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Smith, J.,
(after .stating the facts). This action was instituted under sections 1694 and 1695 of Kirby’s Digest, which, so far as they are relevant here, read as follows:
“Section 1694. If any person shall bona fide sell any tract or parcel of land, and shall make any written deed, conveyance, bond or other instrument in writing, assuring the title of suc'h land to the purchaser thereof, and shall afterward sell and convey such tract of land to any subsequent purchaser, whether the subsequent purchaser have knowledge of the previous sale or not, such person shall >be deemed guilty of a misdemeanor,” and fined not less than twice the value of the land so sold.
“Section 1695. Any person who shall'violate * * * the preceding section shall, in addition to the above fine * * * pay to every person so by him injured or defrauded by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action.”
The briefs contain an interesting discussion of the question whether the above statute is penal or merely remedial.
Appellee concedes that he could not recover if this statute was construed to be penal, and not remedial, but he insists that it is remedial in its nature and should receive a liberal construction to accomplish the purposes intended by the Legislature in its enactment.
But we think there can be no recovery in either event. There is no allegation here that appellant is insolvent, nor is there any allegation of any offer of performance on appellee’s part to which appellant can not respond, and, consequently, there is no allegation that appellee has been injured cr defrauded, unless the mere execution of the mortgage under the 'circumstances above stated constitutes an injury, or a fraud, within the meaning of the statute.
Appellee insists that a mortgage is such a conveyance of land as is comprehended within the phrase, ‘ ‘ and shall afterward sell and convey such tract of land to any subsequent purchaser.” But we do not agree with this contention. A mortgagee is not a purchaser in the strict legal sense of that term. It is true that this court said in the case of Perry County Bank v. Rankin, 73 Ark. 589, 592, that, “It is the rule in this State that a mortgage deed conveys to and vests in the mortgagee the legal title to the property described, subject to be defeated by payment of the debt.” But in whatever form it may have been executed, if it is in fact a mortgage, it is always subject to be defeated by the payment of the debt which it secures. In fact, this is a distinguishing and essential characteristic of a mortgage.
The words, “sell and convey,” are defined in Words & Phrases, and it was there said: “The ‘power to sell and convey’ does not confer the power to mortgage.” And, further, “A trust with power to sell out and out will not authorize a, mortgage, and a trust for sale, with nothing to negative the seller’s intention to convert the estate absolutely will not authorize the trustee to execute a mortgage. ’ ’ A number of cases are there cited in support of that text.
In the case of St. Louis Land & Building Assn. v. Fueller, 81 S. W. 414, the Supreme Court of Missouri had occasion to define the phrase, “sell and convey,” and it was there said:
“They (counsel) urge that the terms of the grant of power, ‘to sell and convey,’ should have been followed by the terms, ‘in fee.’ This suggestion is answered by the fact that the terms, ‘ sell and convey, ’ when applied to real estate, mean, in the absence of appropriate expressions in the instrument itself limiting and restricting such general acceptance of the meaning of such terms, a conveyance in fee; hence it follows that the addition of the words ‘in fee’ would give no additional force to the words used in the deed before us. The intention to authorize the conveyance of the entire estate, by the use of the terms in the grant of power, ‘to sell and convey,’ is made clear when considered in connection with the statute, which expressly declares the nature and character of title vested by a conveyance of real estate. The learned counsel for respondents very aptly 'applied the statute.” It is stated thus: “The Groff deed is dated February 4, 1874. The statute then provided that ‘ * # "* every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.’ That statute is in full force and effect today. 1 Eev. St. 1899, p. 1096, section 4590.”
The above section of the Missouri statutes which is quoted in part is so similar to section 733 of Kirby’s Digest, which section relates to the construction of conveyances, as to suggest that, if our statute was not copied from the Missouri statute, it was, at least, drawn to conform with it.
We conclude, therefore, that a mortgage is not such a conveyance, by one who has executed a previous agreement to convey, as subjects the mortgagor to the penalty of the statute.
As has been said, there is no allegation of any tender of performance on appellee’s part, nor of any refusal or failure to respond on appellant’s part; nor that appellee has been injured nr defrauded, except by the fact of the execution of the mortgage.
The judgment of the court Nelow is, therefore, reversed and the cause will be remanded with directions to sustain the demurrer. | [
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Smith, J.
Appellee recovered damages for an injury sustained by him, which he detailed as follows: He was -employed as a brakeman, and his run extended from Rogers to Fayetteville, -the entire length of appellant’s road, a distance -of 104 miles, and his train was a local freight train, which did the local switching at all stations. He had instructions from the conductor at th-e station of Highfill to set -out -two oars -at Springtown, -and upon the arrival of the train, at the last named station, he proceeded to execute the orders previously given him, and he further testified as follows: “I cut -the oar-s where I should, to-ok out the box car and spotted it, came back to get the flat car, and when getting ready to take out the flat car -the conductor gave -me the signal to couple in the air; I had left the switch unlocked to set -out the flat car, after I took out the box oar and spotted it, so when he gave me the signal I went over -the flat car to get to the switch to lock it, -and by -that time the train was in speed five or six miles an hour, and I had to run to catch it; I stumbled and fell -and the train ran over my foot; 1 left the switch unlocked to go back and put this other car in, as he had instructed me to set out two cars; he instructed me to set out the box ear first and spot it and to set out the flat oar in the clear; when I got over the flat oar to get to the switch, to lock it, I couldn’t go west on account of the cattle guard; the cattle guard was in bad condition; was just one step to the switch, so that throwed me to go east; I thought it was the safest to go on, so I went up there, and as I got in motion with the train'I hit a rock, missed my hand hold, stumbled and fell and the train run over my foot.” The rock over which appellee stumbled and fell was described as being about the size of a man’s head, and had been lying on the track for some days. It was shown that by the rules of appellant any employee would be discharged who left a switch unlocked.
It is said that the concurrence of the presence of the rock on the track and the premature signaling of the train to start, in view of the conductor’s change in the switching directions without advising appellee of that change, caused the injury.
A number of instructions were given at the trial at the request of both appellant and appellee, and it is conceded that the instructions are conflicting, in that the court submitted questions of assumed risk and contributory negligence, and by instruction numbered 5, given at the request of appellee, eliminated those questions from the consideration of the jury. It is urged, however, that the instruction given at the request of appellant was erroneous in submitting those questions to the jury, and that appellant can not complain because the jury failed to follow instructions which should not have been given. Instruction numbered 5 was as follows:
“The court instructs the jury that if you find, from a preponderance of the evidence, that the plaintiff sustained the injuries alleged in the complaint, by reason of the defendant’s conductor negligently causing the train on which plaintiff was employed as brakeman to move away from the station at Spring-town at a rapid rate of speed, while the plaintiff was on the opposite side of said train for the purpose of looking the switch and in the performance of the duties required of him, then you should find for the plaintiff.”
We will not set out the other instructions given and refused, nor the various exceptions to the action of the court in giving and refusing instructions, as our discussion of this fifth instruction indicates o'nr view of the law of this case.
Appellant’s railroad is more than thirty miles in length, and appellee, after having worked for more than sixteen hours, returned to his employment without having had eight hours’ rest. By sections 6652 to 6655, of Klrhy’s Digest, it is provided that where under the above circumstances, a servant is injured, and brings an action to recover damag’es resulting from any accident which occurs while the servant is so employed, the defense of contributory negligence shall not be interposed. And, in addition to the deprivation of this defense, the railroad becomes subject to a penalty to be recovered in a civil action in .the name of the State.
The above sections do not apply to passenger trains, and it is said that they are not applicable here because the train on which apellee was employed carried passengers. This, however, is not the test. This was a local freight train carrying a caboose, and such trains are required to carry passengers, but they are, nevertheless, freight trains. The Legislature, in exempting passenger trains, evidently had in 'mind that the trains on which this protection was needed were freight trains, which .might be broken up in transit and which would require switching.
An act numbered 88 was passed ,by the General Assembly and approved March 8, 1911. See page 55, of the Public Acts of 1911. This act was entitled, “An Act regulating liability of employers for injuries to employees,” and by its provisions undertook to confer a cause of action upon any employee injured as the result of the existence, or concurrence, of .any of those things there made the basis of a cause of action. Section 3 of this act is as follows:
“In all rights of action hereafter arising within or by virtue of this act or any provision of the same for personal injury to an employee, or where such an injury has resulted in his death, the fact that an employee may have been guilty of contributory negligence -shall not bar a recovery; provided, that the negligence of such employee was of a lesser degree than the negligence of such common carrier, its -officers, agents or -employees; provided, further, that no .such employee who may be injured or billed shall be held t-o have been guilty of contributory negligence in any case where the violation by such common carrier, its officials, agents or employees, -of any law enacted for the safety of -employees or persons contributed to the injury or death -of -such employee, and such employee -shall not be -held to have assumed the risk of ibis employment in any action arising -out of any of the provisions of this act. ’ ’
Section 1 of the act recites the “rights of action” referred to in section 3, but working an employee over time is not there named as one of these “rights' of action. ’ ’ Where there is a right of .action under section 1, that action can not'be defeated by the defense of assumption of risk and is not, necessarily, defeated because the servant may have been guilty of contributory negligence.
An injured employee might have a cause of action which was not created .by section .1 of the -above act, and his right to recover damages could not be defeated by the defense of contributory negligence where the employee had been worked overtime. In such a -ease the jury would not inquire whether the master’s negligence was greater than that of the servant, nor, indeed, would any inquiry be made about the -servant’s negligence, for that would be immaterial. The defense of assumption of risk would remain, but not that of contributory negligence.
But if a -right of action grew out of this Act 88, ■the defense of assumed risk is -denied the master, and the defense of contributory negligence is not available unless the negligence of the servant is greater than that of the master. But the right to pl-ea-d contributory negligence in such action is further limited by the proviso ‘ ‘ that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier, its officials, agents or employees, of any law enacted for the safety of employees or persons, contributed to the injury or death of such employee.” This last proviso, limiting the right to plead contributory negligence, does not read that that defense may not be interposed where the injury occurs while any law enacted for the safety of the employee is being violated, but its language is that such defense may not be interposed if.the violation of .such law contributed to the. injury or death of such employee. We conclude, therefore, that in any suit dependent upon section 1, of Act No. 88, the defense of contributory negligence is available unless the carrier is more negligent than the servant, or where the carrier is guilty of the violation of any law enacted for the safety of the employee, which violation contributed to the injury sued for.
If one would avail himself of the benefits of this Act No. 88, he must come within its terms, and we can not read into this act the provisions of sections 6652 to 6655, of Kirby’s Digest, for the purpose of depriving the carrier, against which suit is brought under the provisions of this Act No. 88, of the defense of contributory negligence, unless it be shown that working the servant overtime in some manner or degree contributed to his injury. In other words, the question of fact should be passed upon by the jury whether working the servant overtime in any manner contributed to bis injury, and if the jury should find that it did, then the defense of contributory negligence is not available. But under the facts of this ease the court should not have assumed, as a matter of law, that the defense of contributory negligence was not available to the appellant simply because the servant had in fact worked overtime.
Most of the legislation on'this subject is modeled after the Federal Employer’s Liability Act of April 22, 1908, and among the 'States which have enacted legislation patterned after that act is the State of Michigan, and, while onr not is not a copy of the Michigan act, it is so similar to the one of that State as to suggest that it served as a model for our statute. Still, changes of a nature so material were made that we can not apply the rule that, in adopting this statute from Michigan, we intended also to adopt the construction given the statute by the courts of that State.
Section 1, of Act No. 88, reads as follows:
“That every common carrier by railroad in this State, shall be liable for all damages to 'any person suffering injury while he is employed by such carrier, or, in case of the death of such employee, to his or her personal or legal representative, for the benefit of the surviving widow or husband and children of such employee; if none, then to such employee’s parents; if none, then to the next of kin of such employee, for such injury or death resulting in whole or in part for the negligence of any of the officers, agents, or employees of such carrier, or by reason of any insufficiency of clearance of obstruction, of strength of roadbed and tracks or structures, or machinery and equipment, of lights and signals in switching and terminal yards, or rules and regulations and of number of employees to perform the particular duties with safety to themselves and their co-employees, or of any other insufficiency; or by reason of any defect, which defect is due to its negligence in its cars, engines, motors, appliances, machinery, track roadbed, boats, works, wharves or other equipment.”
This legislation was first enacted in jurisdictions where the common-law rule in reference to fellow-servants was in force, and in the case of Seaboard Air Line Railway v. Horton, 233 U. S. 492, the court construed the phrase, “resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.” This quotation appears in the Federal Employers’ Liability Act, and it will be observed that our act copies that phrase. Interpreting the section of the Federal statute in which the above phrase appears the Supreme Court of the United States in the above cited case said:
‘ ‘ This clause has two branches; the one covering the negligence of any of the officers, agents, or employees oif the carrier, which has the effect of abolishing in this class of cases the common-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff; * * ,
There was the same necessity in some other jurisdictions for language of this .character to abolish the common-law rule in regard to fellow-servants. It is true there was no necessity in this State, as the common-law rule on this subject had been changed by previous legislation. While there was no necessity under the law of this State for this phrase to change the common-law rule in regard to fellow servants, yet ¡the language above quoted creates a right of action under this Act No. 88, where the servant’s injury was caused by the negligence of a fellow servant.
Having indicated our construction of this Act No. 88, there remains only the duty of applying that interpretation to the issues of this -case. We think the proof is sufficient to require the submission to the jury of the question whether, under the circumstances, the conductor was negligent in signaling the train to start in the manner in which he did, after having told appellee that two oars were to be spotted, and that without advising him of the change in the sivitching directions. No defect in the cattle' guard was shown. If this conduct of the conductor prevented appellee, while .himself in the exercise of due care, from performing his duties with safety to himself, then the conductor’s act was a negligent one, provided it was the .proximate cause of the injury. The jury should ibe told that, if these issues were found for appellee, his right of action could- not be defeated by the defense of assumption of risk, nor by the defense of contributory negligence, unless the negligence of appellee in performing his duties, in the manner in which he -did, was greater than that of the conductor, and subject to the further qualification that, if they should find that the fact that appellee had worked overtime contributed to his injury, then the degree of his negligence was immaterial and Ms right to recover could not be defeated 'by any proof of contributory negligence on Ms part.
We tMhk the presence of the rock is a fact to be considered by the jury in determining the question of appellant’s negligence and to be given such weight, if any, as it should have in the determination of that question. But we do not agree with appellee’s contention that the mere presence of the rock itself constituted a right of action under section 1 of Act 88. Appellee’s view is that the presence of the rock constituted an “insufficiency of clearance óf obstructions.” 'The phrase quoted evidently relates to obstructions of a permanent character. TMs view is sustained by the opirnon of the Supreme 'Court ,of Georgia, construing a similar statute in that State, in the case of Hubbard v. Central of Georgia Railway, 63 S. E. 19, 19 L. R. A. (N. S.) 738.
Prior to tMs legislation the law was that the carrier’s failure to exercise care to make the servant’s place safe did not sustain the right of recovery, where the servant was aware of this failure and pursued his employment after aoqMring tMs knowledge without any promise of rectification or repair. Under this act a continjimg duty resits upon the carrier to remedy “any insufficiency of clearance of obstructions,” and no knowledge of any failure to perform this duty imposes upon the servant any assumption of risk, and we tMnk- the phrase refers to anytMng that would impede the safe -operation of a train, or imperil the safety of one engaged in its operation.
The fifth instruction set out -above does not conform to the views here expressed, and the judgment of the court below is, therefore, reversed and the cause will be remanded for -a new trial. | [
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ESKRIDGE, J.
This is a motion made by Orson V. Howell, an attorney at law of this court, for a rule against Peter T. Crutchfield, the judge of the county court of Pulaski county, to show cause why a mandamus should not be granted by this court, commanding him to amend the record in a certain proceeding in the county court against O. V. Howell, for an alleged contempt offered by him to the county court. The plaintiff in this motion states in his affidavit that the record of the proceedings in the ease above stated is imperfect and incomplete, and entirely omits and fails to show several material parts of the proceedings, and mistakes others which were had in open court in the ease, and that he believes it to be material to his rights and privileges as a man, as an attorney at law, and as a citizen,, that a true and perfect record of all the proceedings in the case, upon two certain processes, purporting to be attachments against him, should be fully set forth in the records, of the county court. He further states that he applied to the judge of the county court, by motion in open court, to have the records-of the proceedings so amended as to have all the acts of the county court fully stated, but that the judge refused to hear his motion. The prayer is for a rule to show cause why a mandamus shall not issue to the judge of the Pulaski county court, commanding him at the next term of the court, to amend and alter the records of the last term, so as to-set forth fully the proceedings before men tioned, or to signify something to the contrary to this court.
A preliminary question touching the jurisdiction of this court, to grant a mandamus in this case, has been made, and it is this question alone that we are called upon to decide at present. The act passed on the 22d of October, 1828, by the legislature of this territory, contains the following provisions: “That from and after the taking effect of this act, the superior. court of this territory shall in all cases at law and equity be exclusively an appellate court, and shall not have original jurisdiction in any civil case, unless such as arise under the laws of the United States, or take cognizance of any criminal cases alleged to have been committed within this territory." Acts, 34. To enable this court to issue, then, a mandamus, it must be shown to be an exercise of appellate jurisdiction. In the case of Marbury v. Madison, 1 Cranch [5 U. S.] 137, the supreme court held- that a mandamus to the secretary of state was an exercise of original jurisdiction, and discharged the rule. In the case of Daniel v. Warren County Court. 1 Bibb, 496, the court of appeals of Kentucky, held that a mandamus is an original writ, not an appellate process; that it is an emanation from and an incident to original jurisdiction only; that in its nature it is not necessary to the revision of a cause already adjudged or decreed, but does in itself create that cause, and on that ground overruled the motion. These cases are in point to show that the motion for the rule must be overruled. | [
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BaTTlE, J.
This is a proceeding by certiorari to set aside an order of the St. Francis county court granting a new trial in a proceeding instituted by John B. Wilson to contest the election of John W. Aven to the office of treasurer of the county of St. Francis.
The proceeding to contest the election was commenced in the St. Francis county court some time in the month of September, 1892 ; and at the October term of the court, on the 25th of October, 1892, Wilson was adjudged to be elected county treasurer, and the certificate issued by the commissioners to Aven, showing that he was elected such treasurer, was cancelled by an order of the county court. After this the court adjourned until the 28th of October, 1892, and on that day again adjourned until the 31st of the same month. In the meantime, the term of the judge who presided on the 25th and 28th of October expired, and C. F. Hinton, his successor, qualified, and entered upon the discharge of the duties of the office. On the 31st of October, the day to which the court, adjourned, Aven filed a motion for a new trial, setting out the grounds on which the same was based, and on the same day the order made on the 25th of October was set aside, and a new trial was granted by the court, C. F. Hinton being the judge presiding.
On the hearing of the petition for the writ of certiorari, the circuit court set aside the order of the county court, which was made on the 31st of. October, for the following reasons: “1. None of the grounds or statements in said motion of J. W. Aven for a new trial were supported by any evidence. 2. The application for a new trial, and the order made thereon, were made without any notice to Wilson, and without allowing him or his counsel any opportunity to be heard. 3. C. P. Hinton, the county judge who granted the motion and order for a new trial, did not .preside in the trial of said, contested.election, was not present at the trial, and had no legal information concerning it, nor was evidence of any kind introduced to show that the statements or grounds of the motion for a new trial, or any of them, were true.” *
These findings of facts are not sufficient to sustain the judgment of the circuit court. If the county court had the power to grant the new trial, certiorari did not lie to set aside the order granting it. Did it have the power ?
The Code of Practice in civil cases in this state provides as follows : “Section 23. Probate courts, county and justices’ courts shall have jurisdiction as is now, or may hereafter, be conferred upon them respectively by law.”, “Section 24-. Each of said courts shall conform to the provisions of this Code as far as the same is applicable to them, or to any proceedings of which they have jurisdiction." “Section 780. This Code of Practice shall regulate the proceedings in all civil actions and proceedings in the courts of this state, and all laws coming in the purview .of its provisions shall be repealed.” “Section 796. The provisions of this Code shall apply to and regulate the proceeding's of all the courts of this state, though not expressly enumerated, and of all that may hereafter be created.”
Prom these sections it is apparent that the code was intended to regulate the pleading and practice in all the courts of this state, then or thereafter created. Among its provisions is the following: “A new trial is a reexamination in the same court of an issue of fact, after a verdict by a jury or a decision t>y the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party :
‘ 'First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion by which the party was prevented from having a fair trial.
"Second. Misconduct of the jury or prevailing party.
"Third. Accident or surprise which ordinary prudence could not have guarded against.
"Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice.
‘ 'Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract for the injury or detention of property.
"Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law*
"Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
"Eighth. Error of law occurring at the trial, and excepted to. by the party making the application.” Code, sec. 371.
After repeatedly saying that it shall regulate the pleadings and practice in all courts in this state, the Code undertakes to say wherein it shall not govern the proceedings in such courts. Sec. 806-836. Among these exceptions is section 817, which says: ‘‘A new trial or rehearing may be granted in courts of justices of the peace, upon motion made within ten days after a judgment or final order has been made or rendered, of which motion notice shall be given to the opposite party.” And this appears to be the only section of the Code which provides that the regulation of the practice in respect to motions for new trials by preceding sections shall not, as a whole, govern any court. From this we infer that all courts of original jurisdiction were vested with the power to grant new trials in the cases authorized by the Code.
The code expressly provides that the county courts of this state shall conform to it, so far as the same is applicable to them, ‘‘or to any froceedings of which they have jurisdiction.” Its object in allowing new trials, as shown by the causes for which they may be granted, is to secure a fair trial; to protect against ‘‘accidents or surprise which ordinary prudence could not have guarded against;” to correct errors which materially affect the substantial rights of parties ; to prevent a failure of justice; and to protect the rights of all parties concerned. That county courts should be enabled, so far as practicable, to accomplish these objects there is no room for question. Many of these causes, abuses, evils or errors, for which a new trial is allowed for the purpose of correcting or remedying, may occur in them. As they may; so'much of the Code as provides the remedy for their correction is unquestionably applicable to that court. It is true, they may be corrected by an appeal to the circuit court. But that does not render the remedy for their correction in the court in which they occur inapplicable to the county court. The terms of that court are more numerous than those of the circuit, and for that reason they may be more promptly corrected in the former court. The remedy by a new trial may be more expeditious and less expensive than an appeal to the latter court, and for that reason, and because it is an appropriate remedy, should be allowed in the county court.
Appellee contends that the power to grant new trials should not be extended to contests of elections, because the legislature has “prescribed in express terms the manner in which a contest over the fairness and result of an election should be conducted, and conferred upon the county court special powers, distinct from and independent of its constitutional jurisdiction, to be exercised in the summary way pointed out by the statute.” This contention is based on sections 2697, 2698 and '2699 of Sandel’s & Hill’s Digest. But these sections do not provide a complete remedy for such contests. The proceedings prescribed by them are incomplete. Por instance, section 2697 provides that the contests of the elections of the couuty treasurer, and of other officers named, shall be before the county court, and the person contesting “shall give the opposite party notice in writing ten days before the term of the court at which such election shall be contested.” But it does not.say by whom and in what manner the notice shall be served ; and it says “the parties shall be allowed process for witnesses,” but does not say by whom and in what manner the process shall be served, or how the witnesses shall be compelled to attend. And section 2698 says that “either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial,” but does not provide by whom and in what manner they shall be taken. In none of .the contests provided by these statutes is there anything said about an appeal, notwithstanding the constitution of the state ordains that “in all cases of contest for any county, township or municipal office, an appeal shall lie at the instance of the party aggrieved, from any inferior board, council or tribunal, to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases, and on such appeals the case shall be tried de novo." These omissions clearly show that the statutes relied on were never intended to prescribe the only proceeding that shall be followed in contests for elections, but left other statutes consistent with them, and appropriate to govern in such cases.
In contests of elections the same object is to be gained, and the same purposes are to be subserved, by a new trial as in other cases in the county court. It is true that, in election as in all other cases, the parties “ought to obtain a speedy trial, conformably to the laws but in no case should the forms of law be made subservient to the purposes of injustice.
In the motion filed by Aven in the county court he stated, among other things, that on the 24th of October, 1892, the day when the contest of his election by Wilson was heard, he “was unable to attend court by reason of his bodily infirmities, and that, while he was so disabled, * * * the attorneys to whom he had entrusted his defence in his cause were likewise unable to attend the court by reason of sickness and other unavoidable circumstances, all of which was properly brought to the knowledge of the court by proper motion ; yet, notwithstanding these facts thus known to the court, the hearing of this cause was proceeded with, which contestee says was an abuse of the power and the discretion of the court; * * * that he was legally elected to the office of county treasurer, and that, if given an opportunity, he can establish his right and title to said office.” Upon this statement, which was sworn to, the motion was granted. In this the appellee says the court erred, because the motion was not filed within three days after the hearing; that no notice was given to the contestant of the filing; and the presiding judge, not having heard the contest, granted, the motion without evidence of its contents. But this can avail nothing in this proceeding. If the county court had the jurisdiction to grant the new trial, as it did, and the statement of appellee as to the time of the filing of the motion, the failure to give notice, and the granting of it without evidence, be true, and the action of the court in that respect be irregular or illegal, it merely committed an error, and certiorari did not lie to correct it. If appellee had been aggrieved by the final judgment in the case, his remedy was by appeal. Gibson v. Superior Court, 24 Pac. (Cal.) 721; State v. City of Duluth, 60 N. W. (Minn.) 546.
The judgment of the circuit court is reversed, and the petition is dismissed.
Wood and Hughes, JJ., dissent. | [
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Riddick, J.,
(after stating the facts.) It is contended by petitioner that the verdict of the jury and the judgment of the circuit court ordering the suit first brought by Pipkin, as administrator, abated, must be treated as in effect a judgment at bar. We do not agree with this contention. It may be true, as contended, that petitioner, to defeat that, action,'set up in effect the ancient plea of ne unques administrator, and we may even concede such a plea to be a plea in bar, but the finding of the jury does not sustain it.
An essential part of such a defense to defeat an action like the one brought by Pipkin, as administrator, is the allegation that the plaintiff “is not now and was not at the commencement of this suit administrator,” etc. 3 Chitty’s Pleadings, 941.
The answer of Hill alleged that the letters of administration granted Pipkin were void, and had been so declared by the court that issued them, and that he had never been legally appointed administrator. It, in effect, alleged that Pipkin was not administrator then, nor such at the commencement of the action. But the finding of the jury does not support the allegation that Pipkin was not administrator at the time the suit commenced. On the contrary, they found that he was such administrator, but that his letters had since been revoked. In other words, that his powers as such representative had ceased. This finding of the jury and judgment of the court that Pipkin’s powers as a personal representative had ceased after the commencement of the action, brought the case squarely within the scope of sec. 5925 of Sand. & H. Digest. That section is as follows : “When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survives in favor of or against his representatives or successors, the action may be revived and proceed in their names.”
Pipkin, being afterwards reinstated as such administrator, became his own successor ; and we think the court properly held that the action might be revived, and proceed in his name as administrator of Frnest.
We have not cpnsidered the question whether, even had the order of revivor been improperly made, the writ of prohibition would have been the proper remedy. For the reasons above stated, the petition for such writ must be denied. | [
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Riddick, J.,
(after stating the facts.) We think that the evidence was sufficient to support the verdict. Without discussing that point, we pass to the question whether the court properly admitted testimony tending to show that the appellant failed to post notice of the animal killed. If the failure to post such a notice was a question at issue in the case, the evidence was proper; otherwise, not. “Of all the rules of evidence,” says Mr. Best, “the most universal and the most obvious is this — that the evidence adduced should be alike directed and confined to the matters which are in dispute, or which form the subject of- investigation. The theoretical propriety of this rule,” he adds, “never can be matter of doubt, whatever difficulties may arise in its application.” Chamberlayne’s Best on E}v. sec. 251.
There was no written pleading filed by appellant, and we must, to determine the facts in dispute, look to the statement filed by plaintiff. As a rule, no formal pleadings are required in actions before, justices of the peace; but the plaintiff, in obedience to the statute, filed “a short written statement of the facts” on which his action was founded. In this statement there is no reference to a failure to post a notice of the animal killed. No such fact is alleged, and it was therefore not in issue. No such question was under investigation, and the testimony was irrelevant and improper, and should not have been admitted over the objection of the appellant.
The introduction of this evidence, and the charge of the court in reference thereto, caused the jury to assess-double damages against the appellant. The judgment will therefore be reversed, and the cause remanded for a new trial, unless the appellee shall within thirty days-enter a remittitur of eighteen dollars, under the rule in. such cases. | [
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Riddick, J.,
(after stating the facts). It was held by this court in Railway Co. v. Ross, 56 Ark. 271, under evidence substantially the same as we have here, that the deceased, Ross, was guilty of contributory negligence, and that the defendant company was not liable for his death.
After again considering the evidence, we adhere to the conclusion arrived at in that case. It is contended that the employees of the railway company discovered the dangerous position of Ross in time to have avoided the injury; that they negligently failed to do so, and that for this reason the appellant is liable, notwithstanding the contributory negligence of the deceased. The evidence tends to show that one of the brakemen noticed the danger to which Ross was exposed, and that he attempted to signal the engineer to stop the engine, but this brakeman was not upon the engine, and had no control over it, except by signals, which he tried to give. There is nothing to show that either tbe engineer or fireman in charge of the engine had any knowledge of the danger to which Ross was exposed until after he was struck by the engine. The engineer may have been negligent in failing to keep a lookout and to observe signals, but, as the deceased was himself guilty of negligence directly contributing to his injury by stepping upon the railway track close to a moving engine, which was in plain view, the company is not responsible for his death.
The contributory negligence of Ross is a sufficient defense against the negligence of the engineer in failing to discover the dangerous position in which Ross had suddenly and through inattention placed himself. Had the employees .of the company discovered the danger of Ross in time to have avoided the injury by the use of proper care, they should have done so; but they had no notice that Ross would thus expose himself, and the company is not liable for the failure of its employees to discover a danger to which Ross was exposed by his own negligence. Little Rock, &c., R. Co. v. Pankhurst, 36 Ark. 377; St. Louis, &c., R. Co. v. Freeman, id. 46; Little Rock, &c., R. Co. v. Cavenesse, 48 id. 129; Bauer v. Railway Co. 46 id. 399; St. Louis, &c., R. Co. v. Wilkerson, id. 522; St. Louis, &c., R. Co. v. Monday, 49 Ark. 263.
Counsel for appellee have discussed the different questions in this case in an able and admirable brief. We have given it careful attention, but we remain of the opinion that the evidence, looked at from the point of view most favorable to appellee, does not make out a case against the railway company. In our opinion the death of Ross was due, not to the fault of the employees of the railway company, but to an accident such as may at times be brought upon one by even a moment’s inattention, while standing upon a railway track. We think that the circuit court should have directed a verdict for the defendant. Catlett v. Railway Co. 57 Ark. 461. As the facts in the case seem to have been fully developed, it would be of no benefit to prolong this litigation. The judgment of the circuit court is reversed, and the case dismissed. | [
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Battle, J.
^The water boundaries of land on running streams, whatever they may be in the beginning, whether the thread of the stream, the water’s edge, ordinary high -or low water mark, always remain the same when they change gradually, as by the process of accretion or attrition. They gradually shift as the water recedes or encroaches; and the area of the riparian owner’s possession varies as they change by thi^/y process. Whatever constituted them at first still cori^ stitutes them so long as it remains permanent or shifts gradually and imperceptibly. Hence, land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made. This rule has been vindicated by , some one on the principle “that he who sustains the burden of losses and of repairs, imposed by the contiguity of water, ought to receive whatever benefits they may bring by accretion. By others it is derived from the principle of public policy that it is the interest of the community that all land should have an owner, and most convenient that insensible additions to the shore should follow the title to the shore itself.” New Orleans v. United States, 10 Pet. 662, 717; Jefferis v. East Omaha Land Co. 134 U. S. 178; Nebraska v. Iowa, 143 U. S. 359; Gould on Waters, sec. 155; 2 Blackstone, 262.
In order to constitute an accretion, it is not necessary that the formation be indiscernible by comparison at two distinct points of time. It is true that it is an addition to riparian land, “gradually and imperceptibly made by the water to which the land is contiguous;” but the true test “as to what is gradual and imperceptible-in the sense of the rule is that, though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on.” Rex v. Lord Yarborough, 3 B. & C. 91, is a good illustration. In that case the court held that 450 acres of land formed by the gradual deposit of ooze, sand and soil from the sea belonged to the owner of the adjoining land as an accretion. Other cases to the same effect may be cited. Jefferis v. East Omaha Land Co., 134 U. S. 178.
What has been said of accretions is equally true of the loss suffered from the gradual encroachments of running streams. As their beds change imperceptibly by the gradual washing away of the banks, the boundary lines of contiguous lands change with them; and the owner, having, in the beginning, acquired no fixed freehold in them, but one that shifted with the changes, is limited and confined, in the extent of his rights and possession, by the new boundaries. St. Louis v. Rutz, 138 U. S. 226, 245; Camden & Atlantic Land Co. v. Lippincott, 45 N. J. L. 405; Welles v. Bailey, 55 Conn. 202; Steele v. Sanchez, 72 Iowa, 65; Niehaus v. Shepherd, 26 Ohio St. 40; Wilson v. Shiveley, 11 Oregon, 215; Dunlap v. Stetson, 4 Mason, 349; In re Hull & Selby Ry. 5 M. & W. 327; Scratton v. Brown, 4 B. & C. 485, 10 E. C. L. 670; Foster v. Wright, L. R. 4 C. P. D. 438; Gould on Waters (2 ed.) sec. 155.
In Welles v. Bailey, 55 Conn. 292, in speaking of rights acquired by changes gradually made by rivers, it is said: “If a particular tract was entirely cut off from a river by.an intervening tract, and that intervening tract should be gradually washed away until the remoter tract was reached by the river, the latter tract would become riparian as much as if it had been originally such. This follows necessarily from the ordinary application of the principle. All original lines submerged by the river have ceased to exist; the river is itself a natural boundary, and every changing condition of the river in relation to adjoining lands is treated as a natural relation, and is not affected in any manner by the relation of the river and the land at any former .period. If, after washing away the intervening lot, it should encroach upon the remoter lot, and should then begin to change its movements in the other direction, gradually restoring what it had taken from the remoter lot, and finally all that it had taken from the intervening lot, the whole, by the law of accretion, would belong to the remoter but now proximate lot. Having become riparian, it has all riparian rights. This general principle is recognized by all the text writers, and by numerous decisions of the English and American courts. The river boundary is treated in all cases as a natural boundary, and the rights of the parties as changing with the change of its bed.”
In Foster v. Wright, L. R. 4 C. P. Div. 438, “the plaintiff was lord of a manor held under grants giving him the rights of fishery in all the waters of the manor, and, consequently, in a river (Eune) running through it. Some manor land on one side, and near, but not adjoining, the river, was enfranchised, and became the property of the defendant. The river, which then ran wholly within lands belonging to the plaintiff, afterwards wore away its bank, and by gradual progress, not visible, but periodically ascertained during twelve years, approached and eventually encroached upon the defendant’s land, until a strip of it became part of the river bed. The extent of the encroachment could be defined. The defendant went upon the strip and fished there.” The court held ‘‘that an action of trespass against him for so doing could be maintained by the plaintiff, who had the exclusive right of fishery which extended over the whole bed of the river, notwithstanding the gradual deviation of the stream on to the defendant’s land.” Judge Bindley said: ‘‘Supposing, therefore, that the plaintiff’s right to fish in the Bune depends on his ownership of the soil of the river bed, I am of the opinion that the plaintiff has that right; for, if he was the owner of the old bed of the river, he has day by day and week by week become the owner of that which has gradually and imperceptibly become its present bed; and the title so gradually acquired cannot be defeated by proof that a portion of the bed now capable of identification was formerly land belonging to the defendant or his successor in title.”
In Cox v. Arnold, 31 S. W. Rep. 592 (which was decided by the supreme court of Missouri), it appeared that ‘‘a portion of a fractional section bordering on a navigable stream was.-washed away by the current;” and that ‘‘an accretion formed from an island in the river, and extended within the boundaries of the section, but did not connect with the new shore line.” The court held that the owner of the section had no title to any part of the accretion. Justice Burgess, in delivering the opinion of the court, said : ‘‘It is well settled in this state, by an unbroken line of decisions, that a riparian proprietor on a navigable stream only owns to the water’s edge. * * * * When a riparian owner becomes the owner of land, he acquires, as incident thereto, without price, whatever may be added to it by gradual and imperceptible accretion, while, at the same time, he assumes the risk of losing it all by its being gradually washed away by the waters of the river ; but his line always remains at the water’s edge, wherever that may be. His line expands as the waters recede and accretions form to his land, and contracts as the waters encroach upon and wash away his land. The only way that plaintiff could have regained what land he had lost by its being washed away, and its situs submerged by the waters of the river, was by gradual and imperceptible accretion, beginning at his line, at the water’s edge. In this way he would become the owner, and entitled to the possession, of all land accreted to his original tract, or that portion of it which had not been washed away. Plaintiff’s line being at the water’s edge, he was not entitled to recover in this action, notwithstanding the land began to re-form within the original survey of said quarter section, at a place where the land was, at the time of said survey, uncovered by water ; and it makes no difference that defendant Naylor may not be the legal owner, or that he may be in its wrongful possession.”
In St. Louis, &c. Railway Co. v. Ramsey, 53 Ark. 314, it was held by this court that “a riparian owner upon a navigable stream, deriving title from the United States” -to lands in this state, “takes only to high-water mark, and not to the middle of the stream, the title to the bed of the stream being in the state;” and that this high-water mark “is to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation and the nature of the soil.” According to the cases we have cited, the high-water mark, as thus defined, being the boundary line of the riparian owner in this state, is the point at which the formation of all lands acquired by him by accretion must begin. A formation of alluvion beginning at any other point would belong to the state or other party. In that case the gradual and imperceptible addition, which is necessary to constitute an accretion, would be lacking.
The reverse of what has been said of accretions and erosions is true of avulsions. Where a stream which forms a boundary line of lands from any cause suddenly abandons its old, and seeks a new, bed, or suddenly and perceptibly washes away its banks, such change of channel or banks (if its limits can be determined) works no change of boundary. The owner still holds his title to the submerged land. If an island or dry land afterwards forms upon it, the same belongs to him. St. Louis v. Rutz, 138 U. S. 226; Gould, Waters, (2 ed.) sec. 158, 159, and cases cited.
The burden in this case was on the plaintiff to prove that he was entitled to the land in controversy. The evidence showed that it was entered in November, 1848, and contained at that time 154 acres ; and after that a large portion of it “caved” into the Mississippi river. There was no satisfactory evidence as to how large this portion was in excess of 35 acres, or any evidence as to how long it was in caving, or whether it caved gradually and imperceptibly, or vice versa-, or that the land in controversy was added to his own by accretion, beginning at his line, at high-water mark. He failed to sustain his claim.
The instructions given to the jury were fatally defective. It is unnecessary to point out the defects, as we have already said what the law governing the case is.
Reversed and remanded.
Riddick, J., disqualified. | [
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Bunn, C. J.
Sam J. Churchill executed to appellant his two promissory notes, in the following form : “[$1083.33] — Little Rock, Ark., Jan. 1, 1890. On or before the 1st day of January, 1892, for value received, I promise to pay H. M. Rector one thousand and eighty-three dollars and thirty-three cents, with interest at the rate of ten per cent, per annum from date until paid ; interest payable annually. As witness my hand, the date above written. Sam J. Churchill.” Upon this note the appellees made the following guaranty : “We guaranty the payment of the interest on the above note. [Signed] McCarthy & Joyce.”
“It is agreed that the two notes were given by Sam J. Churchill for a lot of stock and farming implements on what was known as the plaintiff’s farm, in Pulaski county, Arkansas, which he had leased from the plaintiff for three years from date of notes, and that the” said Sam J. Churchill also executed a mortgage on said stock and property to secure the said notes ; that the said Sam J. Churchill abandoned the Rector farm, which he had leased, and failed to pay the first note due for said stock, and thereupon the plaintiff, ELM. Rector, through the trustee in the deed of trust securing said notes, took possession of the said stock and farm property, and sold it, and appropriated the proceeds in part payment of the mortgage debt. This sale was had in February, 1891, and by said sale $173.78 was paid on the note in suit first maturing, such payment being credited as of February 17, 1891.
“It is further agreed that the guaranty of interest, as written upon said notes, was written by the defend ants in due course of their business as merchants, and for the purpose of enabling Sam J. Churchill to obtain the stock and farm implements for the purpose of farming, in order that he might have an opportunity thereby to pay certain prior indebtedness which he owed the guarantors.
“It is further agreed that no action has been taken by the plaintiff, H. M. Rector, to enforce the collection by law of the said notes against Sam J. Churchill since their maturity, and that the said Churchill has been entirely insolvent, and without visible property, since the maturity of said notes and since said mortgage sale.”
Appellant sued the appellees for installments of interest accruing before and after the maturity of the notes, and on the trial before the court, sitting as a jury, asked the following declarations of law: “The guaranty in suit is a continuing guaranty, and running until the notes are paid.” The court refused this, and declared that the guaranty ran only until the maturity of the notes, and gave judgment only for the interest accruing before maturity. The plaintiff saved proper exceptions to the ruling, filed a motion for a new trial, saving all points, and, this being overruled, excepted, filed his bill of exceptions, and appealed.
Thus it will appear that the only controversy in this case is, whether or not one who guaranties the payment of the interest on a promissory note is bound for the payment of the interest that may accrue after the maturity of the note. There are few cases in the books that bear directly upon this point, although there . is no want of authorities that indirectly influence the discussion of it. And from these we gather that the courts have adopted certain rules by which the contracts of sureties and guarantors are to be construed; and some of these rules briefly stated are: that á surety or guarantor is, first of all, a favored suitor; that the obligation of his contract will not be extended beyond its plain and obvious meaning; and when there is a doubt and uncertainty as to the meaning, growing out of an ambiguity of language that makes construction necessary, the doubt will be resolved in favor of the surety or guarantor, for the reason that he is not, and can never be, the full recipient of the consideration which has accrued or may accrue to the principal debtor, and, further, because his situation is comparatively a dependent one, since he does not enjoy the opportunity of protecting himself that belongs to the other parties to the contract.
We take it, therefore, that courts are to construe the contracts of these favored suitors, not exactly by the same rule as they would construe the contracts of the principal parties to the contracts. Thus while, as between these principals, the contract is to be construed so as to express the meaning and intention of both parties to it, in the case of the surety or guarantor that construction is to be given to his contract which will cause it to express his meaning ánd intention, and this intention to be.such as the guarantied party should have reasonably attributed to the guarantor in making the contract, judging from the circumstance surrounding and the object to be attained. 1 Brandt, Surety-ship & Guaranty, sec. 122, 123, 156.
The principle announced is more readily understood by illustration than by mere general definition of the obligation. It would lengthen out this opinion too much, of course, to pursue the argument by that method. Cases wherein the contracts were held to be continuing are cited and commented upon in Brandt, Suretyship & Guaranty, from section 157 to 161, inclusive ; and, when not continuing, from section 161 to 165. In section 166 of the same book, this general principle is announced : “When the words of the con dition of a bond are general and indefinite as to the time during which the surety shall remain liable, if there is a recital in the bond, specifying the time during which the prescribed duty is to be performed by the principal, the general words will be limited by the recital, and the surety will only'be liable for the time therein specified.” Thus it is said when an officer lawfully holds beyond the term for which he was elected or appointed, the surety on his official bond will not be bound for his acts or defaults after the expiration of the term for which he was elected or appointed. Of course the recitals of the bond itself might be made to cover the additional time.
In Hamilton v. Van Rensselaer, 43 N. Y. 244, where, Waddington and two others being indebted to the plaintiff’s assignor in the sum of $10,000, it was agreed, in July, 1854, that he would be released from this joint obligation upon executing and delivering his bond for one-third of said amount, payable in January, 1861, with semi-annual interest, and defendant’s guaranty of payment of the interest, which was done. The guaranty by defendant was as follows, endorsed on the bond given : “Nor value received, I guaranty the punctual payment of the interest on demand in default of its payment by Mr. Waddington.”
The question was whether defendant was bound for the interest beyond the date of the maturity of the bond. Held, that he was not. After adverting to the strict legal doctrine that it is only interest accruing before maturity of the obligation that is denominated interest in the true sense, and that that which accrues after-wards is, strictly speaking, damages for breach of the contract of payment, and also to the contention of plaintiff “that in construing the contract it is not to be supposed that the parties-had knowledge of or reference to these legal distinctions when the contract was made, and that business men regard the sum recoverable after the principal is due, in their dealings with each other, as interest in the ordinary sense of the term, and not as compensation by way of damages,” Chief Justice Church, in delivering the opinion of the court said : “Conceding the soundness of this position (of plaintiff’s counsel) these recognized distinctions may be resorted tO' by the defendant to prevent a technical or arbitrary construction against him. The true rule of construction undoubtedly is that the intent of the parties, to be gathered from the language and surrounding circumstances, is to prevail. The intent of the defendant, ascertained by legal rules, was to agree to pay the interest expressly provided for in the bond only; but when the plaintiff urges that the defendant has employed general words guarantying the payment of interest upon the bond without limitation, and that these words include interest after as well as before default, and claims to enforce the rigid rule of liability therefor, it is pertinent to answer that, by strict legal rules, interest, as such, cannot be recovered after default in the payment.of the principal, and that such interest is not, therefore, within the language of the contract.” The learned judge continues : “We do not place the decision upon this narrow ground, but prefer to rest it upon the position that, by the plain and ordinary meaning of language used in the contract, when applied to the facts existing at the time it was made, the interest recoverable after the principal became due, whether it is regarded as interest upon a continuing contract or as damages for its ■ non-ferformance, was not in the contemplation of the parties at the time, and was not interest specified and provided for in defendant’s contract. The construction contended for by plaintiff might render the contract as burdensome as if it had been a guaranty of the payment of the principal itself. The defendant might never be able to discharge the obligation, except by the payment of the principal, and in that case the result would be to compel him substantially to perform a- contract which, it is conceded, he never entered into.” The same argument, we think, is applicable to the case now under consideration. We cannot conceive the idea that, if, at the time of making the guaranty, the appellee had even had an intimation that his obligation would be sought to be extended in the end, he would ever have entered into it. It follows, therefore, that, if bound at all, it is not because he so intended when he entered into the contract, but because of a contingency which some technical rule required him to anticipate and provide against.
It seems to us that a guarantor of the payment of interest only, — a mere incident of the debt, — as in this case, is entitled to even greater consideration at the hands of the creditor than one who has guarantied the whole debt; and the reason is not far to seek. Such a guarantor cannot (if the theory of plaintiff be correct) protect himself by the usual statutory provisions, and is at the mercy of both creditor and debtor — wholly subjected to the consequences of the neglect of the one, and the failure of the other.
The principle announced in the case of Hamilton v. Van Rensselaer, supra, was. re-asserted in Melick v. Knox, 44 N. Y. 676, except that in the latter case the theory that interest accruing after maturity is not in fact interest, but damages, which seems to have been in effect discarded as a vital principle in Hamilton v. Van Rensselaer, is maintained. If that theory be true, of course it is an additional ground for the affirmance of the judgment in the case now under consideration. However, as we understand it, to break the force of this theory, appellant’s counsel call our attention to the fact that, as a settlement of a controversy once pending here, this court has in several cases declared it settled law with us that, where the conventional rate of interest merely is stipulated, and no words employed to indicate the co-existence of the rate of interest with the debt, the conventional rate ceases at the maturity of the debt, and the legal rate then begins; but that, on the contrary, when words are employed indicating the intention of the parties to have been that the conventional should be the rate until the debt should be paid, the interest accruing after maturity is in fact interest, and not damages, because it is so declared by express contract. There is force in this argument, but we are inclined, after all, to the opinion, in view of the peculiar language of our constitution, and the object sought to be attained in the cases referred to, that the ■decisions of this court therein were intended to extend no further than to determine what should be the percentage before and after maturity in any given case; and that the court in none of these cases had in con-? templation the distinction between the name and meaning of this percentage before and the same after maturity of the debt; and consequently, the theory existing before the decisions as to this distinction remains the same with us, whatever that may have been. But this is only one of the grounds suggested by the courts as a basis for the rule contended for by appellee.
The case is not altogether free from doubt, but, from all the authorities directly in point we are able to present on the subject, and from reason equally as cogent for the position of the court below, if not more so, than for the opposite one, we are of . opinion that there is no error in the judgment of the court below, and the same is therefore affirmed. | [
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Wood, J.
This is a suit to annul a decree of confirmation of the Benton chancery court. The bill, after setting out the tax title which was confirmed, alleges, inter alia, “that said decree is null and void, and obtained without legal notice of the intention to make application for said confirmation decree at said term of court, and is a fraud on this plaintiff’s rights;” “that the notice given by the defendant that application would be made at the spring term, 1891, for said decree failed to state, in the same, by what authority and under what authority said tracts of land were sold; ” “that said notice failed to state the nature of the title by which said tracts were held;” “that six months had not elapsed from the last publication of said notice until the first day of the spring term, 1891, of this court,” etc. The bill further alleges that the plaintiffs each have a good, valid, and meritorious defense to the petition for confirmation of the tax title, and then proceeds to set out several, and, among others, “that the said delinquent list for said year was not published for two weeks next before the day of sale; ” “because the collector sold said tract of land for a greater sum than was due on it for taxes, penalty and costs,” etc.
The bill, with sufficient formality, alleged facts which, if true, should have avoided the decree of confirmation. The demurrer admitted their truth, and therefore it should have been overruled. True, the bill does not refer to and make the notice in the suit for confirmation an exhibit, but it was not- fatally defective on that account, as that was a matter of proof. And the court may have had a defect in this respect, if any existed, cured upon motion. Henry v. Blackburn, 32 Ark. 450; Newman, Pl. & Pr. 257; Nordman v. Craighead, 27 Ark. 369. Reversed, with directions to overrule the demurrer. | [
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Smith, J.,
(after stating the facts). Appellant complains of instruction No. 8, set out in the statement of facts, and says that it was erroneous and prejudicial because it contains a comment upon the evidence. We think the instruction was an improper one, but we can not say that it was prejudicial, as there were circum stances which were not only suspicious but which are, in our opinion, legally sufficient to sustain a verdict of guilty; and, as the defendant undertook to explain away these circumstances and to show that, although the crime of lareency had been committed, that he had no guilty part in its commission, it was the province of the jury to determine whether or not any of these statements were false, contradictory or improbable, and, if so, the jury had the right to consider that fact in determining the guilt or innocence of the accused. This instruction did not tell the jury the weight to attach or the effect to give to their finding, if one was made, that defendant had made false, contradictory or improbable statements, but told them merely that if they so found, they might consider that fact; and we conclude, therefore, that the in-' struotion was not prejudicial.
The instruction No. 1, requested by appellant, was a proper instruction under the allegations of the indictment, .and might very well have been given, but the purport of this instruction was to charge the jury that it was necessary to find that the defendant was present at the time the animal was stolen, and if that fact did not appear from the evidence beyond a reasonable doubt, that they should return a verdict of not guilty. But the instruction numbered 7, given by the court, so stated the law to be, and the jury could have been left in no doubt that they must find, before they could convict the defendant, that if the defendant did not himself steal this steer, he must have .been present when the same was stolen, aiding, abetting and assisting in such stealing.
The second and third instructions requested by appellant deal with the question of asportation, and were both refused by the court. The court gave an instruction in the language of the statute, defining .the crime of larceny. And under the facts of this case, we think there was no error in refusing to give the requested instructions, if they were conceded to be correct declarations of law, because they were abstract. Appellant does not deny driving the steer into his father’s lot; and this was, of course, a sufficient asportation to constitute the crime of larceny. It is true, lie says, there was no connection between that act and the subsequent killing of the animal ; but that was the chief question at issue in the trial, and the verdict of the jury is conclusive upon that question of fact. The jury must have found that appellant drove the animal into the lot for the purpose of subsequently killing it, and that this was done under the cpver of darkness at the first favorable opportunity, and that he was present when it was killed, and that, if he did not himself kill it, he advised that it be done, encouraged and assisted those who did it, and this evidence, if true, is sufficient to 'Sustain the allegation of asportation.
Appellant also complains of the action of the court in refusing to exclude the testimony of the witness, Charles Brammer, in regard to the loss of a certain hog owned by him. But, as has been stated, the proof shows that the hog was killed and 'butchered at about the same time and near the same place that the steer was, and that both animals were loaded into the wagon and taken to Mulberry, and this evidence is competent as bearing upon the question of appellant’s intent. In Rapalje on Larceny and Kindred Offenses, § 200, it is said: “On the question of intent, or if of the res gestae, proof of the stealing of other property than that for which the defendant is on trial may be admissible. Thus, in a prosecution for the theft of .a horse, it is not error to admit testimony as- to the contemporaneous theft of .a saddle and other articles, in the same. neighborhood, where the court charges the jury that such evidence can not be considered as tending to show the theft of the horse, but only as tending to show the intent of defendant in whatever action they may find from the evidence was done by him. And on trial for cattle theft,' evidence of the theft of others than those charged may be considered, if alike involved in the res gestae, to show guilty knowledge and intent.”
And in section 201 of the same text, it was further said: “Under an indictment for larceny, evidence of the subject-matter of another indictment for laroeny may he admitted where the two offenses are so connected as to he parts of the same transaction; as where two horses belonging to different persons are stolen by conspirators in pursuance of a previous design.”
. Finding no error, the judgment of the court below is affirmed. | [
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Wood, J.,
(after stating the facts). 1. Appellant contends that Moss was a necessary party, and that the court erred in overruling its motion to have him made a party. The constitution and by-laws of a fraternal order become a part of the contract of insurance and are binding on the order unless inconsistent with the terms of the benefit certificate. Supreme Royal Circle of Friends of the World v. Morrison, 105 Ark. 140. The clause of th^ Constitution entitling the member to the amount of his certificate when he became afflicted with consumption m its last stage, is not in conflict with any provision of the benefit certificate sued on. Therefore, Cole was entitled to the amount of his certificate when he became afflicted with consumption in its last stage. Under the terms of the contract with appellant, the right of Cole to the amount of his benefit certificate vested the moment he became afflicted with consumption in its last stage. If Cole had died without claiming the amount of his certificate under the “consumption” clause, this would have been a waiver by him of his rights under that clause. In that event, Moss would have been entitled to claim the amount of the certificate. But Cole having the right to the amount and having asserted such right, by suit, at his death the right survived to his estate. Therefore, the court did not err in overruling appellant’s motion to make Moss a party. Under the provisions, of section 6298, of Kirby’s Digest, the court properly designated a special administrator to represent the estate and to continue the litigation for its benefit. Moss, the beneficiary named in the certificate, had no vested interest in the amount of Cole’s certificate. Cole had the right under the by-laws to change the beneficiary at any time, and his act in claiming the amount for himself, under the .“consumption clause,” excluded any rights that Moss otherwise would have had at Cole’s death. See, Ross v. Rogers, 96 Ark. 154; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425.
2. The issue as to whether or not Cole had violated the terms of the warranty by the habitual use of intoxicating liquors was submitted to the jury upon instructions in conformity with the law as announced in Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132. The appellant contends that there was no evidence to support the verdict on this issue. While the preponderance of the evidence was against the finding of the jury, it can not he said that there was no evidence to sustain the verdict, The question for us is not whether the verdict is against the weight of the evidence, but whether there is any le gaily sufficient evidence to sustain it. St. Louis & S. F. Rd. Co. v. Kilpatrick, 67 Ark. 47; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; Scott v. Moore, 89 Ark. 321; F. Kiech Mfg. Co. v. Hopkins, 108 Ark. 578-591. There was such evidence. The judgment is therefore affirmed. | [
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Hart, J.
Appellee sued appellant to recover the penalty provided by section 6620 of Kirby’s Digest for charging a greater compensation for the transportation of passengers than allowed by the statutes of the State, and recovered judgment. To reverse that judgment, appellant prosecutes this appeal. The facts are as follows:
Appellant has a continuous line of railroad from Fort Smith, Ark., to Hot Springs, Ark. Fort Smith is situated on the extreme western border of the State, and between that station and Van Burén, Ark., the next station east, appellant’s line of railroad runs through the State of Oklahoma for a distance of about four miles. Appéllee purchased from appellant a ticket from Fort Smith, Ark., to Hot Springs, Ark., paying therefor at the rate of three cents a mile, a greater sum than appellant is allowed to charge under the statutes of the State.
Appellant maintains a rate of three cents per mile from the city of Fort Smith, via the route mentioned above, to the city of Hot Springs, pursuant to a passenger tariff which it has duly and regularly established and filed with the United States Interstate Commerce Commission, and duly published. Appellee embarked on one of appellant’s trains for Hot Springs, and, while en route, traversed the State of Oklahoma for the distance of four miles. That is to say, although appellee went from one point in Arkansas to another point in the same State, while en route he passed without the State and through part of another State.
The court should have dismissed appellee’s complaint. The case is ruled by the decision of this court in the case of the St. Louis & S. F. Rd. Co. v. State, 87 Ark. 562, and by the decision of the Supreme Court of the United States in Hanley v. Kansas City So. Ry. Co., 187 U. S. 617. In the latter case the court held that to bring the transportation within the control of the State as a part of its domestic commerce, the subject transported must be, during the entire transportation, under the exclusive jurisdiction of the court.
The judgment will be reversed and the cause of action dismissed. | [
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McCulloch, C. J.
This is an action to recover from appellees, J. M. Everett and W. A. Halliburton, the amount of two negotiable promissory notes executed by them as sureties for J. T. Halliburton to O. B. Edmond-son, now deceased. Edmondson, by written endorsement on the back of each of the notes, assigned the same to the Unión Bank & Trust Company and the latter in turn assigned same to appellant, Albert Sims, who instituted this action; but subsequent to its institution said Union Bank & Trust Company, as the executor of Edmondson’s estate (he having died), was joined as plaintiff.
The case originated before a justice of the peace, and there were no written pleadings; but the two appellees, as sureties, defended on the ground that they requested the payee of the note to sue, and that he failed to do so, and by reason thereof the principal had become insolvent so that his liability could not be enforced.
The only evidence tending to support that defense, if it be held to be a good defense, is that of witness Christopher, who stated that he heard a conversation between Edmondson and one of the sureties, in which the latter told Edmondson “to collect his money, that it was due and that he didn’t want to have to pay it.”
The only testimony which it is claimed tended to establish the solvency of the principal debtor at or about the time the request was made was that of a witness who stated that he heard a conversation between Edmondson and the principal debtor, in which the latter said that if required he would sell his wagon and team to pay the notes and that Edmondson told him that he didn’t want him to do so, as the sureties on the notes were good.
The court was requested by the parties on both sides of the controversy to give a peremptory instruction, and the court refused to grant appellant’s request, but instructed the jury to return a verdict in favor of appellees, the defendants.
The case, therefore, stands here as if the jury had, upon correct instructions, returned a verdict in appellees’ favor, and the sole question is that of the legal sufficiency of the evidence. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71.
There was testimony tending to qualify the interest of appellant Sims in the notes and to show that the original payee had an interest therein; but inasmuch as there was a valid assignment in writing he was .authorized to sue, and appellees can not question the consideration upon which the assignment is based. Moreover, the executor of the original holder is made party, and that eliminates any question of the relative interests of the parties in the recovery.
The statutes of this State provide that ‘ ‘ any person bound as surety for another in any bond, bill or note, * * * may, at iany time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor,” and that “if such suit be not commenced within thirty days after the séirvice of such notice, and proceeded in with due diligence, in the ordinary course of law, ,to judgment and execution, such surety shall be exonerated from liability to the person notified. ’ ’ Kirby’s Digest, § § 7921, 7922.
It is not shown that the terms of the statute were complied with, but it is contended that noncompliance with the verbal request Was sufficient to exonerate the siireties if the principal was solvent at the time the request was made and afterward became insolvent.
The trial court evidently based the decision upon that view of the law.
It is said that the law has been so declared in three of the decisions of this court. Hempstead v. Watkins, Admr., 6 Ark. 317; Thompson v. Robinson, 34 Ark. 44; King v. Haynes, 35 Ark. 463.
There are statements to that effect in the opinions in the two cases last cited, bnt in each case it was mere dictum, for the reason that the point was not involved and the court did not decide it.
The case of Hempstead v. Watkins, Admr., supra, was cited in each of those cases as supporting the statement ; but the point was not decided in that case.
In the case last referred to notice had been given in the manner provided by statute, but had not been complied with, the suit brought within the time specified in the statute having been instituted by the plaintiff in the wrong capacity. After the expiration of the statutory time for complying with the notice another suit .was instituted, and judgment was rendered against the principal and sureties; and subsequently the sureties filed a bill in the chancery court to restrain the enforcement of said judgment against them. The point of the case was whether or not the sureties had any remedy in a court of equity which was not barred by the judgment at law, and the court decided that the judgment at law did not bar the sureties of their equitable remedies and that the chancery court had jurisdiction to grant relief to the sureties against the enforcement of said judgment and following the decision of the New York court in the case of Pain v. Packard, 13 Johnson 173, said that “the statute is but declaratory and an extension of an existing and an originally equitable remedy, and which has been adopted and converted by courts of law into a subject of legal cognizance. ’ ’
In Thompson v. Robinson the surety requested the payee in the note to sue the principal debtor and attach the property of the principal, and, after judgment, instituted action in chancery to restrain the enforcement. The court held that no ground for relief was shown, for the reason that there appeared no ground for attachment of the property of the principal debtor. The court said that mere delay or neglect to sue, without notice, would not discharge the surety, but that “if, after the debt was due, the surety, verbally, or in writing, request the creditor to sue the principal, who is then solvent, and the creditor fail to do so, and the principal afterward becomes insolvent, the surety is thereby discharged.”
King v. Haynes was a suit in equity to enjoin the enforcement of a judgment against a surety on the ground that the creditor had extended the time of payment without his consent; but this court held that there had been no extension for a definite period upon a valid consideration and the surety was not discharged. Mr. Justice Eakin in the opinion of the court stated the rule announced in Hempstead v. Watkins, supra, but held that the proof was not sufficient to bring the case within that rule.
So, it will be seen that in each of those cases the -announcement of that rule was dictum.
It is clearly against the great weight of authority, and we think it also inconsistent with other decisions of this court.
We have held that the statute on the subject is in derogation of the common law and of the contractual rights of the parties to such instrument and should be strictly construed. Cummins v. Garretson, 15 Ark. 132; Thompson v. Treller, 82 Ark. 247.
An examination of the authorities discloses the fact that there was no such rule at the common law and that in the absence of. a statute the surety can not compel the creditor to bring suit against the principal and is not discharged by the failure of the principal to do -so.
Mr. Brandt calls attention to the few cases bolding to the rule above announced, but says that it is contrary to the great weight of authority, and cites numerous eases in support of that statement. “The great majority of cases on the subject hold,” he says, “in the absence of any statutory provision, that if after the debt is due the surety request the creditor to sue the principal, who is then solvent, and the creditor fails to do so, and the principal afterward becomes insolvent, the surety is not thereby discharged. The ground upon which these decisions, rest is, that the principal and surety are both equally bound to the creditor, who may have taken a surety in order that he might not have to sue the principal. If the surety desires a suit brought against the principal, he may himself pay the debt, and immediately sue the principal. The contrary doctrine is an innovation, and was unknown to the common law.” 1 Brandt on Surety & Guaranty, § 265.
The doctrine seems to have originated with the case of Pain v. Packard, supra, decided by the New York Court of Errors in 1816.
Chancellor Kent, in the case of King v. Baldwin, 2 Johnson’s Chancery Reports, 554, refused to follow the rule announced in Pain v. Packard, and on appeal the Court of Errors reversed his decision by .a divided court, the deciding vote being east by the Lieutenant Governor, who was a layman.
The New York courts,.in later decisions, have recognized the rule announced in Pain v. Packard, but almost invariably have done so with protest against its correctness. '
The case has been condemned by nearly all the courts which have had occasion to discuss the law on the subject.
Chief Justice Parker, speaking for the Massachusetts court in Frye v. Barker, 21 Mass. 381, said:
“We never have adopted the law stated to be settled by the New York case of Pain v. Packard, that a surety may discharge himself, if upon request the. creditor does not sue the principal. * * # 'The cases cited of a discharge to the surety, where the principal may still be holden, are chiefly cases of obligation to perform some duty other than the payment of money, where the terms of the contract are changed by the obligee without the consent of the surety. * * # There seems to be no reason, in the case of money contracts, for discharging the surety because the promisee neglects to sue the principal, for the surety may pay the debt and, then bring an action himself.”
In the case of Inkster v. First National Bank, 30 Mich. 143, Mr. Justice Christiancy, speaking for the court, said:
“The case of Pain v. Packard, 13 Johns. 174 (which has been followed in New York, not without some vigor r ous protest, and to some extent in some other States), was, we think, a clear departure from the common law; and we find nothing in the English decisions to warrant the qualifications of a surety’s liabilities there recognized. ’ ’
Many other decisions discuss the doctrine laid down in Pam v. Packard, and expressly decline to follow it, declaring it to be an innovation. Davis v. Huggins, 3 N. H. 231; Dane v. Corduan, 24 Cal. 157; Langdon v. Markle, 48 Mo. 357; Hickok v. Farmers’ & Mechanics’ Bank, 35 Vt. 476; Jenkins v. Clarkson, 7 Ohio, 265; Stout v. Ashton, 5 T. B. Monroe (Ky.) 251; Nichols v. McDowell, 14 B. Monroe (Ky.) 6; Gage v. Mechanics’ National Bank, 79 Ill. 62; Huff v. Slife, 25 Neb. 448.
Those cases hold, in effect, that, in the absence of statute, the surety has no right to require the creditor to proceed against the principal and that a failure to sue upon request does not discharge the surety.
In Stout v. Ashton, supra, where it was proved that the surety, who had requested the payee to sue the principal, insisted upon suit being brought, the court said:
“We can not concur with the court below, by supposing the surety to be released by the mere laches, or neglect, of the obligee to bring suit. No case which has come under our notice goes that far. On the contrary, it is well settled that mere delay in bringing suit, by the obligee, though urged to do so by the surety, does not discharge the surety; and for a good reason. The surety has undertaken positively to pay the debt. If his obligee will not sue, and he is in danger, he can relieve himself by fulfilling his obligation; that is, by paying his debt, and taking the whip into his own hands, and pursuing his principal.”
In the other case cited above from the Kentucky Court of Appeals it was said:
“If he (referring to the surety) has an equitable right to require the creditor to sue and coerce the debt out of the principal, the extent of that right, and the manner in which he can avail himself of it, have been defined and prescribed by statute, and he can not avail himself of it in any other mode.”
In Ohio- there is a statute on the subject similar -to ours, and the Supreme Court of that State in the case above cited said:
“Since this statute was passed, the common law rule has not been in force in this State; and it is unnecessary to inquire what its provisions are, for it has given place to the statute, and is repealed by it, if any such rule existed as that which would discharge a surety who gave the creditor notice to sue the principal, by parol, if the creditor did not proceed accordingly. The statute of Ohio requires the notice to be in writing.”
We are convinced, therefore, that the dicta contained in the three decisions referred to in the beginning are erroneous and should not be allowed to control in the decision of -this case on the question presented. They are, therefore, disapproved, and the rule is announced that the statute on this subject controls, and unless complied with the surety is not discharged by mere inactivity on the part of the creditor or failure or refusal to sue the principal.
The question, whether or not the creditor may waive the form of the notice and accept verbal notice, is not raised in the present case, and it is left for decision in some case in which it is directly raised.
The judgment of the circuit court is therefore reversed and judgment will be entered here in favor of appellants for the amount of the notes sued on with interest. It is so ordered. | [
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McCulloch, C. J.
Appellant is accused of killing one Charles Bowen by striking him on the head with a bottle, and she was adjudged guilty of murder in the second degree under an indictment which charged murder in the first degree.
Appellant is a negress and was the keeper of a bawdy house in the city of Hot Springs at the time of the killing, which occurred at her resort on November 1,1913, on the closing day of the Hot Springs Fair.
Deceased was a young white man, nineteen years of age, who resided in the adjoining county, and came to Hot Springs with some of his companions to attend the Fair, or, at least, to spend the closing night of the Fair in Hot Springs. The young men went to appellant’s resort, and most of them, if not all, were intoxicated. Deceased was intoxicated to a noticeable extent. They were at the place about midnight, and after remaining there a sho.rt while, the party, led by deceased, started to leave, when deceased, standing at the front door, broke the glass out of the door. The testimony adduced by the State tends to show that when this occurred, appellant was somewhere in the rear of the house, but came forward, and when she saw what had been done, started back in the direction she had come from, making the remark, ‘ ‘ I will fix the son-of-a-bitch,” and returned in a moment with a beer bottle in her hand, and walked out where deceased was on the porch and struck him on the side of the head with the bottle. Deceased was carried by his companions to a hillside not far away, where they left him lying down. They returned a short time afterward and carried him to a hotel in Hot Springs and put him to bed. The next day he was carried to his home' in the country, and died within a few days, having been attended by a physician in the meantime.
The evidence tended to establish the fact that death resulted from the blow inflicted by appellant. Several of the young men were introduced by the State as witnesses, and their respective narratives of the circumstances varied to some extent, but the conflict was not material. The testimony of each of them tends to establish a felonious homicide.
Appellant herself gave a somewhat different account of the affair. After telling about the visit of the young men to her resort, she stated that the young men were considerably intoxicated, especially the deceased, who was a stranger to her; that while she was in the back part of the house she,heard the noise of the falling glass toward the front, and went forward and asked who broke the glass in the door, and one of the young men replied that “Some one threw a rock;” that she looked out through the door where the glass was broken and saw a man on the steps whom she supposed was the one who threw the rock, and she stepped back in another room and picked up a beer bottle and hurried out to the front door and “threw it out down the steps,” and didn’t know whether she hit him or not.
One of the State’s witnesses testified that it looked like a quart beer bottle.
The evidence was, we think, sufficient to warrant the jury in finding the defendant guilty of murder in the second degree.
The case is brought here, on numerous assignments of error.
The first is in the ruling of the court refusing to grant a continuance.
The killing occurred, as before stated, on November 1, 1913,- and the indictment against appellant was returned into court on November 17, 1913, and the case went to trial on January 7, 1914. On that day appellant, through her counsel, presented a motion for postponement • until the next term of the court in order to procure the attendance of three absent witnesses. Two of them, who are alleged to have resided in the city of Hot Springs, had been summoned as witnesses, but were not in attendance. It is stated in the motion that appellant had made diligent search for them, and had been unable to find them, but could procure their attendance at the next term of the court.
If the court had been asked to postpone the case for a few days to give time to make more diligent search for these two witnesses, it is presumed that the time would have been granted. But that was not done, and, on the contrary, postponement was sought until the next term of the court. No attempt was made to show where the witnesses were or to show that they could not be found within a few days.
No abuse of discretion is shown in refusing to postpone the case until the next term.
It is stated in the motion that the other absent witness had not been found by the sheriff; that he was connected with one of the “concessions” at the Fair, and his address could not be ascertained at that time because of the fact that “at this period of the year exhibitions which accompany Fairs are usually in their winter quarters, and that as soon as the itinerary of State Fairs is announced the whereabouts of said witness can easily be ascertained. ’ ’
That is rather too remote to justify the court in postponing the case. At any rate, it can not be said that the court abused its discretion in refusing to grant a postponement under those circumstances.
The next assignment relates to the admission of a statement of deceased as a dying declaration, it being contended that the evidence is not sufficient to show that deceased was at that time m extremis, nr that he made the statement in contemplation of immediate dissolution.
