text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Sam Robinson, Associate Justice.
This case grows out of an automobile accident. Appellant, W. F. Humphreys and Randall Kitchens were occupants of an automobile driven by Jimmy Clemons. It was about 6:30 a.m. and they were on their way to work. The car was travelling south on Highway 167 south of Hampton when it collided with a truck travelling north and being driven by appellee, Augusta Reed, an employee of appellee, C. F. Wright. Humphreys, who was injured, filed this suit against Reed and Wright. He recovered a judgment in the sum of $4,000.00 and has appealed to this Court contending that the amount of the judgment is inadequate to compensate him for the damages sustained. Appellant concedes that the judgment can not be reversed solely because of the inadequacy of the damages, but he contends that there was serious error in the giving of Defendant’s Instruction No. 8; that this error, coupled with the alleged inadequate judgment calls for a reversal.
Appellant sustained serious injuries. Dr. J. B. Jamerson, a witness for appellant, testified that when he saw appellant he was in pain, had a laceration of his scalp, was confused, had a dislocation of his femur on the left, a fracture of the scapula, fracture of his left foot, contused lung on the right side, with a mild brain injury. He also had a dislocation of the first metatarsal joint and a fracture involving the base of the second metatarsal. The doctor testified that after the swelling went down he did surgery on the foot, but the most severe injury was a fracture of the hip bone socket; that this fracture pushed in toward the pelvis and is a serious injury; that the appellant was placed in traction, lying flat on his back with a wire through his tibia with a twenty pound weight on it. This traction continued for four weeks. He also testified that appellant is still 50% disabled.
Dr. D. E. White, on behalf of the defendant, testified that appellant’s injuries had healed, but that he has a slight limp because of the injury and a slight bending down of the second, third, fourth and fifth toes of his right foot; that he has a 10% disability to his left leg; that he has an ununited fracture of the collar bone and estimates that there is a 5% disability due to that condition.
According to the undisputed evidence, appellant’s medical and hospital expenses amounted to $1,716.76. Ih addition he lost time from work amounting to $2,125.00, making a total of $3,841.76 actual money damages suffered up to the time of the trial, and there is testimony to the effect that it will be necessary for him to spend an additional $1,200.00 to $1,500.00 for doctors. Moreover, there is testimony that he suffered excruciating pain and that he has a permanent partial disability ranging from 10% to 50%.
Even with all this evidence of damages we would not reverse the judgment solely because of inadequacy of the judgment. In Wadsworth v. Gathright, 231 Ark. 254, 330 S. W. 2d 94, this Court said: “When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.”
Here there was serious error in the giving of the instructions. By Defendant’s Instruction No. 8 the Court told the jury: “If you should find from the evidence that the driver of the automobile in which the plaintiff was riding was driving at a fast and reckless rate of speed, or was negligent in any of the respects alleged in the answer, and should you further find from a preponderance of the evidence that the plaintiff observed, or should have in the exercise of reasonable care observed, the manner in which the automobile was being driven and failed to caution the driver or protest the manner in which he was driving, if he had a reasonable time to do so, then he was negligent.” By this instruction the Court told the jury, among other things, that if the driver of the car was driving at a fast and reckless rate of speed and the plaintiff observed this kind of driving and failed to protest, he would be guilty of negligence as a matter of law.
Of course it was the duty of Humphreys to exercise ordinary care for his own safety. If Clemons was driv ing in a negligent manner it is entirely possible that Humphreys could be guilty of contributory negligence that would bar his recovery. Elmore, Administrator v. Dillard, 227 Ark. 260, 298 S. W. 2d 338. Whether appellant was guilty of such contributory negligence in the circumstances was a question of fact for the jury and not a question of law. In Keller v. White, 173 Ark. 885, 293 S. W. 1017, the Court said: ‘ ‘ The existence of negligence is always a question for the jury, unless the acts complained of are declared by law to be negligent per se, or unless all reasonable minds must conclude that the acts were necessarily negligent.” Citing Rector v. Robins, 82 Ark. 424, 102 S. W. 209, Reed v. State, 54 Ark. 621, 16 S. W. 819, Blankenship v. State, 55 Ark. 244, 18 S. W. 54. In Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, the Court said: The existence of negligence should be passed upon by the jury as any other fact, and it is improper to instruct them that a certain fact or group of facts amounts to negligence per se, unless such acts are declared by law to be negligence per se, or are such as to induce an inference of negligence in all reasonable minds.” In St. Louis I. M. & S. Ry. Co. v. Hutchison, 101 Ark. 424, 142 S. W. 527, the Court said: “It has long been settled law that ‘where the situation is such from which different minds might draw different conclusions as to whether, under the particular circumstances, the plaintiff was guilty of contributory negligence, the question is properly one of fact for the jury to determine. ’ ’ ’
There is a conflict of the evidence as to the cause of the collision, but there is no evidence of negligence per se on the part of Humphreys. Moreover, even if there was negligence on the part of Clemons and a failure on the part of Humphreys to caution the driver or protest the manner in which the car was driven, the evidence is not such that it can be said that different minds might not draw different conclusions as to whether appellant was guilty of contributory negligence.
Appellee cites the case of Miller v. Smith Light & Traction Co., 136 Ark. 272, 206 S. W. 329, to sustain the contention that Instruction No. 8 was not erroneous. A somewhat similar instruction was given in that case and the Court said it was not error when read in connection with another instruction; no specific objection was made to the instruction. In the case at bar, the appellant made the following objection: “The plaintiff makes general objection to the giving of Defendant’s Instruction No. 8. Further, the plaintiff objects specifically to the giving of said Instruction No. 8 for the reason that it invades the province of the jury by telling the jury as a matter of law that failure to protest the manner in which the car was being driven was negligence without leaving it for them to determine whether or not, under the facts and circumstances at the time, due care required such protest.”
Because of the giving of Instruction No. 8 requested oj appellee, the judgment is reversed and the cause remanded for new trial. | [
20,
108,
-16,
-66,
26,
0,
10,
90,
73,
3,
-9,
19,
-83,
-57,
77,
45,
-11,
77,
85,
107,
-67,
-77,
22,
-93,
-110,
-109,
107,
-43,
-79,
107,
-12,
55,
76,
56,
-54,
21,
102,
74,
-59,
60,
-50,
-76,
57,
-24,
-39,
18,
56,
126,
-48,
7,
21,
-113,
82,
46,
26,
75,
104,
40,
89,
41,
-47,
-72,
-60,
5,
-19,
20,
-80,
36,
-102,
47,
94,
24,
-112,
48,
16,
-8,
114,
-74,
-125,
-44,
107,
-103,
64,
102,
102,
34,
9,
69,
-55,
-72,
14,
-4,
15,
-121,
-117,
41,
-24,
1,
-73,
-99,
122,
16,
28,
90,
-4,
93,
29,
96,
3,
-118,
-108,
-109,
-113,
48,
-98,
58,
-21,
31,
52,
115,
-50,
-30,
93,
-123,
113,
-101,
-106,
-110
] |
Hart, J.,
(after stating the facts). The concrete case we have to deal with is that a sewer improvement district was formed in the city of El Dorado, and when it was constructed the sewage was carried into a septic tank, where it was chemically treated, and from there was discharged in the form of water into a natural watercourse which ran through, the plaintiff’s land. The water was discharged into the stream which ran through plaintiff’s land at a point about 500 feet distant from it. The plaintiff conducted a dairy on his land, and, according to the testimony adduced by him, the water course was polluted by the sewage being discharged into it so that it was rendered unfit for his cattle to drink. It was also shown by him that noxious and offensive odors emanated from the septic tank which were injurious to the health of himself and family. It was also -shown that the dis- ©barge of the sewage into the stream caused it to overflow, whereby a sediment was deposited on the grass which grew near the banks of the stream on plaintiff’s land, thereby rendering it unfit for grazing purposes until the sediment had been washed off by rains.
Our Constitution provides that private property shall not be taken, appropriated or damaged without just compensation to the owner. In the case of the Hot Springs Railroad Company v. Williamson, 45 Ark. 429, the difference between-a Constitution which contains this provision and one which contains a provision that private property shall not be taken for public use without just compensation was pointed out. The court said that it may be now taken as well settled that in a Constitution which provides that private property .shall not be damaged for public use without compensation, it is no longer necessary that there should be a physical invasion .or spoliation of one’s lands in order to give -a right of recovery.
In the application of this principle, in the case of McLaughlin v. The City of Hope, 107 Ark. 442, 47 L. R. A. (N. S.) 137, the court held that the turning of sewage by a municipal corporation into .a stream, to the injury of a lower riparian owner of property, is within our constitutional provision requiring compensation for damaging property for public use. The court further held that the damages to be awarded for the draining of sewage into a stream by the permanent plant of a municipal corporation should be assessed on the theory of á permanent taking under the right of eminent domain. The reason given is that the riparian proprietor is entitled to have the water of the stream flow through his land unpolluted and uncontaminated by the discharge of the sewage; and such right is held to be a real .and tangible property right and as much entitled to the protection of the constitutional provision as the right of the riparian owner to have the soil remain in its place. The right to have the -stream flow through his land unpolluted is a part of the freehold of which the owner can not be de p rived, except by due process of law. Therefore, the pollution of the stream constitutes a damage to his property within the meaning of the constitutional guaranty, which may not be done without compensation.
In the present case the sewer improvement district constructed the sewer and discharged the sewage into the stream which flowed through the plaintiff’s land; and this was a damage to his property by reason of the construction of the sewer, and the sewer district, and not the city is liable in damages to the plaintiff therefor. . It is true that when the sewer was completed it became subject to the control of the city of El Dorado, and the board of the sewer district no longer had control over it. Pine Bluff Water Co. v. Sewer District, 56 Ark. 205. It will be noted, however, that it was a part of the plan for the construction of the sewer that the sewage from the septic tank should be discharged into the stream which ran through the plaintiff’s land. For this reason, whatever damage the plaintiff may have suffered was an incident to the construction of the sewer. Therefore, the city was not liable to him for the damages, but the sewer district alone was liable. The measure of damages to the plaintiff would be t'he difference in value of his land before and after the stream was used as an outlet .to the sewer. Texas & St. Louis Ry. Co. v. Kirby, 44 Ark. 103. In determining the market value of the plaintiff’s property, the rule, as established in this State, is that the owngr ■may be allowed to show every advantage that his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could be sold for upon the.market. Kansas City So. Ry. Co. v. Boles, 88 Ark. 533. See also Kansas City So. Ry. Co. v. Anderson, 88 Ark. 129. In the application of these principles to the present case it may be said in estimating the damages that accrued to the plaintiff he may show the value of his land for any purpose to which it was adapted at the time the damage was done to it, and in considering its value after the stream which ran through it had been polluted by the discharge of the sewage into it, the jury might consider- the fact that the stream had been polluted by the sewage, that an additional quantity of water had been discharged, into the stream, which caused it to overflow and deposit a noxious or offensive sediment on the grass so as to render it unfit for grazing purposes, if the proof shows such to be the ease, and also the further fact that noxious and offensive odors are emitted from the septic tank which are injurious to the health or comfort of the plaintiff and his family.
The proof on the part of the plaintiff tended to show that after the sewer was constructed -and put in operation it was flushed frequently, and that the result of this flushing was to increase the pollution of the stream and also the offensive and obnoxious odors which were emitted from the septic tank. The evidence discloses, however, that it was not necessary to flush the septic tank oftener than once a year, or perhaps not that often. Therefore, the damages suffered by the plaintiff by the wrongful flushing of the tank could not be recovered either against the sewer district or against the city. Such damage was not incident to the construction of the sewer, but resulted from the wrongful acts of those who operated the sewer. The sewer district could not be held liable for the negligence -of its servants in constructing or operating the sewer. Wood et al. v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. 1057. This court is also committed to the doctrine that a city is not liable for the torts or wrongful acts of its officers. Trammell v. Russellville, 34 Ark. 105; Collier v. Fort Smith, 73 Ark. 447; Franks v. Holly Grove, 93 Ark. 250; Gregg v. Hatcher, 94 Ark. 54. Therefore, the court erred in allowing a recovery on account of the wrongful acts of the officers of the sewer district or of the city in flushing the septic tank when it was not necessary to do so.
Of course, in estimating the damages that accrued to the plaintiff the jury might take into consideration all damages that were suffered by the plaintiff on account of the necessary flushing of the septic tank, for that would be a damage that would 'be incident to the construction and proper operation of the sewer.
The evidence of the plaintiff also shows that he operated a dairy on his farm at the time the stream was taken as an outlet for the sewer. His dairy business was not a part of the realty, and if the sewer district had instituted condemnation proceedings against the plaintiff it could not have condemned either the cows used by the plaintiff or his dairy business.
The evidence of the plaintiff also tended to show that he was unable to sell his milk because his customers believed that it was impure by reason of his cows drinking from the polluted stream. He was allowed to recover damages on this account. This was error. The injury to his dairy business was not an element to be considered in estimating the damage to his land. If his land was more profitable to be used in running a dairy than for any other use, its adaptability for that use might be considered 'by the jury in estimating the damages to his land by reason of the pollution of the stream, but the court could not allow as an element of damages to his land the loss he suffered in the business of operating a dairy. The jury could only consider the injury that resulted to his land, and, as above stated, in determining that fact, the plaintiff should be allowed to show any use to which his property was best adapted, and its depreciation in value by reason of the fact that the stream which ran through his land had been used as a permanent outlet for the sewer.
We have not taken up and discussed the assignments of error in detail, or in the order in which they are presented in the briefs, but we think the principles of law which we have announced are a sufficient guide for a retrial of the case.
For the errors indicated the judgment must be reversed and the cause remanded for a new trial. | [
-16,
110,
-107,
-19,
56,
100,
-72,
-104,
73,
-85,
-27,
115,
-49,
-54,
28,
101,
-29,
127,
-11,
25,
-60,
-94,
67,
66,
-110,
-77,
-6,
-43,
-6,
76,
-28,
-51,
76,
16,
-54,
-107,
-30,
72,
-47,
-36,
-122,
6,
-117,
65,
-63,
66,
52,
107,
82,
79,
117,
13,
-13,
46,
25,
71,
9,
44,
-21,
45,
65,
114,
62,
21,
58,
4,
32,
70,
-116,
-93,
-54,
10,
-104,
49,
1,
-84,
115,
-90,
-122,
116,
13,
-117,
-120,
34,
99,
3,
45,
123,
-8,
-120,
13,
-34,
-113,
-90,
16,
24,
75,
-96,
-68,
-99,
52,
-106,
7,
120,
-26,
-123,
95,
108,
21,
-121,
-108,
-93,
-113,
-84,
-98,
65,
-21,
35,
37,
117,
-50,
-94,
92,
71,
114,
-37,
15,
-3
] |
Wood, J.,
(after stating the facts). 1. The court, at the request of appellant, granted prayers for instructions which told the jury that if the earlier receipt of appellee ’s request to embalm and hold the body would not have prevented the funeral from taking place when it did, and if the failure to embalm and hold the body was the result of Williams’s misunderstanding of appellee’s wish, expressed in her telegram, the jury should find for the appellant.
Appellant now contends that the evidence shows conclusively that the failure to embalm the body was not by reason of the late receipt of the message, but because Williams, the superintendent of the Orphans’ Home, did not understand that it was appellee’s desire’to take the body back for burial; that if Williams had known her desire in this respect, the body would have been embalmed notwithstanding the delayed telegram. The appellant, having requested the lower court to submit this as a jury question, is not in an attitude to complain that the verdict of the jury was erroneous on this issue. Berman v. Shelby, 93 Ark. 472. Moreover, we are of the opinion that it was proper to submit the issue to the jury. .
There was testimony tending to show that if the message had been received on the 30th, the day the child died, the body would have been embalmed and held in compliance with the request of the appellee. There was also testimony which warranted the jury in finding that the telegram was received twenty-two hours after the child died; that the child died with pellagra, an infectious disease; that the funeral cortege was ready to move when the message was received; that the superintendent, the president .of the board of control, and those in charge of the funeral arrangements, including the undertaker, thought that it was best to bury the body at that time as quickly as possible; that it was not safe to the other children in the home to have the casket opened up .and the body embalmed. The undertaker does state, in a .second deposition, that if he had known that it was appellee’s desire to have the body embalmed and removed, he would have removed the same to his parlors and embalmed it, even at that belated hour, if the telegram had been addressed to him. But the telegram was not addressed to him, and he could not have obtained possession of the body for embalming purposes without the consent of the authorities having control over the Home.
It-was a question for the jury, under the evidence, as to whether the failure to embalm and hold the body was caused by the delay in delivering the message, or by a failure on the part of Williams to comprehend the meaning of appellee’s telegram.
2. The court, .at the instance of the appellee, submitted to the jury to find whether or not appellant was negligent in the handling of the message from Williams to, appellee, and whether or not appellant was negligent in handling the message in reply from appellee to Williams. The appellant complains that these instructions are without evidence to warrant them. The learned counsel for appellant assumes that there was no negligence on the part of appellant in transmitting the message .as á day letter instead of a “straight message,” and contends that the uncontroverted evidence shows that, being sent as a day letter, there was no negligence in handling the same. But we are of the opinion that it was a question for the jury, under the evidence, as to whether or not the appellant was negligent, in the first place, in sending the message as a day letter instead of a regular message.
The sender of the message testified that he ’phoned the message to appellant’s agent at Monticello, and the agent in charge of appellant’s telegraph office at Monticello testified that he would have accepted the message from Williams by ’phone to be sent to appellee. The difference between the cost of the day letter and a straight message was sixteen cents. He never knew a death message sent as a day letter to save sixteen cents. A death message is only considered as a preferred message when on the prescribed form and sent as such. The 12:30 on the message was in his handwriting. He did not know when he put it there. The habit was to put the time of receiving the message on it. A straight message was given precedence over a day letter. The regular agent stated that he first saw the message about 1:30. The clerk who received the message, witness supposed, placed the day letter blank on it. The witness did not see the boy who brought it. Witness did not think that the handwriting on the message was that of Mr. Williams.
Witness Owens testified that he was clerk of the Iron Mountain Railway Company at Monticello, Arkansas, and on July 30,1912, he received a message, in the absence of appellant’s agent, addressed to Mrs. Pearl Cowardin, Bentonville, Arkansas. He wrote the.words, “Day letter — 23—paid.” He received it from some boy from the Baptist Orphans’ Home. The boy who brought it paid the tariff for a day letter on the message. Witness asked ’ the boy if he wanted it sent as a straight message or a day letter, and the boy told witness to send it as a day letter; so witness accepted it as a day letter and put it on .the file of the operator where he would get it when he came in. Witness did not explain to the boy the difference between a straight message and a day letter, supposing that the boy had instructions from Williams how to send it. Witness asked him how he wanted it sent, and he answered like he knew. Witness did not put the time it was received on it. He pasted the day letter blank on the back of the message. The paper on which the message was written was headed, “Monticello, Baptist Orphans’ Home, Monticello, Arkansas, July 30,1912.” The witness was in the habit of receiving messages in the absence of the operator- and collecting for them. He knew Mr. Williams’s handwriting; thought this was his hand writing. He had never seen any of his handwriting except his signature.
It appears that the testimony of Williams tended to show that the message was transmitted over the ’phone to appellant’s agent to be sent to the appellee, without directions as to the form it should take in sending. The message, on its face, showed that it was a death message. Witness was shown Williams’s signature to the depositions and testified that the signature upon the message was not similar to the signature on the deposition, but that the signature on the message looked like Williams’s signature. He did not know whether the body of the telegram was in Williams’s handwriting or not, as he had never seen any of his handwriting except his signature. When a message is received on a plain piece of paper, they usually attach it to the form it is to be sent on, and witness did so in this ease.
There is an irreconcilable conflict in the evidence as to whether the message was ’phoned by Williams to the operator at Montieello, or whether or not Williams sent the same to appellant’s operator at Montieello by a boy. If the message was given over the ’phone it appears then as a straight message; and, on the contrary, if it was delivered through Williams’s agent — a boy — then the testimony is to the effect that the boy directed the agent to send it as a day letter. If the agent received it over the ’phone, he assumed to send it as a day letter without first obtaining the authority of the sender, and was therefore negligent in causing an urgent death message to be classified as a day letter, and in thus having the same delayed in transmission and delivery.
The testimony of the witnesses on behalf of appellant, tending to show that the message was received through the boy as the agent of Williams, is more or less conflicting, in itself, and is in direct conflict with the testimony of appellee. Tt was therefore a question for the jury as to whether or not the appellant was negligent in the transmission and delivery of the message from Williams to the appellee.
Even though the message may have been directed by the sender to be sent as a day letter, we are of the opinion that it was still a question for the jury to determine as to whether the appellant was negligent in its transmission and delivery. It could serve no useful purpose to discuss in detail the facts which warranted the submission of that question to the jury.
It was a question also for the jury as to whether or not appellant was negligent in handling the message from appellee to Williams. The operator at the office where this message was received was requested by the appellee to forward it immediately, and he promised her that he would do so, but he did not explain to her that the office at the place of delivery was not a night office, and that the message, therefore, could not be delivered on account of office hours until the next morning, causing a delay of nine hours and forty-five minutes in the delivery of the message. Had he informed her she would have used the long-distance telephone.
The case is ruled on this point by the case of Western Union Telegraph Co. v. Harris, 91 Ark. 602. In that case we held (quoting syllabus): “Where a telegraph company’s transmitting agent knows, or, under the circumstances should know, that on account of the receiving office being closed there will be delay in delivering an urgent message which is intended for immediate delivery, it is incumbent on him to so inform the sender; and if he fails to do so, the company is liable for damages resulting from such neglect.”
3. The court granted,. among others, appellee’s fourth prayer for instruction, as follows: “If you find from the evidence that the message from Mr. Williams to Mrs. Cowardin was sent on plain paper to the office of defendant with sufficient money to pay the regular raite, and the agent of defendant, without explaining to the boy bringing the message the difference in service or cost between the 'day letters and regular messages, asked which form to send it on, and was told by the boy to send it as a day letter, and on that direction so sent it, and if you find such direction was without the knowledge of Williams, then the defendant can not avail itself of the deferred service due to the form of the message as a defense for not properly transmitting it.”
This prayer was erroneous and the granting of it was necessarily prejudicial to the rights of appellant. It assumes that it was necessary for appellant’s agent, before receiving ithe same to be sent, as a' day letter, to explain to the boy bringing the message the difference in service and cost between day letters and regular messages.
If the boy was entrusted by Williams with the mission of taking the message to appellant’s operator and of directing him how to send the same, then it was not appellant’s duty to give to Williams’s agent any explanation as to the difference between day letters and regular messages. ■ There was nothing in the testimony except the boy’s age to warrant the conclusion that he was ignorant of the difference. If the boy was Williams’s agent he was under Williams’s directions, and Williams himself, for aught the evidence shows to the contrary, may have already explained to him the difference in the messages and the particular form under which he desired the message sent.
If, as contended by appellant’s counsel, and as the evidence tends to show, Williams entrusted the boy with the duty of sending the message and gave him authority to send it as a day letter instead of a regular message, then there was no duty on appellant to explain to Williams’s agent the difference between straight messages and day letters. Williams could select his own method for transmitting the message to appellant’s operator, and it was his province to select .the form that he wished the message to take. It was not incumbent on appellant to give Williams’s agent, if the boy was his agent, any explanation of the difference between regular messages and day letters.
It was a question for the jury, taking into consideration the boy’s age, and the other circumstances, assum ing that Williams sent the message by the boy to the depot, to determine whether or not the boy was acting in the capacity of agent of Williams for the purpose of sending the message and directing the particular form it should take, or whether or not he was a mere messenger, without any discretion in the matter, and simply serving as a vehicle for the transmission of the message from Williams to the appellant’s operator at the depot.
The vice of the instruction is that it assumes as a fact that the boy was not Williams’s agent, vested with the authority to speak for Williams, and having knowledge of the difference between day letters and straight messages and discretion to select between the two. It assumes as a matter of law that it was necessary for appellant to explain the difference between a regular message and a day letter to the boy regardless of the evidence tending to show that the boy was about fourteen years of age, and that he appeared to know the difference. The instruction assumes that the boy was not Williams’s agent to send the message, and also assumes that in giving directions that the message should be sent as a day letter, the boy was acting without authority from, and without the knowledge of, Williams.
Other objections are urged, but we find no reversible error in the rulings of the court except as above indicated. For the error in granting appellee’s prayer for instruction No. 4, the judgment must be reversed and the cause remanded for a new trial. | [
49,
-20,
-3,
-67,
43,
96,
34,
58,
82,
-15,
33,
83,
-83,
-45,
-100,
111,
59,
-73,
81,
107,
-44,
-93,
7,
40,
-14,
-45,
113,
-107,
-15,
108,
62,
127,
77,
32,
74,
-43,
102,
74,
-59,
-48,
-114,
-124,
9,
-32,
25,
18,
32,
122,
126,
15,
-43,
-98,
-93,
42,
24,
-57,
107,
44,
123,
61,
-64,
48,
-86,
5,
63,
6,
-77,
-90,
-102,
-85,
-40,
60,
24,
49,
0,
-24,
113,
-74,
2,
84,
105,
-119,
8,
114,
99,
33,
13,
109,
-104,
-103,
46,
-82,
61,
-89,
-108,
41,
104,
45,
-105,
113,
53,
20,
30,
120,
-2,
85,
94,
36,
8,
-50,
-10,
-105,
-35,
60,
-100,
26,
-21,
1,
50,
113,
-36,
-78,
84,
-59,
122,
-45,
-122,
-46
] |
Sam Robinson, Associate Justice.
The only issue here is whether the evidence is sufficient to support the verdict.
On the 28th day of May, 1959, appellant, Bruce Williams, while driving north on a side road, approached Highway No. 38 in Woodruff County near Cache River. When Williams drove onto the highway, appellee, Jack Wood, driving east at about 60 miles per hour, swerved to his left and ran into a ditch, demolishing his car. Bruce Williams and Walter Williams, his son, were engaged in farming, either as partners, or Bruce was the agent of Walter. Bruce had been to a field to see if it was dry enough to plow.
Appellee, Wood, alleged in his complaint and testified that Bruce Williams stopped the truck before driv ing onto Highway No. 38, and let another car going east on that highway, pass, but then drove directly out on the highway in front of Wood, when Wood was so close that it was necessary for him to swerve his car and go into the ditch in order to avoid a collision. Williams claims that he did not drive onto Highway No. 38 so far as to canse Wood to drive in the ditch; that Wood’s action in going into the ditch was due to his own negligence. Just who was negligent was clearly a question for the jury, and Wood’s testimony that Williams drove out in front of him when he was so close that he had to take to the ditch to avoid a collision was sufficient testimony to support the verdict. There is no contention that the judgment in the sum of $480.00 is excessive.
Affirmed. | [
112,
108,
-12,
12,
10,
-96,
42,
26,
89,
-93,
-28,
83,
-17,
-53,
68,
97,
-73,
93,
85,
106,
-9,
-93,
23,
-15,
-110,
-77,
107,
-52,
49,
73,
-76,
85,
76,
48,
-54,
85,
38,
72,
-59,
88,
-50,
6,
-87,
112,
-55,
-110,
-84,
47,
54,
15,
-15,
-114,
-45,
46,
24,
103,
45,
44,
123,
40,
81,
-80,
12,
4,
95,
16,
-79,
-92,
-97,
-127,
-40,
42,
-48,
-79,
8,
-8,
114,
-90,
-112,
-44,
41,
-103,
8,
-26,
119,
1,
29,
-19,
-4,
-103,
14,
-2,
13,
-89,
20,
24,
67,
41,
-97,
29,
127,
80,
14,
122,
-3,
69,
93,
108,
19,
-50,
-108,
-95,
-115,
124,
-100,
24,
-29,
7,
18,
97,
-51,
-14,
93,
69,
114,
-101,
23,
-78
] |
Sam Robinson, Associate Justice.
In October, 1945, C. W. Vincent and his wife, for the consideration of $1,100.00, conveyed by Warranty Deed to J. C. Perry and his wife, Mabel, a tract of land consisting of about 16 acres. The Perry’s son, Charles, was in the army at the time and with his consent about $900.00 of his money was used in making the purchase. Mrs. Perry took the deed home and placed it among Charles’ effects.
Charles returned from the army in 1947 and Mrs. Perry delivered to him the deed. She contends that the property was bought for Charles. He took the deed to the scrivener (not the grantor) who had drawn it originally and had it changed by erasing and marking out the names of the original grantees, J. C. Perry and Mabel Perry, his wife, and writing Charles E. Perry, his own name, thereon as the grantee. He then had the deed placed of record.
Charles’ mother and father, J. C. and Mabel Perry, the original grantees, continued to live on the land. In 1947 Charles sold three acres of the 16 acres to Other Vance for the consideration of $650.00. In 1957 Mabel Perry separated from J. C. Perry and moved from the property, although there has been no divorce.
In 1960 Charles and his wife went to the place involved and attempted to physically eject J. C. Perry from the property by force. Quite a fight took place. J. C. struck Charles with a hammer and Charles’ wife shot at J. C. with a shotgun.
In August, 1960, Charles and his wife executed and delivered to Charles’ Mother, Mabel, a Warranty Deed to the property. In October, 1960, Mabel, claiming sole ownership under the deed from Charles, filed this action in Circuit Court to eject J. C. Perry from the property.. He answered alleging that he and Mabel bought the property from the Vincents in the first instance but that the deed had been altered and further that he had acquired, the property by adverse possession. On defendant’s motion, the cause was transferred to Chancery Court and the Chancellor held that Mabel Perry is the owner and J. C. Perry has appealed.
The deed shows on its face that it was oigrinally made to “J. C. Perry and Mabel Perry, his wife” as. the grantees and that it has been altered to show “Charles E. Perry” as the grantee. The deed executed and delivered by the Vincents showing J. C. Perry and his wife, Mabel, as grantees, conveyed the title and vested an estate by the entirety in the Perrys. Charles could. not thereafter — two years after the deed was executed and delivered — divest them of title by merely altering the deed by which they had acquired title.
Charles was not one of the parties to the conveyance and his alteration of the deed in the circumstances did not affect the title conveyed by it as originally drawn. It is true that in the case of Inglish v. Breneman, 5 Ark. 377, the Court, in discussing a promissory note, said that the alteration by the parties or any other person voids the instrument, and in Williams v. Welch, 223 Ark. 214, 266 S. W. 2d 61, the Inglish case is cited for the principle that any alteration in a material part of any instrument voids it, but then the Williams case was decided on the proposition of whether fraud was perpetrated by one of the parties in the instrument involved.
In Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449, the Court announced the rule that is in accord with the great weight of authority. The Court said: “It is now the settled doctrine of the courts that alteration of an instrument by a stranger (an act commonly called spoliation) has no effect on the rights or liability of the parties.” In Woods v. Spann, 190 Ark. 1085, 82 S. W. 2d 850, it is stated: “An alteration, to have the effect of avoiding an instrument, must not only be material, but must be made by a party or privy to the instrument, or with his knowledge or consent.” In Robertson v. Southwestern Company, 136 Ark. 417, 206 S. W. 755, the Court quoted with approval from 2 Corpus Juris 1200 as follows: “Where the change is made by one who is or was the agent of one of the parties, but without authority from the principal, either express or implied from the circumstances, to make any changes, and the matter is outside the scope of his particular employment, the act is generally considered to be a mere spoliation and has no effect upon the instrument or the rights and liabilities of the parties thereto . . .”
In Tiffany on Real Property, 3rd Ed., Vol. 4, Pg. 43, it is said: “The substitution of another name as that of the grantee, without the grantor’s consent, can ob viously not operate to vest title in the person whose name is substituted.”
Charles is not a party to this action and did not testify. Mabel acquired nothing in the deed from Charles. He had nothing to convey because his altering of the deed from the Vincents to J. C. and Mabel Perry did not divest them of title. It necessarily follows that J. C. and Mabel Perry still own the property as an estate by the entirety.
Reversed.
Bohlinger, J., not participating. | [
113,
108,
-4,
108,
24,
-92,
10,
-88,
106,
32,
-25,
83,
-71,
-61,
64,
45,
-27,
109,
85,
127,
-89,
-77,
55,
-95,
-110,
-109,
-7,
-35,
48,
93,
-12,
87,
76,
48,
-118,
93,
-62,
75,
-57,
84,
-50,
-127,
40,
64,
83,
16,
48,
59,
16,
15,
81,
-113,
-29,
-82,
21,
79,
-56,
44,
-55,
57,
-48,
-86,
-114,
-116,
-1,
55,
-80,
33,
-100,
7,
-8,
8,
-104,
53,
-128,
-88,
115,
-74,
18,
84,
6,
-117,
44,
96,
115,
16,
-59,
127,
120,
-117,
46,
-22,
-123,
-90,
22,
72,
73,
96,
-65,
-99,
125,
64,
63,
116,
-25,
5,
92,
-88,
45,
-113,
-42,
-77,
46,
120,
-100,
2,
-5,
47,
32,
96,
-51,
-94,
125,
103,
61,
-109,
-116,
-78
] |
Ed. F. McFaddin, Associate Justice.
From a decree awarding him a divorce and fixing child custody and support payments, the husband, Mr. Haller, prosecutes this appeal against the Chancery decision as regards divorce, child custody and support. The parties were married in 1954, and are the parents of a son five years of age. They separated in 1960; and Mrs. Haller filed suit for divorce, child custody, support, etc. Mr. Haller cross complained, seeking divorce, child custody, and property division. At the trial from which comes this appeal, the issue of property division seems to have been settled satisfactorily; but the other three issues remain.
I. The Divorce Issue. The Chancery Court denied Mrs. Haller’s petition for divorce, and she has not appealed ; so her claim is not before us. The Court granted Mr. Haller a divorce, and he claims the Court was in error, as he does not desire one. We thus have the strange spectacle of a man complaining because he received a divorce he had originally sought; but under the specific factual situation here presented, we conclude that Mr. Haller is correct, because, before final submission, he sought to dismiss his cross complaint for divorce. Mrs. Haller presented her case in chief; Mr. Haller pre sented his case; Mrs. Haller testified in rebuttal; and Mr. Haller testified in surrebuttal. Here is the concluding question asked Mr. Haller and the exact proceedings thereafter:
“The Court: That was after October 21st?
“A. Yes, sir.
£ £ Mr. Monerief: That is all.
‘' Mr. Botts : That is all.
" Witness excused.
“The Court: We have a complaint filed by Doris Haller against the defendant, Ralph Lewis Haller, under date of November 18, 1960, in which she seeks, among other things, divorce and absolute custody of the minor child and support and maintenance for the minor child, and she asks that she be awarded title and right of possession of certain property that the parties either purchased or were given to her in her individual capacity.
“The defendant was personally served and filed an answer November 28, 1960, denying the allegations of the complaint, and the defendant under date of December 19, 1960 filed a cross complaint in which he alleges that he is entitled to the possession of the minor son, Ralph Lewis Haller, Jr., and then under date of February 27, 1961 defendant filed an Amendment to his Cross Complaint in which he prays for a divorce from the plaintiff.
“Mr. Monerief: We withdraw prayer for divorce.
“Mr. Botts: We object.
“The Court (continuing): The complaint of the plaintiff for prayer for divorce, on the basis of the evidence and the testimony, is denied, and her complaint for divorce will be dismissed. The plaintiff will be given custody of the minor child of the parties, subject to right of defendant to visit with this child at any reasonable hour and at any reasonable time. The defendant will be ordered to pay $18.00 per week for support and maintenance of this minor child. Mr. Botts is allowed an additional attorney fee of $100.00.
“Mr. Moncrief: Again I want the record to show we are dismissing our cross complaint for divorce.
‘ ‘ The Court: The Court is ruling at this time it is too late to withdraw complaint asking for divorce.
“Mr. Moncrief: We are using the word we are ‘dismissing’ it and the Court is using the word ‘withdrawing’ it. As I understand it, the court is denying dismissal of the cross complaint asking for divorce.
“The Court: That is right. I am denying your motion. You are in effect leaving the cross complaint in the record as I believe it should be at this late hour. Now it is probably too late to take a nonsuit or dismissal.
“Mr. Moncrief: Note our exception to that ruling of the Court. ’ ’
The learned Chancellor evidently thought when each attorney said “That is all” and the witness was excused, that both parties had rested the case and submitted it for a decision. But we do not find the words “We rest” anywhere in the record. In the absence of the words “We rest,” the Court proceeded to forthwith deliver the factual findings; but, before Mr. Haller’s cross complaint for divorce was decided his attorney moved to dismiss it. The Court held that it was too late to dismiss the cross complaint; and in that ruling we conclude the Court was in error. Even if Mr. Haller did not have an absolute right to dismiss his cross complaint — which we hold he did — the Court still had discretion to allow him to dismiss his cross complaint for divorce; and under either theory we think the decree of divorce should be reversed.
Our statute on “Dismissal of actions” is § 27-1405 Ark. Stats., and says in part: “An action may be dismissed .. . . first. By the plaintiff before the final sübmission of the case ... to the court, . . .” After final submission, the motion for voluntary nonsuit is within the discretion of the Court (Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583); but before final submission, the plaintiff (in this instance the cross complainant, Mr. Haller) has the absolute right to dismiss his cause of action. Our cases hold that a case is not submitted until the argument is closed and the case submitted to the jury or the Court. Carpenter v. Dressier, 76 Ark. 400, 89 S. W. 89; Mutual Benefit v. Tilley, 174 Ark. 932, 298 S. W. 215. In view of the record before us as heretofore detailed, we hold that Mr. Haller had not lost his absolute right of dismissing his cross complaint when Ms attorney stated such desire.
It must be remembered that the policy of the law is to maintain the marriage relationship, rather than to dissolve it. In C. J. S. Vol. 27A, page 27, “Divorce” § 8, holdings from the various jurisdictions are cited to sustain this text:
“It is generally recognized that the state or the public has an interest in the marital status, its continuance, and dissolution, but an unwilling party, although legally entitled to a divorce, cannot be compelled to procure a divorce, or to consent to a divorce, either ecclesiastical or civil, and it is always optional with a party who is legally entitled to a divorce whether to exercise the right. Thus, the guilty party in a divorce action has no personal right to insist that a divorce be granted against the wishes of the innocent spouse.”
With regard to his willingness to maintain the marital relation, Mr. Haller testified:
“Mr. Moncrief (continuing): Mr. Haller, for the sake of your boy, after you had heard and seen what you saw, for the sake of your boy would you have preferred to go ahead and make a home ?
“A. Yes, sir.”
So we hold that the divorce should not have been awarded to Mr. Haller against his express wishes.
Mrs. Haller relies on Rowell v. Rowell, 184 Ark. 643, 43 S. W. 2d 243, as being a case wherein the husband was not permitted to withdraw his suit for annulment, but the factual situation in the reported ease is entirely different from that in the case at bar. In the Rowell case, the husband had filed suit for annulment of the marriage. The wife had cross complained for divorce. She put on her evidence to overcome the allegations and insinuations in his suit for annulment. He then asked to dismiss his complaint, apparently in an attempt to defeat the Court’s jurisdiction; but the Court refused to dismiss his petition, denied him an annulment, and granted the wife a divorce. In the case at bar, the wife was denied the divorce; and the husband, in attempting to dismiss his cross complaint, was trying to maintain the marital status, which the law favors, as heretofore stated.
We therefore conclude that the decree of the Chancery Court awarding Mr. Haller a divorce was in error and to that extent the decree is reversed and the cause remanded with directions to set aside the divorce decree awarded Mr. Haller. Thus the parties remain husband and wife.
II. Child Custody and Support. Mrs. Haller all the time had the custody of the little boy; and Mr. Haller sought to have the Court give him the custody. We can not say that the Court erred in awarding the custody of the child to the mother. It is a well-established rule that the welfare of the child is the polestar; and there is nothing in the record to show that Mr. Haller could and would have provided a suitable home for the child. The award of $18.00 per week for support appears to be reasonable in view of the circumstances of the parties. We therefore affirm the decree of the Trial Court as regards child custody and support.
III. Visitation. The decree merely recites that the father is ‘ ‘ allowed to visit said child at reasonable times and under proper conditions. Mr. Haller insists that this indefinite language gives Mrs. Haller the right to determine when, where, in whose presence, and under what circumstances the father can visit with his son. The contention possesses merit, because there was testimony that the parents had disagreed as to what constituted reasonable times and proper conditions or circumstances for visitation and that Mrs. Haller had, on certain occasions, denied appellant the right to even see the child. Therefore, we think the Chancery Court might well state definite visitation rights for the father.
IV. Conclusion. The divorce decree granted on the cross complaint of the appellant is reversed and the cause is remanded with directions to set aside the divorce, so that the parties remain husband and wife. We affirm those portions of the decree that awarded custody of the minor son to his mother and awarded her $18.00 per week child support. The Trial Court will also provide definite visitation rights for the father. All costs are to be paid by Mr. Haller, together with an additional fee of $100.00 to Mrs. Hallers attorneys for services on this appeal.
Attorney for Mr. Haller.
Attorney for Mrs. Haller.
In addition to the cases and authorities hereinbefore cited, we mention the following: In 138 A.L.R. 1,100, there is an annotation on “Right of plaintiff, or of defendant who has filed counterclaim or cross complaint, in an action for divorce, separation, or annulment, to a voluntary dismissal or nonsuit. And in 22 L.R.A. (N.S.) 999, there is a case note entitled “Right to enter decree of divorce against the objection of the spouse aggrieved.” See C.J.S. Vol. 27A, page 539, “Divorce” § 146; 17 Am. Jur. 521, “Divorce and Separation” § 378; and see also Dorsey V. Dorsey, 226 Ark. 192, 289 S.W. 2d 190. | [
-80,
-24,
-28,
126,
58,
-96,
42,
88,
98,
1,
63,
-45,
-5,
-45,
0,
125,
-110,
75,
65,
106,
-45,
-74,
87,
96,
114,
-13,
-16,
-39,
-79,
-49,
-19,
-41,
76,
32,
-126,
-43,
66,
-125,
-63,
20,
-122,
2,
-101,
-51,
-39,
-58,
52,
121,
90,
15,
49,
-98,
-13,
44,
61,
-9,
72,
44,
91,
56,
-44,
-80,
-118,
29,
95,
6,
-111,
36,
-106,
-124,
88,
46,
-104,
57,
0,
-23,
51,
-90,
-122,
116,
75,
-71,
9,
96,
98,
2,
13,
-1,
-8,
-119,
78,
40,
31,
-90,
51,
72,
72,
96,
-66,
-68,
117,
80,
47,
126,
-24,
13,
21,
-20,
10,
-113,
-106,
-111,
-113,
122,
-100,
-120,
-17,
-29,
112,
113,
-53,
-96,
92,
70,
59,
-77,
-114,
-42
] |
Sam Robinson, Associate Justice.
On July 1, 1919, the Missouri Pacific Railroad Company entered into a contract with certain individuals operating a gin as a partnership whereby the railroad company constructed a switch at a side track to furnish service to the gin. Among other things the contract provides:
“Shipper forever shall defend, indemnify as an insurer and save harmless the carrier from, for and against any and all liability, judgments, outlays, and expenses, whatsoever . . . consequent on any fire howsoever set out in Shipper’s premises.”
It appears that at least for the last past 19 years the gin has been operated by appellee, Solomon Brothers, Inc. It is not shown at just what time the partnership quit operating the gin nor is it shown how or under what circumstances the appellee became the operator of the gin.
In November 1954 a fire occurred on the gin property and destroyed three box cars belonging to the railroad company. Appellant, Aetna Insurance Company, had issued to the railroad company a fire insurance pol icy covering the box cars. Pursuant to the terms of the policy, the insurance company paid the railroad company for the loss sustained as a result of the fire and the railroad company in turn assigned to the insurance company its asserted claim against the gin company for damages alleged to be due under the terms of the 1919 contract between the railroad company and the partnership. The insurance company sued the appellant corporation on the assignment. There was a trial resulting in a judgment for the defendant gin company and the insurance company has appealed.
Several points are argued but we reach only one. There is no showing in the record that the appellee corporation assumed the obligations of the partnership on the contract between the partnership and the railroad company. In fact, there is no showing of how or from whom the gin company obtained the possession of the gin. It may have been that the corporation obtained the gin from the partnership. On the other hand the gin may have passed through the hands of several others before it was acquired by the corporation. In any event, there is no showing that the corporation assumed the obligations of the partnership or that the corporation ever heard of the contract in question until after the fire occurred.
