is conclusive of that fact. The order in question, however, laying out new public roads and changing the old ones in Wilmot Road Improvement District, was not made under the general provisions of the statutes in regard to laying out public roads, but was made under a provision of the special act of the Legislature creating the Wilmot Road Improvement District referred to above.
As set out in our statement of facts, this special act was approved on the 30th day of January, 1920, and contains a provision authorizing the county court of Ashley County to lay out public roads in the district along the lines selected by the board of improvement commissioners in the manner provided by § 5249 of Crawford & Moses’ Digest.
This special act also contains a provision to the effect that “all courts shall be deemed always open for the purposes of this act.” As we have just seen, one of the purposes of the act was for the county court to lay out new roads, or to change existing public roads within the boundaries of the road improvement district.
Under this section of the act creating AYilmot Road Improvement District the county court was always open for the transaction of business relating to said road improvement district. It is true that the order in question mating the changes in the public road was signed by C. D. Oslin, Judge, but it was in effect made by him as a court. The order was made in his character as a judge, and was in its nature judicial. Hence it did not make any difference whether Oslin declared himself in words to be acting as a court or not.
The statute requires the county court to be always kept open for the purpose of making orders with regard to the road improvement district, and any judicial order made by the county judge is, under the terms of the statute, an order made by the county court. The judge of the county court having been authorized and directed, under the statute, to hold court in vacation for that kind of business, the order was, under the statute, a court order.'
In Courts and Their Jurisdiction, by John D. Works, p. 377, the law is stated as follows:
“Although terms of court may be provided for generally, the Legislature may provide that, for the transaction of business of an urgent character, the court shall be open at all times, and, under such legislation, the court may act with reference to such business during what is, as to other business, vacation. But this is not the act of a judge in vacation, but of the court. And where a judge is authoifized to appoint a receiver, or perform other like judicial acts, it is held that his acts, orders, and proceedings, although had in vacation, are the judicial proceedings of the court whereof he is judge. This, however, is based upon the-ground that the words ‘judge’ and ‘court’ are, as used in the statute authorizing the appointment -of' a receiver in vacation, synonymous.”
The United States Supreme Court has uniformly upheld the act of Congress providing that bankruptcy courts shall always be open for certain purposes in bankruptcy proceedings. United States v. Finnell, 185 U. S. 136, and United States v. Marvin, 212 U. S. 275.
It would be too narrow an interpretation of the statute to hold that the business was not transacted by the court because it was signed by C. D. Oslin, Judge. The power of the Legislature to provide that a court shall always be open for the purposes named in the act has never been denied, so far as we are informed, by any court where these questions have been presented for its consideration. Hence we think the exercise of judicial power in accordance with the provisions of the special act constituted an act of the court.
The county court had the power to adjourn the county court for all purposes with regard to the jurisdiction it might exercise under the Constitution and the other statutes of the State; but, the statute in question having provided that it should be always open for the purposes of the act, any judicial power exercised by the county judge for any purpose coming within the provisions of the act necessarily constituted an action by the court. It did not make any difference that the order of the court was not kept on the records for general countv court proceedings. It was sufficient if a proper record was kept in tlie county clerk’s office for the purpose. It seems that, for tlie purpose of convenience, tlie county clerk kept tlie proceedings of the county court with regard to the Wilmot Road Improvement District in a special record, and, as we have above indicated, this fact could not in any sense render the proceeding void. The essential fact was that the order was a judicial act, and was made by the county judge, who, under the provisions of the special act creating the road improvement district, was authorized to make it any time, and whose court was deemed to be always in session for that purpose.
As above stated, it is well settled that by statute a court may have terms for certain purposes, and be regarded as always open for other purposes designated by the statute.
It is also insisted that the appeal should be dismissed because it is not taken within The time provided by the statute.
Sec. 11 of the special act creating the Wilmot Road Improvement District provides, “all suits involving the validity of the district * * * shall be deemed matters of public' interest and advanced in all courts and heard at the earliest moment, and all appeals therein will be taken and perfected within thirty days.”
This provision of the special act is not applicable to this suit. This proceeding does not involve in any manner the validity of the district. The order of the county court making the changes in the public roads might be valid or invalid, yet the validity of the district would in no wise be affected. Hence the special provision just quoted does not amply. The appeal was taken within six months, and that is sufficient.
It follows tliat the judgment must be reversed, and the cause will be remanded for further proceedings according to law7 and not inconsistent with this opinion. | [
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Wood, J.
The Kelley Trust Company (hereafter, for convenience, called appellant) is ¡an Arkansas corporation, with its principal place ¡of business in Fort Smith, Arkansas. Harry E. Kelley is its president, and owiis a majority of its stock. On the first of May, 1917, the appellant executed to one C. P. Zenor, Sr., his heirs and assigns, a warranty deed to block-38, Midland Heights Addition to the city of Port Smith, Arkansas. The consideration named in the deed was $7,000. The deed contained the usual clauses and covenants, and in addition the following:
“Three thousand dollars of the above mentioned consideration is paid in cash by the Business Men’s Club of Fort Smith, Arkansas, and the receipt thereof is hereby acknowledged. The remaining four thousand dollars is to be paid by the said C. P. Zenor, Sr., by the erection, maintenance and operation, bn said real es- tale, until January 3, 192.1, of a glass factory, having a daily pay-roll of not less Ilian six hundred dollars, and employing- not less than one hundred fifty men; the meaning and intent hereof being that said real estate is donated to said C. P. Zenor, Sr., his heirs and assigns, upon condition that said C. P. Zenor, Sr., his heirs and assigns, erect, maintain and operate on said real estate, during the period above indicated, a glass factory having a daily pay-roll . of not less than six hundred dollars, and employing not less than one. hundred and fifty men, a lien being hereby retained on said real estate to secure performance of said conditions. “And in the event said C. P. Zenor, Sr., his heirs and assigns, should fail to erect and put in operation on said real estate, within eight months from this date, a glass factory having a daily pay-roll of not less than six hundred dollars and emplo}dng not less than one hundred fifty men, or in the event that C. P. Zenor, Sr., his heirs and assigns, after erecting and putting such glass factory in operation, should be or become at anytime during the period aforesaid unable to continue operating the -same, or should suspend operation thereof for four months at any time during said period, or should, for four months at any time during said period, fail to operate such factory on -a -scale requiring a daily pay-roll of not less than six hundred dollars and the employment of not less than one hundred fifty men, then in any such event said C. P. Zenor, Sr., his heirs and assigns, shall become and be considered indebted to the said Kelley Trust Company, its successors and assigns, in said sum of seven, thousand dollars, 4/7 for said company and 3/7 for said Business Men’s Club, and the lien herein reserved on said real estate may be foreclosed for such indebtedness. And in the event said Kelley Trust Company should become the purchaser of said real estate in said foreclosure proceedings, it shall hold the title thereto in trust, 4/7 for said compa^ and 3/7 for said Business Men’s Club.”
TMs action was instituted by the appellant to foreclose its vendor’s lien. It set up in its complaint the deed, and alleged, in substance, that Zenor had failed to comply with the conditions above set forth, and that, by reason of such default, he was indebted to the appellant in the sum of $7,000, 4/7 for the appellant and 3/7 for the Business Men’s Club. It prayed for judgment for $7,000, and that a lien be declared upon the lots described in the complaint, and that the same be subjected to the satisfaction of the judgment. .
The Model Window Class Company appeared and made itself a party defendant -to the action, and it and Zenor and his wife answered, alleging, in substance, that the obligations of the contract under which the deed was executed to Zenor had been fully complied with. The trial court, after hearing the testimony in the cause, found the issues in favor of the defendants, and entered a decree dismissing the complaint for want of equity, from which is this appeal.
The facts are substantially as follows: Zenor, who had been interested in the operation of a glass factory outside of the State, came to Fort Smith to locate a glass factory. One R. S. Robinson and his associates had developed what is known as the Kibler Gas Field in Crawford County, near Fort Smith. Harry Kelley and the appellant were large landowners in the city of Fort Smith, and had about three hundred acres of land in what is. known as Midland Heights Addition to the city of Fort Smith, in which was situated block 38, 'containing 35 city lots 50x140 feet, located on both the lines of the Frisco and the Missouri Pacific railways, bn .the highest point of ground between the cities of Fort Smith and Van Burén, and only a short distance from the interurban line connecting the two cities. The Business Men’s Club, as its name implies, was a civic organization in the city -of Fort Smith for the promotion of the prosperity of the city. Its president was B. I). Crane and its secretary was Ray Gill. When Zenor came to Fort Smith, the club offered him a free site for his glass factory, and sites were shown him by Robinson, but he was not pleased with these. Whereupon Robinson showed him other sites, and among them block 38, which he se’ected. This block was on the market for $7,000. The club had the sum of. $3,000 which it desired to donate towards securing- a free factor}- site for Zenor’s glass plant. Kelley owned about 200 acres of land adjoining block 38, which he proposed to sell for homes to employees who worked permanently in some factory located on block 38. Robinson asked Kelley if he would not donate $4,000, the balance of the market price of block 38. Kelley had already contributed five per cent, of $20,000 which had been raised by the club for the purpose of locating- factories in the city, and had pledged himself to pa}*- five per cent, of $20,000 more. This donation and pledge had been made just before Robinson approached him, and therefore he declined to contribute the $4,000 more to the club. However, he informed Robinson of the terms on which he would sell block 38, which terms are as already set forth in the deed. Before this deed was executed on the 31st day of March, 3917, Zenor and the club had entered into the following- contract, to-wit: “O. P. Zenor, Sr., and -associates agree, whether as individuals or as stockholders, or through the medium of a corporation to be organized, to erect a plant at Port Smith, Arkansas, on the. property hereinafter described, for the purpose of making- window glass and kindred products, said plant to cost not less than $75,000, and to be in operation and employ at least 125 laborers, by the 15th day of December, 1917. The Business Men’s Club of Port Smith, Arkansas, agrees that when said C. P. Zenor and associates have complied, with the terms of the agreement on their part to be performed, it will convey, by proper warranty deed, to such person or. persons as the said C. P. Zenor may designate. block 38, Midland Heights Addition to the city of Port. Smith, Arkansas, provided that said deed shall recito that, if the said C. P. Zenor and associates, or a corporation to he organized, does not continue to operate said plant for a period of three years, employing, during operating periods, an average of 125 laborers, the title to the property above mentioned .shall revert to the grantor who conveys said property by means of the aforesaid deed.”
This agreement was signed by Zenor, and by Crane as president of the club. Zenor organized the Model Window Class Company, a corporation, of which he was general manager. Robinson, who was a director of the Business Men’s Club and present at its meeting, and who wias largely instrumental in bringing about the negotiations between the club and Zenor, and between the club and Kelley, told Kelley that Zenor had said that he would build a plant a great deal bigger than they had agreed upon, and that he was going to double the men and double the pay-roll; that he was going to operate the plant practically the whole year. Kelley told Robinson that he was mistaken about the benefits that the glass company would be to the town, and was reluctant to sell the property, but finally said, “I will sell the property to the Business Men’s Club for $3,000 provided certain conditions are put in that deed as to how this plant is to be operated.”
The appellant executed the deed, as already mentioned, on the first of May, 1917, and delivered the same to the secretary of the Business Men’s Club. In the meantime, after the execution of the agreement between the club and Zenor, the construction of the glass plant had been parried on and the factory began operation before the 15th of December, 1917. It was some time after the deed wa,s delivered to the secretary of the club before he succeeded in delivering the deed to Zenor. After the deed had been delivered to Zenor, he returned it once or twice. The deed was in the office of the club until about the day it was recorded, which was the latter part of 1919. Zenor said to the secretary of the dub that if he would add to the agreement a note at the bottom re citing that the deed should read “125” instead of “150” and instead of “all times,” “during operating period an average of” he would accept the deed and record it. The original contract called for 150 men. The interlinea-tions were made in the contract in 1919, and Zenor stated that he would accept it if the secretary of the club would put that in, which he did. No member of the appellant was there at the time, and the secretary of the club did not notify any member of the appellant that he was going’ to make the changes in the contract. There was never any resolution of the board of directors authorizing the -secretary of the club to malee the interlineations in the agreement that he did make after the same had been signed by Zenor .-and the president of the club. Zenor simpty stated to the secretary that if he would make the changes in the contract as indicated, he (Zenor) would accept the deed as written.
Harry Kelley testified, among other things, that he had given land to other factories and donated money to them, and they had failed to comply with the representations with reference to continuous operation. He could not definitely ascertain the amount to which he had been damaged, and, if such a factory as was represented to him by Gill and Robinson would be built and operated by Zenor were not in fact 'built -and operated as specified in his deed, he figured from his past experiences that his damages would be the amount of $4,000 that he was donating, which he placed in the deed as liquidated damages in case the conditions of the deed were not complied with by the grantee. During the year 1918 he did not pay any attention to whether the factory was complying with the terms of the deed, because the country was at war. After the World War was over he began to look into the question as to whether or not Zenor and the Model Window Glass Company were going to comply with the terms of the deed. He did not keep close track of them in 1919. In 1920 the factory operated until the 17th of May, and never, again operated that year. He bad tenant houses close to tbe glass plant and found no tenants. Tbe plant bad been shut down through long periods. Since the execution of tbe deed be had sold only two lots out of approximately two hundred acres. He had never seen tbe contract between the club and Zenor until be called Zenor’s attention to tbe fact that he had not complied with the terms of the deed. This was after January 1, 1921. He was not a member of the board of directors of the club, and knew nothing of its transaction with Zenor. The deed was executed by him in accordance with the understanding with Robinson, and delivered to the secretary of the club.
Leigh Kelley, vice-president of the appellant, testified that he was not a director of the club at the time the agreement between tbe club and Zenor was executed. He was familiar with the terms of the deed, but did not know that there was any agreement between the club and Zenor.
Zenor testified that they began the construction of the plant about the first, of May, 1917, and began to operate it in December, 1917. In tbe construction of tbe plant they hired about 145 men daily. He and bis associates had invested about $22S,000 at tbe time bis testimony was taken. During tbe years 1917, ’18, ’19 and ’20 tbe appellant did not complain that be and bis associates’ bad not complied with tbe terms of tbe deed. The appellant, did complain in 1921. Zenor made tbe contract with tbe club, and never at any time bad any conversation with any representative of the appellant until after it raised objection. Witness did not know that tbe appellant was associated with tbe transaction in any way until be went to get tbe deed and contract. After be read tbe deed be returned it to the secretary of tbe club and refused to accept it, because it did not conform to the contract be bad entered into with the club. The secretary assured him that everything would be satisfactory, and be thou accepted tbe deed and placed it on record. They started operating the plant in jJecem-ber, 1917, and finished in 1918, operating eighteen weeks. In 1918-1919 they operated twelve weeks — had operated just 52 weeks in three years. In 1918 his operations were interfered with by the government, and this interference ended on December 7, 1918. They did not operate the plant at all in 1920, because they did not have any labor and could not get it. They did not operate from-1920 to January 15, 1921, because the union labor organization would not let them. The plant was closed down from May 22, 1920, and did not start up again for a period of eighteen months. During the period when the plant was closed down in 1918 he did not employ 125 men, or 150 either, and did not have a pay-roll amounting to six hundred dollars. The most men he ever employed at any time was 146. Ordinarily 128 men would be employed in his plant. During all the period that he was closed down ho was trying to get a working scale from the union. Operating periods were fixed by the union. There was testimony tending to prove that prior to 1917 it was customary to run glass plants about eight or nine months in each year, sometimes ten.
1. The consideration of the appellant’s deed' to Zenor was $7,000, $3,000 of which was to be paid in cash, which was paid, and the remaining $4,000 was to be liquidated by complying with the conditions expressed in the deed. The undisputed testimony shows that these conditions have not been complied with. The testimony of Zenor himself conclusively proves that the conditions specified have not been fulfilled by him or his associates.
In Stanley v. Schwalby, 162 U. S. 256-257, it is said: “A valuable consideration may be other than the actual payment of money, and may consist of acts to be done after the conveyance.” The testimony of Kelley shows clearly that the acts specified by appellant to be done by the grantee in its deed, in lieu of the $4,000' which was the balance of the consideration named, were estimated by him to be worth at least that sum, and that, in desig nating tliese acts, it was Ms intent that, npon a failure upon the part of the grantee to perform them, the grantee should pay to him the sum of $4,000. It. occurs to us that the testimony of Kelley and the recitals set forth in the deed prove that a failure to perform the conditions would result in damages to appellant in the balance of the purchase money unpaid fixed as the liquidated sum of such damages. The damages, in their nature, were uncertain and not easily estimated, but nevertheless would at least be equal to the sum of $4,000, and that sum was specifically named by him to cover his damages, in addition to the cash consideration of $3,000, making the whole purchase money $7,000, for which sum the appellant reserved a lien on the land conveyed. See Nevada County Bank v. Sullivan, 122 Ark. 235.
This court has several times ruled that a vendor’s lien will not arise to secure the performance of an act the nonperformance of which would make a claim for unliquidated damages. Harris v. Hanie, 37 Ark. 348; Bell v. Pelt, 51 Ark. 433; Salyers v. Smith, 67 Ark. 526; Cox v. Smith, 93 Ark. 371. But this is not that sort of an action. On the contrary, it is an action to recover a liquidated sum which the deed specifies may be recovered in case certain acts are not performed, which sum was named and clearly considered and intended by the parties to the deed as part of the purchase money. The case at bar, under the allegations of the complaint and the testimony adduced in support thereof, is brought clearly within the doctrine announced in Cox v. Smith, supra, -where we said: “If this sum stipulated to be paid in the event of the nonperformance of the contract on bis part shall be considered in the nature of damages, then it must be held to be liquidated damages, for which he is liable. * * * But this is not a claim for unliquh dated- damages; it is a debt for unpaid purchase money, the amount of which is definitely fixed. And where such debt for' the purchase money may be paid in work or services, the vendor’s lien therefor does exist, and may be enforced if such, work is not done or the services rendered.” Citing Young v. Harris, 36 Ark. 162, and Nix v. Draughon, 54 Ark. 340. See also Winters v. Fain, 47 Ark. 493; Tupy v. Kocourek, 66 Ark. 433.
In Jarratt v. Langston, 99 Ark. 438, we said: “It has been held by this court that, if land is sold for a price or consideration not named, which it is agreed may be paid in the note of a third party, or in personal services, the vendor’s lien therefor exists and may be enforced if the note is not delivered or the' services rendered.” Since we have concluded that this -should be treated as an action to enforce a vendor’s lien for the purchase money, what we have already said disposes of all the contentions made by learned counsel for the ap-pellees to sustain the decree of the trial court, except that the appellees were excused from complying with the conditions expressed in the deed requiring certain >acts to be performed in lieu of the payment of the unpaid purchase money by reason of untoward circumstances over which they had no control, caused by the World War and labor unions. The proof shows 'that the appellant waived the performance of the terms- of the contract, which were made impossible by the war. The other hardships alleged as excuses for nonperformance cannot -avail the appellees, according to the doctrine announced by this court in Ingham Lbr. Co. v. Ingersoll, 93 Ark. 447. The appellees hold the -title and possession to this land under the deed of appellant, and they must pay the purchase price.
No issue is made in this record between the appel-lees -and the Business Men’-s Club of Fort Smith, and hence it would not be germane here to discuss the effect of the agreement between the club and Zenor. It follows, from what we have.;said, that the court erred in dismissing the appellant’s complaint for want of equity. For this error the judgment is reversed, and the cause is remanded, with directions to enter a decree in appellant’s favor for the sum of $4,000, with interest from tlie date of tlie institution of this suit, and that the ¡same be declared a lien upon the real estate described in its complaint, and for such other proceeding’s, according to law and not inconsistent with this opinion, as may he necessary to enforce such decree. | [
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Smith, J.
Appellants are landowners in Road Improvement District No. 7 of Little River County, which was created by a special act of the 1919 General Assembly.
They brought separate suits attacking the district on numerous grounds. The court below dismissed their complaints, and they appealed to this court, and we decided that so much of the appeal as involved the validity of the district, or the assessment of benefits, should be dismissed because the appeal was not taken and perfected within the thirty days required by the act creating the district. We also held that the thirty-Ray limitation on the right of appeal did not apply to the parts of the complaint which sought to recover against the commissioners, the engineers and contractors for waste, as to which allegations we held the general statute of limitations applied. Davis v. Cook, 155 Ark. 613.
The case has now been briefed upon the allegations of waste and the testimony relating thereto, the court below having found against the plaintiffs on all the questions raised.
It is first insisted that certain laterals were constructed without authority, and without assessing against the lands benefited thereby the cost thereof, as provided by the act.
Express authority was given by the act to construct these laterals; but it is insisted there was no separate assessment.of betterments, as required by the act. The testimony shows there was a separate assessment of benefits for each lateral. The lands were divided into six zones with reference to their proximity to the main thoroughfares, and a maximum assessment of $12 per acre was made against the lands lying in the first zone, the one nearest the road. Lands lying adjacent to the lateral roads were assessed on the same basis, but an assessment exceeding $12 was not made against any land, although it was within a mile of both a main thoroughfare and a lateral. Certain other objections to the assessments were also made.
We think all of these questions may be disposed of by saying that the former decision of this case is decisive of them. If proper assessments were not made, or if assessments were made upon an improper basis, an appeal therefrom should, have been taken within the time and manner provided by section 22 of the act, and that was not done.
It is next insisted that the commissioners wrongfully selected as the depository of the district a bank of which one of the commissioners was president, director and stockholder, and therefore interested in the contract between the bank and the district. This allegation of the complaint was disposed 'by demurrer thereto, which the court sustained; and we think the demurrer was properly sustained. The act does require that the directors take an oath, and, pursuant to the act, they took the oath, that they “would not be interested, directly or indirectly, in any contract made by the board.” The case of Tallman v. Lewis, 124 Ark. 6; is cited in support of appellant ’s' insistence.
We think that case has no application here. There was no allegation that the commissioners, or any .of them, paid out any funds of the district to the bank, or to anyone else, for the services of the bank in acting as a depository. The director was not the bank, and there was no contract with him in regard to the funds. We do not see just what relief could, in any event, be awarded under this paragraph of the complaint. The funds of the district have been expended in building the road, and there is no allegation of waste or of loss of funds by the bank. . ■
What we have said about this allegation of the complaint is conclusive of the allegations of another paragraph of the complaint, that the commissioners did not allow the time-slips of the men employed in the construction of the road to be honored at any place except at a place of business owned by tbe commissioner who was the bank president. A. demurrer was sustained to this paragraph of the complaint, and, we think, properly so. The contract had been let for a fixed sum to the construction contractor. This arrangement about the time-slips was between the men working on the road and the store at which they traded, and there is no allegation that they were charged a higher price for goods than was charged other people who bought for cash, and there is no allegation that the district lost anything by this arrangement, or that it was required to pay out any of its funds on that account. The arrangement, however reprehensible it may be considered, is at an end, and we know of no order we could make in regard thereto, it not being alleged that the district sustained any loss on account of this practice.
Paragraph eleven of the 'Complaint alleged that the commissioners contracted for a gravel bed, or took possession of it without contracting for it, and then abandoned it without using it in any manner for the benefit of the roads of the district, and that, as a result of their action in taking over this gravel bed, the district had been sued in the circuit court by the owner of the gravel bed, and a judgment recovered against the district in the sum of $-.
As the liability of the district was fixed by the judgment of the court, it must be assumed that the district paid only what the gravel bed was worth. It does not appear from the pleadings why the district took over the gravel bed, nor why it was abandoned, but it was not alleged that the commissioners acted with a corrupt or malicious intent in regard thereto, and, in the absence of that allegation, the demurrer to that paragraph of the complaint was properly sustained, because, by section 17 of the act, it is expressly provided that no commissioner shall be liable for any damages sustained by any one unless he has acted with a corrupt and malicious intent.
A paragraph of the complaint questions the fee paid the attorneys who passed upon the validity of the bonds issued by the district. "We do not think this constituted waste, as it may have been necessary to obtain this opinion to effect the sale of the bonds; at least, this was a question for the determination of the commissioners.
The act creating the district gave the 'commissioners the power to make contracts and to employ agents and attorneys. They were charged by the act with the performance of highly important duties, and were vested with a wide discretion, necessarily so, to carry through the enormous improvement intrusted to their management and supervision. Of their right to make contracts we said: “The commissioners have power to malee contracts, but they are trustees of the property owners, and can only make reasonable ones. The owners of the property have a right to challenge the validity of such contracts by showing that they are unreasonable. Of course, in testing the validity of such contracts, the court should not substitute its own judgment primarily for that of the commissioners, the authority to make the contract being lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.” Bowman Engineering Co. v. Ark. & Mo. Highway Dist., 151 Ark. 56.
There is an allegation that waste was committed in employing an engineering firm at five per cent, to supervise the construction- of the improvement, when a fee of one per cent, would have been reasonable for that service. Substantially this allegation appeared in the complaint ■of each landowner. In one case a demurrer was sustained to that paragraph on the ground of the insufficiency of the recitals of the allegation. 'But in the case of the other plaintiff an answer was filed denying that an excessive or improvident fee was charged, or had been paid. Testimony was heard upon this allegation, which was offered by the commissioners, and the fact is estab- fished that the engineer’s fees were nsnal and customary, and were not excessive or unreasonable.
No error was committed therefore in sustaining the demurrer to the paragraph in one complaint, even though it stated a cause of action, inasmuch as the same allegation was heard on its merits on the answer filed in the other case. There were two complaints, 'but they were consolidated and heard together, and, for all practical purposes, constituted one suit.
There was a paragraph of the complaint attacking the construction contracts, and issue was joined thereon by answer filed, and we think the testimony warranted the action of the court in dismissing this paragraph as being without equity. This is true because the testimony does not show that those contracts were unreasonable or arbitrary.
There was a paragraph of the complaint which charged wilful waste in the construction of a lateral road of unnecessary length in order to reach the home of one of the 'commissioners. The act required the commissioners to submit their plans for approval both to the State Highway Department and the county court, and provided that, “if the commissioners deem it to the best interests of the district to vary the line of the road, as hereinbefore laid out, they may report that fact to the county court of Little River County, and, in that event, if the county court approves of the report, it may make an order changing the route of the road, and, if necessary, it shall, in that event, lay out the new road in the manner hereinbefore provided.” See section 4 of act 292, vol. 1, Road Acts 1919, p. 1205.
Any landowner had the right to.be heard on the approval of the plans of the district, and, if there was cause for complaint, should have exercised this right in apt time. We cannot review here in this collateral proceeding the action of the county court in approving the location of a particular road.
Certain, paragraphs of the complaint alleged that the assessment is discriminatory, excessive and 'confiscatory, being made so by the constrnction of the lateral roads. We have said, however, that these are questions con-' clnded by the former opinion in this case.
The defendants in each of these cases, by their separate answers, plead an estoppel in pais to each of these actions. The insistence is that the plaintiffs stood idly by for two years without objection and allowed the expenditures to be made of which they now complain.
There appears to be much merit in this contention, in view of what this court said was the duty of the property owners in the cases of Rector v. Board of Improvement, 50 Ark. 116, and Fitzgerald v. Walker, 55 Ark. 148; but we have considered the case upon its merits as an original proposition, as did the court below, and have concluded that the complaints were properly dismissed as being without equity, and that decree is affirmed. • | [
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Humphreys, J.
A suit in unlawful detainer was brought by W. A. Childs against I. N. Linton in the circuit court of Marion County. W. E. Layton was bondsman for W. A. Childs in said action. On motion of I. N. Linton, who had set up certain grounds of equitable relief against Childs and the Erie Ozark Mining Company, the circuit court made an order transferring the cause to the chancery court of said county, where the Erie Ozark Mining Company was made a party. The Erie Ozark Mining Company entered its appearance and filed an answer to the cross-complaint, and also a cross-complaint of its own, asking a cancellation of the original lease given to W. A. Childs, and subleases from him to I. N. Linton and others, upon the ground of forfeiture. W. A. Childs was represented by E. 0. Owens and S. W. Woods, regular practicing attorneys at the bar. S. W. Woods testified that he did not appear in the chancery court, after the transfer of the case, because he understood from Owens that I. N. Linton would look alone for relief to the Erie Ozark Mining Company. E. 0. Owens continued in the case after the transfer of the cause, and advised Childs, who had moved away, that it was necessary to take depositions to get ready for trial. Childs did not reply to his letters and thereby put Mm in position to proceed with the case, so he made a statement to that effect to the court, and was permitted to withdraw from the case. No pleadings were filed for Childs in the chancery court. The cause proceeded to a hearing upon issues jonied between I. N. Linton and the Erie Ozark Minina.’ Company, which resulted in a rendition of a decree in favor of the Erie Ozark Mining Company against W. A. Childs and I. N. Linton. I. N. Linton then asked and obtained a judgment .against W. A. Childs and his bondsman,. W-. E. Layton, for $1,000 in the unlawful detainer suit. An entry appears on the court’s docket to the effect that objections were made and exceptions saved to tlie entry of the judgment, and that an appeal was prayed therefrom to the Supreme Court. 'Before the judgment was entered, and during the progress of the case, J. C. Floyd, attorney for the Erie Ozark Mining Company, and Sama 'Williams, attorney for I. N. Linton, advised Layton that Linton was insisting on .a judgment against him, and that he had better give the matter some attention.
This suit for a permanent injunction against the enforcement of said $1,000 judgment was brought by W. E. Layton to a subsequent term of said court against I. N. Linton, execution creditor, and C. A. Willingham, sheriff of Marion County, upon the four following alleged grounds: First, that I. N. Linton agreed with W. E. Layton, or with W. A. Childs, or his attorney, E. 0. Owens, that no judgment would be taken against them, but that he would look alone to- the Erie Ozark Mining Company for redress; second, that the judgment rendered against W. E. Layton was without notice and void; third, that- the chancery court had no jurisdiction of the cause in which said $1,000 judgment was rendered; fourth, that the chancery court was without jurisdiction, after the equitable issues were eliminated, to render a judgment in a suit for unlawful detainer, which was purely legal in nature.
(1) E. O. Owens, attorney for Childs, testified that I. N. Linton stated to him, in front of the bank in Yell-ville, that he was not particularly after Mr. Layton, that he was after the Erie Ozark Mining Company. He admitted, however, that this statement did not influence him to withdraw from the case, and explained that he withdrew from the case because Childs would not write to him conoerning it, so that he could prepare for the trial.
Mr. Layton testified that, during the pendency of the suit, I. N. Linton came to the bank and told him that he had matters so arranged as to give him no trouble on the bond; that, in reliance upon the statement, he made no preparation for a defense and took no further interest in the ease. I. N. Linton testified that he did not make the statement attributed to him by W. E. Layton.
Mr. J. C. Floyd and Sam Williams both testified that they called Mr. Layton’s attention to the fact that I. N. Linton was insisting on a judgment against him and Childs.
The chancellor found there was no agreement, tacit or otherwise, between I. N. Linton and Childs or his attorney, or Layton, to the effect that he (Linton) would not seek redress or damages against Childs or his bondsman. Owens admits that he was not induced to withdraw from the case on account of the statement made by Linton. The statement attributed to Linton by Layton was vague. It was to the effect that he (Linton) had made arrangements whereby he would not bother him about the bond. Layton did not attempt to ascertain what arrangement had been made or to obtain a release from the bond on definite terms. Linton denied making the statement. In view of the conflict in the testimony upon this point, and of the warning given by J. C. Floyd and Sam Williams to Mr. Layton, we cannot say that the chancellor’s finding against an express or tacit agreement not to look to the bond, was against the clear preponderance of the evidence.
(2) The judgment is not void because rendered without notice. The bond was conditioned for the payment of all sums recovered by defendant in the action for any cause whatever. Sec. 4844, Crawford & Moses’ Digest. It is provided in ^ 4854 of Crawford & Moses’ Digest that in “all cases where judgment is rendered either against the plaintiff or defendant, for any amount of recovery, damages, or costs, judgment shall also be rendered against his sureties in the bond given under the provisions of this act.” In construing statutes covering attachment and supersedeas bonds containing, provisions, similar to the provision quoted above covering bonds in unlawful detainer suits, this coiirt ruled that a-surety became a party to the suit by signing the bond, and subject to a summary judgment without additional notice. Fletcher v. Menken, 37 Ark. 206; Morse Bros. Lbr. Co. v. F. Burkhart Mfg. Co., 155 Ark. 350.
, . (3). The point is made that the chancery court acquired no jurisdiction of this cause because the clerk of the circuit court of Marion County failed to make and transmit a certified transcript of the proceedings in said cause to the chancery court of said county. An order of transfer was made and entered of record by the circuit court. The original papers were transmitted to the chancery court, where the case was docketed. E. O. Owens, attorney for W. A. Childs, the plaintiff in the original suit and principal in the bond, appeared in the cause in the chancery court and obtained -permission to withdraw from the case on the ground that his client had refused to communicate with him. The record shows that; W. A. Childs and W. E. Layton objected to the rendition of the judgment against them in the chancery court, and prayed an appeal to the Supreme. Court. Having appeared in the cause in tbe chancery court, all irregularities in making the transfer of the cause were waived by them.
(4) The last insistence of appellant for reversal is that all equitable issues were eliminated from the case when the issues raised in the pleadings between the Erie Ozark Mining Company and Linton and Childs weré decided, and that the original suit in unlawful detainer should have been retransferred to the law court for trial. It is unnecessary to decide this question. Had a motion been made to retransfer the cause, and if proper to have done so, the failure would have constituted error for correction on appeal. This is a collateral attack, and is not a proceeding for the correction of mere errors in the rendition of the judgment’ Such matters aré not drawn in question in a collateral attack upon a judgment.
No error appearing, the decree is affirmed. | [
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Hart, J.,
(after .stating the , facts.) The plaintiff based its right to recover on the common-law liability of the defendant. It is claimed that the facts stated in the complaint constitute a discrimination against the plaintiff.
It 'appears from the record that the defendant had a station and switch tracks at Baris, where it placed oars for the purpose of being loaded with coal for shipment. The defendant had also made an arrangement for a private switch, track with the owner of .the Anthony Hall mine, situated about,one-half of a mile from the plaintiff’s mine. The alleged discrimination on the part of the defendant consisted in-its refusal to place cars on the switch at the Anthony Hall mine for the plaintiff for the purpose of loading its coal for shipment.
It is well settled that a common carrier cannot, be required to receive freight on or along a private switch. Its duty in that regard is confined and limited to its own station or ¡shipping points. Where a railroad company furnishes sufficient facilities of its own for the receipt and delivery of freight, there is at common law no duty resting upon it to receive or deliver freight upon a private siding or spur track. Gulf Compress Co. v. Alabama Great Southern R. Co. (Miss.), 56 Sou. 666, and Bed ford-Bowling Green Stone Co. v. Oman, 143 Fed. 441. Therefore the court properly held that no duty rested upon the defendant to place cars on its switch at the Hall mine for the purpose of receiving the coal of plaintiff for shipment.
The right of the Railroad Commission, in a proper case, to determine whether the public necessity and convenience requires the establishment of a spur track for the public, is not involved in this case, but is discussed in St. L. I. M. & S. R. Co. v. State, 99 Ark. 1.
Judgment affirmed. | [
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McCulloch, C. J.
Appellant is a corporation engaged in the lumber business in the city of Memphis. Appellees are engaged in the business of manufacturing lumber for sale at or near the town of Hughes, in St. Francis County, Arkansas. Appellees had a large quantity of lumber stacked on their yard, and they entered into a written contract with appellant whereby appellant was ■ authorized to sell lumber on the market, at prices to be approved by appellees, for a commission of ten per cent.' upon the prices received. ' The contract described the lumber as 200,000 feet of lumber bulked down at Hughes, St. Francis County, State of Arkansas, and also about 500,000 feet of lumber ‘‘now on sticks on , the mill yard of first party, about six miles south of Hughes.” The contract recites that, in consideration of its execution, appellant agreed to advance to appel-lees as a loan the sum of $4,000, to be evidenced by note due April 6, 1921, bearing interest; and it further recites that “it is mutually agreed that first party (appel-lees) hereby gives the second party (appellant) the exclusive sales agency or right to sell certain lumber described as follows, to-wit.” The contract does not expressly name a date for its expiration, nor a definite time limit, but it provides that appellant should sell, without reasonable delay, “market conditions considered, all of the above described lumber, 'as soon as he can obtain orders therefor, said lumber to be sold upon orders at such prices as are approved by first party.” There are further provisions in the contract to the effect that sales of lumber should be credited on the said note of appel-lees until the same be-paid, and that thereafter the net proceeds of sales be remitted to appellees. The contract also provides that appellant will guarantee payment on all lumber sold.
This action was instituted by appellant against ap-pellees to recover damages for breach of the contract. It is alleged that, after a certain- amount of lumber was shipped and sold and applied on the debt of appellees to appellant, appellees refused to ship any more lumber. The action is to recover commissions which would have been earned on the sale of the remainder of the lumber. The contract was exhibited with the complaint.
Appellees answered, denying all the allegations of the complaint, and/upon the issues formed, there was a trial, and testimony was introduced by appellant, but the court gave a peremptory instruction in favor of appel-lees, and judgment was accordingly rendered against appellant.
Counsel for appellees defend the judgment on the ground that the authority conferred on appellant in the contract was revocable, and that it constituted ho breach of the contract to revoke it by a sale of the remainder of the lumber to other parties.
The contract, in express terms, confers an exclusive agency to sell, but it is contended that even this feature of the contract does not render it irrevocable unless a time’ limit is fixed for performance, or the authority is coupled with an interest.
It is conceded to be the rule that, where authority as an agent is not coupled with an interest, nor created for a definite period, it is terminable at the will of the principal. 2 C. J., pages 533, 534; 1 Mechem on Agency, § 570.
Counsel on each side argue with much zeal the question as to what constitutes a consideration or an interest coupled with the authority, but we have concluded that this case can be determined upon the question that a definite time was fixed in the contract for its performance. It is not required that the time of performance be fixed in express words, but, if the necessary result of the authority given is to fix a period for its exercise, then the contract, which is, in terms, exclusive, cannot be revoked. Our conclusion is that this contract, by its own terms, fixes a time within which it must be performed. In the first place, the subject-matter of the contract is merchantable chattels, which, according to the terms of the contract, are to be expeditiously and without unreasonable delay sold upon the market. This contemplates an immediate and continuous effort to sell the property on the market, and the language can only be construed to mean that it should extend until the property should be sold. The timo of performance is not fixed in days and months, but it is ascertainable from the terms specified in the writing. In other words, the contract does not itself specify the time for its performance, but it furnishes the means for its ascertainment, that is, say, an opportunity to sell on the market within a reasonable time. We are of opinion therefore that the contract is valid, and that a sale to another party by appellees, within the time afforded under the contract to appellant to make sale, constituted a breach of the contract, for which appellant was entitled to recover commissions.
Of course, the question whether or not appellant proceeded expeditiously towards the sale of the lumber, or whether there was an unreasonable delay, are questions nf fact to be determined ’by a trial jury. This was taken away from the jury by the court’s peremptory instruction.
There is another feature of the case which should be mentioned, and that is, the interpretation of the following language of the contract: “Second party agrees to sell, without reasonable delay, market conditions considered, all of the above described luftiber as soon as he can obtain orders therefor, said lumber to be sold upon orders at such prices as are approved by first party.”
The use of the word “reasonable” is an obvious error, as it is evident that the word “unreasonable” was intended. In disposing- of the case we have treated the contract as if it read “without unreasonable delay.”
The judgment is therefore reversed, and the cause remanded for a new trial. | [
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McCulloch, C. J.
Appellee owns a farm in Mississippi County, consisting of about 315 acres in cultivation, and be leased it to appellant for a term of five years, beginning with the year 1921, for an annual rental of $3,500, payable on November 15 of eacli year. The lease contract, which was in writing, contained a clause providing, in substance, that the lessee should keep the buildings, fences, ditches, gates and all other improvements ‘fin good condition and complete repair” during the term; that he would “cultivate and manage the said farm and lands in a fair and proper manner, according to the most improved course of husbandry;” that the lessee would not “assign or underlet the premises or any part thereof without the consent, in writing, of the lessor; that lie would, at the end of the term,-surrender the premises in good condition and repair, and that, “on any breach of any of the covenants by the lessee herein contained, the lessor may reenter upon the said premises, and immediately thereupon the said term shall absolutely determine.”
Appellee also sold to appellant all of the work-stock and feed and farming implements cn the place for an agreed price payable at the end of the first year, and appellant executed a-note for the price, with a mortgage on the stuff sold to secure payment.
Appellee instituted this action against appellant to recover possession, after the first year of the lease, on the ground that there had been a forfeiture on account of breaches by appellant of all the covenants contained in the lease contract. He also instituted a replevin suit against appellant to recover the mortgaged property for the purpose of foreclosing the mortgage, and also instituted an action for accrued rent. The actions were consolidated and tried together, and the trial resulted in a judgment in favor of appellee for the recovery of tfip leased premises. Judgments were also rendered in favor of appellee in the other cases, but no appeal has been prosecuted from either of them, and the questions relating thereto are thus eliminated from the controversy.
Appellant filed an answer denying the allegations in the complaint with respect to the breaches of covenants. The case was tried on the testimony of numerous witnesses, including the testimony of each of the parties.
Since the record was lodged in this court by appellant, he has filed a motion here to reverse the judgment and dismiss the complaint of appellee on the ground that, since the rendition of the judgment below and the prosecution of the appeal here, appellee has accepted payment of the rent for the year 1922 under the contract and executed a receipt therefor, reciting that the payment of rent was made under the written contract. It is contended that the acceptance of the rent under the contract operates as a waiver of the alleged forfeiture, and affidavits and counter-affidavits were filed here on the question as to whether the payment was made as rent or fon the use and occupation of the premises while held under the supersedeas bond during the pendency of this appeal.
There is no statute which authorizes this court- to consider, as grounds for reversal of a judgment, transactions between the parties claimed to constitute a waiver of the forfeiture which is the basis of the right of action upon which the judgment was rendered. There is a statute which provides that, where an appeal has been improperly granted, or appellant’s right of further prosecuting the same has ceased, the appellee may move for a dismissal of the appeal. Crawford & Moses’ Digest, §§ 2368, 2369. The statute does not, however, provide that the judgment may he reversed on account of any matters which occurred subsequent to its rendition. Nor are we aware of any principle of law or of practice which would authorize such procedure in an appellate court. In fact, it is clear that the exercise of such power would be original, and not appellate. It would involve an inquiry which, would be original in its nature, and not supervisory. We are of the' opinion therefore that there is no authority for us to consider the question whether or not there has been a waiver of the forfeiture which constituted the basis of appellee’s right of action.
It is next contended that the judgment should be reversed on account of error in the instructions to the jury. The particular error assigned is the ruling of the court in giving, on its own motion, instruction number 5, which reads as follows:
“Now the other suit is a suit in unlawful detainer, and that means, gentlemen, that the plaintiff contends that the defendant had breached the written lease con-, tract, and that, because of the breach, he has forfeited his right to the possession of the leased premises, and the didy you are called upon to perform is to pass upon the fact as to whether or not, under the instructions I am going to give you, the defendant has, in some substantial way, breached any of the covenants contained in that written lease. As to what the covenants were, attorneys will call your attention to in their arguments, and I will not call your attention specifically to that, but will leave that to the lawyers in their arguments.”
It is contended that this instruction was prejudicial in form, for it submitted all the alleged breaches by reference to the written contract and arguments of the attorneys, rather than by the court calling the attention of the .jury to them separately, and also that it is erroneous in submitting to the jury the issues concerning breaches of covenants about which there is no evidence.
It must be conceded that the instruction is not in good form, but we do not discover that there is, for that reason, any prejudicial error, if there is evidence tending to show a breach of each of the -covenants. ’The effect of the instruction was to submit to the jury all of the covenants embraced in the lease, and if the instruction is found to be abstract in any particular by submitting. an issue about which, there is no evidence, then it is prejudicial and calls for a reversal of the case; otherwise we do not think it can be treated as prejudicial.
It is conceded that the rent was finally paid for the year prior to the institution of this action (1921), and it is contended that, as that was one of the grounds of forfeiture alleged in the original complaint, it was error to submit it along with the other grounds of forfeiture. The court, however, gave another instruction specifically telling the jury that it could not find in favor of appel-lee on account of appellant’s failure to pay rent. In other words, the court, by a specific instruction, eliminated the question of the payment of the rent from the consideration by the jury, and we must assume that the jury obeyed the specific direction of the court rather than a general direction given with regard to the breaches of covenants.
Again, it is contended that there is no evidence to support the issue concerning the. forfeiture on account of subrenting parts of the premises without the written consent of the lessor. We think there was evidence sufficient to submit that issue to the jury. It is unnecessary to relate the testimony in detail, but it was not, as contended by counsel for appellant, admitted by appellee on the witness stand that he knew of the subrenting, and consented thereto. The testimony tends to show that most of the land was subrented to negro tenants, and that appellee knew that the negroes were arranging with appellant to cultivate parts of the land, but it is not shown beyond dispute that appellee knew that' there were to be rent contracts, or consented thereto. ' Counsel insist that appellee’s admission on the witness stand to the effect that he did not object to the negroes cultivating the land, and would not have moved them from the place if he got possession, constituted an admission of consent to the subletting, but we do not so construe the testimony of appellee. His testimony was given at the trial in May, 1922, which was during the crop season. and appellee bad a right, if be got possession of tbe place, to retain tbe tenants on tbe place without subjecting himself to “the charge of having waived tbe breach of tbe contract by appellant with respect to subrenting.
There was testimony sufficient to sustain tbe findings of tbe jury upon tbe issues concerning other alleged breaches of tbe contract. Tbe testimony of appellant himself and other witnesses tended to .show that tbe lands were not properly cultivated, and that a considerable portion thereof was permitted to lay out; that an average .crop was not raised on tbe place, by reason of improper cultivation; that appellant failed to clean out the ditches, and let them fill up, and allowed sprouts to grow up; that a large crib on the place was blown over by a storm, and that appellant permitted the lumber to be carried away; that appellant tore down tbe picket fences and burned them, and allowed a tenant bouse to get out of repair; that be permitted tbe mules to eat away some of tbe posts which supported a large barn, and that tbe barn fell down and was completely wrecked on that account. Tbe testimony tends to show that this barn was worth about $1,000, and that it was wrecked on account of appellant’s ^carelessness in failing to keep tbe mules from gnawing tbe supports.
There is no error found in tbe record, and tbe judg-nent is therefore affirmed. | [
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Hart, J.,
(after stating the facts). The chancellor found that W. L. Brennan, the duly authorized agent of the Crismore-Hyman Company, falsely represented to appellees that the land in question was not in a drainage district, and that this false representation was a material inducement to appellees in making the contract for the purchase of the land.
It is first contended that appellees should be denied relief because they did not examine the records to see whether or not the land purchased by them was in a drainage district. It would be inequitable to say to one who, in good faith, has relied upon the express declaration of another that the land he owned was not in a drainage district, that he might have learned its falsity by going to the county seat and examining the records. The obligation of ordinary good faith precludes the vendor from seeking shelter under such a claim. The ven dor is in no position to assert that, because the record of drainage districts was open to inspection, the representations were immaterial. It is enough that the purchaser believed the statement, that inquiry was necessary to discover the truth, and that he executed the contract on the strength of the representation.
As said in Gammill v. Johnson, 47 Ark. 335, “when the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making it, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open .to him. It does not lie in the mouth of the declarant to say it was folly in the other party to believe him.” To the same effect see Evatt v. Hudson, 97 Ark. 265, and Bennett v. Farabough, 154 Ark. 193.
In the latter case the court recognized that a false representation that the land was not in a drainage district would be a ground for the rescission of the contract for the sale of the land, but denied the purchaser relief on the ground that the testimony did not warrant it.
In the case at bar it is not denied that Brennan was the duly authorized agent for the sale of the land and had the authority to make the representation that the land was not in a drainage district, if in fact he did make such representation. Appellants contend, however, that Brennan made no such representation, and this presented a question of fact for the chancery court. The burden was upon the appellees to show that they were induced to purchase the land by false and fraudulent representations of appellants or their agent. Grayling Lumber Co. v. Ebbitt, 134 Ark. 175, and English v. North, 112 Ark. 489.
To sustain the burden, Mr. Carey and Dr. Utley both testified in ’ positive terms that they did not wish to purchase any land in a drainage district, and expressly told Brennan that their experience was such that they would not, under any consideration, purchase land in a drainage district. Brennan assured them- that he had examined the abstract and knew that the land was not in a drainage district. It turned out that the land was in a drainage' district, and that the assessment of benefits amounted to over $4,000, and it was estimated that it would take about one-half of this to construct the drainage ditch.
This was a material matter to he considered in the purchase price of a tract of land sold for $8,000. It was the assertion of a positive fact by Brennan, and appel-lees iyere justified in relying upon it. It is true that Brennan denied having made the representation, and that he is corroborated to some extent by Grismore and by the cashier, who both testified that Carey and Utley had come to them separately and asked for an extension of the time of payment of the first land note, on account of the financial depression which had spread over the country since the contract for the purchase of the land.
The chancellor believed the testimony of appellees on this-point, and his finding is warranted by their testimony. Therefore the decree will be affirmed. | [
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Hart, J.,
(after stating the facts). The only assignment of error is that the undisputed testimony shows that there was unprecedented demand for cars, which the railway company was unable to supply. Wo are convinced, from reading the testimony, that it was a question for the jury as to whether or nqt the demand upon the railway company for cars was so sudden and so great that the railway company could not reasonably have anticipated it, and could not, by the exercise of ordinary care, have supplied the demand.
In the case of St. L. I. M. & S. R. Co. v. Keefe, 113 Ark. 215, it was held that the fact that the defendant was short of stock-cars on a certain division of its railway system is no defense to an action for damages for failure to furnish stock-cars, and does not show that the carrier exercised ordinary care to supply the demand of the shipper.
It was further held that, in an action for damages for failure to furnish freight-cars, the railway company miist show, to relieve itself from liability, that it could not, by the exercise of ordinary care, have supplied the cars demanded by the shipper.
Shippers located on branch or lateral lines of a railroad are entitled to the same kind of treatment as accorded to those whose business is situated on the main line of the railroad. The shipper located on the branch line is entitled to be furnished cars without discrimination ag*ainst him, for the reason that the railroad company has control over the branch lines as well as the main line of its railroad, and can send cars anywhere over its system. In Dickinson v. Robertson, 144 Ark. 515, it was held: “Where the evidence established that, owing to the exigencies of war, a carrier was unable, during certain months, to furnish the usual amount of cars to its shippers, but that it was able to fill from forty to seventy-five per cent, of the orders received for ears, proof that the carrier only furnished twenty-two per cent, of the ears ordered by the plaintiff during those months justified the submission to the jury of the issue whether the carrier had discriminated against plaintiff.”
Tested by the principles of law laid down in those cases, it cannot be said that there is no evidence óf a substantial character to warrant a verdict for the plaintiff.
Two shippers of hoops and headings located at Des Arc testified that they shipped their products in boxcars which were also used for the shipment of hay, and that during the months of July, August and September, 1920, they got practically all the cars that they needed.
Other shippers of hay at Hazen, Ark., on the main line, testified that they practically got all the ears that they needed during these same months. Notwithstanding the testimony of the defendant’s witnesses to the contrary, the jury had a right to accept as true the testimony of the witnesses for the plaintiff, and it is fairly inferable from their testimony that there was no unusual ear shortage during the summer and early fall of 1920. If they secured practically all the cars necessary for the shipment of hay at Hazen, the jury might have found that there was a discrimination against the plaintiff in not sending cars over the branch line, 25 miles distant, for the purpose of shipping his hay. This view is strengthened when we consider that shippers of heading and hoops, who also used box-cars in the shipment of their products, obtained all the cars they needed during this same period of time.
It follows that the evidence for the plaintiff warranted a verdict in his favor, and the judgment will therefore be affirmed. | [
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McCulloch, C. J.
Appellant was convicted under an indictment charging him with the crime of keeping in his possession a still without registering the same.
Testimony adduced by the State established the fact that a still and a lot of mash were found in a house on appellant’s premises — in the side-room of a smokehouse near the residence occupied by appellant. The State’s proof was also sufficient to establish the fact that appellant controlled and used the room in which the still and mash were found. The contention of appellant was that he did not use or occupy the room, but that it was in the possession and under the control of one Roberts.
It appears from the testimony that the farm on which the house was situated was originally owned by appellant, but that he sold the farm to Roberts, and then rented a portion of it. The conflict in the testimony relates to the question whether or not this particular house was used and controlled by Roberts or by appellant. The evidence warranted a finding that the room was under the control of appellant, that he kept it locked and carried the key, and that the still and mash were thus kept in his possession.
Hunter Perrin, a deputy sheriff, and another man who accompanied him on the trip, procured a search warrant and went out to appellant’s premises, and, on making a search, they found the still and mash, as before stated. Appellant objected to the State’s proving by oral testimony of the witnesses that they had a search warrant, and the first assignment of error relates to the ruling of the court' admitting the testimony. There was no objection made to the testimony of Perrin and his associates, to the effect that they found a still in the smokehouse, but the objection simply went to the proof of the issuance of the search warrant. This was a collateral matter, and no rule of evidence'was violated by permitting the officer and his associate to testify that they had a search warrant when they made the search and found the still and mash. The testimony on this subject was merely in explanation of the presence of the officers at the premises and the search made by them.
The next assignment of error relates to the refusal of the court to admit proof of declarations of Roberts to the effect that he used and controlled the room in which the still and mash were found. The ruling of the .court on this subject was correct. Appellant had the right to prove, as a defense to the charge, that the room was not in his control but was in the control of some other person, but he could not prove this by declarations of admissions of the other party. Tillman v. State, 112 Ark. 236.
Finally, it is insisted that the court erred in permitting the State to prove a statement of one Thompson, in the absence of appellant, to the effect that appellant had the key to the door of the room in which the still -and mash were found. This proof was admitted by the court for the sole purpose of contradicting Thompson, who had been introduced by appellant as a witness, and a foundation for the contradiction was laid by asking Thompson if he had not made the statement, at the time and place named, that appellant had the key to the door, to which inquiry Thompson answered in the negative. The State had the right to impeach Thompson, for the reason that the testimony given by Thompson was to the effect that Roberts owned the land and had control of the building in question.
There is no error in the record, and,' the evidence being sufficient to sustain the verdict, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). It is first insisted by counsel for the defendants that the justice of the peace had no jurisdiction over the subject-matter of this action, and that the circuit court acquired none on appeal. It is insisted that the items of the account sued' on are in no sense a matter of contract, giving the justice of the peace concurrent jurisdiction with the circuit court in matters of contract where the amount in controversy does not exceed the sum of $300, as provided in art. 7,'§ 40 of the Constitution of 1874.
In making this contention counsel rely upon the case of Buckley v. Williams, 84 Ark. 187, in which it is held that, where costs are recovered independent of any other judgment, they do not constitute a debt founded upon contract. The court said that a judgment for costs is a liability created by the statute. We do not think that case has any application whatever to the present one. The costs recovered in that case were incident to a suit between the parties. The account sued on is a list, of the items in cases in the .circuit court where a statute or orders of the circuit court provided for the publication of certain legal notices. The rule governing such cases is well stated in Nelson v. Board of Commissioners of Posey County, 105 Ind. 287. In that case the court said:
“The primary idea of ‘account’ is some matter of debt and credit, or of a demand in the nature of debt and credit between parties, arising out of contract, or of a fiduciary relation, or some duty imposed by law. It is none the less an account that all the items of charge are by one person against another, instead of being a statement of mutual demands of debit and credit, provided the charges arise out of contract, express or implied, nr from some duty imposed by law.”
It follows that the justice court had jurisdiction, and that the circuit court acquired jurisdiction on appeal.
On the merits of the case, counsel on both sides have filed exhaustive briefs. Without reviewing and discussing the arguments of counsel in detail, we will state that we have carefully considered their arguments in this case and feel constrained to hold that there was error in the judgment rendered in the court 'below. In the first place, we think there was no liability on the part of the Jonesboro Trust. Company, under our own decisions, as applied to the facts of this case, except for amounts collected by Eddins.
In the case of State v. Watson, 38 Ark. 96, the court held that when money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity, and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and that he and his sureties will be liable for it on his official bond to the party entitled to it.
Section 6803 of Crawford & Moses’ Digest provides that, when any notice or advertisement relating to any cause, matter or thing in any court of record shall he required by law or the order of the court to be published, the same, when duly published, shall be paid by the party at whose instance it was published, and that the payment may be taxed as other costs in the case.
Section 6805 provides the fees for such legal advertising.
Section 6807 provides that all such advertising shall be done in newspapers published in the county in which the proceedings are had.
The items sued on were for legal notices, which the circuit clerk was required to issue and which, • by the statute and by order of the court, were required to be published in some newspaper. It is true that the clerk acted in his official capacity in delivering the notices to the plaintiffs to be published in their newspaper, but this did not make him personally liable. His official bond was conditioned for the faithful discharge of his official duties, and to that extent his sureties were bound, but no farther. If the clerk should make a personal contract with a newspaper to publish legal notices which came to his office, he would be personally bound therefor, but the sureties on his official bond would not be liable. They would be only liable in case the clerk collected from the interested parties the amount fixed by law for the publication of the legal notices and failed to pay over these amounts to the publishers of the newspapers. In other words, the sureties on the bond of the clerk would be liable for a breach of his bond, and the breach would be in the clerk’s failing to pay over fees which he had collected, by virtue of his office, to persons entitled to receive the same.
It appears from the record that, in a few instances, the clerk had collected fees for publication of newspaper notices which he had not paid to the plaintiffs, but he tendered this amount to them, and the plaintiffs refused to receive the same. Therefore it was error in the court below to render judgment against the sureties for any greater amount than the fees collected by the clerk for legal publications which he had failed to turn over to the plaintiffs.
On the branch of the case relating to the personal liability of the circuit clerk, the law is well stated in Gardner v. Brown, 22 Ind. 447, in which the court held that a sheriff was not personally liable for printer’s fees for advertising, simply because he officially handed the advertisements to the printer, in the absence of a special contract.
In that case the statute required the sheriff to advertise the sale of real estate in a newspaper, if there be one in the county willing to publish such advertisement, and authorized him to incur the expense of so doing. In discussing the question the court said:
“The sheriff, however, will not be personally liable, unless he makes himself so by contract specially. The printer’s fee will be a part of the costs, and collectable as such. If it should be lost by any negligence on the part of the sheriff in failing to have it taxed, or otherwise, he might be liable on that ground; or if he should collect it and fail to pay it over, he might be liable foi money had and received, etc. But he would not be liable on the contract for advertising simply upon the fact that he had officially handed the advertisement to the printer.”
In the application of the rule there announced to the facts in this case we think the trial court erred in submitting the question of personal liability of the clerk to the jury. It is not claimed that the plaintiffs made any express contract with the clerk whereby the latter agreed to become personally liable for the payment of the fees for the legal notices which he sent lo the plaintiffs fór publication. The evidence does show that the clerk sent most of the legal notices which came into his office during his term as circuit clerk to the plaintiffs to be published; but it also is shown that, when the plaintiffs presented their account to him from time to time, the clerk only paid such amounts as he had collected from the parties for whose benefit and in whose interest the legal notices had been published. The plaintiffs knew this fact.
We are of the opinion that the plaintiffs might recover either upon an express or an implied contract upon the part of the clerk to become personally liable' for the payment of the fees for all the legal notices sent by him to the plaintiffs for publication, where the facts are legally sufficient to establish such liability.
As we have just seen, there was no attempt to show an express contract to pay the fees for publication on the part of the clerk. Neither is there any charge of negligence on his part in failing to collect the fees. It is only claimed that the facts established an implied contract on the part of the clerk to pay the fees. We think the evidence falls short of proving that fact. As above stated, he is not liable for such fees ¡because, as clerk, he handed the legal notices to the plaintiffs for publication. '
But it is insisted that he is liable because the plaintiffs charged the accounts to him and that he made no objections to this course. Under the circumstances it would appear that this was done simply as a matter of convenience. According to the testimony of the plaintiffs, they submitted the accounts to the clerk at stated intervals, and knew that he was only paying the amounts which he had collected from the parties interested. In all cases where he made no collections he did not pay. Therefore we are of the opinion that the evidence in the record is not legally sufficient to submit to the jury the personal liability of the defendant, Eddins, upon an implied contract. Under the testimony as disclosed by the record he will be only held liable for the amounts collected by him from the various parties which he failed to pay to the plaintiffs.
For the errors indicated the judgment will be reversed, and the cause remanded for a new trial, | [
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Hart, J. J.
S. Townsend was tried before a jury and acquitted1 of a misdemeanor, charged to have been committed by taking and holding possession of a dwelling-house of Mrs. Mae Anderson in G-urdon, Ark., without the authority of herself or her agent. The penalty for a violation of the statute is a fine or not less than ten nor more than one hundred dollars. Crawford & Moses’ Digest, § 4836.
Among other instructions the court gave the following: “Unless you do find from the evidence beyond a reasonable doubt that the defendant did forcibly take possession of this dwelling-house without authority from the owner or agent of same, then you will give him the benefit of the doubt .and acquit him. ’ ’
No objection was made to the form of this instruction, and this appeal is prosecuted by the State on the theory that there was no evidence in the court below upon which to base the instruction, and that, inasmuch as no punishment by imprisonment is provided by - the statute, the undisputed testimony warranted a peremptory instruction in favor of the State.
We do not agree with counsel for the State that the undisputed facts justified an instructed verdict for the State. Of course, the evidence adduced by the State warranted a verdict in its favor. It appears from the evidence for the State that Fleming Townsend first rented the -dwelling-house in question from Mrs. Mae Anderson and occupied it with his family. The dwelling-house is situated in Gurdon, Clark County, Ark. Some time after Fleming Townsend moved into the hoq.se his father, J. S. Townsend, came to live with him. The rental value of the house was $20 per month. Fleming Townsend failed or refused to pay the rent, and a suit of unlawful detainer was brought against him, after notice was given to vacate the premises. There was a judgment in this suit in the circuit court against him in favor of Mrs. Mae Anderson. A writ of possession was duly issued and served by the sheriff of Clark County by removing certain household1 goods from the dwelling-house, there being no person in actual possession at the time. After the household' goods had been removed from the dwelling-house, J. S. Townsend, the father of Fleming Townsend, unlawfully took possession of the dwelling-house and replaced the household goods which the sheriff had removed therefrom. The sheriff demanded possession of the house from J. S. Townsend, and he refused to give possession, and threatened to hold possession by force. Later in the day, however, he surrendered possession of the premises to the sheriff.
J. S. Townsend was a witness for himself. According to his testimony, Fleming Townsend got behind with the rent for one month, and Mrs. Mae Anderson claimed that he owed for another month. J. S. Townsend paid $20 on the rent for his son, and said that he would look the .matter up and pay the other month claimed if it was due. At the time this dispute arose Fleming Townsend had not been in possession of the house for four months. All the furniture in the house belonged to J. S. Townsend. Mrs. Anderson knew that J. S. Townsend was renting the house and paying the rent at this time.
Again, J. S. Townsend testified that he had the keys to the house, and unlocked it and placed his household effects back in the house, because they had been put out in the street in his absence, and everything that he had. was in the street. Townsend knew that there was a suit by Mrs. Anderson against his son for unlawful detainer, and represented his son in that case. J. S. Townsend was asked the -direct question if he was representing himself when he went into possession of the house after the judgment was obtained against his son for the possession of the same, and testified that he was representing himself. He was asked again if he did not move in in order to hold possession for Fleming Townsend, and' replied “No.” He testified that he had got possession of the house some time before the suit in unlawful detainer had been brought against his son by Mrs. Anderson, and that his son boarded with him thereafter. He specifically testified that he took possession with the acquiescence of Mrs. Mae Anderson, six months before the suit in unlawful detainer against his son was filed.
The testimony of J. S. Townsend is very lengthy and somewhat rambling, but it is fairly and legally inferable from the substance of it, which we have set out above, that he took possession of the house in question, with the acquiescence of Mrs. Mae Anderson, before she brought the suit of unlawful detainer against his son.
It is also legally inferable from his testimony that he did not place his household goods back in the house for the purpose of obstructing the officers in the service of the writ of possession against his son, or for the purpose of aiding his son in holding possession of the premises. He stated that he was representing himself in the matter. The household goods belonged to him, and he put them back in an endeavor to hold possession of the dwelling-house for himself.
It is true that the jury might have inferred that he was acting for his son in the premises, but the testimony is not conclusive to that effect. If J. S. Townsend had acted in the matter in the interest of his' son, the circumstances as shown by the State would have warranted the jury in finding that he was a privy to the judgment in unlawful detainer against his son in favor of Mrs. Anderson, within the rule announced in Souffront v. Compagnie des Sucreries, 217 U. S. 475.
On the other hand, his testimony that he had been in possession of the house before the judgment in the unlawful detainer case was rendered, with the acquiescence of .Mrs. Anderson, and that he placed his household goods back in the house as representing himself and not his son, would warrant the jury in acquitting him, under the rule announced’ in Boykin v. Jones, 67 Ark. 571.
In that case it was held that, where the land owned by a husband was sold for taxes, and purchased by his wife from the assignee of the tax title, she was not affected by the pendency of a suit to recover the land from the husband, since her title was in opposition to his. Under the rule announced in that case, if the defendant had taken possession of the house for the purpose of obstructing the process against his son, he would have been guilty.
On the other hand1, as above stated, his evidence as to his possession warranted the jury in finding that he took possession of the house under his own claim, and not for the purpose of aiding his son to recover possession of it.
The jury acquitted the defendant, and was warranted in doing so, on the theory that J. S. Townsend was not a party to the- unlawful detainer suit against his -son, and took possession of the house, after the judgment in that case was rendered, in his own right as a tenant of Mrs. Anderson.
It follows that the judgment of the circuit court must be affirmed. | [
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Humphreys, J.
Appellees, property owners in Street Improvement District No. 326 of the city of Lit- tie Bock, instituted suit in the chancery court of Pulaski County against appellants, commissioners, collector, treasurer and attorney of said district, attacking the validity thereof and seeking to enjoin all proceedings therein. The attack was upon the alleged ground that their property, consisting of seventeen lots in Wayman’s Addition to the city of Little Bock, abutting upon the street to be improved, and assessed to pay for said improvement, was not included in the district by sufficient description to apprise them that a' charge was proposed to be ■ made against their property. In the organization of the district the lots in question were attempted to be described in the first petition as the "east half ,(%) blocks 5, 6, 7, 8 and the west one-half (%) of blocks 9, 10, 11 and 12, Neimeyer’s Addition; all of said property herein mentioned lying situate in the city of Little Bock, Arkansas.”
The lots were described in substantially the same way in the ordinance creating the district as well as the publication thereof in the Little Bock Daily News. In assessing the benefits against the several lots' embraced in the district, the lots in question were described as being in Wayman’s Addition to the City of Little Bock, Arkansas.
The record reflects the following facts: The owner of the NEB/4, SW1^,- section 8, tp. 1, N. B. 12 W., Pulaski County, Arkansas, platted it into lots and blocks in the year 1904 and designated it as Wayman’s Addition to the City of Little Bock, Arkansas. He sold a number of the lots to individuals, and in 1907 sold the remainder of the addition to the Mercantile Trust Company. The Mercantile Trust Company replatted the addition and designated it as the Neimeyer Addition to the City of Little Bock, Arkansas. In replatting same the block numbers, streets and alleys were not changed. The only change made was to cut the lots purchased by it in two, making them twenty-five feet instead of fifty feet wide. According to the petition and ordinance, Pine Street was to be improved between the'south side of Thirteenth Street and the north side of Asher Avenue. Pine Street .is the center street running north and1 south through the Way-man & Neimeyer Addition. The organizers of the district intended to embrace in the district all lots adjacent to and on both sides of Pine Street between said points. Appellees owned lots 11 and 12, block 5; lots 9, 10,11 and 12, block 6; east half (%) of block 8, and the west half (%) of block 11, all being in Wayman’s Addition to the City of Little Bock, adjacent to Pine Street and lying between the points to be improved.
The vital question to be determined on this appeal is whether the attempted description in the original petition, ordinance and publication thereof properly described appellees’ lots. In organizing an improvement district in an incorporated town or city the statute law requires that the boundaries thereof be designated so that the district may be easily distinguished. Section 5649, Crawford & Moses’ Digest. Where the boundaries are designated by lots and blocks, instead of by metes and bounds, it follows, as a matter of course, that the lots and blocks must be described in such manner as to notify owners that a charge is to be made against their property. Kraft v. Smothers, 103 Ark. 269; McRaven v. Clancy, 115 Ark. 163; Riddle v. Ballew, 130 Ark. 161. The description employed in the organization of this district conformed to the rule announced and met the requirements of the statute. It is true, the lots belonging to appellees adjacent to Pine Street, between the points to be improved, were described as being in Neimeyer’s Addition to the City of Little Bock, Arkansas, and did not mention Wayman’s Addition to said city, but, according to the testimony, the same forty-acre tract was embraced in the two plats when filed for record. The alleys, streets, and block numbers are identical in each plat. The Neimeyer survey and plat adopted the Wayman survey and plat, with the one exception of cutting the lots owned by the Mercantile Trust Company in two so as to make them twenty-five instead of fifty feet wide. The Neimeyer plat overlapped the Wayman plat and covered the entire forty-acre tract covered by the Wayman plat. It is true that the “bill of assurance” attached to the Neimeyer plat only purports to be a re-plat of certain lots' and blocks of Wayman’s Addition, owned at the time by the Mercantile Trust Company, but the plat filed by it embraced all the property embraced in the Wayman plat and “bill of assurance” attached thereto. Since both plats described the identical property by thé same plat numbers, and since the alleys and streets are identical in both, the effect was to furnish two methods by which to identify and describe the blocks therein. The lots owned by appellees adjacent to Pine Street, between the points to be improved, appear on the recorded plat of each addition, hence a description of them by blocks, or parts of blocks, in either addition, was sufficient to put appellees on notice that their lots were included in the district. The decree therefore, invalidating the district and enjoining proceedings therein, is reversed, and appellees’ bill is dismissed for want of equity.
Justice Hart dissents. | [
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Smith, J.
The appellant construction company, hereinafter referred to as the company, made a contract with Paving District No. 20 of Texarkana, hereinafter referred to as the district, to construct the paving, curbing and guttering in the district. The contract is dated November 29, 1916, but appears to have been signed December 22,1916, and there was attached to it a bond in the sum of $300,000, with the United States Fidelity & Guaranty Company and the two principal stockholders of the construction company as sureties, conditioned that tii e comnany should perform the work in accordance with the contract. The work was not completed within the year allowed by the original contract, and, by mutual agreement, the term was extended to November 1, 1918, and, not having then been completed, a second extension was made by consent of all parties to November 1, 1919.
On this last-mentioned date the work was unfinished, and the parties had thoroughly disagreed, and each charged the other with having breached the contract. The company quit work, and the district demanded that the work proceed. The district proposed a third extension, which the company agreed to sign provided E. P. Petersen, the engineer of the district, was discharged and another engineer was selected in his place. The company’s letter containing- this proposition was dated December 12,, and, in a letter dated December 16, the district answered that the facts did not warrant the discharge of the engineer, and declined to do so. This letter inclosed extension agreements, and urged the contractor to sign them and to proceed with the work.
On December 26 the company replied in a letter con- ' taining a recital of grievances against the engineer, whose acts were alleged to have been so arbitrary as to constitute breaches of the contract. The district was reminded that payment of the November estimate was being withheld, and demand for payment was made, and the letter closed with the statement that the company would postpone a decision of the course to pursue until an answer had been received to that letter from the board.
On January 5, 1920, the board replied, advising that it could not take the company’s view about the engineer, and denied any breach of the contract by it, and declined to pay the November estimate without deducting the penalty of $30 per day for delay provided for by the contract. This letter stated the deduction would not be made if an extension agreement was signed on the basis of the one which had just expired. This letter also stated that the contract provided that the board might withhold estimates when, in its opinion, the work was not progressing satisfactorily, and then stated: “In the face of your letter, which seems to indicate that you are considering abandonment of the work, the board would now, more than ever, be unjustified in allowing the November esti mate.” The letter closed with a request for a conference to be held on January 12.
On January 11 the company replied that the board's letter had been turned over to its attorney for reply; and on January 14 the attorney wrote the board that he would advise the company to execute the extension agreement, with one change in it, to the effect that “the company waived no right to assert, in the event of litigation, a claim for damages resulting from any breach,” and requesting the insertion of this clause in the extension agreement, and attention was called to the fact that, if the board had not breached the contract, this amendment could not hurt.
On January 19, 1920, the attorney for the board wrote the attorney for the company that the board could not accept and would not agree to the insertion of the clause proposed in the extension agreement, and that the board had instructed the engineer to give the company notice to resume work under section 16 of the specifications contained in the' contract.
This section provides that, in case of any unnecessary or inexcusable delay in the general conduct of the work, or in the event of an actual or practical abandonment of the work, the engineer will notify the contractor and his bondsmen to that effect. If, after this notice, the contractor or Ms surety does not, within ten days, take such measures as 'will, in the judgment -of the board, insure the satisfactory completion of the work, the engineer may, with the consent of the board, notify the contractor to discontinue work. This section further provides: “The engineer shall thereupon have power, under the direction of the board, to place such and so many other persons as he may deem advisable, by contract or otherwise, to complete the work herein described, and to use such materials and equipment as he may find upon the line of said work; all expense of such completion of the work, including the additional amount to be paid to the persons completing same, the claim of the engineer for services for overtime, and the compensation of the inspectors and any other claim arising under this contract, shall be deducted and paid by the parties of the first part out of any such moneys as may then be due the said contractor, or which may thereafter become due, under and by virtue of this agreement or any part thereof, and in case any such expense is less than the sum which would have been payable for such work under the contract, if the same had been completed by the party of the second part, the contractor shall be entitled to receive the difference. If the expense is greater, then the bondsmen or surety will be called upon to make good the difference.”
On the day on which this letter was written, the board adopted a resolution that “the Burke Construction Company and its bondsmen be notified that work in this district must be resumed within ten days, or else the work would be taken over by the board.” On January 22 the company wrote the board in regard to the notice of the 19th, and stated that it had not abandoned the work and did not intend to do so, but, as the engineer required the work to be bone-dry before proceeding, and that, inasmuch as more or less rains would occur within the next ninety days, the work would be suspended for that time. This letter stated that the board had violated the contract in many respects, and was still violating it, and had no right to take the steps indicated in the let-’ ter of the 19th.
In reply to this letter, the attorney for the board stated that the board had not satisfactory evidence of the purpose of the company to resume work, and called attention to the fact that the extension agreement had not been signed, and that from the circumstances the board could draw no conclusion except that the company was in fact abandoning the work, and advised that the board was unwilling to withdraw the notice of the engineer dated. January 19th.
On January 31st the engineer made a report to the board, advising that he had received no reply to his notices sent the company and the sureties under section 16 of the specifications, and stating that he had no evidence whether the company intended to respect that notice, and in this report he recommended that the engineer be authorized to employ such help and provide such organization as was necessary, that the rough grading be let to a responsible person, and that the board take over all equipment and material belonging to the company to facilitate its performance, and that, in making these recommendations, he had considered the option reserved by the board to relet the work remaining to be done.
On February 9* the board had a meeting, at which a resolution was adopted reciting the notice -of January 19, and the failure of the company to resume work, and it was resolved that the company’s contract be terminated and that the company cease to' have further possession of the work or any connection therewith, and that “the engineer be and he is hereby instructed to take over and to take charge of said work, and to so notify the Burke Construction .Company, and also further to take charge of such machinery, tools, equipment,' and materials as he may find along the line of said work,” and that the bonding company, as surety, be offered the opportunity to take over the work under the terms of the contract. The board, at that meeting, ordered the engineer to be placed in charge of the work and all of the machinery, tools, materials, and equipment on the line of the work, in accordance with section 16- of the specifications, and that the engineer notify the company to get off the work.
On February 9, pursuant to the instructions of the board given at its meeting on that date, the attorney for the district wrote the surety company and inclosed a cony of the minute's of the meeting, and advised that the district had taken over the company’s equipment and would hold the same as provided in section 16 of the specifications, and requested the surety company to take over tlie work. On the same day the engineer notified the company that, in accordance with the resolutions of the board, he was notifying it to discontinue all work, “it being the intention of the board henceforth to continue with the work under the terms of section 16 of the specifications,” a copy of the resolutions being inclosed in the letter. •
On February 26, 1920, the surety company wrote the board declining to take over the work in the district, and advised that the company contended that the district had broken the contract.
The engineer made an inventory of the equipment which he found on the job belonging to the company, and he filed a copy thereof with a report which he made to the board at its meeting on February 16. This report was approved, and a copy of the inventory was ordered forwarded to the company. After taking over the company’s equipment, the district held all of it until-May 20, at which time it released a grader and a tractor, and retained possession of the remainder until June 19, at which, time the district notified the company that it had no use for the equipment, and the same was tendered to and accepted-by the company.
After this correspondence began, a conference was arranged to be held on February 16 between the board and the company to attempt an adjustment of their differences, but no representative of the company attended, and the meeting was not held. Upon the -contrary, the company, on that date, filed suit in the Federal court against the district and the members of the board individuallv for breach of contract, and prayed judgment for $114,331.60 damages. Thereafter, on'March 20,-the board brought this suit against the company and its sureties in the chancery court, and prayed judgment for the difference between the contract niñee of the unfinished work and the cost of finishing it. On motion of the company, this cause was removed to the Federal court, where, upon the motion of the district, it was remanded to the chancery court of Miller-County, where it had originated.
The company filed a bill in equity on August 24, ' 1920, in the Federal Court for the Western District of Arkansas, to enjoin the board from proceeding with the prosecution of this suit, on the alleged ground that it was an interference with the jurisdiction of the Federal court. The relief prayed was denied by the district judge, whereupon the company prayed an appeal to the Court of Appeals of this circuit, and that court reversed the decree of the districDcourt and granted an injunction as prayed. The case was then taken to the Supreme Court of the United States on certiorari, and the decision of the Court of Appeals was reversed. Thereafter the parties proceeded with the prosecution of this litigation.
The complaint filed by the district alleged that, under the terms of section 16 of the specifications, the district was authorized to, and did, take over the equipment belonging to the company, and that the property was then in its hands, and was being held and preserved by the board for use in finishing up the work, and a list of the property taken over was made “Exhibit D” to the complaint. There was a prayer “that proper disposition be made of said property that plaintiff had taken over under the contract, that the plaintiff be authorized to retain and use said equipment,” and that judgment be rendered in its favor for $80,000 damages for breach of contract.