The witness testified that he visited deceased at his home a day or two before he died; that deceased seemed to be suffering very much, and said, in the presence of witness, ‘ ‘ I am all in. My head is killing me, ’ ’ and turned over and commenced crying, choked up and couldn’t talk, and in a little while exclaimed, “I have done so wrong so many times, my Lord, my God, I pray, forgive, forgive.” He was permitted then to state, after relating those circumstances, that deceased made the statement to him that ‘ ‘ She hit me with a bottle. ’ ’
We have reached the conclusion that this testimony was sufficient to warrant the court in submitting it to the jury with an instruction permitting them to determine whether deceased made the statement with the knowledge of impending death and in contemplation of his immediate dissolution.
Moreover, we are of the opinion that the statement had no prejudicial effect, for the reason that the testimony is undisputed that appellant hit deceased with a bottle, the only conflict in the testimony being whether she struck the blow with the bottle in her hand or whether she threw it at deceased and struck him, a point to which the alleged declaration of deceased did not reach.
There are numerous assignments with respect to the giving and refusing of instructions. The record has not been abstracted either by appellant or the Attorney General, and we have been compelled to explore the record ourselves. The instructions are very numerous and covered all the different phases of the case. It would be an useless task to set out all the instructions and comment on them,’ and as we find no prejudicial error, we refrain from doing so.
There are two instructions, however, upon which we deem it proper to offer some comment. They are two given over appellant’s objection by the court of its own motion, and read as follows:
“15. The court instructs the jury that every person is presumed, in law, to contemplate the ordinary and natural consequences of his act, so, in this case, if you find from the evidence beyond a reasonable doubt that defendant hit and struck Charlie Bowen on the head with a bottle as alleged in the indictment, and that death en- . sued as a consequence or result thereof, her intention to kill the said Charlie Bowen is a legal presumption, and the State is not required to make further proof of her intention to kill him. This intention, however, may be rebutted by proper evidence.”
“17. You are instructed that if. you believe from thi evidence beyond a reasonable doubt, that the defend ant, Millie Tolliver, was the proprietress of the house in the city of Hot Springs, Arkansas, known as the Indian Club, which said house was, under the direction and management of Millie Tolliver, used as. a place of entertainment and amusement to which the public were generally invited; and that the deceased, Charlie Bowen, visited said house and while there fell into or otherwise broke the glass of the door of said house, and that the said defendant thereupon became angry at the said Charlie Bowen and threw a bottle at him, striking him upon the head, thereby causing the death of the said Charlie Bowen, within a day and a year from said blow so inflicted by said defendant Millie Tolliver, then, in that event you will find the defendant guilty of murder in the first degree, provided that she acted after deliberation and premeditation and with malice aforethought, and of murder in the second degree should you find that she struck the blow with malice and without deliberation and premeditation. ”
Instruction No. 15 is erroneous as applied to the facts.of this case, for it can not be said, as a matter of law, that striking with a bottle raises a presumption of intention to kill. That is true when a weapon is used which is necessarily deadly in its use, or where the method in which an instrument is used is necessarily calculated to inflict great bodily harm; but a bottle is not necessarily a dangerous weapon, nor is the method in which the jury might have found that it was used necessarily calculated to inflict great Bodily harm. The danger to be anticipated depended entirely upon the method in which the blow was inflicted and the force which was used. See, Rosemond v. State, 86 Ark. 160; Wharton on Homicide (3 ed.), § 87.
The instruction was incorrect, but it was not prejudicial, for the reason that appellant was only convicted of murder in the second degree, and the specific intent to take life is not ^n essential element of that degree of of homicide..
The same may be said with respect to instruction No. 17, which is erroneous as applied to the highest degree of murder. That instruction permitted the jury to 'find appellant guilty of murder in the first degree in the absence of any intent to kill, but it was not erroneous as a charge upon murder in the second degree, because it told the jury that the blow must have been struck with malice before the accused could be guilty of murder in the second degree. It therefore did not excludé the consideration of the degrees of manslaughter, which were embodied in other correct instructions on that subject.
Since appellant was only convicted of murder in the second degree, the erroneous part of the instruction which related to murder in the first degree was not prejudicial.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts). It appears from the pleadings and the evidence that Gladys Thompson, .who was one of the children of Mattie Thompson and Tom Thompson, and an heir of Tom Thompson, was not a party to the suit that had been formerly instituted in the Bradley Circuit Court by Mattie Thompson, for herself as widow and as next friend for her children, Pebble, Yerdie and Tom Thompson, against the appellee for damages alleged to have been sustained by them on account of the alleged negligent killing of Tom Thompson.
“A judgment is conclusive only between the parties and their privies.” Biederman v. Parker, 105 Ark. 86; Doss v. Long Prairie Levee District, 96 Ark. 454; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 409; Updegraff v. Marked Tree Lbr Co., 83 Ark. 157; Albie v. Jones, 82 Ark. 419.
The judgment as set up in the plea of former adjudication, was a personal judgment, and could only bind the parties to that record and their privies. Bigelow on Estoppel, p. 127. Gladys Thompson was not a privy in interest to any of the parties to that suit. Whatever damages she might have been entitled to recover for the alleged negligent killing of her father were given to her by the statute (Kirby’s Digest, § 6290), and her proportion ate part of those she would receive by virtue of the statute, independent of the widow or any of the other heirs of her father, Tom Thompson. She was not connected with any of these in any way as to her part of whatever damages the widow and heirs at law of Tom Thompson might have been entitled to recover. She was therefore not a privy in interest to any of them. As she was neither a party nor a privy to the former suit, she was not bound by the judgment therein.
It does not follow, however, that because she is not bound by the proceedings in the former suit, that she is is entitled to recover in this action. In St. Louis, I. M. & S. Ry. Co. v. Needham, 52 Fed. Rep. 371, the circuit court of appeals, through Judge Sanborn, construing the above statute, held, that the widow and all other persons entitled to share in the distribution of the personal estate of the one killed by the wrongful act of another, are heirs at law, and when the -widow, in the absence of personal representatives, brings a suit under the act, she must join all persons having an interest in the subject-matter therein.
And in McBride v. Berman, 79 Ark. 62, following'the construction of the court of appeals, we said, construing the same statute (Kirby’s Digest, § § 6289, 6290): “Manifestly these statutes did not intend this splitting of the cause of action, and contemplate this multiplicity of actions for one act of negligence resulting in death. The statute (commonly called Lord Campbell’s Act) intends one action to be brought for the death sued on. This action must be brought by the personal representative, if there be administration. If there is no administration, then the action must be brought by the heirs at law of such deceased person. While the wife is not technically an ‘heir at law,’ yet she is specifically named in this statute as a beneficiary in such action for the recovery for ‘pecuniary injuries,’ resulting from the death of the husband, and the term ‘heir at law’ is used in the broader sense of one receiving a distributive part of the estate and a beneficiary of the action created by these acts. * * *
“In default of a personal representative an action brought under Lord Campbell’s act must make the widow (if there be one) and the heirs at law parties thereto.”
It follows from these decisions as an indispensable prerequisite to the maintenance of a suit under the statute' supra, that the widow and heirs of the person killed by the wrongful act of another shall all be made parties.
It appears as an undisputed fact in this record that Mattie Thompson was the widow of Tom Thompson, and that he bad other children who were his heirs at law, and none of these were made parties. As the making of the widow and other heirs parties was a condition precedent to the maintenance of the suit by the appellant as next friend for Gladys Thompson, the court did not err in dismissing her complaint, although it gave the wrong reason therefor. While the plea of res adjudicata was not technically sustained because the rights of Gladys Thompson had never been adjudicated in any former suit, nevertheless the judgment of the court dismissing her complaint was correct -for the reason we have stated. This court can not reverse a judgment that is right upon the undisputed facts presented in the record, although the trial court may have based its ruling upon an erroneous reason and a misconception of the law.
The judgment of the court dismissing appellant’s complaint and thereby abating the present suit is correct and it is affirmed.
Hart, J., and Kirby, J., dissent. | [
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Smith, J.
Upon the former appeal of this case, the appellant here being the appellant then, the following statement of facts was made, in the opinion then delivered :
“Appellants executed to one J. O. Gunter two negotiable promissory notes, each for the sum of $837.10, due and payable three and six months, respectively, after date, and Gunter assigned the notes to appellee, a banking corporation doing business in the city of Fayetteville, Arkansas. Appellee instituted this action to recover of appellants the amount of the two notes with interest. Appellants, for defense to the action, pleaded want of valid consideration for the execution of the notes sued on, alleging that Gunter was the soliciting agent for a certain life insurance company; that the'notes were executed to him for the first annual premium on life insurance policies issued by said company on the lives of eighteen young men, the amount of the several policies of insurance to be payable on the death of the young men to Spe- ■ cial School District of Rogers, Benton County, Arkansas; that neither the school district, nor any of these appellants, had an insurable interest in the lives of the men mentioned in the policies, and that said insurance contracts were void, and, consequently, the said notes given for premiums were without legal consideration. It is further alleged that appellee had full notice of the above stated facts when it purchased the notes from Gunter, and was therefore not an innocent purchaser for value. ’ ’
The court below, on the former trial, struck out the allegations of the answer concerning the consideration for the notes, leaving in the answer only the allegations of payment of the notes by the school district, and, on that issue a verdict was returned in favor of the bank. Upon the appeal from the judgment rendered upon that verdict it was held that the. notes given for the insurance premium wére invalid because the policies were wagering contracts, and as such against public policy.
Upon the remand of this case it was shown without dispute that the notes were executed for the consideration recited in the answer. The evidence upon the part of the bank, however, was to the effect that the notes were discounted at the rate of 8 per cent per annum, and the proceeds of the notes thus discounted were placed to the credit of the account of Gunter with the bank, and that Gunter at the time drew a small check against this deposit, and very soon afterward drew a check in favor of the insurance company for its portion of the premium, which was about 70 per cent of the face of the notes. Gunter testified that he advised the president of the bank what the consideration was, and that the bank had full knowledge of the transaction before the notes were purchased; but that statement was flatly contradicted, and the jury has seen fit to accept the statement of the president of the bank.
Appellants insist that a verdict should have been directed in their favor, and in support of this position they cite cases holding that when a bank simply discounts a note and credits the amount thereof to the endorser’s account without paying to him any value for it, the transaction does not constitute the bank a purchaser for value of the note. This appears to be a correct statement of the law, but this issue does not appear to have been raised in the court below and no specific instruction to that effect was asked. Moreover, it appears to us it would have been abstract had it been given. There is a very close question of fact as to whether or not the. officers of the bank knew what the consideration of the notes was before purchasing them; but there appears to be no real question that the bank paid full value for the notes, and that within a short time, and before the. maturity of the notes, or either of them, Gunter drew checks against this deposit for the larger part of it, and all of it may have been so withdrawn so far as the proof shows to the contrary. But, of course, the fact that it paid value for the notes would not entitle the bank to collect them from the maker, if it was not an innocent purchaser for value, before maturity. That question appears to have been fairly submitted to the jury, although an instruction numbered 5, asked by appellants, which might well have been given to the jury, was amended by striking out the latter part of it. Appellants strongly complain that the action of the court in not giving the fifth instruction as requested was error which calls for reversal of the case. The portion of the instruction stricken out was to the effect that the bank must have purchased the notes without notice or knowledge of their infirmity or of circumstances which would have put it upon inquiry, and which, if followed up, would have led to the knowledge of the facts. But the court gave the following instruction: “The court instructs the jury that before one can become a bona fide and innocent holder of commercial paper, it must appear that it was acquired without notice or knowledge of defenses, or circumstances which would put him on inquiry that such defenses existed.” The instruction given embodied substantially, the statement of law contained in the part of the fifth instruction which was stricken out, and we think no prejudice resulted to appellants on that account. Appellants complain of the action of the court in giving the following instruction:
“No. 2. I charge you that the notes sued on are commercial paper under the law and as such are transferrable by the payee, and when offered for sale by the payee before they are due, the party to whom that are offered is not required to investigate as to the considerattion or for what the notes were given, and has a right to assume that they are legal and valid obligations of the parties executing the notes unless he has notice or knowledge to the contrary. ’ ’
We think the instruction was not an improper one. In the case of Winship v. Merchants Natl. Bank, 42 Ark. 22, certain negotiable promissory notes were taken by an agent to himself for debts dne his principal, and before their maturity they were transferred to a bank as security for advances made to the agent, the bank making the advances on them before maturity, in good faith, in the usual course of business and without notice of the principal’s equity. The principal sued the bank for the amount of the notes, and in the opinion in that case it was ■said: “Counsel for appellants contends that the bank having received the notes merely by way of security for a debt, is not entitled to be protected as a bona fide holder. Our reply to this is, that the notes were in form negotiable; that they were transferred to the bank before maturity; that the bank received them in good faith and in the usual course of business, and is consequently unaffected by equities of which it had no knowledge. The facts that Camp was the payee of the notes, and that they were in his possession, were prima facie evidence that they were his property; and without notice to the contrary the bank had a right so to treat them, and was under no obligation to inquire whether they were held by him as agent or as owner. ’ ’ So here, if the bank had no knowledge or notice, it was under no duty to inquire what the consideration for the notes was. Other instructions told the jury that if the bank knew what the consideration was, or had notice of such circumstances as should have put it upon inquiry, that it was not an innocent purchaser, and there was no conflict between the instructions. This instruction numbered 2 only dealt with the right of a bank to purchase commercial paper where it has no notice, or knowledge, of any infirmity in it, and it correctly declares the law with reference to the purchase of such paper. This instruction does not undertake to deal with the question of the burden of proof and of the bank’s duty to show that it was in fact an innocent purchaser.
Appellants further insist that a verdict should have been directed in their favor for the reason that the notes sued upon are void under section 3690, of Kirby’s Digest, and that whenever a statute declares a note or other contract void, they are, and must be so, in the hands of every holder. We need not discuss the application of that section of the Digest to the facts of this case for the reason that the law of this case, on that question, was settled in the opinion on the former appeal, where it was said: ‘ ‘ The defense (of invalidity) is available against an assignee of a note who purchased with notice of the facts concerning the consideration; but not against an innocent purchaser for value before maturity of a negotiable note.” Clark v. Hershy, 52 Ark. 473; Rankin v. Schofield, 81 Ark. 440. That this is the law of this case was recognized "by appellants in the instruction given at their request and numbered 3, which reads as follows:
“No. 3. The court instructs the jury that the court means by the term ‘insurable interest’ to be such an interest arising from the relation of the party obtaining the insurance, either as a creditor of, or surety of, the assured, or from the ties of blood or marriage to him as will justify a reasonable advantage or benefit from the continuance of his life, and that in the absence of any ties of blood or marriage between the beneficiary in the life insurance policy and the person whose life is insured, or of some contractual relation between them by reason of which damage may result to the beneficiary from the death of the party whose life is insured, that such insurance policies and notes given for the premiums thereon are void except in the hands of an innocent purchaser for value before maturity without notice.”
Other questions are presented in the briefs, but we find it unnecessary to discuss them. The case presents almost entirely a question of fact, and that question was submitted to the jury under instructions declaring the law, as we have here stated it to be, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
This ease involves separate appeals of two railway corporations from assessments of benefits for taxation in support of the Fort Smith & Yan Burén Bridge District, an improvement district created by a special act of the Legislature of 1909, authorizing the construction of a bridge across the Arkansas Biver. Benefits were assessed by the board of assessors, and each of appellant companies prosecuted an appeal to the board of commissioners, thence to the county court, as provided by the statute, and thence to the circuit court.
The assessments made by the board of assessors were sustained by the circuit court. The case was heard by the circuit court upon oral testimony.
The case is argued here by counsel for appellee on the theory that the assessments constitute a legislative determination of the amount of benefits.
This is an unsound contention, for the Legislature, in passing .the statute, did not undertake to determine the amount of benefits. That was left to the board of assessors, and the act creating the district authorizing an appeal. This proceeding is, therefore, a diréct, and not a collateral, attack upon the assessments.
The case having been heard de novo in the circuit court, the question here is whether or not the evidence is sufficient to support the findings of that court. Schuman v. Sanderson, 73 Ark. 187.
We are of the opinion that the evidence is sufficient to sustain the finding of the circuit court as to the extent and value of the benefits. The testimony is conflicting and consists mainly of the opinions of witnesses who qualified themselves by showing that they had knowledge of the values of property in the district and the estimated benefits to accrue from the construction of the improvement. Anything like an extensive analysis of the testimony would serve no useful purpose.
It is contended on the part of each of the appellants that the showing made as to loss of earnings of railroad companies during the short period since the bridge was completed and put into operation is conclusive evidence of the fact that no benefits will accrue to the property of the companies on account of the improvement. It is shown that the earnings from passenger traffic have decreased on account of the fact that the interurban trolley line between Fort Smith and Van Burén has created competition in that traffic, which will in the future, as it has done in the past, prove a detriment, instead of a benefit, to the railway companies.
That does not necessarily follow, for the estimated growth of population in the locality may reasonably be expected to increase the traffic, even with the additional competition.
The decrease of earnings in freight traffic is accounted for in the testimony of witnesses by showing poor crops during the year since the bridge was put into operation.
The assessment of future benefits is largely a matter of estimate and to some extent speculative. As said by Mr. Justice Holmes in the case of Louisville & Nashville Rd. Co. v. Barber Asphalt Co., 197 U. S. 430, “the amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate, and on the question of benefits, the present use is simply a prognostic and plea of prophecy.”
We must depend largely upon the opinions of men of sound judgment and reasonable information on the subject, to determine what the future benefits will prob ably be. If it were necessary to find an exact standard, a measure of benefits in advance would be impossible. Tbat view of the matter would necessarily lead to the conclusion that benefits must be enjoyed before there can be an assessment to pay for the improvement, which would be a contradiction in itself. Salmon v. Board of Directors, 100 Ark. 366.
We are not prepared to say that the evidence in this case, as it appears in the record, preponderates in favor of the amount of benefits found by the assessors and by the circuit court; but we are not called upon to pass upon the weight of the ■evidence. The question of its legal sufficiency is all that we need pass upon, and we are of the opinion that there is competent testimony of a substantial nature sufficient to base the finding upon as to the amount of benefits fixed.
The judgment of the circuit court is therefore affirmed. | [
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McCulloch, C. J.
The American Union Fire Insurance Company of Philadelphia became insolvent and was placed in the hands of a receiver by the courts of its domicile in March, 1913, and at that time it was liable to policy holders in this State for return premiums and fire losses. The company had been doing business in the State for several years and had given, and annually renewed, its bond as required by statute.
The issue in this case relates to the liability on the successive bonds, the particular question being which bond is liable, whether it is the bond covering the period during which- the policies were written, or the last bond, which is the one covering the period during which the liability to policy holders accrued, or both.
The first bond was executed by Southwestern Surety & Insurance Company as surety, and it covered the peribd from March 1,1911, to March 1, 1912.
The second bond was given by appellant, Massachusetts Bonding & Insurance Company, to cover the period running from March 1, 1912, to March 1, 1913, and the controversy in this case arises over policies which were issued by the company during that period.
The last bond, which covers the period running from March 1, 1913, to March 1, 1914, was executed by appellee, Home Life & Accident Company, as such surety.
All of the bonds were in the same form, and were executed in conformity to the statute, which reads as follows:
“All fire, life and accident insurance companies, individuals or corporations, now or hereafter doing business in this State, in addition to the duties and requirements now prescribed by law, shall annually give a bond to the State of Arkansas with not less than three good and sufficient sureties, to be approved by the Auditor of the State, in the sum of twenty thousand dollars, conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond, by virtue of any policy issued by any such company, corporation or individual, upon the life or person of any citizen of the State, or upon any property situated in the State, and such bond shall be .annually renewed; provided, that the bonds of all fire insurance companies doing business in this State shall be conditioned that said bond shall be in full force and effect during the lifetime of any policy issued by said company, but said bond shall be renewed annually, as provided in this section.” Kirby’s Digest, § 4339.
The statute was amended in certain particulars by the act of May 31, 1909, but the above quoted language was not changed.
In United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410, we held that the liability of the sureties is fixed when the loss by fire occurs and that claim accrued at that time within the meaning of the statute.
The decision in that case was followed by this court in American Ins. Co. v. Haynie, 91 Ark. 43, where it was said :
“By the provisions-of the bond, the sureties were obligated to pay all claims accruing to any person during the term of the bond. The claim accrued when the insured had a present enforceable right of action against the insurance company. Manifestly, his claim against the company accrued during the term of the bond. The bond was executed on the 7th day of May, 1907, and was for a period of one year. The fire occurred on the 29th day of October, 1907. In accordance with the ruling in the case of United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410, we hold that the bond was liable.”
The same conclusion was reached in Crawford v. Ozark Ins. Co., 97 Ark. 549, where the court had under consideration a statute providing for bonds to be given by mutual insurance companies. The language of the statute requiring bonds in such cases is substantially the same as that used in the statute hereinbefore quoted, except that it does not provide for annual renewal and does not contain the express provision that “said bond shall be in full force and effect during the lifetime of any policy issued by said company. ’ ’ It was held, following the decision in the Fultz case, supra, and in the Haynie case, supra, that the sureties on the bond covering the period during which the loss occurred were liable, notwithstanding the fact that the policy was issued during a former period covered by another bond. The court said:
“The clause of the bond under consideration should be construed and read as follows: Shall promptly pay all claims arising and accruing to any person or persons during the term of this bond, by virtue of any policy issued by said company, upon any property situated in the State of Arkansas, when same shall become due. This arrangement is according to the punctuation and grammatical construction'; and, while punctuation should not control, neither should it be ignored, in considering what the makers of the instrument meant by the language employed. The comma after ‘persons’ and ‘company’ shows that the phrase, ‘by virtue of any policy issued by said company,’ is parenthetical. Their effect is to make the prepositional phrase, ‘during the term of this bond,’ relate to and qualify the participle ‘accruing,’ and not the verb ‘issued.’ When thus construed, the bond conforms to the law as interpreted in American Insurance Company v. Haynie, supra, by which this case is ruled.”
Now, those cases settle the question beyond dispute that the last bond executed by appellee, Home Life & Accident Company, is liable for the return premiums and for all losses which occurred during the life of that bond, which took effect on March 1, 1913.
But it is insisted by learned counsel for appellee that the sureties on the bond covering the prior period were primarily liable, and that the sureties on the last bond are only secondarily liable, and that, as between the two sets of sureties, the liability should be adjudged against the sureties on the bond which covered the period during which the policies were issued.
Our conclusion is, however, that the cases quoted clearly hold that the sureties on the last bond are primarily liable, and the only undetermined question in this case is whether or not the sureties on the first bond are liable at all.
The chancellor held that the two sets of sureties were equally liable and divided the liability between them.
The claimants who intervened have appealed, and insist that there should he a decree against both sets of sureties.
We are unable to find any authority directly bearing upon the construction of our statute so far as relates to the question of liability of the 'sureties on a bond which had been renewed. But it seems to us that a fair interpretation .of the legislative will is that the sureties on an annual bond are only liable for claims of policy holders which arise and accrue during the period covered by the bond and beyond that period, too, upon all policies issued during the lifetime of the bond until it is renewed. The statute says in plain words, it is true, that “said bond shall be in full force and effect during the lifetime of any policy issued by said company.” But that expression is coupled with the provision that the bond shall be renewed, and we think that the renewal of the bond terminates all liability of the sureties on the bond except as to liabilities which have already accrued within the meaning of the statute.
This provision of the statute is a part of a comprehensive legislative scheme for the regulation of the insurance business and the protection of policy holders. It was determined that a bond for $20,000, executed by sureties to be approved by the Auditor, and with power vested in the Auditor to require a renewal at any time, was sufficient protection to policy holders. We have nothing to do with the policy of the Legislature in determining that that amount of bond is sufficient. The 'statute provides, in addition to the absolute requirement of an annual renewal, that it is the duty of the Auditor to require any insurance company to file a new bond “at any time when it shall appear that such bond is not sufficient, or that the amount thereof has been exhausted by judgment, or that the sureties on the 'same have died or become insolvent.” Kirby’s Digest, § 4343.
The purpose of the lawmakers was to require a subsisting indemnity in the sum of $20,000 to policy holders against loss and that this was sufficient to fully protect them.
The only consistent interpretation of that scheme is that successive bonds extinguish the liability of sureties on the preceding bonds. The provision continuing the force of the bond during the lifetime of any policies issued during the period it covered was meant merely to continue that liability until it was extinguished by a renewal. We think this carries out a consistent scheme and that it was what the Legislature intended.
It is said that this construction will work a' hardship, in that a bond in the sum of $20,000 is not sufficient to cover all the liabilities in this case. .
That, however, is a matter which addresses itself to the Legislature, and not to the courts, for, as before stated, there is a legislative determination that a bond of $20,000 is sufficient. Doubtless it is generally sufficient, and this proves an exception to the rule.
The decree of the chancellor was not in accordance with the statute as we interpret it, and the decree is reversed and the cause remanded, with directions to adjudge liability in accordance with the statute as here interpreted. | [
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Smith, J.,
(after stating the facts). The decision of this court can not give any relief to the original petitioners, who are the appellees in this cause, insofar as authorizing the sale of liquors is concerned. Neither will appellants secure any relief, if the judgment of the court below should be reversed, except that they would thereby escape the payment of costs, and as no result can follow the decision of this cause, except the determination of the question of liability for the costs of the litigation, we will decline to entertain this appeal.
In the case of Wilson v. Thompson, 56 Ark. 110, in an opinion by Chief Justice Cockrill, it was said: “The circuit court erred in its judgment. The order for prohibition was made in January, 1890, and has expired by limitation of law. The appeal is therefore fruitless. For that reason the practice would have justified a dismissal, without going into the question presented by the record. The costs only are now involved, but it was not for that reason that we have felt called upon to determine the cause, for costs are only an incident of litigation, and can not be made the object of appeal any more than of the litigation. But the cause was of practical importance, and the appellants prosecuted the appeal without delay. Having gone into the subject of the litigation, and found that the judgment was erroneous, the appellants are entitled to their costs in both courts.” It appears that notwithstanding the appellants were there adjudged to be entitled to their costs, the appeal was not entertained for the purpose of determining that question; but upon the contrary, it was expressly stated that the appeal would not be entertained and the question there involved was decided because of the public interest of the question involved. Here there is no question of public interest, because the action of the Legislature in passing the special act makes any action which the court may take unimportant to any litigant, except to determine liability for costs.
In the case of Commissioners of Vance County v. Gill, 126 N. C. 86, it was said: “The court will not go through the record merely to decide who would have won, if the cause of action had not died pending appeal; that it wil-1 not decide the merits of a controversy which no longer exists, merely to determine who shall pay the costs. Herring v. Pugh, 125 N. C. 437, and numerous cases there cited.” In the case of Herring v. Pugh, cited in the last mentioned case, the court announced the conditions under which it would review and decide the merits of a cause which had been settled, or the subject-matter of which had been destroyed since the judgment below, and where the decision on appeal would merely decide who should pay the costs, and it was there said: “On the appeal in'the main action, the judgment adverse to the defendant has been affirmed, and, the cause of action having thus been terminated, an adjudication upon the merits in this appeal would simply decide an abstract proposition of law, since judgment in this appeal could now have no possible effect but to determine who should pay the costs. The court has repeatedly held that this will not be done. Wikel v. Commissioners, 120 N. C. 451; Russell v. Campbell, 112 N. C. 404; Pritchard v. Baxter, 108 N. C. 129; Hasty v. Funderburk, 89 N. C. 93; State v. Railroad, 74 N. C. 287; Futrell v. Deans, 116 N. C. 38; Elliott v. Tyson, Ib. 184. The exceptions to the general rule that this court will not decide upon a mere question of costs, are (IX where the very question at issue is the legality of a particular item of costs (Elliott v. Tyson, 117 N. C. 114; Blount v. Simmons, 120 N. C. 19), or, (2) the liability of a prosecutor for costs in a criminal action (State v. Byrd, 93 N. C. 624), or, (3) taking the case be-, low, as properly decided, whether the costs of that court were adjudicated against the proper party. State v. Horne, 119 N. C. 853.”
In the case, of Cobb v. Hammock, 82 Ark. 584, the county court made an excessive allowance to the county judge on account of salary, and certain citizens appealed from that order. On appeal the circuit judge refused to set aside the allowance, for the reason that at the time the cause was heard ih the circuit court a full quarter had expired, and the county judge was then entitled to all the salary for the quarter for which the salary had been allowed. Upon appeal to this court it was said that the judgment of the circuit court would not have been disturbed, had that court adjudged only the right to the salary; but it erroneously rendered judgment against the citizens for the costs of the appeal from the county court. That.case was reversed because, as was there said, the citizens’ had the right to appeal to the circuit court from an erroneous order of the county court, and therefore the penalty of paying the costs of appeal should not have been visited upon them, because the error in the order appealed from had afterward become harmless.
In other words that was a case properly decided by the court below, but the costs were not adjudged against the proper party, and that action of the court fell within the third exception in the North Carolina case, cited above.
For the reasons stated the appeal will be dismissed. | [
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Smith, J.,
(after stating the facts). We think the chancellor properly dismissed the complaint in this cause for the want of equity. It is true that a vendee in possession is not barred from suing for specific performance by delay for any period infringing his action, his possession being the continuous assertion of his claim. He may rest in security until his title or right of possession is attacked. Wright v. Brooks, 130 Pac. 968. Nor is time of the essence of this contract. But the evidence shows that the appellants did nothing toward the performance of their contract. They offered evidence to the effect that an extension of time was given, and that they were to pay interest at the rate of 5 per cent; but Edrington’s ■evidence was that only a reasonable time was given in which the payment was to be made at this rate of interest. The original note bore interest at the rate of 10 per cent. Appellants failed to pay the interest, and had apparently abandoned their claim to the land and ceased paying taxes upon it, and for five years these taxes were paid by Mr. Edrington. Appellants stood by and saw Mr. Edrington sell the land to St. John, and permitted St. John’s vendee to remove considerable timber from the land, and they saw St. John’s son enter upon the land and clear and improve portions of it, and after the disabilities of the minors had been removed, they made a trade with St. John, the consideration for which was a deed conveying to W. C. Hargis a portion of the land described in the bond for title, which included the only part of the land which the Hargis heirs had actual possession of. From 1903, when Edrington took possession of .the land until the spring of 1912, when the tender was made, there was no assertion of title to any of this land except such as resulted from the occupancy of the two acres, which they do not claim because of their conveyance to St. John, which included it.
During this time, the situation of the parties had changed to some extent. Portions of the land have been cleared and improved and rendered more valuable, and these improvements were induced by the nonassertion of any claim upon the part of the Hargis heirs. Moreover, the tender which was made did not include the taxes which had been paid isinoe Mr. Edrington took possession of the land in 1903, and since that date no taxes have been paid by the Hargis heirs, and Edrington and his vendees exercised all the acts of ownership over the land, of which it was capable, except the small clearing of two acres.
We think the evidence fairly shows an actual abandonment of the sale by both parties and a restoration of the property to the vender, notwithstanding the pur chaser’s possession of a small portion of the land. It was their duty to assert their intention to perform their contract of purchase, within a reasonable time, when they saw their vendor was treáting the sale as having been rescinded. “Specific performance is relief which the courts will not give unless in cases where the parties seeking it come as promptly as the nature of the ease will permit.” Uzzell v. Gates, 103 Ark. 191, and cases cited. The decree is therefore affirmed. | [
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Hart, J.,
(after stating the facts). The deed from James Purcell to his infant son, James E. Purcell, .recited that it was executed in consideration of love and affection. It was made after the execution of the mortgage on the land by James Purcell to McCarthy & Joyce. Therefore, the deed conveyed only the equity of redemption of J ames Purcell. J ames E. Purcell was not made a party to the proceedings to foreclose the mortgage on the land, ¡and, having -been emitted from the foreclosure suit, he still had the right to redeem from the foreclosure sale. Dickinson v. Duckworth, 74 Ark. 138. The decree in the case of Shoemaker & Gann against James E. Purcell, which was instituted in 1899, provided that the latter should have a designated length of time within which to redeem from the foreclosure sale and that if he failed to do so the title to said land should be vested in Shoemaker & Gann. James E. Purcell failed to exercise his right to redeem. The condition of James E. Purcell as an infant appeared in the record in that, action. The decree in the case divested him of an interest in lands, and he therefore had a right to show canse against the decree within twelve months after arriving at full age, as prescribed in section 6248 of Kirby’s Digest. Paragould Trust Co. v. Perrin, 103 Ark. 67. Section 734 of Kirby’s Digest provides that when one conveys land by deed purporting to convey a fee simple estate and does not own the land at the time, but afterward acquires the title, such after-acquired title, whether legal or equitable, passes at once to his grantor. Under this section, counsel for James R. Purcell contends that when James Purcell bid off the land at the mortgage foreclosure sale he acquired the title thereto by such purchase and that it was an after-acquired title which inured to the benefit of James R. Purcell. It will be remembered that James Purcell became the purchaser of all the lands embraced in the mortgage at the foreclosure sale, and, not being able to pay the amount of the mortgage debt, in order to save ,a part of the lands for his infant son, James R. Purcell, ■he assigned his certificate of purchase to a part of the ■lands to Gann & Shoemaker in consideration that they .pay off the amount of the mortgage debt. This they did, ■and a deed was made to them, and was approved by the court. A bidder to whom property has been struck off at a judicial sale may assign his bid before the deed has been delivered, and the deed will be made directly to the assignee and pass the title to him. 24 Cyc. 31; Wiltsie on Mortgage Foreclosure Sales (3 ed.), vol. 1, § 678. In the case of Wells et al. v. Rice et al., 34 Ark. 346, the court said that a sale made under a decree of the chancery court is not completed until confirmed by the court ■and a deed to the purchaser confers upon him no right to the property. Continuing, the court said:
“ ‘The theory of sales of this character is,’ as the court says in Sessions v. Peay, 23 Ark. 41, ‘that the court is itself the vendor, and the commissioner, or master, its mere agent in executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision of the court. The court will confirm or reject the reported sale, or suspend its completion as the law and justice of the case may require.’ ”
The purchaser under the foreclosure sale and his assignees became parties to the suit and are bound by the subsequent proceedings had in the cause. As said in the case of Proctor v. Farnam, 5 Paige, Chan. Rep. (N. Y), 614, “It is a familiar principle that any one who interferes pendente lite with the subject-matter of a suit in equity submits himself to the jurisdiction of the court to be exercised by petition or motion in the original suit, and that he acquires no rights in that manner which may not be modified, controlled - or directed without any new proceeding directly against him, and this doctrine applies with full force to the case of a purchaser under the decree and to all who claim interest under him.” Therefore, we do not think that James Purcell acquired any title, either legal or equitable, under his purchase at the foreclosure sale, but we are of the opinion that the title under such sale passed to his assignees when they paid the purchase price under orders of the court and a deed was executed to them and approved by the court. James Purcell assigned his certificate of purchase to a part of the lands to them and had the deed executed to them for the purpose of saving a part of the lands embraced in the mortgage for his infant son, James R. Purcell. Under these circumstances, every principle of equity favors the claim of Shoemaker & Gann, and if they are to be defeated at all it is simply because of section 734 of Kirby’s Digest, which provides that a conveyance to one who has already attempted to. grant away the estate conveyed inures to the benefit of his grantee. The statute must be reasonably construed so as to effectuate its purpose, but it should not be construed to defeat the ends of justice.
Again, it is contended by counsel for James R. Purcell that the decree in the case of Shoemaker & Gann against James Purcell, Jr., should be reversed because J ames R. Purcell was not made a party to that suit and no service was had upon him. The record shows that James R. Purcell and James Purcell, Jr., are the same persons; and this court has held that under such circumstances the middle initial of a name is immaterial. Fincher v. Hanegan, 59 Ark. 151. It is true James Purcell, Jr., was named as the defendant in the action; and it was •alleged that he was a minor under the age of fourteen years. The summons was issued directed against James Purcell, Jr., but it was served by delivering a copy to James Purcell, the father of James R. Purcell, and also by leaving another copy with James Purcell for. James R. Purcell, his'infant son, the latter not being at the time at home. This was a substantial, if not a literal, compliance with the statute in regard to the service of summons upon infants under the age of fourteen years. Huggins v. Dobbs, 57 Ark. 628.
Upon the Whole record we find no error, and the decree will be affirmed. / | [
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Ed F. McFaddin, Associate Justice.
This appeal stems from appellants’ attempt to set aside an order of adoption, and the only question here presented is whether there was a defect of parties. The Probate Court held that there was a defect, refusing to hear the evidence, and dismissed the petition. Prom that ruling, there is this appeal.
The appellants, Mr. and Mrs. J. C. Cotten, are the paternal grandparents of two little boys, Roy, .aged 14, and Edward, aged 12. In October 1959, the Saline Probate Court made an order of final adoption (§ 56-108 et seq. Ark. Stats) whereby the appellees, Mr. and Mrs. Hamblin, adopted the two little boys. In October 1960, Mr. and Mrs. Cotten filed a suit in the Saline Chancery Court to set aside the order of adoption. That case came before us in Cotten v. Hamblin, 233 Ark. 65, 342 S. W. 2d 478, wherein we held that the Chancery Court was without jurisdiction; and our opinion concluded: “We accordingly affirm the decree without prejudice to the appellant’s right to apply to the probate court for such relief as he may be entitled to — a point upon which we express no opinion.”
On February 21, 1961, Mr. and Mrs. Cotten filed the present petition in the Saline Probate Court, seeking to set aside the order of adoption, and they alleged: (1) That the petitioners were the paternal grandparents of the two little boys; that the petitioners, at all times, lived and resided in Garland County; that the little boys were living and residing with the petitioners in 1959; that the boys went to school, and the Hamblins took the children from school and proceeded with the adoption Avithout notice to the petitioners. (2) That at the time of the adoption the boys Avere residents of Garland County and could not be legally adopted in a proceeding in the Saline Probate Court. (3)“. . . That the defendants are unable to get along with said minor children and have beat and abused said children AAÚthout just cause, and especially beat and AAdiipped Roy Jean with a large stick of Avood and caused said children to leave their home in night-time and tramp through the Avoods to their grandparents, plaintiffs herein, that defendants and the children Avere strangers to each other at the time of adoption and said minor children have become someAAdiat hostile to said adopted parents.”
On motion of the Hamblins, the Probate Court, Avithout hearing any evidence, dismissed the petition by an order which recited:
“That petitioners, who are the paternal grandparents of the adopted: children, are not the proper parties to maintain an action to annul the .adoption decree, the natural parents of said- children having consented to said adoption and not-having joined petitioners in their petition to annul said adoption decree.”
As aforesaid, the only question here presented is whether the petitioners are proper parties to maintain this action to annul the order of adoption. In Gillen v. Edge, 214 Ark. 776, 217 S. W. 2d 926, the natural mother of a little girl filed a petition to annul the order of adoption. The Probate Court held that only the Welfare Department could maintain such a petition. In reversing the Probate Court’s ruling, we said:
“Both the statute in force in 1943 (Pope’s Digest, § 263) and the present law (Ark. Stats. (1947), § 56-110) provide that a petition to annul an adoption order may be filed if the adoptive parents fail to perform their obligations. Neither act specifies by whom the petition must be filed, and it is obvious that the natural mother ordinarily has a deeper interest in her child’s welfare than anyone else. Appellant’s consent to the proceedings was of course based on the assumption that the appellees would give her daughter proper care. If they have not done so, appellant certainly has the privilege of bringing that fact to the court’s attention. We do not construe Ark. Stats. (1947), § 56-118, as vesting in the Child Welfare Division the exclusive power to seek annulment of an adoption order.”
Of course, a rank outsider or mere stranger could not maintain a petition to annul an order of adoption, but in the ease at bar the petitioners alleged that the little boys were living with petitioners who had the care and custody of the children for many years before they were taken away. So the petitioners occupied some sort of semi loco parentis relationship to the children, and are not entire strangers. A grandmother was held entitled to resist an adoption proceeding in Fries v. Phillips, 189 Ark. 712, 74 S. W. 2d 961. Furthermore, in the ease at bar, the petition for annulment alleged that the adopting parents were mistreating the children. Section 56-110 Ark. Stats, lists as the first cause for annulling an order of adoption, “The adopting parents have failed to perform their obligations to the adopted person.” In every case the best interest of the child is the paramount question. § 56-108 Ark. Stats.; Caples v. Wages, 219 Ark. 252, 241 S. W. 2d 111; 2 C. J. S. 436 et seq., “Adoption of Children,” § § 45, 57.
In the ease at bar the Probate Court should have heard the evidence to see what was best for the children and also whether the original adoption was valid or should be annulled for one of the reasons set forth in the statute. Under the facts here alleged, the petitioners were not entire strangers; and the Court should have heard the evidence. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
For whatever force it may have, there is in the transcript here before us, the report of the State Welfare Department concerning the children and their parents at the time of the original adoption. On the trial on remand, we are of the opinion that there should be evidence obtained as to the present condition of the parents and their attitude toward the present litigation. | [
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Paul Ward, Associate Justice.
This is a highway intersection accident case. Appellant, George Shroeder, was driving east on a secondary road where it intersected Highway number 45 running north and south when his car collided with an automobile going north on Highway 45 being driven by one of the appellees, Arlene Johnson. The Johnson car was owned by her husband, T. J. Johnson, one of the appellees; appellees Billy Wayne Johnson and Mary Imogene Johnson were passengers in the car. Appellees filed suit against appellant for damages, claiming that appellant was negligent in failing to yield the right of way, in failing to keep his automobile under control and in failing to keep a proper lookout. There was a jury trial resulting in judgments in favor of appellees in the following amounts: Arlene Johnson, $2,853.23; T. J. Johnson, $790.83; Billy Wayne Johnson, $300.00; and Mary Imogene Johnson, $2,230.40.
Appellant has appealed to this Conrt seeking a reversal based on two assignments of error, viz.: One, the trial conrt erred in its refusal to direct a verdict in favor of appellant at the close of all the testimony; Two, the trial court erred in refusing to grant a mistrial based on the introduction by appellees of improper testimony. These points will be discussed in the order named after first summarizing the factual background.
Background Facts. The accident happened on December 17, 1960 about four miles south of the City of Fort Smith. Highway 45 is a principal traffic artery with a speed limit of 45 miles per hour at the intersection involved. On this occasion appellees, who frequently travelled Highway 45, were travelling north as they approached the intersection. Appellant, the owner and operator of the Downtown Hotel at Fort Smith, was driving his car east on what appears to be a secondary road. As he approached Highway 45 there were three objects on his right side: One was a stop sign, indicating that he should stop before he entered Highway 45; this sign was approximately 20 feet west of the west edge of the pavement on Highway 45. The second object was a telephone pole apparently two or three feet west of the stop sign. The third object was a rather large advertising sign apparently approximately two feet west of the telephone pole. This sign was apparently about four or five feet in length and 11/2 feet in width, hanging .parallel with the secondary road. (The information relative to these objects, their locations and sizes is taken from photographs introduced into evidence by appellees and from oral testimony in the case.)
It is the contention of appellees that they were travelling approximately 45 miles per hour (the legal speed limit) as they approached the intersection, and did not see or realize that appellant’s car was attempting to cross the road in time to stop or prevent a collision. It is appellant’s contention that he stopped before entering upon Highway 45 and this is not disputed. He further contends that before he started up he looked to his right and saw no car approaching and then he approached Highway 45 at a speed of five miles per hour, and still seeing no car to his right, he entered upon the highway; that after his car had crossed the center line of Highway 45, the front of appellee’s car struck the right front door of his car.
One. The trial court was correct in refusing to instruct a verdict in favor of appellant because, in our opinion, the testimony presented a question of fact for the jury to resolve. The jury found negligence on the part of appellant and we think the record contains substantial evidence to support its finding.
Appellant’s testimony was substantially as follows: I pulled up within four feet of the intersection and stopped and waited until two or three cars had passed, then I looked and saw no other cars in sight on Highway 45; then I started up at about five miles per hour to cross Highway 45, going not less than 10 miles per hour; when the middle of my car was across the center line of Highway 45, I saw a car coming from the south about 150 feet away; then the collision occurred. Gertrude Beers, aged 29, who was riding with appellant testified that he stopped about two minutes while two cars passed going south; that he then pulled out into the intersection; that she didn’t consciously look to see, but she believed Highway 45 was clear at the time. James D. Mickle, a civil engineer, was the only other witness for appellant. He made a plat or diagram of the intersection. He stated that Highway 45 pavement was 23 feet wide and the stop sign was about 20 feet west of the west edge of the pavement. He also stated that a person standing at the intersection could see a car coming from the south a distance of 465 feet away.
Arlene Johnson, the driver of appellee’s car testified that she was familiar with Highway 45 at the scene of the accident since she drove over it frequently on her way to work in Fort Smith; on this occasion she drove 45 or 50 miles per hour until she came to the caution sign of 45 miles per hour when she reduced her speed accordingly; when she approached the intersection she first saw appellant’s car between the advertising sign and the stop sign; at this time appellant’s car was going slowly — about five miles per hour — as it approached Highway 45, and she let up on the gas; when she was about 70 feet from the intersection and saw appellant nearing the edge of the highway without stopping, she applied her brakes and honked her horn, and then the cars collided; the day was clear and sunny. Imogene Johnson, who was in the car with Arlene, testified that when they came over the rise (about 465 feet south of the intersection) she saw appellant’s car near the stop sign approaching the intersection, and when they were within about 85 feet of the intersection she noticed Arlene apply the brakes and blow the horn, and appellant proceeded onto the highway.
From the above it appears there was a conflict in the evidence on a vital point. According to appellant, he stopped two minutes within four feet of the edge of Highway 45, he looked and saw no car in sight, and then he drove onto the highway. Arlene and Imogene Johnson said they saw appellant’s car near the stop sign about 20 feet west of the edge of Highway 45, the car was moving and didn’t stop before entering the highway. The jury had the right to believe appellees’ testimony and disbelieve the testimony of appellant, which they evidently did in this case. It appears to us there are certain facts and circumstances tending to support the jury’s judgment. Gertrude Beers who was in the car with appellant did not corroborate his testimony on the vital point, i. e., that he stopped within four feet of the highway and that he looked for traffic. Also, if the jury believed Arlene and Imogene were able to see appellant’s car even when it was 20 feet from the intersection it had a right to believe appellant could have seen appellee’s car if he did actually look south on the highway when he was within four feet of the intersection. In other words, the jury had a right to conclude appellant failed to exercise due care, either to stop close to the highway or to look for oncoming traffic, or both — a duty imposed on him under the Court’s Instruction No. 4 given without objection. In this connection, we think the following quotation from Ness v. Males, 201 Md. 235, 93 A. 2d 541, 543, is applicable:
“We have held that the statutory obligation to yield the right of way at a stop intersection, imposed upon the unfavored driver, is not discharged by a mere stop but extends to the entire passage across the favored highway, and that the favored driver using a through highway is not required to slow down at an intersection or bring his vehicle under such control as to be able to stop, upon the assumption that an unfavored driver will fail in his duty.”
Two. Appellant’s contention that the trial court erred in refusing to grant a mistrial is based on a portion of the record set out hereafter. While appellant was being questioned by appellees’ attorney on cross examination the following occurred:
BY MB. GABNEB:
‘ ‘ Q. Two questions: Mr. Shroeder, do you have a room in that hotel that is called the ‘trick room’?
“A. No.
“Q. You don’t get paid $2.00 for every date that’s kept in there?
“A. We only rent rooms, as far as the hotel management is concerned.
“Q. Mr. Shroeder, do you want to keep for your own information this rap sheet here. Just stick it in your pocket. I don’t want to even give it to the jury.”
Mr. Dobbs: “Well, if you want to be insinuating you might as well put it in.”
Mr. Garner: ‘ ‘ All right, let him read it. ’ ’
Mr. Wood: “No, let me see what it is.”
Then outside of the presence of the jury, the following occurred:
Mr. Dobbs: "Now I want to make an objection to the insinuation of counsel for plaintiff in this case about a ‘rap sheet’, and ask for a mistrial because what he has produced is something in his own handwriting. It doesn’t purport to be anything about anybody except what he wants to say.”
Mr. Garner: "That’s a rap sheet on Frankie Sue Carter. ’ ’
Mr. Dobbs: ‘ ‘ Who made it ¶ ”
Mr. Garner: "I did, off of the official records. That’s the woman he was married to and this is the record compiled during the course of their marriage.”
The Court: "On cross-examination, if he wants to ask about these things, but I think it’s unfair to approach it in the way he did — to leave this innuendo when nobody knows what it is.”
Mr. Garner: “ I ’ll withdraw it then. ’ ’
The Court: "And I’ll have to instruct the jury to disregard it.”
Mr. Garner: ‘ ‘ That will be all right. ’ ’
Mr. Dobbs: "We still request a mistrial, and save our exceptions.”
Thereupon the court gave to the jury the following admonition :
"Ladies and gentlemen, counsel just handed to this witness a piece of paper and referred to it as a rap sheet. Now, that paper is not being offered in evidence by counsel. It is therefore my duty to instruct you that it is incompetent, and you are to disregard the sheet having been produced or any reference having been made to it in reaching a decision in this case.”
Although appellant did not ask for a mistrial after the admonition was given to the jury, we think he has properly saved his objection. As previously set out, after the court stated he would admonish the jury, appel lant said: “We still request a mistrial, and save our exceptions”. It would have been a futile thing to repeat the statement after the admonition was given. The trial court could not have been misled as to appellant’s position.
We have repeatedly held that the matter of granting or denying a mistrial lies within the discretion of the trial court. See Briley v. White, 209 Ark. 941, 193 S. W. 2d 326. At page 943 of the Arkansas Reports the Court said:
“Much latitude must be given to the trial court in handling matters of this kind, and, in the absence of a showing of abuse and discretion or a manifest prejudice to the rights of the complaining party, this court will not reverse a judgment on account of the action of the trial court.” [Cases cited.]
On the other hand, we have also held the exercise of such discretion is subject to review. See Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Hughes v. State, 154 Ark. 621, 243 S. W. 70; Kansas City Southern Ry. Co. v. Larsen, 195 Ark. 808, 114 S. W. 2d 1081; and Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428. In the last cited case, although this Court did not reverse the trial court, it did discuss subject question at length, citing numerous cases, and commented on the applicable governing rules. In so doing, the Court, among other things, said:
“There is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney and positively and emphatically instructed the jury to disregard the prejudicial statements.”
In the Vaughan case, supra, the Court said:
“. . . whenever it occurs to us that any prejudice has most likely resulted ... we shall not hesitate to reverse on that account.”
In the case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the “rap sheet”, but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record. The admonition of the court did not tell the jury what and to whom the “rap sheet” referred, and if it had done so the prejudice probably would have been even greater.
It is therefore our conclusion that the trial court erred in not granting a mistrial, and its judgment is accordingly reversed, and the cause is remanded.
McFaddin, J., dissents as to reversal. | [
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Smith, J.,
(after stating the facts). We think the verdict was properly directed in this ease. It is true that, under the lookout statute, approved May 26, .1911, it is made the duty of all persons running trains to keep a constant lookout for persons and property upon the track of any railroad, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company operating such railroad is liable and responsible for all damages resulting from the neglect to keep such lookout; and this is true, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employees in charge of such train could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril; and this act devolves upon the railway company the burden of proof to establish the fact that this duty to keep such lookout has been performed.
This act has been construed in a number of recent eases. St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431; Burch v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 396; Chicago, R. I. & P. Ry. Co. v. Gunn, 112 Ark. 401, 166 S. W. 568; Chicago, R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, 162 S. W. 51.
'These eases construe the lookout statute to mean that “upon proof of injury to such person by the operation of its trains under .such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided, if a lookout had been kept, that a prima facie case is made.” But there must be some evidence, and not mere conjecture or speculation, which would reasonably warrant the inference to be drawn by the jury, that the presence of the person injured upon the track could and would have been discovered by the operatives of the train 'by keeping a constant lookout, and that had such lookout been kept the injury could have been averted by the exercise of reasonable care thereafter; and if the jury finds the facts so to be, a recovery of damages will not 'be defeated on account of the contributory negligence of the party injured. But this presumption and right to recover does not arise upon mere proof of injury; but, upon the contrary, there must be proof sufficient to warrant the finding that the presence of the party injured could and would have been known to the operatives of the train and the injury to him averted by the keeping of this lookout, and the exercise of care after discovering his presence. Here there is nothing but conjecture as to the manner in which deceased was killed by the train, and various theories are ” offered in explanation of that occurrence; but the only positive evidence is that the engineer and fireman were keeping a lookout as the train approached from the west, but neither of them saw the deceased nor was aware that they had struck him; and the evidence upon the part of the citizens standing at the depot that they observed the train’s approach to the station and did not see any one upon the track in front of the train. Under these circumstances, it would be mere conjecture to say that deceased could have been seen, had a lookout been kept, and that the injury could have been averted by the exercise of care after discovering his presence on the track. But conjecture and .speculation, however plausible, can not be permitted to supply the place of proof. St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476, and cases there cited. The judgment of the court below is, therefore, affirmed. | [
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COURTNEY HUDSON GOODSON, Justice.
11AppeIIant Arkansas Lottery Commission (Commission) purports to bring this interlocutory appeal from an order entered by the Pulaski County Circuit Court addressing its motion to dismiss the amended complaint of appellee Alpha Marketing. For reversal, the Commission asserts that the circuit court erred by failing to grant its motion to dismiss Alpha Marketing’s claims for damages and injunctive relief because those claims are barred by the doctrine of sovereign immunity. We dismiss the appeal because the circuit court did not rule on the sovereign-immunity issue.
The record discloses that on March 18, 2010, Alpha Marketing filed a complaint for declaratory judgment naming the Commission as the defendant and seeking a determination that its trademarks, “ARKANSAS LOTTERY,” “ARKANSAS LOTTO,” and “LOTTERY ARKANSAS,” are valid and that it was entitled to the exclusive use of those marks. In its complaint, Alpha Marketing asserted that it is engaged in the business of advertising, promotion, and the sale of goods via radio, internet, and print media throughout Arkansas. |2It alleged that it had used the trademarks in the ordinary course of trade and that the Arkansas Secretary of State had recorded and issued to it Certificates of Trademark Registration for each of the marks. Further, Apha Marketing alleged that, in May 2009, a Senior Assistant Attorney General had sent it a cease-and-desist letter threatening legal action if it did not immediately cease all marketing efforts involving the trademarks. The complaint detailed a series of correspondence between Alpha • Marketing or its counsel and the Attorney General’s Office, culminating in a letter from the Senior Assistant Attorney General dated August 21, 2009, informing Alpha Marketing that the Attorney General’s Office was taking no further action “at this time” and that the matter would be referred to the Commission. The Commission answered the complaint, and pleading as an affirmative defense, it asserted that Alpha Marketing’s registration of the trademarks was contrary to law and that the registrations of the marks should be cancelled.
Thereafter, Alpha Marketing filed an amended complaint on August 30, 2010. In it, Alpha Marketing reasserted its request for declaratory judgment and added a claim for trademark infringement against the Commission. As its claim for trademark infringement, Alpha Marketing alleged that the Commission had used, without its consent, colorable imitations of its registered trademarks in connection with the sale, distribution, and advertising of the Commission’s goods and services. As relief, Alpha Marketing sought damages for lost profits and an injunction to prohibit the Commission from manufacturing, using, displaying, or selling any imitations of its registered marks.
On September 21, 2010, the Commission filed a motion to dismiss the amended | ¡¡complaint on both Alpha Marketing’s request for declaratory judgment and its claim of trademark infringement. In its motion and accompanying brief, the Commission asserted that Alpha Marketing’s claim for declaratory judgment should be dismissed because Alpha Marketing’s trademark registrations were improperly granted and because the marks were not entitled to trademark protection. Specifically, the Commission argued that the marks were deceptive and implied an illegal purpose because lotteries were not authorized in the State of Arkansas when the registrations were obtained. In support of this proposition, the Commission relied on a decision from the Minnesota Court of Appeals, State by Andersen v. Reward Corp., 482 N.W.2d 815 (Minn.Ct.App.1992). The Commission also argued that the trademarks were improperly granted and invalid because the marks falsely suggest a connection between Alpha Marketing’s business and the Arkansas Scholarship Lottery and because the marks were deceptively misdescriptive. Further, the Commission asserted that, even if the trademarks were valid, Alpha Marketing was not entitled to exclusive rights to the marks because the trademarks were merely descriptive without secondary meaning. With regard to the claim for trademark infringement, the Commission asserted that the complaint had failed to state facts upon which relief could be granted because Alpha Marketing had not alleged facts identifying any instance where the Commission had used colorable imitations of Alpha Marketing’s trademarks. Finally, the Commission maintained that the doctrine of sovereign immunity barred Alpha Marketing’s request for damages and in-junctive relief for trademark infringement.
In response to the motion to dismiss, Alpha Marketing disputed the Commission’s [¿contention that its request for declaratory judgment should be dismissed. It maintained that its trademarks were not deceptive or deceptively misdescriptive. It also argued that the decision from Minnesota relied upon by the Commission was inapposite. In addition, Alpha Marketing asserted that its trademarks do not suggest a connection between it and the Arkansas Scholarship Lottery and that it had established a secondary meaning for the marks. Alpha Marketing further argued that its claim of trademark infringement withstood the motion to dismiss. It asserted that it had alleged sufficient facts upon which relief could be granted. Alpha Marketing also contended that the claim was not barred by sovereign immunity because the cease-and-desist letter sent from the Attorney General’s Office was an act of inverse condemnation of its intellectual property.
After a hearing, the circuit court entered an order announcing its decision on March 11, 2011. After reciting the procedural history of the case and briefly outlining the parties’ various contentions, including those surrounding the issue of sovereign immunity, the circuit court ruled as follows:
On August 28, 2002, the Arkansas Secretary of State issued Alpha Marketing a certificate of trademark registration for the terms “Arkansas Lottery” and “Arkansas Lotto.” On February 10, 2009, the Secretary of State issued Alpha Marketing a certificate of trademark registration for the term “Lottery Arkansas.” The Lottery Commission’s motion challenges the trademarks by questioning whether any entity other than the Commission is entitled to use the terms “lottery” and “Arkansas Lottery.” First, the court is unpersuaded that Alpha Marketing’s complaint has not asserted a claim for trademark infringement. This is not a question about whether infringement has occurred. Rather, the Court simply recognizes that Alpha Marketing’s complaint is legally sufficient to assert a claim for trademark infringement. The complaint refers to the existence of trademarks, the fact that the marks are held by Alpha Marketing by valid authority of the Arkansas Secretary of State, and makes the claim that the Lottery Commission is infringing on the marks. | ¡/Those allegations certainly are sufficient to state a claim for trademark infringement.
The State of Arkansas, acting through the Secretary of State, issued the trademarks that Alpha Marketing holds and claims are being infringed upon by the Lottery Commission. Those marks were sought and issued openly. The Secretary of State issued them with full knowledge what they were. By challenging the marks as unlawfully held, misleading, or deceptive, the Lottery Commission’s dismissal motion amounts to an accusation that the Arkansas Secretary of State was complicit in unlawful, misleading, or deceptive conduct. The court finds that argument unpersuasive.
It necessarily follows, therefore, that Defendant’s motion to dismiss Plaintiffs amended complaint must be denied. Alpha Marketing’s complaint alleges that Alpha Marketing holds trademarks that are being infringed upon by the Lottery Commission. Mere use of the words “lottery” and “Arkansas Lottery” and “Arkansas Lotto” is not unlawful in Arkansas. Counsel for the Lottery Commission identified no court opinion in Arkansas to the contrary. As this case must be decided based on Arkansas law, the Court found the Commission’s reliance on court opinions from other jurisdictions unpersuasive.
The motion to dismiss for failure to state a claim upon which relief can be granted is denied.
The Commission filed a timely notice of appeal from this order from which it brings this interlocutory appeal.
On appeal, the Commission contends that the circuit court erred in denying its motion to dismiss Alpha Marketing’s claims for damages and injunctive relief because those claims are barred by sovereign immunity. However, the circuit court did not address the issue of sovereign immunity in its order, and the absence of an express ruling is fatal to this interlocutory appeal.
Ordinarily, an appeal must be taken from a final judgment or decree entered by the circuit court. Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745; Ark. R.App. P.-Civ. 2(a)(1). |f,This rule is not without exception. As pertinent here, Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure — Civil permits an appeal from an interlocutory “order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official.” The rationale for this exception is sound, because the right to immunity from suit is effectively lost if the case is permitted to go to trial. See Simons v. Marshall, 369 Ark. 447, 255 S.W.3d 838 (2007); State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001).
Logic dictates that, before an interlocutory appeal may be pursued from the denial of a motion to dismiss on the ground of sovereign immunity, we must have in place an order denying a motion to dismiss on that basis. In this case, the Commission moved for dismissal on multiple grounds, only one of which was based on the defense of sovereign immunity. In its order, the circuit court noted that the Commission had raised the issue of sovereign immunity in defense of the claims for monetary and injunctive relief. However, the circuit court ruled only on the Commission’s separate claim that Alpha Marketing had not stated a cause of action for trademark infringement. The court did not pass judgment on the Commission’s argument that the relief sought by Alpha Marketing was barred by sovereign immunity. It is axiomatic that, without a ruling on the sovereign-immunity issue, there can be no interlocutory appeal.
This point is ably demonstrated by our decision in Carquest of Hot Springs, Inc. v. General Parts, Inc., 361 Ark. 25, 204 S.W.3d 53 (2005). In that case, the appellant purported to bring an interlocutory appeal from an order denying class certification. Such orders are [7subject to an immediate appeal pursuant to Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure — Civil. We dismissed the appeal, however, because the order appealed from contained no ruling denying class certification. Likewise, in Malone & Hyde, Inc. v. West & Co. of La., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989), we dismissed an interlocutory appeal that was purportedly brought from an order denying a request for an injunction. Similarly, orders refusing an injunction may be appealed on an interlocutory basis under Rule 2(a)(6). We dismissed the appeal because, in actuality, the circuit court’s order contained no ruling refusing to grant an injunction.
Nor can we presume a ruling from the circuit court’s silence. We have held that we will not review a matter on which the circuit court has not ruled, and a ruling should not be presumed. Wilson v. Dardanelle Dist. of the Dist. Court of Yell Cwty., 375 Ark. 294, 290 S.W.3d 1 (2008) (emphasis supplied); see also Stilley v. Univ. of Ark. at FoH Smith, 374 Ark. 248, 287 S.W.3d 544 (2008); Reed v. Guard, 374 Ark. 1, 285 S.W.3d 662 (2008); Fordyce Bank & Trust Co. v. Bean Timberland, Inc., 369 Ark. 90, 251 S.W.3d 267 (2007).
With regard to the requirement of a ruling, our decision of White v. Davis, 352 Ark. 183, 99 S.W.3d 409 (2003), is instructive. There, the appellant raised a question of venue in circuit court, but the court offered no ruling on that issue. We took the case on review from the court of appeals, which had held that the circuit court had resolved the issue, sub silentio, by continuing with the hearing. We disagreed with the court of appeals’s conclusion that the continuation of the hearing constituted a denial of the motion, and we held that the question of venue was not preserved for appeal because the circuit court had not expressly ruled on that _yissue. In so holding, we relied on McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), from which we quoted the following excerpt:
We have held many times that the burden of obtaining a ruling is on the mov-ant and objections and questions left unresolved are waived and may not be relied upon on appeal. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). By appellant’s failure to include any record of a ruling, we are faced with essentially the same situation on review.
We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant waived any objection on appeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.
McDonald, 300 Ark. at 447-48, 780 S.W.2d at 19-20. We concluded the White opinion by saying:
Consistency requires that we follow our long-standing rule that a moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling, the issues are not preserved for our review. Because Baker did not properly obtain a ruling on his objection to venue being in Faulkner County, we are unable to reach the merits of this appeal, and the decision of the trial court is affirmed.
White, 352 Ark. at 187, 99 S.W.3d at 412-13.
For some undisclosed reason, the circuit court neglected to rule on the issue of sovereign immunity, leaving the question to be decided on another day. Where no final or otherwise appealable order is entered, this court lacks jurisdiction to hear the appeal. Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003). Because we have not acquired | ^jurisdiction, we dismiss the appeal without prejudice, so that the Commission may return to circuit court to obtain a ruling for this court to review on an interlocutory basis.
Dismissed.
HANNAH, C.J., BROWN, and BAKER, JJ., dissent. | [
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Bourdand, Sp. J.
This was an action in ejectment in the Crittenden circuit court, brought by appellees to recover from the appellant a large quantity of land, being portions of sections 14, 22, 23 and 24, in township 5 north, of range 8 east, of which it is alleged that appellant is in the unlawful possession. The pleadings are lengthy, and the whole record suggests the propriety of an attempt at condensation of treatment. It is believed, therefore, that a substantial statement of the facts disclosed by the record will afford a sufficiently favorable view of the issues and points of contention between the parties.
Appellees’ deraignment of title appears to have a double aspect. It seems that one John G. Rieves had owned the land in controversy, and that Ella G., the appellant, was then his wife. In the spring of 1875, Rieves died in possession, childless, and widowing Ella G., who, left in possession, inter-married in 1877, with B. F. McConnell, who has since died. From exhibits in ■evidence, it appears that in 1871 Rieves and his wife, Ella G., conveyed the land in trust to one Jefferson, for -Fitzgerald & Company, with power in the trustee to sell in the event of default. The instrument also contains a power in the cestui que trust to substitute in ■writing a new trustee upon conditions specified. Jefferson, the’trustee, in January, 1876, by a written declination, renounced the trusteeship, and on the same day the cestui que trust in like manner substituted and appointed in his stead one Metcalf. The new trustee, Metcalf, in March of the same year, executed and delivered to Fitzgerald & Company, in apparently regular form, a deed containing recitals as to default, advertisement, sale and purchase of the land by Fitzgerald & Company; and the latter, in July, 1882, by deed without warranty, conveyed the land to B. F. McConnell. From a tax deed in evidence, however, it is made to ap pear that, for the year succeeding the exebution of the trust deed by Rieves and wife, namely, for the year 1872, the lands were forfeited for taxes. They, on that account, were sold by the collector, and one Hardin became the purchaser, and received a certificate. It appears that the collector’s sale took place on the 11th day of June, 1873. Thereafter, and when more than two years had expired from the date of the tax sale,, appellees, Day & Proudfit, became purchasers from Hardin, taking an assignment of his certificate, upon which the county clerk issued to them this tax deed.
In this connection, it is appropriate to advert to another trust deed offered and read in evidence by appellant, apparently without objection, in conjunction with other evidence, for the obvious purpose of destroying the alleged tax deed as a link in the chain of appellees’ title. This trust deed was executed in March, 1873,. two years after the execution of the Fitzgerald deed. It was executed by Rieves and wife to one Oliver, trustee for Day & Proudfit, appellees in this action; and at. the time of their purchase from Hardin, and of the execution of the tax deed to them, Oliver, the trustee, was. in possession of the premises, at their instance, appropriating the rents and profits to the trust debt. It is. not amiss to observe here that the Oliver deed does not embrace the land lying in section 22 ; and if the trust, was ever finally executed, the fact does not appear in the record. In any event, appellees do not, it seems,, rely upon this deed in their deraignment of title.
And again, recurring to McConnell, who, we have-seen, purchased under the Rieves-Jefferson deed, it appears that, four years after his purchase, McConnell was. in possession of the land, and it is made to appear that, during a portion of that period, at least, he rented from Day & Proudfit. It may be inferred, we think, from the circumstances, that McConnell rented under the- belief that the title of Day & Proudfit, under the tax deed, was superior to his own under the Jefferson trust deed ; but, after a time, changing’ his mind, he asserted title to the land, and refused to give up the possession. In any event, it appears from a transcript of the record of the federal circuit court, sitting at Dittle Rock, that Day & Proudfit sued him in March, 1886, they being citizens of Tennessee, and he a citizen of Crittenden county, Arkansas. This transcript of the record of the federal court is duly certified, under the official seal of the clerk of that court, to be ‘‘a true, correct and compared copy of the record remaining in my office, and constitutes a complete transcript of the record in the above entitled cause.” There is.contained in the transcript a complaint in ejectment by Day & Proudfit against B. R. McConnell, with exhibits, setting up title under the tax deed already mentioned, and alleging that the plaintiffs own the land, and are entitled to the possession, and that McConnell unlawfully withholds the same, with prayer for possession. There is also a copy of the judgment, finding that Day & Proudfit owned the land and were entitled to the possession as against McConnell, and writ of possession was accordingly adjudged, with cost. There is, likewise, transcribed a return, certified to have been made on a writ of possession, showing that the lands were delivered to Day & Proudfit by the marshal of the eastern district of Arkansas, on the 17th day of November, 1886. If McConnell was summoned in the action, however, or if a summons was issued, or if he in any way appeared, the record is silent as to the fact.
To each link in appellee’s title, thus offered in evidence, appellant filed exceptions before the trial: (1) To the tax deed, because it shows a sale on the 11th day of June, 1873, which, it.is alleged, renders the deed void ; (2) to the transcript of the federal court, be cause appellant, not being a party to the suit, is not, it is alleged, bound by the judgment, and because McConnell, it is alleged, was not summoned, and did not in any manner appear in the suit; and (3) to the Met-calf deed, because he was not rightfully appointed, it is alleged, nor did his deed show lawful sale. The exceptions were severally overruled, and properly reserved for adjudication here. But their consideration will be more convenient in another connection.
Appellant’s view of the law, as indicated, was embodied in several instructions asked, but refused ; and, having set up in her answer the plea of adverse possession in bar of the action, she also asked an instruction to the effect that as to this plea the onus of proof was on the plaintiffs. This instrument was likewise refused, and her exceptions reserved. The court thereupon instructed the jury, in effect, that the chain of title in evidence upon the part of appellees, in connection with the transcript of the federal court, showed ownership in them, and their right to the possession as against appellant, unless the jury believed, from the evidence, that appellant’s plea of adverse possession had been established. And upon the plea of adverse possession the jury were instructed, in substance, that such possession must have been continuously in appellant for seven years at least; that it must appear from the evidence to have been open, notorious and adverse; that any break in the continuity of her possession, if she had it, would work a loss of the time prior to, and during the break, and if she resumed the possession, the time must be reckoned from that event.
The evidence as to adverse possession was in sharp conflict. Prom the foregoing, it is sufficiently clear that the appellant relied not solely upon her plea of adverse possession, but that she stood upon her rights, real or supposed, as the relict of John G. Rieves, disputing the strength of appellees’ title to divest her.
The first question, then, is: Does appellees’ chain of title, in connection with the transcript of the federal court, show ownership in the land's, or the right to the possession, as against appellant, waiving, for the present, the consideration of her plea of adverse possession.
And first, as to the tax deed. It is of course clearly void. The time of the sale of the lands by the collector, the 11th day of July, 1873, was not the time prescribed by law for the sale of delinquent lands. The legislature, in that year, by act of March 17, extended for thirty days, the time for the collection of taxes, but no provision was made for the sale of lands found delinquent at the end of the extension. So that the general revenue law in force must have governed. The effect of this was that the lands could not have been legally sold until the regular time for such sales in the succeeding years. Vernon v. Nelson, 33 Ark. 748; Allen v. Ozark Land Company, 55 Ark. 549.