Affirmed. | [
-80,
126,
-4,
-115,
-104,
96,
56,
-70,
87,
-30,
-25,
83,
-19,
-62,
-111,
45,
-17,
125,
81,
58,
-12,
-93,
3,
2,
-42,
-109,
-7,
-59,
-79,
75,
108,
-58,
76,
48,
10,
-43,
-26,
-62,
-63,
28,
-54,
44,
58,
-32,
-103,
-47,
48,
-38,
82,
70,
81,
-113,
-79,
44,
17,
67,
109,
62,
-19,
41,
-16,
112,
-118,
-107,
103,
20,
33,
36,
-100,
-91,
-56,
14,
-112,
-79,
17,
-88,
115,
54,
-122,
116,
41,
-119,
-64,
102,
99,
32,
5,
-81,
-50,
-128,
46,
-18,
-97,
-121,
52,
24,
11,
11,
-75,
29,
84,
23,
-89,
-2,
-4,
5,
31,
108,
1,
-114,
-76,
-32,
47,
-30,
-98,
7,
-18,
3,
32,
116,
-51,
58,
93,
70,
62,
27,
-49,
-44
] |
Carleton Harris, Chief Justice.
This is an action for damages for personal injuries allegedly resulting from the breaking of the webbing of the passenger’s seat belt worn by Mrs. C. W. Kapp at the time of a motor vehicle collision which occurred on highway 66 near Amarillo, Texas, on October 12, 1957. Mrs. Kapp was a passenger in a 1954 Oldsmobile, operated by her husband, C. W. Kapp, and owned by the Blytheville Water Company. The Kapp’s vehicle collided with a 1956 Ford driven by Mrs. Robert Morales. The Morales car evidently skidded on a slick highway and crashed into the Oldsmobile. A third automobile, driven by James T. Arnold, which was following behind the Morales car, then hit the latter automobile. Two passengers were thrown from the Morales car and killed, and the Kapps received extensive and painful injuries. Mrs. Kapp’s head hit the dashboard, and she suffered severe injuries, mainly about the head and face, including the loss of most of her upper and lower teeth, and related jawbone. Suit was instituted in tort under negligence theories of product liability, by the Kapps against Sullivan Chevrolet Company of Blytheville, from which company the seat belt in question was purchased. The purchase was made by the Blytheville Water Company, employer of Mr. Kapp, and installed on the Kapp’s Oldsmobile by Sullivan in December, 1956. Sullivan filed a third party complaint against General Motors Corporation, from which it acquired the seat belt, as a joint tortfeasor. The complaint against Sullivan alleged the liability of that defendant under the doctrine of res ipsa loquitur, and specific negligence, inter alia, as follows: insufficient webbing strength and inadequate webbing durability, improper installation, inspection, and failure to properly instruct Kapp in the use of the belt. It was further alleged that the quality of the seat belt was misrepresented, and that promotional advertising materials circulated by the company had motivated appellants’ decision to purchase these particular belts; that the belts were not as represented. After the court, over the objections of appellants, permitted the third party complaint to be instituted against General Motors, the Kapps amended their complaint to charge the third party defendant with certain acts of negligence. After also alleging that the doctrine of res ipsa loquitur applied against this appellee, appellants, inter alia, alleged specific negligence a follows:
(a) The General Motors belt did not possess sufficient webbing strength to properly withstand the impact stress of automobile collisions;
(b) The belt and webbing material was not sufficiently durable to withstand ordinary wear, tear, and deterioration for a reasonable period of time. General Motors was further negligent by
(c) failing to design a crashworthy automobile seat belt or to specify or require suitable materials therein;
(d) selecting Davis as its supplier and failing to specify and require proper webbing tests by supplier and to supervise such tests;
(e) failing to itself properly test the product;
(f) selecting Sullivan Chevrolet as its distributor and installer of seat belts in the Blytheville community; Sullivan Chevrolet was not properly qualified nor equipped to discharge that function;
(g) failing to train Sullivan’s workmen or to require training of that dealer’s workmen to (1) detect flaws or weaknesses in seat belt webbing or (2) to properly install or test the belts when installation was complete, and
(h) failing to warn or inform the public of the limitations in safety or strength of the General Motors Corporation — Davis belts, or to mark or label the belts in that respect.
After the filing of several amendments, and answers thereto denying liability, the taking of discovery depositions, requests for admissions, and numerous motions, the case proceeded to trial on June 20, 1960, and continued until June 24th. At the close of all the evidence, the Sullivan Chevrolet Company and General Motors Corporation separately moved for directed verdicts, and the court granted these motions. From the judgment so entered, appellants bring this appeal.
The record in this case is voluminous; in fact, it is one of the largest transcripts ever filed in this Court. We think it well to state at the outset, that after close study of the allegations and the proof, we agree with the trial court that any verdict rendered for appellants, would necessarily be based on conjecture and speculation, and we have accordingly concluded that the evidence was insufficient to sustain a verdict against either Gen eral Motors or Sullivan Chevrolet Company. The basis for this conclusion will be hereafter discussed. In the meantime, we proceed to a discussion of some of the particular points urged by appellants as grounds for reversal.
First, appellants contend that the doctrine of res ipsa loquitur applies, and the case should have been submitted to the jury under that doctrine. Numerous pages in the brief are devoted to this argument, but we cannot agree with appellants, for all the elements necessary to permit application of the doctrine are not present. Among essential requirements are superior knowledge on the part of defendant as to the cause of the accident, the absence or unavailability of direct evidence of negligence, the existence of a sufficient duty on the part of defendant to use due care, and the accident must be caused by cm agency or instrumentality within defendant’s exclusive control. In 37 Words and Phrases, Res Ipsa Loquitur, page 488, paragraph 5, we find:
“The mere happening of accident does not justify recourse to ‘res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable. ’ ’
In Bouvier’s Law Dictionary, Vol. II, p. 2908, appears the following:
“When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”
Further:
“The doctrine is that when a thing which causes injury without fault of the person injured, is shown to be under the exclusive control of defendant and would not cause the damage in ordinary course if the party in control used proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from defendant’s want of care.”
In the instant case, we agree there was a duty on the part of each defendant to respectively use due care in the manufacture and inspection of the seat belt, and the installation of same in the Kapps’ automobile. Likewise, we agree as to the unavailability of direct evidence of negligence on the part of the company. To trace the particular history of the belt in question is impossible. The seat belts sold by General Motors, including this one, were neither numbered nor dated, and of course, proof of specific acts of negligence in the manufacture of the belt cannot be made. But we cannot say that the mere fact the belt broke shows it was defective, for in the first place, the proof reflects that no safety belt can withstand too great a stress upon it, and though this were not so, still an essential element for the application of the doctrine is missing, for this belt was not under the exclusive control of defendants. The proof reflects that the belt had been installed in the Oldsmobile and used for a period of approximately ten months before the collision in which it broke. During this period of time, it was used and controlled by appellants. Like any other article, a seat belt is subject to misuse, i.e., it can be weakened, for instance, among other things, by closing a door on it. Whether this particular belt was weakened by misuse, as far as the doctrine of res ipsa is concerned, is beside the point; the fact remains that the instrumentality allegedly causing the injury was not under the exclusive control of either appellee for the ten months’ period,. This precludes the application of the doctrine. Though we do not find it necessary to go so far in determining this case, it is interesting to note that the Supreme Court of Nebraska, by unanimous opinion, in the case of Sleezer v. Lang, 102 N. W. 2d 435, held that “a safety belt is not such a piece of equipment that the doctrine of res ipsa loquitur applies thereto in case it breaks.”
Appellants contend that they were prejudiced by the action of the court in permitting General Motors to be made a third party defendant by Sullivan. This contention is discussed rather at length, but we do not agree. It is true that General Motors was not a necessary or indispensable party as far as Kapp’s action against Sullivan was concerned, but under the allegations of Sullivan ’s third party complaint, the latter was entitled, under the Uniform Contribution Among Tortfeasors Act (Ark. Stats. Anno., § 34-1001) to join General Motors as a third party defendant. Of course, one of the primary purposes of the Act is to prevent the multiplicity of suits. Appellants’ principal allegation of prejudice was that the third party proceedings prevented a consolidation of the separate negligence and warranty actions brought by appellants against Sullivan. However, the record reflects that appellants subsequently withdrew the motion to consolidate. At any rate, it is admitted that Sullivan might well have a right of action over and against General Motors, and we have held that the invoking of the remedy afforded by the Act is discretionary with the trial court. We are unable to say that the court here abused its discretion in permitting the third party complaint to be filed.
Appellants complain that they were not permitted to present evidence as to appellees’ tort of negligent misrepresentation through advertising, and error was thereby committed by the court. We very quickly reject this contention. In the first place, none of the excluded advertising specifically referred to seat belts, and no representation concerning seat belts is found in such advertising. Eather, in general, the advertising deals with the automobiles sold by General Motors, such as an advertisement in Life magazine captioned, “General Motors Leads the Way”- — “General Motors Products are Known and Trusted Around the World — -Wherever Wheels Turn and Propellers Spin” — “The New 1956 General Motors Cars Are Way Out in Front in Performance and Safety.” Certain advertising by Sullivan, appearing in the Blytheville Courier News, was offered, such, as “We’ve Got the Know How . . . Factory-Trained Mechanics . . . Experts . . . Factory-Approved Methods” — “The Leaders in Quality Service.” The only reference to seat belts in any of the advertising is purely a mention in a few ads that seat belts can be obtained as optional equipment, but there is no representation at all as to the quality or performance of the seat belts.
In addition, the evidence reflects that Kapp did not rely upon any representations made through advertising in purchasing the belts from Sullivan Chevrolet Company. He simply stated that he purchased the belts because the president of his company instructed him to do so. Kapp apparently selected Sullivan because he had already been doing business there, and was well acquainted with the foreman of the shop.
Appellants next complain that their rights to the use of discovery were abridged. To consider each alleged grievance would constitute an opinion in itself, for more than an entire volume of the transcript relates to motions, discovery interrogatories, requests for admissions, and related pleadings. Offhand, it would appear that discovery procedures were utilized, at least, as fully in this case as in any to ever be filed before the Court. In December, 1958, appellants took the discovery deposition of Charles M. Love, claims adjuster for U. S. F. & G. Insurance Company. This company carried the liability insurance on the Oldsmobile driven by Kapp, and likewise had issued a liability policy covering liability of Sullivan Chevrolet Company for any negligence in connection with the operation of its shop. In January, 1959, motions were filed for the production and inspection of certain documents, which apparently were complied with. In the following April, appellants took the discovery deposition of all employees of Sullivan Chevrolet Company who were connected with the seat belt sale or installation. In the same month, interrogatories were directed to General Motors Corporation under the discovery act. In May, a motion was directed to Sullivan Chevrolet to require the production for in spection and copying of the various investigative files of the liability insurance carrier. An order was entered by the court directing Sullivan to produce for appellants all signed or court reporter statements of witnesses, and memoranda made of the testimony of other witnesses, interviewed in the original investigation made in Texas following the accident. The Kapps complain that this last did not go far enough in that appellants were seeking access to the original reports made by the carrier. Quite a lengthy argument is directed to this point, but we find no prejudicial error. For one thing, there is no showing that the court’s order did not give access to all the statements and memoranda contained in the original investigation file. While it is not entirely clear, appellants are apparently complaining that the comment of investigators and correspondence with attorneys was omitted from the order. Appellants say that the information was necessary in regard to ‘ ‘ the measurements, the facts of the accident, explanation, and other pertinent data.” It is quite difficult to determine the definite information sought by appellants, — or the use to be made of same, — or why the information furnished was inadequate. Without discussing the propriety of the request, let it be said that it definitely appears from the evidence introduced by appellants at the trial, relative to the manner in which the accident occurred, that the information sought was obtained, either from the statements and memoranda made available by the court order, or from other sources. In other words, there was no showing of prejudice.
Discovery interrogatories were served on Sullivan Chevrolet Company, answers filed, objections filed thereto, and supplementary interrogatories were subsequently directed to Sullivan. Supplementary interrogatories were also directed to General Motors. Appellants filed requests for admissions against both appellees. This was followed by a second request for admission with numerous exhibits annexed. Appellants complain that Sullivan, as president of the Chevrolet company, withheld valuable information under the guise of giving only his personal knowledge. It appears from reading the interrogatories and answers, that Sullivan gave all the information of which he had personal knowledge or had been told, including the sources of his information. In answer to the first interrogatory propounded to Sullivan, the names of all persons known to have any information concerning relevant facts were furnished, together with addresses. Sullivan gave the substance of the reports furnished him by General Motors, Davis Aircraft and Edward Dye (expert appearing on behalf of appellees at the trial of the cause), to the effect that the belt broke because the force of the impact was so great that no belt could have withstood such force, and also because it appeared that the belt had been subjected to abuse. Appellants complain that appellees failed to furnish them with the names and addresses of experts in the seat belt field. We do not understand this contention, for the transcript shows that information concerning the experts consulted by appellees, including names, addresses and identity, was furnished; also, appellees listed the names of leading experts in the field. The transcript likewise reveals numerous names of employees of General Motors and Davis Aircraft Products, who had knowledge of seat belt manufacturing operations. Appellants say they were not given sufficient information, but they filed no objection to the sufficiency of the answers, and apparently never made any effort to take the deposition of any of the persons named. Actually, appellants’ own requests for admissions establish that appellants themselves knew and had the addresses of numerous manufacturers of seat belts, some close by, from which expert information could have been obtained.
Appellants further complain that discovery was not permitted relative to changes in belt specifications subsequent to the sale of this particular belt. Of course, the question in issue was due care in the manufacture of belts based upon applicable standards of knowledge and practices at the time this belt was manufactured. Any changes subsequently made on the basis of advances in the seat belt field would not be evidence of negligence in the manufacture of this belt. Jonesboro L. C. & E. R. Co. v. Kirksey, 204 S. W. 208 (not reported in Arkansas Reports). Appellees objected to particular requested admissions, including a request that appellees admit the alleged specifications of several other manufacturers producing seat belts. Appellees were requested to admit that the specifications of these manufacturers called for certain loop strengths. This was not competent in the absence of a showing that the practice of the named companies constituted accepted standards of the industry. The fact that some competitive companies used varying specifications from those of appellees, standing alone, would have no probative value. Jones v. Malvern Lumber Co., 58 Ark. 125, 23 S. W. 679.
Appellants complain that the official reports of the Texas Department of Public Safety relative to accident investigations are, under Texas law, confidential, and appellees refused to admit that appellants had made efforts to obtain information concerning the reports which had been refused. We fail to see how appellants were prejudiced. The deposition of the investigating officer, Fred F. Givens, a Texas highway patrolman, was taken. The examination of this officer was rather extensive, and supplied all necessary information relative to the official investigation of the collision.
We have examined each, alleged error under, this contention. Some deal with failure of appellants to answer requests for admissions; some deal with insufficiency of the answers; some deal with the court’s action in sustaining objections to particular questions; some deal with matters that address themselves to the discretion of the court, — but we findmq ruling that resulted in prejudice to appellants.
A discussion of other points relative to the trial in this case is unnecessary, and would be purely academic, for the outcome of the litigation really depends upon the answer to two questions: (1) Was there sufficient evidence of negligence on the part of either General Motors or Sullivan Chevrolet Company, or both, to make a jury question, and (2) Was the negligence of either a proximate cause of the injuries sustained by Mrs. Kapp? Perhaps the second question is more simply stated as follows: Were the injuries sustained by Mrs. Kapp the result of the breaking of the seat belt? Before appellants can prevail in this litigation, not only must the first question be answered in the affirmative, but also, the last question must be answered in the same manner. Before discussing the alleged negligence of either appellee, we think a brief general discussion of seat belts would be in order. Undoubtedly, the first comment that should be made (and this is undisputed) is that a study of all available seat belt literature establishes that no seat belt is manufactured which will remain unbreakable under all conditions. As admitted by General Motors, “Automobile safety seat belts are for the purpose of immobilizing persons traveling in motor vehicles during traffic accidents and other period of sudden deceleration. Each should keep its user ‘tied down’ in survivable crashes which leave the passenger compartment of such motor vehicle substantially intact.” It does appear that certain regulations should be met for safety purposes. The safety belt assembly (including webbing, release mechanism, and all integral parts), as required by the Department of Commerce for aircraft belts (adopted as the specifications in the contract for the making of the Davis belt used in this litigation), calls for a 3,000 pound loop load, i.e., 1,500 pounds to each strand, or specimen, of the seat belt. A further requirement is an additional 50% margin of strength in the webbing itself of 2,250 pounds per strand, - which makes a total loop load, as far as the webbing is concerned, of 4,500 pounds, though the belt overall is only required to hold 3,000 pounds. Both W. D. Wells, who testified for General Motors, and Guy Keith, who testified on behalf of appellants, agreed on these requirements.
Another fact which is established, and agreed upon by seat belt experts, is that at the time of impact, most adults (and probably children from seven years upward) will hit their heads on the instrument panel when wearing a seat belt. The belt is secured around the pelvic region of the body. At the time of impact, the belt stretches, the legs start up due to inertia forces, and the total body is bent forward in a u-shaped manner, the feet going up and the head coming down. According to testimony, an adult ordinarily hits the top of the dashboard rather than the side; without a belt, the person facing the direction in which the car is moving, would be thrown forward and upward at an angle of 30 to 40 degrees, and the head would strike the windshield, rather than the dashboard. Irrespective of the fact that a belt is securely fixed, there will still be about two inches of motion in the hips. The weight of the person wearing the belt also influences the stretch of the belt.
Expert evidence was offered on behalf of appellants by Guy Keith and Guy Treat, and on behalf of appellees by Edward 17. Dye, W. D. Wells and Norie Higuchi.
We first examine the evidence of negligence against Sullivan Chevrolet Company that is relied upon by appellants. It is contended that the belts were improperly installed, and this faulty installation occasioned the breaking of the seat belt. The contention of improper installation was based on the fact that the specifications provided the seat belt should go around the end of the seat, whereas they were installed between the end of the seat and its plastic trim. Further, it is contended that the instructions that came with the belts related to installation in a Chevrolet, though these belts were installed in an Oldsmobile. There is not one line of evidence in the record to the effect that the method of installation caused the belt to break. The positive testimony of witnesses Dye and Wells was to the effect that the installation of the belts in an Oldsmobile, rather than in a Chevrolet, would not affect the strength of the belt, and they were of the view that the belt would be as sturdy and strong in the former automobile as in the latter. Mr. Dye testified that the trim around the seat was Royalite, a light weight plastic, and it would not damage the seat belt. Mr. Wells stated that the method of installation would not have prevented the belt from carrying its required loop load.
Appellants assert that the belt was installed by an inexperienced employee, and that the completed installation was not properly inspected by the foreman. This assertion is based upon the fact that the employee who installed the belt testified that he had only installed one other, and the completed job was not inspected by the shop foreman. This allegation contains the same weakness as the preceding argument, i.e., there is no proof that improper installation (if any), or a failure to make inspection after installation, contributed to the breaking of the belt.
It is next argued that Sullivan Chevrolet should have warned appellants of the limitations of the seat belt, and how to properly care for it. Considering the last first, a seat belt is not inherently dangerous, as contrasted with such properties as dynamite, nitroglycerin, other explosives, or certain drugs that are extremely dangerous unless properly used. Seemingly, the complaint is that Kapp was not told that he should be careful that a door did not slam on the belt, or advised of other similar misuse. This contention is answered completely by Mr. Kapp’s own testimony that the belt was not damaged in any manner prior to the collision. According to his testimony, it was not frayed or water soaked, nor did it show any signs of wear or deterioration in any way. He stated it was impossible for the belt to ever have been caught in the car door “because the way it come between the seat and the door, this buckle here.” He also stated that the part of the webbing that broke was never exposed to the hot sun, and the witness emphasized that these answers were correct. It would therefore appear that, even if a duty existed to brief Mr. Kapp as to proper use of the belt, according to Ms testimony, no damage was occasioned by the failure to do so.
We fail to see any significance, in a case of this nature, of a failure to explain the limitations of the belts. Apparently, the complaint is that Mr. Kapp was not informed that the seat belt would only protect up to certain limits. But, if Kapp had been advised that the belt’s strength was only 3,000 pounds, would that fact have prevented this collision? Would it have prevented the Morales’ car from skidding into his automobile? Would he have driven more slowly? Of course, simple logic tells us that Kapp did not rely upon the seat belts for protection from all consequences of a conceivable accident, and thereby relax his caution.
Let us now discuss the proof, and contentions, as related to General Motors Corporation. Mr. Dye, a resident of New York, is a professional research engineer, and has been working in this field for approximately 35 years. This witness appears well qualified in the seat "belt field. Prom the testimony, his qualifications appear as follows:
“Since graduation from school in 1924, I was with Indiana State Highway Department designing and building steel and concrete bridges; job as assistant professor of engineering and teaching of subjects in engineering mechanics and engineering, including strength of materials, kinetics. I finally became head of civil engineering at North State College. At the same time I had a professional engineering organization in which I carried out engineering. I was assistant engineer of the Yellowstone National Park for eight construction seasons; that is, during the summer seasons, designed, built, supervised construction of all kinds of civil engineering projects. I then became crash analyst and head of the Kinetic Test Department of Douglas Aircraft at El Centro, California, designing and building new aircraft, including dive bombers, and T. A. C. bombers; then CurtissWright Besearch Laboratory, 1943, assistant head of Physics Department at that laboratory. I was in se quence head of the Developmental Engineering, and director of the Developmental Division. I was head of the Industrial Division, and finally my position there as head of the Safety Design and Research Department. During my some sixteen and one-half years at the CurtissWright Research Laboratory, which became Cornell Aeronautics Research Laboratory, in January, 1946, I conducted many research projects in the general field of protecting humans against contact blows and sudden shock forces, including airplane crashes and auotmobile crashes, and conducted research toward preventing those conditions to the human occupant. I am now conducting my own research, called New Products. I conduct accident investigations such as this one. I carry out research for small industries particularly in the protection field. ’ ’ Dye has spent the last fifteen years specializing in the field of safety and protection, including seat belts from the commencement of the use of these belts in automobiles. In connection with his duties as head of the Safety Design Research Department of Cornell Aeronautics Research Laboratory, and a member of the Transportation Safety Research Committee of Cornell University, projects were conducted for the office of Naval Research, Medical Science Division, research for Greneral Motors in the safety of crashing automobiles, research for Hickock Company, manufacturer of seat belts, and research for Chrysler Motor Company. Because of his eminence in this field, Dye was invited to testify before a subcommittee of the Committee on Interstate and Foreign Commerce of the 85th Congress. This Committee conducted hearings in an effort to compile all data and research known regarding seat belts.
Dye was asked a hypothetical question based on the circumstances surrounding the collision, as shown by previous testimony, and including the weights of the vehicles involved, the speed of each, and subsequently the weight and height of Mrs. Kapp. This question was directed to whether the witness was able to arrive at a computation that would show the velocity or speed of the vehicles at the moment of impact “assuming that Mr. Kapp took his foot off the accelerator the moment the car started to skid when they were 200 feet apart.” In response to this question, the witness answered that he was able to make a computation, and he first explained the factors considered. This entailed the use of certain formulas, which, to relate here, would be of no particular benefit, and after minutely explaining the method used in arriving at his conclusion, Dye stated that the minimum number of G’s exerted on the belt would be 46.6, or a potential on the belt of 5,030 foot pounds. He stated that the peak load could well be much greater, up to 90 G’s, and therefore concluded that the potential force on the belt was somewhat between five and ten thousand pounds. This, of course, was greatly in excess of the required strength of the belt. W. D. Wells, senior staff assistant to the chief engineer of the Fisher Body Division of General Motors, and Nori Higuehi, chief engineer for Davis Aircraft, substantially concurred in the conclusions reached by Dye.
Guy Keith, principal expert witness for appellants, is a graduate of the University of Oklahoma in civil engineering, a licensed engineer in the state of Arkansas, a member of the American Society of Civil Engineers, Oklahoma Society of Professional Engineers, National Society of Professional Engineers, Tau Beta Phi, Sigma Tau, and associate professor at the University of Oklahoma. He listed his experience as follows:
“Eight after graduation in 1944, I went with the Seabees on active duty in an engineering capacity. After that, I worked for a steel company in design and detailing of steel for building of bridges and buildings. After that, planning engineer for Ideal Cement. After that, with an engineering firm on turnpikes, and 1950 with a firm engineering buildings, structures, roadways, schools, and roads, and in recent years I have been made vice-president of that organization.”
Keith, after explaining his reasons, gave the figure of 1,713.6 foot pounds, as the force exerted against the belt, which was, of course, well within the limits of the 3,000 pound overall loop load, and the 2,250 pounds per strand (webbing). Subsequently, on cross-examination, he admitted that this figure could be doubled. Appellees vigorously argue that Keith misapplied the formula, and his result was therefore erroneously reached. It is also pointed out that Keith, in reaching his conclusion, did not consider the weight or speed of the Morales’ Ford. While it would appear that the weight and speed of the Ford would be pertinent factors in determining the magnitude of the crash, we find it unnecessary because of reasons hereinafter set out, to enter into a discussion of this contention, or whether the formula was misapplied. It does definitely appear that Mr. Keith is not especially versed in the seat belt field. During the course of cross-examination of this witness, the following facts were elicited from Keith: that his experience with elastic propensity of nylon and other fibers is extremely limited, and he had done no work in this line before the instant case; his familiarity with the elastic propensity of the human body is the same as that of the average man; he has made no tests in that field; he did not take the elastic propensity of the human body into consideration in his calculations; his experience relative to the crash of automobiles was limited to personal experience: “I’ve had several wrecks myself.”
Guy Treat, an associate of Keiths, also testified on behalf of appellants, and his views were similar to those of that witness. Like his colleague, he was without experience in the seat belt field, never having conducted any experiments or tests.
Appellants devote a number of pages to the contention that the company was negligent in not marking the belts. While it is true that a date or number on the belt would be of tremendous aid to appellants in their effort to prove specific negligence, we are unable to agree that this omission was, in itself, negligence. Of course, the fact that the belt was not marked in any manner, dated or numbered, did not contribute in any manner to its breaking. It might well be true that negligence could be found against a company that, for instance, sold unmarked belts that were several years old, but that situation does not exist in the case before us. The contracts entered into between General Motors and Davis Aircraft covered a nine months period, January 1, 1956, to October 1, 1956. Kapp purchased the seat belt in question from Sullivan in December of 1956. The evidence shows that nylon in storage will last almost indefinitely, and the proof is undisputed that a seat belt in use, under normal conditions, will last at least between one and one-half to two years without serious danger of deterioration. It therefore follows that this particular belt could not have been more than eleven or twelve months old when Kapp purchased it. Likewise, it was alleged that the belt was not properly tested. The proof is positive that the particular belt could not be tested, for a proper test would have destroyed its strength and durability. The manufacturer of the belts did make “spot checks”, but testing an individual belt would destroy the usefulness of that belt.
Appellants assert that in some respects, Mrs. Kapp’s injuries were worse than those of her husband, and he was not wearing a seat belt; that though it is true she remained in the automobile (while some occupants of the Morales car were thrown to the highway and killed), her husband also remained in the car. Apparently, the purpose of this argument is to demonstrate that Mrs. Kapp’s injuries were occasioned by wearing the belt. This argument is fallacious, for Kapp’s body was restrained by the steering wheel. Photographs show this wheel to have been forced considerably upward toward the top of the car. The abstract does not reflect the injuries sustained by Kapp, but does reflect that he spent five months in the hospital, and was not available for employment for another additional six months. The strongest evidence offered by appellants was that of Keith, but we do not think his testimony placed in issufe the question of negligence. Keith did not point out any fact that caused the belt to break; of course, he did not know if the belt had been subjected to any unknown factors prior to the breaking. As heretofore mentioned, he admitted that the amount of force he estimated to be exerted against the belt could, under some circumstances, be doubled. Likewise, he stated that he was not telling the jury that the total maximum force exerted on the belt was never more than 15.3 G-’s (equaling 1,713.6 foot pounds). In other words, Mr. Keith’s testimony as to the force applied to the belt was quite indefinite, and after all is said and done, a guess.
In Martin v. Arkansas Power & Light Company, 204 Ark. 41, 161 S. W. 2d 383, DeWitt Martin, a termite exterminator, working under a house, came into contact with an electric wire, which caused his death by electrocution. His brother attempted to extricate DeWitt, and received injury in doing so. Suit was instituted against appellee charging negligence. This Court held that the court should have directed a verdict for the defendant, and, inter alia, stated:
'“The transformer stepped this current down to 110 volts for domestic service, and there is no testimony that the transformer was ont of order or that it was not properly functioning. There is testimony that both the primary and secondary wires passed through the tops of two trees and were adjacent to and may have at times come in contact with some of the branches of these trees which were between the transformer and the Bynum residence, and it is appellants’ theory that the current from the high tension line was shorted or diverted to the service line by reason of contact with these limbs, causing an excess voltage on the service lines which killed DeWitt Martin and injured Clifton. Their expert witness said that it was possible for the current to be so diverted and that, in his opinion, that is what caused the injury. He said that a green tree limb was not a good conductor, but that, in his opinion, it was good enough to divert sufficient current to cause injury and death. This appears to be appellants’ whole ease, except some reliance is placed on an alleged defective ground wire on the third wire of the service circuit. We think the evidence given by the expert is lacking in definiteness and certainty. It is more or less speculative and conjectural. His conclusions depend upon assumed facts, such as a limb being a conductor and that if it were, why would not the current be grounded by the tree itself; that the same limb would have to contact both the primary and secondary wires at the same time and the latter at a point not insulated; and that the tree would not ground the current.”
We have concluded that there was not sufficient evidence of negligence on the part of either appellee to justify submitting the case to the jury. We have already said that the doctrine of res ipsa loquitur does not apply, and it is evident that no specific defect in the belt was established. Appellants’ entire case rests upon conjecture and speculation. Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guess work. As stated in Henry H. Cross Co. v. Simmons, 96 F. 2d 482, a decision under Arkansas law:
“To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.”
In Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, this Court said:
“ ‘Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof,’ and in Turner v. Hot Springs Street Railway Company, 189 Ark. 894, 75 S. W. 2d 675, we find this language:
‘The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show that the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due to the small pieces of snow and ice afterwards seen in the vestibule of the street car. It is true, the jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of the street car, but, on the other hand, it was equally as probable that her fall was caused by packed snow or ice which had accumulated on her own shoes. The point is, juries are not permitted to guess or speculate as to the proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of the evidence that her injuries were caused by some negligent act or omission of appellee.’ ”
In the same case, quoting from an earlier case, we said:
“It is not allowable, under the rules of evidence, to draw one inference from another., or to indulge presump tion upon presumption to establish, a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.”
The fact that appellees may have been guilty of negligence is not sufficient. Mr. Keith’s evidence was speculative and conjectural; of course, Dye’s evidence involved many of the same elements of conjecture, but appellants must fail, for on them rests the burden of establishing their case.
Were it otherwise, i.e., if we found sufficient evidence of negligence to say that a jury question was made on this issue, still, appellants could not prevail. Negligence alone is not sufficient. It must be established that such negligence was a proximate cause of the damages suffered. Who can say that the particular injuries complained of were caused by the breaking of this belt? Actually, in this accident, beginning and ending "in the snap of a finger,” one can only speculate as to when the belt broke. The testimony reflects such conjecture. Who can say that these injuries were not occasioned by the crash of the Morales’ car into the Oldsmobile? Certainly, as shown by the record, injuries were claimed, and recovered, from the Morales’ insurance carrier. It is not sufficient to show that the breaking of the belt could have caused the injuries complained of. Our feeling is expressed in the language of the Missouri Supreme Court, in the case of Stone v. Farmington Aviation Corp., 232 S. W. 2d 495. In that case, Stone instituted suit against Farmington for injuries sustained in the crash of an airplane rented by Stone from the defendant. Stone alleged that the seat belt broke on the rear seat, and caused his wife to be thrown against him, thereby occasioning his injuries. He alleged ‘ ‘ that the breaking of the rotten and defective belt was the direct and proximate cause of his injuries.” After reviewing the evidence, the Court said:
“* * * before recovery can be allowed plaintiff must prove his case as laid and his proof must take his case out of the realm of conjecture.
Who can say from these facts (there is no proof) when or why the belt broke? It appears only that after the crash it was found to be broken. Who can say from these facts (there is no proof) that except for the breaking of the belt plaintiff would not have been injured? Under the instant facts, such a conclusion is so unlikely and improbable that it must be instantly rejected. Who can say from these facts (there is no proof) that, assuming the breaking of the belt permitting Mrs. Stone to be thrown against the back of the plaintiff’s seat, that such fact contributed in any degree to the injuries plaintiff received in this crash, or that his injuries were any increased thereby? Only with guess and speculation could any one hazard an answer to those questions. Proximate causation here is left wholly within the field of conjecture and speculation. Many things must be assumed, and inference must here be piled upon inference to hold that plaintiff made a submissible case. We have no proof and no basis for allowable inference as to the negligence as alleged in the petition. Upon this record we cannot escape the ruling that no submissible case was made upon the theory presented. It is axiomatic that judgments based on speculation and conjecture cannot stand. For the above reasons the judgment appealed from cannot stand.”
Finally, it is asserted that the trial court erred in denying appellants’ motion for a new trial on the basis of finding newly discovered evidence from eyewitness James T. Arnold. Arnold was the operator of the third car involved in the collision. A full discussion of this contention would only unduly extend the length of this opinion, for we find no merit in same. Appellants, in moving for a new trial, attach to their motion a verified statement of Arnold, wherein he states that the speed of the Morales car was only 25 to 30 miles per hour rather than the 52 1/2 to 60 miles per hour which was the basis of the calculations of the experts; likewise, he stated that the speed of the Kapp vehicle should he reduced to 35 miles per hour . It is apparent from the record that appellants were aware for many months prior to the trial that Arnold was an eye-witness. In fact, approximately six months before the case was tried, requests for admissions were filed showing that appellants had in their possession at that time the name and address of Arnold, and considerable information relative to details of the accident. Appellants had two suits pending in the U. S. District Court in Jonesboro against Davis Aircraft Corporation and General Motors, and compulsory process was available to have compelled the attendance of Arnold for the taking of a deposition in Chicago. Appellants say the expense was too great to obtain this testimony, but it is self-evident that such expense would not compare with the expense of a second trial of this case. Be that as it may, we find no merit in the contention.
Affirmed.
McFaddin and Johnson, JJ., dissent.
Subsequently, the Kapps instituted an action against Sullivan for personal injury damages grounded in breach of warranty. This suit is still pending in the trial court. Suit is also pending in federal court against .General Motors and Davis Aircraft Products, Inc.
Appellants contended that they had a separate tort action against General Motors which should be preserved for future use, regardless of the outcome of the litigation against Sullivan. In amending their complaint, they asked for severance of the cause so that same would be heard as two separate negligent cases against Sullivan Chevrolet and General Motors, with separate juries at the time of trial.
This belt was not actually made by General Motors, but rather by Davis Aircraft Products, Inc., of New York. General Motors, by contract, used these belts as optional equipment for its cars. Actually, Davis did not manufacture the nylon webbing used in its belts, but the record does not disclose which of several companies, engaged in manufacturing nylon webbing, furnished the webbing used by Davis.
Seat belts ordinarily break at an assembly point, rather than in the webbing.
G - a unit of force applied to a body at rest equal to the force exerted on it by gravity.
For example, it certainly seems that the result, to both the automobile and front seat occupant, of a collision between a Chevrolet (occupied by a passenger wearing a seat belt) and an Austin would differ greatly from that of a collision between a Chevrolet and a Cadillac. Likewise, in both instances, .we would think the result would be far different if the cars were traveling 30 m.p.h., rather than 60 m.p.h.
From the testimony of Nori Higuchi, chief engineer for Davis:
“Q. About how many belts did you test out of each lot? A. I would say it depended upon the size of the lot. Q. Assuming your average lot you testified to, one hundred fifty to two hundred belts. A. Test out of a lot that size, I would say one belt. Q. One belt out of every one hundred fifty? Is it not true to say you spot check these belts? A. That is the only way we can do. Q. A ratio of one to one hundred fifty? A. Approximately so. Q. In making your tests, will you tell us exactly your procedure used? A. We have a hydraulic testing machine. Q. What is the name of that machine? A. No particular name. Just a hydraulic cylinder to which we have a dynamometer. Pull that to 1,500 pounds and examine it for any defects. If no defects in the belt, we considered it satisfactory. Q. What happened to the belt you used after you pulled it to 1,500 pounds? A. We could no longer use it. Q. State whether or not when a belt has been loaded so it has broken, say a belt like that, after the belt has been broken, it is impossible to make a test of its pre-accident strength? A. Yes. Q. What — ? A. Since it has been subjected to the load, there is some weakening to it.”
From his evidence: “Q. Talking about 15 G’s on this belt, if the load is a sudden or shock load, it might have been two to one, mightn’t it? A. It might have been two to one, yes, sir.”
The speed of this vehicle had been calculated at 50 to 55 miles per hour. | [
112,
96,
-72,
-2,
26,
-32,
56,
10,
123,
-121,
-27,
-45,
-87,
-31,
5,
117,
-1,
125,
113,
120,
-11,
-77,
19,
-78,
-45,
51,
-23,
-60,
-13,
91,
100,
119,
77,
48,
-54,
71,
-58,
74,
-59,
28,
-50,
36,
-71,
-8,
89,
80,
52,
126,
-108,
13,
-15,
-114,
-62,
46,
54,
79,
41,
44,
75,
40,
-64,
-16,
-81,
6,
127,
22,
35,
4,
-98,
-83,
92,
30,
-40,
-79,
-72,
-4,
50,
-90,
-62,
-10,
97,
-103,
-116,
98,
98,
1,
61,
-127,
-68,
-120,
46,
-30,
13,
-82,
30,
80,
11,
0,
-73,
-99,
97,
18,
30,
120,
-4,
77,
85,
32,
7,
-49,
-108,
-127,
77,
118,
-98,
1,
-53,
7,
-78,
101,
-52,
-12,
92,
-121,
-70,
-109,
71,
-80
] |
George Rose Smith, J.
This is a claim by the appellee, Keno R. Gunter, for benefits under the Arkansas workmen’s compensation law. Gunter, a resident of Mississippi, was injured on January 22,1958, in a traffic accident upon a Mississippi highway. At that time he was employed as the manager of Warren Produce Company, a Mississippi concern, at a salary of $550 a month, and was also employed as a traveling salesman by the appellant, an Ai’kansas concern, at a salary of $285 a month.
Gunter first asserted a claim against Warren Produce Company and its insurance carrier, under the Mississippi workmen’s compensation law. Upon that claim he received benefits totaling $12,391.50, which included $5,764.15 for medical and hospital expense and $6,627.35 as payments for disability. About a year after the accident Gunter filed this claim against the appellant and its insurance carrier for similar benefits under Arkansas law. Without going into the merits of the claim the commission, citing Butler v. Lee Bros. Trucking Contractors, 206 Ark. 884, 178 S. W. 2d 58, held that the payment of maximum benefits under Mississippi law-barred Gunter from asserting a claim under Arkansas law. The circuit court reversed the commission’s decision and directed that the entire claim be considered on its merits.
Our holding in the Butter case does not bar the present proceeding. There we considered ourselves bound by the decision in Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 88 L. Ed. 149, 64 S. Ct. 208, 150 A. L. R. 413, where the Supreme Court had declared that the allowance of a workmen’s compensation claim in Texas constituted, under the full faith and credit clause, a complete defense to the assertion of the same claim in Louisiana. But later on the Hunt case was very nearly overruled by the holding in Industrial Comm. of Wisconsin v. McCartin, 320 U. S. 622, 91 L. Ed. 1140, 67 S. Ct. 886, 169 A. L. R. 1179, where the court held that the second claim would be barred only if the law of the first state so declared, which is not the situation in the case at bar. For a discussion of all three prior cases see Leflar, Conflict of Laws, 3 Ark. L. Rev. 18, where the author concludes: “In the light of the later McCartin case, it seems that a second award, such as was sought in Arkansas in the Butler case, is permissible if it is not barred by the terms of the first award. Of course there can be no double recovery, however; only the difference by which the second award is greater than the first may be recovered.”
This possibility of a double recovery presents the second question in this case. Where there is only a single employer the imposition of duplicate liability under the applicable laws of two states is universally condemned. “To allow double recovery is contrary to one of the fundamental principles of workmen’s compensation.” Schneider, Workmen’s Compensation (Perm. Ed.), § 160; see also Leflar, The Law of Conflict of Laws, § 138. In some decisions, such as Mizrahi’s Case, 320 Mass. 733, 71 N. E. 2d 383, the second claim has been rejected as a matter of policy. In the great majority of cases, however, the smaller award is merely credited upon the larger one. Cook v. Minneapolis Bridge Const. Co., 231 Minn. 433, 43 N. W. 2d 792; Hughey v. Ware, 34 N. M. 29, 276 P. 27; Salvation Army v. Industrial Comm., 219 Wis. 343, 263 N. W. 349, 101 A. L. R. 1440. In the only case allowing a double recovery against the same employer, Texas Employers’ Ins. Assn. v. Price, Tex. Civ. App., 300 S. W. 667, the court pointed out that the total- amount of the two disability awards did not equal the employee’s wages; so he was receiving less than full compensation. Within less than a year after the Price decision was rendered the Texas statute was amended to expressly prohibit a double recovery. Texas Laws, 1927, ch. 259, § 1.
Where there are two employers, however, a different situation exists. In the case at bar Gunter received, a salary from his Mississippi employer and another salary from his Arkansas employer. If he was injured in the course of his employment for both concerns we think it clear that he has sustained two distinct wage losses during his disability. That he may have received weekly payments under Mississippi law, amounting to a percentage of his Mississippi salary, is not a sound reason for denying weekly payments under Arkansas law to compensate the loss of his Arkansas salary. Ark. Stats. 1947, § 81-1313.
"VYe have found no similar case involving disability payments, but in the field of death benefits there is authority to support our conclusion. In 1949 Edward H. Gehring was killed in the course of his employment for a New York company and for two Rhode Island companies. Death benefits were allowed in both states. In the New York case the court stressed the fact that the awards were based upon different wage losses, it being said: “But it is not a double recovery in the true sense, since the award in each state is based solely upon the earnings of the employee in that state.
“The decedent’s earnings in the New York employment were so great that they entitled his dependents to the maximum death benefits under the New York statute, without taking into account the decedent’s earnings in the Rhode Island employments. Similarly, the decedent’s earnings in the Rhode Island employments were sufficient to warrant a maximum award under the law of that state, without taking into account the decedent’s earnings in his New York employment. A different situation would be presented if the claimant had sought a recovery in each state, in an amount which was computed upon the basis of the total earnings of the decedent in his employments in both states, but no such problem is presented here.” Gehring v. Gehring Laces, 286 App. Div. 382, 143. N. Y. S 2d 17.
The companion Rhode Island case is Gehring v. Nottingham Lace Works, 82 R. I. 190, 106 A. 2d 923, 108 A. 2d 514, where, however, the court relied in part upon a statute providing that no benefits from any other source should be considered in fixing compensation. In a later case the court pointed out that the Gehring decision did not support the allowance of two awards against the same employer. Scialo v. Luisi, ......... R. I. ........., 161 A. 2d 194. A third case in which death benefits were allowed against two separate employers is Shelby Mfg. Co. v. Harris, 112 Ind. App. 627, 44 N. E. 2d 315.
Upon the reasoning followed in the above cases we think it proper for the Arkansas commission to consider, upon its merits, the matter of making a disability award to compensate the appellee for the loss of his Arkansas earnings. To this extent the judgment of the circuit court is affirmed.
On the other hand, we think it almost too plain for discussion that Gunter is not entitled to be unjustly enriched by receiving a duplicate cash award for hospital and medical expenses that have already been paid in full by his Mississippi employer. Exactly the same public policy that condemns a double recovery against the same employer, even though he may have two policies of compensation insurance in two different states, also condemns Gunter’s claim for hospital and medical expense. In our study of the cases we have not found a single instance in the United States in which a double recovery of this kind has been approved.