Many .motions and pleadings were filed in the cause, and a vast amount of testimony was taken, and, on final hearing, a decree was rendered in favor of the district for the sum of $60,833.14, and both the company and,the sureties and the district have appealed.
One of the preliminary questions raised and very earnestly insisted upon is that the suit was prematurely brought. The company denies that it has in any manner breached the contract, but insists that, even though the fact be otherwise, the district has elected to proceed under section 16 of the specifications, and, having so elected, the rights and liabilities of the parties must be determined by that section, and that, inasmuch as the district took over the work for the purpose of completing it, the district must first finish the work, either by letting a new contract therefor or by doing the work itself under the direction of its engineer, and, after finishing the work by one method or the other, then demanding that the company-pay the difference, if any, between the cost price and contract price, if there is an excess, or, on the other hand, paying to it the difference between the cost price and contract price if there was a saving.
It is apparent, from a reading of section 16, set out above, that, if the company had breached the contract by failing to proceed with the work, the district had the right to take it over and complete it, and, as a means to that end, was authorized to take over the company’s equipment, and, having done so, the district had the right to complete the work itself, or to let new contracts therefor, and in either event to hold the company and its sureties for any excess of cost over the -contract price, with the reciprocal obligation of accounting* to the company for any saving accomplished if the work was completed at a cost less than the contract price.
In the case of Perdue & Hill v. Road Imp. Dist. No. 1, 159 Ark. 117, the district exercised the right to take over the work and relet a contract to complete an unfinished improvement; and we held the district should account to the contractor for the difference which there existed between the cost under the new contract and the original contract price.
It is the opinion of Mr. Justice Humphreys that the effect of that case is to require a district, operating under a contract like the one here involved, to take over the work and complete it, in the event the contractor fails and refuses to complete the work, and, after having been given this right, it is the remedy which the district must pursue, and is its exclusive remedy.
The majority do not so construe the case cited. That opinion must be interpreted in the light of the facts there stated. There was, in that case, no question of the options of the district or its right of election of the remedies it would pursue. Section 61 of the contract in that case gave the district the same right to take over the work as is here given by section 16, and the district there had elected to exercise that right, and, pursuant to that election, had completed the improvement. No question was presented as to whether the district was 'compelled to complete the work. The fact was-that the district had done so, and the question presented was, what were the rights of the parties under the case made? The parties had in fact proceeded under the section of the contract which gave the district the right to take over and complete the work, and, having done so, it became necessary to determine the rights of the parties undeu those circumstances. In other words, section 61 was the contract in that case, because the district had proceeded under it, and that section became therefore the relevant and governing section. As we there said, section 61 could be applied in the event only that the district had taken over the work upon a failure of the contractors to complete it. In other words, the question there presented was not whether the district was required to proceed under section 61, for it had already done so, and, having done so, the only question was, what were the respective rights and obligations of the parties under the section under which the district had acted?
The majority there said it was somewhat anomalous that one’s rights could be controlled by a contract which he had breached, but that such was the law of that case, because the parties had provided by the contract what the respective rights and liabilities of the parties should be in the event the contractor failed to complete the improvement and the district took it over and com pleted it, which, was the state of that case. The Chief Justice dissented upon the grounds, however, that, having breached the contract, as the majority found, the contractor could predicate no right upon the contract.
It is the opinion of the majority that the district was • not required to proceed under section 16. That was a mere option which the contract gave it, and, if there was no election to exercise that option, it might pursue the ordinary common-law remedies available to a contracting party whose contract has been breached.
It is the view of the writer that, while the opinion in the case of Perdue & Hill v. District, supra, has no application here, this suit was prematurely brought, because the district is shown to have made its election to proceed under section 16, and, having elected, the election is irrevocable, and the district should therefore have completed the improvement, as was done by the district in the Perdue & .Hill case, and thereafter .called the contractor and his surety to an accounting in the manner provided by that section.
It is the opinion of the majority, however, that the district made no such election as to be bound thereby. The views of the majority are as follows: It was the duty of the district to advise the surety that the contractor was not proceeding with the work, if a breach on that account was being claimed. The district did take charge of the equipment; but this was done to compel performance by the contractor and his surety, and, after taking over the equipment, the district demanded that the surety complete the work, and insisted that this be done. The district made no use of the equipment so far as attempting to complete the work was concerned, and, in fact, did no work towards the completion of the contract, the only work done by the district being directed to putting the streets, which had been torn up and rendered impassable by the company, in condition so that the public could use them. The company made no demand for any of its equipment except the grader and the tractor, and these were turned over to the company on demand, and the remainder of the equipment was voluntarily turned back to the company. Moreover, the suits brought in the Federal court against the district and tlie members of the board individually for damages, and the one for injunction, operated to prevent the election .to proceed under section 16 from becoming effective, had the board sought to make it final, as the company thereby expressed, in the most emphatic and effective ■manner possible, its refusal to acquiesce in the district proceeding to the completion of the work, and the district thereafter did nothing except to wait on the company to complete the work and sue for the damages for a failure to do so.
Another preliminary question which is pressed with equal earnestness is that the chancery .court was without jurisdiction to try this case, it being insisted that the suit, in effect and in fact, is an ordinary suit for unliquidated damages. In support of the court’s- jurisdiction, it is insisted by the district that the case is one involving intricate accounts, and, further, that the company has waived the right to question the jurisdiction bf the chancery court.
As we have concluded that the district is right on the first proposition, we do not stop t-o consider whether it is also right on the second.
The transactions covered by the testimony in this case extended over a period of three years, and the contract out of which the litigation arose covered a large part of the city of Texarkana. It was alleged in the complaint of the district that little more than one-half of the proposed improvement was completed and a considerable amount left in an unfinished condition: The contractor claimed about $85,000' for -sundry items of extra work and material, for improperly rejected curbs and gutters, for unnecessary moves, loss of time of men and teams and material. There is a conflict with reference to the kind and character of the work and the material to be used and the material which was used. It was apparent from the allegations of the pleadings that much testimony would be required, and much was offered on the disputed values, measurements and estimates, and in our own attempt to review these controverted items it appears that the case is one which involved long and tedious accounts. The case on this question is not unlike that of Seitz v. Meriwether, 119 Ark. 271, except that many more items are here involved than were in controversy in that case. That case involved many disputed items which had first to be passed upon before stating the account, and we there said: “In such cases the chancellor has power to appoint a master trained in the work to examine the accounts, to take'testimony in reference thereto, and to direct Mm to report his finding to the court. The chancellor then has authority to consider and modify the report of the master, after exceptions thereto have been made. All these are cogent reasons why the- accounts could be better settled by the machinery of a court of equity than by a jury. The jurisdiction of a court of chancery to settle and adjust long and complicated accounts, such as appear from the record in this case, is well established by former decisions of this court. Trapnall v. Hill, 31 Ark. 345; Smith v. Stack, 89 Ark. 143; Bagnell Tie & Timber Co. v. Goodrich. 82 Ark. 547; Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326.”
Another question raised by the company, which may be disposed of at this point in the opinion, is the insistence that the testimony shows that the district could not have performed its part of the contract by making payments had the company completed the work, and that the district is therefore in no position to complain of the company’s failure to perform the contract. A complete answer to this point appears to be that no such question is raised by the pleadings or was presented to the court below. It may be that the cash which the district had on hand would not have paid the balance which would have been due the company had the work been completed; but there is no showing that the district could not have met its obligations, as it does not appear that the sum raised by the district equaled the betterments which had been assessed, and more money might have been raised by the sale of additional bonds or otherwise, and there might have been, if necessary, a reassessment of the portion of the betterments to be collected which would have produced enough money to meet the district’s obligations to the company without exceeding the total assessment of benefits.
The court found the fact to be that the company, and not the district, breached the contract. The company complains bitterly of the conduct of the engineer, and insists that in many respects the engineer’s conduct was so arbitrary and unreasonable as to constitute breaches of the contract. But most of these complaints occurred in the first year of the contract, and others were in the second, and we think the extensions of the contract and the continued operations thereunder waived these breaches, if any there were. Lewelling & Price-Williams v. St. Francis Road Imp. Dist., 158 Ark. 91; Brown & Froley v. Monroe County Road Imp. Dist., 153 Ark. 606.
We concur in the court’s finding that it was the company, and not the district, which breached the contract. The failure to complete the contract within a year was itself a breach of the contract. It is true the district waived the breach by the extension, and it also waived the breach to finish the work in the time covered by the second extension; but the company did not complete the work within that time, and this was a breach. The company was urged to sign an extension agreement, but this it refused to do except upon conditions which, we think, it had no right to .impose.
It is true the district withheld the November estimate, which was payable in December; hut section 25 of .the contract gave the district the right so to do if, in the opinion of the hoard, the work was not progressing in accordance with the provisions of the contract; and the contractor here had suspended work and had refused to resume it. The contractor did finally offer to execute an extension agreement,.but, as we have said, he offered to do this only under conditions which he had no right to impose.
Having reached the conclusion that the company had breached the contract, and that the rights of the parties were not determined by section 16 of the specifications, it becomes necessary to measure the damages, and this is done by ascertaining the cost to complete the work in accordance with the specifications in excess of the contract price.
Upon this subject there is a vast amount of testimony, covering many items, which we have carefully considered, but which we do not undertake to review because of its very volume, and a review of the testimony would not serve as a precedent in any other case. An itemized statement of the portions of the work remaining uncompleted was prepared by Petersen, and this estimate of the cost of completion was $87,000 in excess of the balance which would have been due the company had 'it completed the work. The district employed two engineers, who were men of established reputation, who had no connection with the case except to make an estimate of the cost of completion in excess of the contract price. These engineers made separate estimates, after a consideration of all the items involved. Tillson, one of these engineers, placed the excess at $80,833.14, and Miller, the other, placed the excess at $89,538.39. This excess over the contract price was shown to have resulted in a large measure from the increased cost of labor and material.
Witnesses Taylor and Gregory, who were also engineers, testified in behalf of the company, and one placed this excess at $18,767.14, and the other at $23,809.36.
The court accepted as substantially correct the figures of Tillson, and based its finding thereon; and we have concluded that action is not clearly against the preponderance of the evidence except in the particulars hereinafter» stated.
Tills on’s estimate appears to have been based upon Petersen’s estimate of the work completed. It was, of course, necessary to know what percentage of the work bad been finished to ascertain what the cost of completion would be. Petersen made an elaborate statement covering that question. The district employed Ayres, an engineer, to check up the completed work which was covered by the estimates which had been given the contractor each month as the work progressed. Ayres made an estimate and measurement of a number of the disputed items, and, according- to his testimony, the estimates given the company from time to time by Petersen lacked $3,677.12 of covering all the work which they had done. The district practically concedes that( Ayres’ figures are correct, except that it contends that Ayres included in his calculation work which Petersen had refused to accept as defective. It appears, however, that in the second paragraph of an amendment to the complaint of the district it was specifically alleged that various items of the work had been defectively done, and credit on that account should not be allowed. The court, in its decree, specifically found against the district on this allegation, and we clo not think this finding is clearly against the preponderance of the testimony.
We think therefore that Ayres’ figures should be accepted as correct; and, if this is done, it follows that the company should have credit for this unestimated work, and the decree of the court below must be so modified as to allow it. In addition to all the other controverted items the company claimed certain credits aggregating $23,372.51. The principal items embraced in this claim were for the reserved percentage and the unestimated work embraced in Ayres ’ measurements and a few small items which do not appear to be disputed. The court allowed the contractor a credit on account of these items amounting- to $20,000. It is not made plain how this amount was arrived at, and, if Ayres’ measurements are taken as correct, it appears to us the court should have allowed the credit of $23,372.51 as claimed, instead of the credit of $20,000. The decree against the company and its sureties should therefore be reduced by the difference between these amounts, which is of course $3,372.51.
On behalf of the surety company it is insisted that, whatever the liability of the company may be, its own liability has been discharged because of the unauthorized changes which were made in the contract during the progress of the work. Of this contention but little need be said. We think the changes which were made were either authorized by the contract, or that the right to complain because of them was waived' by the extension agreements which were executed with the consent of the surety, for, as we have said, these changes occurred either during the first or second year of the contract, and were therefore waived either by the first extension agreement or by the second one.
There, is a cross-appeal by the district, in which we are asked to reverse the findings of the court below on items covering’ work rejected by Petersen as defective and for relaying the same. But we have said that the court’s finding on these items was not clearly against the preponderance of the evidence.
The district also insists, on the cross-appeal, that interest should be allowed on the cost of completing the improvement in excess of the contract price from the date of the breach of the contract by the company to the date of the judgment, amounting to $10,958.74. We do not think so, as the delay in completing the work has resulted from the district’s own volition in not proceeding: with it sooner, as it might have done, and the district has not in fact expended the money upon which it is asking interest.
The district also asks, on the cross-appeal, for liquidated damages from the date when the work.should liave been completed to February 9, 1920, when the work was taken over by the board. We do not think so, because, in its decree, the court has rendered judgment in favor of the district for the damages which it was shown to have sustained.
It follows from the views here expressed that there was no error in the decree except in failing to allow the company .credit for work done in accordance with Ayres ’ estimate, and the decree will therefore be modified in this respect, and, as thus modified, affirmed.
Humphreys, J., dissents. | [
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Hart, J.
Hinton Moon prosecutes this appeal to reverse a judgment and sentence of conviction' against him for the crime of seduction.
This is the second appeal in the case, and reference is made to the opinion on the former appeal for a statement of the evidence, which is not materially different from that on the present appeal. Moon v. State, 155 Ark. 601.
The first assignment of error is that the verdict of the jury should' be set aside because three members of it had read an article on the case, published in a daily paper in the town where the case was tried, during the deliberation of the jury. The testimony of the jurors is mainly relied upon in support of this assignment of error. Grounds for a new trial cannot be established by the affidavits of the trial jurors for any other cause than that the verdict was made by lot. Capps v. State, 109 Ark. 193.
But it is insisted that this ground for a new trial is established by other evidence than that of the jurors themselves. The only other evidence on the point is that of the publisher of the daily newspaper, who testified that three of the jurors were subscribers to the paper. This testimony falls short of showing that the article in question commenting on the case was read by the jurors. Hence we hold that this assignment of error is not well taken.
The next assignment of error is that the court erred in allowing the State to introduce in evidence a motion for a, continuance, subscribed' and sworn to ¡by the defendant, for the purpose of contradicting- his testimony. We think that this assignment is well taken.
The court admitted the motion for a continuance in evidence for the purpose of impeaching the defendant as a witness. Section 4187 of Crawford & Moses’ Digest relates to the mode of impeachment of witnesses. Among other things it provides that a witness may be impeached by the party against whom he is produced, by showing that he has made statements different from his present testimony.
In the application of this statute to civil cases it has been held that -a witness may be impeached by introducing his pleading under oath in another case which is in conflict with his testimony. Texas & St. Louis Ry. Co. v. Donnelly, 46 Ark. 87.
Again, in St. Louis, Iron Mountain & Southern Railway Company v. Faisst, 68 Ark. 587, it was held that an affidavit, which the witness admits having signed, though written down by another, is admissible in the impeachment of his testimony, if contradictory thereof.
In applying the mode of impeachment provided by the statute to criminal cases, in Weaver v. State, 83 Ark. 119, it was held that, where an accused takes the stand in his own behalf, he does so subject to the rule allowing the testimony of a witness to be impeached by proof of contradictory statements, as, for example, in an affidavit for continuance.
In the later case of Baker v. State, 85 Ark. 300, it was held that, where the defendant filed an application for continuance on account of the absence of a certain witness, in which he alleged what the witness would swear if present, which application was refused, and the witness subsequently appeared and testified somewhat differently from defendant’s statement in the application, it was error to permit the application to be read for the purpose of impeaching the defendant, if such application did not conflict with defendant’s testimony.
That case exactly fits the present one. At á former term of the court the defendant had filed a motion for a continuance, in which he set out the testimony of three absent witnesses. The motion was subscribed and sworn to by him. The case was continued for another term. At the trial of the case two of the witnesses testified to a state of facts somewhat different from the facts set out in the defendant’s motion for a continuance.
The.motion for a continuance referred to is somewhat lengthy, and we do not deem it necessary to set it out. It is sufficient to say that it was introduced by the State for the purpose of impeaching the defendant. The defendant was a witness in his own behalf, and there is nothing whatever in the motion for a continuance which contradicts the testimony of the defendant given at the trial.
Under the authorities cited above, it is well settled that pleadings in a case subscribed by a party can only be used to impeach him as a witness where such pleadings or statements are contradictory to the evidence given by the party at the trial.
This rule was recognized by this court on the former appeal. One of the grounds for a reversal was that the trial court erred in allowing the prosecuting attorney to read the defendant’s motion for a continuance in his argument to the jury, where it did not appear that the motion was introduced in evidence. The court said that, if the State desired to use the motion to contradict the testimony of the defendant, and thus to impeach his testimony, it should have introduced the motion as evidence in the case. That was tantamount to saying that the motion could not be introduced in evidence unless it tended to contradict the testimony given by the defendant. If it was prejudicial to allow the prosecuting attorney to read the motion for a continuance to the jury where it had not been introduced in evidence, it would be equally prejudicial to allow it to be introduced in evidence where it did not tend to contradict the evidence of the defendant, and thus become a mode of impeaching him as a witness. The general rule is that evidence improperly admitted must be treated as prejudicial unless there be something to show that it was not. Elder v. State, 69 Ark. 648.
The fact that the State insisted bn reading the motion for a continuance in evidence, over the objections of the defendant, showed that it was believed by the prosecuting attorney that it would affect the jury unfavorably to the defendant. Then, too, the jury might have considered that it tended in some measure to corroborate the testimony of the two witnesses mentioned in it, who, as above stated, testified to a somewhat different state of facts to those recited in the motion for a continuance.
For the error in allowing the motion for a continuance to be read in evidence for the purpose of impeaching the defendant as a witness, the judgment will be reversed, and the cause will be remanded for a new trial | [
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. Humphreys, J.
This suit was instituted by appellee against appellant, in the circuit court of Grant County, to recover damages in the sum of $825 to three mules and two horses, alleged to have been injured by the employees in charge of one of appellant’s trains, in negligently and carelessly running said live stock over a cattle-guard at a road crossing north of Leola.
Appellant filed an answer denying the material allegations of the complaint.
The cause was submitted upon the pleadings, testimony adduced by the respective parties and the instruc tions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $300, from which is this appeal.
Appellant contends for a reversal of the judgment upon the alleged ground that the evidence is insufficient to support the verdict, either upon the issue of negligence or injury.
The live stock had entered the right-of-way of appellant, which was fenced, by passing over the cattle-guard. The cattle-guard was at the public crossing north of Leola. There was a long deep cut north of the cattle-guard, then a high fill on north to Wilson’s Creek. Wilson’s Creek was about .400 yards north of. the cattle-guard. The live stock came upon the dump near the creek, and were there observed by the employees of appellant on the southbound passenger train, who gave the usual alarm signal by blowing the whistle. The live stock ran at full speed down the dump, into the cut and across the cattle-guard, where, according to the testimony adduced by appellee, they were all severely injured by the sharp spikes on the cattle-guard, which pierced their feet to a considerable depth. The testimony on the part of appellees tended to show that, as a result from the injury, the feet and legs of the animals became sore and swollen to such an extent that they could scarcely walk around for several months, and that the market value of each was greatly reduced. Two of the witnesses testified to the difference in the market value of each, before and after the injury, which exceeded the amount of the verdict. Testimony is in sharp conflict as to whether the employees slowed down and stopped the train before reaching the cattle-guard. The employees testified that they not only slowed the train down but stopped it in the cut a considerable distance from the hindmost horse when he crossed the cattle-guard. One witness who testified for appellee said the train slowed down a little, but that it was only about thirty feet from the last horse that crossed the cattle-guard. The other ■witness who testified for appellee, and who saw the train from the time it came in sight of the animals, said that the horses ran as fast as possible, and that the train made no appreciable check in its speed; that it was right on the horses when they ran across the cattle-guard.
The law is that the railroad company must keep a lookout for live stock, and!, after discovering them upon its right-of-way, must use ordinary care to avoid injuring them. Kansas City Sou. Ry. Co. v. Ingram, 80 Ark. 269. Circumstances might exist which would require the employees of the railroad company to bring a running train to a complete stop, in the proper exercise of ordinary care, to prevent an injury. Paragould Sou. Ry. Co. v. Crunk, 81 Ark. 35.
If the jury believed the testimony introduced by appellee responsive to the issue of negligence, such facts made it the duty of the company to materially slow down the train, or stop it, in order to avoid the injury. 'According to appellee’s testimony, the horses were chased as rapidly as-they could1 go for 400 yards, upon a high dump and through a cut, over a cattle-guard. There was no escape for them until they reached the cattle-guard, where they were forced by fright to pass over it so rapidly they could not save their feet from injury. The jury may have reasonably inferred that, had the train slowed down sufficiently, or stopped, the animals would have slackened their pace and crossed the cattle-guard without serious injury. The facts in the instant case justified the submission of the issue to the jury of whether the trainmen, in the exercise of ordinary care, should have slowed down or stopped the train. Railway Co. v. Ferguson, 57 Ark. 16. There was substantial evidence to support the amount of the recovery.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellants instituted this action against appellee to recover damages alleged to have been sustained by reason of the wrongful and negligent act of appellee in obstructing a public road in White County by damming up a natural waterway and failing to drain off the water. The court sustained a demurrer to the complaint, and, appellants failing to plead further, final judgment was rendered dismissing the complaint.
The case was here formerly on appeal (154 Ark. 97) from a judgment in favor of the present appellants, and we reversed the judgment for the reason that the complaint failed to state a cause of action. On the remand of the case, appellants amended their'complaint, and the question now presented is whether a cause of action is stated in the complaint as amended. Originally the allegation in the complaint was that appellee, in enlarging its roadbed, dug a hole, or borrow-pit, and, after digging a ditch to drain the accumulated water, had permitted the ditch to fill up, and we decided that the action of appellee “in digging the ditch, appears to have been voluntary, so far as draining the borrow-pit or hole is concerned, and its failure to continue draining the borrow-pit affords plaintiff no cause of action.” The amendment introduced a new element in the statement of the cause of action. In the complaint, .as amended, it is alleged that the railroad dump was built across a swag, or swale, which was a natural waterway, or drain, and that the appellee failed to leave any openings to allow for the passage of water, and failed to maintain a ditch to carry off the water. It is alleged that appellee formerly dug a ditch to carry off the accumulated water into a creek, but that the ditch had been filled up with the sloughing off of the earth into it, so as to completely fill the ditch and cause the water to stand and become backed up until it was impossible for the water to flow off. This states a case where a railroad company, in constructing or enlarging its track, had dammed up a natural waterway and failed to provide means to drain off the water, and this created a cause of action in favor of any person injured thereby. The question of damming up surface water is not now involved, for, according to the allegations of the complaint, a natural waterway was obstructed. C., R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235; McAlister v. St. L. I. M. & So. Ry. Co., 107 Ark. 65.
It is also alleged in the complaint that appellants ' are engaged in road work, and. entered into a contract with the road district to improve a road running parallel with the railroad, and that, on account of the obstruction to the road by reason of its being flooded with water, appellants were unable, for a considerable length of time, to pursue the work, and that appellee had failed and refused to dig a ditch to carry off the water. We are of the opinion that this states a cause of action in favor of appellants. One who suffers a special or peculiar injury, not in common with the general public, by reason of an obstruction of a public highway, may sue to recover damages on account of the obstruction, or may maintain a suit for injunction to restrain the continuation of the obstruction. Packet Co. v. Sorrels, 50 Ark. 466; 2 Elliott on Roads and Streets, § 854.
There was a cause of action stated in the complaint, but we do not approve the measure of the damages upon which recovery in part was sought. The allegation in the amended complaint is that appellants “have been damaged by having to lay off their teams from October 31, 1920, to January 1, 1921, in the sum of $2,000.” In another place it is alleged that appellants were damaged by reason of the fact that they could not get across the flooded part of the road so as to complete their work on the other side. Delay in carrying out their contract with the road district was not the proper measure of appellant’s damages, nor could they recover on account of their inability to cross over the flooded part of the road. In that respect they were like any other traveler, and suffered no peculiar injury by reason of being unable to pass along the roadway. The true measure of damages is the extra cost of improving the flooded part of the road by the cheapest method practicable, either by building it up or by draining it, and appellants are entitled to recover this damage, if they were under contract to complete the improvement as alleged in the complaint.
There is another allegation in the complaint, with respect to damages by reason of injury to work already constructed by appellants, and this was sufficient to show damages in that-regard.
For the error of the court in sustaining the demurrer the judgment is reversed, and the cause is remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. | [
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Wood, J.
The appellee instituted this action against the appellant to recover damages for personal injuries. Among other things he alleged in his complaint that he was in the employ of the appellant in its coal mine No. 6 near Huntington, Arkansas; that he was what was known as a “motor runner,” his duties being to operate an electric motor which was run upon a track in the mine and used for the purpose of hauling empty coal-cars from the bottom of the shaft to “partings” in the entry and there picking up and hauling loaded cars back to the bottom of the shaft. He alleged that there was a defective coupling between the two fear cars in the trip of loaded cars that appellee pulled from the parting to the bottom of the shaft immediately preceding his pulling the trip of empty cars which he was pulling at the time of the collision between the motor and the loaded car; that the loaded cars were coupled by means of a hook and.chain; that the hook had been in use for a considerable length of time and had become almost straight, so that it would not hold fast, and that, while the appellee was pulling the trip of loaded cars from the parting to the shaft, the rear car in the trip became uncoupled on account of the defective condition of the hook, and stopped on the track between the parting and the shaft, without the knowledge of the appellee; that the parting boss had negligently permitted the cars coupled with this hook and chain to be included in the trip and negligently failed to inspect said hook and to warn the appellee of its defective condition and the danger incident thereto; that the lights on the motor which appellee was driving were dim and defective in that they did not throw light sufficient to enable the appellee to see any distance ahead while running the motor, and that there were no other lights in the entry to enable the appellee to see the car on the track in time to avoiding colliding with it; that the appellant did not have an inspector in the mine to inspect the track over ' which the appellee ran the motor to detect any dangers that might arise and to which the appellee would be exposed while in the discharge of his duty as motor runner : that the appellee had requested the chief electrician in the mine and his assistant, who were employees of the appellant, to repair the lights and the electricity on the motor which appellee was driving so that it would throw the amount of light customary and necessary to enable the appellee to operate the motor; that these servants of appellant promised the appellee to repair the motor, and that, by reason of their negligence in failing to repair the electrical equipment and to furnish an adequate light, the appellee was unable to see the car of coal on the track ahead of him in time to avoid the collision. The appellee charged that, on account of the negligent acts thus enumerated, the appellant had failed to exercise ordinary care to furnish him a reasonably safe place in which to work, and by reason of such failure his injuries resulted. He described the injuries, alleged that they were serious and permanent, and on account of which he had been damaged in the sum of $25,000, for which he prayed judgment.
The appellant, in its answer, specifically denied the allegations of negligence in the appellee’s complaint and denied that he was injured at the time and place and in the manner alleged, and set up as affirmative defenses contributory negligence and assumed risk on the part of the appellee.
Under the testimony adduced at the trial the court instructed the jury that the appellee relied upon the negligence of the appellant in two respects; first, that there was a defective hook that straigiitened out on one of the cars attached to the train of coal cars that appellee was pulling; and, second, that appellant had failed to equip or maintain the motor with sufficient lights to enable appellee to see obstructions upon the track, and that, by reason of these acts of negligence, the collision occurred between the motor car that appellee was operating and a loaded coal-car that had become detached from the train, which collision resulted in the injuries of which appellee complains.
The court instructed the jury that the burden was upon the appellee to prove these alleged acts of negligence, and that, unless he established by preponderance of tbe evidence one or both of them, he could not recover. The appellant asked the court to instruct the jury that, under the law and the evidence, the appellee was not entitled to recover, which prayer for instruction the court refused, and the appellant duly excepted to such ruling. The jury returned a verdict in favor of the appellee for $15,000. Judgment was rendered against the appellant for that sum, from which is this appeal.
1. The appellant contends that there was no testimony to sustain the verdict, and that the court therefore erred in refusing its prayer for a peremptory instruction directing the jury to return a verdict in its favor. The first of the alleged grounds of negligence is “that the hook had been in use for a considerable length of time, and by constant use had become almost straight, so that it would not and did not hold fast.” The testimony of the appellee concerning this is as follows: “I examined the couplings on that car and found the hitchings were straightened out. By hitching I mean. a goose-neck pinned over like that. The goose-neck is hooked to the adjoining car by a link in one end of the car which is dropped down into the goose-neck. The goose-neck was straightened out. When the goose-neck is straightened out the car will come uncoupled.” Appellee was asked this question: “Can you tell what straightened it out?” And answered, “No sir.’’ Appellee demonstrated before the jury how the hitching on the end of the draw-bar had straightened up — 'sometimes the hooks were not fixed properly, and this one was not. In his testimony appellee stated that it was the duty of Frank McCormick to set the cars out when they came out and the hooks were bad.. He was the one to whom appellee reported when the cars were in defective condition. He didn’t tell McCormick that the car was defective and that it had a straight hook — did not say anything about the defective hook on the car. Appellee, after the occurrence, did switching and helped to clear the wreck.
The above is all of the testimony in the record concerning the alleged defective hook, and it is not sufficient to warrant a finding that the hook had .been in use a considerable length of time and by constant nse had become almost straight so that it would not hold fast. The burden was upon the appellee to pr’ove the negligence alleged, and he fails to prove any negligence on the part of the appellant in regard to the defective hook. It was the duty of appellant, of course, to exercise ordinary care to furnish appellee a safe place in which, and appliances with which, to do his work. But there was nothing in the testimony adduced by the appellee to prove that the alleged defect in the hook could have been discovered by the appellant by the exercise of ordinary care before, or at the time, the loaded cars were coupled together by this alleged defective.hook. The hook was shown to be defective only by the fact that, after the collision occurred, the appellee discovered that the hook on the car with which his motor collided had straightened out. The appellee argues that this physical fact was sufficient to prove that the appellant was negligent. But not so. The appellee does not prove how long the hook had been in use, or that it had become worn and weak by constant use. In other words, for aught that the proof shows to the contrary, the hook, at the time it was used in coupling the car, to all appearances might have been in perfect condition. Or there may have been some latent structural defect that the exercise of ordinary care of inspection would not have discovered. Appellee does not prove that the hook, at the time the coupling was made, was in such condition that the exercise of ordinary care would have discovered that it was defective. There is an utter absence of evidence to prove that the appellant did not exercise ordinary care to inspect the hook before, or at the time, the cars were coupled together, and an utter absence of evidence to show that the appellant was negligent in furnishing a defective hook. Export Cooperage Co. v. Ramsey, 133 Ark. 336, and cases there cited.
2. The other ground of negligence alleged in the complaint is as follows: “That the lights on the motor which plaintiff was driving were dim and defective in this, that they did not throw a light sufficient to enable the plaintiff to see any distance ahead while running said motor, and there were no other lights in said entry which would enable the plaintiff to see the car on the track in time to avoid colliding with it.” The appellee testified concerning this ground of negligence substantially as follows: “The lights on the motor were dim. There were not any lights on the motor at the time of the collision.” Appellee spoke to one Orrick, who was the proper man to speak to in regard to the lights, and also to one Daffron, who was the electrician Under Orrick. He told them that the lights were dim, and he would like to get better lights. They told appellee they would try to get him better lights. They hadn’t furnished appellee with any better lights up to the time appellee was injured. They didn’t tell appellee how long it would be before they would get the fights. The injury occurred “ two or three days, and maybe a day,” after they told appellee they would get better fights. Appellee made complaint to them “about two or three or four or five times— something like that.” If there had been the proper fight, appellee could have seen the car before he got to it, and had plenty of time to stop. There were no fights on the first west entry at the time appellee was injured, between the doors and- the first west door. Appellee had been operating the motor over two years — maybe three years —before, and they had the same fights on it all the time he was operating it; one at the front and one at the back. Appellee had complained to the electrician about the fights four or five times within the three days before he got hurt. He told him the fights were dim and getting dimmer all the time; that “they were not getting the proper amount of juice. The joints kept getting worse. They were getting dimmer a month or two and getting worse all the time. Sometimes the head of it would get to where it would pop kind o’ like a pistol.” The,accident happened within a day or two after appellee made complaint. Appellee was asked why he didn’t complain about the lights growing dim two or three months before, when he observed it, and answered that he had said something’ or other to him (the electrician) about the joints being fixed. He went and told him about the joints being fixed and complained to him about the lights being dim — about the joints. When the motor was operating the lights were dimmer, and when the'motor was standing still the lights were bright. Appellee was asked whether the same voltage went into the lights as in the motor resting on the rails, and answered that they couldn’t get the same juice because where the rail was so small it wouldn’t carry it. The appellee was asked what he meant by the “joint” of the lights, and answered, “A short piece of wire they used in different places,” and demonstrated before the jury what he meant. There was a clamp like a railroad wire where you put a splice in it, and this, wire is in under and connected with the rail on which the motor runs. The electricity comes down through the wire, and when these wires get loose there isn’t much motive power. The juice would not go through the wire. The joints had been getting loose that way for two or three months. They were getting bad— getting worse all the time. They were not dim that way when appellee first came back from the war. Appellee could see further then than he could at the time of the injury. There was one light right near the parting — ■ they called it on the parting. By that light the boys could see to work at that place.
Witness Orrick testified that he was the electrician for the appellant, and, among other things, he explained the system by which the mine was furnished with lights and power to run the motor as follows: “The system was what you would call a continuous return, because we had a continuous rail strung along by the side of the track, and this was a copper wire here, and then the rails at the joints had iron fishplates under them; strips of copper wire under the fishplates and bolted down with the fishplates, and about every 200 or 300 feet there was wire running off under these fishplates and connecting to this continuous wire by the side of the track, which made a continuous ground metallic circuit. The wire was used to conduct the current from the return of the motor. The wire conducted the electricity from the motor by coming in contact with the wheels of the motor. If wire got covered up with dirt and coal it would interrupt the current some and would have effect on the lights. If there was a great deal of dirt the lights would get dimmer or go out, depending upon the amount of dirt on the rail. On cross-examination the witness was asked the following question: “You have seen electric bulbs ■ — be sitting in a house, and the lights almost go out, and all that would be left would be a red wire in there, and it didn’t issue any light hardly; what is the cause of a condition of that kind?” And he answered, “Reduced voltage.” He was then asked: “ Could that same condition exist with reference to headlights on the motor and at the same time not affect the operation of the motor?” And answered, “Yes sir.” He further testified concerning the promise to repair, that the appellee had complained to him “about the trouble on the motor in July, and it was repaired” — that the lights were incandescent lights, and when broken they would be repaired; that no report was ever made by the appellee to him that the lights were constantly growing dimmer; that he put lights in the entry anywhere the plaintiff would ask for them.
The testimony of the appellee tended to prove that he was employed by the appellant as a “motor runner.” His duties as such were to operate the motor which was run by electricity, and this motor pulled empty cars from the bottom of the shaft to what is known as the parting in the entry, and loaded cars from the parting back to the bottom of the shaft. While appellee was performing this work, one of the loaded cars in the string of cars appellee was pulling out of the parting uncoupled itself, without the knowledge of the appellee, and stopped in a swag in the track along the entry. When appellee was returning with a string of empty cars his motor collided with this detached loaded car. At the time of the collision appellee was sitting sidewise. He demonstrated to the jury the position he was in. He stated he had his head turned back toward the entry. It was. dark there. He could see ten or fifteen, or maybe twenty feet, ahead, but couldn’t see good. He was maybe twenty feet from the car with which he collided when he first saw it. The motor was running at full speed, about fifteen miles an hour. He did all he could to prevent the motor from colliding with the car after discovering* it. He detailed the efforts he made, and stated that was the proper way to handle the car in an emergency of that kind. The motor struck the loaded car with full force, which caused some of the coal with which the car was loaded to strike the appellee in the back, injuring him severely.
There was testimony to the effect that the appellee had worked in and about the mines in almost every capacity ever since he was ten or eleven years old, and was experienced in the line of work he was performing. It was his duty as a “motor runner” to watch out for cars or .for any other obstruction on the track. At the time of his injury appellee was running at the-same rate of speed that he had been running the motor for two or three years. The speed could have been reduced and the motor run slower by putting the motor on resistance, but that had never been done.
Now, w.e are convinced from the above testimony that the issue as to whether appellant was negligent in failing to exercise ordinary care to provide sufficient lights, to enable the appellee to .perform his duties in safety, and the issue as to whether appellee had exercised ordinary care for his own protection and safety, and likewise the issue as to whether or not the appellee assumed the risk, were all issues for the jury. The court therefore did not err in refusing appellant’s prayer for a directed verdict in its favor.
The appellant does not contend here that there was any error in the instructions of the court in submitting the issues of negligence and contributory negligence to the jury. It only contends that there was no evidence to warrant the submission of these issues to the jury, and further contends that the court erred in granting the appellee’s prayer for instruction on assumed risk as follows:
“No. 8. If you find that it was proper for Lockhart to call upon the electrician to repair the electric equipment, in case it got out of order, and that he called upon said electrician to make such repairs, and the electrician in charge had the authority to make the repairs, without consulting the pit boss, and that the said electrician failed to make such repairs, or to have them made, within a reasonable time thereafter, and Lockhart continued to work, relying upon the promise that the same would be repaired, and that a reasonably prudent and cautious person would have done so, then the plaintiff would not be guilty of an assumed risk.”
The appellant now contends that the above instruction is fatally defective because it assumes that there was a promise to repair. While the definite article ‘ the ’ ’ before the word “promise” would justify that construction if especial emphasis were laid on the word “the,” yet it is obvious that, when the entire phraseology of the instruction is considered, and when the instruction is also considered in connection with instruction No. 7, given at the instance of the appellant, the trial court did not intend to assume that a promise of repair had been proved by the undisputed evidence, and did not intend to tell the jury to treat this as an established fact. The word ‘ ‘ the ’ ’ in connection with the other words in which the sentence is couched should be treated as a mere expletive used rather for euphony than for emphasis. If it had been omitted, or the indefinite article “a” substituted in its stead, the sentence and the sense would have been complete and would have as clearly expressed the purpose which the trial court evidently had in mind. ’Such purpose was to submit to the jury the issue as to whether or not it was proper for the appellee to call upon the electrician rather than the pit boss to repair the electric equipment and to tell them, if such was the fact, and if the electrician had the authority to make the repairs, and promised to make them, and failed to do so within a reasonable time thereafter, and if appellee continued to work relying upon such promise, then he did not assume the risk.
It occurs to us that, when the instruction is viewed in the light of the evidence, it should be read as though the subjunctive “if” with which the instruction begins should be treated as qualifying each distinct proposition embraced in the instruction, thus, in effect, telling the jury that the existence or nonexistence of such proposition as a fact was submitted for their determination. If, at the time the instruction was offered, counsel for appellant conceived that the use of the word “the” had the effect of assuming that there was a promise of repair and that it was the purpose of the court to invade the province of the jury and to treat as a fact established an issue that was open for dispute, as they now contend was the effect of the instruction and the purpose of the court, then certainly they should have -notified the trial court of their insistence by a specific objection. If counsel had done so, doubtless the court would have changed the phraseology by using the indefinite article, or by omitting the article entirely, which change would have cor rected the instruction to meet appellant’s view. This is peculiarly a case where it was the duty of appellant to lay its finger upon the specific word which it now contends deprived them of the right to submit an important disputed issue of fact to the jury. Pekin Stave Co. v. Ramey, 108 Ark. 490; Rittenhouse v. Bell, 106 Ark. 321, and cases there cited. See also Castevens v. State, 79 Ark. 455; Pettus v. Kerr, 87 Ark. 396; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187; A. L. Clark Lumber Co. v. St. Coner, 97 Ark. 358; Strickland v. Strickland, 103 Ark. 183, and numerous other authorities cited in 1 Crawford’s Digest, Appeal and Error, page 166, §94 (4).
Instruction No. 8 was predicated upon the evidence adduced on the issue of assumed risk, and correctly declared the law in submitting that issue according to numerous decisions of this court. In St. L. I. M. & S. Ry. Co. v. Holman, 90 Ark. 555-565, we said: “The effect of a promise to repair by the master, and of the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks impendent during the time specified for the repairs to be made. “Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant con- • tinues for a reasonable time. No matter how obvious the defects or how imminent the perils therefrom, the servant, pending the promise of the master to repair, does not assume the risk of the given defects by continuing in the master’s service in reliance upon his promise. For, as was said by the Supreme Court of Illinois in Swift & Co. v. O’Neill, 187 Ill. 337: ‘By the uromise of the master a new relation is created between him and the employee whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise.’ ”
In the above case we also quoted from Judge Cooley as follows: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless, or until, he makes his assurances good. Moreover, the assurances .remove all ground for the argument that the servant, by continuing the employment, engages to assume the risk.” Cooley on Torts, p. 1157; see also Markham v. Three States Lumber Co., 88 Ark. 34, and numerous authorities cited in the above cases. There are many subsequent cases to the same effect.
The doctrine of the above eases is applicable to the facts of this record. It was an issue for the jury, under the evidence, as to whether or not there was a promise to repair and whether or not the appellee continued in the service of the appellant in reliance upon such prom- . ise. The jury has resolved these issues against the appellant, and its verdict is conclusive here.
3. “While the appellant objected to the ruling of the court in refusing its prayer for a directed verdict in its favor, it did not pray for an instruction telling the jury that there was no evidence to sustain the allegation of negligence as to the defective hook, nor did it object specifically to that part of instruction No. 1 in which the court told the jury that this was one of the alleged issues of negligence to be considered by them. The evidence did not warrant the submission of this issue, but it was submitted in an instruction which also submitted the issue as to whether or not appellant was negligent in failing to. equip and maintain the motor with sufficient lights. The latter issue, as we have seen, was proper to be submitted to the jury under the evidence, and was correctly submitted. Since the appellant did not make a specific objection to the court’s instruction No. 1, on the ground that one of the issues submitted was not sustained by the evidence, and did not pray for an instruction specifically telling the jury that there was no testi mony to sustain this allegation of negligence, the appellant is not in an attitude to complain here because the court erred in failing to eliminate that issue from the consideration of the jury. The appellant made no such request. See Darden v. State, 73 Ark. 315; Bruder v. State, 110 Ark. 402-411.
The record presents no reversible error, and the judgment must therefore be affirmed. It is so ordered.
7. The court instructs you that the mere fact, if a fact, that the plaintiff, while in the employ of the defendant, made complaint to the electrician or to his helpers with reference to the lights being dim on the car, but that no complaint was made to the pit boss, who was the agent in charge of the underground operations of said mine, then, under the law, such a complaint would not relieve the plaintiff of having assumed the risk of any injuries arising from the defective or dim light.” | [
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McCuüoch, C. J.
Cypress Creek Drainage District, composed of a large area embracing certain lands in Chicot, Desha and Drew counties, was created by special statute in the year 1911 for the purpose of constructing drains to relieve the lands in the district from accumulated waters. Theretofore the surface water from a considerable portion of the area included in this district had drained into thé Mississippi River through
Cypress Creek, and, in order to protect the lands from the Mississippi River overflow in times of high water, it was desired to close up the gap in the levee by damming up the levee across the mouth of Cypress Creek, and, in order to provide other means of draining this area, this district was created under a plan to carry the surplus waters in another direction; that is to say, to gather them up and carry them through a main drainage canal to the head of another stream, called Bayou Macon, through which the waters would be carried south, parallel with the Mississippi River, into Chicot County. Plans were formed for the construction of the improvement, and assessments of benefits to the lands in the district were'made, but, in litigation which arose between the district and certain landowners, before further progress had been made in the affairs of the district, it was decided that the plans exceeded in scope the authority conferred by the statute creating the district. Cypress Creek Drainage District v. Wolfe, 109 Ark. 60. After that decision was rendered, further legislation was found necessary to give authority for the construction of the improvement which would be adequate to the demands of the situation, so the G-eneral Assembly of 1915 enacted a statute (Acts 1915, p. 297) amending the original statute creating this district by enlarging the powers with respect to the extent of the improvement to be constructed, and, among other things, it was provided in that statute (§5) “that the assessment of benefits heretofore made by said district, as the same appears upon the assessment books therefor, is just and equitable, and the same is hereby confirmed and declared to be the assessment of benefits of said district.” The improvement was then constructed in accordance with the plans, which contemplated the construction of a large ditch, or canal, beginning in the northern portion of Desha County and running thence southerly about nineteen miles to the head of Bayou Macon, thus gathering up the surface waters and waters which drained through Cypress Creek and other streams and carrying them into the head of Bayou Macon, through which they flowed, as before stated, southward.
The plaintiffs (appellants) are owners of lands included in said district which abut on Bayou Macon, and they instituted separate actions at law (fifteen in number) against the district, to recover damages alleged to have been caused by the flooding of portions of their lands which abut on Bayou Macon. It was alleged in the complaint, in each of the cases, that, by the construction of the main canal and other ditches and drains, the defendant district had diverted the waters of other creeks and streams, which were natural watercourses and carried large volumes of water, from their usual and ordinary courses into Bayou Macon, causing that stream to “overflow its banks and spread out over large quantities of plaintiff’s land, overflowing said land belonging to the plaintiff which was never overflowed before, and overflowing other lands belonging to plaintiff much quicker than was ever done before said ditch was constructed, and causing the same to remain inundated for a much longer period of time, resulting in permanent injury to the land of plaintiff, which injury became apparent after the construction of said ditch.”
There are also allegations in each of the complaints, which are supported by the evidence, that the volume of water passing through Bayou Macon was greatly increased by reason of the construction of the drainage canal which emptied into the head of that stream, and that, prior to the construction of the canal, Bayou Macon carried only a small volume of water; that on each side of the bayou the banks were sloping, thus forming a low-lying area, or terrain, between the first bank or water’s edge and the second bank, or, as expressed by some of the witnesses, the “ultimate bank,” and the allegations as to overflowing of the lands of the abutting 'owners relate to portions of the land which thus lie between the first and second banks.
The evidence shows that, prior to the construction of the drainage canal in question, these lands were subject to cultivation, and were in fact cultivated from year to year, and rarely ever overflowed, but that, since the construction of the canal and the increased volume of water carried through the bayou, the lowlands between the two banks overflowed with such frequency as to prevent the cultivation of crops.
In each of the cases an answer was filed, tendering issues hereinafter discussed, and all of the cases were consolidated and tried together before the court sitting as a jury. After hearing the evidence, the court found the facts against the plaintiffs, and decided against them. Judgment was rendered accordingly, and appeals have been prosecuted to this court by all of the plaintiffs.
• Counsel for the district present two grounds upon which liability now asserted should be denied and the judgments affirmed.
1. The anticipated benefits to the whole of the tracts of land owned by each of the. plaintiffs, including the lands now claimed as those damaged by the overflow, were assessed in accordance with the original statute creating the district, and, as has already been referred to, there was a section of the statute enacted in 1915 (supra) ratifying and confirming those assessments. This constituted a legislative determination of the correctness and validity of those assessments, which will not be disturbed in a judicial review unless shown to be arbitrary and unfounded. Sudberry v. Graves, 83 Ark. 344; Salmon v. Board of Directors, 100 Ark. 369; Alcorn v. Bliss-Cook Oak Co., 133 Ark. 118; Gibson v. Spikes, 143 Ark. 270. There is no attempt in the present litigation to attack the correctness of those assessments of benefits, but the contention is that, irrespective of the assessment of benefits, the plaintiffs are entitled to recover for damages to their lands, or, rather, to recover for the value of the lands, which they 'Contend has in effect been taken in the operation of the improvement. That contention will be discussed later.
The same section in the act of 1915 (supra) which confirmed the assessment of benefits' contains a further provision as follows:
“All persons claiming that their lands would not be benefited by the making of the improvement contemplated by this act are hereby required to apply to the proper court of chancery, within sixty days after the passage of this act, to enjoin the enforcement of said assessment; and any person failing so to apply to the court of chancery within said sixty days shall be forever barred from contesting the assessment of benefits aforesaid.”
The plaintiffs and other landowners in the district instituted an action in the chancery court of Desha County within sixty days after the passage of the act of 1915 (supra), attacking the correctness of the assessments, and a final decree was rendered in that cause substantially reducing the assessments of benefits on all of the lands of the plaintiffs. The contention of the plaintiffs is that the assessments' of benefits and the former suit in the chancery court relating thereto included only benefits to the lands in the district and had no reference to injury to the lands in the operation of the drainage project, which, in effect, constituted taking of property, and that, notwithstanding the finality of the assessment of benefits as adjudicated in the chancery court, the plaintiffs still have a right to maintain an action at law to recover compensation for the injury to their lands which, in effect, constituted a taking. The contention of the district is, on the contrary, that the lands of the plaintiffs were not actually taken and used in the construction and operation of the drainage project ; that there was only an injury to the land by reason of the construction of the improvement, which was taken into account in the assessment of benefits, the one being balanced off against' the other, and that the conclusive effect which must be given to the assessment of benefits and the litigation which finally adjudicated the matter constitute a bar to the right of plaintiffs to recover damages.
The Constitution of this State provides that “private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor.” Art. 2, § 22. The constitutions of some of the States differ from ours in that the guaranty of compensation extends only to property taken for- public use, without expressly providing for compensation for property damaged. Such is the form of the provision in article 5 of the Constitution of the United States. In some of the decisions on this subject it has been held that constitutional provisions guaranteeing compensation merely for the taking of property only include damages for injuries resulting from an invasion or destruction of the property, and not merely an incidental injury; but decisions of other courts, including the Supreme Court of the United States (United States v. Lynch, 188 U. S. 446), hold that the constitutional guaranty relates to compensation for any injury done to property for public use. Of course, our Constitution involves no such distinction, for it expressly guarantees that compensation shall be paid for property either “taken,' appropriated or damaged for public use.” ' It is undeniable that the kind of injury which the plaintiffs claim they sustained to their property, and which the testimony tends to show, is protected by the constitutional guaranty. There is no controversy here over that question, but the point involved relates to the manner in which such compensation must be ascertained, adjusted and paid. .
The Supreme Court of the United States, in the case cited above, and upon which learned counsel for plaintiffs rely with so much confidence, holds that the injuries to the property, or its destruction for public use, constitute a taking within the constitutional guaranty, but this decision has no relation to the question how the compensation may be paid, nor to the question, more directly involved in the present discussion, whether or not the incidental damage to the property in the construction of the improvement, regardless of its extent, may or may not be balanced off against the benefits which are to be derived. The law on that particular subject has, we think, been fully settled by the decision of this court in Gregg v. Sanders, 149 Ark. 15. In that case a levee district was formed for' the purpose of constructing a levee along White River, and the plaintiff in the case was the owner of a tract of land abutting on the river, a portion of which was actually taken and used in the construction of the levee. In a suit by the plaintiff to recover damages for the land so taken it was contended, on behalf of the district, that such damage should be balanced off and deducted from the appraised benefits to accrue to the remainder of plaintiff’s tract of land. We held against that contention, and in doing só we drew a distinction between lands actually taken and used and. those which were merely damaged incidentally in the construction or operation of the improvement. In disposing of the question we said:
“The theory upon which rests the proceedings for the construction of local improvements by the imposition of special assessments on contiguous property is that the improvement is public in.its nature to the extent that the right of eminent domain may be authorized, but it is local to the extent that special benefits accrue to the adjoining property. The improvement is paid for out of special assessments based on such benefits, and when property is taken for use in the construction of the improvement, full compensation must be awarded in order to satisfy the requirements of the Constitution, without deduction of the benefits which are to accrue to the owner on the remainder of his property. Damages to the property not taken may, however, be balanced off against the benefits which accrue, for damages must necessarily be taken into account in the estimate of benefits.”
Discussing the question further in the same case, we said:
“At any rate, we are convinced that the true rule is that, whether the taxes levied amount to the appraised benefits or not, there can be no deduction of any part of the benefits from the compensation to be allowed to a property owner for that portion of his property which is taken and used in the construction of the improvement, for the reason that he pays for his benefits in taxes, the same as other property owners, and it would destroy the rule of equality to require him to contribute to the common use any part of his property without compensation.”
Counsel for appellants contend that the undisputed proof shows that the value of the property was totally destroyed, so that it constituted a taking of the property within the meaning of the law, and that the case of Gregg v. Sanders, supra, supports their right to recover damages in the present cases. In the first place, it may be said that there is a conflict in the testimony, and a finding of fact against them by the trial court, which is binding upon this court on appeal. The trial court found from the evidence that the damage to the lands of the plaintiffs was actually considered, by the assessors in making the assessment of benefits. In addition to that, we are of the opinion that, according to the undisputed evidence,' the property was not actually taken and used by the district in the operation of the project so as to separate it from the other lands of the plaintiffs and prevent the damage being balanced off against the benefits. The only portions of the land taken for the purpose of constructing the improvement were the lands covered by the drainage ditch. The waters were gathered up and thrown into Bayou Macon, but the incidental injury to lands abutting on Bayou Macon did not constitute a taking of those lands, though it resulted in injury for which compensation must be made within the meaning of the Constitution. The lands were frequently overflowed, but they remain the property of the plaintiffs for the enjoyment of such limited use to which they were susceptible in the damaged condition. Suffering the damages thus inflicted did not 'constitute a contribution of private property to public use in the sense that that portion of the land was separated from the remainder so as to prevent the balancing off of said damage against benefits to the whole of the lands. We think that the facts of the case bring it within the rule announced in Gregg v. Sanders, supra, and that the assessment of benefits, including the estimate of damages, was conclusive of the rights of plaintiffs to recover compensation. In other words, the finality of the assessment raises a conclusive presumption that they had been compensated by having the damages balanced off against the assessments of benefits.
2. It is equally plain that the plaintiffs, except possibly plaintiff R. H. Wolfe, are barred from recovery of damages on still another ground, now stated. The act of 1915 (supra) contains the following ' provision (§ 6) :
“Said board shall obtain rights-of-way for its drains, ditches, canals, levees and dams without cost to the district, wherever possible, and it is empowered to make all necessary contracts for the acquisition of such rights-of-way. They shall have power to adjust and pay all damages that may accrue by reason of such drains, ditches, canals, levees and dams. Any property owner may accept the damages awarded to him by the board, or acquiesce in its failure to award damages in his favor, and shall be presumed to have acquiesced in the action of the board unless he gives said board notice in writing of his objection to the award made him, or the action of the board in failing to award him damages, within thirty days after the action of the board thereon.”
This provision relates to the value of property actually taken and used and also any property which may necessarily be destroyed in the construction of the improvement, and if the injury to plaintiffs’ lands constitutes what they contend it to be, it falls squarely within this provision for the adjustment and payment of damages in the manner specified. The same section provides that, as soon as the board has determined upon the system of drainage and the award of damages to be made, it shall publish a notice, and the form of that notice is set forth in the statute. Another provision of the same section is as follows:
“Any one who shall appear, and shall feel aggrieved at the action of the board on his complaint, shall, within five days after said meeting, file written notice with the board that he demands an assessment of his damages by a jury, and in such instances the board shall institute in the circuit court, in the county in which the lands lie, an action to condemn the lands that must be taken or damaged in the making of any proposed drain, ditch, canal, levee or dam.”
It appears from the record in the present case that such an ascertainment of damages was made, or at least that the board formally ascertained that there were no damages to lands not actually 'taken in the construction of the canal, and that notice was duly published in accordance with the terms of the statute. Plaintiffs-did not respond to the notice nor pursue the remedy pointed out in the statute. There is some evidence in the record to the effect that plaintiff, R. H. Wolfe, presented a claim for damages to the commissioners, but as he too must be denied further relief on the first ground herein •stated, it is unnecessary to decide whether his claim constituted a demand for trial by jury within the-provisions of the statute. ' , ■
In the case of Dickerson v. Tri-County Drainage District, 138 Ark. 471, there was involved the procedure under a statute identical with the one now under consid eration, and we held that the statute was valid, and that (quoting from the syllabus), “where the Legislature provides a method for ascertainment of compensation to be allowed owners of land taken under eminent domain for construction of drainage ditches, the constitutional guaranties are complied with.” In that case it was alleged1 that the plaintiff’s land was actually taken and used in the construction of the drainage ditch, and we held that the failure to appear and demand the right of trial by jury for the ascertainment of the amount of compensation for the property taken was conclusive of the right to later maintain an action for the recovery of damages. The decision in that case is conclusive of the present one, for the statute is the same, and the facts were less favorable to the plaintiff than those disclosed in the present case.
Counsel for appellants rely on Road District v. Hall, 140 Ark. 241, as disclosing the distinction which exists in the present case from our decision in the Dickerson case, supra. The distinction found in the Hall case does not exist in the present case, for in that case there was a change of plans, subsequent to the assessment of benefits, whereby the road to be improved was widened, and the decision involved the question of recovery of compensation for property taken, subsequent to the assessment of benefits, for the widening of the road. There is no such distinction in the present case, for there has been no change in the plans and no additional taking or damage to the property further than the recurring injuries resulting from the frequent overflows. This damage was one which was in contemplation at the time the plans were formed to gather up the waters and east them into Bayou Macon, and this, according to the findings of the court and the evidence adduced in the case, was taken into consideration by the board of assessors in assessing the benefits. Whether such damages were, in fact, taken into consideration, is immaterial, for they should have been taken into consideration, and the failure of plaintiffs to complain in the manner provided in the statute bars them from the subsequent assertion of any claim for damages.
Our conclusion on this point is, as on the other one already stated, that the plaintiffs are not entitled to recover damages, and that the judgment of the circuit court was correct. The judgment is therefore affirmed.
Wood, J., disqualified. | [
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McCulloch, C. J.
Appellee instituted' this action in the chancery court of Columbia County to recover the amount of certain promissory notes executed by appellants, and to foreclose a mortgage on land given as security for said notes. Appellants answered, and filed a cross-complaint setting forth claim for damages in an amount sufficient to extinguish appellee’s debt if the counter-claim be sustained. Final decree was rendered by the court on September 22, 1922, in favor of appellee against appellants for the recovery of said debt, and for the foreclosure of the mortgage, and dismissing the cross-complaint of appellants for want of equity. There was a sale of the land by the court’s commissioner, and on December 21, 1922, the sale came on for confirmation, and the court overruled the exceptions of appellants and confirmed the sale.
The appeal was not perfected by the filing of the transcript in this court until March 29, 1923, which was too late to bring up for review the original decree of Sentember 22, 1922. On motion of appellee we have heretofore dismissed the appeal as to the first decree, leaving only the appeal from the hist decree, which confirmed the sale.
The original decree foreclosing the mortgage was final and appealable, and the later decree confirming the sale was also final, from which an appeal could be prosecuted. Cooper v. Ryan, 73 Ark. 37.
Appellants have failed to abstract the record with respect to the proceedings before the court when the sale came up for confirmation, therefore we have nothing before us to decide as to that feature of the record. The abstract shows that there were exceptions to the confirmation, but the grounds of the exceptions are not shown, nor is there an argument made in support of them.
The decree confirming the sale is therefore affirmed. | [
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Wood, J.
This action was instituted by the appellee against the appellant to recover the sum of $1,026.66, damages alleged to have been incurred by.the appellee on account of the loss of sugar out of a car shipped from Eaceland, La., to Fort Smith, Ark., under a bill of lading dated April 7, 1920, issued by Morgan’s Louisiana & Texas Eailroad & Steamship Company in Louisiana. The non-agency station was called Mathews. It was five miles from the agency station of Eaceland. The sugar was routed, as shown by the bill of lading,- over the lines of the appellant from its connection with the Southern Pacific lines to Fort Smith, its destination on appellant’s line. The appellant had no track of its own at Fort Smith to the warehouse of the appellee, where the appellee wished the ear delivered. The St. Louis-San Francisco Eailroad Company had a, track connecting with the track of the appellant, and, by a switching arrangement between them, the appellant delivered the car to the Frisco to be delivered to the warehouse of the consignee. The Frisco did not handle the car under the bill of lading and did not share in the distribution of the freight charges. The appellant paid the Frisco the sum of $6.30, its switching fee, for the service in switching 'the car to the warehouse of the appellee. This switching fee charg-e was covered by the tariff on file with the Interstate Commerce Commission. The bill of lading*was surrendered by the appellee to the appellant, and the appellant delivered the car to the appellee through the Frisco railroad, as above indicated.
The loading of the car at Raceland, Louisiana, was done by the shipper’s general superintendent, who had been in its employ for thirty-six years. He checked and counted the sacks. There were 500 sacks, weighing 100 lb. each. After counting and checking the sacks, he applied the seals to the car. The bill of lading shows that there was a total weight of sugar, including the sacks, of 50,250 lh. The car arrived at Fort Smith on April 19, and on that day was delivered by the appellant to the Frisco Railroad in good order, with the seals unbroken. The appellant took a receipt from the Frisco Railroad showing that the car was in good order when delivered to the latter company. When the car was delivered by the latter company to the appellee’s warehouse the original seals had been broken, and had been replaced by a Frisco seal. When the car was opened by appellee’s receiving clerk it was discovered that a large number of sacks of sugar had been removed from the center of the car. Upon checking and counting the sacks it was found that there were 60 sacks short of the number included in the-shipper’s invoice and in the hill of lading. It was also found that the other sacks had been mutilated and 106 lb. of sugar taken therefrom. The value of the sugar lost was $992.22.
. The cause was sent to the jury upon substantially the above facts, and it returned a verdict in favor of the appellee against the appellant for the above sum. Judgment was entered accordingly, from which is this appeal.
1. The action by the appellee against the appellant was.predicated upon the theory that the appellant was liable, under the bill of lading, as the delivering carrier. The appellant contends that it was neither the initial nor the delivering carrier, and that the undisputed testimony showed that the loss did not occur on its lines, and that therefore it was not liable.
The appellee, on the other hand, contends that the appellant, under the bill of lading, was the delivering carrier, and that the Frisco railroad, in delivering the car to appellee’s warehouse in Fort Smith, was merely acting as the agent of the appellant.
The appellant prayed the court to instruct the jury in accordance with its contention, which the court refused, but, over the objections of appellant, gave prayers according to the appellee’s contention. The instructions of the court were correct.
This was an interstate commerce shipment, and the well settled rule concerning such shipments is that “in the absence of statute, or special contract,” each connecting carrier on a through route is bound only to safely carry over its own line and' safelv deliver to the next connecting carrier, and the liability of the connecting carrier for the safety of property delivered to it for transportation commences when it is received, and is discharged by its deliverv to and acceptance bv a succeeding carrier, or its authorized agent.” Oregon-Washington Rd. & Nav. Co. v. McGinn, 258 U. S. 409-413. and other cases cited in the opinion.
This doctrine is not applicable to the facts of this record, for the reason that the carload of sugar was shipped under a special contract under which the appellant was the delivering carrier. The bill of lading, evidencing the special contract under which the shipment in controversy was made, shows that the appellant was the last connecting carrier operating under that bill of lading. This was a through bill of lading from the nonagencv station at Mathews, La., to Fort Smith, Arkansas, in which the appellant undertook to make the delivery to the consignee at Fort Smith. The Frisco Bailroad Company was not named in this bill of lading ás a connecting carrier, and the services it per formed in the premises, under its switching arrangements with the appellant, were not as a connecting carrier, but purely and simply at the instance, and as the agent, of appellant. The terms of the bill of lading control here. Under those terms the appellant is undoubtedly the terminal carrier and bound itself, under the terms of the contract, to make the delivery, and it cannot shift its liability upon the shoulders of some other carrier or agency which was not in the contemplation of the parties to the contract. The Frisco Railroad would not be any more liable under this contract than would some transfer company in the city of Fort Smith whom the appellant had employed to deliver the sugar to appellee’s warehouse after the car arrived at Fort Smith, its destination. In other words, if the appellee had sued the Frisco Railroad for its loss, instead of the appellant, the Frisco Railroad Company would not be liable to the appellee, for the simple reason that, under the contract of shipment, the bill of lading, the Frisco Railroad Company had not contracted with the appellee to deliver its carload of sugar to appellee’s warehouse in Fort Smith. This was a service which, under the bill of lading, the appellant had contracted with the appellee to perform, and it undertook the performance thereof through its agent, the Frisco Railroad Company. The following cases sustain the above conclusion: Western Atlantic Ry. Co. v. Exposition Cotton Mills (Ga.), 2 L. R. A. 102; 7 S. E. 916; Sapiro v. Boston & Maine Ry. Co., 213 Mass. 70, 99 N. E. 459; St. Louis S. W. Ry. Co. v. A. A. Jackson & Co., 118 S. W. 853; Atlanta National Bank v. So. Ry. Co., 106 Fed. 623.
Learned counsel for appellant contend that these were cases from State courts, and that they had no application to an interstate shipment of freight, which is controlled by the interstate commerce act, and that, inasmuch as the published tariff of the interstate commerce act provided the rate which the Frisco Railroad should receive for removing cars from the connection of the appellant with the Missouri Pacific Railway Company in Fort Smith, the Frisco Company and not the appellant was the delivering carrier. It occurs to us that this contention of the appellant is directly in the teeth of the contract under which the carload of sugar in controversy was shipped. The Frisco Railroad, as already stated, is not named in the bill of lading as a connecting or delivering carrier; but, on the contrary, the appellant is expressly named as the delivering carrier; its line reaches to the city of Fort Smith, and it expressly undertakes to deliver this sugar, in good order, at its destination. It is bound by the terms of its contract. The interstate commerce act and the power of the Interstate 'Commerce Commission thereunder to fix a schedule of rates for the Frisco Railway Company and the appellant, as common carriers, has no application to the facts of this record. While this was an interstate shipment, it is governed entirely by the contract under which the shipment was made, and there is nothing in this contract contrary to the provisions of the interstate commerce act or the transportation act. There is nothing in those acts, as we view them, making it unlawful for the appellant to undertake, as the last or terminal carrier, in a through interstate commerce shipment, to deliver goods, which it has received, from connecting carriers, to consignees at their destination.
True, the above cases, save one, were decisions of State courts, and learned counsel for appellant contend that, inasmuch as this was an interstate commerce shipment, they are not authority. But all of the above cases involved interstate commerce shipments, and the facts are sufficiently similar to make them applicable here. They are predicated upon the doctrine that the contracts of shipments evidenced by the bills of lading are controlling. That is a sound rule, and is approved in the case of Georgia F. A. Ry. Co. v. Blish Milling Co., 240 U. S. 190.
2. The appellant contends that the court erred in not directing a verdict in its favor. It could serve no useful purpose to set out and discuss in detail the testimony in the record. Suffice it to say we have examined it, and are convinced that it was a question for the jury to determine whether there was the loss of the sugar in controversy, and, if so, whether such loss occurred before the car was delivered to the appellant, or after appellant had received the same.
3. Appellant assigns as error the ruling of the court in permitting witness Poster, who was the chief yard clerk for the Prisco Bailway in Fort Smith at the time of the alleged loss of sugar in controversy, to testify that, along about the month of April, 1920, there was a oar of sugar which sat on the Missouri Pacific connection for a day or two with the door open. Witness was not sure that it was sugar, but that was his impression. He knew that it was a high-class commodity. He gave the clerk who worked with him instructions to seal the' car. it was the only car reported to witness about that time in that condition. The car had been switched to the Frisco Bailway from the Missouri Pacific.
Another witness testified, to which appellant made ho objection, to the effect that he was employed in the Frisco yards in April, 1920. It was his duty to spot all the cars delivered to the wholesale places and to do the team track work. He would eret the cars from the Missouri Pacific or the Kansas City Southern connections. He had a' record of a car delivered to the BeynoldsDavis Grocery Company, loaded with sugar, on the 20th or about the 20th of April, 1920. About that date he saw a car standing down on the Missouri Pacific connection — a car of sugar — with the door on the east side open. He never heard or knew of any other car of sugar on that connection in that condition about or anywhere near that time.
F. P. Lytton, another witness, testified, without objection, that he was a switchman employed by the Frisco Railway in 1920, and that his duties carried him all over the Frisco yards, including the connection between the Frisco and the Missouri Pacific. He remembered about or something near the 20th of April, 1920, having seen a car of sugar standing on the Missouri Pacific connection with the door open; that was the only ear of sugar he saw about that time in that condition.
The testimony of the last two witnesses was but cumulative of the testimony of Foster. All of this testimony was relevant as a circumstance tending to throw light on the issue as to whether or not sugar had been stolen from the car in controversy while it was in the possession of the appellant or its agent. Peterson v. Graham, 25 Ark. 380; Tucker v. West, 29 Ark. 386; see also 2 Jones on Evidence, pgs. 154-195.
4. The appellant offered to introduce certain letters for the purpose of contradicting the testimony of one of the witnesses for the appellee. The court refused to permit these letters in evidence. It would unduly extend this opinion, and could serve no useful purpose, to set out these letters and discuss this assignment of error in detail. Suffice it to say we have examined it and find no error in the ruling of the court in this particular. This disposes of all assignments'of error argued in appellant’s brief. No reversible error appearing in the rulings of the trial court, its judgment is affirmed. | [
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HART, J.,
(after stating- tbe facts). In tbe case of Meehan v. Maxwell, 115 Ark. 594, tbe court held: “Where tbe petition to the city council asking for tbe formation of an improvement district provided that tbe district was for tbe ‘purpose of building and laying concrete sidewalks on all public streets of tbe entire town, ’ and tbe ordinance provided for tbe ‘laying and building concrete sidewalks on either or both sides of all public streets within tbe town,’ tbe ordinance will be held to change, or depart from, tbe terms of tbe petition, and tbe ordinance was therefore invalid.” Tbis case controls here. In tbe first place it will be noted that there is a variance between the petition and tbe ordinance. Tbe ordinance provides that tbe sidewalks and streets within tbe proposed district be improved. Tbe petition provides that the sidewalks where now needed and tbe streets be improved. Tbis leaves it to tbe discretion of tbe commissioners to determine tbe sidewalks they might cause to be improved. Tbis could not be lawfully done under tbe decision just referred to. It is necessary that there should be no uncertainty about tbe improvement which it is proposed to make. Tbe reason for tbe rule was stated at length in Cox v. Road Improvement District No. 8 of Lonoke County, 118 Ark. 119, and nothing can be added to what was there said. In that case the court said:
‘ ‘ The details and plans of the improvement may he worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited to carrying out the purpose of the petition. It is not contemplated that upon and after the establishment of the district there shall be any doubt about the improvement to be constructed. Otherwise, property owners might sign the petition under the apprehension that a certain road or street was to be improved, only to learn after the district had been established, and the plans had been approved, that they were mistaken or had been deceived. One of the purposes of requiring a petition in writing is to prevent such controversies. ’ ’
The question concerning the organization of this improvement district Las been before us twice before. Boaz v. Coates, 114 Ark. 23, and Gibson v. Hoxie, 110 Ark. 544. We can only decide cases however on the record made in the court below. In neither of these cases was the question now raised referred to or made an issue in the case.
In the case of Gibson v. The Town of Hoxie, it was claimed that the ordinance establishing the district was not properly published. A curative act was passed to cure this defect. The court held that the case fell within the principle that it is within the power of the Legislature to cure all omissions in proceedings as to matters which could have been dispensed with in the beginning.
In the case of Boaz v. Coates, the court held that where the proceedings for the laying of sidewalks by an improvement district in a city were regular up to the publication of the ordinance levying the assessment, the fact that the ordinance was invalid, will not prevent the city council from passing a new ordinance and publishing it in accordance with the laws then in force. The defect in the organization of the district as shown by the record on this appeal could not be cured by any ordinance passed for that purpose.
As stated above there can be no uncertainty about the proposed improvement district and our cases treat the petition as jurisdictional. It can not be left to the judgment of tbe commissioners to decide what sidewalks should be laid.
It follows that the judgment of the circuit court was correct and must be affirmed. | [
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David M. Glover, Judge.
Appellant, Christopher Jowers, and appellee, Jamie Jowers, were divorced on August 25, 2004. As part of their settlement agreement, the parties agreed that appellant would have custody of their minor child, a son, whose date of birth was January 14, 2001. They also agreed upon a visitation schedule for appellee, which allowed her to keep the child during the day, Monday through Friday. Finally, they agreed upon the amount of monthly child support that appellee would pay, which took into account the fact that appellee was providing daycare for the child. The agreement was approved by the court and incorporated into the divorce decree. On September 23, 2004, approximately one month after the divorce decree was entered, appellant filed a change of address notice with the circuit-court clerk. On September 26 or 27, 2004, appellant took the child and moved to Brownsville, Texas, but he did not notify appellee of the move until after he had relocated. On September 29, 2004, appellee filed a petition for contempt and for modification of custody. Appellant counterclaimed for modification of visitation and support. Following a hearing, the trial court found appellant in contempt and ordered him to pay $1000 in attorney’s fees. In addition, the trial court found that there had been a material change of circumstances and therefore changed custody of the child from appellant to appellee; the court also modified visitation, and set support at $70 per week.
Appellant raises two points of appeal, challenging the trial court’s decision with respect to contempt and with respect to the change of custody. We affirm the trial court’s finding of contempt. However, we conclude that the trial court erred in deciding the issue of custody without also addressing the relocation factors set forth in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). Therefore, we affirm in part and reverse and remand in part for the trial court to determine the custody issue in conjunction with the Hollandsworth relocation factors.
At the hearing in this case, appellee testified that she and appellant divorced on August 25, 2004, and that they had one son. She stated that according to her custody and visitation agreement with appellant, she was to have visitation with her son Monday through Friday of each week from 6 a.m. until 4:30 p.m., plus every other weekend and alternate holidays. She explained that she would not have allowed appellant to have custody of the child if she were not going to be able to see him virtually every day. She stated that the high level of visitation for her was at the heart of their agreement.
Appellee testified that appellant had lived in Arkansas for about two years before he moved to Texas; that he did not notify her that he was moving to Texas; that she found out he had moved when he did not show up with the child one Monday morning; that she called his place of employment only to find out that he no longer worked there; and that she went to his house and all of his “stuff’ was gone. She stated that as a result of the move, she had not been able to carry on her daily visitation with the child and that it had also been difficult to speak with him on the telephone. She stated that it is about a twelve-hour drive between her house and appellant’s house in Texas.
Appellee acknowledged that appellant called her on Thursday of the week she learned that he had moved and that she was able to meet him in Clinton, Oklahoma, to pick up the child and keep him for a week. She also testified that since that time, she has had the child every other weekend and that she and appellant meet in Oklahoma to make the exchange.
Appellee explained that she is a trim carpenter and that she now works from 8 a.m. until 4 p.m. She stated that prior to getting the job as a trim carpenter, she was basically providing daycare for her son. She said that she would not be able to do that now because of her job. She explained that her mother has a daycare in her home; that she lives with her mother; and that the child would stay with her mom if she were given custody.
Appellee testified that appellant was working late hours with his farm job in Texas and that he did not spend very much time with their son. She stated that if she had custody, she would only be gone from 8 a.m. to 4 p.m.
Appellant testified that he has lived in Brownsville, Texas, since the first of October with his parents and son. He explained that he moved to Texas because “we were getting slow at my job,” Northwest Sheetmetal. He acknowledged that he told his employer a month in advance that he had two or three job openings in Texas. He said that he works a lot of hours and that he makes more money than he formerly did. He explained that he made about $250 or $280 a week at the sheetmetal job in Arkansas and that he made anywhere between $300 and $500 in Texas. He testified that he did not realize there was anything to stop him from moving to Texas. He said that all of his family were in Texas and that he “just wanted basically to see what was better for my son.” He said that he did not know that he should have filed a petition asking the court to address the issue of relocation. He explained that he notified the court in writing of his change of address on September 23, 2004.
Appellant described the manner in which he and appellee had handled visitation since his move to Texas. He stated that appellee had visited with the child five different weekends and that they meet halfway for the exchange.
Appellant explained that his son stays at a daycare while he works and that since October 17, the child has been in day care from 8 a.m. until 5 p.m. He said that there “might be a day I don’t see him because of working late.” He explained that his hours are usually from 8:00 or 9:00 in the morning until 10:00 or 11:00 at night; that the hours change with the seasons; and that his normal work day would be from 8:00 a.m. until 8:00 p.m. He explained that the child’s grandparents pick him up and keep him until appellant gets home.
Appellant testified that he did not move to Texas to prohibit visitation between appellee and their child; that he moved to get a better job and to make more money; that his family was “down there”; that after the divorce, the only family he had in Arkansas was his grandpa; and that he had lived in Texas most of his life. He stated that “it was not [his] intention all along” to get custody of the child and move to Texas. He acknowledged that the divorce decree was file-marked August 25, 2004; that the change of address form he filed with the court was file-marked September 23, 2004; that he moved to Texas on September 26 or 27, 2004; and that he informed his employer “a month ahead of time” that it “wasn’t for sure” but “it was possible” he would be moving to Texas. He also acknowledged that child custody and visitation were at the heart of his agreement with appellee. He explained that Brownsville, Texas, is a little over 650 miles from where appellee lives, and he testified, as did appellant, that the drive is about twelve hours.
Appellant stated that when he works until 11 p.m., either his aunt or grandparents pick up the child and take him to their house and that if his mom is not working that day, she picks up the child and takes him to her house.
Upon examination by the trial court, appellant testified that when he worked in Arkansas, his hours were from 7:00 or 7:30 a.m. until 4:00 p.m., Monday thru Friday; that he was not fired from that job; that he gave a month’s notice before moving to Texas; that in Texas the previous week he had worked from 8:00 or 9:00 in the morning until 10:00 or 12:00 at night; that his work schedule fluctuates; and that he could work those hours seven days a week.
Appellant further explained that during harvest, which lasts a month and was going on at the time of the hearing, he works a lot of hours, but that before harvest he usually works an eight- or nine-hour day. He stated that planting season lasts about two months, depending upon the amount of acreage. He explained that to get $500 a week, he might work ten to twelve hours a day in a four-day week; and that a $300 week would involve eight to nine hours per day.
The court then ruled from the bench, expressing the belief that appellant “duped” appellee into going along with the custody plan, when he had no intention of ever complying with that agreement. The court found appellant to be in “willful contempt of court.” The court noted that it had not been asked to set aside the decree on the basis of fraud,
although it looks to me like that is exactly what happened. He made a deal he never intended to keep. He induced Mrs.Jowers to enter into this agreement with him on the promise of letting her see this child everyday. That was a lie at the time. I firmly believe from his testimony it was a He. He never intended to go along with it.