And it is to be borne in mind that it was upon this . tax deed, void though it be, that appellees founded their action against McConnell, and obtained a judgment for the lands, in the federal court. It is insisted, however, that this judgment is void also; at least, that it does not conclude appellant, who was not a party to it. The contention here, it must be declared, has given the court most serious concern ; but a definite conclusion has been reached, and that conclusion, hereafter to be expressed, in its proper connection, is thought to be supported by sound reason, a wise public policy and the clear weight of authorities. It is not a question, of course, whether appellant, if she had been a party of record to the suit in the federal court, would be concluded by its judgment. The suit was against B. R. McConnell, and the judgment was against him. At that time, certainly, appellant was his wife. And what will conclude him in this regard must, then, it seems, also conclude her; but only, it is to be observed, as to the rights which, but for the judgment, she might, as the widow of McConnell, assert to the subject-matter of that suit. Now, if the judgment, in its collateral relation here, must be held to be valid, as against McConnell, the doctrines of res judicata and estoffel effectually close his mouth, as well as a denial of the validity of the tax deed, as to the assertion of any rights under the Fitzgerald conveyance, which he held at the date of the judgment. The same may be said, of course, of his widow, as such. In other words, assuming the validity of the judgment, she is concluded, as the widow of McConnell, from disputing the tax deed, and from taking any claim to the land, or taking any benefit on account of the Fitzgerald deed to McConnell.
But it is not as the widow of McConnell only that we are to pass upon the asserted rights of appellant. What rights had she as the widow of Rieves? If any, can it be said that, as to them also, she is concluded by the federal court judgment? We think not, but at the .same time we are unable to find favorably to her contention that she has such rights. Her contention is that, the tax deed being void, her rights as Rieves’ widow remain, as to that, intact; and, appellees not relying on the Oliver deed, her further contention.is that the Fitzgerald conveyance to McConnell .is void, so that her right to the possession, which she has, is clear, at least as against appellees.
And this brings us to the question of the validity of the Fitzgerald deed. It is insisted by appellant, as to this, that Metcalf, who assumed to sell the land as trustee, had no authority, because, it is claimed, Jefferson only is mentioned in the deed as trustee, and there was no power of substitution. It is conceded by appellant that such power was provided for in the original deed, but it is contended by her also that there was a new deed, and that in it, which, she maintains, took the place of the old, there is no provision for a substituted trustee. If this were the legal effect of the instruments in evidence, her contention would not be without merit. Hill on Trustees, 177; 2 Perry, Trusts, sec. 602g; Stallings v. Thomas, 55 Ark. 326. But, instead of there being a new deed, there was an instrument, executed by the parties, in which it is substantially declared that it is not intended to be a new deed, but an “extension.” And while the “extension” does not in terms provide for a new or substituted trustee, it expressly and particularly refers to the trust deed, and makes all of its provisions a part of the extension.
Metcalf, then, as we have seen, being properly pointed, was his sale according to the terms of the deed? He was appointed in writing, as provided. There are, in the deed, provisions for the manner of sale in case of default; and an examination of the deed executed by Metcalf shows recitals in substantial conformity to the requirements of the deed ; and if the recitals are not true in any particular, it devolved on appellant to overturn them by competent evidence, which was not attempted. It follows that the deed is valid. Dryden v. Stephens, 19 W. Va. 1; Hess v. Dean, 66 Tex. 663; Bergen v. Bennett, 2 Am. Dec. 281; Minuse v. Cox, 9 Am. Dec. 313; Graham v. Fitts, 53 Miss. 307; Turner v. Watkins, 31 Ark. 429; Tyler v. Herring, 67 Miss. 169. As a result, it follows, too, that, the Rieves title having passed to McConnell, appellant, as the widow of Rieves, has no interest in the land.
Moreover, it is apparent from the foregoing that appellees must recover on the strength of their title in this action, as against her, unless, as has been remarked, she can either maintain her plea of adverse possession, ■ or defeat appellees’ tax deed ; and the latter she is estopped from doing unless the judgment of the federal court against McConnell, her last husband, be void. 1 Herman, Estoppel, p. 561; Poorman v. Mitchell, 48 Mo. 45; Pollard v. Railroad Co. 101 U. S. 223.
After mature deliberation we are not prepared to c r the judgment void in this collateral inquiry. The clear weight of the authorities state the rule to be that, in a collateral proceeding, the judgments of domestic courts of general jurisdiction are presumed to be within jurisdiction, unless, from an inspection of the record itself, it can be clearly seen that they are without. Culley v. Edwards, 44 Ark. 426; Adams v. Thomas, 44 Ark. 270; Apel v. Kelsey, 47 Ark. 419; Bosworth v. Vandewalker, 53 N. Y. 600; Galpin v. Page, 18 Wall. (U. S.) 365.
It is insisted by appellant that the record, being # certified to be “true copies of the record remaining in the clerk's office," and that the “transcript is complete,’* it is a showing by the record itself, no summons appearing, that there was no summons, and that the defendant was never brought into court. The argument possesses plausibility, nor is it to be denied that it is supported by eminent authorities ; but the decided weight of the authorities is, we think, the other way.
The judgement under consideration, according to the best reason that we have been able to bring to bear, is properly said to be silent as to the means whereby the defendant was brought into court. The clerk, it is true, certifies all of the records of that case, remaining in his office: but whether there ever was on file a summons with a return of service thereon, which has since been lost; or whether the defendant irregularly appeared corporally, without formal summons, and consented to judgment which was deemed by the court sufficient, without reciting the fact in the record, the clerk probably did not know ; or if lie had so known, it is not within the scope of his duties to put' such facts on record by his certificate. This court judicially knows that, while the clerks of the courts are, as a rule, careful to preserve the official files, and are, generally, painstaking in the discharge of official duties, they are, at the same time, far from infallibility. This judgment of the federal court was solemnly rendered. It recites that the court heard proof on the part of the plaintiff, and, moreover, that ‘.‘the court was well and sufficiently advised as to what judgment to render.” There is a further recital, which is not without significance, which is: “And, the defendant failing to introduce any proof, it is, etc.,” from which it may be fairly implied that the court understood, from evidence before it, that the defendant had knowingly refused to appear, after service upon him, as such is one of the accepted meanings of the word “failed.” At all events, it is not at all probable that the court would have rendered the judgment in the terms it is, unless there had been legal evidence before the court in some form that the defendant had been duly summoned, or had appeared in some manner deemed sufficiént. 1 Black on Judgments, sec. 270, and authorities there cited ; Freeman on Judgments, secs. 124-132; Mitchell v. Meuley, 32 Tex. 460; Goar v. Maranda, 57 Ind. 339; Evans v. Young, 10 Col. 316; Herrick v. Butler, 30 Minn. 156, 14 N. W. Rep. 794; Sloan v. McKinstry, 18 Pa. St. 120; Wilcher v. Robertson, 78 Va. 602.
When the jurisdiction of a court of general jurisdiction depends upon facts not appearing in the record, they will be presumed in a collateral proceeding. Applegate v. Lexington, etc. Mining Co., 117 U. S. 269; Weaver v. Brown, 87 Ala. 533; Taggert v. Muse, 60 Miss. 870. To affirmatively establish the jurisdiction of a superior court, it is not necessary that the facts, evidence or circumstances conferring it should be set out in the record ; and, should the record disclose nothing, jurisdiction over the person will be presumed upon collateral attack of the judgment. Grignon's Lessee v. Astor, 2 How. (U. S.) 319; Bush v. Lindsey, 24 Ga. 245. And when such court exercises jurisdiction, and the record is silent, it will be presumed that it had jurisdiction, upon collateral attack. The presumption in such case is that the court decided, ufon facts before it, that it had jurisdiction ; and this presumption, we think, is not overturned by the fact that the clerk has certified that a transcript is complete which does not contain a summons. The summons may have been lost, but he has certified the judgment. That we have before us. And the very rendition of it being presumed to have been preceded by a finding of jurisdiction by a high judicial functionary, who must have known when the facts showed jurisdiction, a wise public policy forbids that a clerical certificate to a transcript not containing a summons shall contradict a contrary presumption flowing from the judgment itself. Clary v. Hoagland, 6 Cal. 685.
It is our opinion, therefore, that the lower court did not err in the instructions as to the effect of appellee’s “chain of title,” in connection with the judgment of the federal court.
Appellant had no right as the widow of Rieves. The jury found against her plea of adverse possession, under proper instruction, or at least that were not unfavorable to her ; and, while the title of appellees has the defects which have been pointed out, the judgment of the federal court against McConnell confronts his widow with the doctrines of estoppel and res judicata, which cut her off from any means of attack, or defeat her in any assault upon appellees’ title.
We have, finally, to say that the onus of proof as to ^ ^ adverse possession, set up by appellant, was on her, and the court properly refused her reqhest to instruct that the onus in such case was on appellees; and if there were any errors in the court’s instructions on this subject, they were, we think, in appellant’s favor.
There are some further exceptions reserved, but not of any practical importance. Finding, therefore, no error in the record to the prejudice of appellant, the judgment of the lower court is affirmed. | [
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Battle, J.
In 1883, D. H. Sparkman died intestate, seized and possessed of certain land, which he used and occupied as his homestead. He left surviving him a widow and five minor children, three of whom are appellants in this case. In 1885 the widow intermarried with J. C. Roberts, who immediately took possession of the homestead, and used and occupied it until he secured a divorce from his wife in 1892, a period of about seven years. In that time he made many valuable improvements on the land, and the children remained with and labored for him ; the services performed by them being worth as much as their board, clothing and tuition. He may have collected rents for a part of the homestead, and paid them to his wife ; but the principal part, it appears, he occupied and used, and enjoyed all the benefits arising from the same. Three of the children seek by this action to hold him liable for their portion of the rental value of the place, and he seeks, among other things, to set-off their demands with the value of his improvements.
The questions for us to determine are, what is his liability to the children for the use and occupation of the homestead, and whether the children are liable for the improvements, or any part of them.
The constitution of this state provides: “If the owner °£ a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life, provided that if the owner leaves children, one or more, said child or children shall share with said widow and be entitled to half of the rents and profits till each of them arrives at twenty-one years of age, each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all to go to the widow, and provided that said widow or children may reside on the homestead or not; and in case of the death of the widow all of said homestead shall be vested in the minor children of the testator or intestate.”
Under the constitution the widow and minor children of a deceased husband and father are seized and possessed of an entire estate or interest in the lands which constitute the homestead of the deceased. This interest is set apart from the husband’s estate in such lands for their joint benefit. It is like unto a joint tenancy, with right of survivorship. No partition can be made of it. The widow is the owner of the one undivided half of it for her natural life, or until she shall abandon it, and the minor children are entitled to the other half till each of them arrives at the age of twenty-one, each child’s right ceasing as he or she reaches that age, and going to the younger children, until all of them become twenty-one years old, when the entire homestead vests in the widow. If she dies before they reach that age, then the whole of it vests in them, if they survive her.
On account of the entire and indivisible interest of the widow and minor children in the homestead, they are entitled to the joint use and occupation of the common property. But the constitution does not require them to reside on the land as a condition to their right to hold it. They may rent it for their support or education. In that event the widow is entitled to one half of the rents, and the minor children to the remainder. But a more difficult question arises when the widow, or husband she may marry, occupies the homestead, and derives the whole or principal benefit therefrom.
At common law, before the enactment of statute 4 & 5 Anne, each co-tenant had the right to “enter upon and hold exclusive possession of the common property, and to make such profits as he can by proper cultivation, or by other usual means of acquiring benefit therefrom, and to retain the whole of such benefits, provided that in having such possession, and in making-such profits, he has not been guilty of an ouster of his co-tenant, nor hindered the latter from entering upon the premises and enjoying them as he had a right to do.” Freeman on Co-tenancy and Partition, sec. 258. But this rule was changed by section 5917 of Sandels & Hill’s Digest, which apportions the benefits of the common estate more equitably among the co-tenants. It provides: “ When one or more joint tenants, tenants in common, or co-parceners in any real estate, or any interest therein, shall take, use or have the profits and benefits thereof in greater proportion than his interest therein, such person, or his executor or administrator, shall account therefor to his or their co-tenant jointly or severally.” Under it'the liability of a tenant to his co-tenant is extended to all profits and benefits derived by him from .the common property in excess of his proportionate share. He is liable as well for the benfits derived from the property by his own use and occupation of it as for the rents received for it from others.
At the time of the adoption of the constitution, the old common law rule had been abrogated, and the statutes had made joint tenants, tenants in common, and co-parceners accountable to their co-tenants for any rents, profits, and benefits derived from the common property in excess of their share. Presumably with a knowledge of this rule, the constitutional convention created a relation of tenancy between the widow and children as to- the homestead, very much like that of joint tenants. Haying done so with this knowledge, and undertaken to define- their respective rights, it would have been natural, if they had. intended that the same rule should not govern the relation of tenants established by the constitution, for them to have specified wherein it should not apply. They have not done so, unless it was.by saying that the widow should have one half of the rents and profits, and the minor children the other half. Hence there is strong reason to infer that they intended that each one should be accountable to the others for any rents, profits and benefits he or. she may derive from the homestead in excess of his or her share, the widow being entitled to one-half and the children to the remainder. A careful consideration of the constitution will show that such is its intention.
In giving to the minor children the right to share the homestead equally with the widow, the constitution at the same time vested them with the right to one-half of the rents and profits. As to the use, occupancy, rents and profits, they are placed upon an equality with the widow. The conferring upon them these rights to the exclusion of the adult children, and exempting them from the duty to remain upon the homestead, is a recognition of their probable need of the assistance which can be derived therefrom for their support or education, and of their inability, without it, to make adequate provision for themselves ; and is an evidence of the intention of the constitution to supply this want by the homestead, so far as it will extend.' They were doubtless exempted from the duty to occupy the homestead for the purpose of maintaining their right to the sg.me, because-it was manifest, from their age, inexperience, incapacity, and lack of property, they might not make it profitable or desirable to do so. In both events, provisions are made for them. In the latter it was intended that they should have one-half of the rents or profits derived therefrom, if occupied by another. In every event they are to have the benefit of the homestead during their minority. To permit the widow, or any one in her right, .to use .and occupy it without liability to them for one-half of the benefits thereby enjoyed would defeat the object, in part, -of the constitution in making this provision for them. A construction that will give her the right to do so is contrary to the spirit and intention of the constitution. Hence we conclude that the widow, if she occupy and use it, is liable to the minor children for one-half of its rental value, that being the benefit derived.
The payment of rents to the mother for the children by Roberts, the homestead being derived from their father, was unauthorized. It is true that the mother is the natural guardian of her children when the father is dead; but she is not entitled to the care and custody of their estate, when it is not derived from her, until she gives bond and qualifies as other guardians. Sandels & Hill’s Digest, sec. 3568.
Minors are not liable for permanent and valuable improvements placed on their homestead. They cannot be improved out of their homesteads ; nor can the occupants be lawfully charged an increased rent on account of their improvements. In the absence of a contract, the occupants should be allowed a reasonable compensation for necessary repairs, and charged with such rents for the premises as they would have yielded without the improvements. McCloy v. Arnett, 47 Ark. 456; Reynolds v. Reynolds, 55 Ark. 369.
Reversed and remanded for a new trial.
Bunn, C. J., and Hughes, J., being absent, did not participate in the consideration of this.case. | [
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Hughes, J.
(after stating the facts). Section 5763 of Mansfield’s Digest (now section 6606 of Sandels & Hill’s Digest), provides, after prescribing the notice to be attached to the delinquent list of lands to be advertised for sale, that “the clerk of the county court shall record said list and notice in a book to be kept by him for the purpose, and shall certify at the foot of said record, stating in what newspaper said list was published,” etc. This section further requires that said list shall show the taxes, penalty and costs due upon each tract, and that it shall be stated in said notice that each tract, or so much thereof as will be necessary to. pay the same, will be sold for the taxes, penalty and costs due thereon, unless the same are paid before the day of sale.
Section 5769 of Mansfield’s Digest (now section 6612 of Sandels & Hill’s Digest) provides that “ the clerk of the county court shall attend all such sales of delinquent lands, * * * made by the collector of the county, and shall make a record thereof in a substantial book, therein describing the several tracts of land * * * as the same shall be described in the advertisement aforesaid, stating what part of each tract of land * * * was sold, the amount of taxes, penalty and cost due thereon and to whom sold; and he shall record in a separate book, to be kept for that purpose, each tract of land * * sold to the state, together with the taxes, penalty and cost due thereon. Immediately after such sale, the clerk of the county court shall make out and certify to the auditor a copy of each of said sale lists as recorded in said book.”
It is contended for the appellees that the record of i . - . . the list ana notice required to be kept by the section first named is the record of the sale to which we must look to determine the amount of the taxes, penalty and cost for which each tract of land was sold. But evidently this is not the case, as the record is required to be made before the sale, and therefore cannot be a record of what was done at the sale. It is only the record of the delinquent list, the notice of sale and the amount of taxes, penalty and cost, for which the collector proposes to sell each tract, unless the same are paid before the day of sale. It follows that the sales of these tracts were void, under the decision, in Goodrum v. Ayers, 56 Ark. 93, where it is held that a sale for twenty-five cents too much was void. We are constrained by the record to find that these items of twenty-five cents and ten cents were included in the amounts for which each of these tracts was sold.
Does the act of March 31, 1883 (Sandels & Hill’s Digest, sec. 6625), cut off this defense. The section is as follows: “Section 6625. In all controversies and suits involving title to real property, claimed and held under and by virtue of a deed executed substantially as aforesaid by the clerk of the county court, the party claiming title adverse to that conveyed' by such deed shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year (or years) named in the deed, or that the taxes had been paid before the sale, that the property had been redeemed from the sale according to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption, under the laws of this state ; or that there had been an entire omission to list or assess the property, or to levy the taxes, or to give notice of the sale, or to sell the property. But no person shall be permitted to question the title acquired by a deed of the clerk of the county court, without first showing that he, or the person under whom he claims title to the property, had title thereto at the time of. the sale, or that title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title as aforesaid. Provided, In any case where a person had paid his taxes, and, through mistake (or otherwise) by the collector, the land upon which the taxes were paid was afterwards sold, the deed of the clerk of the county court shall not convey the title. Provided, further, In all cases where the owner of lands sold for taxes shall resist the validity of such tax title, such owner may prove fraud committed by the officer selling said lands or in the purchaser, to defeat the same, and, if fraud is so established, such sale and title shall be void.”
Under the decisions of this court in Cairo & Fulton R. Co. v. Parks, 32 Ark. 131, and in Radcliffe v. Scruggs, 46 Ark. 96, a substantial ‘‘meritorious defense” against a claimant under a purchase at tax sale cannot be denied or cut off by the legislature.
In Radcliffe v. Scruggs, the court, by Mr. Justice Smith, said : ‘‘And by ‘meritorious defense’ we mean any act of omission of the revenue officers in violation of law and prejudicial to his (the former owner’s) rights or' interests, as well as the jurisdictional and fundamental defects which affect the power to levy the tax or sell for the non-payment. ***** Our legislature and previous decisions have always distinguished •class of defects (mere irregularities or informalities) which have no tendency to injuriously affect the tax payer, and substantial defects, such as go to the jurisdiction of the levying court to levy a particular tax or of the power of the officer to sell for non-payment or the omission of any legal duty, which is calculated to prejudice the land owner.”
Can it be doubted — in fact, is it not very clear — that to sell a land owner’s land for an amount not due upon it, and never levied upon it, and which, if levied,- was -unlawfully levied, has a direct tendency to injuriously affect his interest, and the .power of the officer to sell for non-payment ? It is obvious that the defenses against the tax sales in this case are ‘‘meritorious,” as -that term is defined in Radcliffe v. Scruggs, and by the weight of authority, and that the legislature cannot deprive the property owner of such defense without, in -the language of Mr. Justice Smith, ‘‘transcending the boundaries of its power.” This is substantially the language of Judge Caldwell, in Martin v. Barbour, 34 Fed. Reporter, 713, in which the court was considering one of the provisions of this same statute, but not the exact question in this case.
The smallness of the amount of the excess over the amount due does not in a tax sale affect the question, as the maxim, iiDe minimis non curat /e¿r,”does not apply to tax sales.
The provisions of the law made for the protection and benefit of the tax payer are mandatory.
Though the act copied herein was passed since Cairo & Fulton R. Co. v. Parks and Radcliffe v. Scruggs were decided, it in no wise affects or unsettles the principle settled in these cases — that it is beyond the power of the legislature to take away from the property owner a “meritorious defense” against a substantially defective tax sale, where the defect goes to the power of the court to levy the tax, or of the officer to sell for nonpayment.
As said by Judge Cockrill in Townsend v. Martin, 55 Ark. 192, after reviewing our decisions upon the principles involved in this discussion, the doctrine of “stare decisis” should apply in this case: “It is more important (to use his language) that such questions should be finally settled than'how settled.”
It was error to permit the clerk and tax collector to- # x give oral testimony to contradict or vary the record of the sale made by the clerk after the sale. It could not be contradicted by parol testimony, being a record required by law to be kept by the clerk, and the evidence of what was done at the tax sale.
Decree reversed and cause remanded, with directions. to enter decree'quieting appellant’s title as against these tax purchasers, with reservation of lien to tax purchasers for taxes, penalty and costs paid.
Bunn, C. J., being disqualified, did not participate in the trial of this cause. | [
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Wood, J.
This suit is for damages resultant it is alleged, from the negligent killing of A. S. Martin by the appellant. The suit was brought for the benefit of the estate, and of the widow and next of kin. The defense was a denial of negligence, and a plea of contributory negligence. The trial resulted in a judgment for seven thousand dollars, which this appeal seeks to reverse.
The negligence of appellant is established by proof which is sufficient, and the judgment must be affirmed, unless the deceased was guilty of contributory negligence, which is the only question we need discuss. Deceased was killed where the railway crosses Union street in the town of Wynne, as shown by a rude plat, which we clip from brief of counsel and append, to make the testimony as to location more intelligible.
The three tracks at Union street were six or eight feet apart. Deceased and the witness, his companion, were crossing over the main line at about seven or eight o’clock at night. The road was rough, and the night very dark. The witness said to deceased, just before he came to a stand, “If you are not acquainted with the road, let me take your arm and witness took deceased’s left arm with his right. A local going south was on the east track and lacked about a box car, or half a box car and caboose, of passing the crossing when they walked upon the track of the main line. They “halted a second or moment,” until the train passed the crossing; and, “while standing there talking,” the train backing from the south knocked witness and deceased from the track, running over and injuring deceased, from which injuries he died about three o’clock next morning, after suffering intensely. Witness was looking toward the south, the direction whence the train that struck them was coming, and whither the passing train was going. Witness says he did not see the train that struck them until just a moment before, and for the reason that it was so dark, and that there was no light on the caboose. Witness was asked, “Did you listen for any trains while you were there?” and replied, “I do not know that we listened, and the train was passing right in front of us. I do not know that we particularly listened for the train. I do not recollect about our listening for the approach of a train.” He further said : “Had we listened, I do not think we could have heard the train that was coming from the south, because of the one moving right in front of us. The train that struck us was approaching very stealthily. It made very little noise.” Witness was then asked, “How was the one that was going south?” and replied, “I do not know. It was just making ordinary noise. It was not running at a very high rate of speed ; probably three or four miles an hour. They were pulling out of the switch.” Witness did not hear any bell ringing on the train that was pulling out. Witness was then asked at what rate the train was moving that struck them, and replied: “Ido not know that. I should judge from the distance it knocked me, it must have been going at least eight miles an hour. I do not know, of course. I could not -tell anything about that, because it just bumped up against us. I should think, though, about six or eight miles an hour.” Witness indicated, by the distance to a certain object which he pointed out, that the train knocked them about fifteen feet.
It was shown by this witness, who was a physician, that he had examined the deceased, Dr. Martin, that day, for life insurance, and that deceased’s hearing was good, while witness’ hearing was defective, both ears being affected. The crossing where Dr. Martin was killed was in the main part of the city, and people were constantly passing over it. Two locals, running from Knoble to Wynne, did all their switching at Wynne. This occurred every day. The train had been doing switching about two hours when the accident took place.
This was all the evidence bearing upon the question of contributory negligencé. A dispassionate view of it, we think, can lead to but one conclusion, viz., had the deceased made that use of his senses which the law requires of one before going upon, or while crossing over, a railway track, his death would not have occurred, notwithstanding the negligence of the company.
We make this statement, knowing the settled law to be that the question of whether there is negligence or contributory negligence is always for the jury, unless the facts are undisputed, and susceptible of but one conclusion. Richmond, etc., R. Co. v. Powers, 149 U. S. 43; Grand Trunk R. Co. v. Ives, 144 U. S. 408; Delaware, etc., R. Co. v. Converse, 139 U. S. 469; Washington, etc., R. Co. v. McDade, 135 U. S. 554; Kansas City, etc., R. Co. v. Kirksey, 60 Fed. Rep. 999; Hathaway v. East Tenn., etc., R. Co., 29 Fed. 489; Seefeld v. Ry. Co. 70 Wis. 216; Hendricken v. Meadows, 154 Mass. 599; Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 992; 2 Wood on Railroads, 1458, and cases cited; Beach, Contrib. Neg. 450-51; Thompson, Neg. 1239; Artz v. Ry. Co. 34 Iowa, 153.
It is equally as well settled, where the facts are undisputed, and there could not, in reason and fairness, be any difference of opinion as to the conclusion to be drawn from them, that the question of negligence or contributory negligence is one of law. Grand Trunk R. Co. v. Ives, supra; Seefeld v. Ry. Co. supra; Mann v. Belt Ry. Co. 128 Ind. 138; Mynning v. Ry. Co. 28 A. & E. Ry. Cases, 665; Reading, etc., R. Co. v. Ritchie, 102 Pa. St. 425; Apsey v. Ry. Co. 83 Mich. 440; Emry v. Ry. Co. 109 N. C. 589; 2 Wood, Railroads, 1458, and cases cited ; Straugh v. Ry. Co. 65 Mich. 706; Chicago, etc., Ry. Co. v. White, 46 Ill. App. 446; Gardner v. Ry. Co. 97 Mich. 240; Grippen v. Ry. Co. 40 N. Y. 34; Grostick v. Ry. Co. 90 Mich. 594; Atchison, etc., R. Co. v. Priest, 50 Kas. 16; Laverenz, v. Co. 10 N. W. Rep. 268; Artz v. Ry. Co. 34 Iowa, supra, and numerous cases there cited; Beach, Cont. Neg. secs. 447, 453; Abend v. Ry. Co. 111 Ill. 202; Fernandes v. Ry. Co. 52 Cal. 45; Thompson, Neg. sec. 1236.
The latter proposition finds practical application in the facts of this record. The uncontroverted proof is that deceased and his companion walked over the west track and upon the main line, where they stopped and stood for a “second or moment,” talking, waiting for the train on the east track to pass out, when the backing train, struck them. The language of the witness was : “when we walked upon the track of the main line." This language shows conclusively that they,knew, not only that they were upon the railway track, but the particular track upon which they were standing. True, there was some evidence that deceased was a stranger in the town, and not familiar with the location ; but it was also shown that he had, but a short while before, passed over the same crossing, and the language of the witness quoted above indicates affirmatively that they knew where they were. There is no proof that they stopped, nor that they listened for- the approach of a train before they walked upon the track of the main line. But it is contended by the appellee that there is also an absence of direct proof that they did not take these precautions, and that, as the burden is upon the appellant to show contributory negligence, he must fail for want of proof to overcome the presumption of due care.
The burden of proof, as the court correctly told the - jury, was upon the railroad to show contributory negligence, unless it was shown by evidence for the plaintiff. It would be difficult, if not impossible, for the railway company to show by direct testimony that deceased and his companion did not use their senses of sight and hearing. Whether they did or not was a fact which might be said to be peculiarly within their knowledge. But every requirement of the law, as to the appellant, concerning the burden of proof has been met by the proof for appellee. This shows that a witness, whose hearing was and had been defective for three or four years, heard, at the distance of about twelve feet, the noise of the train that, was passing out. This train was ringing no bell, and only making ordinary noise. Does it not follow, as an undisputable inference, that deceased, whose hearing was shown to be unimpaired, would also have heard at the same, or even greater' distance, the noise of the train that struck him, had he listened ? This is the only reasonable conclusion. Por, although the witness says that the train which struck deceased was approaching stealthily, and gave it as his opinion that it could not have been heard, had they listened, yet’ he says he thought it "ivas going six or eight miles an hour, which was about twice as fast as he thought the other train was going, which he did hear. His opinion, therefore, as to what he could not have heard had he listened, is shown to have been fallacious by what he actually did hear. Besides, the deceased could not depend upon another’s senses to warn him of danger. His hearing was better than that of the witness, his companion. Wiwirowski v. Lake Shore, etc. R. Co. 124 N. Y. 420.
It is not negligence, fier se, to be or go upon a railway track. That depends entirely upon the circumstances, having in view the dangers to be apprehended, and the precautions which are, or should be, used to avoid them. A railway track must always be regarded as a dangerous place. Although trains usually have their stated times, and come and go with more or less precision, still accidents and various contingencies cause delays and irregularity in the running of trains, so that no one has the right to expect that a track may not be used by a passing train at any time. Hence, the track itself is a perpetual reminder of danger. Mo. Pac. R. Co. v. Moseley, 57 Fed. Rep. 921; Little Rock, &c. R. Co. v. Cavenesse, 48 Ark. 106; Penn. R. Co. v. Matthews, 7 Vroom, 531.
This is not the case of one who is suddenly and unexpectedly placed in a situation of danger which is calculated to. bewilder the understanding and distract the senses. There was no danger from the train in front of deceased, for he could see that it was just passing out, and almost over the crossing. The noise it was making was but ordinary, and there is no reason why it should have prevented his listening for a train on the intervening tracks, for there was his only danger. True, the witness said that the night was so dark that they could not see more than three feet from them. But, if one sense was impaired, or rendered useless, the other should have been used with the greater diligence. Fletcher v. Ry. Co. 149 Mass. 127; Wheelwright v. Boston, &c. R. Co. 135 Mass. 225; Cleveland Ry. Co. v. Ferry, 8 Oh. St. 570; Central R. Co. v. Feller, 84 Penn. St. 226; Ry. v. Haslan, 38 N. J. L. 147; Steves v. Ry. Co. 18 N. Y. 422; Thompson, Neg. secs. 431, 59, 1203, 51.
The case we have under consideration is that of one who voluntarily went upon a railway track without stopping, and without listening for the approach of a train, and stood there for a “second or moment, talking,” until he was killed. The failure to take one or both of these precautions was the proximate cause of his death, and there was nothing in the proof to justify or excuse such failure. 2 Wood, sec. 319.
Some authorities hold that it is the duty of a traveler approaching a railroad crossing to stop, and look, and listen for the approach of a train before proceeding over. Mo. Pac. R. Co. v. Moseley, 57 Fed. Rep. 921; Wilds v. Ry. Co. 29 N. Y. 315; Schultz v. Ry. Co. 5 Reporter, 376; Penn. Canal Co. v. Bentley, 66 Pa. St. 30; Penn. R. Co. v. Beale, 73 Pa. St. 507; Philadelphia, &c., R. Co. v. Stinger, 78 id. 219; Penn. R. Co. v. Barnett, 59 id. 259.
We have not laid down the rule thus strictly, but a person who would pass over a railroad at a crossing, or elsewhere, must do all that a man of ordinary care would do under similar circumstances to avoid any probable or possible danger from a passing train. Whether that requires stopping, as well as looking and listening, depends upon whether, without it, the danger to be apprehended could be so well ascertained and averted. Railway Co. v. Cullen, 54 Ark. 431; Railway Co. v. Johnson, 59 Ark. 122; Railway Co. v. Tippett, 56 Ark. 457. The law has fixed the above as the measure of duty, and a failure to exercise one or all of these precautions, as the occasion may demand, without any contravening circumstances, is negligence, pure and simple. Beach, Contrib. Neg. sec. 452; Whittaker’s Smith, Neg. 401, note ; Thompson on Neg. pp. 426, 1238.
A “second or moment” of time often costs a man his life. If the deceased, Dr. Martin, had but stopped for a moment before passing over the west track, or before going upon the main track, instead of after he had gone upon it, or had he but listened before going and stopping upon the same, doubtless he would have escaped ; for, if he had stopped but a “second or moment” before going on the track, the train would haVe passed, or, if he had listened, he would have heard it. This was a sad and deplorable catastrophe, to be .sure; but we are convinced that the proof for appellee raises such a presumption of negligence on the part of her intestate that, in the absence of any direct testimony to the contrary, it should be taken as conclusive, and so declared as a matter of law. Baltimore, &c., R. Co. v. Whitacre, 35 Ohio St. 627; Beach, Contrib. Neg. secs. 449-452; Cotton v. Wood, 8 C. B. 568; Cornman v. Ry. Co. 4 Hurl. & N. 781; Thompson on Neg. pp. 426, 1237; Greenleaf v. Ry. Co. 29 Io. 22; Hathaway v. E. Tenn., &c., R. Co. 29 Fed. Rep. 489; Shearman & Red. on Neg. sec. 56, and cases cited ; Penn. R. Co. v. Matthews, 7 Vroom. 531.
We find no error in any of the instructions, except that those leaving the jury to determine whether the deceased was guilty of contributory negligence were abstract, and in that sense erroneous. Railway Co. v. Tippett, 56 Ark. 457.
Reversed and remanded. | [
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Hughes, J.,
(after stating the facts). A majority of the court are of the opinion that the proper construction of the contract between appellant and appellee is that appellee was bound, by its terms, to gather and deliver to appellant one-fourth of the cotton raised on the twenty acres; and that only the act of God, or the public enemy, or the act of the appellant, could excuse him from a compliance with this contract; that inconvenience or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaking to do a thing that is possible and lawful. Parties sui juris bind themselves by their lawful contracts, and courts cannot alter them, because they work hardships. The parties must take care of themselves, and must be held to the performance of their undertakings, when it is possible to perform them, and they are not unlawful. “But, to make the act of God a defense, it must amount to an impossibility of performance by the promisors. Mere hardship or difficulty will not suffice.” 2 Parsons on Cont. (8 ed.) p. 672. It was not pretended that the cotton raised on the twenty acres could not be gathered; only, that it could not be gathered without much inconvenience and great and unusual expense. This would not excuse the appellee from performance of his contract to gather, which is included in his agreement to pay appellant one-fourth the cotton grown or its cash value. If he made this contract, and it proved a hard one, by the performance of which he would evidently be at great inconvenience and suffer much loss, nevertheless, if possible of performance, he was bound to perform it unless excused as indicated.
The circuit court erred in refusing the instructions asked by plaintiff, and giving the one (number five) above, for which the judgment is reversed and remanded for a new trial. | [
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Riddick, J.
(after stating the facts.) There are two questions in this case : First, has a court of equity the power to grant the relief prayed for? and, second, if the power be conceded, is this such a case as calls for its exercise? The first question has been considered and answered in the affirmative by our ruling in the case of Kansas, etc. R. Co. v. Fitzhugh, ante, p. 341, and we need only consider the second question.
It is said that the trial court committed error in impaneling, and also in charging, the jury. But errors alone are not sufficient to warrant the interposition of a court of equity. “It must clearly appear that it would be contrary to equity and good conscience to allow the judgment to be enforced, else equity declines to impose terms upon the prevailing party.” Whitehill v. Butler, 51 Ark. 343; Kansas, etc. R. Co. v. Fitzhugh, ante, p. 341. But a consideration of the evidence introduced in the action at law leads us to the conclusion that the verdict and judgment against the appellant were without, evidence to support it. To warrant a judgment for the penalty imposed against appellant in the action at law,, it was essential that there should be some evidence tending to show that the amount charged the appellee was greater than three cents per mile for the distance he was. carried as a passenger. Sand. & H. Dig. secs. 6211, 6217. Now, an examination of the evidence shows that, there was no competent evidence introduced to show the distance between the stations of Van Burén and. Dyer and Alma and Dyer. The only witnesses that testified were the appellee and his attorney. Neither of them told, or pretended to know, what the distances between these stations were. They gave the number of the-nearest milepost to each station, and stated that the-mileposts showed the distances between the stations to be a certain number of miles, but there is nothing to-show that the appellant had any connection with these-mileposts. We cannot tell from the evidence whether the mileposts referred to are located on the railway right of way, or along the public road ; nor whether they were erected by the county, or the appellant, or some other railway company. The attention of the court and counsel was called to this defect in the proof' on the trial of the case, and the court was asked to direct a verdict for appellant for want of evidence showing the distances between the stations named. The court refused to do so, and assumed in his instructions that the mileposts had been put up by appellant. He commenced the second paragraph of his instruction as follows : “In regard to those mileposts, the company has put up mileposts along the road, as the proof shows here, and put consecutive numbers on them. I suppose, when they began, they commenced one mile from the starting point, then two, and then three, the same as a proclamation, as to the distance, etc.”
The circuit judge in giving this instruction no doubt labored under the impression that there was no dispute concerning the question as to whether or not the appellant had put up the mileposts. But we are bound by the record, and -it shows that the question as to the distances between the stations was the principal point in issue, and that no admissions were made, the attorney for appellant contending that the proof on this very point was insufficient.
In addition to this instruction, which was calculated to mislead the jury on a material point, two of the jurors admitted on their examination that each of them had brought suit against appellant to collect a penalty for an overcharge for passenger carriage between the same stations of Alma and Dyer, that these suits had been tried the term before, and that each of them held an opinion as to the distance between these stations. For this cause they were challenged by defendant, but the court held that they were competent, and, the defendant having exhausted its peremptory challenges, they sat in the trial of the case. These jurors having only a short time before been plaintiffs in an action against appellant, in which the same issues were involved, the chai lenge of defendant should have been sustained. Railway Co. v. Smith, 60 Ark. 222.
[Note. — As to injunctions against judgments for matters arising subsequent to their rendition, see note to the above case in 30 L. R. A. 560. — Rep.]
When we consider these rulings of the court in connection with the fact that the verdict and judgment is-not supported by the evidence, we must conclude that the appellant was entitled to a new trial, and that he would have obtained it, but for the fact that his appeal was cut off by an inevitable accident, which left him without remedy at law. It seems unjust and inequitable that the appellee should be allowed to retain the advantage given him by the sudden death of the presiding judge. As the appellant is remediless at law, we believe that this is a proper case for a court of equity to exercise its restraining power, to the end that justice may be done. Kansas, etc., R. Co. v. Fitzhugh, ante, p. 341; Carroll v. Pryor, 38 Ark. 283; Leigh v. Armor, 35 Ark. 128; Oliver v. Peay, 19 Am. Dec. 595, and note ; 1 Black on Judg. 386 ; 2 Freeman on Judg. 484 and 485.
It is therefore ordered that the decree of the chancellor be reversed, and that, unless the appellee, Thos. H. Wells, shall elect to submit to a new trial at law on the issue involved in his action against appellant for a penalty, he be forever enjoined from enforcing, or attempting to enforce, the judgment recovered by him in said action. | [
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Riddick, J.,
(after stating the facts.) The only question in this case is whether, in the settlement between Passmore and the county, he should be charged with the actual rents received by him after the decree fixing the value of the improvements, or with only the rental value of the lot as it would be without the improvements. Passmore contends that he should only be charged with ground rents, or the rental value of the lot apart from the improvements, and to support that contention he relies upon the opinion of this court in State v. Baxter, 50 Ark. 455, and the decree made by the circuit court in obedience to said opinion. The following direction for a decree was given by this court in that case : “In charging the appellees with the rental value of the block, they should be charged with such rents and profits as it would have yielded without the improvements, and credited with the value of the improvements at the time of their recovery for the use of the county. If anything be due any one of the appellees for improvements, after deducting the rents for which he is charged, he should not be dispossessed until the amount so due is paid.”
The decree that was made in obedience to this opinion adjudged that the lot and the improvements thereon belonged to Garland county, settled the matter of rents and improvements between Passmore and' the county on the basis directed by this court as set out above, and declared that Passmore had a lien on the lot for a certain amount due him for improvements. Passmore then had only a lien and a right to hold possession of the lot and the improvements thereon until he was paid for the improvements, or until the rental value thereof should equal the amount due him for improvements. His position after the decree was similar to that of a mortgagee who takes possession of the mortgaged premises before foreclosure. The rents received by him after the decree belonged to the county, and should be applied to the payment of his lien for the improvements.
Passmore, after remaining in possession for some years, brought this suit in equity to enforce his lien. This he had the right to do, but the statute provides that “in any such equitable proceedings the court may allow to the owner of the lands, as a set off against the value of such improvements and taxes, the value of all rents accruing after the date of the judgment in which it has been allowed.” Sand. & H. Dig. sec. 2593. As the county had been charged with the value of the improvements, we see no reason why Passmore should not be charged with all rents received by him after the decree fixing the value of his improvements, and we find nothing in that decree, or in the opinion in State v. Baxter, that seems to us in conflict with this view.
We conclude, therefore, that the chancellor erred in holding that Passmore should be charged with only the rental value of the lot apart from the improvements. The decree of the chancery court is reversed, and cause remanded, with an order that Passmore be charged with all rents received by him after the decree. | [
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Riddick, J.,
(after stating the facts.) The only question here relates to the validity of the judgment rendered by the circuit court upon the attacnment bond. The court gave judgment not only for forty dollars damages, but also for the return of the property or its value — $311.25. This amount exceeded the jurisdiction of the justice of the peace. In Whitesides v. Kershaw, 44 Ark. 377, it was said that on appeal- the jurisdiction is derived from and dependent upon the appeal; and the circuit court can render no judgment that the justice could not have rendered. The judgment of the circuit court for $311.25 was beyond the jurisdiction of the justice, and therefore void.
Neither was it proper for the court to render juderJ ° ment for damages, and also for a return of the property ■or its value. Where the attached property has been sold under a lawful order of the court, and the attachment is Afterwards dissolved, the court should not order it returned, but should assess damages sufficient to cover the value of the property at the time it was seized, and interest thereon to the day of trial.
When property is taken and sold under an attachment wrongfully issued, the measure of damages is the value of the property at the time it was seized under the writ, with interest at six per cent, to the date of the trial. Sutherland on Dam. sec. 512; Porter v. Knight, 63 Iowa, 365; Blass v. Lee, 55 Ark. 329; Trentman v. Wiley, 85 Ind. 33. From the amount of damages thus Awarded, there should in this case be deducted any portion of the proceeds of the attached property that have been returned to the owner, and also the amount adjudged in favor of plaintiff, if the damages assessed are greater than the judgment in favor of plaintiff, and a judgment rendered in favor of defendant for the balance.
As the error in this case is apparent from the face of the record, no motion for a new trial was necessary. Smith v. Hollis, 46 Ark. 21; Steck v. Mahar, 26 Ark. 536; Ward v. Carlton, 26 Ark. 662.
The judgment of the circuit court is reversed, and the cause remanded, with an order to assess the damages in the attachment proceeding in accordance with the rules above set forth.
If the damages claimed by defendant on account of the issuance of the attachment exceed the sum of three hundred dollars, his remedy will be by an original suit •on the attachment bond in the circuit court. | [
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Battle, J.
Peter Eubanks instituted this action' against J. J. Drake and B. A. Drake to foreclose a lien for purchase money. He alleged, ,in his complaint, that he sold his farm, containing 177| acres, to the defend-' ant’s for $700, of which they paid, at the time of the purchase, $565, and agreed to give their promissory note for the remaining $135, and had .failed to do so, or pay it; and asked that the land be sold to pay the same.
The defendants answered, and admitted the purchase for the sum stated, but alleged that plaintiff, in ■selling the farm, falsely and fraudulently represented, and induced them to believe, that it contained 219 acres, and conveyed it to them by deed as containing that number of acres, when in fact it contained only 177^ acres," and that the deficiency in quantity made a difference in value of $200, which they set up as a counter-claim, and asked for judgment against the plaintiff for it.
The trial court rendered a decree against the defendants for the $135, and $8.10 for interest thereon, and •ordered that the land be sold to pay the same.
We find the facts, as shown by the evidence, substantially as follows: Some time in January, 1893, Eubanks represented to the defendants that a farm ■owned by him, and composed in part of tracts which could ■only be described by metes and bounds, contained 219 acres, and offered to sell it to them for $700. He showed them a part of the boundary lines of the land, but not all. The part-shown included the lines between his and the lands belonging to David Eady and James Mc•Christian. They made no further investigation, but, believing his representation, they received it as true, accepted his offer, and paid of the purchase money, $565, and agreed to execute their note to him for the other $135. He executed to them a deed purporting to convey certain lands, including the farm, giving the number of acres contained in each tract, but not the aggregate, and covenanting with them that he “ will forever warrant and defend the title to said lands against all lawful claims whatever.” And they took possession of the farm. Upon a demand for the promissory note, it was found that the lands which plaintiff undertook to convey by the deed contained in the aggregate 259 acres, and that two of the tracts belonged, respectively, to David Eady and James McChristian, and had been previously conveyed to them by Eubanks ; that they were in their possession at the time of the purchase; and that these tracts contained' 81^ acres, leaving 177s acres actually conveyed by the deed. And the defendants refused to execute the note.
Plaintiff was illiterate, could not read, and of course was compelled to rely on another to prepare his. deed. The result was, two tracts which he had sold tO‘ other persons, and did not belong to him, were included in the deed. This was obviously a mistake. He had shown to the defendants the boundary lines between these tracts and the land he sold to them. They knew that Eady and McChristian were in possession of the-two tracts, and do not contend that they purchased any land other than that to which they acquired title; but. they do insist that which was actually sold to them did not contain as many acres as was represented. Plaintiff represented to them, and they believed, that it contained 219 acres, and it contained only 177^ acres ; a difference of forty-one and a half acres, which is material. Having-relied upon the representation, they have a right to hold, what was actually conveyed, and to an abatement of the- purchase money to the extent the quantity falls short of the representation ; and this abatement is shown by the basis upon which the farm was sold. Both parties, in fixing the price, believed that it contained 219 acres. There is no competent evidence to show that it would have been worth more than the price agreed bn, had it contained the quantity estimated. Upon this state of facts, as it does- not appear that they were damaged except in failing to get as much as 219 acres, the abatement ought to be in proportion to the price agreed to be given for the land as represented. Harrell v. Hill, 19 Ark. 102. According to this rule, the defendants are entitled to a reduction for forty-one and a half acres at the rate of $3.19® an acre, which, not including a fraction of a cent, equals $132-42. This, taken from $135, the amount of purchase money remaining unpaid, leaves $2.58 still due to plaintiff, with interest thereon, to secure the payment of which he is entitled to a vendor’s lien.
The decree of the circuit court is, therefore, reversed, and the cause is remanded, with instructions to the court to enter a decree in accordance with this opinion. | [
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Harrod, Sp. J.,
(after stating the facts). The appellees contend that the judgment should be affirmed, without regard to whether there were errors committed against the appellants at the trial, because, as they claim, the suit instituted by the plaintiffs cannot be maintained under the law. They claim that the bond was personal to the sheriff, and that he alone can sue on it, and that he cannot sue until he has been damaged. It is also said that the statute makes no provisions for an indemnity bond in attachment cases. And it is further urged as a defense against the action of the plaintiffs that it is doubtful whether the defendants, by signing the bond, became participants in the trespass, and if they did become so, it is claimed that they could only be sued in trespass, and not on the bond.
If this suit was by the sheriff against the defendants on the bond, it would be necessary for him to show how and in what respect he had been damaged; and in such a case it might be necessary to determine whether the statute contemplates the indemnity bond mentioned, although it is questionable, even in that case, whether the defendants, having executed the bond under the circumstances, would be heard at all to contest its legality. But there is no such case here, for this is not a suit on the bond, but a suit against the defendants to recover the value of the plaintiffs’ goods, which it is claimed were taken to pay the debt of another, and for which taking it is alleged the defendants were responsible.
The contention of appellees that it is doubtful whether they became participants in the trespass by making the bond, in our opinion, is not well taken. It seems to us that that act made them the real principals in the transaction. In order to maintain the action, it is only necessary for plaintiffs to show, — First, that they owned the goods taken; second, their value; and third,, that the defendants participated in the taking, or caused the same. And the right to maintain the suit cannot be made to depend upon the existence or non-existence of any statute. It is. simply the common right that every one has to recover the value of his property, when wrongfully taken. The plaintiffs, if they owned the goods, could have sued McGuire and the sheriff and the defendants jointly, if they desired, or either of them separately. Lovejoy v. Murray, 3 Wall. 19.
The only issue in this controversy that was really contested is whether plaintiffs owned the goods levied on under the McGuire attachment. Their claim rests upon the instrument executed by Jones & Fulton, and their title depends upon its integrity.
The different instructions given at the request of both parties, that appear in the record, but are not copied in our statement of the case, seem to state fairly the different propositions of law to which they relate, and to be free from error.
We do not find any reversible error in the refusal of the eighteenth instruction asked by the plaintiffs, which directed a verdict for them. We see but little, if anything, in the evidence that even tends to establish fraud; but, at the same time, we do not undertake to say that there is absolutely no evidence of that kind.
The nineteenth instruction by the plaintiffs should have been given. It is not a fraud for one creditor to try to keep another from finding out about a trade that lie is seeking to make, for no other purpose than his own protection.
In regard to the twentieth instruction asked by the appellants, and refused by the court, we deem it sufficient to say that, in our opinion, its refusal was not error of which the appellants can complain.
A proper disposition of this case can be arrived at by fairly construing the acts of the parties, without stopping to discuss the legal consequences of secret motives or mere intent not acted upon or carried out.
The twenty-first instruction asked by the plaintiffs, and the ninth given by the court at the request of the defendants, both relate to the effect of the statement that Jones & Fulton claim that the representatives of the plaintiffs made in regard to their money in bank and their accounts. Without discussing either of these instructions in detail, we are of the opinion that the purchasers were under no obligation whatever to take the money in bank on their debts instead of the goods; nor did the future disposition of the money or accounts concern them. If their debts were bona fide, they had a right, under the law, to collect them either in money or property, however disastrous the consequences might be to.others. Although Jones & Fulton, at the time they sold to the plaintiffs, may have intended to defraud their other creditors by appropriating to their own use the money and accounts, and although the purchasers may have known .of this intention, their purchase could not be defeated on that account alone. Such was the decision of this court in Wood v. Keith, 60 Ark. 425. If the purchasing creditor’s debt is honest, and his only object is to secure the payment of his own debt, he is not affected by any motive or design that the debtor may have or entertain as to his other creditors. But he will not be permitted to protect himself by any fraud to which he is a party. Fraud cuts down every thing-, and no claim or title can rest upon any such foundation. So, in this case, if the disposition of the money in bank, and the accounts, or either of them, came up for discussion while negotiations were pending-, the plaintiffs or their representatives migfit well have said to the vendors : “We are not concerned with that property. We care nothing- about it, and your disposition of it is not material to us.” The law would not attach any fraud to such words, or to any expressions of similar import.
The eleventh instruction gfiven at the request of the ° x defendants was clearly erroneous. There is nothing-in any part of the record, either in the bill of sale or in the oral evidence, disclosing- any feature of an assigmment. When the appellants accepted the bill of sale, they were bound by its terms, and were liable to every creditor whose debt was assumed, and that liability was in no manner dependent upon the disposition of the stock of g-oods.
Por the errors indicated, the cause is reversed, and remanded for a new trial.
Wood, J., being- disqualified, did not sit. | [
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Bunn, C. J.
Appellant, Smith, brought this suit before a justice of the peace against appellee, as constable, having the custody of a certain bale of cotton, by virtue of a writ of attachment in another suit between Ike Oppenheimer & Co., as plaintifFs, and one J. S. Sanderson, for the sum of fifty dollars alleged to be due as rent, and for which plaintiffs claimed a landlord’s lien upon said bale of cotton. In the circuit court the case was tried by the court, by consent, upon the evidence adduced, and the court declared its conclusions on the law and the facts as follows, to-wit: “The plaintiff did not purchase the property in such a way as to pass title. Defendant had no right to hold the property under the landlord’s attachment by Oppenheimer, because Oppenheimer had no lien. The plaintiff, by virtue of his contract with Sanderson, acquired a lien, by way of pledge, upon the cotton, but lost his lien as pledgee by abandoning the same to Huey; and plaintiff does not show his right to possession by a preponderance of the evidence.” Upon this the court rendered judgment in favor of the defendant, and the plaintiff excepted, and appealed to this court.
The evidence in the case shows that, a few days before the institution of this suit, plaintiff, Smith, having a debt of fifteen dollars against Sanderson, called to see him for the purpose of collecting the same. In their conversation and negotiation on the subject, it was finally agreed that Sanderson should sell the cotton in controversy to Smith for the said fifteen dollars, and as much more as Smith could sell it for in the Paris or home market. The cotton was then in the seed. Smith was to take it, haul it to the gin, have it ginned and packed, and then take it to Paris, the county town, put it on the market, and sell it, and with the proceeds to pay the expenses of hauling and ginning and packing, the fifteen dollars, and the residue, if any, over to Sanderson. All this was accordingly done, and Smith hired hi.s son to carry the cotton to market as agreed. Young Smith having hauled the cotton to the public square in Paris, preparatory to offering it for sale on the market, as directed by Smith, Sr., Ike oppenheimer, (one of the firm of Oppenheimer &' Co.', the plaintiffs), upon inquiring of him, ascertained that the cotton was raised by Sander-son, and thereupon informed young Smith that he had a lien on it, and threatened to attach it, under his lien, if young Smith did not or would not turn it over to him. After some parleying, Ike Oppenheimer proposed to young Smith that, if he would leave the cotton on the platform (Adler, Goldman & Co.’s platform), he would be responsible for it until he could return home and inform his father of the condition of things, so that he (the father) could come in town the following morning ; and Oppenheimer said he was sure they could arrange it satisfactorily. During this coversation, Huey, the business manager for Adler, Goldman & Co. in Paris, came up; and, hearing the proposition of Oppenheimer, told the young man to. leave the cotton on the platform, and he would be responsible for it until the elder Smith could come in and arrange the matter with Oppenheimer. Whereupon the young man, not knowing what else to do, acted upon the suggestion of Huey, went home, informed his father of the condition of things, The elder Smith went to Paris the following morning, and saw. and had a conversation with Oppenheimer on the subject, but they failed to settle the matter, each one claiming the cotton, — Smith upon the ground just stated, and Oppenheimer, upon grounds to be stated hereinafter. A short time after they had separated, Smith learned that Oppenheimer & Co. had attached the cotton, claiming a landlord’s lien thereon, which they had claimed when conversing with him on the subject. Smith then instituted this suit against Maberry, the constable, who had served the writ of attachment in favor of Oppenheimer, and held the cotton under and by virtue of the same.
The defendant answered the complaint of Smith, which contained a statement of facts substantially as stated above, as a basis of his claim, and in his answer the constable set forth, and in his testimony showed, the facts upon which Oppenheimer & Co. claimed their landlord’s lien and their debt, which are substantially as follows: Ike Oppenheimer testified that he was a member of the firm of Oppenheimer & Co., the plaintiffs in the attachment suit against Sanderson, and that in the fall of 1891, one T. B. Walker was indebted to the firm in the sum of fifty dollars, and was making arrangements to leave the country; that Walker came to the store of Oppenheimer & Co. with Sanderson, and wanted them (Oppenheimer & Co.) to buy his land. This offer not having been accepted, Walker then proposed to rent the land to Oppenheimer, and the latter said they did not wish to rent unless Walker could procure them a tenant, and they said they would rent the land from him (Walker) if he would procure them a tenant. Some days afterwards, Walker went to Oppenheimer & Co.’s store, with a promissory note for fifty dollars, which Sander-son had executed and delivered to him, which he tendered to them in payment of his indebtedness to them, and the same was accepted as such, they (Oppenheimer & Co.) knowing that he had sold his land to Sanderson.
In his testimony, Sanderson said, he purchased the land from Walker for six hundred dollars, payable as follows, to-wit, $350 to the loan company, which had a mortgage on the land, and $200 tó Walker ; that he made a $50 note to Oppenheimer & Co., which Walker delivered to them as stated, and two notes to Walker of $100 each; that the $50 note was the amount owing to the firm by Walker, and that he (Walker) said that Oppenheimer & Co. wanted a rental note for the amount, and that such was agreed and acted upon; that he never had any contract with Oppenheimer & Co., or Ike Oppenheimer, to rent the land from them or him, nor with Walker to rent from him ; and that he did not owe them or him, or either of them, for rent of the land, or any part thereof, and never had any conversation with either of them about renting the land.”
The $50 note delivered by Walker to Oppenheimer & Co. in payment of his indebtedness as stated, and put in evidence, is as follows, to-wit: ‘‘Know all men by these [presents] that I, John Sanderson, promise to pay to Oppenheimer & Co. of Paris, Ark., the sum of fifty dollars with ten per cent interest per annum from date until paid, consideration for said fifty dollars to be rent on the entire farm known as the T. B. Walker farm, situated near Burnett Springs, Bogan county, Arkansas. This 9th day of November, 1891.' (Signed) John S. Sanderson.”
The evidence fails to show that Oppenheimer & Co. were the owners of, or had under control, the Walker farm, or that Sanderson had rented the same, or any portion of it, from them, or from Ike Oppenheimer, or from Walker ; but it does conclusively show that no such relation existed between Oppenheimer & Co. and Sanderson as that of landlord’and tenant, and that the recital in the note to that effect was not true in point of fact, and ' that Oppenheimer & Co. were not entitled to a landlord’s lien on the cotton in controversy, grown upon said farm by Sanderson; and therefore the constable was not entitled to hold said cotton under the attach- . ment for rent at their instance, as against any one having and showing a right of ownership or of possession.
The evidence further shows that the plaintiff, Smith, purchased the cotton from the owner, Sanderson, for value, and, without stopping to discuss the question whether or not the sale was fully consummated, in all respects, he had such right of possession, at all events, as that he was entitled to maintain and sustain his action for the cotton; and the conduct of his son in intrusting the cotton for the time being to Huey for safe keeping, until plaintiff could be informed of its condition, was no waiver by plaintiff of his right to 'the same.
II is suggested, — apparently for the first time, — in the argument before us that the record does not show a judgment and affidavit for an appeal from the justice of the peace to the circuit court, and that, therefore, the circuit court was without jurisdiction to hear and determine the cause, and our attention is called to the defective record, in support of this contention. It is true that such are the defects in the record, but it is also true that no objection to it was made in the court below ; and, besides, the matter seems to have been heard by consent of the parties. It is also true that consent cannot give jurisdiction of the subject-matter, but it is also a fact that the circuit court had original, as well as appellate, jurisdiction of the subject-matter of this litigation ; and its exercise of jurisdiction, under the circumstances,, without objection, cannot be questioned here for the first time, and is, besides, within the purview of the statute, which enables the trial courts to proceed, notwithstanding such defects of record.
The judgment is reversed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal challenges the judgment of the Circuit Court which annexed certain lands to the City of Rogers. The City was proceeding under § 19-307 Ark. Stats., and such pro cedure was discussed in City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438; and also in Burton v. Ft. Smith, 214 Ark. 516, 216 S. W. 2d 884.
The petition for annexation was filed in the County Court, and from judgment in favor of the City, the appellants (as remonstrants) appealed to the Circuit Court. The Circuit Court judgment granted the annexation; and the appellants, in appealing to this Court, have brought only a partial record which contains the pleadings (and exhibits), the judgments, and the notice of appeal. The appellants urge three points in this Court:
“1. The Petition was not filed as provided by Section 19-307, and section 19-101, 19-102 and 19-103 of the Arkansas statutes in that the lands to be annexed were not described in the Petition and no map or plat filed.
“2. The Court omitted lands described in the Notice and Ordinance without request to do so.
“3. The lands are not properly described.”
There is no merit to the first point urged by the appellants, because the transcript which was filed in this Court shows: (a) the Ordinance of the City submitting the issue to the voters, which Ordinance contains a description of the lands to be annexed; (b) the County Court order which contains a description of the annexed lands; (c) the Circuit Court order of annexation which contains a description of the lands annexed; and (d) the Circuit Court order which specifically recites: “(4) That the City of Rogers has caused a plat of the territory sought to be annexed to be filed as required by law and that all of said territory is contiguous to the City of Rogers, Arkansas.” In disposing of the first point, we have likewise disposed of appellants’ third point, since the lands are properly described, as we have just stated.
There is no merit to appellants ’ second point sought to be urged, which is that the Court omitted lands described in the notice and ordinance without request to do so. It appears in the County Court judgment that one tract sought to be annexed was excluded; this same tract was likewise excluded from the annexation order in the Circuit Court; and appellants insist that the Court could not, on its own motion, exclude a part of the property described in the petition for annexation. Woodruff v. Eureka Springs, 55 Ark. 618, 19 S. W. 15. In designating the record for appeal, the appellants designated only the pleadings, the judgment, and the notice of appeal, and did not file, at the time of designation, the points upon which they would rely for reversal, as required by Act No. 555 of 1953, so appellee had no occasion or opportunity to bring into the record the other pleadings or rulings relating to the case.
Even though the amendatory pleading by the City of Rogers is not in the record before us, the orders show that such a pleading was filed. The County Court order of annexation, which is before us, shows that this tract was excluded from the County Court order of annexation; and the County Court order contains this recital: “. . . that the petition as amended should be approved . . . that a plat showing the said boundaries as amended and showing the territory as embraced by the said boundaries, has been filed with the Court.” Thus it is clear that in the County Court an amendment was filed to the petition for annexation. Since the only party /that could have filed the petition and amendment was the City of Rogers (because we held in Woodruff v. Eureka Springs, supra, that the Court could not amend the petition on its own motion), we conclude that the City of Rogers amended the petition for annexation in the County Court by excluding one tract.
Finding no merit in the appeal, the judgment of the Circuit Court is in all things affirmed.
The Circuit Court judgment recited, in part: “. . . and the Court, after hearing the evidence adduced by the City of Rogers and the remonstrants, both documentary and oral, and being well and sufficiently advised both as to law and as to fact, doth find:
“1. That on the 9th day of September, 1960, the City Council of the City of Rogers, adopted and passed Ordinance No. 434, providing for the annexation of certain lands, hereinafter described, and for submitting said ordinance to the qualified electors of the City of Rogers for approval.
“2. That on the 8th day of November, 1960, the qualified electors of the City of Rogers approved said annexation of lands hereinafter described by a vote of 1351 for annexation of 654 against annexation.
“3. That a petition for annexation was thereafter filed by the City of Rogers with the County Court of Benton County, Arkansas, and notice of hearing on said petition was duly published in the Rogers Daily News, a daily newspaper having a bona fide circulation in the County of Benton, for three (3) consecutive weeks as required by law.
“4. That the City of Rogers has caused a plat of the territory sought to be annexed to be filed as required by law, and that all of said territory is contiguous to the City of Rogers, Arkansas.
“5. That the following described property should be, and is hereby annexed to the City of Rogers, County of Benton, State of Arkansas to-wit: . .
The annexed property was duly described by section, township, and range, in the petition, the County Court order, and the Circuit Court order.
Section 27-2127.5 Ark. Stats, says in part: “If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal.” | [
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George Rose Smith, J.
This is a tort case arising out of two successive traffic collisions, involving three cars. In the trial court there were various cross actions between the parties. Here there are appeals by two of the defendants and a cross appeal by the plaintiff. It will be simplest to identify the parties as we relate the facts.
On October 3, 1959, Luther S. Tull and his wife, Richard A. Walton and his wife, and a third couple were returning to Little Rock after having driven to a football game at Fayetteville. They were riding in a station wagon that was in effect being furnished by Tull, as the vehicle belonged to a company of which he was the president and a substantial stockholder. At Clarksville the group stopped so that Tull could attend a night game there. When the others picked up Tull after the game Walton was driving, and he remained at the wheel thereafter. Tull rode in the right front seat.
A few miles south of Russellville Walton overtook and started to pass a car being driven by D. A. Brigham. Just then Brigham started to turn left off the highway, and the two cars, traveling at moderate speeds, had a minor side-to-side collision, with no personal injuries. Brigham testified that he signaled his intention to turn left, but there is other testimony that no signal was given. On this phase of the case the jury attributed 66 per cent of the negligence to Walton and 34 per cent to Brigham. There is no appeal from this part of the judgment, which has been satisfied.
After the first collision the two cars came to a stop on the lefthand shoulder of the highway, facing in their original direction of travel. Brigham’s car, in front, was completely off the pavement. The Tull station wagon was at a slight angle, with the front wheels off the pavement and the right rear wheel encroaching on the pavement a foot or two. Both cars had their lights on, it being almost eleven p. m.
From this point we disregard conflicts in the proof and state the facts in the light most favorable to the verdict. About ten seconds after the station wagon came to a stop Tull, who was in the right front seat, opened the door on his side and started to get out. As he extended his left leg toward the pavement the open door was struck by a car traveling in the direction opposite to that of the other two vehicles. This third car was being driven by Herman Glenn, who was so drunk that he mistakenly thought it was raining and did not fully realize that he had struck another car. Tull was painfully and seriously injured.
The plaintiff Tail brought suit against all three drivers, Walton, Brigham, and Glenn. The jury fixed Tull’s damages at $27,500 and assigned 60 per cent of the negligence to Glenn, 20 per cent to Walton, 10 per cent to Brigham, and 10 per cent to Tull. The court credited the award with a $10,000 compromise payment previously agreed upon between Tull and Glenn and entered judgment for the balance against Walton and Glenn. There was a proviso that if either defendant should pay more than his proportionate share of the total judgment he would be entitled to contribution from the other. The court refused to allow Tull to recover any judgment against Brigham, because they were equally at fault.
The defendants Walton and Glenn have separately appealed, and Tull has cross appealed from the court’s refusal to permit him to recover from Brigham. The case presents an unusual number of interesting questions in the field of tort law.
I. Although Glenn settled with Tull before the trial he is still pecuniarily interested, owing to his liability to Walton for contribution. Glenn first insists that, despite his intoxication, he was traveling in his proper lane of traffic and was, as a matter of law, free from negligence. We cannot accept this argument. Had Glenn not been almost insensibly drunk he might have realized that a collision had taken place between the other two cars and accordingly have approached the scene with caution. Even if Glenn should not have actually witnessed the mishap he might have understood the warning significance of two lighted vehicles facing in his direction on what was to them the wrong shoulder of the road. Again, had Glenn been in control of his faculties he might have been able to avoid hitting Tull. Questions of this kind are typically issues of fact for a jury. We hold there is substantial evidence to support the jury’s conclusion that Glenn’s drunken driving was a proximate cause of Tull’s injuries.
II. Glenn’s second contention is that he is not liable to Walton for contribution, for the reason that there was no service of summons upon Walton’s cross complaint against Glenn. This point was not raised below. Glenn participated actively in the trial; his attorney cross-examined Walton. This conduct was a general entry of appearance. Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686. If Glenn had prevailed the judgment in his favor would have ended the matter. He cannot be allowed to speculate upon the chance of a favorable outcome, without objection, and then demand a second trial when he loses.
III. Walton insists that his negligence in attempting to pass Brigham in disregard of the latter’s signal was not a proximate cause of Tull’s injuries when he was later struck by a third car. It is argued that the negligence of Glenn and of Tull was a superseding cause that broke the connection between Walton’s negligence and Tull’s injuries. Walton’s counsel endeavor to show how difficult it would have been for Walton to foresee that his attempt to pass the Brigham car would set the stage for the later events that caused Tull to be hurt.
That Walton could not have foreseen the exact manner in which Tull was to be injured is not alone a sufficient reason for relieving Walton of liability. Rest., Torts, § 435. As a direct result of Walton’s carelessness Tull was put in a position the jury were entitled to regard as hazardous. The vital question is whether the subsequent conduct of Glenn and Tull became a superseding factor.
This general subject was discussed at some length in Hill v. Wilson, 216 Ark. 184, 224 S. W. 2d 797. There we approved this statement from § 447 of the Restatement of Torts: “The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if ... a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.”
If, as a result of Walton’s negligence, the station wagon had come to a stop entirely upon the pavement and had immediately been hit by a third vehicle in its proper lane of traffic it cannot be doubted that a jury would be justified in finding that Walton’s negligence was an actionable cause of Tull’s injuries. In the actual case Tull was placed in a position of peril in that the station wagon was partly on the pavement. One ordinarily assumes the righthand door to be a safe exit, but here that way out exposed Tull to immediate danger. From the fact situation as a whole the jury might well have concluded that Tull’s impulse to open the door and leave the car, in circumstances where he might understandably have been excited or confused, was not “highly extraordinary.” Nor was the jury bound to say that it was highly extraordinary that Tull should have been struck by a passing car. Viewing the evidence in its entirety, with all its permissible inferences, we think the court was right in submitting the question of Walton’s negligence to the jury.
IV. Walton contends that it was a question of fact whether Tull was a guest at the time he was injured; if so, he could not recover without proof of willful and wanton misconduct on Walton’s part. Ark. Stats. 1947, §§ 75-913 et seq. It is accordingly urged that the court erred in taking this issue from the jury and permitting Tull to recover upon proof of simple negligence.
Tull’s company owned the station wagon; so, as far as Walton was concerned, it really belonged to Tull. Thus the situation in effect presents the question of to what extent a person may be a guest within his own car.
This problem has provoked a variety of solutions in the jurisdictions where it has arisen. We lay aside those eases turning upon a business relationship, as where the owner takes a ride with a garage mechanic to see if repair work has been done satisfactorily. Gage v. Chapin Motors, Inc., 115 Conn. 546, 162 A. 17; Thomas v. Hughes, 177 Kan. 347, 279 P. 2d 286, 65 A. L. R. 2d 306. The case at bar involved a purely social relation; so we limit our consideration to cases where the owner has simply permitted someone else to take the wheel upon a social occasion.
The principal case finding an owner to have been a guest in his own car is Phelps v. Benson, 252 Minn. 301, 90 N. W. 2d 533. There two couples were sharing-expenses upon a vacation trip. The court upheld a jury verdict finding that the owner was a guest while the other man was driving. The court was influenced by two considerations: First, the statute in question was to be liberally construed (whereas most guest statutes are considered to be in derogation of the common law and therefore to be strictly construed); and, secondly, the statute was passed to prevent collusion, and that possibility is equally present whether or not the driver happens to own the car. The only other case that we find holding the owner to have been a guest is Murray v. Lang, Iowa, 106 N. W. 2d 643, where the court seems to have concluded that any one who is not actually a passenger for hire is a guest.
The great majority of cases have reached the conclusion that the owner was not a guest in his own car. The leading case is an early one, Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379. There the court made no mention of the fact that the statute was intended to prevent collusion and noted only that its purpose was to deny a recovery to a social guest who had accepted another’s hospitality. Since the owner was not the recipient of the driver’s hospitality the court held that the owner was not a guest. Other cases reaching this result include Leonard v. Helms, 4th Cir., 269 F. 2d 48; Wilson v. Workman, D. C. Del., 192 F. Supp. 852; Ahlgren v. Ahlgren, 152 Calif. App. 723, 313 P. 2d 88; Henline v. Wilson, 111 Ohio App. 515, 174 N. E. 2d 122; and Lorch v. Eglin, 369 Pa. 314, 85 A. 2d 841.
We think the soundest approach to be found in any of the cases is that taken in Naphtali v. Lafazan, 8 App. Div. 2d 22, 186 N. Y. S. 2d 1010, affirmed 8 N. Y. 2d 1097, 171 N. E. 2d 462. There two couples, the Naphtalis and the Lafazans, took a vacation trip in a car owned by Mr. Naphtali, who “in the main” paid the expenses of the trip. Both the Naphtalis were injured when the car overturned while Mr. Lafazan was driving. The court held that Naphtali was not a guest.
The court pointed out that the guest statutes have a two-fold purpose, “to activate the view that it is unfair for a guest to seek damages from one who has benefited or accommodated him and to furnish an antidote to fraudulent claims against insurance companies conceived by collusive host and guest.” Having recognized the dual aim of the statute the court was reluctant to give weight to only one of its purposes, either by saying, as the Minnesota court did, that the owner was a guest as a matter of law or by saying, as the Connecticut court did, that he was not. The court preferred a middle ground, observing that no court has held it to be impossible for an owner to be a guest in his own automobile. This statement is sound. If, for instance, a man should lend his car to a friend for a week, with the borrower paying all the costs of operation, a jury might readily find the owner to have been a guest if he accepted a ride in the car during the week.