It is argued that the situation is analogous to recovery upon two policies of accident insurance or fire insurance. Such a statement was made, entirely as dictum, in one early case. Rounsaville v. Central R. Co., 87 N. J. Law 371, 94 A. 392, reversed on other grounds, 90 N. J. Law’ 176, 101 A. 182. A leading writer, in referring to the Rounsa.ville dictum, has said that “it was once erroneously suggested that a complete double recovery under the acts of two states might be possible, on the strength of the discredited analogy of recovering on two private contracts of accident insurance.” Larson, Workmen’s Compensation, § 85.70. In the same vein the New’ Mexico court has said tersely, “The analogy is false.” Hughey v. Ware, 34 N. M. 29, 276 P. 27.
The fallacy in the Rounsaville dictum is readily apparent. In the first place, the primary duty is upon the employer, not the insurance carrier, and that duty is to “provide” medical and hospital care. Ark. Stats., § 81-1311. The basic legislative purpose is to furnish those services to the injured workman, not to enrich him by a monetary payment for a financial loss not actually suffered by him.
Secondly, in the field of accident insurance and the like the parties are free to contract or not to contract as they choose. That is not true in the field of workmen’s compensation, where the benefits are fixed by law rather than by private agreement. If an employer should happen to have two policies of compensation insurance in force at the same time it would not be seriously contended that his employees were thereby entitled to double benefits. Indeed, that situation has arisen in cases too numerous to cite; liability has often been divided between the insurers, but we have found no case in which a double recovery has been permitted or even suggested. The point seems so clear and the authorities so completely in accord that we think further discussion to be unnecessary.
With respect to the claim for medical and hospital expense the circuit court’s order is modified to conform to this opinion. | [
-44,
106,
-100,
-83,
8,
-31,
50,
58,
80,
-86,
39,
83,
-17,
109,
21,
61,
-29,
29,
85,
106,
-9,
-93,
17,
74,
-38,
51,
-5,
-59,
-71,
75,
60,
-44,
76,
56,
74,
-43,
100,
-32,
-51,
28,
-18,
4,
-21,
-20,
89,
-128,
48,
104,
-108,
83,
113,
-97,
121,
44,
16,
67,
45,
44,
89,
42,
-63,
96,
-118,
13,
-1,
5,
3,
68,
-104,
39,
-40,
14,
-104,
49,
40,
-24,
90,
-90,
-126,
116,
37,
-103,
12,
34,
99,
-76,
-111,
-83,
-36,
-100,
7,
-2,
-99,
-90,
-106,
40,
83,
11,
-66,
28,
122,
20,
6,
120,
-8,
69,
15,
109,
3,
-114,
-76,
-94,
-115,
-32,
-100,
19,
-17,
-97,
-110,
103,
-49,
-94,
93,
71,
126,
-101,
71,
-32
] |
Ed. F. McFaddin, Associate Justice.
Appellee, H. L. Jordan (plaintiff below) owns and operates the “Sportsmen’s Center” in Crossett and sells guns and other articles for use by those who desire to hunt and fish. In 1960 the appellant, Central Surety and Insurance Corporation (defendant below), issued to Jordan a policy which insured him against loss of merchandise by burglary. While the policy was in force, Jordan’s store was burglarized and the stolen items were never recovered. The Insurance Company refused to pay the claim, and Jordan filed this action for $1,370.14, itemizing the stolen articles as follows:
2 Browning 22 calibre automatic rifles — short
2 Browning 22 calibre automatic rifles — long
1 12-gauge Browning automatic 5 32 full choke
1 12-gauge Browning automatic 5 28 full choke
1 light 12-gauge Browning automatic 5 28 full choke
2 Sweet 16-gauge Browning automatics 5 28 full choke
1 16-gauge Browning automatic 5 28 full choke
2 410 gauge Remington automatics 5 shot
1 Model 12 Winchester pump with polychoke
1 12-gauge Remington automatic 5 shot with poly-choke — used
1 Colt match target pistol, 22 calibre
1 Ruger standard 22 automatic pistol
of the value of $1,278.70, together with a known amount of small items, such as shells and equipment, amounting to $16.40, and damages to premises of $75.00, making a total of $1,370.14.
The only defense urged by the Insurance Company was the provision in the policy which reads:
“4. Books and Records. The insured shall keep records of all of the insured property in such manner that the company can accurately determine therefrom the amount of loss.”
Trial to the Circuit Judge without a jury resulted in a judgment for Jordan, and the Insurance Company has appealed, urging this one point: “The insured failed to maintain records as required by the policy of insurance in such manner that the amount of the loss could be determined.” The Insurance Company offered no evidence in opposition to that offered by Jordan, but the insistence is that Jordan did not have such a bookkeeping system as would show, in itself, the number of guns and other articles on hand on the.day previous to the burglary. The Insurance Company adduced from Jordan:
“Q. Do you have any record whatsoever by which you can tell us how many guns you had on hand on August 9, 1960?
A. No, sir — other than the people that work in there. . . .
Q. You have no record by which the insurance company, or to which the insurance company can go and determine what merchandise you had on hand on August 9, 1960?
A. No, sir.”
Prom the foregoing and similar statements made by Jordan, the Insurance Company urges that he cannot recover because he failed to perform the condition of the policy as previously quoted, and the appellant cites and relies on such cases as Sun Mutual Ins. Co. v. Dudley, 65 Ark. 240, 45 S. W. 539; American Mutual Liability Ins. Co. v. Thomas, 233 P. 2d 215; Pruzan v. National Surety Corp. (Mo.), 223 S. W. 2d 8; Calloyan v. American Casualty Co., 51 Atl. 2d 678; and Noland v. Buffalo Ins. Co., 181 P. 2d 735.
In some of the cases and texts cited, the provision was that the insured must establish his loss from books which would determine 'what goods were on hand on a particular day. But that is not the provision in the policy now under consideration. Here, the provision is that the insured shall keep records in such manner that “the company can accurately determine therefrom the amount of loss.” (Emphasis supplied.) This policy did not require the insured to keep a set of books that would disclose the description of each stolen item, but only a set of books which would disclose the “amount of loss.” Jordan testified that the stolen guns and pistols had been placed on display only a short time before the burglary; and he was able from the invoices to give the serial number of each stolen gun and pistol and, likewise, the cost to him. As regards the small articles, he was able to determine how many items had been taken and also the cost. The amount of damage to the premises was likewise shown. Mr. Jackson, a public accountant who was familiar with Jordan’s books, testified:
“A. He has a single entry set of accounting records — well kept. ... I made a survey at that time of his operations from an accounting and tax point of view to determine the soundness of his system and he does have a sound system of accounts. That’s in keeping with the generally accepted accounting principles for the small retail establishment type business. . . .
Q. Mr. Jackson, could you, taking Mr. Jordan’s inventory, his purchases and his sales, and on August 10, 1960, arrive at a loss- — the amount of a loss — that occurred the previous night? . . .
A. I believe I could have from the records which he had. . . .
Q. In your opinion, this system used by Mr. Jordan is a practical system for that type of business?
A. Yes, it is practical. He has a periodical inventory basis and that is an acceptable method of accounting. . . . ”
The testimony of the accountant was sufficient to bring this case within our holding in Ark. Central Ins. Co. v. Ware, 65 Ark. 336, 46 S. W. 129, which was decided in 189$, and before the adoption of Act 85 of 1899. Our bolding in Ark. Central v. Ware is in accord with the holdings in other jurisdictions as regards the provisions in a policy which requires books to be kept from which the insurance company “. . . can accurately determine therefrom the amount of the loss.” In 29A Am. Jur. 138, “Insurance” § 944, the holdings are summarized:
“The ‘book warranty’ clause of an insurance policy does not exact any specific system or form of books to be kept by the insured, nor does it require a system of bookkeeping which will conform to the most scientific standards. The purpose of the clause is accomplished when the insured keeps his books in such a manner as to constitute a record of business transactions which a person who is of ordinary intelligence and is accustomed to accounts can understand, and from which he can ascertain the amounts and value of the merchandise at the time of the loss.”.,
In Couch’s Cyclopedia of Insurance Law, Vol. 5, § 1032, the holdings are summarized:
“Since bookkeeping or book warranty clauses ordinarily do not require that any specific system or form of books be kept, the purpose of the clause is accomplished when books are kept in such a manner as to constitute a record of business transactions which a person of ordinary intelligence and accustomed to accounts can understand, and from which he can ascertain the required information as of the time of the loss, . . . Furthermore, a condition for the keeping of books and accounts ‘in such a manner that the exact amount of loss may be accurately determined therefrom by the company’ is sufficiently complied with, where the hooks and accounts kept are such that, with the assistance of those who kept them or who understand the system, the amount of the loss can be ascertained.”
We conclude that the evidence was sufficient to support the finding and judgment of the Circuit Court.
Affirmed.
We have been careful to refrain from citing any cases that are based on Act 85 of 1899 (see §66-523 Ark. Stats.) involving “substantial compliance,” because by §698 of Act 148 of 1959, the former statute has been reworded so as to limit the “substantial compliance” provision to fire insurance policies only. (See §66-3237 Ark. Stats.) In National Surety Co. v. Fox, 174 Ark. 827, 296 S.W. 718, we considered a burglary insurance policy and discussed burden of proof and sufficiency of the evidence. Also, there are annotations in 39 A.L.R. 1443, 62 A.L.R. 630, and 125 A.L.R. 350, entitled, “Sufficiency of bookkeeping to satisfy conditions of insurance policy.” | [
-79,
121,
-8,
-83,
26,
-32,
40,
58,
74,
-96,
-89,
83,
-95,
-58,
37,
107,
-36,
79,
-11,
106,
-74,
-89,
51,
35,
-46,
59,
-71,
-59,
49,
75,
-4,
-41,
12,
100,
-86,
85,
2,
0,
-59,
-100,
-34,
0,
-70,
-27,
-3,
80,
-92,
58,
52,
71,
113,
-107,
-93,
46,
-106,
75,
9,
40,
75,
57,
-16,
121,
-85,
69,
-19,
16,
-109,
39,
-66,
7,
-8,
10,
-112,
49,
0,
-24,
123,
-90,
-126,
116,
41,
-83,
-116,
102,
99,
22,
65,
-51,
-24,
-120,
47,
102,
-113,
-122,
54,
96,
33,
44,
-97,
-99,
96,
0,
7,
116,
-32,
92,
93,
96,
3,
-106,
-76,
-93,
-49,
122,
-100,
-106,
-1,
-125,
52,
113,
-49,
-82,
93,
100,
116,
-69,
-58,
-41
] |
Sam Robinson, Associate Justice.
Ward M. Black, who operated a drug store on Asher Avenue in Little Rock, died on the 19th day of November, 1958. On the first day of October, 1959, there was offered for probate in the Pulaski Probate Court what purported to be Black’s will, dated October 29, 1958. The appellants herein contested the validity of the will, alleging that it is a forgery and not Black’s genuine will. After a rather extensive trial, the probate court held the will to be valid and admitted it to probate. There was an appeal to this Court and here a minority of three members of the Court thought the preponderance of the evidence proved the alleged will to be a forgery, and at that time voted to reverse the judgment with directions to find against the will. But the majority of four members of the Court felt that the cause should be sent back for further development. Black v. Morton, 233 Ark. 197, 343 S. W. 2d 437.
On remand, additional evidence was introduced and again the probate court upheld the validity of the will. The case is here on appeal for the second time. We have again carefully examined the entire record, including the new evidence, and it is our opinion that the preponderance of the evidence proves that the will is a forgery. The following is a copy of the will:
I will devise and bequeath to Cecil. C. Morton my drugg store and it’s contents and the land on which it is located said property being located at 4200 asher avenue Little Bock Ark. and money in store Worthen Bank and at home or house.
second I devise and bequeath to Olive Persiqian and Clio Thompson my home contents and land which it is located also the rent house at 4208 west 29th st. and land which it is located also the land on corner 29th. and lewis L.B Ark. to be equally divided share and share alike.
third I devise and bequeath to my brother Walter L Black all my land near Clarksville in Johnson County and to his son Walter L Black Jr. I devise and bequeath my security,s purchased from L. J. MacKool
fourth I devise and bequeath to Lois Hardcastle My sister in law and Marry Pet ers 1000 dollars each to be paid out of the drug store by C.C. Morton with in six months if possible
fifth I direct that the insurance policy with National Life and Accident be used for funeral expense,s I also direct if any Medical expence occur this I want and direct C.C.Morton to pay this out of the store or his own money 'subscribing my name this the 29th day of October 1958
/%/ W. M. Black
/s/ M. M. Hodge
/s/ W. F. Hardester
Appellants contend that the will is an outright forgery; that Ward M. Black did not write, dictate or sign it. On the other hand, appellees contend that Mr. Black borrowed a typewriter from Mrs. C. C. Morton, ex-wife of the principal beneficiary under the will, and typed the will at his home, making a carbon copy; that he then brought the original and a copy to his drug store on Asher Avenue and there signed the original copy, at the same time making a carbon copy of his signature on the carbon copy of the will, and asked M. M. Hodge and W. F. Hardester to sign the will as witnesses, which they did in a like manner, that is, signing the original but causing a carbon copy of the signature to appear on the carbon copy of the will. Proponents of the will further contend that Black then thought the carbon copy was clearer than the original and therefore destroyed the original, keeping the carbon copy as his genuine will and turning it over to Hodge with instructions to keep it for some length of time, “six or eight months or a year” after his death, and then to turn it over to Miss Clio Thompson, Black’s cousin and one of the beneficiaries under the alleged will. A few weeks after the date of the purported will, Mr. Black died. Appellees claim Mr. Hodge kept the will for about ten months thereafter and then got in touch with Miss Thompson and turned it over to her.
At the time of his death Mr. Black was 71 years of age. His wife had died in 1949. He had no children, but was survived by a brother, Walter L. Black, Sr.; a nephew, Walter L. Black, Jr.; an aunt, Mrs. Roxie Thompson; and two cousins, Miss Clio Thompson and Mrs. Olive Perzigian. Miss Thompson filed the petition to admit the will to probate on October 1, 1959, a,nd notice of offering the will for probate was signed by her attorneys, Howell. Priee & Worsham. On October 8th, seven days later, the court granted a petition filed by Miss Thompson requesting that she be allowed to withdraw the will for the purpose of having it examined by a handwriting expert.
On October 20th Walter L. Black, Jr., individually and as administrator of the estate, and Walter L. Black, Sr., filed contests of the will, alleging it to be a.forgery. Notice of the filing of the contests was given to all those named as beneficiaries in the questioned will, and to Howell, Price & Worsham, attorneys for Miss Clio Thompson. On November 5, 1959, Miss Thompson filed a petition asking that a co-administrator be appointed. Howell, Price & Worsham, the attorneys who filed the will for probate and who were attorneys for Miss-Thompson at the time the will was withdrawn to be examined by a handwriting expert, no longer represented her.
The value of the estate is a little over $100,000. Of this sum C. C. Morton, the principal beneficiary under the purported will, would receive property of the value of more than $75,000. In 1944, Morton had been convicted in Saline County of the crime of robbery and sentenced to 12 years in the penitentiary, but he had worked for Mr. Black about nine years at the time of Black’s-death. There is a strange relationship between Morton and witnesses to the purported will that is not likely to-be just coincidental. Morton was by far the principal beneficiary under the purported will; Hodge and Hardester claim to have witnessed the will; Hodge denies that he knew Morton, although Hodge’s stepdaughter worked at a store owned by Morton and his then wife; and Hodge claims to have been in Black’s drug store, where Morton worked, many times. In addition, Hodge had been to Morton’s variety store, where his stepdaughter worked for the Mortons. It was only a block from his home. Hardester worked for Hodge, and Morton’s ex-wife produced the typewriter on which the will was written.
The will is not an original typewritten and signed instrument; both the typing and the alleged signature of the purported testator and the signatures of the witnesses are carbon copies. All the circumstantial evidence indicates that the will is a forgery and there is the direct testimony of Mr. Charles Andrew Appel of Washington, D. C., a highly qualified examiner of documents who has been doing such work since 1930 and who worked in that capacity for the F. B. I. from that time until 1948, when he retired from Government work. He has since been a private examiner of documents. Mr. Appel testified that in his opinion the purported will is a forgery; that it is not signed by W. M. Black. Mr. Appel went into great detail as to how he arrived at that conclusion, and his testimony is convincing.
On the other hand, the proponents of the will produced as a witness Dr. Orlando W. Stephenson, Sr., of Morrilton, Arkansas, who testified as an expert and gave his opinion that the alleged signature of Mr. Black is genuine. But we are not impressed by the testimony of Dr. Stephenson. He testified that he has studied questioned documents in Cairo, Egypt; Athens, Greece; Naples, Italy; Borne, Paris and London; that he has the degrees of Bachelor of Science, Master of Arts and Doctor of Philosophy, but that he is now a deputy sheriff in Conway County, Arkansas. In our opinion the testimony of Mr. Appel far outweighs the testimony of Dr. Stephenson.
In support of their theory of the will, proponents produced Mr. Hodge as a witness. He testified he lives at 1900 Bice Street, Little Bock, which is a considerable distance from the Black drug store; that he operates a service station at 28th and Arch Streets and formerly had a service station at Geyer Springs.
It is not shown that Mr. Black’s acquaintance with Hodge was such that Black as a reasonable man would deliver to Hodge for safekeeping Black’s will disposing of an estate valued at more than $100,000. In fact, from the evidence it is inconceivable that such a thing hap pened. At the most, Hodge had only a passing acquaintance with Black. Hodge was asked:
“Q. Did you trade at his [Black’s] drug store?
A. Well, sometimes; yes, sir.”
Hodge never visited in Black’s home and there is no showing that there was any social contact between them whatever, and no showing that Black even knew where Hodge lived, and in all probability he did not know Hodge’s address. Although Hodge claims he had borrowed money from Black, we give no more credence to his statement in that respect than we do to his testimony that Mr. Black asked him to sign his will. There is absolutely no reasonable explanation of why Mr. Black would deliver such an important document as his will to Hodge with instructions to keep it some six or eight months or a year after his death before divulging the fact that a will existed. There was a genuine will of Mr. Black’s, dated March 29,1949, in his safe at his drugstore, where one would expect to find such an instrument, but the sole beneficiary in that will was Mr. Black’s wife, who predeceased him.
In regard to his assertion that Mr. Black delivered to him the purported will involved here, Hodge testified:
Q. He didn’t fold it [the will] up and hand it to you?
“A. He didn’t fold it. He handed it to me just like that and he said, ‘How does that look’ and I said, ‘I don’t see any ink spots on it.’ ”
Of course, Mr. Black did not need to hand the will to Hodge to determine if there were any ink spots on it, and there certainly is no showing that Hodge is capable of making any determination as to the validity of the will.
If Black and Hodge had been such close friends that Mr. Black would give him his will for safekeeping, the chances are that Hodge would have gone to Mr. Black’s funeral. He did not go to the funeral. Moreover, accord ing to Hodge’s testimony, lie never went in the drug store again after Mr. Black died, • although he claims he had the will, and the principal beneficiary, Morton, was working in the drug store. According to Hodge’s testimony, after months had passed he worried about the situation and talked to the pastor of his church about it and then took the will to an attorney before he ever called Miss Thompson.
Hodge is not a beneficiary under the alleged will, and has no interest in it, according to his testimony. In these circumstances it is hard to understand why the will would cause him so much trouble that he would go and talk to his pastor about it and go to see a lawyer about it, if Mr. Black had simply instructed him to deliver the will to Miss Thompson some six or eight months or a year after Black’s death. Although Hardester claims he also signed the instrument as a witness, Hodge never told Hardester that he had possession of the will.
Hodge claims that he was such a frequent customer at the drug store that Mr. Black entrusted to his care the important will, but he says that he did not know Cecil Morton, although Morton worked right in the store for Mr. Black. Hodge further testified that he never met Cecil Morton until he met him with Miss Thompson after the will had been delivered to Miss Thompson. He testified that he did not even know what Morton did. Hodge testified:
“Q. Was — Now, that was the first time you had ever seen Clio Thompson or Cecil Morton?
“A. No, no, I had seen Cecil Morton a number of times, but I never had personally been made acquainted with him. I never personally met him until that particular morning.
“Q. Did you know who he was and what he did?
“A. No.
“Q. Didn’t have any idea?
“A. No.”
Later, he says that he knew that Morton worked at the drug store. His testimony in this regard is so contradictory that it is beyond belief. According to his testimony, although Hodge knew of Black’s death, he did not discuss the will at all with anyone until about ten months later. All in all, Hodge’s testimony is so contradictory, unsatisfactory and unbelievable that it carries no weight at all.
The testimony of Hardester deserves no more credit than the testimony of Hodge. Hardester worked for Hodge. He claims that he went to the drug store with Hodge and while there Hodge asked him to come to the rear of the store, where Mr. Black asked him to sign his will. It will be recalled that Hodge testified that the original of the will was not nearly as clear as the carbon copy and therefore the original was destroyed at the time it was signed and the copy was kept as a genuine will. It is agreed by the parties that the will involved here is a carbon copy. Hardester testified on cross examination:
“Q. Now, Mr, Hardester, that is not your signature, but it is a carbon copy of your signature, is that right?
“A. That’s my signature. I wrote that.
“Q. You mean that’s the mark you made with the pen?
“A. Yes, sir, I wrote that. That’s my signature. I wrote it myself.
“Q. Now, please understand my question, Mr. Hardester. Is this the piece of paper that you wrote on or is this the paper that was under the —
“A. That’s the paper I wrote on.
“Q. Oh, this is the piece of paper that you wrote on?
“A. Yes, sir, right there.
“Q. You are positive of that?
“A. Yes, sir, I know it.
“Q. So this is not a carbon copy of what you wrote on?
“A. That’s the one I wrote on.
“Q. You actually wrote that yourself on that piece of paper?
“A. That’s right.
“Q. You didn’t write it on another piece of paper through carbon?
“A. No, sir, that’s the one I wrote it on myself.
“Q. That’s the one you wrote it on yourself?
“A. That’s right.
“Q. And then this piece of paper is a piece of paper that you were looking at at the time you wrote your name, is that correct?
“A. Yes, sir, I wrote that name and wasn’t no carbon over it. That’s the piece of paper I wrote.
“Q. That’s the top piece of paper on which you wrote your name?
“A. That’s right.
“Q. You are sure of that?
“A. I know it is. Yes, sir, I am sure of that.
“Q. No question about that?
“A. No, sir, that’s the —
* ‘ The Court: Do you know the difference between a carbon and original?
“Mr. Jennings: I will let him look at it.
“A. This is the original I wrote on, on top, right there.”
Later, Hardester testified that Miss Clio Thompson brought a piece of paper out for him to sign; that he did not know what the writing was on the paper; that he had never seen Miss Thompson before in his life; and without reading the paper at all he signed it.
“Q. You paid no attention whatever to what it was she was asking you to sign?
"A. No, I was busy.
" Q. Handwritten or typewritten?
"A. I won’t say.
“Q. Was there anything on it?
"A. Yes, there was writing. I don’t know whether it was typewriting.
"Q. You just don’t know, is that right?
"A. I don’t know. I didn’t read it.”
Later he testified that he did not think he had told Miss Thompson that he signed the will. He stated: "I don’t think I told her I had signed it. I might did. I don’t remember what I told.”
The record in this case is voluminous and of course it is impractical to put all of the evidence into this opinion. But there are many things in the record that when put together are thoroughly convincing that the will is a forgery. Mrs. Hardeastle, a sister of Mr. Black’s deceased wife, had worked for Mr. Black for years as his bookkeeper. She worked in this capacity one day a week and the work was done at Mr. Black’s home. Sometimes she would take with her to his home her portable typewriter. Mr. Black did not mention to her that he had recently made a will. Under the terms of the alleged will, Mary Peters, a sister of Mrs. Hard-castle, was left a small amount. In the will her name was spelled "Marry.” Mrs. Hardeastle testified that definitely Mr. Black knew her sister’s name was spelled "Mary.”
James Pearrow woi'ked in the drug store every week day from 4 to 7 o’clock and on Saturdays and Sundays from 9 to 7, and lie could not say that he had ever seen Hodge or Hardester before Mr. Black’s death.
It will be recalled that the purported will was dated October 29, 1958. L. J. MacKool, who is in the insurance business in Little Rock and who had known Mr. Black for many years, testified that in November, 1958, Mr. Black told him that he didn’t have a will and didn’t need one. This must have been only a few days after the purported will is alleged to have been executed.
Mr. E. W. Hardcastle had made Mr. Black’s bank deposits for him every week over a period of many years, and Mr. Hardcastle was asked by Mr. Black to look after the drug store while Black was ill. Cecil Morton, who was working in the drug store, and who was named the principal beneficiary under the terms of the alleged will, was not asked to look after the store.
Mrs. Lorene Elrod, who worked for Mr. Black six days a week for three years, testified that Mr. Black did not trust Morton. Mary Butler worked for Mr. Black two years; she stated that Mr. Black showed no particular liking for Morton. About two months before his death Mr. Black told a Mrs. Ripley that he did not intend to make a will.
Following Mr. Black’s death, Walter L. Black, Jr., was appointed administrator of the estate and as such continued to operate the drug store. He testified that he fired Morton for stealing, and as Morton went out the door he stated “You’ll be sorry.”
When the purported will was offered for probate, of course it was easily determined that it was not written on the typewriter owned by Mr. Black and located in the drug store; nor was it written on Mrs. Hardcastle’s portable typewriter which she sometimes carried to the Black home to do her work as a bookkeeper. Of course, if the will was not written on the typewriter at the store, and was not written on the typewriter known to be at the home on some occasions, it might give rise to an inference that Mr. Black did not write the will at all. There is not a scintilla of evidence that he ever did any of his work at any other place.
To explain away this inference, Mrs. C. C. Morton, the divorced wife of C. C. Morton, the principal beneficiary named in the will, testified that in July or August, 1958, she had a portable typewriter belonging to her married daughter, Mrs. Marvin K. Cook, and that at Mr. Black’s request she loaned him this typewriter, and that he kept it until November, 1958. Although she says that Black borrowed the typewriter in July or August, 1958, the purported will is not dated until October 29, 1958. She produced the typewriter in question and it was shown to be the typewriter on which the purported will was written.
One of the attorneys for the contestants immediately got in touch by phone with Mrs. Cook at Fort Worth and asked her about the typewriter. Mrs. Cook told Mr. Reed Thompson, attorney for the contestants, that her father had given her the typewriter in 1947 or 1948; that she had lived at Blytheville, Arkansas, for a year and a half, moving from there on September 7, 1958; that she had the typewriter with her at Blythe-ville during the whole time she lived there, and that it was moved to Texas along with the other family belongings. It will be borne in mind that Mrs. Morton had just testified that she loaned the typewriter to Mr. Black in July or August, 1958. It appears that Mrs. Morton visited with Mrs. Cook in Texas from December, 1958, to February, 1959.
Mrs. Cook’s testimony was not available at the first trial. This case was reversed by this Court the first time it was here, for the purpose of letting in the testimony regarding the whereabouts of the typewriter. When the case was tried on remand, attorneys for appellants had ascertained from Government records (Mr. Cook was in the Air Force) that when the Cooks moved from Blythe-ville to Fort Worth, a typewriter was among their belongings. At tbe second trial, Mrs. Cook and her husband appeared as witnesses for the proponents of the will in support of the testimony of Mrs. Cook’s mother, Mrs. Morton. The substance of their testimony given at that time is that the typewriter they had at Blytheville was an old one belonging to Mr. Cook and it was not the portable typewriter which Mrs. Cook had told Mr. Thompson that her father had given her and that she had with her during their entire stay at Blytheville. In her phone conversation Mrs. Cook had said nothing whatever to Mr. Thompson about the Cooks ’ having two typewriters.
It would not have been strange for Mr. Black to have left the bulk of his estate to his cousin, Miss Clio Thompson, according to her testimony. She testified that Black despised his brother, and yet the purported will leaves more to his brother than it does to Miss Thompson. Mr. Black thought a great deal of his aunt, Mrs. Boxie Thompson. She was an elderly lady, and it can be inferred that a little money would have eased to some extent her condition in life, and yet the purported will leaves her nothing. Miss Thompson testified that Mr. Black told her, “Aunt Boxie will understand,” apparently meaning that she would understand why he had left her nothing in his will, and only about 25% of his estate to his family and about 75% to a man who for good reason he did not trust. We are convinced that the purported will is a forgery. The judgment is therefore reversed with directions to find against the will. | [
112,
109,
-4,
94,
26,
-32,
26,
-118,
83,
1,
-75,
115,
-19,
1,
84,
105,
-9,
-65,
113,
105,
-28,
-109,
7,
32,
-62,
-45,
-5,
-35,
-75,
-7,
52,
-41,
76,
36,
10,
93,
70,
76,
-17,
94,
-114,
9,
11,
65,
89,
80,
52,
103,
20,
79,
101,
62,
-45,
-65,
26,
-53,
104,
44,
73,
-70,
88,
-78,
-72,
-123,
125,
23,
-127,
39,
-112,
13,
-8,
10,
-112,
49,
0,
-88,
115,
-74,
-122,
116,
75,
-104,
12,
102,
-30,
18,
-115,
-17,
-72,
-118,
14,
-82,
-123,
-90,
-122,
104,
73,
105,
-105,
-100,
125,
16,
-114,
-2,
118,
5,
25,
108,
32,
-50,
-44,
-95,
-103,
56,
-100,
27,
-29,
15,
48,
113,
-51,
-94,
125,
71,
83,
-101,
-113,
-14
] |
George Rose Smith, J.
This is a disability claim under the workmen’s compensation law. On March 26, 1956, the appellant, while working at the appellee’s plant at Jacksonville, lost her footing and sat down hard on the concrete floor. The fall undoubtedly caused an injury to the claimant’s coccyx, for which she has been compensated. More than two and a half years after the accident she filed the present claim, on the theory that the fall also resulted in a disabling injury to her lower back. The commission denied the claim, finding that Mrs. Kivett’s back weakness was not attributable to her fall. "We have concluded that there is ample evidence of a substantial nature to support the commission’s decision, which was affirmed by the circuit court.
On the day of her accident Mrs. Kivett was treated by Dr. Crow, who found her to be “quite tender at coccyx.” The claimant continued to work at her job and during the next two months received heat treatments at Dr. Crow’s office and at the appellee’s first aid station. On May 31, 1956, Dr. Crow discharged his patient as having been cured, with no permanent disability. Mrs. Kivett testified that she was then suffering, and has continued to suffer, back pain that she attributes to the fall. Dr. Crow was not called as a witness, but there is nothing in his reports to suggest any injury except that to the coccyx. The Commission may well have believed that the doctor would not have discharged Mrs. Kivett if she was actually undergoing extreme pain at the time.
During the next year the appellant remained at work. She states that she often complained to her fellow employees about the pain in her back, but no witness was called to corroborate this statement. To the contrary, during that particular year Mrs. Kivett admittedly went to the first aid station a total of twenty-nine times for a variety of ailments, including such minor matters as a cold, a headache, a poison ivy rash, and a splinter in her thumb. Yet the first aid records do not contain a single reference to back pain of any kind. The commission was warranted in thinking it did not exist.
In June of 1957, almost fifteen months after her fall, Mrs. Kivett ceased work to have a gall bladder operation, not connected with her employment. Upon recovering from that surgery she did not return to work. In December of that year she went back to Dr. Crow, who recorded that she complained of soreness in the coccyx. The two bones constituting the coccyx were removed by surgery in January. Dr. Crow, two months later, again discharged his patient as cured, with a finding of no disability. Again there is no reference whatever to any back trouble. Counsel for the claimant insist that their client, a woman of limited education, might not have been able to distinguish between pain in the region of her coccyx, or tailbone, and pain in her lower back, a few inches away. It was Dr. Crow’s duty, however, to discover and treat his patient’s malady; so his finding of soreness in the coccyx excludes by implication any belief on his part that there was also pain in the lower back.
After this claim was filed in October of 1958 Mrs. Kivett was sent to Dr. Jones, an orthopedic specialist. In his first report Dr. Jones was unable to say that the patient had experienced significant pain in her lower back before January of 1958. Later on, in response to an inquiry from Mrs. Kivett’s attorney, Dr. Jones wrote that “I am of the opinion that based on the patient’s history it must be accepted that the injury in question is related to the patient’s low back discomfort.” This single sentence is really the only substantial evidence tending to corroborate the claimant’s own testimony. But Dr. Jones’s opinion was “based on the patient’s history,” and the commission, by italicizing that phrase, indicated its belief that this medical opinion was entitled to no greater weight than the history that the physician had elicited from his patient.
The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. Pearson v. Faulkner Radio Service Co., 220 Ark. 368, 247 S. W. 2d 964. The full commission noted in its written opinion that the single member who heard the testimony had the opportunity to observe Mrs. Kivett’s demeanor and to weigh her testimony. This remark is pertinent only to the vital issue of whether the claimant’s testimony was worthy of belief. That testimony is not corroborated by other workers at the appellee ’s plant. It is impliedly contradicted by every written medical record that was made during the two and a half years preceding the assertion of this claim. Unless Dr. Jones’s single sentence can be so construed, there is in the record no medical opinion purporting to say that a fall such as Mrs. Kivett experienced in 1956 would tend to cause pains in her lower back then or later on. In a case of this kind it is not for us to say that the commission was required to accept the claimant’s testimony and on that basis to make an award of compensation. We are bound by the commission’s findings upon the disputed question of fact.
Affirmed.
Johnson, J., dissents. | [
17,
123,
-35,
-114,
24,
-31,
42,
42,
97,
-123,
-75,
119,
-19,
103,
77,
55,
-29,
109,
-43,
47,
-9,
-77,
19,
41,
-46,
-45,
107,
-35,
-8,
111,
-12,
-11,
69,
56,
-118,
-107,
-26,
-120,
-51,
94,
-52,
-122,
-69,
-19,
25,
-112,
56,
111,
-60,
69,
-79,
-122,
106,
42,
28,
71,
41,
40,
75,
-88,
-64,
-31,
-120,
5,
-19,
16,
-93,
4,
28,
-85,
-4,
14,
-38,
-79,
0,
-86,
48,
-10,
-125,
84,
35,
-103,
4,
96,
98,
-96,
-115,
-75,
120,
-72,
14,
-74,
-99,
-92,
-125,
8,
91,
3,
-76,
-67,
122,
4,
60,
120,
-14,
77,
12,
108,
-117,
-113,
-106,
-77,
79,
33,
-98,
-125,
-25,
-113,
-110,
117,
-36,
-94,
92,
64,
115,
-101,
23,
-70
] |
Neill Bohlinger, Associate Justice.
The appellee initiated this action by filing his complaint in the Sebastian Circuit Court, Fort Smith District, in which he alleged that the defendant, appellant herein, was indebted to him in the sum of $686.59 for tires, recapping and tire service during a period from February 10, 1959 through February 29,1960. The complaint was duly verified and to the complaint the appellee attached a statement of the account, listing only by numbers twenty-two invoices with four items of credit. This statement was also sworn to by appellee.
To this complaint the appellant filed a motion in which he stated that the appellee had set out the account in such a way that it was impossible for him, because of lack of knowledge or information about the account, to file an answer and asked that appellee itemize the account. Thereafter and before the court had passed on his motion to require the appellee to make his complaint more specific, the appellant filed an answer in which he denied each and every allegation of the complaint and later filed an amended answer in which he specifically denied every allegation in the complaint and pleaded that the complaint was not based on an open account but upon a written instrument and further alleged that the tires sold to him by the appellee were sold under a warranty that if the tires proved unsatisfactory, they were to be replaced or accepted back by appellee at full value and that the tires delivered were not satisfactory and were returned and accepted by the appellee.
This answer was sworn to by the attorney for the appellant who stated in his verification that the defendant was not in the State of Arkansas.
It does not appear that the court passed on the motion to make the complaint more definite and certain but transferred the cause to chancery and stated in the order that it was agreed the court was confronted with a detailed accounting problem. We assume that the court overruled the motion to make more specific, for the appellant filed an answer.
On the 12th day of January, 1961, the appellee filed a motion setting out that his action was based upon a stated verified account which was certified as correct under oath; that the appellant, Lloyd McWater, had failed and neglected to deny under oath the correctness of the account and he prayed judgment upon the pleadings. The appellant filed a response to that motion and stated that he stood willing and ready to testify under oath as to the statements made in his answers and asked that the motion be denied.
On the 2nd day of March, 1961, the chancery court found that the action was based on a verified account, with the plaintiff certifying same to be just and correct, and that the defendant, appellant here, had failed and neglected to deny under oath the correctness of said account and rendered judgment for the appellee on the pleadings.
In this we find the court was in error. The verified account filed with the appellee’s complaint does not measure up to the requirements of an itemized account as set forth in Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486:
“It will be observed that the account filed by appellee did not purport to be an itemized account, but only to show the total amount of bills alleged to have been sold on the dates mentioned without giving a complete inventory of the goods sold.
The word ‘account’ is said to have no inflexible technical meaning and is differently construed according to the connection in which it is used. However, in mercantile transactions it is invariably used in the sense of a detailed or itemized account. Bouvier defines the word as ‘A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.’ Substantially, the same definition is given in 1 Corpus Juris, p. 596, where it is said: ‘To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty.’
In the Brooks case the word was ‘merchandise’; here the word is ‘groceries.’ Other cases as to itemization are Taylor v. Crouch, 219 Ark. 858, 245 S. W. 2d 217; and Terry v. Little, 179 Ark. 954, 18 S. W. 2d 916. Under these cases it is clear that the defendant was entitled to have the account itemized by the plaintiffs, specifying the particular articles (i.e., ham, cheese, crackers, lard, etc.) covered by the generic word ‘groceries,’ and totalling the amount of the purchases on each day shown. ’ ’
From this it is clear that the motion of the appellant to require the appellee to make his complaint more definite and certain should have been granted. It is true that there appears with the transcript a number of copies of invoices, some trade acceptances, and a ledger sheet but these do not appear to have been filed with the chancery clerk and are not made a part of any of the pleadings herein and we are left to assume that they fall under the heading of the “references to the invoices and exhibits in this case, which were made available to appellant and his counsel,” as stated in appellee’s brief.
When appellant filed his answer denying each and every allegation of the complaint, and further filed his amended answer setting up a valid defense, which amended answer was sworn to by appellant’s counsel, the issues in this case had been joined.
Arkansas Statutes 28-202 relied on by appellee is as follows:
“Affidavit as to correctness of account-sufficiency. —All accounts upon which suits may be brought in any of the courts of this state, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account, either in whole or in part; in which case, the plaintiff shall be held to prove such part of his account as is thus denied, by other evidence.”
This statute is merely a rule of evidence and if the allegations of the plaintiff’s complaint, which was verified, and the items of the exhibit to that complaint, which were also verified, had not been controverted, the statement of account which was sworn to would have been a prima facie showing on which a judgment for the appellee would have been sustained. The verity of the items in the statement may be denied by the defend ant by affidavit filed in the ease or by verified answer, Its correctness may also be denied by the defendant under oath when he testifies as a witness in the ease.
The case of Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, cited by appellee, was a case in which the defendant, although given an opportunity to do so, offered no sworn testimony to overcome the prima facie showing of a verified statement of account. Such is not the case here.
In the case of Chicago Crayon Co., v. Choate, 102 Ark. 603, 145 S. W. 197, the import of the statute relied on by appellee is stated as follows:
“* * * The effect of this statute is to make such verified account, when undenied, prima facie proof of its correctness. In event the defendant does not under oath deny the correctness of the verified account which is made the basis of the suit, then it is not incumbent upon the plaintiff to introduce other evidence of its correctness ; and such an account, thus verified, is proof itself of its correctness. Such verified account, however, is only prima facie evidence of its correctness. It may be denied by defendant by an affidavit filed in the case, or by a verified answer. Its correctness may also be denied by the defendant under oath, when he testifies as a witness in the case. When such denial of the correctness of the account is made by the defendant under oath in either of these ways, then the burden rests with the plaintiff to prove by other evidence the correctness of the account thus denied. Boone v. Goodlett, 71 Ark. 577 (76 S. W. 1059); St. Louis, I. M. & S. R. Co., v. Smith, 82 Ark. 105 (100 S. W. 884). ’ ’ [Emphasis ours.]
It therefore becomes clear that the statement filed by the appellee did not comport with the requirements set forth in Griffin v. Young, supra, and that the items of the account were denied under oath in an answer. It is true that the affidavit to the answer was made by the attorney for the appellant. Ark. Stats., 27-1107 is as follows:
“Verification by agents or attorney. — Hereafter, in all of the courts of the State of Arkansas, in all cases in which the affidavit of the plaintiff or defendant is now required to verify a pleading, to obtain a warning order, a provisional remedy, or any other order, or on a motion or proceeding therein, such affidavit may be made by such party, or by the agent or attorney or attorney shall state that the affiant is the agent or attorney of the party.”
Therefore, the affidavit of the attorney for the appellant was sufficient under the circumstances.
The court should have therefore overruled the motion for judgment on the pleadings and have set the cause for trial in which the appellant may present the defenses which were set forth in his answers.
For the reasons herein set forth, the cause is reversed and remanded with directions to the trial court to overrule appellee’s motion for judgment upon the pleadings that further proceedings may be had not inconsistent with this opinion. It is so ordered. | [
16,
-20,
-24,
76,
10,
96,
56,
-118,
83,
-127,
53,
-45,
-23,
-57,
4,
97,
-29,
11,
117,
106,
-59,
-78,
119,
104,
66,
-77,
-7,
-59,
-76,
-51,
-28,
20,
76,
48,
-54,
-105,
98,
-126,
-59,
28,
30,
0,
25,
-20,
-39,
64,
48,
-23,
6,
15,
81,
-100,
-29,
46,
25,
74,
77,
44,
127,
-71,
-48,
-80,
-118,
13,
61,
21,
-79,
38,
-104,
69,
72,
24,
-104,
49,
33,
-24,
58,
-90,
-122,
116,
107,
-103,
8,
108,
98,
34,
37,
-53,
-68,
-120,
7,
-102,
-97,
-90,
-78,
89,
3,
37,
-66,
-100,
116,
17,
6,
-2,
120,
-123,
29,
108,
15,
-18,
-10,
-77,
-113,
120,
-97,
11,
-21,
-117,
22,
113,
-51,
-32,
92,
71,
59,
-101,
-122,
-111
] |
Paul Ward, Associate Justice.
This litigation arises out of a dispute between International Brotherhood of Electrical Workers, Local No. 700 (hereafter referred to as “Union”) on one side and Lee Davis and Jeff Davis, Partners, d/b/a J. S. Davis & Sons, Contractors (a prime contractor in this instance), and Albert T. Hough, d/b/a Acme Electric Company, on the other side. We will hereafter refer to the Davis partnership as “Davis”, and to the Acme Company as “Hough”. The Union is the appellant and Davis and Hough are the appellees.
Davis, the prime contractor, has a contract with Frez-N-Stor, Inc. to construct a cold storage building in Springdale, Arkansas. Under the contract Davis is to furnish all materials and labor. Hough, as a sub-contractor under Davis, is engaged in doing the electrical work on said building. Davis uses all union labor and has no labor dispute with Union.
On September 25, 1961 members of the Union (not employees of Davis or Hough) carrying signs which read: ‘ ‘ The electrical contractors on this job not paying prevailing wages”, picketed the building construction site.
On September 29, 1961 Davis and Hough filed in chancery court a petition containing in substance the following material allegations — omitting facts above set out: (a) Hough operates an “open shop” (employs some non-union labor) in the performance of his contract as he has a right to do under the “Freedom to Work” Amendment; (b) Davis employs union laborers but they refuse to cross the picket line set up by the Union, and the picket banners are untrue because all electrical employees on the job are receiving union wages; that they (Davis and Hough) are therefore unable to perform their contracts; (c) The pickets have harassed and threatened petitioners’ employees and interfered with their work, all of which amounts to an unlawful effort to force petitioners to enter into an unlawful contract to hire only union labor in violation of the “Freedom to Work” Amendment; and, (d) petitioners are suffering and will suffer irreparable damage for which they have no adequate remedy at law.. Petitioners’ prayer was for a temporary injunction to-restrain Union from picketing. On the same day the-petition was filed the court ordered notice to be given, to Union and set October 4 for a hearing.
On the above mentioned date Union filed an answer which, in addition to certain' denials, contains, in substance, the following allegations: (a) Hough, over a long-period of time, has failed to pay his employees union wages and by subterfuge has tried to conceal that fact; (b) at one time, when Hough was being picketed, he agreed to pay union wages and the pickets were withdrawn, but he failed to comply with that agreement and is not now paying his employees union wages “on the said job”.