The court also noted that appellant was now “spending maybe as many as ten hours a day, seven days a week away from the child during the busy season and at best spends more time away from the child than Mrs. Jowers would have to spend away from the child were the child permitted to live here.” Finally, the court ruled:
Basically, I guess what I am saying is that I do find a substantial change of circumstances, and I am changing custody of this child. Mrs.Jowers is going to have custody. Mr.Jowers wül have visitation of six weeks in the summer, one week at Christmas, and I am going to give him one week every month that he can come to Arkansas and pick the child up and bring the child back. He can come up on the second Saturday and bring the child back the Sunday, a week from that Saturday of each month, but that will not supersede holidays. Holidays take precedence.
You are in contempt of court, Mr. Jowers. You are lucky you are not going to jail. You can pay $1,000 attorney’s fees. That is your sanction, and frankly I am not finding Mrs.Jowers in contempt for not paying the child support because she has had to spend all the money to get to see her child since he uprooted and took the child to Texas.
The Order of Modification provided in pertinent part:
3. That the Plaintiff is found to have wiHfully violated the previous Orders of this Court in not allowing the Defendant her Court ordered visitation. The Plaintiff is therefore found in Contempt of Court.
4. That the Court finds that there has been a material change in circumstances that warrants a change of custody. That the custody of the parties’ minor child, Christopher James Jowers, born January 14, 2001 is hereby changed to the Defendant, Jamie Sue Jowers, subject to the reasonable visitation rights of the Plaintiff. The Court further finds that it is in the best interest of Christopher James Jowers, that the Defendant be granted sole care, custody and control over him.
In cases involving child custody, we review the case de novo, but we will not reverse a trial judge’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Aswell v. Aswell, 88 Ark. App. 115, 195 S.W.3d 365 (2004). Specific to an appeal of a trial court’s finding of civil contempt, we will not reverse that finding unless it is against the preponderance of the evidence. Id. Although there is evidence to support it, a finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Id.
For his first point of appeal, appellant contends that the trial court erred in finding him in contempt of court. We disagree.
Following the hearing, the trial court found that appellant had willfully violated the court’s previous orders by not allowing appellee her court-ordered visitation, and therefore found that appellant was in contempt of court. Disobedience of any valid order of a court having jurisdiction to enter it may constitute contempt, punishment for which is an inherent power of the court. Aswell v. Aswell, supra; Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).
Here, the trial court stated its clear belief that appellant “made a deal he never intended to keep,” that he “induced Mrs. Jowers to enter into this agreement with him on the promise of letting her see this child everyday,” that “it was a lie at the time,” and that he “never intended to go along with it.” We find no clear error in the trial court’s findings on this point that appellant’s conduct intentionally frustrated the ordered visitation, thereby constituting contempt.
For his remaining point of appeal, appellant contends that the trial court erred in ordering a change of custody. We agree.
The standard of appellate review governing custody modifications is well settled. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004). In child-custody cases, the primary consideration is the welfare and best interests of the child involved; all other considerations are secondary. Id. Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Id. In cases involving child custody and related matters, we review the case de novo, but we will not reverse a trial judge’s findings in this regard unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Id.
In seeking a change of custody, appellee had the burden of proof. The party seeking modification of the child-custody order has the burden of showing a material change in circumstances. Calhoun v. Calhoun, 84 Ark. App. 158, 138 S.W.3d 689 (2003). In order for a trial court to change the custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and, then, determine that a change in custody is in the best interest of the child. Id.
Moreover, in Hollandsworth v. Knyzewski, supra, our supreme court held that relocation alone is not a material change in circumstances and announced that there is a presumption in favor of relocation for custodial parents having primary custody. Our supreme court made it clear in Hollandsworth that the custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating. Rather, the noncustodial parent has the burden to rebut the relocation presumption. The Hollandsworth court explained that the polestar in making a relocation determination is the best interests of the child, and that the court should take into consideration the following factors: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
Here, the Hollandsworth factors were not addressed by the trial court, presumably because of the manner in which this case arose. That is, appellant had already moved to Texas, and the case was heard on appellee’s motion to change custody and to find appellant in contempt of court, and on appellant’s counter-motion for modification of visitation and support. However, in light of the Hollandsworth presumption in favor of relocation and its holding that relocation alone is not a material change of circumstances, we find that the trial court erred in deciding the custody issue without also addressing the factors set forth in Hollandsworth. We therefore reverse and remand the custody portion of the trial court’s decision in order for the court to decide the custody issue in conjunction with the Hollandsworth relocation factors.
Affirmed in part; reversed and remanded in part.
Pittman, C.J., and Gladwin, J., agree. | [
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Minor. W. Millwee, Associate Justice.
This appeal is from a decree sustaining the motion of appellee, Mary Champ, to dismiss a divorce suit filed against her in the Pulaski Chancery Court by appellant, Bichard D. Champ, on the ground that he did not qualify as a legal resident of this state for the required time preceding the institution of the suit.
The parties were reared in Ohio where they resided at the time of their marriage in 1948 and they have three children. Appellant has been a member of the U. S. Air Force since 1944 and has been stationed at many bases “all over the world.” During the past 2% years he has been stationed at the Little Rock Air Force Base in this state while appellee and the children remained at their home in Columbus, Ohio.
On January 4, 1957, appellant filed the instant suit against appellee in the Pulaski Chancery Court alleging desertion and general indignities as a ground for divorce. On January 28, 1957, appellee filed a motion to dismiss for want of jurisdiction alleging both parties were residents of Franklin County, Ohio. In an amended and substituted complaint filed on September 30, 1957, appellant alleged three years separation as an additional ground for divorce.
At the hearing on appellee’s motion to dismiss for want of jurisdiction it was shown that appellant filed a divorce suit against appellee in the Common Pleas Court of Franklin County, Ohio, early in 1956 alleging he was a resident of that state. He dismissed the petition for divorce when appellee filed a cross-petition upon which there was a hearing resulting in a “Decree of Legal Separation” on April 18, 1956, finding appellant guilty of “gross neglect.” Appellee was given permanent custody of the children and awarded $50.00 per month alimony and $150.00 per month for support of the children. The decree also found that both parties were legal residents of Ohio and the dismissal of appellant’s own cause of action to be with prejudice.
Appellant testified he had been stationed at numerous bases and was subject to reassignment at any time; that he had an Arkansas license tag on his automobile, an Arkansas poll tax receipt and had voted in the last election; and that he had lived off the base at a motel in North Little Rock for awhile but had moved back to the air base at the time of the trial. He was not asked and did not state his intentions as to making Arkansas his permanent home, but the motel owner where' he stayed about eight months testified that he heard appellant say he was going to make Arkansas his home if he ever left the service.
We have repeatedly held that a soldier acquires no residence in a locality merely because his military duties require that he sojourn there. Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295. In several cases we have approved the following statement from 19 C. J. 418: “The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur.” We have also often approved this headnote from Ex parte White, 228 Fed. 88: “Assuming that a member of the Army may change his domicile, and establish it at any place he sees fit, if not inconsistent with the military situation, his intention to change must be clear, and must be associated with something fixed and established as indicating such a purpose.” Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876; Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556.
The chancellor’s finding that appellant did not qualify as a legal resident of this state in that he had not shown a real and bona fide intent to acquire and establish a permanent residence here is not against the preponderance of the evidence. The decree is, therefore, affirmed. | [
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Sam Bird, Judge.
Following a bench trial, appellant Erie Flowers was convicted of failing to register as a sex offender in Arkansas. He received a three-year suspended sentence and a $1000 fine, and he was required to pay court costs and to perform thirty days of community service. On appeal, he contends (1) that the trial court erred in finding substantial evidence to support his conviction and (2) that it is fundamentally unfair to require him to register as a sex offender. We affirm.
The undisputed facts of this case are as follows. On August 6, 1998, Flowers pled guilty in the Criminal District Court of the Parish of Orleans, Louisiana, to the solicitation of unnatural carnal copulation for compensation, which is prohibited under La. Rev. Stat. Ann. § 14:89(A)(2) (West 2005). He was sentenced to one year in the Louisiana Department of Corrections. Pursuant to La. Rev. Stat. Ann § 15:542(A) (West 1998), Flowers was required to register as a sex offender in Louisiana, and he did so. Flowers was later paroled, but his parole was revoked because he moved to Texas without following the proper procedure. He was returned to Louisiana to serve the remainder of his sentence, and he was released in December 2001. He then moved to Arkansas to live with his mother.
At trial, Detective Steve Weaver of the Van Burén Police Department testified that, in March 2003, the Department received notice from the State of Arkansas’s Crime Information Center that Flowers was moving to 314 Crestview in Van Burén, which is located in Crawford County. Detective Weaver said that he attempted to locate Flowers at the residence for “seven or eight months” but was never able to do so. Weaver said that, because the Department never received any paperwork from Flowers, he obtained an arrest warrant due to Flowers’s failure to register. In February 2004, Weaver received information that Flowers was living in Fort Smith, which is in Sebastian County. Shortly thereafter, Flowers was arrested in Fort Smith for failure to register as a sex offender.
At the close of the State’s case, Flowers moved to dismiss, arguing that Crawford County was an inappropriate venue because no offense occurred in that county and because his duty was to register in Sebastian County. Furthermore, he claimed that he could not be compelled to register in Arkansas, apparently arguing that the Supreme Court of the United States had struck down a similar statute outlawing another sex crime, sodomy, as unconstitutional. The trial court denied the motion.
Flowers then testified in his own defense, claiming that he did move to 314 Crestview in Van Burén to live with his mother after he was released from prison in Louisiana, but he was not aware that he was required to register as a sex offender. He admitted that he resided at 314 Crestview for “quite a long time, until May or June of 2003.” He said that he then moved to Elm Street in Van Burén and lived there until November 2003. After that, he moved to Fort Smith and resided there until he was arrested on February 14, 2004. On cross-examination, Flowers claimed that, while he lived at 314 Crestview, he never went to register with Detective Weaver (of the Van Burén Police Department) because he was not told that he had to do so. Flowers renewed his motion to dismiss at the close of all of the evidence, and the trial court again denied the motion. The court subsequently found Flowers guilty of failing to register as a sex offender in Arkansas.
Flowers’s first point on appeal is that the court erred in finding substantial evidence to support his conviction because he did not possess the requisite mental state under the statute requiring him to register as a sex offender. We consider this argument first due to double-jeopardy considerations. See Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005). The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Id. Our supreme court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Arkansas Code Annotated section 12-12 — 904(a)(1) (Repl. 2003) provides that a person who fails to register as a sex offender shall be guilty of a Class D felony. Our supreme court has said that no scienter is required to trigger this provision; the offender’s failure to register alone is sufficient. Kellar v. Fayetteville Police Dep’t, 339 Ark. 274, 5 S.W.3d 402 (1999). A “sex offender” includes a person who has been adjudicated for an offense of the law of another state when that adjudication requires registration under the other state’s sex-offender-registration laws. See Ark. Code Ann. § 12-12-903(13)(A) & (12)(A)(üi)(¿>) (Repl. 2003).
Here, Flowers argues that he did not act “purposefully, knowingly, or recklessly” and, therefore, he should not have been found guilty of failing to register as a sex offender. However, this argument is raised for the first time on appeal, and, consequently, it is not preserved for appellate review. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). A party cannot change the grounds for objection on appeal, but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997). Flowers did not raise his argument concerning mental state below; thus, he is precluded from raising it for the first time on appeal. Furthermore, even were we to address this argument, we would still affirm the denial of Flowers’s motion to dismiss because his argument clearly ignores our case law stating that no scienter is required to trigger Arkansas’s sex-offender-registration statute.
As his second point, Flowers contends that it is fundamentally unfair to require him to register as a sex offender in Arkansas. Apparently, Flowers is asking this court to consider the solicitation of oral sex — the crime of which he was convicted in Louisiana — to be equivalent to sodomy or, alternatively, to prostitution. He asserts that, because any law prohibiting sodomy is now unconstitutional in Arkansas, see Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), and because prostitution is not a “sex offense” for which one must register as a sex offender in Louisiana or Arkansas, it is “fundamentally unfair” to require him to register as a sex offender in Arkansas.
We reject Flowers’s argument. Here, Flowers pled guilty to the solicitation of unnatural carnal copulation for compensation (i.e., the solicitation of oral sex), which is clearly prohibited under La. Rev. Stat. Ann. § 14:89 (A) (2). The Louisiana Supreme Court has said that there is nothing constitutionally offensive in prohibiting this crime. See State v. Thomas, 891 So. 2d 1233 (La. 2005).
Furthermore, Flowers was required to register as a sex offender in Louisiana and did so. Arkansas law plainly provides that one who is convicted of a crime in another state and is required to register in that state as a sex offender is also required to register in Arkansas. As the State points out in its brief, it is simply immaterial whether Arkansas would punish the solicitation of oral sex as Louisiana does.
Affirmed.
Baker and Roaf, JJ., agree. | [
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Minor W. Millwee, Associate Justice.
Ernest E. Cox was local manager for the appellant, Arkansas Power & Light Company, in the territory served by its office in Malvern, Arkansas, for 27 years prior to November 5, 1955. On that date he was accidentally killed by the upset of an automobile furnished him by his employer while driving on U. S. Highway 51 west of Malvern. The instant appeal is from a judgment of the Hot Spring Circuit Court affirming an award of compensation by the "Workmen’s Compensation Commission to appellee, Mrs. Ollie B. Cox, his widow.
Appellant contends that the injury and death of Cox did not arise out of and in the course of his employment within the meaning of the Workmen’s Compensation Law (Ark. Stat. Sec. 81-1301 to 81-1319). It is argued that there was no substantial evidence to support the Commission’s finding that Cox had permission to make the trip out of which his death arose or to support the conclusion that he was acting within the scope of his employment.
There is little dispute in the material facts. The territory served by Cox as appellant’s local manager embraced all of Hot Spring and parts of Garland and Grant counties. The automobile furnished him by appellant, and driven by him at the time of his fatal injury, was equipped with a two-way radio with which he kept in touch with the office, the other employees of appellant in the field and appellant’s district office at Hot Springs, Arkansas, while he was not in the office in Malvern. He also used the car, which was maintained entirely at appellant’s expense, in attending periodic meetings of local managers in Hot Springs. As a local manager, he had the responsibility of seeing that continuous electric service was rendered to appellant’s customers within his territory. He was not confined to any particular hours or places of work but was subject to call on a 24-hour basis and was expected to keep himself and the car available at all times in case.of such emergencies as storms and wrecks involving company property. These emergencies occurred about 20 or 25 times a year.
The deceased had two homes. One in Malvern and the other near Jones Mill on Lake Catherine where he and his family spent 6 or 8 weeks out of each year. He always used the specially equipped company car in traveling to and from both homes and the appellant not only expected but required him to do so. Upon reaching the home it was his custom to leave the two-way radio on until late at night. He usually arrived at his home on Saturdays and other days of the -week, except Sunday, at from 5:30 P. M. to 7 P. M. On Saturday November 5, 1955, he left Malvern about 5:45 P. M. for his home on the lake where he planned to have dinner with his wife and visiting relatives. A few minutes later he was killed by upset of the company car while proceeding on the most direct route to the lake home. Death was instantaneous and the first person to reach the scene found the headlights of the car burning and the radio receiving set in the car turned “on” as indicated by a green dash light on the vehicle.
While there was some dispute in the testimony concerning deceased’s right to use the company car on trips to the lake home when he and his wife were not actually residing in the home, there was substantial evidence to the effect that deceased kept and used the car on all trips to both homes and other places in his territory with the full approval of appellant; and that, being subject to call 24 hours each day, the appellant required him to do so in order to be available for all emergencies.
Injuries sustained by employees while going to and returning from their regular place of employment are not, as a general rule, deemed to “arise out of and in the course of the employment” within the meaning of the Workmen’s Compensation Law. This is commonly referred to as the “going and coming rule.” However, one of the many well established exceptions to this gen eral rule is that off-premises travel injuries are compensable if the employee is on his way to or from work in a vehicle owned or supplied by the employer. We recognized the exception in Blankenship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 778, where we approved the following statement by the Washington Court in Venho v. Ostrander Railway & Timber Co., 185 Wash. 138, 52 P. 2d 1267:
“When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within ‘the course of his employment,’ as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor.
“This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.” See also, Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579; and Tinsman Mfg. Co. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573; Owens v. Southeast Arkansas Transportation Co., 216 Ark. 950, 228 S. W. 2d 646; Frank Lyon Co. v. Oats, 225 Ark. 682, 284 S. W. 2d 637.
The applicable rule is stated by the textwriter in 58 Am. Jur., Workmen’s Compensation, Sec. 218, as follows: “As an exception to the general rule that an employee is not in the course of his employment while going to or returning from his work, it is generally held that where transportation to or from work is furnished by the employer as an incident of the employment, an accidental injury sustained by the employee while being so transported arises out of and in the course of the employment.” Many cases from other jurisdictions on the subject are collected in an annotation in 145 A. L. R. 1033. Other recognized exceptions to the general rule applicable here, and under which off-premises injuries are held compensable, involve situations (1) where the employee is subject to call at all hours; and (2) when the employee has a clnty to perform for the employer while on route home.
Appellant relies heavily on the recent case of Martin v. Lavender Radio & Supply, 228 Ark. 85, 305 S. W. 2d 845, but the employer there did not furnish the means of transportation. The majority held there was no causal connection between the accident and the employment when the workman, in driving his own car to work, had not yet reached the point where he usually decided whether he would go by the postoffiee for his employer’s mail or send some other employee for it after reporting for work. Here the deceased was a managerial employee subject to call at all times and there is substantial evidence to the effect that it was his duty to take the specially equipped automobile of his employer with him to the lake home for the mutual benefit of himself and his employer, and that he was performin'*’ for his employer a substantial service required by his employment at the very moment of his fatal injury. In these circumstances we cannot say the Commission erred in concluding that his death arose out of and in the course of his employment. The judgment sustaining the findings of the Commission is, therefore, affirmed. | [
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J. Seaborn Holt, Associate Justice.
Appellants, (Jeters) owners, constructed six adjoining business houses, or units, in a new shopping area (called Jeter Park) in the city of Jonesboro and on August 8, 1957 they leased one of these buildings to appellants, Mounce and Pinehback, for a term of five years. An adjoining building, or unit, was leased by them to appellees, Windles. The lease to Mounce and Pinehhack contained this provision: “. . . It is understood between the parties that the property is rented by the Lessee for the purpose of carrying on or conducting drug store business, and such business is to be conducted in full compliance with all city ordinances and laws applicable thereto, and the Lessee agrees not to use said building for any other purpose without first obtaining the written consent of the Lessors so to do.”
The lease from the Jeters to the Windles contained a similar provision: “. . . the property is rented by the Lessees for the purpose of carrying on or conducting Cafe business, . . . and the Lessees agree not to use said building for any other purpose without first obtaining the written consent of the Lessors so to do . . .”
Some time after Mounce and Pinchback had occupied their leased building, they began operating, along with their drug business, a soda fountain and in addition, a grill dispensing food. At this point the Windles brought the present suit seeking to enjoin the Jeters, as owners and lessors, from permitting Mounce and Pinchback to operate a soda fountain and grill in conjunction with their drug store, and to enjoin Mounce and Pinchback from operating the soda fountain and grill, and in addition, sought substantial damages against appellants. The trial court held that the Jeters were bound by an oral covenant and agreement alleged to have been made prior to the leases not to permit competition by the drug store, and further held that Mounce and Pinchback had leased the drug store premises with notice of such equity and were likewise bound, and entered a decree enjoining appellants from permitting or conducting a grill or soda fountain in connection with the drug store and allowing the Windles damages in amount of $1,321.88 from the Jeters. This appeal followed.
At the trial it appears that the Windles were permitted to testify relative to certain preliminary negotiations leading up to the written leases. Paul Windle testified that in May 1957, prior to the execution of the leases, he made a verbal agreement with Winston Jeter to lease the building adjoining the drug store for cafe purposes, on condition and assurance, that no food or drink service would be allowed in any other of the six units of the shopping center in competition with Windle. Gladys Windle testified that in July 1957 (prior to the date of the lease) she learned from W. E. Mounce that the drug store planned to install and operate a fountain and grill. She then complained to Winston Jeter and requested him to inform Mounce that no grill or soda fountain would be permitted. Thereafter, on July 15, 1957, Winston Jeter wrote a letter to Mounce containing these recitals: “. . . we have talked it over with all parties concerned, and we wish you to know we cannot lease the drug store building to anyone who wishes to operate a grill or soda fountain in connection, as per our understanding at start.
“We do not wish any conflict between the two stores, and wish to protect the investment of each . . .”
Following receipt of this letter Mounce (one of the owners and operators of Central Drug Store) informed the Jeters that they would not lease the building which they desired unless they were permitted to operate a fountain and grill in connection with their drug store. The Jeters then informed Gladys Windle, one of the appellees, that they had changed their minds and would not “police” the businesses. Thereafter, on July 23rd, the Jeters forwarded a draft of the lease contract with the Windles to them for their signature, along with a copy of the proposed drug store lease for their information. When the Windles discovered that the drug store lease above did not contain a clause prohibiting competition in food and drink, Gladys Windle consulted her attorney who prepared an additional clause to be embodied in the drug store lease above as follows: “. . . Lessors shall prohibit the use of any other part of the property described above for sale or dispensing of food or drinks to be consumed on the premises.” The Windles admitted that the Jeters refused to accept the suggested clause.
For reversal of the decree appellants say that, “The cafe and drug store leases are completely integrated written agreements, and cannot he varied by parol evidence of a covenant not to permit competition by the operation of a fountain and grill, since the leases deal with the use to be made of the premises.” After a careful review, we have concluded that appellant’s contention should be sustained.
No rule of law appears to be better settled than that where a written contract is plain, unambiguous and complete in its terms, parol evidence may not be permitted to contradict, vary or add to any of its provisions. In Cox v. Smith, 99 Ark. 218, 138 S. W. 978, this court used this language: “. . . the cause of action herein sued on is founded upon an instrument which is a written contract, . . . The rule of law that is applicable to all written instruments ... is, that parol testimony is inadmissible to contradict, vary or add to its terms. . . . where the written contract is plain, unambiguous and complete in its terms, it has been uniformly held by this court that parol evidence is not admissible to contradict or to vary or to add to any of its terms. (Citing many cases) Where the written contract is complete in its terms, it is incompetent to engraft thereon any condition by parol testimony . . . Antecedent propositions, correspondence, prior writings, as well as oral statements and representations, are deemed to be merged into the written contract which concerns the subject-matter of such antecedent negotiations when it is free of ambiguity and complete.” “. . . When a written instrument contains such terms as import a complete obligation, which is definite and unambiguous, it is conclusively presumed that the whole agreement of the parties, and the extent and manner of their undertaking, were reduced to writing. In such cases, the instrument is in the nature of a contract, and cannot be varied or contradicted by parol evidence in the absence of fraud and mistake, — ” Wilson v. Nugent, 174 Ark. 1115, 299 S. W. 18. We hold that all negotiations prior to the execution on August 8,1957 of the leases involved here were merged into the written leases. In the circumstances, under the plain terms of their lease with the Jeters, Mounce and Pinchback were permitted to carry on or conduct a “drug store business.” It is common knowledge that such business is not confined to operating an apothecary shop alone but that drug stores, as a general rule, fur nish grill and fountain service and also sell various sundries such, as stationery, magazines, newspapers, etc. In a New Jersey case, Crest Drug Store v. Levine, 142 N. J. Eq. 652, 61 A. 2d 190, the court said that, “Modern drug stores are no longer apothecary shops. Where compounding of drugs is not altogether abandoned, the apothecary is but an incident, and it is common observation that the sale of drugs is negligible,” and that, “It is common knowledge that many drug stores are department stores to a greater or lesser degree.”
The decree is therefore reversed and the cause remanded with directions to dismiss the complaint and cross-complaint. | [
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McCULLOCH, C. J.
Defendant appealed from the judgment of conviction upon the charge of grand larceny. There was a former trial of the cause, which resulted in defendant’s conviction, but the court granted a new trial on the ground that one of the jurors had become ill dur ing the progress of the trial and was discharged from the jury. The record of the former trial recites an agreement entered into between the defendant and the prosecuting attorney for the discharge of the juror on account of the illness of the latter and an agreement to proceed with the trial before the jury composed of eleven jurors. When the case was called for the second trial defendant pleaded former jeopardy in bar of further prosecution. The ruling of the court in failing to sustain the plea is the principal ground urged for the reversal of the judgment rendered pursuant to the conviction in the last trial.
The ruling of the trial court was correct, for the granting of a new trial removed the jeopardy and authorized a retrial of the issue. This court once said that “it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the'conviction upon his own application in order to afford him the opportunity of another trial.” Johnson v. State, 29 Ark. 31. It is immaterial whether the ruling of the court in granting a new trial was correct or erroneous, for the effect of the ruling was to wipe out the former proceeding and place the cause back where it was before the trial began. The court could have rightfully discharged the jury when the juror became ill (Lee v. State, 26 Ark. 260), and doubtless would have done so but for the express agreement of the parties that the trial should proceed before eleven jurors. But it is, as before stated, unimportant to inquire whether or not the court was correct in granting a new trial, as. the fact remains that the new trial was granted upon the defendant’s own request and for hip benefit, and he can not claim that he was twice put in jeopardy of his liberty.
It is insisted that the evidence is insufficient to sustain the verdict, but our conclusion is that the evidence was abundant. Defendant was convicted of stealing a hog, the property of Y. D. McAdams. He admits that he took the hog out of the range, and that it was the property of McAdams, but he contends that he did so by mistake, supposing that the hog was his own property and was in his brother’s mark. There was a slight degree of simi larity between tbe two marks, but not enough to deceive a person practiced in observing tbe ear marks of animals. The stolen bog was marked with a swallow-fork and un-derbit in tbe right ear and an underbit in tbe left, and defendant testified that bis brother’s mark was a sloping-fork in tbe right and an underbit in tbe left. Tbe jury might well have-found that tbe difference in tbe mark was sufficient to put defendant upon inquiry and that be knew when be took tbe bog that it was not in his brother’s mark. In addition to that, tbe stolen bog bad a metal tag attached to one of its ears with tbe name of McAdams stamped thereon. This afforded abundant evidence of tbe fact that defendant’s plea of mistake in taking the wrong bog was groundless. Besides that, the circumstances under which tbe bog was found by tbe owner in defendant’s possession, were very suspicious, indicating an entiie absence of mistake on defendant’s part in taking tbe bog.
Judgment affirmed. | [
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SMITH, J.
Appellant seeks by this appeal to reverse the judgment of the court below sentencing him to the penitentiary for the period of one year for an alleged illegal sale of intoxicating liquor. Appellant was twice indicted, the cases against him being numbered, respectively, 5756 and 5757, and the name of George Whybark was endorsed upon the back of the first indictment as the witness for the State, and the name of Joe Limberg was endorsed on the back of the second indictment as the State’s witness. Appellant was tried upon the indictment upon which the name of Whybark was endorsed as a witness, but, at the trial, both Whybark and Limberg were permitted to testify in regard to a sale made to each of them at a different time and place. This action of the court in permitting evidence of a sale to Limberg to be introduced is assigned as error.
The evidence of the witness Limberg was especially damaging; but there was evidence tending to impeach his veracity. It was shown that he was himself a bootlegger, and had committed,numerous violations of the law. Impeaching witnesses were asked, '“I will ask you, from what you know of him, and from his general reputation in this community, if you would believe him on oath?” The court held this opinion should be predicated upon the general reputation of Limberg, and not upon the personal knowledge of the impeaching witness, and this ruling is assigned as, error.
The court permitted a witness named Watrous, who had been a deputy prosecuting attorney during the year 1916, to testify that he had participated in a raid made upon the house in which appellant roomed at the time, and had there found a suitcase and a grip containing forty pints of whiskey, and that later on appellant asked witness what he had done with his suit case. The raid occurred about December 1,1916, and the testimony tended to show the sale of liquor to have been made some time after the first of January, 1917. This action of the court is also assigned as error.
The court refused to permit witnesses to testify that they had bought whisky illegally from Limberg. Ño attempt was made to show that it was Limberg, and not appellant, who made the sales in question, and the court also refused to permit a witness named Richmond to testify that he' had overheard a conversation between appellant and Whybark, in which Whybark asked appellant to get him some whiskey, and that appellant had later asked witness if he (the witness) knew where any liquor could be obtained. It is also insisted that the evidence is insuffi cient to sustain the conviction, and that error was committed in the giving of instructions.
(1-2) The proof of the sale to Limberg was not incompetent. The State was not required to allege the name of the person to whom the sale was made. Each separate sale constitutes a separate offense, yet the State may, if it so elects, offer proof of more than one sale to secure a single conviction. The effect of such action is, of course, to bar a subsequent prosecution for the making of any of the sales offered in proof upon which the State relied to secure a conviction.
(3) The court properly excluded the opinion of witnesses touching the veracity of Limberg based upon their own knowledge. There must be some uniform standard with which compliance must be had to permit witnesses to express an opinion concerning another witness ’ veracity, and that standard is the general reputation of the witness sought to be impeached. If witnesses were permitted to use their own personal knowledge as the basis of their opinion, this knowledge would become highly relevant, for otherwise the jury would not know how to value the evidence of the impeaching witness, and an indefinite number of collateral issues would become material. To avoid this confusion, the law requires that this opinion be based upon general reputation, and not the witness’ own personal knowledge. Section 3138 of Kirby’s Digest; Cole v. State, 59 Ark. 50.
(4) The evidence of the witness Watrous was admissible, although no attempt was made to show that the liquor found at the time of the raid was the liquor alleged to have been sold. Appellant’s connection with that liquor is indicated by the question he asked in regard to the suitcase in which the liquor was found, and the quantity of the pint bottles indicated the purpose for which it had been put in the suitcase and grip, and the time of the raid was not so far removed from the day of the alleged sale that we can say that the testimony has no probative value in showing what appellant’s business was at about that time. Springer v. State, 129 Ark. 107.
The witness Limberg admitted, upon his cross-examination, that he had made many sales of liquor illegally, although he denied that he was a wholesale dealer in the illegal sale of liquor. Proof of a few specific sales could have added nothing to the record of crime to which the witness confessed. Moreover, the impeaching evidence should have related to general reputation, and not to specific instances of bad conduct. St. Louis, I. M. & S. Ry. Co. v. Stroud, 67 Ark. 115. Proof of the inquiry made by appellant to Richmond as to where liquor might be procured would have been mere self-serving declarations, and are incompetent as such.
Over appellant’s objection, the court charged the jury as follows:
“7. I charge you further that if the prosecuting witness, Whybark, was the man for whom he bought the whiskey, and further find that the defendant acted for both the seller and the buyer, and was the intermediary through which the sale was made, and said sale would not have been made except for the aid that the defendant rendered in the transaction, then in this event you should convict the defendant. ’ ’
But the court also gave the following charge:
“8. I charge you further, that if you find the defendant in this case purchased liquor from some third party for Whybark, solely as a matter of accommodation to Whybark, and that this was ¡a bona fide transaction, and not a subterfuge on the part of the defendant to' evade the liquor laws, and you further find that the defendant did not furnish the liquor in controversy himself, and did not sell it, or was not interested in the «ale of it, then in this event you should acquit the defendant.”
The court also told the jury that the instructions were to be considered as a whole, and that the instructions, as a whole, declared the law of the case.
These instructions correctly declare the law as announced by us in the recent case of Williams v. State, 129 Ark. 348, and cases there cited.
There can be no question of the sufficiency of the evidence if the witnesses on behalf of the prosecution are to be believed. But this question of veracity is one solely for the jury, and we can only say that this evidence is legally sufficient to support the verdict if accepted by the jury.
Other questions are discussed in the brief, but we do not regard them as of sufficient importance to discuss here.
Finding no prejudicial error, the judgment is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
The Arkansas State Highway Commission (hereinafter called “Commission”) filed this suit to have obstructions removed from the right-of-way of State Highway No. 22 in the City of Charleston. It was claimed that the appellant, Bollinger, had encroached on the right-of-way by placing his filling station, pumps, signs, etc. within the right-of-way fixed by the County Court order of 1927. Bollinger denied the validity and effect of the County Court order, denied the claimed width of the right-of-way, and denied any encroachment. The Chancery Court heard the evidence ore terms and rendered an opinion, which is in the record and has proved helpful to us. The Chancery findings and decree were in favor of the Commission; and Bollinger has appealed, presenting the points hereinafter to be listed and discussed.
I. Validity Of The Entry Of The 1927 County Court Order. In 1927, the Arkansas Highway Commission decided to construct State Highway No. 22, and the citizens of Charleston worked with the Commission to obtain the right-of-way. One of the citizens actively assisting the Commission was the appellant, Bollinger. On December 19, 1927, an order was entered, which appears in the County Court Becords of Franklin County, and which laid out the highway right-of-way and fixed the width of the right-of-way on each side of the center line. The Commission claimed that this order made the right-of-way ninety feet wide in front of the Bollinger property here involved, being forty feet on the north side of the center line, and fifty feet on the south side of the center line; and that Bollinger’s filling station, pumps, etc. encroached on the right-of-way. Bollinger claimed that the order of 1927 was void for several reasons; and that he was not encroaching on the true right-of-way. It was conceded by all parties that in 1927 Bollinger’s father owned the particular property here involved, with a fence along the right-of-way, thirty feet from the center of the highway; that appellant, Bollinger, acquired the property here involved in 1938; and removed the fence and constructed a filling station, pumps, etc. thereafter.
It is appellant’s contention that the County Court was not legally in session when the particular order here involved was entered: that in 1927 the terms of the County Court of Franklin County were the third Monday in January, April, July, and October; that the regular October term convened on October 17, 1927; that the Court then duly adjourned to November 12, 1927; and that when the Court adjourned on November 12,1927, there was a lapse of the term because the adjourning order says, "Court adjourned until...........................and that the effect of this unfilled date was to lapse the term. Appellant cites and relies on the case' of Ex Parte Baldwin, 118 Ark. 416, 176 S. W. 680.
It was admitted that the County Quorum Court duly met on November 14, 1927; that following the adjourning of the Quorum Court, the County Court records show, “Court adjourned until December 19, 1927”; and that the order here attacked bears date of December 19, 1927 and duly appears in the County Court Records as a part of the proceedings of that date, and has been of record since 1927. Notwithstanding these admissions, appellant says that the failure to complete the date in the adjourning order of November 12,1927, as heretofore copied, lapsed the County Court until the January, 1928 term; and that the purported order of December 19, 1927 was not a County Court order but the action of the County Judge.
There are several sufficient answers to appellant’s contention:
(a) The order of December 19, 1927 has been of record and unassailed since 1927; and after all these years presumptions must be indulged in favor of its validity. Parsley v. Ussery, 198 Ark. 910, 132 S. W. 2d 1; Cannon v. Price, 202 Ark. 464, 150 S. W. 2d 755.
(b) The contention made by the appellant in the case at bar is a collateral attack on the County Court order, and for that reason cannot prevail. Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S. W. 106; Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508.
(c) Even if the County Judge had merely acted as an agent of the County in making the order of December 19, 1927, still the County Court adopted and ratified the order by paying out County money arising for right-of-way claims because of tbe order. Watts & Sanders v. Myatt, 216 Ark. 660, 226 S. W. 2d 800; Wilcox v. McCallister, 186 Ark. 901, 56 S. W. 2d 765.
So, for tbe reasons stated, we find no merit in appellant’s attack on tbe validity of tbe entry of the 1927 County Court order.
II. Invalidity Of The 1927 Order Because Of Lack Of A Definite Description. Tbe 1927 Court order, changing widening and laying out the right-of-way of State Highway No. 22, described a road which began on the west side of Franklin County and proceeded easterly. The order described the center line of the highway for the entire distance, and then stated the width of the right-of-way by reference to stations — that is, 100-foot distances from the point of beginning.
Appellant says that the order is too indefinite to be valid; but we see no merit to such claim. We have cases which hold certain descriptions to be indefinite (see Burns v. Harrington, 162 Ark. 162, 257 S. W. 729; and Wallace v. Desha County, 194 Ark. 848, 109 S. W. 2d 950); but the highway location in the case at bar is so definite that “a stranger with a compass and a chain” could follow the road as laid out in the order. The road lias a beginning point, a definite course, a length, and a width. The order describes a definite line which can be located by any competent surveyor. Several located the line and testified in the case at bar. The County Court order says that for certain distances — stations of 100 feet each — the highway right-of-way will be a designated number of feet on the left (north) side of the center line, and a designated number of feet on the right (south) of the center line. In People v. Board, 20 N. Y. S. 7, the Court, in approving an order laying out a highway, said: ‘ ‘ The order laying out the road in question was legal. The center line of the road was accurately given, and the width of 25 feet on each side of said center line. This was sufficient. People v. Commissioners, 13 Wend. 310.” To the same effect see also 39 C. J. S. 1003.
In the case at bar, we hold that the order was entirely definite; and, therefore, we reject appellant’s second contention.
III. Encroachments On The Right-of-way. Appellant claimed that the highway right-of-way was only sixty feet wide (that is, thirty feet on either side of the center line) in front of appellant’s service station; that appellant’s pumps, etc., claimed to be encroachments, were more than thirty feet north of the center line of the highway; and that, therefore, there were no encroachments by appellant. The Commission claimed that the highway right-of-way, as laid out by the 1927 order, was ninety feet wide in front of appellant’s service station, being forty feet north of the center line and fifty feet on the south of the center line. To substantiate this claim of encroachments, the Commission alleged and offered proof to establish that appellant’s service station is between Station 145.00 and 146.10. According to the 1927 order, the right-of-way is ninety feet wide between Station 143 and Station 192, or a distance of 4,900 feet. Several witnesses supported the Commission on the question of appellant’s encroachment. The Witness Perldns introduced in evidence his map which showed the encroachments. The Witness Levaris introduced in evidence his map, which likewise showed the encroachment. The "Witness McCloud testified:
“Q. Are yon familiar with the subject property? The property of Mr. John Bollinger over which this lawsuit is brought?
A. Yes, sir.
Q. Have you ever made any measurements or anything of that nature to determine how far, if they are, these encroachments are on the right-of-way? The island and the sign that has been referred to here this morning?
A. Yes.
Q. You have made such measurements?
A. Yes.
Q. Do you remember to what extent, if any, these pumps and pump island encroach upon the right-of-way?
A. Well, the pumps, the pump island, I would say is thirty feet from the center line, and the right-of-way at that point, according to the 1927 court order and the plat, is forty feet.”
From a careful study of the maps and the testimony we conclude that the encroachments were shown and that appellant’s contention to the contrary is without merit.
IY. No Notice Or Estoppel. Under this topic heading in his brief, appellant claims: that, even if the 1927 order made the highway ninety feet wide in front of his service station, still he had no notice of such fact; that there was a fence along his present property in 1927; that the fence was only thirty feet north from the center line of the highway; that the Commission made no entry on his property beyond the fence; that he vol untarily tore down his fence in 1938 when he acquired the property from his co-heirs; that he erected his pumps, etc. more than thirty feet north of the center line of the highway; that the Commission cannot claim beyond thirty feet north of the center line of the highway since there was no “entry” under the 1927 order beyond the 30-foot line. Among other answers to appellant’s contention, the Commission claims that when Mr. Bollinger took down the fence and erected his service station and made it available to the public in 1938, such act constituted an entry by the public on the full forty-foot right-of-way north of the center line.
The Chancellor, in his opinion, said:
“As far as actual notice is concerned, Mr. Bollinger was on the committee that laid out this 1927 Highway and went up and down the highway and took right-of-way agreements. One of his witnesses was paid on the basis of an 80-foot right-of-way west of town, based upon the 1927 order. Mr. Bollinger told about how some of these landowners objected when they had trees in the right-of-way; how he took an engineer out to see his own father about leaving a tree in the right-of-way. The plans of the Highway Commission show that the same tree that was left was between the thirty-foot line and the forty-foot line in this Highway right-of-way of 1927. This would indicate that there was actual notice that this tree was in the right-of-way ... We have several Supreme Court decisions, all holding that when the county condemns land, the county is liable for the damages.
The land mark case is Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 262 S. W. 2d 772 . . .
It seems to me in a case like this one where the county condemns the land and the property owner is suffering damages and didn’t get around to doing anything about it until this late date, that the county would be the party that might be liable for the damages . . . There is no adverse possession here. The Arkansas Statutes of 1947, § 37-109, based on Act 666 of 1923, provide that title to any Highway is not acquired by adverse possession, so yon can’t say that there is any adverse posses sion here, because this law was passed in 1923 and this order wasn’t made until 1927. So as I see it, the thing to do here — the practical approach — -is to enter this injunction, . . . and to allow Mr. Bollinger to file a claim against the county. If the county does not allow his claim, he can bring it up in the Circuit Court and have a jury trial . . .”
We conclude that the Chancery decree was correct; and it is accordingly affirmed.
Harris, C. J., and George Rose Smith and Ward, JJ., dissent.
The defendants were Mr. Bollinger and his wife. She had only dower interest; and we will continuously refer to Mr. Bollinger as though he were the sole defendant and appellant.
Franklin County is divided into two Districts (see Act No. 51 of ' 1885); but the District in which the County Court met does not enter into this case, as both parties admitted in oral argument. Sec. 2266 C. & M. Digest gives the terms of the Franklin County Court applicable in 1927.
This was fixed by Act No. 340 of 1927, which was prior to the law as now found in § 17-401 Ark. Stats.
We copy the beginning point and a few calls in the description of the center line of the road in order to illustrate the statement: “Beginning at a point in the present traveled road 1,888 feet North of the corner of Sections 9,10, 15, and 16, Township 7 North, Range 29 West: running thence North 68 degrees 45 minutes East for a distance of 134.7 feet; thence around a 3 degree curve to the right for a distance of 522.22 feet; thence North 84 degrees 25 minutes East for a distance of 3,384.85 feet; thence around a 2 degree curve to the right for a distance of 515 feet; . . .”
We copy a portion of the order to illustrate our statement: “The right-of-way widths required for the alignment as hereinbefore described to be as follows:
Station to Station Lineal Feet Width to Left of Center Line Width to Right of Center Line Tofal Width Feet
00 to 56 5600 40 40 80
56 to 66 1000 50 50 100
66 to 71 500 40 40 80
71 to 74 300 40 50 90
74 to 120 4600 40 40 80
120 to 143 2300 30 30 60
143 to 192 4900 40 50 90”
Appellant’s property lies between Station 143 and Station 192.
As heretofore stated, the particular property here involved was owned by appellant’s father in 1927. After the death of Mr. Bollinger, Sr., appellant acquired the interest of his co-heirs in 1938 and took down the fence and erected his service station sometime thereafter. | [
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J. Seaborn Holt, Associate Justice.
Appellant, Roy L. Childers, secured a divorce from his wife, Lucille L. Childers, in Mammoth Spring, Arkansas, October 8, 1957 under our three year separation statute (Sec. 34-1202 Ark. Stats. 1947). He had moved from Thayer, Missouri, to Mammoth Spring, Arkansas, in October 1956 and resided there since. He and his wife had lived together at Thayer, Missouri, for approximately 25 years, but had not lived together as man and wife since 1953. The parties are each 49 years of age. Two children, a minor daughter, Alberta Sue, who will be 18 years of age June 30, 1958, and a married son, 22, were born to this marriage.
In the divorce decree Mrs. Childers, appellee, was awarded use of the homestead, which they own as tenants by the entirety, at Thayer, Missouri, together with the furniture and household goods (until further orders of the court), $30 per month alimony for her support, $35 per month for the use and benefit of their minor daughter in addition to $55 per month the daughter was receiving from the rental of a salvage yard, which they also own as tenants by the entirety, and attorney’s fee of $200 for appellee’s counsel. From that decree comes this appeal.
For reversal appellant relies on these points: “1. The court did not take proper consideration of the appellant’s financial and physical condition in the award to the appellee and the child of the parties hereto and therefore there is an abuse of discretion. 2. In award of attorney’s fee for counsel for the appellee proper consideration was not given to the financial and physical condition of the appellant and therefore there is an abuse of discretion. 3. The court should have determined the property rights of appellant and appellee.”
The evidence showed that all the real property owned by the parties was as tenants by the entirety and consisted of the home in Thayer, Missouri, of approximate value of $10,000 and the salvage yard worth about $6,500. Mrs. Childers testified that her husband, according to a bank deposit book in evidence made deposits covering the period from February 2, 1952 to and including June 3, 1952, of approximately $9,950 (prior to the separation in 1953), or an average of about $1,990 per month over this 5 month period. It appears that these deposits represented gross receipts from appellant’s salvage yard and the expenses of operation are not shown.
Appellee further testified: (appellant’s abstract) “the salvage lot was covered with salvage when he gave me $2,000 in July 1952; he continually sold salvage after that but never gave me anything after the $2,000; I had the children in the home and the cost of living was high during that time; the boy is 22, married, and the daughter 17, a senior in high school; she gets $55 from the rent of the yard; not a penny was given for son’s upkeep and I paid his hospital bill out of the $2,000; I have had to help the girl as $55 is not enough to support her; he gave the boy a car and $5.00 weekly allowance and I had to pay the insurance and tires; I have used very little of the $2,000 for myself; I have had the utility bills, upkeep and repairs on the house to pay myself and I have had very little money for myself ... I do not think he divided the money in half; he gave me $2,000 before he left home and has sold scrap iron, a lot of radios, batteries and tin since that . . . The only real estate we own is the home and the salvage lot; I do not have any first hand knowledge of the appellant’s business income; I think it will take $75.00 to $100.00 to support our daughter; her expenses this month and last have been very high, our daughter is a senior in high school, my average earnings for the past year has been $30 to $40, I work only part time and try to be at home when our daughter is there . . .”
Appellant testified (appellant’s abstract) “I sold my brother what was on the salvage yard for $2,000 and leased the property with him for $35 per month, he paid $900 and owed $1,100, the arrangements were made to pay my daughter $55 a month, this being $35 a month from the lease and payments from the $1,100 owed; I gave it to my daughter and added $1,000 to it and I got nothing at all out of the deal in 1952; my wife has had the use of the home all of the time and bonds in the amount of $500 or $600, all bonds being made to me or her or to the children and she now has possession of such bonds, I gave to daughter the receipts of the scrap-iron. ’ ’ He further testified that he was averaging about $85 per month as a part time welder; that he had received a back injury that prevented his working full time. His employer corroborated this testimony. Mrs. Childers testified that she did not know -what he was earning.
The allowance of alimony and child support in cases of this nature is largely within the sound discretion of the trial court: “The amount to be allowed as alimony is within the sound discretion of the trial court; and all the circumstances of the particular case should be considered in fixing it, such as the husband’s ability to pay, the station in life of the parties, and the conduct of the wife bearing upon the cause of separation.” Johnson v. Johnson, 165 Ark. 195, 263 S. W. 379. After a careful review of all the evidence, we have concluded that the preponderance of the evidence is not against the trial court’s allowance of $30 per month to appellee as alimony, in addition to the property and other allowances to her and their daughter, Alberta Sue. While of foremost consideration is the husband’s ability to pay (See Coltharp v. Coltharp, 218 Ark. 215, 235 S. W. 2d 884), the appellant here will be relieved of any legal obligation to support his daughter after she reaches her majority in June 1958, when she will be 18 years of age; “Ordinarily the legal obligation of a parent to support a normal child ceases upon majority of the child,” Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648. Obviously appellant will be in a better position to pay the $30 monthly alimony awarded his wife when he is relieved of the $35 monthly payment to his daughter, out of his earnings.
Our rule is well established that the court may in its discretion award the homestead property, owned by the entirety, to the wife for her use and occupancy for her life subject only to the right of survivorship of the husband. See McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911.
We find no error in the allowance of $200 for attorney’s fee. 1
We conclude, therefore, that, while the allowances —especially to the daughter — were somewhat liberal, the evidence does not warrant a finding by this court, at this time, that the decree and findings of the trial court were against the preponderance of the evidence.
Affirmed.
Ward, J., dissents. | [
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McCulloch, C. J.
The two appellees, Clear Creek Oil & Gas Company and LaSalle Oil & Gas Company, are corporations producing gas in the fields located in Crawford County and furnishing it for domestic and industrial purposes in Fort Smith and Yan Burén. Appellants are farmers residing in the vicinity of Yan Burén, and have been users of gas for domestic purposes. Private lines are run to the farms of appellants from the gas mains extending from the wells. There are two of these lines running from the gas mains, on one of which are situated about sixty-five farm houses, and on ■the other line there are situated thirty-five farm houses.
When the gas field was developed thé Clear Creek ■ Oil & Gas Company entered into oral agreements with the various appellants that, if the latter would pay for the construction of the line running out from the gas main, they could have gas at fifteen cents per thousand cubic feet, and, pursuant to this agreement,' appellants paid for the construction of the line. They received gas at that price until January, 1921, when the Clear Creek Oil & Gas Company applied to the Railroad Commission for permission to increase its gas rates generally, including an increase for domestic purposes to twenty-five cents per thousand cubic feet. At the same time the LaSalle Oil &> Gas Company made application to the Railroad Commission for an order fixing the price of gas for domestic purposes at twenty-five cents, and the Commission made an order granting the request. The proceedings before the Commission were regular, and the order was made after notice given to consumers. Subsequently appellants appeared before the Railroad Commission and asked that the rates fixed by the Commission be set aside, and, on a hearing, the Commission granted the request and set aside- the rate of twenty-five cents per thousand cubic feet, as fixed in the previous order, and restored the original rate of fifteen cents'per thousand cubic feet. From this order the appellees prosecuted an appeal to the circuit court of Pulaski County. • There was a hearing in the circuit court upon the testimony adduced before the Commission, which was certified in the record, and the circuit court rendered judgment finding the reasonable rate to be twenty-five cents per thousand cubic feet, and certified the judgment to the ‘Railroad Commission. An appeal has' been duly" prosecuted to this court.
It appears from the testimony that appellants had a contract with the Clear Creek Oil & Gas Company for gas at the price of fifteen cents per thousand cubic feet, ' and that they enjoyed that rate from the time the pro duetion of gas began in that field, back in the year 1916 or 1917, but the two appellees were operating as public, utilities, and it was beyond their power to contract with respect to gas, so far as such contract might interfere with the power of the Commission to regulate the prices. Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260. Notwithstanding those contracts, the question presented to the Commission, on the petition of appellees for a regulation of the rates, and also the question for the circuit court on review, was what is a fair and reasonable rate for the price of gas? . . -
There is a presumntion as to the reasonableness' of the rate fixed bv the Railroad Commission, and the rate thus fixed should not be disturbed excént upon testimony sufficient to overcome the presumption thus raised. Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., ante, p. 12. In this instance. the circuit court found that the testimony was sufficient to overcome the presumption raised by the finding of the Commission, and, after careful consideration of the testimony, we are of the opinion that the testimony fully sustains the conclusion reached by the circuit court. It is shown clearly, and almost beyond dispute, in the testimony, that twenty-five cents per thousand cubic feet is a reasonably remunerative rate for furnishing gas under the circumstances under which appellants are to receive it. The evidence shows that the gas costs nineteen cents per thousand cubic feet to furnish it to appellants, and that the difference between that and the rate fixed by the circuit court in its finding is a fair profit upon the investment and operations of appellees.
It is unnecessary to review the evidence in all of its detail, but, after considering it, we are of the opinion that its effect is as above stated. It was within the jurisdiction and power of the circuit court, on the appeal, to determine whether or not the prices fixed by the Bail-road Commission were reasonable, and, if the same were found not to be reasonable, to determine what would be a reasonable schedule of prices for enforcement by the Commission. Coal District Power Co. v. Booneville, post, p. 638.
Our conclusion is that the judgment of the circuit court was correct, and the same is therefore affirmed. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Boone County for the crime of murder in the first degree for killing Ed Blevins. He was tried and convicted of murder in the second degree. The verdict of conviction was set aside, and a new trial granted. Upon retrial he was convicted of manslaughter and adjudged to serve a term of seven years in the State Penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court.
The first assignment of error insisted upon for a reversal of the judgment is that the trial court permitted the prosecuting attorney, in opening the case, to make the following statement:
“Gentlemen of the jury, you will observe from the reading of this indictment that the defendant is indicted for murder in the first degree. He was tried at the last term of this court under this indictment and was convicted for murder in the second degree, which was, in legal effect, to acquit him of murder in the first degree. Upon motion of the defendant, on the grounds of newly discovered evidence, the court set aside the verdict of the jury which convicted him of murder in the second degree, and granted1 him a new trial on the ground of newly discovered evidence, and you cannot convict him for murder in the first degree, but are to try him for murder in the second degree. ’ ’
Appellant contends that the reference to the former conviction was a violation of § 3221 of Crawford & Moses’ Digest, and prejudicial to his interest. The section of the Digest referred to is as follows:
“The granting of a new trial places the parties in the same position as if no trial had been had1. All the testimony must be produced anew, and the former verdict cannot be used or referred to in evidence or in argument.”
The purpose of this statute is to protect the accused, upon a new trial, from the effect of a former conviction by use thereof in evidence or reference thereto in argument unnecessarily and improperly. It was necessary to tell the jury that appellant was upon trial for murder in the second instead of the first degree, and we do not think it was improper, as a part of the statement, to explain that the former verdict for murder in the second degree had automatically acquitted appellant of murder in the first degree. While the court or prosecuting attorney might have conveyed this information to the jury’ by simply saying that appellee was upon trial for murder in the second degree, any one of reasonable intelligence would have understood from the statement that a discharge from the highest crime specified in the indictment had been accomplished by a former conviction of murd'er in the second degree. This being so, no prejudice could have resulted, on account of the statement made by the prosecuting attorney, to the interest of appellant. If appellant thought otherwise, he should have asked the court to instruct the jury not to be influenced, in arriving at the verdict, by the fact of his former conviction. He would have been entitled to such an instruction, in view of the fact that the statement, in its entirety, was not absolutely necessary to apprise the jury of the charge upon which appellant was to be tried.
Appellant’s next assignment of error is that the jury was not properly instructed upon the law of self-defense. The law given by the court upon that subject is as follows:
“In ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that, in order to save his own life, or prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given. To be justified, however, in acting upon facts as they appear, the defendant must honestly believe, without fault or carelessness on his part, that the danger was so pressing and urgent that it was necessary to kill his assailant in order to save his own life or to prevent his receiving great bodily injury. He must act with due circumspection. If there was no danger, and his belief on the existence thereof be imputed to negligence or carelessness, he is not excused, however honest his belief may be.”
It is contended that the instruction quoted above, in effect, told the jury that appellant could not justify the killing on the ground of self-defense, unless it appeared to them, .from the evidence, that the danger was impending and so urgent and pressing that it was necessary to kill the deceased to save his own life or to save his body from great injury. We do not think the instruction susceptible of that construction. When read as a whole, it means that appellant could justify the killing if it appeared to him that the danger was impending and so urgent and pressing that it was necessary to kill the deceased in order to save his own life or to prevent him from receiving great bodily harm. The instruction might have been made more definite and! certain as to whom it should appear that the danger was impend ing, etc., by inserting the words “to him” after the word “appear” in the second sentence.
Appellant’s last assignment of error is that the court permitted the prosecuting attorney to ask appellant, on cross-examination, if he had not been indicted in the Federal court for white slavery. The indictment is a mere accusation, having no probative force, therefore “the character of a witness cannot be impeached nor his testimony discredited for the purpose of impairing its weight, merely by evidence that he had been indicted for a crime. ” Anderson v. State, 34 Ark. 257; Carr v. State, 43 Ark. 99; Bates v. State, 60 Ark. 450; Alexander v. Vaughan, 106 Ark. 438; Johnson v. State, 156 Ark. 459. Johnson v. State, ante p. 111.
For the error indicated the judgment is reversed, and the cause is remanded for new trial. | [
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Smith, J.
Appellant was convicted of murder in the second degree, and from the judgment of the court sentencing him to the penitentiary on that verdict is this appeal.
There are only two assignments of error which appear to require discussion, the first being that erroneous testimony was admitted, the second that the testimony does not support the verdict.
The alleged incompetent testimony was that of A. J. McCormack, father-in-law of the deceased, the testimony being as follows: “Q. Did you have a conversation with this defendant with reference to a still or worm that had been stolen from somebody? A. Yes sir, previous to the killing. Q. How long before the killing? Counsel for defendant: I object to that. (No ruling by the court). Q. Was it as much as a month or a week? A. It was on the first Sunday in March. Q. And the killing was the 7th day of May? A. Yes sir. Court: Q. That conversation was with whom? A. With L. C. Cash. Counsel for defendant: We except to that. (No ruling by the court). Q. Tell what he said1 with reference to a worm or a still that had been found there. A. Well, I had a worm there supposed to be used in making whiskey, and he told me that he knew a fellow that would pin up a five spot if I would put it out where he could steal it, and the fellow would steal it if I would keep my mouth shut. Q. Where did you get this worm? A. Found it in the field. Q. Your neighbors knew you had it ? A. Yes sir. Q. What did you do with it ? Threw it in the yard for about six weeks, and then took it down to the shop. Q. That was at the time it was missing? A. Yes sir, in the back of the shop. Q. Tell the jury what you did with the worm, where it was at the time you missed it? Counsel for defendant: I object to that. By the court: Objection sustained. The prosecuting attorney : I am trying to show its connection with reference to this trouble. Court: Anything pertaining to the worm, unless you can connect it up, will be excluded. Q. Then after you made an investigation of the body do you know anything else about the case that would throw light on it to the jury? A. No sir, I don’t know anything; I never saw anything except the body.”
It was, of course, improper to prove, as an independent circumstance, anything in relation to this still, unless that circumstance had some connection with the killing, as showing the motive or otherwise explaining the conduct of the parties. But this appears to have been the view of the court, and the court so ruled. The effect of this ruling was to advise the jury that such testimony was incompetent and was not to be considered unless it was connected with the killing, and that connection was not made. The prosecuting attorney should not have examined the witness on this subject without being able to show its relevancy, but the court made a proper ruling in excluding the testimony, and if it was believed that the ruling was not sufficiently clear and comprehensive, a request to make it so should have been made.
The next and only question asked the witness on his direct examination,' after the ruling of the court had been made, established the fact that the witness was not in possession of any facts connecting the possession of the still with the killing charged in the indictment, and we conclude therefore that the court’s ruling, under the circumstances stated, removed the prejudice of the incompetent testimony.
In testing the sufficiency of the evidence to support the verdict, we of course view it, with all the inferences fairly deducible therefrom, in the light most favorable to the State, and, when thus viewed, the facts may be summarized as follows: It was the theory of the State that appellant killed deceased because of some previous trouble between them, and that appellant went to the home of deceased and called him out of his home and killed him. The wife of deceased testified that she spent the night before the killing at her father’s' home, which was about a quarter of a mile from her own. That she went home about ten or fifteen minutes after she heard the report of a gun, and when she arrived there she found both the front and back doors open, and two chairs were turned over near the front door. That the bed in which her husband had slept was still warm; and upon calling him, she heard some one run up a hill near the house. She then returned to her father’s house, and was there when the body of her husband was found.
Deceased’s body was found about thirty or thirty-five steps from his house. He was lying on his back, with his arms extended, the left arm being shot nearly in two, with a wound in the breast near the heart, and an empty shotgun shell was found about fifteen or twenty feet from the- body.
Appellant testified that he went over to deceased’s house early in the morning of the killing to employ him to do some plowing, and that he awakened .deceased when he went there, and when asked why he carried his gun, he answered that he was afraid some of deceased’s folks would get him. No one saw the killing except appellant, and, as a witness in his own behalf, he made a case of self-defense, his story being that he went to deceased’s house, to employ him to plow for him, and that he carried1 his gun thinking he might see a wolf. That deceased accused him of having led a mob to his house the preceding night, and made a murderous assault upon him. That he attempted to run away, and fired the fatal shot only when he saw he could not escape injury by flight. The jury evidently did not credit this testimony, and we cannot say that this was arbitrary.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellees shipped a lot of merchandise over appellant’s line of railroad ■ under a through bill of lading from Walnut Eidge to Blytheville, and this action was subsequently iiistituted to recover damages on account of the alleged loss of a portion of the merchandise so shipped. The claim is that the car in which the merchandise was shipped was broken open and a portion of the goods taken therefrom. Appellees introduced testimony sufficient to show the loss of the goods and that the car had been broken into prior to its arrival at destination. The trial of the case resulted in a verdict in favor of appellees for the full value of the goods alleged to have been stolen. The action was instituted in Greene County, and the service of summons was on the conductor of a train passing through the county. Appellant filed a motion to quash the service, which motion was overruled.
Appellant’s line of railroad runs across the corner of Greene County for a distance of about one-fourth of a mile, but there is no station in that county, nor any place of business maintained by appellant. The statute regulating the service of summons provides that the summons shall be served “in case of railroad corporations, upon any station agent, or upon any person who has control of any of the business of said corporation, either as clerk, agent or otherwise, who, as such agent or clerk, has to report to the corporation who employed them; and, in cases of railroad corporations, a service of a copy of the summons upon the clerk or agent of any station in the county where the same shall be issued shall be deemed and considered as a good, and valid service.” Crawford & Moses’ Digest, §1147.
Counsel for appellees defend the ruling of the court in upholding the service on the authority of decisions cited from other States, but we think those decisions are not applicable, for the reason that they arose under statutes not similar to our own. The language of our statute clearly means that the service must be upon some agent of the company at a fixed place of business of the company in the county, not a mere agent who happens to be in the county at the time of service. Appellant maintains no place of business in Greene County, and the operation of trains through the county does not constitute the maintenance of .a place of business there in the sense that a conductor in charge of a train has authority to receive service. It might as well be said that service could be had upon a section foreman passing along the track, because he had charge of the company’s business of maintaining the track and was required to report to some superior. We do not think that the language is open to that interpretation, and it follows therefore that the service was not sufficient. Appellant waived the service, however, and made a general appearance by filing an answer and going to trial without preserving its right to insist upon the insufficiency of the service. Vulcan Construction Co. v. Harrison, 95 Ark. 588.
The statute provides that an action against a railroad company for injury to person or property upon the road, “or upon a liability as a carrier, may be brought in any county through or into which the road or * * * coaches of the defendant upon which the cause of action arose passes.” Crawford & Moses’ Digest, § 1172. This was an action against the company upon its liability as a carrier, and the action could have been brought in Greene County if service could have been had there. The question involved therefore is not one as to the venue, but as to the sufficiency of the service, and, since the action is one in which the venue could properly be laid in Greene County, there could be a waiver of the sufficiencv of the service, and there was, in fact, a waiver bv nleading the merits without preserving the right to object.
It is insisted further that the action is barred by reason of the fact that it was not instituted within two years, as prescribed in the contract of shinment. The action was in fact commenced within two years, and sum mons was issued within that time, which constituted the commencement of the action. Even though the suit was brought in a county where service could not have been had and jurisdiction obtained other than by appearance of appellant, the waiver of the service by appearance related back to the commencement of the action. Sims v. Miller, 151 Ark. 377.
It is contended that the goods were lost while in the yards after arrival at destination, and that, under a clause in the bill of lading, the goods, under those circumstances, were held at the owner’s risk. One of the an- ' swers to this contention is that the clause referred to relates only to property “destined to or taken from a station, wharf or landing at which there is no regularly appointed agent.” This does not apply to the yards at Blytheville, where there is a station of appellant. A further answer is that there is proof sufficient to show that the damage occurred before arrival at Blytheville.'
It is argued that the evidence is not sufficient to sustain the verdict, but we are of the opinion that there is substantial evidence tending to show that the goods were lost from the possession of appellant, and that they were taken from the car before its arrival at Blytheville. One of the witnesses introduced by appellees testified that, on arrival of the car at Blytheville, one of the doors had been broken off and the place nailed up.
Our conclusion is that the evidence was sufficient and that the issues were properly submitted in the court’s charge.
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Humphreys, J.
This suit was instituted by appellees against appellant in the circuit court of Crawford County, to recover damages in the sum of $2,000 for the alleged failure of appellant to explore and develop gas wells on certain lands in said county leased by appellees to .appellant. The venue was changed1 to the Charleston district of the circuit court of Franklin County, where the cause was tried upon the pleadings, evidence, and instructions of the court, resulting in a verdict and con sequent judgment against appellant in the sum of $390, from which is this appeal.
The suit was based upon a written lease of the lands therein described1, which was executed in order that the oil, natural gas, and' mineral resources thereon might' be discovered and developed. The provisions of the lease necessary to a determination on the vital question involved on this appeal are as follows:
“That said first parties (appellees here) for and in consideration of the sum of one dollar, cash in hand paid, and in further consideration of the agreements and covenants hereinafter set forth to be kept and performed by said second party, have granted, demised and let, and do by these presents grant, demise and let unto the second party, its successors and assigns, the premises hereinafter described and for the terms specified herein, with the exclusive right and privilege of entering into, possessing, holding, drilling into, mining therein and prospecting for oil, natural gas and other minerals, * * * and also the further right and privilege of making such further use of said premises as it may deem necessary in developing, operating and exploring the mineral resources thereof, the following described lands, to-wit[Here follows a description of the land.]
“That if the said second party shall market any gas from any well producing gas only, then the parties of the first part shall receive therefor at the rate of two hundred dollars per annum for each well, quarterly in advance. Should any minerals of commercial value be discovered in paying quantities on the within-described premises, and the development and production of same by said second party be carried on with reasonable diligence, then the lease shall remain in full force and effect. * * *
“That if no drilling operations are begun on the premises within one year, all right and obligations secured under the lease shall cease upon notice in writ ing being served on the second party by the parties of the first part, unless the second party shall elect to continue the lease in force as tó any and all parts of the premises by paying to the parties of the first part an annual rental of seventy dollars for all of said premises, provided that when such well is drilled the rental shall cease. All payments to be made at the Alma Bank to the credit of the parties of the first part.
“It is hereby further agreed that the said second party, its successors and1 assigns, shall have the right at any time to surrender and terminate this lease. ’ ’
The record reveals that, about a year after the execution of the lease, wells were drilled by appellant on lands adjoining those leased from appellees, which produced large volumes of gas, and near enough to appellees’ lands to drain them; but, as this suit was not brought to recover damages for failure to drill protection or offset wells on appellee’s lands, or for the gas drained off of their land through wells on adjoining lands, it is unnecessary to set out the testimony showing the date those wells were drilled or the approximate amount of gas produced by them from time to time. Appellant made no effort whatever to drill a well or wells upon the premises leased from appellees prior to the 10th day of February, 1922, at which time it canceled the lease. Notwithstanding the fact that appellees requested ' appellant to drill protection wells after it drilled wells on adjoining lands, appellant paid and appellees accepted yearly rentals of $75 a year upon the lands for the years 1917, 1918, 1919, 1920 and 1921. •
The acceptance of the rents from year to year prevented a breach of the contract growing out of failure to drill wells upon the leased1 premises. The contract provided that, in case appellant should elect to pay $70 per annum rent upon the premises instead of drilling a well thereon, such payment should have the effect of continuing the lease in force. The correct interpretation of the contract is that the stipulated rent should remuner ate appellees for delays in drilling. In construing similar provisions in an oil and gas lease this court said, in the case of Blair v. Clear Creek Oil & Gas Co., 148 Ark. 301, that “the lease expressly authorizes the lessee to elect to pay the yearly rental', instead of drilling. Hence, the lessors cannot recover damages for failure of the lessee to commence exploration for gas. If, however, the lessee commences to explore for gas, it must exercise due diligence in drilling, and there is an implied covenant on its part to do so. Mansfield Gas Co. v. Alexander, 97 Ark. 107; Lawrence v. Mahoney, 145 Ark. 310.” .The payment and acceptance of the annual rental provided for in the contract had the effect of preventing a breach for failure to develop the lease during the term covered by the rental. This interpretation of the contract does not militate against the lessor’s right to sue for damages on account of the breach of an implied covenant not to drain his land during the period of delay. In order to maintain a suit upon such an implied covenant, however, a lessor could not continue to receive the specified rents for delay. In that event it would he his .duty to declare a forfeiture of the implied covenant and refuse to receive rents for delay. That was what Mrs. Blair did in the case of Blair v. Clear Creek Oil & Gas Co., supra. In the instant case, however, damages were not claimed for the removal of gas through'wells on adjoining lands or for a failure to drill protection wells. The action was ■ grounded upon an alleged breach for failure to develop the leased premises.
For the error indicated the judgment is reversed, and the complaint of appellees is dismissed. | [
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McCulloch, C. J.
Appellant instituted this action against appellees in tbe circuit court of Benton County to recover damages alleged to have been sustained by reason of the breach of two separate contracts for the sale of flour.
Appellant is a foreign corporation, engaged at Lyons, Kansas, in the business of manufacturing and selling flour, and appellees were copartners under the firm name of Rogers Milling- Company, engaged in business at Rogers, Arkansas.
It is alleged in tbe complaint that tbe parties entered into two separate contracts for tbe sale by appellant to appellee of flour, tbe first contract being for 500 barrels, and tbe second for 1,000 barrels, to be delivered at a certain price f. o. b. Lyons, Kansas, with the freight to Rogers to be deducted.
It is further alleged in tbe complaint that, after certain quantities of tbe flour were delivered, appellees broke tbe contract b}?- refusing to accept further deliveries.. Damages are laid in tbe sum of $4,892, and the complaint also contains a statement of the market price of tbe flour at Lyons, Kansas, less freight charges to Rogers, on tbe respective dates of the alleged breaches of tbe contracts.
The court sustained a demurrer to tbe amended complaint, and appellant declined to plead further. Final judgment was rendered dismissing tbe complaint.
The first ground on which counsel for appellees defend the ruling of the court in sustaining the demurrer is that the complaint contains' no statement as to the market value of the flour at Rogers on the respective dates of the alleged breaches of the contracts, so as to show the difference between the contract price and the market price at the place of delivery. The .contracts provided that the prices were fixed upon delivery on board cars at Lyons, Kansas, with deduction for freight to Rogers, but the shipment was to be to the shipper’s own order, with draft attached to the bill of lading, and it may be an issue of fact in the trial, according to the evidence adduced, whether a delivery was intended to be consummated at Lyons, Kansas, or at Rogers, Arkansas. Richardson v. Fowler Commission Co., 154 Ark. 92. Therefore the difference between the contract price and the market price at Lyons, less freight to Rogers, on the day of the breach, is a sufficient allegation of damages. It is not essential that the different items of damages be set forth in the complaint with particularity. Kirchman v. Tuffli Bros. P. I. & C. Co., 92 Ark. 111.
It is next contended that the contract exhibited with the complaint shows that, on the failure of appellees to accept the flour, there were different options open to the seller, and that the failure to allege in the complaint the exercise of one of those options is fatal to the statement of a complete cause of. action. This contention is unsound, for the complaint does contain a statement, in general terms, that appellant performed all the conditions imposed on it by the terms of the contract. Our statute provides (Crawford & Moses’ Dig’est, §.1227) that it shall not be necessary to state the facts concerning the performance of a condition, but that such performance may be stated in general terms to the effect that “the party duly performed all the conditions on his part.” This is an action at law, and, not being founded on an instrument for the payment of money, the exhibit does not constitute the foundation of the action so as to control the allegations of the complaint in an action at law. Crawford & Moses’ Digest, §1222; Chamblee v. Stokes, 33 Ark. 543; Abbott v. Rowan, 33 Ark. 593.
It is seen therefore, from the foregoing statement of the law, that the matters sought to he raised by demurrer should be presented as issues in the trial of the cause. The demurrer should not have been sustained on the ground mentioned.
The judgment is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. | [
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Wood, J.
This action was brought by the appellant against the appellee to recover damages for malicious prosecution. Appellant alleged, in substance, that the appellee, on October 4, 1921, made a cheek payable to E. H. Meyers, husband of the appellant, for the sum of $152.70, which check was delivered to the .appellant for her husband; that on the 21st of December, 1921, appellee appeared before the grand jury of Mississippi County and maliciously and falsely testified that the check mentioned was raised by appellant after its delivery from $52.70 to $152.70; that, predicated upon such testimony, the grand jury returned an indictment ¿gainst the appellant, charging her with forgery and uttering a forged instrument; that on the 24th of March, 1922, the appel-, lant was tried on the above indictment and acquitted; that appellee, before the indictment was returned, had stated to divers persons and on divers and sundry occasions that the appellant had raised the check, thereby falsely and maliciously accusing appellant of the crime of forgery. Appellant prayed for punitive and actual damages in the sum of $50,000.
Appellee, in his answer, admitted that the appellant was indicted, tried, and acquitted of the crime of forgery, as set up in the complaint, but specifically denied all of its other allegations.
The appellant adduced evidence tending to show that her husband ordered a carload of coal shipped to Osceola, intending to take what he needed for his own use and to sell the balance to his neighbors at a sum named. When the coal arrived Meyers was recovering from a long spell of typhoid fever. He was still in bed; and appellant was .attending to his business for him. At the time the coal arrived the appellee and Meyers were close friends and neighbors. Appellee at the time was at Meyers ’ home, calling on him. " Meyers stated that he had .a carload of coal coming, and didn’t know how to get rid of it, and appellee said to Meyers that he would dish it out for him if he would have his wife make out a list of those to whom it was going, which she did, and appellee delivered the coal. Appellee testified that he hauled the nine loads of coal he was to take out of the car and turned the residue of the coal over to the parties named in the list. Appellee didn’t weigh the coal for the other parties and didn’t settle with Meyers for any of it except his own, which amounted to $50 and some cents, but the appellee, through mistake, executed his cheek to Meyers for $52.70. Appellee collected from one of the parties for Meyers. They wanted him to collect from .another party, but finally made arrangements to collect for themselves.
The testimony of the appellant concerning this was to the effect that, during the time her husband was sick, appellee was at their house almost every evening. He and appellant’s husband apparently liked each other. Appellant and her husband expected a man by the name of Laug’hlin to handle the coal when it came, but appellee assumed authority, and said he would handle it, and would not let people have it who didn’t have the money. When appellee called up about the check he first talked to Meyers. Appellant heard her husband ask over the phone, “What is the matter, Doc?” and she then took the ’phone out of her husband’s hand, and also asked appellee what was the matter, and he said, “I gave you a cheek for $152.70, and it’s $100 too much.” Appellant replied, “If there is any discrepancy, I will have either Joe Young- or Mr. Laughlin come and straighten it up.” In less than an hour the bank called appellant and told her that the check had been raised. As soon as her husband was able, he and appellant went to the bank. When appellant was accused of raising the check, they called in Mr. Coston, their lawyer. Appellant told appellee that, if there was anything wrong with the check, to come over to their house, and they would adjust it. Appellant knew that the prosecuting attorney offered to dismiss the prosecution against her, but she, acting with the sanction and advice of her counsel, insisted that the case he tried. Her reason for such action was that it was public talk, and, if she had allowed the case to be dismissed, it would be said that they had compromised with the appellee. Appellant was seeking vindication. Appellee had damaged her character. Appellant testified that she had been employed in the postoffice before she married Meyers, and stated that she had suffered enough humiliation and embarrassment from the time of the indictment until the trial to kill any person in the world. She consulted with her attorney. At the time the check was given to her husband he was receiving $300 per month salary, payable every two weeks, which continued during the time he was ill, and in addition he received a sick benefit of $25 per week. Appellee didn’t pay appellant or her husband the money received on Coley Hall’s check. He was at the home of the appellant, and stated that he had delivered Hall’s coal and put the check for same in his pocket. He had never since that time been in their house. Appellant stated that she voluntarily appeared before the grand jury and wrote the words “one hundred” in the grand jury room, but she absolutely did not write the words “one hundred” on the cheek. She indorsed her husband’s name on the check, and nothing more. It was shown, on behalf of the appellant, that the appellee appeared before the grand jury and.testified that the check mentioned was raised from $52.70 to $152.70. He was subpoenaed before the grand jury and questioned about other matters. On cross-examination the witness testified that the appellee, in his manner of testifying before the grand jury concerning the check, “seemed to be reticent and showed no feeling in the matter. He left it up to the jury, and regretted to make the report.”
Two experts in handwriting testified on behalf of the appellant, after being shown the alleged forged check and after examining a large number of checks signed, some by E. H. Meyers and some by Mrs. E. H. Meyers, but with their signatures concealed from the witnesses, that none of the checks which bore the genuine signature of Mrs. Meyers were in the same hand as that on the face of the alleged forged check; and, after examining a large number of checks that were signed by the appellee, they testified that the “d” in those checks was made by the same person who wrote the alleged forged check. One of these experts testified that the words “one hundred” in the alleged forged check and the signature of the appellee (V. J. Andre) were, in his opinion, written by the same person.
W. 0. Lemmer was introduced as a witness for the appellant, and he testified on direct examination as follows: “Ques: Did he (appellee) make any remark to you about who wrote the check? Ans: Yes sir. Ques: What did he say, if anything? Ans: He told me he gave a certain man in this town a check for $52.70 and his Gr- d- wife raised it $100, and 1 asked him what was her object in raising it, and he said he didn’t know unless her husband put her up to it.” On cross-examination the witness testified that he was at Osceola in the interest of the Burns Detective Agency, investigating this check. He reported the matter to Judge Coston. Witness pretended to be an automobile mechanic. He had the conversation with the appellee detailed above on the second day after his arrival in his place of business. The conversation was concerning the case of the State against appellant. He further testified on cross-examination as follows: “Ques: Have you detailed to the jury all he said on that subject? Ans: That is all he said that I can remember. Ques: That ended your labors? Ans: No sir; he was very reluctant about talking about it. I forced him on it afterwards once, and he wanted to know what the opinion of the people was around here, and I told him the opinion was divided. Ques: And”all he said is he had given a check for fifty-two dollars and seventy cents to a man in town, and his damned wife raised it one hundred dollars, and he thought she did so under the influence of her husband, or, in substance, that of her damned husband? Ans: Yes sir. Ques: He said nothing-further to you on the subject? Ans: No sir.”
There was further testimony on behalf of the appellant corroborating the testimony of appellant to the effect that they were present and heard appellee tell Mrs. Meyers, in a conversation between them concerning: the check of Coley Hall, that he had Coley Hall’s check for the coal, that he had it in his pocket.
Hall testified that he gave the check for the coal that he purchased from Meyers to the appellee. Another witness testified that he heard Mrs. Meyers tell appellee, over the telephone, that if there was any mistake about the check to come over and she would be more than glad to fix it up. At the time Meyers had just got up from a spell of sickness.