In the Naphtali case the court reviewed a number of cases and concluded that the effect of the Gledhill case and at least two others was to hold that an owner who merely allows another to drive upon a social occasion is presumably not a guest “in the absence of evidence to the contrary.” It was noted that in the Minnesota case, Phelps v. Benson, supra, the couples were sharing expenses, so that each man was regarded as the host while he was driving. It was finally concluded in the Naphtali case that there were present no special facts “that would impel a court to hold that the general rule is not applicable, that is, that under ordinary circumstances an owner is not a guest.” Naphtali was therefore held not to have been a guest of Lafazan.
We approve the reasoning of the New York court. In the case at hand Walton was driving when Tull was picked up after the game at Clarksville. Tull says that Walton asked him if he wanted Walton to drive, and Tull replied, “O. K.” Walton quotes Tull as having said, “If you don’t mind I would like for you to drive on.” In either case it is a typical instance of a person other than the owner doing part of the driving on a social occasion, for his own pleasure or as an accommodation to the owner. We think some additional facts would have to be shown before a jury would be justified in finding Tull to have been a guest in his own automobile.
On this' point Walton also argues that the court erred in ruling that Walton was, as a matter of law, Tull’s agent in driving the car. It is insisted that this ruling prevented Walton from developing all the facts bearing upon Tull’s status as a guest. We do not intimate that the court’s ruling was correct (see, e. g., Schweidler v. Caruso, 269 Wis. 438, 69 N. W. 2d 611), but Walton has not shown that he was prejudiced. He made no offer to prove any facts that would have indicated Tull to be a guest; so we are not in a position to say that Walton was adversely affected by the ruling. City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 770.
V. Before the trial Tull settled his claim against Glenn. Tull agreed that, in return for a payment of $9,000, he would satisfy to the extent of $10,000 any judgment he might recover against any of the tortfeasors and, further, that he would make no effort to collect any additional judgment he might obtain against Glenn. Walton now insists that the trial court should have allowed him to introduce the settlement agreement in evidence. It is argued that the matter would have affected Tull’s credibility, since he might be tempted to slant his testimony against Walton and Brigham, whom he had not released.
The court was right in excluding proof of the compromise. In Gien v. Williams, 215 Ark. 705, 222 S. W. 2d 800, the payment by one joint tortfeasor was considered by the jury, apparently without objection, but we did not hold that procedure to be proper in all eases. The fact of settlement might have had a slight bearing upon Tull’s credibility, but this reason for admitting the proof is outweighed by the arguments for its exclusion. The evidence would have informed the jury that one of the defendants had admitted liability and might also have been used as a basis for an argument that Tull had accepted the amount of the settlement as fair compensation for his injuries. The Uniform Contribution Among Tortfeasors Act contemplates that each tortfeasor will be credited with amounts paid by other joint tortfeasors, Ark. Stats., § 34-1004, but the statute is silent about how the matter is to be handled. In their note to this section the Commissioners state that the method of letting the jury apply the prior payment in reduction of their verdict is less satisfactory than the method of letting the court credit the payment upon the final judgment. 9 U. L. A. 242. We think the court below was right in following the latter course.
VI. Finally, Tull’s cross appeal raises a perplexing question of first impression in Arkansas. The jury apportioned the total negligence in the ratio of 60 per cent against Glenn, 20 per cent against Walton, 10 per cent against Brigham, and 10 per cent against Tull. The trial court refused to allow Tull to recover from Brigham, because their percentage of fault was equal. On cross appeal Tull argues that the comparison should not be made between the plaintiff and a single defendant; it is contended that the plaintiff should recover if his negligence is less than that of all the defendants combined.
The statute is open to either interpretation. It provides that contributory negligence shall not bar a recovery “where the negligence of the person injured or killed is of less degree than the negligence of any person, firm, or corporation causing such damage.” Ark. Stats., § 27-1730.1. If the reference to “any person . . . causing such damage” is taken to mean each separate person the trial court’s ruling was correct. But if the reference to any person is taken to include the plural as well as the singular, which by statute is a permissible interpretation, Ark. Stats., <§ 1-202, then the ruling was wrong.
The few decisions elsewhere are not helpful. In Georgia it has been the law for more than a century that a plaintiff cannot recover from any tortfeasor whose negligence did not exceed that of the plaintiff. This result was reached by a judicial interpretation of two statutes having no resemblance to our comparative negligence act. Smith v. American Oil Co., 77 Ga. App. 463, 49 S. E. 2d 90. In Wisconsin the statute is more nearly like ours, declaring that contributory negligence is not a bar to recovery “if such negligence was not as great as the negligence of the person against whom recovery is sought.” Wis. Stats., § 331.045. The court construes this act to mean that the plaintiff cannot recover from any tortfeasor whose negligence does not exceed the plaintiff’s, even though the plaintiff’s negligence is less than that of all the tortfeasors put together. Walker v. Kroger Gro. & Bakery Co., 214 Wis. 519, 252 N. W. 721. Professor Prosser has pointed out that the results reached in the Georgia and Wisconsin cases have not been very satisfactory. Prosser, Comparative Negligence, 51 Mich. L. Rev. 465, 507.
In the only published discussion of this particular question under the Arkansas statute Dan B. Dobbs has taken the position that in the situation now presented the plaintiff ought not to recover. It is his thought, presented without much supporting analysis, that the legislature did not intend for there to be a recovery if, for example, the plaintiff and the two defendants were each found to be guilty of one third of the total negligence. Dobbs, Act 296, Comparative Negligence, 11 Ark. L. Rev. 391.
It seems to us that this result does not give effect to the basic legislative intention and is in fact demon strably unjust to the person who is injured by the concurring negligence of several tortfeasors.
Our first comparative negligence statute, usually called the Prosser Act, allowed the plaintiff a proportionate recovery no matter how greatly his negligence exceeded that of the defendant. Act 191 of 1955. In the various studies of that act it was generally agreed that its basic purpose was to achieve complete abstract justice by apportioning the total damages of all the parties in the ratio of their respective degrees of fault. Hence the approved procedure was to distribute the total liability so that each party would bear his fair share, taking both his injuries and his percentage of fault into account. Dobbs, Act 191, Comparative Negligence, 9 Ark. L. Rev. 357, 366 et seq.; Leflar, Comparative Negligence, 10 Ark. L. Rev. 54, 62 et seq.; Panel on Comparative Negligence, 10 Ark. L. Rev. 88, 92 et seq. Under the Prosser Act if all three parties were equally at fault there would still have been a partial recovery by the one or two who had suffered more than a third of the total damages.
We think the basic purpose of the present statute to be essentially the same as that of the Prosser Act; it is still to distribute the total damages among those who caused them. The present act provides, however, that the plaintiff can recover only if his negligence is of less degree than that of any person, firm, or corporation causing his damage. We are not convinced that the legislature meant to go any farther than to deny a recovery to a plaintiff whose own negligence was at least 50 per cent of the cause of his damage. To refuse redress to an injured person whose negligence was only 10 per cent of the total would be almost a return to the common law doctrine of contributory negligence.
We realize that where some of the tortfeasors are insolvent or unavailable our conclusion may require a single defendant to pay the entire judgment, even though his negligence was comparatively slight. (The Uniform Act leaves open the matter of equitable con tribution when not all the tortfeasors are solvent. Commissioners’ Note to § 2 of the 1939 Uniform Contribution Among Tortfeasors Act, 9 U. L. A. 235.) But this possibility of disproportionate liability always exists when some of the wrongdoers cannot be made to pay their fair share. At common law if the plaintiff was free from contributory negligence he could recover his entire damages from any defendant whose negligence, however slight, was a concurring proximate cause of his injuries. We cannot adopt a narrow construction of our comparative negligence statute in the vain hope of avoiding inequitable situations due to insolvency. Obviously either the plaintiff or the solvent defendant must suffer, and the loss has traditionally fallen upon the wrongdoer.
We have said that the rule contended for by Brigham in this case is demonstrably unjust. Suppose that a plaintiff fails to stop his car at a through street and is hit by a drunken driver traveling at an excessive speed. If the jury attributes 33 1/3 per cent of the negligence to the plaintiff for having run the stop sign and 66 2/3 per cent to the defendant the plaintiff recovers the greater part of his damages. This is fair.
But now suppose that upon the same facts it develops that a third person had been negligent in lending his car to the drunken driver. The owner of the car becomes a joint tortfeasor. The plaintiff may still be found guilty of 33 1/3 per cent of the total negligence, for his conduct has not been changed. But no matter how the jury apportions the other 66 2/3 per cent the plaintiff’s recovery, under Brigham’s theory, is reduced. In fact, if the jury should divide the remaining negligence equally between the owner of the car and the drunken driver the plaintiff could recover nothing at all! We should be hard put to explain to a layman why it is that a person hit by a drunken driver can recover if the wrongdoer was driving his own car but cannot recover if some third person had also been at fault in lending the car. The plaintiff’s conduct is so plainly identical in both instances that it is only common sense for it to have the same effect upon his recovery. We accordingly hold that Tull is entitled to judgment against Brigham.
Affirmed on direct appeal and reversed on cross appeal.
Harris, C. J., and MoFaddin, J., dissent as to the cross appeal. | [
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Hughes, J.
This is a suit in ejectment to recover the lands described in the complaint, brought by the appellee, alleging title in himself and unlawful possession by appellant. The complaint seeks to deraign title through Rmzy Wilson, who, it alleges, bought the land from the State as swamp land, 23d March, 1854, and conveyed the same to George W. Carroll, as executor of Robert Armstrong, and delivered possession of it to him 21st February, 1859. It further alleges that the sheriff of Conway county sold the same on execution as the property of Hibernia, widow and legatee of Robert Armstrong, on the 21st of October, 1891, to Carroll Armstrong, who, with Hibernia, his mother, and Robert Armstrong, his brother, sold and conveyed the same to Benton J. Brown, and delivered possession to him, and that he sold and conveyed the same to W. L. Moose, who sold and conveyed the same to appellee, Clifton.
The appellant answered; admitted that he was in possession ; stated that Wilson acquired title from the State, and sold the land, in 1855 or 1856, to James Campbell, who conveyed same to Caroline Patterson, wlu> took possession prior to the late war ; that Caroline Patterson sold and conveyed to Thomas Campbell, 26th November, 1867; that there was no record of any of these conveyances ; that Thomas Campbell left a son, as only heir, who died in 1875 ; that upon his death the land descended to his heirs, who held possession till 21st July, 1877; that in the year 1875 these heirs last named filed a complaint for partition, and obtained a decree, on the 3d May, 1876, that the land be sold by W. M. Clifton as commissioner ; that the lands were accordingly sold to-Isaac Black, and that the sale was confirmed on the 18th day of September, 1877, and that the commissioner executed and delivered to Black a deed, which was approved by the court on the 8th day of September, 1877, which was filed for record in 1877; that Isaac Black, on August 26, 1880, with Wm. Kaufman, conveyed this land to-Nathan Adler, as trustee, to secure a debt; that the trustee regularly sold and conveyed the same to Sigmond Wolf; that, on 28th December, 1877, Wolf conveyed the same to appellant, Oliver, who thereby acquired title to the same. The appellant also pleaded the seven and five years statutes of limitation. It is further alleged that defendant, while occupying the land under color of title, and in good faith believing himself to be the owner thereof, peaceably made permanent and valuable improvements thereon, to the betterment of said land, in the sum of $710. It also alleges that he, and those under whom he claims, have paid taxes on the land since and including 1854, in good faith believing themselves to be the owners under color of title.
Subsequently the plaintiffs filed an amendment to their complaint, wherein it was alleged that in the deed from Rmzy Wilson to George W. Carroll, executor of Robert Armstrong, the land was described as being in range nineteen west, instead of range seventeen west; and that in the deed of the sheriff to Carroll Armstrong the land was described as being in township six, instead of township seven, north ; that it was the intention that both said deeds should convey the lands in controversy, and that the misdescriptions aforesaid were simply cler-' ical errors in drafting the deeds. It prayed as in the ■original complaint, and that the cause be transferred to equity, and said deeds reformed.
The court ordered that the cause be transferred to ■equity. Upon the evidence the court rendered a decree that the reformation of deeds prayed for be granted; and rendered decree for the appellee for the possession of the land. Neither the heirs of Wilson, nor of Armstrong, nor any of those in whose conveyances, under which the appellee claims,- it is alleged there was misdescription of the lands, are made parties to the complaint for reformation.
All parties in interest ought to be made parties to a suit in equity. In a suit to reform a deed the grantor in the deed ought to be made a party, and, if dead, his heirs, or those claiming under him, should be made parties, and are necessary parties to the relief sought. Daggett v. Ayer, 18 Atl. R. 169; Pierce v. Faunce, 47 Me. 507; Busby v. Littlefield, 31 N. H. 193; Haley v. Bagley, 37 Mo. 363; Durham v. Bischof, 47 Ind. 211; Hellman v. Schneider, 75 Ill. 423. “A deed conveying real estate cannot be reformed where the owners are not parties.” Watson v. Chicago, M. & St. P. Ry. Co. (Minn.) 48 N. W. 1129; Vance v. Roberts (Ga.), 12 S. E. R. 653. “In equity all persons interested in the subject matter should be made parties.” Holland v. Bur ris, 28 Ark. 171; Talieferro v. Bennett, 37 Ark. 517. “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving- their rights. But where a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.” Mansfield’s Dig. sec. 4945. “The equitable owner of land cannot sue an adverse claimant in equity to recover possession.” Ashley v. Little Rock, 56 Ark. 391.
For the reason that neither the heirs of Fmzy Wilson, nor those claiming under him, are made parties to the suit for reformation of Wilson’s deed, the cause is reversed, with leave to amend, and make such persons as plaintiff may see proper parties defendant to the complaint for reformation. | [
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Battle, J.
Hill, Fontaine & Co. brought this action against Churchill Bros., in the Independence circuit court, to recover $4,452.29, and at the same time filed an affidavit to the effect that the defendants had sold, conveyed or otherwise disposed of their property with the fraudulent intent. to cheat, hinder or delay their creditors, which was signed and sworn to by A. H. Joblin, as their agent. A bond was also filed, and an order of attachment was issued, and the property of the defendants was levied on by the sheriff in obedience to the same.
The defendants filed in the circuit court a motion to discharge the attachment, and a traverse of the affidavit which set forth the grounds of the attachment. After this, on the 19th of November, 1891, the defendants notified the plaintiffs in writing to produce A. H. Joblin, who made the affidavit on which the attachment was sued out, before an officer authorized to take depositions, within the next ten days, for the purpose of cross-examination. The plaintiffs having failed to comply with this demand, the defendants moved the court to suppress the affidavit, which motion was overruled.
On the 21st of January, 1892, plaintiffs filed an additional affidavit, in which they set up two additional grounds of attachment: First, “that the defendants, Churchill Bros., had, prior to this suit, removed a material portion of their property out of the State, not leaving enough therein to satisfy creditors”; and, second, * ‘ that on the 29th day of December, 1890, after the insti tution of this suit, the defendants made an assignment, by means of which they conveyed or otherwise disposed of their property with the fraudulent intent to cheat, hinder or delay their creditors.” The defendants also controverted this affidavit.
William C. Ashley, who was the assignee in the assignment made by the defendants, was allowed to intervene.
The plaintiffs took judgment for the amount sued for; but the traverse of the defendants was tried before a jury. In the trial, A. H. Joblin, who made the affidavit for plaintiffs, testified and was cross-examined. There was also adduced the deed of assignment, bearing date a day subsequent to the institution of this action, by which the defendants conveyed to William C. Ashley, for the benefit of their creditors, all their stock of merchandise in a certain store, and “all their choses in action of every kind, character and description, consisting of chattel mortgages, notes and accounts,” in the same store house, of the value of about $8000, in trust, however, “ that said William C. Ashley shall be required to-sell all the property assigned to him * * * at public auction, within one hundred and twenty days after executing a bond which he is required to execute by law, first having given at least thirty days notice of the time and place of such sale.” Other evidence was adduced.
The following, among other instructions, was g'iven, over the objections of the defendants, to the jury: “The jury are instructed that the law regulating the assignment of property for the benefit of creditors, as amended in the year 1883, requires notes and accounts assigned to be held for collection, and not to be sold at public auction within one hundred and twenty days from the filing of the assignee’s bond, as other property is required to be; and the jury are further instructed that the deed of assignment in this action, in providing and requiring that all the property assigned, including the notes, accounts and mortgages, should be sold at public auction within one hundred and twenty days after the execution of the bond the assignee is required by law to execute, was in violation of the law of assignments, and made the deed fraudulent in law, and they will sustain the attachment.”
The jury returned a verdict in favor of the plaintiffs upon the issue in the attachment. A motion for a new trial was filed by the defendants and Ashley, which being denied, exceptions were noted; and, within the time allowed therefor, a bill of exceptions was signed and duly filed ; and defendants and Ashley appealed.
The bill of exceptions, as originally drawn, contained no reference to the motion for a new trial, and preserved no exceptions to its overruling. To avoid the efEect of this, the appellants, at a subsequent term of the trial court, after the appeal was taken, procured the following nunc pro tunc order, which they have brought here by certiorari:
“Now on this day comes on to be heard the motion of the defendants for an order nunc pro tunc to amend the bill of exceptions, filed herein by the defendants, by inserting therein the facts, as shown by the record of the court, that a motion for a new trial was duly filed in this cause, that the same was overruled, and exceptions were noted thereto at the time of the overruling of said motion ; and the court having heard arguments of counsel, and being sufficiently advised in the premises, and being of the opinion, from an inspection of the record of this court, and its personal knowledge, that the defendants did file their motion for new trial in apt time, and that said motion was overruled, and that they duly saved their exceptions to such ruling in overruling their motion for a new trial; it is considered and ordered by the court that said bill of exceptions be taken and considered as. overruled as of the day that the said bill of exceptions was filed, and that the defendants have leave to insert, by interlineation at the proper place in the said bill of exceptions, the following recital: ‘ And a motion for new trial was duly filed herein, which was by the court overruled, to which ruling exceptions were duly noted by the said defendants.’ And to the ruling and decision of the court in granting said motion and in permitting the insertion of said amendment to said bill of exceptions the plaintiffs excepted, and asked that their exceptions be made of record, which is done.”
From this order of amendment appellees have taken a cross-appeal.
Three questions are presented for our consideration :
First. Did the trial court err in allowing'the bill of exceptions to be amended ?
Second. Did it err in refusing to suppress the affidavit of Joblin ?
Third. Did it err in instructing the jury?
First. Did the court err in allowing' the bill of exceptions to be amended? In Martin v. Railway, 53 Ark. 250, it is said that “all the authorities seem to concur in holding that the court in which the record is made has the saíne power to amend the bill of exceptions by a nunc pro time order to cause it to speak the truth that it has over any other part of the record”; but that “it is not the office of an amendment to create or originate something new, but only to perfect that which is imper-? fectly done.” In that case the direction to the clerk in the bill of exceptions to copy certain documents was too indefinite to identify them, and the court held that, if the documents could be identified aliunde, the trial court might, after the lapse of the term, by a nunc pro tunc order, amend the bill of exceptions so as to correct the call for them, and thereby make them a part of the bill. In this case the record of the trial court shows that a motion for a new trial was filed, and was denied, and that appellants excepted to the action of the court in denying the same. But there is no reference to it in the bill of exceptions.
It is not within the province of a motion for a new trial to bring upon record irregularities that occur in the course of a trial. The facts constituting the error complained of, together with the exceptions to the ruling of the court, should be set out in the bill of exceptions. The motion for a new trial serves the purpose of an assignment of errors. All exceptions taken and not embodied in it are waived. Johnson v. State, 43 Ark. 391. It is the final act by which the exceptions are made available. A bill of exceptions without a reference to it can serve no purpose—is incomplete.
In the case before us the appellants undertook to save the exceptions which they had taken. They embodied them in the motion for a new trial. In an effort to make them available for the purpose of an appeal to this court, they incorporated them in a bill of exceptions, and presented it to the judge for signature, and for the same purpose he signed it, and ordered it made a part of the record. But it failed to accomplish its object, by reason of there being no reference in it to the motion for a new trial. It was incomplete, and a fit subject for amendment. The incorporation in it of the motion for a new trial, the denial thereof, and the exceptions thereto, would not constitute a new bill of exceptions, but the one on file would thereby be made complete and available, and the object of the appellants in presenting, and the judge in signing, it would be accomplished. In furtherance of justice, and according to the principle on which Martin v. Railway Co. rests, the amendment directed by the nunc fro tunc order should have been made.
Second. Did the court err in the refusal to suppress the affidavit of Joblin, on which the attachment was based ? Appellants rely on section 601 of the Code of Practice in Civil Cases to support their motion. The intention of this section is shown by the sections preceding it. Section 596, under the head of evidence, provides : “The testimony of witnesses is taken in three modes: First, by affidavit; second, by deposition; third, by oral examination.” Section 600 then provides in what cases an affidavit may be used as testimony. It says : “ An affidavit may be read to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional remedy, a stay of proceedings, or a warning order, or upon a motion, and in any other case permitted by law.” Section 601 then says : “ Where a provisional remedy is granted upon an affidavit, and a motion is made to discharge or vacate it, the party against whom it is granted may, by written notice to the party by whom it was obtained, or by an order or rule of the court, require the production of the person who made the affidavit for cross-examination ; whereupon the party notified shall produce the affiant within ten days before an officer authorized to take depositions, at the time and place of which he shall give the opposite party three days notice. If the affiant is not produced, his affidavit shall be suppressed ; and if produced, he may be examined by either party.”
It is only when a motion is made to discharge or vacate a provisional remedy, can the affidavit, upon which it was granted, be suppressed under this section. It can be suppressed only when it might be used as evidence, and only then when the party who has obtained the provisional remedy has failed to produce the affiant for cross-examination, after he has been required to do so. Why should the affiant be produced for cross-.examination after the motion to discharge has been made? The only purpose the cross-examination can serve is to ascertain what the affiant knows, his means of information, and his credibility. The information thereby acquired shows the value of his affidavit as evidence. If, upon cross-examination, it be shown that it is false, section 601 does not say that the provisional remedy shall be discharged or vacated. It is only when he fails to appear for cross-examination that his affidavit is suppressed. Why is it then suppressed ? Was it for the purpose of discharging the provisional remedy? If so, why is it not discharged when the affidavit proves, upon the cross-examination of the affiant, to be false or worthless? It is only after the motion to discharge has been made, and he has failed to appear for cross-examination, that his affidavit is suppressed. Why ? Because he has failed to give the party demanding his appearance an opportunity to show the value of his affidavit by cross-examination. The statute in that case makes the penalty of the failure to produce him commensurate with the wrong done by his non-appearance; and suppresses the affidavit to the extent, and only to the extent, it can be used as evidence.
In the case before us the appellants filed their affidavit denying the statement of the affidavits upon which the attachment was issued. When that was done, the attachment, under the statutes, was controverted, and the affidavits upon which the order of attachment was issued and the affidavits of appellants became the pleadings in the attachment, and had and have no other effect. The affidavit upon which the attachment was granted was suppressed, to the extent it could be used as evidence, by operation of law. Mansfield’s Digest, sec. 381.
The motion to suppress the affidavit of Joblin was properly denied.
Third. Did the court err in instructing the jury? ^ has been repeatedly held by this court that a deed of assignment which directs a disposition of the property assigned in a manner different from that prescribed by the statute is fraudulent, and a ground for attachment. Raleigh v. Griffith, 37 Ark. 150; Collier v. Davis, 47 Ark. 367; Gilkerson-Sloss Com. Co. v. London, 53 Ark. 88; Penzel Co. v. Jett, 54 Ark. 429; Lincoln v. Field, ib. 471. Is the deed in question defective in this respect?
Section 309 of Mansfield’s Digest provides : ‘ ‘ Said assignee shall be required to sell all the property assigned to him for the payment of debts, at public auction, within one hundred and twenty days after the exetion of the bond required by this act, and shall give at least thirty days notice of the time and place of such sale.” Section 306 provides : “Such assignee shall, at the first term of the court after one year from the date of said assignment, and at the corresponding term of said court every year thereafter until the proceeds of the property assigned be disposed of for the benefit of creditors, present to the court a fair written statement, or account current, in which he shall charge himself with the whole amount of the property assigned, including all debts due or to become due. and credit himself with all sums of money expended.” Section 307 then provides: “Such account shall be carefully examined by the court, and upon such examination the court shall allow the assignee credit for all debts with which he stands charged which the court shall be satisfied could not be collected.” This last section was enacted subsequently to section 309, and repealed or amended the latter section to the extent they are in conflict, although the latter was not mentioned in the act of which the former was a part. Scales v. State, 47 Ark. 481; People v. Mahaney, 13 Mich. 481, 496-7; Lehman v. McBride, 15 Ohio St. 573; Shields v. Bennett, 8 W. Va. 74, 87; Baum v. Raphael, 57 Cal. 361; Denver Circle R. Co. v. Nestor, 10 Col. 405; Evernham v. Hulit, 45 N. J. L. 53; Sheridan v. Salem, 14 Ore. 328, 337; Davis v. State, 7 Md. 151; Cooley, Const. Lim. (6th ed.), 182.
Construing sections 307 and 309 together, it is manifest that an assignee is not required to sell choses in action within the one hundred and twenty days. “The fact that the assignee is to stand charged with the uncollected ” debt for more than a year after the execution of the assignment is wholly incompatible with the idea that he is to sell the notes and accounts at public auction within the one hundred and twenty days ; because, if he is required to sell them within that time, he could not have them on hand a year after. Under section 307, “ he is not entitled to credit for the uncollected debts with which he stands charged until he satisfies the court that they ‘could not be collected.’ ” The plain meaning of the statutes “ is that the assignee shall collect all the choses in action that he may be able to collect, and shall be credited with such as cannot be collected.” Any construction placed upon the statutes of assignment which would make it the duty of the assignee to sell them as other property is required to be sold would be disastrous to all parties interested in assignments. Hill v. Woodberry, 4 U. S. App. 68.
In the assignment in question the assignor, after describing the property assigmed, including “all their choses in action of every kind, character and description, consisting of chattel mortgages, notes and accounts,” required the assignee to sell all the property assigned to him * * * at public auction within one hundred and twenty days after executing a bond which he is required to execute by law, first having given at least thirty days notice of the time and place of such sale.” The words “ all the property assigned to him ” necessarily included the choses in action. The assignee was required to sell them. The language of the deed to that effect is clear and unambiguous, and there is nothing in it to indicate a contrary intention.
The instruction of the trial court as to the effect of this direction in the deed was properly given.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts). The court erred in directing a verdict in favor of the appellee.
The evidence must be viewed in the most favorable light for appellant, -and when given its strongest probative force in her favor, we are of the opinion that reason able minds might reach different conclusions on the question as to whether or not the injury to appellant was caused by the negligence of the appellee, as alleged in her complaint. It was therefore a question of fact for the jury to determine.
“A common carrier of passengers by street car,” says Mr. Booth, “is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended.” Booth on Street Railway Law, § 328, quoted in Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211; also, Oliver v. Fort Smith Light & Traction Co., 89 Ark. 229.
In the Olver case, supra, the car was running very slowly or had-stopped. ■ The plaintiff was on the running board. He disengaged one hand and held onto the post of the car with the other while paying his fare, and as he was in the act of handing his fare to the conductor, the car started forward with a jerk, causing the crowd on the footboard with the plaintiff to surge back and forth, which crowded him off. In that case, we said: “The appellee, as the evidence tends to show, having slackened the speed of its car, or stopped same, for passengers to get on or off, was negligent if it started the car forward again with a sudden jerk so as to cause its passengers, who were on the footboard and exercising ordinary care for their own safety, to surge back and forth and thus to crowd and throw some of them from the train. ’ ’
In Little Rock Railway & Electric Company v. Doyle, 79 Ark. 378, Doyle was a passenger of the railway company, and as the car approached the point where he wished to debark, he motioned the conductor to stop for him to get off, and the conductor obeyed and slowed the car as plaintiff was advancing to the rear end of the car, -and continued to slacken its speed until he reached the step of the platform. While he was standing on the rear of the car, with his left hand holding the handrail, and when the speed had been slackened so that he could step from the car with safety, and while he was in the act of alighting from the slowly moving car, its speed was suddenly increased, and he was thereby thrown from the car. In that case we held that the company was liable in damages, if the passenger, while in the act of stepping from the slowly moving car at a street crossing, was injured without negligence on his part by reason of the fact that the speed of the car was suddenly increased, whereby he was thrown off and injured.
Now, viewing the testimony in its most favorable aspect for the appellant, it tends to show that at a point about a half block from where appellant intended to get off the car, she signalled the conductor to stop for that purpose; that the car was “slowing down,” and that the appellant thought that same was going to stop-. The jury might, have concluded from the “slowing down” of the car after appellant had given the conductor the signal to stop, that the conductor had observed such signal and was obeying the same by causing the speed of the car to be lessened for that purpose; that the appellant, believing that the conductor had observed the signal, and was having the speed of the car slackened in order to stop the same for the purpose of allowing her to debark, arose from her seat as the car was “slowing down” preparatory to leaving the car when the same should stop; that she was standing between the seats with her right hand clutching her bundles and her left hand holding to the back of the seat, near the end of the seat, on the right-hand side, when the car, instead of stopping, as she supposed it would do, increased its speed, thereby throwing the appellant from the same to the pavement about the time the car had rounded the curve.
There was testimony to the effect that after the car passed the curve on Wright and Schiller avenues, where the injury occurred, it was down grade, and that the car would run by itself after it got out of the bind of the curve, and if the current were turned on would accelerate its speed, causing the same to start very suddenly; that one situated as the appellant was, two seats back from the center of the car, would be thrown out by a sudden jerk of the car, and that if she had been in front of the center of the ear, it would have thrown her back, but not out of the car.
It was a question for the jury, under the evidence, to determine whether the conductor saw the signal of the appellant, and, if so, whether or not he was negligent in failing to give the motorman the signal to stop the car, and whether or not, if he did not observe appellant’s signal, he was negligent, under the circumstances, in failing to observe the same. It was a question for the jury to determine also whether or not the conductor was negligent in failing to observe the situation of the appellant as she was preparing to get off the car at the usual stopping place around the curve, and if he did observe her situation, whether or not he was negligent in not having the motorman stop the car instead of permitting the speed of the car to be suddenly increased.
The appellant, by the fall, was rendered insensible. The jury would have been warranted in finding that taking into consideration her position on the car, and the violence with which she fell or was thrown from the car, and the increase of the speed of the car as it rounded the curve, that same must have gone forward with a sudden lurch or jerk, or else with a very rapid whirl around the curve. The facts bring the cause within the doctrine of the above cases.
Mr. Nellis, in his work on Street Railways, Vol. 1, § 303, says: “Where a passenger leaves his seat in a car and moves toward the door as the car comes to a stop to enable passengers to alight, such conduct may be considered as a manifestation to the one in charge of the car of an intention and desire to depart from it, and the car should not be started until he has been given a reasonable opportunity to do so.” And the same author says {% 305): “The conductor must be alert to see if any one is alighting or attempting to alight before he starts the car, and his absorption in other duties will aggravate rather than excuse the charge of negligence in starting while a passenger is attempting to alight.”
The doctrine announced in our own cases, supra, and by the learned authors on Bailway Law, above quoted, when applied to the facts of this record, makes it a question for the jury to determine whether or not there was negligence in the method of operating the car which resulted in the injury to appellant. To be sure, there was evidence from which the jury might have found that the appellee was not negligent, but, as already stated, this was a question about which reasonable minds might draw different conclusions, which makes it an issue of fact for the jury, and not one of law for the court. The same may be said with reference to the issue of contributory negligence. It can not be said as a matter of law that there was contributory negligence on the part of appellant because she arose as the car began to slow down on approaching the place where she expected to debark, and stood in that position with one hand on the seat and the other holding her bundles, as described in the testimony.
In Babcock v. Los Angeles Traction Co., 60 Pac. 780, a passenger took a position in the open space in the front end of a street oar, and when the car approached the street corner at which he desired to alight, he started toward the outside of the car for the purpose of leaving the same. The car was passing around a curve, and on account of its excessive rate of speed the passenger, while not holding with either hand, was thrown from the car and injured. In that case, the Supreme Court of California said: “The court could not declare that it was contributory negligence on his part to start to get off from the car before it had come to a full stop. There is no rule of law which requires a passenger in a street car to retain his seat or other position until the car has actually stopped, and it is a matter of universal observation that thousands, every day, leave their seats to get off before the car has stopped, without sustaining any injury. The claim of the appellant that the plaintiff’s attempt to get off the car while it was rounding the curve was itself a hazardous act, from which his injury resulted, rests upon assuming the existence of other facts which could be determined only by the jury. ’ ’
The doctrine of that casé is sound and is controlling here on the issue' of contributory negligence. The notice to passengers to remain seated until the car stops is a wise precautionary measure which passengers might do well to observe, but the failure of a passenger to comply with such request on the part of the company can not be considered contributory negligence as a matter of law. The failure of appellant to observe and obey such notice is a fact which, taken in connection with all the other facts adduced in this record, should be considered by the jury in determining whether or not she was guilty of contributory negligence.
It follows that the judgment must be reversed, and the cause will be remanded for a new trial. | [
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TIart, J.,
(after stating the facts). Counsel for defendant made a motion to compel plaintiff to elect upon which cause of action he would proceed to trial, and assigns as error tile action of the court in refusing to require plaintiff to make such election. An act of the General Assembly of 1905 provides, in effect, that when causes of a like nature, or relative to the same question, are pending in any circuit court in this State, the court may consolidate said causes when it appears reasonable to do so. Acts of 1905, page 798. If separate actions had been brought, we think the court could have consolidated them under this statute. Therefore, no prejudice could have resulted to the defendant by the court refusing to require plaintiff to elect upon which cause of action he would proceed. See Mahoney v. Roberts, 86 Ark. 130; Ashford v. Richardson, 88 Ark. 124; Western Union Tel. Co. v. Shofner, 87 Ark. 303.
It is next contended by counsel for defendant that the court erred in giving instructions on the measure of damages. He claims that the error consists in the court not telling the jury, in specific terms, that their finding as to the amount of damages must be based on the evidence, and insists that the instructions left it to the jury to find for the plaintiff in any amount that, in their judgment, should be proper. We have condemned instructions similar to the one now under consideration in several cases. See St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205; St. Louis, I. M. & S. Ry. Co. v. Dallas, 93 Ark. 209. However, we have never held that such an instruction is reversible error. In the case of St. Louis, I. M. & S. Ry. Co. v. Hydrick, 109 Ark. 231, 160 S. W. 196, the court said:
“While it is always better form, and the better practice, for the court to tell the jury that its findings on every issue of fact in the case must be based upon the evidence, yet where it is plain from the charge of the court, taken as a whole, that the jury were told that their findings must he based upon the evidence, the jury could not be misled nor feel authorized to make a finding that was not based upon the evidence because some separate or particular instruction omitted this precaution. The jury were sworn, in the first instance, to try the case and a true verdict render according to the law and evidence. Kirby’s Digest, § 4530. That being true, it is not likely that any man of sufficient intelligence to be a competent juror would feel authorized to wander beyond the evidence to find matters upon which to predicate his findings in the case. The conscientious juror would necessarily feel restrained by his oath to base his findings upon the evidence.”
It is also' insisted by counsel for defendant that the verdict of the jury on the cause of action for false imprisonment is excessive; and in this contention we think he is correct. A pardon is effective upon delivery and acceptance. See Redd v. State, 65 Ark. 485; Hunt, Ex parte, 10 Ark. 284. The plaintiff was lawfully in the custody of the defendant as lessee of the county prisoners under a contract made by him with the county court. While this is true, when the time for which a convict has been sentenced has expired, or when he has been pardoned by the Governor, he is in law no longer a convict, and can not be held as such. The defendant himself did not remain with the convicts and have direct charge of them. He delegated that authority to a warden who was appointed by him with the approval of the county court. It was the duty of Kankin, who procured the pardon for the plaintiff, to deliver the pardon first to the warden in order that he might examine it and see that it was issued by the Governor and ascertain that it was what it purported to be. It was then the duty of the warden to cease working the plaintiff. It is insisted by counsel for defendant that he should have had a reasonable time to have examined his records in order to ascertain whether or not the plaintiff had been pardoned for all offenses for which commitments had been delivered to him. This is true; but the warden refused to release the plaintiff solely on the ground that he did not have authority to do so. He told the person who had the pardon that the defendant alone reserved the right to discharge the plaintiff. The defendant having delegated to the warden the authority to have charge of the persons worked by him, it was within the scope of the authority of the warden to have examined the records himself and have determined whether there were other commitments under which the plaintiff might be held. It was his duty to have made such an examination, or caused it to have been made at once, or to have discharged the prisoner. A prisoner who has been pardoned by the Governor is entitled to his freedom, and to deprive him of it is unlawful. Therefore, the plaintiff was entitled to a judgment for some amount. As above stated, he was in legal custody of the defendant, and he had suffered all the humiliation it was possible for him to suffer solely on account of being a prisoner. The undisputed evidence shows that the illegal detention of the plaintiff by the defendant was not wilful. No indignities were offered to the plaintiff by the defendant, or his servants, after the pardon had been presented to the warden. It is true he was required to work for about two hours and a half thereafter; but this was done under a misapprehension of the law on the part of the warden who had the legal custody of the plaintiff. Under these circumstances, we think that a judgment for $25 would have been sufficient compensation for the jury to have awarded, and a judgment for that amount will be affirmed.
We find no error in the record on the cause of action for compelling the plaintiff to wear a spur, and the judgment on that count will be affirmed. | [
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Wood, J.,
(after stating the facts).
1. The first assignment of error is “the overruling defendant’s plea of former acquittal.” The State contends that the plea was not verified by the record. What is meant by “verification?” “An averment by the party making a pleading that he is prepared to establish the truth of the facts which he has pleaded.” “In pleading: literally, a making out to be true; an assertion of the ability of the pleader to prove the matter alleged in his plea.” Bouvier’s and Burrill’s Law Dictionaries. The old formula was: “And this the said plaintiff (or defendant) is ready to verify.” Stephen’s PI. 434. So to verify by the record is to prove by the record. Arch. Cr. Pr. and PI. 113. The language of the plea itself on this point is: “Copies of said verdict, judgment and indictment are hereto attached as exhibits.” The clerk has brought into this record the first indictment, the verdict, and the final order of the court thereon. By what authority, unless they were introduced and considered as part of defendant’s plea ? They are not marked as exhibits to the plea, nor designated as a part of said plea. But it was the duty of the clerk to copy them as they were. The presumption is that he has brought them into the transcript just as they were offered, whether as attached to the plea or produced for the inspection of the court. If the defendant had not designated them as exhibits, the clerk could not do so. At any rate, they are a part of this record, which is proof convincing that they were considered by the court in some form in passing upon the demurrer; otherwise, the clerk was guilty of officiousness or inadvertence. We will not 'go beyond the record to accuse him of either, but will consider the case as it appears to have been considered by the court below. In State v. Clark, 32 Ark. 237, Chief Justice English said: “The plea of former jeopardy, in this case, was not in good form. It failed to set out the facts appearing of record, but it seems the parties agreed to try it as a formal plea, and we have treated the case as if the plea had set out all the facts, and been demurred to in the court below, though no formal demurrer was interposed.” So here we may say, though a formal demurrer has been interposed, the parties treated it as passed upon by the court in connection with the record upon the first indictment. Mansfield’s Digest, sec. 2179, provides: “Neither a joinder in demurrer nor reply to the plea of former acquittal or conviction shall be necessary; but the demurrer shall be heard and decided, and the plea shall be considered as controverted by denial, and by any matter of avoidance that may be shown in evidence.” The clerk certifies “that the foregoing twenty-three pages contain a true and perfect transcript of the record and proceedings in the circuit court of said county on indictment, Nos. 15 and 36, in the cause therein set forth.” No. 36 is the present case, and the proceedings in No. 15, which was the first indictment, were therefore considered in this cause. The clerk was authorized to make a transcript in no other.
The best authors upon criminal procedure say “that autrefois acquit and convict are among the favored pleas, admitting of a lower degree of certainty, than the indictment, and a still lower than a dilatory plea. Bishop, Cr. Pr. sec. 808; Bishop, Directions & Forms, sec. 1042, Arch. Cr. Pr. & PI. Ill; Co. Lit. 303a. This certainly accords with the doctrine upon the subject as declared by the American courts, which is but an emanation of the spirit of the constitution itself that secures the inalienable right. Const. U. S. Amendment V; Com. v. Roby, 12 Pick. 502; People v. Goodwin, 18 Johns. 201; United States v. Gibert, 2 Sumner, 42. The majority of the court think the facts presented by this record indicate a sufficient verification.
2- Treating the plea, therefore, as verified, was it sufficient in substance? Mansfield’s Digest, sec. 2176, provides : “ An acquittal by a judgment on a verdict or a conviction shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the acquittal or conviction took place.” Judge Cockrill, in State v. Ward, 48 Ark. 36, correctly laid down the rule that jeopardy begins when a jury in a criminal case is impaneled and sworn in a court of competent jurisdiction to try the prisoner under an indictment sufficient, in form and substance, to sustain a conviction. Before verdict and judgment thereon, the indictment must be sufficient in form and substance; But, under our statute, jeopardy attaches after verdict and judgment thereon, whether the indictment is sufficient in form or substance or not. 1 Bish. Cr. Daw, sec. 1023.
Will jeopardy attach on the bringing in a verdict of acquittal or conviction, and before judgment is entered? We think not. Mr. Bishop says: “In reason, and not contrary to the authorities, if, on the verdict coming in, the prosecuting officer discovers a defect in the indictment, he may, instead of moving for sentence, enter a nolle fros., and indict anew.” “Indeed, plainly, since there can be no jeopardy on an invalid indictment, any discontinuance of it, while there is no subsisting judg ment, is no bar to a subsequent prosecution for the same offense.” 1 Bish. Cr. Baw, 1023, supra. In order for jeopardy to begin on an insufficient indictment, there must be both a verdict and a judgment. Ward v. State, supra.
It follows, if the first indictment upon which appellant was tried was insufficient, the demurrer to the plea was properly sustained.
An inspection of the indictment discloses that it x does not come up to the requirements of an assignment for perjury announced by Judge Mansfield in Thomas v. State, 54 Ark. 584. It “must specifically, directly and without uncertainty of meaning designate the particulars wherein the matter sworn to was false.” Charging that the defendant testified (using proper words to characterize the perjury) “that Bill Harp did not, in Bogan county, within twelve months before 11th day of August,- 1893, sell,” etc., “ when, in truth and in fact, Bill Harp had, in Bogan county and within twelve months, sold liquor,” etc., was too general, both as to time and place, to put the defendant upon notice of what he was expected to defend against. His attention should have been directed to the particulars wherein the falsity of the oath consisted—time, place, occasion; something more definite than the cycle of an entire year and the locus of a whole county. All the authorities, so far as we know, insist upon a more definite statement in a charge for perjury than is contained in the first indictment. The majority are of the opinion that the court was therefore correct in sustaining the demurrer to defendant’s plea. 2 Bishop, Cr. Pro. sec. 918; Burns v. People, 59 Barb. 531, and other authorities cited in the brief of the attorney general.
The indictment upon which the present conviction was had is good, and the only remaining question is: does the evidence support the verdict of the jury ?
It appears that appellant, in company with his brother, Bill Harp (who was of age), and two other boys (minors), went to the saloon at Spielerville, Logan county, kept by one Pennington, on the night of July 3, 1893, to buy liquor. Pennington says he refused to sell liquor to Bob Harp, Womack and Brock, because he thought they were minors, but that Bill Harp.was of age when he sold and delivered to. him several pints. He says Bob Harp, the appellant, was in the room at the time, but he did not know whether Bob saw him sell Bill or not. Womack, one of the minors, who was present, testified that the saloon keeper would not sell any liquor to him, Brock or Bob Harp; but that Bill Harp bought all the whiskey. They gave him their money, and he delivered to each of them his whiskey. He says, Bob (the appellant) was present at the time, but that he was not paying attention to him. The appellant, for himself, testified that the parties above -named went to Spielerville on the occasion mentioned to buy liquor, and that they all bought their own liquor. He says that Bill Harp did not buy any liquor for him, Bob, or the other boys that he knew of; that, on the trial of Bill Harp for selling liquor to Womack, he did not swear “that Bill Harp did not sell or give away any liquor to J. L. Womack at Spielerville on July 3, 1893, or anywhere in Logan county, within one year nest before August 11, 1893. But he swore, if Bill Harp did sell it, he, Bob, did not know it.” It was upon the transaction as above detailed that Bill Harp was indicted for selling liquor to the minor Womack, and, upon his trial for same, the perjury in this case is alleged to have been committed. Witnesses who heard the appellant testify on that trial (members of the jury) say that appellant testified on that trial, and his testimony, as they'relate it, concerning the whiskey transaction, corresponds sub stantially with his testimony as above set out on his own trial.
To constitute perjury, the matter sworn to must not only be false, but the accused must have sworn to it, knowing that it was false; in other words, it must have been wilful and corrupt. The appellant was a boy seventeen years of age. He was testifying as to his understanding of facts, not as to conclusions of law. As a matter of fact, strictly speaking, Bill Harp, under the circumstances above shown, was a purchaser, not a seller. True, our own court has decided that he would be a seller. But such determination is only the legal effect of the facts shown. We adhere to this decision as the proper construction of the liquor law, to prevent evasion and practical nullification of that statute as to minors. Still it is a question about which there has been considerable discussion and judicial interpretation; the majority of the courts, perhaps, taking the opposite view to ours, holding that one who obtains liquor in this way for another is not a seller. Black on Int. Liq. sec. 422; Cox v. State (Miss.), 3 So. Rep. 373; Johnson v. State, 63 Miss. 230; Young v. State, 58 Ala. 358; Bryant v. State, 82 Ala. 51. See also Campbell v. State, 79 Ala. 271; Morgan v. State, 81 Ala. 72. Certainly the maxim “Ignorantia legis neminem excusat ” should not be applied in its rigor to turn the scale against the defendant, when courts themselves are differing as to what the law is, and especially since it has required the decision of the highest court of the State to determine, as a matter of legal construction, that Bob Harp was not correct in his testimony, even if Bill Harp procured the whiskey for the minors in the manner detailed by witness Womack. In passing upon the motives of the defendant, the jury should have given him the benefit of the reasonable doubt upon that point, which it is manifest they did not do. We are of the opinion that the testimony did not justify a finding of wilful and corrupt perjury, as charged in the last indictment. The judgment of the Logan circuit court is therefore reversed, and remanded for a new trial. | [
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Sam Robinson, Associate Justice.
This is an appeal from a bond forfeiture in a criminal case. The appellant, Ted Hood, is a professional bondsman with his office in Little Rock. In January, 1958, one Johnny Puckett was arrested in St. Francis County on the charges of forgery and uttering. Hood made his bail bond in the sum of $2,000.00. The case was set to be tried on February 24, 1958 in the St. Francis Circuit Court at Forrest City.
On February 18, 1958, Puckett was admitted to the State Hospital for Mental Diseases at Little Rock as a voluntary patient on authority of Act 411 of 1955, Ark. Stats. 83-713. Hood was notified that Puckett was in the hospital and Hood’s wife, who acts as his secretary, phoned the Clerk of the St. Francis Circuit Court and notified him that Puckett was in the hospital. Pursuant to Mrs. Hood’s conversation with the Clerk, who is now dead, Hood obtained from the hospital authorities a certificate showing Puckett was in that institution. The certificate is as follows: “This is to certify that Johnny D. Puckett was admitted to the State Hospital on February 18, 1958, on a voluntary commitment under the provisions of Act No. 411 and at the present time is still a patient in this hospital, /s/ M. T. McMurry, Assistant registrar, For the Superintendent.” Hood sent the certificate to the Clerk of the Court who referred the matter to Mr. Fletcher Long, Deputy Prosecuting Attorney. On February 20, 1958, Long wrote to Hood as follows: “Your letter and enclosure, mailed to Mr. T. E. Christopher, Clerk, has been referred to me. You are informed that from the State’s point of view, there is nothing for the Court to consider at the present .time, but the question of forfeiting your bond on Monday, February 24. If a motion for continuance is framed and presented because of the contents of the letter from the State Hospital, the State will perhaps concede the point. I suggest that you consult your attorney or Puckett’s Little Rock attorney in this matter, inasmuch as we are informed that Mr. West, local counsel for Puckett has relieved himself of further responsibility in the matter. In the event that the motion is properly presented, and is granted, you are hereby informed that we will make application for a much larger bond, on the basis of Puckett’s past record, and the more severe punishment which could result from our amendment to bring this ease under the habitual criminal statute.”
It appears that Puckett had engaged a lawyer in Forrest City and also a Little Eock attorney to represent him, but on February 18, 1958 the Forrest City lawyer withdrew from the case because his fee had not been paid and he so notified Puckett. There is no showing as to what arrangements were made with the Little Eock lawyer. In any event, no motion was made to continue the case which was called for trial on February 24, 1958.
On February 28, 1958, the Court ordered the bond forfeited. On January 7, 1959, Hood obtained custody of Puckett and surrendered him to the officers of St. Francis County. Hood filed a petition to set aside the bond forfeiture alleging that Piickett was not present when his case came on for trial because he is insane. Hood also moved for a jury trial. Both the petition to set aside the bond forfeiture and the motion for a jury trial were overruled. Hood appealed to this Court and we held that he was entitled to a jury trial and reversed the judgment of forfeiture. Hood v. State, 231 Ark. 772, 332 S. W. 2d 488.
On remand a jury trial was had and there was a verdict for the State on the issue of whether, because of insanity, Puckett failed to appear on February 24, 1958, when his ease was called for trial. This is the second appeal.
First, did the Court err in not setting aside the bond forfeiture as the Court could have done under authority of Ark. Stats. 43-729 which provides: “If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.”
When the case was called for trial on February 24, 1958, the defendant was not present and no one appeared in his behalf to ask that the case be continued, but no bond forfeiture was ordered at that time. An alias warrant was issued for Puckett’s arrest.
On February 26, two days later, two officers from Forrest City came to Little Rock to arrest Puckett and return him to' St. Francis County. They went to the State Hospital where they had been told Puckett was confined, but he was not there. He had been released to a lawyer in Little Rock. The officers went to the lawyer’s office and were informed that Puckett had fled. The officers returned to Forrest City and on February 28, the Court ordered a forfeiture of the bond. Under these circumstances we do not think there was an abuse of discretion by the trial Court in refusing to remit the bond forfeiture or any part thereof.
The trial Court had good reason to believe that Puckett entered the hospital on February 18 for the purpose of avoiding a trial on February 24. Puckett’s admission to the hospital was voluntary. No doctor signed anything to the effect that Puckett was insane. One of his lawyers testified that he forcefully conducted Puckett to the hospital on the night of February 18 because his condition indicated insanity, but the hospital record show that Puckett was admitted in the middle of the day. This was six days before the case was to be tried. Two days after the case was to be tried, Puckett was released by the hospital to one of his lawyers and promptly disappeared. One of those in charge at the hospital testified that Puckett would not have been admitted to the hospital in the first place if it had been known that a criminal ease was pending against him, and that he would have been released to attend the trial on the 24th if the request had been made. It has been suggested that later Puckett was sent to the penitentiary from Pulaski County and was then transferred from the penitentiary to the State Hospital and is now there confined.
Perhaps Puckett is insane, but tbe issue of whether he was absent when his case was called for trial because of insanity was submitted to a jury. At all times Puckett was represented by counsel. The lawyer, who according to the record, was representing him in the case at Forrest City at the time of the forfeiture, and who was not present to move for a continuance, was not called as a witness in the ease at bar.
In his petition filed on April 18, 1958, to set aside the bond forfeiture, appellant alleged that Puckett was unable to appear in court because of insanity. This allegation raised an issue that called for a jury trial, since the appellant requested such a trial. Upon the trial on remand the Court, by Instruction'No. 1 told the jury:: “You are instructed that if you find from a preponderance of the evidence that the defendant, Johnny Puckett, was confined in the Arkansas State Hospital For Nervous Diseases on February 24, 1958, because of' his insanity, and was unable to attend his trial on said date in this Court because of such confinement and insanity, then you will find for the defendant, Ted Hood. On -the other hand, if you find from a preponderance-of the evidence that the defendant, Johnny Puckett, was-admitted to the Arkansas State Hospital for Nervous. Diseases as a voluntary patient under the provisions of' Act 411 of 1955 for treatment for alcoholism, and if you further find he could have been released if he had requested it, or if the hospital authorities had been informed that criminal charges were pending against him,, then you will find for the plaintiff, State of Arkansas.”
This instruction was correct. The issue was whether appellant was unable to attend Circuit Court on February 24, 1958 because of insanity. He had asserted no other valid reason for not being present when his case was called. The only evidence of insanity was the testimony of his wife that he acted “crazy” and the testimony of one of his lawyers to the same effect. No other witness testified that he was insane and it was shown that he was released from the hospital two days after the case was called for trial. The burden was on the appellant to prove that Puckett was not in court when his ease was called for trial because he was insane. He failed to establish such allegation to the satisfaction of the jury.
Affirmed.
George Rose Smith and Ward, JJ., dissent. | [
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Jim Johnson, Associate Justice.
This is an appeal from a Chancery decree granting appellee, Wesley Anderson, a divorce from appellant, Leona Anderson, and adjudicating property rights between the parties.
Appellee sought the divorce upon the grounds of general indignities and alleged, inter alia, that he and appellant had settled their property rights.
Appellant denied that appellee had grounds for divorce, denied any property settlement and cross-complained seeking a decree for separate maintenance and support; a property division and settlement between the parties; decree of sale of all properties owned by the parties as tenants by the entirety, with proceeds to be divided equally; and a sum as permanent alimony, attorney’s fee, suit money, and cost.
From a decree which was adverse in part to appellant’s prayer comes this appeal.
Aside from a contention that the division of property decreed by the court is inequitable and that the court abused its discretion in failing to grant alimony and attorney’s fee, appellant’s principal contention is that there was no corroboration of appellee’s testimony which would entitle him to the relief granted by the Chancellor.
As to corroboration, the Chancellor in his findings said:
“I find here a picture that, to me, is highly regrettable. I might say that in making my finding on the petition for divorce, the question of corroboration arises; it has been questioned severely. The corroboration, as I have seen it, has come as much at least, if not more, from the testimony of the defendant herself as from those witnesses introduced by the plaintiff.”
In argument here,. appellant calls to our attention the provisions of § 34-1207, Ark. Stats. Ann. which reads as follows:
"The statements of the complaint for a divorce shall not be taken as true because of the defendant’s failure to answer, or his or her admission of their truth.”
Of course, it is a rigid rule of continuous application in this State that in an action for divorce a decree will not be granted upon the uncorroborated testimony of one of the parties. Smith v. Smith, 215 Ark. 839, 233 S. W. 2d 776. But the purpose of the rule requiring corroboration is to prevent the procuring of divorces through collusion, and when it is plain that there is no collusion, the corroboration may be comparatively slight. Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6.
This was a hotly contested divorce suit with no intimation of collusion. In our view it clearly falls within the following rule which was aptly stated in Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078, as follows:
“It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”
The record in the present case is voluminous. It would serve no useful purpose to here set forth the minute details of appellant’s contemptuous conduct toward appellee which took place over a period of years. There was evidence to the effect that such conduct resulted in the absence of cohabitation as husband and wife for a period of some three years prior to the commencement of this action even though the parties continued to inhabit the same home. Appellee was relegated to sleeping on the back porch of their home and was found one night sleeping on a counter in his place of business. On one occasion appellee was stricken with a serious kidney ailment. "When it appeared that he might die, it is impressive that appellant took the occasion to ask appellee to forgive her for the way she had treated him.
Appellee was a building contractor and had built up a substantial business known as Anderson Lumber Company. Appellant performed some limited duties for the business but to the employees, behind appellee’s back, she was known as the “big boss” due to her dictatorial attitude. Appellant would publicly criticize appellee and would correct him in front of customers. One witness testified that after two of appellee’s construction jobs had been turned down by plumbing inspectors, he heard appellant tell her husband that if he had done the jobs right he would have gotten his money out of them and then almost immediately told appellee to get out of his own place of business and stay out. This witness said: “I saw there was trouble coming up and I got out and stayed out myself.” So did appellee. Another witness testified that on several occasions he noticed appellant use short, cut off sentences and catty remarks to appellee. Another witness noticed how worked up appellant would get when she began to talk about her troubles with her husband and what she was going to do to him. The record is replete with instances such as here set out, each perhaps small within itself but together produced cumulative results which caused the Chancellor to find that they constituted such indignities to the person of appellee as to render his condition intolerable.
As was said in Coffee v. Coffee, 223 Ark. 607, 267 S. W. 2d 499:
“The Chancellor and the parties reside in the same community and he had the advantage of seeing and hearing the witnesses testify and was in a preferred position to determine the credibility of the witnesses and the weight to be accorded this testimony.
“We have also held that while Chancery cases are tried de novo, the established rule of practice is that his findings are of such persuasive force upon evenly balanced testimony that the decree will not be reversed.”
And in Koury v. Koury, 230 Ark. 536, 323 S. W. 2d 554:
“The very nature of the ill treatment inflicted upon Mrs. Koury was such that there could not be much corroboration, and in a case of this kind where there is no collusion her testimony does not need much corroboration. ’ ’
Applying these rules here there was more than sufficient evidence to support the Chancellor’s finding. Therefore, the decree of divorce is affirmed.
Further applying the above rules we find after a careful examination of the record that the Chancellor’s adjudication of the property rights of the parties was not only fair but under the circumstances extremely just and equitable. Appellant’s total assets following the trial court’s adjudication are substantial. From the record it is clear that she is a fairly young woman. There is no contention that she is in ill health. She is remarkably shrewd in business dealings, having been engaged in successful financial transactions for many years. She possesses great ability and appears to be financially independent. From the standpoint of ready money and liquid assets she seems to be in a superior position to appellee. From what has been said, it follows that since the matter of alimony and attorney’s fees fall within the sound discretion of the trial court, we are unable to find abuse of discretion. Therefore, on the whole case the decree is affirmed. | [
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George Rose Smith, J.
This is a boundary dispute that began as an action at law and was later transferred to equity. At the first trial the chancellor sustained the defendants’ demurrer to the plaintiffs’ evidence and dismissed the complaint. We reversed that decree, finding that when the testimony was viewed in the light most favorable to the plaintiffs there was some substantial evidence to support their contention that a fence line had become the boundary by long acquiescence. Neely v. Jones, 232 Ark. 411, 337 S. W. 2d 872.
Upon remand the chancellor considered the case upon the original reported testimony, some slight additional proof, and a personal view of the property. In a written opinion he concluded, and we agree, that the plaintiffs’ contentions had not been established by the weight of the evidence. The court accordingly adjudged the title to the disputed strip to be in the defendants.
The appellants now argue a single point, that the opinion upon the first appeal became the law of the case and, in view of the absence of any additional material proof, obliged the chancellor to decide the issues in favor of the plaintiffs. In the course of their brief counsel state their position in this way: “We would like to know just what is the difference between a chancellor sustaining a demurrer to certain evidence and deciding litigation the same way on the same evidence.”
There is a very important difference. Ever since the decision in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, we have consistently held that a demurrer to the plaintiff’s evidence should be sustained only if that proof, viewed in its most favorable light, would present no question of fact for a jury if the case were being tried at law. In such a situation the chancellor does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence. Brock v. Bates, 227 Ark. 173, 297 S. W. 2d 938. Hence our decision on the first appeal meant only that if the case had been heard at law upon the plaintiffs’ evidence it would have been error to direct a verdict for the defendants.
Upon remand the defendants eventually rested their case, and the cause was submitted upon the merits. Then, for the first time, it was proper for the chancellor to weigh the evidence and determine where its preponderance law. He was not obliged to find for the plaintiffs, any more than a jury would have been if the case had been retried at law after having been reversed for the trial court’s error in directing a verdict for the defendants. Thus our decision upon the first appeal did not preclude the chancellor from finding’, even upon the original proof alone, that the plaintiffs had not proved their ease by a preponderance of the evidence.
Affirmed. | [
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Paul Ward, Associate Justice.
On December 1, 1960 appellee, Benjamin S. Wood, filed a complaint seeking a divorce from appellant, Barbara R. Wood under Ark. Stats. § 34-1202 based on separation for three consecutive years. On January 10,1961 the trial court, after hearing the testimony presented by appellee, granted him a divorce. Prom the decree of divorce appellant appeals to this Court, seeking a reversal on the two grounds hereafter discussed.
One. “Trial court erred by failing to follow mandate of Arkansas Supreme Court.” Clearly, there is no merit in this-point. These same parties were previously before us in Case No. 2237, decided November 28, 1960 (232 Ark. 812,340 S. W. 2d 393) to which reference is made for background facts. There Barbara was appellant and Benjamin was appellee. In reversing that case we said:
“In order to do full justice to both parties and to give appellant an opportunity to defend any divorce case against her — a right she claims was denied her in this case — we have concluded that the Chancery Court should, and it is hereby directed to, dismiss the present case without prejudice. Then either party is free to institute a new case if so desired.”
The record in this case shows the trial court did exactly as directed when it dismissed the original divorce action. The mandate of this Court required the trial judge to do nothing else.
Two. Under the only other ground (or point) relied on for a reversal, appellant says the decree rendered by the trial court is invalid because “It Ignores the Basic Premise of Constitutional Due Process.” Again we find no reversible error.
As we understand appellant’s argument under this point, as it is presented in her brief, she does not contend the trial court had no jurisdiction over the parties and the subject matter, nor does she contend she was not properly served. However, if the latter be appellant’s contention, we do not agree. First, there is no contention she was not properly served by Warning Order in proper form. Second, the Attorney Ad Litem mailed her a registered letter to her last known address which was returned, marked " refused ’ ’. Third, it is admitted she had actual knowledge of the suit one day before the date of trial.
We gather that the prime contention of appellant is that she did not have adequate time to prepare her defense. At one place in the brief appellant states “. . . appellee hastened to set this matter for trial ten days from the final date of notice to appear.” At another place she states “The trial court denied the appellant a reasonable opportunity to be heard and as such — denied due process.” Neither of these assertions amounts to a denial of the trial court’s jurisdiction. These assertions do suggest the trial court may have abused its discretion in refusing to grant appellant a continuance. However, error, on that basis, is not urged for a reversal. Again, even if we consider this appeal on that basis, we are unwilling to say the trial court abused its sound discretion. There are several circumstances disclosed by the record which could have led the trial court to believe appellant was merely using delay tactics. For one thing the trial court apparently made a fruitless effort to find out just what attorneys represented appellant, and also whether she had a meritorious defense. It appears that appellant’s present attorneys were not employed until after it was too late to formulate the issues raised on this appeal. In fact the record is replete with indications of the lack of due diligence on the part of appellant herself in defending the present suit against her.
Affirmed.
George Rose Smith, J., not participating. | [
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McCulloch, C. J.
Appellee instituted this action in the circuit court of Pulaski County against appellant to recover a money judgment for several items, and the court, on the trial of the case before a jury, gave a peremptory instruction in favor of appellee for the recovery of an item of $250, and both parties appealed. Appellee has, however, abandoned his appeal, and that eliminates all of the items except the one mentioned above.
Appellant is a domestic corporation, domiciled at Little Bock, and is engaged in the business of buying automobiles from a manufacturer at Toledo, Ohio, and. reselling the same in Arkansas. Its method of doing business is to contract a year in advance for the number of automobiles desired for the trade and to establish sub- agencies in different parts of the State in addition to operating a sales department in Little Rock.
Appellee was selected as an agent at Danville, Arkansas, his territory covering the whole of Yell County, and a contract was entered into.whereby he was to purchase four automobiles at a certain stipulated price, on board cars at Toledo, Ohio, and to have as many more as he found sale for in his territory. The contract provided that he should, at the date thereof, pay to appellant the sum of $250, ‘ ‘ as part of the purchase price for the motor ' cars specified in this contract, which payment shall remain in the seller’s possession until the expiration of this contract, provided that any and all of said part of purchase money may, at the option of the seller, be credited against any parts or open account due to the seller from the dealer, and the balance of said purchase money, if any, will then be applied on the purchase price of. motor cars as provided herein.” The contract further provided that the net purchase price of each car should be paid for as the same was delivered on board cars at Toledo, or within five days after presentation of draft with bill of lading attached at the place of delivery. The contract g’ave appellant the right to cancel the contract at any time for certain causes therein named, and also contained the'following provision with reference to such cancellation : 4 ‘ That in the event, for any reason, this agreement shall be cancelled before its expiration, then the seller may apply and retain that part of the purchase price paid by the dealer at the time of entering into this agreement and remaining in the hands of the seller in payment of any damage or loss which may be caused by failure of the dealer to perform, for any accounts-for parts or charges, of whatsoever character, the dealer may have incurred with the seller. In the absence of any of the above contingencies, then such part purchase price shall be returned and paid over to the dealer.”
The contract was dated January 17,1912, and was to run until July 31,1912.
Appellee paid the $250 specified in the contract, and that is the item which he recovered below.
The first car was shipped to appellee at Danville, and he was unable to pay the freight, and entered into a special contract with appellant whereby the latter agreed to take the car and re-sell it, which was done, appellee waiving his commission and paying the freight.
Appellee did not order another car after that time, and there was no formal cancellation of the contract.
• In May, 1912, two persons from Yell County came to Little Rock to buy cars, and applied at appellant’s place of business. Appellant’s agent called appellee over the telephone and explained to him that they had the opportunity to sell some cars in that territory, but would have to do it at a close profit, and it would be necessary for him to waive his commission, whereupon appellee agreed to do so for the sum of $75, and sent a telegram to appellant in the following words: “I will waive my commission on the three cars sold within the next twenty-four hours for $75.”
Appellant sold two cars, and shortly thereafter paid over the sum of $50 to appellee.
The question whether appellee was entitled to the full amount of $75 on this transaction, has been 'eliminated from the case and need not be further discussed.
The sole question presented is, whether appellee is indisputably entitled to recover the sum of $250,* or whether there was enough evidence to warrant the submission of that question to the jury.
The contract between the parties, when considered as a whole, contemplates the advance payment of the sum of $250 in the nature of a deposit by appellee as security for the performance of his undertaking to purchase the stipulated number of automobiles, and it is not merely an advance payment on the price of machines. According to the terms of the contract the deposit was to remain in the hands of appellant until the expiration'of the contract period, or unless the contract was sooner cancelled, and that it should be returned to appellee at the expiration of such time, or upon the cancellation of the contract unless applied in satisfaction -of loss -or damage on the part of appellant sustained by reason of appellee’s failure to perform tbe contract, or on running account due from appellee to appellant. /
There was no formal cancellation of tbe contract, and no formal demand was made by either party upon the other, but after the transactions which we have mentioned occurred time was permitted to pass without either party taking any steps thereunder.
Under those circumstances appellee was entitled to the return of his money at the end of the contractual period, less any amount that he might have owed appellant on account, or for loss-or damage sustained by appellant on account of nonperformance by appellee.
It is not claimed that there was anything due on account, but it is insisted now that appellant sustained damage to an amount in excess of the money thus deposited.
It devolved upon appellant to establish the amount of its damages, and unless it has done so, or adduced some proof tending to establish damage, it can not be said that the court erred in giving a peremptory instruction.
Ordinarily, the measure of damages for breach of a contract of sale by a vendee is the difference between the contract and the market price at the time, and place of delivery stipulated, provided the contract price exceeds the market price. Nelson v. Hirschberg, 70 Ark. 39; 2 Mechem on Sales, § 1690.
If that rule be adhered to, it is manifest that appellant has not sustained any damages, for there is no attempt to show that the market price of the automobiles was less than the contract price.
That, however, is not the proper criterion in this case. Appellant was not a dealer with an unlimited supply o'f automobiles or with opportunities to purchase an unlimited supply. The proof showed that he contracted about a year in advance for a supply of automobiles, and that he made a certain profit cn those that he sold. His testimony showed that 'his profit on the four machines covered by this contract amounted to $260, when sold through a subagent. The measure of appellant’s damages for breach of the contract was not the difference between the contract and market prices, but the amount of profits, if any, which he lost by reason of the breach. If, notwithstanding the breach of the contract, appellant was able to sell his supply of automobiles 'without loss of profit, then it sustained no damage, and in order to make out this it should have proved that there was a loss of profits. We do not find any substantial proof in the record which would warrant the jury in finding that there was any loss of profits at all. The testimony of Mr. Ted-ford shows the amount of profits which was to accrue to appellant under the contract, but he does not show that they failed to sell these machines and realize profits from other purchasers. He does say in his testimony that appellee’s breach of the contract “got me in a hole about four cars,” but this'does not mean that he lost the profits on four cars. On the contrary, it is evident that he did not mean that, for, according to his own statement, he took the first car off the hands of appellee and eliminated that entirely from the contract. That statement of the witness, putting it in the strongest light, could only mean that they were hindered or embarrassed by appellee’s breach of the contract; but in order to show the right to recover, or to retain any part of the deposit, it was necessary to prove that the profits were lost, and, if so, how much.
As there was no proof in the record which would have warranted a jury in fixing any amount of damages, we conclude, that the trial court was warranted in taking the case from the jury with a peremptory instruction. That being the state of the record, the judgment must be affirmed, and it is so ordered. | [
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McCulloch, C. J.
A road improvement district in Lincoln County was formed by an order of the county court, made upon petition of property owners in the dis trict to be affected, pursuant to Act No. 402 of tbe General Assembly of 1909.
Appellant owned property in tbe district, and, after tbe district was formed and proceedings were begun thereunder toward tbe assessment of property for tbe improvement, be instituted this action to restrain such proceedings, alleging that tbe order of tbe county court is void for tbe reason that neither tbe boundaries of tbe district nor tbe lands situated therein were described in tbe published notice.
Tbe chancery court sustained a demurrer to tbe complaint, and an appeal has been prosecuted to this court.
According to tbe allegations of tbe complaint, tbe petition for tbe improvement undertook to describe tbe tracts of land to be affected, and a plat was filed with tbe petition giving a description of tbe lands to be included in tbe district and also showing tbe boundaries of tbe district; but tbe published notice which preceded tbe order of tbe court only set forth tbe description of tbe land as stated in tbe petition.
Section 6, township 9 south, range 5 west, is, as alleged in tbe complaint, an irregular section, according to tbe plat of tbe public survey, and tbe subdivisions thereof are numbered as lots. A portion of that section is included in tbe boundaries as shown in tbe plat and also by description of certain lots set forth in tbe petition and notice; but there is a variance between the description in tbe petition and notice and in that portion of the section included in tbe boundaries shown on tbe plat. That is to say, there is a variance if it be true, as alleged in tbe complaint, that tbe lots described inside of the boundaries do not answer to tbe description of those lots according to tbe plat of tbe public survey. Those lots contain 200 acres and lie along tbe west boundary line of tbe section and tbe east boundary of tbe districts. Tbe lots included in tbe boundaries shown on tbe plat are described in tbe Government surveys as west half lot 5 and lots 6 and 17; whereas, in tbe petition and plat and in tbe published notice that territory is described as lots 4, 5, 12, 13 and 20.
The plat of the public survey, as exhibited with the complaint, shows that lots 4,12,13 and 20 are situated in another portion of section 6 and are not contiguous to the other territory embraced in the district.
We have, therefore, according to the allegations of the complaint, a case where the notice does not conform to the plat filed with the petition, and the question raised is whether or not that avoids the proceedings.
The statute under which the district was formed reads as follows:
“Whenever a majority in value of the owners of real property in a county, or any part of a county, such majority in value to be determined by the assessment for purposes of general taxation in force at the time, shall present a petition to the county court of any county in this State, praying for the formation of a road improvement district, the said county court shall, after having given public notice for twenty days by printed copies posted in ten places in said county, or part thereof, one of which shall be posted on the principal door of the courthouse of said county, or by publication in some newspaper in said county, determine the fact that such petition is so signed by such majority in value of said land owners. The said petition shall be accompanied by a map or plat of the particular part of said county to be included within the boundaries of said district, if the said boundaries be less than the entire area of said county; and the said designated boundaries shall be plainly indicated so that no controversy may. arise as to the limits of the same. Said petition shall also contain a general description of the proposed road, stating starting point, route, and terminous, as near as practicable.” Section 1, Act No. 402, Acts of 1909, p. 1153.