After hearing testimony by several witnesses for appellee and one witness for appellant the trial court, made the following findings:
(a) “The finding of the court on the evidence is, that the announced purpose of the picket to call to the attention of the world, in the exercise of their constitutional right of free speech, the fact or the alleged fact that Mr. Hough was not paying prevailing wages was true at the time the picketing commenced, but was not true on last Thursday, September 28th, and is not true today. ’ ’
(b) “The court finds for that reason and on those facts that there exists no reason or purpose for the continuation of the picketing at this time.”
(c) The effect of the picketing as it relates to Davis is “to deprive him of his property without due process of law. . . .”
Then the court entered an order restraining Union from maintaining pickets at the construction site, pending further orders. Union now appeals from the trial court’s order.
One. The first question we consider is whether we should dismiss the appeal because the subject matter of the litigation is moot. We understand from the briefs and statements of counsel that Hough’s job at the FrezN-Stor location (where the picketing was being conducted) has been completed and that there is no longer any reason for Union to picket that place. In appellees’ brief there appears this statement:
“We realize that the issues in this particular case are moot, however the problem involved herein is one of critical importance for all citizens of our state, and we feel that if the court holds that the union is to be permitted this encroachment upon the rights of innocent persons for the purpose of effectuating their labor objective, then there is no retreat left.”
We have concluded that the question involved in this litigation is of great importance to the general public and that it should be decided even though the subject matter is moot. In the recent case of Moorman v. Taylor, 227 Ark. 180, 297 S. W. 2d 103, where an election contest was involved, we said: “Although Perry was defeated by the Democratic nominee for the office, it is not our practice to dismiss such cases as moot, for the public interest demands that substantial questions concerning the election laws be set at rest.” In the case of Cain v. CarlLee, 171 Ark. 155, 283 S. W. 365, this Court, in an election contest, decided the controversial issue even though the subject matter was moot. The reason given for so doing was: ‘ ‘ The questions involved on this appeal were and are of practical importance to the public.” That decision was based on Wilson v. Thompson, 56 Ark. 110, 19 S. W. 321, where the Court construed an act of the legislature prohibiting the sale of intoxicating liquors within three miles of a church or school. See also: Brown v. Anderson, 210 Ark. 970, 198 S. W. 2d 188. It is true that all the above cited cases, except the Wilson case, involved election contests, but they were all decided on the principle of public interest. The same principle applies with equal force to the case under consideration. This Court takes direct and judicial knowledge of the frequency of litigation over labor disputes,, and there can be no doubt of its importance to the public and the general welfare. In this connection it is also noted that, in labor disputes, it is not unusual for the-subject matter to become moot before the legal principles involved can be settled by the courts. So, as in the Moorman case, we elect not to dismiss the appeal because the subject matter is moot.
Two. The Issue. It is necessary to clearly define the exact issue with which we are here concerned. Both the trial court and the appellees appear to have been under the impression that Union’s only grievance against Hough was that he was not paying union wages to his employees who were working on the Frez-N-Stor job. In all fairness it must be stated that the pleadings could be so construed. However, we think that, as the testimony was developed, it became apparent Union’s grievance with Hough was, among others, that he was not paying union wages to his employees who were working; on other jobs in. the same county. In appellants’ brief it was stated that Hough employed at least five electricians at the Frez-N-Stor job and at the time of this litigation his employees were doing electrical work on the Welch Grape Juice job, the Red Comb Mill job, and the Mountain Inn Hotel job — all in Washington County. This statement does not appear to be disputed. During the trial before the Chancellor, Union attempted to show Hough was not paying union wages to his employees on jobs other than the Frez-N-Stor job, but he was not allowed to do so.
For the reasons stated above we proceed to answer the following question: Did Union have the right to picket Hough at the Frez-N-Stor job because he was not paying union wages at that time to his employees working on other electrical jobs in the same county 1 We have concluded that the answer to the above question must be in the affirmative. We base this conclusion on what appears to be the uniform holdings of other jurisdictions, including federal decisions. We mention briefly a few of these decisions.
Newark Ladder & Bracket Sales Co., Inc., et al. v. Furniture Workers Union Local 66 et al., 125 N. J. Eq. 99, 4 A. 2d 49: Appellant conducted a business at South 13th Street, Newark, New Jersey, composed of a retail store, a wholesale store, and a manufacturing plant. Later the manufacturing plant was moved to Kinney Street in the same town. Workers at the Kinney Street plant went on strike, and they picketed the retail and wholesale stores at South 13th Street. The Court held this permissible saying that a union may picket to keep other union men from working and also to keep the public from patronizing the employer. The decision rested on the latter point. Texas State Optical v. Optical Workers Union 24859 et al., Tex. Civ. App. (1953), 257 S. W. 2d 493: Appellant (two Rogers Brothers) operated place of business for sale of glasses and rims at offices at 649 Orleans Street, Beaumont, Texas. These same two brothers and two other brothers manufactured glasses and sold them (wholesale)- two blocks away at 861 Orleans Street. Employees at 861 first picketed that place and later they picketed at 649 Orleans Street. The court held that the picketing was for a lawful purpose and the union had a right to picket with the decision being based on the fact that the two businesses were closely related in ownership and that pressure by the union on one amounted to pressure on the other.
Alamo Express, Inc. v. International Brotherhood of Teamsters, etc., Tex. Civ. App. (1948), 215 S. W. 2d 936: Appellant motor carrier had terminals at Houston and other cities and employed a total of 144 persons, including 35 “over the road” drivers. The employees voted to strike, with Houston voting 8 to 0 for, another place 8 to 3 against, and other places for and against. The employees picketed the Houston terminal. The Court held the union had a right to picket because “A majority of the over the road drivers belonging to the Houston Local had voted to strike and they had the right of peaceful picketing to put the public on notice of their strike”. American Brake Shoe Co. v. District Lodge 9 of International Ass’n of Machinists, et al. 373 Pa. 164, 94 A. 2d 884: Appellant owned factories at St. Louis, Missouri, Meadville, Pennsylvania, and other places where appellant had no-strike contracts with the union. When the contract at St. Louis expired, five union employees went to Meadville and picketed the plant there. The court held that the picketing was legal and could not be enjoined. Most of the discussion referred to the fact that the union had no contract in force at St. Louis and therefore had a right to picket in Meadville, the inference being that the question of separate locations was not material.
Lora Lee Dress Co., Inc. v. International Ladies’ Garment Worhers Union Local No. 85 et al., 129 N. J. Eq. 368, 19 A. 2d 659: Appellant had place of business in New York and another place of business in New Jersey. There was a labor dispute in New York but not in New Jersey. Employees in New Jersey picketed that plant. The Court held that the employees in New Jersey had a right to picket under the general constitutional right of free speech. National Labor Relations Board v. General Drivers, Warehousemen and Helpers, Local, 968 et al., 5th Cir. (1955), 225 F. 2d 205: Employer was a contractor operating at several different sites and employees included members of several unions. One union had labor dispute and went on strike. Employees at another site picketed. The Court held that the employees had a right to picket, stating:
“Irrespective of the Board formulated ‘situs’ theory, however, we think such peaceful picketing upon common premises, directed solely against the primary employer with whom a labor dispute exists, is still lawful under the Act, and that any adverse effect upon secondary, neutral employers must necessarily be viewed as incidental to the lawful exercise of that statutory right. ’ ’
While the facts in none of the above mentioned decisions are exactly like the facts in this case, we are convinced that the principles announced in them lead unerringly to the conclusion heretofore announced when applied to the assumed purpose in this case. We have examined the decisions by this Court in International Brotherhood of Teamsters, Local 878 v. Blassingame, 226 Ark. 614, 293 S. W. 2d 444, and International Brotherhood of Electrical Workers, Local Union No. 295 v. Broadmoor Bldrs., Inc., 225 Ark. 260, 280 S. W. 2d 898, and find they are not in conflict with our announced conclusion.
Finally it is contended by Davis that, in no event, could Union lawfully picket the Frez-N-Stor job (where he was the prime contractor) because he was paying union wages to all his employees and Union expressed no grievance toward him. In view of the conclusion heretofore reached it is not necessary for us to pass upon Davis’ contention. However, again in the public interest, we state our conclusion to be that his contention is without merit. Otherwise it would leave Union without a remedy even though a lawful labor dispute existed between Hough and Union. On the other hand Davis can protect himself merely by doing business with sub-contractors who pay the prevailing wages.
The decree is therefore reversed, and appellants are awarded their costs.
Reversed. | [
16,
122,
-38,
-36,
-118,
-95,
26,
-102,
57,
-96,
-27,
87,
-19,
-59,
93,
37,
-29,
125,
81,
43,
84,
-78,
65,
106,
-46,
-45,
-5,
-59,
-71,
107,
-16,
92,
76,
52,
-62,
-43,
-26,
64,
-51,
28,
-50,
1,
106,
112,
-47,
2,
48,
-6,
118,
71,
17,
-108,
-77,
44,
-112,
-61,
76,
44,
125,
37,
112,
-70,
-118,
13,
125,
7,
51,
37,
-98,
-121,
-20,
92,
-104,
-80,
34,
-40,
83,
-92,
-123,
124,
97,
-103,
8,
34,
98,
16,
-103,
-89,
-52,
-8,
23,
-2,
13,
7,
-111,
56,
27,
79,
-66,
-107,
120,
20,
-90,
126,
119,
21,
23,
109,
-125,
6,
-18,
-61,
-113,
112,
-108,
-125,
-21,
2,
16,
101,
-49,
-82,
95,
6,
27,
95,
15,
-104
] |
Paul Ward, Associate Justice.
This appeal challenges the judgment of the circuit court which affirmed the Workmen’s Compensation Commission. It is not disputed that the claimant, Edwin Roberts, was injured or that he is entitled to compensation payments. The only question for decision is: Who was Roberts’ employer at the time of his injury — i.e. who is responsible for payment of benefits?
Factual Background. It is appellants’ contention that one of two other companies was Roberts’ employer,, so it is pertinent to identify the three companies concerned and the relationship of each to the employment of Roberts.
South Arkansas Feed Mills, Inc. (hereafter referred to as “South-Ark.”) was incorporated March 18, 1959. Keith Smith was elected its Secretary and General Manager. Among the share-holders and directors were Keith Smith and Bob McClure. Keith Smith Company will hereafter be referred to as the ‘ ‘ Smith Co. ’ ’ Its president was Keith Smith. The Bob McClure Produce Company will hereafter be referred to as the “Produce Co.” Its owner and manager was Bob McClure who was also director in South-Ark. The claimant, Edwin Roberts, was a regular full time employee of this company subject only to the circumstances later set out.
On April 16, 1959 South-Ark., by its Board of Directors, authorized Keith Smith to have a feed mill constructed for that company. Pursuant thereto, on May 5, 1959, South-Ark. also entered into a contract with the Smith Co. to secure the services of one Loyd Chapmond (an employee of the Smith Co.) for one year, agreeing in effect to pay for his services. Chapmond, who was an engineer, was to supervise the construction of the said feed mill. It appears that actual construction of the mill was begun promptly, with Roberts as one of the employees on that job.
It is pertinent to explain the status of Roberts. He had been a regular employee of the Produce Co., as a mechanic, since November 5, 1955, but on April 19, 1959 it was arranged for him to work part time on the construction of the new feed mill. The arrangements were that Roberts would receive $70 per week to be paid by checks issued by the Produce Co. with the Produce Co. being partially reimbursed by South-Ark. to the extent of $20 to $50 per week. By agreement Roberts worked part time for the Produce Co. and part time on the mill job. Apparently the Produce Co. paid Roberts for the time he worked for it and South-Ark. paid him for the time he worked on the mill job.
Roberts (claimant) was injured on March 10, 1960 while working on the mill job under the circumstances heretofore set forth. In the presentation of Roberts’ claim for compensation the only controversial issue was which of the three companies above mentioned should be responsible for making the payments. As before stated, the circuit court affirmed the Commission, both holding that South-Ark. was the responsible company. South-Ark. now prosecutes this appeal to reverse the judgment of the circuit court.
The Findings and Conclusions of the Commission will be clarifying and helpful. Findings: The relationship of employer and employee existed between South-Ark. and claimant when he was injured and had so existed for about eleven months theretofore. Conclusions: 1. The most reasonable interpretation of the evidence is that claimant was a special employee of South-Ark. at the time of his injury; 2. Shortly after claimant began work for South-Ark. he agreed to such employment, and he was paid by that company for his work; 3. South-Ark. exercised control over claimant while he was working for it and directed him as to what work to do and how to do it, and all such work was for its benefit. 4. Although both the Produce Co. and the Smith Co. paid (insurance) premiums on claimant and Chapmond respectively, the said premiums should have been paid by South-Ark., but that does not in anywise preclude claimant from being an employee of South-Ark. (It appears that South-Ark. also paid premiums on Roberts.)
After carefully considering the record in this case together with the excellent and exhaustive briefs presented by all parties we have reached the conclusion that the judgment of the circuit court must be affirmed.
We think appellants have clearly and correctly pointed out the framework to be followed and the decisive issues to be considered in arriving at a proper conclusion in their quotation from 1 Larson’s Workmen’s Com pensation Law, 710, where under the heading “Lent Employees and Dual Employment” there appears the following:
“§ 48.00 When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
“(a) The employee has made a contract for hire, express or implied, with the special employer;
“ (b) The work being done is essentially that of the special employer; and
“(c) The special employer has the right to control the details of the work. ’ ’
Giving the findings of the Commission the same force as the findings of a jury, as we are bound to do we think there is substantial evidence in the record to support the Commission’s findings (set out above) that the three requirements are fully satisfied in this case.
(a) The Commission was justified in finding that South-Ark. either expressly or impliedly hired Roberts. His employment is admitted, and it remains only to determine who hired him or whose employee he was. It seems obvious he was not hired by the Produce Co. at the time of his injury because he was not doing any work for that company and it was not paying him. It is most difficult to understand how Roberts could have been an employee of the Smith Co. unless that company was an independent contractor employed to construct the mill, and there is no contention or evidence this was the situation. It is, of course, true that Roberts was formerly a regular employee of the Produce Co. and that he did, at times, work for it while the mill was being constructed, but these facts alone do not preclude him from being an employee of appellant at the time he was injured. See: Larson, supra, § 48.50; Stuyvestant Corporation v. Waterhouse (Fla.) 74 So. 2d 554; Seaman Body Corporation v. Industrial Commission, 204 Wis. 157, 235 N. W. 433; and Nepstad v. Lambert, 235 Minn. 1, 50 N. W. 2d 614.
In the Waterhouse case, supra, at page 559, the Court said:
“Basically and fundamentally, after all the chaff is cast aside, the solution of almost every such case finally depends upon the answer to the basic, fundamental and bedrock question of whether as to the special employer the relationship of employer and employee existed at the time of the injury. If the facts show such relationship, the existence of a general employer should not change or be allowed to confuse the solution of the problem.” Likewise in the Lambert case, supra, at page 621, it was said:
“Since both employers may each have some control, there is nothing logically inconsistent, when using this test, in finding that a given worker is the servant of one employer for certain acts and the servant of another for other acts. . . . The crucial question is which employer had the right to control the particular act giving rise to the injury. In this connection, Restatement, Agency, § 227, comment a (2), states:
“. . . Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other.’ (Italics supplied.)”
(b) There can be no question that the work Roberts was doing at the time of his injury was for South-Ark. and for its benefit. It is undisputed that South-Ark. authorized the building of the mill, that it was paying for it, and that it would own the mill when constructed. Clearly Roberts ’ work did not benefit the Produce Co. and it could not have benefited the Smith Co. unless, as previously stated, it was an independent contractor. Even though Bob McClure, manager of the Produce Co., and Keith Smith, president of the Smith Co., were both financially interested in South-Ark., still each of the three companies is a separate legal entity and, in this case, must be treated as such.
(c) Finally, it remains to determine which of the three companies had the right to control the details of Roberts’ work on the mill job. Again, we can proceed by the process of elimination. We know of no evidence or reasonable theory upon which it can be held that the Produce Co. had the right to say what Roberts should or should not do while he was working on the mill job. It was not paying Roberts and it does not show that it had any right whatsoever to control his activities on the mill job. It may be that the Produce Co. could have induced Roberts to quit working on the mill job and return to full time work for it, but the point is that it did not exercise that right before Roberts was injured. It is equally clear that the right to control Roberts’ work on the mill job was lacking in respect to the Smith Co. The only connection of the Smith Co. with the construction of the mill was that South-Ark. employed Chapmond (an employee of the Smith Co.) to supervise construction. This was done, of course, with the consent of the Smith Co. Chapmond was paid by South-Ark., and he was to work under the supervision of Keith Smith, who in turn was responsible to South-Ark. and not to the Smith Co. Also, there is no contention that Roberts’ services were contracted for either by Chapmond or the Smith Co.
Oh the other hand, there is direct substantial evidence that South-Ark. did have control over Roberts. Bob McClure testified that he had no control over Roberts while he was working on the construction job, but that Chapmond did have. Keith Smith, the general manager for South-Ark., testified that he could control Chapmond. Chapmond testified that he had control over Roberts while working on the mill job, and that Roberts was injured while working for South-Ark. Also, Roberts testified he took orders from Chapmond.
In view of all the above, we conclude that the judgment of the trial court must be, and it is hereby, affirmed.
Affirmed. | [
20,
110,
-40,
-116,
8,
-32,
58,
-102,
66,
-94,
-89,
83,
-17,
7,
21,
121,
-29,
61,
84,
107,
-10,
-77,
17,
107,
-62,
-5,
-5,
-59,
-79,
75,
-76,
-44,
77,
48,
14,
-43,
-26,
68,
-51,
28,
-18,
2,
107,
-19,
121,
0,
56,
-22,
20,
79,
21,
-98,
-6,
106,
20,
79,
44,
44,
121,
39,
-47,
-15,
-118,
5,
119,
21,
49,
4,
-66,
7,
-40,
14,
-104,
49,
0,
72,
82,
-92,
-58,
84,
43,
-103,
12,
98,
99,
18,
-103,
-49,
44,
-72,
6,
-2,
-99,
-90,
-108,
57,
27,
11,
-106,
-99,
122,
20,
-122,
-2,
-12,
77,
29,
109,
3,
-114,
-112,
-109,
-115,
-32,
30,
-125,
-21,
-113,
50,
97,
-50,
-94,
93,
69,
114,
-101,
7,
-46
] |
Paul Ward, Associate Justice.
Appellant, Walker Talley, was discharged as a member of the Hot Springs Police force by Milford Sanders who was the Chief of Police. The alleged reason for his discharge was that Talley had been guilty of ‘‘ conduct unbecoming a police officer”. Talley appealed to the Hot Springs Civil Service Commission, a hearing was held on October 20, 1960, and that same day the Commission ruled to uphold the action of the Police Chief.
On November 18, 1960 Talley filed a “Petition for Review” in the Garland Circuit Court. On December 12, 1960 the Hot Springs City Attorney filed in Circuit Court a “Motion to Dismiss” the Petition for Review on the grounds that (a) no service had been perfected upon the City of Hot Springs and no notice given and (b) no transcript of the proceedings before the Civil Service Commission had been filed as required by law.
On June 6, 1961 the trial court, after argument, sustained the Motion to Dismiss the Petition for Review and rendered judgment accordingly. The reasons for the court’s action, as set forth in the judgment, were: (a) the complaint filed by appellant on November 18, 1960 was apparently for obtaining time to perfect his appeal from the decision of the Civil Service Commission, and that the matter was never presented to the court; (b) the service had on the Chief of Police on November 22, 1960 did not constitute service as provided by law on the Civil Service Commission. Appellant excepted to the judgment and prayed on appeal to this Court.
Viewing the entire record before us, we have concluded that the judgment of the trial court must be sustained for the reasons hereafter set forth.
(a) Since we have concluded that the cause must be affirmed for other reasons, we do not consider whether the trial court was justified in dismissing appellant’s petition for the reason first assigned above.
(b) We agree with the trial court that no proper service was had on or notice given to the Civil Service Commission. Appellant’s “Petition for Review” named as defendant only the Chief of Police, who, of course, was not a member of the Commission. So far as the record before us reveals, no member of the Commission knows this action is pending.
Appellant attempts to avoid the consequences of this situation by contending the City Attorney entered an appearance for the Commission when he filed a motion to dismiss. This contention is refuted by our decision in Smith Chickeries v. Cummings, Judge, 224 Ark. 743, 276 S. W. 2d 48.
The transcript of the proceedings before the Commission is in the record before us. However, this can avail appellant nothing, because he has not, in his brief, abstracted the record as required by Rule 9 (d) of this Court. Hence, the judgment of the trial court must be affirmed on the merits.
On the other hand, if we treat this appeal as a petition to have the record corrected, again we can see no way to grant appellant relief. If, as it is apparently contended, appellant is referring to the transcript of the hearing before the Commission, that relief would have to come from the trial court and not from this Court. If appellant seeks to have the record (from the trial court) corrected, then we are confronted with the fact that no specific or definite deletions are pointed out. In fact, appellant’s brief contains this sentence: “The complete record has been made.”
In counsel’s brief for appellant, at page 16, there appears the following statement:
“Reference to the Petition and Affidavit filed simultaneously with this Brief make it perfectly clear that the Transcript is not complete. That such matters are relevant and pertinent need only a reference to the Judgment (Tr. 5 and 6) where the following outrageous language of the Court appears”: (emphasis added).
We find nothing in the Judgment referred to that justifies such comment by counsel. In fact such a com ment would not be appropriate under any circumstance and is not to be condoned under Rule 6 of this Court, which reads: “No argument, brief or motion filed or made in this Court, shall contain language showing disrespect for the trial court.”
Affirmed.
McFaddin, J., concurs. | [
52,
-8,
-40,
92,
11,
97,
51,
-92,
-37,
-69,
103,
115,
-81,
9,
5,
49,
-22,
55,
85,
107,
-51,
-78,
-58,
0,
-46,
-41,
-7,
-35,
55,
-51,
-12,
-2,
78,
112,
-118,
-43,
38,
-56,
-49,
94,
-58,
33,
-79,
101,
81,
-110,
48,
119,
-112,
15,
49,
78,
-29,
42,
16,
-57,
-20,
44,
-37,
33,
80,
-7,
-113,
-107,
125,
4,
49,
38,
-99,
5,
-16,
62,
-39,
48,
0,
-8,
115,
-90,
-118,
116,
105,
-99,
12,
102,
98,
3,
65,
-27,
-72,
-63,
14,
-102,
-115,
-90,
-107,
57,
107,
73,
-106,
-100,
124,
16,
3,
118,
103,
-51,
89,
108,
15,
-114,
-100,
-29,
110,
52,
-86,
-58,
-29,
1,
16,
49,
-50,
-14,
124,
71,
49,
-101,
-18,
-112
] |
Ed. F. McFaddin, Associate Justice.
This appeal involves a cargo endorsement clause and also an insurance policy issued by the appellant, Insurance Company of North America, to appellee, S. C. Ferrell.
Ferrell was engaged in the business of moving houses, holding a permit from the Arkansas Commerce Commission as a carrier. In April, 1960, Ferrell held a policy issued to him by the appellant, hereinafter called ‘ ‘ Insurance Company, ’ ’ and attached to the policy was a cargo endorsement which will be first discussed. Ferrell contracted to move for R. M. Meeker an eight-room house from one location to another in Miller County, Arkansas. The house was transported to the new location when Ferrell claims the house was damaged by a windstorm. The Insurance Company refused Ferrell’s claim; he sued, both on the cargo endorsement and the policy; and trial resulted in a verdict and judgment for Ferrell. On this appeal the appellant urges, inter alia, the points herein discussed.
I. Ferrell’s Claim Under The Cargo Endorsement. At the outset, we dispose of the cargo endorsement. The only parties to this action were Ferrell, as plaintiff, and the Insurance Company, as defendant. Meeker was not a party. Ferrell was licensed as a common carrier by the Arkansas Commerce Commission to engage in the moving of houses. Section 73-1768 Ark. Stats, provides in part:
“No certificate or permit shall be issued to a motor carrier or remain in force, unless such carrier complies with such reasonable rules and regulations as the Commission shall prescribe governing the filing and approval of . . . policies of insurance . . . conditioned to pay . . . any final judgment recovered against such motor carrier for . . . loss or damage to the property of others.”
In accordance with its powers, the Commission required Ferrell to obtain an Arkansas Cargo Insurance Endorsement, the germane portion of which reads:
“. . . the insuring company hereby agrees to pay . . . any shipper . . . for all loss or damage to all property belonging to such shipper . . . and coming into the possession of the assured in connection with the transportation service, for which loss or damage the insured may be legally liable, . . .” (Emphasis our own.)
It will be instantly observed that this cargo endorsement was an obligation of the Insurance Company to pay “any shipper” for loss or damage for which “the insured may be legally liable.” Under this cargo endorsement, the Insurance Company did not agree to compensate Ferrell, but only to compensate the shipper, who, in this instance, was Meeker. Should the cargo endorsement be less broad than the statute requiring it, then the statutory liability would govern, but no such contention is made in this case. Ferrell,'as the carrier, had no cause of action against the Insurance Company on this cargo endorsement under the facts here shown. It was stipulated that there was damage to the house in the amount of $2,000.00; but Ferrell testified that he had not paid Meeker any amount. Ferrell did not admit liability to Meeker, and Meeker did not definitely state that Ferrell was liable to Mm. In short, Ferrell’s liability to Meeker had never been determined. Meeker might have sued Ferrell and had his liability established and then recovered from the Insurance Company under the cargo endorsement, or Meeker might have been a party to this; lawsuit and had his right of recovery judicially ascertained ; but, so far as this record shows, it has never been determined that Ferrell was liable to Meeker. Subrogation is not applicable here because Ferrell has paid nothing. Therefore, insofar as the cargo endorsement was-concerned, this action was premature on the part of Ferrell. We have found no case — and learned counsel have cited us to none — which holds that, on an endorsement like this one, the carrier has a cause of action against the insurance company, short of his liability to-the shipper being definitely determined. This endorsement is not like the one in Miami Jockey Club v. Union Assurance Society, 82 F. 2d 588, or Johnson Transfer v. American National Ins. Co., 168 Tenn. 514, 79 S. W. 2d 587, 99 A. L. R. 277. Nothing herein will prejudice the rights of Meeker to enforce his claim under the cargo-endorsement, or otherwise.
II. Ferrell’s Claim Under The Policy. Having disposed of the cargo insurance endorsement, we come to Ferrell’s attempt' to recover on the policy insuring him. The Insurance Company insured Ferrell (as assured) as follows:
(1) “COVEEAGE. On the Assured’s liability as a carrier for loss or damage caused directly by perils insured against hereunder, to lawful goods and merchandise consisting of house moving (hereinafter referred to as property).”
(2) “WHEN AND WHEEE COVEEED. Covering only while the property is in the custody of the Assured and only while contained in or on the following described motor vehicle or vehicles . . . (or) other-vehicle or vehicles . . . described herein, . . .”
(3) “CONDITIONS . . . OTHER VEHICLE CLAUSE. Wherever the term ‘vehicle’ is used in this policy it is deemed to include ‘motor truck,’ ‘tractor and semi-trailer units’ or ‘trailer.’ ”
(4) “THIS POLICY INSURES . . . The liability of the Assured as a carrier for loss or damage directly caused by: . . . Cyclone, tornado and flood (meaning rising rivers and streams).”
A. The Vehicle Issue. It will be observed that this policy covered Ferrell’s liability as a carrier for loss or damage directly caused by windstorm or tornado while the transported property was on a vehicle as defined in the policy. One of the defenses raised by the Insurance Company was that the house was not on a “vehicle” at the time of the alleged windstorm and, therefore, Ferrell was not covered under the policy. The Trial Court denied the Insurance Company’s motion for an instructed verdict on this theory, and the point is urged here. The evidence established that to move the house Ferrell placed two “I-beams” under it, elevated the house from its foundation by hydraulic jacks, placed dollies under the I-beams, attached the I-beams to a truck, and thus towed the house to the new location. It was further shown that when the house arrived near the new location it was six inches from the place desired, and it was decided to remove the dollies from under the I-beams and then roll the house and I-beams the desired six inches. The dollies had been removed but the house was still on the I-beams when the alleged windstorm damage occurred. Under these facts, the Insurance Company insists that the house was not on a “vehicle” when it was merely resting on the I-beams; that the policy coverage applies only while the cargo (i. e., the house) was on a “vehicle”; and that “vehicle” is defined in the policy as “motor truck, tractor, and semi-trailer units or trailer.”
Was there sufficient evidence from which a jury could have found that the Meeker house was on a trailer or semi-trailer at the time of the alleged windstorm? It was shown that the Insurance Company insured Ferrell as a house mover, and that the use of I-beams and dollies, as in this case, was the usual and ordinary way to move a house. An automobile is still an automobile, even when the wheels are removed; and a trailer is still a trailer when the wheels (dollies here) are removed. So if the I-beams and the dollies together constituted a trailer in moving a house, then it might reasonably be concluded by a jury that the I-beams under the house remained as a trailer, even with the dollies removed. When it issued the policy insuring Ferrell as a house mover, the Insurance Company must have known how houses were moved. If the policy was ambiguous, then it must be construed most strongly against the Company. (Morley v. McGuire, 219 Ark. 206, 242 S.W. 2d 112; and Washington Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302). In construing similar policies, the courts have taken a liberal view as to the coverage. See Johnson Transfer v. American National Ins. Co., 168 Tenn. 514, 79 S. W. 2d 587, 99 A. L. R. 277; and Utica Carting Co. v. World Fire Ins. Co., 277 App. Div. 483, 100 N. Y. S. 2d 941, 36 A. L. R. 2d 500; and see annotation in 36 A. L. R. 2d 506, entitled " Coverage of policy insuring motor carrier against liability for loss of or damage to shipped property.” We conclude that under all of the evidence there was sufficient ambiguity to submit the “vehicle” issue to the jury; and the Court was therefore correct in refusing the defendant’s motion for an instructed verdict on this issue.
B. The Act Of God Issue. The Insurance Company also moved for an instructed verdict on the claim that if the house was damaged by windstorm it was an Act of God and that Ferrell, as a carrier, would not be liable for an Act of God and he, therefore, could not recover under the policy. We find no merit in this argument. The Insurance Company issued a policy to Ferrell to protect him from liability from windstorm. Even if there was a windstorm that damaged the house, still, if Ferrell’s negligence concurred with the Act of God, Ferrell would be liable to the shipper. Jonesboro and L. C. Rd. Co. v. Dunavant, 117 Ark. 451, 174 S. W. 1187; and Mo. & N. A. Rd. Co. v. United Farmers, 173 Ark. 577, 292 S. W. 990. Here there was evidence of delay in moving, so the question should have gone to the jury as to whether Ferrell was liable to the shipper in this case, even if the house was damaged by a windstorm.
C. Instructions. There were errors in the instructions in this case which necessitate a reversal. On motion of the plaintiff, the Court amended and gave its Instruction No. 3, which read:
“If you find from a preponderance of the evidence in this case that the plaintiff entered into a contract with H. M. Meeker to transport a house belonging to Meeker from one place in Miller County, Arkansas, to another, and such house was insured under the provisions of the policy issued by the defendant to the plaintiff and such house was damaged by a peril, that is, a violent windstorm, insured against under the provisions of a policy while said house was in the custody of the plaintiff, Ferrell, your verdict will be for the plaintiff and against the defendant and you will assess plaintiff’s damage in the amount of $2,000.00.”
This instruction was given over the Insurance Company’s general and specific objections, which covered the points now mentioned. There were several vices in this instruction.
First: It sought to combine in one instruction the Insurance Company’s liability to Meeker as shipper (on the cargo clause previously mentioned) and also the Insurance Company’s liability to Ferrell under the policy issued to him.
Second: The policy which the Insurance Company issued to Ferrell was a liability policy rather than a policy insuring property. The damage to the house standing alone gave Ferrell no automatic right of recovery from the Insurance Company. The policy insured Ferrell against liability as a carrier and his liability had never been determined. In the case of Fidelity & Casualty Co. v. Fordyce, 64 Ark. 174, 41 S. W. 420, Judge Battle said of the assured (railway company in that case as Ferrell in the case at bar):
“In short, our conclusion in this case is that, when the amount of the liability of the railway company for damages in consequence of bodily injuries caused by the operation of its railway was determined, the Fidelity & Casualty Company became bound by its policy to pay so much thereof as does not exceed the sum it agreed to pay in such cases, . . . but that the same was not determined so long as the action therefor was pending in . . . court.”
Cases from other jurisdictions are to the same effect. See Annotation in 37 A. L. R. page 644: “Insurance against injuring property or person of third person as liability or indemnity insurance.”
The plaintiff’s Instruction No. 3 is erroneous, and the same vice occurred in plaintiff’s Instruction No. 7. In view of what we have said, it is obvious that Ferrell’s liability to Meeker must be established, but we presume that, on remand, evidence will be introduced to such effect. Other assignments need not be discussed in detail since similar situations may not occur on retrial. In view of the manner in which they were offered, we find no error in the Court’s ruling in excluding the defendant’s Exhibits Nos. 14 and 15. Neither do we find any error in the Court’s refusal to give defendant’s Instruction No. 2, or in modifying defendant’s Instruction No. 1.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Johnson, J., not participating.
The full text of the Cargo Insurance Endorsement (attached to-the policy issued by the Insurance Company to Ferrell) reads:
“The policy to which this endorsement is attached is a cargo insurance policy, and is hereby amended to assure compliance by the-assured, as a common carrier of property by motor vehicle, with Section 15, Act 367 of the Acts of Arkansas of 1941 with reference to-making compensation to shippers or consignees of all property belonging to shippers or consignees coming into the possession of such carrier in connection with its transportation service, and with the pertinent rules and regulations of the Arkansas Public Service Commission.
“In consideration of the premium stated in the policy to which this endorsement is attached, the insuring company hereby agrees to pay, within the limits of the liability hereinunder provided, any shipper or consignee for all loss, or damage to all property belonging to such shipper or consignee, and coming into the possession of the assured in connection with the transportation service, for which loss or damage the insured may be legally liable, regardless of whether the motor vehicle, terminal, warehouse, and other facilities used in connection with the transportation of the property hereby insured, are specifically described in the policy or not. The liability of the company extends to such loss or damage, whether occurring on the route, or in the territory authorized to be served by the insured, or elsewhere within the boundaries of the State of Arkansas.
“Within the limits of liability hereunder provided, it is further understood, or agreed that no condition, provision, stipulation, or limitation contained in the policy, or any other endorsement thereon, or violation thereof, of this endorsement by the insured shall affect in any way the right of any shipper, or consignee, or relieve the company from liability for the payment of any claim for which the insured may he held legally liable to compensate shipper or consignee, irrespective of the responsibility, or lack thereof, or insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which this endorsement is attached are to remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any loss or damage involving a breach of the terms, of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement.
“The liability of the company for the limits provided in this endorsement shall be a continuing one, notwithstanding any recovery hereunder.
“The company shall not be liable for any amount in excess of the maximum shown in the policy (in no event to be less than $1,000.00) in respect to any loss/or damage to, or aggregate of loss/or damage of, or to the property herein insured accruing at any one time or place, or to loss/or damage to such property carried in any one motor vehicle, whether or not such loss or damage occurred while such property is on a vehicle, or otherwise. The minimum liability assumed under this endorsement shall be One Thousand ($1,000.00) Dollars.
“This endorsement may not be cancelled without the cancellation of the policy to which it is attached.
“The policy to which this endorsement is attached shall not expire, nor shall cancellation take effect until after thirty (30) days notice in writing by the company, shall have first been given to said Commission, said thirty (30) days notice to commence to run from the date notice is actually received by the Commission.”
For cases involving somewhat similar cargo endorsements, see McIntosh V. Whieldon (S.C.), 30 S.E. 2d 851; Carolina Trans. Co. V. American Alliance Ins. Co., 214 N.C. 596, 200 S.E. 411; and William Atkin Co. v. National Liberty Ins. Co., 5 N.Y.S. 2d 863..
Attention is also called to U.S.C.A. Tit. 49 §315, for provisions of the Federal Motor Carrier Act similar to the provisions of §73-1768 Ark. Stats,
For general statements regarding parties and rights of action on policies see: Am. Jur. Vol. 29A, page 877, “Insurance” §1806; Apple-man on “Insurance Law and Practice” §4832 et seq. and §11771 et seq.; 41 C.J.S. page 112, “Insurance” §1191; 60 C.J.S. page 418, “Motor Vehicles” §116 (c) and §117; and see also annotation in 141 A.L.R. 628.
Webster’s Third New International Dictionary gives this definition of “dolly”: “A platform on a roller, or on wheels or casters, used for transporting heavy objects (such as logs, girders or machines) short distances.”
In 42 Words & Phrases 317, et seq., there are cited many cases, discussing “trailer”; and in 38 Words & Phrases 587, there are cases discussing “semi-trailer.”
This was a liability policy as distinguished from an indemnity policy. In American Employers’ Co. v. Fordyce, 62 Ark. 562, 86 S.W. 1051, the distinction between indemnity insurance and liability insurance is clearly stated. See also Appleman on “Insurance Law and Practice” §4261. | [
116,
-8,
-12,
-68,
8,
-30,
58,
-72,
95,
-87,
101,
81,
-17,
-58,
5,
99,
-25,
111,
-47,
107,
-73,
-93,
83,
114,
66,
-109,
83,
-57,
-79,
-53,
101,
95,
76,
32,
-54,
85,
-122,
-55,
-59,
-100,
78,
5,
-70,
-28,
121,
15,
48,
106,
0,
15,
65,
-97,
-21,
41,
17,
67,
-83,
44,
-7,
37,
-47,
-72,
-117,
30,
127,
5,
-79,
100,
-103,
5,
-14,
14,
-108,
49,
0,
-8,
114,
38,
-122,
100,
107,
-103,
-120,
34,
99,
0,
1,
-17,
-20,
56,
7,
-2,
47,
-122,
-106,
25,
11,
73,
-73,
-99,
124,
18,
22,
-6,
-8,
85,
31,
108,
15,
-81,
-112,
-77,
-91,
-94,
29,
3,
-17,
-53,
54,
113,
-54,
-28,
93,
5,
123,
-97,
6,
-48
] |
Ed. F. McFaddin, Associate Justice.
The appellants (plaintiffs below) are patrons of Garland County School District No. 1; and the appellees (defendants below) are (a) the Directors of the said School District, and (b) the members of the Garland County Board of Education. We will refer to the parties as they were styled in the Trial Court.
The plaintiffs sought a writ to require the Directors of Garland County School District No. 1 to maintain in or near the community of “Star” a school for children of the first six grades; and the plaintiffs also sought a writ to require the said School Directors and the County Board of Education to designate a site and build a school building in the western part of the School District. After hearing the evidence, the Chancery Court ruled against the plaintiffs on both points, and this appeal ensued. For convenience, we discuss separately the two alleged causes of action.
I. Maintaining A Grade School At “Star.” Garland County School District No. 1 is about thirty miles long, east and west. Star is located in the western part of the District; Jessieville is located in the eastern part of the District; and by far the greater number of pupils of the District live in the Jessieville area. The problem is how to maintain a creditable school near Star, where there are only a few pupils. For years there had been a grade school at Star, with only one teacher who taught the six grades; but the pupils in attendance at the Star School gradually declined, so that for the years shown below there were only the following pupils:
1957 18 pupils
1958 12 pupils
1959 16 pupils
1960 12 pupils
In 1960 the School Directors discontinued the school at Star and had the pupils in the Star community transported each school day to the larger school at Jessie-ville, thirty miles distant. This necessitated that some of the children had a bus trip of nearly two hours each morning and evening; and this suit resulted.
It was shown that the school at Star for the first six grades was inefficient, both educationally and economically; and the School Officials testified that it was far better for the children to endure the long bus ride, rather than continue in the small one-room school in Star. After hearing all the evidence, the learned Chancellor ruled:
“That the action of the Board of Education of Garland County School District No. 1 in closing the Grade School known as the “Star” School in said District was within the discretion of said Board of Education, and the Plaintiffs have shown no abuse of discretion on the part of the Defendant Board of Education in closing the said school. ’ ’
We conclude that the Chancellor was correct. Section 30-509 Ark. Stats., in listing the powers and duties of school directors, says that they shall: “ (a) Have the care and custody of the school house, grounds, and other property belonging to the District, . . .” “(b) Purchase buildings or rent school houses and sites therefor, and sell, rent, or exchange such sites or school houses. . . .” “(d) Employ such teachers and other employees as may be necessary for the proper conduct of the public schools of the district, . . .” “(g) Visit the schools frequently, see to the welfare of the pupils, encourage them in their studies, and assist the teacher in the work so far as they can. . . .” “ (m) Do all things necessary and lawful for the conduct of an efficient free public school or schools in the district.”
Under these and other powers, the School Directors could, in good faith, reach the decision they did about the Star School; and the evidence herein does not show that the School Directors acted in bad faith. In Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538, 30 A. L. R. 1212, we said:
“Courts will not interfere in matters of detail and government of schools, unless the officers refuse to perform a clear, plain duty, or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them.”
In 47 Am. Jur. 325, “Schools” § 44, cases from many jurisdictions are cited to sustain this statement:
“The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discretion, or a violation of law. Every presumption is in favor of the proper exercise of power when its object is reasonably germane to the purposes of the grant.”
Therefore, we affirm the Chancery decree in regard to closing the school in the Star community.
II. The Location And Construction Of A School In The Western Part of The School District. The plaintiffs alleged and established: that in March 1952, an election was held in the School District and a bond issue of $10,000.00 was voted for a new grade school to be erected in the western part of the District; that since 1952 the money realized from the sale of the bonds has been in the County Treasury; and that the members of the School District and members of the County Board of Education had failed to select a site and undertake the construction of said school building. The prayer of the complaint was that the School Directors and the members of the County Board of Education be required to select a site and commence the construction of said school building.
After hearing the evidence, the Chancery Court refused the prayed relief. This is the second time that some phase of this same situation has reached this Court. In Johnson v. Robbins, 223 Ark. 150, 264 S. W. 2d 640, some patrons of the same School District prayed that the Garland Chancery Court select a site for the location of said school building; and, in holding that the Court should not select a site, we said:
“Although it is true, as the appellees point out, that arbitrary action on the part of a school board is subject to judicial review, the court even then does not substitute its judgment for that of the board. All that equity does is to restrain a course of conduct found to be arbitrary; the choice of a more reasonable plan is then left to the directors. In the case at bar the third selection is not yet final, in that the County Board of Education has not given its necessary approval. But even if that board had acted it is not the court’s place to lift the matter from the hands of the two administrative agencies and to make for them the choice that the law commits to their discretion. ' ’
In the present case it was practically admitted by the defendants that they had no present intention of undertaking to construct a school building with the proceeds of the bond issue. The question before us now is whether the Chancery Court should have issued a writ to compel the expenditure of the trust money for the trust purpose (i. e., the building of a school); or whether the Court was correct in allowing the trust money to remain unexpended because it was shown that the money was: (a) insufficient to accomplish the intended purpose; and (b) even if a building should be constructed, it would be inexpedient to use it for school purposes.
In our democratic system, the School District is one of the units of self-government, and it would be unfortunate for all concerned if the School Directors, as the chosen representatives of the People voting in the school election, would fail and refuse to earnestly and fairly undertake to accomplish the legally expressed directions of the electorate. In such an event, recourse to the judiciary would be available to the electorate. But, in the case at bar, the evidence does not justify judicial intervention, because it is shown that the School Directors are trying to conserve the trust money, rather than to waste it. The evidence established that since 1952 building costs, shifts in the location of school children, and the upgrading of the school system, combined to make it extremely unwise to expend the trust money for a school building, because (a) no creditable school building could now be constructed in the western part of the District for as little as $10,000.00; (b) if a building should be constructed, as desired by the plaintiffs, there would not be sufficient pupils to justify maintaining the school (as discussed in Topic I, supra); and (c) it is far wiser to transport the children from the Star community to the Jessieville school, rather than to attempt to maintain a school for the six elementary grades in the Star community (as discussed in Topic I, supra).