Another witness, who was foreman of the grand jury, testified that the grand jury was hot after whiskey sellers, and they thought that the appellee might know something about it. The check in question had been brought to the attention of the grand jury by the appellee. "While the witness was going across the street, appellee hailed him and said, “I want you to come over to the barn — I have something to show you.” Witness replied, “I ain’t got no time now — I will come over later.” Witness supposed it was the check. Appellee didn’t mention the check that day at all. Witness had heard about it through other sources, and stated that they would have him subpoenaed before the grand jury on other matters.
Appellant, on being recalled, stated that it was before the check for $152.70 was delivered to her that the appellee stated that he had Coley Hall’s check. The appellee never paid for Coley Hall’s coal or his own except by the check for $152.70. He never paid the appellant cash at any time, and was never in their house after he said he had Coley Hall’s check in his pocket.
The appellee, in his own behalf, testified substantially as heretofore set forth, and further to the effect that, when Hall gave witness a check for the coal purchased by him from Meyers, witness cashed it in the sum of $50 and took it over to the appellant, telling her that it would help to pay the freight hill. He stated that no one except the appellant was present when he delivered the money to her. The delivery of the coal was made by a man named Quinn, and the appellee accepted Quinn’s figures on the coal, and Meyers and his wife also accepted them. Quinn figured and. weighed it all, and the book weights were sent to Mrs. Meyers, and she didn’t question them in any way. Witness sent the check for his coal in an envelope with the freight bill and invoice, and didn’t see the check any more until he took it out of the envelope, after it had been canceled by the bank and returned, to him with his monthly statement and checks. The alleged forged check called for $52.70 when witness sent it to the appellant, and the next time he saw it among witness’ returned checks it called for $152.70. Witness didn’t write the words “one hundred” on the check. Witness wrote the check for $52.70 and stated on the check what it was for. He didn’t write the words “Andre, Hale, or Hall,” on it and didn’t know that it had been raised until his' attention was called to the fact by the Citizens’ Bank. When his attention was called to the fact that the check had been raised, witness rang up the residence of the appellant and told her that he had sent her a check for $52.70 and that it had been raised to $152.70, and called her attention to the fact that there was something wrong, and she replied, “It can’t be,” and seemed vexed, and witness said, “This is no place for an argument,” and hung up the receiver. From that day the appellant and her husband had not said anything to the witness about it.
Appellee testified that appellant acknowledged that she and her husband still owed the appellee $20 in the coal deal which they had never. offered to settle. After the matter of the raised check was called to witness’ attention, he consulted with his attorney about it, and laid the whole facts before him. Witness appeared before the grand jury in obedience to a subpoena and laid the facts before them. He made no effort to prosecute appellant. He had no malice towards her, and did not testify falsely, and what he did along the line of prosecution was done on the advice of counsel. He didn’t in any manner urge to any person that the appellant be prosecuted. After the indictment was lodged, the prosecuting attorney asked the witness if he objected to dismissing the case, and witness replied, “Use your best- judgment.” He said in open court that he didn’t want to prosecute.
The above is substantially the material testimony as developed at the trial.
Among other instructions the court gave on its own motion instruction No. 2, as follows: “But if you find that the defendant did not himself write the check for $152.70, but for $52.70, then,, before yon can find for the plaintiff, you must be'convinced by a preponderance of the evidence that defendant instigated and caused the grand jury to indict the plaintiff, and that this was done maliciously and wilfully and without probable cause to believe that plaintiff had altered the check. And if you find .that defendant instigated or procured the grand jury to find the indictment, but that he did so without malice towards the plaintiff and with probable cause to believe that plaintiff had altered the check, your verdict should be for defendant. If you find that the defendant did not instigate or induce the grand jury to find the indictment, your verdict should be for the defendant.”
The plaintiff offered specific objection to the giving of this instruction to the effect that it injected into the case an issue not raised by the pleadings, and further, because “if Andre himself wrote the check for $152.70 in the first instance, then, in that event, malice is implied, and there is no question of good faith to be submitted to the jury, and because it was in conflict with instruction No. 1, and was abstract, misleading, and prejudicial.”
Instruction No. 1 given at the instance of the appellant is as follows: “If you find from a preponderance of the evidence that the check in question was written by Victor J. Andre, payable to E. H. Meyers, for the sum of $152.70, and if you further find that the said Andre testified falsely before the grand jury that the check was written by him for only $52.70, and that such testimony resulted wholly or in part in the indictment of the plaintiff, Mrs. Meyers, your verdict should be for plaintiff.”
Instruction No. 3 given on the court’s own motion is as follows: “You are instructed that if you find from the evidence that, before plaintiff was indicted and prosecuted, charged with the crime of .altering the check in controversy, the defendant consulted a reputable and reliable attorney and made to said attorney a fair, full and complete statement of all he knew about the said check and the plaintiff in connection therewith, withholding from said attorney no material fact in regard to the changing or altering of the said cheek, or any of the persons connected therewith, and was advised by said attorney to place the matter before the grand jury, and that he, acting in good faith, did this, and had nothing further to do with the procurement of the indictment or the prosecution thereunder, your verdict should be for the defendant.” The appellant specifically objected to the giving of this instruction, on the ground that the complaint alleges that Andre wrote the check himself for $152.70, and, being based on that ground and no other, if he did write the check himself, he is liable, and the advice of counsel would be no defense; and further, fihat the instruction was in conflict with instruction No. 1 given at the instance of the appellant.
Instruction No. 6 given on the court’s own motion is as follows: “Now, there has been some testimony here introduced by the plaintiff in regard to a statement by some gentleman that he had heard the defendant here in town malee the remark that he had given a check up here to some man for $52.70 and his damned wife had raised it to $152.70. The court has decided that that proof is incompetent, and it is withdrawn from your consideration, and the court will depend upon the intelligence of this jury to not regard that testimony for any purpose whatever. The court has decided the testimony is incompetent, and no incompetent testimony has a right to go before you for any purpose.”
The jury returned a verdict in favor of the appellee. The court rendered judgment dismissing the appellant’s action, from which is this appeal.
1. The appellant bottomed her cause of action solely upon the allegation that the appellee had himself written the check to the payee, Meyers, in the sum of $152.70, and then appeared before the grand jury and wilfully, deliberately and maliciously testified falsely that he wrote the check himself for $52.70, and, after the check was delivered, it was raised by the appellant to the sum of $152.70, and that, upon such false testimony, the prosecution was instituted against her. The denial of this allegation in terms raised the issue of whether or not the appellee wrote the check himself. Upon this issue the burden of proof was upon the appellant to show by a preponderance of the evidence that the appellee wrote the check himself and that he falsely swore before the grand jury that he didn’t write it, and that the indictment was predicated, and the prosecution thereby instigated, upon such false testimony. The court, in effect, so instructed the jury in instruction No. 1 given at the instance of the appellant. Instruction No. 1 presents the appellant’s theory of the case, as set forth in her complaint. The appellee denied the allegations of appellant’s complaint to the effect that he had written the check himself, and that he had testified falsely before the grand jury that he did not write the check. The effect of the allegations of his answer is that he didn’t write the check himself, and that his testimony to that effect before the grand jury was true, and that he did not voluntarily appear before the grand jury and accuse appellant of raising the check. His contention, as made by his answer and proof adduced in support of its allegations, was that he did not write the check himself, and that he did not seek the prosecution of the appellant, but simply, when subpoenaed before the grand jury, laid the facts before them. He also contended that what he did in the matter was after he had sought the advice and direction of counsel, and that his actions were predicated upon such advice.
The court therefore, in its instructions Nos. 2 and 3, correctly presented appellee’s theory of the case, based upon his answer and the testimony adduced by him to sustain his contentions. These instructions were not in conflict with instruction No. 1 given at the instance of the appellant, and, when taken together, declare the law in conformity with numerous decisions of this .court. In actions for malicious prosecution it is essential that plantiff prove both the want of probable cause and malice in order to maintain the action. Foster v. Pitts, 63 Ark. 387; Price v. Morris, 122 Ark. 382; Keebey v. Stifft, 145 Ark. 8. To be sure, if the appellant proved that the appellee wrote the check himself, the jury would be warranted in finding from this and the other facts in evidence that the prosecution was malicious and without any probable cause. But these issues, under the evidence, were for the jury.
2. Instruction No. 3 given by the court on its own motion was a correct declaration of law applicable to the facts pertaining to the issue raised by the testimony as to whether or not the appellee acted on the advice of counsel. Price v. Morris, supra, and other cases there cited. In view of this instruction, however, in order to fairly present the theory of appellant to the jury, the court should have given appellant’s prayer for instruction to the effect that, if Andre wrote the check himself for $152.70, the advice of counsel would be no defense, and a refusal to so instruct the jury would have been reversible error if error in this ruling of the court had been assigned in the motion for a new trial. While the appellant made the request for such an instruction, and the court refused to grant it, and appellant’s exceptions were duly noted, she failed to bring forward her exceptions to the ruling in the assignment of error in her motion for a new trial... Therefore such exceptions to the ruling of the court will be treated here as abandoned.
3. The court erred in excluding the testimony of the witness Lemmer to the effect that, in a conversation with the appellee concerning the case of State of Arican sas against appellant, tlie appellee,' in speaking of the alleged forged check, said to witness that “he gave a certain man in this town a check for $52.70 and his Grod d-• wife raised it $100, and asked him what was her object in raising it, and he didn’t know, unless her husband put her up to it.” It occurs to us, in the connection in which it was elicited, this testimony shows that the remarks of' appellee clearly had reference to the appellant, and was competent on the issue as to whether or not the prosecution, if instituted by the appellee, was prompted by malice. Ramsey v. Flowers, 72 Ark. 316; see also Goodman v. Cline, 104 S. E. 729; Read v. Lindley, 240 S. W. 351.
We find no other reversible error, but for this error the judgment is reversed and the cause remanded for a new trial. | [
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McCULLOCH, C. J.
Appellee instituted this action in the chancery court of Boone county to enjoin appellant from obstructing a public road, over which the railroad passed, and which is alleged to be the only means of ingress and egress to and from appellee’s farm. It is alleged in the complaint that appellee owned a farm a short distance from the railroad, and that the only way to reach it was along a public road acquired by prescription, over which appellant’s railroad passed at bridge No. 152, and that appellant was about to fill in the bridge and stop the passway along the public road without leaving any convenient route of travel for persons accustomed to use the road. It is also alleged in the complaint that the road is the only outlet from appellee’s farm and that irreparable injury will be inflicted to the farm by reason of .its accessibility being impaired, and appellant, in its answer, denied that there was a public road along the way; denied that injury would be inflicted to appellee’s lands by reason of the stopping up of the roadway under the bridge, and also pleaded that a grade crossing had been established conveniently near bridge No. 152 sufficient to accommodate persons traveling along that way.
There is conflict in the testimony on the issues of fact presented, but we are of the opinion that the findings of the chancellor on that issue are not against the preponderance of the evidence. It is shown that the road in question has been in use more than seven years, and the proof is sufficient to justify a finding of acquisition by the public of the right to travel over the road. The proof also is sufficient to show that appellee has no other outlet reasonably convenient to travel from his farm, and that substantial damages would be inflicted if this road is shut up. The proof also is sufficient to show that the grade crossing established at bridge No. 152 is not serviceable by reason of the fact that it is too steep. The occupancy of a street or other highway by a railroad is not a nuisance per se. Lonoke v. Chicago, R. I. & P. Ry. Co., 92 Ark. 546. Such occupancy may become a nuisance by reason of obstruction of the highway to the exclusion of its use by the public.
One who suffers a peculiar injury in his property rights in addition to those suffered by the public at large may prevent, by injunction, the obstruction of a public highway. Texarkana v. Leach, 66 Ark. 40.
It is insisted by counsel for appellant that, while the proof may be- sufficient to establish the fact that the grade crossing was too steep for convenience of the travelers, it does not show that the statute regulating such crossings has not been complied with. The answer to that contention is that appellant pleaded compliance with the terms of the statute with respect to grade crossings as an excuse for obstructing the road under the bridge, and thereby assumed the burden of proving that a statutory grade crossing had been established. It is urged, too, that the statute referred to has been amended so as to fix a different grade from that set forth in the pleadings, but the answer to that contention is that the chancellor did not specify any particular grade, but rendered an alternative decree requiring appellant either to refrain from obstructing the road under the bridge, or to comply with the statute of the State by constructing a grade crossing. All that appellant has to do to satisfy the terms of the decree is to show that it has complied with the law in regard to grade crossings.
It is further insisted that appellee’s remedy, if any, is to recover damages in an action at law or by indict ment for tlie illegal infraction of the penal statute, but we think that the equitable remedy exists where it is shown that the party seeking relief will suffer substantial, damages in addition to that which the general public will sustain. The injury in that way is irreparable within the meaning of the rule restricting equitable remedies.
Decree affirmed.
Humphreys, J., disqualified. | [
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J. Seaborn Holt, Associate Justice.
Appellee, Hunger, on October 30,1957 executed a ‘ ‘ Standard Bental Agreement” with Bed Top Driv-Ur Self Co. Inc., owner, (at the airport in Little Bock) for the use of one of- its cars. The above rental agreement contained these provisions, "Collision Protection. If the box has been initialed on behalf of owner, then for an additional fee of $1 per day (with a maximum of $5 per week) owner agrees to relieve renter of all liability for collision damage to the rented vehicle referred to above while it is operated in conformity with this rental agreement, but renter shall be fully liable for all such damage if said vehicle is operated in violation of any law or this rental agreement.” Bed Top initialed the box which entitled Munger to protection. Another section of this rental agreement provides: “The vehicle described on the reverse side hereof shall not be operated: . . . (d) By any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, the renter’s employer, or a person driving the car pursuant to said person’s usual and customary employment by the renter, and in the course of said driver’s regular and usual employment for the renter.” The facts disclose that at about 8 P. M. on November 2,1957 Munger picked up a young lady, an employee of appellant, at her apartment, and they liad dinner at the Tia-Wanna Club west of Little Bock. It appears undisputed that the young lady’s employment with Bed Top was concluded at 5 P. M. and that her association with Munger was unrelated to her employment. They left Tia-Wanna at about 10 P. M., driving toward Little Bock and when about a mile from Little Bock, on the way to their destination in North Little Bock, the young lady, who apparently was better acquainted with the road, took the wheel and undertook to drive, with Munger on the front seat beside her. She drove first to Levy to a drive-in where they had coffee and on leaving, — she was still driving, — a wreck occurred damaging the automobile practically beyond repair, such damages amounting to approximately $1,500. Appellant demanded payment from Munger for these damages, and upon his refusal to pay, brought the present suit. Trial before the court sitting as a jury resulted in a judgment in favor of appellee Munger and this appeal followed.
It appears that material facts are not in dispute and only a question of law is involved. Our decision must turn on the meaning and application of the word “operated” as used in the rental agreement. In this connection appellant says, “The provision of the rental agreement withholding collision protection except when the automobile was being used in conformity with the agreement is perfectly clear and not susceptible to construction. The word ‘operated’ is limited to physical control of the automobile.”
Appellee, on the other hand, says, “The term ‘operated’ as employed in the rental contract is ambiguous and therefore subject to judicial construction, and the proper construction of the term is that it comprehends the directing, superintending or overseeing of the driving of the vehicle.”
After a careful review of the facts presented we have reached the conclusion that the appellant’s contention is correct and must be sustained. We do not agree with appellee’s argument that the word “operated,” in the sense used here, is ambiguous. One of the specific requirements effecting collision protection to Munger is the stipulation that it applies only when the car is being operated by the person who signed the agreement, in this instance, Munger. Clearly we think this collision protection was meant to be, and was, strictly personal, applying only to Munger and in no sense general insurance for the benefit of some unknown operator. As indicated, it is undisputed that Munger was not at the wheel of the car when the mishap occurred and it does not appear that he was advising or instructing the driver in any manner. The young lady was physically driving. She was not acting as the agent of Munger, was not his employee, and there is no contention that any family relationship existed or that Munger was not a qualified, licensed driver. Granting, however, that the word “operator” may, in a general sense, be ambiguous (there being instances where it has been used to denote the driver of the car and also instances where it referred to the person who had control of the vehicle), we hold that it is not ambiguous as used in this particular rental agreement. Subsection (d), heretofore quoted, provides that the rented vehicle shall not be operated “by any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, etc.” This language certainly makes clear that the term “operator” means “driver,” for one does not need a driver’s license to merely sit and tell somebody else where to go. Subsection (d) clearly has reference to who may drive the car, and Munger’s companion is not included. Under our statutes as applied to motor vehicles, their operation on the highways, etc., Sec. 75-303 Ark. Stats. 1947 defines the word “operator” in this language: “Operator. Every person (other than a chauffeur) who is in actual physical control of a motor vehicle upon a highway.”
In the case of Witherstine v. Employers Liability Assurance Corporation, 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, there was involved an insurance policy providing for a reduced rate when the car insured was being operated by the insured himself, a situation similar in effect to that presented here. In that case the court said, “the word ‘operate’ is used throughout the statute as signifying a personal act in working the mechanism of the car. The driver operates the car for the owner but the owner does not operate the car unless he drives it himself. If the meaning were extended to include an owner acting either by himself or by agents or employees the provisions of the highway law would be replete with repetitious jargon.”
“When the meaning of the contract appears, it is the duty of the court to give them effect even when the words have been selected by an insurance company. Construction must not extend to the creation of a new contract for the parties.”
In Blashfield on automobiles we find this statement on the construction of the word ‘operate.’ (Blashfield 6, Part 1, Section 3941) “. . . if a policy distinctly limits its protection to cases of injury occurring while the owner is operating the car, personal operation thereof by the owner is contemplated, and the insurer is not liable in any other event.”
“Occasionally the policy restricts the coverage in this manner in certain states of fact and contingencies, and, when the situation at the time of the accident comes within a state of fact as to which the restriction applies, there is no liability upon the insurer for operation by persons other than the named insured.”
“The word ‘operate’ read in the light of the context of the policy and in view of the meaning attached to the word in automobile statutes, may be construed as describing the personal act of the owner in working the mechanism of the car, and hence as excluding liability when the owner is not personally driving at the time of the accident, although he is present and directing another as to the route, speed, and general manner of operation of the car, . . .”
In the case of Galan v. State, 164 Tex. Cr. Rep. 521, 301 S. W. 2d 141, The Court of Criminal Appeals of Texas used this language, “Appellant next complains of that portion of the court’s charge in which he instructed the jury-that they might convict if they found that the appellant did ‘drive and operate’ a motor vehicle on the grounds that the complaint and information charged only that he did ‘operate’ a motor vehicle. We hold such terms to be synonymous, and the court’s charge to be proper.”
And in State v. Sullivan, 146 Me. 381, 82 A. 2d 629, the Supreme Judicial Court of Maine said: “According to popular acceptance, the meaning of the term ‘to operate a motor vehicle’ is the same as to ‘drive’ it. It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the automobile forward or backward . . . ”
We conclude therefore that the word “operate” as used in the rental agreement here is plain and unambiguous and means that Munger was not protected for the reason that he was not operating the car at the time the car was wrecked. Accordingly the judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion.
McFaddin, Robinson, and Johnson, JJ., dissent. | [
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SMITH, J.
Appellant seeks by this appeal to reverse the judgment of the court below sentencing him to the penitentiary for a period of one year for the crime of grand larceny. The indictment charges that appellant “did take and carry away thirty-one dollars, gold, silver, and paper money, of the value of thirty-one dollars, of the personal property of B. B. Gordon, * * * etc.”
The proof on the part of the State tended to show that the money was taken from the person of Gordon, the owner thereof, by robbery, and appellant asked instructions to the effect that a conviction could not be had under an indictment charging larceny if the proof showed that the crime committed was robbery. But the court refused to submit this question to the jury.
It is urged that the indictment is defective, in that it fails to properly describe the money alleged to have been -stolen, and that there is- a variance between the indictment and the prooofj in that the indictment alleges the larceny of gold, silver and paper money, whereas the proof shows the larceny only of paper and silver money; and that there was a failure of proof, in that the value of the money stolen was not shown.
It is also assigned as ground for reversal thát prejudicial error was committed by an improper argument of the prosecuting attorney.
We will discuss the assignments of error in the order stated.
(1) No error was committed in refusing to charge the jury as requested in regard to the crime of robbery. This exact question was decided in the case of Coon v. State, 109 Ark. 354, where it was said: “But 'even if the facts of the case constituted the crime of robbery, it would have been incorrect to give an instruction to the jury that on that account the accused should be acquitted of larceny, the crime charged in the indictment. The charge of robbery includes a charge of larceny, and even though the accused be guilty of the higher offense of robbery, the State has the right to elect to indict for the crime of larceny, which is embraced therein, and seek a conviction for the crime of larceny, ignoring the higher offense. Routt v. State, 61 Ark. 594.”
(2) The indictment sufficiently describes the property alleged to have been stolen. Section 1844 of Kirby’s Digest is as follows:
“Section 1844. In all prosecutions for tlie unlawful taking of money by larceny, embezzlement or otherwise, it shall not be necessary to particularly describe in the indictment the kind of money taken or obtained further than to allege gold, silver or paper money, and a general allegation in the indictment, and proof of the amount of money taken shall be sufficient.”
Nor do we think there was any variance between the allegations of the indictment and the proof because there was no proof of the larceny of any gold money. It would have been improper to have alleged disjunctively the larceny of gold, silver or paper money; but it was entirely proper to allege the stolen property was gold, silver and paper money, and these allegations are sustained by proof of the larceny of money of either kind.
(3) Nor do we agree with counsel that there was any failure of the proof to show the value of the property stolen. The owner of the property had testified that he had gotten his pay check cashed and that he had $31.05 on his person. He was asked: “How much money did you have in your pocket;” and he answered, “I had $31.05.” “Q. How much silver did you have, if you remember?” and he answered, “I had one dollar and a nickel.” “Q. How much greenback or currency?” and he answered, “I had two tens, a five, two twos, and a one, and one dollar in silver and a nickel. ’ ’ If this proof was not sufficient, one could hardly expect to find a case where the testimony would support a charge of larceny committed by stealing money. The words, “money,” “eashed,” “silver,” “greenbacks,” “currency” and “dollar” were employed here, and in each instance the parties were referring to the medium of exchange in use in this country. In the case of The State v. Downs, 148 Ind. 327, the Supreme Court of thgt State said:
“It is apparent, therefore, that if ‘two dollars’ necessarily implies money, there is no valid objection to the indictment in omitting an allegation of value. ‘Dollar is the money unit of the United States. ’ 5 Am. & Eng. Enc. of Law, p. 854. Where a testator directed his executors to place the sum of ‘twenty thousand dollars’ in some good investment, it was held that ‘there is no ambiguity about the word “dollars.” If any word has a settled meaning at law, and in the courts, it is this. It can only mean the legal currency of the United States, not dollars invested in lands, or stocks.’ Halstead v. Meeker’s Executors, 18 N. J. Eq. 136. ‘Money’ in its strict technical sense, is coined metal, usually gold or silver, upon which the government stamp has been imposed to indicate its value. In its more popular sense, any currency, token, bank notes, or other circulating medium in general use is the representative of value, a generic term, and covers everything which by consent is made to represent property and passes as such currently from hand to hand. 15 Am. & Eng. Enc. of Law, p. 701. ‘Money’ designates the whole volume of the medium of exchange régardless of its character or denomination. A ‘dollar’ is of the volume of money, and is by law made a money unit of the value of one hundred cents. ‘Two dollars’, therefore, could only mean a specific sum of money, or money, the value of which is fixed by law, and requires no proof. See Burrows v. State, 137 Ind. 474, 45 Am. St. 210; McCarty v. State, 127 Ind. 223; Graves v. State, 121 Ind. 357.”
We adopt the reasoning of the Attorney General on this subject and .quote as follows from his brief:
“Since money is itself the standard of value, it follows that it is not only unnecessary to prove its value but that it is impossible to do ,so. If value of money was susceptible of proof then money would not be the standard of value, but that thing in the terms of which the value of money was proved would be the standard of value. One might as well speak of measuring the length of a standard yard stick as to speak of ascertaining the value of a standard dollar in money. ’ ’
Section 1826 of Kirby’s Digest defines the difference between grand larceny and petit larceny, and that difference is made to depend upon whether the value of the property stolen exceeds $10 or not. It is made grand larceny by statute to steal certain forms of property with out reference to its value; but where value is esseiitialy itbs- expressed in dollars, and the property here stolen was. dollars, and it would have been a work of supererogation,, if not, indeed, an impossibiity, to have accurately-stated'th'e-va-lue of the property stolen except as só’many-dollars. '
In support of their contention that there is a variance between the allegations of the indictment and the testimony, in that the proof fails to show the larceny of any gold, counsel cite authorities holding that, where several things are alleged to have been .stolen, and a single value given for all the goods in a lump, a conviction is possible only if the taking of all the goods is proved, since, if the proof shows that a part only of the goods was taken, the value of all of them being in a lump, there is no showing of the separate value of the goods. These cases can have no application here, because the property stolen was of a single kind, and the proof showed the larceny of even more property than that alleged, and the question of value is concluded, because the property stolen was itself money, the thing which measures value.
The owner of the property was himself arrested, and, upon his arrest, he referred to the fact that appellant had stolen his money. In his argument to the jury, the prosecuting attorney referred to this fact, whereupon counsel for appellant objected to the argument, and now assigns as error the action of the court in failing to reprimand the prosecuting attorney for having made the argument. It appears, however, that, upon objection to the argument having been made, the court stated that this testimony had been excluded, whereupon the prosecuting attorney stated that he did not know the testimony had been excluded and that he would discuss other features of the testimony, which he immediately proceeded to do. If it be conceded that the argument itself was improper, we think no prejudice resulted from the incident referred to. The prosecuting attorney did not question the ruling of the court, and did not attempt to make the argument which the court had held improper. Upon the contrary, it affirmatively appears, from Ms statement, that lie was not attempting to do so. His statement is in the nature of an apology for having referred to evidence which had been excluded, and we think it impossible that any prejudice could have resulted from this incident.
Finding no prejudicial error, the judgment of the court below is affirmed. | [
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McCULLOCH, C. J.
The plaintiff, N. E. Blevins, sued tbe receivers of tbe St. Louis & San Francisco Railroad Company to recover double damages and attorneys’ fees on account of the killing of two mules, the property of plaintiff, run over by a passenger train operated by the receivers. The value of the mules is alleged to be the sum of $225, and it is also alleged in the complaint that plaintiff demanded the payment of that sum and that payment was refused. On the trial of the cause the jury returned a verdict in favor of plaintiff for the sum of $450, double damages, and $50 attorneys’ fee.
The killing of the stock occurred at night near the station of Mountainburg, in Crawford County, Arkansas. Plaintiff owned the land through which the railroad runs and cultivated a corn crop in the field. He also had a wooded pasture adjoining the field of corn, hut on the night in question the gate between the two fields was left open and the mules strayed into the corn field through which the railroad runs. When the passenger train came along the mules ran out of the corn field, which extended up to the edge of the right-of-way, and went upon the track. The evidence adduced by the plaintiff tended to show that the mules ran down the- track ahead of the approaching train a considerable distance, a part of the way running along what the witness termed the “shoulder” of the dump, and the balance of the way along the track, before being struck by the engine and killed. The engineer and fireman testified that the mules were struck by the engine as soon as they came on the track — that they saw the mules running out of the corn field toward the track and gave the signal, hut that it was impossible for them to stop the' train after the mules came on the track. There was, therefore, a conflict in the testimony concerning the circumstances under which the mules were killed and it was a question for the jury to determine whether or not the evidence was sufficient to overcome the presumption of negligence. We think the evidence was sufficient to sustain the verdict. The evidence was likewise sufficient to sustain the verdict as to the amount of damages.
It is insisted that the judgment should he reversed for the reason that there is no proof of the venue so as to establish the jurisdiction of the court. The complaint contained an allegation that the killing of the mules occurred in Crawford County, and there was no denial of that allegation in the answer. Therefore, the question of insufficiency of the evidence on that issue is not raised.
It is also insisted that there was no proof of the amount demanded in advance of suit so as to entitle plaintiff to recover double damages under the statute, but we find that there was an allegation in the complaint as to the amount demanded and there was no denial in the answer. The answer contains a denial as to the allegation that a demand was made, but there is no denial as to the sum demanded, and the proof of plaintiff is sufficient to show that there was a demand made for payment, although it is not stated in the testimony what the actual sum demanded was. Plaintiff testified that he lodged his claim with the station agent at Mountainburg; that the agent promised to forward the same and thereafter the claim agent came along and took his statement concerning the claim and the circumstances attending the killing of his mules. It is argued that the station agentwas not the proper person to whom a notice of an injury should have been given and that the court erred in allowing the plaintiff, over the objection of defendant, to testify concerning the delivery of the notice of claim to the station agent. The statute of this State under which double damages for killing of stock is recoverable merely provides that the failure of a railway company to pay “after notice is served on such railroad by such, owner” shall entitle the owner to recover double damages and a reasonable attorneys ’ fee, without specifying the manner in which the notice shall be given. Acts of 1907, page 144. A later statute provides that “persons, firms or corporations operating any railroad within this State shall be required to employ one or more claim agents, whose duty it shall be to visit all regular stations upon their said lines where notice has been given to the agent of said company at said station, that any kind of stock has been killed by the operation of said road, as often as once every thirty days, at which time and place said claim agent shall take np the matter of settlement for the killing of any stock with the owner thereof, with a view to making final settlement for said stock and paying for same.” Acts of 1909, page 778.
When the two statutes are read together it is clear that the station agent is constituted the agent of the railroad company for the purpose of receiving notice from the owner of the killed or injured stock and transmitting the same to the claim agent. It was, therefore, proper for the court to admit evidence offered by the plaintiff to the effect that the claim or notice had been presented to the station agent. The evidence shows that pursuant to that notice the claim agent appeared and entered into negotiations with plaintiff for a settlement.
Counsel for defendants attack the validity of the statute authorizing a recovery of double damages and attor^ neys’ fees, but this court has upheld the validity of the statute. Kansas City So. Ry. Co. v. Anderson, 104 Ark. 500. This court construed the statute to allow such recovery only in case the sum originally demanded is not in excess of the sum awarded by the jury, and the Supreme Court of the United States sustained the validity of the statute upon that interpretation of it. Kansas City So. Ry. Co. v. Anderson, 233 U. S. 325.
There are other assignments of error which are not considered of sufficient importance to discuss. The case went to the jury upon correct instructions and the evidence was sufficient to sustain the verdict.
Judgment affirmed. | [
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Terry Crabtree, Judge.
This is from an order of the Phillips County Circuit Court awarding judgment to appellee Nathan George for a small portion of the damages he sought against Mike T aylor for breach of a 2002 agricultural-service contract. Taylor has appealed from this award to George, and George has filed a cross-appeal seeking more damages and attorney’s fees. On direct appeal, we reverse the trial court’s award of damages to George for breach of the parties’ 2002 contract. Because Taylor has not appealed from an award to George regarding a separate agreement in 2001, we affirm that aspect of the decision and modify the judgment accordingly. We affirm on the cross-appeal.
Taylor is a farmer, and George is a custom cotton harvester. For several years prior to the fall harvest of2002, George harvested at least a portion of Taylor’s cotton crop. The parties agree that they entered into an oral contract for George to harvest all 1100 acres of Taylor’s 2002 crop. They disagree, however, about when George was required to begin performance. According to Taylor, George was to begin harvesting his crop when it matured, which usually occurred the last week of September or the first week of October. George, however, maintains that he was not required to begin harvesting Taylor’s crop until after he had finished harvesting a 2000-acre cotton crop for another farmer, Glen Kale. For many years, George harvested Kale’s crop before he harvested Taylor’s crop; this was possible because, in the past, Kale’s cotton matured a few weeks earlier than Taylor’s cotton, usually in early September.
In 2002, George’s three 1993-model John Deere four-row, single-wheel cotton pickers, which lacked rear-wheel assists, were in need of extensive repairs. Before the 2002 harvest season, George hired a cotton-picker technician, Chuck Watkins, to overhaul the pickers, spending approximately $67,660, which George borrowed from his bank. George also performed some of the repairs himself. According to George, he entered into this debt for the overhaul of the pickers in reliance on Taylor’s promise that he could harvest all of Taylor’s crop. Taylor disputes this.
In 2002, Kale’s cotton matured late, and George did not begin harvesting Kale’s cotton until September 30. Taylor’s cotton, however, matured at its usual time in late September. Around October 1, Taylor’s son, Mike Taylor, Jr., came to see George in one of Kale’s fields and told George that Taylor’s cotton was ready for harvest and that, because the rainy weather was predicted to worsen, he had made arrangements to borrow a picker from the Christines, who were friends of the Taylors, and would begin harvesting with that picker. Taylor used the Christines’ picker about a week and, with it, was able to harvest approximately 200 acres of his cotton. The rainy weather continued, and, while George was still harvesting Kale’s cotton, Taylor leased a six-row John Deere picker with rear-wheel assists from a local equipment dealer, obtaining the dealer’s permission to return that picker whenever George was able to help Taylor. Because of the steady rains, Taylor could not begin harvesting his crop with the leased picker until a week or so later. George learned that Taylor had leased this picker and contacted Taylor, who acknowledged that he had leased the picker to harvest as much of his crop as possible until George could arrive to complete the harvest. During this period of time, Mike, Jr., stayed in contact with George by telephone, each advising the other of the progress they were making in harvesting the crops. The weather remained rainy, and the fields were extremely muddy. When most of his crop had been harvested, Taylor borrowed from his friends, the Carnathans, some harvesting equipment that was capable of functioning in muddy conditions.
In early November, Alan Evans asked George to harvest his 900 acres of cotton. Without first contacting Taylor, George declined the offer. George completed his harvest of Kale’s crop on November 11 and called Taylor to let him know that he would be at Taylor’s farm the next day. Taylor then told George that his harvest would be complete the next day and there was, therefore, no need in George’s coming. When George called Evans back about his offer, Evans had already made other arrangements.
On April 11, 2003, George sued Taylor for breach of contract, for which he sought $110,000; promissory estoppel, for which he sought $90,000 for the overhaul of his cotton pickers; and $12,500 that Taylor allegedly owed him for the harvest of 2001. In his answer, Taylor asserted that George was not ready, willing, and able to pick his 2002 crop in a timely manner and stated that he had received no bill for the balance due for 2001. Taylor argued that the parties’ agreement was based upon the expectation that George would harvest the crop in a timely manner and that he could make other arrangements if George was unable to perform. He also said that he had taken the necessary steps to harvest his crop because George was “bogged down in the fields of Glen Kale due to the wet weather.” Taylor asserted that George’s inability to timely harvest his crop excused Taylor’s performance of the contract. In an amended answer, Taylor asserted that he had mitigated his damages by harvesting his own crop and that any expenses he incurred in doing so should be set off against any damages that George might recover. He also contended that George had a duty to mitigate his own damages by accepting other work once he knew that Taylor was harvesting his own crop, and that George failed to do so.
At trial, Taylor paid George for the amount due on the 2001 contract. George testified on his own behalf and offered the testimony of Chuck Watkins, Alan Evans, Glen Kale, Julie Ayde-lotte (his accountant), and Danny Moser (his banker). Taylor testified on his own behalf and presented the testimony of Robert Lee (his accountant), Ed Whatley (an agricultural entomologist), Chris Carnathan (a farmer), Harry Stevens (a farmer), Mike, Jr., and George.
In a February 6, 2004 letter opinion, the circuit judge found that the parties imposed no deadline for George to start harvesting Taylor’s crop or any restrictions against the possibility of adverse weather conditions. The judge stated:
Based upon... the... testimony provided the court finds that an open-end start date would not be reasonable term of agricultural contract. The court does not find that the Defendant entered into a contract containing a term of that nature. As testified, time of picking cotton is an important consideration to a farmer and harvester. While an exact date may not be agreed upon by the parties, in an [sic] verbal contract regarding crops, a reasonable time after maturity of the crops to commence harvest is a term and condition of the contract. As a general rule, Defendant’s cotton matured after Plaintiff had finished with the Kale field’s but not in 2002. Plaintiff was aware of the actions taken by the Defendant to ensure his crop was harvested in a timely fashion. Plaintiff was kept informed of this progress by the telephone conversation with Mike, Jr., Defendant’s agent whom Plaintiff had dealt with in the past.
In one of these conversations, Plaintiff was specifically informed the Defendant had approximately 500 acres remaining to be picked. Plaintiff was thereafter offered the 900 Evans land and made no effort to check with Defendant about the status of Defendant’s harvest. Defendant, on the other hand did not inform Plaintiff of the additional assistance provided by the Carnathans.
By borrowing the Christine picker, renting the 6 - row picker informing the Plaintiff of his actions, the Defendant was taking reasonable efforts to protect his crop and mitigate the potential loss. The use of the Carnathan picker was also an effort of similar nature however here the Defendant failed to inform Plaintiff of this step. Plaintiff testified, and the court finds this testimony credible, with this information he would have contacted Evans and obtained other work. However, due to the Defendant’s failure to contact him, he did not have this option.
The Plaintiff is entitled to recover the profit, that would have been realized from picking the 200 acres, that the court find was picked by the Carnathan equipment.
On March 5, 2004, the circuit judge entered a judgment incorporating her letter opinion, finding that Taylor had not entered into a contract with an open-ended starting date because that would not be a reasonable term of an agricultural contract. She also found that the time of picking cotton is an important consideration to a farmer and that, in a verbal agreement without an exact date, a reasonable time after maturity of the crop is a term and condition of the contract. She awarded judgment to George in the amount of $7500 for the profit he would have realized from picking the 200 acres that was picked by the Carnathan equipment. George moved for an award of attorney’s fees and for prejudgment interest on the amount that Taylor had paid him for the 2001 harvest on the first day of trial. He also moved for reconsideration of the amount awarded him, which the court granted, finding that George’s profit should have been $13,152. The judge also granted his request for prejudgment interest but denied his request for attorney’s fees. An amended judgment increasing George’s damages award to $13,152, granting judgment in the amount of $929.60 for the 2001 prejudgment interest, and denying his request for attorney’s fees, was entered on April 7, 2004. Both parties appealed from the decision. Taylor does not, however, dispute the award to George of $929.60 for prejudgment interest on the amount he paid George at trial for his work in 2001.
Standard of Review
When reviewing a judgment entered by a circuit judge after a bench trial, we will not reverse unless we determine that the circuit judge erred as a matter of law or we decide that her findings are clearly against the preponderance of the evidence. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003). We view the evidence in the light most favorable to the appellee, resolving all inferences in the appellee’s favor. Id. Disputed facts and the determination of the credibility of witnesses are within the province of the circuit judge, sitting as the trier of fact. Id.
Taylor argues on appeal that the trial judge erred in awarding any damages to George because George breached the contract; that Taylor acted reasonably in mitigating his damages; and that George did not act reasonably in mitigating his own losses. He also contends that, even if damages to George were proper, the trial judge erred in failing to set off certain amounts and in calculating those damages. For his cross-appeal, George argues that the trial judge failed to enforce the parties’ contract; erred in not awarding any damages on his promissory-estoppel claim; and abused her discretion in failing to award him attorney’s fees. Logic requires us to first address George’s enforcement-of-the-contract issue on his cross-appeal.
The Terms of the Agreement
George contends that the trial judge erred in failing to enforce the parties’ express contract — that he would harvest all of Taylor’s cotton crop after he finished harvesting Kale’s crop, whenever that occurred. He asserts that the trial judge erred in considering Taylor’s “custom in the trade” defense (that, if necessary, he could hire another harvester) and in finding that the contract was silent as to the time of performance. Thus, he contends, he should have been awarded all of the profits he would have received if the contract had been performed ($73,949).
The controlling issue, therefore, is whether the trial judge’s findings of fact about the terms of the contract are clearly against a preponderance of the evidence. Certainly, the parties’ testimony differed about their recollections of the conversation by which they entered into this contract. George testified that, in August 2002, he asked Taylor if he wanted George to pick his cotton, and Taylor replied that he did. George stated that he told Taylor he could do so but that “Glen’s cotton is first.” He testified that he told Taylor that, in order to pick his cotton, he would have to overhaul his pickers, to which Taylor responded: “Don’t worry about it, you’re going to pick every row of my cotton.” George testified that they discussed the fact that Kale’s cotton was maturing late and that he left the meeting with the understanding that he would pick Taylor’s crop “as soon as [he] finished Glen Kale’s crop.”
Taylor, however, testified that the parties’ 2002 contract was the same as their prior contracts; that it is important to pick the cotton when it is ready; and that, in the past, Kale’s cotton matured two or three weeks before Taylor’s, making it possible for George to finish picking Kale’s cotton by the time Taylor’s was ready, which was usually around the first of October. Taylor stated that he was counting on George to be there when his cotton was ready and that he had not agreed to an “open-ended” contract whereby he would wait on George indefinitely. He said: “It’s Nathan’s responsibility to be there when the cotton is ready. That’s understood .... I expect him to bring whatever equipment, work whatever hours and do whatever is necessary to get to my field in a timely manner.”
Whether the parties agreed that George was to begin work for Taylor only after he was through with his work for Kale, whenever that was, or when Taylor’s crop was mature and ready to be harvested, was a question of fact for the trial judge to determine. See Landmark Sav. Bank v. Weaver-Bailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987); Country Comer Food & Drug, Inc. v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987). Where the pivotal issue is the credibility of interested parties whose testimony is in direct conflict, we defer to the trial judge’s judgment. Estate of Sabbs v. Cole, 57 Ark. App. 179, 944 S.W.2d 123 (1997). Additionally, the testimony of an interested party is taken as disputed as a matter of law. Ester v. Nat’l Home Ctrs., Inc., 335 Ark. 356, 981 S.W.2d 91 (1998).
The trial judge apparently did not believe George’s testimony that Taylor agreed that George could perform after harvesting Kale’s crop, no matter how long it took. As the finder of fact, it is within the trial judge’s province to believe or disbelieve the testimony of any witness. Found. Telecomms., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000). The trial judge here found that Taylor did not agree to an “open-end[ed]” starting date but that the agreement contemplated that George would begin work for Taylor within a reasonable time after Taylor’s crop reached maturity. The evidence clearly demonstrated that, although in the past George had harvested Kale’s crop first, he had also harvested Taylor’s crop soon after it matured; in their prior dealings, George had not left Taylor’s crop to rot in the field. A court may look to the conduct of the parties to determine their intent and to give substance to indefinite terms of a contract. Joshua v. McBride, 19 Ark. App. 31, 716 S.W.2d 215 (1986); Welch v. Cooper, 11 Ark. App. 263, 670 S.W.2d 454 (1984).
The rule is well established that, where there is no provision as to the time of the performance of the contract, the law implies that it must be performed within a reasonable time. Excelsior Mining Co. v. Willson, 206 Ark. 1029, 178 S.W.2d 252 (1944). What would be a reasonable time depends upon the intention of the parties at the time the contract was made, the facts and circumstances surrounding its making, or, in general, what was contemplated by the parties at the time. Id.; see also Mo. Pac. R.R. Co. v. Evans, 206 Ark. 20, 173 S.W.2d 1019 (1943).
Because we cannot say that the trial judge’s finding of fact that George was obligated to harvest Taylor’s crop within a reasonable time after it reached maturity was clearly against a preponderance of the evidence, we affirm on this issue.
The Award to George
Returning to Taylor’s direct appeal, the next question is whether George materially breached the contract. Although the trial judge did not expressly say that he did, it is apparent that she thought so. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Vereen v. Hargrove, supra. As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. Id.; accord Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980); Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S.W.2d 792 (1957); Kelley v. N. Ohio Co., 210 Ark. 355, 196 S.W.2d 235 (1946). “It is an elementary rule that aperson who has himself broken a contract cannot recover on it.” Witherspoon v. Choctaw Culvert & Mach. Co., 56 F.2d 984, 988 (8th Cir. 1932). Forfeitures, however, are not favored in the law, and a relatively minor failure of performance on the part of one party does not justify the other in seeking to escape any responsibility under the terms of the contract; for one party’s obligation to perform to be discharged, the other party’s breach must be material. Vereen v. Hargrove, supra. An influential circumstance in the determination of the materiality of a failure fully to perform a contract is the extent to which the injured party will obtain the substantial benefit that he reasonably anticipated. TXO Prod. Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985); Vereen v. Hargrove, supra.
Because George was not ready to perform until the last day of Taylor’s harvest, and in light of the overwhelming evidence that it would have been disastrous for Taylor to leave the cotton in the field to deteriorate, especially in the rain, we hold that George’s breach of the contract was material and that it relieved Taylor of any further obligation to George.
Taylor argues that the trial judge erred in awarding judgment to George for the profit he would have made from picking the 200 acres that Taylor harvested with the Carnathans’ picker. The trial judge based this award on the fact that Taylor failed to notify George that he was borrowing the picker. She found that Taylor made reasonable efforts to mitigate his loss by borrowing the Christines’ and the Carnathans’ pickers and by renting the six-row picker. The doctrine of avoidable consequences limits the amount of recoverable damages in that a party cannot recover damages resulting from consequences that he could have reasonably avoided by reasonable care, effort or expenditure. Bill C. Harris Constr. Co. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977); Quality Truck Equip. Co. v. Layman, 51 Ark. App. 195, 912 S.W.2d 18 (1995). One is required only to take such steps as may be taken at small expense or with reasonable exertion, and where the expense is so large as to make the requirement impractical, the doctrine has no application. Enter. Sales Co. v. Barham, 270 Ark. 544, 605 S.W.2d 458 (1980). Reasonable diligence and ordinary care are all that are required. Id. The burden of proving that a non-breaching party could have avoided some or all of the damages by acting prudently rests on the breaching party, not only on the question of causation of damages for failure to avoid harmful consequences, but also on the question of the amount of damage that might have been avoided. See Bill C. Harris Constr. Co. v. Powers, supra. In most cases, whether one acted reasonably in minimizing, mitigating, or avoiding damages is a question of fact. Id.; Quality Truck Equip. Co. v. Layman, supra.
We agree with Taylor that the trial judge erred in placing the burden on Taylor to notify George that he was borrowing the Carnathans’ picker over a month after George materially breached the contract and over a month after Mike, Jr., notified George that Taylor was going to begin harvesting his own crop. George’s material breach of the contract released Taylor from any further obligation to him; thus, Mike, Jr.’s communications with George during October and early November about their progress were not necessary, and Taylor had no obligation to inform George that he was borrowing the Carnathans’ picker. We therefore hold that the trial judge erred in making this award to George and reverse on this point. As discussed above, we modify the judgment for George to $929.60.
Promissory Estoppel
George also argues on his cross-appeal that the trial judge erred in failing to award him $67,660.03 for the overhaul of his cotton pickers, which he claims was undertaken in reliance on Taylor’s promise that he could harvest all of Taylor’s 2002 cotton crop. The trial judge did not expressly deny this claim. However, in her first letter opinion, she noted that Chuck Watkins testified that the overhaul was necessary “in any event, prior to commencing custom harvesting that year.”
Promissory estoppel may be a basis for recovery only when formal contractual elements do not exist. Cmty. Bank of N. Ark. v. Tri-State Propane, 89 Ark. App. 272, 203 S.W.3d 124 (2005). In this case, the parties did have a contract; therefore, a claim for promissory estoppel was not appropriate. We affirm on this issue.
Attorney’s Fees
George also asserts that he should have been awarded attorney’s fees. We disagree. The trial judge was not required to award him any fees, and under the circumstances of this case, we do not believe that she abused her discretion in refusing to do so. Arkansas Code Annotated section 16-22-308 (Repl. 1999) provides that a reasonable attorney’s fee may be awarded to the prevailing party in certain civil actions, including those for breach of contract. A trial judge is not required to award attorney’s fees, and we usually recognize the superior perspective of the trial judge in determining whether to award them. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); C&W Asset Acquisition, LLC v. Whittington, 90 Ark. App. 213, 205 S.W.3d 157 (2005). Whether to award attorney’s fees under this statute is a matter within the trial judge’s discretion, and her decision will not be reversed in the absence of an abuse of that discretion. Vereen v. Hargrove, supra. We find no such abuse here.
Affirmed as modified in part and reversed in part on direct appeal; affirmed on cross-appeal.
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George Rose Smith, J.
The only question here is the validity of Act 36 of 1957, which added the following provision to the statute governing the matter of residence in divorce cases: "The word 'residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall he considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.” Ark. Stats. 1947, § 34-1208.1. The effect of the 1957 statute is to substitute residence, in the sense of physical presence, for domicile as a jurisdictional requirement in divorce cases. The chancellor held the act unconstitutional and, finding that the plaintiff-appellant is not domiciled in Arkansas, dismissed his suit for divorce.
The parties were married in 1948 and were living-in Maryland when they separated in 1952. The record does not show where the marriage ceremony was performed, but it was evidently in some state other than Arkansas. It is not contended that either of the parties had ever lived in Arkansas before the appellant came here in May of 1957. At that time he was transferred by his employer, a private corporation, to a station in Millington, Tenxiessee, which is some twenty miles northeast of West Memphis, Arkansas. Wheat rented an apartment in West Memphis and traveled back and forth each day to his work at Millington. After havixxg thus resided in Arkansas for about three months Wheat filed this suit for a divorce, on the ground of three years separatioxi. Mrs. Wheat, who is a resident of California, was served by warning order. She filed a crosscomplaixit asking for separate maintenance, but she denied the court’s jurisdiction to grant a divorce. Although Wheat testified that he intends to make Arkansas his home, the weight of the evidence supports the chancellor’s findixxg that Wheat has xiot established his domicile in this state. Hence the case turns upon the validity of Act 36, by which the jurisdictional requirement of domicile was abolished.
The legal history that lay behind Act 36 is well known. The Civil Code of 1869 required the plaintiff in a divorce case to prove residence in the state for one year next before the commencement of the action. C. & M. Dig., § 3505. In 1931 the legislature amended the statute to require only that the plaintiff prove residence for three months next before the judgment and for two months next before the commencement'of the action. Ark. Stats., § 34-1208. In 1932 we held that the amended statute meant residence only, not domicile. Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. This interpretation was followed until 1947, when we overruled the Squire case and held that the statutory reference to residence meant domicile. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, noted in 2 Ark. L. Rev. 111. The Gassen case did not reach the constitutional question now presented, as the decision involved only an issue of statutory construction. It cannot be doubted that by Act 36 the legislature intended to restore the rule of the Squire case, for the emergency clause in the act refers specifically to that decision and to the Gassen case.
Although the wisdom of Act 36 is of no concern to the courts, since the law of divorce is purely statutory, Squire v. Squire, supra, Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, 152 A. L. R. 327, we may nevertheless observe that the act may well have been designed to prevent perjury. We know, of course, that the residential requirements for divorce vary greatly among the forty-nine states. In a decided majority of the states the plaintiff must have lived in the state for at least a year before filing suit. Louisiana and New York have no minimum period of residence, but their laws do not permit the courts to entertain cases where the state had no substantial connection with the marriage.
Arkansas is one of the five states in which the necessary period of residence is relatively short. In Idaho and Nevada the period is six weeks, in Wyoming sixty days, in Arkansas three months before judgment, and in Utah three months before the commencement of suit. At the time Act 36 was adopted all five of these states demanded proof of domicile as a condition to the granting of a divorce.^
It is a matter of common knowledge that every year thousands of unhappily married persons, unable to obtain divorces at home, visit one or another of these five states in search of marital freedom. It is equally well known that the need for proof of domicile leads to perjury in a vast number of instances. The situation in Nevada, for example, has been described in these words: “It has been estimated that 8,616 divorces were granted in Nevada in 1942 and 11,399 in 1943, the great majority of which must have been obtained by non-residents who went to Nevada solely for divorce purposes, remaining there only the required six weeks. All the while they contemplated returning to their home states immediately after their divorces were secured, yet they all swore falsely that they intended to make Nevada their permanent home, having been warned by local counsel that, unless they did so, they would be out of court. On advice of counsel they also took steps which would be accepted by the Nevada courts as corroborating their sworn statement but were actually nothing more than sham and camouflage. Upon such evidence the courts find that they acquired a Nevada domicil.” Lorenzen, Extraterritorial Divorce — Williams v. North Carolina 11, 54 Yale Law Journal 799, 801. We should be less than candid if we did not concede that similar instances of perjury have taken place in Arkansas. Act 36 goes far toward freeing litigants from the temptation to swear falsely on the issue of domicile.
To hold the act invalid we must be able to assert that it conflicts with some particular clause in the state or federal constitution. Only two clauses seem sufficiently pertinent to warrant discussion.
First is the full faith and credit clause of the federal constitution. This clause is now construed to mean that a divorce decree is not entitled to recognition in other states unless one of the parties was domiciled in the state where the decree was rendered, Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207, 143 A. L. R. 1273, with an exception which precludes either party from attacking the decree if the question of domicile was actually put in issue. Sherrer v. Sherrer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355.
The full faith and credit clause deals only with the extent to which the decree is entitled to recognition elsewhere. It does not purport to say that the decree is not valid in the state where rendered; still less does it intimate that the courts cannot be authorized to act at all in the absence of proof of domicile.
We do not question the desirability of having Arkansas divorce decrees receive recognition in other states. That wish was the basic reason for the Cassen decision. But it must be remembered that a decree is not entitled to respect elsewhere merely because the statute exacts a showing of domicile as a condition to the maintenance of the suit, and this is true even though the court makes a finding that domicile does exist. The decree is still not conclusive of the issue, which may be re-examined in other jurisdictions. Williams v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092. Although Nevada ostensibly requires proof of domicile, we have refused to recognize a Nevada decree when the court’s finding of domicile was clearly unsupported. Cooper v. Cooper, 225 Ark. 626, 284 S. W. 2d 617. With or without Act 36 the acceptance of any particular Arkansas decree by a court in another state will ultimately depend upon whether that court believes that an Arkansas domicile really existed. Even if the act deprives the decree of prima facie extraterritorial validity when the Arkansas court fails to make a finding of domicile, it was for the legislature to say whether this disadvantage is outweighed by the beneficial consequences of the statute.
The other constitutional provision to be considered is the due process clause. On this point the arguments on each side are examined in detail in the majority and minority opinions in Alton v. Alton, 3d Cir., 207 Fed. 2d 667, appeal dismissed as moot, 347 U. S. 610, 98 L. Ed. 987, 74 S. Ct. 736. See also Granville-Smith v. Granville-Smith, 349 U. S. 1, 99 L. Ed. 773, 75 S. Ct. 553. In the Alton case the Court of Appeals declared invalid a Virgin Islands statute which provided that six weeks residence should be prima facie evidence of domicile and, further, that if the defendant entered his appearance the court would have jurisdiction without reference to domicile. The facts were that Mrs. Alton brought suit for divorce after having resided in the Islands for the necessary six weeks. Her husband entered his appearance but made no defense. The trial court refused to grant a divorce without proof of domicile. The Court of Appeals, by a vote of four to three, sustained the trial court, holding that the statute denied due process of law.
We have studied the majority opinion in the Alton case with much care but do not find it convincing. The Fourteenth Amendment declares that no state shall deprive any person of life, liberty, or property without due process of law. The question at once arises: What person was denied due process in the Alton case? The majority’s answer is hardly satisfying: “The question may well be asked as to what the lack of due process is. The defendant is not complaining. Nevertheless, if the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere.” It will be seen that although Alton alone could have complained of a denial of due process and did not choose to do so, the court nevertheless found that his constitutional rights were somehow being violated.
In the case at bar Mrs. Wheat, unlike Alton, elects to contest the action for divorce and to attack the validity of Act 36. We may lay aside at the outset any question about procedural due process. It is not suggested that Mrs. Wheat is being denied notice or an opportunity to be heard. To the contrary, she invokes the court’s jurisdiction by her request for separate maintenance. We also assume that there is no doubt about the power of the Arkansas courts to determine Mrs. Wheat’s marital rights in any Arkansas property her husband may own.
The difficult question is raised by the theory,/Which was the basis for the Alton decision,(that the marriage relationship is a res that remains always at the parties’ common domicile, or at their separate domiciles, and is therefore beyond the reach of courts in other jurisdictions. "See Rest., Conflict of Laws, § 110; Leflar, Arkansas Law of Conflict of Laws, § 133; and compare Corwin, Out-Haddocking Haddock, 93 Pa. L. Rev. 341. It will hardly do to side-step this issue by merely ob serving that the marital status in the domiciliary jurisdiction will not be affected if our decree is not entitled to full faith and credit there.
With respect to the due process clause, as distinguished from the full faith and credit clause, we are not convinced that domicile must be the sole basis for the exercise of jurisdiction over the marriage relationship .//As the court observed in Wallace v. Wallace, 63 N. M. 414, 320 P. 2d 1020; “Where domicile is a statutory jurisdictional prerequisite it is quite correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual which will create a sufficient interest in the state under the due process clause to give it power to decree divorces . . . Precedent is not lacking for the conclusion that divorce jurisdiction can be founded on circumstances other than domicile.” The court concluded that a soldier’s residence in the state for a year, although insufficient to establish domicile, was a reasonable basis for the exercise of jurisdiction over the marital status.
The appellee relies strongly upon the decision in Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 3 A. L. R. 2d 662, where the court held invalid a statute permitting nonresident couples to confer jurisdiction by consent and thus obtain a divorce in Alabama with no residence there at all. We agree with that decision, for there was no reasonable basis for the exercise of jurisdiction over the marital status.
It has been pointed out repeatedly that the theory of basing divorce jurisdiction solely on domicile has led to conflicting decisions and to legal confusion ever since the theory was first formulated in connection with the full faith and credit clause. Domicile differs from residence only in the existence of a subjective intent to remain more or less permanently in the particular state. Whether that intent exists on the part of a person who comes to Arkansas can seldom be proved with any meas- • ure of certainty. Often it is only after the court has decided this perplexing question that the lack of intent ¡becomes apparent, as when the successful plaintiff immediately leaves the state. Although the/court reached its ’decision in the utmost good faith, the want of domicile becomes retroactively so demonstrable that the issue must be decided the other way when the decree is relied upon _ in another state.
By Act 36 the legislature has substituted the simple requirement of three months residence, which can be proved with certainty, for the nebulous concept of domicile, which usually cannot be proved. We concede that the period of residence might be shortened so unreasonably, as in the Jennings case, as to indicate that the state has no reasonable basis for exercising jurisdiction over the marriage. We are not convinced, however, that the act before us is open to that criticism. Under the holding in Squire v. Squire, supra, the rule of Act 36 actually prevailed in this state for fifteen years. Now that the legislature has unmistakably expressed its intention in the matter, we do not feel that the due process clause compels us to say that its action is arbitrary.
Reversed.
Harris, C. J., concurs. Holt and McFaddin, JJ., dissent. | [
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William J. Smith, Associate Justice.
While the appellant, Bill Leach, was driving his automobile west on TJ. S. Highway 71 between Bentonville and Rogers on March 12, 1958, two members of the Arkansas State Police who were driving behind him saw him weaving from one side of the road to the other. They overtook Leach and succeeded in stopping him. The appellant was arrested and charged with operating an automobile upon a public highway while he was under the influence of intoxicating liquor, second offense. The jury found him guilty and fixed his punishment at a fine of $250 and ten days in jail. Pursuant to the jury verdict, the Circuit Court sentenced the appellant and suspended his driver’s license for a period of one year.
For reversal, the appellant contends that the trial court erred in refusing to quash the jury panel and in refusing to grant a continuance; that the jury verdict was based upon prejudice; and, that certain remarks by the Prosecuting Attorney in his closing argument were prejudicial.
At the trial the testimony of the arresting officers and others was to the effect that the appellant was unsteady on his feet; that his speech was not clear; that his face was flushed; and, that he had the smell of intoxicating liquor on his breath. For purposes of this opinion we do not consider it necessary to further summarize the evidence.
With reference to his first assignment of error, the appellant refers to a colloquy between the Court, and the appellant and his counsel at the time the case was set for trial. In our opinion, the appellant has failed to state any statutory ground for challenging the jury panel. Section 43-1911 Ark. Stats. 1947. Also, he is in no position to complain about the jury panel since he failed to exercise his peremptory challenges. Hooper v. State, 187 Ark. 88, 58 S. W. 2d 434.
The appellant’s second contention likewise has no merit. He moved orally for a continuance on the ground that a witness he desired to use was absent, and he did not file an affidavit setting forth information specifically required by the applicable statute. Section 27-1403 Ark. Stats. 1947. Further, a motion for continuance is a matter within the sound discretion of the trial court and we find nothing in the record to indicate an abuse of discretion in this case. Turner v. State, 224 Ark. 505, 275 S. W. 2d 24.
Apparently the appellant’s contention that the jury’s verdict was based on prejudice is predicated upon what he describes as conflicting and ridiculous evidence adduced by the State. It is settled that the jury weighs the evidence and in this case it did so on instructions from the Court to which the appellant did not object. The testimony to which we have referred, we think, constituted substantial evidence to support the verdict of the jury. Slavens v. State, 226 Ark. 62, 287 S. W. 2d 892.
In making his closing argument, the Deputy Prosecuting Attorney said: “In my opinion, he was driving while under the influence of intoxicating liquor, like Joe Means said — strong like he had been by the cider mill. ’ ’ Joe Means, Sheriff of Benton County, had testified that when arrested, the appellant was unsteady on his feet; that his speech was very bad; and, that he had the smell of alcoholic beverage on his breath. In our opinion, this statement by the Deputy Prosecuting Attorney while arguing the case to the jury was nothing more than a permissible comment on the evidence in the case. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816.
The judgment of the circuit court is affirmed. | [
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McCULLOCH, C. J.
This case involves .the question of the validity of a tax sale of land in Jackson County, which is assailed on the ground that the record of the county court fails to show the levy of taxes in accordance with the requirements of the statute. The contention in ■support of the attack upon the validity of the sale is that the record of the levying court fails to show in detail the affirmative and negative votes on the proposition or motion to levy the taxes as provided by statute, which reads as follows:
‘ ‘ The clerk of the circuit court in person, or by deputy in his capacity as clerk of the county court, shall attend the sitting of said court and keep in the county court record a fair written record of the proceedings of said, court, and the names of those members of the court voting in the affirmative and of those voting in the negative on all propositions or motions to levy a tax or appropriate any money shall be entered at large on said record.” Kirby’s Digest, § 1498.
This statute applies, it is claimed, to the levying of State taxes and school taxes. The record of the county court, introduced in evidence in this case, recites in the opening order the presence of the countyjudge and certain of the justices of the peace, naming them, and then follows "the recital of the levy of the State taxes in the following language:
“On this day it was unanimously ordered by the court that a State tax of six and eighty-seven and one-half mills on the dollar be, and the same is hereby, levied on all taxable property, both real and personal, in Jackson County as follows, towit” (here follows the items composing the levy of the different State funds). There is also a recital in the following language of the levy of the school taxes: “On this day it was unanimously ordered by the court that the following tax be, and the same is hereby, levied on all taxable property, both real and personal, within the various school districts of Jackson County, Arkansas, as and for the purposes voted for by the electors of said school districts at an election held in the said Jackson County, Arkansas, on the third Saturday in May, 1911, as certified to this court by the judges and clerks of said election in said school districts as follows, towit. (Then follows the amount of taxes voted and levied in each school district.) “And a vote was taken upon each of said amounts so levied as above set out, separately as they were certified to this court by the judges and clerks of said election held in said several school districts,- and each and every justice of the peace voted ‘yes’ on each of said several levies as above set out. ’ ’
There is no contention in the case with reference to levy of taxes-for county purposes. It is erroneous to assume that the statute concerning the method of levying taxes by the county levying court applies to State taxes, for it is obvious that the statute is intended to apply only to county taxes. In fact, the statute, in express terms, limits its own operation to the levy of “county, municipal and school taxes for the current year.” Kirby’s Digest, § 1499, subdivision 8. State taxes are levied by the Legislature and the clerk of the county court is required by statute to extend upon the tax books the taxes levied for State purposes as certified by the Auditor of State. Kirby’s Digest, § 7020. The Auditor is required by statute to “give notice to such clerks of the county court of the rates per centum required by the General Assembly to be levied” for State purposes, and that the rates so certified “shall be by the county clerks levied upon the taxable property contained in the tax books of their respective counties.” Kirby’s Digest, § 7033.
It is contended that the constitutional provision (art. 7, § 30) for the levying of county taxes by the court composed of the justices of the peace of each county sitting with the county judge applies to State taxes levied in the county. In other words, the contention is, as we understand it, that the words ‘ ‘ county taxes ’ ’ include all taxes to he imposed in the county for both State and county purposes. This is not, however, the correct interpretation of the language of the Constitution. It is intended to provide a method of levying taxes for county purposes. The language of the Constitution clearly contemplates that State taxes are to be levied by the Legislature, for there is contained in that instrument an express limitation upon the power of the Legislature as to the amount of taxes to be levied. Art. 16, § 8. But, even if the statute applied to the levy of State taxes, the record shows sufficient compliance with respect to those taxes, as well as the levy of school taxes. The record recites the names of the justices of the peace who were present and the court will take judicial knowledge of the fact that those present constituted a quorum. It is not, essential to the validity of the record that it must contain an affirmative recital of the fact that a majority of the justices of the peace were present. And the recital in the record that the levy of the taxes was “unanimously ordered” is, in connection with.the preceding recital of those present, tantamount to a specification of the names of those who voted on the question. Hilliard v. Bunker, 68 Ark. 340; Morris v. Levy Lumber Co., 103 Ark. 579.
The statute provides that the county court must levy school taxes (Kirby’s Digest, § 7595), but, as before stated, the record shows a compliance with the statute in the manner of levying those taxes. The attack upon the validity of the sale is, therefore, unfounded and the chancellor was correct in so deciding.
Decree affirmed. | [
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WOOD, J.
Appellant was convicted of murder in the second degree under an indictment in proper form charging him with murder in the first degree, in the killing of one James Edrington.
The testimony on the part of the State tended to show that three men, one Ferguson, James Edrington and one George, had been playing at a game of dice. The men were drinking and Freels was drunk. They got into what is termed in the evidence as a “friendly drunken row.” The men at the time were on a place occupied by Freels, and not far from Freels’ house.
George testified that Freels had a bottle of whiskey and passed his bottle often. Edrington gave Freels $2 for the bottle of whiskey, just to keep it, not to buy it. Freels decided he wanted the whiskey back; so he pushed Edrington over and got hold of it. They had a scuffle. Edrington was laughing at the 'time. Freels seemed to be a little “sore.” Edrington told Freels that he was a good friend of his, but wanted him to let him alone about the whiskey. Edrington hit him in the face, not very hard. Freels got up and came towards Edrington. Ed-rington shoved him back the second time and told him to behave himself, and hit him rather hard. Freels started down the road. Edrington overtook him, caught him by the arm, and Freels jerked loose from him. Freels went to his home and came back. Witness then tells about a controversy between himself and Freels, and continues: “About this time Jim Edrington was driving down the road in a buggy, and told Freels not to shoot him, and drove on down until he got within about twenty steps of him; then Freels leveled the gun on Edrington, Edring-ton threw his hands over his face, telling Freels not to shoot him, but kept going towards Freels, and when he got within twelve feet Freels fired. ’ ’
Another witness testified that at the time the shooting occurred Edrington was not making any demonstration whatever. “When Freels shot Edrington had his hands over his face, laying over in the buggy; the top of the buggy was down. ’ ’
The above sets out enough of the testimony to show the circumstances of the encounter from the viewpoint of the State.
It was contended on the part of the appellant (and testimony was adduced by him tending to prove) that no row occurred between Edrington and Freels;. that Freels, Edrington and George, who were in a buggy going to Freels’ place, got out of the buggy when they arrived at a certain point on Freels’ place for the purpose of engaging in a game of dice; that no row occurred between Edrington and Freels, but that Freels went to sleep soon after they got out of the buggy, because he was so drunk, and that when he woke he went to the house after his gun at the suggestion of Jim George for the purpose of joining one Pittman in a hunt on the following Sunday; that George had taken some money from Freels .while he was asleep; that Edrington followed Freels for a distance and told him that George had taken his money, and told Freels to make George give it to him. Freels . returned with his gun and demanded of George that he give him the- $25 that he had taken from him while he • was asleep. George pulled out the money to give it to - Freels, but instead of giving it to him he grabbed the gun and in the scuffle that took place over the gun the same was accidentally discharged and inflicted the wound in James Edrington’s arm and shoulder.
Edrington was taken to a hospital in Memphis. Two physicians and surgeons attended him. He lingered.for thirty-nine days and finally died. One of the surgeons who attended him at Memphis testified that the cause of his death “was septicemia following the gunshot wound.” This surgeon testified that the wound began about three and a half inches down from the shoulder and ranged upward through the shoulder. Witness didn’t think it would have been in'favor of the deceased to have cut his arm off at the shoulder.
A physician and surgeon introduced on the part of appellant testified, in answer to a hypothetical question setting forth the nature and condition of Edrington’s injury, that the only treatment that should have been-given and the operation that should have been made was to have taken the arm off at the shoulder and to have removed all foreign matter; that the fact that he lived so long would have been in his favor, and that he more than likely would have recovered had his arm been amputated. The lacerated flesh and foreign matter would have a tendency to bring about and set up septicemia. The witness, on cross-examination, testified that the doctors who treated Ed-rington in Memphis stood high as physicians.
The physician who administered first aid to Edring-ton on the ground after he was shot, testified that it was understood that they would take Edrington to Memphis. He administered a hypodermic to overcome the shock. It would probably last three hours, and was given him about thirty minutes before they started to Memphis. It •would have a quieting effect on the patient. Edrington didn’t think he would get well. Said Freels shot him, and shot bim for nothing. He was under the influence' of liquor at the time he made this statement, and it was such that those present would recognize it. The influence of the liquor lasted him until he got to Memphis.
A witness by the name of Goodman testified that Ed-rington made statements to the witness about dying; never did say anything except that he was going to die. When witness had this talk with him he was conscious. He told the witness that when witness met him at the train when he arrived at Memphis, and also the next morning when he was operated on. Witness tried to talk bim out of it, but he insisted that he was going to die. Said the man shot him for nothing, and he asked him not to, and begged him not to shoot. Edrington never changed his statement, but repeated it. Witness did not know whether they gave him opiates or anaesthetics, and didn’t know whether he was under the influence of those things at the time he made the statements or not. He talked rational to witness for ten days. After ten days his mind became flighty; didn’t seem to be anything wrong with his mind the first ten days.
S. E. Edrington, the father of deceased, testified that he saw his son before he was taken to Memphis on the afternoon that he was shot, and went to see him at the hospital several days after the shooting, and talked to him about the result of his wound, and he said he was going to die; didn’t express any hope of getting well at all. Said he was worse than they thought he was. Said Freels shot him for nothing; that when he saw he was going to shoot him he fell over in the buggy and threw his hands up to keep Freels from shooting him in the face. It was about two or three days after the shooting before witness had the conversation with Edrington in the hospital at Memphis. He never said he could get well. Witness was asked who brought the conversation up and answered as follows: “I talked to him this way: ‘Was getting a lot better; going to get well; getting along all right.’ He said, ‘No, Papa, I can’t get well. I will never get well. ’ That was possibly two or three days after the shooting. ’ ’
The jury took the case under deliberation about 9:30 o’clock Wednesday evening. They considered of their verdict until about 12 or 12:30 o’clock that night, when they retired. On Thursday morning the jury was permitted to go through Yiolet Cemetery, at the town of Osceola, where deceased was buried. As they walked through Violet Cemetery, they saw one Mrs. Chas. E. Sullinger, a relative of the deceased, sitting on the curbing around the lot where her mother was buried, and adjoining her mother’s lot was the grave of James Edring-ton. Mrs. Sullinger had her head in her hands and was weeping. Mrs. Sullinger, throughout the trial of the appellant, sat by the side of the attorneys for the State.
During the argument of J. T. Coston, who was of counsel for the State, he ‘ ‘ admonished the jury to go to Violet Cemetery and look upon the freshly-made grave of James Edrington and think of his last words, ‘He shot me while I was begging him not to, and I had my hands to my face. ’ ’ ’
Appellant’s counsel urged only two grounds for reversal of the judgment:
First, that the conduct of the jury in going through the cemetery where James Edrington was buried while deliberating upon their verdict, in connection with the argument of the counsel, was prejudicial to appellant and prevented him from having a fair and impartial trial.
Second, that the court erred in permitting the declarations of James Edrington while on his deathbed to be introduced in evidence.
Concerning the conduct of the jury in walking through the cemetery while deliberating upon their verdict, Mrs. Sullinger testified that she was an aunt of James Edrington, who was buried in his father’s lot in the cemetery. She was in the cemetery on Thursday morning and saw the jury. She was sitting on the curbstone at the foot of her mother’s grave, which is in a lot adjoining the lot in which James Edrington was buried. She was crying, but did not say anything to the jury nor notice them. The jury walked through the cemetery along the pathway, about thirty feet from where she was sitting and did not stop. She did not intentionally do anything for the purpose of affecting the jury. She did not know that the jury would be in the cemetery that morning. She came from her home four miles away. She hardly ever went to Osceola without going to her mother’s grave. She was hard of hearing and did not hear all of Mr. Coston’s argument. She did not hear him say to the jury for them to go over to Violet Cemetery and look at the grave of James Edrington and think of his last words.
The special bailiff having charge of the jury testified that on Thursday morning, after the case had been turned over to the jury the night before, he started out to give the jury a little exercise. Nobody suggested that they go into the cemetery. He was walking behind the jurors. When they got to the corner on the street where Judge Driver lived some one says, “Let’s go to the cemetery.” He did not think any of the jurors knew Mrs. Sullinger. They merely saw a lady sitting there. He did not know himself that it was Mrs. Sullinger. The lady was weeping and glanced around. The jury went straight on through the cemetery, and as they came back through the lady had gone. There was no effort upon her part to attract the attention of the jury. She did not speak a word to them, and the fact that she was in the vicinity of the grave of Edrington did not enter witness’ mind. He heard no discussion among the jury about the presence of the lady there. He did not know where Edrington’s grave was; neither did any of the jury. As they came back through the cemetery some one said, “Here is Ed-rington’s lot here. ’ ’ They saw fresh tracks like some one had planted flowers. They stood there a moment or two and came back to the courthouse. Witness heard Mr. Coston’s argument, and if he had been on the jury he would not have taken the statement to mean that he should take the jury to see the grave.
This testimony shows conclusively that there was no prearranged plan on the part of the attorney and Mrs. Sullinger and the officer that the jury, while they were deliberating upon their verdict, should be conducted to the cemetery for the purpose of bringing them under any sinister influence that would be calculated to arouse their sympathies for the dead and their prejudice against the appellant, and thus to procure a verdict not in accordance with the law and the evidence.
It thus appears that Mrs. Sullinger, while the jury were passing through the cemetery, was at the grave of her mother weeping, which was also near the grave of James Edrington, her nephew. She was there to visit her mother’s grave. It does not appear that the jury knew that it was the same lady who sat with the attorneys for the prosecution during the progress of the trial. Nothing was done or said by her to attract the attention of the jury. The jury did not know at the time where Edrington’s grave was or the fact that she was seen weeping over or near his grave. But even if the jury had known that the lady seen by them in the cemetery was the same lady who sat with counsel for the State and thus manifested an interest in the prosecution and an anxiety for the conviction of appellant, still there is nothing in this incident of such gravity as to render abortive the trial and to call for the setting aside the verdict in this pase. It would be a dangerous precedent to so hold, and would place the verdicts of juries in important criminal trials upon very slender props indeed, for it is often impossible to conduct such trials where, in one form or another, something does not occur, without design on the part of .the trial court or any of those connected in . any way with the trial, that would have a tendency to arouse sympathy or excite prejudice for or against the one side or the other in those who are inclined to be excessively impulsive and emotional. Every trial judge has had this experience; and realizes that he is powerless to prevent snch occurrences.
(1-2) But in all snch cases the presiding judge must have a wide discretion in dealing with the situation as he finds it to prevent, where it is in his power, in the first place, the trial jury from being brought in contact with any outside conditions that are in the least calculated to exert an undue influence upon them. And in the second place, to set aside a verdict of conviction where anything occurs without his knowledge and beyond his power to prevent, that was well calculated to produce a verdict that in his judgment was tainted by passion, sympathy, prejudice, corruption, or any other sinister influence whatever, and therefore not responsive to the law and the evidence. Unless it appears that the trial judge has abused his discretion in dealing with all such matters this court, after he has ruled upon such issues, will not disturb his finding. Each- case must depend upon its own peculiar circumstances, and as to whether the verdict in any case was likely the result of undue sympathy or prejudice, from any cause whatever, the jurors who rendered it must be judged by standards fixed for ordinary men.
The distinguished authors of the article on Criminal Law in Cyc. says: “A new trial will not be granted merely because the jury in a body, while in the charge of the officer, attended a theater, or a church, walked through the jail, or had their pictures taken in a photograph gallery, or in a capital case, while taking a ride by permission of the court, were carried by the scene of the homicide, or being out for exercise were taken beyond the confines of the State or county.” 12 Cyc. 669, b; Palmer v. State, 65 N. H. 221; Bowman v. Western Fur. Mfg. Co., 96 Iowa, 188; Haight v. City of Elmira, 42 N. Y. App. Div. 392; State v. Kent, 5 N. D. 516, 564; State v. Kinsauls, 126 N. C. 1095; State v. Baber, 74 Mo. 292.
Even if it had been proved that the juiy knew that Mrs. Sullinger was a near relative of James Edrington, and knew that she was at his grave weeping as they passed by, the verdict could not have been set aside on that account. She sat with the attorneys for the prosecution during the progress of the trial, and had a right to do so. Tiner v. State, 109 Ark. 139, 149. There the jury must have witnessed every emotion that she exhibited showing her love and devotion to her dead relative and her anxiety that his slayer should be punished. The eloquent appeal of counsel in her presence, as set forth in the record, must have had a far more cogent effect in superinducing sympathy in her behalf than would her mere presence in the cemetery silently weeping at the grave of her loved one. Yet it could not be contended for a moment that these remarks of counsel were beyond the pale of legitimate argument.
In Dolan v. State, 40 Ark. 454, 474, this court quoted from Wharton on Criminal Law (sec. 3111) as follows: ‘ ‘ The general rule is that the verdict will not be set aside on account of the misconduct or irregularity of the jury, even in a capital case, unless it be such as might affect their impartiality or disqualify them from the proper exercise of their functions. ’ ’
We can not presume that any ordinary man, qualified to serve as a juror, would be so susceptible to mere sentimental influence as to allow this momentary graveyard scene to awaken his sympathies for the weeping relative of the deceased to such an extent as to cause him to forget the solemn obligation of his oath to try the cause and a true verdict render according to the law and the evidence.