There can be no doubt that the publication of notice describing the land is jurisdictional, and the county court has no authority to form a district until notice has been published in accordance with the terms of the statute.
The statute does not undertake to prescribe what the notice shall contain, but it is manifest that it is intended to contain a correct description of the lands to be affected, so that property owners may have an opportunity to know that their lands are about to be proceeded against, or to be included in the formation of the district. There must be such a description .as would be sufficient to put all of the land owners on notice.
Now, according to the allegations of the complaint, the plat includes 200 acres of land which were not correctly described in the notice, and this makes a fatal variance between the notice and the plat. The fact that the plat and the notice both contain the same erroneous description does not obviate the variance, as the plat gives the exterior boundaries of the district and includes that area, even though the description by lot numbers- is erroneous. To exclude the territory from the plat would be to form a district of less territory than that included in the boundaries set forth therein; and, on the other hand, if we should include that territory in the district, it would be done without notice having been given to the owner as required by the statute. So we think that there is a fatal variance between the description of the lands embraced in the notice and those included in the plat and that this invalidates the formation of the district.
The same principle was involved in the case of Voss v. Reyburn, 104 Ark. 298, where we held that (quoting from the syllabus), “where an attempted publication of an ordinance creating an improvement district omitted two half-blocks from the proposed improvement district, the variance is material and destroys the validity of the attempted organization. ’ ’
That case related to an improvement district formed under general statute in a municipality, and publication of the ordinance was required, whereas under the statute which governs in this case notice was required to be published before the order is made forming the district. The two things are, however, of equal importance and the same principle governs in each, of the cases. In tliat case we said:
“The omission from the publication of the ordinance designating the district of the half of two blocks, containing twelve lots, is so material and important a variance from the petition and ordinance as passed as to destroy the validity of the attempted organization of the district. It was, in legal effect, no publication at all, and did not comply with the statutory requirement. The object of designating the boundaries of the district was to enable the property owners included therein and affected thereby to easily ascertain what property was included in the district. * * * It would be very unjust to property owners to include them in the district without giving them the opportunity, if they deemed it unwise, to protest against it and to endeavor to convince and persuade their neighbors of its inexpediency. This right is intended to be guaranteed to every owner of land in the district by the statute under consideration. ’ ’
It follows that the chancellor was wrong in sustaining a demurrer to the complaint. Reversed and remanded, with directions to overrule the demurrer. | [
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Hart, J.,
(after stating the facts). In the case of Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406, the court held that a provision in a bill of lading of fruit that a written notice of intention to claim damages should be presented to the carrier within thirty-six hours after notice to the consignee of arrival of the fruit at the place of delivery is not unreasonable, as it is the consignor’s duty to have the consignee, or an agent, at the destination 'to ascertain the condition of the fruit. See also St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353. A stipulation in a contract for the shipment of live stock requiring notice of a claim for- loss or injury within a specified time is for the protection of the carrier and may he waived by it. Cumbie v. St. Louis, I. M. & S. Ry. Co., supra; St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154; St. Louis, I. M. & S. Ry. Co. v. Jacobs, 70 Ark. 401.
In the Cumhie case the court sustained a demurrer to the complaint. In that case the complaint alleged that the delivering carrier, through its agent, -examined and knew of the condition of the peaches while in its possession after their arrival at their destination. The court held that where the facts stated show that the delivering carrier has actual knowledge of all the conditions that a written notice could give it, then the written notice is not required. It was, therefore, held that the court erred in sustaining a demurrer to the complaint.
In the Grayson ease the claim was presented to a general officer of the railway company. He directed that the claim be presented to the chief clerk in the claim department, which was accordingly done, and negotiations looking to an adjustment of the damages were pending for some time thereafter. The court held -that the railway company, by proceeding to investigate the claim, led the shipper to believe that the claim would be settled on its merits and that the jury, under such circumstances, was warranted in finding that the railway company waived the immediate notice stipulated in the contract.
In the Jacobs' case, verbal notice was given to the proper agents of the railway company, upon which they acted, making all investigations they desired to make and without demanding any written notice. The court held that under these circumstances there was a waiver of the written notice.
In the present case, verbal notice was given by the shipper to a claim agent of the railway company at Kansas City, the place of destination. No notice of any kind was given to any general officer of the company at the place of destination, or to the station agent there. The claim agent was not such an agent to receive notice as was provided in the contract; and it is not shown that the claim agent had any authority to represent the railway company in the matter of receiving the notice contemplated by the contract. The claim agent, upon receiving the verbal notice, did not enter into negotiations with the shipper looking to an adjustment of his alleged loss. He did not accept the notice nor in any wise act upon it. He did not mislead the shipper in any way, but told him that he must give a written notice as required by the contract. Mere knowledge on the part of the claim agent of the railway company that the shipper claimed damages for injury to his cattle, unaccompanied by any act upon the part of the. claim agent looking to an adjustment of the loss, is not sufficient to constitute a waiver of a stipulation requiring the claim to be made in writing within a prescribed time. There is nothing in the record tending to show any circumstances from which the jury might have inferred that the carrier waived the stipulation requiring written notice within the time specified in the contract. There is nothing in the record, as was in the Cumbie case, to show knowledge on the part of the company that the shipper had suffered loss. It was not shown that the claim agent was the proper person to receive the notice, and his knowledge could not be imputable to the- railway company. The court therefore erred in not directing a verdict for the railway company. For this error the judgment must be reversed, and, inasmuch as the facts of the case seem to have been fully developed, the cause of action of the plaintiff will be here dismissed. | [
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Smith, J.,
(after stating the facts). The evidence having shown clearly and without contradiction that appellee was familiar with the location of the tree's, he must be held to have assumed the risk incident to their proximity; and in this view of the case it becomes immaterial whether appellant was guilty of negligence in so constructing its roadbed as to have the trees standing near thereto or not. In the case of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, it was said: ■ “It is well settled that when one enters the service of another, he takes upon himself the ordinary risks of the employment in which he engages. On the other hand, the employer takes upon himself an implied obligation to provide the person employed with suitable instruments and means with which to do his work, and to provide a suitable place in which such person, when exercising due care himself, can perform his duties safely, or without exposure to dangers that do not come within the obvious scope of his employment. But the servant can dispense with this obligation. If, having sufficient knowledge to enable him to see and appreciate the dangers to which he will be exposed, he knowingly assents to occupy a place set apart to him by the master and does-so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. It is then no longer a question whether such place could not • with reasonable care and diligence be made safe. Having voluntarily accepted the place occupied by him, he can not hold the master liable for injuries received. See Davis v. Railway, 53 Ark. 117; Fones v. Phillips, 39 Ark. 17.”
But appellee testified that his time was occupied and his attention engaged in discharging the directions given turn by Ms foreman in unloading the ties, and that while so employed he could not observe his surroundings and was unaware of the presence of the tree against which he threw the tie that injured Mm. Appellant’s proof was to the effect that the danger was open and obvious and would have been apparent to appellee but for his inattention to his surroundings and the negligent manner in which he discharged his duties. While this may have been the case, we can not say that the undisputed evidence shows that such was the fact. , The servant has the right to assume that he may safely obey the master’s directions in 'the performance of his duties, and he is not bound to inspect his place to see if it is safe, nor is he required to experiment to ascertain if the master has adopted a safe method of doing his work. Of course, if he is directed to perform a dangerous employment, but realizes 'before he enters upon it that it is dangerous, and appreciates the danger, then he is held to have assumed the risk; but if the danger of obeying the master’s commands is not open and patent, then he can not be . held to have assumed a risk which he did not appreciate, and of which he had no knowledge. It is not alleged that appellee was an inexperienced servant, and this case was not tried upon the theory that there was any duty to instruct on that account.
Under the fadts of this record appellee will he held • to have assumed the risk of injury if the jury shall find that the danger was so obvious that appellee had no right to rely on the assumption that he could safely unload the ties in the manner in which he was doing, without devoting attention to his surroundings and the proximity of the trees. If the jury shall find that the master’s directions to throw oft ties hurriedly carried with it the assurance, under the circumstances, that this might be safely done without giving attention to the proximity of the trees, then appellee did not assume the risk of injury therefrom; otherwise, he did. The negligence alleged in the complaint consisted in leaving standing trees near the track and the speed of the train in connection therewith; but proof was offered, without objection, showing that appellee had received orders to throw the ties from the train under the circumstances stated; arid upon the remand of the cause he may, if he so elects, amend his complaint to allege negligence in that particular.
We have not discussed the instructions which were given or refused, as we have here stated our view of the law of the ease, and upon the remand of the cause, which is here ordered, it will be submitted to the jury in accordance with the views here expressed. | [
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Smith, J.,
(after stating the facts). The allegations of the complaint appear to be' more specific and definite than those contained in the exhibit. The complaint alleges the meaning of the term “furnishing trade” as used in the exhibit. The meaning of trade terms may be shown. The rule in such cases is stated in Lawson on Contracts, (2 ed.), § 390, p. 450.
“The customs of particular classes of men soon give to particular words different meanings from those which they may have among other classes, or in the community generally. Mercantile contracts are commonly framed in a language peculiar to merchants, and hardly understood outside their world. Agreements which are entered into every day in the year between members of different trades and professions are expressed in technical and uncommon terms. The intentions of the parties, though perfectly well known to themselves, would be defeated were the language employed to be strictly construed according to its ordinary meaning in the world at large. Hence, while words in a contract relating to the ordinary transactions of life are to be construed according to their plain, ordinary and popular meaning, yet if, in reference to the subject-matter of the contract, particular words and expressions have by usage acquired a meaning different from their plain, ordinary and popular meaning, the parties using those words in such a contract must be taken to have used them in their peculiar sense. And so words, technical or ambiguous on their face, or foreign or peculiar to the sciences or the arts, or to particular trades, professions, occupations, or localities, may be explained, where they are employed in written instruments, by parol evidence of usage.”
This question was recently thoroughly considered by this court in the case of Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, in which case it was said: “Ordinarily, it is the duty of the court, in the trial of cases, to construe a written contract and declare its terms and meaning to the jury. But where the contract contains words of latent ambiguity, or where technical terms are used or terms which, by custom and usage, are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the terms or words used, and the question may be submitted to the jury to determine in what sense they are used.” And the same opinion quotes from Wood v. Kelsey, 90 Ark. 272, the following language: ‘ ‘ Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.”
It is urged by appellee that appellant undertook in his complaint to enlarge and vary the terms of the contract for the sale of the stock of goods. But the exhibit is merely evidentiary of the terms of the sale, and the sufficiency of the complaint is to be determined by a consideration of its allegations. We need not consider any possible difficulty which appellant may experience in proving the allegations of his complaint, as no such difficulties are before us, when the sufficiency of the complaint is tested on demurrer. We think the allegations of the complaint are sufficiently definite and certain to state a cause of aiction. It is urged that the complaint does not state what articles appellee would desire furnished to his tenants during the year 1912 and that the complaint does not state the quantity of such articles. But it can not be assumed that appellee did not know what articles he would wish to purchase from appellee, nor can we assume that appellee did not have'these articles for sale, as appellant had just purchased the stock of goods from appellee and this purchase constituted the consideration for the contract alleged to have been broken. In addition to the goods just purchased from appellee, appellant alleged that he bought additional goods and merchandise and articles to comply with said agreement at a cost of $5,000, and stood ready at all times during the year 1912 to furnish the merchandise embraced in the terms of the contract. Nor was there such uncertainty as to quantity as would render the contract void on that account. The contract as alleged in the complaint, was that 'appellee should purchase all of the goods from appellant, which appellee desired furnished to his tenants during the year 1912, and the exact quantity of such goods is alleged to he $2,516; but they-were purchased by appellee from another mercantile concern doing a similar business.
There is almost an infinite number of cases on the ■ question of the recovery of profits by way of damages for breach of a contract; and this question has been the subject of a number of recent cases decided by this court. The rule in such cases, as stated by Mr. Justice Riddick, in the case of Beekman Lumber Co. v. Kittrell, 80 Ark. 228, was quoted from 13 Cyc. 53, as follows: “-The recovery of profits, as in the case of damages for the breach of contracts, in general depends upon whether such profits were within the contemplation of the parties at the time the contract was made. If the profits are such as grow out of the contract itself, and are the direct and immediate result of its fulfillment, they form a proper item of ¡damages.” Such damages “must be certain both in their nature and in respect to the cause from which they proceed. It is against the policy of the law to allow profits as damages where such profits are remotely connected with the breach of contract alleged, or where they 'are speculative, resting only upon conjectural evidence or the individual opinion of parties or witnesses.” The majority of the court think the facts alleged in the complaint meet the requirements of this test.
Appellee agreed to purchase from appellant all the supplies which it would be necessary to furnish appellee’s tenants during the year 1912, whether this- amount was much or little, but the allegations of the complaint show it to be an exact amount and the books of account which would have been kept would have shown the various articles bought, upon which, by calculation, the profits could have been ascertained. While these calculations might have proven intricate, that fact would not have prevented a recovery, if the proof of them was sufficient for such calculations to be made, and the allega tions of the complaint are that such was the case with reference to this transaction.
It is said that this contract is void for want of mutuality; but we do not think so. Appellee paid a fixed sum of money and agreed to give appellant employment for a definite time and to allow him a certain per cent of the profits. In consideration for this appellee agreed to purchase from appellant the supplies, which he would require for his tenants, and, whether that amount was much or little, it included all the supplies so to be purchased. This agreement necessarily implied that the goods should be sold at the usual and customary prices; just as such an agreement is implied in any case where goods are purchased without any definite understanding as to price.
The question of mutuality of contract was considered in the case of Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9, the syllabus in which case reads as follows: “A contract whereby defendant at a price fixed undertook-to buy the output of a sawmill is not lacking in mutuality as not binding the plaintiffs to sell, since the contract implies a corresponding obligation on the part of the plaintiffs to sell at the stipulated price.” And the same case quoted with -approval from Lewis v. Atlas Mut. Life Ins. Co., 61 Mo. 534, the following language: “It very frequently happens that contracts on their face, and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding' and correlative obligation will be implied. As, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or things necessary for the completion of the contract will necessarily be implied.” See also El Dorado Ice Co. v. Kinard, 96 Ark. 184.
The judgment of the court below will therefore be reversed and the cause remanded, with directions to overrule the demurrer. | [
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Wood, J.,
(after stating the facts). The appellant contends that the uncontroverted evidence showed that there was an extraordinary demand for stock cars, which prevented, the appellant from being able to supply the stock cars more promptly, and that appellant had an ample equipment of stock cars for use under ordinary conditions and to supply all reasonable demands, and that therefore a verdict should have been directed in its favor.
The testimony of appellant’s chief dispatcher, having supervision of the furnishing of oars on the division from which the shipment in controversy was made, was iiot sufficient to exempt appellant from liability for a failure to furnish the appellees cars for the shipment of their cattle. This testimony, in a general way, shows that appellant was short of cars on this division when demand whs made upon it by the appellees at the particular time when appellees desired to make the shipment of their cattle. That this shortage was because of the increased orders for stock cars, and not having cars to fill them; that the demand was great and unusual on this division. But this testimony does not show, or even tend to show, that the appellant did not have a sufficient number of cars on other divisions which it could have used for the purpose of meeting the increased demand on the division on which Pyatt is situated. Por aught the evidence shows to the contrary, the appellant, by the use of ordinary care, could have sent in cars from other division points, without discommoding shippers at those points, in order to supply the temporary needs of shippers at the station of Pyatt.
Although the demand for stock cars was great and unusual on the division on which Pyatt is situated during the time appellees were seeking to ship their cattle, it was the duty of the appellant to endeavor to meet this unusual demand, and to satisfy the requirements of shippers from that station by exercising ordinary care to have the need supplied.
The testimony upon which appellant grounds its defense against this alleged charge of negligence is not sufficient in law to constitute a defense. .
There was no testimony, by those having in charge the equipment of appellant’s system'with necessary stock cars,' tending to prove that appellant as a system did not have, or by the exercise of ordinary care, could not have had, abundant facilities to meet the requirements of the shippers at all ’Stations on its entire system. The testimony falls short of proving, or” even tending to prove, that appellant could not have furnished stock cars to meet the requirements of shippers at this particular time by the exercise of ordinary care. While it was the duty of appellant’s chief dispatcher at Cotter to supply the demands of shippers for stock cars at the station of Pyatt, yet there is nothing to show that he- exercised or dinary care to have the cars brought in from other points on the system to meet the unusual demands that were made upon him by the shippers at Pyatt. His .testimony only shows that there was a great and unusual demand, and that there was a shortage of cars on his division, but it falls far short of showing any reason for this shortage, and does not show that the shortage might not have been obviated by the exercise of ordinary care upon the part of those whose duty it was to furnish the necessary shipping facilities to meet the demands of all shippers.
There was no testimony, therefore, to warrant the court in submitting to the jury the question as to whether the shortage of stock cars at Pyatt was caused by an unprecedented and extraordinary demand which could not be anticipated by the appellant. The instructions submitting this issue were more favorable to appellant than it was entitled to, and it has no ground for complaint' on account of the instructions of the court or the verdict of the jury on this issue.
The appellant contends that the court erred in permitting testimony tending to prove that others at Pyatt ordered cars after the appellees, and that these shippers received cars for the shipment of their cattle before appellees’ demand was supplied. There was mo error in permitting the testimony tending to prove that other shippers who had cattle for shipment at Pyatt demanded cars after the demand of appellees had been.made upon appellant, and that these shippers were supplied before appellees were furnished with cars. This testimony tfended to prove that appellant had oars to meet the demands of its .shippers, and tended to prove that the failure on the part of appellant to comply with the demand of appellees was not on account of the dearth of cars to meet the requirements of shippers at Pyatt.
There was no error in permitting one of the appellees to testify that the stock depreciated in weight to the extent of fifty pounds per head during the time that the shipment was delayed by reason of the alleged failure of appellant to furnish cars. The witness by whom this testimony was adduced had bought the cattle and had continuously observed them from tbe time be acquired them until they were sold in Kansas City. He was' an experienced stock man, and from bis observation, could testify as a fact as to tbe depreciation of tbe stock in weight. His testimony giving bis estimate of tbe amount of sucli depreciation was competent and proper for tbe jury to consider in determining tbe amount of appellees’ damage by reason of tbe loss in weight of tbe cattle while their shipment was delayed.
Tbe testimony was ample to sustain tbe amount of tbe verdict. Tbe judgment is correct, and it is affirmed. | [
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McCulloch, C. J.
On or about the 1st day of November, 1910, the plaintiff was working for defendant railway company as a section hand in this State, and became sick, his ailment being diagnosed by a local physician as a case of pneumonia. At the close of the day’s work, when he found that he was sick, plaintiff called upon his immediate superior, the section foreman, for a pass over the company’s line to Little Eock, and for a permit to enter the .hospital. The section foreman promised to comply with his request, but neither the pass nor the permit came until after a delay of about ten days, and in the meantime plaintiff remained at his home at Sulphur Eock, Independence County, Arkansas, and was so sick that he was compelled to have a physician to visit him twice a day. When the pass was delivered to him, he came to Little Eock to the hospital, and he alleges that he was not given proper treatment, and that after a stay at the hospital for about ten days, he was compelled to return to his home, where he languished on the sickbed for a considerable length of time, and that his health was seriously impaired by the failure to get proper treatment while at the hospital.
Plaintiff instituted this action against the defendant to recover damages, alleging that the defendant contracted to furnish him hospital accommodations and medical attention, medicine, etc., and that on account of its failure to do so, he suffered injuries, for which he seeks damages for the various items of alleged injury, aggregating the total sum of $8,431.81.
On the trial of the case, plaintiff was awarded damages in the sum of $750 by the verdict of the jury, and subsequently a remittitur was entered down to $450, and the defendant, after its motion for a new trial was overruled, appealed to this court.
The undisputed evidence shows that defendant company “assumed gratuitously to collect and preserve such funds and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain or hope of it therefrom,” and under those circumstances we held that the company “can only be considered a trustee for the proper administration and expenditure of such fund, and should be held only to ordinary care in the selection of competent and skillful physicians and surgeons to administer relief and provide attention to sick and injured employees. ’ ’ Arkansas Mid. Rd. Co. v. Pearson, 98 Ark. 399, 106 Ark. 442.
There is nothing in the evidence to show that the company undertook to do anything more than to “'collect and preserve such funds and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain,” and the court erred in submitting to the jury the question of a contract on the part of the company to furnish physicians and hospital facilities.
The plaintiff relied upon the book of rules and regulations with respect to the hospital department, which was introduced in evidence, and particularly that part of rule 1, which reads as follows:
“All the officers and employees of the Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company, and all employees of such other corporations operated and connected therewith, resident within the jurisdiction of the hospital staff and who are assessed in accordance with the rules, are entitled to the benefits provided by the Missouri Pacific-Iron Mountain Hospital Department under the regulations and restrictions herein prescribed.”
This is merely one of the rules of the hospital department, and does not amount to a contract on the part of the railway company to furnish those facilities.
The railway company was, therefore, not responsible for the refusal or failure of those in charge of the hospital to give plaintiff proper service.
It is not contended that there was any negligence on the part of the defendant in its selection of physicians and others in charge of the hospital.
The evidence does show, however, that defendant company undertook to provide its employees, when injured or afflicted, with free transportation to the hospital, and also to furnish an order or permit which would admit such ill or injured employee to the hospital. This being so, any violation of its obligation in that respect would render it liable for any damages which ensued. The evidence in the case tends to establish the fact that plaintiff called for a pass and a permit, but there was a negligent delay of about ten days in furnishing the same to him. In the meantime, he was compelled to call in a local physician, who treated him and charged him $2 a visit for fourteen visits, making a total bill of $28. The evidence also shows that he was compelled to spend $5 for medicine. This expense of medical attention and obtaining medicine would have been avoided if there had been no delay in procuring the pass and permit. The evidence, therefore, putting it in its light most favorable to plaintiff’s cause of action, establishes damages which he is entitled to recover in the sum of $33, and no more, for the delay in furnishing him transportation -and an order or permit authorizing him, as an employee, to enter the hospital. The judgment of the circuit court will, therefore, be reversed and judgment will be entered here for plaintiff for damages in that sum. | [
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Kirby, J.,
(after stating the facts). Can appellee, a citizen and resident of this State, subject to the payment of his debt, by garnishment, the money due appellants, residents of the State of Oklahoma, from an insurance company, which also does business in this State, for a loss under a fire insurance policy issued in that State upon their homestead and household effects, all of which were exempt from seizure and sale for the payment of the debt in that State, where the judgment upon which this suit is brought was obtained?
This proceeding was instituted by a citizen and resident of this State to collect a debt due it from a resident of the State of Oklahoma, and the garnishment was served upon a corporation doing business in this State, and, if it be conceded that the debt due from the garnishee to appellants was exempt from seizure and garnishment in the State of Oklahoma, it in no wise affects the creditor’s right to subject the garnished debt to the payment of his judgment here.
The garnishee became indebted to the insured under a policy of insurance upon a loss, for the payment of the amount due thereunder, and could have been sued by the insured, its creditors, in the courts of this State ■where it also does business, and it is liable to process of garnishment here, notwithstanding the debt was contracted in another State, for, as was stated in Stone v. Drake, 79 Ark. 386, quoting from Kansas City, P. & G. Ry v. Parker, 69 Ark. 401, ‘ ‘ The situs of a debt, for purposes of garnishment, is not only at the domicile of the debtor, but in any State in which the garnishee may be found, provided the law of that State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the State.” See also Chicago, R. I. & P. Ry. Co. v. Sturm, 174 U. S. 710; Harris v. Balk, 198 U. S. 215; L. & N. Ry. Co. v. Deer, 200 U. S. 176; Bristol v. Brent, 110 Pac. 356; Missouri, K. & T. Ry. v. Swartz, 115'S. W. 275.
Exemption laws are not a part of the contract and pertain to the remedy, and the law of the forum relative thereto governs. Stone v. Drake, supra; 18 Cyc. 1376. Only residents of the State of Arkansas are entitled to claim the benefit of our exemption laws. Art. 9, § § 1, 2, 6, 10, Constitution of 1874; § § 3882, 3903-3905, Kirby’s Digest. The appellants are not residents of the State of Arkansas, but of the State of Oklahoma, and can not claim the benefit of our laws, being nonresidents, nor can they avail here of the exemption laws of Oklahoma, which have no extra-territorial effect. Nor do we agree with appellants’ contention that this proceeding is such an attempt to evade the exemption laws of the debtor’s domicile as will be relieved against. It is only when a creditor attempts to evade the exemption laws of his own State by resort to attachment proceedings in the court of another State against the property of a debtor who is a resident of the State of the creditor’s domicile that-he will be enjoined by the courts of the latter State from prosecuting his suit in the foreign jurisdiction. Griffith v. Langsdale, 53 Ark. 73; Cole. v. Cunningham, 133 U. S. 107; Greer v. Cook, 88 Ark. 95.
If appellee was a resident of the State of Oklahoma and had resorted to the courts of this State to collect his claim in evasion of the laws of his own and his debtor’s residence, our court would not lend its aid; but this proceeding is by a resident of this State in the courts •thereof, to collect a claim against a nonresident debtor by garnishment, subjecting to its payment money due to such nonresident in the hands of the garnishee within this jurisdiction; and can not be said to be an attempt to evade the exemption laws of another State since a citizen of every State has a right to proceed under the forms of law of his own State in the collection of his claims under the method provided by the laws thereof.
The court properly sustained the demurrer to the answer, and the judgment is affirmed. | [
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Wood, J.
We are asked by this appeal to determine whether a widow is entitled to a child’s part in the estate of her deceased husband, under sec. 2599, Mansf. Dig., which is as follows : “The widow of any deceased person, who shall file in the office of the clerk of the ■court of probate, or with the probate court of the proper county, a relinquishment of her right of dower in and out of the estate of her deceased husband, shall be entitled to receive of the estate of which her said husband ■died seized and possessed, whether real, personal or mixed, a portion or share thereof, absolutely in her own right, equal to that of a child, which shall be set aside and delivered to her as now provided by law for dower.” This act was approved November 29, 1862. The concluding sentence of sec. 7 of the schedule to the constitution of 1864 is as follows : “And it is further hereby declared that all laws in force in this State on the fourth day of March, 1861, are still in force, not inconsistent with the provisions of this constitution, and which have not expired by limitation therein contained.”
This court, at its'December term, 1866, in an opinion by Chief Justice Walker, passing upon this clause, said : “It was evidently the intention of the convention to declare the laws of the State which were in force on the fourth of March, 1861, a code of laws to be in force in the State, to the exclusion of all other laws, which laws so in force on the fourth of March, 1861, were to take effect and be in force from and after the adoption of the constitution of January, 1864, which was adopted by the people of the State to whom it was submitted for ratification and approval on the 16th day of March, 1864; from which time all other laws were, by necessary implication, repealed.” Ex parte Osborn, 24 Ark. 479.
When the convention of 1864 is considered in the light of the times which brought it into existence, the purposes for which it assembled, and when the constitution itself is looked to, especially with reference to the language used in the preamble, as well as the schedule, the conclusion is irresistible that the convention intended to put in force a code of laws to the exclusion of all others, as decided in Ex parte Osborn. The reasoning of the learned judge who delivered the opinion is sound, his utterances are clear and forceful, and we certainly could not hope to strengthen the opinion by going over the same g'round. This decision has never been overruled, nor its authority in the least impaired, by any announcement of this court in a subsequent case.
In Berry v. Bellows, 30 Ark. 198, and Bragg v. Tuffts, 49 Ark. 561, which counsel say conflict “in spirit,” the questions were not analogous. In the former, the court, through Judge English, was simply declaring the effect of the clause in the constitution of 1868, and a similar one in the preamble to the constitution of 1864, which declared the convention of March 4th, 1861, and “all the action of the State of Arkansas under the authority of said convention, of its ordinances, or its constitution, whether legislative, executive, judicial or military, null, and void.” In this decision the court re-affirmed the doctrine' announced in Hawkins v. Filkins, 24 Ark. 286, and overruled all cases-in conflict with it, but Ex parte Osborn was not mentioned. Hawkins v. Filkins decides that the convention of 1864 had no power to declare void ab initio all the acts-of the convention of 1861, and all the acts of the State government thereunder which were not in aid of the Rebellion, and in no manner contravening the authority of the general government. Ex parte Osborn was delivered at the same term of the court, at a later day, and in this case Judge Walker says : “There is nothing in the case of Hawkins v. Filkins which in any manner conflicts with the conclusions at which we have arrived.” The court, through Judge English, in Berry v. Fellows was discussing the power of the convention to declare void all laws of the Confederate government from the beginning, which is altogether a different thing from the power of a convention to declare in force a code of laws, prospective in their operation.
In Bragg v. Tuffts, which counsel rely upon as overruling Ex parte Osborn, Judge Smith uses this langmage: “Now a convention called, for instance, to frame a new constitution has no inherent right to legislate about matters of detail. All of the powers that it possesses are such as have been delegated to it either by express grant or necessary implication. The passage of an ordinance, then, to raise revenue was an assumption of powers by the convention that was never ratified by the people of the State. For it is a noteworthy fact that the convention of 1861 never submitted any of its work to the test of a popular vote.” The act of the legislature of Jan. 15, 1861, called into being the convention of 1861, to “take into consideration the condition of political affairs, and determine what course the State of Arkansas shall take in the present political crisis.” That convention was undertaking, by an ordinance outside the constitution, “to provide revenue for the State of Arkansas,” to pass a war measure. This was the question Judge Smith was discussing; but had he been considering a clause in the schedule of a constitution not in violation of the constitution of the United States, declared by a convention which had assembled to frame a new constitution and set up a new government in harmony with the general government, and which had been ratified by the people, we apprehend no such language as quoted above would ever have been used by him. It may be conceded that the only proper province of a convention, when it undertakes to frame a constitution, is* to confine its work to enactments of a fundamental character, and that it transcends the correct functions of constitutional conventions when it goes into the details of legislation. But we are discussing a question of power, not of propriety. When the people themselves, or their representatives, have assembled in convention to frame a constitution and ■ set up a new government, and have declared what shall constitute the body of their organic law, where is the limitation to their power? Under our theory of government, the people are sovereign, and it rests with them at least to say, by ratification or rejection, whether they approve or disapprove. And the constitution of the United States must preserve for the States their republican form of government, so that the constitution of a State must not conflict with any of the provisions of the Federal constitution. These are the only two sources of limitation of which we have any knowledge. When the people have adopted for themselves such a constitution, “when the sovereign body has clearly moved, and that movement gives evidence of irresistible force and continuance, the various systems of officials constituting the existing government must heed and bow to it, or go down before it.” Jameson on Const. Con. 541. Courts must obey, not abrogate, constitutional provisions. It would be a dangerous doctrine to announce that the courts could annul and set aside such provisions of the organic law as trenched, by reason of detail, upon the sphere more properly occupied by the legislature. Mr. Jameson says: “Doubtless, a constitution, stuffed with legislative details, may acquire legitimacy by its being ratified by the people; for, where a constitution contains a positive provision, the courts can not ignore it, or annul it; but the impropriety of such legislation would not thereby be disproved or lessened.” Jameson on Con. Conv. 430. And Judge Cooley says: “How far the constitution of a State shall descend into the particulars of government is a question of policy addressed to the convention which forms it.” Cooley’s Const. Dim. p. 46.
But even if the decision in Ex parte Osborn was erroneous, we should feel constrained to uphold it. This court, by an undeviating line of decisions, has recognized its binding authority ever since its rendition, and it would be nothing less than calamitous to repudiate it now. Property rights have grown up under it, and to overrule it might throw the law into a state of inextricable confusion. Its overthrow would bring upon the statute books all the laws of the Confederate legislature which have not been displaced by subsequent legislation. One, to which our attention has been called in another case, might do incalculable mischief in unsettling titles. It is this :
“An act to regulate proceedings under chapter 170 of the Digest. ‘ ‘ Section 1. Be it enacted by the General Assembly of the State of Arkansas, that decrees of confirmation rendered after the passage of this act, under the provisions of chapter 170 of the Digest, shall be void as against the owner or owners of the land to which the title is confirmed, at the time the same was sold, and all persons claiming title thereto under him, her or them, unless such parties are made defendants to the petition for confirmation by name ; and if residents of the county, actually served with notice, or if non-residents, notified as provided by sec. 2 of said chapter. Sec. 2. Be it further enacted. That this act be in force from its passage.” “Approved November 29th, 1862.”
Chapter 170 of Gould’s Digest, to which this act refers, corresponds to chapter twenty-three of Mansf. Dig., p. 265. Sec. 577 of Mansf. Dig., which the above law, if in force, would repeal as to the notice required in confirmation proceedings, provides: “The purchasers ****** may, at any time after the expiration of the time allowed for such redemption, publish six weeks in succession, in some newspaper in this State, a notice calling on all persons who can set up any right to the lands so purchased in consequence of any informality * * * to show cause,” etc.
This is the law under which notice has been given in cónfirmation proceedings, and under which the courts have acquired jurisdiction in such cases. If the law ■of 1862 has been in force since its passage, the courts have been proceeding for over thirty years without jurisdiction in confirmation cases. Several involving the question have found their way to this court. Buckingham v. Hallett, 24 Ark. 519; Worthen v. Ratcliffe, 42 Ark. 330; McCarter v. Neil, 50 Ark. 188; Boehm v. Botsford, 52 Ark. 400; Caldwell v. Martin, 55 Ark. 470. In the last case it is said: “The statute that authorizes the proceeding to confirm tax titles was a part of the Revised Statutes, and has for more than half a century, in much the same form, comprised a part of the statute law of the State.” Doubtless, many causes in which this statute has been invoked and applied in their adjudication have never been appealed to this court.
The consequences of overruling Ex parte Osborn might be far-reaching, and this consideration alone would move us to apply the doctrine of “stare decisis,” even if the cause was wrong in principle. ' It is unfortunate, and to be regretted, that any widow should have proceeded, under sec. 2599, Mans. Dig., to ask for a child’s part in the estate of her deceased husband, and to be deplored that the lower courts have in some instances treated it as the law. Just to what extent it has been followed, and what rights have grown up under it, it is impossible to say. But this court could not afford to overturn its own decisions, and unsettle the law which has been so long a rule of property, out of sympathy even for those whose dower rights are highly favored. The distinguished digester calls attention in the foot note to the fact that the statutes of 1862 were never published. This, when taken in connection with what he said in the preface to his Digest, may be considered as suggesting a doubt in his mind as to the validity of the statute. Perhaps this was sufficient to put many upon inquiry, and it is therefore probable that it has not been generally followed. As to whether or not it shall' be re-enacted, and have place among our statute laws, is addressed to the discretion of the legislature. If, in their wisdom, they see proper to enact such a law, they may greatly improve many of its features, rendering its enforcement more easy and available.
The other questions raised pass out with the determination of this. The judgment is reversed, and cause remanded for proceedings not inconsistent .with this •opinion. | [
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Bunn, C. J.
(after stating the facts.) In Brothers v. Mundell, 60 Tex. 240, to which we have been referred by appellant’s counsel, the Supreme Court of Texas, in construing the statute of that State noted in the statement of this case, providing for the registration of chattel mortgages, held that such a mortgage, filed for record and recorded, furnishes no notice to third parties, since the statute requires the instrument in such a case to be filed, abstracted in the appropriate book, and kept on file for the inspection of all concerned. Such is the settled law of that State, and, besides being conclusive on or as being the construction put upon one of its statutes by its highest court of judicature, it is the only construction of which the statute admits, if we are permitted to say as much.
Upon the application of this law to the facts of this case, namely, that the deed of trust of appellees, by mistake of the clerk and recorder, was not properly filed and abstracted until after appellant’s bill of sale was delivered and recorded, and appellant had taken possession of the propertj’ involved, he bases one of his contentions, that is to say, that his purchase is superior to the mortgage of appellees. We do not think this contention can be sustained, for several reasons, among which are the following: It is quite generally settled that where no duty with reference to the act of the reg istration is imposed by law upon the holder of a mortgage except to deliver the same to the proper officer for that purpose, no default of the registering officer is to be made to inure to the detriment of the beneficiary in the mortgage. Throckmorton v. Price, 28 Tex. 605; Wade on Notice, sections 152-162, and authorities cited ; Case v. Hargadine, 43 Ark. 144; Weise v. Barker, 2 Pac. Rep. 919; Mims v. Mims, 35 Ala. 23; Merrick v. Wallace, 16 Ill. 486. In this case, no duty in this respect was imposed by law upon Byrne. No fault is attributed to him, and he delivered the instrument to the proper officer in due time to precede the purchase of Ohio, and the mistake was solely that of the recorder in not inspecting the instrument and from its character •determining the place and manner of its registration, as the law directs.
Again, the bill of sale of appellant contains a recital to the effect that the sale to him and his purchase from Zucchini, Byrne’s mortgagor, were made subject to the mortgage to Byrne. This kind of notice is now generally held to be constructive notice, such as devolves upon the holder of the instrument containing it the duty of following up the information thus furnished by proper inquiry, as in other cases where the duty of inquiry is imposed. Gaines v. Summers, 50 Ark. 322, and authorities cited ; Wade on Notice, sections 307-309, and authorities cited. Frye v. Partridge, 82 Ill. 267; Corbitt v. Clenny, 52 Ala. 480; Peto v. Hammond, 30 Beav. 495.
Not only do the authorities make such to be constructive notice, but there is another reason why appellant in this case must be held bound by the recital in his bill of sale. That recital is a condition upon which the sale was made to him. That appellant should accept the muniment of his title with that condition was a part of the consideration accruing to Zucchini, his vendor. Appellant accepted the property on that condition. He ought not to hold on to the fruits of his purchase and yet be unwilling to observe its conditions. He should abandon his purchase in toto, or stand by all its terms. The plea that, the mortgage of Byrne being invalid, Ghio was not bound to observe the recital of its existence in his bill of sale is not well founded, for the reason that a failure to register at all does not render a mortgage invalid. The act of registration is for the benefit of persons in the situation of appellant, in this : that it furnishes them notice of the existence of prior inconsistent claims to their own. In this case, had there been no registration, and nothing in lieu thereof, still the appellant was affected with notice otherwise of this mortgage, and that is all the benefit that registration could have afforded him.
There is still another reason why this contention of appellant cannot be sustained. It is this : In our argument heretofore we have given the appellant the benefit of the rule which governs in this State, that is to say, that the registration of a mortgage is the only notice by which persons other than parties to the mortgage can be affected ; that third parties are not bound by actual notice of the existence of an unrecorded mortgage ; for such is the rule here. Main v. Alexander, 9 Ark. 112; Jacoway v. Gault, 20 Ark. 190; Hannah v. Carrington, 18 Ark. 105; and- the later decisions of this court on the subject. The rule grows out of the peculiar language of our statute giving effect to the registration of mortgages and similar instruments, which, taken from Mansfield’s Digest, is as follows, to-wit: “ Sec. 4743. Bvery mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage.” The preceding section provides that all mortgages shall be proved or acknowledged in the same manner as deeds are proved or acknowledged, and, when so proved or acknowledged, shall be recorded, if for lands, in the county where they are situated, and, if for personal property, in the county where the mortgagor resides. It is evident, that one dealing with property, under this peculiar statute, cannot be affected by actual notice, simply because constructive notice of record is made the only notice effectual in such cases. Now our statute giving effect to the registration of deeds and other absolute conveyances, digested in Mansfield’s Digest as section 671, as affects the argument, is almost in the language of the section of the Texas statute, to which we have referred in our statement of the case, which gives effect to the registration of chattel mortgages such as that we have under consideration. The construction given to this, our statute, is that constructive notice of registration is not the only notice by which a purchaser may be affected ; for, if he have actual notice of the existence of an unrecorded deed, he is bound by it. Byers v. Engles, 16 Ark. 543; Sisk v. Almon, 34 Ark. 391.
The Texas statute on the subject does not, in our opinion, confine the holder of a chattel mortgage to the benefits of , the notice of registration; but, as against a subsequent purchaser with actual notice, the mortgagee may claim the benefit of this notice. This being true, and appellant having actual notice of the mortgage by the very terms of his bill of sale, there does not appear to be any -very great utility in this discussion of the effect of the registration laws of Texas as applied to this case. Sparks v. Pace, 60 Tex. 298; Brothers v. Mundell, 60 Tex. 240.
Another contention of appellant is this: The mortgage of Bvrne conveys to him certain articles of merchandise, such as are kept for daily sale, and the stipu latiou is that Zucchini, the mortgagor, as Byrne’s agent, was to continue to sell these goods, turning in the proceeds daily to Byrne, and the same were to be credited on the mortgage debt. The 17th section of the general assignment act of that State, (which section the Supreme Court of Texas holds as applicable to mortgages as well as assignments) makes invalid a mortgage of merchantable goods, daily exposed to sale in parcels in the regular course of business, and contemplating a continuance of possession and control of the business by the owner ; and declares such to be fraudulent and void. This statute has received a construction from the Supreme Court of Texas, about the real meaning of which there may be room for controversy. In other words, to some it appears clear that the making of the mortgagor the agent of the mortgagee in such cases, to carry on the business in his name and for the benefit of the mortgage debt, renders the transaction fraudulent and void. To others, however, no such meaning is to be attributed to these decisions. Happily, we are not driven in this case to the necessity of entering into an inquiry so unsatisfactory, if not unseemly, in its nature.
The mortgaged goods consisted of two classes, one consisting of articles for daily usé in that line of business, and the other consisting of furniture and other furnishings of the house not intended for sale in the usual course of business. Whatever may be the settled construction of the section of the Texas statute under consideration, it can only affect the mortgage as to the first class of goods according to our law. Lund v. Fletcher, 39 Ark. 325. Thus, eliminating from the controversy this particular subject of controversy, as did the court below, the only thing remaining to be done by the court below was to determine the value of the property not affected by this legal question, and therefore, upon the basis of $5000 being the then present value of all the property, as agreed upon, the court finding from the testimony that, about two years previously thereto, all the property was valued at $15,000, of which the furniture constituted one-half in value, or was worth $7500, and reasoning that naturally the salable goods would be more apt to undergo change in quantity, and therefore in value, than those not intended for sale, and there being no suggestion that there had been any special loss, addition or changes in value since that time, concluded that the furniture had at least retained its relative proportion of the whole value, and upon that theory found the value thereof to be at least $2500, thus, for all that appears, giving every advantage of doubt to the appellant. The court would have had a right to withhold its judgment, and have present and definite proof taken of the wines, whisky, etc. on hand, but it would doubtless have been a delay for nothing. We see no real objection to the process by which the court ascertained the value of the property, and, as none is suggested, we will not disturb the finding.
Finally, the appellant contends that, under the peculiar laws of Texas, appellees have no right of action in this kind of procedure, and several decisions of the Supreme Court are cited in support of this view. Wright v. Henderson, 12 Tex. 43; Gillian v. Henderson, 12 Tex. 47; Wootton v. Wheeler, 22 Tex. 338; Belt v. Raguet, 27 Tex. 471; Osborn v. Koenigheim, 57 Tex. 91; and Sparks v. Pace, 60 Tex. 298. There is no proof of the existence of a statute on the subject, but we will treat the law as enunciated in the decisions referred to. From them we gather the law of that State to be that a mortgage is a mere security; that the interest of a mort gagor in a chattel mortgage is the subject of the levy of an execution and sale to satisfy the judgment of his creditor, but that such sale is made subject to the mortgagee’s rights ; and, finally, that a mortgagee out of possession, and one not entitled to possession, cannot protect his rights by a resort to the special statutory proceeding in vogue in that State to try the rights of property. We do not find, however, that these decisions sustain the broad proposition of appellant that “in Texas a simple mortgagee, as such, has no right of possession, and can not maintain trespass, trover or conversion, nor the statutory remedy of trial of the right of property, which is substantially the same remedy.” On the contrary, we find in Focke v. Blum, 82 Tex. 436, that “a mortgagee or lien holder may sue for the conversion of the mortgaged property or for a trespass upon it.” It would be strange if there were not such a remedy for the mortgagee.
We deem it unnecessary to prolong this discussion by a more extended notice of possession of Byrne, for much of the difficulty connected therewith seems to have been occasioned by the immediate interference of appellant. Nor do we deem it necessary to inquire further into the attitude of appellant in this transaction. Suffice it to say that he does not seem to be a “creditor,” in the meaning of the particular statute to which he appeals ; nor does he seem to be a bona fide purchaser (an innocent purchaser) for value, since the consideration he paid consisted largely of the satisfaction of a pre-existing debt owing to him by Zucchini, and probably the assumption of other debts of Zucchini., of the actual payment of which, before he had knowledge of appellee’s mortgage, we have no evidence.
The judgment of the Miller circuit court is affirmed.
As to the effect upon the validity of a mortgage of merchandise of a provision giving the mortgagor possession with power of sale, see Ephraim v. Kelleher, 18 L. R. A. 604. (Rep.), | [
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McCulloch, C. J.
Appellant, W. J. Pinson, instituted this action in the circuit court of Pulaski County against appellees, J. D. Cobb, Ben Cox, W. N. Morris and Gr. W. Fair, to recover the amount of a promissory note in the sum of $5,000 executed by appellees to one S. R. Morgan and assigned to appellant by Morgan for a valuable consideration.
Appellees answered, admitted that they executed the note in suit, but alleged that Morgan obtained it from them by fraud and coercion, and that appellant was not an innocent purchaser without notice of the facts upon which the defense against payment is based. It is alleged in the answer that appellees and Morgan were stockholders in the People’s Life Insurance Company of Little Bock, Morgan having subscribed for a certain amount of stock, and paid for the same in part by deliv ering eleven first mortgage bonds of tbe El Dorado Light & Power Company, of the par value of $1,000 each; that subsequently, Morgan conspired with one Craig, who was secretary of the company, and procured the redelivery to himself of said bonds; that the possession of said bonds in the hands of the officers of the company was necessary in order to make a proper showing to the Insurance Commissioner to obtain his certificate and, in order to secure from Morgan the return of said bonds to the proper officers of the insurance company, they (appellees) were compelled by Morgan to execute two notes, the one in suit for $5,000, and the other for $5,540, and that there was no valid consideration for the execution of the notes.
Appellees moved to transfer the cause to the chancery court, and the cause was transferred by consent of all parties.
We will not enter into a discussion of the question whether the allegations of the answer and the proof adduced in support thereof constituted a defense to the note while the same remained in the hands of the original holder, for we are of the opinion that the evidence establishes the fact that appellant Pinson was a bona fide holder for value without notice of any infirmity, and the defense can not be sustained as against his right to recover. Pinson and Morgan both resided in El Dorado, Arkansas, and appellees resided in and about Little Rock. Pinson and Morgan both testified that before the maturity of the note Morgan sold it to Pinson and received, in consideration of the sale, shares of stock in the American Bank & Trust Company of El Dorado, of the par value of $1,000, and stock in the El Dorado Light & Water Company, of the par value of $1,000, and the surrender of Morgan’s note for $2,000 held by Pinson, leaving a balance of $1,000, which Pinson held as a credit in favor of Morgan and subsequently paid it down to a balance of $450 due at the time of the trial of this case. Pinson also testified that he had no notice of any defense to the note or any circumstances sufficient to put him upon inquiry. In other words, he testified that he purchased the note in good faith and paid for it as above stated, and had no knowledge or intimation that the validity of the note would be contested. He stated that he was not acquainted with any of the makers of the note except Mr. Cox; but from what he had heard of Cox and from the statements of Morgan, he1 became satisfied that the note was good, and he purchased it.
There is no testimony whatever tending to show that Pinson’s statements as to Ms purchase of the note -and as to the good faith of the transaction are not true.
The only thing relied on to' impeach the good faith of the transaction is that Pinson and Morgan lived in the same town, that they were distantly related by marriage, and had formerly been connected with a bank at the same time.
It is an undisputed fact in the case that Pinson paid a valuable consideration for the note, and that the consideration was substantially adequate. There is nothing whatever to dispute that fact, and it is supported by the uncontradicted testimony of Pinson and Morgan. The burden of proof was on appellant to establish that fact, but when once established the burden shifted to appellees to show that Pinson had notice of the facts wMch constituted the defense. Appellees have, as before stated, adduced no proof except a mere suspicion, from the relations between the parties, that Pinson might have known that there was something wrong with the note. The relations between Pinson and Morgan were not such as would warrant an inference of such intimacy as would throw a cloud upon transactions between them.
We need not go so far as to say that the testimony was not sufficient to have warranted a jury in,a trial at law in finding in favor of appellees on that issue, but ■tMs being a chancery case, and is heard here de novo, we are of the opinion that the chancellor’s finding is not supported by the preponderance of the testimony. The decree is therefore reversed and judgment will be entered here in appellant’s favor for the amount of the note, interest and protest fees as set forth in the complaint. | [
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Bunn, C. J.
D. L. Spurlock, Sr., father of appellee, died, leaving surviving him four children; he being seized and possessed, at the time of his death, of the lands in controversy, which he occupied as his homestead, which were subsequently sold for non-payment of taxes, and one Arthur Bunnell became the purchaser thereof, through whom appellant claims as purchaser.
The homestead rights of three of the children of Spurlock having lapsed by their arrival at their respective majorities, the appellee, while yet a minor, instituted this suit, after taking proper preliminary steps, to redeem the homestead from said forfeiture and sale, and appellant answered, denying appellee’s right, especially as to anything more than his share of the same, and claiming back taxes paid and value of improvements. There was an agreement entered into to the effect that appellant in possession might make certain improvements to be offset by rents, after the institution of the suit, to-wit: clearing and fencing land and building a cellar.
The main question was, whether or not appellee, D. B. Spurlock, Jr., minor as aforesaid, had a right to redeem the whole homestead estate, the interests of the other children having ceased as aforesaid ? The decree of the court below was to the effect that such was the minor’s right.
This court, in the case of Kessinger v. Wilson, 53 Ark. 400, which, for the purpose of the argument, was a case like the one at bar, said: ‘‘ Until the younger reached his majority, it (the homestead) remained set apart as ‘a place, a sanctuary, to which he or she might return to find the shelter, comfort and security of a home ’ during his or her minority. As an entire homestead, it remained the home of both. Although the land constituting it descended to them subject to be sold to pay the debts of their father’s estate, it could not have been lawfully severed or diverted from the full occupancy and enjoyment by both of them as a home during the minority of either of them. Their homestead right was like a joint tenancy with right of survivorship. As each of them arrived at age, his interest in it expired. After the older reached her majority, the younger was entitled to the exclusive use and enjoyment of the land as a home until he become twenty-one years old.”
It follows, then, that if entitled to redeem at all, he was entitled to redeem the entire homestead, for he was then the surviving owner of the whole of it.
In Sanders v. Ellis, 42 Ark. 215, this court said (quoting from Woodward v. Campbell, 39 Ark. 584) : ‘‘Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or encumbrance on land, amounts to such an ownership as will entitle the party holding it to redeem.” This definition seems broad enough to cover every conceivable interest in land, whether the terms be long or short, or the estate be of greater or less value.
In so far, therefore, the decree of the court below is affirmed.
The court, through its' commissioner appointed for the purpose of stating an account between the parties— on the one hand, for rents and profits, and, on the other, for taxes paid and improvements made—found the balence in favor of appellant amounting to the sum of $227.27, and so decreed. From this part of the decree plaintiff appealed, on the ground that the item of $250 for building house and kitchen was erroneous, and should not .have been made a charge,against him.
It appears from the testimony that, at the date of the making of the tender for taxes paid, and the value of improvements made, to-wit, about the middle of September, 1890, all the lumber that was subsequently used in the construction of the house had been purchased and paid for by appellant, and was on the ground, and a man was working on the foundation. So the house was not built before the tender was made, and we have no way of ascertaining just what the value of the work done and materials placed up to that time. In Bender v. Bean, 52 Ark. 132, all that the purchaser at tax-sale for taxes paid and improvements made, and all that the redeeming owner, for rents and so forth, is entitled to is fully set forth. The making of the tender to the purchaser is the point at which title changes, and conditions are reversed. Up to that time no rents are due from the purchaser, while all monies paid out for taxes and the value of all improvements he has made, are due to him. Improvements made afterwards, and taxes paid after-wards, except by contract, areno charges,against the owner, or on the land, and the purchaser in possession is bound for rents accruing after that date. This principle of the law sustains the appellee’s contention as to the $250, and the same, from all that appears, should not have been made a charge against him; and, this item being eliminated from the account, the balance would be the sum of $22.73, and in favor of the appellee. This balance may or may not disappear when it is ascertained how much of the work was done on the house, and how much of the material was actually fixed in the building before the tender was made. For the error referred to, the decree is reversed, and the cause re manded to correct the account, if not already correct, under the rule stated; and appellant will pay the costs of this appeal.
Riddick, J., was disqualified. | [
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Battle, J.
Was the mortgage by Henry M. Ward to W. A. Hanegan, under the name of Henry N. Ward, after it was acknowledged and filed for record, notice of its existence and contents to W. T. Fincher, the second mortgagee? As between Hanegan and Ward, the mortgage was undoubtedly valid, for the reason that Ward was estopped from saying that Henry N. Ward was not his true name. But it could, under no circumstances, be valid against third persons who acquired liens on, or purchased, the property thereby mortgaged, until it was filed for record. Mansfield’s Digest, sec. 4743. If it had been executed and properly acknowledged by the mortgagor, under his true name, and filed for record, it would have been valid against all liens subsequently acquired by third persons from the mortgagor, and against all subsequent purchasers from Ward of the mortgaged property. Did the insertion in his name of the letter Winstead of M, the correct initial of his middle name, render it invalid as to subsequent lienors and purchasers ? Upon similar questions there is a contrariety of opinion.
In Gillespie v. Rogers, 146 Mass. 612, it is said: “Where deeds or other instruments requiring to be recorded are given or received by persons or corporations known by different names, the records may fail to furnish exact and literal information; and yet, when the instrument itself is a genuine one, and has been executed in good faith, the record has been held sufficient to furnish constructive notice of the real transaction. A striking illustration of this is found in a former decision of this court. The St. of 1865, c. 43, sec. 2, provided that no assignment of future earnings should be valid against a trustee process, unless recorded in the town or city clerk’s office before the service of process. A man by the name of Germain Sirois, who was also sometimes called John Keever, made an assignment of his future earnings under the name of Joseph Cyr, which name he signed by his mark, being unable to read or write. This was duly recorded. There was no intention of misleading- any body by the wrong name affixed to the assignment; it was a mistake, the man being an ignorant foreigner, who could not speak English. After-wards a creditor brought a trustee process. It was held that the assignriient was good as between the original parties to it, and, being recorded, was good as against attaching creditors. Ouimet v. Sirois, 124 Mass. 162; See also Gifford v. Rockett, 121 Mass. 431; O'Connor v. Cavan, 126 Mass. 117.”
In Alexander v. Graves, 25 Neb. 453, the opinion of the court is succinctly and correctly stated in the syllabus of the case as follows : “A purchased certain personal property from B on time, and, for the purpose of securing the purchase price, executed a chattel mortgage on the property purchased. The purchase was made, and the chattel mortgage was executed, under an assumed and ficticious name. The parties to the transaction being unacquainted, the vendor supposed the name given was the true name of the purchaser. The purchaser stated that his residence was in Webster county, which was correct, and the mortgage was duly filed in the proper office in that county. Subsequent to the filing of the mortgage, A sold the property to C, under his true name, after C had examined for chattel mortgages executed by A, and found none. In an action of replevin by B against C for the possession of the mortgaged property, it was held that B should recover judgment.” Thi^s decision, it seems to us, was based upon the fact that the mortgage was executed and filed before the second purchase, the court holding that the purchaser from the mortgagor had constructive notice of the existence of the prior chattel mortgage from the record.
In Johnson v. Hess, 9 Lawyers Reports Annotated, 471, (an Indiana case), it appears that a judgment was recovered against Henry William Mankedick, and was entered in the record of the court and upon the judgment docket as recovered against “ William Mankedick.” He purchased a tract of land after the rendition of the judgment, and it was conveyed to him as “H. W. Mankedick.” Thereafter, he sold and conveyed it to James G. LaForte, and described himself in the deed as “ H. W. Mankedick.” LaForte then sold and conveyed it to William Johnson. Afterwards, an action was instituted by Johnson to enjoin the sale of the land under an execution on the judgment against Mankedick. Upon this state of facts, this question arose : “Was the judgment as recorded constructive notice to Johnson of its lien? The court held that Johnson was chargeable with notice of the existence of the judgment against William Mankedick, and of the amount and terms and condition of it, but nothing more; that he was not chargeable with notice that his remote grantor, H. W. Mankedick, and William Mankedick, named in the judgment, was the same person;” that “the judgment did not disclose the fact, nor did it suggest an inquiry which ‘would have led up to’ an ascertainment of the fact; ” that “for all legal purposes, the full name of Johnson’s grantor was Henry Mankedick;” and that “the middle initial was unimportant, and suggested nothing.”
In Crouse v. Murphy, 12 Lawyers Report Annotated, 58 (a Pennsylvania case), one Daniel J. Murphy owned a lot in the city of Philadelphia. “His deed for the same was regularly recorded, as was a mortgage given by him for a part of the purchase money. He took and he incumbered the title in his proper name as Daniel J. Murphy. Roggenmoser desired to buy the lot. He found the title properly recorded, and incumbered by a mortgage. Turning from the recorder’s' office to that of the prothonotary, he caused search to be made for liens on the judgment index against Daniel J. Murphy, and found none. He then completed his purchase, settled the purchase price, and received and recorded his deed. This was in 1888. In June of that year, Murphy went to Chicago to reside. In 1889, the plaintiff, who had a judgment against Daniel Murphy, issued his writ of set. fa., and served Roggenmoser as terre-teuant.” The court said: “Was the judgment against Daniel Murphy a lien on the lot? It is admitted that Daniel Murphy and Daniel J. Murphy are the same person. It is clear, therefore, that real estate in the hands of that person would be bound. Having signed his name in the form in which it appears on the judgment index, he could not object to the enforcement of the judgment against his property. As between him and his creditor, it is a question of personal identity. But the defendant is not objecting. It is a purchaser who bought after a search of the records, and with no actual notice of the existence of this judgment, who claims protection. If he did all the law required of him, he is entitled to protection against the judgment of the plaintiff. If he did not, then he must suffer for his want of care in making the search.” And, continuing, the court said : ‘‘Murphy’s title was on record. Whoever dealt with him on the credit of his real estate was bound to know what appeared in his recorded title. It was as much the duty of one who was about to trust him with money or goods because of his ownership of land to know how and by what name he held it, as it was the duty of one about to purchase the land to make the same inquiries. If the creditor neglected his duty, he must lose in consequence. If the purchaser neglected his, he must lose. Because the creditor in this case did neglect to examine the record, he has a note signed with only a part of the maker’s name on which judgment has been entered. With no notice of the habit of his vendor to sign notes in several different ways, and with no means of notice of liens but the record, the purchaser examined, exhausted the means of knowledge within his reach, and, finding no lien against Daniel J. Murphy, or D. J. Murphy, settled with his vendor, and took his deed. If one of these parties must lose, in good conscience it should be he whose neglect to avail himself of the information which the record! could have given him made the loss by the one or the other inevitable.”
In Mackey v. Cole, 79 Wis. 426, the plaintiff claimed certain horses by virtue of a chattel mortgage given to him by one McPherson, who was the owner, but executed the mortgage on them in the name of John Doyle, who had no interest in them. The mortgage was given to secure a loan of $210, and was taken by an agent who had the money of the plaintiff to lend. When McPherson applied to him for the loan, he gave his name as John Doyle. The agent, not knowing him, made inquiries, about Doyle, but ascertained nothing. Believing McPherson to be the man he represented himself to be, he received the mortgage, filed it in the proper office, and advanced the $210 on the horses. About ten days after this, McPherson sold the horses to the defendant, who was a bona fide purchaser for value, with no notice of any lien on the property other than would be implied from the filing of the mortgage. The court held that the filing of the mortgage for record was no notice to the defendant, because it was executed under a fictitious name.
This case is unlike that of Crouse v. Murphy, supra. The title of Ward to the mortgaged property did not appear of record to Hanegan. It does not appear that Hanegan was chargeable with neglect of duty in failing to examine the record to see in what name Ward held his property. It is unlike the case of Mackey v. Cole, supra, in which the mortgagor did not execute the mortgage by his surname. In this case Ward executed the mortgage by his true Christian name and surname.
Was Fincher, the second mortgagee, chargeable with notice of Hanegan’s mortgage? It is contended that he was not, because the initial of Ward’s middle name does not appear in his signature to the Hanegan mortgage, he having executed it by the name of Henry N. Ward when his true name is Henry M. Ward. But this was immaterial, unless there were more than one person of the same name, and the middle name or the initial thereof was necessary to identify the Henry Ward wTho had executed it. “The law knows but one Christian name. The entire omission of a middle letter is not a misnomer or a variance. The middle letter is immaterial, and a wwong letter may be stricken out or disregarded.” State v. Smith, 12 Ark. 622; Keene v. Meade, 3 Pet. 1; Games v. Stiles, 14 Pet. 322. To hold, unqualifiedly, that the wrong initial of Ward’s middle name in Hanegan’s mortgage affected its validity as to third persons would be ignoring this well established rule of law. There can be no good reason for disregarding it in any case, unless it appear that there be more than one person of the name in question. There is nothing in the spirit or letter of our registration laws which can operate as a repeal of the entire rule. In registration, as in other departments of the law, the exception should prevail in cases where there are more than one person of the same name, and the middle name or initial thereof is necessary to distinguish or identify them. In this case there was no evidence to show that there was more than one Henry Ward in Nevada county, where the Hanegan mortgage was recorded. If there were, the courts cannot take judicial notice of that fact, and the burden was on the second mortgagee to show that there was. Witnesses living in Nevada county testified that they knew of only one “in the county,” and the evidence shows that he executed both mortg'ages. Under the circumstances, sufficient appears to show that Fincher was put on inquiry to ascertain whether the Henry Ward who executed the mortgage to him was not the same person who executed the Hanegan mortgage. He did not make it. The presumption is, if he had, it would have led to the ascertainment of that fact. He was, therefore, chargeable with notice of the execution of the Hanegan mortgage by Henry M. Ward and its contents.
Judgment affirmed. | [
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Jim Johnson, Associate Justice.
This case arises out of a dispute over the existence of a State Income Tax deficiency. The dispute concerns a disagreement in the interpretation of the meaning of the words “on or after the passage of this Act” as they appear in Act 147 of 1957.
The litigation began in 1961 following a notice of deficiency which appellant, Commissioner of Revenues, forwarded to appellee, Murphy Corporation, on January 18, 1961.
The notice of deficiency provided that Murphy could, within 30 days, request a hearing. Upon receipt of the notice, Murphy promptly requested a hearing. The only response the Commissioner made to such request was to reply that the matter appertaining to appellee was being placed in suspense pending the outcome of similar litigation. On February 21, 1961, Murphy made a formal request for a review of its tax return as provided in Ark. Stats., § 84-2037, and stated that a failure of the Commissioner to set a hearing would be considered a determination by appellant adverse to the claims of appellee. To this, the Commissioner made no reply. Thereafter, on March 10, 1961, appellee filed its complaint in the Union Chancery Court seeking a judicial review of the matter.
Appellant filed a motion to dismiss contending that:
“. . . defendant is domiciled in Pulaski County, Arkansas, and that the Arkansas Statutes, No. 27-603 and No. 34-201, provides that all actions brought against State Commissioners for their official actions shall be brought in the County wherein the site of government is located or the defendant resides, or in other words, Pu laski County, Arkansas. Therefore the Chancery Court of Union County, Arkansas, is without jurisdiction to hear and determine said cause.”
In answer to appellant’s Motion to Dismiss, appellee urged that:
“The Defendant moves to dismiss on the basis of Ark. Stats., Section 27-603 and Section 34-201, which are general venue statutes, last amended in 1871. Said motion should be denied for the reason that this action is brought under the provisions of Ark. Stats. Section 84-2038, enacted in 1929, which specifically provided that an action of this type may be brought in the county ‘in which the taxpayer resides or has his principal place of business.’ This statute was construed and upheld by the Supreme Court of Arkansas in Cook v. Wofford, 209 Ark. 824, wherein the jurisdiction of the Sebastian Chancery Court was upheld.”
Thereupon, appellant, at the hearing on the motion, requested permission to withdraw his motion to dismiss and to file a demurrer. The request was granted and the demurrer was filed. The trial court found that appellee’s petition stated a cause of action and overruled appellant’s demurrer in its entirety. Appellant declined to plead further and chose to stand on his demurrer. No further order or ruling was requested or issued by the court.
Prom the order overruling the demurrer, appellant attempts an appeal.
Por reversal, the following points are urged:
1. The appellee did not exhaust its administrative remedies before filing a court action.
2. The appellee is barred from filing its cause of action until it has paid or tendered the amount of assessment.
3. The allegations of appellee’s complaint were too general and insufficient to state a cause of action.
4. Sub-Item C of Item 2 of Sub-Section (1) of Section 13 of Act 147 of 1957, is irreconcilable with the grant of ‘Net Loss Operation’ deduction in the remainder of Items 1 and 2; stands last in position and should prevail.
To counter appellant’s contentions, appellee concedes that “as abstract propositions of law, appellant’s contentions are not without merit.” However, appellee insists that they have no application to this case since the matter should be heard on its merits. Notwithstanding the interesting and seemingly meritorious arguments advanced by both the appellant and appellee in support of their contentions, we find from an examination of the record that the only order entered by the trial coirrt was the order overruling appellant’s demurrer to appellee’s complaint. This being true, we have no choice but to apply the rule as set forth in the strikingly similar case of McCarroll, Commissioner of Revenues v. Gregory-Robinson-Speas, Inc., 197 Ark. 1175, 125 S. W. 2d 452, wherein this Court said:
“The order overruling the demurrer to the complaint was an interlocutory order and not being a final judgment was not appealable to this Court. The appeal was, therefore, prematurely taken. The case is still pending in the chancery court notwithstanding the attempted appeal from the order overruling the demurrer to the complaint. Gates v. Soloman, 73 Ark. 8, 83 S. W. 348. This Court decided in the case of Davis v. Biddle, 117 Ark. 393, 174 S. W. 1196, that no appeal lies where there is no final judgment, and an order sustaining a demurrer being only an interlocutory judgment, an appeal therefrom would be dismissed for want of jurisdiction and also decided in State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S. W. 555, that orders overruling demurrers were not appealable since they were not final orders. . . .”
Accordingly, in the case at bar, the order overruling the demurrer to the complaint not being a final order, the appeal is dismissed. | [
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Ed. F. McFaddin, Associate Justice.
This is a damage action which resulted from a motor vehicle collision. Appellee, Mrs. Hollingsworth, and her baby daughter, Grlenna Faye, were seated in a car waiting for a traffic light to change when the appellant, Holmes, drove into the rear of their car with such force that Mrs. Hollingsworth and the baby were both injured. Trial resulted in jury verdicts as follows: for Mrs. Hollingsworth, $2,500.00 compensatory damages, and $2,500.00 punitive damages; and for the Hollingsworth baby, $1,500.00 compensatory damages, and $2,500.00 punitive damages. From a judgment in accordance with the verdicts, appellant Holmes brings this appeal, presenting the points herein discussed.
I. Instruction No. 6. This instruction given by the Trial Court reads:
“If you find that the plaintiff, Mrs. C. T. Hollingsworth, is entitled to recover under these instructions, you will assess damages, if any, in favor of her in such sums as you find from a preponderance of the evidence will reasonably compensate her for the medical expenses she has incurred to date, if any, and the medical expense she will sustain in the future, if any; the mental pain and suffering she has endured to date, if any, and the mental pain and suffering she will endure in the future, if any, and upon these elements of damage you will assess such sums as in your judgment you find from a preponderance of the evidence will reasonably compensate Mrs. C. T. Hollingsworth, individually, for the injuries and damages she has sustained, if any.
“You are further told that if you find the plaintiffs are entitled to recover under these instructions, you will assess such additional sums in favor of the plaintiff, Mrs. C. T. Hollingsworth, as mother and next friend of Glenna Faye Hollingsworth, a minor, as yon find from a preponderance of the evidence will reasonably compensate her for the hospital and medical expenses she has incurred in behalf of said infant, if any, by reason of said injury, if any, and such sums as you find will reasonably compensate said child for the pain and suffering it sustained, and upon these elements of damage you will award such sum for the use and benefit of said minor child, Glenna Faye Hollingsworth, as in your judgment you find from a preponderance of the testimony will reasonably compensate her for the injuries and damages they have sustained, if any.”
It was shown by the evidence that the medical and drug bills to the date of the trial were in excess of $200.00; but appellant claims that these bills should have been paid by Mr. G. T. Hollingsworth as husband and father, and that Mrs. Hollingsworth cannot recover for these bills. It is true that we held in Beverly v. Nance, 145 Ark. 589, 224 S. W. 956, that a husband is liable for the necessaries of life furnished to his wife. But that holding does not prevent a wife from recovering from a wrongdoer the amounts she incurred on her own initiative or the amounts she may reasonably incur in the future as a result of the acts of the wrongdoer. Section 55-401 Ark. Stats, provides in part: “Every married woman and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a femme sole-, . . . ” So we see no merit in the appellant’s claim that Mrs. Hollingsworth was not entitled to recover for the medical and drug bills which she had incurred or might reasonably incur in the future.
Appellant also claims that there is no evidence that Mrs. Hollingsworth will have any future pain or damages; and on this contention the appellant is also in error. Hr. Stone, one of the physicians who treated Mrs. Hollingsworth, testified that she received, inter alia, a whiplash injury; that she had to wear a neck collar for some time; that at the time of the trial (over fifteen months after the injuries) she was still in need of tranquilizer drugs; that she would probably continue to need them in the future; and would probably also have a recurrence of pain in the neck. In view of this and other testimony in the record, we cannot agree with the appellant’s claim that there was no evidence to support an instruction on future pain, suffering, damages, or medical expense.
II. Excessiveness of The Verdicts. As aforesaid, the jury awarded $2,500.00 for compensatory damages to Mrs. Hollingsworth and $1,500.00 for compensatory damages to the baby, Glenna Faye. These verdicts are not excessive. There is no need for us to detail all of the injuries suffered and the pain endured, or to detail the many trips to the doctor and the bone specialist. We conclude that the verdicts for compensatory damages should remain undisturbed.
As regards the verdict for punitive damages, the situation is different. There was ample evidence to take the case to the jury on the question of punitive damages. It was shown that Mr. Holmes was intoxicated at the time he drove into the rear of the Hollingsworth car; that he got out of his car and went to the Hollingsworth car and insisted that there was nothing wrong with the baby, who at that time was unconscious and barely breathing; and it was shown that Holmes’ conversation and locomotion were noticeably affected by the intoxicants. In Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, in affirming a judgment for punitive damages against a drunken driver, Mr. Justice Robins said:
“You are instructed that if you find for the plaintiffs in compensatory damages, then you may consider the question of punitive damages. You are instructed that punitive damages are defined as damages assessed by way of punishment to the wrongdoer, or as an example to others, and may not be assessed in any event except after compensatory damages have been assessed against the defendant.
“You are further instructed that punitive damages are not intended to remunerate the injured party for damages he may have sustained. They are not to compensate; they are the penalty the law inflicts for wilful, wanton and culpable negligence, and are allowed as a warning or as an example to the defendant and others.