Therefore, on the record before ns, we cannot say that the Chancery Court was in error in its decree on this phase of the case. The trust fund is not to be diverted, and should a subsequent school enumeration disclose the feasibility of constructing and maintaining an elementary school slightly west of or near the center of the District, then the present decree is no bar to the further efforts by any patrons of the School District toward the achieving of that result.
Affirmed. | [
-16,
-56,
-124,
126,
58,
-96,
90,
-98,
65,
-93,
101,
-41,
-87,
-36,
12,
111,
-73,
45,
68,
106,
-75,
-77,
67,
-30,
-125,
-5,
-5,
77,
-101,
76,
-28,
-43,
76,
84,
-118,
-43,
38,
64,
-51,
-44,
-114,
-94,
-71,
74,
73,
-93,
36,
97,
58,
47,
53,
15,
-89,
44,
61,
-61,
8,
44,
-39,
-81,
65,
-13,
26,
28,
125,
5,
-79,
-58,
-98,
-61,
-56,
46,
-103,
53,
-124,
-24,
50,
-90,
2,
116,
9,
-119,
-120,
-96,
102,
17,
-72,
-59,
-4,
-119,
14,
119,
45,
-26,
-122,
25,
-14,
5,
-65,
-100,
121,
84,
-121,
120,
102,
-59,
26,
108,
71,
-22,
-42,
-77,
-116,
-79,
-114,
3,
-17,
35,
16,
80,
-115,
-98,
92,
70,
19,
-37,
78,
-45
] |
Kirby, J.,
(after stating the facts). It is contended that the court erred in refusing said requested instructions and striking from the files the amended answer. Appellee relied upon the failure to. observe 'the custom or practice and the agreement alleged to exist between him and his co-workers in the felling of the trees, to warn him, that the tree being sawed was about to fall, in time for him to get out of its way as negligence authorizing him to recover for the injury, and in support of this adduced testimony tending to show that there was an agreement between them to this effect, and that it was' the custom to give him the warning in accordance with the agreement. The proposed instructions told the jury that unless there was such an agreement on the part of his co-employees to warn him that the tree being sawed was about to fall, that there was no duty resting upon the sawyers to give him such notice and consequently no negligence authorizing a recovery from appellant for the injury to appellee. If there was no negligence chargeable to appellant company, there of course could be no recovery of damages from it by appellee for Ms injury. The negligence, carelessness or omission of duty of the other servants of appellant corporation, engaged in the work of cutting the timber with him was the negligence of the corporation, the appellee being in the exercise of due care at the time -of the injury, under our statute. Section 1, Act 69, Acts 1907.
Appellee and the sawyers were engaged in cutting the timber, appellee notching the trees ahead of them, and but for their custom of notifying Mm or their agreement to do so, that the tree they were sawing was about to fall, that he might avoid the danger from it, owed him no duty to give such warning unless they discovered him in a position of peril in time to have given him the warning and enabled him to escape it. But for such agreement or custom he would have been expected to make his own place of work safe and avoid injury while performing it and would doubtless have done so.
It pray be that the instructions given by the court upon appellee’s request did not clearly and definitely submit this question to the jury, since no duty arose upon the part of the sawyers, or either of them, to notify appellee when the tree was about to fall, but for the custom of doing so or the agreement to do so, until after they discovered him to be in a position of peril. It is not questioned that they did not discover his perilous position until it was too late to save him from being struck by the falling tree after the warning was given. It was given after such discovery, but not in time for him to avoid the danger.
Said instructions asked by appellee were not correct statements of the law, however, and the court did not err in refusing to give them. If it was the custom of the sawyers to warn appellee who was notching the trees, at the time they were ready to fall after being sawed, or if they had agreed to do so, and in either event failed to give the warning, in time for him to avoid the danger, as the evidence tended to show, the failure would constitute negligence for which the master would be liable.
The instructions refused tell the jury that there was no duty resting upon the sawyers to give notice or warning to Woodruff that the tree would soon fall, and that a failure to give such warning did not amount to negligence and would not justify a finding in 'his favor, unless they had agreed to give the warning and failed to do so, leaving out of consideration the question of whether it was customary to give such warning.
The court did not err in striking the amended answer from the files, denying that the appellee was its servant at the time of the injury, while its first answer admitted the fact of his employment. It would have changed entirely the issue, and it did not attempt to disclose which corporation was appellee’s employer in the service in which he was engaged, nor was it proposed to be made until after a claim for damages against the other company which had not been sued, was barred by the statute of limitations if pleaded. Appellant knew, or should have known, at the time the suit was brought, whether or not appellee was in its employ, and no showing was made that all the facts relative thereto were not as well known to it at the time of making its original answer, as when the amended answer was filed. There was no abuse of discretion in striking it from the files. American Bonding Co. v. Morris, 104 Ark. 276.
Finding no prejudicial error in the record, the judgment is affirmed. | [
-112,
124,
-40,
-115,
24,
96,
58,
-102,
81,
-91,
39,
83,
-33,
-57,
-99,
107,
-31,
125,
81,
43,
85,
-93,
31,
83,
-14,
-13,
83,
-124,
-75,
110,
-2,
63,
69,
48,
-54,
-43,
-26,
2,
-59,
-44,
-122,
-121,
11,
-21,
-71,
18,
48,
27,
60,
75,
113,
-98,
-29,
42,
28,
-57,
42,
44,
107,
45,
-16,
120,
-69,
13,
95,
16,
-77,
37,
-100,
39,
-8,
44,
-120,
49,
1,
-24,
121,
-74,
-123,
116,
41,
-119,
72,
98,
98,
32,
13,
111,
-39,
-104,
-82,
-2,
29,
-89,
-108,
40,
43,
41,
-106,
-99,
45,
20,
54,
126,
-28,
-99,
29,
96,
3,
-125,
-44,
-77,
-99,
116,
-100,
-121,
-17,
-122,
50,
117,
-49,
-86,
94,
69,
19,
27,
-98,
-46
] |
Wood, J.,
(.after stating the facts). The first question to be considered is as to whether or not the transaction was a purchase of stock of the corporation or a loan of money to the corporation.
While the negotiations between the appellee and the parties representing the appellant culminated in a contract which recites that the $5,000 was “in consideration of the purchase for1 cash of 200 shares, of the capital stock,” and while there are other recitals which, unexplained, would tend to show that the transaction between the appellant and the appellee was a sale of .stock and not a loan, yet when the contract is' viewed in the light of the testimony of the witnesses who conducted the negotiations, we are of the opinion that the chancellor was cor rect in treating the transaction as a loan on the part of the appellee to the appellant.
The testimony of Peay, and the testimony of appellee himself, and of his attorney, leaves mo donbt of the fact that it was the intention of the parties to the contract that appellee should advance to the corporation, to be used for its purposes alone, the sum of $5,000. The testimony shows that appellee advanced this sum, and that it was received by the appellant amd used by it.
While J. K. Robinson testifies that it was his stock that was sold to the appellee, the contract itself and the testimony of the other witnesses and the minutes of the corporation which were drawn to reflect the proceedings of the meeting, show that the'200 shares of stock that were delivered to appellee were turned by Robinson into the treasury of the company. In other words, the effect of all the testimony, except that of Robinson, was to show that Robinson, in order to induce the appellee to advance the money for the corporation, donated 200 shares of his stock to the corporation to be given to appellee and to be held by him as security for the money he had advanced on behalf cf the corporation. The corporation, at the time the negotiations were pending, had no treasury stock; all its stock had been issued amd was paid up. That Robinson, himself considered the transaction as a loan to appellant is shown by the fact that he afterward signed appellant’s name to the note which included the $5,000 advanced by appellee.
As we view the contract, so far as the $5,000 is concerned, it creates a liability on the part of the appellant in favor of the appellee for this sum, with interest at the rate of 10 per cent per annum, payable to appellee upon demand, after reasonable notice, upon the appellee tendering back to the appellant the certificates of stock held by him. This construction clearly reflects the intention of the parties to the transaction, and the chancery court did not err in so holding.
The appellant contends that, even though the transaction be treated as a loan, that the contract was void be cause Guy Robinson, one of tbe directors, had no notice of tbe meeting when tbe contract was executed, and that there was therefore no legal meeting of tbe directors, and that it was also void because there was no legal meeting of tbe stockholders.
Endorsed on tbe contract itself was a statement, signed by Robinson and Peay, to the effect that they constituted tbe stockholders of the company and consented to tbe contract. A clear preponderance, of tbe testimony shows that at the time the contract of February 25 was ■executed the stockholders of appellant were J. K. Robinson, Guy Robinson, bis son, and Nick Peay. J. .K. Robinson and Nick Peay owned all of tbe stock except one share held by Guy Robinson, and it is manifest that this one share was simply held by him in trust for tbe purpose of the organization. For J. K. Robinson, at tbe time of tbe meeting, treated this one share as bis own stock in making tbe negotiations with the appellee and permitted appellee to bold same in order to elect him secretary, and there was never any objection to this on tbe part of Guy Robinson. True, J. K. Robinson testified that at tbe time tbe contract was executed Doctor Bentley owned forty shares of tbe stock, but bis testimony in this respect is contradicted by bis own 'Statement in writing endorsed on tbe contract and by the testimony of tbe other witnesses who were present. At tbe time of tbe meeting, therefore, and when the contract was consummated all of the stockholders .and tbe directors were present or represented. But if Guy Robinson bad in fact any beneficial interest in the share of stock held by Mm, the evidence shows that be was notified of what was done, and it was not shown that be objected to tbe transaction. His testimony was not taken. The minutes recite that notice in writing was waived by each of tbe stockholders. It must be held, under these circumstances, that Guy Robinson bad notice of tbe meeting of the directors, or that if he did not have notice, when be was told -by bis father of the transaction and made no objection thereto, be acquiesced in and rati fied the same. .See 1 Thomp., Corp., § § 824-25. He is estopped from gainsaying it. 10 Oye. 1066.
“Acquiescence by stockholders in the action taken by the directors separately and where such action was carried out by the corporation was held sufficient to render the acts valid.” 2 Thompson on Corporations, § 1074, and cases cited in note.
But a conclusive answer (to the contention urged by counsel that the contract wias void because the board of directors was illegally convened is that the appellant was the beneficiary of the proceeds of the contract that was authorized at that meeting. Knowing the facts, it received the funds from the appellee and appropriated them (to its own use. It is therefore estopped from .setting up the invalidity of the contract.
Estoppel- by written contract or in pais operates against corporations in like manner as natural persons. The law is accurately stated in 10 Cyc., pp. 1067, 1068, as follows: “If an officer of a corporation or other person 'assuming to have power to bind the corporation by a given contract enters into the contract for the corporation, and the corporation receives the fruits of the contract and retains them after acquiring knowledge of the circumstances attending the making of the contract, it will thereby become, estopped from afterward rescinding or undoing the contract.” See also pp. 1065-66.
The appellant contends that those paragraphs in the contract by which the appellant guarantees to appellee 10 per cent dividend on the stock held by him and to make him a director and pay him a salary as secretary, and to return to him his money at all hazards, render the contract void as against public policy. If the transaction under consideration were a sale and purchase of stock instead of a loan, then there would be ground for appellant’s contention. But, treating the transaction as a loan, it was within the power of the directors to make it in this form and to prescribe these or any other terms by way of inducement to appellee to enter into the contract and for his satisfaction and security after he had done so.
In the absence of express limitations a corporation has the implied power to borrow money to carry out the purposes of its. organization and to execute evidences of its indebtedness, and to give security therefor. It may bind itself by any form of obligation not forbidden by its charter. iSee 10 Oye., pp. 1102-1104; 3 Thompson on Corporations, § § 2165-7.
Concerning the validity of the contract under review it must not be overlooked that the naked question before us is as to whether or hot that contract makes appellant liable to the appellee. While the complaint alleges the insolvency of the appellant, the answer denied it, and by the agreement of counsel this question was not submitted, and as to whether or not there were other creditors of appellant besides the appellee, or as to what effect the contract would have on the rights of creditors generally was not involved.
The appellant contends that the clause in the contract guaranteeing appellee a dividend of 10 per cent on the stock held by him was -a fraud' upon the minority stockholders. This is not well taken, for another clause in th© contract gives to 'all the stockholders the same dividend. Moreover, treating the transaction as a loan, this was but a provision whereby appellee was to receive 10 per cent per annum .on his loan. Besides, at the time this transaction was entered into there were no minority stockholders who were not present or represented in the meeting and consenting to this provisión. They are therefore bound by it. The testimony of J. K. Robinson that Bentley was a stockholder at this time is. contrary to the clear preponderance of the evidence.
As to whether or not demand was made upon the appellant for a return of the money .a reasonable time before the institution of the suit was a question of fact for the chancellor, and his finding to the effect-that appellant had reasonable notice is correct. See 10 Cyc., pp. 1077-1078.
There was error in the matter of interest. It is admitted by the appellant in its answer that the appel lee was entitled to the amount which he claimed as salary. The has-is for the amount of the judgment was the note for $5,193 executed by the appellant, • through its president, cn May 30, 1914. This should be taken as an admission of the amount due on the contract up to that date, including the salary.
The court’s decree, however, was erroneous in making this entire sum bear interest from May 30,1914. Only the sum of $5,000, under the terms of the loan agreement, should bear 10 per cent interest from May 30, 1914. The amount included in the judgment as salary, which has not been -shown, and which the clerk may ascertain, .should only bear interest at the rate of 6 per cent from May 30, 1914. The ■ decree will be modified to this extent, and, with -such modification, affirmed. | [
48,
108,
120,
-20,
10,
96,
42,
-118,
77,
-96,
39,
-13,
-7,
-38,
20,
127,
-9,
125,
80,
106,
85,
-77,
103,
105,
-14,
-77,
-39,
-35,
-75,
-49,
-28,
85,
76,
48,
-62,
-43,
98,
-61,
-63,
84,
-114,
-124,
-117,
64,
-7,
64,
52,
3,
16,
73,
113,
-122,
-13,
36,
17,
79,
105,
42,
111,
57,
-48,
-8,
-66,
-123,
127,
7,
51,
36,
-100,
109,
-40,
46,
24,
-71,
9,
-24,
122,
-74,
22,
84,
41,
-119,
40,
34,
102,
0,
-28,
-19,
-36,
-104,
46,
95,
13,
-90,
-46,
88,
36,
105,
-65,
31,
-4,
16,
46,
-10,
-6,
29,
-97,
100,
19,
-49,
-10,
-109,
-99,
118,
-102,
15,
-18,
19,
18,
64,
-51,
-78,
93,
103,
58,
-109,
-114,
-6
] |
McCulloch, C. J.
Appellant and appellee were at the time of the commencement of this suit, and are now, husband and wife, but at the time of the execution of ■the note and mortgage involved in this case they were not married.- They resided in the city of Hot Springs, in this State, and appellee, being the owner of certain real estate situated there, borrowed a sum of money from appellant and executed to .him her promissory note and :a mortgage on the real estate to secure the payment of the same. ¡Subsequently ¡she and appellant intermarried, and the question raised in this case is ¡whether or not the marriage extinguished the debt. Appellee instituted the action against appellant to cancel the mortgage on the ground that it had been extinguished ■by the intermarriage of the parties, and appellant filed a cross-complaint to foreclose the mortgage.
The rule at common law was that the intermarriage, of the two parties to a contract extinguished the obligation. The question, however, for decision in this case is whether modern statutes governing the marriage relation and property rights thereunder, particularly the provision of the 'Constitution of this State (Sec. 7, Art. 9) to the effect that the property of a married woman “shall, so long as she may choose, be and remain her separate estate and property,” and the statute which provided that a married woman may transfer her separate property, carry on any trade or business, and sue or be sued in the courts of the State (Kirby’s Digest, 5214) operate as a modification of the common law rule so as not to extinguish the obligation of a contract between the parties executed prior to the marriage. Statutes of this character exist well nigh universally in the American states, but the courts are not altogether in accord as to the effect thereof. In England there has been a great modification in the strict rules of the common law with respect to' the property rights of married women, and the trend of the decisions there is to give a broad interpretation to these statutes in relaxation of those common law rules.
In Lord Halsbury’s Work on the Laws of England (Vol. 16, p. 433), in commenting on the case of Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83, where the English court decided that a husband’s ante-nuptial contract to pay an annuity was not extinguished by the intermarriage of the parties but was only suspended, the following statement is found: “The rules of the common law were founded on the doctrine of the unity of the person, and the -inability of husband and wife to sue one another, and although the Married Women’s Property Acts contain no express provision on the subject, it is doubtful whether these rules have any application now that this disability has been removed. There seems on principle to be no reason why a husband or wife should not sue the other on a contract made before marriage, unless, regard being had to the nature or terms of the contract, and the other circumstances of the particular case, a contrary intention appears.”
In some of the American states, where there are statutes similar to ours, they have been construed to modify the common law rule so as to allow the parties to sue on a contract made before marriage. In Massachusetts the court first decided against such modification, but the later cases have overruled the former ones, and now hol’d it to be the settled law of the State that the subsequent intermarriage of the maker and payee of a note does not extinguish the binding force of the obligation. Butler v. Ives, 139 Mass. 202; Spooner v. Spooner, 155 Mass. 52; McKeown v. Lacey, 200 Mass. 437.
In Illinois it has been decided that statutes similar to ours modify the common law rules so that a wife’s ante-nuptial contract is not extinguished by her intermarriage with the obligee. Clark v. Clark, 49. Ill. App. 163.
There can scarcely be found a more learned or interesting discussion on the subject of modification, by modern statutes, of the rules of the common law, with respect to the rights and liabilities of married women, than the opinion of Judge Riddick in the case of Kies v. Young, 64 Ark. 381, where it was held that (quoting from the syllabus) “The common law liability of a husband for his wife’s ante-nuptial debts has not been abrogated by the married woman’s act which excludes the marital rights of the husband in the wife’s property during coverture, and confers upon married women power to acquire and hold property.”
The rule laid down in that case was subsequently abrogated by statute relieving the husband from liability for the wife’s ante-nuptial debts, but the luminous discussion of the -law by Judge Riddick still remains for our guidance upon analogous questions. It can not be contended that the statutes of this State have in express terms abrogated the 'common law rule governing the question involved in the present ease any more than they did the question involved in the ease just referred to, hut the question for determination in this case is, as it was in that, whether the reasons for the common law rule have been abolished by statutes so as to cause the rule itself to cease.
In Kies v. Young, supra, the court decided that all of the reasons for the common law rule, so far as it related to the liability of a husband for the ante-nuptial debts of his wife, had not ceased with the changes in the law wrought by modern statutes, and that, therefore, the rule itself had not ceased as a part of the law of this State. But it does not follow that the same can be said of the question now before us concerning the extinguishment of the liability of the wife for her ante-nuptial debts. On the contrary, it seems to us that the provisions of the Constitution and statutes of this State, which sweep away almost entirely the husband’s common law right to take or control the property of his wife, do completely abrogate the common law rule that an ante-nuptial debt is extinguished by the intermarriage of the parties. The husband can not. sue at law to enforce the obligation because the statutes do not confer that remedy, but the obligation remains unextinguished and may be enforced in equity. The principal reason why this court upheld the liability of the husband for the ante-nuptial debts of the wife, according to the common law rule, is that, while the Constitution ¡and statutes of the State give the wife the right to hold her property so long as she may choose, and to sue and be sued on her obligations with respect to her separate estate incurred during coverture, those rights to hold her own property are limited to her exercise of the choice to claim it, and that this does not entirely take away the husband’s rights, so that it can be said that the reason for holding the husband liable for the debts has ceased. It is pointed out in the decision that the wholesomeness of the common law rule in that respect is not affected by modern enactments, because the wife may choose not to take her property but to allow her husband to take it, and that as there is no provision in the statute for her to be sued on an ante-nuptial obligation, there would be no remedy for the creditor unless the common law remedy against the husband is preserved. The reasons there stated have no application to the present case where the ante-nuptial obligation of the wife to the husband is under consideration, and where she has the choice of holding her property and of 'disposing of it at will without the consent of the husband there is no reason why the common law rule extinguishing her obligation to the husband should still prevail. It has long been the law of this iState that an obligation of husband and wife, even during coverture, while unenforceable at law, is binding and enforceable in equity. Pillow v. Sentelle, 49 Ark. 430. We have held, too, that where there exists a valid obligation of one of the spouses to the other, the remedy is not suspended during coverture, but that the obligation may be enforced in a court of equity. Lawler v. Lawler, 107 Ark. 70; Shane v Dickson, 111 Ark. 353. The question can not be said to be entirely free from doubt, but we believe the true, the just and the logical rule to be that the common law doctrine on this subject has been modified and that the unity of the parties to the marriage has been destroyed to the extent that obligations incurred before the marriage relation was entered into are not extinguished by it.
We are, therefore, of the opinion that the learned chancellor reached the wrong conclusion on the question involved, and his decision must be reversed with directions to enter a decree in accordance with this opinion.
Wood and Hart, JJ., dissent. | [
-48,
104,
-111,
108,
-54,
96,
10,
-102,
120,
-127,
37,
-45,
-23,
-54,
20,
97,
98,
73,
97,
106,
117,
-78,
6,
64,
-14,
-77,
-31,
-35,
-79,
95,
-12,
87,
72,
120,
66,
93,
70,
10,
-59,
20,
-122,
-121,
-104,
-60,
-39,
-62,
52,
123,
80,
13,
65,
-113,
-77,
47,
21,
-50,
104,
46,
75,
61,
-48,
-16,
-113,
20,
127,
7,
17,
55,
-28,
5,
-54,
10,
-104,
49,
0,
-23,
114,
-122,
-106,
116,
75,
-101,
8,
34,
98,
0,
65,
-1,
-99,
-104,
15,
94,
-99,
-122,
-80,
89,
43,
65,
-66,
31,
124,
29,
-121,
112,
-18,
13,
29,
-20,
14,
-33,
-42,
-95,
47,
126,
-107,
3,
-10,
99,
53,
112,
-49,
96,
92,
102,
59,
-109,
14,
-13
] |
McCuhloch, C. J.
Appellants instituted this action in the circuit court of Hot Spring Oounty to enforce a lien for the price of labor performed by one Alexander, a mechanic, for appellee in the construction of a house on a lot owned by the latter. Alexander assigned his claim to appellants, after having filed the claim in the 'Office of the circuit clerk of the county, verified by affidavit, as provided by statute. ín the affidavit of verification, the property was described as “the dwelling house of John W. Wright, which is situated on part of the northeast quarter of the southwest quarter of the southwest quarter, of section 13, township 4 south, range 17 west, containing one acre of land.” The lot is accurately described by metes and bounds in the amended complaint. The court sustained a demurrer to the complaint on the ground that the description in the affidavit of verification, which is exhibited with the complaint, is insufficient to. accurately identify the property sought to be charged with the lien. Appellants declined to plead further, and judgment was rendered dismissing the complaint.
The complaint describes the property accurately and states a cause of action. Therefore, it is good on demurrer. The affidavit was not the 'basis of the cause of action, and did not become a part of the pleadings so as to be reached by demurrer. Such is the rule in actions at law. Sorrells v. McHenry, 38 Ark. 127; Euper v. State, 85 Ark. 223.
The statute (Kirby’s Digest, § 6128), provides that “if the action, counterclaim or set-off is founded on a note, bond, bill or other writing as evidence of indebtedness, the original, or a copy thereof, must be filed as part of the pleading,” but the affidavit does not constitute the “evidence of indebtedness” on which the action is founded.
Even if the .affidavit could be considered in testing the sufficiency of the complaint, we are of the opinion that the description therein is sufficient. That is to say, it is sufficient when challenged by demurrer. The words furnisfi. the key to a description of the property sought to be charged, and are sufficient to let in extrinsic proof in aid thereof. Eddy v. Loyd, 90 Ark. 340.
The language of the affidavit is equivalent to a statement that the property sought to be charged with the lien is a certain lot, one acre in area, owned by appellee, on which his. dwelling house is situated, and evidence aliunde is admissible to identify the property.
Mr. Phillips, in his work on Mechanic’s Liens (3 ed., § 379), discussing the rules of law established by decisions of court with reference to the essentials of a description of property sought to be charged with a. mechanic’s lien, says: “Among those laid down, and probably the best rule to be adopted, is, that if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it will be sufficient. There is great reluctance to set aside a mechanic's claim, merely for loose description, as the acts generally contemplate that the claimants should prepare their own papers; and it is not necessary that the description should be either full or precise. It is enough that the description points out and indicates the premises, so that, by applying it to the land, it can be found and identified. A description that identifies is sufficient, though inaccurate. If the description identifies the property by reference to facts, that is, if it points clearly to a piece of property, and there is only one that will answer the description, it is sufficient.”
In the same section, the author gives numerous illustrations of rather loose descriptions which have been upheld by various courts.
The same rule is in substance stated with approval by other text writers on the subject. Boisot on Mechanic’s Liens, § 431; Roekel on Mechanic’s Liens, § 103.
The statute (Kirby’s Digest, § 4994) expressly authorizes an assignment of a claim of this kind, and Alexander, the original claimant, is not a necessary party to the action.
The circuit court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule the demurrer. | [
-14,
109,
-72,
-83,
-24,
-32,
8,
-102,
-39,
1,
101,
87,
-19,
-60,
4,
117,
-28,
105,
113,
121,
69,
-78,
18,
75,
-14,
-77,
-15,
85,
48,
79,
-26,
20,
76,
49,
-62,
-43,
-62,
-126,
-121,
28,
78,
-115,
11,
68,
-7,
64,
52,
-7,
64,
11,
117,
102,
-13,
42,
21,
-53,
43,
46,
77,
41,
-31,
112,
-98,
21,
95,
7,
17,
103,
-36,
3,
74,
10,
-104,
25,
1,
-23,
115,
-74,
-122,
-44,
75,
25,
40,
102,
98,
19,
41,
-17,
-88,
-104,
47,
-74,
29,
-90,
-14,
9,
75,
45,
-74,
-99,
125,
16,
71,
118,
-28,
-115,
25,
108,
7,
-81,
-42,
-95,
47,
96,
-97,
3,
-25,
-101,
4,
113,
-51,
-46,
92,
71,
57,
-101,
-113,
-5
] |
Wood, J.,
(after stating the facts). The appellee contends that the judgment was correct for two reasons: First, because the policy was a wagering contract and void; second, because the uncontradicted evidence showed that 'Stewart, the insured, violated the conditions of the contract. '
I. 'Conceding that appellant had no insurable interest in the life of Stewart, it does not follow that the policy was void as a wagering contract. In McRae v. Warmack, 98 Ark. 52, one Boswell had policies of insurance issued on his life under an agreement with one Warmack that Boswell should apply for insurance and that when the policies were issued he should immediately assign the same to Warmack, Warmack agreeing to pay the first and second premiums. The reason for the agreement was that Boswell was unable to pay the premium for insurance on his life, and in order to have Warmack pay the premiums, Boswell agreed to assign both policies to hioa when the' same were issued, upon the understanding that Warmack should receive the proceeds of one of the policies at the death of Boswell.
In the above case we held that the assignment was invalid because the policies of insurance issued upon such an agreement were void, being wagering contracts. In that case it appeared that Warmack was the uncle of Boswell, but was in no way dependent upon the latter, and Warmack had no insurable interest in the life of Boswell.
The appellee relies upon the above case to sustain its contention that the policy in suit is a wagering contract. But the facts of the Warmack case clearly distinguish it from the instant case. In the Warmack case the policies of insurance and the assignment of those policies were void because before any policies were issued it was agreed between Boswell and Warmack that when the policies were issued they .should be assigned to Warmack and that he should pay the premiums in consideration of the assignment to him of the policies. This assignment and the policies applied for and issued in pursuance of the agreement were invalid from their inception for the reason that Warmack had no insurable interest in the life of Boswell, and the execution of the contract between them was tantamount to Warmack having the policies of insurance issued upon 'the life of one in whom he had no insurable interest, which rendered such policies of insurance void as wagering contracts. But here Stewart, the insured, had the policy issued on his own life payable to the appellant, but without any knowledge upon her part, at the time the same was issued that she was made the beneficiary in the policy, and there was no contract or agreement between the appellant and Stewart, that he should have his ■ life insured for her benefit and that she should pay the premiums on the policy when it was first issued or thereafter.
So, under the facts of the present case, the questions are whether or not the policy w;as void in its inception as a wagering contract, and, if not, was it rendered invalid by reason of the fact that the appellant, as beneficiary, afterward paid the premiums on the same and continued to pay them until the death of the assured.
On the question of whether or not Stewart could insure his own life for the benefit of the appellant, naming her as the beneficiary in the policy, we quote from Mr. ■Cooley, as follows: “That one has an insurable interest in his own life is an elementary principle as to the existence of which the cases are unanimous. It follows, therefore, that one may take out a policy of insurance on his own life and make it payable to whom he will. It is not necessary that the person for whose benefit it is taken should have an insurable interest. ’ ’ And he cites Rawls v. American Mut. Life Ins. Co., 27 N. Y. 284, 84 Am. Dec. 280, where it is held that when the insurance is taken out by the person insured the question of insurable interest does not arise. Cooley’s Briefs on Law of Insurance, volume 1, pages 252-4, and numerous cases cited in note.
“If the person whose life is insured pays the premiums there can be no doubt” of the validity of the policy, “even if the beneficiary has no interest, since the interest of the insured supports the policy.” 1 May on Insurance, § 112, pp. 201-2, and cases cited in note.
The Supreme Court of Kentucky, in Hess’ Admr. v. Segenfelter, 127 Ky. 348-351, says: “All the courts of last resort, with possibly one exception, and the text •writers on insurance generally are agreed 'that a person may take out insurance upon his own life and designate whom he pleases as the beneficiary. This doctrine is based upon the sound and sensible theory that it is not reasonable to .suppose that a person will insure his own life, for the purpose of 'Speculation or be tempted to take his own life, in order to .secure the payment of money to another, or designate as the beneficiary a person interested in the destruction and not in the continuance of his own life; ’ ’ citing numerous authorities.
Our own court recognizes this doctrine in McRae v. Warmack, supra, where it is said: “The policies, it is true, were issued in 'the name of and to the .assured, who had an insurable interest in his own life.” See Matlock v. Bledsoe, 77 Ark. 60-64. See note to Currier v. Continental Life Ins. Co., 52 Am. Rep. 134-141, Where many cases are cited.
Now, as. the policy in suit was not taken out at the instigation of the appellant, .and there.was no understanding between her 'and Sewart, the assured, at the time it was issued, that it should be taken out for her benefit and that she should pay the premiums, the contract was valid in its inception. Under the policy of insurance the company was to pay “to the person designated therein” the amount of the policy in consideration of the premiums. There is no provision in the policy to the effect that if the premiums are paid by the beneficiary named in the policy that the same shall be void. The policy being valid in its inception was valid at the death of the assured, it being conceded that the premiums at that 'time had all been paid. The policy being valid in its inception, was not rendered void because the beneficiary thereafter paid the premiums. The insured having the right to enter into this contract with the insurance com pany, in the first place, for the benefit of the appellant, certainly the policy would not be rendered invalid because she complied with the provisions which required that the premiums should be paid in order to keep the contract in force.
The beneficiary being without fraud in procuring the issuance of the • policy, and the contract being valid, no ground of public policy would prevent her keeping the contract alive for her own benefit. The principle announced in Matlock v. Bledsoe, supra, is applicable to this phase of the contract. There Judge Riddick, speaking for the court, said: “Every person has an insurable interest in his own life, and, as Henry had the right to take out a policy on his own life, payable to his administrator or assigns, it is not disputed that this policy was valid. The policy being valid- and belonging to Henry, he had, on the approach of death, the same right to give and transfer this property to any one in whose welfare he felt an interest as he had to dispose of any other property that he owned.” Page v. Metropolitan Life Ins. Co., 98 Ark. 340.
In the recent case of Prudential Ins. Co. v. Williams, 113 Ark. 373, 168 S. W. 1114, we said:
“Out of the conflict of authority on the question of wagering contracts of insurance, this court has taken the position in former decisions that a contract of insurance taken out in the name of one who has no insurable interest in the life of the person insured is a wagering contract, and void.”
The above language was used with reference to McRae v. Warmack, where Judge Frauenthal, speaking for the court, said:
“It is therefore we'll settled that the issue of a policy to one who has no insurable interest in the life of the insured, but who pays the premiums for the chance of collecting the policy, is invalid, because it is a wagering contract and against a sound public policy. ’ ’
The above and other language used in McRae v. Warmack was based upon the facts of that case. This court, by the broad language used in Prudential Ins. Co. v. Williams, supra, did not mean to bold that all policies of insurance issued in the name of one as beneficiary, who bad no insurable interest in the life of the person insured were void as wagering contracts regardless of whether the policies were so issued in pursuance of an agreement between the insured and beneficiary, that the latter should pay the premiums and receive the proceeds of the insurance. An agreement between the insured and the beneficiary, having no insurable interest, to the effect that the latter shall pay the premiums, and that the policy shall be taken out in his name, or, if taken, payable to the estate of the assured, that it shall be assigned to the person having no insurable interest, renders policies taken out in pursuance of such agreements void as wagering contracts. This is held in and shown by the numerous authorities cited in McRae v. Warmack, supra. But this court has not held (and in none .of the above cases did the facts call for such holding) that policies are void where one insures Ms own life for the benefit of a third party, who has no insurable interest in the life of the assured, and has such party named as the beneficiary in the policy, there being no understanding between the assured and the third party that this should be done, and that the latter should pay the premiums and get the benefits. Such a doctrine, aa we have shown, would be contrary to reason and the great weight of authority.
We have held in recent decisions that a “person may procure insurance on his own life and assign it to one who has no insurable interest in the 'life of the insured if this is not done as a cover for a wager policy.” Prudential Ins. Co. v. Williams, supra; Page v. Metropolitan Life Ins. Co., 98 Ark. 340; and see Matlock v. Bledsoe, 77 Ark. 60.
Since the contract was valid in its inception, it follows logically, if not necessarily, from the above decisions, that the contract was not afterward rendered invalid, because the beneficiary, after the insured ceased to pay the premiums, continued to pay the same until the assured’s death.
Under the above decisions, if the insured, under the facts of this case, had immediately assigned the policy to the appelant, the assignment would have been valid, and would have transferred to her the beneficial interest in the policy. If the insured had the right to assign appellant the policy after it was issued, then he had the same right to give her the policy in the first instance by naming her as the beneficiary therein. ‘ ‘ There is no more danger of evil resulting from allowing one to name a stranger as beneficiary in a policy than from allowing one to devise property to a stranger.” Lamont v. Grand Lodge Iowa Legion of Honor, 31 Fed. 177. Where the insurance is taken in good faith and is not intended as an evasion >of the rule against wager policies, in the absence of some provision in the policy or statute to the contrary, the policy is not thereafter invalidated because the beneficiary named therein keeps the policy in force by payment of t'he premiums. See 1 Cooley’s Briefs, 258, and cases.
While there is great conflict among the authorities, the weight of authority in this country seems to be in favor of the rule “that if a policy of life insurance is issued to a person having an insurable interest, an assignment thereof to one having no such interest is nevertheless valid.” Mutual Life Ins. Co. v. Allen, 138 Mass. 24, 52 Am. Rep. 245; Cooley’s Briefs on the Law of Ins., vol. 1, pp; 262-264.
While there is no assignment of the policy under consideration, the appellant’s position as the beneficiary is certainly as favorable as it would have been had the assured taken out the policy in his own name for the benefit of his estate and then afterward assigned the same to the appellant.- In the absence of wagering contract, or fraud, as we have seen, the assured could have done this.
II. Under the express provisions of the policy, all statements- made in the application were, in the absence of- fraud, to be deemed as representations and not warranties. As to whether or not the assured perpetrated ia fraud, upon the insurance company in his statements in the application was a question for the jury under the evidence.
It follows that the court erred in directing a verdict in appellee’s favor, and in refusing’ to grant appellant’s prayers for instructions set out. The judgment is therefore reversed and the cause remanded for a new trial. | [
48,
124,
-40,
-83,
88,
96,
40,
26,
127,
-117,
39,
-37,
-35,
-29,
52,
103,
-9,
105,
97,
34,
25,
-29,
6,
2,
-42,
-109,
-47,
-59,
-79,
77,
-1,
94,
76,
40,
74,
-43,
-26,
75,
-59,
-48,
-114,
-52,
-72,
-27,
-39,
80,
48,
93,
80,
71,
81,
-97,
-61,
34,
21,
-57,
40,
44,
89,
57,
-47,
-16,
-114,
-123,
109,
4,
-79,
39,
-68,
43,
88,
44,
-108,
17,
8,
-24,
123,
54,
-62,
116,
47,
-103,
9,
102,
99,
32,
32,
-19,
-68,
-104,
47,
94,
31,
-90,
-106,
121,
43,
75,
-89,
-99,
118,
28,
-121,
110,
-16,
20,
29,
36,
17,
-113,
-44,
-77,
-51,
-4,
-72,
11,
-26,
67,
22,
64,
-49,
-88,
76,
69,
60,
83,
30,
-70
] |
Kirby, J.
Appellant brings this appeal from a conviction of the crime of bigamy, under the following indictment (formal parts omitted):
‘ ‘ The grand jury, in the name and by the authority of the State of Arkansas, accuse G-reen Tanner of the crime of bigamy, committed as follows, towit:
“The said G-reen Tanner, in. Montgomery 'County and State aforesaid, on the 23d day of December, A. D. 1906, did marry one Eula Hamilton, and her, the said Eula Hamilton, then and there have for a wife, and the said G-reen Tanner afterward, and while so married to the 'Said Eula Hamilton, as aforesaid, towit: on the 12th day of August, 1911, in the County of Pike and State of Arkansas, feloniously and unlawfully did marry and take as his wife one Katie Watterson, and to her, the said' Katie Watterson, was then and there married, his former wife being then alive, against the peace and dignity of the State of Arkansas.”
It appears from the testimony -that appellant was married to Katie Watterson on August 11, 1911, at the home of her father in Pi'ke County, who testified that the ceremony was performed by F. B. Taylor, a minister, •who went about the country preaching, but witness had not seen his credentials and did not know whether he was an ordained minister and authorized to solemnize marriages.
Rev. Mr. Taylor testified that he married Green Tanner and Katie Watterson at her father’s house and identified the marriage license and certificate, which was objected to because the certificate was not signed. The court admitted it upon this testimony that it was the marriage license presented to him, that he .solemnized the marriage by authority thereof and then filled out the certificate, which was in his handwriting. He testified further, that he was a regularly ordained minister of the gospel, and had been for thirty years, authorized to perform marriage ceremonies, that his credentials were of record in Texas, Oklahoma, and in Pibe County, Arkansas.
The marriage license between appellant and Eula Hamilton in Montgomery County was introduced in evidence and J. T. Crump testified that he was a justice of the peace of Montgomery County in the year 1906, and married Green Tanner to Enla Hamilton in that county on the 23d or 24th of December, that year. He identified appellant .as the man he married to Eula Hamilton and stated that she was still living in Black Springs in Montgomery County.
Appellant moved to exclude this testimony because there was no certificate or commission in evidence, showing that said Crump was a justice of the peace. He testified himself that he was, and the father of Eula Hamilton also testified that appellant was married to her at Ms home in Montgomery County by Jim Crump, who was a justice of the peace and that they lived together as man and wife after the marriage. That he knew Crump was a justice of the peace because he ran for the office; witness voted for him, he was declared elected 'and he had had some lawsuits before Mm, after his election as justice of the peace. It was also stated that Eula Hamilton had married a Mr. Hendricks in March, 1912.
Appellant did not testify, nor has he favored us with a brief in this cause.
The testimony of the minister who married appellant to Ms second wife, stating that he had 'performed the ceremony, was competent whether he had signed the certificate of marriage or not. He stated that he was a regularly ordained minister of the gospel and Ms credentials were recorded in Texas, Oklahoma and Pike County, this State; that he reoogMzed the license upon wMch he had made out the certificate and the certificate as the one filled out by him. TMs with Ms statement that he had performed the ceremony was sufficient to show the marriage, which could be proved without the exMbition of the license and the certificate of the person performing the ceremony attached.
Neither 'did the court err in permitting the justice of the peace who solemnized the first marriage to prove Ms official capacity by Ms statement.of it instead of by the production of the commission issued by the Governor. It is not disputed that appellant married Katie Watterson, wMle Ms first wife from whom he was not shown to have been divorced was living, and there is no testimony in the record indicating even that a divorce had ever been procured from this marriage, unless it be the statement that the first wife had married Mr. Hendricks in 1912.
Since for aught the testimony shows to the contrary, her .said marriage may have been after divorce procured since the bigamous marriage of appellant to Katie Watterson, but if her marriage to Hendricks was invalid because no divorce had been granted from appellant, that fact would not relieve him from the penalty of the law in any event.
We find no prejudicial error in the record and the judgment is affirmed. | [
16,
108,
-87,
61,
56,
-64,
-82,
58,
82,
-93,
-9,
83,
-17,
-34,
4,
105,
112,
77,
-43,
122,
-108,
-73,
62,
-32,
-110,
-77,
89,
87,
49,
88,
-92,
-11,
72,
48,
-22,
-47,
70,
74,
-25,
92,
-122,
0,
105,
-16,
88,
64,
52,
99,
115,
15,
113,
-74,
-13,
42,
60,
67,
73,
126,
-49,
58,
80,
48,
-86,
85,
-72,
87,
-80,
36,
-53,
1,
120,
62,
-104,
17,
0,
-24,
115,
-122,
2,
-12,
73,
57,
13,
102,
98,
32,
-68,
-83,
-116,
-119,
31,
62,
29,
-89,
-14,
64,
65,
41,
-65,
29,
119,
80,
42,
-12,
121,
-49,
49,
104,
-94,
-81,
-108,
-111,
-91,
32,
-100,
18,
-29,
-83,
16,
113,
-59,
-26,
93,
6,
50,
-101,
-98,
-15
] |
Smith, J.,
(after ¡stating the facts). There was no defect of parties; and the provisions of sections 7174 and 7175 of Kirby’s Digest authorized this proceeding. By section 7174 it is provided that “Whenever any error shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement, to reconsider and ¡adjust the ¡same.” Section 7175 provides for giving notice.
-It is insisted that this statute does not apply because the error made was one of law, and not one of fact, and that any taxpayer of the district might have made himself ¡a party to this settlement and had the right to have it corrected upon ¡appeal to the circuit court. Belief, no'doubt, might have been had in this manner; but the section quoted does not limit the right of the court to correct errors ¡of fact only. The language of the statute is “Whenever any error shall be discovered,” and this language must necessarily include errors of law ¡as well as those of fact.
The final -and important question in the case is whether any error was committed in the approval of this settlement. It appears "that the ¡drainage districts in question are the same districts against which a commission was claimed by the treasurer of Greene County, which claim was passed upon by this court in the case of Honey v. Greene County, 102 Ark. 106. It was there held that the county treasurer was not ¡entitled to such commissions, for the reason that the drainage district fund was not a county fund, but a fund belonging to the drainage district. That each district levies and disburses its own funds, and that as no provision had been made for the payment of commissions, none ¡could be charged. It was there said that “To authorize a county court to allow ■a claim of fees for services rendered by an officer, there must be specific statutory authority to ¡the officer to make a charge for the services,” a question which had been so decided in several previous decisions of this court.
No provision is contained in the general drainage statute, under which these districts were established, for the payment of any commission to the collector, and the same rule would necessarily apply to him which applies to the treasurer, and there was, therefore, no authority in law for the allowance of these commissions. Fuller v. State ex rel. Drainage Dist., 164 S. W. 770; Helena Special School Dist. v. Kitchens, 108 Ark. 137.
The judgment of the circuit court is, therefore, affirmed. | [
-76,
110,
-35,
108,
26,
64,
58,
-114,
83,
-87,
-25,
83,
-17,
2,
16,
51,
-29,
59,
116,
105,
69,
-78,
19,
98,
-14,
-77,
-37,
87,
-79,
-51,
-4,
-42,
76,
-72,
-54,
-43,
103,
-54,
-59,
-38,
-26,
-121,
-120,
101,
-7,
66,
48,
108,
6,
79,
85,
-84,
-30,
62,
17,
67,
105,
44,
-23,
-85,
64,
-13,
-98,
5,
127,
5,
49,
-25,
-48,
67,
120,
42,
-112,
57,
41,
-8,
115,
-90,
22,
117,
45,
59,
13,
96,
98,
0,
37,
-49,
-72,
-72,
6,
-33,
13,
-90,
-106,
73,
75,
9,
-66,
-99,
124,
16,
-121,
-12,
-31,
5,
91,
108,
-125,
-114,
-48,
-73,
-51,
100,
-104,
7,
-17,
-121,
48,
113,
-49,
-26,
93,
-58,
50,
91,
78,
-52
] |
Smith, J.,
(.after stating the facts). The state of the evidence in this case leads to the conclusion that the beneficiaries under this will were correct in the original interpretation which they gave it in entering into the possession of their respective portions. But while we may feel sure of the testator’:s intention, we must gather that intention from the will itself. This idea has been expressed in a variety of ways by all the courts. But extrinsic evidence is generally held admissible in the interpretation of wills, not to show what the testator meant, as distinguished from what his words express, but for the purpose of showing the meaning of the words used. Hammond v. Hammond, 55 Md. 575.