(3-4) Second. Whether declarations are made under a sense of impending death so as to render them admissible as dying declarations is a preliminary question for the trial court, and its finding will not be disturbed if there is evidence to support it. Fogg v. State, 81 Ark. 417; Jones v. State, 88 Ark. 579; Robinson v. State, 99 Ark. 208. In determining the question the court should consider all the facts and circumstances surrounding the declarant at the time the declarations were made, such as the character of the wound, the declaration of the de ceased himself that he could not live, and the fact that he died shortly afterwards. Robinson v. State, supra; Cantrell v. State, 117 Ark. 233. The question as to the admissibility of such declarations is for the court to determine; the weight and credit to he given them is for the jury. Rhea v. State, 104 Ark. 162.
In Evans v. State, 58 Ark. 47, the declarant, after he was shot, and five or six days before he died, said he was bound to die. He .said six different times that he did not believe he would ever get well. In that case, the court, speaking through Judge Battle, said: “The declarations of a person who has been wounded, respecting the circumstances under which the wound was inflicted, are admissible in prosecutions for the killing of such person, if made at a time when he did not expect to survive the injury, and all hope of recovery has been supplanted by the conviction that he would certainly die. The time when made need not be when the declarant apprehended immediate dissolution. But they are admissible if made at any time when he believed that death was impending and certain.”
Under the above doctrine, the- court certainly did not err in holding that the declarations of Edrington set forth in the statement were admissible as dying declarations. While he lived thirty-nine days after his injury before he died, yet during all that time while he was conscious at all he realized that he was going to die. He had no hope whatever of recovery, and so expressed himself to his father-in-law and his father, while they were in attendance at his bedside. He knew better than those about him that he was fatally stricken. He could feel the shots in his body and insisted from the first to the last that he was going to die. So far as he was concerned, death was impending all the while and the statements were, made with a consciousness of that fact.
There is no error in the record and the judgment must therefore be affirmed. | [
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George Rose Smith, J.
This is a suit by the appellants, doing business as Lundell Plantation, to collect a “furnish” account from their former tenant, H. E. Swindell, and his wife, the appellees. The husband’s responsibility for the debt is conceded; the only question on appeal is whether Mrs. Swindell was a partner with her husband and therefore personally liable for the account. When the suit was filed in 1952 the plaintiffs garnisheed fire insurance proceeds in the amount of $1,-963.64, which were admittedly Mrs. Swindell’s separate property. Upon trial the chancellor held that Mrs. Swindell was not a partner in her husband’s farming-operations; the decree accordingly dissolved the writ and awarded damages for its wrongful issuance.
The weight of the evidence supports the chancellor’s findings. Early in 1949 the Swindells moved to Snow Lake Place, a farm owned by Lundell Plantation. To obtain financing from the landlord the Swindells executed a note for $6,000, payable in ten months, and a deed of trust securing the note and future advances made' during 1949 and 1950. The property conveyed by the' deed of trust consisted of eighteen items of farm machinery, all owned by the husband, and the debtors’ interest in the crops to be grown on the farm. The Swindells remained on the land for four years, during which, the present indebtedness accumulated. It is conceded that the items credited to the account were more than. sufficient to pay the $6,000 note and that no other written evidence of the debt was ever requested or given. If Mrs. Swindell is to be held personally responsible it must be found that the later advances were made to a husband-wife partnership rather than to the husband alone.
The evidence indicating the existence of a partnership is meager. The appellants rely primarily upon the fact that Mrs. Swindell signed the original note, since discharged, and the deed of trust. This alone, however, would certainly not create a partnership, either in fact or by estoppel. It is reasonable to suppose that Mrs. Swindell joined in the execution of the note as an accommodation maker and that her signature to the deed of trust was required as a precaution against the possibility that she might assert a dower interest in the farm machinery. It is also shown that Mrs. Swindell sometimes took the weekly payrolls to the plantation headquarters and obtained cash advances for their payment, picked up the annual statements of the account, and discussed these statements with the bookkeeper. In our view none of Mrs. Swindell’s activities go beyond the assistance that a wife might naturally contribute to the conduct of her husband’s business.
Other evidence effectively rebuts the notion that a partnership existed. Both the Swindells disclaim that relationship. The farm machinery was owned by the husband alone. It is not indicated that the wife had any voice in the management of the farm. The account was in fact carried upon the appellants’ books in the name of the husband only. Mrs. Swindell operated a small store on the place as her own property; her rental payments to the appellants were not carried as a part of the furnish account. The fire insurance policy upon the store’s fixtures and merchandise was payable to Mrs. Swindell. On the record as a whole we are convinced that Mrs. Swindell was not a co-owner of her husband’s business and was therefore not a partner. Ark. Stats. 1947, § 65-106.
Affirmed. | [
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Paul Ward, Associate Justice.
This appeal calls for the consideration of several Acts of the Legislature fixing the salaries of the several officers (and in most cases their deputies) in Independence County. Appellants contended below, and ably contend here, that these Acts are local and violate Amendment No. 14 to the Constitution of this state. Said amendment was adopted in 1926, and reads as follows: “The Q-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts. ” The trial court held that the controversial Acts were not local or special, hence this appeal.
We here set out briefly the background leading up to the litigation, and how the issues arose. In 1936, the voters of Independence County adopted Initiated Act No. 3 fixing the salaries of all the county officers. The salaries fixed by the Initiated Act in 1936 were later thought by some to be inadequate, and so resort was had to legislative enactments. In 1955 Act 426 fixed the Assessor’s salary, and in 1957 separate Acts were passed to fix the salaries of all the officers including the salary of the assessor. These Acts will be discussed later.
In August, 1957, D. Inman and other electors and tax-payers of Independence County instituted injunctive proceedings against Beulah Kelley, County Treasurer, to keep her from paying the County Judge’s salary as fixed by the Legislature. It was asserted that said salary was fixed by Initiated Act No. 3. In response to the above, appellee (Beulah Kelley, County Treasurer) set out that the salaries of the other county officers were fixed by similar legislative enactments and therefore subject to question, and prayed that their status be declared by a declaratory judgment. This procedure was agreed to by appellants.
This appeal therefore presents for our consideration the validity of the several acts of the Legislature in question. First it must be stated it is conceded that Initiated Act No. 3, referred to above, has been repealed by the Legislature. For convenience the several Acts in question will be considered under three separate groups.
One. Act 232 of 1957 fixed the salary of the Treasurer ; Act 350 of 1957 fixed the salary of the Sheriff; Act 358 of 1957 fixed the salary of the County Clerk ; and Act 378 of 1957 fixed the salary of the County Judge.
The trial court held all these acts were general and did not offend against Amendment No. 14 to the Constitution, and we are in agreement. An examination of each of these Acts reveals that it deals with all the counties of the state, and fixes the salaries (not in the same amounts) for each county. Precisely the same situation was under consideration in the case of Lawhorn v. Johnson, 196 Ark. 991, 120 S. W. 2d 720, where Act 97 of 1929 was held not to violate Amendment No. 14 to the Constitution of Arkansas. Said Act 97 and the Amendatory Act, 133 of 1931, fixed the salary of the County and Probate Judge in each of the 75 counties in the state, in varying amounts. It is true that the court in that case referred to the fact that the Legislature passed Act 216 in 1931 wherein it was stated that the salaries theretofore fixed for the different county officers of the state were based upon a proper classification according to population, wealth, etc., but it is clear from the language of the court it did not consider that fact controlling. In answer to a contention that the counties were not properly classified as to population and assessed valuation, the court pointed out that the Legislature had the right, in passing said Acts 97 and 133, to take into consideration other matters in determining the amount of salary to be paid in the various counties. The court then also said: “The authority for the Legislature to pass such legislation is specifically granted by the Constitution, Sec. 4, Art. 16, which reads: ‘The G-eneral Assembly shall fix the salaries and fees of all officers of the state, etc.’ ” We agree with the reasoning in the Lawhorn case, supra. In fact no other conclusion would appear to be reasonable or even tenable. If the Legislature is charged with the power and duty to fix the salaries of all county officers, and it is, it could only do so, under the view urged by appellants, by making all salaries for a given office the same in every county. Such a result would of course not be practical. As was said in State, Ex Rel. Attorney General v. Lee, 193 Ark. 270 (at page 273), 99 S. W. 2d 835, “In determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form and phraseology . . .” This general rule applies with special significance, it seems to us, in the matter of fixing salaries of county officers in view of the language contained in the Constitution quoted above. In summing up we should emphasize that where the Legislature is dealing with the salaries of county of ficers, as here, -under the constitutional directive above quoted, it is not necessary to classify the counties as to population or in any other manner but it is necessary that no county be excluded. See Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617. This is not to say, however, that some of the counties may not be excluded if the exclusion is based on a proper classification.
This court has many times held certain local and special Acts of the Legislature in violation of Amendment No. 14, and appellants have cited and emphasized many of them in their able brief, but it would serve no useful purpose to discuss them. It suffices to point out that all such cases are distinguishable on the facts from the Lawhorn case, supra, and from the case under consideration.
Two. Act 151 of 1957 fixes the salaries of the Tax Collectors in each of the 16 counties in the state where that office is separated from the Sheriff’s office. Among those 16 counties is Independence County. It is the contention of appellants that this Act is special or local and therefore violates said Amendment 14 because it does not apply to all counties in the state. This contention is contrary to many decisions of this court to the effect that reasonable classification is permissible. See Webb v. Adams, supra, Cannon v. May, 183 Ark. 107, 35 S. W. 2d 70, and the Lee case, supra. The general rule is concisely but clearly stated in 50 Am. Jur., page 20-21, under the title STATUTES, General Laws, in these words: “A statute is general where the classification is not arbitrary, but a reasonable, natural and substantial one, resting upon requirements of public policy.” We can hardly imagine a classification that complies with the above mentioned requirements better than the one mentioned in said Act 151. We agree with the trial court that this Act is general and does not violate said Amendment No. 14.
Three. We agree with the trial court that Act 379 of 1957, purporting to fix the salary of the Assessor in Independence is special and invalid. It purports to amend one section of Act 426 of 1955 by creating a clas sification of counties with a population between 23,400 and 23,600. Not only does it not meet the above mentioned requirements of a valid classification, but it fails to mention all counties in the state. We likewise agree that since said Act 379 is invalid, the Assessor’s salary is fixed by said 426 of 1955. The latter Act is valid, we hold, for both of the reasons heretofore mentioned. It not only includes all counties in the state, but it also sets forth classifications based on population which appear to be reasonable and certainly not arbitrary.
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Ed. F. McFaddin, Associate Justice.
This case involves the claim of usury. The appellant, Hughes, filed the action against Appellee Holden, seeking to recover $4,128.90 because it was claimed that Holden had charged usury. The cause was tried before the Circuit Court without a jury; and the findings were made that the original contract and payments thereunder were free of usury. Accordingly, the judgment was in favor of Holden; and there is this appeal.
Holden owned a farm of several hundred acres in Crittenden County. In January, 1954 Hughes rented certain lands from Holden as a tenant, agreeing to pay Holden as rent one-third of the cotton and corn and other crops. Holden sold Hughes on credit certain farming implements, consisting of a tractor, plow, cultivator, etc., for a total in excess of $1,700. In addition, Holden, as landlord, furnished Hughes, as tenant, cash and supplies used in making the crop and amounting to several thousand dollars. There is no claim of usury in any such dealings.
The farming operations for 1954 were not financially successful, and in December of that year the parties made a new contract to rescind and supersede the landlord-tenant contract and the sales contract, both of which had been oral. In the new contract (likewise oral, but conceded, by all parties herein) Hughes agreed (a) to surrender to Holden all the farming implements without regard to value; (b) that the relation between Hughes and Holden for the crop year of 1954 was that of share-cropper instead of landlord-tenant; (c) that Hughes would receive the proceeds of only one-half of the crop instead of two-thirds of the crop; and (d) that Holden would charge all furnishings against Hughes’ half of the crop. Among other things, the effect of this was to relieve Hughes of all obligation to pay for the farming implements. All of the 1954 cotton had been sold and the proceeds retained by Holden except nine bales, and Holden took over Hughes’ half interest in this cotton at 33 cents a pound, and credited the amount against the furnishing account.
After the December agreement, changing the relationship from landlord-tenant to sharecropper as above mentioned, there were no further furnishings by Holden to Hughes and no further payments by Hughes to Holden. Some time thereafter, Hughes wanted a statement from Holden as to the final result of the 1954 operations; and Holden furnished Hughes a statement which showed that, after giving Hughes credit for all of the proceeds of his half of the crop and after charging Hughes with all furnishings, Hughes still owed Holden a balance of $740.05. This statement showed charges against Hughes of $5,093.81 and credits to Hughes’ account of $4,353.76. Included in the charge items against Hughes there was this: “Finance Charge, $370.00.” This is the item of usury.
Hughes moved from Holden’s farm to the State of Mississippi; and then on March 14, 1955 filed the present. action, seeking to recover the sum of $4,128.90, being the alleged value of all of Hughes’ one-half of the crops. It was Hughes’ contention that the charging of usury on the said statement in December, 1954 brought the previous dealings of the entire year within the interdiction of our Usury Statute (§ 68-601 et seq. Ark. Stats.)
But the defect in Hughes’ argument is in the fact that usury never entered into any phase of the original contract and was not brought into the dealings between the parties until the statement that Holden furnished Hughes after all dealings had been completed. The Trial Court found that in the original contract, “There was no provision for the payment of interest for moneys advanced to the plaintiff.” We can find no evidence that interest on the account was ever discussed in the conversations for the “new contract” in December; so the first appearance of any interest charge was in the statement furnished Hughes by Holden; and that was after all furnishings had been made and all crops accounted for. In short, the usury appeared only after the contract had been executed.
We have many times held that the taint of usury in a subsequent usurious contract does not invalidate a prior lawful contract, and the original contract may be enforced if clearly separated from the usury of the subsequent contract. Walter v. Adams, 138 Ark. 411, 211 S. W. 365; Bank of Malvern v. Burton, 67 Ark. 426, 55 S. W. 483; Hynes v. Stevens, 62 Ark. 491, 36 S. W. 689; Johnson v. Hull, 57 Ark. 550, 22 S. W. 176; Tillman v. Thatcher, 56 Ark. 334, 19 S. W. 968; and Humphrey v. McCauley, 55 Ark. 143, 17 S. W. 713. In 102 A. L. R. 573 there is an annotation entitled, “Contract not tainted with usury in inception as affected by subsequent usurious transactions in connection therewith ’ ’; and cases were cited from more than a score of jurisdictions to sustain the general rule that subsequent usurious transactions will not invalidate an original contract free of usury. See also 91 C. J. S. 640. Applying the rule of these cases to the case at bar, we are clearly of the opinion that Hughes is not entitled to recover any part of the proceeds of the crops because those proceeds were applied to his account by mutual consent before any usury ever entered into any of the dealings. So, on the main issue the judgment of the Trial Court is affirmed.
There is, however, a phase of this case which entitles Hughes to some relief, although it is a “Pyrrhic victory.” In his complaint, Hughes alleged that the finance charge of $370.11 was usurious on the furnish account and Hughes prayed for “all other relief.” He proved that the $370.11 was usurious; so he was entitled to a judgment finding that the finance charge was usurious and that Holden could not recover any part of the $740.05. When the Court dismissed Hughes’ complaint, the effect was to leave it appearing that Hughes owed Holden a balance of $740.05. But when the Court found, as it did, that the usurious $370.11 entered into the balance of $740.05, then the Court should have found that the usury tainted the balance claimed by Holden against Hughes. The effect of such a finding would have been to cast Holden for the costs in the Trial Court as well as in this Court. So, we affirm the Trial Court in all respects except in the taxing of costs; and the effect of this modification is to charge all costs of all courts against Holden.
George Rose Smith and Ward, JJ., dissent as to the modification.
We copy a portion of the findings of the Trial Court: “(1) The plaintiff and defendant entered into a landlord and tenant agreement at the outset of 1954 whereby the rent reserved was one-third (1/3) of the crops grown on defendant’s land. As a further consideration, defendant agreed to furnish plaintiff with money and supplies necessary to make the crop, and to sell to plaintiff a tractor and certain tools to use in making the crop. There was no provision for the payment of interest for moneys advanced to the plaintiff. (Italics supplied.)
“(2) The parties farmed under this agreement until some time in December, at which time it appeared to both that the contract was an unprofitable one for both parties. Plaintiff could not pay for the tractor and tools, and plaintiff could not pay for previous advances of money and supplies out of his share of the proceeds of the crop.
“(3) The parties then agreed that in consideration of the surrender of the tractor and tools and the mutual surrender of their respective rights under their contract they would substitute a new contract | [
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J. Seaborn Holt, Associate Justice.
By proper procedure under our Workmen’s Compensation Law (Secs. 81-1301 — 1341 Ark. Stats. 1947), appellant, Mc-Kamie, sought an award of compensation. July 28,1955, appellant’s feet were severely burned when he spilled caustic acid on Ms shoes, an injury conceded to be compensable under the above compensation law. The claim was first heard and denied by a single commissioner, later was denied by the full commission, and again on appeal to the circuit court was denied.
On this appeal (by stipulation) “The respondents (appellees) take the position that claimant was temporarily totally disabled for twelve weeks and three days or until October 24, 1955 and that he had a temporary partial disability from October 24,1955 until May 1,1956. Respondents take the position that they have paid the claimant for his disability and have no further liability.” Further, they take the position that the treatment and hospitalization by Dr. Carruthers was not authorized by appellees or the commission, therefore, appellees are not liable. Appellant, on the other hand, states his position in this language: “The claimant’s position is that he has never recovered from his foot injury and as a direct result and consequence of his foot injury he developed a bursa at his knee which was removed by Dr. Carruthers and that the disability as well as the medical expense resulting therefrom is a part of the compensable injury and respondent is liable therefor.”
Appellant was first treated by a physician in El Dorado who applied dressings to his burns. From August 4 to October 20, 1955 Dr. Rushton of Magnolia treated appellant, during which time appellant’s healing had progressed to the point that enabled him to engage in light work for which he received somewhat less pay than before his injury. Next, appellant was treated by Dr. Shuffield of Little Rock from November 21, 1955 to April 30, 1956, at which time Dr. Shuffield informed appellant that he could return to his regular job on May 1, 1956. The record reflects that from the date of the injury (July 28, 1955) through February 20, 1956, Mc-Kamie was allowed and received temporary total disability payments from the appellees and from February to May 1956 he was allowed and received temporary partial compensation. All payments to appellant stopped on May 1, 1956. On April 30, 1956, when Dr. Shuffield told appellant he could return to his regular job, appellant consulted, for the first time, Dr. Carruthers with respect to a painful swelling on the back of his left knee, which Dr. Carruthers correctly diagnosed as a bursa, and which he removed by surgery on May 8, 1956. Dr. Shuffield examined appellant on April 30, 1956, (the same day on which Dr. Carruthers examined him) and was of the opinion that this bursa was not caused by or the result of the burns suffered by appellant on July 28, 1955. Dr. Carruthers, however, was of the opinion that the bursa was due and caused or superinduced by appellant’s burns of July 28, 1955.
As we read this record the primary and decisive question presented is one of fact, and that is whether there was any substantial evidence to support the findings of the commission. Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here ele novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. We said in the recent case of Grimsley, Adm’x v. Manufacturers Furniture Co., 224 Ark. 769, 276 S. W. 2d 64: “Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit court as well as to the supreme court from the judgment of the circuit court ... On appeal, the Supreme Court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal.”
As indicated, the testimony of Dr. Carruthers and that of Dr. Shuffield is in irreconcilable conflict. It was Dr. Carruthers’ opinion that the bursa which he removed from appellant’s knee was a result of the compensable injury which appellant sustained on July 28, 1955. It appears that Dr. Carruthers first saw and ex amined appellant on April 30, 1956. On the other hand, Dr. Shnffield, who for more than five months prior to April 30, 1956 had been treating appellant, also examined and discharged appellant on that same day (April 30, 1956). Dr. Shnffield had been treating appellant, as indicated, for more than five months prior to April 30, 1956. His findings and conclusions were before the commission, without objection, in a letter dated May 29, 1956, in which he said: “It is my opinion that any trouble he had on the posterior aspect of his knee, was not related in any way to the injury to his foot. I feel that the injury to his foot has healed sufficiently that he was able to carry on with his regular work as of May 1, 1956. Although he had some metatarsalgia secondary to his burn, there was no injury to his metatarsal from the burn itself. It is my opinion that this patient will have no permanent partial disability as a result of the burn he sustained. ’ ’
The commission found that the bursa was not related to appellant’s injury. Dr. Eushton, in summarizing his treatment of appellant stated: “He came into this office complaining of his feet; and I examined him and told him that he had fallen arches, and I thought that if he would buy him some arch supports, they would give him some relief. However, his fallen arches had nothing to do with the burns he had sustained on his feet; . . .” Dr. Eushton further stated that appellant would be able to return to work October 24, 1955.
We hold that the above testimony of Dr. Shuffield and Dr. Eushton, if believed by the commission (and it evidently was) was substantial and sufficient to sustain the commission’s findings. With reference to the effect of medical testimony which is conflicting, we said in Grimsley, Adm’x v. Manufacturers Furniture Co., supra, “While, as indicated, medical testimony given by two doctors, Dr. J. L. Smith and Dr. Paul Ewing, tended to contradict that of the three doctors above, we have consistently held that in situations, as this, such conflicting testimony presents a fact question to be determined by the commission and we are without authority to reverse its conclusions when supported by substantial testimony . . .”
Accordingly, the judgment is affirmed. | [
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George Rose Smith, J.
This application for a writ of prohibition involves a jurisdictional conflict between: the Logan circuit court and the Sebastian circuit court, in cases arising from the same automobile accident. We are asked to prohibit the Logan circuit court from proceeding with two particular phases of the case pending in that court.
The petitioners, Northwest Motors, Inc., and its employee, Clyde Hammock, are domiciled in Sebastian county. On April 21, 1958, Hammock, in the course of his employment, went to Logan county to demonstrate and attempt to sell a car to Jack Goodson, a resident of Logan county. During a test ride, with Goodson driving, the car collided with a truck owned and being driven by Hoyt Bay Walker, a resident of Logan county. Goodson was killed, and there were personal injuries to the others and damage to the vehicles.
Northwest and its employee, Hammock, whom we shall refer to collectively as Northwest, filed separate suits in Sebastian county against Walker alone and obtained service of process. A day or two later Goodson’s administrator brought suit in Logan county against Walker and Northwest, alleging, among other things, that Walker was negligent in driving his truck on the wrong side of the road and that Northwest was negligent in permitting Goodson to drive a car with which he was unfamiliar and in distracting Goodson’s attention just before the collision. In the Logan county case Walker filed a cross-complaint, and an amendment thereto, by which he sought to recover his own damages from Goodson and Northwest. The Logan circuit court denied Northwest’s motion to dismiss this cross-complaint insofar as it pertained to Northwest, and this application for prohibition was then filed. During our summer recess a temporary writ was granted by Justice Ward, and on this phase of the case the question is whether the writ should be made permanent.
On this issue our prior decisions are conclusive. It was incumbent upon Walker to assert in the Sebastian county cases any cross-complaint he might have against Northwest. Ark. Stats. 1947, § 27-1121; Shrieves v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193. Northwest’s suits against Walker in Sebastian county fixed the venue of the controversy between Northwest and Walker and precluded Walker from bringing an independent suit against Northwest in Logan county. Kornegay v. Auten, 203 Ark. 687, 158 S. W. 2d 473; Carnes v. Strait, 223 Ark. 962, 270 S. W. 2d 920. If Walker could not maintain an independent action against Northwest in Logan county, we think it unavoidably follows that he could not achieve the same result by filing a cross-complaint (for damages rather than for contribution) against Northwest in the suit that Goodson’s administrator had brought in that county. On this part of the case the temporary writ is made permanent.
In the Logan county case Walker, as we have said, also cross-complained against the plaintiff, Goodson’s administrator. The administrator then filed a third party complaint against Northwest, under the Uniform Contribution Among Tortfeasors Act, asking for contribution from Northwest in the event that the administrator should be held liable to Walker on the latter’s cross-complaint. The court overruled Northwest’s motion to dismiss the administrator’s third party complaint, and Northwest amended the petition for prohibition to ask that the respondent be prohibited from proceeding further upon the administrator’s third party complaint.
On this second point we confine our decision to the narrow point of law argued by the petitioners in their brief; that is, that the Uniform Act does not permit a plaintiff to file a third party complaint against a defendant who is already in the case. This argument is based on § 7 (1) of the Act, Ark. Stats., § 34-1007 (1), which provides that a third party complaint may be served “upon a person not a party to the action.” But the petitioners overlook subsection (3) of § 7, which permits a party to state “as a cross-claim against a co-party” any claim of contribution that he may have. See the Commissioners’ Note to subsection (3), 9 U. L. A. 248. It might have been more accurate for Goodson’s administrator to entitle his pleading against Northwest a cross-claim rather than a third party complaint, but the difference is merely one of form and can have no effect upon the administrator’s statutory right to seek con tribntion from Northwest. On this phase of the case the writ is denied. | [
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Ed. F. McFaddin, Associate Justice.
The issue on these appeals is the constitutionality of the so-called “Bennett Ordinance”, which was enacted by the City of Little Bock, and also by the City of North Little Bock. Appellant Bates was fined $25.00 for violation of the Little Bock ordinance; and appellant Williams was fined $25.00 for violation of the North Little Bock ordinance. There were separate appeals; but the cases are disposed of in this single opinion since constitutionality is the point at issue in each case, and the claims and defenses of each appellant are the same.
On October 14, 1957, the City of Little Bock adopted its Ordinance No. 10638 (here under attack), reading in its entirety as follows:
“An Ordinance Bequiring Certain Organizations Functioning or Operating Within the City of Little Bock, Arkansas to List Certain Information with the City Clerk: And For Other Purposes.
“Whereas, it has been found and determined that certain organizations within the City of Little Bock, Arkansas, have been claiming immunity from the terms of Ordinance No. 7444, as amended, governing the payment of occupation licenses levied for the privilege of doing business within the city, upon the premise that such organizations are benevolent, charitable, mutual benefit, fraternal, or non-profit, and
“Whereas, many such organizations claiming the occupation license exemption are mere subterfuges for businesses being operated for profit which are subject to the occupation license ordinance;
“Now, Therefore, Be It Ordained by the City Council of the City of Little Rock, Arkansas:
“Section 1. The word ‘organization’ as used herein means any group of individuals, whether incorporated or unincorporated.
“Section 2. Any organization operating or functioning within the City of Little Rock, including but not limited to civic, fraternal, political, mutual benefit, legal, medical, trade, or other organization, upon the request of the Mayor, Alderman, Member of the Board of Directors, City Clerk, City Collector, or City Attorney, shall list with the City Clerk the following information within 15 days after such request is submitted:
A. The official name of the organization.
B. The office, place of business, headquarters or usual meeting place of such organization.
C. The officers, agents, servants, employees or representatives of such organization, and the salaries paid to them.
D. The purpose or purposes of such organization.
E. A financial statement of such organization, including dues, fees, assessments and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization.
F. An affidavit by the president or other officiating officer of the organization stating whether the organization is subordinate to a parent organization, and if so, the name of the parent organization.
“Section 3. This ordinance shall be cumulative to other ordinances heretofore passed by the City with ref erence to occupation licenses and the collection thereof.
“Section 4. All information obtained pursuant to this ordinance shall be deemed public and subject to the inspection of any interested party at all reasonable business hours.
“Section 5. Any section or part of this ordinance declared to be unconstitutional or void shall not affect the remaining sections of the ordinance, and to this end the sections or sub-sections hereof are declared to be severable.
“Section 6. Any person or organization who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than $50.00 nor more than $250.00, and each day of violation shall constitute a separate offense. The City Council in the enforcement of this ordinance shall have the power to seek injunctive relief.
“Section 7. It has been found and determined by the City Council that certain organizations operating within the City of Little Bock have failed to comply with the terms of Ordinance No. 7444, as amended, governing the payment of occupation licenses, and as a result thereof, needed revenue is being lost, and the enactment of this ordinance will provide for more efficient administration of such ordinance. Therefore, an emergency is declared to exist, and this ordinance being necessary for the preservation of the public peace, health, and safety, shall take effect and be in force from and after its passage and approval.”
Daisy Bates, a resident of Little Bock, is the State President of the National Association for the Advancement of Colored People (hereinafter referred to by the letters “NAACP”); and Birdie Williams, a resident of North Little Bock, is President of the North Little Bock Branch of the NAACP. Daisy Bates was notified to comply with the Little Rock ordinance, and Birdie Williams was notified to comply with the North Little Rock ordinance. Each furnished all the information required by the ordinance except that part of Section E, which requires that there be furnished: “A financial statement of such organization, including dues, fees, assessments, and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization”. In refusing to furnish the information required by Section E, Daisy Bates (by her attorney) advised the City of Little Rock:
“E. The financial statement is as follows:
January 1, 1957 to December 1, 1957 Total receipts from memberships and contributors $1,791.55
Total expenditures 1,491.46
Balance on Hand $ 300.09
“F. I am attaching my affidavit as president, indicating that we are a Branch of the National Association for the Advancement of Colored People, a New York Corporation.
“We cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information. We base this refusal on the anti-NAACP climate in this State. It is our good faith and belief that the public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm. Moreover, even aside from that possibility, we have been advised by our counsel, and we do so believe that the City has no right under the Constitution and laws of the United States, and under the Constitution and laws of the State of Arkansas to demand the names and addresses of our members and contributors. We assert on behalf of the organization and its members the right to contribute to the NAACP and to seek under its aegis to accomplish the aims and purposes herein described free from any restraints or interference from City or State officials. In addition we assert the right of our members and contributors to participate in the activities of NAACP anonymously, a right which has been recognized as the basic right of every American citizen since the founding of this country.
“I am enclosing herein a copy of the Constitution of the National Association for the Advancement of Colored People, and the Constitution and By-Laws for Branches of the National Association for the Advancement of Colored People.”
A similar refusal for similar reasons was made by Birdie Williams, concerning the North Little Rock request. For refusal to furnish the requested information each appellant was fined $25.00 by the Circuit Court; and each in prosecuting her appeal to this Court raises this Federal issue: the ordinance involved — insofar as it requires the names and addresses of the members of and contributors to, the local branch of the NAACP, is an invasion of the rights guaranteed by the amendments to the Constitution of the United States. All the other points urged blend into the one just stated.
The appellants have cited and discussed, inter alia: National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 81 L. Ed. 893, 57 S. Ct. 615; Pierce v. Society of Sisters, 268 U. S. 510, 69 L. Ed. 1070, 45 S. Ct. 571; Sweesy v. New Hampshire, 354 U. S. 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203; Grosjean v. American Press Co., 297 U. S. 233, 80 L. Ed. 660, 56 S. Ct. 444, Bridges v. Calif., 314 U. S. 252, 86 L. Ed. 192, 62 S. Ct. 190; Pennekamp v. Florida, 328 U. S. 331, 90 L. Ed. 1295, 66 S. Ct. 1029, National Broadcasting Co. v. U. S., 319 U. S. 190, 87 L. Ed. 1344, 63 S. Ct. 997, Burstyn v. Wilson, 343 U. S. 495, 96 L. Ed. 1098, 72 S. Ct. 777; DeJonge v. Oregon, 299 U. S. 353, 81 L. Ed. 278, 57 S. Ct. 255; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 95 L. Ed. 817, 71 S. Ct. 624; Thornhill v. Alabama, 310 U. S. 88, 84 L. Ed. 1093, 60 S. Ct. 736; NAACP v. Patty, 159 F. Supp. 503 (E. D. Va. 1958); and American Communications Assn. v. Douds, 339 U. S. 382, 94 L. Ed. 925, 70 S. Ct. 674. Also in the oral argument before this Court appellants laid great stress on the case of NAACP v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163, which was decided after the filing of appellant’s brief in this Court. It was claimed that NAACP v. Alabama was conclusive against the validity of the ordinances here challenged.
It would unduly extend this opinion to review each of the above cases or those cited by appellees. For purposes of this opinion we by-pass the point urged by the Cities • — ■ that anonymity is a personal defense and can be claimed only by the organization itself and not by one for it — and we proceed to state our conclusions on the claims that the appellants have made:
I. The primary purpose of each of the ordinances here involved is to obtain revenue for the Cities, and the obtaining of the membership list and the listing of contributors is merely to aid in determining the matter of tax status. The NAACP is not being required to furnish any information other than that which is required of all other organizations seeking immunity from the payment of an occupation tax.. The record here shows that the information required by the ordinances involved was required of all organizations claiming tax exemption; and the information was furnished by all of the requested organizations except the NAACP.
In Arkansas, municipalities are creatures of the State and have the powers which the State gives them. (Eagle, v. Beard, 33 Ark. 497; City of Hot Springs v. Gray, 215 Ark. 243, 219 S. W. 2d 930.) By Act No. 294 of 1937 (now found in § 19-4601 et seq. Ark. Stats.) the Arkansas Legislature authorized municipalities to enact ordinances levying an occupation tax. This was a revenue measure. In Talley v. Blytheville, 204 Ark. 745, 164 S. W. 2d 900, we held that this act of 1937 was authority for cities to enact occupation tax ordinances as revenue producing measures. Our subsequent cases have followed that holding. In 1947 the City of Little Bock passed its ordinance No. 7444, captioned, “An Ordinance Establishing an Annual Privilege License Tax for Various Businesses, Occupations, and Professions within the City of Little Bock Providing for the Amount Thereof ... ” This ordinance has been amended numerous times by changing the amount to be charged various businesses and professions and adding other businesses and professions as subjects of taxation.
On November 22,1948 the City of Little Bock passed its Ordinance No. 7809, entitled, “An Ordinance Believing Charitable Institutions from the payment of Privilege Taxes to the City of Little Bock, Amending Ordinance No. 7444, and For Other Purposes”. Thus, by the Ordinance No. 7809,. certain charitable or non-profit organizations became exempt from the privilege tax, even though such organization engaged in some kind of business. Such was the status of the law when, on October 14, 1957, the City of Little Bock enacted its ordinance No. 10638 first copied herein. The City had reason to believe that some of the organizations, who were claiming immunity under .Ordinance No. 7809, were not really charitable or non-profit organizations. The City wanted to ascertain what was being done by these organizations claiming exemptions; and so the City passed its ordinance requiring such organization claiming immunity from occupation tax to furnish the City certain information.
The NAACP is not being required to furnish any information other than is furnished by all other organizations claiming immunity from taxation. Furnishing of membership lists of non-profit organizations in Arkansas, as a basis of being determined a non-profit organi zation, has been the rule in Arkansas since 1875. Act No. 51 of 1875 (as now found in § 64-1301 Ark. Stats.) provides for the incorporation of a non-profit organization, and Section 2 of that Act (as now found in § 64-1302 Ark. Stats.) says:
“Any association of persons desirous of becoming incorporated, under the provisions of this act, shall file with the Clerk of the Circuit Court and Recorder for the proper county a copy of their constitution or articles of association, and a list of all the members, together with a petition to said court for a certificate of incorporation under the provisions of this act (Emphasis supplied.) So it is nothing new to require a non-profit organization to furnish a list of all of the members. The same rule that applies to such organizations seeking corporate status is sought here to be applied to such organizations that seek privilege tax exemptions. The record shows that the rule is being uniformly applied to all organizations.
Requiring the furnishing of information to the taxing power is not an unconstitutional invasion of the freedoms guaranteed. A taxpayer is required to file an income tax return giving the names of the sources of revenue (as, for instance, the name of the corporation and the amount of the dividend received from it); yet all this has been held to be within the power of the Sovereign. See Hubbard v. Mellon, 5 Fed. 2d 764. Furthermore, the United States Supreme Court, in U. S. v. Harriss, 347 U. S. 612, 98 L. Ed. 989, 74 S. Ct. 808, upheld a law which required the furnishing of the names of contributors and amounts paid by each to any person engaged in seeking to obtain legislation. So the rationale of the holdings seems to be: when the required information is a mere incident to a permissible legal result, then the information should be furnished. That is the situation in the case at bar; and we find nothing in Speiser v. Randall, 357 U. S. 513, 2 L. Ed. 2d 1460, 78 S. Ct. 1332, or in First Unitarian Church of Los Angeles v. Los Angeles County, 357 U. S. 545, 2 L. Ed. 2d 1484, 78 S. Ct. 1350, which affects the conclusion here reached
II. The claim, that it may hurt the prospects of the NAACP to furnish to the City its membership list and the names of the contributors, does not make the ordinance unconstitutional. The Constitutional Amendments do not guarantee anonymity at all events. If NAACP wants tax immunity, it should comply with the ordinance. It cannot have immunity from taxation without complying with the ordinance. This is but an application of the old statement that one cannot both eat his cake and keep it. The case of NAACP v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, affords the appellant no protection in this case. In the Alabama case the prime purpose of the procedure instituted by the Attorney General of Alabama was to obtain information whereby Alabama could force the NAACP out of the State. So the Supreme Court of the United States held that NAACP was not required to disclose against itself. In the case at bar, the purpose of the ordinance is to determine the tax status of one seeking to claim immunity from occupation tax. The ultimate aim in NAACP v. Alabama was to stop the activities of NAACP ; but in the case at bar, the disclosure of NAACP’s list of members and contributors is a mere incident to see if legal taxation is being evaded. The ordinance here under attack does not single out NAACP and require information of it only: rather, the ordinance requires information of all organizations seeking exemption from privilege tax. Other organizations have complied: why should this one have immunity as though it were a favored child!
The United States Supreme Court has quite recently recognized that a law applicable to all persons is valid, even when attacked by those who disliked the law involved. In the case of Shuttlesworth v. Birmingham Board of Education, 162 Fed. Supp. 372, four Negro children sought to test the constitutionality of the Alabama School Placement Law and to enjoin the City Board of Education from enforcing the law. The three-Judge Court, in an opinion by Circuit Judge Rives, held that the Alabama School Placement Law furnished legal machinery for an orderly administration of the public schools by admission of qualified pupils upon a basis of individual merit, without regard to their race or color, and that the law was not unconstitutional on its face. The case was appealed to the Supreme Court of the United States and that tribunal affirmed the three-judge Court in a per curiam order of November 24, 1958, saying: “The motion to affirm is granted and the judgment is affirmed upon the limited grounds on which the District Court rested its decision”. When we study the decision of the District Court, we see that the Alabama School Placement Law was upheld because there was no showing that it was not being, uniformly administered. The same thing is true in each of the ordinances here under attack: there is nothing in the record before us to show that these ordinances were enacted for any purpose other than those stated in the ordinances; and there is no showing that the ordinances are being enforced other than uniformly.
We find no error, and the judgment in each case is affirmed.
Holt and George Rose Smith, JJ., dissent.
About the same time the City of North Little Rock adopted its Ordinance No. 2683; and the Little Rock ordinance and the North Little Rock ordinance are in all substantial respects entirely similar.
To support the contentions for immunity from furnishing the requested information appellants stated in the lower Court and reiterate here: “. . . that Ordinance 10,638 is an unjustified interference with defendant’s rights of freedom of speech and assembly as secured and protected by the Constitution of the State of Arkansas and by the Constitution of the United States of America — namely, the First Amendment as assimilated in the Fourteenth Amendment of the Federal Constitution. It is the contention of the defendant that the City has not shown that there is a compelling reason or a justifiable cause for demanding the contributors’ list to the defendant in this case. The defendant would like to cite two United States Supreme Court cases wherein the Supreme Court held that the request of membership lists and contributors’ lists was a direct violation of this fundamental constitutional right — namely, freedom of speech. The case is Wieman vs. Updegraff, 344 U. S. 183, and there the court said that the right to assemble freely, to join an organization and to participate in its activities is one of the protected rights guaranteed under the Constitution. In Watkins vs. U. S., the Chief Justice of the United States wrote: ‘There is no general authority to expose the private rights of an individual without justification’. In Sweeney vs. New Hampshire, the Court said: ‘We do not now conceive of any circumstance wherein a State interest would justify an infringement upon these fields — freedom of speech and freedom of assembly’. It is our contention that the City of Little Rock has not shown that there is a compelling reason or a justifiable cause for requiring the defendant to produce the names of its members and the names of its contributors.”
The entire text of this Ordinance is as follows:
“WHEREAS, There are certain charitable institutions in the City of Little Rock which engage in the business of manufacturing, and selling, or other lines of endeavor in order to raise funds for charitable purposes such as the assistance of the needy, and the care and education of the crippled and the blind, and
“WHEREAS, These institutions are performing in an unselfish manner a service to the community and are rendering untold aid and comfort to persons who are physically handicapped, and
“WHEREAS, It is believed to be in the best interest of the City and the people of the City of Little Rock to foster and promote such activity on the part of these institutions,
“NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF TEfE.CITY OF LITTLE ROCK, ARKANSAS:
“SECTION 1. Each charitable, eleemosynary, non-profit organization whose purpose is to assist the needy and bring care, training and comfort to the physically handicapped, is hereby exempt from the payment of a privilege tax for the privilege of-carrying on such business or occupation within the City of Little Rock.
“SECTION 2. Ordinance No. 7444 is hereby amended to conform to the provisions of this ordinance.
“SECTION 3. All ordinances and parts of ordinances in conflict herewith are hereby repealed.”
Section 7 of Art. 5 of the Constitution and By-Laws for Branches of the NAACP says that the local branches shall remit, “. . . the net proceeds of each entertainment or fund raising effort by a Branch shall be divided equally between the Branch and the National Office . . .” When we consider that shows and amusement places and other forms of entertainment are taxable under the occupation tax ordinance, certainly the City would have some right to ascertain who was belonging to the NAACP and who was making contributions to it, because it was claiming an immunity and yet sending part of its money for some other use outside of the State.
In 8 Ark. Law Review 110 there is an interesting case note entitled : “Illegal activities by non-profit corporations”. | [
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Ed. F. McFaddin, Associate Justice.
The question here presented is the correctness of the decision of the Circuit Court which-adjudged-that Appellee Hughes was entitled to a fireman’s pension because of physical disability. The appellant here is the Firemen’s Relief and Pension Fund for the City of Pine Bluff (hereinafter referred to as “Pension Board”); and the appellee is David C. Hughes, who claims that he was injured at a time and in a manner that entitles him to a pension. Both sides agree that the applicable law is found in §§ 19-2201 et seq. Ark. Stats., including the 1955 amendments. Pertinent statutory provisions will be mentioned later.
The present litigation began on August 29, 1957, when Hughes ’ attorney filed an oral claim with the Pension Board, which claim was denied. On September 6, 1957 Hughes filed Case No. 14521 in the Jefferson Circuit Court and his pleading was entitled, “Appeal”. In that pleading, Hughes alleged that he received an injury while a regular member of the Pine Bluff Fire Department and that the injury was not received while in or as a result of other gainful employment. He alleged the refusal of the Pension Board to award him a pension and prayed for a Circuit Court judgment awarding him a pension from July 1, 1956, which was apparently some time near the date of his injury. The Pension Board filed answer: (1) denying the allegations made by Hughes; (2) alleging that Hughes was discharged for cause on July 1, 1956; and (3) claiming that Hughes had failed to comply with the law in attempting to obtain a pension.
The cause was heard in the Circuit Court ore terms: part of the hearing was on the 22nd day of November, 1957 and the concluding portion of the hearing was on the 30th day of January, 1958. On the last mentioned date the Circuit Court entered judgment for Hughes for a pension to begin on July 1, 1956. From that judgment there is this appeal in which the appellant presents two points, to-wit:
“1. A Fireman is not entitled to a pension where he fails to file a certificate of disability with the pension board.
“2. Appellee is not entitled to a pension from the Firemen’s Relief and Pension Fund for the City of Pine Bluff, Arkansas, where his injury is caused by his own misconduct. ’ ’
I. Appellant’s First Point. Section 19-2205 Ark. Stats., insofar as concerns disabled firemen, says:
“Whenever a person serving as a fireman in such city or town shall become physically or mentally disabled, except while actually performing work in gainful employment outside of the Fire Department in said city or town, said Board may, upon his written request, . . . retire such person from active service, and, if so retired, shall order and direct that he be paid from said fund a monthly pension . . .”
Section 19-2206 Ark. Stats, says:
“No person shall be retired, as provided in the next preceding section, or receive any pension from said fund, unless there shall be filed with the said board certificates of his disability, which certificates shall be subscribed and sworn to by said person and by the city or town physician, if there be one, and the firemen’s relief and pension fund physician, and such board may require other evidence of disability before ordering such retirement and payment as aforesaid.”
Hughes never filed any written request with the Pension Board and never filed any certificate of disability with the Pension Board, as a basis for his request of August 29, 1957. When the case reached the Circuit Court the Pension Board claimed as a defense that Hughes had failed to comply with the Arkansas Statutes. On the trial, Hughes admitted that he had never appeared before the Pension Board; and no certificate of any kind was introduced in the trial. So the record here conclusively establishes that Hughes did not file a certificate as required by § 19-2206; and that the Pension Board has not waived such failure because it has all the time urged that Hughes had not complied with the law.
The Statute provides in § 19-2210 that appeals from the Board to the Circuit Court shall be, “. . . in the method now provided for appealing from decisions of the Justices of the Peace in civil cases”. The trial in the Circuit Court is de novo; but in the de novo trial in the Circuit Court there was no evidence that Hughes had complied with § 19-2206 Ark. Stats. The question, then, is how fatal is his said failure. The situation here is very much like the situation involving § 51-1101 Ark. Stats. That section provides that before any mortgagee shall proceed to foreclose a mortgage or to replevy under such mortgage any personal property, such mortgagee shall make and deliver to the mortgagor a verified statement of account showing each item, debit and credit, and the balance due. We have held that, unless waived, compliance with § 51-1101 is a prerequisite to the beginning of proceedings. (Lawhon v. Crow, infra.) Likewise, it is clear that, unless waived, compliance with § 19-2206 is prerequisite to the allowance of a disability claim.
The case of Lawhon v. Crow, 92 Ark. 313, 122 S. W. 999, points the way to our conclusions here. In that.case the mortgagee brought suit in the Justice of the Peace Court to replevy personal property described in the mortgage. The mortgagor pleaded in the Justice of the Peace Court that the mortgagee had failed to fully comply with the section that is now § 51-1101 Ark. Stats. The case reached the Circuit Court and the mortgagor renewed his plea. The Circuit Court sustained the defense and the mortgagee appealed. This Court cited the earlier cases of Atkinson v. Burt, 65 Ark. 316, 53 S. W. 404, and Perry County Bank v. Rankin, 73 Ark. 589, 84 S. W. 725, and reached the conclusion that: “. . . the mortgagee does not forfeit his debt by failing to comply with the statute. . . He may still have his remedy of foreclosure by complying with the statute . . So, here, the failure of Hughes to comply with the statute (§ 19-2206 Ark. Stats.) is fatal to his present suit; and the Circuit Court should have dismissed the case, but without prejudice to Hughes’ right to thereafter comply with the statute and have further proceedings. Such is the conclusion we reach' in this case.
II. Appellant’s Second Point. The appellant claims that the appellee is not entitled to a pension because his injury was caused by his own misconduct, and pleads § 19-2210 Ark. Stats, as a defense to any pension claim of appellee. Even though this present case is to be dismissed by the Circuit Court, we think it only proper for future guidance to point out that we are not passing on this second point. Thus, the Pension Board is still at liberty to make its claim, relying on the provisions of § 19-2210 Ark. Stats.
The judgment in the present case is reversed and the cause is remanded, with directions to the Circuit Court to dismiss the present case but without prejudice to Hughes to have further proceedings after he complies with the applicable law.
The amendments made by the 1957 Legislature are found in the Pocket Parts of Arkansas Statutes Annotated, but the 1957 amendments are not applicable to this case insofar as concerns the substantial claim of the appellee, since his alleged injury occurred in 1956.
All the minutes of the Pension Board of August 29, 1957, insofar as relate to this case, are as follows: “The Board of Trustees of the Firemen’s Relief and Pension Fund met in regular monthly session at 8 o’clock AM this date in the office of the Mayor. Mayor Lites presided and the following members of the Board were present: Chief Alford, Firemen Jones, Murdock, Phillips and McCallister. There was none absent.
“Minutes of the meeting of July 31, 1957, were read and approved ...
“Attorney Joe Holmes was present and requested the Board to grant an application for pension made by his client, David C. Hughes.
“Mayor Lites read a court order signed by Circuit Judge Henry Smith decreeing that the appeal by Mr. Hughes to the court be dismissed with prejudice. After some discussion with reference to state laws that applied to the case, Mr. Jones moved that the application of Mr. Hughes to the Board for a pension be denied. His motion was seconded and, upon roll-call vote, carried unanimously.
“Mayor Lites instructed the Secretary to furnish copies of these minutes to Mr. Holmes, to Fire Chief Alford and to the Civil Service Board.
“There being no further business, the meeting adjourned.”
In the appellee’s brief in this Court it is stated that a certificate of disability was filed with the Pension Board of February 12,1958; and what purports to be such certificate appears in the appellee’s abstract; but the judgment herein was on January 80, 1958 and subsequent attempted curative filings cannot improve a defective record.
Some of the subsequent cases citing' Lawhon v. Crow (supra) are: Ford Hardwood Lumber Co. v. Bryant, 178 Ark. 807, 13 S. W. 2d 1; McCoy & Son v. Atkins, 167 Ark. 250, 267 S. W. 779; and Haffke v. Hempstead County Bank, 165 Ark 158, 263 S. W. 395. | [
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George Rose Smith, J.
This controversy over the custody of a nine-year-old boy is between the child’s father, the appellant, and the child’s maternal grandmother, who was appointed as guardian for the boy after the death of his mother. This appeal is from the chancellor’s denial of the father’s petition for a change of custody.
The child’s parents, Clinton and Wanda Rogers, were married in 1947 and were divorced in 1949. The divorce decree awarded the custody of the couple’s six-month-old son to the mother and directed the father (the present appellant) to pay $15 a week for the child’s support. Within fifteen days after the entry of the decree Rogers was jailed for failure to make the required weekly payments. Upon his promise to make proper arrangements for the infant’s support Rogers was released a month later. He at once left the state, settled down in Oregon, and from that distant point ignored the order of support for about eight years. Rogers says that during those years he sent money from time to time to his former wife, although the decree required that the payments be made into the registry of the court. He did not, however, produce any canceled checks or other evidence that would convincingly corroborate his rather vague assertions that he made contributions toward the child’s maintenance. The chancellor was justified in concluding that Rogers pretty well disregarded his responsibility as a father until the present petition was filed in November, 1957.
In the meantime Wanda Rogers, the child’s mother, was left with the burden of providing for the infant. Wanda remarried within a few months after her divorce, but she and her second husband, a man named Curry, found it necessary to move into the appellee’s home and to depend at least to some extent upon Mrs. Crowder for financial help. There can be no doubt that over a period of years Mrs. Crowder assisted in the care of her grandson and helped to meet the family expenses. In September of 1957 Curry killed his wife, Wanda, and then committed suicide; this tragedy was followed by the appointment of Mrs. Crowder as the child’s guardian, and later on the present petition for a change of custody was filed.
In refusing to change the existing arrangement the chancellor found by his decree: “That the child is nine years old, in good health, attends school regularly, and from his appearance in court on the day of this hearing seems to be well adjusted to being with his grandmother. That he obeyed her, was devoted to her, and appeared to look upon her as his own mother. That the testimony showed that the grandmother had reared the child in her home most of the time since his birth . . . That the defendant father is now married to a 23-year-old woman, has one child by this second marriage, and said wife is now pregnant with child. That this court had no opportunity to see this woman. That said woman did not appear in court, nor did she testify by deposition. That this court has no way of knowing whether she would be a fit mother for the nine-year-old boy or not. That apparently the boy has never seen this woman whom defendant asks that this court deliver the boy to, to rear him from now on. That this court has no assurance that the new wife would rear the child properly, see that he attended school or church, etc. That this court does not even know that the new wife would agree to rear the child at all, if defendant were allowed to take him back to Oregon with him.”
As we view this record the appellant’s contention narrows down almost entirely to the fact that he is the boy’s father and therefore occupies a position that is prima facie superior to that of the child’s grandmother. Even so, the many other circumstances disclosed by the proof so strongly support the trial judge’s conclusion that we do not feel warranted in setting aside his decree. Our reluctance to differ with the chancellor is of course enhanced by the fact that he saw both the contending parties on the witness stand and thus had, in contrast to us, an advantage that is immeasurable in a case of this kind.
A minor contention is that the chancellor erred in overruling the appellant’s demurrer to the intervention filed by Wanda Curry’s administrator, who sought to recover the support payments that had accrued since the entry of the original divorce decree. This issue, however, has not yet been determined on its merits, and of course an order that merely overrules a demurrer is not a final judgment from which an appeal may be taken. Ark. State Bd. of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269.
Affirmed. | [
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Carleton Harris, Chief Justice.
Appellee, Charlie W. George, is a school bus driver, and his wife, Susie George, a teacher. On the morning of November 15, 1956, around 8:30 a.m., George stopped the bus on Highway 10 to pick up school passengers, including appellee, Susie George. Ross Weatherford was driving his Ford pick-up truck east on Highway 10 toward Little Rock, by his statement, “ * * * not over 50 miles an hour. ’ ’ It had' been raining, and the highway was slick. According to his testimony, he observed the school bus approaching from the opposite direction at least a quarter of a mile away, and knew that it was a school bus. He stated that when the bus stopped and put out the stop sign, he was about 143 feet away; that he applied his brakes, and the truck began to skid. The skidding truck missed the bus, but struck Mrs. George, who was approaching to board the bus. She received serious injuries. Suit was instituted by the Georges against Weatherford and V. L. Beavers, V. Stackhouse, R. Y. Williams, and T. A. Hazard, doing business as Y. L. Beavers, Engineers, a partnership, it being alleged that Weather-ford was an employee of Y. L. Beavers, Engineers, and was acting within the scope of such employment at the time of striking Mrs. George. Weatherford filed a general denial, and Beavers, Stackhouse and Williams, asserting that they were the only members of the partnership, set up in their answer and amendment thereto, that Weatherford was not acting within the scope of his employment, denied all material allegations relative to his alleged negligence, and specifically pleaded unavoidable accident as an affirmative defense. The amended answer asserted that George improperly brought the school bus to a stop, improperly displayed the stop signal, and was improperly parked; that this handling of the bus by George caused Weatherford to be confronted with an emergency, and the latter did what appeared to be proper and reasonable at the time, and under the circumstances. The cause proceeded to trial, and at the conclusion of the evidence, the court inter alia instructed the jury that Weatherford was, at the time of striking Mrs. George with the truck, “on business for the defendant in the course of his employment.” Six special interrogatories were submitted, and the jury returned its verdict, finding that Weatherford was negligent, and that such negligence was the proximate cause of the injuries and damages; finding that neither Susie George nor Charlie George was guilty of any negligence whatsoever, and awarding damages to Mrs. George in the sum of $25,000 and to Mr. George in the amount of $2,868.06. From the judgment entered against appellants, comes this appeal.
For reversal, three points are urged.
I.
The Court erred’in declaring as. a matter of law that Ross Weatherford, Jr., was at the time of the accident, the agent, servant and employee of the appellant, Y. L. Beavers, Engineers, and was acting in the course of his employment. This error was committed by the giving of Appellees’ Instruction No. 5 and refusing to give Appellants’ Requested Instructions No. 6 and No. 12.
II.
The Court erred in refusing to give Appellants’ Requested Instruction No. 11.
III.
The Court erred in refusing to give Appellants’ Requested Instruction No. 13.
We proceed to a discussion of each point in the order listed.
I.
The only evidence included in the transcript consists of the answers given to interrogatories propounded to R. Y. Williams and Ross Weatherford, and the oral testimony of Weatherford. Appellees’ Instruction No. 5, objected to by appellants, reads as follows:
“You are instructed that the liability of the defendants, Y. L. Beavers, Y. Stackhouse and R. Y. Williams, doing business as Y. L. Beavers, Engineers, is based upon the rule that an employer is liable for the actionable negligence, if any, of its employee, Ross Weatherford, causing injuries and damages, if any, to the plaintiff, while such employee is in the course of his employment. In this case, the Court tells you that Ross Weatherford was, at the time he struck Mrs. George with his truck, on business for the defendants in the course of his employment. You are further instructed that if you find from a preponderance of the evidence that the negligence, if any, of their employee, Ross Wea therford, was the sole proximate cause of the plaintiff’s injuries and damages, if any, then you will answer Interrogatory No. 1 in the affirmative and Interrogatories No. 3 and No. 5 in the negative.”
Appellants’ Requested Instructions No. 6 and No. 12, refused by the Court, are as follows:
“You are instructed that the plaintiffs seek to recover against the defendant, Y. L. Beavers, Engineers, on the allegation that Ross Weatherford was at the time of the accident acting as their agent, servant and employee and within the course of his employment with them. In this connection, you are instructed that the burden of proof is on the plaintiffs to prove these allegations by a preponderance of the evidence.”
“You are instructed that the burden of proof is upon the plaintiffs to prove that Ross Weatherford, was at the time of the alleged accident, acting as the agent, servant and employee of the defendant, Y. L. Beavers, Engineers, and, further, that he was acting within the scope of his employment.”
We are unable to agree with this contention. R. V. Williams, a member of the partnership known as Y. L. Beavers, Engineers, in answer to interrogatories, testified that he personally hired Weatherford, and that his employment began at 8:00 a.m. on November 15, 1956. From his testimony:
“4. Did you pay Ross Weatherford for time in your employment for the date of November 15, 1956?
A. Yes.
5. If so, for how many hours of work did you pay Ross Weatherford for work performed on date of November 15, 1956?
A. 8 hours.
6. What work was Ross Weatherford performing for you at approximately 8:30 a.m. on November 15, 1956?
A. He was to meet me at the Highway Department office at 10:00 a.m.
7. Did you pay Ross Weatherford for the use of his truck in your service for the day of November 15, 1956?
A. Yes.
8. Did you hire the truck owned by Ross Weather-ford and agree to pay a certain rate per mile to Weather-ford for use of the truck?
A. Yes. 8 cents per mile.
9. Did you pay Weatherford for mileage for use of the truck on November 15, 1956, the truck having been used in your service on November 15,1956?
A. Yes.
10. State whether or nor Weatherford’s 1953 Ford pick-up truck was being used in your service and being driven by Weatherford on or about 8:30 a.m. on November 15, 1956?
A. He was going to meet me at the Highway Department at 10:00 a.m.
* * *
15. State whether or not Ross Weatherford was in your employ on November 15, 1956, at approximately 8:30 a.m.
A. His time began at 8:00 a.m., and he was going to meet me at the Highway Department office at Little Rock at 10:00 a.m.
16. State whether or not you, or one of your employees, had instructed Ross Weatherford that his time was to start at 8:00 a.m. on November 15, 1956, and that his mileage for his truck would begin at that time, that Weatherford should drive from Weatherford’s home to the State Highway Department in Little Rock, that Weatherford would be paid for mileage on his truck from his home to the highway department?
A. Yes.” ■
Weatherford testified that he- left his home in Perryville about ten minutes until eight, dropped his young daughter off at school and then started out for Little Rock. Relative to his employment, he testified, in answer to interrogatories propounded to him:
“1. Were you employed by Y. L. Beavers, Engineers, on or about November 15, 1956?
A. Yes.
2. It is true that your employment began with Y. L. Beavers, d/b/a Y. L. Beavers, Engineers, on November 15, 1956, at 8:00 a.m.?
A. Yes.
3. Is it true that you were using your truck in your work for them?
A. Yes. * * *
7. Is it true that you were on the payroll of V. L. Beavers on the morning of November 15, 1956, at approximately 8:30 a.m. when you had a collision in your truck with Mrs. Susie George on Highway No. 10, approximately eight miles west of the Little Rock city limits ?
A. Yes.
8. Were you on duty and working for V. L. Beavers at the time you struck Susie George with your truck at about 8:30 a.m. on November 15, 1956, on Highway No. 10 approximately eight miles west of the Little Rock city limits?
A. Yes. * * *
11. At the time of the accident complained of in the complaint on November 15, 1956, at 8:30 a.m., were you working under instructions given you by R. V. Williams who was doing the work for Y. L. Beavers on the highways of Arkansas at the time of the accident complained of in the complaint?
A. Yes.”
There is no testimony that conflicts in any manner with the above evidence, and we are accordingly of the opinion that the court acted properly in giving Instruction No. 5 and in refusing to give Appellants’ Requested Instructions No. 6 and No. 12. As stated in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010:
u* * * infererice or presumption of fact, * * * may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence * * * is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court.”
Again, in Braman and The Gus Blass Co. v. Walthall, 215 Ark. 582, 225 S. W. 2d 342:
“The evidence on behalf of appellees as to publication of the alleged slander appears to be uncontradicted and we have frequently held that it is not necessary to submit to the jury an issue established by undisputed. evidence.”
See also Sutton & Collier v. Kesterson, 199 Ark. 269, 133 S. W. 2d 450.
II.
Appellants requested the following instruction, which the court refused to give.
“You are instructed that if you find from the evidence in this case that Charlie W. George was guilty of negligence and that such negligence, if any, was the sole proximate cause of this accident and resulting injuries, then your verdict will be for the defendants.”
Whether the failure to so instruct was erroneous, is immaterial under the circumstances in this case. Appellants’ Requested Instruction No. 8 was given, in which the statute relating to the duties and obligations of a school bus driver was quoted, and the jury was told:
“ * * * If you find from a preponderance of the evidence in this case that the plaintiff, Charlie W. George violated this Statute, then you are told that such violation, if you find that he did violate the Statute, is prima facie evidence of negligence. By prima facie evidence of negligence, the Court does not mean that a violation of the Statute, if you find there was a violation, is of itself necessarily sufficient to constitute negligence, but the Court does mean that you should take such violation, if you find there was a violation, into consideration with all the other facts and circumstances of the case in arriving at whether or not the plaintiff, Charlie W. George, was negligent as negligence is defined in these instructions.”
The question of negligence on the part of Charlie George was submitted to the jury in Special Interrogatory No. 5, reading as follows:
“Do you find from a preponderance of the evidence that Charlie George was negligent and that such negligence, if any, was a proximate cause of his damages, if any, complained of by him?”
The jury answered this interrogatory “no”, and in Interrogatory No. 6:
“Using 100 per cent to represent the total negligence involved, what do you find from a preponderance of the evidence to be the amount of negligence on the part of the following:
Charlie George: ‘None’ per cent
Ross Weatherford: ‘100’ per cent”
It certainly follows, that if the jury found George guilty of no negligence whatever, they would not have found that negligence on his part was the ¡proximate cause of the mishap. Accordingly, even if the failure to give the instruction was error, the verdict rendered by the jury had the effect of healing or remission.
III.
Appellants requested that the following instruction be submitted to the jury.
“You are instructed that if you find from a preponderance of the evidence that Boss Weatherford was driving down that highway at a rate of speed not exceeding 50 miles an hour, which is a lawful speed, and he was on his proper side of the road, and that when he applied the brakes to his truck, that his truck then skidded out of control as a result of the condition of the highway, over which he had no control and which he could not have foreseen in the exercise of ordinary care, then you are instructed that Boss Weatherford would not be guilty of negligence in this case and your verdict would be for the defendants.”
Without entering into a discussion of whether the instruction was proper or improper (though we have reached the latter conclusion), let it suffice to say that the theory of unavoidable accident, as well as emergency, was clearly submitted to the jury by Appellees’ Instruction No. 7, and Appellants’ Instructions No. 1 and No. 3. These instructions, together with the others submitted by the court, fairly presented appellants’ theory of the cause of the accident.
Finding no reversible error, the judgment is affirmed.
From the testimony: “Well, it was kind of dark and it had been raining back up the road a few miles, but it had slacked up and was still dark, you know, at the time of the accident. It wasn’t raining at that time and I saw the bus. I saw the bus coming down the road for at least a quarter of a mile and I knew it was a school bus, but I was driving along there and the school bus wasn’t stopped, and the first time— when the bus stopped is when I applied my brakes, and that is the first time I saw the stop sign on the bus.
Q. And then when you saw this stop sign on the bus, what did you do?
A. I applied my brakes.
Q. You applied your brakes and when you applied your brakes, what happened?
A. Well, the back end of the truck flew off the highway on the right hand side. It left the blacktop and it headed right toward the school bus. Well, there was only one thing in my mind, to try to stay out of that school bus and that is what I did.”
The answer alleged that Hazard was not a member, and that the partnership had been erroneously sued. Other motions were made, but are not involved in this appeal,
No judgment was entered against Hazard.
Appellees’ No. 7. “You are instructed that the term ‘unavoidable accident’ means an accident which was not due to the negligence of either the driver or of the pedestrian, but was due to a series of events or circumstances not in the control of either the driver or the pedestrian and consequently not the fault of either the driver or the pedestrian.”
Appellants’ No. 1. “You are instructed that if you find from the evidence in this case that the accident was brought about as a result of unavoidable accident, then you will answer Interrogatory No. 1 in the negative.”
Appellants’ No. 3. “You are instructed that when a person is driving a truck and is confronted by an emergency which is brought about without any negligence on his part, then it is the duty of such person to take necessary action to prevent injury to himself or other persons, or damage to property. Although it may appear afterwards that he was mistaken in the action he took and that some other course might or would have been better, if the driver, when confronted with the emergency, was not guilty of negligence in making the decision and taking the course he took, then he would not be liable for a mistake of judgment and would not be liable for any damage to persons or property caused by his actions.” | [
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Sam Robinson, Associate Justice.
This is a divorce suit. Appellant, Bernadette Lambert, and appellee, Robert W. Lambert, were married in the State of Rhode Island in 1942. The parties have one child, Suzanne, born August 18, 1946. In August, 1954, Mr. Lambert, who worked for the American Paper and Tube Company, was transferred to Port Gibson, Mississippi. Later he was joined in Mississippi by his wife and daughter. On September 12,1955, Mrs. Lambert and Suzanne left Mississippi and returned to Rhode Island. A few days thereafter, on September 23, 1955, Lambert filed suit for divorce in the chancery court of Claiborne County, Mississippi. He alleged in his complaint that “without just cause or any fault on the part of complainant, the defendant, Bernadette Lambert, departed Port Gibson and returned to her home in "Woonsocket, Rhode Island.” Mr. Lambert also alleged that Mrs. Lambert had treated him “in an habitual cruel manner”, naming the ■particulars of such alleged treatment. Mrs. Lambert answered, denying the allegations of the complaint, and filed a cross complaint in which she asked for separate maintenance. A trial was had upon the issues joined. Lambert’s complaint Avas dismissed and Mrs. Lambert was granted separate maintenance on her cross complaint.
On September 8, 1957, Lambert filed the present suit for divorce in the chancery court of Ouachita Coun ty, Arkansas. As grounds for divorce he alleged desertion and indignities. Mrs. Lambert answered, denying those allegations of the complaint setting out grounds for divorce, and she asserted the affirmative defense of res judicata. It was stipulated by the parties in open court that all matters of personal indignities were res judicata. The court granted Mr. Lambert a divorce on the ground of desertion, and Mrs. Lambert had appealed.
Appellant raises several points, among which is that the issue of desertion is res judicata. We agree with appellant in that respect and reach only that point. Although in the Mississippi case Lambert did not allege desertion as a statutory ground for divorce (the parties had been separated only about ten days when suit was filed), he did allege that Mrs. Lambert had deserted him without just cause. The record of all the evidence in the Mississippi case was introduced in the trial of the present action. It can be seen that one of tie most vigorously contested issues in that case was whether Mrs. Lambert left Mississippi and returned to Rhode Island because of ill treatment by Lambert, or whether she deserted him without just cause, and the chancellor’s decree was in favor of Mrs. Lambert. A finding in favor of the wife in a separate maintenance action is not necessarily a finding that the husband has no grounds for divorce. Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S. W. 2d 638. But here the issue of whether Mrs. Lambert deserted her husband without just cause in September, 1955, was stoutly contested in the Mississippi court. In Mississippi a wife will be denied separate maintenance where she has deserted her husband without just cause. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161. Therefore, in granting Mrs. Lambert separate maintenance the Mississippi court must have concluded that she was no deserter. Especially is this true, since the very question of whether she deserted her husband was an issue in the case. Hence the only issue in the case at bar — that is, whether Mrs. Lambert deserted her husband —is res judicata.
If Mrs. Lambert did not desert her husband, within the meaning of that term as applied to a divorce action, in September, 1955, she has not deserted him at any time. Because the wife leaves her husband does not necessarily mean that she has deserted him. In Wickliff v. Wickliff, 191 Ark. 411, 414, 86 S. W. 2d 553, the court said: “. . . where a spouse intentionally brings the cohabitation to an end by misconduct which renders the continuance of the marital relations so unbearable that the other leaves the family home, the former, and not the latter, is the deserter. ’ ’
Appellee attempts to make a point of the fact that appellant’s answer was not filed within the time prescribed by Ark. Stats. § 27-1135. His brief contains no citation to the record wherein the point was raised in the lower court. The designation of contents of record on appeal does not designate any motion or pleading wherein the issue was raised. This is not a matter that can be raised for the first time on appeal.
Since Mr. Lambert’s alleged cause of action, desertion, is res judicata, that part of the decree granting a divorce must be reversed. It is so ordered. | [
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Smith,
J. Certain residents of Arkansas City peti tioned the mayor of that city to enforce the Sunday baseball law “today and hereafter,” whereupon the mayor issued a warrant of arrest against eighteen baseball players, who were not named therein, and placed it in the hands of the sheriff of the county for service. The sheriff went to the park where the game was to be played, saw the managers of the respotive teams, and advised them that he had a warrant for their arrest if they played, and notified them that, if the game was played, to report at 6 p. m. on the following day at the office of the mayor. The game was played, and, at the appointed hour, an attorney representing the players appeared before the mayor, and moved to dismiss the prosecution because no bond for costs had been filed. This motion was overruled, and, after hearing certain testimony, a fine was imposed, and from that judgment an appeal was prosecuted to the circuit court.
In the circuit court the motion to dismiss was renewed, whereupon the State called the sheriff as a witness, and the facts above stated were developed, as well as the following additonal facts: After serving the warrant in the manner stated, the sheriff found a comfortable seat and witnessed the game, and that fact was developed in the trial before the justice of the peace. On his cross-examination the sheriff testified, however, that the arrest made by him was made under the warrant, and not because an offense had been committed in his presence, and that, after the game, he said nothing to any player, nor did he report to the mayor that he had seen the game, and that he went to the mayor’s office to make return of the warrant, and while there he was called as a witness, and testified that he saw the game, but he also testified that he did not originate the prosecution. The motion to dismiss for want of bond for costs was overruled by the circuit court, and a fine imposed.
Reversal of the judgment of the court below is asked upon the ground that a bond for costs should have been given, as required by § 3279, C. & M. Digest.
It is the opinion of the majority that the motion to dismiss was properly overruled. ■ It is an undisputed fact that the sheriff saw the game of ball played, and the offense was therefore committed in his presence, and by § 2904, C. & M. Digest, it was his duty to make the arrest, even though he had no warrant at all. The warrant issued and the arrest made sufficed to bring the parties into court, and this the sheriff should have done, even though he had no warrant, and, when the officer is under this duty, no bond for costs is required in the prosecution. In such .cases the officer is not a prosecutor within the meaning of § 3279, supra. This section of the Digest provides that the prosecutor, or some person for him, in cases less than a felony, in the justice and other inferior courts, shall give security for the payment of all costs which may accrue in such prosecution. The purpose of this section of the statute is to prevent reckless prosecutions, and to require the person who seeks to set the machinery of the criminal law in motion to give security for costs if the prosecution thus begun is not sustained. But this section does not apply to arrests made by peace officers for offenses committed in their presence, it being their duty, under the statute, to make arrests at the time.
It is the opinion of the majority that the arrest in this case is to be treated like any other arrest made under defective process. There was an arrest which brought the parties into court, and an arrest should have been made by the sheriff, whose right to do so was not dependent upon the existence of a bond for costs, and, the parties having been brought before the court, it was unimportant that the process under which this was done was defective. The purpose of an arrest, whether by warrant or otherwise, is effected when the accused is brought into court, and it is therefore unimportant that the process whereby this was done was defective, and the fact that the sheriff did not intend to make the arrest because the offense was committed in his presence is also unimportant, because it was in fact committed in his presence, and the violators of the law were in fact brought into court. Mayfield v. State, 160 Ark. 474, and the cases there cited. In any case where the arrest was made by an officer who saw the offense committed, no bond for costs can be exacted as a condition precedent to a hearing of the cause, and the motiou to dismiss was therefore properly overruled. .
It is the opinion of Justice Hart and the writer that the bond for costs should have been required.
Judgment affirmed. | [
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Smith, J.
This is a suit in replevin to recover possession of certain plate-glass showcases. The cases have marble bases, and are very heavy and valuable. There was a verdict and judgment for the defendant, and the plaintiff has appealed.
The point in issue is reflected by an instruction numbered 3, given over the objection of the plaintiff, the trustee in bankruptcy of Elkins. It reads as follows: “If you find from a preponderance of the evidence in this case that M. L. Elkins sold Doctor Collier an automobile and took the show-cases as part of the payment on the purchase money, then the court instructs you that this was an absolute sale of the property to M.. L. Elkins, and you will find for the plaintiff, unless you find that, subsequent thereto, and before the petition in bankruptcy was filed, there was a contract and agreement between the parties, mutually understood and agreed, that the title should be reserved in Doctor Collier until the show-cases were paid for and the mortgage satisfied on the automobile. In order to convey the title back in Doctor Collier, it is necessary for the proof to show that there was a positive agreement between the two that the title should he reserved in Doctor Collier until the mortgage was discharged, and this before the petition was filed. If you do not so find, you will find for the plaintiff. ’ ’
Appellant concedes that, if this instruction correctly declares the law, and that there was testimony upon which to base it, this ease will have to be affirmed; but he questions both the soundness of the legal proposition there announced and the sufficiency of the testimony upon which to base it.
Dr. Collier testified that he traded the show-cases to Elkins for an automobile, but, after doing so, he was informed that the Citizens’ Bank of Pine Bluff had a mortgage on the automobile, whereupon he saw Elkins, who admitted this was true, so he and Elkins agreed that witness “should hold the cases until the mortgage was settled.” Witness further explained the new contract about the cases, after discovering there was a mortgage on them, as follows: “I just figured the cases were mine until he paid the mortgage off. ’ ’ The mortgage was later paid, whereupon a bill of sale was executed, this being the first and only bill of sale given.
There was also testimony that, after the new eon-tract, wherein it was agreed that Collier should hold the show-cases until the mortgage was paid, Elkins assumed no authority or control over the cases, and they were not moved, and, when Elkins listed his assets at the time he filed his petition in bankruptcy, he did not include the show-cases, and they were pointed out at the time as being in the possession of Collier.
We do not undertake to review all the testimony, but we have set out enough of it to show that the instruction was not abstract. The court, in effect, told the jury to find for the plaintiff unless there was a rescission of the first sale and a second sale with a reservation of title.
We know of no legal reason why the first sale might not have been rescinded, especially after it was made known that the consideration therefor had partly failed, in that the automobile was mortgaged, and, if it was rescinded, we know of no reason why the show-cases might not have been resold with a reservation of the title, and such is the effect of Collier’s testimony. There was never an actual delivery of the show-cases at the time of either sale. After the second contract was made the show-cases were pointed out, and Elkins ' stated that they .were not his and were not in his possession, but belonged to Collier and were in Collier’s possession. Moreover, as we have said, there was never but one bill of sale, and this was not made until after the mortgage on the automobile had been paid.
We think there is no question of a lack of delivery to validate this second contract. There had been only a constructive delivery to Elkins under the first contract, and there was a constructive delivery under the second contract, and, in addition, the show-cases were pointed out as being the property of Collier after the second contract was made, and no manual delivery of the cases was ever made until the mortgage was discharged and the bill of sale was executed, until which time Collier had retained the title by virtue of the second contract whereby he retook the title conveyed by the first contract.
This second contract may have been unusual, but it was not unlawful or impossible, and if, after selling the show-cases, that sale was rescinded, we kn'ow of no reason why a second sale thereof might not.have been made with a reservation of title. The instruction set out above submits this issue, and the objection to the instruction is that it told the jury the title could be reserved in Collier by a subsequent agreement, although there had been a prior sale under which the title had passed; but, as we have said, parties competent to contract have the right to sell and to rescind and to resell, and the judgment of the court below must therefore be affirmed. | [
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McCulloch, C. J.
Appellant was indicted for murder in the first degree by shooting and killing J. H. Tallent, in Prairie County, Arkansas. On the trial of the case appellant admitted the killing of Tallent, as charged, but claimed that he acted in necessary self-defense. The trial jury returned a verdict finding appellant guilty of manslaughter, and he was sentenced to the penitentiary for a term of three years.
The killing occurred .about midnight, or a little later, on March 24, 1922, at a house occupied by appellant on a farm owned by Tallent, in Prairie County. Tallent rented the farm to appellant, but reserved two rooms in the dwelling-house for his own use. Appellant had been living on the place about two months at the time of the killing, and Tallent had' occupied his room in the house only on two or three occasions, but he visited the farm two or three times a week. Tallent lived with his family on another farm about six miles distant from the place where the killing occurred.
There were no eye-witnesses to the killing, and no persons were at that house at the time the killing occurred save Tallent and appellant himself. Immediately after the shooting, appellant went over to the home of his father and mother, about a mile distant, and sent his brother and another person back to the house, and those persons found the dead body of Tallent lying on the floor. They went over, a few miles distant, and notified a justice of the peace, who came to the house and found the dead body of Tallent lying on the floor.
The house faced north, and there was a hallway running through the center, and a narrow porch in front, extending about the width of the hall. Appellant, with his wife and baby, lived on the east side of the house, and Tallent’s rooms were on the west side of the house. The doors to the rooms opened into the hall. Tallent’s body, when found, was lying in his own room, almost •face downward, with his head extending under the edge of the bed and his feet back towards the door. Some of the witnesses say his feet extended back to the doorway so that the door could not be closed. A lamp was burning in the room, and there was also a lamp burning in appellant’s room across the hall.
There was only one wound in the body, and that was a pistol-shot wound entering just below the cheek bone and ranging downward along the jaw and neck into the heart. There were four other shots fired, which took effect in the walls, and the witnesses testified concerning the location of the marks on the walls and doors. Appellant admitted that he emptied his pistol, and he testified that he was standing on the ground in front of the porch when he fired the shots, and that Tallent was standing in the hall, having just come out of the door of the room occupied by appellant.