“Therefore, if you find from a preponderance of the evidence that the defendant’s negligent acts, if any, were committed wilfully or wantonly, then you are told if you find for the plaintiffs in compensa tory damages, you may assess punitive damages in such amount as you may deem sufficient under the evidence, if any, to punish him for his misconduct, if any, and to serve as a proper warning to others.”
“The evidence showed that Miller, after drinking intoxicating liquor to the extent that his talk and his walk were noticeably affected, and to the extent that, according to his own statement, he was ‘half drunk,’ entered his car and sought to drive it over an improved state highway. In doing this he violated the criminal laws of this state (§ 6707, Pope’s Digest).
“When Miller imbibed alcoholic liquor he knew that he was taking into his stomach a substance that would stupefy his senses, retard his muscular and nervous reaction, and impair, if not destroy, the perfect coordination of eye, brain and muscles that is essential to safe driving. After Miller voluntarily rendered himself unfit to operate a car properly he undertook to drive his automobile, a potentially lethal machine, down a well traveled highway. His conduct in doing this was distinctly anti-social, and the jury was amply authorized in saying by their verdict that he was exhibiting a ‘wanton disregard of the rights and safety of others.’ ” To the same effect, see also Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; and Hall v. Young, 218 Ark. 348, 236 S. W. 2d 431.
It is when we come to the amount of the punitive damages awarded in the case at bar that we experience difficulty. In 15 Am. Jur. 738, “Damages” § 297, many cases are cited to sustain the text:
“An award of exemplary damages is subject to revision by tbe court to tbe same extent as awards of compensatory damages. It is difficult to lay down any rule for testing the question of excess in a verdict for punitive or exemplary damages. In general, tbe award will be set aside if it is grossly excessive or appears to be the result of passion, prejudice, improper sympathy, improper remarks and conduct of tbe plaintiff’s counsel, . . . ”
In discussing tbe elements of punitive damages in § 298 of the same article, tbe text reads:
“In assessing exemplary damages tbe nature, extent, and enormity of tbe wrong, tbe intent of tbe party committing it, and, generally, all tbe circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be taken into consideration, and so, as a rule, may tbe financial and social condition and standing of the party.”
And in § 346 of the same article there is this statement:
“As a general rule, evidence of the plaintiff’s pecuniary circumstances is admissible where tbe case is such as will justify tbe award of exemplary damages, although there is authority to tbe contrary. In most jurisdictions evidence of tbe financial condition of tbe defendant is admissible and may be considered by tbe jury in determining tbe amount of exemplary damages to be allowed and what amount of punishment would be inflicted thereby on tbe theory that tbe allowance of a given sum would be a greater punishment to a man of small means than to one possessing larger wealth.”
In tbe case at bar, Mr. Holmes offered no evidence to contradict tbe plaintiffs ’ proof of negligence, but contented himself with a frank showing of bis own financial status, and tbe undisputed showing that be and bis wife had visited Mrs. Hollingsworth and tbe baby tbe day after tbe injuries and offered sympathy and condolence. Tbe only defense offered by Mr. Holmes in this case was an effort to reduce tbe amount of punitive damages. It was shown, without objection, that Mr. Holmes was a plumber by trade and made $2.50 an hour when employed, but that he had been out of employment for some time; that he did not make enough money in 1960 to file an income tax return; and that his only possible assets were a rent house for which he paid $3,500.00 and a 1956 automobile that was worth $600.00. He even showed that none of his life insurance policies had any cash surrender value.
The jury found that $4,000.00 would compensate Mrs. Hollingsworth and the baby daughter for their injuries. Punitive damages are not intended to remunerate the injured parties for the damages sustained. Punitive damages are the penalty which the law inflicts on the guilty party, and are allowed as a warning or an example to others. What would be sufficient punitive damages against one person might be grossly excessive against another. After weighing all the evidence in this case and taking into consideration that the sole evidence offered by Mr. Holmes was on the matter of punitive damages, we have concluded that a verdict for punitive damages of $1,250.00 for each of these appellees — or a total judgment of $2,500.00 for all punitive damages — is fair and reasonable, and that any amount in excess of a total of $2,500.00 punitive damages would be grossly excessive.
If, therefore, within seventeen calendar days, the appellees will enter a remittitur for all punitive damages in excess of a total of $2,500.00 for the two appellees, then the judgment will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.
Johnson, J., would not disturb the jury verdict.
Robinson, J., would reduce the punitive damages to a total of five hundred dollars.
Here is the objection the appellant offered to this instruction: “To which said instruction the defendant objected generally and further specifically to that part of the instruction which permits the jury to take into consideration as an element of damage any future pain and suffering or future medical expenses incurred or to be incurred as a result of the accident in question for the reason the testimony is that she has fully recovered without any permanent disability and Dr. Stone testified he had recommended Mrs. Hollingsworth to Dr. Carruthers, a specialist, and that Dr. Carruthers told him she had fully recovered and that he concurred in that opinion.”
The Court, without objection, gave this instruction on punitive damages: | [
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Carleton Harris, Chief Justice.
Appellants, Dallas County Industrial Development Corporation, entered into a lease agreement with appellants Hercules Trouser Co., Inc., hereinafter called Hercules, and Fordyce Apparel Company, Inc., for the construction of a large industrial building in Fordyce. The first named appellant was to finance construction of the building to the extent of $200,000, and the other two appellants were to furnish the balance of the funds necessary to complete construction, and thereafter, would pay a certain monthly rental to the Dallas County Industrial Development Corporation, such rentals to apply against the purchase price if an option to purchase was exercised.
According to plans and specifications, the first step was preparation of the site and foundation work, and this was referred to as “Contract A”. The W. C. Burrow Company of Malvern was the successful bidder on contract “A”, and proceeded with the work, completing it to the full satisfaction of appellants. Shortly prior to the completion of this contract, the architects for Hercules advertised for bids to complete the construction of the building, said work being referred to in the plans and specifications as “Contract B”. In addition to this general contract, other contractors bid on specific phases of the construction, such as electrical, plumbing, etc. Contracts were to be made with appellant Hercules Trouser Company, Inc., since the Dallas County Industrial Development Company was obligated only to furnish $200,000 (a part of which had been used to pay for the work done under contract “A”, and it was apparent the cost of the building would far exceed the amount still retained by this corporation). Jess Resler of Columbus, Ohio, president of Hercules, testified that on the night of March 13th, the night before the bids were opened for contract “B”, he received a telephone call from M. W. Calhoun, construction superintendent of appellee company. Resler stated that he thought he was dealing with the principal, because he had never met Burrow, or his partner, W. H. Glover of Malvern. The witness testified that he considered Calhoun had the right to act for the company, and accordingly did not hesitate to negotiate with him. According to Resler, Calhoun told him that he felt the bidding next day would be very competitive, and that he (Calhoun) was not certain the W. C. Burrow Company would be the low bidder. Resler favored Burrow receiving the contract because of the excellent work the company had done under contract “A”. The witness stated that Calhoun told him that his regular bid would be approximately $112,938, and the two agreed that an additional fee would be paid to Burrow of $10,000. According to Resler, “That sounded a little irregular to me, and we probably shouldn’t have done it, but we did, and when the bids were opened by the Dallas County Industrial Development Corporation, they showed that if we took their bid of $112,938.00, we were actually paying $1,596.00 more to the W. C. Burrow Company than the bid of the Puterbaugh Construction Company.”
Appellees contend that the agreement to construct: the building was on a cost plus ten percent basis, it being; understood, however, that appellees’ profit would nob exceed $10,000, irrespective of the cost of the building. On April 15, 1960, appellee W. H. Glover directed a. letter to Mr. Eesler, as follows:
“Dear Mr. Eesler:
Confirming your telephone conversation of April: 14 with our Mr. M. W. Calhoun. We understand that: your architect has been away on vacation, thereby, delaying forwarding to us formal contract, both with you. and the Fordyce Industrial Corporation.
We understand it is your desire that we proceed with, all haste without a contract, but it is also understood that, our base bid did not include any profit and that since all bids exceeded money available from the Fordyce Industrial Corporation, we understand you wish us to proceed on a cost plus ten-percent, but not to exceed $10,000.00. Our books, payrolls, invoices, etc., are to-be made available to you to show our actual cost. We are: to give you our monthly estimate of work performed, and are to be paid monthly.
We assure you that we will proceed immediately in a good workmanlike manner to save all money possible.
If this is your understanding please sign below and' return copy for our files. We hope to meet you on your next trip to Arkansas.
sincerely yours,
W. C. BUEEOW COMPANY
BY /s/ W. H. Glover”
Mr. Eesler admittedly signed the following notation on the letter:
“Accepted this 17 day of April, 1960.
HEECULES TEOUSEE COMPANY
By /%/ J. S. Eesler, Pres.
J. S. Eesler”
Various deletions and deductions were made from time to time, reducing the base bid by $31,115.06. though-some extras were also subsequently added. In the end, appellees contended that they were due $11,685.28,. for which suit was instituted, and appellants contended that appellees were due $2,947.56. The question was whether appellees were to receive the amount of the base bid (as subsequently reduced by deductions and items omitted) plus $10,000, as contended by appellants, or if the building was constructed on the basis of a cost plus ten per cent contract, the profit, however, not to exceed $10,000, as contended by appellees. Appellees asserted that $8,182.00 of the sum sought in the complaint constituted the profit. On trial, the court held with appellees, and awarded judgment for $11,685.28, together with costs, and interest at the rate of six per cent from April 18, 1961, until paid. The decree further provided that if the amount be not paid within sixty days, such sum should be declared a lien against the property. From the decree so entered, appellants have appealed. For reversal, it is contended, first, that all of appellants’ evidence introduced was competent and admissible under ■exceptions to the parole evidence rule, but that the Chancellor did not consider all of the evidence so offered, and second, that the decree of the Chancellor was against the preponderance of the evidence.
We find nothing in the record that shows that the Chancellor did not consider all of the evidence, but we see no need to scrutinize this point, since we are clearly of the opinion that, in considering all testimony and exhibits, the preponderance still lies with appellees. A discussion of all of the evidence would serve no particular purpose, since this case is not one of first impression, and there are no unusual matters of law involved which would make this opinion noteworthy as a precedent for the future.
The letter from Glover to Resler of April 15th is certainly not ambiguous, and clearly sets forth that the Burrow Company is to proceed on a cost plus ten per cent basis. The phrase “Our books, payrolls, invoices, etc., are to be made available to you to show our actual costs” is, of course, in complete conformity with a cost plus agreement. Mr. Resler stated that he read this letter before he signed it. When asked if he could explain the meaning of the sentence just quoted, Resler replied: “I thought somone was screwy, because it had nothing to do with prior arrangements.” Subsequently, the witness stated, “I didn’t know what the interpretation of that was.” Resler insisted that he dealt entirely with Calhoun, thinking that the latter was a principal, in spite of the fact that both the bid bond and contract “A” had been signed by Clover, and appellees’ stationery listed the company as composed of W. C. Burrow and W. H. Clover. At any rate, Resler signed the acceptance, though according to his own testimony, he noted the cost plus provision.
In addition, the record reflects a second letter from Clover to Benham, Richards & Armstrong, architects for appellants, dated April 23, 1960, pertinent portions reading as follows:
“We will appreciate you preparing contract with the proper officers of Hercules Trouser Company and our Company. We have gone to work on the job by reason of a letter from Mr. Resler, a copy of which is hereto attached.
After accepting deductions and additions our fee would be $8,182.00. We are to make all our books, payrolls, and invoices available to show actual cost. If the job can be built for less than $81,822.94, the savings is for the Hercules Trouser Company and if it goes over that amount it is for their account.”
Mr. Armstrong denied receiving a copy of the letter to Resler.
An additional pertinent fact supports appellees’ position. Builder’s risk insurance had been purchased from Rebsamen & East of Little Rock, and paid for by ap pellees. This was included in the costs. Resler canceled this insurance on October 4, 1960, and requested a refund. This check for refund in the amount of $246.99 was made payable to Hercules Trouser Company, and cashed by Resler. Of course, if this were not a cost plus contract, Resler was not entitled to the unearned premium.
We are firmly of the opinion that the decree is supported by a preponderance of the evidence.
Affirmed.
Resler stated that the Burrow bid was actually more because of the $10,000 additional fee which he had agreed to pay.
This reference was to the letter written by Glover to Resler on April 15th, and accepted by the latter. | [
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Ed. F. McFaddin, Associate Justice.
This is a contest between parents for the custody of their little 10-year-old daughter, named Bebecca. In December 1960 Mr. Curtis was awarded a divorce from Mrs. Curtis on the ground of indignities; but Mrs; Curtis was awarded the care and custody of Bebecca, with Mr. Curtis given certain visitation rights.
In August 1961 Mr. Curtis filed his petition for the custody of the child, alleging facts designed to show (a) change of circumstances, and (b) the best interest of the child required a change of custody. The petition was heard by the Chancery Court in September 1961, and Mr. Curtis was awarded the custody of the child, with Mrs. Curtis to have certain visitation rights; and it is from that decree that Mrs. Curtis prosecutes this appeal.
These child custody cases always present a most serious problem. As we said in Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134: “A ease of this nature is among the most difficult that comes to us for decision. It is our duty to try it de novo, and unless we find that the preponderance of the evidence is against the Chancellor’s findings, we must affirm;”
In the present case Mr. Curtis showed, that since the divorce decree he had remarried and now had a home for little Rebecca; and that she had visited in the home and knew the stepmother and desired to be with her father and stepmother. We come then to the best interest of the child; and that is the polestar in these child custody cases. (Kimberling v. Rogers, 227 Ark. 221, 297 S. W. 2d 772; and Smith v. Smith, 213 Ark. 636, 212 S. W. 2d 10.) The Chancellor who heard this case was the same Chancellor who had rendered the original decree of divorce and the original child custody order in December 1960. He remembered very clearly that when he awarded the custody to Mrs. Curtis he had given the admonition that Mrs. Curtis was not to entertain her employer in her home while the little girl was present ; and it was conclusively shown in the present hearing that Mrs. Curtis had not obeyed the admonition of the Court in this regard. (See Widders v. Widders, 207 Ark. 596, 182 S. W. 2d 209.)
The Chancellor concluded that it was for the best interest of the child that the custody be changed. There is no need for us to detail the testimony, all of which we have carefully studied. The point is that the Chancellor was familiar with this case: he remembered the testimony in the divorce case, which is not in the present record; he saw the witnesses and heard them testify; and he reached the conclusion that it was for the best interest of the child that the custody be changed. In reaching that conclusion, he and the attorneys had a long conference with the little girl, all of which is on record. The Chancery Court, seeing the parties, is in a much better position to determine this matter of custody than are we when we see only the printed page. So, although the mother has made a strong case on appeal, we cannot say that she has convinced us that the Chancellor’s decision is against the preponderance of the evidence. Therefore, the decree is affirmed.
Robinson, J., dissents. | [
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Paul Ward, Associate Justice.
This is a suit brought in Probate Court by appellants against the Executrix of the Estate of W. B. Warren, deceased, to collect an attorney’s fee. Appellants sought to recover the sum of $3,500 and the trial court allowed them $1,750 — hence this appeal.
Facts. The facts presently set out are not in dispute. Mr. Warren and his wife, who were people of substantial means though not wealthy, had one married daughter named Virginia (Warren) Neal — the appellee herein. Mrs. Warren died in 1956 when Mr. Warren was about 63 years old, and Mrs. Neal was appointed executrix of her estate. Mrs. Warren’s will left considerable property, both real and personal, to her husband for life with the remainder to her daughter, Mrs. Neal, The order of the probate court, dated September 2, 1958, discharging Mrs. Neal as executrix, shows no property as belonging to Mr. Warren.
On April 20, 1960 Mr. Warren wrote appellant, Brooks Bradley (attorney), engaging him to handle certain claims relating to the manner in which his daughter was handling his property and the estate of his wife. In the letter he stated: “I agree to pay you a reasonable fee commensurate with your services and the results obtained.” On May 16 Mr. Warren executed an “assignment” to Bradley of two secured notes valued around $15,000 “for the purpose of securing advances made to me, represented by the notes, and further payment of a fair and reasonable fee, pending termination of litigation now pending in Pulaski County Chancery Court against Yirginia Warren Neal”.
Litigation. Only one witness, Mr. Bradley, testified concerning the extent of the legal services he rendered pursuant to his contract of employment. Set out hereafter is a brief summary of the essence and substance of his testimony.
(a) On April 25, 1960 he filed an eight page complaint in chancery court against Mrs. Neal in which it was alleged, in effect, that the final order discharging Mrs. Neal as executrix of her mother’s estate was a fraud on the court, and that property taken in her name was the property of Mr. Warren. The prayer was for recovery of something like $52,000. Appellants say the recovery was in that amount but this is disputed by appellee in her brief. We think it likely, that the amount claimed by appellants is excessive but we are convinced that a very substantial recovery was made as the resull of the suit.
(b) On tbe same day tbe above mentioned suit was filed (April 25, 1960) appellee took the necessary action to have her father confined in the state hospital. A few days later (on May 4, 1960) appellants filed a petition, in the nature of habeas corpus, in the probate court to effect a release of Mr. Warren from the state hospital. Two days later five members of the medical staff of the hospital found Mr. Warren to be without psychosis, and three days thereafter he was released.
(c) On May 20, 1960 appellants filed a petition on behalf of Mr. Warren in probate court asking for the issuance of a citation against appellee to show cause why the final order of September 2, 1958 discharging her as executrix of Mrs. Warren’s estate should not be set aside and a new accounting made. This proceeding was successfully terminated by appellants and they say a recovery of $2,795.44 was made.
(d) Appellants say that Mr. Warren suffered a heart attack on or about September 27, 1960 and that they resisted an attempt to again place him in the state hospital and to have appellee appointed his guardian, but without success.
Based on the above appellants say the value of their legal services was in excess of $3,500. To substantiate their claim appellants placed in the record expert testimony of three well known attorneys of Little Rock, two of whom heard Bradley’s testimony and the other investigated the files of Bradley. Attorney Grerland P. Patten estimated the value of the legal services “anywhere from $3,000 to $5,000” and said he would have charged $5,000. Mr. Frank Cox said he considered a fee of $3,500 to be reasonable. Mr. H. B. Stubblefield, who read the file and talked to Bradley, thought $3,500 to be “a rock bottom or a very minimum fee. . . .”
This Court, on several occasions, has attempted to state a rule by which the courts can arrive at a reasonable attorney’s fee. In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, we said:
“We think it fairly deducible from onr own cases and from the case note above referred to that in determining what is a reasonable attorney’s fee, it is competent and proper to consider the amount and character of the services rendered, the labor, time and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.”
The rule was expressed in somewhat different language in Bockman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991, where it was stated:
“ ‘Legal services . . . cannot be apportioned either by time, or the amount of physical labor expended in drawing papers, attending courts, and oral arguments. It is the attorney’s judgment, his learning, his responsibility and advice, which is relied upon, and which gives the peculiar value to legal services. Perhaps the most difficult and valuable services of the attorney may be rendered in considering his client’s case, and giving him confidential information, before any visible act is done.’ ”
In the case of Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22, this Court unanimously approved an attorney’s fee in the amount of $18,000 for services rendered in connection with the settlement of a divorce case. Attorneys testified, as experts, that a reasonable fee would be all the way from $5,000 to $40,000. In approving the amount fixed, we said:
“The lower court had a right also to take into consideration many other facts and circumstances developed in the case such as, the large amount of property involved, the effort of appellant to establish a previous property settlement, the amount of work performed by appellee’s attorney and the responsibility involved, and the results obtained by the skill and efforts of said attorney. ’ ’
From the above cases we find that courts, in fixing compensation for legal fees, consider the character of services, the time and trouble involved, the skill and experience called for, the professional character of the attorney, his judgment and responsibility and the results achieved. In addition to the above it is proper to consider the attorney’s own estimate of the value of his services, and also the estimate of other attorneys who are familiar with relevant facts. Lilly v. Robinson Mercantile Company, 106 Ark. 571, 153 S. W. 820. Also, in the cited case and in many other cases we have held that consideration must be given to the knowledge and judgment of the trial judge who fixes the fee.
After weighing all the testimony and circumstances in this case by the rules above set out we have reached the conclusion that the weight of the testimony supports a fee for appellants in the sum of $3,000, which is the smallest amount fixed by the three expert witnesses.
In reaching the above conclusion we are not unmindful of the fact that the trial judge’s own knowledge of the value of such services ordinarily carries great weight, as heretofore pointed out, especially when the services are rendered in his own court. Here however the major portion of appellants’ services (resulting in the most recovery) were apparently rendered in connection with litigation in another court. Appellees point out that in some of this litigation there was no trial, but a settlement was effected. This fact, we think, is not of too much significance. In Saad, Executor v. Arkansas Trust Company, 225 Ark. 33, 280 S. W. 2d 894, where an attorney’s fee was involved, we said: “It may have been due to their diligence and hard work that the contestants did not press for a trial.”
Accordingly the' decree of the trial court is reversed, and the cause is remanded with instructions to enter a decree in conformity with this opinion. | [
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Battle, J.
Charles W. Winfree,- being indebted to appellees in a large sum of money, conveyed to a trustee certain lands belonging to him to secure the payment of the debt. He failed to comply with the condition of his deeds, and the lands became subject to sale to satisfy the liens thereby acquired. After this he died, leaving an insolvent estate. Debts were allowed against it in the fourth class by the probate court to the amount of $17,534.15, among which were the claims of appellees for $9,544.41, which were secured by the deeds of trust executed by the deceased in his life time. These claims were proved and allowed on the 15th of July, 1890. After this the lands were sold to satisfy the deeds of trust, under a decree of a court of equity. The proceeds of the sale amounted to $6,020.50, and the costs of the foreclosure was $56, which, deducted from the amount of the sale, left $5,964.50, which were appropriated to the payment of appellees’ claim, so far as it would extend. After this, on the 20th of July, 1892, on examination of the second annual statement of the administrator, the probate court found in his hands $3,268.05 for the payment of the debts allowed against the estate in the fourth-class, and ordered that the claims of appellees be credited with the $5,964.50, leaving a balance of $4,335.58 due thereon; and directed the amount so found in the hands of the administrator to be distributed ftro rata among the creditors holding the claims allowed in the fourth class, upon the basis of the amounts due on each claim. According to the apportionment, appellees were entitled to 18| per cent, on the $4,335.58 due them—the sum of $812.90. They received this amount as so much paid on their claims, at the same time insisting- that their proportion of the fund in hand should be determined according to the full amount of the debts due to them as probated, without regard to the money received from the sale of the lands.. They appealed from the order of distribution to the circuit court, which adjudged that the distribution should be made according to the contention of the appellees. Prom this judgment the administrator of the estate has appealed to this court.
The appellees have filed a motion to dismiss the appeal to this court, because the administrator had no right to take it.
Two questions are presented for our consideration : (1) Did the administrator have the right to appeal?' (2) On what basis should the fund in the hand of the administrator have been apportioned among the creditors?
1. The right of the administrator to appeal is resisted, because he is not “a party aggrieved.” He is certainly not aggrieved by the judgment appealed from in his own person ; and he is not when a claim is unlawfully allowed against the estate of his intestate and over his objections, yet he undoubtedly has the right to appeal from the allowance. In the latter case he is the representative of those who are aggrieved. As in the latter case, so he is in the former (this case), aggrieved in his fiduciary capacity.
In the apportionment by the probate court of money in the hands of an administrator, at the filing of a settlement, the creditors of the estate are not required to be brought into court for the purpose of protecting their interests. The administrator is their representative, and it is his duty to take such steps as are necessary to prevent their interests being damaged by improper orders of apportionment. They have not the same rights as are accorded to distributees by the statutes. In all proceedings for the distribution of property belonging to an estate, after its debts are paid, all the distributees are entitled to be made parties. “Bach person entitled to a distributive share of any estate, and not applying for distribution, must be notified in writing of any such application at least ten days before any order of distribution can be lawfully made.” Mansf. Digest, sec. 151. They have the opportunity of protecting their own rights, and the administrator is relieved of that responsibility. But it is not so in the case of creditors. The apportionment of the moneys of an estate among them is an ex jparte proceeding, in which there is no one to represent them except the administrator. The differ ence in the two proceedings is suggestive of the relations sustained by the administrator to the parties named. In the former the distributees represent themselves ; in the latter the administrator is the representative of the creditors, with the right to institute and prosecute any proceeding necessary to protect their rights, among which is an appeal. Estate of McCune, 76 Mo. 200, 205.
2. ' As to the apportionment of the assets of insolvea^ persons who have made assignments for the benefit of their creditors, and of insolvent estates of deceased persons, among creditors, when some of them possess mortgages or collateral securities, there is a diversity of opinion. Many courts (which, for the sake of convenience, we shall call the first class of authorities) hold that when an insolvent debtor makes an assignment for the equal benefit of persons to whom he is indebted, some of whom are secured by mortgages or otherwise, and others are not, the secured creditor is entitled to a pro rata dividend on the full amount of his claim, without first exhausting his securities, or deducting their value or the amounts he has received from them since the assignment was made. Graeff's Appeal, 79 Pa. St. 146; Miller's Appeal, 35 Pa. St. 481; Miller's Estate, 82 id. 113; Patten's Appeal, 45 id. 151; Morris v. Olwine, 22 id. 441; In re Assignment of Buggy Co. 89 Mich. 15; Brown v. Merchants' Bank, 79 N. C. 244; Third Nat. Bank v. Haug, 82 Mich. 607; Citizens' Bank v. Kendrick, 92 Tenn. 437; In the matter of Bates, 118 Ill. 524; Kellogg v. Miller, 22 Ore. 406; Allen v. Danielson, 15 R. I. 480; Citizens' Bank v. Patterson, 78 Ky. 291. The theory upon which this ruling is based by the courts so holding is correctly stated by Justice Strong in Miller's Appeal, 35 Pa. St. 481, as follows : “By the deed of assignment, the equitable ownership of all the assigned property passed to the creditors. They became general proprietors, and each creditor owned such a proportional part of the whole as the debt due to him was of the aggregate of the debts. The extent •of his interest was fixed by the deed of trust. It was, indeed, only equitable ; but whatever it was, he took it under the deed, and it was only as a part owner that he had any standing in court when ,the distribution came to Fe made. * * * It amounts to very little to argue that Miller’s recovery of the legacy operated with precisely the same effect as if a voluntary payment had been made by the assignor after his assignment; that is, that it extinguished the debt to the amount recovered. No doubt it did, but it is not as creditor that he is entitled to the distributive share of the trust fund. His rights are those of an owner by virtue of the deed of assignment. The amount of the debt as to him is important only so far as it determines the extent of his •ownership. The reduction of that debt, therefore, after the creation of that trust, and after his ownership had Fecome vested, it would seem, must Fe immaterial.”
The same rule has Feen observed in the apportionment of the assets of an insolvent national bank among its creditors. In Chemical National Bank v. Armstrong, 59 Fed. 372, the court held that, when it is seized and placed in the hands of a receiver by the comptroller - •of the currency, the title to its assets passes, by operation of law, to the comptroller and receiver, in trust to reduce to money, and apply to the redemption of its circulating notes, and ratably distribute among its creditors ; and that each creditor, secured and unsecured, •acquires an undivided interest in the assets held by the receiver, after the circulating notes are paid, which Fears the ratio to the entire assets of the bank as the amount of his debt does to the entire indebtedness; and, upon this theory, held that he is entitled to prove, and receive a dividend on, the full amount of his debt, irrespective of any collateral securities he may hold, or col lections thereon after the suspension of the bank on account of insolvency, “subject always to the limitation that the amount to be received by him from all sources shall not exceed his original debt and interest.”
Sometimes, for the purpose of sustaining the rule we are considering, the following cases are cited : Kellock's Case, 3 Ch. App. Cas. 769 ; People v. Remington, 121 N. Y. 336; Moses v. Ranlet, 2 N. H. 488; Findlay v. Hosmer, 2 Conn. 350.
In Kellock's Case, a company was in liquidation, in chancery, under the Companies Act which was passed by the British parliament in 1862. Kellock had a claim against the company, and held a lien on certain vessels. On the 8th day of May, 1866, an order for winding up the company was made. On the 29th of June, 1866, Kellock & Co. sent in a claim to the official liquidator to rank as-creditors for £31,264. In 1867 they received from the proceeds of some of the vessels £9,916, and their remaining' securities, which had not been realized, were of considerable value. Their right to rank as creditors for the whole amount, without deducting their securities, was disputed. On the 28th of April, 1868, the Master of the-Rolls decided that the right of a creditor holding security was to prove for the full amount of his debt as it. stood at the time when the winding up order was made,, deducting all moneys received from his securities before the order, but not deducting the value of any securities-which were then unrealized, though they might have-been realized between the date of the order and his coming in to prove. On appeal from the decision of the-Master of the Rolls, it was held that Kellock & Co. were entitled to prove for the full amount due at the-time when their claim was sent in, without regard to the-amount realized on the securities between the sending in their claim and the time when it was adjudicated upon.. Only two reasons for this decision are given: (1) The creditor has a right to bring a personal suit against the debtor to enforce the payment of his debt,' or pursue his. remedies against his securities; that he is not bound to apply his securities to the payment of his claim before enforcing his direct remedies against the debtor, but can hold them until they are redeemed; and that the Companies Act of 1862 did not change these rights, and he can proceed against the estate of his debtor in the hands of the liquidator, as any unsecured creditor can do. And (2) because the 20th rule of the general order under the act of 1862 directs an advertisement fixing a time for the creditors to send the particulars of their debts or claims to the official liquidator, and appointing a day for the adjudicating thereof, holding that the adjudicating was to be upon the claim sent in, and on what was due at the time it was so presented.
Under the Companies Act of 1862, it is the duty of official liquidators of a company to take into their custody and under their control all the property, effects, and things in actions to which the company is entitled; to perform such duties in reference to the winding-up of the affairs as may be imposed upon them by the court; and, in general, to do and execute all such other things as may be necessary for winding up the affairs of the company, and distributing its assets. They hold the property in their hands as trustees for the creditors of their company. The effect of the decision in the Kellock Case, in holding that the creditor was entitled to an allowance for the amount due on his claim at the time it was sent in to the liquidators, under the 20th rule of the General Order under the Act of 1862, without regard to' the collateral securities held by him, or the amounts he has realized thereon since that time, was to make him an equitable owner of an undivided interest in the assets of the company.
In People v. Remington, 121 N. Y. 328, the defendant was a corporation, and was proceeded against by the people in an action for its dissolution on the ground of insolvency. The Ilion National Bank was a creditor of the defendant to a large amount, and, as collateral security for the payment of the indebtedness to it, had received pledges of properties and securities. It made proof of the full claim. The receiver who was appointed in the case contended that there should be deducted from the proof of the claim the sums already realized by the bank from the collateral securities, and the value of the securities still held, and that the claim should be allowed for the balance only. The court held that it was entitled to prove its claim against the estate of the insolvent corporation, without regard to the collaterals it held, and to receive dividends for the amount proved. To support its decision the court cited and followed the cases which have adopted the rule which was held to be correct in Chemical National Bank v. Armstrong, 59 Fed. 372, thereby holding, in effect, that an equitable interest in the estate of the insolvent corporation vested in the bank at the time it acquired the right to prove its claim.
Moses v. Ranlet, 2 N. H. 488, and Findlay v. Hosmer, 2 Conn. 350, do not fully sustain the rule we have been considering. In those cases, creditors presented claims against the estates of deceased persons, which were secured by mortgages on the lands of the deceased. It was not pretended that any part of the sums claimed had been paid. The court held in both cases that the full amount of the claims should be allowed against the estate. Nothing was said as to what effect, if any, sums realized from the securities at any time after the death of the debtor would have on the dividends of the creditors.
There is another line of authorities, which, for convenience, we shall call the second class, which holds that secured creditors of insolvent assignors and estates of deceased persons are not entitled to dividends on the full amount of their claim. In Wurtz v. Hart, 13 Iowa, 515, and In re Frash, 31 Pac. 755, it was held that when an insolvent debtor makes an assignment for the equal benefit of all persons to whom he is indebted, some of whom are secured and others are not, “the secured creditors must first exhaust their securities, apply the proceeds to the dimunition of their claims, and then share prorata with the unsecured creditors on the balance of their claims.” In Wheat v. Dingle, 32 S. C. 473, this rule was enforced against a secured creditor of an insolvent estate of a deceased person. In Amory v. Francis, 16 Mass. 308, it was held that if a creditor of an insolvent estate of a deceased person holds collateral securities for his debt, of less value than the amount of the debt, he can claim from the estate only the difference between his debt and the value of the security; and that the value of the security may be fixed by a sale of the property held as security. This rule is based on the injustice of allowing a secured creditor to receive dividends, on the full amount of his claim, for, it is said, to allow him to do so would give him a greater security than his. debtor intended to give him; for, originally, the property pledged or mortgaged would have been security only for a proportion of the debt equal to its value ; whereas, by proving the whole debt, and holding the pledge or mortgage for the balance, “it becomes security for as much more than its value as the dividend which may be received upon the whole debt.”
There is still another class of authorities. In Third National Bank v. Lanahan, 66 Md. 461, an assignment was made by an insolvent debtor for the equal benefit of his creditors. One of his debts was secured by collater .ais, and was subsequently partly paid to the creditor by moneys realized from the collaterals before a dividend on the debts was made. The court held that the obligation •of the trustee to pay the debt did not depend on the state •of the account between the creditor and the assignor at the time of assignment, but at the time when payment was made; and that the creditor was not entitled to a dividend on the full amount of the indebtedness, but only •on that proportion which remained after deducting the moneys received from the collaterals. This rule has been enforced against secured creditors of insolvent estates of deceased persons in Estate of McCune, 76 Mo. 200; Fields v. Creditors of Wheatley, 1 Sneed, 351; and Winton v. Eldridge, 3 Head, 361.
As the claims of appellees were probated against the estate of Winfree for the full amount thereof, and the property conveyed in trust to secure its payment has been sold, and the net proceeds of the sale have been .appropriated in part satisfaction of it, there is no question here as to how much of the claim should have been proved and allowed against the estate. The question is, were they entitled to dividends of the money in the hands of the administrator on the full amount of the claim, as proved, or on the balance remaining due after the proceeds of the sale of the land were deducted ? According to the second and third class of authorities we have cited, they were only entitled to dividends on the balance ; and, according to the first class of authorities cited, they were not entitled to them, except upon the theory they had acquired an interest in the assets of the estate of Winfree. Did they acquire such an interest? We have no statute which answers this question in express, clear, and unambiguous terms. Hence, it is necessary, not only to examine all our statutes bearing upon the subject, but to inform ourselves of the previous state of the law upon the subject, and of the mischiefs the statute te be construed was passed to obviate. Sedgwick on the Construction of Statutes (2 ed.) p. 202.
At common law, no creditor can become seized of an undivided equitable interest in an estate upon the death of an insolvent debtor, or the commencement of an administration upon his estate. In certain limits, the administrator can act as freely as his intestate could have done, in the payment of debts. If the assets are not ■sufficient to pay the debts in one class, he can pay to any in that degree he sees fit, unless restrained by the commencement and notice of a suit, in which event the more diligent can appropriate the estate to the exclusion of the others. Without notice of the existence of debts of a higher, he can pay those in a lower class in preference to the former. When the creditor recovers a judgment against him, he is not limited to any proportionate part of the estate, but can seize all the assets, and hold the administrator liable for the balance, if there be a deficiency. If he is entitled by preference of the administrator, by the class of his debt, or by diligence in commencing his action and recovering judgment, to payment, he can take enough to satisfy his entire debt, or appropriate all the assets for that purpose if there be no excess. There is no proportional part of an insolvent estate allotted or belonging to creditors. There is no such part held in trust for them. There is no provision made for them to share equally, according to class or as a body. Each of them is entitled to enough to pay his entire debt, or all of the assets, or none, unless one or more creditors, in behalf of themselves and all other creditors, in a suit in equity, obtain a decree for an account •and distribution of the assets. 2 Williams on Executors, (6 Am. ed.), bottom pp. 1033-1039.
The statutes of this State have made some changes in the common law. They allow creditors two years after the grant of their first letters on the estate in which to present their claims. All those presented in the first year are divided into classes as follows : First, funeral expenses; second, the expenses of the last illness, wages of servants and demands for medicines and. medical attendance during the last sickness ; third, judgments rendered against the deceased in his lifetime, and. which were liens on the lands of the deceased if he died possessed of any; fourth, all other demands, without regard to quality, which shall be exhibited to the executor or administrator, properly authenticated. Claims-exhibited within the second year are classed in the fifth class. All demands are paid in the order in which they are classed, and “no demand of one class can be paid, until the claims of all previous classes are satisfied;; and if there be not sufficient to pay the whole of any one class, such demands are paid in proportion to their amounts,” according to an apportoinment made by the-court. Secured and unsecured claims are classed and paid upon the same basis.
In regulating the rights of creditors, the statutes-give ample time in which to present their claims, and provide that they shall be paid equally according to-classes. They take from the administrator the right to-prefer one to another. To this extent they cure defects-in the common law, and provide for the greater security of creditors. The changes made are commensurate with the evils intended to be remedied. They make no-change, however, as to any vested interest that each shall take in the estate. Creditors are required to present their claims for the amount due them when it is-presented, and to swear “that nothing has been paid or delivered towards the satisfaction of it, except what is-credited thereon, and that the sum demanded, naming' it, is justly due.” They may present their claims-within one year and 364 days after the grant of the first, letters—upon the close of the administration—but they must make this oath before their demands can be allowed ; the statute thereby showing clearly an intention that they shall not share in the assets of the estate, except upon the basis of what is actually due after all payments are deducted. This being the manifest intention of one, it is presumed that it pervades the other statutes upon the same subject, and that when they say, “if there be not sufficient to pay the whole of one class, such demands shall be paid in proportion to their amounts,” according to an apportionment made by the court, they mean, by “amounts,” the sum actually due at the time of the apportionment. When money is received from collaterals or mortgages held as security, in part payment of claims, they are certainly diminished accordingly, and their amounts- become the balances due on them. This construction was placed upon similar statutes of Missouri, in a similar case, in Estate of McCune, 76 Mo. 200. In Haskill v. Sevier, 25 Ark. 152, the same construction was partially placed upon the statutes of this State. In that case the court directed a foreclosure of a mortgage upon land which was executed by John A. Jordan, deceased, in his lifetime, to secure a debt, and directed that if the proceeds of the sale were not sufficient to pay the debt, the balance thereafter remaining should be certified to the probate court, and there classed against the estate of Jordan.
We are of the opinion that the assets of the estate of Winfree should be apportioned among the appellees and the other creditors thereof on the basis of, and according to, the amounts severally due them at the time of the apportionment.
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Battle, J.
On the 30th day of January, 1892, Hirsch Brothers instituted an action against Jones Bros. & Co. to recover a debt, and sued out an order of attachment, that was levied upon 364 bales of cotton as the property of the defendants. The Bank of Newport claimed the cotton, and the sheriff, by order of the plaintiffs, released 300 bales, but still held sixty-four bales under the levy. The bank filed a complaint in the action, and claimed the sixty-four bales as its own property. On a trial by the court sitting as a jury, the cotton was held to be the property of the defendants; and the bank having re tained possession of it, by giving bond, and sold it, and converted the proceeds of the sale to its own use, judgment was rendered against it for the value thereof.
The evidence adduced at the trial tended to prove, substantially, the following facts: In the fall of 1891, Jones Bros. & Co. and the bank entered into an agreement in respect to buying cotton in the market at Newport in this State. The bank agreed to advance money to them to buy cotton, and they were to draw checks on the bank to pay for it, and were to pay the purchase money in full, and in cash, so as to get a good and unencumbered title. The cotton was to be delivered for storage to the Compress & Storage Co. at Newport, when it was purchased; and as it was received the compress company was to issue warehouse receipts therefor, which were to be delivered on the same day, or as soon thereafter as practicable, to Jones Bros. & Co., and they were to transfer them to the bank. This agreement was carried into effect. Jones Bros. & Co. purchased the cotton; the bank paid for it; the compress company received it for storage, and issued to Jones Bros. & Co. warehouse receipts for the same; and they transferred them to the bank. As the cotton was shipped, the bank would deliver to the compress company its receipt for the number of bales that Jones Bros. & Co. wanted to ship, and the bills of lading were taken in their names, with drafts for the amount paid for the cotton attached, and were endorsed and delivered to the bank.
It was agreed at first that every bale should be represented by a warehouse receipt of the compress company, and that the receipt should be kept by the bank until the cotton should be shipped; but the compress company represented that it could not issue receipts for each bale on the day of its receipt, and one receipt was issued for all the cotton received on the same day. The cotton was not described in the receipts, but the books of the compress company showed the marks of each bale, from whom it was received, by what route, and the date of its receipt. It was marked with blue tags, and was marked from. 5000 upwards. No other cotton was marked in this way. The receipts issued were transferred and delivered to the bank on the night of the day on which the cotton was received, “or, at the latest, a day or two thereafter.”
In shipping the cotton, no attention was paid to the dates of the receipts, or to the weights of the bales. Some bales remained at the compress several months; others were shipped shortly after their receipt. The receipts were considered only as representing the number of bales of cotton for which they were issued. The cotton was shipped in this way until there were only sixty-four bales in the possession of the compress company, only one of which was received on any day on which the receipts now held by the bank were issued. The bank held two warehouse receipts of the compress company as evidence of its rights to these bales ; one of them bore date the 24th of November, 1891, and was issued for 49 bales; and the other was dated November 30th, 1891, and was issued for 35 bales, the two receipts being for 84 bales in the aggregate. In this there was an error. The receipts should have called for twenty bales less. The 64 bales were marked with blue tags, and numbered as stated (all numbers being above 5000). The books of the compress company showed that they ■were received from Jones Bros. & Co.
R. M. Johnson testified that he was the cashier of the bank and president of the compress company, and, among other things, as follows: “As the cotton was taken out and shipped, Jones Bros, or the compress company would send word to us, and we would send receipts for the numbers of bales they wanted to ship, and the bill of lading would be taken in the name of Jones Bros., with draft attached, and delivered to the bank. The bank kept a separate account of its cotton dealings with Jones Bros. I had full access to the books of Jones Bros., their office being only about forty feet from the bank. I went to their office frequently, and tried to keep a close watch on all cotton received. Don’t think they could have bought any cotton without my knowing it. * * * * * * * Samples were kept- at the office of Jones Bros., and they were to keep an account of the marks, etc., of the cotton at the press, corresponding with the record kept at the compress ; and the samples were open to my daily inspection, as were also the books of Jones Bros. The samples and tags, and the account kept in the books of Jones Bros, and the compress company, enabled me to keep track of the cotton received. When Jones Bros, wanted to ship a lot of cotton, they would get from us receipts enough to cover the number of bales, get a bill of lading for it from the railroad, and endorse that to the bank, with a draft for the amount of the cotton, which would be placed to the credit of the cotton account of Jones Bros. I have two receipts covering the remaining sixty-four bales, which are as follows :
‘“Newport, -Ark., November 24, 1891.—Newport Cotton Compress & Storage Co. Received in good order of Jones Bros. & Co. one bale cotton forty-nine (49) b. c. No. —, to be delivered on return of this receipt properly endorsed and payment of storage. E. B. Douglass, Secretary and Manager. [Endorsed] Jones Bros. & Co. H.’
“‘Newport, Ark., November 30, 1891.—Newport. Cotton Compress & Storage Co. Received in good order of Jones Bros. & Co. one bale of cotton thirty-five (35) b. c. No. —, to be delivered on return of this receipt properly endorsed and' payment of storage. E. B. Douglass, Secretary and Manager, [indorsed] Jones Bros. & Co.’ * * * * * * * * tf ■» -X*
“When they (Jones Bros. & Co.) began business they did not have much money—-not over $500. We kept an account with them of all money received for their account, and money paid out. We paid out money for their account on check or draft. We credited them with all money received on sales of cotton. When cotton was shipped, and drafts drawn against same, we credited their account when the draft was paid. We charged them interest for the amount they received. The transactions would range sometimes very high during the month. All told, I don’t know how much it would be. The largest would be about $70,000 per month. They bought somewhere about 7000 bales of cotton, I think, all told, during the season. The account was kept with them as a separate account. We kept no other account with them. There was no difference, to outside appearances, between this account and any other account kept by the bank with cotton factors. The cotton sold, for which the bank has interpleaded in this case, was not credited on the account of Jones Bros. & Co. until after the sale. It produced $1,723.52. They still owed us $2968.”
E). B. Douglass testified that he was the secretary and manager of the compress company; that Jones Bros. & Co. did business with the bank; that they stored about 7500 bales of cotton at the compress ; that he issued receipts for the cotton to them, but thinks the bank got them all; that it was understood that all the receipts would be transferred .to the bank, which was done; that he never shipped or delivered any of the cotton until the warehouse receipts were delivered to him ; that he had to go to the bank to get the receipts when the cotton was shipped ; that all he demanded, when the cotton was shipped, was a receipt for the number of the bales shipped ; that no particular attention was paid to the dates of the receipts, or anything else, except the number of bales represented by each receipt; that when the order of attachment in this action was issued the bank held two receipts for '84 bales in the aggregate, but “there was some error in the matter;” that the receipts should have called for twenty bales less; and that he does not know how the error occurred.
This is all the evidence that the record shows was adduced to prove the ownership and identity of the sixty-four bales of cotton in controversy. Prom this it appears that the compress company issued receipts to Jones Bros. & Co. for the cotton that they stored with it; and that these receipts were transferred to the bank. The secretary and manager of the compress company testified that the transfer was made. He could do so because the receipts were surrendered to the compress company when the cotton was taken out of its possession. Only sixty-four bales of the cotton stored with it by Jones Bros. & Co. remained in its possession at the bringing of this action, and that is the cotton in controversy. The compress company has taken up receipts for the cotton that it has delivered. Two of its receipts remain outstanding in the hands of the bank, and the cotton in controversy is the only means it has with which to discharge these obligations. It is obvious that this cotton was stored with it by Jones Bros. & Co., and that the receipts issued therefor were transferred to the bank. The trial court evidently found that this cotton was subject to the attachment because it was not received on the day the receipts in question were issued. Was it correct?
The endorsement and delivery of a receipt of a warehouseman to secure the payment of a debt passes the title and right of the property described in the receipt to the party to whom it is so endorsed and delivered. If the transfer is made by the owner of the property, to whom the receipt was given, for the purpose of securing a debt for advances of money made on the faith of such transfer, it is a symbolic delivery of the property that the receipt purports to represent, sufficient to create a pledge, and is equivalent to an actual ■delivery, and will protect the person to whom it is transferred against the claims of creditors and purchasers. The endorsement and delivery of the receipt have the same effect in transferring the title as the delivery of the property. The warehouseman becomes the bailee ■of the holder of the receipt to whom it is transferred, and ceases to hold for the former owner. Acts of 1887, p. 86; Shepardson v. Cary, 29 Wis. 34; Harris v. Bradley, 2 Dill. 284; Puckett v. Reed, 31 Ark. 131; Durr v. Hervey, 44 Ark. 301; Ferguson v. Northern Bank of Kentucky, 14 Bush, 555.
The receipt is not required to be in any particular form. In Gibson v. Stevens, 8 How. 384, McQueen & McKay purchased of Hanna, Hamilton & Co. 350 barrels of mess pork, and received from them the following memorandum, receipt and guaranty :
“Fort Wayne, April 4, 1844.
“Messrs. McQueen & McKay,
“Bought of Hanna, Hamilton & Co. 350 barrels mess pork, to be delivered on board of canal boats soon after the opening of canal navigation, at $8.31.—$290.50.
“Received payment in full. Hanna, Hamilton & Co.
“We guarantee the inspection of the above pork at Toledo, and the delivery on board of canal boats at this place, soon after the opening of canal navigation.
“Hanna, Hamilton & Co.
“Fort Wayne, April 4, 1844.”
The pork was, at the time of the sale, in the wareJiouse of the vendors. On the same day, McQueen & McKay purchased of D. & J. A. F. Nichols 200 barrels of flour, and received from them a memorandum and receipt as follows:
“Fort Wayne, April 4, 1844.
“Messrs. McQueen & McKay,
“Bought of D. & J. A. F. Nichols, two hundred barrels of superfine flour, at $3.56£. $712.50.
“Received, Fort Wayne, April 4, 1844, payment in' full. D. & J. A. F. Nichols.
“Received the above flour in store, at Fort Wayne, April 4. 1844, which we agree to deliver on board of canal boats here, soon after the opening of the navigation, subject to the order of McQueen & McKay.
“D. & J. A. F. Nichols.”
The flour was, at the time of the sale, in the warehouse of the vendors. One Gibson advanced to McQueen & McKay, on the faith of this pork and flour, and the evidence of title thereto, the sum of $2,787.50, and took from them an assignment of the memorandums, receipts, and guarantees in the words and figures following, to-wit:
' ‘ ‘ Deliver the within two hundred barrels of flour to E. T. EL Gibson, or order. McQueen & McKay.” “ Deliver the within 350 barrels of pork to E. T. H. Gibson, or order. McQueen & McKay.”
The court held that the documents executed by the warehousemen transferred the property and the possession of the pork and flour to McQueen & McKay, and the vendors from that time held it for them, and as their bailees; that the endorsement and delivery of the warehouse documents to Gibson, in consideration of the advances of money he made to McQueen & McKay, transferred to him the legal title and constructive possession of the property; that the warehouseman, from the time of this transfer, became his bailee, and held the pork and flour for him ; and that the delivery of the evidence of title and the orders endorsed upon them were-equivalent, in the then situation of the property, to the-delivery of the property itself.
In Harris v. Bradley, 2 Dill. 284, it was held that “ an instrument executed and signed by warehousemen in the following words, ‘Received in store for account of Bailey & Weightman 3000 sacks of corn,’ is a warehouse receipt, and has an assignable or negotiable-quality, and its indorsement and delivery by the persons, to whom it was issued pass the title to the corn, and the makers of the instrument are liable to the holder or assignee.”
In Puckett v. Reed, 31 Ark. 131, an assignee based his claim upon a receipt in the following words and figures: ‘‘Mount Orive, Ark., Nov. 27, 1871.. Received of William Riley seventeen hundred and forty-two (1742) pounds seed cotton, to be ginned and*, baled for toll, and delivered to the holder of this receipt.. “A. & A. Jeffrey & Co.” The court held that the-delivery of it to the assignee passed to him the title to-the cotton.
From the foregoing authorities, it appears no particular or minute description of property is required to-be given in the receipt. But it is also true that “a warehouse receipt for a part of certain goods stored in bulk passes no title until such goods are separated:—set apart-—so as to distinguish them from the general mass, unless the receipt provides the means of making such separation.” Ferguson v. Northern Bank of Kentucky, 14 Bush, 555; Union Trust Co. v. Trumbull, 23 N. E. Rep. 355, 361; Jones on Pledges, sec. 317. In such a case no-particular part of the goods can be said to be mentioned in the receipt or claimed under it. There is no individuality until the separation is made.
In this case a warehouse receipt was given to Jones. Bros. & Co. for each bale as it was delivered, or for all the cotton received from them on the day of its date. As it was received, it was tagged and numbered, and the compress company entered upon its books the marks of each bale, from whom it was received, by what route, and the date of its receipt. In every instance the cotton covered by each receipt was marked and identified so as to distinguish it from the other cotton held by the company. After the cotton was thus identified the receipts for it were transferred to the bank, and in this way the title to all of it passed to the bank, and the compress company became its bailee, and held the cotton for it.
It is contended by the appellee that the bank holds no receipt of the compress company for the 64 bales in controversy; and that the two receipts now held by the bank were issued for other cotton. But it is not controverted that receipts similar to these were issued for •every bale delivered by Jones Bros. & Co. to the compress company, and transferred to the bank. It is, therefore, evident that if the bank did not acquire the cotton in controversy as a security by the receipts now held by it, it did by some others. There is no contention that the bank has ever transferred its title to the '64 bales of cotton. The evidence clearly precludes such a conclusion. Receipts for them may have been surrendered when the same number of bales were delivered by the compress company, but the bank has never relinquished its right to them, and is still entitled to hold and subject them to sale for the satisfaction of the debt •owing to it by Jones Bros. & Co. The loss or destruction of the evidence of the title did not destroy the title.
Reversed and remanded for a new trial. | [
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BatteE, J.
Appellants brought this action to recover of appellee the possession of a certain tract of land described in their complaint. The facts upon which they base their claim are as follows: Jesse Rodgers, died intestate, leaving appellants his heirs, and appellee his widow, surviving. At the time of his death, he was. seized and possessed of the land in controversy, and. occupied it as a part of his homestead. After his death,, appellee, his widow, continued to occupy it as his late homestead. In 1890 she permitted it to be returned delinquent as to the taxes of 1889. She requested her agent to pay the taxes, or purchase it for her at the tax sale. It was sold for these taxes, and her agent purchased it for her in his own name, and assigned to her-the certificate of purchase. After one year from the day-of sale had expired, the appellants redeemed the land. They now contend that they are entitled to the possession of the land, under section 5809 of Mansfield’s Digest* which provides : “If any person who shall be seized of' lands for life, or in right of his wife, shall neglect to pay-the taxes thereon so long that such lands shall be sold for the payment of the taxes, and shall not, within one year after such sale, redeem the same according to law* such person shall forfeit to the person or persons next entitled to such land in remainder or reversion all the estate which he or she, so neglecting as aforesaid, may-have in said lands, and the remainder-man or reversioner may redeem the land in the same manner that other lands may be redeemed after being sold for taxes ; and, moreover, the person so neglecting as aforesaid shall be liable in an action to the next entitled to the estate for all damages such person may have sustained by such neglect.”
Assuming that this section is a valid statute, and that the widow is seized of an estate for life, within the meaning of the same, has the appellee failed to pay the taxes on the land in controversy? She was in possession* enjoying the use of the same, when the taxes were levied* .and it was sold to pay the same. It was her duty to pay the taxes thereon for 1889. Having purchased the land at a sale thereof on account of the non-payment of such ■taxes, and paid the amount she agreed to pay, her purchase was void, and operated as a payment of the taxes. Rodman v. Sanders, 44 Ark. 504; Guynn v. McCauley, 32 Ark. 97; Sanders v. Ellis, 42 Ark. 215; Staley v. Leomans, 53 Ark. 428. The sale being void, and the taxes paid, there was nothing to redeem, and consequently no redemption was required.
Judgment affirmed. | [
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Sam Robinson, Associate Justice.
The complaint in this case alleges that the appellee, George H. Stallings, while driving an automobile in Marked Tree, Arkansas, negligently ran over and killed Arthur L. Anderson, a child four years of age. There was a trial to a jury and a verdict for the defendant, who is now the appellee.
For reversal, appellant argues six points, but has failed to abstract the record. The first point is that the trial court erred in failing to instruct the jury that the defendant admitted negligence which was the proximate cause of the death of the little boy.
We can reach no decision as to the sufficiency of the evidence without an abstract of the testimony as provided by Rule 9 of this Court. The rule, so far as it is applicable here, provides:
“The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.”
There are 130 pages in the record in this case. Some of the evidence is mentioned in appellant’s argument, but it cannot be readily determined that which is in the record as evidence and that which is argument. Neither is the abstract of the record sufficient for the Court to make a determination of the other assignments of error. We have repeatedly pointed out that it is not practical for the seven members of this Court to examine the one record filed here, and that under Rule 9 the burden is on the appellant to furnish such an abstract as will give the various members of the Court an understanding of all questions presented. Farmers Union Mutual Insurance Co. v. Watt, et ux, 229 Ark. 622, 317 S. W. 2d 285. Porter v. Time Store, Inc., 227 Ark. 286, 298 S. W. 2d 51.
In the ease at bar the appellee has not supplemented the abstract, but has stood on the abstract furnished by appellant and relies on the fact that appellant has not complied with Rule 9 and argues therefore the Court cannot make a decision on the merits of the controversy. We have often said that we will not explore the record; appellee relies on that rule; hence, he did not answer the various points argued by appellant.
Affirmed.
McFaddin, J., concurs. | [
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Jim Johnson, Associate Justice.
This is a divorce action. There is no transcript of the testimony. Prom the bare record before us we are urged by appellant to reverse the trial court, inter alia, on the following point:
“Child Custody, Child Support Payment, and allowance of attorney’s fees being beyond the scope of the allegations in the complaint, no judgment should have been entered touching these subjects.”
Appellee’s complaint in its entirety is as follows:
“Comes the Plaintiff, a white person and for her cause of action against the defendant, a white person states:
“That she and the defendant were intermarried on or about the 3rd day of August, 1957, cohabiting as husband and wife until on or about the 30th day of August, 1959, at which time they separated and have not lived together as husband and wife since that time.
“That as a result of this wedlock there was born one male child, Peter Michael, age 2, who is in the care and custody of the plaintiff.
‘ ‘ That the defendant has fussed and nagged habitually and systematically over a long period of time, as well as committed other acts so as to render the plain tiff’s life intolerable, making it impossible for her to continue to live with him as husband and wife.
“Wherefore, plaintiff prays for an absolute divorce, and for all other proper and equitable relief. ’ ’
To this complaint appellant, as counsel for himself at this stage of the litigation, filed an answer and counterclaim. Appellee then filed a motion praying that “she be granted alimony pendente lite, solicitor’s fees and court costs, and for all other proper and equitable relief. ’ ’
No separate hearing was had on the motion but the trial court did set the case for a day certain. Thereafter, appellee, in reply, filed a general denial to appellant’s counterclaim.
Appellant defaulted in appearance at the trial. The trial court properly applying the rule that no divorce may be granted without the presentation of corroborating evidence to support the complaint, required appellee to produce her evidence and thereupon rendered the following decree by default:
‘ ‘ On this day personally appeared the plaintiff represented by her solicitor, Fred A. Newth, Jr., after having filed a complaint, a warning order having been issued and an attorney ad litem having been appointed as required by the laws of the State of Arkansas; proof of publication, report of the attorney ad litem, and answer and counterclaim having been filed on behalf of the defendant pro se, the reply of the plaintiff and the order of the court setting the above captioned cause for trial on the 19th day of January, 1961, the defendant appeared not and wholly made default; the testimony of the plaintiff and her witness, Paul Vedel Holn Hedegard and William J. Frazier having been taken ore terms before the bar of this court, the court finds that the plaintiff is entitled to the relief sought:
“It is, therefore, ordered, adjudged and decreed:
“That the plaintiff is hereby granted an absolute divorce from the defendant; that the counterclaim is hereby denied and dismissed for lack of equity.
“The court finds that of this union there was born one child, a male, namely, Peter Michael, age 2, and grants the custody of the aforementioned child to the plaintiff, who is the fit and proper person to have the care and custody of said child; the court orders and directs the defendant, Norman Bruce Kerr, to pay the sum of One Hundred Dollars ($100.00) per month into the registry of this court as child support; the first payment being due and payable on the 1st day of March, 1961, and a like amount on the first day of each month thereafter until further orders of this court. The court finds that the defendant, Norman Bruce Kerr, should pay plaintiff’s solicitor, Fred A. Newth, Jr., the sum of $100.00 as a fee on or before the 1st day of March, 1961. ’ ’
Ordinarily considerable latitude in pleading is given, and if the testimony calls for relief in addition to that called for by the facts stated in the complaint, then the complaint is treated as amended to conform to the proof. The same latitude is not permissible, however, in the instance of a judgment taken by default.
To entitle the plaintiff to relief under her general prayer for all proper equitable relief for such matters as child custody and support, the allegations contained in the complaint must not only afford ground for the relief sought, but must have been introduced to show a claim to relief and not to corroborate her right to the specific relief requested. Otherwise, defendant would be taken by surprise. See Mason v. Gates, 90 Ark. 241, 119 S. W. 70.
In the opinion of rehearing in the case of Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, a contested matter in which alimony was awarded and the complaint, although containing allegations pertaining to the financial status of the plaintiff, did not include a specific prayer for alimony, this Court said:
“. . . In her complaint appellant alleged that she was without funds to support herself and pay the costs of litigation and prayed for temporary relief out of funds belonging to appellee and for all other equitable relief. ... We have held that the statement of facts in a complaint or cross-complaint, and not the prayer for relief, constitutes the cause of action, and that the court may grant whatever relief the facts pleaded and proved may warrant, in the absence of surprise to the complaining party. . . .” Also see Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113. Unlike the Grytbak and Smith cases, supra, the present action is not contested and therefore the parties are held much more strictly to their pleadings in taking default judgments and a more stringent rule of pleading is applicable. See Lowrey v. Yates, 212 Ark. 399, 206 S. W. 2d 1.
The plaintiff’s statement of her cause of action contains no reference to financial problems of any nature or kind. Nor does the complaint contain so much as a hint that any decree touching upon custody or support will be sought. It is apparent from the pleadings here that the plaintiff was seeking but one thing — a divorce. This being true, she cannot enlarge and broaden the scope of the action to include matters foreign to her complaint upon the default in appearance by the defendant.
The applicable rule is succinctly stated in Yol. 49, C. J. S., Judgments, § 214 b (1):
“A judgment for plaintiff by default must strictly conform to, and be supported by, the allegations of the petition or complaint, a closer correspondence between pleading and judgment being necessary than after a contested trial. Defendant’s default does not enlarge or broaden plaintiff’s claim and rights under the allegations of the petition; nor may the allegations of the petition be enlarged by any evidence offered or introduced on confirmation of the default judgment.”
Therefore, since the right to such relief is not inferred from the complaint, that portion of the decree involving child custody and support is reversed and remanded for further proceedings consistent with this opinion. The attorney’s fee is allowed in compliance with appellee’s motion.
Reversed in part and remanded.
George Rose Smith, J., not participating. | [
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George Rose Smith, J.
Ten days ago the peth tioners, as representatives of the Communication Workers of America, an unincorporated labor union, applied to this court for a temporary writ of prohibition to restrain the respondent from proceeding further in a case pending in the Pope chancery court. The writ was granted by a per curiam order which explained that a written opinion in the matter would be delivered later. This is that opinion.
Eighty-one employees of Western Arkansas Telephone Company, Inc., filed the suit below against their employer and against the petitioners as representatives of the union. The complaint alleged that the plaintiffs constituted a majority of the company’s 113 employees and that they did not wish to be represented by the union in collective bargaining with the employer. The prayer was that the defendants be enjoined from engaging in any labor-management negotiations that might affect the rights of the plaintiffs.
When the complaint was filed the chancellor issued a temporary order enjoining the employer and the union from negotiating with respect to the rights of the plaintiffs. At a hearing a few weeks later the chancellor overruled the petitioners’ objections to the court’s jurisdiction and continued the preliminary order in force. The present application for prohibition was then filed here.
It is conceded that the employer is engaged in interstate commerce to an extent sufficient to make its labor relations subject to the Taft-Hartley Law, 29 IJSCA. §§ 151 et seq. On November 15, 1960, the National Labor Relations Board, after having conducted an elec tion among the company’s employees, certified that this labor union had been selected as the exclusive bargaining unit by a vote of 61 to 59. This is the authority under which the union now asserts the right to represent the telephone company’s employees in negotiations for a labor contract.
The federal law provides that a new election cannot be held until at least a year has elapsed since the last valid election. 29 USCA § 159 (c) (3). Accordingly on December 12, 1961, which was about thirteen months after the first election, the 81 dissatisfied employees filed with the National Labor Relations Board what is referred to as a decertification petition, asking that a new election be conducted to determine whether the union was still favored by a majority of the workers. 29 USCA § 159 (c) (1) (A) (ii). This petition was dismissed by the Board because there was then pending before the Board a charge by the union that the employer had been guilty of unfair labor practices. It is the established policy of the Board not to consider an application for an election until such charges have first been disposed of. Upon the dismissal of their decertification petition the 81 employees filed the suit in equity, asking, among other things, that the chancellor determine whether the union now represents a majority of the telephone company’s employees.
The Supreme Court of the United States has repeatedly held that in some areas of labor law the state courts have concurrent jurisdiction with federal agencies, but in other areas Congress has completely preempted the field, to the exclusion of any jurisdiction in state tribunals. In determining whether the states’ jurisdiction has been superseded it is important to consider the extent to which Congress has expressly vested authority in the National Labor Relations Board and also the extent to which conflicts might arise of concurrent jurisdiction were recognized. Garner v. Teamsters etc. Union, 346 U. S. 485, 98 L. Ed. 228, 74 S. Ct. 161; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 99 L. Ed. 546, 75 S. Ct. 480.
In the case at bar it is clear that the federal law has pre-empted the field. The Taft-Hartley Act provides that the bargaining representative chosen by the majority of the employees in a unit “shall” be the exclusive representative of all the employees. 29 ITSCA § 159 (a). The Board “shall” decide in each case what is the appropriate bargaining unit. § 159 (b). When a petition is filed, either for an original election or for a decertification as here, the Board “shall” investigate the matter and, if a question exists, “shall” direct an election by secret ballot and certify the results. § 159 (c). The language of the act is mandatory in every particular and plainly expresses a legislative intention to invest the Board with the sole power to act. It is quite apparent that concurrent jurisdiction would frequently lead to conflicting decisions, since in a close case the sentiment for and against the union might vary almost from day to day. Congress evidently concluded that industrial peace would best be achieved by making the outcome of each election binding upon all concerned for at least a year.
In a very similar case, Bethlehem Steel Co. v. N. Y. State L. R. B., 330 U. S. 767, 91 L. Ed. 1234, 67 S. Ct. 1026, it was held that the Board’s determination of the appropriate unit for bargaining purposes was controlling and left no room for a decision in the matter by a. state labor relations board. That holding, together with many similar ones, convinces us that the state court is without jurisdiction in the present dispute. The writ of prohibition was accordingly granted. | [
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George Rose Smith, J.
This is a suit by Lee Ramsey to recover damages for a broken hip that he sustained in an accident at a Salvation Army warehouse in Little Rock. As a charity the Salvation Army is not subject to an action in tort, but it carried liability insurance with the appellee. This is a direct action against the insurer, pursuant to Ark. Stats. 1947, § 66-3240. The trial court directed a verdict for the defendant, on the ground that the proof did not show any negligence on the part of the Salvation Army.
At the warehouse wastepaper is collected and compressed into large bales weighing more than 1,200 pounds each. For several years before the plaintiff was injured in 1958 a mechanical hoisting device had been used to lift the bales and stack them on edge, two bales high, along the west wall inside the building. When the bales were sold the power hoist was used to put them into the delivery truck.
On the day of the accident an order for several bales was received from a salvage dealer. The hoist had broken down the week before and had not been repaired. The Salvation Army foreman directed Martin, the truck driver, to use as many men as he needed to load the bales by hand.
The heavy bales were manageable when standing on edge but not when lying flat. Martin climbed up on the double stack with the intention of pushing off the needed bales, one by one, from the upper tier. It was expected that each bale would land on edge and stay in that position for at least a moment or so. The plaintiff stood by to the south with a cart that he meant to shove against each bale to steady it before it tipped over and fell flat. It was thought that the bales would fall eastward when they were pushed off, but the first one unexpectedly fell or bounced to the south, striking the cart held by Ramsey and causing the injury sued for.
Ramsey had been receiving his room and board and a few dollars a week from the Salvation Army. In his complaint he first alleged that he was an employee of the charity. The insurer pleaded a clause in its policy exeluding employees from coverage for injuries sustained in the course of their employment. The complaint was then amended to withdraw any assertion that Ramsey was a Salvation Army employee.
In this court Ramsey contends that the statute allowing a direct action against the insurer of a charity does not permit the parties to exclude employees from the coverage of the policy. It is accordingly argued that the exemption clause in this policy is void. From this-premise the appellant goes on to contend that the jury might have found that Ramsey was an employee and that the failure to use the mechanical hoist on the day of the accident was a violation of the employer’s duty to-furnish a reasonably safe place to work.
We do not find in the statute any prohibition of the exclusionary clause. The act provides that when liability insurance is carried by a nonprofit organization “and any person . . . suffers injury ... on account of the negligence or wrongful conduct of any such organization . . . then such person . . . shall have a direct cause of action against the insurer with which such liability insurance is carried to the extent of the amount or amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy, and such insurer shall be directly liable to such injured person ... to the extent of such coverage in such liability insurance policy, and the plaintiff or plaintiffs may proceed directly against the insurer regardless of the fact that the actual tort-feasor may not be sued under the laws of the state.” Ark. Stats., § 66-3240.
The appellant argues, in effect, that the statutory reference to “any person” who suffers an injury should be construed to comprehend every person in the world, without exception, so that the parties’ attempt to exclude employees from the protection of the policy is contrary to the statute. We cannot discern in the language of the act a legislative intention to require such a broad- •and inflexible coverage as the appellant seeks. The evident purposes of the statute are to encourage charities to carry liability insurance and to prevent the insurer from defending on the ground that a judgment has not first been obtained against the insured. But the act is not compulsory; a charitable organization is free to carry insurance or not, as it chooses. Hence the appellant is a gratuitous beneficiary of the policy and must accept its exclusions along with its beneficial coverage. Indeed, that is the manifest intent of the statute, for it provides that the injured person shall have a cause of action ‘ ‘ to the extent of the amount or amounts provided for in the insurance policy” and that the insurer shall be directly liable ‘ ‘ to the extent of such coverage in such liability insurance policy. ’ ’
If the appellant was an employee the trial court was right in directing a verdict, because the policy did not protect employees. If, on the other hand, the appellant was not an employee the court’s action was also correct, for no breach of any duty owed to Ramsey has been shown. Ramsey, if not an employee, was at most an invitee. “The occupier of land is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. . . . Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself.” Prosser on Torts (2d Ed.), § 78.
The only charge of negligence argued by the appellant is that the loading operation should not have been undertaken until the power hoist had been repaired. The attempt to load the bales by hand might have strained the employees participating in the effort, but it was not inherently dangerous to bystanders. Consequently it cannot be said that the Salvation Army owed to its invitees any duty to perform the work by mechanical means. In fact, that procedure would not have insured Ramsey’s safety, since a bale might still have been dropped or dislodged, with the possibility of injury to him.
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Ed. F. McFaddin, Associate Justice.
This litigation involves the application of the Zoning Ordinance of Forest City, Arkansas. Appellants, Mr. and Mrs. Louie Moffatt, purchased a home in the residential district of Forrest City in 1951. In 1954 they made additions to the home- and began operating a meat market and meat processing.piant in said additions; and, as business improved, they-made other additions and enlargements to the meat market portion of the premises. In 1959, Forrest City adopted a zoning ordinance which classified the area in which the Moffatt premises are located as entirely residential. Moffatt’s market was a non-conforming nse. The Zoning Ordinance provided: “If a building occupied by a non-conforming nse is damaged to the extent of 60 per cent or more of its reproduction value exclusive of foundations, such building may not be restored for any non-conforming use.”
On July 20, 1960, there was a fire in which the Moffatt residence quarters were almost entirely destroyed, and the market portion was considerably damaged. When the Moffatts undertook to repair the market in order to resume business, the municipality filed this suit in Chancery Court to enjoin them from any reconstruction. The City alleged that the building was more than 60 per cent destroyed, exclusive of foundations, and that because of the Zoning Ordinance the owners could not restore the property for use as a meat market, such being a non-conforming use. The Moffatts resisted the City’s claim. There were several hearings in the Chancery Court, and the Chancellor personally viewed the premises. The Chancery decree sustained the City’s claim and enjoined the reconstruction of the building, or any building on the premises, for use as a meat market.
The Moffatts have appealed, urging two points:
I. The Appellants Were Entitled to the Application of the Rule of Strict Construction in Their Favor of the Zoning Ordinance.
II. The Appellee Did Not Sustain Its Burden of Proof by a Preponderance of the Evidence.
We agree with the appellants that a zoning ordinance is to be strictly construed in favor of the property holders, since the ordinance is in derogation of the common law and operates to deprive the owner of the property of a use which would otherwise be lawful. City of Little Rock v. Williams, 206 Ark. 861, 177 S. W. 2d 924, and cases and authorities there cited; see, also, City of West Helena v. Bockman, 221 Ark. 677, 256 S. W. 2d 40. But even giving the Zoning Ordinance of Forrest City a strict construction in favor of the property holders, we must decide the fact question: whether the building on the premises was damaged “to the extent of 60 per cent or more of its reproduction value exclusive of foundations.”