A leading case on the subject of the construction of a will containing unenforceable provisions resulting from a mistake in the description of property devised is the case of Patch v. White. 117 U. S. 210. This is a case which has been much criticised by other courts as announcing an extreme rule, and was decided by a court ■which stood five for the opinion, and four against it, but it is a well considered case, .and announces the rule which the majority of this court thinks is most conducive to effectuating the right of making testamentary disposition of property. The syllabus in that case is as follows:
“1. In the construction of 'wills, a, latent ambiguity may be removed by extrinsic evidence.
“2. A latent ambiguity may arise upon a will, when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that answer such name or description; or it may arise when the will contains a misdescription of the object or subject.
“3. Where a latent ambiguity consists of a misdescription, if it can be struck out and enough remain in the will to identify the person or thing, the court wilt so deal with it; or if it is an obvious mistake, will read it as if corrected.
“4. Where the testator devised ‘lot 6’ in a certain block, to a 'brother, and disposed of the remainder of his estate to others, and it .appeared that he 'did not own lot 6, but did own lot 3 in said block, and that lot 3 was otherwise properly described in the will, said lot 3 is held by this court to have been lawfully devised.”
In volume 11, page 90, of Bose’s Notes to the U. S. Supreme 'Court Reports will be found a collection of a number of cases citing, and generally approving, the view of th© majority in that case.
Another case decided by the same court is the case of Smith v. Bell, 31 U. S. 68. In that ease the testator had devised certain property to his wife and son, and the devise to his .wife was so worded that if its language was given its ordinary interpretation, ¡the son could take nothing under the will. In the opinion in that case, by Chief Justice Marshall, it was said:
The first .and great rule in the exposition of wills (to whioh all other rules must bend), is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the .rules of law. (Doug. 322; 1 Black. Rep. 672). This principle is generally asserted in the construction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be ‘the legal .declaration of a man’s intentions, which he wills to be performed .after his death. ’ (2 Black Com. 499). These intentions are to be collected from his words, and ought to be carried into effect if they be consistent with law. * * *
In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his lega tees, the affection, subsisting between them, the motives Avhich may reasonably be supposed to operate with him and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words and ascertaining the meaning in which the testator used them. * * * No rule is better settled than that the whole will is to be taken together, and is to be so -construed as to give effect, if it be possible, to the whole.”
After referring to the inconsistent provisions of the will, and after pointing out what the effect would be if the language which devised to the wife her interest was given the construction which such language would ordinarily have, but which wais not there given it, because, to have done so would have defeated the purpose of the testator ;as manifested by the -entire instrument, the court said:
“As this construction destroys totally the legacy, obviously intended for the son by his father, it will not be made unless it be indispensable. No effort to explain the words in a different sense -can do so -much violence to the claus-e as the total rejection of the whol-e bequest, given in express terms to an -only son. ’ ’
We must look to the will to determine the testator’s intention, but in getting this view we should place -ourselves where he stood, 'and should consider the facts which were before him in -deciding what he intended by the language which he -employed. If the rule were otherwise, the making of wills would be s-o difficult that the very purpose of permitting this method’of disposition of property would frequently be defeated. The will now under consideration is wholly in the handwriting of a former Governor of this State, a man who was not a lawyer, but who had had much experience in public affairs generally, and a man whose place in the confidence and affection -of the people of this- State is firmly fixed. The will -declares the purpose of its execution to be to divide -the testator’s property, which he owned -as the result of his own accumulations, -equally between his own heirs and those of his wife, and he has described lands which lie evidently thought accomplished that result. Did he so far fail to express Ms intention in Ms will, as that, in its construction, we must defeat its manifest purpose because of Ms inaccurate employment of language to accomplish that purpose?
It is said that the devise of “the southwest part of section 31, 150 acres, in township- 1, range 8 west,” is not effective because the description is void. This section is crossed by Baker Bayou, and -from the survey of it wMoh we have before us, it appears that all of Governor Eagle’s lands in the south half of the section lay west of this bayou, there being about twenty acres in the southeast quarter west of the bayou, and about 130 acres in the southwest quarter west of the bayou. TMs description -and tMs acreage correspond with the description and acreage which appear- in the receipts for taxes paid by the testator, although a survey made since the death of the testator shows the exact area to be 153 acres, instead of 150. The testator .owned the north half of this section and included it in the part given the Oldhams by a. proper description, and the only other land owned by Mm in this section was tMs southwest part consisting of 150 or 153 acres. Such a description would avoid a tax sale, because there we look only to the record of the sale, but here we may look to the testator’s land book and tax receipts, and his deeds and plats to determine what he meant by the description he employed, .and, when we have done ,so, all uncertainty passes away.
The trouble with the hundred acre tract is that it is described as being in range 8 west, when the land owned by the testator answering to the description used is in range 9 west. As has been said, the testator divided his lands into practically three parts, one of Which went to Ms sister, Mrs. Mewer, another to the other Eagle heirs, and the third part to the Oldhams. The Oldhams were given lands in section 31, township 1 north, range 8 west, and in section 6, township 1 south, range 8 west, which lands are divided by the base line, and the range line divides this section 6 from section 1, township 1 south, range 9 west. Baker Bayou runs through all three of these sections, which constitute a solid body of land, and if range 8 was intended, instead of range 9, then the 100 acres described as being in section T joins the land in section 6, about which section numbered 6 no question is made, as the Oldham title to the land in section 6 under the will is undisputed. These are matters which are plain to one familiar with land descriptions and the public surveys, but are confusing to others.
The remaining tract in eontro’versy was described in the will as northeast northwest of section 5, township 1 south, range 8 west, which tract was not owned by the testator at the time the will was made nor at the time of his death. He did own, however, southeast northwest section 5, township 1 south, range 8 west, and if this was not the forty acres intended, then he- has left that forty acres entirely isolated from all the other lands. Southeast northwest of section 5, if assigned to the Oldhams, makes a part of a compact body of land, while lands, which, without dispute, were given the Oldhams, lie 'between this' forty acres and the lot of lands given Mrs. Mewer, and this forty-acre tract lies a mile and a half from the nearest tract constituting the body of lands given the other Eagle heirs.
A very well considered case' which discusses the questions here under consideration, is the case of Graves v. Rose, 246 Ill. 76, 92 N. E. 601, 30 L. R. A. (N. S.) 303. A great many cases are cited ¡and reviewed in that opinion. It is true the majority opinion in that case does not fully comport with the views which we have here expressed, but there was a strong dissenting opinion, in which three members of that court concurred, which expresses the better view, acicording to the opinion of the majority of this court, and the reasoning of this dissenting opinion supports the conclusion we have reached.
Another very interesting and well considered opinion is the case of Stewart v. Stewart, 65 N. W. 976, in which case the majority opinion gives support to the view of the majority in this case, and decides a point identical with the point in this case involving the misdescription of the southeast quarter of the northwest quarter of section 5.
For the reasons stated, the majority of the court are of the opinion that the chancellor was correct in finding for appellee and in quieting his title against the claims of appellant.
Affirmed.
McCulloch, C. J., and Kirby, J., dissent in part. | [
-93,
124,
-44,
125,
10,
96,
-86,
-102,
-15,
-88,
39,
83,
77,
-46,
20,
47,
-11,
-49,
81,
66,
-45,
-93,
39,
19,
-10,
-105,
-6,
-44,
-75,
-19,
-25,
92,
76,
36,
-62,
-35,
102,
-117,
-3,
82,
-50,
29,
-88,
99,
-45,
80,
52,
39,
92,
69,
65,
-100,
-73,
42,
57,
71,
-88,
42,
75,
56,
104,
-72,
-97,
-115,
123,
6,
-79,
6,
-68,
99,
90,
10,
-124,
49,
-127,
-24,
123,
-74,
-110,
116,
77,
75,
40,
98,
-30,
1,
105,
-19,
-8,
-104,
30,
-25,
45,
-90,
22,
89,
41,
109,
-73,
-39,
117,
16,
38,
122,
-26,
85,
29,
108,
11,
-113,
86,
-125,
-119,
60,
-104,
11,
-10,
-5,
33,
112,
-49,
10,
92,
99,
88,
-101,
-122,
-73
] |
Holt, J.
Appellant, Marvin Clements, was charged in an information in the western district of Lawrence county, with the murder of Carson Higginbotham, and upon a trial was convicted of murder in the second degree and his punishment fixed at five years in the state penitentiary.
He appeals to this court and assigns twelve different grounds upon which he relies for a reversal.
We consider them in the order presented.
It is first 'contended that the trial court erred in admitting in evidence the purported written dying declaration or statement of deceased, on the ground that no proper foundátion for its introduction had first been laid.
A dying declaration constitutes an exception to the rule rejecting hearsay evidence. To warrant its admission, it must be shown that the statement or declaration was made by the deceased under the belief or apprehension of impending death. The theory of the law being that one who realizes or believes that he is about to step into- eternity will speak the truth. Deceased’s realization of impending' death, at the time, of making the, statement, may be gathered from the statement itself and any other facts and circumstances surrounding him at the time, nor is it essential that deceased should apprehend immediate dissolution. The dying statement objected to is as follows:
“Statement of Carson Higginbotham relative to the shooting at Ravenden, Arkansas, March 19, 1939, at Ravenden, Arkansas.
“I, Carson Higginbotham, do make this my last dying statement, and declaration. I realize that I am on the verge of death, and I want the facts and truth known.
“I came to Ravenden-about 5:30 p. m., Monday afternoon. I stopped in front of my funeral home and I saw Marvin Clements sitting in front of my store. I got out of my car and spoke to Clements and said, ‘What do you say, Marvin.’ He got up and said, ‘I’m going to kill you.’ I said, ‘Please don’t do that.’ He pulled his gun and commenced to shoot at me. I ran around the car and tried to get away from him. I was unarmed, and had no gun or pistol about me. I did not put my hand in my hip pocket or any other pocket to draw a gun. I asked him to not shoot me, and he kept crowding on me and said again, ‘I’m going to kill you.’ The first shot struck my hand, and about the fourth shot hit me in the back. I fell as I was trying to get around the car and he kept firing while I was begging him. not to kill me. Had it not been for John Hanni he would have killed me there on the scene.
“I had nothing to do with his being discharged by the postal department. I did not make a statement or affidavit to anyone insisting on his dismissal. I did make an affidavit two or four years ago in an attempt to help him hold his position. I have loaned him money on numerous occasions for the purpose of securing counsel to represent him in holding his job.
“I have here given the true facts. Carson Higginbotham. Witnesses: Don Penn, Agnes Barre, R. N, Piled this 28 day of March, 1939, W. H. Davis, J. P.”
The record reflects that at the time this statement was executed by the deceased he was in a hospital in a serious condition from bullet wounds, inflicted by appellant, and that he died within forty-eight hours of the statement.
The nurse who attended him constantly, testified that she was present when the dying declaration was executed by the deceased and that he asked his brother who wrote it out for him to let him read it over before he-signed it and signed it in her presence. She further testified that in her opinion he was in a serious condition at the time and realized it, and further: “Well, he said that he was pretty sick, and says: ‘I am going to have a hard time if I make it.’ . . . He was in a very serious condition at the time he made the statement. . . . The statement was made on Thursday afternoon, and he died at 12:24 on Sunday morning.”
'Before this dying declaration could be offered a preliminary question is presented to the trial court for His determination as to whether it is admissible at all. Tf he concludes that it is admissible, it then goes to the jury for whatever weight the jury may give it.
The rule is well stated in Freels v. State, 130 Ark. 189, 196 S. W. 913: “Whether declarations are made under a sense of impending death so as to render them admissible as dying declarations is a preliminary question for the trial court, and its finding will not be disturbed if there is evidence to support it. Fogg v. State, 81 Ark. 417, 99 S. W. 537; Jones v. State, 88 Ark. 579, 115 S. W. 166; Robinson v. State, 99 Ark. 208, 137 S. W. 831. In determining the question the court should consider all the facts and circumstances surrounding the declarant at the time the declarations were made, such as the character of the wound, the declaration of the deceased himself that he could not live, and the fact that he died shortly afterwards. Robinson v. State, supra; Cantrell v. State, 117 Ark. 233, 174 S. W. 521. The question as to the admissibility of such declarations is for the court to determine; the weight and credit to be given them is for the jury. Rhea v. State, 104 Ark. 162, 147 S. W. 463.”
In the late case of Goynes v. State, 184 Ark. 303, 42 S. W. 2d 406, this court said: “It is the province of the court to determine whether a dying declaration was made under circumstances that it would justify the court in admitting it, and the weig’ht to be given to the statement is to be determined by the jury. Sanderlin v. State, 176 Ark. 217, 2 S. W. 2d 11; Adcock v. State, 179 Ark. 1055, 20 S. W. 2d 120.”
In Evans v. State, 58 Ark. 47, 22 S. W. 1026, this court held (quoting headnote): “A statement by one who has been shot respecting the circumstances under which the wound was inflicted is admissible as a dying declaration, in a prosecution for the killing of such person, if made at a time when he did not expect to survive the injury, although this was five or six days before his death and at a time when he did not apprehend immediate dissolution.”
The record further reflects that the statement in question was dictated by deceased to his 'brother, who typed it an'd was then signed and executed by deceased and contained the statement: “I realize that I am on the verge of death, and' I want the facts and truth known. ’ ’
We think the statement itself and the testimony of the nurse clearly make it admissible in evidence and that no error was committed by the court in allowing it to go to the jury.
Appellant next contends the court erred in refusing to permit him to impeach the purported dying declaration of deceased.
The first instance in the testimony to which appellant complains is in the examination of one J. H. White hy whom he sought to prove a certain conversation with deceased in which he claimed deceased had made a statement concerning appellant. This testimony is as follows: “Q. Do you know anything about any threats that were made by Carson Higginbotham against the life of Marvin Clements, if you do, tell the jury? A. I do not. Q. You don’t know of any made by Carson? A. That is what I understood you to say. Q. Did you ever talk to Carson Higginbotham any about Marvin? A. Yes, sir. Q. Tell what he said with reference to Marvin, about his job. A. It wasn’t about his job (interrupted).”
Upon objection to this testimony by the state, the court ruled: “Unless you can show threats against the life of Clements by Higginbotham, it would not be competent. The objection is sustained.”
The next testimony about which appellant complains because the trial court sustained the state’s objection to its admission is that of Chili Childers and is as follows:
“Q. Did you ever hear Carson Higginbotham make any threats against Marvin Clements? A. No, I didn’t. Q. Did you ever know of him threatening to get his job?”
The next is the testimony of Dr. C. C. Ball, which is as follows: “A. Yes, there was a bad feeling between them. Q. How long had that feeling existed, if you know ? A. It had existed since the school election in 1937. And they had aggravated Mr. Clements badly. Q. Aggravated him how? A. Well, trying to get his job and fooling with him. Objection by the state because he said ‘they.’ Q. You know the feeling between him and Carson Higginbotham was bad? A. It was a bad feeling. Q. And had been since that school election? A. Yes, sir, it sure had. Mr. Richardson: Can he say how he knew it, Judge? The Court: No. The Witness: I could tell you how I knew it. Mr. Richardson: Well, the court says you can’t tell it.”
We think the mere reading of the above testimony shows that it did not tend to contradict or impeach the dyixxg declaration in question axid that no error was committed by the trial court in ruling it incompetexxt.
Appellant further coxxtends that the court erred iix refusing- to allow him to introduce certain affidavits filed in Washixxgton by various parties who sought to cause appellant to lose his job, and a certain letter of deceased’s brother which accompanied the affidavits. Appellant sought the introduction of these affidavits for the purpose of contradicting that part of the dying declaration which declared that he, deceased, had nothing to do with tryixig to cause appellant to lose his job.
Upon objection by the state to the introductioxx of these affidavits, and its insistence that oxily affidavits be received ixx evideixce of those persons makixxg them who had testified ixx the case, as affecting their credibility, the trial court sustained the state’s objection, and ruled that he would permit the introduction of any affidavits made by witnesses who had testified in the case for the purpose of testixxg their interest and-credibility.
The record reflects that photostatic copies of the affidavits of two witxxesses, who testified ixx the case, were permitted to be introduced by appellant. After a careful examination of these affidavits, we think xio error was committed by the trial court ixx its rulings in this connectioxx.
None of the affidavits was made by deceased thoug;h he notarized all of them except one. The fact that he notarized them, however, would certainly be xxo contradiction of the dyixxg declaration ixx questioxx or that part of it wherein he stated that he had nothing to do with attempting to cause appellant to lose his job. Certainly these affidavits made by persons who were not present in court and available for cr'oss-exámixxation by the state, and who did xxot testify in the case, were properly rejected as incompetexxt testimony.
It is also our view that the court properly limited the introductioxx of affidavits to those two witxxesses who were actually presexxt and subject to cross-examination and properly limited the effect of such affidavits as show ing the bias or interest of such witnesses in testing their credibility.
It is next contended by appellant that the trial court erred in holding that threats made by third parties against appellant were incompetent.
The record reflects that the court instructed the jury that threats might be considered in determining who was the probable aggressor at the time of the fatal encounter, giving the rule concerning communicated and uncommunicated threats, limiting such threats to those made by deceased about appellant or those made by appellant against deceased.
The court permitted appellant to introduce testimony to the effect that deceased had made threats against the life of appellant and that this was communicated to appellant, but refused to permit appellant to introduce testimony as to threats made against appellant by third parties in the presence of deceased. We think no error was committed in this ruling of the court.
In Jackson v. State, 103 Ark. 21, 145 S. W. 559, this court said: “Of course, threats made by McIntosh could not have had any bearing upon the question as to whether Powell was the aggressor, and, therefore, they were not competent in any view of the case.”
We do not think that threats made by third parties against appellant could have any possible bearing upon the question as to who was the probable aggressor in this case.
Complaint is also made by appellant about the refusal of the trial court to permit witness, J. R. Marriott, to testify that a third person borrowed a gun with which to kill deceased. The record reflects that no exception was made or preserved by appellant to the court’s action in sustaining the state’s objection to the introduction of this testimony. The same is true with reference to the testimony of appellant himself about the same thing, therefore, we find no error here.
Complaint is also made because the trial court refused to allow Dr. C. C. Ball" to go more into detail after testifying that “they had aggravated appellant badly trying to get his job, and fooling with him.” In the conduct of a trial the court is accorded wide latitude and discretion and unless abuse is clearly shown in the exercise thereof, we do not interfere with the action of the trial court unless some mandatory provision of the law has been violated. Spear v. State, 184 Ark. 1047, 44 S. W. 2d 663.
Appellant next complains of the. manner in which the trial court conducted the trial and especially about three different events, or incidents, occurring during the trial, which he alleges were prejudicial to him.
Briefly, these incidents complained of are: First, one of appellant’s attorneys objected to one of the state’s attorneys prompting a certain witness, and again in telling him what to say and with shaking his head at the witness and causing him to answer, no. The court’s ruling was, “Well, he wasn’t telling Mm what to say, he was just trying to keep him from telling a conversation. ’ ’ The third instance was the refusal of the court to allow appellant to show that he had been visited in jail after the killing by the brother of the deceased and that deceased’s brother had made certain statements to him. We cannot see how any possible prejudice to appellant could result from the court’s ruling in this connection for whatever statement deceased’s brother might have made at the time could throw no light on the killing of deceased which had occurred before the alleged statement was made.
We do not think the court erred in any of the above rulings. Certainly the matters about which appellant complains were trivial and could not have influenced the jury in arriving at a verdict.
As this court said in Penton v. State, 194 Ark. 503, 109 S. W. 2d 131: “The tendency of present-day decisions is to regard as immaterial those matters which cannot conceivably militate to the prejudice of a defendant, where such construction does not, in the circumstances of the case, run counter to the law, nor conflict with rulés of reason. ’ ’
Appellant next complains because the trial court refused to permit Mm to cross-examine one Frank Stratton more at length. Witness had been asked by appel lant whether or not lie had gathered np the witnesses for the state and prompted them as to what to say. In answer, witness stated: “I have talked to others, yes, but as to prompting them or forming a line of evidence, I didn’t do it.” Witness denied that he had attempted to find out from each witness what he was going to say, but admitted talking to them. The court sustained objection to further cross-examination on the theory that “this witness stated he had not taken any part in it.” We think clearly that no prejudice is shown here by the ruling of the court and that no abuse of discretion is shown.
It is next contended by appellant that the trial court erred in overruling his supplemental motion for a new trial. The record reflects that this supplemental motion was based upon appellant’s statement that he was surprised at the testimony of one Marriott, a witness for the state. It appears that this witness testified without objection as to threats made by appellant against deceased.
In this motion for a new trial, appellant alleged that he was surprised at this testimony on the ground that after the trial two reputable citizens informed him that Marriott had stated after the trial that he had not heard appellant make any threats and knew nothing about the real facts.
• The record shows that other witnesses testified that appellant had threatened to kill deceased prior to the killing. The effect of the alleged newly discovered evidence set out in the motion would be merely to contradict Marriott, and, we think, the court properly overruled this supplemental motion for a new trial and that no abuse of the court’s discretion is shown.
The rule relative to motions for a new trial on the ground of newly discovered evidence has been stated in Hix v. State, 189 Ark. 688, 691, 74 S. W. 2d 966, as follows: “The testimony set out in this motion is either cumulative of other testimony heard at the trial (Dillard v. State, 174 Ark. 1179, 298 S. W. 27) or tending to impeach such testimony (Hayes v. State, 169 Ark. 883, 277 S. W. 36).”
. And again in Bourne v. State, 192 Ark. 416, 91 S. W. 2d 1029, this court said: “A supplemental motion for a new trial, on the ground of newly-discovered evidence, was filed and overruled. Such a motion addresses itself to the sound legal discretion of the trial court, and this court will not reverse except where an abuse of such discretion is shown or an apparent injustice has been done. Ward v. State, 85 Ark. 179, 107 S. W. 677; Young v. State, 99 Ark. 407, 188 S. W. 475; Cole v. State, 156 Ark. 9, 245 S. W. 303. No abuse of discretion is shown.” Hulen v. State, 196 Ark. 22, 115 S. W. 2d 860.
It is next insisted that the trial court erred in permitting Asa Ezell, appellant’s witness, to testify while he was being cross-examined by the state, as to what deceased said about his purpose in borrowing witness’ pistol.
The record reflects that on direct examination witness had stated that deceased had borrowed his pistol a week before the killing and same was returned to him after the killing. The only inference, it seems to us, to be drawn from these circumstances was that deceased had borrowed the pistol to carry out his threat to kill appellant. We think the court properly permitted the state to elicit from the witness the explanation which had been given to him by deceased as to why he desired the pistol, and certainly it was proper cross-examination.
In Tiner v. State, 109 Ark. 138, 158 S. W. 1087, the court said: “It is well settled that cross-examination should be permitted as to all matters developed on direct examination, and it may be extended into all circumstances surrounding or affecting the transaction which the witness has detailed in his direct examination.”
Appellant also contends that the evidence was not sufficient to sustain the conviction. We cannot agree. We are of the view, after a careful examination of this entire record, that there is an abundance of testimony of a substantial nature to warrant the jury’s finding, and where there is substantial testimony present, the jury’s finding is conclusive heye.
In West v. State, 196 Ark. 763, 120 S. W. 2d 26, this court said: “. . . it is also a well settled rule that the evidence at the trial will, on appeal, he viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained. Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; Walls & Mitchell v. State, 194 Ark. 578, 109 S. W. 2d 143; Humphries v. Kendall, 195 Ark. 45, 111 S. W. 2d 492.”
It would unduly extend this opinion to set out, in detail, the evidence relied upon by the state. However, when summed up and considered in its most favorable light to the state, we think it shows that appellant shot deceased down as he was running aw,ay from him, and after he had been hit fatally, walked up to the deceased and fired two shots into his body while he was lying on the ground. While this testimony was contradicted, the jury elected to take the state’s view. Burnett v. State, 197 Ark. 1024, 126 S. W. 2d 277.
Complaint is made by appellant on the giving, and refusal to give, certain instructions.
Contention is made that the court erred in giving instruction No. 17 dealing with the plea of self-defense made by appellant. This instruction tells the jury that this plea of self-defense would not 'be available to appellant unless it found that the deceased was the aggressor, and further that if appellant were the aggressor and provoked the difficulty he could not shield himself behind the plea of self-defense until he had attempted to withdraw from the difficulty. Similar instructions have been approved many times by this court. See Lomax v. State, 165 Ark. 386, 264 S. W. 823. We think no error was shown in the giving of this instruction.
Complaint is again made that the court erred in refusing to give an instruction offered by appellant concerning his right to stand his ground and not retreat. We are of the view, however, that no error is shown here for the reason that this requested instruction is fully covered by instruction No. 14 which the court gave on the ciuestion of self-defense.
Appellant complains because the trial court gave instruction No. 18 relating to threats by either appellant or deceased for the purpose of determining the probable aggressor. He claims that the instruction is contradictory within itself and that it presents the issue of who was the probable aggressor and also the issue of the justification of the accused.
An examination of the record in this connection discloses that only a general objection was made to the giving of this instruction by appellant, no specific objection was made or pointed out, and we think the complaint comes too late. We are also of the view that the instruction itself is not inherently wrong.
Finally appellant complains about the giving of instruction No. 22. This instruction relates to the effect and weight that should be given to the dying declaration of deceased which the court had permitted in evidence. After carefully reviewing this instruction in the light of the evidence as presented in the record, we think no error was committed in giving it, and that it was justified under the authority of the case of Parker v. State, 169 Ark. 421, 275 S. W. 758.
After a careful consideration of this entire record, we are of the view that no prejudicial errors are presented and the judgment is accordingly affirmed. | [
-80,
111,
-107,
-98,
43,
-32,
56,
-102,
-14,
-126,
96,
115,
-19,
75,
5,
59,
107,
77,
85,
105,
53,
-73,
87,
105,
-14,
-13,
-23,
-41,
50,
77,
-74,
-100,
12,
104,
66,
65,
-26,
10,
-11,
90,
-114,
5,
-119,
-14,
26,
16,
48,
125,
64,
15,
-31,
-98,
-29,
-86,
30,
-21,
9,
40,
75,
-84,
80,
49,
-100,
-113,
-3,
7,
-93,
39,
-100,
-79,
80,
60,
-104,
113,
0,
-72,
115,
-74,
-126,
84,
109,
73,
-84,
102,
103,
33,
13,
-17,
-88,
-120,
15,
58,
-67,
-89,
26,
105,
97,
77,
-105,
-67,
114,
-80,
14,
120,
116,
95,
28,
-24,
20,
-49,
-106,
-79,
-53,
56,
-104,
-29,
-21,
37,
32,
113,
-49,
-30,
92,
7,
-8,
-101,
-100,
-108
] |
Baker, J.
In a per curium order recently made in this case, we denied -a request to affirm on account of non-compliance with Rule 9; but announced our intention to consider only issues presented by proper abstract of pleadings and other parts of the record including such evidence as properly belonged therein without having been certified by bill of exceptions.
The decree presented for review recites that the case was heard upon pleadings and exhibits, the depositions of witnesses, ten or eleven of whom were named, and “oral testimony” of other withnessés, naming them.
Attention is called to the fact that at least two depositions mentioned are not in the record and that the oral testimony has not been preserved by bill of exceptions or otherwise as provided by act 290, acts of 1915, the pertinent part of which is now Pope’s Digest, § 1493.
There is no recital found in the record whereby this oral evidence was reduced to writing as depositions taken before the court.
Appellant has set forth a resume of this omitted evidence taken by deposition as well as the oral testimony improperly incorporated as part of the record, and has argued to some extent the effect thereof.
But a failure to preserve and bring forward a transcript of evidence heard properly authenticated may not thus be lightly dismissed, and the provisions of said act No. 290 of 1915 be wholly disregarded.
In this case there is no authentication of this oral testimony except the clerk’s certificate to the transcript. This is ineffectual for that purpose. It was so held in Beecher v. Beecher, 83 Ark. 424, 104 S. W. 156. In a later case, this same matter was considered and the court quoted from Beecher v. Beecher, supra, and then states the effect of a failure to bring into the record oral testimony in a proper way. The court said: “There is a conclusive presumption that evidence sustains the decree of the court so far as it is possible for a decree based on the complaint to be sustained by the evidence. ’ ’ Tedford v. Chick, 114 Ark. 167, 169 S. W. 769.
Lest there be a lingering doubt in the minds of some attorneys, ive venture the following conclusions and authorities as sustaining the position taken.
Evidence taken orally must be reduced to writing and be properly identified by the court, and filed and made a part of the record by order of the court, or brought into the record by a bill of exceptions. Bradley Lbr. Co. v. Hamilton, 109 Ark. 1, 159 S. W. 35.
Oral testimony in a chancery case can only be preserved by a recital of the original record, or by hill of exceptions, signed by the chancellor, or by reducing the testimony to writing at the time, and by permission of the court filing it as a part of the record in the case. Phillips v. Jokische, 117 Ark. 221,.174 S. W. 520.
Where oral testimony is heard by the chancellor, such testimony must he preserved by bill of exceptions and made a part of the transcript on appeal, otherwise it is ordinarily presumed that the omitted testimony, if the decree was dependent on the facts established by the oral testimony, supported the decree. Central Bank v. Downtain, 162 Ark. 46, 257 S. W. 746. But no bill of exceptions is necessary where there is an agreed statement of facts, which is incorporated in the decree itself. Central Bank v. Downtain, supra.
Bills of exceptions cannot be considered, if not filed within the time allowed by the trial court. Engles v. Oklahoma Oil & Gas Co., 163 Ark. 270, 259 S. W. 749.
Thé mere filing of an agreed statement of facts does not make it a part of the record where it is not brought up in a bill of exceptions, nor incorporated in the judgment entry. Great Southern Fraternal Union v. Stroud, 169 Ark. 509, 275 S. W. 753.
Depositions when filed, or oral evidence ordered to be reduced to writing’ and filed as depositions, become part of the record in a chancery case. Chicago Title & Trust Co. v. Hagler Special School District, 178 Ark. 443, 12 S. W. 2d 881.
In order for stenographer’s transcribed notes to become part of the record, the court at the beginning of the trial must order this done and can not wait until the trial has been concluded. McGraw v. Berry, 152 Ark. 452, 238 S. W. 618. Before transcribed notes can become part of the record, under order of court and without the consent of the parties they must be filed in court during term time, supra.
Oral testimony transcribed and ordered filed as depositions was improperly incorporated in transcript where it was not filed with the clerk during term time, not brought into the record by bill of exceptions nor by being incorporated in the decree. Sercer v. Hamilton, 155 Ark. 639, 245 S. W. 35.
All the foregoing announcements are digested from cases in chancery.
' A bill of exceptions filed after the term of court will not be considered on appeal where no time for filing was given. Ogletree v. Walker, 185 Ark. 805, 49 S. W. 2d 1054.
The last announcement is from an opinion in a circuit court case.
Maybe the following citations will not be deemed amiss in a matter of such real importance: Blackford v. Gibson, 144 Ark. 240, 222 S. W. 367; Fletcher v. Simpson, 144 Ark. 436, 222 S. W. 710; Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096; Floyd v. Booker, 161 Ark. 87, 255 S. W. 288.
So, in so far as the decree may rest upon facts the, conclusions must be in favor of appellees according to all the authorities.
Moreover, we find as an exhibit to a deposition of one witness, a form of judgment that was agreed upon and entered in vacation. It was set aside because not approved by the-court and ordered of record in term time. It set out the rights of the respective parties. The agreement in this form of judgment must now be held as determinative of appellant’s claims. We do not forget that she strongly insists her attorneys were without power or authority to make such an agreement. The omitted depositions and unauthenticated evidence must be presumed conclusively to establish facts contrary to her contention.
In addition, appellant insists her title was cured by act 142 of the Acts of 1935. This act was considered by this court in the case of Carle v. Gehl, 193 Ark. 1061, 104 S. W. 2d 445. It is applicable for the cure of irregularities and informalities, only when there has been a “Publication of a notice of sale under a valid and proper description” proof of which advertisement is made only by proper certificate of the clerk. Carle v. Gehl, supra.
Appellant does not establish this fact of legal notice. Hence the act No. 142 may not be considered further.'
Appellant now urges that the court erred in not holding the plaintiffs were required to make tender of taxes and value of improvements. The answer to that proposition is that it was concluded by the settlement agreement above mentioned, copied in a footnote. But Mrs. Wood-ruff had only a donation certificate, no deed had been issued to her. In fact, one had been refused.
It was held by this court that one possessed of donation certificate merely could not invoke this statute now appearing as § 4663, Pope’s Digest. Beloate v. State, ex rel. Atty. General, et al., 187 Ark. 17, 58 S. W. 2d 423.
As to the last contention that appellees were not entitled to possession until payment of taxes and improvements had been made, we again look to the agreement. Appellant accepted the benefits accruing thereunder; and she can not evade its burdens. What is said in this opinion is not intended to apply where a local or special act is in forc.e.
Affirmed.
JUDGMENT
* On this day appeared the plaintiffs, Catherine T. Dickinson, Katherine D. Dickinson, Robert E. Dickinson, and Elizabeth D. Liebkeman, by their attorneys, Taylor & Taylor, and also the defendants, L. C. Woodruff, J. N. H. Woodruff, Lee Kirby, Jess Hogan, John Hawkins, Sam Aspiri and John Burrell, by their attorneys, Nelson & Nelson, and this cause is by agreement submitted to the court upon the pleadings and agreement of the parties, from which the court finds as follows:
That plaintiffs are the owners and entitled to the possession of the land and premises sued for, to-wit:
Southwest quarter, section 8, township 13 north, range 9 east; that defendants are in possession of said land of and by virtue of a Donation Certificate No.____________ issued on the 16th day of November, 1931, by the Commissioner of State Lands of the State of Arkansas to the defendant, L. C. Woodruff, and the defendants are claiming that plaintiffs are indebted to them for improvements placed on. the said land. The court finds that defendants are entitled to all crops grown on said land during the year 1934 and that same shall be full compensation for all improvements placed on said land by defendants and that defendants shall retain possession of said land and premises for the purpose of gathering and harvesting said crops until January 1, 1935, at which time defendants shall surrender possession of land and premises and all improvements thereon to plaintiffs, their agents or employees. The court further finds that said Donation Certificate is void and of no force and
It is further ordered, adjudged and decreed by the court that the plaintiffs, Catherine T. Dickinson, Katherine D. Dickinson, Robert E. Dickinson and Elizabeth D. Liebkeman, are the owners of said southwest quarter of section 8, township 13 north, range 9 east and entitled to the possession of the same on and after January 1, 1935, and that defendants are entitled to all crops grown on said land during the year 1934 and shall have until January 1, 1935, to gather and harvest the same; and that defendants shall vacate said land and premises and surrender possession thereof 'to plaintiffs on or before January 1, 1935, and that if said land and premises be not vacated by defendants on or before January 1, 1935, the clerk of this court is hereby directed to issue a writ of possession to plaintiffs; that said Donation Certifcate be, and the same is hereby canceled as a cloud on plaintiff’s title to said land.
Signed by Attorneys. | [
-80,
104,
-60,
-36,
43,
-32,
34,
-82,
-47,
-125,
103,
83,
-19,
-38,
-124,
101,
-6,
59,
81,
91,
-59,
-73,
2,
17,
-14,
-9,
-37,
86,
-9,
95,
-91,
52,
76,
32,
-8,
-43,
98,
-56,
-115,
88,
-50,
15,
-71,
71,
113,
112,
52,
39,
82,
15,
97,
-10,
-29,
44,
19,
-49,
105,
44,
75,
57,
64,
-79,
-98,
13,
79,
2,
-77,
52,
-102,
7,
-24,
42,
24,
49,
17,
120,
51,
-74,
-126,
-44,
43,
-7,
-88,
102,
102,
33,
108,
-25,
-72,
-116,
126,
62,
29,
-90,
-48,
105,
73,
73,
-74,
-67,
49,
82,
44,
-6,
-24,
69,
92,
108,
11,
-113,
-10,
-75,
11,
124,
-98,
67,
-21,
18,
16,
113,
-51,
114,
92,
103,
49,
-101,
-58,
-73
] |
Mehaepy, J.
S. M. Acker died July 9, 1929, leaving his widow and three children, by a .former marriage, surviving. His will provided that T. A. Watkins should act as executor and trustee for his widow and heirs, and that he should file proper bond with the probate court for the faithful performance of his duty. He filed an account current in the probate court of White county and the heirs appealed to the circuit court, where the finding of the probate court was approved and confirmed. The facts in that case are stated in the case of Acker v. Watkins, 193 Ark. 192, 100 S. W. 2d 78. This court reversed the judgment of the circuit court and remanded it with directions to the circuit court to restate the account, charging the executor with the amounts he paid on all unprobated claims and with all collections he made or should havé made for the estate upon notes and rents from the real estate.
On remand of the case the circuit court restated the account, disallowing all credits to the executor where he had paid unprobated claims. Watkins' then appealed to this court and the court affirmed- the case, holding that the circuit court had properly denied the motion to transfer to equity, and entered judgment in accordance with the directions of the mandate. The second appeal is reported in 195 Ark. 203, 111 S. W. 2d 458, as Watkins v. Acker.
Thereafter the appellants instituted this action in White chancery court to cancel certain notes and a deed of trust executed by Watkins conveying to Wood, as trustee for the Bank of Searcy, the real estate owned by S. M. Acker, deceased, consisting- of three dwelling houses in Searcy and a farm in White county, Arkansas.
There was a decree holding that the notes and mortgage were void and cancelling same. The executor, Watkins, who was president of the hank and in the actual management of same, had executed the notes and mortgage to obtain money to pay the claims that this court decided he could not take credit for. But the chancery court also held that Watkins was entitled to be subrogated to the rights of the several persons to whom the debts were owed and had been paid by Watkins, and decreed that Watkins was subrogated to the rights of said creditors and persons, and might take credit for the sum of $3,500, or so much thereof as he had not heretofore received credit for upon his account.
The chancery court also enjoined and restrained the appellants from collecting any rents due upon the real estate belonging to S. M. Acker, deceased, or from interfering with the collection thereof by Watkins, and empowered Watkins, the executor, and ordered him to collect the rents and to account therefor as provided by law.
The appellants objected to that part of the decree allowing Watkins the right of subrogation, and authorizing him to take credit for such sums as he had not already received credit for upon his account current thereafter filed. The objections of appellants weire overruled, exceptions saved, and an appeal prayed and granted to this court.
The appellees objected to that part of the decree canceling the deed of trust and note, and their objections being overruled, excepted, and prayed an appeal to this court which was granted. The case is here on appeal on each of these propositions: First, Were the mortgage and note void? and Second, Were the appellees entitled to subrogation?
Watkins, who executed the note and mortgage, was executor and trustee under the will of Acker. He was also president and in the active management of the bank to which the mortgage was given.
The Supreme Court of Vermont said, in a, case where the administrator executed a promissory note and mortgage to himself as administrator:
“The mortgage must he held invalid for want of contracting parties. A contract necessarily implies a concurrence of intention in two parties, one of whom promises something to the other, who, on his part accepts such promise. One person cannot by his promise confer a right against himself until the person to whom the promise is made has accepted the same. Until the concurrence of the two minds, there is no contract; there is merely an offer which the promisor may at any time retract. Ohitty, Cont. 9, quoting Pothier Obi.
“It is essential to the validity of a deed that there be proper parties, — a person able to contract, and" a person ab’e to be contracted with. 3 Washb. Real Prop. 217.
“To uphold this mortgage, we must say that there may be two distinct persons in one; for in law the mortgagor and mortgagee are identical. The addition of the words ‘executor of A. W. Gorham’s estate’ does not change the legal effect of the grant, which is to Meacham in his individual capacity.” Burditt v. Colburn, 63 Vt. 231, 22 Atl. 572, 13 L. R. A. 676.
A person cannot contract with himself, there must be two or more parties. In the instant case there was not the meeting of any two minds, as required by law, but Watkins was both the borrower and the lender of the money. He borrowed it in his capacity .as executor, and loaned it in his capacity as the manager of the bank.
The law applicable to executors and administrators with reference to this particular question is the same as the law applicable to public officers or to contracts affecting public service.
“As the efficiency of the public service is a matter of vital concern to the public, it is not surprising that agreements tending to injure such service should be regarded as being contrary to public polic3r. It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public service is void, although the parties entered into it honestly and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular ease to ascertain whether they were corrupt or not, but stop when it is ascertained that the contract is one which is opposed to public policy. Nor is it necessary to show that any evil was in fact done 'by or through the contract. The purpose of the rule is to prevent persons from assuming a position where selfish motives may impel them to sacrifice the public good to private benefit. All agreements for pecuniary considerations to control the business operations of the government, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation by refusing, them recognition in any of the courts of the country.” 6 R. C. L. 730.
It is contended by the appellees that Watkins had authority under the will to mortgage the property of the estate. There is no such authority in the will. The will does not give him any authority to mortgage, but to sell under certain conditions. But if the will had given him authority to mortgage, he could not borrow money and mortgage to himself. Such a contract would be against public policy and void.
Watkins represented the estate as executor, and represented the bank as manager, and each had a right not only to the faithful service but to the best judgment of Watkins, and he could not lawfully make a contract as executor with himself as manager of the bank.
“An officer’s duty is to give to the public service the full benefit of a disinterested judgment, and the utmost fidelity. Any agreement or understanding by which his judgment or duty conflicts with his private interest is corrupting in its tendency. . . . The law will not permit public servants to place themselves in a situation where they may be tempted to do wrong, and this is accomplished by holding all such employment, whether made directly or indirectly, utterly void.” McLain v. Miller County, 180 Ark. 828, 23 S. W. 2d 264.
It is not necessary to decide whether the note and mortgage are void for want of contracting parties, for the note and mortgage are void for another reason. Section 180 of Pope’s Digest provides that an executor or administrator may borrow money to pay obligations secured by liens against any real property belonging to the estate. The undisputed evidence in this case shows that there were no liens on the real property of the estate, and the executor, therefore, had no authority under the law to execute the note and mortgage.
When the first appeal was in this court, reported in Acker v. Watkins, 193 Ark. 192, 100 S. W. 2d 78, this court said that § 102 of 'Crawford & Moses’ Digest requires that before any executor or administrator shall pay or allow any such debts, the same shall be sworn to as aforesaid, referring of course to §§100 and 101. The sections of the statute referred to have, in a long-line of decisions of this court, been construed to be mandatory. Numerous cases are cited to support that rule.
Section 102 of Crawford & Moses Digest is also § 102 of Pope’s Digest.
The court in the above case, after holding that the section was mandatory, remanded the case with directions to the circuit court to restate the account charging the executor with the amounts he paid on unprobated claims, and with all collections he made, or should have made for the estate.
In the second appeal here, Watkins v. Acker, 195 Ark. 203, 111 S. W. 2d 458, the court, as we have said, held that the circuit court correctly refused to transfer the case to equity.
In the instant suit it is contended that even if the note and mortgage are void, the executor, having paid the claims, is entitled to subrogation, and the chancery court so held.
The statute expressly provides how claims shall be presented and probated, and the executor or administrator is prohibited from paying any claims that are not presented and probated as the law provides. This court, as we have already said, held that § 102 of Pope’s Digest is mandatory. In other words, the contention of the executor is that having paid the claims in violation of law, he is entitled to be subrogated to the rights of the creditors, whose claims he wrongfully paid.
Many authorities are cited by appellees on the question of. Watkins’ right of subrogation, which we deem it unnecessary to discuss, because, as contended by them; subrogation is an equitable doctrine, and the maxims of equity apply. No one can enforce subrogation to relieve him of his wrongful acts in paying claims, or otherwise.