The State’s theory in the trial of the case was that Tallent was «hot while he was lying down, or at least that appellant was standing above Tallent when he fired the shots, and the evidence adduced by the State as to the location and range of the bullet which entered Tallent’s face, as well as the location of the bullets which struck the walls of the hall, tended to show that the State’s theory was correct, and that appellant was not standing on the ground, as he claimed, when he fired the shots.
Tallent’s body, when found, was fully dressed, with his' coat unbuttoned, vest partially unbuttoned, top shirt buttoned up to the neck, and with a pistol in a holster under his left arm, between his top shirt and undershirt.
Appellant took the witness stand on his own behalf, and gave his account of the circumstances attending the shooting. His narrative of the events is about as follows : On the night of the killing, Tallent rode up to the house, about eight o’clock or eight-thirty, and went into his room, and a few moments later called to appellant to bring him a lamp, which appellant did, carrying the lamp from his own room over to Tallent’s room. Tallent was obviously intoxicated, and had whiskey with him. He had a half-gallon fruit jar with a small amount' of whiskey in that, and also a half-gallon of whiskey in a fruit jar in his saddlebags. When appellant went into the room with the lamp, Tallent was sitting in a chair, and 'offered appellant a drink, which was refused, .and Tallent then took a drink himself. Appellant returned to his room, and in a. few minutes Tallent called for water, and appellant went back into the room, carrying a bucket of water and a dipper. Appellant sat down on the side of Tallent’s bed and they engaged in a conversation, which was started by Tallent demanding that appellant procure wire and posts for the purpose of rebuilding a fence on the place to keep out stock. Appellant declined to do this, claiming that it was not a part of his contract, whereupon Tallent became angry and abusive, and threatened to kill appellant and have inter course with appellant’s wife, who was then in a room across the hall. Tallent made no effort to carry out his threat at that time, and appellant did not in any way resent-the epithets and insults offered by Tallent. After further conversation, appellant got up and started, with the water bucket in his hand, to his own room, when Tallent again stated that he would kill appellant and have intercourse with his wife, using a vulgar term in describing the act of sexual intercourse. Appellant returned to his room, and he and his wife went to bed. In a little while, according to the narrative, Tallent came across the hall to the door, which was fastened by a thumb-bolt, and began knocking on the door and calling out that he was going to kill appellant and have intercourse with his wife. Appellant and his wife then got up and dressed and took the baby and went quietly out of the back door and out through the back part of the premises to the home of appellant’s cousin, about half a mile distant. After staying there a few minutes, appellant went back to his home and reentered the house in the manner in which he had left it. He testified that the reason he went back to the house was that the fire-place and hearth were defective and out of repair, that he had left a. fire burning there, and was afraid that the fire would roll down and burn the house, and that he went back for the purpose of smothering out the fire. After fixing the fire so that it would not roll down, he went to bed again and dozed off, as he said, and he was awakened by Tallent knocking on his door, and again repeating the threats which he had formerly made that night with respect to killing him and having intercourse with his wife. When appellant laid down on the bed he blew out the light, but he said that when he got up again he lighted the lamp, and immediately went out the back door while Tallent was still knocking on the door which opened out into the hall. After going out of the house he walked around the house to the front, and. while standing on the ground in front of the porch, Tallent came out of appellant’s room, and, looking out from the hall door, saw appellant, and again repeated his threat to hill appellant, and made a demonstration as if to draw his pistol from his bosom. Thereupon appellant began firing, and' emptied his pistol. Appellant testified that, after emptying his pistol, he turned .and ran around the house again, without knowing whether any of his shots had taken effect or not, and that he hurried on over to the house of his parents to get some one to go back over there and see whether he had killed or wounded Tallent. Appellant testified that his pistol was lying on the top of the dresser in his room, and that he never took it into his hand until .lie left the house the last time. He stated that he left the pistol lying on the dresser when he accompanied his wife to the home of his kinsman.
Appellant also introduced a witness who testified that he lived about a mile from the place where the killing occurred; that, about sundown on the evening before the killing, Tallent passed his home, riding a horse, and was intoxicated,, and, after offering the witness a drink of whiskey, asked the witness if he knew what sort of a woman appellant’s wife was, and stated that he was going over there to the house, and intended to kill appellant and have intercourse with Ms wife.
It is not contended that the evidence is insufficient to sustain the verdict finding appellant guilty of manslaughter. The evidence was, we think, sufficient to sustain the verdict, and all of the assignments of error argued here relate to the court’s charge to the jury.
The first ground urged for reversal of the judgment is that the court erred' in giving each of the two instructions, which were separate, unnumbered paragraphs of instruction No. 2, and which were separately objected to by aupellant. The two paragraphs read as follows:
“You are instructed that it was the duty of the defendant to do all within his power, consistent with his safety, to avoid the difficulty with the deceased, and, if ■you believe from the evidence in this case that the defendant went back to his home for the purpose, of having trouble or provoking the difficulty which brought on the trouble that resulted in the killing, then he cannot claim, self-defense, and that plea would be of no avail. There are two contentions with reference to that. The defendant says that he went back there for the purpose of ascertaining the condition of the fire and to protect his property against fire, that was on account of the condition of the fire-place. If that is true, he would have had a lawful right to have gone back there for that purpose, or for any other purpose, or in the absence of any purpose. It being his home, he had a right to return if, on returning, he went there upon lawful mission and means. If he went there for an unlawful purpose, then, before he can plead the law of self-defense, he must have, in good faith, endeavored to withdraw from the difficulty, if one arose, before firing the shot that took the life of his fellow-man. That is true because the law provides that the party killing must have exercised and used all means within his power, consistent with his safety, to avoid the danger and avert the necessity of taking human life.
“You are instructed that, while it is true that the home of the defendant was his castle, and he had a right to protect it, but if you believe he left there voluntarily and then returned, then he could not plead the law of self-defense till he had endeavored honestly and in good faith to withdraw from that difficulty; but you are not to understand, gentlemen of the jury, that the mere fact that the defendant returned to his home imputes to him any negligence or carelessness or unlawful act upon his part. As stated to you, he had an absolute right to return to his home, notwithstanding he had taken his wife away from it, at any time he saw fit, but he wouldn’t have a right to return there for an unlawful purpose, but it must be for a lawful purpose. It would be for a lawful purpose if he went there to protect his home against any injuries, either from the deceased in this case or any other cause.”
Bach of these instructions was, we think, erroneous in declaring the law to be that merely because appellant “went back to Ms home for the purpose of having trouble or provoking the difficulty which brought on the trouble that resulted in the killing, then he cannot claim self-defense, and that plea would be of no avail.” It is true that the court coupled this declaration with the further statement that appellant had the right to go back to his home, but this did not lessen the harmful effect of telling the jury that, merely because he went back for the purpose of provoking the difficulty, he could not claim self-defense. Appellant did not, under his contract, have exclusive occupancy of the house, but it was his home, and he had the legal right to return to it, regardless of his motives, unless he did some act which provoked the difficulty. Even though it was his home, Tallent also had reserved the right to occupy a part of the premises, and if appellant, by act or conduct, brought on the difficulty at the house which they both rightfully occupied, he could not claim self-defense unless he endeavored in good faith to retire from the difficulty. Strong v. State, 85 Ark. 536. But these instructions now under consideration in effect declared the law to be that, if appellant went back to the house for the purpose of bringing on a difficulty, whether he did anything or not to bring about the difficulty, he forfeited his right of self-defense, unless he endeavored to retire from the difficulty. This was clearly erroneous, and may have been prejudicial, because the jury might have found that appellant went back to the place expecting to bring on a difficulty with Tallent and kill him on account of the insults offered,' but that he did nothing to bring on the difficulty, and merely resisted the threatened assault of Tallent. This part of the instruction, notwithstanding the court’s additional statement that appellant had the right to go back, to his home, ignored the principle that the house in question was appellant’s home, and that he had a right to return to it, regardless of his motives, unless he did some act to bring on a difficulty. The Attorney General contends that the error in these instructions does not call for a reversal, for the reason that there was no specific objec tion made. There was, as before stated, a separate objection made to each of these paragraphs, but further than that there was no specific objection made. We think that each of these paragraphs was inherently erroneous, and that a specific objection was not necessary in order to call the court’s attention to the error. The paragraphs were, in effect, separate instructions, and of course it was necessary to make a separate objection to each, which was done, for an objection in gross to instructions is not sufficient to call for a review.
Another of appellant’s assignments of error relates to the modification by the court of instruction No. 6, which reads as follows:
“You are instructed that defendant had a right to return to his home after having once left it, and, after his return, had a right to prevent a forcible entry thereto by deceased, and if you believe from the evidence that deceased, after the return of defendant, attempted in a violent or turbulent manner to enter the room of defendant, the defendant had a right to withdraw therefrom, the better to protect himself from the attempted or apparent assault of deceased, and if, in so doing, defendant honestly believed that it was necessary to shoot deceased to prevent being killed,, or seriously injured in body, you will acquit defendant.”
The court.modified the instruction, over appellant’s objection, by adding the following:
. “If he reached such conclusion based upon the actions, demonstration and conduct of the deceased at the time or just prior to the shooting.”
The modification was erroneous in narrowing the consideration of Tallent’s acts and conduct to the time of the killing in determining whether or not appellant honestly believed that it was necessary to shoot in his own defense. The learned judge doubtless had in mind the principle that the necessity for .self-defense must exist at the time of the killing in order to afford an excuse for the killing, but this is not the effect- of the language used, for it told the jury, not that the necessity itself must exist at the time, but that appellant's belief as to the necessity must be based upon “the actions, demonstrations and conduct of the deceased at the time, or just prior to, the shooting.” This modification cut off all consideration of the previous conduct of deceased, and this was very material matter for the .consideration of the jury, as it showed the persistence of the deceased in continuing his threats on the life of appellant and the chastity of his wife. Appellant was entitled to have the jury consider all of the conduct of deceased, from the time he began his threats against appellant down to the moment of the shooting, in order to determine whether there was a real necessity for self-defense, or whether the appellant honestly believed that such a necessity existed.
There are other assignments, but those discussed are sufficient to call for a reversal of the cause, and we deem it unnecessary to discuss the others.
For the errors indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellee brought suit in the circuit court of Jackson County against F. M. Silom, George Loyd, C. E. Ellison and E. F. Duncan upon the,following promissory note:
“Newport, Arkansas, 9-19-1919.
“On or before October 15, 1920, after date, we or either of us promise to pay to the order of W. P. Smith, at the banking house of the Arkansas Bank & Trust Company, in the city of Newport, Arkansas, the sum of three hundred and fifty and no/100 dollars, for value received, with interest from date until paid at the .rate of ten per cent, per annum. Interest payable annually, and, if interest be not so paid when due, then such unpaid interest shall become as principal and bear like interest until paid. The makers and indorsers of this note waive presentment, notice of nonpayment and protest.
“F. M. Silom,
“Geo. Loyd,
“C. E. Eilison,
“E. F: Duncan.
“P. 0. 8 cents stamps canceled.
“Date due.”
Credits to the amount of $43 were indorsed' on the back of the note. Service was obtained upon all the defendants except C. E. Ellison. In apt time E. F. Dun can filed a separate answer, admitting that lie signed the note for the accommodation of F. M. Silom and George Loyd, but denying liability thereon for the reason assigned in the second paragraph of his answer, which is as follows:
“That the defendant, E. F. Duncan, indorsed said note only on condition that, when the defendant, O. E. Ellison, should sign said note, the signature of defendant, E. F. Duncan, would be canceled from said note and said defendant released from all obligations expressed in said note; that said condition was agreed upon by and between the said E. F. Duncan on his part and by the said W. P. Smith, F. M. Silom and George Loyd on their parts. ’ ’
A demurrer was interposed and sustained to the answer. Appellant refused to plead further, electing to stand on his separate answer, whereupon judgment was rendered against him and1 his co-defendants who were served, and made default, for $417.10, the amount of principal and interest due upon the note. From the judgment an appeal has been duly prosecuted to this court.
Appellant contends for a reversal of the judgment under the principle of law that a surety may be discharged from his obligation by the novation or substitution of another in his place, by consent of the makers and payee of a note. The principle invoked is not applicable to the facts alleged and admitted to be true by the demurrer. Our construction of the allegation is that Duncan signed and delivered the note to appellee as a binding obligation, with the understanding that he should be released whenever C. E. Ellison signed the note. In other words, that he should be bound upon the note until the signature of C. E. Ellison was obtained. Proof responsive to this allegation would have contradicted the writing, and for that reason could not have been, introduced. It was proper therefore to sustain the demurrer to the answer. Had the agreement for the substitution of Ellison as a debtor in the place of Duncan been subsequent to the first agreement, or bad the agreement been for the note not to become a binding obligation" until signed by Ellison, either allegation would have been impervious to attack by demurrer, for proof of the allegations would have in no wise contradicted the written instrument.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
The crime charged against appellant in the indictment was murder in the first degree, alleged to have been committed by killing J. D. Phillips, and, on the trial of the case, appellant was convicted of voluntary manslaughter, and his punishment was fixed at two years in the penitentiary.
No brief has been filed on behalf of the appellant, and it is only by an. examination of the motion for a new trial that we can determine the questions raised on the appeal. There is an assignment in the motion relating to the insufficiency of the evidence, and numerous assignments with respect to the-court’s charge to the jury; some of them are not of sufficient importance to discuss in this opinion. The evidence is sufficient to sustain the verdict.
Phillips lived at the village of Glenville, in the southeast part of Nevada County. He was a merchant, and was also postmaster at tliat place. Appellant also lived at Glenville, about one-fourth of a mile distant from Phillips’ store, and the killing occurred at appellant’s home, out in front of the gate, on the morning of May 21, 1923. There were no eye-witnesses -to the killing, but appellant admits that he fired the shot which killed Phillips, and he claims that he did so in necessary self-defense.
"When Phillips arose on the morning in question, he complained of feeling ill, and walked across the road to the store in his shirt-sleeves and opened up the store. Shortly afterwards two little girls, daughters of appellant, came to the store, and stated to Phillips that their father had requested him to come up to the latter’s house, and Phillips sent word by the -children that he could not, at that time, comply with the request. About ten minutes afterwards appellant -drove down to the store in a wagon and called Phillips out, and appellant asked Phillips to go with him up to his (appellant’s) house, saying at' the time that he had a proposition to make to Phillips. Phillips got into the wagon with appellant, and they drove off to appellant’s house, and in a few minutes the noise of a gunshot was heard. The persons who went up to the house found Phillips’ dead body lying on the ground. Pie had been shot through the neck. The body was about twenty feet from the gate, and the team of mules was standing near by, headed towards a large tree. One of the witnesses testified that at the foot of this tree there was a print on the ground of a gun-stock.
Phillips was, according to the testimony adduced by the State, unarmed at the time the killing occurred, and was in his shirt-sleeves.
Appellant testified as a witness on his own behalf, and stated that, about three weeks before the killing occurred, he was .informed by his wife that Phillips had made an indecent proposal to her, and that he accosted Phillips concerning the matter, and that the latter denied the charge. He stated that on the morning in question, a few minutes before he left home with his wagon, his wife told him that Phillips had repeated the proposals to her, and he testified that he went down to Phillips’ store and, after calling him out, stated to Phillips that he wanted the latter to accompany him to his home, as he had a proposition to submit to him concerning his wife, meaning that he wanted Phillips to confront his wife in regard to the charge against him of having made an indecent proposal to her. He stated that Phillips replied that he did not care to discuss the matter in the presence of his family, but would get into the wagon and drive up to the house with him. Appellant stated that, after they had got up to his house and they both got out of the wagon, he saw the print of a pistol in Phillips’ bosom, and that when he proposed to Phillips that they go into the house, Phillips replied, “No, we can settle it here,” and started to draw Ms pistol, whereupon appellant fired the shot that killed Phillips. He stated that, when,- he got out of the wagon, he took the gun into his ‘hand, as it was lying in the wagon, partially covered by a blanket, or robe. Appellant carried the mail between Grlenville and Stephens, and he testified that' he usually carried his shotgun on the trip. • '
The evidence warranted the jury in finding that Phillips was unarmed at the timé he' was killed, and that the killing was unjustified. It is unnecessary to discuss the testimony in further detail, or to attempt an analysis of it in demonstrating its probative force.
One of the assignments. of error set forth'in the motion for a new trial relates to the ruling of the court in permitting’the State to prove by witnesses that appellant’s girl's came down to the store on the morning in question with a message to Phillips from their father. Appellant Mmself testified that he sent the children down there with the message, so there could have been no prejudice to defendant in admitting the" testimony of other witnesses concerning the message delivered by the children to Phillips.. •
The court’s charge to the jury was very full, and covered the different grades of homicide, ■ the law of self-defense, and appropriate declarations on the subject of reasonable doubt. . ■ , ■
Many of the instructions requested by appellant’s counsel were given, some of them with slight modification, and the refused ones were mere repetitions of other instructions the court had given.
The court gave the following,' over appellant’s objection: . ■ • ■ . • •
“11. ' If you believe' from the evidence in this case, beyond a reasonable, doubt, that the .defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought or brought on or voluntarily entered into the difficulty with the deceased with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.”
This instruction was not a correct declaration of the law, in that it omitted the qualification that appellant must first have' endeavored in good faith to retire from the conflict; but this omission was not prejudicial, for the reason that there was no proof which justified a submission of that issue. Appellant’s sole contention was that Phillips assaulted him with a pistol, and that he fired the shot in necessary self-defense, and there was no phase of the evidence which would have warranted a finding that appellant, though the aggressor in the difficulty, attempted in good faith to retire.
Several of the instructions requested by appellant’s counsel on the subject of appearances of danger were modified by amendments incorporating the statement that appellant must have been acting without fault or carelessness. This modification was proper in order to make the instructions complete, and there was no error in this respect.
Several instructions were requested by appellant on the subject of reasonable doubt, but, as this subject was fully covered in the court’s charge, there was no error in refusing to give those asked.
Finding no error in the record, the judgment is affirmed. | [
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McCulloch, C. J.
The General Assembly, at the regular session of 1923, enacted a statute creating an additional court district in Woodruff County, to be designated as Central District, and provided for the holding of court at the town of McCrory. Special Acts 1923, p. 210. At the extraordinary session which convened on September 24, 1923, a statute was enacted, purporting to ¡be general in its terms, a section of which reads as follows: “That hereafter all quorum courts in counties of the State of Arkansas having more than two judicial districts shall meet and hold its [their] meetings, both regular and pall, in the townsite of judicial court sitting most centrally situated in such counties.” Another section of the statute provides that the superintendent of public instruction in such counties “shall maintain his office and headquarters in snch townsite as this act requires for the meeting of the quorum courts.” Another section provides a penalty for any public official or other person violating the terms of this statute.
Petitioner is county superintendent of Woodruff County, and failed or refused to remove his office from Augusta, the county seat, to McCrory, and he was arrested and tried before a justice of the peace on the charge of having violated the statute referred to, and, after being fined, he took the case before the chancellor on habeas corpus, on the ground that the judgment of conviction is void on its face because the statute is void. The petitioner was denied a discharge from the effects of the judgment, and has brought the record here on certiorari..
The contention of counsel for petitioner is that the statute is void for the reason, among other things, that the designation of the place of holding the quorum court is too indefinite. We are of the opinion that this contention is sound. The phrase, “in the townsite of judicial court sitting most centrally situated in such counties,” is too vague as a legislative provision fixing the place of holding court. Counsel for respondent assume that the words, “centrally situated,” refers to geographical center, and that courts take judicial knowledge of the fact that McCrory is nearer the geographical center of Wood-ruff County than either Augusta, the county seat, or Cotton Plant, the place of holding the courts in the other district. The language does not necessarily refer, however, to geographical center. The design of the statute was to provide for the most convenient place for the holding of the court, and the term may have had reference to the center of population, or the most convenient or accessible place. There should be no uncertainty as to a provision of law with reference to the place of holding courts, which are proceedings of a public nature, and’ every person is entitled to definitely know where a court is to be held. We sustain this contention of the peti tioner, but expressly refrain from passing on either of tbe other grounds of attack upon the validity of the statute.
The decree denying the prayer of the petition for habeas corpus is reversed, and judgment will be entered here quashing the judgment of conviction and ordering petitioner’s discharge from custody. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Sebastian County, Greenwood District, under § 6160 of Crawford & Moses ’ Digest, for the crime of being interested, in the sale of intoxicating liquor, and was adjudged to serve a term of one year in the State Penitentiary as punishment .therefor. Prom the judgment of conviction he has prosecuted an appeal to this court, but has not filed a brief in support of his assignments of error.
He assigned as error, in his motion for a new trial, that the verdict was.contrary to both the law and the evidence. There is substantial testimony in the record tending to show that, pursuant to an agreement, appellant met Walter Milam on the night of March 24, 1923, at the pool hall in the town of Hartford, and conducted him to the Bock Island depot, where he met a man by the name of Aydolette; that Milam paid Aydolette $2.50 for a quart of whiskey, whereupon appellant accompanied him to a nearby coal-shed and pointed the whiskey out to him; that Milam took the whiskey and delivered it to' the officers, who produced a part of it at the trial for the inspection of the jury. The law is that “where the intermediary between the purchaser and the'seller is a necessary factor, without whose assistance the sale of liquor could not have been consummated, he is interested in the sense of the law, whether he has pecuniary interest or not.” Condit v. State, 130 Ark. 341; Ellis v. State, 133 Ark. 540.
He also assigned as error that the jury was influenced in arriving at its verdict by outside testimony, but there is nothing in the record to this effect.
He also assigned as error that the court permitted witness White to testify that, the day before the arrest, he had followed appellant’s brother, whom he suspected of having moonshine whiskey, and who was accompanied by appellant, to a' certain mountain and through the woods. No objection was made to the introduction of this testimony, so this court cannot pass upon its competency. Yazoo & Miss. Valley Rd. Co. v. Soloman, 123 Ark. 66; Lisco v. Uhren, 130 Ark. 111.
He also assigned as error the admission of the testimony of Walter Milam, to the effect that appellant had stated to him that, about a year before being arrested, he had peddled a wagonload of whiskey around Hartford. The issue joined was whether appellant was interested in the sale of intoxicating liquor to Walter Milam, and the statement that he had been peddling whiskey tended to throw light upon the issue, and was therefore admissible in evidence. Austin v. State, 14 Ark. 555; 10 R. C. L. p. 925.
He also assigned as error the alleged refusal of the trial court to compel Walter Milam, the chief prosecuting witness, to tell for whom he purchased the liquor and who drank it. This seems to be an assertion without foundation in fact. The record does not reflect su’eh an occurrence, so it is unnecessary to discuss that assignment of error.
He also assigned as error the admission of the testimony of Walter Milam to the effect that the man Aydolette told him to see appellant when he wanted liquor, if he could not find him. The record reflects that this instruction was given Milam in appellant’s presence. It was admissible to shoyr that appellant was Aydolette’s “agent in the sale of liquor.
He also assigned as error the admission of a vial of liquor in evidence. According to the testimony of the officers, the sample of liquor introduced came out of the quart jar Walter Milam turned over to them. Walter Milam testified that he got the jar of whiskey in question, through appellant’s direction, out of the coal-shed at the Rock Island depot. We think the whiskey was sufficiently identified as a part of the liquor purchased from the man Aydolette and appellant.
He also assigned as error certain arguments made by the' prosecuting attorney, but the record does not reflect that he objected or saved any exceptions to them.
Lastly, lie assigned as error the giving and refusing of instructions by the court, but he failed to point out, in his motion for a new trial, the instructions by number, or otherwise, to which he had reference. This should have been done so as to direct the attention of the court to the errors complained of. Black v. Hogsett, 145 Ark. 178.
No error appearing, the judgment is affirmed. | [
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Wood, J.
The Huntington-Midland Highway District (hereafter called district) was created by act No. 298 at the special session of the Legislature of 1920. The third section of that act provides for the appointment of three commissioners by the county court. of Sebastian County. The following commissioners were duly appointed: Frank McCormack, John W. Jasper and W. P. Fitzgerald, who duly qualified as such and organized themselves into a board of the district, as provided in § 5 of the act. Section 4 of the act provides that the commissioners and their successors in office shall compose a body corporate under the name of the district, and, under such name, the district might contract and sue and be sued. The domicile of the corporation was fixed at Huntington, in the Greenwood District of Sebastian County. Carter & Enoch were employed by the board as engineers of the district. They made a preliminary survey and filed plans and specifications, with an estimate of the cost, etc. The board ' also employed the firm of Covington & Grant as attorneys for the district. The plans were approved by the county court, as required by the act, and the board proceeded to assess the benefits under the terms of the act.
Section 16 of the act, among other things, provides: “In order to hasten the work, the board may borrow money and issue its negotiable evidence of indebtedness for its payment, in such form as the board may adopt, and may issue bonds with interest coupons attached, or in such other form as the board may adopt, and dispose of them in such manner and for such amount as the board may deem best, subject to the approval of the county court.”
Section 29 of the act provides: “If, for any reason, the improvements herein contemplated are not constructed, all obligations incurred by the commissioners for preliminary work of any kind shall be a lien and a charge. oil the lands of the district, and an assessment shall be made and a tax levied, as hereinabove provided, to that end, that the same may be paid. ’ ’
On the 29th of December, 1920, the board of commissioners made a report to the county court, giving a full account of the proceedings of the board, from its organizatipn to that date, and showing, among other things, that the board had entered into a contract for the construction of the work contemplated by the act, and that it had entered into a contract for the sale of the bonds as contemplated by the act. The report stated that Chas. B. Thweatt had been employed to prepare the necessary transcript of proceedings incident to the issuance of bonds, under a written contract, which it set forth. A contract had also been entered into with Carter & Knoch and with the attorneys, Covington & Grant, as heretofore mentioned. The report contained the following recital: The board of commissioners has incurred various items of expense, an itemized list of which is hereto attached and made a part hereof, for the making of the plans 'and for the preliminary expenses.” The items of expense enumerated in this report are as follows :
Salary of assistant secretary...................................................$1,050.00
C. B. Thweatt, attorney fee....................................................... 500.00
Cash borrowed from M. W. Elkins.................................... 3,000.00
The $3,000 cash received has been spent as follows:
Paid H. R. Carter, engineering fee....................................$1,500.00
Commissioner’s fees ........................................................................ 180.00
Telephone messages ........................................................................ ■ 10.00
Covington & Grant, attorneys’ fees.................................... 665.00
Geo. B. Rose, attorney fee......................................................... 100.00
Salary to assistant secretary................................................ 450.00
Incidentals ................................................................................................... 95.00
The order of the county court approving the report of the commissioners is as follows:
“On the 29th day of December, 1920, come the commissioners for Huntington and Midland Highway Dis triot and file and present to the court their report as to proceedings and actions had and done by them; and, after hearing evidence in the matter, and being familiar with said proceedings through the knowledge of the judge presiding, and after being fully advised and informed:
“The court hereby ratifies, approves and confirms the organization of the commissioners on February 25 by electing Frank McCormack, president, Jno. W. Jasper, secretary, and W. P. Fitzgerald, treasurer, and the election of Henry Lane as .assistant secretary at a salary of $150 a month; also approves the selection of engineers and the contract made with them; also the selection of attorneys, and the purchase of the,record book; also approves the selection of Jas. A. Chadwick, on December 11, as president, to fill the vacancy caused by the resignation of Frank McCormack; also approves assessment of benefits as made and filed by the commissioners, and their action in sustaining said assessment on the date of the hearing had; also approves the construction contract entered into with Hogan Construction Company; also approves the contract for the sale of bonds entered into with Cordon N. Peay, Jr.; also approves the various items of expense incurred, as shown by the report of the commissioners; also approves the contract of employment of Chas. B. Thweatt to prepare transcript of proceedings incident to the issuance of bonds; and fully ratifies and approves all actions and proceedings had, done, and taken by said commissioners, as shown by the report this day filed with the court.”
After the above proceedings were had, this action was instituted in the Sebastian Chancery Court by M. W. Elkins on the 20th of November, 1920, against the district and its commissioners and against H. C. Lane and Covington & Crant. He alleged, among other things in his complaint, that the district was indebted to him in the sum of $3,000, with interest, as evidenced by certain certificates, which he attached and. made exhibits to his complaint. These certificates amounted in the aggregate to the sum of $3,000. He alleged that he had acquired them before maturity and for a valuable consideration; that they were issued by the district to the various parties named therein for preliminary expenses of the district; that Lane had indorsed the certificates issued to him for the amount of such certificates’; that Grant had indorsed the certificate issued to Covington & Grant, and that they had thereby become liable to plaintiff Elkins for these amounts; that the plaintiff had a contract with the district to purchase its bonds issued in the sum of $100,000; that the district breached this contract and failed to deliver the bonds, to plaintiff’s damage in the sum of $2,000; that the sums due-the plaintiff on the certificates were long past due, and that the district and its commissioners refused to pay the same; that the district was insolvent, and that plaintiff had no adequate remedy at law. He prayed for- judgment in the sum of $3,000 against the district, and that he have judgment also in the sum of $450 against Lane, the amount of the certificate indorsed by him; and that he have judgment against Covington & Grant in the sum of $665, the amount of the certificate indorsed by Grant, and also against Grant individually for the sum of $500, the amount he guaranteed to pay on this certificate, and that a receiver be appointed to wind up the affairs of the district and to levy and collect the tax on the lands of the district to satisfy the judgment rendered against it.
Later on, in February, a suit was also instituted by the Midland Valley Railway Company against the district and its commissioners. The -action of the railroad company called in question the validity of the act under which the district was created and the assessments of benefits thereunder, alleging various reasons why the assessment of benefits levied against its property should be enjoined, and prayed for an injunction. The proceedings in that suit are not germane to any question arising in this action further than that, in the answer to the railroad suit, the district and its commissioners alleged, among other things, that “because of objection being urged to the building of said road, and because of the great expense connected with its construction, they have abandoned the project, and ask the court to consolidate this cause with another cause pending in the chancery court loo-king to the dissolution of the district and the liquidation of its affairs.” The pleadings in that case were made a part of the record in this case.
In the answer to the suit- by Elkins, the district and its commissioners admit the indebtedness claimed by Elkins, but denied that he was an innocent purchaser. They alleged that, before these certificates were issued and before Elkins had purchased the same, he had agreed to buy the bonds of the district, and, as a part of the contract of purchase, he had agreed to loan the district a sum sufficient to pay the preliminary expenses of the district, which was to be repaid at the time the bonds were delivered; that, at the time the certificates were issued, the commissioners of the district and Grant, the attorney of the district, met with the plaintiff at.his office in the city of Little Rock, at which time the plaintiff caused the certificates to be prepared by his stenographer, and directed the commissioners to sign the certificates and have them indorsed by the persons to whom they were payable and then to be sent to him through the bank with draft attached, all of which was done; that the plaintiff therefore knew the puruo-se -of the certificates, and, being charged with such knowledge, he was not an innocent purchaser. They further alleged that the plaintiff at the time explained that he desired the indorsements of the commissioners on the certificates merely for the purpose of creating evidence of the indebtedness of the district represented by the certificates, and to show that the amounts thereof had been paid to the persons in whose favor the certificates were drawn, and not for the purpose of creating any liability again-st the individual indorsers; that the indorsements of the commissioners of the district were had under these circumstances, and that they were not liable.
Grant answered, and admitted that he had guaranteed the sum of $500 to the plaintiff, but alleged that he should not be required to pay the same unless the amount could not be collected from the district, inasmuch as he was the attorney for the district, and the district was due his firm more than that amount, as shown by the certificate issued to his firm. The commissioners further answered that there was no money in the treasury of the district to pay the amount claimed as preliminary expenses, and alleged that they would be unable to collect the assessments, inasmuch as serious objection had been urged against the improvement, and they alleged that it was to the best interest of all concerned and the taxpayers of the district to abandon the project. They therefore also-prayed the court to appoint a receiver to take over the affairs of the district, and with directions to levy an assessment to pay the indebtedness of the district.
Upon the above pleadings the court appointed a receiver, who was also appointed master, who executed a bond and entered upon the discharge of his duties as •such. All claims against the district were ordered filed with the receiver, and he w-as directed, as master, to take testimony, after due notice to the claimants, -and to make a report, with his recommendations, to the court.
Hugh R. Carter, as surviving partner of the firm of Carter & Enoch, filed a claim for $876.67. Lane filed a claim for $1,350, and C. B. Thweatt filed a claim for $600, and certain other small claims were filed. In the receiver’s report concerning these claims, among other things, he said: “That M. "W. Elkins has filed a claim for $3,000, based upon eight certificates, purported to have been -signed by the three commissioners. That it is the understanding of your receiver, from talking with the commissioners, that there was never at any time any resolution adopted by the .board authorizing any mem ber of tbe board of commissioners to borrow said money; and that said money was not used, as far as yonr receiver has been able to learn, for tbe use or benefit of said district, and yonr receiver submits the validity of said claim to the court without making any recommendation.”
In support of the allegations of his complaint, Elkins introduced his verified account against the district for $3,000 and the certificates issued to various parties by the district, through its commissioners, purporting to be signed by them for the district. All of these certificates, except the certificate of $1,500 to Carter & Knoch and the sum of $765 to Covington & Grant, specify that they were issued “for preliminary expenses.”
Elkins testified that he entered into a contract with the commissioners of the district for the purchase of its bonds. He advanced $3,000 under the contract “for preliminary expenses,” which transaction was closed, and the warrants, numbered from one to eight, as evidenced by the certificates already alluded to, were executed in his office in Little Rock, upon the date shown on the face of those warrants. He witnessed the execution of the warrants by the commissioners. The commissioners were present with their attorney, Mr. Grant. The commissioners, asked the witness to give them a check the day the warrants were executed. He told the commissioners to go back and hold their meeting* in their own county, at the domicile of the district, allow the claims, attach them to a draft, and witness would pay the same. They did that. He identified the draft, which was signed by McCormack, Jasper and Fitzgerald, the commissioners, drawn upon the witness through the Southern Trust Company at Little Rock, Arkansas. Witness paid the amount of the draft, the same being sent them through the bank. Witness had never been able to obtain Dayment of the certificates. The understanding was that the $3,000 was to be used by the commis sioners “for preliminary expenses.” The amount covered office equipment, engineering fees, attorneys’ fees', clerk hire, and items of that kind. It was all to be strictly “preliminary expense.” The commissioners wanted witness to advance them $5,000, but they could not show witness where they owed the sum of $5,000 as preliminary expenses, and he would not let them have that sum. They could only show an. amount for preliminary expenses in the sum of $3,000. On cross-examination he stated that he didn’t see the commissioners sign the draft for the $3,000, which, witness paid, but he was acquainted with their signatures and knew that the commissioners had signed the draft; that the signatures on the draft were the same as the signatures on the warrants and certificates, which witness did see the commissioners sign. “The gist of the whole transaction,” says the witness, “is that I loaned the district $3,000 for preliminary expenses, which I have never gotten back, or any part of it,” and the district owes the witness that sum, plus the interest from the date of the warrant. ' I ' i u*'!
G. L. Grant testified that he was a practicing lawyer at the Fort Smith bar and a member of the firm of Covington & Grant, attorneys for the district. He handled the legal affairs of the district. Elkins offered to prove by him that he was present at a meeting of the board of commissioners when a contract was executed with Elkins for the purchase of bonds; that he identified what purported to be the contract, and recognized the signatures to the contract. He saw. the commissioners sign the identical paper which was offered in evidence. The court excluded this testimony.
Carter testified, concerning his claim, that he was employed under regular contract with the commissioners, which contract was made a part of the record; that he filed his bond as required by the contract, which was duly approved; that he proceeded to make the survey and preliminary plans and specifications, and organized Ms field and -office forces; that he incurred a great deal of expense, prepared all maps, for the use of the field party. He specified minutely the various tMngs that were done by his firm, and concluded by saying: “All of which was necessary to determine whether the project was feasible from an economical standpoint .and the location of the road,” which was to be five and a quarter miles in length. The surveys covered approximately ten miles, and the total expenditures, without any compensation to the witness, were $2,076.63. He introduced an itemized statement of his expenses, and testified that he put in considerable time on the work, for which no charge was made. The $1,500 warrant issued by the district in favor of Carter & Knoch was given the witness by the board because the district had no available funds, at the time the work was completed, to pay his fee in accordance with his contract. The commissioners stated that they didn’t have the cash, but had sold their bonds to M. W. Elkins with the understanding that he would take up the warrant for the board and pay witness the cash called for, which was a payment of $1,500 on account of engineering due on the contract. Elkins paid witness the $1,500 for the warrant, and it was indorsed over to him without recourse. All services rendered by the witness were preliminary.
Chas. B. Thweatt testified that he was a duly licensed attorney at law, and, as such, entered into a written contract with the district by the terms of which he was employed to prepare a transcript of all proceedings had and done incident to the issuance of bonds of the district; that he was to receive pay for his services in the .sum of $500; that, in pursuance of the contract, he had prepared a transcript of all proceedings, had and done incident to the issuance of the bonds, and had fully complied with his contract; that nothing had been .paid him for his work. He was also directed by the commissioners of the district to prepare an act amending the act by which the district was created. For his services to be rendered in connection with the drawing of this hill and advice to the commissioners as to the steps necessary to be taken to perfect the organization of the district and •show legal authority for the issuance of the bonds, he was to receive as compensation $100. He rendered .the services, and nothing had been paid. The written contract entered into between him and the board was introduced in evidence.
The appellees introduced the minute book of the commissioners. That hook contained unsigned minutes, purporting to he the proceedings of the commissioners of the district, showing its organization, February 25, 1920, and the employment of Carter & Enoch as engineers, and of Lane as secretary of the district at a salary of $150 per month. The recitals, among other things, show that a meeting was had on May 17, 1920, and that the commissioners had returned from Little Rock, where a deal was closed with Elkins for the purchase of $100,000 bonds, and reciting that certain bills were closed up in certificates of indebtedness and sent to Elkins for payment, amounting in the aggregate to $2,997.50, and directed the secretary to draw a draft on Elkins for the payment of the same, and reciting that the arrangements had been made with Carter & Enoch to advance the sum of $250 to the district, and various other recitals which it is unnecessary to -set forth, purporting to he a record of the proceeding of the board from its organization February 25, 1920, to October 30, 1920.
The court held that the minutes of the proceedings, not signed, were not competent. Appellee also introduced Fitzgerald, who testified that he was one of the commissioners. He attended one meeting’ of the board— didn’t remember- the date; that was after they had returned from Little Rock, where they had gone to figure on making a contract to get some money. Witness never had notice of any other of the meetings of the hoard. He stated that he was a figurehead; that he had no knowledge of any certificates being signed at any meeting of the board and the contract with Elkins. The certificates were signed in Little Rock, if witness was not mistaken. There was no meeting of the board authorizing the contract or authorizing' the board of commissioners to sign the certificates of indebtedness. Witness, further on, stated that he thought the contract with Elkins was signed in Little Rock, but it might have been signed in Huntington. Witness had very little bo do with it, and didn’t remember much about what happened.
McCormack testified that Secretary Lane was never present at a meeting of the board that witness attended. Witness was very busy, and would- come in in the evenings and would call the men in Jasper’s office. Witness stated that the meetings he attended were too numerous to mention. He stated that Jasper wrote the supposed minutes. A sworn affidavit of the witness was read in evidence, in which he stated that the negotiations with Mr. Elkins were conducted at Little Rock between the 14th and 19th of May, 1920. Grant was the attorney, and brought a number of matters to the attention of the witness, and witness signed papers while he was there at Little Rock, and didn’t remember what they were, or what they contained. He did remember the meetings of the board in May, 1920, when the Elkins matters were up for consideration — May 14, 17 and 29, 1920. Witness had nothing to do with the transaction as shown in the unsigned minutes. They were written in witness’ presence, by Jasper. It was in evidence that Jasper, the other member of the board of commissioners, was dead.
The above are substantially the facts upon which the court dismissed the complaint of Elkins against the district and its receiver, and also the claims of Carter, Lane and Thweatt. From that decree is this appeal.
1. The record shows that the improvement contemplated by the creation of this district was not made. Therefore, under § 29 of the act under which the district was created, the obligations incurred “for preliminary expenses ’ ’ were, by the expr’ess terms of the act, made a charge and a lien on the lands of the district. The record discloses that the chancellor found that most of the contracts upon which the claims were predicated were made away from the county, and that this fact rendered the claims fraudulent and. void. We cannot agree with the court in its finding. It could serve no useful purpose to discuss -the testimony, which is set forth rather elaborately above. It speaks for itself, and it occurs to us that a decided preponderance of the evidence shows that the claims, to say the least, were not fraudulent. They were based upon contracts with the district which the commissioners had power to make, and, if the improvement contemplated by the act creating the district had been constructed, unquestionably these claims would be valid and binding claims against the district and be a charge and a lien on the lands included within the district. However, since the construction of the improvement contemplated by the act was abandoned, under the express terms of the act the only obligations incurred by thé commissioners which are a charge against the district are the 'obligations for preliminary work. Therefore the only question presented by this appeal is whether or not the claims of appellants were for preliminary expenses.
All parties, in entering into contract with the commissioners for work in the contemplated improvement, weré bound to take notice of the law. Therefore the appellants must be held to have known, when they entered into the contract with the commissioners, for work contemplated under the improvement, that~ these contracts would not be binding on the district unless the improvement were constructed, and that the district, if the work were abandoned, would oulv be liable for preliminary expenses. This court, in Thibault v. McHaney, 119 Ark 188, 201, said: “Under the terms ‘preliminary'expense’ would be included * * * attorney’s fees as counsel to the board in the preliminary work of organization, etc. such costs as expenses for maps,” plans, surveys of land, and for engineer’s expenses in preparing the plans and specifications. In other words, all expenses incident to the investigation by which it is sought to determine whether the value of the benefits to the lands by the improvement contemplated would exceed the cost of such improvement and thereby warrant its completion. ’ ’
The burden was upon the appellants to show that their claims were for preliminary expenses. Under the testimony the claims of Lane and Chas. B. Thweatt must pass out, for the reason that there is no testimony whatever to show that their claims were for preliminary expenses. The claim made by Lane was obviously for salary which accrued under his contract long after the preliminary work had been done. Likewise the service rendered by Thweatt was under a contract to take the necessary steps to issue bonds and to secure money for the construction of the improvement. Such services cannot be classed as preliminary expenses, under the rule announced in Thibault v. McHaney, supra. See also Gould v. Sanford, 155 Ark. 304. The court was correct in dismissing the claims of C. B. Thweatt and Lane, and the decree in this respect is affirmed.
2. The testimony of Carter shows that the actual expense incurred by him was $2,076.63. He also testifield that, in addition to this, he loaned the board $250 in.cash “for preliminary expenses.” He stated that the charge was made for engineering services, not including any charge for his own time. His testimony was to the effect that all of the services rendered by his firm were preliminary; but his testimony further shows -that it included services from March 3, 1920, till October 14, 1920, the date of the completion of the plans. The enumeration of what was done and the itemized statement of expenses incurred, attached as an exhibit to his testimony, show that he was actually making a charge for much more than was necessary to determine whether the benefits to the lands contemplated by the improvement would exceed the cost of such improvement. We feel quite sure that the amount paid him, of $1,500 in cash, is most liberal compensation for the value of such ser vices as were really incident to the preliminary engineering work on 5*4 miles of roadway which the district was created to construct. His claim therefore should be allowed only to the amount of $250, which he states he advanced to the board “for preliminary expenses.”
3. The claim of Elkins is predicated upon an’ advancement made by him in the sum of $3,000 to the commissioners of the district “to pay preliminary expenses.” We are convinced that a decided preponderance of the evidence, indeed practically the undisputed evidence, shows that this sum was advanced by Elkins under his contract with the commissioners do loan them that amount of money to pay the preliminary expenses. This is evidenced by the certificates, the report of the commissioners to the county court to that effect, which was approved by it, and by the testimony of Elkins and Carter. We find no. evidence whatever in the record to the contrary, and, as we view the record, there is not a vestige of proof to justify the finding of the trial court that this claim was fraudulent. While the testimony of the commissioners shows that their recollection as to the details of the transaction was very hazy, still even their own testimony does not contradict the positive testimony .of witnesses, taken ore terms before the court, and the record evidence to the effect that Elkins’ claim was for money which he loaned the district to pay preliminary expenses, and that this money was used by them for that purpose.
While the testimony shows that the negotiations leading to the advancement of this money by Elkins were conducted in Little Rock, yet it abundantly establishes the fact that the transaction was not consummated until the board, in regular meeting, had authorized the borrowing of the money and the drawing of a draft for the amount. This amount Elkins paid to the board for the preliminary expenses, as evidenced by the certificates issued by the board and the draft which Elkins paid.
The trial court seems to have laid great stress on the fact that the records of the proceedings, as set forth in the minutes of the hoard, were not all signed, hut the testimony, even of the commissioners themselves, shows that the meeting authorizing the borrowing of the money from Elkins and the drawing of a draft on him for the amount of his claim, was held at the domicile of the district in Huntington, Sebastian County, Arkansas. Even if there were no minutes recorded of this meeting, the undisputed proof, as we view the record, shows that it was held and that the board authorized the borrowing of the money from Elkins. Such authority could be proved by parol testimony. Merchants’ & Farmers’ Bank v. Harris Lumber Co., 103 Ark. 283; Wolfe v. Erwin & Ward Co., 71 Ark. 438; Stiewel v. Webb Press Co., 79 Ark. 45.
In Gould v. Sanford, 155 Ark., supra, we said: “Preliminary expenses are an essential burden upon the property of the districts, even though the effort to construct the improvement turns out to be abortive. The commissioners had the power to provide for the payment of these expenses, and, even in the absence of express statutory authority, to borrow money for that purpose, where the money is obtained and used for that purpose the district is liable therefor.” See also Gould v. Toland, 149 Ark. 476.
It follows that the trial court erred in dismissing the claims of the appellant Elkins, and also in dismissing the claim of Carter for $250. In these respects the decree is reversed, and the cause will be remanded with directions to allow the full amount of Elkins’ claim and also to allow a decree in favor of Carter for the sum of $250; and, since G. L. Grant admits in his answer that he became liable to Elkins, as guarantor, in the sum of $500, a decree should be entered against him in favor of Elkins for that sum, such sum to be paid in the event Elkins fails to collect that amount on his claim for attorney’s fees against the district, and for such other proceedings as may be necessary according to law and not inconsistent with this opinion. | [
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Wood, J.
The appellant was indicted for the crime of rape upon the person of one Jessie Spyres. It is alleged that lie, “in the county of Washington and State of Arkansas, on or about the 24th day of April, 1923, in and upon the person of one Jessie Spyres, a female person of the age of fourteen years, forcibly, violently and feloniously did rape and as-sault her, the said Jessie Spyres, then and there violently, forcibly and against her will feloniously did ravish and carnally know her,” etc. The appellant was tried and convicted of the crime of carnal abuse.
The motion for a new trial contains thirty-one separate assignments of error, but we find it unnecessary to set out and1 discuss all of these. The court overruled the motion for a new trial and entered a judgment sentencing appellant to one year’s imprisonment in the State Penitentiary, from which he prosecutes this appeal.
The appellant, has not filed any brief in the case, but the Attorney General has filed an elaborate abstract of the record and has discussed fairly the propositions of law and fact presented by the record under six subdivisions.
1. Appellant contends that there is no evidence to sustain the verdict. It could serve no useful purpose to set out and discuss in detail the testimony. Suffice it to say that we have examined the testimony set forth in the record, and find that it is sufficient to sustain the verdict.
2. The fourth and fifth grounds of the. motion for a new trial set up that there was a fatal variance between the charge in the indictment and the proof, the contention being that the appellant was indicted for the crime of rape, and was convicted, under the evidence, of the dime of carnal abuse. In Henson v. State, 76 Ark. 267, we held that an indictment for rape of a female under the age of sixteen years will sustain a conviction for carnal abuse. See also Powell v. State, 149 Ark. 311, and other cases there cited.
3. Several of the grounds in the motion for a new trial assign error in the instructions of the court. These' instructions covered the law of rape and of carnal abuse, also the subjects of the presumption of innocence, reasonable doubt, and credibility of witnesses. Appellant only offered a general objection to 'any of the instructions. The la,w upon the subjects stated was correctly declared in accordance with many previous decisions of this court, and it could' serve no useful purpose to reiterate here the rules of law pertaining to those subjects.
4. The appellant prayed the court to instruct the jury that, before they could find appellant guilty of the crime of rape, they must find that the prosecutrix used all the means within her power and consistent with her safety to prevent appellant from accomplishing his designs; that it was her duty to give an alarm and make an outcry, and that, if she failed to do so, it was the duty of the jury to consider such failure, and that, if the jury found that she failed to use all the means within her power, consistent with her safety, to prevent appellant from having carnal intercourse with her, if such was his purpose, then they should find appellant not guilty. These instructions were fully covered by the instructions which the court gave on its own motion; and besides, these instructions were applicable only to the -charge of rape, .and, since the verdict of the jury acquitted appellant of that charge, he could not have been prejudiced, even if the court had not, in its instructions, covered the subject-matter of the above prayer. In the charge of carnal abuse the questions of the resistance and the outcry of the female are not involved.
5. The appellant contends that the court erred in overruling the motion for a continuance on account of the absence of the witness Hugh Kirkpatrick. The motion was in due form, and set no that the witness was absent in the State of Kansas, and that he could be located and his testimony taken, or his attendance had at the next term of the court. It was alleged that the witness, if present, would testify that, on the day of the alleged offense, the witness saw the appellant and the prosecuting witness sitting in an automobile parked in the roadway between the main traveled part of the road and the ditch opposite the cemetery; that appellant was sitting to her right, both being on the front seat; that they were laughing ’and talking as the witness passed said automobile, something like 6:20 p. m. on the day of the alleged crime. The alleged testimony, if adduced, would have been only cumulative of much other testimony to the same effect. See Williams v. State, 105 Ark. 698. The court did not abuse its discretion in refusing to grant the motion for a continuance.
6. One of the assignments of error is that, when the appellant requested that he be furnished with a certified copy of the indictment and be given forty-eight hours to plead after the copy of the indictment was furnished him, the court made the remark that the defendant was “just taking advantage of a technicality to delay his trial.” The bill of exceptions does not show that the court made any such remark.
Appellant also assigns error in the ruling of the court in permitting the family Bible of the Spyres to be introduced in evidence. This was competent to prove the age of the prosecuting witness,
There was no error in the ruling of the court in refusing to permit the appellant to use Dr. Paddock as a witness. Dr. Paddock had examined the prosecuting witness, as her family physician, and she had not consented to his testifying in the case.
Upon the whole record we find no error prejudicial to the appellant in any of the rulings of the court. The judgment must therefore be affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Boone County, and, as punishment therefor, was adjudged to pay a fine of $75. From the judgment of conviction an appeal has heen duly prosecuted to this court.
The indictment was returned under § 2804 of Crawford & Moses’ Digest, which is as follows: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie-knife, or sword or spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, shall be. guilty of a misdemeanor.’ Provided, nothing in this act shall 'be so construed as to prohibit any person from carrying such pistols as are used in the army or navy of the United States, when carried uncovered and in the hand; provided, officers whose duties require them to make arrests, or to keep and guard prisoners, together with persons summoned by such officers to aid them in the discharge of such duties, while actually engaged in such duties, are exempt from the provisions of this act. * * *”
Appellant contends for a reversal of the judgment upon three alleged grounds: first, because the pistol carried by him was an army pistol which he carried uncovered in his hand; second, because he did not carry it as a weapon; third, because he was deputized to carry it by the city marshal of Harrison.
(1) While the testimony adduced 'by appellant tended to show that the pistol carried by him was the kind used in the army or navy of the United States and that he carried it uncovered in his hand, the testimony adduced by the State tended to show that it was not an army or navy pistol, and that he carried it concealed from view in his overcoat pocket. This disputed question of fact was submitted to the jury for determination, under an instruction to acquit appellant if they found it was such a pistol as was used in the army or navy of the United States, uncovered in his hand. The finding of the jury is conclusive 'against appellant, as the verdict is supported by legal evidence of a substantial nature.
(2) There was evidence tending* to show that the pistol was carried for offensive or defensive purposes in anticipation of a disturbance. Appellant testified that he came down town after his mail, on the evening* in question, and ran across William Parr, the city marshal, who told him rumors were afloat that there would be a disturbance on account of the arrest of two railroad men, and that he wanted him to act as a deputy; that the marshal directed and authorized him to arm himself ; that, in obedience to the request, he went home after his pistol, returned about eight o ’clock p. m. armed, and remained upon the public square for two hours for the purpose of assisting the marshal in preserving the peace, if it became necessary. The record reflects that the anticipated disturbance failed to materialize. In support of his contention that the pistol was not carried as a weapon, appellant cited the case of Cornwell v. State, 68 Ark. 447. In that case the evidence showed that Cornwell carried his pistol to a neighbor’s home, a distance of about three miles, for the purpose of killing hogs, and the court ruled that, under the testimony, it was a question for the jury to say whether Cornwell carried it as a weapon. In the case at bar the court submitted this question to the jury, while in the Cornwell case the court refused to do so. The Cornwell case was reversed on account of such refusal.
This court has said that the object of § 2804 of Crawford'& Moses’ Digest “is to prevent the carrying of a pistol with a view of being armed and ready for offense or defense in case of conflict with a citizen (person), or wantonlv to go armed.” Cornwell v. State, supra; State v. Wardlow, 43 Ark. 73; Carr v. State, 34 Ark. 450; Lemons v. Slate, 56 Ark. 530. The court did not err in the instant case in submitting the question of whether appellant carried the pistol as a weapon, to the jury.
(3) The contention of appellant, that he was exempt from the penalty imposed by the statute against carry ing weapons because deputized by the city marshal to do so, is not tenable. He was not summoned by the mar-shal to assist him in making arrests or guarding prisoners, while in the actual discharge of such duties, and therefore within the exempting proviso of the statute upon which he relies.
No error appearing, the judgment is affirmed. | [
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WOOD, J.
Appellant was convicted, on an indictment charging him with “feloniously taking, stealing and carrying away one buggy of the value of forty dollars, and one set of harness of the value of ten dollars, and one horse, all the property of L. F. Boston,” etc. The jury fixed the punishment at ten years in the State penitentiary, and from the judgment of sentence the appellant prosecutes this appeal.
The only specific ground in the motion for a new trial is because the verdict of the jury “assesses his punishment for grand larceny of property that the proof shows was not over forty dollars in value at ten years in the penitentiary, which is cruel and excessive.”
The statute provides that “whoever shall be convicted of stealing any horse,” etc., shall be imprisoned in the State penitentiary not less than one nor more than fifteen years. The punishment in cases of grand larceny, under the general statute, is not less than one nor more than five, years.
The trial court instructed the jury that if they found the appellant guilty they could only fix his punishment for the larceny of either the horse or the buggy and harness. The jury, under this instruction, manifestly fixed the punishment of the appellant as for the larceny of the horse. The statute authorizes the punishment thus adjudged, and the verdict did not exceed the maximum penalty prescribed by the statute for the larceny of a horse. Therefore, no unusual, cruel or excessive punishment was imposed. See In re Wm. W. Taylor, 45 L. R. A. 136, and note.
No specific assignment of error in the giving of instructions is set up in the motion for a new trial. The motion for a new trial contains only a general assignment, “that the verdict is contrary to the law.” We find no error in the instructions.
The only other ground of the motion for a new trial is that the verdict was contrary to the evidence. It could serve no useful purpose to set out in detail and discuss the evidence. It was amply sufficient to sustain the verdict.
The judgment is, therefore, in all things correct, and it is affirmed. | [
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Sam Bird, Judge.
Benjamin L. Eagle was tried for first-degree forgery in Pulaski County Circuit Court, Fifth Division, and was convicted of second-degree forgery. He raises six points on appeal from the conviction, contending that the trial court erred (1) in declining to direct a verdict because the State failed to prove his identity; (2) in imposing liability on second-degree forgery because it is not a lesser-included offense of first-degree forgery; (3) in failing to provide an impartial tribunal for trial; (4) in allowing admission of another allegedly forged document under Ark. R. Evid. 404(b); (5) in imposing an illegal sentence of $23,000 restitution; and (6) in imposing an illegal sentence of 120 days in jail “purgeable” by paying $1,400 restitution. Because we agree that error was committed regarding the second point, the conviction is reversed.
A felony information of August 25, 2003, charged Eagle with the crime of “violating Ark. Code Ann. 5-37-201 FORGERY IN THE FIRST DEGREE,” which the State alleged was committed in the following manner:
The said defendant(s), in Pulaski County, on or about April 17, 2001, unlawfully, feloniously, and with the purpose to defraud, did draw, make, complete, alter, possess, or utter a written instrument issued by a government, to-wit: RELEASE OF JUDGMENT, purporting to be, or is calculated to become, or to represent if completed the act of LOWE’S COMPANIES INC, who did not authorize that act, against the peace and dignity of the State of Arkansas.
First-degree and second-degree forgery are statutorily defined at Ark. Code Ann. § 5-37-201 (Repl. 1997):
(a) A person forges a written instrument if with purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.
(b) A person commits forgery in the first degree if he forges a written instrument that is:
(1) Money, a security, a postage or revenue stamp, or other instrument issued by a government; or
(2) A stock, bond, or similar instrument representing an interest in property or a claim against a corporation or its property;
(c) A person commits forgery in the second degree if he forges a written instrument that is:
(1) A deed, will, codicil, contract, assignment, check, commercial instrument, credit card, or other written instrument that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status;
(2) A public record, or an instrument filed or required by law to be filed, or one legally entitled to be filed in a public office or with a public servant; or
(3) A written instrument officially issued or created by a public office, public servant, or government agent.
Eagle was tried before the bench onjuly 19, 2004. He made a motion to dismiss at the conclusion of the State’s case, which was denied. He offered no evidence in his defense.
At a bench trial, a motion to dismiss is a challenge to the sufficiency of the evidence. See Ark. R. Crim. P. 33.1 (2004). When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. See Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel the fact-finder to make a conclusion one way or the other without resorting to speculation or conjecture. Id.
Eagle’s first two points on appeal arise from his motion for a directed verdict.
1. Whether the trial court erred in declining to direct a verdict on the basis that the State failed to prove Eagle’s identity
Eagle argued in his motion to dismiss that there was no proof that he was the person who filed the forged document at issue, no proof that he saw the document before possessing it, and no proof of intent to defraud. On appeal he again asserts that the State did not present substantial evidence of his identity as the forger. He argues that although witnesses saw him in the circuit clerk’s office and there was an unauthorized signature on the filing, no forensic evidence connected him to the forged release of judgment and no witness testified as to personal knowledge of who prepared and filed it. We do not agree.
The evidence viewed in the light most favorable to the State shows that attorney Richard Peel filed a civil complaint against Eagle on behalf of Lowe’s, alleging default of a payment for approximately $23,000 worth of building materials. In a subsequent consent judgment filed in the Pulaski County Circuit Court Clerk’s office, Eagle agreed to pay $23,000 and was given additional time to do so. Eagle came into the clerk’s office seeking certified copies of a satisfaction of judgment that had been filed in the case. The attorney’s signature on the release of judgment was described by Sherry Bruno, supervisor of the clerk’s office, as not being an original signature. The signature was described as “fishy” by Arlene Ladd, an employee of a local title company to whom Eagle had presented a certified copy of the release when he was trying to buy some land.
The trial court, sitting as fact-finder, had before it Peel’s testimony that he had not signed the release of judgment that contained his purported signature and that was filed in the circuit clerk’s office. Also before the trial court was Peel’s testimony that Eagle, rather than denying to Peel the act of forgery, expressed a desire to “make it right” and an understanding of Peel’s being upset about the forged signature. This could have been viewed by the fact-finder as an acquiescence in Peel’s statement that Eagle had forged Peel’s name. See Gatlin v. State, 320 Ark. 120, 124, 895 S.W.2d 526, 529 (1995) (defining an adoptive admission as one where a fact-finder can reasonably infer that the party-opponent heard and understood the statement, and that, under the circumstances, the statement was such that the party-opponent would normally have responded if he did not believe the statement to be true). A person’s admission to committing an offense, accompanied with other proof that the offense was committed, constitutes substantial proof of guilt. E.g., Tinsley v. State, 338 Ark. 342, 344, 993 S.W.2d 898, 899 (1999). Thus, there is no merit to Eagle’s argument that no substantial evidence supports his identity as the forger.
2. Whether the trial court erred in finding Eagle guilty of second-degree forgery when it is not a lesser-included offense offirst-degree forgery
The following exchange took place during Eagle’s motion to dismiss:
Defense counsel: Also, Mr. Eagle is charged with forgery in the first degree. Forgery in the first degree, statute 5-37-201, the forgery statute says, B, a person commits forgery in the first degree if he forges a written instrument that is: Money, a security, a postage or revenue stamp, or any other instrument issued by a government; or a stock, bond, or similar other instrument representing an interest in property or a claim against a corporation or its property. And the document in question is neither one of these, Your Hon- or. So I would ask that he be found — or I don’t believe the State has made their prima facie case.
Deputy prosecuting attorney: The first point, it is a release of judgment in a case where the defendant, in the civil case, approximately $23,000 and this release of judgment says it has been settled for the sum of $2,000, difference there of21,000 dollars. I think that shows he was possessed with the intent to defraud. As far as the second argument goes, this is a document that was filed for the court of law. Obviously the court is part of the government. And if you do not think it rises to the level of forgery in the first degree, Your Honor, part of 5-37-201, under C,... creates a document that transfers, terminates or otherwise affects the legal interests. Forgery in the second degree, we could do that if you so chose.
Defense counsel: I don’t believe the State can amend their felony information after they have rested their case.
Deputy prosecuting attorney: I have not amended the information. I am just — forgery in the second is not a lesser-included offense of forgery in the first,Your Honor.
The court: Okay. I will deny the motion for a directed verdict.
The court then found Eagle guilty of second-degree forgery.
In Eagle’s second point on appeal, he contends that the trial court erred in imposing liability for second-degree forgery because it is not a lesser-included offense of first-degree forgery. He argues that, because the offense was not charged in the charging instrument and it is not a lesser-included offense of first-degree forgery, the trial court erroneously found him guilty of second-degree forgery. His argument is well-taken.
The determination of whether an offense is included in another offense depends on whether it meets one of the three tests set out in Ark. Code Ann. § 5-1-110(b)(Repl. 1997). Owens v. State, 354 Ark. 644, 662, 128 S.W.3d 445, 456 (2003). That subsection provides:
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
Ark. Code Ann. § 5-1-110(b). The second of these three tests is not at issue in the present case because there was no evidence of an attempt to commit first-degree forgery or another offense otherwise included within it. Our analysis therefore focuses on the first and third tests of this subsection.
The test of Ark. Code Ann. § 5-1-110(b)(1) requires that the lesser charge be established by proof of the same or less than all the elements required to establish the commission of the offense charged. Owens, 354 Ark. at 663, 128 S.W.3d at 457. In other words, an offense is included in another offense if the statutory definition of the greater offense encompasses all of the statutorily defined elements of the lesser offense, or if it is not possible to commit the greater offense without committing the lesser one. Id.
The offenses of first-degree and second-degree forgery are differentiated by the types of documents listed in Ark. Code Ann. § 5-37-201 (b) and (c). The greater offense, first-degree forgery, requires proof that a person forges money, a security, a postage or revenue stamp, or other instrument issued by a government; or a stock, bond, or similar instrument representing an interest in property or a claim against a corporation or its property. Ark. Code Ann. § 5-37-201 (b). The lesser offense, second-degree forgery, requires proof that a person forges an instrument that is a deed, will, codicil, contract, assignment, check, commercial instrument, credit card, or other written instrument that does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status; a public record, or an instrument filed or required by law to be filed, or one legally entitled to be filed in a public office or with a public servant; or a written instrument officially issued or created by a public office, public servant, or government agent. Ark. Code Ann. § 5-37-201 (c). The lists of documents are exclusive of one another, and none of those listed in second-degree forgery are included in the list for first-degree forgery: the greater offense clearly does not encompass all statutorily defined elements of the lesser charge. Thus, the first test of the three tests set out in Ark. Code Ann. § 5-1-110(b) is not met.
The State argues that, under the third test of section 5-1-110(b), second-degree forgery is a lesser-included offense of first-degree forgery because the lesser offense differs from the greater one “only in the respect that a less serious injury or risk of injury to the [. . .] public interest. . . suffices to establish its commission.” Both parties point to the Official Commentary to Ark. Code Ann. § 5-37-201:
Subsection (b), defining forgery in the first degree, singles out for special treatment the forgery of easily negotiated instruments typically drawn on issues with impeccable financial institutions. Because such instruments are readily accepted at face value, their forgery is more difficult and usually requires careful planning and sophisticated equipment. Prior law also imposed stronger sanctions for forging instruments of this type.
Subsection (c) defines forgery in the second degree and is concerned with forgery of deeds, wills, contracts, commercial instruments, credit cards, and documents purporting to be filable with or issued from a public office.
The State further argues that the forgery of documents described in the second-degree forgery statute, typically affecting one or a limited number of persons, carries less widespread risk to the public than the documents listed in the definition of first-degree forgery, which carry the potential of defrauding a large number of persons or interests.
We need not decide whether forgery of a document constituting second-degree forgery carries less widespread risk to the public than does forgery of documents listed in first-degree forgery. Under the third test of Ark. Code Ann. § 5-l-110(b), a lesser charge is not included in the greater offense when the lesser offense “does not differ from the offense charged only in the respect that it requires a less serious injury or risk of injury or a lesser kind of culpable mental state.” Owens, 354 Ark. at 664, 128 S.W.3d at 458. As previously discussed in this opinion, second-degree forgery requires proof of documents different from those for first-degree forgery. Consequently, they are two separate crimes. Because second-degree forgery does not differ from first-degree forgery only in the respect that it requires a less serious injury or a lesser kind of culpable mental state, the third test for determination of whether the lesser offense is included in the greater offense has not been met.
Conclusion
None of the three tests set out in Ark. Code Ann. § 5-l-110(b) have been met. Thus, second-degree forgery is not a lesser-included offense of first-degree forgery. The trial court erred in finding Eagle guilty of second-degree forgery because it is not a lesser-included offense of the greater offense set forth in the charging instrument and under which trial proceeded.
The evidence presented by the State obviously showed a form of forgery in some degree, but the document at issue was not one listed in Ark. Code Ann. § 5-37-201 (b) (Repl. 1997) as a element of first-degree forgery. Eagle could have been charged with second-degree forgery under subsection (c) for forging a written instrument of the nature described in that subsection.
The prosecutor elected to charge Eagle with first-degree forgery under subsection (b) of the statute. This was wrong, and requires our reversal. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987) (reversing a capital-murder conviction because the State charged and tried the defendant under the wrong capital-murder provision). Because we reverse the conviction for second-degree forgery, we need not address the remaining points on appeal.
Reversed.
Hart and Crabtree, JJ., agree.
At the beginning of the trial, Eagle’s attorney declined to adopt a pro se motion to dismiss that was file-marked March 2,2004, in the circuit court. Setting forth the statutory elements of first-degree and second-degree forgery, the motion noted that first-degree is a Class B felony while second-degree is a Class C felony. The motion asserted, “Defendant charged herein does not know from which statute to frame his defense against the awesome charges of the state.” | [
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Paul Ward, Associate Justice.
This is a condemnation proceeding involving 15.51 acres of land belonging to appellees. All testimony relative to the value of the land taken from appellees by the Arkansas Highway Department in this suit was directed to a parcel of land consisting of 28.955 acres. The 15.51 acres mentioned above is arrived at as follows: All four of the appellees own an undivided one-half interest in 26.885 acres, amounting to an entire interest in 13.44 acres, and all four appellees own the entire interest in 2.07 acres, making a total taking of an entire interest in 15.51 acres.
A jury awarded appellees damages in the sum of $45,000. Thus the judgment places a value of slightly more than $2,900 per acre for the land actually taken for highway purposes. It will be noted that in arriving at the acreage value above no allowance is made for severance damage or damage to adjoining property. We think, however, as will be later shown, there is no substantial evidence to sustain very little if any such allowances. Moreover we are unable to see how the jury could have fairly included in its total verdict such allowances since it appears that all the adjoining land is owned by only part of the appellees.
On appeal appellant urges two points for our consideration. One: It was reversible error for the court to permit the introduction of Exhibit 5 which is a plat showing the subject land and adjacent land divided into lots, blocks, and streets, and also in permitting the introduction of testimony relative thereto. Two: The verdict is excessive in that it is not supported by substantial evidence. Before discussing these points a summary of the essential background facts should be helpful to a better understanding of that discussion.
The subject land is located approximately four air-miles in a northeasterly direction from the Main Street bridge in Little Eock, and is to be used by the Highway Department in the construction of a new super-highway from Little Eock via Jacksonville. It is approximately four-fifths of a mile long (running generally north and south) and is 300 feet wide except that it is wider near the middle. The wider portion will be utilized for an over-pass and access roads on both sides of the highway. Approximately half (the south half) of the strip coincides with or includes a portion of the present highway No. 67. The land adjacent to and surrounding the subject strip is not in cultivation but is covered with small oak trees, and the strip is approximately one mile from the Lakewood Addition to North Little Eock.
One: The evidence shows that the best and most valuable use that could be made of the subject land and the adjacent land is for residential purposes. It is not disputed that appellees had the right to introduce competent testimony to establish and explain the suitability of the land for that purpose. In attempting to do that, appellees exhibited a Plat (shown as Exhibit 5) to the jury which showed the subject land and the adjacent land to be laid off in lots, blocks, and proposed streets. According to this exhibit there were approximately 70 lots on the subject strip, with approximately 140 lots on the east side, and approximately 190 lots on the west side thereof. After the Plat had been handed to the reporter and marked for identification only, the following occurred :
Questions by Mr. Stubblefield:
Q. Just hold that, if you will, so the jury can see your explanation, and tell the jury what that is.
A. This is a map prepared by me showing the land being condemned in the different colors due to identification and by parcel numbers, the red lines show the existing highway and showing where the project starts through the land owned by Mr. Matthews. This is shown over a layout of streets and roads which is the normal way that we arrive at land cost and values of land.
The Plat was offered in evidence over the objections of appellant and when the witness admitted the area had not “been platted as indicated by the map,” the court sustained the objection. It is not clear to us however, whether the Plat was later considered in evidence. As stated before, the Plat is a part of the record here, marked Exhibit 5, without further explanation, and it was shown to the jury. In any event, we think the effect of the court’s ruling, in sustaining appellant’s objection, was erased by what occurred thereafter. On re-direct examination of the witness (Arthur H. Thomas) he was asked to explain to the jury in a little more detail about the number of lots the land was going to be divided into, when appellant again objected. The Court stated: “He may testify as to how he arrived at it without reference to the exhibit.” Witness was then asked: “Q. “You arrived at the figure by figuring out how many lots?”.
Again appellant objected, but was overruled. Exceptions were saved by appellant. Witness then stated:
A. There is one tract of this land that lies adjacent and along an existing paved road which can be used for development; where the road is already dedicated, you can get four lots of the type and size that is being developed in Lakewood per acre and I put a per front foot on that property of $25.00 per foot which is about $2,000 per lot. I think that is a very conservative figure since we are getting $3,500 per lot in Lakewood. On the land being condemned, not fronting on existing pavement, I used three and a half lots per acre and a figure of $1,600 per lot for those eighty-foot wide lots and arrived at this figure that way.
Q. And that in your opinion was the value per acre on March 12, 1957 ?
A. I think that is a very conservative figure because we are getting much more than that in Lakewood right now.
Previously the witness had stated that lots in Lakewood sold for $6,000 to $12,000 a piece. Finally the witness stated that in his opinion the land in question was worth $6,000 per acre.
There can be little doubt that the above testimony and other testimony of a similar nature might have influenced the jury in fixing a value on. the subject land. Such testimony allowed the jury to compare the value of the subject lots in Lakewood Addition without any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. It necessarily follows then that the jury’s verdict would be based on conjecture and speculation. Our research of the numerous authorities dealing with testimony of this nature indicates it is universally condemned. The general rule is well stated in Nichols, Eminent Domain, Third Edition, Chapter 12, Sec. 3142(1) in the following language:
“It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boulders. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.”
In United States v. 620 Acres of Land, Etc., 101 Fed.Supp. 686, which concerned the condemnation of land in Marion County, Arkansas, the Court, at page 690, approved this statement:
‘ ‘ To warrant the admission of testimony as to value for purposes other than that for which it is actually used, however, regard must be had for existing conditions and wants of the community, or such as may reasonably be expected in the immediate future. The uses considered in fixing value must be so reasonably probable as to have an effect upon the present market value of the land and a speculative value cannot be considered. ’ ’
In the case of Carolina Power and Light Company v. Clark, 243 N. C. 577, 91 S. E. 2d 569, the court, in dealing with fixing the value of property based on its best adaptable usage, said that consideration must be given to existing business “or wants of the community, or such as may be reasonably expected in the immediate future to affect present market value.” It was then said by the court: “purely imaginative or speculative value should not be considered,” citing a long line of cases. This court, in L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, made this pertinent observation:
“One who anticipates an increase in the value of his property may feel it a hardship to surrender it without receiving more than its present market value, but it would be a hopeless task to either' measure or satisfy the anticipations of a sanguine land owner.”
Applicable to the question here considered is the language approved in Louisiana Ry. & Nav. Co. v. Baton Rouge Brickyard, 136 La. 833, 67 So. 922:
“At the time of the institution of this suit the tract in question had not been subdivided, and the question before the jury was as to the market value as a whole, considering all the uses to which it was adapted. The value of the tract for town lot purposes was one of the factors to be considered, but what the owner or purchaser might realize by a subsequent subdivision of the property and sale of lots partakes too much of the character of speculation to serve as a basis of valuation at the date of the institution of the present suit.”
“It is proper to show that the property is suitable for division into village lots, and that it is valuable for that purpose, but it is not proper to show the number and value of such lots.” Lewis Eminent Domain, Vol. 2 (2nd Ed.) P. 1058.
The matter of determining the value of property on the basis of a future subdivision into lots was under consideration in City of Philadelphia v. United States, 53 Fed. Supp. 492. There this question was asked: “Into how many lots would you subdivide this land?” The court in commenting on the propriety of the above question, said: “The question was not framed to test the basis of the witness” estimate, but was designed to circumvent the prohibition against introducing figures of subdivision. To have permitted this question, even on cross-examination, would have introduced a speculative feature to the minds of the jurors and would have been contrary to the well settled law of Pennsylvania.” The court then quoted, with approval, the following:
“Equally improper is evidence showing how many building lots the tract under consideration could be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted; but it is the tract, and not the lots into which it might be divided, that is to be valued.”
The reason for the rule above set out is well demonstrated in the case under consideration. 'While some of appellees’ witnesses explained that, in comparing the value of subject land and lots with other subdivisions of Little Rock and particularly with Lakewood Addition; they had taken into consideration the location and the necessity of supplying paved streets, water and sewerage, etc., yet that fact in no way eliminates the element of chance and speculation. On the other hand, such explanation merely emphasizes that element. Any attempt to determine the cost of such improvements would have entailed the use of time and technical knowledge beyond the scope of practicability and reason. In addition to the above, many more speculative matters would arise for consideration.' For example: How much, other land in the vicinity is available for subdivisions; What will be the future demand for additional building sites; How long will it be before the subject land is made ready for the erection of dwellings; How fast will the lots be sold, and how much will be the finance charges, and; What will be the cost in real estate commissions for selling the property, and what will be the expense of numerous other items that could be mentioned?
It has been suggested that this court has approved the introduction of a Plat in a case similar to the one under consideration in Ark: State Highway Comm. v. O. & B. Inc., decided April 22,1957, 227 Ark. 739, 301 S. W. 2d 5. The facts in that case, however, were entirely different. There the subject land was a part of existing subdivisions of the city of Jacksonville. In that case the court pointed out the vital distinction to which we have referred by stating:
“This is not a case where use for subdivision purposes is merely speculative and too remote to influence present market value. As previously indicated, it is undisputed that the land of appellees was adjacent to and surrounded by well developed residential sections of the fast growing City of Jacksonville and that its best and most logical use was for residential lot development. In these circumstances we have held the testimony objected to by appellant to be admissible to establish market value.”
For the reasons set out and explained above we conclude, therefore, that the admission of the indicated testimony constituted reversible error.
Two: We have also concluded that the judgment for $45,000 is excessive. In order not to unduly extend this opinion we shall, in attempting to justify this conclusion, rely on all pertinent portions of what has already been set forth and upon a brief summary of the rest of the testimony relative to the value of the 15.51 acres of land.
A little more than a year before this litigation was instituted appellee Matthews bought and appellee Watkins sold the subject land (as a part of a 1,000 acre tract) for $225 per acre. The record shows that both parties knew at the time of the probability that the new highway would be built. It further appears from the contract of sale that the parties themselves anticipated some of the land might be taken by condemnation, and that they apparently thought the remuneration would not amount to more than $600 per acre.
Appellant’s witness, Harry A. Pittard, who showed a familiarity with the subject land and also the development in Lakewood, placed the market value of the subject land at $582 per acre at the time of taking. Wesley Adams, another witness for appellant, who showed a familiarity with the subject land and lands in the vicinity, and who, like Pittard, took into consideration all mentioned factors bearing on its utilization for residential development, valued the subject land in several different parcels as it is described in the pleadings and as shown by Exhibit 5. The highest value was $750 per acre for certain portions and the lowest for any of it was $500 per acre. James H. Larrison, another witness for appellant, who was experienced in the sale and valuation of real estate in the Little Rock vicinity and who had inspected and appraised property for many years, made an inspection of the property in question. After taking into consideration the best usage of the property for residential purposes he fixed a value of $500 per acre.
Over against the above appellee, Matthews, together with other witnesses who were apparently as well qualified as appellant’s witnesses, fixed the value of the subject land as high as $6,000 per acre. Matthews admits paying $225 per acre for 1,000 acres but said two-thirds of that acreage was not as valuable as the subject land. It seems to follow from this that one-third of the purchased land at $6,000 per acre would amount to much more than the total purchase price — in fact to $1,775,000 more. It must also be remembered that the other appellee sold the land for the same price that Matthews paid for it. In addition, appellees estimate that other land, not taken, was damaged several thousands of dollars, and that they were entitled to still more damages on account of severance.
We cannot escape the impression that appellees were over impressed with the value of the subject land based on their expectations of what it would be worth sometime in the future when it might be ultimately improved and sold as lots. However, as heretofore pointed out, full credence cannot be given to testimony based on such eventualities in arriving at present market value.