The residence and the meat market were housed in one structure. This is shown by the plats and pictures in the transcript. Regardless of the fact that there were additions to the market side of the house, there was only one overall building; and appellants could not have successfully claimed that the market was one building and the residence was another. Such a theory was originally urged, but with becoming candor appellants’ learned counsel conceded: “. . . the cause was ultimately submitted on the theory that the market and the residence constituted one structure and that the issue before the Court was 60% destruction of it exclusive of foundations.”
There was evidence that the total value of the building before the fire was approximately $15,000.00; and that to restore the building after the fire would cost approximately $12,000.00. Five witnesses — some of them building contractors- — -testified that the damage exceeded 60 per cent. Mr. Moffatt did not dispute the fact that the residence portion of the structure was a total loss; and there was other evidence that the residence portion was 10/15ths of the total value. While there is evidence to the contrary, we cannot say that the preponderance of the evidence is contrary to the Chancellor’s conclusions as to the percentage of damage.
Affirmed.
Johnson, J., not participating.
Allowing the replacement of a structure for a non-conforming use necessarily depends on the wording of the particular ordinance involved. For general statements on this matter, see 58 Am. Jur. 1029, “Zoning” § 162; 101 C.J.S. 960, “Zoning” § 197; and Yokley on “Zoning I.aw and Practice”, Second Edition, § 157. | [
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George Rose Smith, J.
In the fall of 1960 a dispute arose between the appellant, Guy H. Jones, and the appellee, John T. Duckett, about, which of the two was the chairman of the Faulkner County Central Committee of the Democratic party. By law the chairman of this committee is automatically a member of the County Board of Election Commissioners, concededly a public office. Ark. Stats. 1947, § 3-607. In an effort to obtain a judicial decision in the matter Jones brought this action in the form of a proceeding to obtain redress for a usurpation of office. He alleged in his complaint that he was rightfully a member of the County Board of Election Commissioners and that Duckett had wrongfully deprived him of the office. The circuit court, sitting without a jury, found in favor of the defendant, principally upon the ground that Jones was a state senator at the time and was therefore ineligible to hold another public office.
The record is large, but in the view we take only a few of the facts, all undisputed, are material. By party rule the county chairman is elected by the county central committee. On August 27,1960, Jones was elected by the Faulkner county committee as its chairman. Senator Jones was then serving a four-year term as a member of the state senate. That term was to expire on January 1, 1961 (Ark. Const., Amendment 23, § 6), and he had been defeated as a candidate for renomination in the Democratic primary earlier in August.
Later in the fall some of the county committeemen had reason to doubt Jones’s eligibility to hold the position of chairman. At a county committee meeting held on October 8,1960, at which Jones does not consider that a quorum was present, Duckett was purportedly elected as chairman in the place of Senator Jones. One week later Jones brought this action for usurpation of the office of county election commissioner.
In a usurpation proceeding the plaintiff seeks to recover possession of the office; so it is logically his burden to establish his qualifications to hold the office. Rosser v. City of Russellville, 306 Ky. 462, 208 S. W. 2d 322. Our usurpation statute is in harmony with this view, for it provides that the person entitled to the office shall be reinstated therein by the judgment of the court. Ark. Stats., § 34-2207. The legislature could not have meant to direct the court to install an ineligible person in public office.
By the plain language of Article 5, § 10, of our constitution Senator Jones was ineligible to hold another civil office: “No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.” This mandate was given effect in Wood v. Miller, 154 Ark. 318, 242 S. W. 573, and in Collins v. McClendon. 177 Ark. 44, 5 S. W. 2d 734. We recently held in Johnson v. Darnell, 220 Ark. 625, 249 S. W. 2d 5, that a state representative might, during his term of office, be elected to another office if his tenure therein would not begin until after the expiration of his term of office as a legislator. That was not the situation in the case at bar.
In arguing that he was not disqualified to become a county election commissioner while he was serving as a state senator the appellant suggests that he was only nominally a member of the legislature after his defeat in the August primary. The clear-cut answer to this, argument is that Senator Jones’s’ term of office continued until January 1, 1961, and the duration of that term is the controlling consideration in deciding his qualification to hold another civil office. Had the legislature been called into special session between the August primary and J anuary 1 it would have been Senator J ones’s unquestioned duty to attend the session as the senator from his district.
The remaining argument is that Jones was not “appointed or elected” to the office of county election commissioner, since it devolves by operation of law upon the county chairman. We think it evident that the constitutional inhibition against a legislator’s being appointed or elected to another office was intended to embrace the only two methods by which a person is ever chosen for public office under our law. Here Senator Jones was elected to the position of county chairman and by that election he would have become, if eligible, a county election commissioner. It follows that he was elected to the latter office within the meaning of the constitution.
It is also insisted that Senator Jones, despite his ineligibility to hold the office of county election commissioner, is qualified to be chairman of the county central commmittee and should have been awarded that position by the trial court. Assuming, without so deciding, that the courts now have jurisdiction of such a contest (see Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, and Act 21 of 1949, Ark. Stats., § 3-245), we think the court was right in holding that Jones’s inability to aet as a county election commissioner also prevented him from being county chairman for the party. Each county board of election commissioners consists of three members: The county chairman of the majority party, the county chairman of the minority party, and a third commissioner appointed by the State Board of Election Commissioners. Ark. Stats., § 3-607. There is no provision for anyone to be named as a replacement for a county chairman who is ineligible to serve on the county board of election commissioners. Consequently if a party leader could act as county chairman of the party in spite of his ineligibility to serve on the county board of election commissioners it would leave the latter body with only two members. In that event the board might be powerless to perform its duties, owing to a tie vote between its two commissioners. Hence we are convinced that the legislature intended for the county party chairman also to be qualified for service as an election commissioner. Since Senator Jones was not so qualified the court correctly held that he was ineligible to serve the party as its county chairman.
Affirmed.
Johnson, J., dissents. | [
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Ed. F. McFaddin, Associate Justice.
The Chancery Court reduced the amounts previously fixed for alimony and child support; and Mrs. Nicholas has appealed.
In April, 1959, the Johnson Chancery Court awarded Mrs. Nicholas a divorce and also the care and custody of Dennis Nicholas, the 12-year-old son of the parties. Mr. Nicholas was ordered to pay $50.00 per month alimony and $65.00 per month for child support. As to Mr. Nicholas’ right for visitation, the decree stated: “The Plaintiff (Mrs. Nicholas) is granted custody of the minor child of the parties subject to reasonable visitation with said minor child by the Defendant” (Mr. Nicholas). No objection was voiced by Mr. Nicholas when Mrs. Nicholas and the boy moved from Clarksville to Rogers, where she would be near her parents and have employment in a bank. The distance from Clarksville to Rogers is approximately 115 miles.
Because of his arrearage in monthly payments, a citation was issued against Mr. Nicholas; and he countered with a petition to reduce the amount of the payments. There was’ a hearing; and the Court, after giving Mr. Nicholas sixty days to make current all past due items, reduced the future payments that Mr. Nicholas should make to $45.00 per month for alimony and $45.00 per. month for child support. It is from this order of reduction (from the original sum of $50.00 per month alimony and $65.00 per month child support) that Mrs. Nicholas prosecutes this appeal.
Mr. Nicholas did not claim any financial inability to make the monthly payments. Rather, he claims that the payments should be reduced because his son had not visited him in Clarksville as regularly as Mr. Nicholas thought proper.
We have held that where one parent takes a child outside of the jurisdiction of the court and secretes the child and keeps the other parent from having any right of visitation, then support payments may be suspended during such period. Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609. But the facts in the case at bar are far different from the facts in the cited case. Mr. Nicholas raised no objection to Mrs. Nicholas taking the child to Rogers where she could gain employment. That was in the spring of 1959. In the summer of 1959, the boy visited Mr. Nicholas for some time. There is no showing that Mrs. Nicholas, or anyone else, secreted the boy. or tried to keep Mr. Nicholas from seeing him. Rather, the evidence is to the contrary. When Dennis was playing on the football team for Rogers, Mrs. Nicholas’ father telephoned Mr. Nicholas and urged him to come to Rogers to see the boy play. Mr. Nicholas was too busy to go. The boy wrote his father three letters in the winter of 1959-60, and received no reply. The boy admitted he did not visit his father in the summer of 1960; the father had fixed no definite time for the visit; the boy had written three letters and received no answer; and Mr. Nicholas had remarried and there is nothing to show that the present wife wanted the boy to visit in the home. There is absolutely no evidence of spite on the part of Mrs. Nicholas, or stubbornness on the part of the boy; and there has been no effort to turn the boy against his father. In Carnahan v. Carnahan, 232 Ark. 201, 335 S. W. 2d 295, the father was not relieved of making support payments when the child was moved with the father’s knowledge. See also Sindle v. Sindle, 229 Ark. 209, 315 S. W. 2d 893.
That the father wanted his son to visit him is admitted; but the father failed to put his heart’s desire into action even to the extent of writing or phoning his son and setting a definite date for the desired visit. A boy cannot be a pal with his father until the father shows the boy that he wants him for a pal. If Mr. Nicholas wants a definite time of visitation fixed, he can either arrange it with the boy or Mrs. Nicholas by mutual consent, or he can ask the Court to fix a definite time for visitation. Eeducing the monthly support for the boy will not cause the situation to improve. There is no claim that $65.00 per month is too much. The only reason advanced for reduction is the failure of the boy to go — on his own initiative' — to visit his father. We see no change in conditions that would support the reduction order made by the Chancery Court, either as to alimony or child support.
The decree of the Chancery Court is reversed and the cause remanded with directions to set aside the reduction order and reinstate the original payment schedule the same as if it had never been reduced, and to award appellant an attorney’s fee of $100.00 in addition to the amount already awarded. | [
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Neill Bohlinger, Associate Justice.
The appellee, Omer Brigance, was the owner of a 1957 Ford two-door sedan which was insured against damage under a policy issued by the appellant, Southern Farm Bureau Casualty Insurance Company.
The car belonging to appellee was damaged in a collision on the 22nd day of May, 1960. The appellee advised his insurance carrier, appellant, of the damage and an investigation was made as to the extent of the damage and the cost of repairs.
The usual amount of bickering between appellant’s adjustor and the appellee seems to have taken place and the appellant offered to take the car to a garage of its choosing and have the repairs made. The appellee, however, had left the car with a garage at Waldron and refused to allow it to be repaired by anyone else.
The appellee had other appraisals made of the damage and the appellant called in an independent appraisal agency. The parties seem to have been unable to agree on the parts damaged in the wreck or the cost of their replacement and the appellee thereafter had the garage at Waldron, where he had left the car, make the repairs. The appellee testified that he paid the cost of the repairs with two checks, one in the amount of $50.00 which was the amount of the damage exempted under his insurance policy and the balance of the bill amounting to $874.49 was paid by another check.
Thereafter the appellee brought his suit against the appellant in the Scott Circuit Court and the matter was submitted to a jury under instructions that are not questioned here and the jury found for the appellee in the sum of $874.49.
Stripped of all its trivia, the case presents only these questions. Was the car insured by the appellant? Was it damaged? Did the testimony support the jury finding of damages in the sum of $874.49? The first two questions we answer in the affirmative. The law under which we proceed to review the jury’s finding has been so universally accepted that we refrain from burdening this opinion with a long list of citations. The case of Arkansas Motor Coaches, Ltd., v. Williams, 196 Ark. 48, 116 S. W. 2d 585, is a clear and decisive statement of the law involved.
“We recently held: ‘We there said that we would not reverse a judgment because the verdict upon which it was based was so clearly against the weight of the evidence as to shock the sense of justice of a reasonable person, and that we could reverse a judgment for lack of testimony only in cases where there was no substantial evidence to support it. We may, therefore, determine only whether there is any testimony of a substantial character to support the verdict, and we must in passing upon that question, in conformity with settled rule of practice, give to the testimony tending to support the verdict its highest probative value along with all inferences reasonably deducible from the testimony.’ Coca-Cola Bottling Co. v. Hill, 192 Ark. 154, 90 S. W. 2d 210; Chalfant v. Haralson, 176 Ark. 375, 3 S. W. 2d 38.
Again this court recently said: ‘The jury’s verdict is conclusive here on questions of fact, even though we might believe that the preponderance of the evidence was the other way. This court does not pass on the credibility of witnesses nor the weight to be given to their testimony.’ C. R. I. & P. Ry. Co., v. Britt, 189 Ark. 571, 74 S. W. 2d 398.”
With some of the conclusions of the jury, from the evidence in this case, we do not necessarily agree, but as we said in the Arkansas Motor Coach case cited above, we will not reverse the verdict because the evidence on which it was based is so clearly against the weight of the evidence as to shock the sense of justice of a reasonable person but if the jury could have found as it did, from the evidence presented to it, we accept the jury’s verdict. The weight and sufficiency of the testimony is peculiarly within the province of the jury and that is a field upon which we do not trespass.
There is testimony on which the jury could have found and did find damages against the appellee and those findings will not be disturbed here.
However, where there is a total lack of evidence, this . .court can and should reverse on the items that are not supported by any evidence.
In the instant case there was considerable testimony directed at the replacement of what is called the “A-Frame”. Appellant’s witness testified that the “A-Frame” assembly was not damaged and that no replacement thereof was necessary. However, appellee’s witness testified that he did replace the “A-Frame” assembly and made a charge of $89.90 therefor. Included in the “A-Frame” assembly is a part known as a left spindle. Included in the bill to the appellee there was listed an additional charge of $26.90 for another left spindle. The testimony is positive that only one left spindle conld be used, we therefore conclude that the charge of $26.90 for a left spindle is a duplicate charge for which the appellant is not liable.
The case having been fully developed, the judgment of $874.49 against the appellant is reduced by the charge for the left spindle, making the total judgment $847.59. Under this modification the appellee will not be entitled to the penalty or attorney’s fees and the appellant will recover its costs. | [
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Paul Ward, Associate Justice.
This Petition for a Writ of Habeas Corpus was filed in this Court as an original action by John Ed Grayer who is incarcerated in the Arkansas State Penitentiary, serving two sentences (one for burglary and one for grand larceny) for a total of twenty-eight years. Sentences, after conviction, were pronounced on August 21, 1958 by the Circuit Court of Crittenden County.
The petition, an unverified statement, signed by John Ed Grayer (apparently in his own handwriting), sets out, in substance, the following alleged facts:
(a) He was arrested for burglary and grand larceny in 1952 in Crittenden County and placed in jail, but the charges were dropped according to his information. A deputy sheriff of Crittenden County took him to Memphis, Tennessee where he was placed in jail.
(b) He was sentenced to prison in Tennessee where he served four and one-half years in the penitentiary, and then was released.
(c) He visited West Memphis (in Crittenden County) October 13, 1957 where he was arrested for driving while drunk, whereupon the officers there learned his identity.
(d) In August, 1958 he was tried on information for the 1952 offenses and convicted to serve a total of twenty-eight years in the Arkansas Penitentiary.
Petitioner prays that he “receive justice according to the due process of law of this State”.
Upon receipt of the above petition this Court appointed Elton Sieves III of West Memphis to represent the petitioner. The appointed attorney has filed an excellent brief in behalf of the petitioner in which it is forcefully contended that the Circuit Court of Crittenden County had no jurisdiction to try and convict the petitioner, and that therefore he should be released from prison. The petitioner has not in this case brought the records of his convictions before us by way of certiorari, but he has done what amounts to the same thing — he has. filed with the Clerk of this Court a duly authenticated record of his convictions in the trial court. We therefore-treat his petition as if it were one for certiorari, and will proceed to examine the merits of petitioner’s contention that the trial court had no jurisdiction to try and convict him.
Petitioner relies on Ark. Stats. § 43-1602 to show lack of jurisdiction in the trial court. This section, in all parts material here, reads:
“No person shall be prosecuted, tried, and punished for any other felony unless an indictment be found within three [3] years after the commission of the offense. . . .”
The record of petitioner’s 1958 convictions in the Critteden County Court above mentioned contains the information upon which he was tried. It shows he was tried for offenses allegedly committed in 1952 — more than three years before trial. Under, those facts alone we would be compelled to hold the trial court was without jurisdiction to try the petitioner. See Pate v. Toler, 190 Ark. 465, 79 S. W. 2d 444, where this Court, in construing § 43-1603 which is analogous in this connection to § 43-1602, said:
‘ ‘ The above section is somewhat more than a statute of limitations, as regards to time. Ordinarily, the statute of limitations in proceedings is a matter of defense, which may be pleaded or be waived. The above section, however, is a limitation upon the power of courts to try one for any offense less than a felony, unless the charge shall have been instituted within the year after the offense charged was committed.”
There is another statute however which, we think, nullifies the effect of § 43-1602 in this case when considered in connection with the facts set forth in the record. That statute is § 43-1604 and it reads:
“Nothing in the two preceding sections shall avail any person who shall flee from justice; and in all cases the time during which any defendant shall not have been a resident of this State, shall not constitute any part of the limitation prescribed in the preceding sections.” (Emphasis added.)
The petitioner states, as above noted, that he served four and one-half years in the Tennessee Penitentiary between 1952 and 1957. He here contends that during those intervening years he was a resident of Arkansas, and that therefore the three-year statute (§ 43-1602) continued to run during his imprisonment in Tennessee.
The pivotal issue therefore is the determination of what the legislature meant by the word “resident” as it is used in § 43-1604. Is its meaning similar to the word “domicile” or does it imply physical presence?
Petitioner apparently takes the position that, in this situation, “residence” is similar to “domicile” since he cites § 48 in 17A Am. Jur. under the heading “Domicil”. In § 1 of the above citation we find this explanation of the topic discussed:
“This article discusses the general principles relating to the nature and elements of domicil. . . .”
Petitioner also relies on the case of Metropolitan Life Insurance Company v. Jones, 192 Ark. 1145, 97 S. W. 2d 64, but that decision is not in point. That case construes C. & M. Digest § 6150 (Ark. Stats. § 66-516) which relates to the proper venue of a suit on an insurance policy.
We find no decision of this or any other Court exactly in point which construes a statute like the one here involved. There are, however, certain reasons and related decisions that lead us to conclude that the word “resident” as used in our statute refers to a person who is physically present in the state in the sense that petitioner would not be a resident of this State while he was incarcerated in Tennessee. It seems to us that any other interpretation would defeat the obvious purpose of the statute. Under the facts before us it cannot be said that it was the fault of this State that petitioner was not brought to trial within three years after he committed the crimes for which he was convicted. In the case of Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162, we construed Ark. Stats. § 43-1708 which requires,. generally, that a person indicted for a crime must be tried before two terms of court have elapsed. Pellegrini, who was in a Texas prison, sought relief under the above statute, and we said:
. . Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute. ’ ’
We further pointed out that “Pellegrini has a right to ask Arkansas to bring him here for trial. . . .’’In the above cited case, just as in the case under consideration, the State of Arkansas was not at fault in failing to prosecute the accused within the time allotted by the statutes. In a situation such as confronts us here, we think the rule set forth in C. J. S. is reasonable and realistic. In Yol. 54, under the heading of Limitations of Actions, sub-head Residence, § 212, at page 236, it is stated:
“In construing and applying statutes of the kind under consideration it has been held that ‘ residence ’ and ‘domicile’ are not convertible terms, and that the statute simply contemplates a residence of such permanency that, generally speaking, the person in question may be found in the state and served with ordinary legal process at any time.”
In the case of People v. Carman, 385 Ill. 23, 52 N. E. 2d 197, the Court construed an Illinois Statute of Limitations similar to our § 43-1604 above quoted. In that case the Court dwelled at length on the meaning of the word resident. Among other things the Court said:
“The word ‘resident’, when used as an adjective, as in this statute, is synonymous with the word ‘inhabiting’. Roget’s Int. Thesaurus. The Standard Dictionary also gives a further definition of the adjective, as having a residence or abiding in a place. When used as a noun, it is defined to mean a dweller, habitant or occupant; one who resides or dwells in a place for a period of more, or less, duration; it is distinguishable from the word inhabi tant only as implying less fixity or permanence of abode. When used as a nonn it signifies one having a residence; one who resides or abides. ‘Reside’ is there defined as abiding in a place; one who resides. It is a synonym of live, dwell, abide, sojourn, stay or lodge.”
Black’s Law Dictionary defines the word “reside” to mean: “Live, dwell, abide, sojourn, stay, remain, lodge.” It defines “residence” as “A factual place of abode. Living in a particular locality.”
From all we have heretofore said it is our conclusion that the petitioner was not a resident of Arkansas during the time he was a prisoner in Tennessee, and that, therefore, the Crittenden County Circuit Court had jurisdiction to try and convict him in 1958 for crimes committed in 1952 upon an information filed in 1957 as shown in the record.
Writ denied. If the petitioner desires to file a Petition for a Writ of Habeas Corpus in the Circuit Court, this Certiorari proceeding will not prejudice any rights he may have to do so, except as to any point foreclosed by this opinion.
Robinson and Johnson, JJ., dissent. | [
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Neill Bohlinger, Associate Justice.
This is an action brought by the appellee, Elizabeth E. Bransoum, against appellant, The Service Life Insurance Company, to recover a sum of money due Bobby L. Hamm, who is a member of the family of appellee and admittedly covered by the policy issued by the appellant.
Bobby L. Hamm was injured in an automobile accident on March 20, 1959 when the appellant’s policy was in full force and effect. Hamm was hospitalized and the appellant paid benefits under its policy for Hamm’s hospital confinement from March 21, 1959 to May 11,1959 and also from June 8, 1959 to June 23,1959.
After July 17, 1959, Hamm, the covered member, received additional hospitalization and medical care which appears to have been a continuation of his treatment for the injuries he received on March 20, 1959. It does not appear from the record before us that the treatment was not for injuries received in the March 1959 accident.
A monthly premium of $6.50 was due on the policy involved for the month beginning July 17, 1959 and appellee sent that amount to the company prior to July 17, 1959. The appellant deposited the check but forwarded its own check to the appellee in the amount of $6.50 and advised the appellee that it had elected not to renew the policy except on the condition of certain waivers. After July 17, 1959 Hamm received additional hospitalization but the appellant declined to make any payment therefor.
Appellee thereupon brought suit in the White County Circuit Court for the sum of $728.57, penalty and attorney’s fees, for the hospitalization received by Hamm after July 17, 1959.
The first point to be resolved is: Was tbe policy in full force and effect insofar as tbe claim for tbe later bospitalization is concerned? We conclude that it was.
In Harman v. American Casualty Company, 155 Fed. Supp. 612, the rule is stated as follows:
“A contract of insurance is an agreement to indemnify tbe insured against loss from contingencies wbicb may or may not occur. When tbe contingency arises, then and only then does tbe liability of tbe insurer become a contractual obligation [citing authorities]. There then remains no ‘risk’ wbicb could be tbe subject matter of insurance. Tbe contingency having occurred, there is nothing tbe insurer can unilaterally do to alter tbe policy with respect to a loss that is already in being. All that remains is tbe determination of tbe extent of tbe damage. ’ ’
In Clardy v. Universal Life Ins. Co., 229 Mo. App. 682, 79 S. W. 2d 509, there was a question about a cancellation of an insurance policy on an anniversary date and its effect upon a pending claim. In that connection tbe court stated:
“It is provided in clause 15 of tbe policy that cancellation on any anniversary date is without prejudice to any pending claim. Such, of course, would be the law even if not expressed in the clause.” [Emphasis added]
American Benefit Asso., v. Russell, Tex. Civ. App. (1954), 278 S. W. 2d 316, states:
“Tbe agreed statement of facts reveals that tbe illness resulting in tbe bospitalization of appellee during tbe months of January and February, 1953, originated April, 1952 when tbe policy of insurance issued by appellant was in full force and effect. Therefore, under tbe terms of tbe policy issued by appellant, it could not avoid liability for such hospital expenses by cancelling tbe policy December 1, 1952 as appellee’s illness and necessary confinement in tbe hospital on account of such illness originated during the term of the policy. Under the express provision of the policy as quoted hereinabove, the association was required to reimburse the insured for the actual hospital expense incurred by appellee on account of any sickness originating during any term of the policy. It also follows under the provisions of the policy, that since the association was liable for the period of disability in issue, it could not cancel the policy and thereby defeat liability.
The rule governing the issues on this appeal was promulgated by the Court of Civil Appeals in National Life & Accident Ins. Co. v. Dove, 167 S. W. 2d 257, 259, in the following language: ‘It follows that the * * * illness found by the court began prior to the cancellation of the policy, and, therefore, constituted a claim under the policy, and was of the nature plead by appellee.’ ”
We think the case of American Casualty Co. v. Horton, Tex. Civ. App. 1941, 152 S. W. 2d 395, states the law as applicable here:
“The defendant’s second proposition is that, because plaintiff only paid premium sufficient in amount to keep the policy alive for two months after the date of the accident, he was entitled to only two months’ indemnity, or $100. To this, we cannot agree. The policy being in full force and effect when plaintiff was accidentally injured, resulting in total disability, his cause of action immediately arose, and he was entitled to recover the full amount of indemnity provided, irrespective of whether or not the policy was kept alive by the subsequent payment of premium.”
And the case of Prescott v. Mutual Benefit Health & Accident Asso., 133 Fla. 510, 183 So. 311, is very much in point. In that ease the court said:
‘ ‘ Of course, the insurer could not avoid liability for a claim which had come into being under the terms of the policy by declining to accept renewal premiums tendered after the accrual of the claim. ’ ’
We therefore conclude that the rights of the appellee accrued at the time of the injury while the terms of the policy were in full force and effect. The cause of action arose immediately at that time and the insured was entitled to recover the full amount that was due him under the policy. The appellee asked for the sum of $728.57, penalty and attorney’s fees, and that amount does not appear to be contested. We find that the court was justified in making the award for those amounts.
It is true that the appellant contends that the policy expired prior to the July hospitalization but there is no showing made that this confinement was anything other than hospitalization which resulted from the March 1959 wreck.
Having determined that the appellee is entitled to recover, we do not deem it necessary to discuss the effect of appellant’s refusal to accept the premium tendered it prior to the July expiration date of the policy.
The judgment is affirmed.
McFaddin, J., concurs. | [
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George Rose Smith, J.
This is a suit by Skelton Motor Company to collect the balance due upon a promissory note given by the appellees, H. E. and Hilda Brown, in part payment for a truck. On an earlier appeal we held the note to be free from usury. 231 Ark. 801, 332 S. W. 2d 607. Upon remand the single question submitted to the jury was whether a novation agreement had substituted Lois Baskin and his wife for the Browns as obligors upon the note. The jury’s verdict was for the Browns, and judgment was entered in their favor. Skelton contends that for several reasons the verdict is not supported by substantial competent evidence.
The facts are simple. In purchasing the truck on February 23, 1957, the Browns executed a conditional sales contract for part of the unpaid purchase price. This contract was later assigned by Skelton to Mack Trucks, Inc. For the rest of the purchase price the Browns executed the $3,222.08 monthly installment note now in dispute. On the same day Skelton, for value, transferred this note to the First State Bank by an indorsement reciting that the transfer was with recourse.
In the fall of 1957 Brown proposed to sell the truck to Baskin. In connection with that transaction Brown and Baskin met with Keith Skelton, president of the appellant company, on November 16. Brown testified, and the jury must have believed, that Keith Skelton then agreed to release the Browns from liability on the note and to look only to Baskin and his wife for payment. Later that day Brown and the Baskins went to the bank, where the Baskins indorsed on the back of the note an agreement to assume its payment.
The Baskins failed to pay the monthly installments. On February 7, 1958, the appellant paid the note in full and took a reassignment from the bank. Mack Trucks repossessed the vehicle and applied its value to the debt evidenced by the conditional sales contract. In September of 1958 the appellant filed this action against the Browns, seeking to recover the amount it had been required to pay the bank pursuant to its indorsement with recourse.
At the trial the appellant contended that Brown should not be permitted to testify that Keith Skelton orally released the Browns from liability. It is again insisted here that this testimony violated the parol evidence rule in that it added to or varied the assumption agreement that the Baskins indorsed on the back of the note later that day.
This argument is unsound. The Browns, in addition to being directly liable to the bank, were contingently responsible to the appellant if it should be required to make good its indorsement by paying off the note. It cannot be doubted that the Browns and the Skelton Motor Company had the power to extinguish this contingent liability by oral agreement, under the rule that the parties to a written contract may rescind it in part or in its entirety by a subsequent oral agreement. Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, 225 S. W. 624. Keith Skelton’s agreement to substitute the Baskins for the Browns was complete in itself and would have been valid even if the Baskins had not gone to the bank and assumed the Browns’ direct obligation on the note. Consequently it cannot be said that the parol novation agreement added to or varied the subsequent written notation on the note. The two transactions were so completely separate that neither affected the other.
This reasoning also answers the appellant’s contention that the novation agreement was ineffective as a matter of law, it being insisted that the Skelton Motor Company was without power to discharge the direct debt to the bank. The answer to this argument is that Skelton’s release of the Browns was valid in itself and did not purport to affect the contractual relationship between the Browns and the bank.
A third contention is that the appellant became a holder in due course under its reassignment from the bank and therefore holds the note free from any defense that would have been unavailable against the bank. In paying the bank the appellant would ordinarily have reacquired its former rights against the Browns, Ark. Stats. 1947, § 68-252, but those rights had already been extinguished by the novation agreement. In fact, that was the sole purpose of the novation as far as Brown was concerned, for he had no reason to ask Skelton for a release of liability except to guard against the situation that would arise if Skelton should be compelled to pay off the bank. We perceive no basis for saying that the release agreement was ineffective. According to the appellant’s present argument if Brown had actually paid to the appellant the full amount due on the note the appellant could have taken that money to the bank, used t to pay the note off, and then collected from Brown a second time by claiming to be a holder in due course. Such an argument is demonstrably untenable.
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Ed. F. McFaddin, Associate Justice.
The appellee, National Wells Television, Inc., filed this action in the Garland Circuit Court against the appellant, Jack Tar of Arkansas, Inc., for amounts claimed due under the terms of a contract between the parties, dated October 15, 1955. Trial before the Circuit Court without a jury resulted in a judgment for the plaintiff; and this appeal ensued in which the appellant challenges the correctness of the Circuit Court judgment, raising four points, which will be consolidated and discussed.
The basic question is whether the appellee as a foreign corporation is barred from maintaining the present suit; and the Circuit Court answered the question in the negative. Three corporations are to be identified:
(1) Jack Tar of Arkansas, Inc. (hereinafter called “Jack Tar”) is and was at all times here involved an Arkansas corporation engaged in operating a motel in Hot Springs, Arkansas.
(2) Wells Television, Inc. (hereinafter called “New York Wells”) is and was at all times hereinafter mentioned a New York corporation that never qualified to do business in Arkansas.
(3) National Wells Television, Inc., (hereinafter called “National Wells”) is and was at all times here involved a Delaware corporation that qualified to do business in Arkansas on October 4, 1955, and has been domesticated since that date.
On February 9, 1955, New York Wells and Jack Tar entered into a contract whereby New York Wells was to install and maintain forty television sets on the premises of Jack Tar in Hot Springs, was to receive a specific rental per day for each such television, and the contract was to continue for five years. On September 9, 1955, negotiations began between New York Wells and Jack Tar for a modification of the contract. On October 15, 1955, New York Wells and Jack Tar agreed to mutually cancel their contract of February 9, 1955; and on the same day (October 15, 1955) National Wells and Jack Tar entered into a new contract concerning the forty television sets located in the Jack Tar Motel in Hot Springs, Arkansas. This contract was in the form of a letter, which we copy in full:
“NATIONAL WELLS TELEVISION, INC.
“October 15, 1955
“Jack Tar of Arkansas Inc.
856 Park Avenue
Hot Springs, Arkansas
“Attention: Mr. R. B. Ellis
‘ ‘ Gentlemen:
“This will confirm our understanding in regard to our installation of the R. C. A. Master Antenna System, together with 40 R. C. A. Victor 21” Television Sets.
“We will leave on the promises of the Jack Tar the Radio Corporation of America’s Master Antenna System together with 40 connecting outlets and the 40-21” RCA Victor Television receivers with matching stands. We will continue to bear all cost of maintenance and repair of both the Master Antenna System and the television sets. You are not to be held responsible for any loss or damage to our television sets or system.
“In consideration of the above, for a period of 56 months from the above date you will pay us at a rate of 40 cents per calendar day for each television set which we have installed in the Jack Tar Hotel. The Jack Tar Hotel agrees to make payments of such rent in monthly installments in advance, the first payment becoming due on the date above and subsequent payments becoming due at intervals of one month thereafter.
“If the hotel fails to pay any installment of rent within thirty (30) days after it becomes dne, or fails to perform all of the conditions on its part to be performed, Wells shall have the right to terminate this lease without notice and take immediate possession of and remove from the hotel the television sets, system and related equipment. The hotel hereby grants to Wells or its duly authorized representative, permission to enter the hotel for such purpose and agrees that Wells shall not be liable for any reasonable acts in the removal of such equipment. In any such event, and in addition to any unpaid rent accrued to the date of termination, the hotel shall remain liable for and shall promptly pay to Wells for liquidated damages and stipulated damages an amount equal to the rent reserved hereunder for the unexpired portion of the term, discounted at the rate of 4% per annum to the present worth, together with all expenses Wells may reasonably incur in connection with retaking of possession of said system, television sets and related equipment and collecting the sums due hereunder.
“This instrument contains the entire agreement between Jack Tar Hotel and Wells. The right of Wells at any time to require strict performance shall not be affected by any previous waiver or course of dealing.
“This agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, administrators, executors, successors and assigns.
“Very truly yours,
NATIONAL WELLS TELEVISION, INC.
/s/ Thomas A. Cronin
“ACCEPTED FOR:
JACK TAR OF ARKANSAS, INC.
/s/ R. B. ELLIS, Manager.”
It will be observed that by the said contract of October 15, 1955, the payments were to be on the basis of 40 cents per calendar day for each television, and the contract was to continue for 56 months from October 15, 1955. The officers of New York Wells and National Wells are the same, and the two corporations have the same office address. From time to time, National Wells wrote Jack Tar letters about the October 15,1955 contract; and some of the letters were written on stationery of New York Wells and signed by New York Wells. Jack Tar’s rental checks, in three instances, were payable to “Wells Television, Inc.”; and all the other checks were payable to “National Wells TV.” There can be very little doubt but that New York Wells and National Wells have interlocking directorates; but it must be remembered that National Wells has been domesticated in Arkansas ever since October 4, 1955.
In July of 1958 Jack Tar ceased making payments to National Wells and thereafter National Wells filed the present action against Jack Tar for the amounts due under the contract of October 15, 1955. For defense, Jack Tar claimed (inter alia) that National Wells was not the owner of the forty television sets; that neither New York Wells nor National Wells was authorized to do business in Arkansas when the original contract was made in February, 1955; that the instrument dated October 15, 1955 was an amendment to the original contract and was not a new contract; that National Wells was a mere assignee of the original New York Wells contract and that as such assignee National Wells could not maintain the action because of §64-1202 Ark. Stats. The case was submitted to the Circuit Court without a jury; the judgment of the Circuit Court was in favor of National Wells; and from that judgment Jack Tar prosecutes this appeal.
I. On this appeal, Jack Tar urges that there is no showing that National Wells owned the forty television sets when the contract was signed on October 15, 1955; but we consider this point as immaterial to the real issue, which is next to be discussed. On October 15, 1955, Jack Tar signed a rental contract with National Wells for the forty television sets, and still had them at the time of the trial from whence comes this appeal. Whether we view this contract between National Wells and Jack Tar as a bailment or a sale, the end result is the same.
In Estes v. Boothe, 20 Ark. 583, we held that in an action by a bailor against a bailee it was no defense for the bailee to assert title in some third party while the bailee still held the property. In 6 C. J. 1108, “Bailments ” § 37, the rule is stated:
‘ ‘ The more generally accepted rule is that the bailee may not deny the title of the bailor, either by claiming title in himself, or by alleging title in another, subject, however, to the exceptions that the bailee may show as against the claim of the bailor that he has been deprived of the property by process of law or has yielded possession to one having paramount title, or that he is defending on the title and right and by the authority of a third person.”
None of these exceptions were shown by Jack Tar in this case, and so Jack Tar is in no position to question the title of National Wells.
If we view the contract between National Wells and Jack Tar as a sale, then the case of Sumner v. Gray, 4 Ark. 467, is conclusive against Jack Tar; because we there held that the vendee of personal property, while he remains in possession and has not been evicted by a paramount title, cannot defend against an action for the purchase price on the ground that the vendor had no title. This holding was emphasized in Seaborn v. Sutherland, 17 Ark. 603: “It would be unjust to permit the vendee to retain possession and enjoy the benefit of the property, and put his vendor at defiance.”
In short, we find no merit in appellant’s argument as to which corporation owned the equipment involved in the suit. (Mr. Cronin, the Vice-President of both corporations, testified that the transfer was made between the two corporations.) Appellant executed the contract with National Wells without questioning its ownership of the equipment, and appellant operated under the terms of the contract for approximately three years. It cannot now obtain relief from its obligation by making this belated claim.
II. The other points urged by Jack Tar on this appeal relate to the legal right of National Wells to maintain this action in view of §64-1202 Ark. Stats., which provides that any foreign corporation which shall fail to domesticate in Arkansas and shall do business in this State shall not only be subject to a fine but also, “any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can be enforced by it either in law or in equity, and the complying with the provisions of this act after the date of any such contract, or after any suit is instituted thereon, shall in no way validate said contract.” In Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S. W. 785, the question was whether the plain tiff, as a foreign corporation, conld recover on a contract, and we said:
“The test to determine whether the plaintiff is entitled to recover in an action like this, or not, is his ability to establish his case without any aid from the illegal transaction. If his right to recover depends on the contract which is prohibited by statute, and that contract must necessarily be proved to make out his case, there can be no recovery.”
Applying that test to the case at bar, it is apparent that in order to recover National Wells must claim exclusively under some contract, complete in itself, and dated after October 4, 1955, when National Wells domesticated in Arkansas. With this in mind, we turn to the contract dated October 15, 1955, between National Wells and Jack Tar. It has been previously copied in extenso. It contains, in itself, a complete contract between National Wells and Jack Tar, and unilateral expressions in subsequent letters did not have the effect of varying the contract. The previous contract between New York Wells and Jack Tar was not void. It was merely unenforceable in the courts of the State, but it could and did provide the basis for future negotiations. Waxahachie Medicine Co. v. Daly, 122 Ark. 451, 183 S. W. 741. Evidently National Wells recognized some time after February, 1955, that New York Wells had entered into a contract in Arkansas without domesticating; so National Wells domesticated on October 4, 1955, and the original Jack Tar contract was cancelled by mutual consent and the new contract of October 15, 1955 was entered into. It is complete in itself. It concerns the forty television sets in the Jack Tar Motel; provides that the rate of pay is 40 cents per calendar day beginning on October 15, 1955; that the payment is to be monthly in advance; and that the contract is to run for fifty-six months. Jack Tar made payments under that contract from October, 1955, until some time in 1958; and then, at that late date, decided to claim that the contract could not be enforced because of § 64-1202 Ark. Stats. We find no merit in such claim. The contract here sued on was entered into after October 4, 1955, the date of domestication; and this fulfills the statutory-requirement. Affirmed.
Harris, C. J., dissents.
Webster’s Third New International Dictionary has this definition of motel: “A hotel for automobile tourists.”
Webster’s Third New International Dictionary defines “interlocking directorate” as “A directorate linked with that of another corporation by interlocking directors so that the businesses managed by them are to some degree under one control.”
The history of § 64-1202 Aik. Stats, is extremely interesting. By Act No. 216 of 1901, the Legislature of Arkansas provided that no undomesticated foreign corporation “shall be authorized to sue on any contract made in this Stats.” In Woolfort v. Dixie Cotton Oil Co., 77 Ark. 203, 91 S. W. 306, it was held that a foreign corporation might recover on a contract mads in this State, even though the foreign corporation did not domesticate until after the commencement of the suit. By Act 313 of 1907 fknown as “The Wingo Act”), it was provided that domesticating after the suit was filed would not allow the suit to be maintained on the contract. That Act was construed in Watkins Medical Co. v. Mosley, 139 Ark. 294, 213 S. W. 385, and it was held that if the foreign corporation domesticated before it brought suit, it could still sue on the contract, even though made before the corporation domesticated. Then, by Act 687 of 1919, the statute was further amended to read as we now have it in § 64-1202 Ark. Stats., i.e., “. . . and the complying with the provision of this act after the date of such contract, or after any suit is instituted thereon, shall in no way validate said contract.” (Emphasis contained in original act.) These changes are discussed in an annotation in 75 A.L.R. 455. | [
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Carleton Harris, Chief Justice.
The Arkansas State Highway Commission, appellant herein, filed an eminent domain action in the Pulaski County Circuit. Court against certain land located in Pulaski County, for the purpose of acquiring right-of-way needed for Interstate Highway No. 40. Since an issue as to the ownership of the property was raised, the cause was transferred to the Pulaski County Chancery Court, where ownership of the land, consisting of one-half block in the Sandefur. and Waters Addition to the city of North Little Rock, was resolved in favor of Catherine Elliott,, .appellee herein. The case between the Department and Mrs. Elliott then proceeded to trial on the sole question of compensation due Mrs. Elliott for the property which had been taken. At the conclusion of the testimony, the Pulaski Chancery Court entered a decree finding that Mrs. Elliott should have judgment in the amount of $5,000, plus interest on the amount of $2,875, at the rate of six per cent (6%) per annum from July 24, 1959, until paid. Prom this decree, appellant brings this appeal. It is asserted by the Highway Department that there was no admissible evidence presented to support a larger judgment than $2,125, and the Court’s finding that Mrs. Elliott was due $5,000 is against the preponderance of the evidence.
The central argument in the brief relates to the evidence of Jimmy Green, owner of the North Little Rock House Wrecking Company. Mr. Green testified that he had been buying, selling, and moving houses for approximately ten years. He stated that he had been familiar with the Elliott property for several years, and that in 1957, he had viewed the property with the thought of purchasing it. The witness testified that he made an offer to purchase same in the amount of $5,000. His letter, dated March 11,1957, and directed to Mrs. Elliott, was offered in evidence over the objections of appellant. The letter advised appellee as follows:
“As you know, I would like to have the whole block. I have now acquired two very good houses, one a five room and the other a six room house, and of course, I have to move both, and since you have been to quite a bit of expense moving the old house from this property and having the land leveled and partially landscaped, I will make you one more offer as follows: I will pay you $5,000.00 for the entire half block, $2,000.00 in cash and the balance of $3,000.00 at so much per month to be agreed on at time of sale.
If this offer is acceptable to you will you please let me know by return mail, or telephone, as I only have 30 days in which to find a location and move these houses. ’ ’ Green testified there was no improvement on the land at the time he made the offer, and that he contemplated placing four houses on the property, which would be re-sold. He also testified that he knew there was gravel on the property, and that he could see outcroppings close to the surface. Green stated that he owned dump trucks and loading machines, and could obtain around $15 for a load of gravel (about five yards to a load); that it would cost him about $1.00 to load the gravel, and no more than $2 or $3 to haul the load, since he contemplated short hauls to improvements being built in the community. The witness’ did not estimate the amount of gravel that could be obtained, other than to indicate there was enough- to prevent his losing any money on the $5,000 purchase price. “There’s lots of building going on right in that vicinity. Within a mile, mile and a half, and with my dump truck and loading machines, it’s close to my office and all, I could haul gravel. I mean where there is building going on there’s always a sale for gravel.” Appellant objected to all of this testimony as improper in reaching the fair market value of the land in litigation. When asked the highest and best use for the property before the condemnation, Green replied:
“To my honest opinion, either way. It is awful good as close in to town as that is, close to Lakewood, as far as putting housing in there. To my opinion, the city is growing out and it would be a fine location for houses or either if it was enough demand there a man could start cutting gravel 'there. ”
Subsequently, he stated that the highest and best use would be for homesites.
We are definitely of the opinion that the Court erred in admitting the letter. This is really a case of first impression. In only one Arkansas case, Jonesboro, Lake City & Eastern Railroad Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548, has this type of evidence been mentioned, and a determination of the admissibility of same being unnecessary to a determination of that lawsuit, the Court passed over the question, saying:
“It is unnecessary for us to enter into any discussion of the law as to when or under what circumstances proof of offers to purchase land at stated prices may, if at all, be considered in estimating value, but it must be conceded that an isolated statement of a witness as to an offer without showing under what circumstances the offer was made, is not of itself competent testimony to establish value.”
The great weight of authority is to the effect that such evidence is inadmissible. In 7 ALR. 2d 785, we find:
“In by far the greater number of the cases, particular evidence showing that a purchase offer of a certain amount has been made or received for the real property in question, or for a similar parcel of property, has been considered to be inadmissible upon the issue of the market value of the property in question. While the rulings have varied somewhat as to the grounds for the exclusion of such evidence, and sometimes have been affected by the particular method by which the offer was shown or sought to be shown, the rather general import of this group of cases is that ordinarily an unaccepted offer for the purchase of real property is not admissible as evidence of the market value of such real property. ’ ’
A number of cases are cited supporting the majority view, including cases wherein the testimony relative to the offer of purchase was given by the person who actually made the offer. There are a few states which admit this evidence to some extent, primarily Illinois, but even there, the admission of the evidence is somewhat limited. The rule in that state under which offers to purchase may be introduced is succinctly set forth in the case of City of Chicago v. Harrison-Halsted Building Corporation, 143 N. E. 2d 40.
“The offer must be made in good faith, by a man of good judgment, acquainted with the value of the real estate and of sufficient ability to pay. It must be for cash and not for credit or in exchange and it must be determined whether made with reference to the fair cash market value of the property or to supply a particular need or fancy. Private offers can be multiplied to any extent, for the purpose of the cause, and the bad faith in which they were made would be difficult to prove. The reception of this kind of evidence stands upon an entirely different footing from evidence of actual sales between individuals or by public auction. * * * The burden is upon the party seeking to have such evidence admitted to establish a sufficient foundation by showing that the offer was bona fide, for cash, and made by a person able to comply with the offer if it were accepted. The offer sought to be introduced shows on its face that it-was not for cash as required by the rule but for partly cash and the balance payable in monthly terms. The trial court did not abuse its discretion in excluding this evidence from the jury.” It is apparent that even.under the Illinois rule, Green’s offer to purchase would not be admissible. In the first place, it was not a cash offer, but rather, involved only the payment of $2,000 in cash, with the balance of $3,000 to be paid in monthly payments. It also appears that Green’s offer was based on a particular need that would not be applicable to the average buyer. At any rate, we hold that the evidence of an offer to purchase is not admissible to establish the fair market value of particular property.
But, says appellee, even excluding the letter, and Green’s testimony relative to the purchase offer, the testimony is still sufficient to justify the amount awarded in the judgment. It is contended that Green, as a qualified lay witness justified his appraisal; that his testimony established the property was worth $5,000, either for homesites or because of the value of the gravel. We do not agree. Green did not claim to have knowledge of the fair market value of real estate in the neighborhood of the Elliott property. He had not bought nor sold property in the area, and he apparently was not familiar with prior sales. He, of course, did not live in the community, and his knowledge of the property seemed to be confined to passing it each day, along with a casual examination of the soil. In Housing Authority of Little Rock, Arkansas v. Winston, 226 Ark. 1037, 295 S. W. 2d 621, lay testimony was admitted where the witnesses stated they were acquainted with the general market value of the property in the area, and explained the basis for their opinions. In numerous other cases, qualified laymen have been permitted to give their opinions, but Green’s knowledge of the area does not appear to meet the established requirements of a qualified lay witness, and his testimony does not meet the test. As to his evidence in regard to the gravel, it, too, falls short in reaching the market value of the property. Kenneth Schuck, a consultant civil engineer, testifying on behalf of appellee, estimated that the property contained 30,000 yards of gravel that would be desirable in the construction industry; he stated that this gravel was comparable to gravel for which a prior employer of the witness had paid 15 cents per cubic yard.
There is no competent evidence in the record relating to the value of the land for gravel development. The rule is well established that one cannot take the yardage of mineral deposits in property, multiply it by unit price, and thereby arrive at the market value of a tract, in an eminent domain action. In Nichols on Eminent Domain (Third Edition), Vol. 4, § 13.22, p. 243, we find:
“The rule is widely prevalent in this country that the existence of mineral deposits in or on land is an element to be considered in determining the market value of such land. Also as in the case of vegetable growths, the rule has been correlatively stated that the value of such mineral deposits cannot be separately determined independently of the land of which it is a part. It cannot be considered as so much potential merchandise to be evaluated as such. The land taken must be valued as land with the factor of mineral deposits given due consideration. In determining. the just compensation to be paid to the owner it is not permissible to aggregate the value of the land and the value of the deposit. Thus, the value of land as stone land suitable for quarrying— but not the value of the stone separate from the land- — is a proper subject of consideration both by the witnesses and the jury in fixing the amount of just compensation to be awarded.”
As was stated in Arkansas State Highway Commission v. Cochran, 230 Ark. 881, 327 S. W. 2d 733, “As a general rule, the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral it contains and then multiplying that estimate by a fixed price per' unit.”
The Highway Commission offered the testimony of Walker Watson, real estate appraiser, and Zack Mash-burn, appraiser for the Commission, who had appraised the Elliott property. Each of these witnesses testified that the highest and best'use of the property was for residential purposes, and, based on comparable sales, the condition of the sub-division, and the possible subdivision development in the area, Watson stated the fair market value of the property, prior to the date of taking, was $2,125. Mashburn gave the figure of $2,000. Russell Newsom, civil engineer in the materials and tests division of the Arkansas State Highway Department, testified that he had viewed the property, and the gravel referred to was “clay gravel” rather than “sand gravel”, and was not select material. He stated that the Highway Department would not use this type of gravel in highway construction, because it was below the required grade. The witness further testified that it had no special value for other commercial purposes, though he admitted it could possibly be utilized in some undertakings. He also stated that he had never made a test on this particular property, and his acquaintance with it was limited to visual examination. In reply to the question on cross-examination, “So by test you don’t know whether this meets the standards or not?”, Newsom replied, “Not positively, but I’m willing to stick my neck out and say it would not.”
We do not feel that the proof in this case has been developed to the extent that we can really determine whether the amount awarded in the judgment was proper for the taking of the property. Of course, a land owner is entitled to be paid for the market value of his property in its highest and best use, but we are unable to ascertain from this record the highest and best use that could have been made of the Elliott land before the taking by the Department, i.e., we cannot determine whether it was more valuable for residential purposes or as a source of commercial gravel. The Department presented two witnesses who gave their opinions as to the value of the property for residential purposes. Watson stated that he found six or seven sales in the addition, but described only two; Mashburn mentioned three sales, but testified to only one, and this was one of the two described by Watson. The Department presented no testimony in regard to the value of the lands as a gravel source, and as shown by the quoted testimony of Mr. Newsom, made no tests whatsoever. Appellee’s testimony was insufficient in both respects. While normally, we determine chancery cases on the record before us, this Court will occasionally remand a case for further development. As stated in Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337:
“While ordinarily, Chancery cases are decided upon the record before us, we have, on several occasions, remanded where it appeared that in the interest of justice, the cause should be more fully developed. Car lile v. Corrigan, 83 Ark. 136, 103 S. W. 620. The record leaves unanswered possible pertinent questions, * * *."
See also Mabrey v. Millman, 208 Ark. 289, 186 S. W. 2d 28, and Hymes v. Bickford, 208 Ark. 688, 187 S. W. 2d .542, where we reversed, and remanded for the purpose of permitting the proof to be more fully developed in the trial court.
Accordingly, the decree is reversed, and the cause remanded with directions to permit both appellant and appellee to offer further proof of the market value of the property here in litigation, '• relative to its highest and best use.
It is so ordered.
Johnson, J., dissents;. Bohlinger, J., not participating.
The Commission had filed the suit and its Declaration of Taking on July 24,1959, and had deposited the sum of $2,125 as estimated just compensation for the property. | [
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Jim Johnson, Associate Justice.
Appellant prosecutes this appeal from a conviction of grand larceny. She raises two points on appeal:
(1) The court erred in failing to direct a verdict in her favor.
(2) A mistrial should have been granted because of her interrogation as to previous arrests.
Without engaging in an extended discussion of the evidence, we are of the opinion that there was sufficient evidence to warrant submission of the issue of appellant’s guilt or innocence. Suffice it to say that there was testimony to the effect that defendant was in the company of two thieves who were shoplifting at the time and that one of the thieves put some stolen merchandise into a box which was being supported on the knees of the defendant. This testimony was sufficient to make a jury question as to whether the defendant was knowingly aiding and abetting the two thieves.
Appellant’s second point must be rejected because she did not request a mistrial in the two instances wherein she was interrogated as to previous arrests. Her counsel merely objected to the questions, the objections were sustained and the court admonished the jury not to consider such questions. It is fundamental that an appellant cannot complain of such an alleged error unless (1) he makes some request of the court; (2) the court refuses the request; (3) appellant saves his exceptions to the court’s ruling; and (4) preserves the point in a motion for a new trial. Freyaldenhoven v. State, 217 Ark. 484, 231 S. W. 2d 121.
Affirmed. | [
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Jim Johnson, Associate Justice.
This case is before us for the second time. On the first appeal, Armstrong v. Lloyd, 230 Ark. 226, 321 S. W. 2d 380, we reversed the trial court for having sustained a demurrer to appel lants’ 'Complaint. After that reversal, the ease was tried to a jury resulting in a verdict for the defendant.
Appellant prosecutes the present appeal contending that the trial court erred in: 1. Befusing to excuse the juror Alpuente for cause; and 2. In refusing to require-defense counsel to disclose the name of any liability insurance company which had issued any indemnity policy to the defendants.
The record reveals that the juror Alpuente stated that he was acquainted with some of the defendants and members of their families. He further stated that he had previously done business with one of the defendants and that in view of these circumstances he would find it embarrassing to return a verdict against the defendants. This statement was subsequently modified by the tales-man when he stated that he could disregard his previous association in dealings with the defendant and try the case wholly and solely upon the evidence adduced from the witness stand and the law as charged by the court and render a fair and impartial verdict. In this state of the record, the trial court in the exercise of its sound discretion held the juror to be qualified. The trial court had an opportunity not given to us, i. e., to see and hear the talesman, to observe his manner and demeanor and thereby was enabled to form a much more intelligent opinion about the impartiality of the juror than we can form by relying upon the cold printed page. While acknowledging it to be the better practice to excuse all talesmen who give any hint or intimation that they ever entertained any preconceived feelings or opinion which would cause them to lean one way or the other, we cannot say in the instant case that the trial court abused its discretion. Hence, appellants’ first point must be rejected.
Point number 2 has given us most serious concern. It is a question which has never been presented to this Court. There are many cases deciding questions which were closely akin to the one in the case at bar but none of such cases may be said to be a precedent on the precise question here. It has long been'the rule that plaintiff’s counsel is entitled to certain information with reference to the connections of prospective jurors with liability-carriers who would bear the ultimate brunt of any verdict adverse to the defendants. However, in the enunciation of this rule, this Court has steadfastly stated that unless the matter of insurance coverage was relevant to some issue in the case on trial, it should not be gratuitously injected for the purpose of unnecessarily advising the jury of the fact of such coverage thereby possibly prejudicing them in their determination of the case. In the application of the foregoing rules, we have said that the connection of the talesman with particular carriers should be developed by general questions not calculated to advise the jurors that any particular company had issued coverage in the case on trial. Delong v. Green, 229 Ark. 100, 313 S. W. 2d 370. In the Delong case, supra, it was plainly implied that counsel might require a prospective juror to answer as to the names of any and all liability carriers with which he might be connected. It is immediately obvious that such an inquiry would be futile if plaintiff’s counsel did not know the name of the carrier involved for it would make no difference what information he might receive from the prospective juror unless he could weigh such information in the light of known facts as to the identify of the carrier involved. Therefore, it would seem that it is proper for the trial judge, out of the hearing of the jury, to order defense counsel to identify by name any liability or casualty carrier having any ultimate responsibility in connection with the case. The only alternative to this rule would be to allow plaintiff’s counsel to inquire of any talesman who answered that he was connected with liability carriers as to whether or not such talesman represented a company who wrote the liability coverage in the case on trial. Of course, such an inquiry would immediately advise the jury that there was liability coverage in the case. It would seem more consonant with our previous holdings to require defense counsel to give this information out of the hearing of the jury than to nullify the salutary safeguards presently surrounding insurance carriers in these cases by allowing direct questions which necessarily and by their very terms advise of the existence of liability coverage.
While this question is new to this jurisdiction, it has been before the court of our sister State of Missouri on at least two previous occasions in the cases of: Hill v. Jackson, Mo. App., 272 S. W. 105; White v. Teague, 353 Mo. 247, 182 S. W. 2d 288. The holding of these cases has been summarized in 21 Ins. Law and Practice, Appleman, § 12815, P. 499, wherein it is said:
“Missouri has stated in this connection that it is the defendant’s duty to state the true facts to the court, so that such interrogation can be made. Thus the court may require the defendant’s attorneys, out of the presence of the jury, to give the name of the liability insuror, and permit the plaintiff’s attorneys to ask the jurors concerning their connection with such company.” (Emphasis supplied.)
While our case of Delong v. Green, supra, would preclude an interrogation of the talesman as to their connection with a particular company, as previously observed herein, the same result could he obtained by compelling the disclosure of the name of the carrier out of the presence of the jury and then allowing counsel to require the talesman to give the names of all carriers with whom they might be connected. With this information, counsel could then intelligently exercise the challenges to which the plaintiff is entitled under the law. Without all of this information, it would be impossible to make an intelligent determination as to the exercise of these challenges. It should be borne in mind that the right of the plaintiff to information enabling an intelligent exercise of challenge is equal to and on the same plane with the right of the defendant to prevent a gratuitous injection of the issue of insurance. The rule herein-above announced seems to us to protect and preserve the rights of plaintiff and defendant alike. It is no answer to the question to say that an attorney should not be compelled to disclose the name of his insurance-carrier client on the ground of attorney-client privilege. This is made abundantly clear by the following statement from 58 Am. Jur., Witnesses § 507, P. 285:
‘' The rule making communications between attorney and client privileged from disclosure does not ordinarily apply where the inquiry is confined to the fact of the attorney’s employment, the name of the person employing him, and the terms of the employment. The privilege presupposes the relationship of client and attorney and therefore does not attach to its creation.” (Emphasis supplied.)
For the reasons stated, the case must be reversed and the cause remanded for a new trial. | [
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Sam Robinson, Associate Justice.
Appellant, Moore Edwards, and J. L. Williams were opposing candidates for the office of Committeeman of the Democratic Party for Cypress Township, Faulkner County, in the Democratic primary held July 26, 1960. They each received 64 votes. Williams was the incumbent committeeman and accordingly would hold office until his successor was certified as being elected.
Edwards filed this suit to contest the outcome of the election alleging that certain illegal votes were cast for Williams. A pleading designated “Answer and Cross Complaint” was filed by Williams denying the allegations of the Complaint and alleging that certain illegal votes were cast for Edwards. Appellant filed a motion to dismiss the so-called “Cross Complaint” because the pleading was not verified. The trial Court overruled the motion and appellant has made the Court’s action in that respect one of his points on appeal.
Ark. Stats. 3-245 requires that the Complaint in an action of this kind be verified. There is no requirement for verification of the Answer. Although the document in question is styled “Answer and Cross Complaint” it is nothing more than an Answer asserting defenses to the Complaint. McLain v. Fish, 159 Ark. 199, 251 S. W. 686, is directly in point. There the Court said: “Appellant filed a motion to strike out the affirmative allegations of the answer with respect to charges of illegal voting, on the ground that these allegations constituted a cross-complaint, and that such an attack could not be filed except within ten days after the date of the certificate of nomination, and must be supported by the affidavits of ten qualified electors. The court overruled the motion, and appellant saved his exceptions. ... A contestee, for the purpose of raising issues of fact concerning the true result of an election, may present new matter without being required to comply with the statute with respect to the time and manner of instituting the contest. Our conclusion is therefore that the point made by appellant cannot be sustained.”
The parties stipulated in the trial court that appellant, Edwards, challenged only seven votes cast for appellee, Williams, and that Williams challenged only five votes cast for Edwards. After considering all the evidence, the trial court ruled that appellant received 58 valid votes and appellee received 61 such votes. On appeal appellant argues that the trial court erred in holding invalid the. votes of Donnell Russell, Mrs. Donnell Russell, James Bradley, Mrs. James Bradley, Mrs. E. R. Wilson and Mrs. Alvin Tanner and that the Court erred in holding valid the vote of Edna Louise Wilson.
The trial court found that Mr. and Mrs. Donnell Russell were not residents of Faulkner County at the time of the election held on July 26, 1960; that the Russells had moved from Faulkner County on June 3rd or 4th. Mr. Russell was asked: “Q: How long have you been in Little Rock? Since about the 4th of June? A: Yes. The 4th of June is when we moved in.” It is clear from Russell’s testimony that he moved to Little Rock in Pulaski County on June 4th and that he and his wife were not residents of Faulkner County at the time of the election.
In Wilson v. Luck, 203 Ark. 377, 156 S. W. 2d 795, the Court said: “Section 1, of art. Ill, of the Constitution, prescribing the qualifications of electors, requires that the elector ‘has resided in the state twelve months, and in the county six months, and in the voting precinct or ward one month, next preceding any election, where he may propose to vote, , . .’ If he has thus resided, then he (and, now, she, also) ‘shall be entitled to vote at all elections by the people. ’ This requirement, as to residence, is, of course, mandatory, and requires the elector to vote in the precinct or ward in which he had resided for one month next preceding the election, and not elsewhere. No consideration of the convenience of the elector or any practice in which he may have been permitted to indulge can abrogate and render nugatory this mandatory provision of the constitution.”
Next appellant contends that the trial court erred in holding that Mr. and Mrs. James Bradley and Mrs. Alvin Tanner were ineligible to vote in the Democratic primary. Ark. Stats. 3-256 provides: “All violations of this act shall be misdemeanors and shall be punished by fine of not less than one hundred dollars [$100.00] nor more than five hundred dollars [$500.00], and by imprisonment in the county jail for not less than thirty [30] days nor more than twelve [12] months. The following shall be deemed misdemeanors for the violation of this act, to wit: . . . (c) Casting a vote in a primary of a party to which the voter does not adhere or affiliate; provided, this does not apply to any one in good faith abandoning previous political affiliations.”
There is substantial evidence, in fact the preponderance of the evidence shows that Mr. and Mrs. Bradley did not affiliate or adhere to the Democratic party within the meaning of the statute. Mr. Bradley testified that he is neither a Democrat nor a Republican; that he is classified as an independent and in referring to his wife he stated: “She is just like I am.” He was selected as an election official by the Republican party and served as such, but stated that he would have served if he had been requested by the Democrats.
The evidence is not so strong as to the party affiliation of Mrs. Alvin Tanner, but she served as an election official, having been selected as such by the Republicans. She testified, however, that this was subsequent to the Democratic primary. Even if we should hold that Mrs. Tanner was qualified to vote in the Democratic primary it would not help appellant, because he would then have only 59 votes, whereas appellee received 61 valid votes.
Mrs. E. R. Wilson is an invalid and uses a wheel chair. She was brought to the polls in an automobile and driven to a point near the front porch of the voting-place, remaining in the car. One of the judges took a ballot to her and she marked it. The judge then returned to the inside of the voting place and placed the ballot in the ballot box. The trial court held Mrs. Wilson’s vote to be invalid. Ark. Stats. 3-834 provides: “No person shall be permitted to carry a ballot outside of the polling place.” Crawford v. Harmon, 149 Ark. 343, 232 S. W. 427, is controlling. There the Court said: “The facts were that J. P. Locke, a qualified elector, was sick at his home a short distance from the polling place, and one of the election judges went to Mr. Locke’s home and received the ballot and took it back to the voting place and deposited it in the box. It does not appear that this was done with any fraudulent design, but with an honest purpose on the part of the judges to permit the sick man to cast his ballot. The court properly threw out this ballot as having been illegally cast, but it afforded no ground for discarding the whole vote of the precinct.”
Appellant challenged the vote of Miss Edna Louise Wilson on the ground that she was not 21 years of age at the time of the election. Although there was evidence, to the effect that Miss Wilson was not 21 years of age until August 19, 1960, there is substantial evidence to the effect that she reached that age on July 19, 1960. Her mother testified to that effect and produced a leaf from the family Bible showing that July 19 was Miss Wilson’s correct birthday.
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Ed. F. McFaddin, Associate Justice.
The question posed is whether the appellee was entitled to judgment on the indemnity bond signed by appellant. In January 1955, Kelly Engineering Company (hereinafter called “Kelly”), entered into a contract with Flake, et al. (hereinafter called “Wallace”), by the terms of which contract Kelly agreed to furnish the materials and labor to completely air-condition the Wallace Building in Little Rock. The contract between Kelly and Wallace contained two paragraphs here germane. They are:
“Art. 21. Bond. The contractor shall, at owner’s expense, provide a bond, in the amount of $100,000.00 with an approved Surety Company as surety, to the approval of the Owner, for the faithful performance of the contract, and also for the use and benefit of all parties who may become entitled to liens, under said contract. This Bond shall remain in force for and until one (1) year after the completion of the work, and acceptance of same by the Engineer and Owner. This bond shall also cover the payment to the Owner of any damage on account of failure of the Contractor to complete the work at the time specified in the agreement. * * *
“Art. 26. Guarantees. Before signing contract owner shall require Contractor to furnish bond satisfactory to Owner and covering the latter’s faithful performance of the contract and the payment of all debts and obligations resting upon Contractor thereunder.”
Kelly tendered to Wallace, who accepted it, the bond hereinafter copied, signed by appellant, Employers ’ Liability Assurance Corporation, Ltd. (hereinafter called “Insurance Company”). Appellee, A. W. Johnson Company (hereinafter called “Johnson”), furnished materials and supplies to Kelly which were used in air-conditioning the Wallace Building; and when Kelly failed to pay in full for such items, Johnson instituted the present action, on the bond, against the Insurance Company, as sole defendant, for the amount due by Kelly to Johnson, The Insurance Company denied liability. Trial to the Circuit Judge without a jury resulted in judgment for Johnson and this appeal ensued in which are presented, inter alia, the matters now discussed.
I. Provisions Of The Bond. The first and vital matter is the wording of the bond which the Insurance Company signed and on which Johnson sought to recover. Omitting only signatures, it reads:
“Know all Men by these Presents:
“That we KELLY ENGINEERING SERVICE, a partnership composed of E. W. Kelly and Bill Kelly, 922 Main Street, Little Rock, Arkansas, of Little Rock, Arkansas (sic) (hereinafter called the Principal), as Principal, and THE EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, LIMITED, with its chief office in the City of Boston, Massachusetts (hereinafter called the Surety), as surety, are held and firmly bound unto LEON FLAKE, OSCAR F. KOCHTITZKY, JR. and MARTHA LOUISE KEATON of Exchange Building, Little Rock, Arkansas (hereinafter called the Obligee) in the penal sum of - One Hundred Thousand and no/100 - Dollars ($100,000.00) (which sum is hereby agreed to be the maximum liability hereunder), lawful money of the United States of America, well and truly to be paid, and for the payment- of which we and each of us hereby bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
“Whereas, said Principal has entered into a certain contract in writing, bearing date January 17, 1955, with the said Obligee for the furnishing and installation of air conditioning system in the Wallace Building, 105 Main Street, Little Rock, Arkansas, in accordance with plans and specifications prepared by Pettit & Pettit, Engineers, Little Rock, Arkansas, a copy of which is or may be attached hereto, and is hereby referred to and made a part hereof.
“Now, Therefore, the condition of this instrument Is such that if the Principal indemnifies the Obligee against loss or damage directly arising by reason of the failure of the Principal faithfully to perform the above mentioned contract, then this instrument shall be null and void; otherwise it shall remain in full force and effect.
“IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and affixed their seals at Little Rock, Arkansas this 18th day of January 1955.”
We point out the great difference between the provisions of the contract and the provisions of the bond. The contract provided in Article 21 that Kelly would make a bond “for the faithful performance of the contract, and also for the use and benefit of all parties who may become entitled to liens, under said contract.” If the Insurance Company had signed a bond with such, provisions in it (i. e., for performance and third party beneficiaries), like the contract stated, then clearly Johnson could have maintained an action on the said bond under such cases as Trinity Universal Ins. Co. v. Willbanks, 201 Ark. 386, 144 S. W. 2d 1092; H. B. Deal & Co. v. Marlin, 209 Ark. 967, 193 S. W. 2d 315; and H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S. W. 2d 855.
The bond signed by the Insurance Company in this case is not a performance bond as in the cases last cited above: instead, it is a mere indemnity bond saying that the surety shall indemnify “the Obligee against loss or damage directly arising by reason of the failure of the Principal faithfully to perform the above mentioned contract.” The distinction between a performance bond and an indemnity bond is well recognized. In 9 Am. Jur. 64, “Building and Construction Contracts” § 98, the holdings are summarized in this language:
“No right of action exists in favor of a materialman or laborer against the surety on a private contractor’s bond conditioned merely to indemnify and save harmless the owner from any pecuniary loss resulting from the breach of any of the terms of the contract between; the-contractor and the owner, since such bond is not intended for the benefit or protection of the third parties, but merely to indemnify the owner.”
In Pine Bluff Lodge v. Sanders, 86 Ark. 291, 111 S. W. 255, we recognized this well known distinction between performance bonds and indemnity bonds in this language :
“The bond in the present case- was not given to; secure the payment of material furnished to the contractor to be used in the construction of the building, but was; given to indemnify and save harmless appellant from any breach of the contract on the part of the principal contractor. It was in no wise intended to benefit or to-protect the materialmen, and no right of action thereon exists in their favor.”
Appellee argues that the bond signed by the Insurance Company incorporated the contract by reference-. That contention is true. But such incorporation did not bind the Insurance Company beyond the terms of its signed agreement, because incorporating the contract by reference is one thing and agreeing to guarantee the performance of the contract is quite another; and this bond did not guarantee the performance of the contract. Further, we point out that this was a private bond, as distinguished from a statutory bond. Our cases hold that when a bond is given under the statute, all of the provisions of the statute are incorporated in the bond. New Amsterdam Cas. Co. v. Detroit F. & S. Co., 187 Ark. 97, 58 S. W. 2d 418; Union Indemnity Co. v. Forgey & Hanson, 174 Ark. 1110, 298 S. W. 1032. A private bond of indemnity — as distinguished from a performance bond— however, does not extend beyond its own terms. In 9 Am. Jur. 58, “Building and Construction Contracts” § 89, the holdings are summarized:
'“The bond should be construed in connection with,, and in the light of, the contract in connection with which it was executed or the performance of which it secures. In case of conflict, however, the terms of the bond are controlling over those of the contract in determining the surety’s liability.”
See also 42 C. J. S. 566 and 576 “Indemnity” § 3 and § 8. In this case of a private bond of indemnity, the-surety had a right to give such bond as it pleased and to-limit its liability in any manner it saw fit. Therefore,, under the evidence here presented, Johnson did not have-a cause of action against the Insurance Company on the bond.