Moreover, if this could be done in the instant case, then § 102 of Pope’s Digest could be violated with impunity. If it were held that Watkins could be subrogated to the rights of the creditors in the instant case, then an executor or administrator could pay claims without the claimant complying with the law, and in absolute violation of the statute, and then go into a court of equity and get the claims allowed under the doctrine of subrogation, when the court has already decided that he cannot take credit in his settlement for these-claims.
In other words, the executor claims that he can do indirectly what the law absolutely forbids his doing. Courts of equity are just as much bound by the law as courts of law are.
It follows from what we. have said that, on the cross appeal, the decree of the chancellor declaring the notes and mortgage void is affirmed; and, on the appeal of the appellants, the decree of the chancery court holding that the executor, or bank, has a right of subrogation is reversed and the cause dismissed. | [
112,
104,
-16,
28,
8,
-32,
18,
-102,
82,
-25,
37,
83,
-23,
-124,
85,
117,
99,
61,
80,
99,
-26,
-77,
7,
-24,
-46,
-77,
-23,
-51,
-14,
-52,
-27,
-35,
77,
96,
106,
21,
-57,
-96,
-57,
88,
-114,
-127,
-117,
100,
-39,
-35,
50,
-89,
16,
95,
-63,
-114,
-95,
58,
53,
-21,
76,
110,
121,
-71,
80,
-72,
-97,
4,
125,
7,
17,
38,
-106,
39,
72,
42,
-104,
21,
0,
-8,
115,
54,
-122,
84,
73,
-101,
12,
114,
98,
42,
32,
-19,
-112,
-120,
23,
-74,
29,
-89,
-46,
89,
3,
47,
-66,
29,
126,
0,
4,
-2,
-18,
-97,
88,
108,
1,
-113,
-106,
-91,
4,
48,
-100,
-126,
-13,
-49,
32,
113,
-51,
-30,
93,
2,
59,
-101,
-122,
-16
] |
Baker, J.
The plaintiff in this ease is an appointee of a district court of Montgomery county, Iowa. He is a trustee succeeding Red Oak Trust & Savings Bank designated as such under will of C. W. Hine, known as Dr. Hine, a former resident of the county mentioned. Dr. Hine died testate, May 16, 1916. His will seems to have been duly probated and recorded. It has become necessary to construe a portion of the will as affecting certain real property in Lonoke, Lonoke county. The property is described as lots 3, 4, 5, and 6 of Hicks & Reynolds' survey of the town of Lonoke.
It appears from the record the trustee has contracted to sell said property at a price conceded to be reasonable and one that seems so from the evidence. ■
The trial court decided the issues submitted according to the trustee’s contention that he had power to sell, and from that decision minor defendants, Betty Jane Kurtz, Ann Hine Kurtz, and Richard Porter Kurtz, by • their guardian ad litem have appealed.
A copy of the ■will'is set out so that the sole question presented for our consideration may be determined from an examination of the questioned portion when read with the whole instrument.
“I, C. W. Hine, of Red Oalt, Iowa, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my1'last will and testament, hereby revoking any and every'will and testament at any time heretofore by me at any time made.
“Par. 1. I direct that all myfuneral expenses and just debts be first paid out of my estate.
“Par. 2. I hereby appoint the Red Oak Trust & Savings Bank of Red Oak, Iowa, executor and trustee of my estate, and direct that the court approve said appointment, to carry out the provisions of this instrument as herein provided.
“Par. 3. I give, devise-, and bequeath to the said Red Oak Trust & Savings Bank, -but in trust only, audio be conserved and disbursed by it as hereinafter directed, all my property, real, personal, and mixed, wherever situated.
“Par. 4. To my wife, Abbie A. Hine, if she survives-me, in lieu of all dower, I give, devise, and bequeath all-' the income, interest, and dividends arising from all my estate during her lifetime, payable-to her semi-annually or as she may require it.
“Par. 5. On the death of my said wife, Abbie A. Hine, then to the following persons or the ones, thereof surviving, viz: my brother, James Wallace Hine; my nephew, Charles Hine, son of.my brother, John H. Hine; my nieces, Hester E. Dietz, Mary R. Dunbar, Fannie H. Pickering, Abbie Porter, and Lillian L. Porter, all being daughters of my sister, Anna Porter, deceased, I give,, devise, and bequeath share and share alike, all the income, interest, and dividends arising from all of my estate during the lifetime of my said brother, James Wallace Hine.
“Par. 6. On the death of my said brother, James' Wallace Hine, then I give, devise, and bequeath, .1st, to my said nephew, Charles Hine, all the interest, income and dividends arising- during his lifetime from one-eighth of all my estate; 2nd, to my said niece, Hester E. Dietz, all the interest, income, and dividends arising during her lifetime from one-eighth of all my estate; . . . 5th, to my said niece, Abbie Porter, all the interest, income, and dividends arising during her lifetime from one-eighth of all my estate; 6th, to my said niece, Lillian L. Porter, all the interest, income, and dividends arising during her lifetime from one-eighth of all my estate; 7th, to my said niece, Daisy Van Vleck, all the interest, income, and dividends arising during her lifetime from one-' eighth of all my estate; 8th, to my said niece, Bose Stickler, all the interest, income, and dividends arising during her lifetime from one-eighth of all my estate. (The said Daisy Van Vleck and Bose Stickler 'being daughters of my said brother, James Wallace Hine:)
“Par. 7. Subject to the life estate therein as above set forth I give, devise, and bequeath all the balance, residue, and remainder of my estate as follows, to-wit: To the children of said Charles Hine living at the time of his death one-eighth (1/8); to the children of said Hester E. Dietz living at the time of her death one-eighth (1/8); to the children of Mary B. Dunbar living at the time of her death one-eighth (1/8); to the children of Fannie H. Pickering living- at the time of her death one-eighth (1/8); to the children of the said Abbie I. Porter living at the time of her death one-eighth (1/8); to the children of the said Lillian L. Porter living at the time of her death one-eighth (1/8); to the children of the said Daisy Van Vleck living at the time of her death one-eighth (1/8); to the children of the said Bosé Stickler living- at the time of her death one-eighth (1/8); said bequests herein made shall be paid on the death of said parents, respectively, of said children.
“Par. 8. In the event the said Charles Hine or Hester E. Dietz, or Mary Dunbar, or Fannie H. Pickering, or Abbie Porter, or Lillian L. Porter, or Daisy Van Vleck, or Bose Stickler should die leaving’ no living children him or her surviving, then the one-eighth (1/8) share of all my estate given, devised, and bequeathed or sought to be given, devised, and bequeathed to the children of said persons, respectively, named above in the paragraph, and in paragraph 7 above hereof I hereby give, devise, and bequeath to the then living children of the person or persons named in this paragraph, and in paragraph 7 above hereof, to be divided between them share and share alike.
“Par. 9. If any Of my nephews or nieces become destitute or in need of assistance during the lifetime of my said wife, Abbie A. Hine, then I request of my said wife that she assist them according to her means as she deems just and charitable.
“Dated at Bed Oak, Iowa, this 23rd day of Septem ber, 1914”
Without cheeking the names of all the parties sued as defendants, we accept statement of counsel for both parties that every one who might possibly be interested, even contingent remaindermen, has been made a party and service of process has been duly obtained.
The trial court was asked to interpret paragraph 3 of the will. This part of the will gives, devises, and bequeaths to the trustee as such, “all my property, real, personal, and mixed wherever situat'éd. ’ ’ But this grant is “in trust only, and to be conserved and disbursed by it as hereinafter directed.”
, It is the contention and argument of appellants that a sale of the Lonoke property is inconsistent with the imposed duty “to conserve,” and that the. trustee may not, therefore, sell at-all. This is the sole question for decision.
Following this theory it is insisted that under the provisions of the will the duties of the trustee were confined to “interest, income, and dividends arising from my estate,” and that lands of the kind in question were -vested in the remaindermen without aid of, and free from the interference by, the trustee under provisions of paragraphs 7 and 8 of the will. When the entire instrument is given consideration, this, theory is found not tenable. Paragraph 3, the one questioned, conclusively and unmistakably grants to the trustee all property, real, personal, and mixed, wherever situated. This included not only title to the Lonoke property, but rents and income therefrom;
"We have observed that a large part of this instrument provides for a disposition of income, interest, and dividends, but we .find no' provision transferring any piece of real property to any one except the trustee. W.e-conclude the estate was intended to be regarded as an income producing unit until such time as was provided for disposition of the corpus.
The evidence tendered was not voluminous, and effect thereof may be encompassed in a short statement.
The ..testator.in the will identified himself as “I, C. W. Hine, of Red Oak, Iowa. ” ' .
-. .. The determination of the place of his residence was once before this-, court for decision. State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566. The will was- .probated in that state and the trustee named served for a time .as is indicated by the suit just mentioned. .An exhibit to the complaint is an order of the district court of Montgomery county,.. Iowa, wherein, is recited a finding that the real estate in question is nonproductive, is deteriorating in value, and for the purpose :of preserving the corpus of the trust should be sold and that the proposed sale is advantageous, etc, A witness who acquired information in regard to said property by living in the only house on the property for several years' and near it since that time states the house is in a very bad condition, not habitable although extensively repaired seven or eight years ago at an expense of about $700. '' The witness'moved from the building because of the bad state of repairs.
. In the consideration of. the- language, of the will ordinarily there could be little if any doubt about the intention of the testator. To make, certain, • we follow one of the cardinal rules long recognized as a proper guide.
In ascertaining the intention of the testator from the language of the will it must he considered in the light of the circumstances under which it was made. Bloom v. Strauss, 73 Ark. 56, 84 S. W. 511; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Carr v. Crain, 7 Ark. 241, 251.
Although the intention of the testator must be gathered from the will itself as declared in Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, the rule for the construction of wills is to give effect to what appears to be the intention of the testator in view of the provisions of the. will. Cook v. Worthington, 116 Ark. 328, 173 S. W. 395; Webb v. Webb, 111 Ark. 54, 163 S. W. 1167. Numerous other authorities to the same effect, and some of them much more recent might be cited, but this is not necessary.
When the intention of the testator is ascertained it must govern unless it contravenes some rule of the law. Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Slaughter v. Slaughter, 23 Ark. 356, 79 Am. Dec. 111; Campbell v. Campbell, 13 Ark. 513.
These authorities, hallowed with age, show the early recognition of the right of the testator to make such disposition of his property as he may desire so long as there ús no hindering statute or policy. Since that right has not been abridged by any recent statute or decision, wu prefer those revered by long and continued observance. '
We think appellants are in error in their insistance that the language of the will prevents a sale of the real estate. True, the expression is “to be conserved and disbursed by it as hereinafter directed.”
There are several powerful controlling reasons why the direction to “conserve” does not mean to keep or retain in kind as may have been delivered to the trustee. Paragraphs 4, 5, and' 6 dispose of interest, income, and dividends only. Interest accrues from money loaned and dividends arise from capital stock in corporations, and income probably means, as distinguished from the other two, rents from real property.
We have already observed the testator did not.devise a single tract of land to .any one except the -trustee. His provision for his wife, his first care, (paragraph 4) was, “all the income, interest, and dividends, payable semi-annually or as she might require it.” Paragraphs 5 and 6 deal with the same items, “interest, income, and dividends.” So we see. the testator.was considering his estate as an income producing unit and not regarding the particular or separate articles as parcels that made up that estate. “ To conserve ” it, therefore, was to ‘ ‘ conserve” the value by collecting the notes, renewing them when necessary, and maybe, when found to be proper, by disposing of stocks or bonds that might prove nonproductive.
This might be conceded without admitting the right to sell real estate. See Thompson on Wills (2d Ed.) § 559.
In the instant case the trustee has title to the property with a duty to conserve it. He may not take liquid assets and convert them into improvements or repairs on non-income producing real estate. May he use such funds to pay taxes over a long period under conditions which hold no promise of a return in rents — income? All the profits that might become accretions to the estate are disposed of by the will (paragraphs 4, 5, and 6).
The same provision of the will that gave the trustee, as such, title tp all personal property also conveyed by devise the real property. We had a very similar proposition in the matter of a will made by Mr. M. A. Williams in 1887. It was decided in Williams v. Williams, 167 Ark. 348, 268 S. W. 364, that Mrs. Williams took only a life estate in the realty. Again, the same language' constituting the devise was construed in its relation to the personal property. Accordingly it was held that Mrs. Williams’ interest in the personalty was measured by the same rule that controlled as to real estate. She took a life estate only, or the right-to interest or income therefrom. Chambers, Adm’r v. Williams, Adm’r, ante p. 40, 132 S. W. 2d 654.
It will be noticed that we. attempted to give effect to the intention of the testator as expressed in the Williams will. The language that conveyed a life estate in the realty, conveyed a similar estate in the personalty.
So here, we find the testator creating a testamentary trust devising and bequeathing all his property to the trustee. By a comparison with the Williams cases cited, we are impelled to say that if will was efficacious to transmit title of one class of property it was no less so as to the other.
The trustee must be deemed to possess or be able to exercise such powers as are necessary for the purposes cf the trust. There are no words expressly empowering a sale of any of the property, but such power will be implied when a sale may be necessary to prevent loss, or the trustee to comply with the other provisions of the will. Such was the holding of this court in Heiseman v. Lowenstein, 113 Ark. 404, 169 S. W. 224, Ann. Cas. 1916C 601.
In the case at bar the provision of the will is for “disbursement” of property as if it were all money, and not for distribution in kind. It could not be disbursed without first reducing it to money or liquid equivalents acceptable to those interested.
Following the same course of reasoning the last cited case was quoted from and followed by us quite recently. Hoyle v. Baddour, 193 Ark. 233, 98 S. W. 2d 959. It was there held that the trustee should use ordinary and natural means to obtain the desired result.
As we understand these authorities, there must always be deemed authority and power to perform the trust; the trustee acting just as ordinarily good business men manage their own affairs under similar conditions.
. The conclusion is that the trial court’s decree is without error.
Affirmed. | [
-14,
104,
-40,
12,
-102,
-96,
58,
-102,
-62,
-93,
39,
87,
-21,
-54,
1,
45,
34,
93,
-43,
117,
-121,
-79,
11,
97,
-46,
-77,
-39,
-49,
-12,
-51,
-12,
-43,
76,
48,
8,
21,
-58,
-62,
-51,
28,
12,
-123,
-85,
66,
-37,
35,
48,
-81,
20,
74,
101,
62,
-5,
46,
63,
74,
76,
46,
-5,
61,
81,
-16,
-72,
7,
127,
23,
48,
34,
-112,
19,
-56,
110,
-112,
53,
-118,
-24,
119,
-74,
6,
84,
13,
-87,
8,
118,
102,
16,
-80,
-17,
-80,
-120,
15,
-2,
-123,
-89,
-60,
24,
97,
73,
-68,
-98,
119,
48,
46,
124,
-96,
86,
20,
105,
1,
-50,
-42,
-107,
-123,
-4,
-104,
3,
-37,
28,
48,
81,
-115,
-14,
125,
71,
57,
-69,
-34,
-73
] |
McHaney, J.
By this appeal, appellant questions the correctness of a decree of the trial court, dismissing her complaint for want of equity which sought to cancel as a cloud on her title to lot 7, block 5, Central Addition to the city of Benton, Arkansas, a tax forfeiture and sale of said property to the State and a deed from the State to appellee, and in quieting title in the latter.
Two grounds of invalidity of the forfeiture and sale to the state are relied on, neither of which is tenable. One is that the county clerk failed to extend on the tax books in dollars and cents separately the tax due the state, the county, the city, and the school district, but extended only the total of all taxes due in the sum of $14.94%. This was ruled adversely to appellant in Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503, 12 S. W. 33. The other ground is that the total tax being $14.94% the taxpayer could not pay the exact amount as we have no coin the equivalent of one-half cent; that the collector could not be required to accept less; nor could the taxpayer be required to pay more than the exact amount. Aside from the fact that appellant made no tender to the collector of any amount, it is apparent that one-half cent, either more or less, is de minimis under the maxim “ de minimis non curat lex.” In Cowling v. Muldrow, 71 Ark. 488, 76 S. W. 424, the tax levied was 28% cents. It was sold for 29 cents. This court said the excess “was but nominal, trifling, ’ ’ and refused to hold the sale void. So, here, the one-half cent is nominal.
Affirmed. | [
114,
-19,
-44,
60,
43,
64,
106,
-118,
-62,
-95,
-92,
83,
47,
-126,
20,
123,
-13,
127,
117,
96,
-57,
-73,
35,
67,
-66,
-78,
-39,
85,
61,
77,
-28,
-42,
76,
49,
-62,
-107,
103,
106,
-123,
80,
78,
-127,
-88,
77,
-23,
100,
100,
45,
8,
11,
113,
-114,
-29,
45,
24,
73,
105,
40,
75,
51,
65,
-70,
-70,
13,
95,
5,
49,
53,
-102,
-63,
72,
-88,
-104,
49,
8,
-24,
123,
-90,
-122,
84,
13,
-71,
8,
-32,
-29,
19,
37,
-1,
-80,
40,
46,
-33,
-123,
-90,
-46,
88,
75,
-19,
-74,
-108,
108,
-64,
69,
-2,
-26,
-123,
-33,
124,
13,
-50,
-44,
-79,
-116,
92,
-112,
3,
-33,
-125,
48,
112,
-49,
-26,
92,
87,
16,
-101,
-114,
-44
] |
Mehapey, J.
The appellant, Charlie Graham, and appellee, Mattie Graham, were. divorced in June, 1932, and this action was begun in June, 1938, practically six years after the divorce decree. This suit was brought by Charlie G. Graham against Mattie Graham and others in the Clark chancery court to set aside a deed purporting to have been executed, signed and acknowledged under the directions and orders of a certain decree claimed to have been rendered in the chancery court on June 8, 1932. The divorce suit was brought by Mattie Graham against Charlie G. Graham^ and Charlie G. Graham was granted a divorce on his cross-complaint, and was ordered to pay a certain sum as alimony. It was alleged that the deed was forged and that the decree was obtained by fraud. Plaintiff alleged that in the divorce case he and Mattie Graham agreed that Mattie Graham could use and occupy a certain dwelling house and the real estate owned by Charlie G. Graham -in Gurdon, as long as she chose to use and occupy the same, and that she was to pay the current taxes and keep the property in repair; that Charlie G. Graham, in pursuance of said agreement, turned over said real estate and dwelling house to Mattie Graham, that she might occupy and use the same under said verbal agreement and stipulation as long as she chose to occupy said house; he alleged that Mattie Graham thereafter secretly and without authority, and unknown to 'Charlie G. Graham, fraudulently and unlawfully caused the decree in said case to be prepared and put on record in the Clark chancery court ordering and directing that Charlie G. Graham deed his equity in the house and real estate to Mattie Graham; that said decree was written and placed on record by Mattie Graham without right or authority and in fraud of the order and decree rendered by the chancery court, and without the knowledge of Charlie G. Graham, and in fraud of the verbal stipulation and agreement between the parties in settlement of their property rights; and under which said Mattie Graham was to use and occupy the house and real estate, pay the taxes thereon and keep the same in repair, as long as she resided in the town of Gurdon; that Mattie Graham thereafter conspiring and acting with other persons unknown to Charlie Graham, and without his knowledge, consent or authority, prepared an alleged deed and forged the name of Charlie G. Graham to same, purporting to convey the house and real estate to her for $1 and other good and valuable considerations, and that said false and forged deed was secretly and without the consent or authority of said Charlie G. Graham placed on record; that Mattie Graham thereafter, without the knowledge and consent of Charlie G.* Graham, executed a warranty deed purporting to convey the house and real estate to Katie Newton for a cash consideration of $470; that the deed was not dated, but was acknowledged before ~W. E. Haynie, a notary public, on June 27, 1932, and thereafter recorded; that Katie Newton, on May 11, 1933, executed to Lloyd C. Newton, her son, for a consideration of love and affection, a certain warranty deed purporting to convey the property to him; that on. July 21, 1937, for a consideration of $1 and other considerations, Katie Newton executed a warranty deed to Mrs. Ella Mae Newton, and that this deed is on record; that Lloyd C. Newton died intestate several years since, leaving as his sole and only heirs at law, Ella Mae Newton and Anna Newton, his daughter, nineteen years old, and Billy Estes Newton, a son, six years old, and Lloyd Newton, Jr., a son, eight years old; that Mattie Graham has since moved away from the town of Gurdon and is now a nonresident of the state; that Charlie G. Graham who had not lived in the town of Gurdon for several years, recently found out that the defendants herein were holding the house and real, estate in Gurdon under a claim of title derived under the false and fraudulent deed of Mattie Graham. He prayed that said false and forged deed be set aside and canceled as a cloud on his title, and that the alleged false and fraudulent decree, under which said deed purports to be executed, be canceled, set aside and held for naught; that the deeds from Mattie Graham to Katie Newton, and from Katie Newton to Lloyd C. Newton, and from Katie Newton to Mrs. Ella Mae Newton be canceled and set aside as a cloud on Charlie Graham’s titl,e; that the title to said property be decreed in Charlie G. Graham; and that the court further order and decree that the defendants account to Charlie G. Graham for the rent on said property and costs.
The appellees answered denying each and every allegation contained in the complaint and set up other defenses for the claim, and specifically denied any fraud practiced on the Clark chancery court or on the plaintiff, Charlie G. Graham, and specifically deny that any fraud or forgery was practiced.
Ella Mae Newton filed a cross-complaint against her co-defendants, Mrs. Katie Newton, Anna Newton, Billy Newton, and Lloyd Newton, Jr.; alleging that the deed from Katie Newton to Lloyd C. Newton was the result of a mutual mistake; that the defendants Annie Newton, Billy Estes Newton, and Lloyd Newton, Jr., are the sole and only heirs of Lloyd C. Newton, deceased.
The minor defendants answered denying each and every allegation in plaintiff’s complaint. An amended and substituted answer was filed for the minors.
The lower court found that there was no fraud practiced on the court or on the appellant, and entered a decree in favor of Mattie Graham and others. From this decree Charlie G. Graham prosecutes this appeal.
The parties entered into the following stipulations:
“It is stipulated and agreed by and between counsel for plaintiff and counsel for defendant and the guardian ad litem-, that the records in this case, and including the entries in the judge’s docket, the original decree, the original deeds be considered in evidence and read in evidence before the court and embodied in the record in this case.
“It is further stipulated and agreed by and between counsel for plaintiff and counsel for defendant and the guardian ad litem in this case, that the page from.the judge’s docket containing the original entries in the handwriting of Judge C. E. Johnson,' the chancellor of this district at that time, and ordering that the divorce be granted on the cross-complaint on the grounds of indignities, and further stating that the property rights were settled between the parties according to stipulation and further providing that the plaintiff, Mattie Graham, be awarded $30 a month alimony.
“It is further stipulated and agreed that the subsequent order made in this case reflecting the hearing on the petition to set aside the previous order for alimony appears in the handwriting of Judge P. P. Bacon, the then chancellor of this district, and that the same was heard and handed down on April 4, 1933, as shown by the original entry in said docket.”
The final decree and deeds above mentioned were introduced in evidence. The decree showed that a divorce was granted to Charlie G. Graham on his cross-complaint because of indignities offered him by Mattie Graham that rendered his condition in life intolerable. It reduced the alimony which the court order required Charlie G. Graham to pay to her from $50 a month to $30 a month, and the court further found that the home owned by Charlie G. Graham, or his .equity in it, should be deeded to Mattie Graham.
The plaintiff, Charlie Graham, testified in substance that the chancellor granted him a divorce, and that it was agreed between him and his wife, Mattie Graham, that Mattie Graham was to have the home' place in Gurdon as long as she wanted to stay there and make it her home; she was to keep the property up and pay the taxes; he turned over to her the' household goods and personal property worth between $1,500 and $2,000, turned over to her absolutely; that he did not make an agreement that he would deed the house to her, and was never a party to any such stipulation; never did agree to the decree that was introduced in evidence; there was not any equity in the property, he was the sole owner of it; he had just spent $1,800 on the place a short time before; had $4,500 invested; it was a six-room house, bath, sleeping porch, wash house, electric lights, and bath fixtures complete; he never executed any such deed as the one on record; he was a locomotive engineer on the Missouri Pacific and was working out of Little Bock; at the time the deed is said to have been signed by Him, he was working between Texarkana and Little Book; could not have left Texarkana and come to Arkadelphia on the day the deed purports to have been signed; he testifies at some length about what he was doing and why he could not have been in Arkadelphia at the time the deed purports to have been signed; he went to California and stayed there in 1934 and 1935, came back in the fall of 1935 and was over at Nashville practically ever since under the care of Dr. Hopkins; got back to Gurdon about the first of the year and Mrs. Newton told him she had charge of his old property. Mr. Lookadoo represented him in the divorce case; later, after Judge Bacon became chancellor, there was a petition filed to set aside the allowance of alimony; the allowance of $30 a month was set aside; that Mr. Lookadoo and Mr. Carrigan represented him in these proceedings.
Mr. John H. Lookadoo testified that he was one of the attorneys representing Charlie G. Graham in his divorce snit. Mr. Ed Haynie or Mr. K.. W. Huie, or both of them, represented Mrs. Mattie Graham. When Mrs. Mattie Graham filed the second snit he filed a cross-complaint for Charlie G. Graham against her for indignities. Charlie G. Graham was granted a divorce on cross-complaint.' The judge’s notation on his docket states that the property rights were settled according to stipulation. There was never a written stipulation, it was verbal; that he never saw the decree purporting’ to have been entered in the divorce suit, and ordering Charlie G. Graham to deed his equity in his property to Mattie Graham; he did not dictate the decree or have it prepared under his supervision. Mary C. Grayson was his secretary at the time and she was not authorized to prepare this kind of decree; it is not the decree that he dictated; his recollection is that Mrs. Graham was to have the whole place as long as she lived, but he stated that that recollection might be influenced by talking to other parties since that -time; he is sure he never saw this deed and did not prepare or dictate it; he said: “I don’t recall anything about the deed.” He said it had been six or seven years ago, and he is sure the deed was not written by him; does not think the divorce decree was read at all at this hearing. The court set aside the alimony order. In his opinion the decree was prepared in his office, looked like his paper, and as far as the precedent for divorce is concerned, it sounds very much like one he usually wrote; Mrs. Grayson always wrote the decrees when they were not contested, in divorce cases; this case was virtually settled before the trial; it was not at that time a contested case; he knows of nothing that would prompt Mrs. Grayson to do anything except the right thing; she was on good terms with Mrs. Graham as far as witness knows; Mr. Graham was always kind and cordial to her, and she was to him; does not know a “thing on earth” about the deed; his recollection is that she was to have the property as long as she lived; was not present when the deed was handed by Ed Haynie to Mrs. Mattie Graham; knows nothing* about it; does not remember Charlie G. Graham ever coming to his office at night.
Mr-. C. W. Spruell testified in substance that he had the original train sheets showing the engines pulling the trains, and the trips made by them between Texarkana and Little Bock. Charlie G. Graham was engineer on the engine leaving Texarkana at 6:10 p. m. on the 18th; arrived at Little Bock at 1 a. m. on the 19th; the same engine leaving Little Bock at 2:55 on the 19th, arrived at Texarkana at 10:30 p. m. Train sheets were made by witness who was the train dispatcher and the only records he has with reference to the runs referred to. The train sheets were then introduced. ILe then gives the dates that Charlie G. Graham left his engines.
The following stipulation was then entered into:
“It is stipulated and agreed between counsel for plaintiff and counsel for defendant and the guardian ad litem, that the alleged deed from C. G. Graham to Mattie Graham in question in this case was brought to the office of Floyd Ward, circuit clerk and recorder for Clark county, Arkansas, by Lucius Newton, and was filed in the office to be recorded by him on August 1,1932, at 11 a. m., and that after recording the deed was returned to Lucius Newton at Gurdon, Arkansas.
“It is further agreed that Lucius Newton is at this time confined in the state penitentiary, having been convicted of the offense of murder in Clark comity circuit court. ’ ’
Mr. Steve Carrigan testified in substance that he was called into the case of Mattie Graham v. Charles Graham to assist Mr. Lookadoo to set aside the allowance of alimony; that he and Mr. Lookadoo prepared the petition, and the petition did not set out any part of the former order or decree except as to the question of alimony, and the petition was filed under allegations of immoral conduct on the part of Mattie Graham; was present at the hearing and examined the witnesses before Judge Pratt P. Bacon, the then chancellor; they never had the original decree or any of the original papers at that hearing, and the only record of the former decision they had was the judge’s docket, entries made by Judge C. E. Johnson, chancellor before Judge Bacon, who awarded $30 a month alimony to Mrs. Graham.
The gravamen is the alleged misconduct of Mattie Graham in procuring and having entered of record a spurious decree — one differing materially from the actual judicial order. If, in fact, the decree was that of the court, rendered at a time and in circumstances when jurisdiction attached, the deed, in so far as the rights of Chas. G. and Mattie Graham are concerned, is unimportant;' With respect to innocent purchasers a different rule applies. If Chas. G. Graham was directed by the court to deed the property to Mattie Graham, and there was no timely appeal from such order, title would vest without further formality, the deed being only the evidence or muniment of that which had been done. Also, if the court ordered execution of the; deed, and there is record of the execution of such deed conformable to the decree, a presumption would arise that the defendant and cross-complainant had-complied with terms of the decree.
In view of the entire record we cannot say that the chancellor’s conclusions as to authenticity of the decree were erroneous. The party seeking to have a judgment vacated or opened must establish the fact relied upon by clear, strong, and satisfactory proof. 34 C. J., p. 358, § 573.
Since we must hold with the chancellor on the validity of the decree, it follows that in the absence of clear, strong, and satisfactory evidence that the deed was a forgery, appellant must also be held to have failed in that respect.
The decree is affirmed. | [
-79,
116,
-68,
79,
-102,
-96,
-88,
-84,
-21,
-127,
-73,
83,
-7,
98,
0,
105,
98,
-83,
81,
123,
-31,
-77,
22,
18,
-14,
-13,
-39,
93,
-71,
-51,
-12,
-41,
76,
40,
-30,
21,
70,
-126,
-59,
80,
-122,
-121,
-85,
-60,
-39,
-62,
52,
127,
-126,
15,
85,
-121,
-109,
43,
53,
107,
12,
42,
77,
73,
80,
107,
-115,
12,
-51,
51,
17,
36,
-122,
7,
88,
-118,
-104,
21,
0,
-96,
115,
-122,
-42,
116,
21,
-115,
9,
100,
102,
1,
-59,
-9,
-24,
-99,
46,
-14,
-103,
39,
-78,
104,
0,
107,
-66,
-107,
116,
24,
53,
118,
109,
-97,
29,
44,
42,
-113,
-106,
-127,
12,
56,
-98,
3,
-17,
-73,
52,
112,
-51,
-28,
92,
99,
59,
-101,
-113,
-58
] |
Mehaeey, J.
This action was instituted in the Pulaski chancery court by H. E. Farrar, appellee, a retail liquor dealer. He alleges this suit is brought on behalf of himself and all others interested in the enforcement of the illegal exactions mentioned in this complaint. He alleged that act 310 of the Acts of 1939 is unconstitutional. This suit is against Z. M. McCarroll, Commissioner of Eevenues for the State of Arkansas, and wholesale liquor dealers.
A. A. Haynie filed an intervention on behalf of himself and other consumers of liquor who might be interested in enforcement of the illegal exactions described in the complaint.
The wholesale dealers who were made defendants filed answer and cross-complaint and stated that this answer is filed on behalf of themselves and all others interested against the enforcement of the illegal ex-actions described in the complaint. All of them, the intervention, answer and cross-complaint, alleged that act 310 of the Acts of 1939 was unconstitutional and void.
Z. M. McCarroll, Commissioner of Eevenues for the State of Arkansas, filed a demurrer to the complaint, intervention and cross-complaint on the ground that the pleadings do not state facts sufficient to entitle plaintiff to the relief prayed, or to any relief whatsoever. The Commissioner of Eevenues also filed answer denying the material allegations of .the complaint, and alleged among other things, that on June 12, 1939, act 310 above referred to was held valid. McCarroll, both as Commissioner and as a citizen, asked that plaintiff’s complaint be dismissed.
The complaint in the case of Mike and Joe Galdarera v. Z. M. McCarroll, Commissioner, 198 Ark. 584, 129 S. W. 2d 615, was introduced as an exhibit. Also a copy of the decree in that case was introduced. The plaintiff then filed a demurrer to the answer of Z. M. McCarroll on the ground that the allegations do not state facts sufficient to constitute a defense.
The court overruled the demurrer of the Commissioner of Eevenues and sustained the demurrer filed by the plaintiff to the answer of the Commissioner, and the decree of the chancellor permanently enjoined Z. M. McCarroll, Commissioner, from collecting from all wholesalers of liquor the three per cent, tax, but provided, however, that during the pendency of the appeal an amount equal to the amount of tax which would be due if said act were valid, shall be paid by said wholesalers into the registry of the court at the time said tax would be due under the act, if valid, to be held by the clerk ■ of the court subject to further orders of the court.
The Commissioner of Revenues objected and excepted to all provisions of said decree, and prayed an ■ appeal to the Supreme Court, which was granted. The case is here on appeal.
The appellant contends that the constitutionality of act 310 of the Acts of 1939 is res judicata» by virtue of the decision in the case of Caldarera v. McCarroll, 198 Ark. 584, 129 S. W. 2d 615.
15 R. C. L., § 429, gives the following statement of the doctrine of res judicata:
“The doctrine of res judicata is a,principle of universal jurisprudence forming part of the legal systems of all civilized nations. It may be said to inhere in them all as an obvious rule of expediency and justice. Briefly stated, this doctrine is that ah existing final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.”
C. J., Yolume 34, p. 743, states the two main rules of the doctrine of res judicata-. “(1) .The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. (2) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not.”
Was the suit of Caldarera, above, a judgment of a .court upon the merits 1 The question in that case was whether act 310 of the Acts of 1939 was unconstitutional, and the court in that case held that it was a valid act. Since that was the question in the case, it certainly cannot be claimed that it was not a judgment upon the merits. And if a judgment upon the merits, it concludes the parties and privies and constitutes a bar to a new action or suit involving the same cause of action, either before the same or any other tribunal.
The Constitution of the State of Arkansas provides that any citizen of any county, city or town may institute suit in behalf of himself and all others interested, fo protect the inhabitants thereof against the enforcement of any illegal exactions whatever. Under this provision of the Constitution, the suit ih the Caldarera case was 'brought.
The instant suit was instituted under the same authority.
In the case of Rigsby v. Ruraldale Consolidated School District No. 64, 180 Ark. 122, 20 S. W. 2d 624, this court said:
“In support of the plea of res judicata set out above appellees introduced the pleadings and decree rendered upon them, and the evidence in the Johnson case by the Garland chancery court.
“The trial court in the instant case dismissed appellant’s complaint for the want of equity, from which is this appeal.
“The action of the trial court in dismissing appellant’s complaint was proper. The plea of res judicata and testimony introduced in support thereof justified the court’s action.”
The court further said in the same case: “The only authority he had to bring the suit was under § 13, art. 16, of pur State Constitution.” That Is the section above quoted, authorizing a citizen to bring suit on behalf of himself and others.
The court; continuing, said: “C. J. Rigsby instituted the instant case under the same authority, and all citizens in the district were bound by the result of the suit brought against appellees by R. M. Johnson upon all issues presented by the pleadings and testimony in the Johnson case.” The court cites 15 R. C. L., pp. 1026 and 1035. Page 1026, % 500, R. C. L., reads as follows:
“The doctrine of virtual representation whereby persons may be bound by a judgment, although not parties to the suit* on the theory that they are sufficiently represented by those who are parties on the record, has been applied to cases in which there are large numbers of parties in interest, and whenever the parties in interest are so numerous as to make it impracticable or very inconvenient and expensive to bring them all before the court, it is sufficient that such a number be made plaintiffs or defendants as will fairly represent the interest-of all standing in like character and responsibility, and a judgment against them will have the effect of res judicata against all who were thus represented.”
Section 510, page 1035, of the same volume reads as follows: “Where a citizen and taxpayer brings an action in behalf of himself and other taxpayers against a municipality every citizen is regarded as a party to the proceedings, and bound by the judgment entered therein. In such cases the people are regarded as the real parties. For example,'the judgment in.a suit brought by taxpayers of a town against the town and a railroad company, to enjoin the issue by the town of bonds to the company, by which it is adjudged that such bonds should issue, is binding on all the other taxpayers of the town, though not parties to the suit, and the questions involved therein are res judicata in a second suit by another taxpayer to restrain the payment of interest on the bonds. In all such cases, however, the first judgment must be bona fide.”
We think the Rigsbv case above cited settles this question, and it is not necessary to review other authorities.
The constitutionality of act 310 was the question involved in the Caldarera case, and it is also the question involved in this case. In each case, the journal of the Senate was introduced. In the instant case, the complaint and other pleadings and the decree in the Caldarera case were all introduced in evidence.
If a suit of this character is not a bar, then one citizen after another might institute a suit for himself and others against the Commissioner of Revenues, and if the judgment in one suit was not a bar, this could continue until every citizen in the state had brought suit. The doctrine of res judicata is not only to protect the individual, but it is a matter of public policy.
We have reached the conclusion that the Caldarera ease above referred to settles this case, and is res judicata. The chancery court erred in sustaining the demurrer of the plaintiff and overruling the demurrer of the Commissioner.
The decree of the chancellor is reversed, and the cause is dismissed.
Smith and McHaney, JJ., concur. | [
-76,
-17,
-72,
-51,
-86,
96,
42,
-98,
83,
-93,
-9,
83,
-23,
70,
17,
113,
-29,
123,
81,
104,
-28,
-90,
55,
66,
-46,
-101,
-39,
-41,
-75,
-49,
-28,
-12,
79,
60,
-29,
-107,
-61,
-14,
-91,
94,
-118,
9,
41,
-52,
121,
-55,
48,
-81,
82,
11,
117,
-121,
-17,
44,
-106,
-53,
77,
108,
-51,
13,
-31,
-96,
-104,
-99,
95,
6,
49,
6,
-101,
1,
-38,
26,
-102,
49,
97,
-88,
115,
54,
-122,
21,
7,
-103,
8,
36,
102,
37,
-127,
-17,
-88,
-84,
46,
-102,
-115,
-90,
-14,
89,
107,
8,
-65,
-100,
124,
-112,
-114,
-10,
-24,
-43,
95,
44,
15,
-113,
-108,
-93,
45,
-11,
-100,
19,
-53,
71,
52,
85,
-49,
-92,
93,
71,
55,
-117,
-122,
-44
] |
Holt, J.
Appellees, Stedman Dodson and Mrs. J. D. Williams, filed separate suits in the Cliicot circuit court against appellants, Tlie Hammond Ranch Corporation and Homer Ricks, to recover damages growing out of the alleged negligence of appellants in spreading arsenic poisoning, resulting in injury and death to certain stock. The actions were consolidated for trial.
Appellee Dodson alleged in his complaint that appellants employed the Silver Fleet Dusting Company to spread arsenic poison over a field of cotton belonging to them and adjacent to appellee’s pasture; that the poison spray was spread by means of an airplane, and that appellants wantonly and negligently spread the poison over appellee’s pasture, rendering same unfit for use for a period of seven days and causing the death by poison of one heifer of the value of $25, one mule the value of $125, and damages in the sum of $15 paid out for hay by appellee for his stock, or a total of $165.
Appellant, Hammond Ranch Corporation, filed separate answer denying every material allegation of appellee, and further alleged that it had nothing to do with the employment of the dusting company in question, was not responsible for its acts, and that, if such company were employed to spread the poisonous spray, it was at the instance of Homer Ricks, and that it is in no way liable for same.
Appellant, Homer Ricks, answered denying every material allegation set out in appellee’s complaint.
Appellee, Mrs. J. D. Williams, in her complaint made similar allegations to those set out by Dodson and claimed damages for the death of one Jersey milk cow of the value of $75 and one part Jersey milk cow of the value of $50, or a total of $125. To this complaint, appellants filed answers similar to those in the Dodson case.
Upon a trial to a jury a verdict was returned in favor of appellee Dodson in the sum of $100 and for Mrs. Williams in the sum of $125. From a judgment on these verdicts comes this appeal.
The evidence, as reflected by the record, stated in its most favorable light to appellees, is to the following effect: '
The pastures of appellees adjoined the land occupied by appellant, Ricks, who was the tenant of The Hammond Ranch Corporation, owner of the property which Ricks occupied.
An employee of appellant, Hammond Ranch Corporation, testified that appellant, Homer Ricks, was a tenant of the Ranch “on the third and fourth”; that if any tenant wanted his cotton dusted or the arsenic poison spray spread over it, he might do so, that it was optional. If the tenant did have his cotton dusted, then the appellant Ranch furnished and paid for one-fourth of the poison used in spraying; and that The Hammond Ranch Corporation paid for one-fourth of the poison spray used by appellant, Ricks.
This witness further testified that when the Silver Fleet Dusting Company (quoting from his testimony) “came in there to do this they came up there to see me. They said they had an entomologist going over' the place looking at the fields where it needed poison, and I told them that where it needed to be poisoned, that where it was all right with the tenant they could go ahead, if it was all right with the tenant. But the tenants, where we had security for our money, it didn’t matter.”
Appellee, Dodson, testified that on Sunday morning, August 15, 1937, an airplane passed over his pasture a little after sun-up; that he was standing on his porch and saw the airplane scattering the poison, but did not know it was poison at the time; that he would fly over his pasture, circle and then drop down and go back over •appellants’ field, make another circle and come back over his pasture and the pasture of appellee, Mrs. Williams. The operator of the plane did not cut off his poison spray when he made the circles. Appellee’s pasture contains 20 acres. He immediately went to his pasture and saw something white all over the ground, and on the same day one of his mules got sick and one- of his cows was down. He immediately called Dr. Moore, and after •he had examined the animals said they were poisoned. One of his heifers of the value of $25, in the pasture at the time, died that day, and he thought she died from poison. The mule valued at $125 died three or four months later. A Mr. Bufkin, bookkeeper for appellant, Hammond Ranch Corporation, told witness that the Hammond Ranch Corporation was paying for the airplane and dusting. None of the animals were sick before the cotton was sprayed with the poison except the mule which had a carbuncle. No autopsy was performed on the stock. He. watered the yearling on Saturday, and when he went back to look for his cows on the following Sunday, the day of the spraying, he found the yearling dead.
• Appellee, Mrs. Williams, testified that she was not at home on the Sunday morning the poison was spread on her pasture, but returned that nigbt. She found two of her Jersey cows sick. They kept getting worse until they died, two weeks later. She had a doctor with them, and he said they were poisoned. One of the cows was of the value of $75 and the other, $25.
A Mr. A. L. Parker testified on behalf of appellees. We set out the abstract of his testimony as copied from appellants’ brief: “I live out east of Chicot. I know Mrs. Williams and Stedinan Dodson. Live near both of them. Both of them had a pasture near Homer Ricks’ field in 1937. I saw the airplane sailing over right where I live. I hadn’t got up yet. It come right on over my house and went over Mr. Ricks and hit his cotton south and then went north. Then he turned west and failed to shut the poison off. He came right by Mrs. Williams across her pasture to Mr. Dodson’s. The poison was on all-the way; it never did shut off. I live one-half mile of Mrs. Williams and Mr. Dodson. I generally pass there once a week.. I seen the stock in there that Sunday. I passed there-in an hour after the plane put poison in the pastures, and saw poison all over the leaves and grass. I didn’t see any dead animals Sunday morning, but did on my way back when I found two, one up at Mr. Dodson’s close to the'house. It was about five hours from the time I passed before I came back. Dodson had a fat' fine yearling that I offered him twelve dollars for, and he wouldn’t take it.”
Doc Moore testified (quoting from appellants’ abstract) : “I have been studying the ailments of animals since ’82. Last August a year ago I was called about the middle of August to treat animals for Stedman Dodson and Mrs. Williams. At Mr. Dodson’s I found a sick mule, an old mule in bad shape, I treated him and told Mr. Dodson what to do with it. Then I was called by Mrs. Williams here somewhere close to the same time. She had a couple of very sick cows; I treated them with an old army remedy. Later on both died. According to my experience, I never seen the arsenic, but they said the pasture had been poisoned. They acted like they were poisoned by arsenic. One of the cows looked to be a pure bred .jersey, and the other didn’t appear to be much sick at the time.”