We do not think appellees are entitled to severance damages. One witness at least stated he did not know appellant’s plans provided for a wide over-pass across the subject land with walkways on either side, and also for a complete system of access roads. The record reveals such to be the plans. We find no substantial evidence to show that other lands belonging to appellees, or any of them, will be reduced in value because of the construction of the new highway. The evidence on the part of appellant was that the value of the said lands would be increased rather than decreased. Such would appear to be the implied effect of appellees’ testimony. That is, the lands which one of them sold for $225 per acre a short time previously are now worth around $5,000 or $6,000 per acre.
In summing up we find, under the most liberal view, no substantial evidence to support a valuation of the subject land in excess of $1,500 per acre.
Since the error pointed out in the first part of this opinion does not reach appellant’s liability for damages in some amount, this court can, in accordance with established procedure, offer a remittitur. See: Chicago, Rode Island & Pacific Railway Co. v. Caple, Admmistrator, 207 Ark. 52, 179 S. W. 2d 151; McCord v. Bailey and Mills, 195 Ark. 862, 114 S. W. 2d 840, and; St. Louis, Iron Mountain & Southern Railway Company v. Adams, 74 Ark. 326, 85 S. W. 768.
Therefore, if appellees will enter a remittitur so as to permit a recovery of only $23,265, the judgment so reduced will be affirmed by us. Otherwise, if such remittitur be not entered within 17 calendar days after the date of delivery of this opinion, the judgment of the trial court will be reversed and the cause remanded for a new trial.
Harris, C. J., and McFaddin, J., would affirm for the full amount. | [
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Olly Neal, Judge.
This is the second time that this medical malpractice case has been before our court. On December 3, 1995, appellee Anita Billups brought her thirteen-day-old son, Stephon Billups, into the emergency room at Baptist Memorial Hospital in Forrest City, where he was treated by appellant, Dr. John Hill, a board-certified pediatrician. After examining Stephon, appellant discharged him and instructed appellee to give Stephon “Tylenol as needed” and Pedialyte. The following morning, after discovering that Stephon had stopped breathing, appellee returned to the emergency room with Stephon. Stephon was transferred to Arkansas Children’s Hospital. Stephon died on December 6,1995, as a result of a bacterial infection.
Subsequently, appellee filed suit, individually and as next of friend of Stephon, alleging medical malpractice. The case was tried to a jury February 19-26, 2003, in the St. Francis County Circuit Court. The jury returned a verdict for appellee in the amount of $250,000. Appellant appealed the verdict to this court. He alleged the following errors: (1) the trial court erred in excluding the deposition of his expert witness; (2) the trial court should have excluded the testimony of appellee’s expert witness because of a failure to disclose changed opinion testimony; (3) during voir dire, the jury was improperly influenced by a reference to medical malpractice insurance.
In Hill v. Billups, 85 Ark. App. 166, 148 S.W.3d 288 (2004), we agreed with appellant’s assertion that the trial court had erred when it refused to rule on the admissibility of the deposition testimony of appellant’s expert witness and remanded that portion of the case back to the trial court. Upon remand, the trial court found that appellant’s expert witness was not qualified to offer expert testimony, and therefore, excluded her deposition. Appellant now argues that the trial court abused its discretion when it excluded the testimony of his expert witness. We affirm.
Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Brunson v. State, 349 Ark. 300, 79 S.W.3d 304 (2002). Rule 702 of the Arkansas Rules of Evidence provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Rule 702 expressly recognizes that an expert’s testimony may be based on experience in addition to knowledge and training. Arrow Int’l v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48 (2003).
If a reasonable basis exists demonstrating that a witness has knowledge of a subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. There is a decided tendency to permit the fact-finder to hear the testimony of persons having superior knowledge in a given field, unless they are clearly lacking in training and experience. Id. The fact that a medical expert is not a specialist in that particular field does not exclude that medical expert from offering testimony. See First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996).
Appellant sought to introduce the deposition testimony of Dr. Rani Lewis, assistant professor in the OB/GYN Department at Vanderbilt University Medical Center in Nashville, Tennessee. Dr. Lewis’s specialty is high-risk-maternal fetal medicine, which involves the care of either mothers or babies who are at high risk during the course of the mother’s pregnancy. She said that she regularly saw mothers and babies who were at great risk for infection. While at the University of Tennessee in Memphis, Dr. Lewis cared for mothers and babies who had problems frequently associated with infection. Dr. Lewis has published numerous papers in peer review journals relating to infection issues, including HIV, as well as pre-term labor and pre-term premature rupture of membranes. Although she had previously practiced in Memphis, Dr. Lewis did not have a direct history of treating infants in the Forrest City area. Because her training included emergency-room treatment, Dr. Lewis was confident that she was familiar with the standard of care required of an emergency-room physician seeing a neonate. She explained that “in obstetrics and gynecology, in labor and delivery service, we act as our own ER physicians for the patient population.”
Dr. Lewis testified that, in her current practice, she spent two days a week doing ultrasounds and tests on mothers and one day a week seeing patients in her private practice. She said that her current practice involved the examination of a few babies. Occasionally, Dr. Lewis will see a baby when its mother brings it in for evaluation. During her testimony, Dr. Lewis stated:
In 1995 I was at the University of Tennessee. We did approximately ten thousand deliveries a year. So that would be thousands of moms. I cannot estimate exactly how many of those babies I saw and took care of. Generally if I was examining a baby for a circumcision we would take the baby, undress it, check the vitals. I don’t do vitals on neonates. I just make sure by visual findings that there’s no evidence of any neonatal infection. I check for appropriate reflexes, skin turgor, tone.
[Emphasis added.] She explained that she did not perform vitals on neonates because that was a function for the nurses. However, she said that she could possibly do the vital signs.
As to the appropriate standard of care, Dr. Lewis stated:
I’m not aware of the standard of care specifically in the Forrest City area, but the standard of care for emergency room physicians taking care of any patient requires the ability to obtain as much information as you can objectively and subjectively. Generally, in the United States, the thing that we do most frequently as [sic] regards to examination of the infant is the APGAR scores which checks the baby’s reflexes, baby’s respirations, whether the baby can flex and extend. That can give a lot of information regarding how well the baby is doing.
Generally, the care of a baby is turned over to a pediatrician. Obstetricians tend to pass the babies on to pediatricians who take care of children. I don’t take care of children, I take care of pregnant women and their infants in útero, although I have had multiple opportunities to evaluate the child in my care of the patient. The standard of care relates to how a group of your peers would act in a similar situation. So if you’re talking about a group of OB/GYN peers, I imagine that it is similar to how a group of pediatric peers act in a similar situation. But they would be taking care of different patients. I am a perina-tologist, which is the same thing as a high risk fetal medicine sub-specialist. A group of peers for a pediatrician is going to be very different from a group ofpeers for an obstetrician. I’m not qualified to articulate a standard of care for pediatricians. I was not articulating a standard of care for pediatricians in the Forrest City area.
[Emphasis added.]
In its October 4, 2004 order, the trial court wrote the following:
Stephon Earl Billups, the deceased, was a thirteen-day old neonate. The court finds that Dr. Rani Lewis admits that she does not perform vital signs on neonates and is thus not qualified to render competent expert opinion on the examination of the thirteen-day old neonate in the instant case. Uniquely critical to the case is what were the vital signs of the neonate at the time of the examination by Dr. John Hill.
The Court is also cognizant that, in the first trial of this case, the defendant’s attorney, Mr. Darrell Baker, stipulated that Dr. Rani Lewis was not an expert in pediatrics. That stipulation, coupled with the admission and testimony of Dr. Lewis as set forth above, persuades this court that the 2003 deposition of Dr. Rani Lewis is properly excluded under the Rules as that [sic] Dr. Lewis is not qualified to render an expert competent expert opinion concerning the examination of the thirteen-day old neonate, Stephon Earl Billups, deceased.
Accordingly, this court finds that the February 2003 deposition is not admissible. Although highly qualified to offer expert testimony on emergency-room care, Dr. Lewis was not an expert in the matter currently before the court. Dr. Lewis testified that, in her practice, she does not perform vitals on neonates nor does she examine children. Therefore, she was not knowledgeable in the matter before the court. Based on this evidence, we hold that the trial court did not abuse its discretion when it excluded Dr. Lewis’s testimony.
Affirmed.
Gladwin and Baker, JJ., agree.
We affirmed appellant’s remaining two points. | [
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Wendell L. Griffen, Judge.
Donald Vem Saul appeals from his conviction for manufacturing methamphetamine. He argues that the trial court erred in denying his motion for directed verdict. He also contends that the trial court erroneously admitted evidence of a prior conviction for possession of drug paraphernalia and an arrest for shoplifting, that the trial court abused its discretion when it allowed police officers to testify as experts about whether methamphetamine was manufactured, that the trial court abused its discretion when it denied his motion for mistrial or continuance, and that the trial court abused its discretion when it refused to allow an adequate cross-examination of one of the State’s witnesses. Because the trial court erroneously admitted proof of appellant’s prior bad acts in violation of Ark. R. Evid. 404(b) (2004), we reverse appellant’s conviction and remand for a new trial.
Facts
Appellant was charged with manufacturing methamphetamine after police found what the State alleged to be a methamphetamine lab in appellant’s van. Detective Andy Lee of the Bentonville Police Department testified that he was trained at the DEA Clandestine Lab School in Quantico, Virginia, on identifying the precursors of methamphetamine, identifying hazards, and taking precautions around methamphetamine lahs. Detective Lee learned how to cook methamphetamine as part of his training. He described the process in detail to the jury and noted that he would expect to find red phosphorous, iodine crystals, peroxides, rubbing alcohol, Heet, tubing, glassware, funnels, coffee filters, solvents, HC1 generators, muriatic acid, and rock or table salt in a lab. These items were common components used in the red-phosphorous method of manufacturing methamphetamine.
Detective Lee testified that he was running stationary radar on Southwest “I” Street on February 13, 2002, when he clocked appellant’s van traveling forty-seven miles per hour in a thirty-five mile-per-hour zone. He initiated a traffic stop. During the stop, appellant produced his driver’s license, an insurance card, and a certificate of title. Appellant explained that he had recently purchased the van and had not yet registered the vehicle. Detective Lee proceeded to search appellant’s van. As he opened the door, he smelled a strong chemical odor, which he identified as a clandestine-lab odor. In the back of the van was a blue plastic storage tub containing what Detective Lee immediately recognized as a methamphetamine lab. Detective Lee identified pictures of the items found in the van and explained their use in the manufacturing process. Introduced into evidence were pictures of discolored glassware, which was a result of burners heating the glass or iodine being put in the glass; coffee filters containing an unknown red sludge and funnels, which were normally used as a filtering system in the manufacturing process; stained, plastic tubing, which appeared to be used to manufacture methamphetamine; duct tape, which was commonly used to construct hydrogen chloride gas generators; two plastic bottles containing a bi-layered liquid substance, a one-gallon jar containing a tri— layered liquid, a Gatorade bottle containing a bi-layered liquid, and a glass jar containing a brown liquid, samples of which were sent to the Crime Lab for testing; match books, which were generally used to produce red phosphorous; a bottle of Red Devil Lye, which was used for the sodium hydroxide needed during the middle part of the cooking stage; two bottles of hydrogen peroxide, which were used to produce crystals; a one-gallon can of camping fuel and a one-gallon can of acetone, which were both used to bring out the methamphetamine from the mixture produced; a stained tube wrapped with electrical tape, which Detective Lee did not know what it was used for but noted that it was probably attached to a vessel at one point; scissors, a knife, razor blades, balloons, and razor blade scrapers, which were used to cut and package methamphetamine; silver hand scales, which were commonly used to weigh the drugs for sale; a soda bottle with red tape wrapped around the top end of it, which would have been used as a HC1 generator unless a person were using it to produce crystals; and Wesson oil, which was used to distribute heat and prevent burning of the solution. Detective Lee also identified a picture of a gas can with appellant’s name on it. The gas can was found next to the storage bin. Detective Lee stated that, after the items were photographed, a disposal company, Environmental Management, was called to pick up the items.
On cross-examination, Detective Lee testified that he did not see anything consistent with the Nazi method of manufacturing methamphetamine. He later guessed that appellant used the red-phosphorous method. Detective Lee stated that he did not find a heat source. He also did not find any clean coffee filters, used in the “powering out” stage of the process, or any packaging materials or large sums of money. When questioned at the Bentonville Police Department, appellant denied that the items found were his. Detective Lee noted that he only fingerprinted the hazardous waste, that he could not fingerprint everything, and that he found no fingerprints. He also noted that the two bottles of hydrogen peroxide were both full. Detective Lee found no empty hydrogen peroxide bottles; however, he noted that iodine crystals were already present.
Matthew Sarver testified that he worked for the Arkansas State Crime Lab in 2002. While there, he received three months of in-house training and attended the DEA class on methamphetamine labs in Quantico. He noted that there were two ways to manufacture methamphetamine, and he described the processes to the jury. Sarver testified that the red-phosphorous method was used in this case. He identified a mixture of iodine and phosphorous, which he testified was a “reaction sludge” left over after a person cooks methamphetamine; tubing, which he testified was used for the HC1 generator; pseudoephedrine; methanol; and a pill soak, which he testified was used early in the manufacturing process. Sarver tested exhibits and found organic solvent and acid. He also testified that the bi-layered liquid found at the scene was consistent with the final stages in the manufacturing process. He tested a heat-sealed plastic bag containing stained coffee filters and stated that he found the substance to be iodine, one of the three main ingredients. Finally, he identified an HC1 generator, bottle of Red Devil Lye, bottles of hydrogen peroxide, and a gallon of acetone, all used in the manufacturing process.
Sarver testified that he did not test every item Detective Lee sent to the Crime Lab and that he tested enough to get a sample from each step of the manufacturing process. He concluded that the items he tested were consistent with manufacturing methamphetamine. He mentioned that something was present from each step of the process and that methamphetamine was present as well. On cross-examination, Sarver testified that no heat source was sent for testing; however, it was possible to manufacture methamphetamine without a heat source. He noted that the manufacturing process took longer and produced a lower yield without a heat source.
Over appellant’s objection, Detective Paul Woodruff of the Harrison Police Department testified that he was on duty on November 22, 1998, another occasion on which appellant was stopped. During a consent search of appellant’s vehicle, officers found what appeared to be a methamphetamine lab. When Detective Woodruff arrived on the scene, he noted a strong chemical odor coming from appellant. The search of the vehicle yielded components used in the Nazi method of manufacturing methamphetamine. At that time, appellant stated that he was driving along a creek in Boone County when he saw some juveniles manufacturing methamphetamine. Appellant told Detective Woodruff that he knew the items were dangerous and took the items. Detective Woodruff stated that appellant’s claim had flaws. First, he noted that there were spills on top of appellant’s vehicle, indicating that someone was manufacturing on top of the vehicle. Second, receipts for pseudoephedrine and for lithium batteries were found in the vehicle. Appellant later pled guilty to possession of drug paraphernalia. On cross-examination, Detective Woodruff testified that he did not find any matches or iodine, but that he did not expect to find them because of the method being used in that case. He also noted that he did not find any peroxide or Red Devil Lye and that while police found boxes of Advil in appellant’s vehicle, the receipt was for Equate pills.
Over appellant’s objection, the jury also heard testimony from Officer Russ Allen of the Rogers Police Department. Officer Allen testified that he was on duty on December 15, 2000, when he was called to the Wal-Mart Supercenter. When he arrived, he found that appellant had purchased some acetone, two cans of starting fluid, and some bananas. Ten boxes of antihistamine tablets were recovered from appellant’s pants. On cross-examination, Officer Allen noted that the incident happened almost three years prior to trial and that he found no iodine, peroxide, tubing, Heet, batteries, or matches on appellant. He also found no drugs. After Officer Allen testified, the State rested its case.
Appellant testified that he lived in Harrison. He stated that he had never seen the blue plastic storage bin found by Detective Lee and denied using methamphetamine the day of his arrest. Appellant testified that he planned to go to dinner with his ex-wife and children. He stated that he drove to a job site in Highfill in his van that day. Appellant also stated that he submitted to a drug test when he arrived at the Benton County Jail and that he tested negative. On cross-examination, appellant stated that his tools were in the van and that the gas can should have had his name on it. He did not smell anything in the back of his van, and he denied that he normally carried chemicals in the back of his van. He acknowledged that he pled guilty to possession of drug paraphernalia in 1999. He repeated the statement that he gave to Detective Woodruff but testified that he pled guilty because he had a syringe on him. Appellant also claimed that he was arrested every time he was pulled over. For example, he testified that he was arrested on April 23, 2003, because he had bought Coleman fuel.
Kimberly Cunningham testified that she was a part owner of K.C. Construction, appellant’s employer. She testified that appellant arrived at work at 8:00 a.m. on February 13, 2002, and left that day at approximately 5:30 p.m. She noted that appellant drove a van and that she never saw a storage bin inside the van. On cross-examination, Cunningham stated that she was aware of appellant’s criminal history, that appellant was an excellent employee, and that she did not mind having convicted felons working for her.
Appellant called Jeff Bland, a parole officer supervising appellant, who testified that he tested appellant the day he was arrested and that he tested negative. Appellant also called Colleen Gray, appellant’s ex-wife, who testified that she planned to have dinner with appellant that day but that appellant never arrived at her house. After Gray’s testimony, appellant rested his case.
The jury found appellant guilty of manufacturing methamphetamine. He was later sentenced to thirty years in the Arkansas Department of Correction. This appeal followed.
Appellant argues that the trial court erred in denying his motion for directed verdict. Because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A motion for directed verdict is a challenge to the sufficiency of the evidence. Whisenant v. State, 85 Ark.App. 111, 146 S.W.3d 359 (2004). On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis other than the guilt of the accused. Id. The question of whether circumstantial evidence excludes other reasonable hypotheses is for the fact finder to determine. Id. In reviewing the sufficiency of the evidence, we consider evidence both properly and improperly admitted. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).
Sufficiency of the Evidence
Appellant argues that the State presented insufficient evidence to prove that he manufactured methamphetamine. Arkansas Code Annotated section 5-64-401 (a) (Supp. 2003) states that it is unlawful for a person to manufacture a controlled substance. “Manufacture” is defined as:
the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or inde pendently by means of chemical synthesis, and include any packaging or repackaging of the substance or labeling or relabeling of its container[.]
Ark. Code Ann. § 5-64-101 (m) (Repl. 1997).
Appellant contends that he could not be convicted of manufacturing methamphetamine because there were deficiencies in the manufacturing process. He states that the police never found a heating element, a “critical element” in the process. However, the jury heard testimony that a heating element is not necessary to manufacture methamphetamine. Appellant attempts to discredit Sarver’s testimony by stating that he was a chemist and not an expert in the detection of methamphetamine labs; however, such a fact would go to Sarver’s credibility, not to the sufficiency of the evidence. It is in the province of the fact-finder to determine the weight of the evidence and the credibility of witnesses .Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999); Stewart v. State, 89 Ark. App. 86, 200 S.W.3d 465 (2004). As such, the jury was free to accept or reject Sarver’s assertion, and we cannot re-weigh the credibility of the evidence on appellate review. Appellant also notes that the police did not find any used bottles of hydrogen peroxide, no used striker plates, no baggies for packaging the finished product, or clean coffee filters to filter the finished product. However, we have affirmed convictions for manufacturing methamphetamine when less than all of the necessary components were present. See, e.g., Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) (affirming a conviction when no lithium, a necessary component in the method used by the appellant in that case, was found at the appellant’s residence); Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999) (affirming a conviction when appellant’s home contained all but one of the necessary components and appellant had expected the arrival of the missing ingredient and had begun the cooking process). Appellant’s van contained components of various stages of the manufacturing process. In addition, Detective Lee testified that appellant’s van had a chemical odor consistent with manufacturing methamphetamine. Appellant also notes that the police found no finished product in the search of his van. However, many of the components found in appellant’s van contained methamphetamine residue. The drug does not have to be in its final form before one can be convicted of manufacturing methamphetamine. See Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989) (affirming a conviction for manufacturing when there was ample evidence that processing and preparation of the drug took place).
Finally, appellant argues that there was insufficient evidence to prove that the items found in the van belonged to him. The State presented sufficient evidence to prove that appellant constructively possessed the items in the storage bin. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004). This control can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Id. In this case, the items were found in appellant’s van, along with a gas can with appellant’s name on it, which appellant admitted was his. While appellant presented witnesses who testified that they saw nothing in his van all day, the jury was free to reject their testimony. See Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). The State presented sufficient evidence to prove that appellant manufactured methamphetamine. The trial court did not err in denying appellant’s motion for directed verdict.
Prior Bad Acts
Appellant argues that the trial court abused its discretion when it allowed the State to introduce evidence of his prior conviction for possession of drug paraphernalia and his prior arrest for shoplifting antihistamine tablets. Specifically, he contends that both prior bad acts were inadmissible under Ark. R. Evid. 404(b). We agree. Rule 404(b) of the Arkansas Rules of Evidence states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, s.uch as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). Evidence offered pursuant to Rule 404(b) must be independendy relevant. Id. Evidence is independendy relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person. Id. However, even if independendy relevant, evidence of other crimes may still be excluded under Rule 403 if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Id.
Appellant argues that neither act was independently relevant to a material issue in the case against him and that the probative value of the evidence of the prior bad acts was substantially outweighed by the danger of unfair prejudice. In Holt v. State, supra, we reversed a conviction for possession of methamphetamine with intent to deliver when the trial court allowed evidence that the appellant was arrested for possessing syringes, one of which tested positive for marijuana, one year prior to the arrest for which he was being tried. In that opinion, we cited several other opinions where the trial court erred in admitting prior bad acts. See id. (citing Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985) (superceded by statute on a separate issue) (reversing and remanding where it could not be said that merely because two burglaries occurred on the same night and involved items of similar nature, the State should be allowed to reference the other burglary); Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977) (reversing and remanding when the trial court admitted evidence of other drug deliveries to prove that the appellant made a drug delivery on the date in question); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971) (reversing a conviction for selling LSD when the trial court allowed testimony showing that the appellant previously sold marijuana from his apartment)).
While the State argues that the prior bad acts were admissible to establish “motive, intent, plan, knowledge, and the absence of mistake or accident,” it appears that the bad acts were introduced for no reason other than to show that appellant shows a propensity toward manufacturing methamphetamine. The only issues in this case were whether the materials found in appellant’s van could be used to manufacture methamphetamine and whether those materials belonged to appellant. Appellant’s prior possession conviction and shoplifting arrest were not relevant to either of these issues other than to show that appellant had been involved to some extent in the manufacture of methamphetamine in the past. This is “the very type [of evidence] that Rule 404(b) was designed to prohibit.” Hamm v. State, 91 Ark. App. 177, 184-85, 209 S.W.3d 414, 419 (2005).
Furthermore, we do not consider the error in this case harmless. Where evidence of guilt is overwhelming and the error slight, this court can declare the error harmless and affirm. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002). The State called witnesses for the sole purpose of establishing these prior bad acts and discussed them in both its opening statement and closing argument. When excised from the case, the only evidence remaining is the fact that the methamphetamine lab was found in appellant’s vehicle. Because the trial court erroneously admitted evidence of prior bad acts and because that error was not harmless, we reverse appellant’s conviction and remand this case for a new trial.
Testimony About the Manufacturing Process
As it is the only other issue likely to come up on remand, the only other issue we address is appellant’s contention that the trial court abused its discretion when it allowed Detective Lee to testify as an expert and offer opinions about whether methamphetamine was manufactured. Appellant contends that Detective Lee’s testimony was highly prejudicial and completely unnecessary for the jury to understand the case. Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004) (quoting Brunson v. State, 349 Ark. 300, 79 S.W.3d 304 (2002)). Rule 702 of the Arkansas Rules of Evidence (2004) provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
When determining whether to allow expert testimony to be admitted, the trial court must initially determine whether the witness is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Farm Bureau Mut. Ins. Co. of Arkansas v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Jackson v. State, supra (quoting Brunson v. State, supra). The trend is not to exclude expert opinion testimony that amounts to an opinion on the ultimate issue as long as such testimony “does not mandate a legal conclusion.” Brunson, 349 Ark. at 312, 79 S.W.3d at 311 (citing Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984)).
Arkansas appellate courts have allowed police officers to testify regarding their experiences in drug cases. See Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998) (allowing testimony from two officers concerning how methamphetamine was packaged and sold was proper in light of the State’s burden to prove that the appellant had possessed methamphetamine with the intent to deliver it); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (holding that the trial court did not abuse its discretion when it allowed a police officer who was not qualified as an expert witness to testify on redirect examination about variations in drug purity levels within certain quantity of methamphetamine, as such testimony constituted, in the officer’s experience, very commonsense explanations for batch of methamphetamine not being mixed thoroughly); Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996) (affirming a conviction for possession of methamphetamine with intent to deliver when a police officer was allowed to testify as to normal drug purity level found on streets and as to market value of drugs involved). While appellant claimed that Detective Lee’s testimony was unnecessary, appellant argued at trial that the materials in the van could not be used to manufacture metham phetamine. Because appellant disputed whether or not the items could have been used to manufacture methamphetamine, the process was relevant in this trial. The trial court did not err in allowing Detective Lee to testify about the manufacturing process.
Reversed and remanded.
Glover and Roaf, JJ., agree.
The parties stipulated that Detective Lee conducted a lawful search of the van.
Appellant proffered the testimony of Howard Cunningham, who was unavailable to testify that day. Cunningham would have testified that appellant was at the work site that day and that he never saw a blue storage bin in appellant’s van.
At trial, the State relied on Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), and Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995). In both cases, the State admitted testimony of prior bad acts in light of arguments that the appellant was unaware that the contraband was in their home. In both cases, however, the recent drug activity tended to discredit assertions that the appellants had no knowledge of the presence of drugs in their homes. In the present case, however, we are unable to see how a four-year-old prior conviction for possession of drug paraphernalia and a two-year-old shoplifting arrest tend to show that appellant was manufacturing methamphetamine in 2002.
Appellant said in his opening statement:
Now, there may or may not have been items necessary for making methamphetamine. That’s for you to decide. The State will need to present facts to you to prove to you beyond a reasonable doubt that those items were there, that the necessary items were there to manufacture methamphetamine, all of the necessary items.
He also stated in his closing argument:
When we take a closer look inside this container, you can see the things that the State alleges that you need for a methamphetamine lab, and we can see that there are some pretty important things missing out of this container. These are things that Officer Lee tells you are vital to the manufacturing process, things that were not present. The biggest thing that is not present in the situation is the heat source. This is the hot method, the red phosphorous method of cooking methamphetamine. Both Detective Lee and the Crime Lab guy explained to you that this is the hot method. There should be a heat source. There should be a hot plate.
Officer Lee told you in his testimony that more than one stage required a heating process. There was nothing like that that was found in the blue container, and it’s a critical component if they are going to have a meth lab. There is no evidence that one was found anywhere the day that Mr. Saul was arrested. And according to Officer Lee this is a lengthy process. It’s not something you do in a matter of minutes. Vern Saul was only at his place less than an hour. He was pulled over at 6:30. He got off work at 5:30. That’s a short amount of time, and there’s no heat source found.
There are no pills. There are no clean filters available to filter the finished product. He told us that that was the ending stage, that the product had to be filtered to finish off the process. The absence of those filters indicates that the plan was not to finish off the process. There are no bags to put a finished product in. There is no white powder found in the van. There is not a finished product | [
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Paul Ward, Associate Justice.
The question for decision is whether appellee made such a payment on a promissory note as to toll the Statute of Limitations. The Chancellor held that no such payment was made, and, for the reasons set out below, we think his holding must be affirmed.
Only two witnesses testified. One was the bookkeeper for appellant (C. T. Roberson) and the other was appellee (Leslie Rutledge). There is very little if any conflict in the testimony, and we deem it necessary to set forth only the material portions thereof together with a brief statement of how the issue arose.
C. T. Robinson (hereafter referred to as appellant) operates two distinct places of business — a hardware store and a motor company. The accounts of both businesses are kept on one set of hooks.
On April 8, 1950 the motor company sold appellee a saw mill and certain attachments for $2,500. Appellee executed a note (same date) for $1,000 to appellant as the down payment — the note sued on herein. This note was secured by a deed of trust on real estate. A Conditional Sales Contract was executed by appellee and appellant for the balance. In this contract $225 was added for insurance and interest, payable in 18 equal monthly installments of $95.84 each, or a total of $1,-725.12. (We note here that of the $225 not more than $125 could be charged as interest and avoid usury, leaving at least $100 charged for insurance on the saw mill.) The Conditional Sales Contract required appellee to carry and pay for the said insurance.
Appellant promptly assigned the Conditional Sales Contract to the Murdock Acceptance Corporation. The latter company refused to accept the contract and it was returned to appellant.
This suit was filed by appellant against appellee on the $1,000 note on February 28, 1957. This note would have been barred by the Statute of Limitations, in the absence of a payment by appellee, on April 8, 1956. It is agreed that no such payment was made unless made under the facts and circumstances set forth hereafter. In appellant’s brief it is stated: “The only question for decision is whether the May 1, 1952 payment tolled the Statute of Limitations.”
The ledger sheet purporting to show all relative transactions was introduced by appellant. It charges appellee with $2,500 and also with items bought by appellee from the hardware store. It credits appellee with several installment payments and with $1,500 on May 1, 1952. It shows no charges for interest or insurance. The said $1,500 payment was not, apparently, a cash payment by appellee, but was the result of a refinancing deal with the Delta Loan Company which is not fully explained by the record.
The record contains an exhibit to the bookkeeper’s testimony captioned “Analysis — Leslie Rutledge Note Account.” This exhibit, made up by the bookkeeper after suit was filed, purports to charge appellee with the $1,000 note, the $1,500 balance on the sale, and with interest on both items up to May 1, 1952; and, against the above charges, it gives appellee credit (as of May 1, 1952) with $1,500. From these figures it is deduced that on May 1, 1952 appellee owed appellant $1,207.22 on the note sued on, and $1,441.04 on all other items.
Appellant’s contention in this case is that the $1,500 received on the refinancing deal paid all of the $1,441.04 item with a surplusage of $58.96, and that the latter amount should apply as a payment on the $1,000 note as of May 1, 1952. If so applied it would, of course, toll the statute. We cannot agree with this contention.
The burden was on appellant to show such a payment as would toll the statute. See: Kitchens v. Machen, 210 Ark. 1046 (at page 1053) 198 S. W. 2d 833 and the cases cited therein. The testimony, we think, does not sustain this burden.
In the first place, it appears that there would have been no surplusage to apply on the $1,000 note on May 1, 1952 if appellant had charged appellee with the insurance on the saw mill. Appellee was obligated by the Conditional Sales Contract to pay this item the same as he was obligated to pay interest. The mere fact that appellant did not carry the insurance item on the ledger sheet is not significant because interest was not carried either.
In addition to the above we think the testimony fails to show a conscious intent on the part of appellee to make a payment on the $1,000 note. He denied any such intent, but stated that he thought his whole indebtedness to appellant was liquidated by the $1,500 credit on May 1, 1952 and by the repossession of the saw mill by appellant. Moreover it is not clear to us that appellant considered on May 1,1952 that a payment had been made on the note. The testimony of the bookkeeper, with commendable frankness, indicates that he never arrived at this conclusion until after the suit was filed. It is certain that no such credit on the note is shown on the ledger sheet. The evidence fails to show a voluntary act of payment on the part of appellee.
“To interrupt the running of the statute of limitations, a payment must be voluntary and must be the act of the debtor himself, or in pursuance of his consent or direction.” 34 Am. Jur. page 266, § 339. See also in this connection, same authority, §§ 338, 341, and 345.
It is therefore our conclusion that the decree of the trial court must be, and it is hereby, affirmed. | [
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David M. Glover, Judge.
Appellant Franklin Davis appeals from a summary judgment in favor of his former employer, appellee Little Rock School District. We affirm.
The pertinent facts are as follows. Davis was an elementary-school principal in the Little Rock School District. In mid-1997, the District began investigating complaints by several teachers and parents that Davis had sexually harassed them. Davis was confronted with the accusations and denied them. Following another similar complaint in November 1997, the District was prepared to terminate Davis’s employment. Instead, Davis was transferred to an associate-principal position at Central High School. Thereafter, in March 1998, yet another sexual-harassment complaint was made against Davis, this time by a Central High School teacher.
In an April 2, 1998 letter to Davis, District Superintendent Leslie Camine stated that he would recommend termination of Davis’s contract “because the District has received numerous complaints of sexual harassment and inappropriate conduct by you directed at both teachers and patrons of the District.” Camine further stated that Davis was entitled to a hearing before the District board. On May 4, 1998, Davis, who was represented by counsel, responded as follows:
Please be advised that, in lieu of the proceeding required by the Teacher Pair Dismissal Act, including the right to a school board hearing, I will agree to the submission of the recommended termination of my contract to binding arbitration through the American Arbitration Association. The offer to utilize this alternate dispute resolution process is based on the premise that formal judicial processes can be time consuming, costly and frustrating for both parties. The authority for a school district to submit a nonrenewal/termination recommendation to binding arbitration is recognized by the Attorney General of the State of Arkansas in Opinion No. 95-136.
On May 12, 1998, the District accepted Davis’s offer to arbitrate and referred him to its attorney to coordinate selection of the arbitrator and to schedule the hearing.
For reasons that are unclear from the record, the arbitration hearing did not take place until June 1999. At the hearing, several women who were either teachers, school-district employees, or mothers of children in the district testified that Davis had either conducted himself in a sexually inappropriate manner in their presence or made lewd and suggestive comments to them. Davis denied the allegations. On July 12, 1999, the arbitrator issued an award in which she found that “the recommendation not to renew [Davis’s] contract was not arbitrary, capricious or discriminatory and should be upheld. [Davis’s] contract is not renewed for the 1999-2000 school year.” However, in Davis’s favor, she found that the District should have paid Davis for the entire 1998-99 school year, and she ruled that he was entitled to all salary and benefits that he had not received for that period. On July 23, 1999, Davis received $24,561.94 “in full and complete satisfaction of the arbitration award dated July 12, 1999.”
On or about July 26, 1999, Davis asked the arbitrator to reconsider the award. His request is not contained in the record, but Davis states in his reply brief that he was giving the arbitrator “notice that the award did not comport with the requirements” of the Arkansas Teacher Fair Dismissal Act (TFDA), a statutory scheme comprised of various procedures that a school district must follow when nonrenewing or terminating a teacher’s contract. See Ark. Code Ann. §§ 6-17-1501 to -1510 (Repl. 1999 and Supp. 2003). The arbitrator, citing Rule 33 of the National Rules for the Resolution of Employment Disputes, declined to reconsider the award, stating that, while a party may request correction of “clerical, typographical, technical, or computational errors,” an arbitrator is not empowered to “redetermine the merits of any claim already decided.” Further, she stated, Arkansas law permits an arbitrator to modify or correct an award only where there is an “evident miscalculation of figures or mistake in the description of a person, thing, or property” or where the award was “imperfect in a matter or form not affecting the merits of the controversy.” See Ark. Code Ann. §§ 16-108-209 and -213(a) (1987). Additionally, she said, Arkansas’s arbitration statutes provide for the “vacation” of an arbitration award only by the courts and not by the arbitrator. See Ark. Code Ann. § 16-108-212 (Supp. 2003). Following the arbitrator’s denial of reconsideration, Davis did not appeal the award to circuit court or ask the court to vacate or modify the award.
On July 1, 2002, almost three years after the arbitrator entered her award, Davis filed the present complaint against the District in Pulaski County Circuit Court. The thrust of his complaint was that he was entitled to back pay, reinstatement, damages, and attorney fees because the arbitrator and the District did not comply with the TFDA in various respects, including but not limited to 1) failing to make specific written conclusions regarding the truth of each reason given in support of the termination recommendation, 2) failing to bring any problems to Davis’s attention prior to the termination recommendation and failing to document efforts to assist him with the problems, and 3) terminating his salary before the hearing occurred. The District answered and, in the course of the litigation, filed two motions for summary judgment, the first of which was denied and the second of which was granted. The grant of summary judgment was made on the basis that Davis’s suit was barred by res judicata and that, by asking for arbitration, he waived strict compliance with the TFDA.
Davis now appeals from the above ruling. We review his arguments under the appropriate standard for issues of law, i.e., if the law has been erroneously applied and the appellant has suffered prejudice, the erroneous ruling will be reversed. See generally Sheets v. Dollarway Sch. Dist., 82 Ark. App. 539, 120 S.W.3d 119 (2003) (holding that whether a school district has complied with the TFDA is a question of law); Office of Child Support Enforcement v. King, 81 Ark. App. 190, 100 S.W.3d 95 (2003) (treating review of a trial judge’s conclusion that a suit was barred by the application of res judicata as a question of law). We also note that, where parties file cross-motions for summary judgment, as they did in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. See Clarendon Nat’l Ins. Co. v. Roberts, 82 Ark. App. 515, 120 S.W.3d 141 (2003).
In his first assignment of error, Davis argues that summary judgment was improper because 1) the District failed to comply with Ark. R. Civ. P. 56(c), and 2) the doctrine of res judicata was not applicable under the facts of this case. On the first point, Davis claims that the District’s motion should have been denied because it did not meet Rule 56(c)’s mandate to “set forfth] the undisputed facts upon which a finding for summary judgment may be based.” However, Rule 56(c) contains no requirement that a statement of undisputed facts accompany a motion for summary judgment; it simply provides that a motion for summary judgment “shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, deposi tions, answers to interrogatories and admissions on file, and affidavits.” Davis has therefore shown no basis for reversal on this point.
As for Davis’s res judicata argument, that doctrine provides that a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). Except in certain limited situations, a valid and final award by an arbitrator has the same effect under the rules of res judicata as the judgment of a court. See Riverdale Dev. Co., LLC v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Restatement (Second) of Judgments § 84 (1982). When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Cox, supra. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id.
We believe that Davis had a full and fair opportunity in the arbitration proceeding to litigate the matters he now raises in this lawsuit. Although he contends that his present issues were not determined in arbitration, we find nothing in his brief argument on this point to support that contention. To the contrary, Davis argued in arbitration, just as he does in this lawsuit, that the school board should not have terminated his employment before the hearing was held. He prevailed on that issue in arbitration and collected an award of back pay. Davis also contended at the arbitration hearing, just as he does in this lawsuit, that the TFDA’s procedures should have been applied in his case. A review of the arbitrator’s award shows that she did apply the TFDA in some respects, determining, for instance, that the superintendent’s recommendation was not “arbitrary, capricious, or discriminatory” and “should be upheld.” See Ark. Code Ann. §§ 6-17-1503 and 1510(b) (Repl. 1999). However, Davis requested reconsideration on the basis that the award did not fully comport with the TFDA. The arbitrator denied reconsideration, and Davis neither appealed from that ruling nor requested that the circuit court vacate or modify the award. See McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987) (holding that a decision by an arbitrator on all questions of fact and law is conclusive unless grounds are established to vacate or modify the award). In light of these circumstances, we believe that Davis has already had a full opportunity to challenge the propriety of his dismissal and the procedures employed in connection therewith. The trial court correctly ruled, therefore, that Davis’s lawsuit was barred by res judicata.
Our holding on the above point makes it unnecessary to reach Davis’s second argument that the trial court erred in ruling that he waived strict compliance with the TFDA by submitting to arbitration.
For his final argument, Davis claims that his due-process rights were violated because the arbitrator did not address the veracity of each allegation lodged against him or “vote on the truth of each allegation and vote to terminate his employment” as required by the TFDA. Our reading of the trial court’s order does not reflect a clear ruling with regard to Davis’s due-process claims. Failure to obtain a ruling is a procedural bar to our consideration of an issue on appeal; this is true even of constitutional arguments and even where the arguments were raised at trial. See Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004).
In any event, in litigation filed by Davis against the District in federal court in 2000, the United States Court of Appeals for the Eighth Circuit agreed with the United States District Court that “the pre-termination and post-termination process Davis received was constitutionally sufficient.” Davis v. Little Rock Sch. Dist., No. 01-3007 (8th Cir. 2002) (unpublished). The District Court also ruled that Davis had waived his due-process claims and his rights under the TFDA when he requested and participated in a binding arbitration proceeding. Although Davis argues in his reply brief that the federal courts did not dismiss his “state due process claims” that are “based upon the TFDA” with prejudice, he fails to explain to our satisfaction how the due-process and TFDA claims he now asserts differ in any meaningful way from the claims ruled upon by the federal courts.
Affirmed.
Griffen and Roaf, JJ., agree.
Several months before the hearing, the District had ceased paying Davis for the 1998-99 school year.
The record before us contains a complaint filed by Davis in Pulaski County Circuit Court in October 1999 against the District, several of its employees, and several of his accusers seeking damages for tortious interference, defamation, racial and gender discrimination, and violation of due-process rights. However, the action is not designated as an appeal, and the record does not indicate what became of this lawsuit.
The heading to Davis’s first point also indicates that he will challenge the timeliness of the District’s second motion. However, this point is not developed in the text of Davis’s argument. Therefore, we will not consider it on appeal. See generally Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997) (declining to consider an argument that is mentioned only in a subheading of the appellant’s brief); Brockwell v. State, 260 Ark. 807, 545 S.W2d 60 (1976) (holding that the mere statement of a point is not a sufficient argument for reversal).
In 2001, the legislature amended theTFDA in several respects, but those amendments were not in effect at the time of Davis’s disciplinary actions in 1998 and 1999 and thus were not applicable. See Olsen v. East End Sch. Dist., 84 Ark.App. 439, 143 S.W.3d 576 (2004). | [
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HUMPHREYS, J.
Appellant, sheriff of Garland County, was indicted, tried and convicted in the. Garland Circuit Court of misdemeanor in office, for failure to seize and burn gambling paraphernalia used in operating a gambling house over the Mint Billiard Parlor at No. 706% Central avenue, Hot Springs, Arkansas. A fine of $5 was assessed by the verdict. A judgment of ouster and for the fine and costs was rendered against appellant, from which he has prosecuted an appeal to this court.
The first assignment of error insisted upon by appellant for reversal is the overruling of his motion suggesting the trial judge’s disqualification and requesting him to certify such disqualification. At the February, 1917, term of said court the trial judge had instructed the grand jury to investigate the gambling situation in Hot Springs with relation to whether certain officers of the county were countenancing and condoning gambling.' The judge conducted the examination of a large number of witnesses summoned to appear before the grand jury to testify concerning the gambling .situation. As a result of the examination, the grand jury returned two indictments against appellant and one against the prosecuting attorney.
The validity of these indictments was questioned at the next term of court because the trial court had participated in the investigation, whereupon the court directed the jury to reinvestigate the gambling situation as it ex isted in Hot Springs in the months of December, 1916, and January, 1917. At the request of the prosecuting attorney, Mr. Wootton, of the firm of Martin, Wootton & Martin, on account of his familiarity with the former investigation, was permitted to assist in the new investigation. The court specially charged the grand jury with reference to the line of investigation to he pursued, and announced that writs for the seizure and burning of gambling paraphernalia had been issued and placed in the hands of the sheriff, and suggested that the jury examine into whether or not the sheriff had faithfully executed the writs.
(1-2) New indictments were returned against the sheriff by the grand jury on April 4, 1917, charging him with the identical offenses charged against him in the former indictments. It is insisted that the new indictments, being based upon the same testimony developed by the judge in the original investigation, stand in the same attitude as the former indictments as related to the alleged disqualification of the trial judge. In other words, if his participation in the first investigation disqualified him from sitting as judge in the tral of those cases, then it is insisted for the same reason that he is disqualified from sitting as judge in the trial on the present indictment. Section 20, article 7, of the Constitution of Arkansas forbids a judge who was of counsel in a case to sit or preside in the trial of the cause. The particular part of section 20, article 7, invoked by appellant to disqualify the judge is as follows: “Or in which he may have been of counsel. * * * ” This clause of the Constitution relates to some case in which the judge was counsel before he assumed the duties of the judgeship. The very language clearly imports such construction. It must necessarily relate to cases in which the judge participated as attorney or counsel before assuming his duties as judge, because by section 25 of the same article of the Constitution, circuit judges are denied the right to appear as attorney or of counsel in any case during their incumbency in office. It being clear to us that the latter part of sec tion 20 has reference to those cases only in which the judge participated prior to entering upon his duties, it follows that there was no constitutional bar to his sitting as judge in the instant case, for the conduct complained of by appellant occurred after the judge assumed his official duties. If, however, the spirit of the clause is broad enough to include cases in which a judge accepted employment or volunteered his services as an attorney or as counsel after he assumed the duties of his office, we are of opinion that the participation in the examination of witnesses before the grand jury, upon whose testimony the original indictments were returned, did not constitute him either an attorney or counsel in the cases. His assistance was .requested by the grand jury. The prosecuting attorney was not in a position to assist them. The situation was an extraordinary one. The majesty of the law was at stake. An acute issue was drawn as to whether law should prevail or whether crime should run rampant and offenders go unpunished. The exigencies of the times demanded radical action on the part of the circuit judge. We think his participation in the original grand jury proceedings falls far short of constituting him an attorney or of counsel in the particular cases now pending before the court. His participation in the examination of witnesses might have been urged as cause for quashing the original indictments, but can not be urged as a disqualification of the judge under the latter part of section 20, article 7, of the Constitution of Arkansas, in ■the instant case.
(3-4). It is contended that there is not sufficient legal evidence to support the verdict. This court is committed to the doctrine that if there is any legal evidence to support the verdict, it will not be disturbed on appeal. The evidence is overwhelming that gambling houses were being operated openly, both day and night, during the months of December, 1916, and January, 1917, in the city of Hot Springs. During that time as many as six writs for the seizure and destruction of gambling paraphernalia were placed in the. hands of appellant. The returns ■upon the writs show the seizure and destruction of only an insignificant part of the gambling devices used during those months by the several gambling houses. The Mint gambling house ran three or four poker tables, a senate table, a 21 table, a faro bank table, a klondike table, a crap table and a roulette wheel. From seventy-five to one hundred men frequented the Mint and engaged in play each day from noon until midnight, in the months of December and January. Other popular resorts known as the “New York,” the “Ohio Club,” “Warwick,” “Monarch,” etc., were richly furnished and equipped with the same character of paraphernalia and operated day and night during the same period. It is true that appellant made quite a number of unsuccessful raids on the gambling houses and was disappointed with the results of his search, but the finding of the jury was to the • effect that he failed to exercise proper diligence in the search for and destruction of these gambling devices. Gambling houses were operated during that period in such open defiance of law that we can not say the-verdict is unsupported by any legal evidence.
(5) It is insisted that the court erred in admitting all writs issued in the month of January, 1917, by the circuit judge for the seizure and destruction of gambling devices, and appellant’s returns thereon. Appellant was charged with wilfully omitting and failing to serve a writ to seize and burn gambling devices on the 27th day of January, 1917, used in operating a gambling house at No. 706% Central avenue. Only a small'number of the devices in use at that place were seized. The question for the jury to determine was whether appellant had made a faithful search and honest effort to seize the devices. The test of appellant’s guilt or innocence was his intent. If his purpose was not to seize and burn the devices, he was guilty. If, on the contrary, his purpose was to seize and burn them, he was innocent. There was no better way to ascertain his intention than by showing his action in reference to other orders of like nature about the same time. When the issue is one of good or bad faith, as in this case, it is admissible to prove a series of similar acts about the same time as tending to establish the particular intent. Howard v. State, 72 Ark. 586.
Lastly, it is contended that the court erred in giving instruction No. 2, because it is said the instruction fixes responsibility upon appellant for an error of judgment. We are unable to place such a construction upon the language used by the court. It fixes responsibility upon appellant if he failed to exercise proper diligence in serving the writ or if he failed to make an honest effort to seize and destroy the gambling devices named in the writ.
Finding no error in the record, the judgment is affirmed. | [
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Sam Robinson, Associate Justice.
This is a proceeding for the condemnation of land for state highway-purposes. A little over four and one-half acres was taken. There was a jury verdict for $20,000, and the Highway Commission has appealed.
In 1955 appellees bought a tract consisting of nine and one-half acres on the southwest corner of the intersection of Highway 67-70 and the Saline County road known as “Alcoa Plant Road.” Appellees constructed on the property what is known as a speed bowl for the racing of stock cars and operated such track during the years 1956 and 1957. On appeal appellant contends that the trial court erred in admitting evidence of the profits derived from the operation of the speed bowl to prove the value of the land taken, and the damages to the remainder. Appellee Charles E. Addy was allowed to testify, over the objection of the appellant, that he made a net profit of $4,927.69 in 1956 from the operation of the track, and that in 1957 he made a net profit of $6-775.01. Other witnesses who testified as experts on the value of the property and the damages, stated that they considered the profit derived from the operation of the track in reaching the appraised value given in their testimony.
This case is controlled by the recent case of Hot Spring County, Arkansas v. Crawford, 229 Ark. 518, 316 S. W. 2d 834. There it was held that net profits from a business operated on the land cannot be considered as a factor in assessing damages for the taking or damaging of land. Many authorities are cited in the Hot Spring case, including Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969. There it was held that the trial court erred in permitting evidence to be introduced showing the profits from the operation of a ferry. Appellees cite Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 792, as sustaining their contention that the evidence of profits is admissible ; but that case involved farm land and profits from the farming operation. This is an exception to the gen eral rule. See 7 A. L. R. 163, Ann.; 1 Orgel on Valuation under Eminent Domain, § 167; 16 A. L. R. 2d 1113, Ann., 5 Nichols on Eminent Domain, p. 225.
For error in admitting evidence of profits from the business operated on the land, the judgment is reversed and the cause remanded for new trial. | [
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David M. Glover, Judge.
This is the second appeal in this divorce case contesting the division of certain financial accounts between appellant, Raymond Baxley, and appellee, Susan Baxley, who were married in July 1990 and divorced in June 2003. The parties entered into a property-settlement agreement regarding most of their marital assets, agreeing (1) that Susan got the bank accounts in her name, a 1998 Oldsmobile, two four-wheelers, the marital home (which she owned prior to the marriage), and property in Montgomery County; (2) that Raymond got the trailer, truck, and boat, as well as his fishing tackle, two muzzle loaders, ammunition, his clothing and the bank accounts and other accounts in his name; and (3) that Susan kept all remaining personal property at the residence. The only assets at issue are two accounts in Susan’s name with Edward Jones, which are rollovers of her retirement accounts. Prior to their marriage, the accounts were valued at $22,257.65; at the time of the divorce, one account was valued at $232,846.95, and the other account was valued at $9275.07.
The court heard testimony regarding the retirement accounts on May 27, 2003. Raymond attended the hearing but did not testify. He had undergone open-heart surgery two weeks prior to the hearing.
Susan testified at the hearing that she and Raymond were very happy for a number of years after they got married. At the time of the marriage, and during the marriage, Raymond did not work due to injuries he had received in a 1989 automobile accident, although he had worked prior to the marriage for a pest-control company and as a fishing guide. Raymond began to receive social-security disability in 1991; Susan testified that the checks were around $700 per month at first and that the most recent ones were $889 per month. Susan worked as a registered nurse during the marriage until she suffered a stroke in October 2001, and she was terminated from her position after using all of her leave time. At the time of the hearing, Susan was receiving approximately $1440 per month in social-security disability. Susan also was receiving a $280 per month UNUM disability, but she testified that those private payments only lasted eighteen months and that she began receiving the payments in October 2001.
Susan testified that she and Raymond maintained a joint checking account during the marriage, that her paychecks and his disability checks were deposited in the account, and that Raymond had “free run” of the account. She said that Raymond wrote “on average” $300-$600 per month in checks. She said that she paid out of the joint checking account the mortgage payments on the house they lived in during their marriage, which she owned, and that she was still making mortgage payments.
At the hearing, the trial judge awarded 100% of the contested accounts to Susan because “they’re from her sole earnings.” In her ruling from the bench on May 27, 2003, the trial judge stated:
The Court looks to the factors set forth under A.C.A. § 9-12-315, concerning division of property in determining whether the Edward Jones accounts should be equally divided for the period from the time of marriage to the divorce. First of all, the length of the marriage was twelve, almost thirteen years. I have been married thirty-four years. It doesn’t seem extremely long. As to age, health, and station in life, you have two individuals whose health is truly deteriorating. Although Mrs. Baxley seems very strong and has a good strong will, it still may be that she may have some unforeseen medical expenses that she might have difficulty trying to pay for. I know that my 89-year-old mother is relatively very healthy, but her Medicare doesn’t always cover her expenses. As to amount and sources of income, they’re both on social security. According to Exhibit 1, her income was always a great deal higher than his so her social security is appropriately higher. As to vocational skills and employability, they both did hard work, but she had a more advanced degree as far as her earnings.
After looking at number 2 in 9-12-315 and each of these factors, the Court does deem that it would be appropriate to have an unequal division and to allow the plaintiff to keep as her sole and separate property these two accounts because they’re from her sole earnings. During their thirteen year marriage she allowed her husband to have the fruits of her employment, but now she needs to have the fruits of her employment for her future medical expenses. ... Primarily, he’s 66 and she’s 60 and she had planned many more years of work, but it didn’t happen. They’re both on social security and they both will be using Medicare. I do not feel that it is inequitable to have this unequal division.
Raymond appealed the trial court’s decision to this court, and in an unpublished opinion delivered May 12, 2004, this court reversed and remanded the trial court’s decision, holding:
[S]imply reciting the source of the funds [did not] equate to a proper consideration of the contribution of each party in the acquisition, preservation, or appreciation of marital property. Although Ms. Baxley’s earnings were the source of the funds in the investment account, the trial court’s order makes no finding as to the contribution of each party as contemplated by Ark. Code Ann. § 9-12-315(a)(l)(A)(vii). In fact, the order makes no finding at all concerning Mr. Baxley’s contribution, or lack thereof, and, consequently, there is no explanation as to why an equal division of the marital property was inequitable. In the absence of such an explanation, and in light of the presumption that marital property will be divided equally, we must reverse and remand for entry of an order that demonstrates proper consideration of the statutory factors.
The dissent asserts that the directions in the opinion from this court upon remand, in which Judge Baker was the writing judge, “clearly indicated that we were seeking identification by the trial judge of contributions including those of a non-monetary nature.” It appears that this court’s opinion upon remand was not as clear to the trial court as the dissent claims, because upon remand from this court, the trial judge again awarded Susan 100% of the two retirement accounts, stating:
This is a case where the Court of Appeals found that the Court needed to state the reasons for its finding of an unequal distribution of marital property. I don’t think we need an evidentiary hearing. I failed to give specific reasons why I had an unequal distribution. I thought I did when I stated that Mr. Baxley enjoyed the fruits of Mrs. Baxley’s labor. There was evidence presented that he spent on his own personal use from 1994 to 1995 $6400 and that’s what he did every year of the marriage.
He had the benefit of her labor and earnings. If you look at the exhibit showing how much she earned, how much was put in the investment account, and how much the employer contributed and then you look at how much he earned, clearly she earned signifi-candy more than he did. Her earnings could go for the food, some of the utilities, and certainly, his earnings went for something. Clearly, I think he benefitted from her income throughout the marriage.
If you multiply $6400 times twelve, it doesn’t equal his one-half, but it’s pretty close. Based on her testimony and the fact that he didn’t testify, those are the factors. I need to specifically say why I made the findings I made and that is what the Court of Appeals guided and instructed me to do.
Mrs. Baxley was trying to build herself whatever she could from her earnings, but she was also very generous with the Defendant. Mrs. Baxley testified that she paid the bills, she knew what the opening balance was, she knew what the end balance was, and he liked to have cash on hand, and he did. He wrote checks for cash.
Raymond now appeals the trial court’s decision after remand, arguing again that the trial court was clearly erroneous in awarding both of the retirement accounts to Susan. We agree with Raymond that the trial court judge was clearly erroneous when she failed to divide the marital portion of Susan’s two retirement accounts equally and instead awarded the entire amount to Susan.
In Copeland v. Copeland, 84 Ark. App. 303, 307-08, 139 S.W.3d 145, 148-49 (2003) (citations omitted), this court set forth its standard of review for property division in divorce cases:
This court reviews division of marital property cases de novo. The trial court has broad powers to distribute property in order to achieve an equitable distribution. The overriding purpose of Arkansas Code Annotated section 9-12-315 is to enable the court to make a division of property that is fair and equitable under the specific circumstances. Arkansas Code Annotated section 9-12-315 (Repl. 2002) provides that marital property is to be divided equally unless it would be inequitable to do so. If the property is divided unequally, then the court must give reasons for its division in the order. The code also provides a list of factors the court may consider when choosing unequal division. This list is not exhaustive. A trial judge’s unequal division of marital property will not be reversed unless it is clearly erroneous.
Arkansas Code Annotated section 9-12-315 does not compel mathematical precision in the distribution of property; it simply requires that marital property be distributed equitably. The trial court is vested with a measure of flexibility in apportioning the total assets held in the martial estate upon divorce, and the critical inquiry is how the total assets are divided. (Emphasis added.) The trial court is given broad powers, under the statute, to distribute all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution.
The factors listed in section 9-12-315(a)(l)(A), although not an exhaustive list, include the length of the marriage; age, health and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and the federal income-tax consequences of the court’s division of property.
In the present case, the parties had been married for almost thirteen years, and Raymond was already disabled at the time of the marriage. Raymond began receiving disability payments after the parties married. Susan worked as a nurse until her own health problems rendered her unable to work any longer as well. Now both parties are unable to work due to health issues, and both parties are receiving social-security disability. Susan testified that all of their sources of income went into a joint checking account, to which both parties had access. Susan received the house the parties lived in during the marriage, which was her house prior to marriage; however, Raymond was not given credit for any decrease of the amount of the mortgage during the duration of the marriage.
Furthermore, Susan’s two retirement accounts grew from a little over $22,000 at the time of the marriage to over $240,000 at the time of the divorce almost thirteen years later. Susan also increased her annual contributions from less than $3000 in 1990 to almost $9000 in 2001, which resulted in a significant increase in her retirement savings during the course of the marriage.
The dissent states that the trial court calculated how much money Raymond spent during the marriage “purely on his own whims while the necessities of housing, food utilities, etc. were being provided for solely by [Susan’s] contributions” and that it was “ ‘pretty close’ to one-half of what was in the retirement account.” The only testimony about what Raymond spent came from Susan at the hearing, and she testified that for the previous nine months, Raymond had written checks that averaged $300 to $600 per month. She also testified that Raymond’s disability checks were $889 per month. The dissent assumes that Susan never spent any money “on a whim,” since it disparages Raymond for spending less than the amount of his disability income. It would appear that the parties did not look at each other’s income as “hers” and “his” until divorce proceedings were instigated, as evidenced by the fact that they deposited both of their checks into one checking account, which became “theirs.” The dissent’s implication that Raymond was a drain on Susan’s income is unwarranted, especially in light of the fact that this approach to marriage worked for the parties for almost thirteen years.
Susan relies upon Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982), in support of her position that she should retain all of her retirement funds. In Stout, this court affirmed the unequal distribution of an IRA in favor of the husband, holding that the fact that the husband was the person who contributed to the account was an acceptable reason to divide the account unequally. However, in Stout the wife received alimony for a period of one year, and this court pointed out that she had worked in various employment over the years and that she had the ability to earn a living. Mrs. Stout also received a generous property settlement, and the trial court found that the divorce was entirely her fault, a fact that this court held was warranted by the facts contained in the record.
The dissent asserts that we have misinterpreted the Stout holding. To the contrary, in reality the dissent has contorted that holding, where the trial court’s specific holding with respect to Mr. Stout’s IRA was, “The Court is not ordering that sold because we must consider Mr. Stout. He’s getting along in years too, and it’s a retirement fund at [sic] he has built up.” (Emphasis added.) At the time, this court held that was an acceptable reason for refusing to divide the IRA. The dissent now attempts to read various reasons into the refusal to divide Mr. Stout’s IRA when in fact the trial court’s reason was simply because it was a retirement fund that he had built up. (Emphasis added.)
Subsequent to Stout, however, in Stuart v. Stuart, 280 Ark. 546, 660 S.W.2d 162 (1983), our supreme court held that it was not inequitable to treat property held in the wife’s name, which was acquired during the marriage, as marital property to be divided equally when the wife was the primary breadwinner in the marriage. Stuart, decided the year after Stout, reiterated our appellate courts’ erasure of property division based upon gender-based distinctions, regardless of who was the “primary breadwinner.”
Although recognizing that the trial judge could divide marital property unequally if it was found that an equal division would be inequitable, Judge George Rose Smith, writing for the Arkansas Supreme Court in Day v. Day, 281 Ark. 261, 663 S.W.2d 719, (1984), ruled that absent a valid reason, spouses must be treated equally. In that case, our supreme court also held that
[EJarnmgs or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.
Day, 281 Ark. at 268, 663 S.W.2d at 722.
We are not unmindful of the fact that the contribution of each party in the acquisition of marital property is a factor to be considered by the trial judge in making a division of marital property. However, this should not be the sole factor considered. It is obvious from the trial judge’s comments, both at the hearing and upon remand, that she awarded Susan 100% of the retirement accounts simply because Susan was the person who earned the money placed into the accounts. This is in direct contravention of the holdings in Stuart, supra, and Day, supra, and to the extent that Stout, supra, is in conflict with this opinion, it is overruled.
Our holding today in no way precludes an unequal division of retirement accounts or deferred compensation accounts if the facts so warrant, e.g., if the account assets are retained by one party in exchange for other assets; however, we hold that the facts in the instant case do not justify such an unequal division. The parties were married for almost thirteen years; Raymond was disabled at the time of the marriage and began receiving disability payments after the marriage; Susan was able to invest more into her retirement accounts after the marriage commenced; and this approach to the marriage worked until Susan had a stroke and lost her job. Now both parties are receiving social-security disability, and their financial outlooks are strained. We decline to hold that Susan’s disability and need for financial security is more pressing than Raymond’s disability and similar need simply because she was the “primary breadwinner” and made contributions to her retirement accounts.
We reverse and remand for entry of an order directing that the marital portion of the retirement accounts be divided equally between Raymond and Susan.
Reversed and remanded to enter an order consistent with this opinion.
Pittman, C.J., Gladwin and Bird, JJ., agree.
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Wendeell L. Griffen, Judge.
In this negligence action, appellants Homer and Colleen Draper appeal from an order granting summary judgment to appellee ConAgra Foods, Inc. They argue that the circuit court erred in ruling that, as a matter of law, the driver of the truck involved in the motor-vehicle accident in this case was not an agent or employee of appellee. Because a genuine issue of material fact remained regarding whether the driver of the truck had an employer-employee relationship with appellee, we reverse and remand for trial on the merits.
According to appellants’ complaint filed August 4, 2003, appellant Homer Draper was driving west on Arkansas State Highway 58 when he collided with a truck and trailer driven by Charlie Garrett. The complaint alleged that Garrett was turning east onto Highway 58 but pulled onto the highway too soon, causing the collision. Appellant Homer Draper sought damages for his injuries, while appellant Colleen Draper sought damages for loss of consortium. Garrett was employed by Patterson-Salter Trucking, Inc. (hereinafter “PST”), which had been hired by appellee to transport chickens to its facilities.
On June 18, 2004, appellee filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because PST was not its agent or employee. Appellee presented Garrett’s deposition testimony as well as the deposition testimony of PST’s owners, Jack Patterson and Lloyd Salter.
Patterson testified that PST had a hauling agreement with appellee from 1976 to June 1, 2003. The relevant portions of the contract read:
1) ConAgra has contracted with Independent Contractors to haul live chickens from broiler houses at certain farms in the State of Arkansas and deliver the live chickens to processing plants in Batesville and Clinton, Arkansas.
2) ConAgra agrees to pay Independent Contractor for chickens hauled and delivered to processing plant a base payment per load of $190.00 with adjustment factors for round trip distance to farms and diesel fuel prices as detailed herein....
* * *
5) Independent Contractor shall be responsible only for the hauling and delivery of the live chickens.
6) Independent Contractor hereby agrees to idemnify [sic] and hold ConAgra harmless against all expenses, obligations or losses of any kind whatsoever for claims, debts, personal injuries or property damage arising out of the work to be performed by Independent Contractor for ConAgra.
7) Independent Contractor shall pay for his own expenses, taxes and fees in connection with performance of this contract, shall obtain and pay for any required permits or leases and shall comply with all applicable government laws and regulations.
8) Independent Contractor shall employ for his own account all labor necessary for the performance of this contract, shall furnish any and all equipment necessary to perform the contract, and shall be responsible for and assume all responsibility for any and all acts of the Independent Contractor or his employees.
9) Nothing contained herein should be construed as reserving or granting ConAgra any rights to exercise control over the method or manner in which Independent Contractor performs this contract, it being explicitly understood to use his best judgment in the method and manner of performing this contract to achieve the results specified.
10) Independent Contractor shall within one (1) day after execution hereof, but before the beginning work [sic], furnish to ConAgra proof of complete workers’ compensation insurance coverage and general liability insurance with a reputable company authorized to do business in the State of Arkansas, with general liability limits to be not less than $300,000.
11) Although Independent Contractor is free to use his best judgement in performing the contract as specified in P. 9, he hereby agrees that he will perform the contract in such manner as to reduce to a minimum bruising of or death to the broilers.
12) Independent Contractor agrees to follow and abide by all sanitation and other disease prevention procedures applicable to personnel and equipment established by ConAgra.
13) It is understood by the parties that Independent Contractor shall haul and deliver to processing plants as above provided as many chickens and at specific times and dates as ConAgra may specify.
14) Either ConAgra or the Independent Contractor may terminate this contract at any time for any reason by mailing or delivering written notice of termination to the other at his or its usual place of business, such termination to be effective 30 days from the date of delivery of said notice.
Patterson testified that, while it was under contract with appellee, PST did not haul for anyone else other than a couple of loads. Salter would tell the drivers where to go, what time to go, how many chickens to load, and from where they were loading the chickens. PST did not load the chicken cages or catch the chickens. When the cages were loaded on the driver’s truck, the driver would tie down the chickens using PST equipment and drive the truck to the processing plant. After the driver weighed the truck at the plant, appellee’s employees would drop the trailer and take it back to its shed. Patterson testified that he and Salter hired employees at different times and that no one other than he or Salter had authority to hire or fire employees. He also stated that PST paid unemployment taxes and withheld income tax, social security, and Medicare from the drivers’ wages.
Patterson testified that the trucks had PST’s name on them, per State requirements. There were also numbers on the trailer, which Patterson testified were mostly for appellee so that it could tell what trailer was coming in case it had to check the weight. Patterson also testified that appellee paid PST differently over the years. At first, appellee paid by the pound. By January 2003, appellee paid by the load. PST paid for gasoline and licensing fees. When asked about what supervisory role appellee played, Patterson testified that PST employees had little contact with appellee. Appellee did not tell PST what type of vehicles to purchase or what types of cages to buy. In bad weather, PST installed sheets and sideboards to protect the chickens, and this equipment was owned by PST. When talking about PST’s status, Patterson opined that PST’s drivers were independent contractors.
On cross-examination, Patterson testified that the chickens were originally transported in coops; however, appellee eventually told PST to haul the chickens in cages. Appellee also wanted the cages to meet its requirements. He noted that, on a typical week, Salter would receive a sheet from appellee specifying the number of loads, where the loads were to be picked up, and the time the loads were to be picked up. PST hauled Sunday through Thursday, and these times were specified by appellee. In scheduling, appellee would coordinate the specifications on the trip sheets with their production times at the processing facilities. This was because appellee did not want the chickens sitting on the truck for a long time. Patterson testified that PST had no discretion on whether to take the loads to appellee immediately or a few days later. He also noted that PST had no real discretion about what route to take to the chicken houses because there was usually only one sensible route to take.
Garrett testified that PST paid him $35 per load weekly; withheld taxes, social security, and Medicare; and gave him a W-2 form at the end of 2002. He never considered himself an employee of appellee. He stated that he received his orders from a mailbox in the shed of appellee’s facility. Salter did not dispatch drivers to particular loads unless changes were made. Garrett testified that, on a typical day, he would get a truck, fuel up, drive to appellee’s facility, and pick up a trailer. The cages would be loaded on the trailer. He would then go to the farm, where chicken catchers would load the truck. He would then return to appellee’s facility, drop off the trailer, get another trailer, and go again. Garrett stated that he would typically make three loads a day, five days a week. If there were multiple routes to a farm, he would select the route to take. He stated that, if a tractor or trailer needed to be repaired, either Salter or Salter’s mechanic would fix it.
On cross-examination, Garrett testified that he would receive a trip sheet, indicating which drivers were assigned to which loads. He noted that when he would pick up his tractor, the trailers and cages would be at appellee’s facility. Garrett testified that, in hot weather, appellee would tell him to put the chickens under a fan or a particular sprinkler system.
In his deposition, Salter testified that his job was to dispatch trucks and inspect the safety and condition of the trucks at appellee’s facility. PST paid for repairs to trucks and to cages. He noted that, had PST refused to use the coops or cages appellee wanted them to use, appellee would have terminated the agreement. Salter never regarded his drivers as appellee’s employees. On cross-examination, he noted that, if one of his drivers had a breakdown, the driver would be excused from making it to appellee’s facility on time; otherwise, drivers were expected to be at the plant when appellee expected them. He also noted that the provisions of the contract regarding mileage adjustments, pay rate, and dead chickens were abandoned before 2003.
In response to appellee’s summary judgment motion, appellants presented the deposition testimony of Jeffrey Vanemburg. Vanemburg testified that he started working for appellee in May 1997 as a live production manager and that he held the same position with Pilgrim’s Pride, who purchased appellee’s operations in Batesville. His duties included overseeing the hatcheries, feed mills, live-haul operations, and broiler chickens in the field.
Vanemburg testified that he worked for a “vertically integrated poultry company.” He explained that the company grew its own eggs through its own hens in breeder houses. The company paid farmers for taking care of the hens and gathering the eggs. After the farmers gathered the eggs, appellee’s W-2 employees transported the eggs to its hatchery. When the chicks were hatched, they were transported to a broiler house by W-2 employees. Once the chickens reached broiler size, drivers transported them to appellee’s facilities, where the chickens were killed and processed. The chickens were loaded on the truck by catchers, who are contracted by appellee. Vanemburg testified that the catch times were based on a kill time at the plant. The schedules were designed so that the chickens would arrive thirty to forty-five minutes before when they would actually be needed. While the drivers were considered by appellee to be independent contractors, appellee would take issue if a driver took a four-hour coffee break. In 2003, only PST and Broadwater were hauling broilers for appellees. Vanemburg testified that, as of January 2003, appellee had no W-2 employees catching chickens or hauling them from the broiler houses to the processing facility. He noted that, other than changing from contract personnel to W-2 employees and using its own trucks and equipment, Pilgrim’s Pride made no changes to the procedure of hauling chickens after it took over appellee’s operations in Batesville.
After a hearing on the motion, the circuit court entered summary judgment in favor of appellees. The circuit court stated:
I think everybody has said the facts are not really in dispute, it’s what the facts mean that I guess is in dispute. I want to state what my understanding of the relationship between Patterson-Salter and ConAgra was. I understand that Patterson-Salter was in the tracking business, not in the chicken processing business. It owned and licensed its own rolling stock, providing fuel and maintenance, and hired and fired its own employees. It set and paid wages to the employees, provided workers’ comp, and withheld and paid payroll taxes on those employees’ wages. Apparently, its only client was ConAgra and at one point, it entered into a written contract with ConAgra for the provision of those services that stated that this was an independent contractor arrangement. ConAgra did not hire or train the drivers of Patterson-Salter trucking and apparently did not control some parts of the drivers’ operations like securing the load or particular routes taken although the argument has been made, and probably is well stated, that in these rural areas there’s not too many ways to get to the plant without going a long way out of the way so as a practical matter the routes were probably fairly well fixed although I don’t find anything that ConAgra required them to take a particular route. ConAgra did have a right to terminate the contract with Patterson-Salter and I think its contract called for 30 days notice but apparently it had no right to hire or fire particular drivers. ConAgra did control the time and place of the pickup and delivery of loads and my finding today is that that is necessary and consistent with ConAgra’s expectation of successful results of the work of Patterson-Salter and its drivers. I’m finding as a matter of law that the relationship between ConAgra and the individual driver, in this case Charlie Vaughn Garrett, does not rise to the level of agency, a master servant, or an employee relationship between ConAgra and that driver, and the motion for summary judgment must be granted.
For its sole point on review, appellants argue that the circuit court erred in granting summary judgment in favor of appellee. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. O’Marra v. Mackool, 361 Ark. 32, 204 S.W.3d 49 (2005); Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. O'Marra v. Mackool, supra; Pugh v. Griggs, 321 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the nonmoving party must meet proof with proof and demonstrate the existence of a material issue of fact. O'Marra v. Mackool, supra; Pugh v. Griggs, supra. We determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered, viewing the evidence in the light most favorable to the nonmoving party, resolving all doubts and inferences against the moving party. O'Marra v. Mackool, supra; George v. Jefferson Hosp. Ass’n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review is not limited to the pleadings but also focuses on the affidavits and other documents filed by the parties. Hisaw v. State Farm Mut. Auto Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003); Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005). After reviewing the undisputed facts, we will reverse a grant of summary judgment if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Hisaw v. State Farm Mut. Auto Ins. Co., supra; Brown v. Wyatt, supra.
Appellants argue that the circuit court erred in ruling that PST was not an agent or employee of appellee. Specifically, they contend that a reasonable jury could draw an inference that PST was subject to a degree of control requisite for a finding of an employer-employee relationship. An independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000); Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996). One who employs an independent contractor is generally not liable for the torts of the contractor committed in the performance of the contracted work. Stoltze v. Arkansas Valley Elec. Co-op. Corp., 354 Ark. 601, 127 S.W.3d 466 (2003); Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990). However, when the employer goes beyond certain limits in directing, supervising, or controlling the performance of the work, the relationship changes to that of employer-employee, and the employer is liable for the employee’s torts. Blankenship v. Overholt, supra. Although the nature of an agency relationship is ordinarily a question of fact to be determined by the trier of fact, where the facts are undisputed and only one reasonable inference can be drawn from them, the nature of an agency relationship becomes a matter of law for the court to determine. Howard v. Dallas Morning News, Inc., supra. Because there is no fixed formula for determining whether an entity is an employee or an independent contractor, the determination must be made based on the particular facts of each case. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., supra.
Our supreme court has adopted Restatement (Second) of Agency § 220(2) (1958) (hereinafter “Restatement § 220”), outlining several factors to consider when determining whether an employer-employee relationship exists between two parties:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumen-talities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by time or by the job;
(h) whether or not the work is part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
© whether the principal is or is not a business.
See Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000); D.B. Griffen Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999). The right to control, not the actual control, is the principal factor in determining the worker’s status:
The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of performance, then the relation of master and servant necessarily follows. But if control of the means is lacking, and the employer does not undertake to direct the manner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists.
Arkansas Transit Homes, 341 Ark. at 321, 16 S.W.3d at 547 (quoting Massey v. Poteau Trucking Co., 221 Ark. 589, 592, 254 S.W.2d 959, 961 (1953)).
Here, many of the Restatement factors favor a finding of an independent-contractor arrangement. PST owned the vehicles and other instrumentalities involved in the poultry hauling, and appellee paid PST by the load, not the hour. However, as appellants state often in their brief, these are not determinative of the question. The parties dispute four of the remaining factors: the amount of control, the belief that the parties were creating an employer-employee relationship, whether PST was engaged in a distinct occupation or business, and whether or not poultry hauling was part of appellant’s regular business.
Control
In support of its argument that PST’s drivers were independent contractors, appellee relies on the Independent Contractor Agreement and evidence of PST’s control of the drivers. Appellee contends that PST’s control of its own drivers was not diminished by the agreement to reduce bruising of or death to the birds or by the agreement to haul the birds at specific times and dates. In contrast, appellants argue that appellees controlled the route to be taken, the drivers, the protection of the poultry, and the specific times and dates of hauling.
1. Route to be taken. While appellee argues that the drivers controlled the route to be taken, appellants argue that the drivers could not exercise judgment in the route to be taken because, in most instances, there was only one route to the assigned the designation. The circuit court agreed with appellants’ view regarding routes, and this view is supported by the evidence. If there was nothing to control, as appellants argue, then drivers’ routes do nothing to support a finding of employer-employee status.
2. Control of the driver. Appellee argues that PST’s drivers exercised their best judgment in driving. It further contends “There is no evidence that ConAgra instructed PST’s drivers how to drive, how fast to drive, how or when to stop at stop signs, or give them any other similar driving instructions.” Appellee argues that PST had control of its drivers, including control of payroll, payroll taxes, hirings, and firings. To the extent that appellee is arguing that it did not instruct PST’s drivers to obey basic traffic laws, their argument is absurd, as an exercise of best judgment would include obeying all basic traffic laws. However, even if appellee makes this argument to imply no control whatsoever, such micro-management is not required for a fact finder to find that appellee had control sufficient to establish an employer-employee relationship.
3. Protection of Poultry. Appellee argues that PST’s control was not diminished by its agreement to reduce bruising of or death to its birds. It contends, “An independent contractor can agree ‘to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal’ ” (citing Restatement § 220 cmt. e). The Independent Contractor Agreement instructed PST to “perform the contract in such manner as to reduce to a minimum bruising of or death to the broilers.” However, appellee specifically instructed PST’s drivers to take certain precautions in extremely hot or cold weather. Appellee also ordered PST to use certain containers when hauling the chickens. While the agreement dictated that PST’s drivers would be able to use their best judgment, appellee instructed PST’s drivers on how to transport the chickens. In addition, Salter testified that, had PST not used the coops or cages appellee wanted, appellee would have terminated the agreement. This degree of control is evidence supporting an inference of an employer-employee relationship.
4. Specific Time and Date Requirements. Finally, the parties dispute whether appellee exercised control when it gave PST’s drivers specific date and time requirements. Appellees cite favorably to Blankenship v. Overholt, supra:
[Wjhere the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant.
Id. at 479-80, 786 S.W.2d 816. Paragraph 13 of the agreement between PST and appellee provides, “It is understood by the parties that Independent Contractor shall haul and deliver to processing plants as above provided as many chickens and at specific times and dates as ConAgra may specify” (emphasis added). These instructions constitute specific and definite contractual directions. No employer-employee relationship was created by appellee’s requirement that the loads be hauled at specific times.
Appellee exercised permissible control over the dates and times the poultry was to be hauled and had no control over the driving; however, appellee did exercise control over how the chickens were to be handled by PST’s drivers. There is evidence showing that PST drivers could not exercise discretion in ensuring that they hauled unbruised, live birds. While the evidence supporting an employer-employee relationship is minimal, a reasonable fact finder could infer that the control factor supports a finding of employer-employee status.