II. Estoppel. The evidence here shows that in December, 1955, while Kelly was in default, Johnson had a. meeting with the Claims Superintendent of the Insurance-Company, who advised Johnson (according to his testimony) that there was no need for Johnson to file a lien and that the Insurance Company was liable for labor and materials under the bond and, further, that Johnson would have “a year after the job was completed to file suit.” It was shown that after this assurance Johnson continued to furnish further supplies, some of which are included in the amounts here sued on. The Circuit Court judgment in favor of Johnson might be affirmed on the theory of estoppel, except for the fact that Johnson not only failed to plead estoppel but further expressly waived it in this language: “. . . this is our approach — not estoppel, but on the theory that the terms of the Contract and the Bond are ambiguous and this is oral testimony introduced for the purpose of explaining the terms of the Bond and Contract.” The foregoing-statement was made when A. W. Johnson was testifying and constitutes an express disaffirmance of any theory of estoppel. So the Circuit Court judgment cannot be affirmed on any theory of estoppel.
III. Directions On Remand. Since we have concluded that Johnson does not have a direct cause of action against the Insurance Company on the bond under' the facts here presented, it follows that the judgment of the Circuit Court in favor of Johnson must be reversed.. But there are statements in the record that cause us to remand the case for further proceedings not inconsistent with this opinion. It is stated that Johnson has pending a suit in equity against Wallace, the exact nature of which is not clearly disclosed. The outcome of that suit may have a direct bearing on the. liability, if any, of the Insurance Company. Furthermore, additional matters may arise on a new trial. Therefore, the judgment is reversed and the cause remanded.
Johnson, J., dissents.
There is an exhaustive annotation in 77 A.B.k. 21 (supplemented in 118 A.L.B. 57), entitled, “Bight of person furnishing material or labor to maintain action on contractor’s bond to owner or public body, or on owner’s bond to mortgagee.” In discussing private bonds conditioned to indemnify the owner (on page 65 of the annotation)- our own case of Pine Bluff Lodge v. Sanders, supra, is cited as the leading case. | [
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Ed. F. McFaddin, Associate Justice.
This appeal challenges a judgment of the Garland Circuit Court which annexed to the City of Hot Springs the adjacent territory here involved. The appellants, Sherman Mann and others, are residents of the territory sought to be annexed and have, all the time, most energetically opposed the annexation.
At the General Election in November 1959, there was submitted to the electors of the City of Hot Springs. (hereinafter called “The City”) the question of annexing the territory here involved, containing in excess of 700 acres all located south and west of the then existing city limits, and all being in Garland County. The vote was overwhelming in favor of annexation. Thereupon, the City, proceeding under § 19-307 Ark. Stats., presented to the Garland County Court the petition for annexation. The appellants, for themselves and other residents in the territory sought to be annexed, offered testimony in opposition to the annexation, but the County Court duly entered the order for annexation. The case was appealed to the Circuit Court; trial there resulted in a judgment for annexation; and the case is here on appeal.
At the outset, we mention a few rules applicable to a case like this:
(a) The vote of the electors of the City of Hot Springs made a prima facie case for annexation, and the burden was on the appellants, as the objectors, to defeat the prima facie case. Dodson v. Mayor & Town Council, 33 Ark. 508; Burton v. Ft. Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. El Dorado, 217 Ark. 838, 233 S. W. 2d 536.
(b) The findings of fact of the Circuit Court in an annexation case like this have the force and effect of a jury verdict, and the appellants, here, have the burden of proving that there was no substantial evidence to sustain the Circuit Court judgment. Burton v. Ft. Smith, supra; Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442; City of Little Rock v. Findley, 224 Ark. 305, 272 S. W. 2d 823.
(c) “That city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be bought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed policy regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear such value was enhanced on account of their adaptability to town use. . . . that city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.” Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778.
"We have studied the record here before us, with the foregoing rules in mind, and have come to the unanimous conclusion that the Circuit Court judgment must be affirmed. The desires of the residents in the territory to be annexed are not a determinative point. (Dodson v. Mayor & Town Council, supra.) The deciding issue is whether the testimony in favor of annexation measures up to the rules as first enunciated in Vestal v. Little Rock, and reiterated in our subsequent cases, one of which is Garner v. Benson, supra. The record here shows that most of the area sought to be annexed is thickly settled, traversed by streets and highways, and already has stores, banks, schools, filling stations and various other businesses, thereby demonstrating the sub urban nature of the territory; and that the City of Hot Springs has shown its ability to provide water, fire, and police protection, and the necessity for such. There is every reason why the territory should be annexed.
The judgment of the Circuit Court is affirmed.
There is an annotation in 62 A.L.R. 1011, entitled, “Facts warranting extension or reduction of municipal boundaries,” which cites the Vestal case and other Arkansas cases.
In 62 C.J.S. 129, “Municipal Corporations” § 44, cases are cited to sustain the statement that it is not a valid excuse for refusing annexation of territory that the taxes in such territory will be increased.
Two small plots of ground in which two branch banks are located are not embraced in the annexation, in order to prevent the banks from offending against § 67-319 Ark. Stats. As to this statute, we express no opinion; but the exclusion of the two plots does not destroy the contiguity of the territory to be annexed. | [
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McCulloch, O. J.
Appellants ¡are children and legatees under the last will and testament of L. I). Rozzell, late of Mississippi County, Arkansas, and instituted this proceeding in the probate court for a distribution of some property bequeathed to appellants in the will. The executor and the other children and legatees resisted the order and there was a trial in the probate court upon the issue presented, which resulted in a judgment favorable to appellants. The executor and the other legatees attempted to prosecute an appeal to the circuit court. They filed an affidavit and the transcript of the proceedings was lodged in the circuit court, but the record does not show any presentation of the affidavit or prayer for appeal to the probate court, or any order of that court granting an appeal.
No motion was made below to dismiss the appeal ¡on account of there being no order of the probate court granting it, but the cause proceeded to trial before the court sitting as a jury and the judgment of the court was against the petitioners, who appealed to this court. They raise here for the first time the question of the court’s jurisdiction on account of there being no order of the probate court granting an appeal, and insist that the judgment of the circuit court should be reversed for lack of jurisdiction. On the other hand, it is insisted by appellees that this omission was waived by the parties proceeding to a trial without moving to dismiss the appeal.
This question was expressly decided by this court in the case of Speed v. Fry, 95 Ark. 148, where we said that “the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason can not be waived.” Other decisions of this court bearing on that question are cited in the opinion.
In the laiter case of Drainage District No. 1 v. Rolfe, 110 Ark. 374, we held, under a statute prescribing methods for -appeals from oounty courts in the matter of formation of drainage districts, that where there was no order of the county court granting the appeal, appearance in the circuit court without objection to the jurisdiction would not operate as a waiver, and that a judgment of the circuit -court under those -circumstances would be reversed, even though the question of -jurisdiction was raised here for the first time.
It .follows that the circuit court was without jurisdiction, and that the judgment must be reversed. The case will not be dismissed here, for the reason that if an order of the probate -court was in fact made, the omission from the transcript can be supplied so as to give the court jurisdiction to proceed to another trial of the cause. If, however, the omission be not supplied,' it will be the duty of the circuit court to dismiss the appeal for want of jurisdiction.
Reversed and remanded for further proceedings not inconsistent with this opinion. | [
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McCulloch, C. J.
This is an action at law instituted by the Attorney General against the Arkansas Cotton Oil Company, a domestic corporation, to recover penalties for alleged violation of the anti-trust statutes. During the pendency of the action in the circuit court of Pulaski County, the defendant conveyed all of its assets to another corporation for a nominal consideration, and by a resolution adopted by a majority of the stockholders, filed in the office of the Secretary of State, surrendered its charter. Thereupon a motion was filed in ■this case, by one who had been a stockholder of the dissolved corporation and-the vice president and secretary thereof, to abate the action on the ground that since the corporation had dissolved, an action against it could no longer be maintained. The court sustained the motion and the Attorney General appealed to this court.
There is a statute concerning the voluntary dissolution of corporations, which reads as follows:
“Sec. 957. Any corporation may surrender its charter by resolution adopted by the majority in value of the holders of the stock thereof and a certified copy of such resolution filed in the office of the county clerk of the county in which such corporation is organized, shall have effect to extinguish such corporation.
“Sec. 958. When any corporation has surrendered its charter, the chancery court shall have jurisdiction to pay its debts and to distribute its assets among the stockholders according to their several interests.” Kirby’s Digest, § § 957-958.
Other sections of the statute provide for dissolution by decree of a chancery court, at the instance of stockholders or creditors. The doctrine seems to be settled by many courts of the American states that the effect of a dissolution of a corporation is to abate actions pending against it at the time of its dissolution “in the absence of a statute providing for the continuation of such actions.” 10 Cyc. of Law, pp. 1316-1317. The authorities on that subject are collated in the encyclopedia. It is said in most of the cases that 'the courts, in thus holding to the doctrine, are following the common law on the subject; but it is pointed out that there was no such doctrine at common law for the reason that business corporations were unknown at that time, and there only existed those which were either municipal, ecclesiastical, or eleemosynary. How far we would feel constrained to go in following those decisions in a case involving a suit against a corporation to recover a debt, we need not now stop to consider, for in the light of our statutes on the .subject a discussion of the effect of a dissolution during the pendency of such an action would seem to be academic. The statute, it will be observed, gives the unqualified right to dissolve and makes provisions for the payment of debts and the distribution of assets. It means, that by such dissolution, the existence of the corporation is terminated, except for purposes specified therein, either expressly or by necessary implication. 5 Thompson on Corp., § 6478. In the case of Freeo Valley Rd. Co. v. Hodges, 105 Ark. 314, 151 S. W. 281, we said, in discussing this statute, that even “in the absence of a statute on the subject, the decided weight of authority is that strictly private corporations may surrender their charters and dissolve themselves except so far as creditors have a right to object.” We have here no action for the payment of debts, for this is one (by the State to recover a penalty, the purpose being not to recover a debt, but to punish for alleged infractions of the law. The statute makes no provision for the continuance or survival of any such action against a dissolved corporation.
It is insisted that the suit can not be abated as against the State, and for ground of that contention it is said that the State would be without a remedy. But we inquire why can not the action be abated, if there is nothing in the statute which authorizes its continuance? The legislative will is supreme and the unqualified right of dissolution is declared in the statute. The statute does, as before stated, contain a provision for the payment of debts and the distribution of assets, but this does not, for obvious reasons, apply to the recovery of a penalty. The distinction between a penalty and a debt is pointed out by the Supreme Court of the United States in the case of Huntington v. Attrill, 146 U. S. 657. Speaking of penal statutes, the court said “Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offense against its laws.”
In 1 B. C. L., § 46, pp. 47-48, it is said: “As to what is a penal action the rule is that where 'an action is founded entirely upon a statute, and the only object of' it is to recover a penalty, or forfeiture, it is clearly a penal action. But where the damages are given wholly to the party injured, as compensation for the wrong and injury, the statute having for its object more the indemnification of the plaintiff than the punishment of the defendant, the action is not penal, properly so called, but remedial. In other words, where a liability is imposed by statute upon a person purely for a violation of its provisions, the statute is penal; but where it is a statute which is merely declaratory of a common-law right, coupled with a means or way enacted for its enforcement, giving a remedy for an injury against the person by whom it is committed to the person injured, and either limiting the recovery to the amount of loss sustained or to cumulative damages as compensation for the injury, it is a remedial statute.”
Since there is no provision in the statute for the payment of this kind of a claim against a dissolved corporation, it is plain that there can be neither a continuation of the action nor a revival thereof. Whether there would be an abatement of an action which does in effect survive under the statute, we need not stop to inquire, for the reason that that question is not raised here. We have before us the question of enforcement of a strictly penal statute, which does not survive under this or any other statute, no provision is made for the enforcement of such claim against a dissolved corporation, and it necessarily follows that the action does not survive even where the dissolution takes place after the commencement of the action.
The State, to sustain its contention, relies upon the case of Shayne v. Evening Post Publishing Co., 168 N. Y. 70, an opinion of the New York Court of Appeals rendered by Judge Parker. That was an action for libel against a domestic corporation, and, the charter of the corporation having expired by limitation during the pendency of the action, there was a motion to'revive or continue the action in the name of the trustees, the motion being founded on a statute of that State which provided that upon the dissolution of any corporation the directors should be the trustees of the creditors, stockholders or members, with full power to settle the affairs of the corporation, collect and pay outstanding debts and distribute surplus proceeds. The court held that the action for libel came within the terms of the statute and that the cause should be revived against the former directors of the defunct corporation as trustees. There is much in the opinion in that case which seems to be at variance with the current of American authority; but whether it should be followed in a ease involving the right to revive an action against a corporation for liability other than a penalty, we need not consider. It has much persuasive force but it is not an authority on the question now before us. Whether that court was right or wrong in deciding that an action for libel fell within the terms of the statute, that question is not pertinent to the issue now bef ore us. We must look for a solution of this question to the statutes of our own State, which provide for the payment of debts and distribution of assets of a dissolved corporation, but not for the payment of penalties.
A decision of one of the Texas courts of civil appeals is precisely in point. Mason v. Adoue, 30 Texas Civil Appeals Reports 276, 70 S. W. 347. That was an action, the same as .this, to collect penalties for alleged violations of the anti-trust laws of that State; and during the pendency of the action the defendant corporation was dissolved by the judgment of another court, and it was held that this operated as an abatement of the action. The Supreme Court of that State denied a petition for a writ of error.
We are of the opinion that that is the correct solution here, and that the circuit court was correct in entering an order abating the action.
Our attention is called to the third section of the anti-trust statute of 1905, which provides, in addition to the penalty prescribed in section 2, that any corporation organized under the laws of this State found guilty of a violation of the terms of the statute shall forfeit its charter, such forfeiture to be declared by any court of competent jurisdiction. It is argued that this provision of the statute is inconsistent with the right of voluntary dissolution of a corporation during the pendency of the State’s suit to enforce penalties. The act of 1905 does not attempt, in express terms, to repeal any other statute except the act of 1899, which relates to the same subject. It is not a general statute covering the laws on the subject of the organization, control and dissolution of corporations, and, therefore, does not repeal any other statutes by implication except such as are in irreconcilable repugnance to it. It does not deal at all with the question of voluntary dissolution of corporations, and it would be extending the force of the statute beyond its legitimate scope to hold that it took away or limited the right of voluntary dissolution expressly and unqualifiedly conferred ;by another statute. There are no limitations as to time or circumstances in the statute conferring the right of voluntary dissolution, and that provision in the act of 1905 can not be reasonably construed as a limitation on that right.
It is urged that the effect of this holding is to thwart the efforts of the State to enforce the anti-trust laws, giving corporations the privilege of defeating the State’s right of action by voluntary dissolution. But the answer to this is that the remedy lies with the Legislature. It is entirely within the power of the lawmakers to declare that a dissolution shall not abate an action to enforce the anti-trust laws; and that notwithstanding such dissolution, the accrued penalties shall be enforced against the assets of the corporation. Until that remedy is provided by the lawmakers themselves, none can be molded by the courts, in the face of the statutes now in existence, which expressly and unqualifiedly give the right of dissolution without any provision, after such dissolution, for the enforcement of penalties.
Judgment affirmed.
ICirby, J., dissents. | [
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Wood, J.,
(after stating the facts. The appellee testified, over the .objection of appellant, that he sold to ¡appellant’s agent a oar of cotton seed to be delivered as soon ias be ¡could get them from the gin, at $28.00 a ton. Appellant contends that the contract was within the statute of frauds, and that this testimony was incompetent, but the letter set forth in the statement was a sufficient confirmation of the contract, as claimed by appellee, to take it out of the statute of frauds. It will be observed from a reading of the letter that it purports to confirm the purchase as claimed by appellee, but states in the letter that the purchase was as follows: “One car, about twenty tons, sound, clean cotton seed. Price: at $28.00 per ton of 2,000 pounds,” etc. The letter, while stating a confirmation of the purchase, does not assert that this confirmation was upon the condition that the seed should be “sound, clean cotton seed,” etc. The court was therefore warranted in finding that the letter was a confirmation of the contract as alleged by the appellee.
But there was testimony to warrant the court also in finding that there was another letter written to the appellee, which constituted a memorandum or basis of the contract, that did not mention that the seed were to be “sound, clean seed,” etc. Appellee testified concerning this as -follows: “After I had sold the seed to Mr. Webb, the Southern Oil Mill at Little Bock wrote me a letter confirming the sale at $28.00. That letter got misplaced, I reckon; I have made a diligent search for it.”
Appellee further testified that there was nothing said with regard to the quality of the car of seed, nothing said as to the foreign matter in it. While this testimony is not very convincing, it is sufficient to warrant the court’s finding that there was a confirmation of the contract as appellee stated it.
Moreover, .there was evidence tending to show that the seed were shipped to appellant on or before December 28, 1912, under the terms of the contract as detailed by appellee. If the seed were delivered to appellant under the contract as .set up by the appellee, -then the appellant could not refuse to accept and pay for the same on the ground that the same were not “.sound, olean cotton seed;” and the court was correct in its finding that the appellant broke its contract by refusing to accept and pay for the car of seed in question on January 11, 1913. It was a question of fact as to whether or not under the terms of the contract the seed sold by appellee to appellant were to be “sound, clean cotton seed” as contended by the appellant and denied by the appellee. It is unnecessary to detail the evidence bearing en this issue. Suffice it to say that the evidence was sufficient to warrant the finding of the court that the contract as to the sale of the seed shipped by the appellee to appellant was for the sale of the average quality of cotton seed for the season.
Appellant does not question the correctness of the amount of appellee’s claim, if his contention as to the •contract be sound. Appellant only disputes here that the contract was as claimed by appellee.
We find no error in the judgment of the court, and it is therefore affirmed. | [
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Kirby, J.,
(.after stating the facts). It is first contended for appellant that the act is not applicable to the operation of its road in Benton County, which is less than fifty miles in length within the State, therein. Section 1 of the act provides that no railroad compiany, etc., operating any line of railroad in the 'State, engaged in the transportation of freight, shall equip its; freight trains, with a crew consisting of fewer men than an engineer, fireman, conductor and three brakemen, “ regardless of .any modern equipment of automatic coupler and air brakes, except as hereinafter provided.” Section 2 provides the act shall not apply to any railroad company or officer of court, operating any line of railroad, whose line or lines are less than fifty miles in length, nor to any railroad in the State, regardless of length, where the freight train operated shall consist of less than twenty-five cars, and “it feeing the purpose of this act to require all railroads in this State whose line or lines are over fifty miles in length engaged in hauling a freight train, consisting of twenty-five cars or more, to equip the same with a crew, consisting of not less than, an engineer, a fireman, a conductor and three brakemen, etc.,” and permitting the increase of the number of the crew.
Section 3 provides that the penalties of the act shall not apply' during strikes of men in the service of the lines involved.
The evident purpose of the act as therein declared, is to require all railroads over fifty miles in length, engaged in the operation of trains and the hauling of freight, to equip the freight trains of the designated length with the full crew including three brakemen and this relates to all railroads operating in the State, whose line or lines of road are more than fifty miles in length, whether they are fifty miles in length within the State or not.
If it had been the intention to require only such roads as operated a line fifty miles in length within the State words clearly manifesting that intention would have been used and not the expressions that were employed, which clearly manifest the intention to make this requirement of all railroads operating in the State, whose entire operative line is. fifty miles or more in length. The law fixing the rate that may be charged for the carriage of pas-' sengers makes a like classification of railroads operating in the State of the length designated therein and it has not been questioned that the purpose and effect of such law was to fix the rate that might be' charged for the carriage of passengers upon a road operated in the State, if the entire length of road was more than that designated in the statute, without regard to whether it was all in the State or not. It does not operate as an attempt to extend the authority of the State beyond its confines nor to give the law extra-territorial effect (Leonard v. State, 95 Ark. 381; State v. Lancashire Ins. Co., 66 Ark. 466; Anderson v. State, 82 Ark. 405), but only as a classification of such, lines as are required to comply with its provisions in order to protect the employees operating the trains and the public. This classification has been held reasonable :and proper, both by this court and the Supreme Court of the United States. Chicago, R. I. & P. Ry. Co. v. State, 86 Ark. 412, s. c. 219 U. S 453.
In affirming the judgment of this court, declaring this act not a burden upon interstate commerce, nor in conflict with the commerce clause of the United States Constitution, the court said:
“It is too much to say that the State was under an obligation to establish such regulations as were necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Beyond doubt, passengers on interstate carriers while within Arkansas are as fully entitled to the benefits of valid local laws enacted for the public .safety as are citizens of the State. Local statutes directed to such an end have their source in the power of the State, never surrendered, of caring for the public safety of all within its jurisdiction; * * * the statute here involved is not in any proper sense a regulation of interstate commerce, nor does it deny the equal protection of the law. Upon its face it must be taken as not directed .against interstate commerce, but as having been enacted in aid, not in obstruction, of such commerce, and for the protection of those engaged in such commerce.” Chicago, R. I. & P. Ry. Co. v. Arkansas, supra.
Thus has the contention of the appellant railroad company that said act is in conflict with the Fourteenth Amendment and the commerce clause of the Constitution of the United States been determined against it, both by our court and the Supreme Court of the United States.
Neither do we think there is any merit in appellant’s contention that the conclusion herein announced is in conflict with South Covington & Cincinnati Railway Co. v. City of Covington et al., 235 U. S. 537, which is an authority in its favor. There the court in discussing the class of cases wherein the State may regulate the matter legislated upon until Congress has acted by virtue of the supreme authority given it by the commerce clause of the Constitution said: “The subject was given much consideration in the Minnesota Rate Cases, 230 U. S. 352, and the previous oases, dealing with this subject are therein collected and reviewed in the light of these cases.and upon principle, the conclusion is reached that it is competent for the State to provide for local improvements to facilitate, or to support reasonable measures as to the health, safety and welfare -of the people, notwithstanding -such regulations might incidentally and indirectly involve interstate commerce. ’ ’
There being no error in the record, the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). A general demurrer was sustained to the original complaint and the plaintiffs therein joining all the other heirs, but one made defendant, with themselves, filed what was termed an amended complaint against the defendant in the original complaint, the appellee surety company, and the other heir of the deceased, Sarah Elizabeth January, who was not joined as a party plaintiff. A summons was issued upon this complaint against 'appellee company and it was in effect the beginning of a new suit, the plaintiffs having the right to join all parties as defendants against whom a cause of action could be alleged. Ferguson v. Carr, 85 Ark. 251; Choctaw, Oklahoma & Gulf Rd. Co. v. Hickey, 81 Ark. 579; Greer v. Vaughan, 96 Ark. 524; Warmack v. Askew, 97 Ark. 19.
The court erred, therefore, in striking out the amended complaint, which was in effect a dismissal of appellant’s action against appellee and a final judgment from which an appeal eoulld be prosecuted.
If the motion be treated as a demurrer to the sufficiency of the complaint, which is not 'the pr oper practice, it still should not have been sustained. The complaint alleged that plaintiffs were 'the only heirs and next of kin to the deceased insane person, that her estate had come into the hands of the defendant, J. C. January, as alleged guardian and curator by reason of the execution of the bond by appellee company, that Ms appointment as guardian was void, being made by the clerk of the probate court only and without authority of law, that he had not accounted for the estate coming into his hands by reason of his appointment; that he was in effect an equitable or de facto guardian and should be required so to do iand to pay to appellants all sums of money to which they were entitled, after he was allowed ia reasonable compensation for the support .and maintenance of the said insane person. The probate court only ¡had. the power to appoint a guardian of Sarah Elizabeth January, an adult person of unsound mind, and the clerk’s issuance of letters of guardianship without an order and adjudication of said court was without authority and void. The appointment being void, the probate court did not acquire jurisdiction of the person or estate of said insane person and the orders thereof approving .and confirming the purported settlements, of such guardian were void.
It does not follow, however, that the said January, who acted as g-uardian and took possession of the estate of the- person of unsound mind after his attempted appointment by the clerk of the probate court and his surety upon the bond given before taking such charge, are not responsible for 'his properly accounting for said estate in accordance with the terms of ‘the bond. He may be treated in a court of equity .as an equitable guardian and held .legally to account for the property coming into his hands. 21 Cyc. 20; Hazelton v. Douglas, 65 Am. St. Rep. (Wis.) 122.
The complaint shows in this case, as in Hazleton v. Douglass, -that, .although the person attempted' to be appointed was never the legal .guardian of the person of unsound mind, he was granted letters of guardianship by the clerk of the probate court without authority, and was -supposed to be, and that he gave the bond sued upon with ,appellee company as surety, by whioh means he obtained possession of her estate. The court there held the complaint .sufficient and the bond valid, saying,4 4 The bond was given voluntarily; it contravened no .statute; it was not even repugnant to the policy of the law; it induced the delivery to the principal of the supposed ward’s entire fortune.” The ‘bond herein was given under like conditions, and we see no reason why it did not constitute a valid obligation against the surety. See, also, Hauenstein v. Gillespie, 73 Miss. 742, 55 Am. St. Rep. 569, note; In re Doner’s Estate, 27 Atl. 42; Fridge v. State, 20 Am. Dec. 463; People v. Medart et al., 46 N. E. 1095; Griffin v. Collins, 49 S. E. (Ga.) 827; Iredell v. Barbee, 31 N. C. 250; Corbitt v. Carroll, 50 Ala. 315.
It follows that a good canse of action is stated in the complaint. For the error committed, the judgment is reversed and the canse remanded for further proceedings according to law and not inconsistent with this opinion. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the agreement for payment of the commission with the option contract and amendment, all in writing, definitely expressed the terms upon which the sale should be made, that he furnished a purchaser, ready, willing and ■able to buy the lands and did in fact sell them to him in accordance with the terms of the contract, and earned his commission .and was entitled to it, and that the court erred in not so instructing the jury, and in allowing the introduction of parol testimony to establish a condition to the unqualified letter of acceptance of the Poinsett County lands, in substitution for the $7,000 cash payment requested by the option contract.
This is not a case of a real estate broker earning his commission by finding -a purchaser, willing and able to buy the.land offered for sale. By the terms of agreement the commission was only to be paid on condition that the deal pending was finally closed, the appellant having already negotiated for the sale of the lands and received the telegram from Skeen that the deal had been closed, which was shown to appellee before the execution of the agreement to pay. commission.
If the deal was closed at the time of the execution of the agreement to pay commission, there was no necessity for stating that it was .pending, and that the commission would be paid on condition that it was finally closed, for the commission was already earned in accordance with the contention of appellant and the obligation to pay would doubtless have been written without condition at all. Appellant stated that the option contract had been transferred to Skeen; and the .letter of February 24, from Stewart of unconditional acceptance of the Poinsett County lands had already been sent to him and he had received a telegram from Skeen that the deal was closed, which he showed .to appellee before he executed the commission agreement. Appellee stated that he did not like the form of agreement to pay commission already prepared by appellant and dictated the one set out herein, agreeing to pay commission on condition that the deal pending was finally closed, understanding thereby that it should be finally consummated and the lands duly transferred by proper conveyances.
Appellant understood the contract -differently, and the court -did not err in permitting the jury to pass upon its meaning under proper instructions. Its terms were ambiguous certainly if there is ground for -appellant’s under-standing -of it-s meaning -and with his statements that he -showed the telegram to Skeen, stating* the deal had been closed and the conveyances should be prepared and delivered, to Stewart, before -tbe -commission agreement was executed furnishing grounds -certainly for his, Stewart’s, understanding of the meaning -of the -contract contended for by him, -that the commission -should be paid on condition that the deal was finally -completed and the l-an-ds conveyed.
Appellant’s -contention that the -court erred in not declaring -appellant’s letter -of the 24th an unconditional acceptance of the P-oimsiett County lands, in lien of the $7,000 cash payment, -without -any duty -on his part to -show the lands to .appellee, for his inspection was erroneous and the -court did not err in refusing it.
The answer alleged and the testimony tended to prove that this letter prepared by Skeen, addressed to -appellant was -signed by-the appellee upon condition that the lands shonl-d be inspected and -accepted by biim -only if their value -and title were -approved, in li-en of the $7,000 cash payment required by the -option.
Appellee -testified that it was signed -on this- -condition, “that he started to write, ‘-subject to -inspection’ on the letter and was dissuaded from -doing so by -appellant, who said he feared it might interfere with the consummation of the s-ale,” and agreed to notify Skeen that such w-as the condition --at the time ■ of returning the letter to him and was instructed to- do so by -ap-pelee. Appellant denied this, it i-s- true, but he '-is -concluded by the jury’s finding upon the question. ’This testimony does not come within the'rul-e of the ladmi-ss-ibility of parol contemporaneous evidence to contradict or vary the terms of a valid written instrument, but within the rule -allowing -the ad mission of such testimony to show that certain conditions or prerequisites were to be met or performed before the instrument executed -should become effective.
In Barr C. & P. C. v. Brooks-Ozan Merc. Co., 82 Ark. 219, our court quotes with approval from Ware v. Allen, 128 U. S. 590: “We are of the opinion that this evidence shows 'that the contract upon which this suit was brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question -of contradicting -or varying .a written instrument by parol testimony, but that it is -one of that class of cases, well recognized in the law, by which an instrument whether delivered to a third person as an escrow, or to the obligee in it, is made to depend, as to its -going into operation, upon -events to -occur -or to he ascertained thereafter.” In Burke v. Dulaney, 153 U. S. 228, that court -said: “In -an action by the payee of a negotiable promissory note against the maker, evidence is admissible to show a parol agreement between the parties, made at the time of the making of the note, that it -should not become -operative as a note until the maker could examine the property f-or which it was to be given, and determine whether he would purchase it.”
The rule is well established and has been frequently recognized in -our decisions. Graham v. Remmel, 76 Ark. 140; Barton-Parker Mfg. Co. v. Taylor, 78 Ark. 586; Main v. Oliver, 88 Ark. 383; William Brooks Medicine Co. v. Jeffries, 94 Ark. 575; American Sales Book Co. v.Whitaker, 100 Ark. 365; Pickler v. Arkansas Pkg. Co., 39 A. L. R. 127.
The testimony is also -admissible under the rule requiring fidelity on the part of the agent in the transaction -of his agency. As- -stated in Doss v. Long Prairie Levee District, 96 Ark. 451, “The rule is well settled, both by the text writers and adjudicated cas-es, that where the agent is- -guilty of fraud, -dishonesty or unfaithfulness in the transaction of his agency, such conduct is a bar to the recovery by him -of wages or -compensation.” 31 Cyc. 1498; 1 Clark & Skyles on the- Law of Agency, 819; Story on Agency, & $ 333 and 334; Mechera on Agency, § § 643, 798; Tiffany on Agency, 418.
It may be that the trade was not consummated because of appellee’s inability to convey a good title to the lands, and the evidence indiciateis such was one of the causes, but. as between the parties to this suit the condition relative to the acceptance of the Poinsett County lands in lieu of the cash payment had not been performed and certainly the -deal wia,s not finally closed within the meaning of the contract 'for the payment of commission. Neither do we think the court erred in instructing the jury relative to the accord and satisfaction by the payment of a certain commission for the sale of a portion of the plantation included within this transaction. There was sufficient testimony to warrant the giving of the instruction.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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McCulloch, C. J.
Plaintiff, James W. Barrentine, instituted an action in the circuit court of White County against The Henry Wrape Company, a corporation, to recover damages on account of personal injuries which he sustained while in the employment of defendant. He alleged that his injuries were caused by other servants and employees throwing rocks and other missiles about the premises of the defendant, one of which Inissiles struck him in the eye.. The circuit court sustained a demurrer to the complaint, and, the plaintiff declining to amend, final judgment was rendered against him. We affirmed that judgment on the ground that facts sufficient to constitute a cause of action were not alleged, in that it was not shown that the negligent servants were acting within the scope of their authority, or that they were within the control of defendant at the time the acts of negligence were committed, or that either the servants or the plaintiff himself were on the premises of defendant at the time. In other words, we held that the mere statement that other employees were engaged'in throwing. dangerous missiles about the premises and that plaintiff was injured thereby did not state a. cause of action. 105 Ark. 485. The plaintiff thereupon instituted a new action (the present one) and in his complaint, supplied the omitted allegations necessary to state a cause of Action. The defendant pleaded res adjudícala and has set forth in support of its plea the pleadings and judgment in the former ease. The plea was' sustained and final judgment was rendered, from which this appeal, has been prosecuted.
.We have held that a judgment sustaining a demurrer is an adjudication of the case upon its merits and that any error in rendering the judgment must be corrected by appeal. Luttrell v. Reynolds, 63 Ark. 254.
But Mr. Herman states the rule that “if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in his second suit, the judgment in the first action is no bar to the second, although the respective actions were instituted to enforce the same right; fior the reason that the merits of that cause, as disclosed in the second declaration, were not heard and decided in the first.” 1 Herman on Estoppel, § 273.
That statement is taken by the 'text writer from the opinion of Mr. Justice Clifford in the case of Gould v. Evansville, etc., Rd. Co., 91 U. S. 526.
In the case of Grotenkemper v. Carver, 4 Lea (Tenn.) 375, Judge Cooper, delivering the opinion of the court, said:
“If, however, the court decides that the complainant has not stated facts sufficient to constitute a cause of action, and that the bill is otherwise liable to any specific objection urged against it upon demurrer, such decision does not extend to any issue not before the court on the hearing of the demurrer. It leaves the complainant at liberty to present his case, so corrected in form or substance as to be no longer vulnerable to the attack made upon it in the former suit.”
The same rule was stated by Mr. Freeman in his work on Judgments (vol. 1, § 267).
This seems to be the settled rule, and applying it to the pleadings now before us, it is evident that the present case falls squarely within it. The former judgment was based upon the facts set forth in the complaint in the first action and was an adjudication only of those facts, and not of the additional facts set forth in the present complaint.
. The court erred, therefore, in sustaining the plea of former adjudication, and the judgment is reversed and the cause remanded with directions to overrule, the plea and for further proceedings. | [
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Smith, J.,
(after stating the facts.) The instruction set out in the statement of facts is the law, and should be given in any case, where the evidence is sufficient to raise the issue of collusion. In the case of State v. Caldwell, 70 Ark. 74, it was said: “Bishop says: ‘If one procures himself to be prosecuted for an offense which he has committed, thinking to get off with a slight punishment, and to bar any further prosecution carried on in good faith, if the proceeding is really managed by himself, either directly or through the agency of another, he is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff State is no party in fact, but only such in name; the judge indeed is imposed upon, yet in point of law adjudicates nothing. # * * ■ The judgment is therefore a nullity, and is no bar to a real prosecution.’ 1 Bishop, Cr. Law, p. 1010; McFarland v. State, 68 Wis. 400; Watkins v. State, 68 Ind. 427, 34 Am. Rep. 273, and numerous authorities there cited.”
We think the demurrer should have been sustained and that the issue of former acquittal should not have been submitted to the jury. It appears from the quotation from the Caldwell case, supra, that one is not in jeopardy, as the result of a prosecution which he has himself procured to be instituted. Such is the rule as announced in the cases cited to support Mr. Bishop’s statement of the law (subdiv. 3, of § 1010), unless as a result of the prosecution, so instituted, the full measure of the punishment provided by law is assessed against the defendant, or where the penalty is an exact and fixed one. Provision is made, however, under the statute by which any one who had committed an offense less than a felony, may plead guilty. Kirby’s Digest, § § 2497-2502. These sections provide that any person who has committed a misdemeanor may submit a statement of the facts .constituting a charge of said offense to a justice of the peace of the township in which the offense occurred, and the justice is then required to enter the substance of this statement on his docket, and to read the same to the offender, and enter his plea thereon, and if a plea of guilty is entered, the justice is then required to issue a warrant of arrest. Then, to ascertain the gravity of the offense, the justice is required to subpoena, the person maltreated and such other witnesses as are necessary to give a clear understanding of the circumstances of the case; and, “said justice of the peace shall immediately after the examination of said witnesses render judgment against said offender, fixing and specifying the punishment of said offender and for all costs incurred, as in the procedure in other cases of misdemeanor.” And such judgment is made a bar to another prosecution for the same offense. The sections jnst cited were construed in the case of Crowder v. State, 69 Ark. 330, and it was there said: “In our view of it, these statutes were enacted for the purpose of preventing frauds upon the laws in the oases of misdemeanors, and are not restrictions upon the jurisdiction generally of justices of the peace to hear and determine cases less than felony, but rather are wholesome provisions, regulating the manner of entering pleas of guilty and restricting the validity of such pleas to the townships in which the offense is committed, and providing the necessary statements of the plea, and other matters of mere procedure named therein. ’ ’
For one to avail himself of this statute he must comply with its terms, and when he has done so, be may plead the judgment of the court as a former conviction. These sections contemplate the infliction of some punishment and the rendition of judgment for the costs as an incident thereto. They do not contemplate the ordinary trial, as the defendant’s plea of guilty is entered on the docket before the witnesses are subpoenaed and the evidence is heard to “ascertain the gravity of the offense.” One can not, therefore, plead former acquittal as a result of a prosecution had under these sections.
Appellee can have no immunity from prosecution, under the indictment returned against him, because of the judgment of 'the justice of the peace. If the prosecution before the justice of the peace was not had under these sections, 2497-2502, Kirby’s Digest, then the judgment is void because appellee himself instituted the prosecution, and the maximum punishment provided by law was not imposed.
The judgment will be reversed and the cause remanded with directions to the court to sustain the demurrer, and for a trial of the cause upon its merits, as no imprisonment can be imposed upon appellee as a part of the sentence, if he should be convicted. | [
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McCulloch, C. J.
This is an action instituted by the administratrix of the estate of one James Bodgers, deceased, against the St. Louis, Iron Mountain & Southern Bailway Company to recover damages resulting to the estate and next of kin on account of the death of said James Bodgers, which is alleged to have been caused by the negligence of the defendant.
Bodgers was a rear brakeman running on one of defendant’s freight trains on the Gurdon branch operated between Gurdon, Arkansas, and Ferriday, "Louisiana. The train had come from El Dorado and reached Gurdon in the early part of the night. There are numerous tracks at Gurdon, one of which is a spur track called the brickyard spur, where it is customary to store cabooses. On the arrival of a freight train, the rules require that the caboose be run in on this spur track and stored there. This is usually done by throwing the caboose in on that track by a flying switch. There was a hand brake on the caboose operated from the cupola. This brake was frequently used while the train was in operation for the purpose of preventing the oars in the train from bunching when going down hill, and also for the purpose of controlling the caboose when it was disconnected from the other cars, such as when it was thrown on the sidetrack or spur to be stored. It was the duty of Bodgers, being the rear brakeman, to place himself in the cupola ofthe caboose when it was to be thrown in on the spur track, and to control the movement of the caboose after the engine cut loose from it. On this occasion, when the crew was ready to make the flying switch, Bodgers went into the cupola of the caboose and gave the signal for the engineer to proceed to make the switch. The caboose was thrown in on the spur, but for some reason or other undisclosed in the evidence, the speed of the caboose was not checked or controlled, and it crashed into two other cabooses standing on the spur. No one was in the caboose at the time but Bodgers, but as soon as the impact occurred, other members of the crew went in and found Bodgers lying struggling on the floor with his throat cut. He had evidently been thrown against the glass window of the caboose and his head thrust through the glass, which broke and inflicted the cuts. A surgeon was summoned to his aid, but he bled to death, life becoming extinct in about thirty minutes after the injury occurred. He evidently suffered great pain, for witnesses testified that he made considerable effort to speak to them, but was unable to do so on account of the accumulation of blood in his throat.
The act of negligence set forth in the complaint is that the “night was dark and defendant’s servants carelessly and negligently ran said caboose upon the sidetrack with such unusual force and at such a dangerous speed that the deceased, who was in the cupola of said caboose, where his duties required him to be, was unable to check the speed of said caboose, and when said caboose struck the cars standing upon said sidetrack, he was thrown forward against the glass in the window of said caboose with such force, that the glass was broken, and his head was driven through the glass and his throat cut.”
There are several assignments with respect to the giving and refusing of instructions; but we will only discuss the testimony in the ease, for we have reached the conclusion that it was insufficient to sustain the charge of negligence. The uncontradicted testimony is, we think, to the effect that the flying switch was made in the ordinary method, and that Bodgers frequently was engaged in making the switch just in the manner in which it was made on this occasion.
There is a slight variance in the testimony as to the speed the caboose was going at the time the engine was released from it, some of the witnesses putting it at from four to six miles, and some at seven or eight miles; but they all agree that the speed which it was going at the time was the customary speed in making that switch.
There is some testimony tending to show that the switch could have been made at a less speed than -that; but testimony of that character is not sufficient to establish negligence, for the reason that the uncontradicted evidence is that it is perfectly safe to cut the caboose loose while running at a speed of seven or eight miles an hour with a hand brake on it with which to control the movement. The fact that it could have been switched at a lower rate of speed does not make out a case of negligence.
Two or three witnesses introduced by the plaintiff testified that they heard the impact of the caboose against the other two cabooses standing on the spur track, and that it made an unusual noise, in fact, it resounded with a great crash. The evidence is, too, that the two cabooses on which the.brakes were set were driven a distance of about fifteen feet by the impact of this caboose, and that the two cabooses were injured by the impact.
This testimony only shows, however, that the caboose in which Rodgers was riding came against the other cabooses with tremendous impact; but that resulted from the failure to apply the brake and does not establish a greater rate of speed than that mentioned by the other witnesses, as all stated that it was not running at an unusual rate of speed. It only proves that the caboose was not under control, and that its speed was considerable when it struck the others on the spur, but it does not tend to fix a rate of speed greater than that described by the other witnesses, and, therefore, raised no conflict in the testimony which called for a submission of the issue to the jury. In other words, the uncontradicted evidence of the witnesses who testified with reference to the speed of the caboose at the time the engine was released from it shows that it was not running at an unusual speed while doing that work, and that the cause of the impact was the failure to apply the brake. The witnesses all say that instead of the caboose being controlled by Rodgers soon after the engine was released, it began to pick up speed as it went down the spur, which was down grade. The caboose ran a distance of 515 feet from the time the engine- cut loose from it to the point it collided with the other cabooses. Witnesses say that during this time it was picking up speed instead of lessening it, and that when they noticed the brake was not being applied, several of them hallooed to Rodgers to put on the brakes, •and that the engineer gave the signal from his engine to set the brake.
There are no circumstances, we think, which can fairly be said to contradict the statements of these- witnesses as to the momentum which was given to the caboose before it was cut loose from the engine, and we are of the' opinion that there is no negligence shown, but that the injury occurred solely on account of the failure to apply the brake and control the caboose after it was separated from the engine. The injury, therefore, resulted from accidental cause and without fault, so far as the evidence shows, on the part of any one, unless it be that of the deceased himself.
There is no allegation in the complaint that there was anything wrong with the brake, and no charge of negligence in that regard. All the testimony shows that the caboose was a new one, and that the brake was in good working order. Several of the witnesses used the brake immediately before and immediately after the accident. One of the witnesses testified that he went in and tried the brake as soon as the caboose stopped, and it was ascertained that Rodgers was injured. He stated that the brake was not set and that it was in perfect working order.
There is a suggestion in the- ¡testimony that the chains on hand brakes sometimes fail to wind properly and thus interfere with the use of the brake; and it may be that this prevented the use of tbe brake in this instance. Rodgers ivas an experienced brakeman, having been working on the road about eleven months, and frequently doing this particular kind of work. The witnesses describe him as being a good brakeman, who knew what was required of him, and it is difficult to believe, under the circumstances, that he failed to discharge his duty, and yet there is no satisfactory reason found in the record why the brake was not applied. We need not indulge in conjecture on that point, however,' for, conceding that he made every reasonable effort to control the car, it is uncontradicted that the speed was not an unusual or dangerous one; that the oar could have been controlled while going at that rate of speed and that for some reason or other the brake was not used and the speed of the car was not controlled.
Counsel for plaintiff attempt to sustain' the judgment on negligence in attempting to put the car in on the spur track with a flying switch.
There is no charge of negligence of that kind in the complaint, but some of the witnesses testified that there was a rule of the company against using the flying switch except in case of emergency and when the track and switches were in good condition.
The evidence is, however, uncontradicted that this rule was habitually disregarded to the extent that it amounted to an entire abrogation of the rule, for all of the train men testified that the invariable custom was to store cabooses on sidetracks or spur tracks in that manner. If that was the unvarying custom it amounted to an abrogation of the rule and became one of the incidents of the service, the danger from which the deceased assumed when he took service.
Deceased met his death while in the line of his duty and as the result of a shocking accident, which naturally excites the sympathy of all, but we are unable to discover any testimony in this record which is sufficient to warrant the finding that any of the members of the train crew were guilty of negligence in switching the caboose, or in the method in which it was done. The verdict is therefore unsupported by the testimony and the judgment must be reversed for that reason. Reversed and remanded for a new trial.
Hart, J., dissents. | [
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McCulloch, C. J.
The General Assembly of 1913 enacted a statute entitled, “An Act to protect the beds of all navigable streams, in the State of Arkansas/’ and, after reciting that “the navigable streams of Arkansas belong to Arkansas, and the sand and gravel bars of §ame belong to Arkansas,” provides:
“Section 1. That it shall be unlawful for any railroad company, corporation or company or person of any kind whatever to take sand or gravel from any sand or gravel bar of any navigable stream in this State without first notifying the Attorney General of the same, and then by his consent, the said railroad company, corporation or company may take from said navigable stream sand or gravel by paying into the State treasury the sum of not less than four cents per cubic yard for sand, and not less than five cents per cubic yard for gravel. Provided, the sums collected under this act shall be placed to the credit of the general revenue fund.” Act No. 265, p. 1088, Acts of 1913.
The Attorney General instituted this action for the benefit of the State against appellee, a domestic corpora- ■ tion, alleging that the latter had been taking and remov- • ing sand and gravel from the bed of the Arkansas River without the consent of the State and without paying or offering to pay into the treasury of the State the price prescribed by statute; and praying for a discovery of the 'amount of sand and gravel thus taken, and for a decree for the price of Same.
The court sustained a demurrer to the complaint on the ground that the statute is void.
The contention of appellee through its learned counsel is that the State’s ownership of the beds of navigable rivers is merely as trustee for the use of its citizens without any such proprietary interest as would give authority to sell the same, or any part thereof, or to grant special privileges therein.
It may be conceded without further controversy that the rights held by the State are as trustee for its citizens, that being true as to all property to which the State holds title.
In the case of Knight v. United States Land Association, 142 U. S. 161, Mr. Justice Lamar, speaking for the court, repeated the rule which had often been announced in substance in former decisions:
'“It is the settled rule of law in this court that absolute property in, and dominion and sovereignty over, the soils under the tide waters in the original States were reserved to the several States, and that the new States since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original States possess within their respective borders.”
In a very recent case, decided by the same court, it was said in the opinion.that “it was. settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and State Governments under the Constitution, that lands underlying navigable waters within the several States belong to the respective States in virtue of their sovereignty, and may be used and disposed of as they may direct, subject, always, to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the States and with foreign nations.” Scott v. Lattig, 227 U. S. 229.
Questions relating to the source of the State’s title constitute a hroad field in which much learning may be displayed; but those questions are so well settled, and have been so concisely stated in many decisions that it is. an useless task to pursue that subject. The best statement of the law on that subject which we can find is in an opinion of the New York Court of Appeals, and we take the liberty of quoting at length therefrom as follows:
“From the earliest times in England the law has vested the title to, and the control over, the navigable waters therein, in the Crown and Parliament. A distinction was taken between the mere ownership of the soil under water and the control over it for public purposes. The ownership of the soil, analogous to the ownership of dry land, was regarded as jus privatum, and was vested in the Crown. But the right to use and control both the land and water was deemed a jus publicum, and was vested in Parliament. The Crown could convey the soil under water so as to give private rights therein, but the dominion and control over the waters, in the interest of commerce and navigation, for the benefit of all the subjects of the kingdom, could be exercised only by Parliament. * * * In this country the Stale has succeeded to all the rights of both Crown and Parliament in the navigable waters and the soil under them, and here the jus privatum and the jus publicum are both vested in the State. In England, Parliament had complete and absolute control over all the navigable waters within the kingdom. It could regulate navigation upon them, could authorize exclusive rights and privileges of navigation and fishing, could authorize weirs, causeways and dams for private use to be constructed in them, and could interrupt and absolutely destroy navigation in them. * * * SoJ in this country, each State (subject to limitations to be found in the Federal Constitution), has the absolute control of all the navigable waters within its limits.” Langdon v. Mayor, etc., 93 N. Y. 129.
In other words, there is a union in the state governments of America of all the powers of King and Parlia ment in England over navigable waters and the beds thereof, subject only to the paramount jurisdiction of the United States for the control of navigation.
In the decisions there are references made to the proprietary rights of the English kings, a term which has no place in our system of G-overnment, as all rights of the sovereign under the American system are exercised, and. all property rights held, for the benefit of the people. All of the property rights which are held in common by the people of our States are subject to the control of the legislative branch of Government, save certain inalienable rights which the individual citizen does not yield up to the Government, and. the power of the sovereign people is complete in the regulation and disposition of those rights.
Chief Justice Beasley, speaking for the New Jersey Court of Errors and Appeals in the case of Stevens v. P. & N. Rd. Co., 34 N. J. Law 532, said:
“The principle seems universally conceded that, unless in certain particulars protected by the Federal Constitution, the public rights in navigable rivers can, to any extent, be modified or absolutely destroyed by statute. * # * But the dominion over the jura publica appears to be unlimited. By this power they can be regulated, abridged, or vacated. We have seen that, by the common law, the King was the proprietor of the soil under the navigable water, and this being regarded as a private emolument of the Crown, was susceptible of transfer to a subject. ' But such transfer did not divest or diminish, at least, after Magna Gharta, the public rights in the water, and consequently the grantees of the Crown held the property in subjection to the common privilege of fishery and navigation. The consequence was that the King could not deprive the subjects of the realm of these general rights. This was a power that resided in Parliament, and not in the monarch.” ■
Mr. Farnham, in his work on Waters and Water Rights (Vol. 1, p. 260), says:
“The King never held any of the non-tidal rivers in trust until he was compelled to convey his waste land in trust for the public, and after that time Parliament and the King held the whole title, which they could dispose of as they saw fit, .subject to existing rights of navigation in the stream. The American States succeeded to all the title held by both the King and Parliament, and therefis nothing to prevent them from making any grant which they may wish to make. ’ ’ .
Now, the State can not delegate its .trusteeship by disposing of navigable waters or beds thereof, for one -Legislature might resume a power which had been surrendered by its predecessor; but it is quite another thing to say that the Legislature, in the exercise of its control over -the beds of streams, can not grant the rights, upon terms or for a price named, -to false' sand or gravel, call it a sale, or a regulation, -as it may please one to term it. The bed of the stream -being held by the sovereign for the benefit of the citizens that right may be enjoyed in the way .that the legislative branch of Government may determine for the benefit of the public, and it is not inconsistent with a public use to require those who .actually take .sand and gravel to pay for it so that .the benefits may be diffused among all of the people of the State.
' This does not imply the right of the State' to relinquish its control over the river bed or to permit its use in a way which would interfere with navigation. This idea finds explicit approval, we think, in the opinion of Mr. Justice Field, speaking for the Supreme Court of the United States, in Illinois Central Railroad Co. v. Illinois, 146 U. S. 387, where he said:
“The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, can pot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except.as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in tbe lands and waters remaining. It is only by observing tbe distinction between a grant of sucb parcels for tbe improvement of tbe public interest, or wbicb when occupied do not substantially impair tbe public interest in tbe lands and waters remaining, and a grant of tbe whole property in wbicb tbe public is interested, that tbe language of the adjudged cases can be reconciled. ’ ’
In tbe opinion of tbe court in tbe case of Shively v. Bowlby, 152 U. S. 1, Mr. Justice Gray, after a careful review of tbe authorities with respect to the title of the States in beds of tide waters and navigable streams, and tbe character of governmental control thereof, said: “Each State has dealt with tbe lands under tbe tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations whether owners of tbe adjoining upland or not, as it considered for the best interest of tbe public.”
This principle is recognized in tbe many decisions bolding to be valid grants by the' State of parts of tbe beds of navigable waters for wharfage purposes, or for reclamation.
In the State of Florida there is a statute prescribing the terms'upon wbicb phosphate deposits may be removed by corporations or persons from tbe beds of navigable streams and fixing prices to be paid to tbe State for same. That statute has been upheld. State ex rel. v. Phosphate Commission, 31 Fla. 558.
Now, it can not be claimed that tbe disposal or sale of sand or gravel', in tbe bed of tbe river is a relinquishment of the State’s control over tbe common property, or that it impairs the rights of common enjoyment, or that it interferes with navigation.
We are of tbe opinion, therefore, that it was within tbe power of tbe Legislature to enact this statute.
A few words must be said with respect to tbe terms of tbe .statute. It will be observed that tbe first section, wbicb has been quoted, is peculiar in that it refers to persons as well as corporations in the beginning, but requires only corporations to pay for the taking of sand and gravel. The only burden imposed upon individual citizens is that of first notifying the Attorney General. That, of course, is not an unreasonable requirement. It is only railroad corporations and other corporations which are required to pay for the sand and gravel.
This is not a tax, but a method of utilizing the common property of the State for the benefit of the citizens.
If it be treated as a privilege, that of taking sand and gravel, the corporations of the State have no rights to participate in that privilege which the Legislature is bound to respect, as they are not citizens within the meaning of the Constitution, which provides that “no privileges or immunities shall be granted to any citizen or class of citizens which upon the same terms shall not equally belong to all citizens.” Constitution of 1874, § 18, art. 2; Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509.
In very numerous decisions of the Supreme Court of the United States it has been held that corporations are not citizens within the provisions of a similar clause of the Constitution.
They are protected by the due. process clause of the Constitution of this State and of the United States, and for that reason illegal exactions can not be imposed.
But, conceding to the citizens, that is to say, to natural persons who are citizens of the State, the right to take sand and gravel as a common right, there is nothing to limit the power of the Legislature' to require corporations to pay for sand or gravel taken out of the beds of streams.
The act fixes a minimum price for sand and gravel, which must be paid in any event by the corporation taking the same, and as the act contains no express authority to the Attorney General to fix a.greater price than that, it amounts, after all, to the Legislature definitely fixing the price. The act is unobjectionable on that account.
We are of the opinion that the court erred in sustaining the demurrer to the complaint, and the decree is reversed and the cause remanded with directions to overrule the demurrer.
Hart, J., dissents. | [
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Hart, J.,
(after stating the facts). The general rule is that a master must exercise ordinary care to provide his servants a reasonably safe place in which, and reasonably safe instruments with which, to work. ■ The test of a master’s duty in furnishing appliances and a place to work is what a reasonably prudent person would'have ordinarily done in such a situation. Oak Leaf Mill Co. v. Littleton, 105 Ark. 392. The duty of a master to exercise ordinary care to provide his servant a safe place to work requires that he shall anticipate all such dangers as will likely flow from the conditions of the place in which his servants work, and the appliances with which they are provided to work. But the master is not bound to foresee and provide against every possible accident. In other words, the duty imposed does not require the master to use every possible precaution to avoid injury to his servants, but he is only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. After an accident has occurred, it may be easy to see what would have prevented it, but that of itself does not prove, nor tend to prove, that reasonable or ordinary care would have anticipated and provided against it. Labatt’s Master & Servant (2 ed), Vol. 3, § § 1042 and 1045. See, also, 26 Cyc. 1092, 1093; Ultima Thule, A. & M. Rd. Co. v. Benton, 86 Ark. 289; St. Louis, K. & S. E. Rd. Co. v. Fultz, 91 Ark. 260.
Tested by the above legal principles, is the plaintiff entitled to recover in this case? It may be said here that there is in this case no presumption created by statute to take the place of proof of negligence. The undisputed proof is that the whistle on the passenger engine, which plaintiff testified caused his injury, was a standard chime whistle, such as is used on all first-class railroads in this State, and such as is in general use on all first-class railroads in other States. It is true some of the witnesses for the plaintiff said that it was a louder whistle than the others in use on the defendant’s engines, but they did not deny that it was a standard whistle and in general use by all first-class railroads. The court told the jury that, under the undisputed evidence that the whistle on the passenger engine was such a whistle as is used by careful and competent railroad companies, and that it was not negligence on the part of the railway company to use the whistle. There was no evidence tending to show that the engineer wantonly blew the whistle. That is to say, that he blew it for the purpose of scaring or annoying the plaintiff. Some of the witnesses for the plaintiff say that it was not necessary to blow the whistle at the place where plaintiff claims that he was injured. The Twelfth Street viaduct is two blocks from Tenth Street, which had a grade crossing. The passenger train was going in that direction. Kirby’s Digest, § 6595, imposes upon railroads the duty of signaling for crossings. It ■provides that a bell be rung or a whistle blown at á distance of eighty rods from where the railroad crosses any road or street, and that the bell be kept ringing or the whistle blown until such road or street is crossed. Pursuant to this statute, the engineer blew the whistle to give warning of the approach of the train; and the act of blowing the whistle did not of itself constitute negligence. This brings us to the question of whether the situation of the parties made the blowing of the whistle an act of negligence. The plaintiff had stopped his engine under the viaduct and was leaning out of his cab window looking backward, when the whistle was blown. He says the whistle on the passenger engine was a little above him, bnt was within about six feet of his ear when the engine passed. The plaintiff claims that the act of blowing the whistle as the train passed him caused him to lose the sense of hearing in his left ear, and the sense of sight in his left eye, and impaired his hearing and’ sight in his right ear and eye. If the plaintiff’s testimony be true, his injury is a serious one, and it can be readily seen now how it could have been avoided; but it does not appear that any one anticipated it, or anything of that nature. Certainly, the plaintiff did not anticipate it. He was an engineer of experience. He knew the passenger train was running at a high rate of speed, and that the engineer, on that train might at any moment see a person on the track which would render it necessary for him to blow the whistle as a warning of the approach of the train. Notwithstanding this, he exposed himself without hesitation to the risk, and this of itself is strong proof that he did not fear or expect that any injury could result to him. The engineer of the passenger train says he blew the whistle for the crossing, and that he had no cause to believe that the blowing of the whistle would injure any-one. That he did not see the plaintiff; that he was looking ahead because he was approaching a crossing that might be a place of danger. That he had blown the whistle many times as he passed another engine on a sidetrack. That no one had said to him that the sounding of the whistle under such circumstances was likely to cause injury to sight or hearing. • That he had been placed in similar situations, and had had his ears to tingle a little, but no bad effect was afterward apparent. The physicians who testified in behalf of the defendant stated that they had examined the drum in both of plaintiff’s ears, and that they were in an absolutely normal condition. That the condition of the outer ear of plaintiff, which was affected, was normal. That they did not think the blowing of a whistle close to the ears of persons, which did not break the drum, could affect his sight. That it might affect his ear. That from an exam ination of Ms ears they did not think it possible for ■plaintiff to have been injured in the way he claims to have been injured, except from the fact that he is so injured. That they had no knowledge of such an injury having happened before. Other evidence for the defendant tends to show that no accident of tMs kind had ever happened before, on defendant’s line of road, and that no such accident had ever been known to occur. The facts bring the case within the principle of a mere accident occurring unexpectedly, and almost unaccountably. The accident was exceptional in character, and was due to causes of such rare occurrence that the defendant in the exercise of ordinary or reasonable diligence, could not have anticipated that such an injury would likely result. Therefore, it was not reqmred to foresee and provide against the happening of such an extraordinary accident. As said by Mr. Justice Cooley in the case of Sjogren v. Hall, 53 Mich. 274:
“So far as there is a duty resting upon the proprietor in any of the cases, it is a duty to guard against probable dangers; and it does not go to the extent of requiring Mm to render accidental injuries impossible.”
Taking all of the facts into consideration as they existed at the time of the injury, we do not tMnk the plaintiff showed that the defendant was negligent in failing to anticipate and provide against the occurrence of the injury. To hold otherwise, would be to disregard tho well settled law upon the subject and to make the master an insurer of the safety of Ms servant. The accident was outside of the range of ordinary experience, and the defendant, in the exercise of ordinary care, was not bound to foresee and guard against it.
The case having been fully developed, the judgment will be reversed and the cause of action will be dismissed. | [
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McCulloch, C. J.
Appellant instituted this action in the circuit court of Sebastian County, Fort Smith District, against appellee as tax collector to recover the amount of taxes alleged to have been illegally extended against its property in the county and paid under protest to said collector.
It is alleged in the complaint that appellant made a return of its property in due form to the assessor of the county, showing taxable property amounting in valuation to the sum of $237,000; that the board of equalization, during its regular session, raised the valuation of appellant’s property to $300,000, whereupon áppellant appealed from the action of the board to the county court, and that court, at its session held on the second Wednesday of October, reduced the valuation to $267,000, but on January 4, 1913, it being an adjourned day of the October term thereof, without notice to appellant, said court set aside its former order and restored the valuation of appellant’s property to $300,000, the amount fixed by the board of equalization; that the county clerk extended the amount of appellant’s taxes upon the tax books upon said valuation of $300,000 and delivered same to the collector, who demanded of appellant, and the latter paid under protest, the taxes so extended, which were, by the sum of $841.45, in excess of the true amount of a valid assessment. It is alleged that the act of the county court in attempting to make a new order changing the assessment on January 4 was void, and that said enforced collection of said sum of $841.45 was illegal. Judgment was asked against the collector for recovery of • said excessive amount.
We are not. favored with brief by appellee, and com sider the case only upon the brief of appellant and such further investigation as the judges have pursued for themselves.
Whether, in the absence of a statute linjiting the time within which the county court may change its judgments revising assessments, that court has the power to change the valuation without notice to the owner, and, after having once fixed the valuation, we need not determine, for this case, we think, is controlled by the plain letter of the statute. The General Assembly of 1911 enacted a statute, approved May 4,1911, changing the time for meeting of the county boards of equalization and extending the time thereof, and also fixing the time within-which county courts may hear appeals. Act 249, page 230, Acts of 1911. It provides, in substance, that the county boards of equalization shall meet on the first Monday in September and continue to exercise their functions until the fourth Wednesday of October, but that the assessment of property shall not be raised by a board after the second Wednesday in October until the taxpayer affected has been duly notified and given an opportunity to be heard. The act further provides for appeals from the board of equalization to the county court, and that “all appéals taken from the order of the board of equalization shall be taken to the October term of the county court, and such appeals, even if taken after the regular October term of the county court has convened, shall be heard and passed upon by said court before the fourth Wednesday in October.”
The primary question which arises is, therefore, whether the last named provision of the statute, fixing the time for county courts to hear appeals, is mandatory . or merely directory.
We held in the case of Waters-Pierce Oil Co. v. Roberts, 96 Ark. 92, that the provision fixing the time for action by the board of. equalization in revising assessments was intended to be mandatory and that any attempt on the part of the board to raise assessments after the time fixed was void.
The reasoning of the opinion in that case leads to the conclusion that the provision of.the act of 1911 now under consideration was intended to be mandatory, for the time was fixed for the.protection of the taxpayer so that he might have an opportunity to present his grievance and that a time might come when he could know that further revision of his assessment would not be attempted.
It is unnecessary in this case to enter upon any consideration of the power of the county court to continue a hearing begun within the time limit and extending over beyond it, for that question does not arise here. The county court heard the complaint in this case and rendered a judgment fixing the amount of appellant’s assessment, and later, without notice and after the lapse of the statutory time limit, undertook to make a new order.
We are of the opinion that the order was void and that appellant’s taxes should have been extended on the books at the amount which the county court fixed by its first order.
It does not follow, however, that appellant has adopted appropriate proceedings to recover the excess. The case of Sanders v. Simmons, 30 Ark. 274, was precisely like this except that the assessment of the plaintiff’s property was fraudulently raised by forgery after it had been fixed by the board of equalization. He paid the amount so extended and sued the collector for the amount; but this court held he was not entitled to recover for the reason that his complaint contained no allegation that the collector still held the funds in his hands.
It does not appear from the complaint in the present case that the collector has retained in his hands the amount of the excess, and for 'the same reason stated in Sanders v. Simmons, supra, the circuit court was correct in denying relief.
The statute (Kirby’s Digest, § 7180). affords a complete remedy for taxpayers under circumstances like this by authorizing the county court to make an order refunding taxes which have been erroneously assessed and paid into the treasury. The judgment in this case is, of course, without prejudice to the right to pursue that remedy.
Judgment affirmed. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation Case. Appellant, J. Ward Phillips, was injured in 1955, was granted compensation in November 1958 for 56 1/4 weeks at $25 per week, and then filed for increased compensation in January, 1960. This latter claim was denied by the Referee, the full Commission and the Circuit Court, and now this appeal is prosecuted by appellant. Although the above mentioned three tribunals reached the same result which we hereafter reach, this result is not reached for the same reasons. To clarify the situation we deem it expedient to set out below a chronological summary of the essential facts involved and also the several procedural steps taken.
Appellant was injured in the course of his employment on September 9, 1955. A claim was promptly filed, pending which he was paid $100 for four weeks total disability. A hearing on the claim was repeatedly delayed because of the ill health (and subsequent death) of appellant’s attorney. Finally a hearing was held before a Referee (Calhoun) on November 12, 1958. The Referee found that appellant received a 12 1/2 percent permanent partial disability to the body as a whole, and he was awarded $25 per week for 56 1/4 weeks. No appeal was taken from this award, and thirty days after the award was made the insurer paid appellant the full sum of the award, or $1,406.25. A record of the proceeding before Referee Calhoun is not contained in the record before us.
On January 18, 1960 appellant filed a claim for total permanent disability before a Referee (Mathis) at which time testimony was introduced by appellant and two other witnesses tending to show (a) that appellant was totally disabled and (b) that the doctor bills of Dr. Cole and Dr. Hundley had not been paid. The respondent contended it had paid all bills presented, and took the position that this claim of appellant was barred by Ark. Stats. § 81-1318 (b). Based on the above proceedings another Referee (Thomasson), on September 19, 1960, found (a) that the claim was barred by the above statute and (b) that all “medical bills for which respondent is responsible have been paid”.
An appeal from the above decision was taken to the full Commission. At this hearing appellant (the only witness) testified at length, principally to the effect that the bills of Dr. Cole (in the amount of $40) and Dr. Hundley (in the amount of $87) had not been paid. He also attempted to show that he was totally disabled. The respondent again contended all bills had been paid and that the claim was barred. The full Commission found: (a) The claim was not barred by statute; (b) Dr. Cole’s bill had not been but should be paid, and; (c) “there was no showing that the claimant is disabled to any further than the 12 1/2 percent for which he has been awarded and paid compensation”.
On appeal to the Circuit Court the findings of the full Commission were affirmed. In doing so, the trial court said it could ‘ ‘ find no where any testimony which indicates that his [claimant’s] present condition is in any way related to his traumatic injury in 1955”.
We agree with the result reached by the full Commission and the Circuit Court, but we reach that result for different reasons hereafter set forth.
(1) The Commission and the Circuit Court (as above shown) found claimant had produced no substantial evidence to show that his present disability exceeded 12 1/2 percent (for which he had already been paid), or, if it did, there was no substantial evidence to show such excess disability was the result of the 1955 injury. Our view is that, if the claim is not barred by limitations, the cause would have to be remanded to the Commission to give claimant an opportunity to produce the required evidence. We say this because it appears from the record that claimant was misled into a failure to produce such evidence before the Referee. The hearing before Referee Mathis (above mentiond) was the time and place for claimant to present the required testimony, but it appears to us (and it may have appeared to claimant) that the hearing was limited to the question of limitations.
Mr. Biff el: “Are we going to confine this hearing to the question of limitations?
Mr. Mathis: “Yes.
Mr. Milham: “Are you ready now?
Mr. Mathis: “Yes. Have your first witness come around and take the chair please.”
(2) It is our opinion, however, that appellant’s claim is barred by § 81-1318 (b) previously mentioned. The above subsection reads:
“Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, which ever is greater. ’ ’
The last payment was made to appellant on December 12, 1958, and his claim for additional compensation was not filed until January 18, 1960. Thus it definitely appears on the face of the record that the claim for total permanent disability was filed too late. To avoid this result, claimant contends (a) the last payment was not made until 56 1/4 weeks after the payment on December 12, 1958 and (b) all doctor bills have not been paid.
(a) Claimant’s contention before the Referee was that the -weekly payments should start on November 12, 1958 (the date of the award) and run for 56 1/4 weeks; this would extend the time to about December 15, 1959, and the one year allowed by statute would give him until December, 1960 to file his claim. For several reasons, we cannot agree with appellant. Under the statute weekly payments begin fifteen days after notice to the employer of injury [§ 81-1319 (b)]. We know claimant gave prompt notice (in 1955) because he was paid for four weeks in 1955. Also, there can he no doubt that the $1,406.25 payment was to take care of payments already accrued, and not for future accruals. This is confirmed by the language used in § 81-1319 (k) which allows a 4 percent deduction when future payments are discharged by a single total payment. This deduction was not claimed or taken here by appellees. We see no merit in the argument that claimant would be entitled to an additional 20 percent of all past due payments if the $1,406.25 is so considered. This argument is predicated on § 81-1319 (f). It will be noted however that this penalty attaches only where an award has been made. No award was made in this case until November, 1958, and payment was made the next month.
(b) Next, it is appellant’s contention that the one year statute of limitations is tolled by appellees’ failure to pay certain doctor bills. The Commission (and the Circuit Court) found that Dr. Cole’s bill for $40 has not been but should be paid. Although appellant has not specifically pointed out just how and why this would toll the statute, we assume it is because medical bills are a part of compensation and therefore the one year limitation would not begin to run until the last bill is paid. If this contention is sound, then appellant still has time in which to file his new claim. For reasons set out below, we have concluded that the above contention is not tenable.
Turning to § 81-1311 we find the employer “shall promptly provide for an injured employee such medical . . . service ... as may be necessary during this period of six [6] months after the injury . . .” This same section also provides that all persons who render such services shall submit the reasonableness of their charges to the Commission for approval. We think the only reasonable and workable interpretation to place on the above provision is that Dr. Cole (in this instance) had to present his bill or claim at least before his claim was finally processed. In this case that date is fixed as December 12, 1958 which was the last day claimant had to appeal from the award of the Referee. Any other interpretation would amount to a nullification of the one year statute of limitations. No one can reasonably contend that a doctor could, by carelessness or connivance, keep the case in suspense for an unlimited time by merely failing to present his bill to the Commission. It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills. The decisive issue therefore is: Does the record show any unpaid bills for which' appellees were liable and which were filed with the Commission before December 12, 1958. Dr. Hundley’s bill can be eliminated (as it was by the Commission and the Circuit Court) on the ground that his services were engaged by claimant’s attorney in preparation for a hearing, and therefore not a responsibility of appellees.
Dr. Cole’s bill presents a different situation. Regardless of whether or not Dr. Cole rendered services chargeable to appellees for which he has not been paid, we fail to find any substantial evidence in the record to show he filed his claim with the Commission prior to November 12, 1958. The testimony of claimant was that he talked with the Commission about the bill after the award, that is, after November 12, 1958. He said he checked with the Commission and they first said it had been paid, and that later they checked and said it had not been paid. At no time and in no way did claimant or any of his witnesses attempt to say Dr. Cole’s bill was duly filed with the Commission. In our opinion the burden was on claimant to make such showing since otherwise his claim was obviously barred by the one year statute of limitations. This burden on appellant becomes more apparent when we consider the positive testimony introduced by appellees. At the hearing before the full commission a letter was dated September. 23, 1960 from the Arkansas Claim Office of the insurer addressed to appellees ’ attorney, regarding this claim, was introduced in evidence without objection. It reads: “Attached is photo copy of the only bill Dr. Cole ever submitted to us in connection with this claim. It was paid January 10, 1956.”
It is our conclusion from all that has been heretofore said that appellant was barred by the statute of limitations. This conclusion confirms the judgment of the Circuit Court and also the Commission. We find no inconsistency in this opinion and the finding by the Circuit Court and the Commission that appellees are indebted to Dr. Cole in the amount stated. We think the Commission has the authority to order payment of a just claim regardless of whether it was filed in accordance with § 81-1311 above mentioned.
Affirmed.
McFaddin, and Johnson, JJ., dissent. | [
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