Belief in the nature of the relationship being created
While appellants cite Howard v. Dallas Morning News, Inc., supra, for the proposition that “[t]he intent of the parties is not included among [the Restatement] factors,” the belief that the parties are creating an employer-employee relationship is a relevant factor. See Restatement § 220 (2) (i). The comments to Restatement § 220 state:
Belief as to existence of relation. It is not determinative that the parties believe or disbelieve that the relation of master and servant exists, except insofar as such belief indicates an assumption of control by the one and submission to control by the other.
Restatement § 220 cmt. m. The initial agreement between the parties clearly contemplated an independent-contractor arrangement. Further, Patterson, Salter, and Garrett all testified that they never regarded the drivers to be appellee’s employees. Appellants failed to present sufficient evidence to support an inference that this factor supports a finding of an employer-employee relationship.
PST engaged in a distinct occupation or business
Appellee argues that PST was a separate trucking business, responsible for its own bookkeeping and insurance. Appellants argues that appellee misinterpreted the meaning of this factor and notes that PST had no function other than providing poultry-hauling services to appellee. Appellee relies on Arkansas Transit Homes, Inc. v. Aetna Life & Cas., supra. There, our supreme court affirmed the circuit court’s finding that the drivers in that case were employees. The appellant was in the business of transporting mobile homes. The drivers agreed to use their trucks exclusively for the appellant’s business. The circuit court found that the drivers were not engaged in a distinct occupation or business because the drivers did not engage in work other than hauling mobile homes for the appellant. Arkansas Transit Homes, Inc. v. Aetna Life & Cas., supra, is similar to the instant case in that regard. PST was created for the purpose of hauling poultry for appellee. There is no evidence that PST hauled for any other company after appellee terminated the arrangement with them. A reasonable juror could infer that this evidence favors a finding that PST was not engaged in a distinct occupation or business.
Poultry hauling as part of appellee’s regular business
Finally, appellee argues that it is in the poultry business, not the trucking business. Meanwhile, appellants argue that trucking is an integral part of appellee’s business. When determining whether or not work is part of the regular business of the employer, Arkansas courts have adopted Professor Larson’s “relative nature of the work test.” As our supreme court explained:
Larson reasons that in a case such as the one at bar, the law should consider, in determining whether an employer-employee status exists, not only the matter of control but also the relationship between the claimant’s own occupation and the regular business of the asserted employer. With regard to the latter aspect of the problem, two considerations have weight: First, how much of a separate calling or profession is the claimant’s occupation? How skilled is it? To what extent may it be expected to carry its own share of the workmen’s compensation responsibility? Second, what relationship does the claimant’s work bear to the regular business of the asserted employer? Is there a continuous connection or only an intermittent one, or is there no connection at all?
Sandy v. Salter, 260 Ark. 486, 489-90, 541 S.W.2d 929, 931 (1976) (internal citations omitted); see also Arkansas Transit Homes, Inc. v. Aetna Life & Cas., supra. The more that the work resembles the work done by the employer, the more likely that the work had been done by an employee. Arkansas Transit Homes, Inc. v. Aetna Lfe & Cas., supra.
Regarding the first part of Larson’s test, truck driving, while crucial to the poultry industry, is still a separate profession. Poultry companies are required to either hire employees for the purpose of hauling poultry or contract an outside person or company to do it for them. In this case, appellee chose to contract outside companies to haul poultry. Further, the Independent Contractor Agreement required those companies to provide insurance to its drivers. Regarding the second part of the Larson test, appellee had an ongoing relationship with PST until June 2003. PST hauled poultry five days a week for appellee. Further, while appellee was not in the trucking business, appellee needed truck drivers as part of its operations. Also telling is Vanemburg’s testimony that there had been no changes in the processes involved, other than the use of Pilgrim’s Pride employees, trucks, and equipment, since PST ceased poultry-hauling operations. When applying Larson’s test, reasonable jurors could reach different conclusions regarding the relative nature of PST’s work.
Conclusion
While many of the factors clearly support a finding that appellee and PST were engaged in an independent-contractor arrangement, there is some evidence that creates a genuine issue of fact on whether the relationship was independent contractor or an employer-employee relationship. Accordingly, we reverse the grant of summary judgment in favor of appellee and remand this case for trial.
Reversed and remanded.
Glover and Roaf, JJ., agree.
PST was also named as a defendant in this suit; however, it was voluntarily dismissed from this suit before the circuit court entered summary judgment in favor of appellee.
“W-2 employees” is a term Vanemburg used to distinguish between company employees and independent contractors.
Appellee also notes the following in Moore v. Phillips, 197 Ark. 131, 140, 120 S.W.2d 722, 727 (1938):
There are countless decisions of appellate courts construing stipulations in contracts, such as here involved, relating to the right of the owner “to give directions” — “orders” and “instructions” regarding die work as it progresses; and phrases such as “in accordance with instructions” — “as directed” — “In such manner as shall be directed” — “under supervision of owner’s agent, as he may direct” —■ and “under the direction and supervision”, are frequendy construed. In all of the cases examined, some of which are cited, it is held that such phrases do not relate to the method or manner and do not govern the details or the physical means by which the work is to be performed.
In making their argument that PST believed it was in an employer-employee relationship, appellants cite part of Salter’s deposition testimony:
Q: So if they knew you didn’t know how to get [to a new place] they would maybe give you some instruction on it?
A: True.
Q: If you knew a better way to get there would you take a better way?
A: No, we’d go like they told us.
This deposition testimony, however, is part of a discussion of the time sheets. Just before this cited colloquy, the following exchange occurred:
Q: It didn’t tell you how to get there?
A: No.
Q: Not on the time sheet?
A: Unless they was a new place.
Q: Would that be on the time sheet?
A: Well, if they knew we didn’t know it they would try to explain to us, yeah.
When looking at Sarter’s entire deposition, it is clear that Sarter did not consider himself or his employees to be appellee’s employees.
In its brief, appellee argues:
PST was one of two trucking companies ConAgra used in north-central Arkansas. In fact, the other trucking company — Broadwater — had more trucks [than] PST and was responsible for more of ConAgra’s hauling and delivery business. The trip sheets included directions for both PST drivers and Broadwater drivers. Thus, if Garrett was ConAgra’s employee, then so too were Broadwater’s drivers? [sic] The unreasonableness of such a conclusion is evident.
(Internal citations to the record omitted.) Appellee believes that a finding of an employer-employee relationship is absurd because of the number of truckers involved; however, it fails to show how the number of drivers would factor into the determination of whether someone was an employee or an independent contractor. It is possible that a court could find that Broadwater’s drivers were indeed employees of appellee.
While we hold that there was a genuine issue of material fact that precludes summary judgment, our opinion should not be read to preclude the trier of fact from finding that an independent-contractor relationship existed between PST and appellee. Rather, we merely remand the case so that the trier of fact can weigh the evidence and reach its conclusion. | [
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Carleton Harris, Chief Justice.
On June 26, 1956, in the city of Fayetteville, Dan A. Spencer, 22 years of age, went to the office of Chester P. Leonard, Allstate Insurance Company agent, for the purpose of obtaining automobile bodily injury and property damage liability insurance on his 1953 Chevrolet automobile. Because of the fact that Spencer did not intend to live at home, Leonard was unable to write the policy in Allstate, and turned down the application. Leonard then told Spencer that insurance was available through the Arkansas Automobile Assigned Risk Plan, which is authorized under Act 347 of 1953, said Act being known as the Motor-Vehicle Safety Responsibility Act. Spencer made application for insurance through the Plan; the application form was filled out by Leonard, signed by Spencer, and the latter executed a draft for $15, required under the terms of the Plan to be sent along with the application. The draft bore the notation: “For down payment on insurance on 1953 Chev.” Later in the day, Leonard purchased a draft with the $15, drawn payable to the Arkansas Automobile Assigned Risk Plan and mailed it, along with Spencer’s application, to the Risk Plan Office in St. Louis, Missouri.
The application and draft arrived in the Risk Plan offices the next day, June 27th, and the Plan manager forwarded a notice to Manufacturers Casualty Insurance Company that the risk had been assigned to it, and called attention to the provisions of the Plan requiring the risk to be bound or a policy issued within two working days of the receipt of notice. This notice of designation was received by the company June 29th (a Friday), and on July 2nd, the insurance company notified Spencer that it was binding coverage on that date. Under terms of the Plan, Saturday and Sunday are not working days. The policy was subsequently issued and the company sent a commission to Leonard. In the meantime, unknown to the company, Spencer had, on June 27th, been involved in an accident while driving the Chevrolet, which resulted in the death of Charles Hughes. This, of course, was the same day Spencer’s application was received by the Assigned Risk Plan Office and two days before the insurance company received notice that the risk had been assigned to it. Emma M. Hughes, widow of Charles Hughes, and children, instituted suit against Spencer, and the latter made demand upon appellant to defend such suit. The company declined to do so on the ground that it afforded Spencer no coverage at the time of the accident. Mrs. Hughes, et al, recovered judgment against Spencer in the sum of $5,000, and the company refused to pay the judgment. After an execution against Spencer was returned nulla bona, Mrs. Hughes and children instituted the instant action against Manufacturers Casualty Company praying judgment for the $5,000, the statutory 12 per cent penalty, and attorney’s fees. At the conclusion of appellees’ evidence, and at the conclusion of all the testimony, appellant moved for a directed verdict. The motion was denied in each instance, and appellant’s exceptions noted. The jury, in answer to special interrogatories, found that Leonard had represented to Spencer that his insurance became effective upon payment of the $15 to Leonard, and further found that Spencer was justified in relying upon such representa- ' tion. The court found, as a matter of law, that Leonard was acting as the agent of Manufacturers Casualty Insurance Company, and also found that Spencer was entitled to recover $500 on a cross-complaint filed against the company, representing attorney’s fees expended by Spencer in defending the original suit. Verdicts were directed in favor of Spencer and Leonard on the plaintiff’s complaint, and judgment was entered against appellant in favor of Emma M. Hughes, et al, for $5,000, plus penalty in the amount of $600 and attorney’s fee in the amount of $750, together with costs; judgment was entered in favor of Spencer against the company for $500 and costs. From the judgment of the court, appellant brings this appeal.
Perhaps first, a brief discussion of the purpose of Act 347 of 1953, and the Assigned Risk Plan is in order. The purpose of the Act is expressed in the title: “AN ACT to Eliminate the Reckless and Irresponsible Driver From the Highways and to Provide for the Giving of Security and Proof of Financial Responsibility By Persons Driving or Owning Vehicles of a Type Subject to Registration Under the Laws of This State; and for Other Purposes.” In general, the Act makes certain requirements of one who has been involved in an accident, and provides methods for the establishment of future financial responsibility for those who have been convicted of certain offenses under the Motor-Vehicle laws, or who have failed to pay judgments arising from causes of action from automobile accidents. The assigned Risk Plan is authorized by Optional Section 86 of the Act, and reads as follows:
“Assigned Risk Plans. After consultation with the insurance companies authorized to issue automobile li ability policies in this State, the Commissioner of Insurance shall approve a reasonable plan or plans, fair to the insurers and equitable to their policyholders, for the apportionment among such companies of applicants for such policies and for motor-vehicle liability policies who are in good faith entitled to, but unable to procure such policies through ordinary methods. When any such plan has been approved, all such insurance companies shall subscribe thereto and participate there- * ^ * # * J Í
The purpose of this Section is to provide insurance for those persons who cannot obtain liability insurance in the regular manner, though some of these may not have necessarily been involved in accidents, and perhaps have no record as traffic violators. For instance, many companies are reluctant to insure an elderly driver; many refuse to accept the application of a teen-age driver; still others have regulations preventing the acceptance, in the normal course of business, of an application such as we have in the instant case (Allstate Insurance Company would not issue a policy because of the fact that Spencer was not going to remain at home). In each of these instances, the refusal of the company is not based upon any misconduct of the applicant, but only because of the general policy of that company which refuses that type of risk. Pursuant to this Section, the Insurance Commissioner worked out a plan with the insurers authorized to issue automobile liability policies within this State, and all such companies are required to participate in the Plan. The purposes are set forth in Section One of the instrument:
“a. To provide a means by which a risk that is in good faith entitled to automobile bodily injury and property damage liability insurance in the State, but is unable to secure it for itself, may be assigned to an authorized insurance carrier.
b. To establish a procedure for the equitable distribution of such assigned risks among such insurance carriers. ’ ’
The Plan provides that an eligible applicant shall make his application and may designate any licensed agent of an authorized insurance carrier to act in his behalf in soliciting coverage. The application is then sent to the Manager of the Plan. Section 42 provides that the Manager shall designate an insurer to whom the risk will be assigned. Section 43 provides that upon receipt of notice of designation, and the premium or deposit from the Manager, the designated insurance company shall, within two working days,
“1. Issue a policy or binder if all information necessary for the carrier to fix the proper rate is contained in the application form, such policy to become effective 12:01 a.m. on the day following the second working day, or
2. Bind the risk if all information necessary for carrier to fix the proper rate is not contained in the application form, such binder to become effective 12:01 a.m. on the day following the second working day, or
3. In the event such carrier does not have on file rates applicable to the risks assigned to it, make the necessary filing and immediately upon its becoming effective issue a policy or binder, such policy or binder to become effective 12:01 a.m. on the day following the second working day following the effective date of the filing.
*****
The day on which the notice of designation and deposit are received from the Manager shall be deemed the first working day, whatever may be the time of such receipt.”
The provisions of the Plan here under discussion appear reasonable, and consistent with the Statute. The two working days which are allowed the designated company as a period within which to issue a policy or binder, would certainly appear to be a reasonable period of time. This being true, it follows as stated in Volume 42, American Jurisprudence, page 432:
“Rules, regulations, and general orders enacted by administrative authorities pursuant to the powers delegated to them have the force and effect of law. * * * Administrative regulations are binding on all persons subject to them without notice, and the courts will take judicial notice of them. * * * ”
Appellees questioned the materiality and relevancy of the Plan when it was introduced at the trial of the case, but since Spencer applied, and was insured, under its provisions, we certainly deem such provisions relevant.
We have concluded that Spencer, at the time of the accident, was not insured by appellant. This conclusion is reached because Spencer was not covered under the terms of the application executed by him and sent in to St. Louis, and as a matter of law, Leonard was without authority to orally bind the risk. At the top of the applicatin form, which was signed by Spencer, appears the word, in large black type, “Important.” Immediately beneath this word, appears the following:
‘ ‘ This application must be filled out in duplicate and accompanied by the investigation fee or deposit premium prescribed in the Assigned Risk Plan. Every item must be completed and answers typewritten or written legibly in ink. If you are eligible for insurance under the Plan, the allowance to the producer of record for services rendered in connection with this application will be paid by the company to which the risk is assigned.
This application does not constitute a binder of insurance. Coverage becomes effective only in accordance with the terms of the Plan. ”
The application lists certain questions relative to the occupation of the applicant, the purposes for which the car will be used, and certain information relative to the driving record of applicant. The testimony reflects that these questions were asked Spencer by Leonard, and the answers inserted by the latter, following which, the application was handed to Spencer, and signed by him. Spencer stated that he signed the application, but did not read it before signing. His testimony was to the effect that he “understood” he had insurance as of that date, though he admitted that he knew he was not being-insured by Allstate, and was not told by Leonard that the latter represented Manufacturers Casualty; he would neither affirm nor deny that Leeonard explained to him that coverage would only become effective in accordance with the terms of the Plan, and that the application was not a binder. Leonard testified that he explained the Plan to Spencer, and told applicant that he had best be careful because “* * * you won’t have any insurance for two or three days, until you get a letter back from the company that gets your assignment or gets you a policy back.” He further stated that he did not know of Manufacturers Casualty Insurance Company at the time of taking Spencer’s application. Under the view we take, the conversation between the parties, and what Leonard may have said, or left unsaid, are immaterial, and the court accordingly erred in submitting the interrogatories to the jury. The application very clearly and emphatically provides that it does not constitute a binder of insurance. In Universal C.I.T. Credit Corporation v. Lackey, 228 Ark. 101, 305 S. W. 2d 858, we quoted from Texas Company v. Williams, 178 Ark. 1110, 135 S. W. 2d 309, which Opinion had quoted Upton v. Tribilcock, 91 U. S. 45, as follows:
“ ‘It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission.’ ”
"While Spencer did not sign a contract, the same rule applies to his failure to read the offer made. There is no evidence in the cause before us that Spencer’s signature was obtained through fraud, and though we recognize that possibly many individuals sign instruments without reading them, in such event, the signer does so at his own risk. In the matter before us, by simply reading the opening paragraph, Spencer would have known that he was not then covered.
Aside from this point, there is an even more decisive reason why appellees cannot prevail. Por affirmance of the judgment, they rely, as indeed they must, upon the alleged ‘ ‘ oral binder ’ ’ by Leonard. They argue that by becoming a member of the Assigned Risk Plan, appellant made Leonard its agent, to take applications for policies, to issue binders, and to enter into the contract for insurance made with Spencer. It is pointed out that the policy itself listed Leonard as “local agent or broker.” The company forwarded the policy to Leonard, who in turn, delivered it by mail to Spencer, and the company sent Leonard a check for his commission.
"We cannot agree, that by becoming a member of the Plan, appellant designated Leonard as its agent. Appellant, as an insurance company doing business in this state, was required to enter the Plan, but its obligations, duties, and liabilities as such a member, are limited by the provisions of the Plan itself. It is true that the company forwarded the policy to Leonard, and that his name was listed under the space for the name of the local agent or broker (a standard company policy, but stamped “Assigned Risk”); that he in turn delivered the policy to Spencer, and Leonard received a commission, from appellant. This procedure is provided for in the Plan, but Section 41 of that instrument clearly negatives any contention that Leonard was a general agent for appellant. That Section provides:
“A risk which desired insurance and has been unable to obtain it for itself, and thus becomes an applicant under this Plan, shall proceed in accordance with this Article and the applicant may designate any licensed agent of any licensed and authorized casualty insurance carrier to act on his behalf in soliciting coverage from insurers as recited by Section 20 and this Article, but in either case the applicant must sign the application form.
The fully completed application, in duplicate, shall then be filed with the Manager of the Plan. ’ ’
It will thus be seen that any insurance agent who is approached to make the contact for any applicant desiring to obtain insurance under the Assigned Risk Plan, acts as the agent of the applicant rather than the agent of the insurer. In the case of Matsuo Yoshida v. Liberty Mutual Insurance Co., 240 F. 2d 824, we find:
‘ ‘ Gonzales filed his application for insurance under the California Assigned Risk Plan in early April, 1952. The Assigned Risk Plan is designed to provide automobile liability insurance for those persons who are unable to procure insurance through ordinary channels. All automobile liability insurance carriers engaged in business in California are required to participate in the Plan and each carrier is assigned its pro rata share of assigned risks. * * *
He made the application at the offices of Biebrach, Bruch and Moore, Inc., insurance brokers in San Jose, California. This firm represented G-onzales and was not the agent of appellee. Accordingly, any statements that may have been made by employees of the firm cannot effect appellee’s substantive legal rights, for they had no authority, actual or apparent, to bind it.”
This is entirely in accord with reason and logic. To hold otherwise would have the effect of making each licensed casualty insurance agent in the state of Arkansas, the potential general agent of every casualty company doing business in the state. How can one he a general agent for, issue a policy, or bind, a company that he has never heard of1?
Por the reasons herein enumerated, we hold that the court erred in not directing a verdict for appellant at the conclusion of all the evidence, and the judgment of the circuit court is, accordingly, in all respects, reversed, and the cause of action dismissed.
Spencer and Leonard were also named as defendants.
The company can only turn down a risk assigned to it for good cause; i.e., investigation reveals the driver to be irresponsible; reckless, etc.
Emphasis supplied.
Spencer testified that the first time he ever heard the name “Manufacturers Casualty Insurance Company” was when he received the bill for the balance, of his premium.
The interrogatories were as follows: 1. Was a representation made by Leonard to Spencer that upon acceptance by Leonard of $15.00 check on June 26, 1956, that Spencer was covered by insurance on that date. Answer: Yes or No. 2. Was Spencer justified in relying upon representations of Leonard on 26 June, 1956, if you find such representations were made by Leonard to Spencer, that insurance was effective upon recepit of $15.00 check? Answer: Yes or no.
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HART, J.,
(after stating the facts). The court directed a verdict for the defendants on the ground that Shaw had no authority, real or apparent, to warrant the soundness of the mules. Counsel for the defendants seek to uphold the verdict.on the authority of United States Bedding Co. v. Andre, 105 Ark. 111. In that case the court held that a traveling salesman has no implied authority to enter into a contract for advertising his principal’s business in a newspaper or upon billboards. The court held that to justify an implication of authority in an agent, it must appear that the act of the agent was necessary in order to promote the duty or carry out the purpose expressly delegated to him. The court said: “An agent has authority to do all that he is expressly directed to do; and he also has implied authority to act in accordance with the custom or usage of the business which he is employed to transact and to do what is reasonably necessary to accomplish that which he is directed to do. ’ ’
We do not think that case controls here. There the agent was a traveling salesman, who was authorized to solicit orders for and make sales of the goods of his principal. The company sent out large- printed advertisements with the goods which could be placed on billboards. The agent made a contract with a person to post these advertisements on his billboard. He had no authority to make such a contract, and the court properly held that his act was beyond the apparent scope of his authority.
In Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, in an opinion delivered by the same judge who wrote the opinion in the case just cited, the court held that a principal is not only bound by the acts of his general agent, done under express authority, but he is also bound by all acts of such agent which are within the apparent scope of his authority, whether authorized by the principal or not. The court said that a principal is not only bound by the authority actually given to the general agent, but by the authority which the person dealing with him has a right to believe has been given to him.
In Keith v. Herschberg Optical Co., 48 Ark. 138, the court said that a general agency is where there is a delegation to do all acts connected with a particular business or employment. There is some conflict of authority in the decisions as to whether the general agent of a horse dealer lias the implied authority to warrant the soundness of the horses intrusted to him for sale. 31 Cyc. 1354. We believe the better reasoning is that he has such power. The underlying principle is that the agent being in charge of the sale of the horses is intrusted with all powers proper for making the sale, and that a warranty of quality and soundness is usually necessary for the proper performance of that power. Cone was a dealer in horses and shipped them out to nearby towns in carload lots in charge of Shaw to sell them. Shaw had full power to control the terms of sale. This included power to do everything usual and necessary to its accomplishment. It is perfectly evident that Shaw would be very much hampered in the sale of the horses if he did not have the power to warrant their soundness. Shaw was in charge of the business of selling the horses for Cone, and when he warranted the soundness of a horse sold by him, he may be fairly presumed to he acting within the scope of his authority. Belmont’s Executor v. Talbot (Court of Appeals of Kentucky), 51 S. W. 588; Skinner v. Gunn, 9 Porter (Ala.) 305; Lane v. Dudley (N. C.), 5 Am. Dec. 523.
It follows that the court erred in directing a verdict for the defendants, and for that error the judgment will' be reversed and the cause remanded for a new trial. | [
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Smith, J.
Appellant was employed as a traveling salesman by appellee, Williams-Echols Dry Goods Company, under a written contract covering the year beginning October 15, 1920, and ending October 15, 1921. This contract reads as follows: “This agreement entered into this 15th day of October, 1920, at Fort Smith, Arkansas, by the Williams-Echols Dry Goods Company, of Fort Smith, Arkansas, and O. A. Alexander, of Fort Smith, Arkansas, as follows: For the compensation of 3 per cent, commission on the total amount of goods sold by 0. A. Alexander, as traveling representative for the Williams-Echols Dry Goods Company and shipped by said company, 0. A. Alexander does hereby agree to give his undivided service to said company for a period of one year, beginning October 15, 1920', and ending October 15, 1921. It is further agreed that this 3 per cent, commission shall not be paid by the WilliamsEchols Dry Goods Company on goods they ship other than those shipped from the stocks of said company. It is also agreed that the amount of all goods returned to the Williams-Echols Dry Goods Company having been sold by 0. A. Alexander shall be deducted from the sales of 0. A. Alexander as they are returned, and no commission shall be allowed thereon. It is also agreed that goods sold by 0. A. Alexander, such as samples and defective merchandise, shall not be included in sales on which a commission shall be paid. The Williams-Echols Dry Goods Company agrees to pay all traveling expenses of 0. A. Alexander in performance of his duties as their traveling representative, and agree to pay 0. A. Alexander $300 per month for twelve months beginning October 15, 1920. The total of these payments shall constitute a part payment óf the 3 per cent, commission to be paid on the total amount of sales made by 0. A. Alexander as above described, and shall be deducted from the total amount of commissions earned when full settlement of commissions shall be made on October 15, 1921. Any sum paid to 0. A. Alexander during the above stated twelve months in excess of commissions actually earned shall be returned by him to the Williams-Echols Dry Goods 'Company.
“Williams-Echols Drv Goods Company,
“J. B. Williams, president.
“0. A. Alexander.”
Prior to the execution of this contract, appellant had been employed by appellee under a verbal contract for a guaranteed salary and a contingent commission. At the expiration of the year covered by the written contract the parties thereto differed as to the sum which appellant had earned under it, the difference arising chiefly out of the different interpretations placed upon the written contract, and for that reason we have copied it at length.
It was contended by the company that appellant had sold during the year goods amounting to $73,844.95, and that his commissions thereon amounted to $2,215.35, and no more, and, as the company had paid appellant during the year covered by the contract, $300 each month, it claimed to' have overpaid appellant the difference, amounting to $1,384.65, on which there was a credit for services rendered after the expiration of the contract, leaving the net amount due it of $1,224.65, and this suit was brought to recover that sum.-
Appellant answered and denied owing the company anything. He alleged in his answer that he had been employed as a salesman, and that it was his duty, under the contract, to devote his entire time to the sale of goods, but the company wrongfully required him to devote a large part of his time to making collections, thus interfering with sales which he would • otherwise have made and on which he would have earned commissions, and that the company breached the contract by failing to carry a full line of goods such as he had been employed to sell.
Hiere was a trial upon these issues, and a verdict and judgment in favor of the company, from which is this appeal.
Appellant contends that the contract is an unambiguous instrument, and should have been construed by the court, and that a proper construction of the instrument is that he was required only to sell goods, and that any other duty imposed upon him was in violation of the contract, and that he was entitled to compensation for such services, and was entitled also to the commission which he would otherwise have earned, including the amount which he failed to earn because of the company’s failure to carry a proper-line of goods.
The court took the view that the contract did not define the duties of a traveling representative, and permitted testimony to be introduced showing what these duties were. This testimony was to the effect that it had long been the custom for traveling representatives to make collections in the territory .covered by them, and it was shown also that appellant had previously made these collections. This last testimony was objected to specifically upon the ground that appellant had been previously employed under a different contract, and that, whatever the custom may have been, it could not control the express terms of the written contract.
We think no error was committed in the admission of this testimony. The contract does not expressly define appellant’s duties. It does employ him for one year as the company’s traveling representative, and did require him to give his undivided services to the company for the'period of one year, and it required the company to pay all expenses incurred by appellant in the discharge of his duties. It will be observed that the commission was not to be paid upon all orders taken by appellant, but only on those orders which were filled by shipping the goods, and it is therefore obvious that it was to the interest of both parties that the bills should be paid, thus insuring, so far as the appellant was concerned, the . filling of future orders. The testimony also shows that appellant was only required to collect in the territory which he covered as a salesman and from the customers to whom he sold, and that he was given credit for all goods sold in his territory, whether the orders were received by the company through him directly or not.
Inasmuch as the contract did not specify what appellant’s duties as traveling representative were, it was not improper to prove the general custom in relation thereto as a means of interpreting the terms of the contract, and the court did not err in submitting to the jury the questions of fact relating thereto.
In the case, of Robinson v. United States, 13 Wall. 363, 20 L. ed. 653, it was said by the Supreme Court of the United States that: “If a person of a particular occupation, in a certain place, makes an agree: ment by virtue of which something is to be done in that' place, and this is uniformly done in a certain way, by persons of the same occupation, in the same place, it is but reasonable to assume that the parties contracting about it, and specifying no manner of doing it different from the ordinary one, meant that the ordinary one and no other should be followed. Parties who contract on a subject-matter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary.” Numerous other cases are cited in the brief of counsel for appellee, including our own cases of Walsh v. Frank, 19 Ark. 270: McCarthy v. McArthur, 69 Ark. 313; Meyer v. Stone, 46 Ark. 210.
The question of the failure of the company to carry a proper line of goods was submitted, under instructions prepared and offered by appellant, and the jury was also told to find the value of appellant’s services in'making collections, if he was not required by the custom to make these collections as a part of his duties as the company’s traveling representative.
The court submitted these issues under instructions prepared and offered by appellant, but appellant says these instructions were in conflict with instruction numbered 1, given at the request of the company; and, as we have said, appellant also insists that the questions should not have been submitted to the jury at all.
Appellant asked a number of other instructions, which the court refused to give. These we have carefully considered, and have concluded that they either do not correctly declare the law applicable to the issues joined, or were fully covered by other instructions which correctly stated the'law applicable to the relevant issues.
The instruction numbered 1, to which we have just referred, reads as follows: “1. The court instructs the jury that, under the terms of the contract between Williams-Echols Dry Goods Company and O. A. Alexander, the said 0. A. Alexander was to draw three hundred dollars per month for 12 months, but said contract further provided that, if 3 per cent, commission on the total amount of goods sold by said Alexander and shipped by the company from its own stock, exclusive of samples, defective merchandise and returned goods, amounted to less than $3,600, then the said Alexander agreed to pay back the deficiency to Williams-Echols Dry Goods Company. So, if you find from a preponderance of the evidence that Williams-Echols Dry Goods Company complied with said contract, and that 3 per cent, of the total amount of goods sold by Alexander and shipped, after deducting the exceptions mentioned above, amounted to less than $3,600, then Williams-Echols Dry Goods Company is entitled to recover the difference between such amount and $3,600.”
It is now urged that this instruction leaves out of account the defenses interposed by appellant, and which were covered by the other instructions given by the court. But no specific objection to that effect was made, and we are of the opinion that this objection to the instruction, if it was thought defective in the respect stated, should have been specifically pointed out. The instruction does not undertake to tell the jury what appellant’s duties were — other instructions directed the jury to determine that fact; but it does tell the jury that, if the company complied with the contract, that is, imposed no duties not required by the contract, and kept a proper stock of goods — a question which was, as we have said, also covered by other instructions — the com-pan}^ was entitled to recover the excess, if any, paid to appellant over the commissions earned by him. In the absence of the specific ‘objections indicated, we think no error was committed in giving instruction numbered 1.
Objection was made to the testimony of J. E. Freeze, the bookkeeper for the company. This witness produced a number of statements which he had taken from the books of the company, showing sales made and goods shipped to and goods returned by customers. The objection to this testimony was that Freeze had no personal knowledge of the items embraced in the statement which he had copied from the books. We think no error was committed in the admission of this testimony. Freeze testified that he made the entries in the books from which the statements were made, and that the entries were made by him in the usual course of business, and that he knew at the time he made the entries on the books that they were 'correct, having been made as the orders were received and the goods shipped out and as goods were returned, and that he had previously made copies for appellant, and which were delivered to and received by him without objection, and that these statements were identical with the monthly statements which he had furnished each month to appellant, and, further, that appellant had personally, from week to week, checked up his commissions with the books and had made no objection to the accuracy of the books. Bush v. Taylor, 136 Ark. 554.
When the complaint was filed by the company, garnishment was issued and served on C. A. Goodwin, who answered and admitted that he owed appellant $485.15. On the same day appellant sued Goodwin for this amount. The two cases were consolidated, and, by direction of the court, the jury returned a verdict in favor of the appellant against Goodwin, but there was no direction to include the accumulated interest. It appears, however, that no objection was made to this failure, and that that error was not assigned in the motion for a new trial.
No error appearing, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). It is conceded that the action was brought under the Federal Employers’ Liability Act, and that in such cases it has been held by the Supreme Court of the United States, and by this court, that the work of repairing the roadbed and bridges of a railroad after they have become instruments of interstate commerce, and maintaining them in proper condition for the passage of interstate trains, is within the Federal statute. Pedersen v. Delaware, L. & W. R. Co., 229 H. S. 146; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473; Southern Pacific Company v. Industrial Accident Commission of California, 251 U. S. 259; Erie Railroad Co. v. Collins, 253 U. S. 77; Long v. Biddle, 124 Ark. 127; Treadway v. St. L. I. M. & So. R. Co., 127 Ark. 211, and Kansas City Southern Ry. Co. v. Leinen, 144. Ark. 454.
'But it is insisted by counsel for the defendant that the evidence is not legally sufficient to sustain the verdict within the principles of law above announced. We cannot agree with counsel in this contention. The complaint alleges and the answer admits that, at ,the time the plaintiff was injured, and for several years prior thereto, the Missouri Pacific Railroad Company was a corporation engaged in the business of transporting passengers and freight for hire as a common carrier by railroad in interstate commerce from Coffeyville, Kan., to Little Rock, Ark. It appears from the testimony of two of the witnesses for the plaintiff that, at the time the plaintiff was injured, he was unloading ties from a work-train, and that the ties were to be used for the purpose of repairing the railroad track. The work was being done on the Mulberry and Dyer sections between Mulberry and Van Burén, in the State of Axkansas.
The section foreman of the defendant testified that he had been working for the defendant as section foreman for twenty-six years, and was with the work-train on the morning the defendant was injured. On cross-examination he was asked how long he had been working for the defendant, and answered twenty-six years. He was then asked this question: “On that same section?” and replied, “No sir, from Van Burén to Little Rock.”
. It is fairly inferable from this evidence that the defendant was injured on the main line of defendant’s road from Coffeyville, Kansas, to Little Rock, Arkansas, and that he was injured between Mulberry and Van Burén, Arkansas, while unloading ties to be used in repairing the main track of said railroad. This established a cause of action under the Federal Employers’ Liability Act, if the defendant was guilty of negligence.
It is also inferable from the testimony that the work-train where the plaintiff was working when he was hurt was stopped with a more sudden jerk than usual, and that this caused him to, in a manner,.lose control of his end of the tie, so that his hand was caught between the tie and the door-facing of the car. It appears that the plaintiff had been working there for two or three days, and the jury might have inferred that he was accustomed to the ordinary jars caused by the ordinary stoppage of the work-train and could take care of himself in that situation. According to his testimony, a different situation presented itself by the work-train’s being stopped with a jerk more sudden and violent than usual. This, as above stated, caused him to lose control of his movements to a certain extent, and caused his hand to be caught between the tie and the door-facing, just as he was preparing to help throw the tie out of the car, after having given it a swing. The testimony of the plaintiff then made a question for the jury as to the negligence of the defendant.
Again, it is insisted by counsel for the defendant that the court erred in submitting to the- jury the question of the plaintiff’s injuries being permanent.
We cannot agree with counsel in this contention. According to the testimony of the plaintiff, he was injured on July 8, 1921, and it appears from the record that the case was called for trial on the 28th day of September,' 1922. The plaintiff testified that his hand could not be used for five or six months after it was hurt, and that it was still swollen. He further stated that his thumb bends back in a way that is not normal; that he can work it with his other hand and can only close his hand in a certain way. He was further asked if he could use the hand that was injured now (meaning at the time of the trial), and he answered, “No sir, I can’t hold with it.”
From this evidence the jury might have inferred that the injury to his hand was permanent. Therefore we hold that this assignment of error is not well taken.
The next assignment of error is that the court erred in giving instruction No. 3, on the assumption of risk, which is as follows:
“No. 3. If you find that plaintiff was injured in the performance of his regular duties, and you further find that his injury was caused or contributed to by the negligence of his fellow-employees, you are instructed that he did not assume the risk arising out of the negligence of fellow-employees.”
In construing the Arkansas Employers’ Liability Act, which is virtually a copy of the Federal act, this court said that the statute was not intended to and does not deprive the employer of the right to set up the defense of assumption of risk by the injured employee, where such injury was the result of the negligent acts of a fellow-servant of which the injured employee had knowledge and the dangers of which he appreciated. E. L. Bruce Co. v. Yax, 135 Ark. 480.
Again, in construing the Federal Employers’ Liability Act in the same respect, this court referred to decisions of the Supreme Court of the United States speak-’ ing on the question, and said: Court, ‘the consequent danger was so obvious that an ordinarily careful person in Ms situation would have observed the one and appreciated tlie other.’ ” St. Louis-San Frascisco Ry. Co. v. Blevins, 160 Ark. 362.
“This interpretation of the Federal statute places the question of assumed risk with reference to the negligence of plaintiff’s fellow-servants upon the same basis as negligence, of the master himself, for, in either case, the servant is not deemed to have assumed the risk of the negligence of either the master or the fellow-servant, unless the plaintiff is aware of the negligence and appreciates the danger, or, in the language of the' Supreme
Tested by the principles of law announced in these cases, instruction No. 3, copied above, is erroneous because it does not take into consideration that, under the facts of this case, the plaintiff might have assumed the extraordinary risks caused by the negligence of his fellow-servant, if he knew and appreciated them.
The instruction is prejudicial because the Jury might have found that the plaintiff, from the experience which he had already had in unloading ties, knew and appreciated the danger of stopping the train with a more sudden and violent jerk than was usual, and that, if such a fact had been found by the jury from the evidence in the record, the plaintiff assumed the risk arising from the extraordinary danger.
For the error in giving instruction No. 3 the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Wood, J.
The appellant was indicted for the crime of selling intoxicating liquor. The indictment, omitting formal parts, charged that the appellant “did unlawfully and feloniously sell and give away, and was unlawfully and feloniously interested in the sale and giving away, of alcoholic, vinous, malt, spirituous or fermented liquor. ’ ’
W. D. Laney, a witness for the State, testified to the effect that some time in November or December, 1922, he bought whiskey from the appellant in Ashley County, Arkansas. He testified to buying .a quart of whiskey on two different occasions from the appellant and paying him the sum of $3 therefor. It was moonshine whiskey. The appellant was a witness in his own behalf,- and he testified that he never sold .any whiskey to the witness Laney. He stated that there was no trouble between him and the prosecuting witness Laney, except that witness had reported to Attorney General Coco at Bastrop, La., concerning this case.
The jury returned a verdict of guilty and fixed appellant’s punishment at imprisonment in the State Penitentiary for one year. Judgment was rendered in accordance with the verdict, from which is this appeal.
1. The appellant contends that there was no testimony to sustain the verdict, inasmuch as the State had only one witness, whose testimony was uncorroborated. But it is not essential that the testimony of the witness for the State be corroborated by any other testimony. Nelson v. State, 139 Ark. 14. The credibility of the witness was for the jury. The verdict shows that the jury believed and accepted the testimony of the witness for the State. The State, in criminal cases, is not required to establish the guilt of the accused by a preponderance of the evidence, but is required to prove such guilt beyond a reasonable doubt. The court correctly instructed the jury on the’ subject of reasonable doubt, and the testimony was sufficient to sustain the verdict.
2. The appellant contends that the court erred in giving the following instruction: “Gentlemen of the jury, the court tells you that it is a violation o'f the laws of the State of Arkansas to sell or give away, or be interested in the sale or giving away of any intoxicating liquor, any alcoholic liquor or intoxicating liquor, any alcoholic intoxicating* liquors.” The appellant offered a general objection to the instruction.
The appellant argues that, under the instructions, the jury might have found that the defendant had sold a concoction of intoxicating liquors, such as coco-quinine, or other intoxicating drugs, that did not contain any alcoholic liquors. .Appellant’s contention cannot be sustained. There was no testimony tending to prove that the appellant sold intoxicating liquor of any description except whiskey. It is a matter of common knowledge, of which this court will take judicial notice, that whiskey is an intoxicating alcoholic liquor. Johnson v. State, 152 Ark. 218. It is obvious that the court intended to define the offense charged in the indictment under the statute as that of selling or giving away, or being interested in the selling or giving away, of alcoholic intoxi eating liquors, contrary to the statute. Section 6160, C. & M. Digest. If the appellant conceived that the instruction was susceptible of any other interpretation, he should have made a specific objection to the instruction.
3. The appellant contends that the court erred in giving the following instruction: “By the expression 'reasonable doubt’ is not meant every possible doubt, because everything relating to the affairs of this life and depending upon the testimony of witnesses to establish it is open to some doubt, but a reasonable doubt is that condition of mind when a reasonable man, after having carefully considered a situation that is of vital interest to himself, and viewed it from every angle and considered it carefully, and then would be uncertain what to do, that is a reasonable doubt; and a jur’or may be said to be satisfied beyond a reasonable doubt, when, after a careful and candid consideration and comparison of all the testimony in the case, there remains in his mind an abiding conviction that the defendant is guilty.” • The appellant here objects to the following language in the above instruction: “But a reasonable doubt is that condition of mind when a reasonable man, after having carefully considered a situation that is of vital interest to himself and viewed it from every angle and considered it carefully, and then would be uncertain what to do.” The appellant did not offer any specific objection to the above phraseology, but contented himself with a general objection to the instruction. The language above used is objectionable, if for no other reason, because any effort to define a reasonable doubt other than in the simple form that has been so often approved by this court is unnecessary, and by the repetition of the same idea assumes an argumentative phase. But the court below was not asked to eliminate the language which appellant urges as reversible error, and it occurs to us that it was but an effort on the part of the trial court to make plainer that which the court had already suffi ciently defined without the use of such language. The language, taken in connection with that which immediately preceded as well as that .which followed it, could not have misled the jury and was not harmful to the appellant. In the absence of a specific objection, it was not reversible error to give the instruction in this form, though it is not a precedent to be approved, and, if specific objection had been offered to it, the court should have .sustained the objection and eliminated the phraseology above quoted.
In this connection it may be said that the books are full of adjudicated cases in which the courts have attempted, in varying language, to give a definition of reasonable doubt. See cases on the subject collated in vol. 7, Words & Phrases (Reasonable Doubt); 2 Bishop’s New Criminal Procedure, 938, and cases cited in note. Mr. .Bishop says: “There are no words plainer than ‘reasonable doiibt’ and none so exact to the idea meant. Hence some judges, it would seem, wisely decline attempting to interpret them to the jury.”
■ This court, in one of its early cases, Palmore v. State, 29 Ark. 248-266, approved the following definition of reasonable doubt: “The jury are instructed that a reasonable doubt is not a mere possible doubt, because anything relating to human .affairs, and depending on moral evidence, is open to some possible ur imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they do not feel an abiding conviction to a moral certainty of the truth of the charge. ”
Judge Riddick, speaking for the court in the case of Bell v. State, 81 Ark. 16-21, commenting upon an instruction substantially in the form of that given in Palmore v. State, supra, said: “This was a very satisfactory explanation of the term (reasonable doubt) and was all that was needed, and has ample precedent to support it.” See also Gilcoat v. State, 155 Ark. 450-465; Flake v. State, ante, p. 214.
If the term “reasonable doubt” can be made any plainer at all by negative definitions, then, of all the multiplied efforts to that end shown by the numerous cases in the reports, none can be found, perhaps, more satisfactory than that given in Palmore v. State, supra. It may be well to state in this connection, for the benefit of trial judges, that an instruction in this form has never been condemned, but always approved. Because it has been so uniformly approved, and because any substantial deviation therefrom involves the possibility of reversible error, it would be well, when a definition of reasonable doubt is requested, or given by the court on its own motion, to adopt the above form. Far better not to try at all to “paint the lily,” to “gild refined gold,” or to “add a new color to the rainbow,” than to try and fail. The phraseology objected to did not render the instruction, as a whole, inherently defective, and, in the absence of a specific objection, the court did not err in giving it.
4. On the subject of the credibility of witnesses the court instructed the jury as follows: “You are the sole judges of the weight of the evidence and the credibility of the witnesses, where the evidence, as in this case, sharply conflicts. It is your duty to examine into the evidence and measure it by the reasonableness or unreasonableness of the testimony given by the witness; the knowledge and means of information that the witness has about what he has testified; his interest, if any, in the result of your verdict; his bias in favor of or his prejudice against the defendant, if any has been shown by the testimony, or which, from the testimony, the jury might reasonably infer to exist; the manner and demeanor of the witness while upon the witness stand; together with all the facts and circumstances surrounding the witness. The jury should not totally disregard the testimony of any witness, neither should it blindly accept as true anv statement made by the witness, simply because he savs it is, but the jury should measure it by the rule that I give you, judging it by common sense and experience of ordinary affairs and men and things.” The appellant offered a general objection to the above instruction.
Counsel for the appellant say that the ruling of the court in giving the above instruction is reversible error because nowhere in the instruction is there .any qualification telling the jury that, if they believed the witness to have testified falsely throughout, they may disregard all his testimony, and that the instruction tells the jury that “it should not totally disregard the testimony of any witness,” etc.
When the instruction is read as a whole, it is obvious that the court did not mean to tell the jury that they were not at liberty to totally disregard the testimony of any witness if they believed that the whole of such testimony was false. When all the language of the instruction is considered, it is manifest that what the court meant to tell the jury was that they should consider the testimony of a witness in the light of the knowledge and information of the witness concerning the matters about which he testifies, his interest in the result of the verdict, his bias in favor of, or his prejudice against, the accused, together with Ms demeanor upon the witness stand, in judging the weight and credit to be given such testimony. Certainly, the court did not mean to tell the jury that they could not totally disregard the testimony of any witness, or any portion of the testimony of any witness, which they believed, under the above rule, to be false. If counsel for appellant conceived that such was the effect of the instruction, as they here contend, they should have so informed the court by a specific objection. They cannot avail themselves of an objection to phraseology which did not render the instruction inherently defective, without a specific objection. See Flake v. State, supra.
We find no reversible error in any of the rulings of the trial court. Its judgment therefore is affirmed. | [
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McCulloch, C. J.
The plaintiff, E. B. Gardner, is by profession engaged in educational work, and on May 17,1919, the defendant, North Little Eock Special School District, entered into a written contract with him. whereby lie was employed as superintendent of schools in said district for a period of two calendar years beginning on July 1, 1919, at a stated salary, payable-at the end of each month. ■ Plaintiff entered upon the discharge of his duties on the date specified in the contract for the commencement of his term of employment, and continued in the service until he was discharged by a resolution of the board of directors of the district, adopted June 21, 1920. The discharge was without plaintiff’s consent, and he instituted this action, after the expiration of his term, to recover the amount of his salary, alleging that his discharge was wrongful apd without fault on his part, and that he had been unable to obtain other employment during the remainder of the term of his contract with defendant.
The defendant in its answer tendered several defenses, one a denial that the district had made a valid contract with plaintiff for a term of two years; another that, at the time of the execution of the contract, there were not available funds in the district to pay the salary of plaintiff, together with other school expenses, during the full period covered by the contract, and that for that reason the contract was void under the. statutes of this State; and finally, on the ground that the discharge of plaintiff was not wrongful for the reason that he was “guilty of insubordination; that he refused to work in harmony with the board; that, instead of cooperating with the board and accepting its policies, plaintiff tried to dominate and control the board, and, to that end, devoted his efforts in stirring up strife among the patrons of the school and inciting the teachers against the board, and in political activities with a view to electing members of the board who would agree with him, with the result that the efficient conduct of the schools was impossible under plaintiff as superintendent, and plaintiff, by such conduct, became unfit to be superintendent and his influence damaging and detrimental to the interests of the schools.”
The case was tried, by consent, before the court sitting as a jury, and the finding was in favor of the defendant.
The first question which presents itself is whether or not the directors of the district were empowered to enter into a contract with a school superintendent for a term of more than one year. This question was not expressly raised in the proceedings, but the denial of the execution of the contract itself is sufficient to raise the question of the legal power of the district to enter into the contract.
The statute governing single school districts, and conferring authority upon the directors of such districts in the management and control of school affairs, authorizes the directors to “employ a superintendent of the schools, who may also be principal of any graded or high school that said board may establish.” Crawford & Moses’ Digest, §8942. It will be noted that there is nowhere found in the statute any express restriction, upon the authority of the district in employing a superintendent, so far as concerns the length of the term. If any such restriction exists, it must therefore be an implied one. In the case of Gates v. School District, 53 Ark. 468, this court held that the statute just referred to, conferring’ authority upon the board of directors to employ a superintendent of schools, does not limit 'the authority to an employment during the term of office of such directors, and that the statute does not forbid the board to make a contract with the superintendent for a term beginning after some members of the board go out of office. The question of employment for a longer term than one year was not involved in that case, but the term fixed by the employment did, in fact, extend beyond the term of office of some of the directors then in office, and the reasoning of the court leads inevitably to the conclusion that the statute does not restrict the power of the board to the employment of a superintendent for a single year. In disposing of the question involved, the court said:
“Public interest might suffer from unwise contracts covering an extended term in future; they might suffer equally for want of power to make a contract when a good opportunity offered. But with the question of policy we have no concern, except in so far as it aids in ascertaining legislative intent. There is nothing in the act that implies that the Legislature intended either more or less than it said. We therefore conclude that the act furnishes an accurate expression of legislative intent, and that there is no law that forbids the school board to make a contract for a superintendent for a term beginning after some members of the board go out of office.”
We are of the opinion that the authorities sustain the view that the statute authorizing such an employment by a board of school directors or trustees, without any restrictions .as to the length of term of the employment and duration of the contract, is not limited to the period of one year, nor to such a time as is within the term of office of all the members of the board at that time.
In a case note to Manley v. Scott, 29 L. R. A. (N. S.) 652, the prevailing rule on this subject is stated as follows :
“Where there is no limit placed on the exercise of the power conferred upon school trustees or boards to contract with and employ teachers, a contract by such trustee or board employing* a teacher for a term to commence or to continue after the expiration of the term of such trustee or board, is valid and binding upon their successors in office.”
Cases are there cited to sustain the text, and we think the rule is sound.
The same doctrine is stated in 24 R. C. L., p. 579, as follows:
“In the absence of an express or implied statutory limitation, a school board may enter into a contract to employ a teacher or any proper officer for a term extending bevond that of the board itself, and such contract, if made in good faith and without fraudulent collusion, binds the succeeding board. It has even been held that, under proper circumstances, a board may contract for the services of an employee to commence at a time subsequent to the end of the term of one or more of their number and subsequent to the reorganization of the board as a whole, or even subsequent to the terms of the board as a whole. The fact that the purpose of the contract is to forestall the action of the succeeding board may not, of itself, render the contract void. But a hiring for an unusual time is strong evidence of fraud and collusion, which, if present, would invalidate the contract.”
The proper rule seems to be that, unless the statute prescribes a time limit upon the duration of such a contract, the board may make a contract for a reasonable length of time, and the reasonableness of the con tract is to be determined by all the circumstances. The mere fact that there are partial changes in the personnel of the board during’ the life of the contract does not of itself render it unreasonable in duration of time. Whether or not a contract extending beyond the incumbency of all of the members of the board then in office would be unreasonable we need not determine, for no such state of facts exists with respect to the contract now before us. In the present case the contract was made immediately before the school election in May, 1919, and the term extended up to July 1, 1921. The terms of two of the directors then in office expired with the election in May, but if the contract with plaintiff had been for only one year, the board, as constituted prior to the school election in 1920, which was a majority as it existed when this contract was made, could have made a new contract for another year, so the making of this contract did not extend the employment beyond the terms of even a majority of the members of the board, and, under the decision in the Gates case,-supra, the contract was valid. The fact that it was within the power of a majority of the board who would remain in office past the time when the second year of the term might be contracted for affords a reason, if no other existed, for holding that the contract was not unreasonable. Our conclusion is that the contract was valid, and that there was no defense on that ground.
It has been suggested that the execution of the contract immediately before the school election in 1919 war- • rants the inference that there was fraud and collusion between the plaintiff and the board of directors, but we do not think that that circumstance alone shows any collusion. ' The board as it then existed had the right to act within its statutory powers, even though such action anticipated the action of members of the board who were to be elected at the approaching election.
It is next contended that the employment for more than one year was in violation of the statute (Crawford & Moses’ Digest, § 9030) which, prohibits the directors from employing a “teacher to teach a school .in any district in this State unless said district has money to its credit in the treasury of the county in which said district is located to pay said teacher for such work.” Without deciding whether or not this statute applies to employment in single school districts, it is sufficient answer to the contention that it in no event applies to the employment of anything but teachers. According to its express language it has no application to the employment of a school superintendent, therefore it has no bearing on the present case.
- 'We come now to a determination of the question whether or not the discharge of the plaintiff from his employment was wrongful and without just cause.
The contract was, as. before stated, executed just prior to the school election in May, 1919. Two new directors, Moseley and Foster, were elected at that election, and, immediately after their election and qualification, they joined in a letter to the plaintiff, notifying him that they objected to his employment for a term of two years, that it had never been the custom in the district for a superintendent to be employed for more than one year, and'that there was no authority for employment for a longer term, and warning plaintiff that he need not come to the district with the expectation of serving for two years, and advising him to remain in the field where he was then employed.
It appears from the testimony that, prior to the time of the employment of the plaintiff and during the incumbency of his predecessor, there were two factions, one favorable and the other hostile to the superintendent of schools, and this factionalism continued during the period of plaintiff’s service. The factionalism grew more and more acute, and resulted in a controversy over the election in May, 1920, by the two factions, one being designated as the Gardner faction and the other as the anti-Gardner faction. As the time for the election approached, plaintiff wrote a letter to directors Moseley and Foster, reminding them of the fact that, by their letter to him before he came to assume the duties of his employment, they showed their antagonism and their opposition to his policies, and he challenged them to the sportsmanlike conduct of resigning their offices and running for reelection on an anti-Gardner platform s'o as to get an expression from the people of the district as to the respective policies of the plaintiff and these two directors. Moseley and Foster did not, however, accept the challenge, and they were not involved in the election further than their preference for the successors of the two directors whose terms had expired. Mann and Machin were candidates of the anti-Gardner faction, and Bennett and Ryan were candidates for the Gardner faction, and it is shown from the testimony that there was a heated campaign. At the election Mann and Machin were returned as having received the highest number of votes, and were declared elected, and entered upon the discharge of their duties, but there was a contest instituted by Bennett and Ryan, which resulted in their favor, and there was a judgment ousting Mann and Machin from office and awarding the offices to Bennett and Ryan. The discharge of plaintiff by the board of directors occurred while Mann and Machin were serving, and before they were adjudged not to be entitled to the office.
The contention of,the defendant is that the plaintiff was guilty of insubordination to the authority of the board of directors, and that he became so active in political affairs of the district that he intensified the spirit of factionalism which existed and impaired Ms usefulness to the extent that he was no longer fit to manage the school. ' There is no contention that the plaintiff was lacking, to any degree, in moral character, or habits, or health, or that he was not up to a high standard of ability for the discharge of the duties of his employment. The testimony shows affirmatively that he is a man of good character, that no objections were made to his methods of discharging the duties of his office, nor that he was to any degree inefficient. The sole contention is that he persistently pursued policies in hostility to the views of the members of the board, thereby maldng himself obnoxious to the members of the board, and that his overzeal in the political affairs of the district was detrimental to the school interests and rendered him unfit to discharge his duties.
Of course, in testing the sufficiency of the evidence to support the finding of the court, we must view the evidence in its strongest probative force and adopt any inference from the evidence which would be sufficient to sustain the finding of the trial judge. After a careful consideration of the evidence, we are of the opinion that, thus viewing it in its strongest light favorable to the cause of defendant, there is nothing of a legally sufficient nature to justify the finding that the conduct of the plaintiff afforded just grounds for his discharge. It is shown that the plaintiff favored a somewhat ambitious plan for enlargement of the school properties, for expensive grounds and buildings, and that in this policy he was supported by an even half, in numbers, of the board of directors, but was opposed by the other half. The evidence shows that he .was persistent in the advocacy of his policies and plans, but never disrespectful nor personally offensive in his conduct toward the members of the board. All the witnesses who testified on this subject stated that there was lack of harmony between the superintendent and the board, but never any harsh feelings or offensive conduct. The most that the evidence shows on this subject is that the plaintiff adhered persistently to his views with respect to his plans for improvements in opposition to the wishes of at least half of the members of the board. It shows that he was not disposed to treat the decision of the board as final, in the sense that he ceased to attempt to impress his views upon the board, but there is no evidence to show that there were any obstructive tactics on the part of the plaintiff, nor any overt act of insubordination.
There is also testimony on the subject of plaintiff’s activity in school politics, that he entered with a considerable degree of activity into the campaign, and that he made a speech at one of the meetings just prior to the school election of 1920.
It is difficult to draw a line of demarcation between the political rights of a school-teacher, or others engaged in educational work, with respect to activity in politics. Certainly they are not denied the right of free speech or the right to a reasonable amount of activity in all public affairs. There is, however, a limit to such an extent that their usefulness in the work for which they are employed shall not be impaired. Their zeal in political activity must not carry them to such a degree of offensive partisanship that their usefulness in educational work is impaired or proves a detriment to the school interests affected by their service. It does not appear to ns that the evidence in this case shows any such over zeal or activity on the part of the plaintiff. It is not contended that the schools’ interests were injured, or that the efficiency in the school work in that district was lessened.
There is some evidence also that an organization, or a union, was formed among a large number of school-teachers in North Little Rock, but it is not shown that nlaintiff was a member of this union, but merely that he favored it. Nor is it shown by the evidence that this organization was detrimental to the school interests of the district.
A contract of service of this kind is like any other contract, in the sense that it is binding upon the parties unless there are just grounds for avoidance. The directors have no right to discharge a teacher or superintendent unless there are iust grounds for it, and these grounds must exist at the time of the discharge, not’ merely a bare fear that they may arise in the future. Argenta Special School District v. Strickland, 152 Ark. 215. The nearest approach to impropriety in the conduct of the plaintiff, and which might tend to show insubordination and lack of harmony with the board of directors, is his written challenge to two of the members, Moseley and Foster, to resign and enter the election in May, 1920. But it must be remembered that this impropriety was invited, to a very large extent, by the conduct of the two directors themselves in opposition to the plaintiff before he began his work as superintendent of the district, and continuing such opposition as long as he remained in the service. There was a feeling of hostility initiated by the act of these two gentlemen themselves, which, to some extent at least, must have aroused a feeling of resentment on the part of the plaintiff, and his act in writing the challenge must be viewed in this light, which affords some palliation for the apparent impropriety. Viewing it, however, as an act of impropriety in which the plaintiff should not have permitted himself to indulge, we do not think that it was such misconduct as was sufficient to afford just grounds for plaintiff’s discharge. The fault which caused the lack of harmony was not altogether with the plaintiff, and he should not be required to bear alone the results. Some allowance should be made for natural emotions and human imperfections, and the impropriety of the plaintiff and the two directors in engaging in personal correspondence, to some extent beyond the bounds of punctilious courtesy, is of too little significance to afford just grounds for the abrogation of a solemn contract.
Our conclusion therefore is that the evidence is not sufficient to sustain the finding that the plaintiff broke the contract: therefore his discharge was wrongful, and he is entitled to recover as damages the amount of compensation which he would have received under the contract, having failed to find other employment during the term.
The evidence as to actual loss sustained by plaintiff resulting from his wrongful discharge is also undisputed. He lost the salary for twelve months, at $280 per month, an aggregate of $3,360 for the whole period. He sought other employment, but succeeded in earning and receiving only the net sum of $266.65 during a short period in which he was engaged in commercial pursuits. He was elected mayor of the city of North Little Eock, and, taking office on April 11, 1921, he received the ■salary of $250 per month for a period of two and two-thirds months during the term prescribed by his contract with the school district, making an aggregate of $666 thus earned. This makes a .total of $932.'65 earned and received from all sources, which should be deducted frotn his salary of $3,360, leaving the net sum of $2,427.35 which he is entitled to recover. Plaintiff testified that he incurred and paid expenses in securing his nomination and election to the office of mayor in the sum, approximately, of $266, which, it is contended by his counsel, should be deducted from his earnings. We do not think this contention is sound, for the reason that plaintiff’s election expenses were incurred in securing the office of mayor for a full term of two years, and should not be deducted from the salary earned during the first part of the term. The expenses are referable to the full term, and should not be apportioned to different periods. Whether election expenses should be deducted, under any circumstances, we need not now decide. The defendant introduced no testimony on this feature of the case, and the facts are undisputed.
The evidence has been fully developed on the whole case, and there is no reason for remanding it for a new trial.
Judgment will be entered here in favor of the plaintiff for recovery of the sum of $2,427.35, with interest at legal rate from the respective dates of maturity of the unpaid monthly salary prescribed in the contract between plaintiff and defendant. It is so ordered. | [
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Smith, J.
Appellant bought a carload of corn which had been shipped to Bateliffe, Arkansas, subject to shipper’s order. There was no opportunity to examine the corn until appellant had paid to the local bankdhe draft for the value of the corn to which the bill of lading was attached. After opening the car appellant discovered that much of the corn was wet, sour and unfit for use, whereupon he called appellees (whose place of business is in Fort Smith) over the telephone, and advised them the condition of the corn, and was advised by appellees to accept the corn, and, if it was not all right, appellees would make it so. Appellant sold the corn at'less than its cost, and brought this suit to recover the damages.
The suit was prosecuted upon the theory that the action was based upon a breach of warranty, both express and implied, that the corn was sound and merchantable, and the court gave the instructions prepared by appellant which submitted that issue.
There was a verdict and judgment for the defendants, and1 it is quite obvious that the verdict was based upon the defendants’ instruction numbered 2, as all the other instructions except defendants’ instruction numbered 1, which dealt with the burden of proof, declared the law applicable to appellant’s theory of the case. Said instruction numbered 2 reads as follows:
“2. You are instructed that, if you find from a preponderance of the evidence in this case that Claude Cage, plaintiff herein, made a verbal agreement with the defendants that if they would transfer and assign to plaintiff an alleged claim or cause of action which said defendants had and held against the Missouri Pacific Railway Company for damages to the corn in question, that he, Claude Cag’e, plaintiff herein, would release and hold immune said defendants from liability which plaintiff had or held against said defendants growing out of the damaged condition of the corn here in controversy, and that defendants, relying upon said verbal agreement made with plaintiff, assigned and transferred their said claim or cause of action to plaintiff, and that said' assignment was made under an express contract or agreement with plaintiff releasing them from liability to plaintiff, if any, then your verdict should be for the defendants.”
There was a demurrer to the answer and a motion to strike out of the pleadings all the allegations relating to the defense set out in the instruction quoted. This demurrer was overruled, as was also the motion to strike, and exceptions were duly saved. Our discussion of the instruction will dispose of this assignment of error.
There was testimony on behalf of the defendants to the effect that it was believed that the corn was damaged by reason of the fact that it had been shipped in a leaky car, in which, it had remained twenty-three days after it had been loaded in Nebraska, where the shipment originated, and that, after several conferences between appellees and appellant, it was agreed that appellant should bring suit against the railroad company, and should join appellees as parties plaintiff, as well as the Parker Corn Company, the original consignor, which had itself sold the corn to appellees, and that appellees would turn over to appellant the expense bill and help appellant to make the proof in the case, .and would release any claim they had against the railroad company in appellant’s favor, and that any judgment recovered should inure to appellant’s sole benefit, and that, in consideration of this agreement, appellant released all claim for damages against appellees. Appellant denied that it was any part of the agreement that he should release his claim for damages against appellees.
At the time this agreement was made, whatever its terms may have been, the parties executed the following writing:
“Fort Smith, Arkansas, July 6, 1920.
“Whereas the undersigned, Claude Gage, of Ratcliffe, Arkansas, has sustained great loss from the shipment of carload of corn in February, 1920, in a car branded and numbered as follows: ‘G. N. No. 212040.’ And whereas the railroad company over which the said car of corn was shipped refused to pay said loss. And whereas said car of corn was shipped to shipper’s order, the draft attached to bill of lading; and whereas the said Gage has paid said draft.
“Now therefore -we, the undersigned, do hereby authorize the said Gage to employ counsel and bring suit to recover said damage in our respective names jointly with his, the said Gage. It is agreed and understood that whatever attorney’s fees and court costs may be incurred in said suit is to 'be paid and borne by the said Gage, and the said Gage hereby agrees and obligates himself, his heirs and executors, administrators and assigns, to hold1 the said parties wholly harmless from any costs or attorney fees in the prosecution of said suit.
“Claude Gage.
“Fort Smlth Grain Company,
“By E. L. Yandell.
“Parker Corn Company,
“By C. H. Manning, Secretary.”
Thereafter appellant employed counsel of his own choice, who brought suit against the railroad company in the names of all the parties, and testimony was taken in that case, but, as the testimony appeared to establish the fact that the corn had been stored in open pens before shipment, and thus exposed to the weather, and that the car in which it had been shipped was not leaky or defective,. a nonsuit was taken, and appellees were advised of that fact. Appellees were not consulted about and had no part in the conduct or management of the suit against the railroad, and were not consulted as to the advisability of taking the nonsuit.
It is insisted that error was committed in giving the instruction set out above, for the reason that any agreement, if one was made, to release appellees was without consideration, and therefore void.
Of course, the jury’s verdict is conclusive of the fact that an agreement was made by which appellant was to release his claim against appellees; and we do not think this agreement was void as being without consideration. There might have been some uncertainty in the minds of the parties as to who should sue the railroad, and appellant might have believed that he could recover a larger judgment against the railroad company than he could against anpellees. However, all parties agreed that a suit should be brought in the names of all parties in interest, which should be conducted by appellant at his own expense and risk, and if it was agreed that the pro ceeds of this litigation should belong to appellant, the agreement that they should be so applied was a sufficient •consideration to support the release of the claim against appellees.
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Humphreys, J.
This is an appeal from a judgment obtained in the circuit court of Prairie County, Southern District, by appellee against appellant for $3,000, upon a life insurance policy issued by appellant to appellee’s husband, Charles A. Witt, on the twelfth day of October, 1921, including a twelve per cent, penalty and attorney’s fee of $500. The insured died on the twelfth day of March, 1922, and when proof of death was made, appellant refused to pay the policy, whereupon the beneficiary instituted this suit to recover thereon. Appellant interposed the defense that the insured made false answers to the questions propounded to him in the written application for the insurance.
The policy sued upon contained the following paragraph :
“Entire Contract. This policy and the application therefor constitute the entire contract. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy, unless it is contained in the written application therefor.”
The application referred to in the paragraph quoted contained the following statement, questions and answers, over the signature of the insured:
“I agree, on behalf of myself and of any person who may have or claim any interest in any policy issued hereon:
“(d.) That all statements and answers written herein, as well as those made and to be made, to the medical examiner in part II of this application, are full, true and complete.
“(5) Detail all illness, disease, operations, accidents or injuries you have had since childhood. (Give clinical history below).
Operation: appendicitis. Date: year, 1917; month, July. Duration: 2 weeks. Complications: none. Results: good. Name of medical attendant: Dr. J. P. Runyan, Little Rock, Arkansas.
“(6) (d) Has any physician ever expressed an opinion that your urine contained sugar or albumen or casts ? (Give details).
“ (6) (d) No.
“ (8) Are you now in good health? If not, what is the cause?
“(8) Yes.
“I certify that the above answers are full, correct and true, and agree that all of the above shall constitute part II of my application.”
Appellant contends for a reversal of the judgment upon three grounds: first, that the answers made by the insured in his application avoided the policy; second1, that the court erred in excluding a sworn statement made by the-insured to the Business Men’s Assurance Company on June 8, 1922, relative to his physical condition from November 22, 1921, to January 8, 1922; -and third, that the court erred in telling the jury that the burden was upon appellant to show that the representations made in the application were wilfully made with intent to defraud it.
(1) It is claimed that the testimony reflects that the answers made in the application were not full, correct and true, because appellant concealed the fact that he was confined to the house for over thirteen' weeks on account of sickness in 1918; that he was totally'disabled for fourteen weeks in 1920 on account of a fall from -a tree; that he had high blood pressure in February, 1921, and was under medical treatment on that account until the policy was issued; that he had nephritis and arteriosclerosis.
Concerning the illness in 1918, it appears from the testimony that it was the result of a malarial condition followed by an operation for appendicitis and adhesions. This operation was divulged to the company in the answer made, and the name of the attending physician was given, so the company had an opportunity to investigate- and satisfy itself whether the operation and the illness incident thereto had materially affected his health and longevity. It is the law that the insured, in answering such a question as that propounded1, is only required to detail such illnesses, diseases, operations, accidents or injuries which had materially affected his health or longevity. National Annuity Assn. v. Carter, 96 Ark. 495.
Concerning the illness in 1920, it appears that it was occasioned by a fall from a tree. The record does not disclose that any ill effects resulted from the fall. His recovery was complete. The burden was upon appellant to show that it had materially affected his health and longevity. No such showing was made.
Concerning the claim that the insured concealed the fact that he had kidney trouble and hardening of the arteries, it appears that he was ignorant of the fact, if it was a fact, that he had nephritis and arterio-selerosis. Dr. Murphy, who testified that he discovered the insured had this disease some time between February and October, 1921, was unable to say whether he ever imparted this information to him. This court is committed to the doctrine that “where answers in an application for insurance constitute merely representations, a misrepresentation will not avoid the policy unless wilfully or knowingly made with intent to deceive.” Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101.
Concerning the high blood pressure, Dr. Murphy testified that he examined the insured in February, 1921, and discovered that his blood pressure was 250; that he informed him of this fact, and advised him to refrain from any exertion of any kind, and placed him upon a diet; that the blood pressure was reduced to 200, and that, upon an examination of the nurse’s record, he found that it went down to 160; that from the time of his examination in February the insured was under his observation and treatment at intervals until his death. Dr. McKnight testified that he had occasion to test the insured’s blood pressure to ascertain whether it was feasible to administer gas to him for the purpose of extracting his teeth, and that he informed him that he had high blood pressure; that he could not remember when he made the examination, but that it was some time during the year 1921. Dr. Stout, appellant’s examining physician, who made a very complete and thorough examination of the insured on October 12, 1921, preparatory to issuing the policy, stated that his blood pressure was 135, or about normal; that he had no symptoms of .nephritis or arterio-sclerosis, and that he was in good physicdl condition. A large number of witnesses, who came in daily contact with the insured, stated that he was up and about his business practically all the time, and that apparently he was in the best of health. The evidence was therefore conflicting as to whether the > insured had high blood pressure before and at the time the examination was made and the policy issued, but if his blood pressure had been high, whether it' had affected his health or longevity. Under the evidence those things became matters of dispute for determination by the jury.
(2) . The sworn statement of the insured relative to his physical condition on and after November 22, 1921, more than a month after the policy sued upon was issued, was inadmissible under the rule announced in the case of Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245. The court said in that case: “The policy constituted a contract between the company and the beneficiary, either under an assignment or under the original designation in the policy itself, and it was not competent to prove, as ag’ainst the interest of the beneficiary, the declarations of persons whose life was' insured under the policy.”
(3) . Appellant admits that the instructions given by the court correctly placed the burden upon it to show that false, material representations, which induced the issuance of the policy, were made to it by the insured knowingly and wilfully, but contends that they are erroneous in telling the jury that they must also find that the insured made the misrepresentations with the intent to defraud the company. This court has said that the misrepresentations must be made with intent to deceive the insurer. Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101; Mutual Life Ins. Co. v. Owens, 111 Ark. 554. We think the word “defraud” was used in the sense of “deceive,” and that.the instructions, in substance and effect, conform to the law laid down in the two cases last cited.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This suit was brought in the circuit court of Phillips County by appellee against appellant to recover two months’ wages and the rental value of a house for the same length of time, for an alleged breach of an employment contract. It was alleged that appellant employed appellee on August 1, 1920, as a farm manager on its plantation during the balance of the year, for $275 per month and the use of a house, and that, during the month of October, it discharged him without cause, and refused to pay him Ms salary and the rental value of the house for November and December.
Appellant filed an answer denying that it discharged him without cause, but that, on the contrary, he voluntarily resigned his position, wMch resignation was immediately accepted by it.
The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, wMch resulted in a verdict and consequent judgment for $580, from which is this appeal.'
Appellant first contends for a reversal of the judgment because the instructions given deprived the jury of deciding the question of whether or not appellee was rightfully or wrongfully discharged. It is true that the complaint alleged the discharge without cause, and that the answer denied it, and alleged a resignation, but the proof was mainly directed to the issue of whether appellee resigned or was discharged. The trend of the testimony eliminated the issue in the pleadings of whether the discharge, if any; was wrongful. The reliance of appellant upon the resignation of appellee as its sole defense made it unnecessary for the court to submit any other issue than whether appellee resigned or was discharged. An instruction submitting the issue of whether the discharge, if any, was without cause would have been abstract and misleading. The court did not therefore commit reversible error in refusing to insert the words “wrongfully and without cause” after the word “discharged,” in instructions numbers one and two, given at the request of appellee.
Appellant next contends for a reversal of the judgment upon the alleged ground that the proof failed to show that appellee sustained any damages by reason of being deprived of the use of the house. This contention is based upon the fact that appellant did not rent another house to live in. Appellant testified, however, that he had to board, which amounted to the same thing. There was testimony in the record tending to show that the rental value of the house ranged from $10. to $25 per month.
Appellant next contends for a reversal of the judgment upon the alleged ground that the court refused to submit its theory of the case to the jury. The theory of appellant is that appellee voluntarily resigned his position, and for that reason was not entitled to recover his monthly salary beyond the date of his resignation. It is true that the court refused to give the instructions asked by appellant to this effect, but the instructions requested by appellant were covered by the oral instructions given by the court upon this issue. The court orally instructed the jury as follows:
“If you find from the testimony in this case that the plaintiff, T. L. Rogers, resigned and was not discharged from the employ of the Gerard B. Lambert Company, then you will find for the defendant.
“You are instructed that the burden of proof in this case is on the plaintiff, T. L. Rogers, to establish the allegations in this complaint. ’ ’
Appellant’s next and last contention for a reversal of the judgment is that appellee accepted a check in payment for his salary until November 1, and by so doing estopped himself from claiming any additional salary. The check was inclosed by appellant to appellee in a Letter of date October 16, 1920, which is as follows:
“Lambrook, Ark., Oct. 16, 1920.
“Mr. T. L. Rogers, Lambrook, Ark.
“Dear sir: Confirming onr verbal conversation on
Monday the 11th, it is understood that you resigned your position with the Gerard B. Lambert Co., effective at . once, and I accepted your resignation. I am sending you attached, your salary check for the month of October, less your store account to the amount of $226.45. It is -our desire to gain possession of the house in which you live by November 1, if possible, and would appreciate it very much if you would arrange your affairs accordingly.
“Thanking you for past favors and wishing you success in the future, we are,
“Tours truly,
“The Gerard B. Lambert Company.
“E. S. Cole, Asst. Treas.”
The answer to this contention is that it was within the discretion of the court to refuse an instruction upon an issue not embraced within the pleadings, and especially an issue which, it was necessary to plead. The defense of estoppel is one that must be specially pleaded. No request was made to amend the answer so as to plead an estoppel. Sims v. Stovall, 127 Ark. 186.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
This is a proceeding instituted in the name of the State in the Clark Circuit Court by the prosecuting attorney of that district against appellee, challenging the right of appellee to exercise the duties of the office of marshal of the incorporated town of Gurdon, to which office appellee had been elected by the town council.
It is alleged in the petition that- appellee was not a resident of Clark County at the time of his election to said office nor since that time, but was, and is, á resident of Ouachita County, in this State.
The court sustained a demurrer to the complaint, and rendered judgment dismissing the action, from which judgment an appeal has been prosecuted to this court.
The court'based its decision-on the ground that the proceeding was necessarily one under the statute of this ■State ■ known - as the-.'usurpation-statute (Crawford) & Moses’ Digest, § 10325 et seq.)',-which provides, in substance, that, whenever a person usurps an office to which •he is hot entitled by law, “an áctioii by proceedings at ■law may be instituted against him,' either by the State or the party entitled to the office * * * to prevent the usurper from exercising the office.” The statute further-imposes upon the prosecuting attorney the duty of instituting the action “against all persons who have or shall usurp county offices' * * * where there is no other person entitled thereto, or the'person entitled fails to •institute-the same for thrée months -after the usurpation;” and that for. usurpation other than of county offices “the'action -by the State shall be instituted and prosecuted by the Attorney G-eneral. ”
It is earnestly contended by counsel for the State on this appeal that the trial court was in error in its theory that this case .must be classed as one within the usurpation'statute, and it is argued that the common-law remedy of'information in the nature of quo warranto is independent of the statute and may be pursued, notwithstanding the statute. This court has decided to the contrary. _ In Wheat v. Smith, 50 Ark. 266, the court, speaking through Chief Justice Cooi-auim, concerning the usurpation statute, said: “It is necessary to recur to the object of' the act to determine by and against whom an action under it may be maintained. The remedy being 'a substitute for and a modification of the proceeding by information in the nature of quo warranto, we may look to that proceeding to determine its character.” The ■decision'in that case was to the effect that the common-law remedy had been displaced by the usurpation-statute to the extent' that it applied, but that the later provisions tof ’the- -Constitution of this State-fixing-the-jurisdiction lO.f do.urts in contested election cases repealed the usurpation nstatu-fe Jo; that extent. In-later cases (Payne v. Rittman, 66 Ark. 201; Whittaker v. Watson, 68 Ark. 555) it was decided that contests over municipal offices were within the usurpation statute, for the reason that they were not county offices within the meaning of the Constitution. It results therefore that this action challenging the right of appellee to hold the office of town marshal comes within the usurpation statute and must be governed by its terms.
The remaining question in the case is whether or not the action may be, instituted by the prosecuting attorney. The statute quoted above provides that the prosecuting attorney may only bring such actions against persons who usurp county offices. We held in State v. Higginbotham, 84 Ark. 537, that such an action could not be brought by the prosecuting attorney against any officer except a county officer, adopting the definition given by the Supreme Court of the United States in Sheboygan County v. Parker, 3 Wall. 93, that “an officer of the county is an officer by whom the county performs its usual functions; its functions of government.” 'The decisions .cited, supra (Payne v. Rittman; Whittaker v. Watson), are décisive that municipal officers -are not county officers within the meaning of the usurpation statute, so the action could not be brought- by the prosecuting attorney. The circuit -court has jurisdiction in, such actions (State v. Sams, 81 Ark. 39), but, except in the casé of county officers, suit must be instituted by the Attorney General. Appellee had the right to challenge the authority of the prosecuting attorney, even though he acted in the name of the -State. And since it appears that the- action was instituted without legal authority, the circuit court was -correct in dismissing the complaint.
• Affirmed. . - | [
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