He further testified that arsenic poisoning is a slow rot, and sometimes an animal might lie around for several months before the poison became fatal, it depended upon the amount consumed.
It is first insisted by appellants that the evidence is not sufficient to take either case to the jury. We are of the view, however, that when the above testimony, in connection with other evidence of probative value disclosed by the record is considered, we would not be warranted in saying that it is not substantial and sufficient to go to the jury..
We think, also, that there was sufficient evidence to go to the jury in support of the allegation that a poisonous spray containing arsenic, highly dangerous to animals, was spread upon the pastures of appellees; that immediately thereafter the animals in question, which were in the pastures at the time, became sick, one died on the day the poispn was spread and the other shortly thereafter. There is no evidence that these animals had been sick before the spreading of the poison. It is undisputed that the arsenic spray in question is a poison, and, when taken into the system of an animal in sufficient quantity, will kill.
After considering all reasonable inferences to be drawn from the testimony as presented by the record, we think the jury was justified in finding that the dam ages claimed resulted from the spreading of the poisonous spray, and therefore the trial court did not err in refusing to take these cases from the jury.
It is next insisted that appellant, Homer Ricks, furnished the poison, that the dusting company did the spreading; that the dusting company was an independent contractor, and that since appellant, Hammond Ranch Corporation, had nothing to do with the employment of the dusting company, neither of appellants can be held liable to appellees. We cannot agree.
The record reflects that appellant, Homer Ricks, was a tenant of the Hammond Ranch Corporation and paid to it one-fourth of all cotton which he produced. The ranch corporation was consulted by the dusting company relative to the spraying of Ricks’ cotton and was told by the ranch corporation to do the dusting where it needed to be poisoned, with its airplane, if the tenant Ricks wanted it done. The ranch corporation paid for one-fourth of the poison used on Ricks ’ cotton. We think, therefore, under these circumstances that the jury was warranted in holding that both appellants were jointly liable for the damages incurred. We are also of the view that the 'Silver Fleet Dusting Company was not an independent contractor.
In the comparatively recent case of S. A. Gerrard Company v. Fricher, 42 Ariz. 503, 27 Pac., 2d Series, 678, where the facts are somewhat similar to those in the instant case, principles of law were announced which we think are ■ controlling here. In that ease the facts were that in the process of spraying an insecticide called Dutox No. 20 on defendant’s lettuce field to rid the field of worms, the spray fell upon, or was blown upon, the plaintiff’s apiary, with the result that his bee business was damaged. The spraying was done from an airplane flying over the lettuce field, and as plaintiff claims, over his apiary and releasing the dust or spray. The defendant did not, himself, operate the airplane, but.it employed the Hawks Crop Dusting 'Company to do the spraying. This •corporation was engaged in that particular kind of work. It furnished its own pilots and airplanes, and in .the operation was not under the control or direction of the defendant. Only the powder or dust was supplied by defendant.
In that case one of the defenses interposed was that the Hawks Crop Dusting Company was an independent contractor, and that, therefore, defendant was not liable for any damage suffered by the plaintiff. On that question the court said:
“As a general rule the employer is not liable for the negligence, of an independent contractor. There are, however, certain exceptions to this general rule. One of such exceptions is. that the law will not allow one who has a piece of work to ¡be done that is necessarily or inherently dangerous to escape liability to persons or property, negligently injured in its performance by another to whom he has contracted such work. This if especially true where the agency or means employed to do the work, if not confined and carefully guarded, is liable to invade adjacent property, or the property of others, and destroy or damage it. The defendant was within its legal rights in depositing the insecticide on its lettuce field for the purpose.of ridding it of the worms with which it was infested, and it could do. this work itself or it could contract it, but, because of the very great likelihood of the poisonous dust or spray spreading to adjoining or nearby premises and damaging or destroying valuable property thereon,, it could not delegate this work to an independent contractor, and thus avoid liability. 39 C. J. 1331, § 1540; 14 R. C. L. 87, § 24; Medley v. Trenton Inv. Co., 205 Wis. 30, 236 N. W. 713, 76 A. L. R. 1250; St. Louis & S. F. R. Co. v. Madden, 77 Kan. 80, 93 P. 586, 17 L. R. A., N. S., 788, We conclude that the facts bring this case within the named exception, and that, because of the dangerous character of the agency employed, the work was not delegable, and that the Hawks Crop Dusting Company was in the performance thereof the agent or servant of the defendant.”
Appellants finally contend that the court erred in refusing to give certain requested instructions, which we deem unnecessary to set out. Suffice it to say thát we have carefully examined these instructions and have reached the conclusion that the court did not err in this regard.
- On the whole case we conclude that the judgment should be affirmed, and it is so ordered. | [
-16,
108,
-108,
-115,
40,
104,
104,
-118,
67,
-87,
-9,
83,
-37,
-45,
13,
109,
102,
45,
-43,
107,
-57,
-73,
93,
35,
-45,
-101,
-39,
-59,
-72,
77,
-27,
-33,
12,
52,
-54,
29,
-94,
-96,
65,
28,
-60,
9,
41,
96,
-7,
-110,
60,
111,
118,
75,
97,
-98,
-5,
47,
29,
67,
8,
42,
107,
45,
64,
113,
-118,
5,
93,
18,
51,
6,
-119,
7,
74,
46,
-48,
-79,
8,
-4,
115,
-76,
-122,
84,
11,
-39,
12,
34,
99,
34,
-108,
-121,
76,
12,
47,
127,
15,
-25,
-127,
64,
27,
42,
-66,
-99,
50,
86,
-106,
-10,
-5,
-51,
25,
104,
7,
-61,
-106,
-93,
-113,
-76,
-108,
19,
-55,
-89,
53,
113,
-55,
-94,
92,
69,
86,
31,
15,
-106
] |
Baker, J.
This is an appeal from an order and decree of the chancery court denying a motion of appellant to set aside decree of divorce granted on the 12th day of October, 1937. The appellant alleges as cause for setting aside or vacating the divorce decree, that it was obtained by fraud upon the court in that the appellee had filed and certified to a questionnaire in which he gave her address as Nashville, Tennessee, Davidson county, c/o sheriff’s office. It was alleged further that the appellee knew the address of the appellant at that time, but refused, or, at least, failed to give that information; and that the attorney ad litem appointed in due course sent notice to Bada L. Allsup at the address given, which letter was duly returned as appears from the records in the case. No other irregularity is charged or relied upon.
The matter charged in this motion was denied and upon proof being heard the court found that there was no effort to deceive the officers of the court, or to prevent the defendant from knowing of the pendency of the suit.
The appellant is very pbsiiWe in her assertions that the plaintiff, had he desired to have done so, might easily have located her in time for her to have made a defense to the suit. She alleges that she had a ‘ ‘meritorious defense” thereto, but no other statement was made to show what her defense was, although the plaintiff had filed a motion to -require her to make definite her pleadings in that particular.
Prior to this time plaintiff had filed suit at Little Rock, but this suit had been dismissed.
A part of appellantVtestimony is as follows: “I was living at 1909, West End, at Knoxville. I have never been sued in Nashville. The one in Little Rock was the first one.. I am not sure where I was when it was filed. I lived in Knoxville from 1916 to 1935, and then moved to Nashville in August, on the 4th, I think. In 1935, I lived at 121, Eighth avenue, North, I think, but it might have been addressed to McAlley avenue.' I lived in several different places there, but I got notice of both suits. One of the notices came through the sheriff’s office. That was just bluff, he could not help but know where I was living. He always found me before then. I don’t think the sheriff’s office was the proper place to find out. He could have asked at the post office.”
She makes a somewhat more elaborate statement that he could have had notice sent to the home of one of their daughters.
The appellee explains that he had sent notice to her prior to this time, through the sheriff’s office, and that a short time before he had called up one of the daughters to make inquiry as to the location of appellant and was advised by the daughter that she herself did not know where her mother was, that if she knew she would not tell and that if he, the appellee in this case, called her again she would try to have him arrested. His explanation as to why he gave the sheriff’s office as a place through which she might be located was that the attorney was advised that, although he did not know her exact address, it was possible she might be located by correspondence with the sheriff’s office; that it was not expected that she be found or located in that office as an actual residence.
The trial court held that there was no actual or constructive fraud or intent to deceive the court, and this conclusion appears justified from the foregoing statements of the appellant, who was herself not perfectly sure in regard to what place she might have been found at the time the notice was given.
This question of fact decided by the trial court was, we think, correctly determined. The chancellor’s conclusions are supported by the weight of the evidence, or at least not contrary thereto.
The appellee calls our attention to the fact, however, that the appellant in attempting to secure an order vacating this decree of divorce has not pleaded any defense that she may have had, had she been permitted to reopen the case for a new trial. She has merely stated that she has “a meritorious defense” and this is merely a conclusion and without merit for the purpose for which it was offered. Section 8249, Pope’s Digest; Smith v. Minter, 120 Ark. 255, 179 S. W. 341; Dengler v. Dengler, 196 Ark. 913, 120 S. W. 2d 340.
Our attention is called to the pleadings in this case wherein appellee pleads desertion without reasonable cause, and, in addition, offers the further fact that the parties had lived apart for more than three years prior to the filing of the suit and that the appellee was entitled to a divorce under act 20 of the Acts of 1939. It is true that ■the facts- pleaded and proof perhaps justified relief under said act, but the decree which appellant seeks to have vacated was founded upon desertion.
Besides all these matters, it appears that appellant waited an undue length of time in her efforts to have this decree of divorce vacated. She had knowledge of it on the 18th day of October, 1937, six days after the decree was granted, by a letter from the Veterans’ Burean; but she did not file the motion upon which the court acted until February 21, 1939. She gives no excuse for this delay except she says she was not “officially” notified. She was also told of the suit by a letter from appellee’s attorney six months after the decree. She admits receipt of these letters, but because the writer of the letter from the Veterans’ Bureau expressed an opinion that the decree was invalid and the pension was not discontinued, she did nothing at that time.
All her contentions fail for the following reasons: First, no fraud was proven or established in procuring the decree. Second, she had no defense, or alleged none that .would entitle her to prevail in this motion. Third, she delayed unduly after notice and permitted changed circumstances and conditions and new rights of another party to arise during her extended delays, the appellee having married again.
The motion to vacate was filed February 21, 1939. Appellee married December 31, 1938, more than a year after the divorce. The delay under the circumstances may not be excused. Corney v. Corney, 97 Ark. 117, 133 S. W. 813; Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498; Bauer v. Brown, 129 Ark. 125, 194 S. W. 1025.
' There is no error. Affirmed. | [
-79,
104,
-4,
14,
-118,
-32,
42,
-66,
-30,
3,
47,
115,
-19,
70,
8,
121,
-38,
75,
116,
120,
-59,
-73,
7,
98,
-14,
-13,
-39,
85,
-75,
-51,
-11,
-41,
76,
32,
-54,
-41,
71,
-118,
-123,
24,
78,
-95,
-77,
-20,
-39,
-126,
48,
-23,
64,
15,
113,
-65,
-13,
-81,
57,
-62,
-20,
44,
95,
-86,
-48,
112,
-110,
12,
127,
6,
-79,
-12,
-112,
1,
92,
10,
-108,
48,
0,
-23,
112,
-106,
-110,
116,
74,
-71,
0,
112,
98,
1,
-115,
-25,
-88,
-116,
6,
58,
-99,
-90,
-14,
72,
73,
73,
-74,
-111,
117,
16,
13,
-68,
124,
-43,
21,
108,
10,
-50,
-44,
-111,
-113,
50,
-100,
11,
-29,
55,
48,
81,
-51,
-86,
92,
70,
51,
-101,
-57,
-95
] |
McHaney, J.
Appellee brought this action against appellants to recover damages for personal injuries sustained by her at about 4:30 p. m., March 11, 1936, by reason of a collision between the car in which she was riding with her son, Dallas Moore, as driver and a train of appellants, Missouri Pacific Railroad Company and Guy A. Thompson, Trustee, on which the other appellant, W. R. Avery, was the engineer. Moore was driving his car east in the city of Marianna on Chestnut street, which is a continuation of highways Nos. 79 and 1, within said city, and was attempting to cross the railroad tracks at the crossing known locally as the “Light Plant Crossing,” which is two or three blocks north of the depot in said city where the.train had stopped a short time before the accident. The train was proceeding north on the branch line of the railroad leading to Memphis, Tennessee, same being the tracks farthest east at this crossing. There are three sets of tracks at this crossing, one set leading north to Wynne, Arkansas, on the west side of the crossing, and a switch or side track lying between the two east and west tracks. The collision occurred some distance north of the crossing, due to the fact that the driver of the car was unable to stop before reaching the east track on which the train was running and pulled to the left or north in an attempt to avoid a collision. The negligence laid and relied on was the failure to give the statutory signals and failure to keep a lookout. Appellants filed a general denial and entered an affirmative plea of negligence on the part of appellee in driving upon the tracks without looking or listening for the approaching train, or that the collision and injuries sued upon were solely and proximately caused by the negligence of the driver of the au tomobile in which she was riding, and that no negligence of appellant contributed to her injury.
Trial resulted in a verdict and judgment against appellants for $3,000, and this appeal followed.
' At the conclusion of all the evidence, appellants requested a directed verdict, and we think the court erred in refusing said request, because there was no actionable negligence proven against them, and the undisputed proof shows the driver of the car was guilty of negligence in driving a car without brakes.
Dallas Moore, the driver, testified he saw the train when he was about 50 feet west of the crossing, and the train about 100 feet south of the crossing; that he had good brakes, was driving at the rate of 15 miles per hour, applied his brakes immediately and caused the car to skid. He and appellee say they heard no bell ringing or whistle blowing, but the question of failure to give the signals passes out of the case, because both appellee' and the driver testify they saw the train 50 feet before they got to the crossing which was ample distance in which to stop the car at a speed of 15 miles per hour had it had proper brakes. The object of the statute (Pope’s Dig., § 11135) requiring signals to be given is to warn travelers on the highway of the approach of the train, and when, they have that knowledge without the signals being given, that fact becomes unimportant. St. Louis & S. F. Railway v. Ferrell, 84 Ark. 270, 105 S. W. 263; Mo. Pac. R. R. Co. v. Price, 182 Ark. 801, 33 S. W. 2d 366; Chicago, R. I. & P. R. Co. v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175. We think the great preponderance of the evidence shows the signals were given practically constantly from the time the train left the depot, some two or three blocks south of the crossing in question, until the collision occurred, but we cannot say there was no substantial evidence to the contrary.
The undisputed evidence also shows that an efficient lookout was being kept by the fireman. He testified he was sitting in the fireman’s seat box on the left side, saw the automobile approaching the crossing when it was about 100 feet west, with the back wheel skidding on the pavement and thought the driver was not going to be able to stop; that he called to the engineer to stop and then stepped over to the engineer’s side to see if the car made it across which it did not. He said the engineer stopped the train as soon as possible after notice was given him of the car; and that it takes some appreciable time to react to a perilous situation, first his mental reaction to danger, then the call to the engineer, then for the latter to react, apply the brake-valve, the air to travel through the air hose and the brakes to set to the wheels, all of which he estimated would take six seconds before the braking power would begin to.have effect. This was only an estimate based on many years experience on an engine. But assuming that he was in error by three seconds, still the collision would have occurred anyway. His evidence that he was keeping a lookout, saw the car 100 feet or more from the crossing, and notified the- engineer who stopped the train as soon as possible is-undisputed. Another witness, Mr. Robertson, saw the fireman on the east side of the engine behind the engineer about the time the engine reached the crossing, but this is corroborative of the fireman who said he went over .there to see if the car got by. The jury had no right to disregard this evidence.
' As to the condition of the car in which appellee was riding and the speed at which it was traveling, W. R. Zirkle said he was standing inside the door of the Standard Service Station, of which he is the manager, about 200 feet west of the crossing, saw the car pass his station at a rapid rate of speed, heard the brakes applied on the car, saw the skid marks made by it beginning about 32 feet west of the store building and that such skid marks continued up to the crossing. W. H. Barker was then manager of Zeiger’s service station, saw the ear pass his station going pretty rapidly, over thirty miles per hour and has had 25 years experience as a mechanic and driving automobiles. After the wreck, the car was placed behind his garage and that he immediately examined it. It was a 3930 model 'Chevrolet, originally equipped with four-wheel brakes, but that it had no brake rods to.the front wheels and no brake on the left rear wheel, and the only brake found on the car was on the right rear wheel, and that this absence of brakes was not caused by the collision. He saw the skid mark made by the right rear wheel on the pavement, stepped it and that it extended 110 to 115 feet west of the crossing. Mr. Ted Zeiger also stepped the skid mark starting almost in front of the store and it measured about 100 feet. Appellee’s own witness, Mr. Robertson, testified that the skidding noise of the automobile first attracted his attention; that it was going at a pretty high rate of speed and the driver was trying to stop; that it was traveling at a more rapid rate of speed than the engine; and that the car was probably 150 feet from the crossing when it began to stop. Nine days after the accident Dallas Moore signed a written statement, witnessed by his father and mother, in which he said he had no brakes' on the front wheels.
These physical facts, — the skid mark running back from the crossing- for upwards of 100 .feet, no brakes on three wheels of his car, — belie his statements that he first became aware of the presence of the train only 50 feet fr-om the crossing, and that his brakes were in good condition. In the face of them, his testimony to the contrary cannot be accepted as substantial evidence.
But if we concede that he first became aware of the presence of the train when he was 50 feet from the crossing and while traveling at 15 miles per hour, the absence of adequate brakes on his car is the only and proximate cause of the collision. Most of us drive automobiles. We know that a car, equipped with good brakes, traveling at a rate of 15 or 20 miles per hour, can be stopped in less than fifty feet. .Simply because we are appellate court judges, we are not required to shut our eyes and consciences to facts that every person knows to be true and accept statements of witnesses that are contrary to those facts. The power to stop automobiles with proper brakes in certain distances is so well known that the legislature, in 1937, enacted act 300, the Uniform Act Regulating Traffic on the Highways of Arkansas, § 124 of which, now 6784 of Pope’s Digest, requires a car to be equipped with service brakes adequate to stop such car “when traveling 20 miles per hour within a distance of 25 feet when upon dry asphalt or concrete pavement surface free from loose material where the grade does not exceed 1 per cent.,” which was the fact in this case.
We are, therefore, forced to the conclusion that the proximate cause of this collision was the defective condition of the car in which appellee was riding. It necessarily follows that the judgment must be reversed, and, as the cause appears to have been fully developed, it will be dismissed. | [
-16,
106,
-92,
-19,
42,
65,
42,
10,
117,
-127,
-28,
-45,
-19,
-59,
64,
117,
-18,
63,
81,
43,
-12,
-93,
7,
-14,
-101,
51,
107,
68,
-105,
-54,
100,
-41,
77,
16,
-53,
85,
103,
74,
-59,
90,
-114,
-68,
-21,
104,
25,
-110,
36,
114,
4,
15,
49,
-98,
-42,
-86,
24,
-62,
108,
46,
-5,
-88,
-64,
49,
-126,
5,
118,
4,
-79,
4,
-102,
-95,
-52,
24,
-40,
53,
50,
-100,
115,
-90,
-109,
-10,
105,
-39,
12,
34,
103,
33,
29,
-17,
-68,
-104,
38,
54,
-99,
-92,
106,
25,
75,
13,
-73,
-107,
91,
84,
12,
-4,
-4,
-115,
88,
48,
-127,
-53,
-76,
-127,
-49,
32,
-106,
19,
-21,
-91,
50,
117,
-52,
-74,
93,
5,
50,
-101,
-97,
-106
] |
Griffin Smith, C. J.
The appeal is from a judgment for $4,000' to compensate damages for false' arrest.
The transaction was this: Appellee, who was a retailer of ice, had formerly sold junk. The morning of December 8, 1938, he was accosted by Special Agent Matt Bonds on unenclosed property in North Little Rock owned by Missouri Pacific Railroad Company, near the railroad shops.
Appellee says that about 12:30 o’clock a. m. he started up Pike avenue toward Levy, intending to stop at a place on Eighteenth and Pike streets and drink a bottle of beer. Finding the place closed, he proceeded to Thirteenth and Pike streets where the open area begins, the intention being to cut across to Eighteenth and Railroad streets to patronize a beer joint.
While walking down tracks that are used for burning coaches, appellee saw three men. Some overturned coaches were on the left of the track. Still proceeding up the center of the track, appellee says that when he saw the three men he stepped back to the left of the back coach, but did not actually stop until halted by Bonds. He says there was a path about where he passed the men, or where the men were.
Appellee’s version of the transaction is that he had walked about two car lengths when some one- commanded him to halt; whereupon, he started running. Two shots were fired. The ground was slippery, and appellee fell. He had, however, decided that the man who commanded him to halt was probably a nightwatchman. As appellee endeavored to rise Bonds came near with a flashlight. After a heated discussion appellee was allowed to go home.
During business hours the morning of the 8th Bonds, accompanied by Jake Broadway (also a railroad agent) called at appellee’s home. The latter agreed to go to Monroe’s office in the depot “to explain the situation.”
Appellee says Monroe accused him of stealing railroad property and insisted that he admit it. There is this testimony by appellee:
“I denied the charge and started to leave. When I got my hat thej^ said, ‘Sit down! You are not going anywhere.’ They asked me to make a statement as to where I was the night before. I didn’t want to make a statement, but they told me I had to; so I made one because I didn’t see any other way of getting away from them. Then Mr. Monroe said, ‘Take him to the North Little Rook jail and lock him up.’ This statement was made to Bonds and Broadway and a clerk . . . Their manner was rough, and they convinced me I could not leave without being stopped. Bonds carried a gun. This was the only one I saw.”
. Appellee’s explanation of subsequent treatment is that “They took me down to Mr.' Broadway’s car. Some of them got behind me and some in .front of me and seemed to be crowding me close. We drove to the police station and they charged me with trespassing and made another charge . They didn’t docket me for that— I don’t know why.”
Appellee says he was locked up about eleven o’clock and was not permitted to communicate with his family. He remained in jail until the morning of December 101
The record reflects that when appellee was brought to the police station December 8, Chief of Detectives McDougal noted on the docket that appellee was to be held on suspicion.
At the hearing December 10 Bonds exhibited a quantity of sheet copper upon which the name “T. II. Quick” had been written with chalk. Appellee testified that Bonds charged him with having stolen the metal. The case was continued until December 17. The accused was then discharged. Between the two hearings he was released on his own recognizance.
Bonds testified that the railroad company had missed “quite a lot” of brass and copper from the yard where appellee was apprehended.
There are three tracks on that part of the property where appellee was stopped, all running east and west. Bonds stationed himself between two cars. On the tlvtrack — to the north — several coaches had been placed in order that they might be destroyed. While sitting in the position selected (to ascertain, if possible, who had been stealing the copper and brass) Bonds heard a peculiar noise. Almost simultaneously two men approached. They proved to be employees who had been working on a switch engine in the shops. The two men had just been relieved from their duties and were going home.
When the two late workers left, Bonds turned to his right. He was then near “the last of the three coaches,” and about 150 yards .from Pike avenue. “I was coming up the track,” he said, “along the dark side of the coaches to where I heard the noise. When I got to within 25 steps behind the two coaches, Quick ran right in between the two coaches and me. I fired two shots after commanding him to halt, and he fell to the ground. I shot into the ground.”
AppeTee insisted he had not been guilty of conduct justifying arrest and refused to go with Bonds. Before taking his leave appellee went with the agent to the supposed place whence the noise came. Two piles of copper sheeting were found. The noise, according to Bonds, “sounded like somebody beating something together.”
On the question of having detained appellee in Monroe’s office, Bonds testified that a clerk named Weaver took appellee’s statement; that appellee voluntarily signed it; that he went willingly with them to the police station where he was turned over to the desk sergeant; that appellee had on two previous occasions been found in the railroad yards and had been asked to stay out; that on one occasion appellee was in the yards “pilfering around”; that there are paths through the property used to some extent by the public, but there was not a path at the point appellee ran from on the morning of December 8.
Bonds insists that appellee was not under arrest.
It is freely admitted by appellee that he willingly went with the special agents to Monroe’s office. But, it is insisted, he was there detained against his will, and was later taken by Bonds, Broadway, and another, to the North Little Bock police station.
At no time was violence used, nor does appellee claim to have been touched. He says that in leaving Monroe’s office some of the agents were in front of him, and some were behind him, and “they seemed to be crowding me. ’ ’
The conduct of the agents in Monroe’s office was described by appellee in response to the leading question: “Tell the .jury, Mr. Quick, just what was the manner of Mr. Monroe and the other officers in there in questioning’ you; that is, whether or not they talked to you in a friendly attitude. I don’t want to suggest; but give the manner of their questioning of you.” The reply was: “Their, manner was rough, and they convinced me I could not leave without being stopped.”
The record shows that at the time referred to by appellee he was being urged to make a statement. The entire transaction seems to have been one of words. The so-called coercion which convinced appellee he could not leave without being stopped was not that of force or threats. There was no suggestion of bodily harm — no “laying on of hands,” no restraint other than that in duced by conversation which appellee characterized as “rough” without repeating" the language used.
Upon reaching the police station the technical accusation was trespassing. But the police officer in charge, seemingly upon his own responsibility, made notation that the accused was being held on suspicion. Certainly there were suspicious circumstances attending appellee’s arrest by Bonds when appellee was commanded to halt, and we think any reasonably prudent officer, or any agent having his employer’s interests in mind, would have looked with misgiving’s upon appellee ’s conduct.
In the question asked by counsel for appellee, referred to supra, as a leading question, Monroe, Broadway, Bonds and Weaver are referred to as “officers.” We must assume, therefore, that they were. Although appellant railroad company at one place in its brief discusses the events as though the agents were private individuals, there is the subsequent statement that “Under all of these circumstances the officers were justified in submitting the facts to the police.”
In 35 A. L. R., at page 680, it is said:
“A railroad company is not liable for false arrest by a detective in its employ, of a passenger at its station, where the latter’s appearance and behavior justified the belief that he had committed, or was about to commit, a felony.”
In support of the foregoing rule, St. Louis & San Francisco Railroad Company v. Wyatt, 84 Ark. 193, 105 S. W. 72, is cited. A headnote to the Wyatt Case is: “A railroad company is not liable for the authorized act of one of its employees in causing the arrest of a passenger if such employee had reasonable cause for believing that such passenger had committed a felony.”
We have not overlooked Missouri Pacific Railroad Company v. Yancey, 180 Ark. 684, 22 S. W. 2d 408. The facts in the Yancey Case are strikingly similar to those in the instant case. There is one material difference: In the Yancey Case White, the special agent, did not testify that Yancey was in the act of committing a felony. On the contrary, he contended that the arrest was made at the instance of the city marshall of McGehee on a different charge.
The case at bar turn's on the good faith of those charged with having falsely arrested appellee.
Our view is that there was probable cause for believing appellee was attempting to take property from the railroad yard.
The judgment is reversed and the cause dismissed.
Mr. Justice Humphreys and Mr. Justice Mehaffy dissent.
The charge spoken of by appellee which was not preferred was that of resisting an officer. | [
80,
-27,
-24,
-98,
26,
-32,
58,
42,
67,
-29,
-25,
-13,
-19,
70,
1,
43,
-23,
-7,
117,
57,
-44,
-77,
7,
51,
-46,
-77,
91,
-59,
-74,
-53,
-27,
-42,
29,
112,
110,
93,
38,
-38,
-27,
-36,
-116,
-95,
-88,
-8,
123,
72,
56,
43,
4,
14,
49,
-98,
-5,
46,
16,
-24,
73,
62,
-49,
-83,
-47,
121,
-111,
77,
-3,
20,
-95,
68,
-65,
1,
-16,
26,
-104,
117,
65,
104,
114,
-122,
-128,
116,
111,
-119,
-124,
34,
-30,
16,
17,
-93,
44,
-56,
-66,
46,
-113,
-89,
-15,
89,
67,
101,
-106,
-99,
-69,
-111,
38,
-4,
-17,
85,
89,
40,
7,
-50,
-76,
-111,
-68,
104,
22,
27,
-61,
-91,
34,
97,
-51,
-122,
94,
101,
112,
-97,
14,
-47
] |
Humphreys, J.
Appellee instituted this suit against appellant in the circuit court of Scott county to recover damages for the total loss of a Buick 1938 automobile, model 4-door sedan, body type No. 41, owned by him, occasioned by an upset or fire that damaged the car so that it could not be repaired and thereby restored to its .value prior to said damage. It was alleged in the complaint that appellant issued to him an insurance policy conditioned that it would pay him the value of the car in case it was damaged by an upset or fire so that it could not be' repaired and thereby restored to its condition prior tó said damage, and further alleged that prior to the upset and fire the car was of the value of $825 and that the accessories thereon were of the value of $92, and prayed for a judgment for $917, less $50 deductible under the provisions of the policy, with a 12 per cent, statutory penalty and a reasonable attorney’s fee.
Appellant filed an answer admitting the issuance of the policy which it alleged contained the following limitation on its liability, to-wit:
“Limitation of liability and method of determining . •same.
“This company’s liability for loss or damage to the automobile described herein shall not exceed the actual value thereof at the time any loss or damage occurs, but in no event shall it exceed the actual cost to the purchaser — assured named herein, and the loss or damage shall be ascertained or estimated accordingly, with proper deduction for depreciation however caused, and without compensation for loss of use, and shall in no event exceed the limits of liability, if any, stated herein, nor what it would then cost to repair or replace the automobile or parts thereof with other of like kind and quality; such ascertainment or estimate shall be made by the assured and this company, or if they differ, then by appraisal as hereinafter provided . . .”
It denied that the automobile was damaged by the upset and fire so that it could not be repaired and thereby restored to its alleged value prior to said damage, but, on the contrary, alleged that the damage thereto was only $220.90 and, if made, would restore the car to its value at the time it was damaged. It also alleged that it had offered to make the repairs or to pay for making them which offer was refused by appellee; and by way of further answer, it stated that when and after the appellee refused to allow the appellant to repair the car with parts of like kind and quality, the other beneficiaries named in the policy demanded payment under the terms thereof, and that the defendant paid the other beneficiaries, under the terms of the policy, $170.90, being the amount of the damage to the automobile, less the $50 deductible.
The prayer of the answer was for a dismissal of the complaint with appellant’s costs.
At the beginning of the trial it was agreed by the parties to this action that appellee was the owner of the .car; that the car was upset and caught fire on highway No. 270 ,in Scott county; that appellant offered to repair the car or replace the automobile or parts thereof with other of like kind and quality; that the Creason Buick Company and the General Motors Acceptance Corporation were also insured under said policy and that the testimony to be introduced should go to the extent of the damages to said car.
At the close of the testimony the appellant asked that the court instruct a verdict for it which request was refused over appellant’s objection and exception.
The cause was then submitted to a jury upon the agreement, the evidence and instructions of the court which resulted in a verdict and consequent judgment in favor of appellee against appellant for $600, from which is this appeal.
According to the testimony, the automobile cost appellee approximately $1,500 and was practically new at the time he bought it, having been used by Creason Buick Company for demonstrative purposes only and the body of same was constructed of steel. At the time it was upset the value of same was approximately $900.
Appellee testified that at the time of the accident the car turned over once and around and over on its back on the top and that the motor was burning- at the time he crawled out and continued to burn for about thirty minutes; that the left side of the car was demolished and that the running gear was damaged so that it had to 'be towed to the garage of Denton-Hughes Motor Company, in Waldron; that it was not in condition to operate on its own power after the accident; that there was some molasses on the seat cover; that he was not a mechanic.
Aleck Lindsay, a witness for appellee, testified in response to several hypothetical questions relative to the condition of the automobile after the accident, that in his opinion the automobile could not be repaired, and restored to its condition prior to the accident.
This witness was a mechanic, but did not see the ear after the accident.
J. E. Smith, who was a mechanic and machinist, and who worked for Denton-Hughes garage at Waldron and who picked up and brought the car to said garage at the request of appellee, testified that when appellee requested him to get the car he told him that it had turned over and burned up; that he found the car lying kind of diagonally across the road with the left side against the bank on a curve, lying on the left side with the top next to the bank; that he turned it back over, turned it into the road and brought it to the garage; that the fire had been confined to the carburetor and wires and that neither the motor nor the body was burned in any way; that he made a test by supplying a little gasoline and found that nothing was wrong with the motor; that the left fender was crushed and that the glass in the doors on the left was broken; that the paint on the hood was injured by the fire, but that the damage by fire was to the wires and carburetor and not to any other part of the car; that the car could have been repaired by replacing parts of like kind and quality.
Appellant introduced four witnesses who Avere skilled mechanics,, experienced in repairing cars, all of whom stated, after examination of the car, that it could be repaired and restored to its value prior to the accident at an expense for parts and labor not to exceed $220. These mechanics made estimates of the cost for repairing the car and restoring it to its condition at the time just prior to the accident including items for new parts and items of labor in repairing same. They all stated that the motor was not damaged and included in their estimate the cost of a new carburetor. Three photographs were taken of the' car after the accident, one showing the front end of the car, another showing the right-hand side of the car and the other the left-hand side of the car. The only injury disclosed to the front -part of the car 'was that the fender was bent, the one showing* the right-hand side of the car showed it to be -in perfect condition. The one showing the left-hand side of the car showed that the windows in the doors were broken out, the handles knocked off and some dents just above the windows in the two doors and two slight dents in the back door below the handle and one scar or damaged spot on the back part of the hood above the carburetor and a little damage to the running board. It also showed that some of the paint just above the doors was cracked off. There was no marked difference in the testimony of the experienced mechanics as to the extent of the injury to the car and the physical condition of the car as represented by the photographs was in accord with the testimony as to the damaged parts or places on the car. It is quite apparent from the photographs that the damage to the body of the car could have been repaired and when considered in connection with the testimony of the four practical and experienced mechanics relative to the extent of the damage by actual observation, the conclusion is irresistible that the car was only partially damaged and in such a way that it might be repaired and restored to its condition at the time of the accident. Appellee was not a mechanic and his testimony to the effect that the motor of the car had burned up can not be regarded as substantial and the testimony of Aleck Lindsay in answer to a few hypothetical questions was wholly improbable and unsubstantial in view of the fact that he did not see or examine the car after the accident We think the substantial evidence in the case relative to the extent of the damage to the car might we’ll be regarded as undisputed,-and, so regarding it the trial court should have found as a matter of law under the evidence that the automobile was not a total loss and should have given the peremptory instruction requested by appellant to dismiss appellee’s action. Appellee predicated his claim for damages on his allegation that the car was damaged to such an extent that it could not be repaired and restored to its condition at the time of the accident: He refused to accept any amount except the value of the car in money at the time of the accident on his theory that it was a total loss under the terms of the policy.
When he refused to allow it to be repaired or to allow appellant to pay for the repairs his co-beneficiaries in the policy, one of whom had sold appellee the car on time and one of whom financed the deal, demanded that appellant pay them the damage to the car and appellant paid them the estimated cost of repairs to same less the $50 deductible under the terms of the policy.
Appellee seems to liave abandoned the car and the record does not disclose who has it except that it is in a garage or was in a garage at Hot Springs.
On account of the error indicated, the judgment is reversed, and the cause is dismissed.
Mehaeey, J., dissents as to the dismissal. | [
-12,
100,
-40,
-84,
25,
32,
42,
82,
-33,
65,
-91,
-109,
-5,
-57,
5,
47,
-26,
25,
117,
74,
-43,
-93,
23,
3,
-106,
27,
-7,
-43,
-67,
75,
-12,
-9,
76,
48,
-54,
5,
-126,
-128,
-59,
-12,
94,
-128,
-71,
-27,
-39,
90,
52,
120,
80,
71,
69,
-113,
-25,
46,
17,
79,
105,
40,
107,
-87,
-64,
-71,
-122,
5,
63,
16,
49,
100,
-104,
33,
-56,
8,
-104,
-79,
16,
-4,
115,
-82,
-58,
116,
111,
-103,
8,
102,
103,
2,
33,
-25,
-52,
-104,
14,
-70,
63,
-90,
62,
88,
43,
13,
-65,
29,
120,
16,
5,
126,
-4,
84,
95,
100,
7,
-114,
-108,
-13,
-51,
102,
-100,
11,
-1,
-97,
-74,
81,
-49,
-32,
93,
7,
126,
-77,
18,
-62
] |
Baker, J.
In this case, Georgia Norton Walker sued her father in April, 1935, to recover the value of certain timber which she alleges he removed from her land without accounting to her for the value thereof.
Since plaintiff seems to be uncertain as to the nature of the suit, we cannot determine whether the suit has been instituted against Norton as a guardian, or curator, or whether the plaintiff is attempting to make him account as a trustee only. In this state of uncertainty, we treat the whole state of proceedings as a scattergun project giving due consideration to all of the record that has been abstracted. The wife of E. M. Norton who was also mother of the appellant owned considerable property at the time of her death. She left a will for its disposition, one- of the provisions of which was that the appellant should have 80 acres of land to be selected by E. M. Norton, who is the defendant in this suit. The remainder of her land was to be divided so that her two other children should share therein, and her husband should take a portion thereof. We get this information from that part of the appellee’s brief wherein a portion of the will is set out. The appellant has contented herself with assertions in regard to the will without abstracting it.
It seems to be undisputed that E. M. Norton, the defendant herein, did not in fact select the 80 acres to be delivered over to his daughter, as was provided by the will of his wife, but permitted the daughter to ..make the selection herself, which she did in 1924 and possession was at that time delivered to her. The trial court found all the issues in favor of the defendant, 'the appellee. Upon this appeal, we are now asked to r'éview ithe decision.
The appellant argues most f.orcefully that, accoxding to the will of her mother, she took a vested right in the property at the time of her mother’s death; that the conduct of her father in cutting and removing timber from the land was an act of waste for which he should now be required to account to her for the value of the timber removed. She says further that the bequest was in the nature of a special grant whereby the entire estate was charged in order that she might receive the full value of this grant even at the expense of the other legatees whom she has made parties.' All of these statements will have to be treated by us as bare assertions for the reason that that portion of the will that has been abstracted by appellees is apparently in contradiction of appellant’s contention. The appellant has furnished no abstract to any portion of the will or other evidence sustaining the theory for which she contends and to which she devotes a large portion of her brief, as if these matters were admitted facts. The portions of the will to which our attention has been called by way of appellee’s abstract and statements therefrom indicate pretty clearly, we think, that Mrs. Norton intended to constitute or make her husband a trustee to take charge of her property, pay her debts, and distribute the remainder of the property, giving to her children their respective interests. To her daughter, Georgia, an 80-acre tract was bequeathed, to be selected and delivered by Mr. Norton. The others received larger bodies of land. A part of this land which Mrs. Norton owned, she and her sister had inherited from their mother, and upon some of this land there was a mortgage. The proof also indicates that Mrs. Norton was sick continuously for a period of several years prior to her death; that there was incurred, by reason thereof, a considerable amount of debts that had to be paid. Her will contained an expressed provision that her debts should be paid. We think that the evidence indicates pretty clearly that E. M. Norton was unable to meet, personally, these obligations incurred on behalf of his wife and which may have been properly charged to him. The fact, however, that E. M. Norton may have been obligated for debts incurred on account of his wife’s illness, and for her support and maintenance, under the conditions' here presented, did not free her estate from the just obligations to third parties who had a right to look to the property for settlement.
Indeed, the appellant herself seems to have pursued her case, upon this same theory, and it is for that reason that she sued the other children of E. M. Norton in order that, their interests in the estate might be charged with the payment of these debts and obligations rather than that the éntire estate should have to account therefor. If the other two children were not sued upon this theory, then they were improperly made parties to the proceedings and should have been dismissed.
Certainly no good or useful purpose can now be served by any attempt. to recapitulate the evidence in regard to the amount of timber cut from lands belonging to the estate or to determine from what particular tracts of lands any part of the timber may have been taken. We have examined all of the evidence presented and we think, according to the weight or preponderance thereof, all of, the timber in controversy cut from the lands belonging to the appellant’s mother, was removed in 192S and the early part of 1924. This was prior to the time that Georgia Walker selected and had delivered to her the 80-acre tract which she received according to the will of her mother. Mr. Norton testified, as did also his brother-in-law, Mr. Bov Clarke, who married Norton’s wife’s half-sister and who inherited the same interest in the lands as Mrs. Norton did, that it was necessary to cut and remove the timber and sell it in order to meet the obligations upon the property and if this had not been done the entire estate might have been lost on account of these debts. Mr. Clarke and Mr. Norton seemed to have acted jointly in this matter, cutting and removing timber, making sale thereof, paying off the mortgage indebtedness on the property, an indebtedness that existed at the time their respective wives inherited the same from their mother.
There is also a strain of evidence running through this entire record that a part of the timber cut from the 80 acres of land selected by the appellant and delivered to her by her father in accordance with the provisions of the will was removed in the course of clearing' the land that it mig’ht be put into a state of cultivation.
There seems hardly a doubt at this time that when the appellant selected this particular tract of land, as she was permitted to do, she was advised by her uncle, Mr. Clarke, to choose another 80-acre tract, but she declined to accept this advice given to her prior to her choice, for the reason asserted by her that it was covered with timber and she preferred the open or cleared land.
Appellant now argues that she did not know at the time she made her choice or selection of the lands that this tract had been denuded of its valuable timber. We are not impressed with that statement for the reason stated and also for the reason that this complaint' made by her, wherein she is now suing to recover the value of this timber, was filed 11 years after she' had made her choice, accepted possession and lived upon the land for that length of time.
She argues now that inasmuch as her father was the executor of the will, or curator, or at least a trustee, he must account, as such for the value of all this timber removed from the 80 acres of land delivered to her. She has argued that the evidence as given by both Mr. Norton and by witnesses testifying on his behalf is uncertain, not positive, and inconclusive, and for that reason the court was in error in deciding the issues against appellant.
From the foregoing it appears that the issues in this case must be determined almost entirely as questions of fact rather than matters of law affecting the rights of the parties. In the absence of proof abstracted from the evidence of witnesses or from the will itself, we must treat the removal of the timber from the lands of the appellant’s mother as authorized by the provisions of the will which provided for the payment of debts from her property, or in the removal of the timber in the clearing of the lands for cultivation. Such removal, in either event, would not be waste.
While this does not dispose of the question arising out of the sale of the timber or its value, the trial court was thoroughly justified in the conclusions reached that the net profits arising- therefrom were accounted for in the payment of debts and about $700 in taxes. The contention that all these obligations should have been charged against other portions of the estate in order to relieve appellant’s 80-acre tract has no foundation in fact or law on the issues presented by this appeal.
We now turn to the final contention made by the appellant that the appellee’s accounting- at this time is wholly unsatisfactory; that witnesses on behalf of the appellee gave testimony indicating- that they could not now be certain either as to the amount of timber removed or the date of removal. Perhaps the sole answer to this contention should be that if after a lapse of 11 years all or any of the witnesses remembered exactly what had been done so long before, the amount of timber cut, the particular tracts from which it had been removed, the nature and kind of timber, and value thereof, such minute recollections would be so contrary to ordinary experience and general observation as to excite a strong suspicion as to the truthfulness of such evidence. Indeed, if after this great length of time one must be charged with minute details and, upon failing- to remember, suffer judgment to be rendered against him, then certainly one who would not recognize the binding effect of conscience would always have a very superior advantage over his opponent.
Perhaps before stating our conclusions, we should add to the facts stated that we are advised by additional abstract of the appellees that Mr. Norton who was named executor was authorized to act without bond; that' several years ago he filed settlement of the estate; that the appellant filed exceptions thereto, and that from the judgment of the probate court, an appeal was taken to the circuit court. We are not advised as to the final result of this litigation. Attention is called to these particular facts in order that it may be seen and determined that this proceeding is. not one to falsify and surcharge the settlement, but seems,rather to be a suit for the construction of a will which is not set forth or abstracted in any particular and for an accounting of matters that have been perhaps disposed of in the probate court or, if not, then snch as were permitted to lie-dormant for a period of 11 years before the institution of this suit.
The record in this case does not support a contention that there has been an open or continuous recognition of a trust since the delivery to Mrs. Walker of the 80-acre tract of land. Indeed, there is every indication to the effect that ithere has -been no continuing trust, nor any recognition of one. We must and do recognize the rule that, if circumstances exist for which there may reasonably be presumed a continuation or unbroken existence of trust relations, no length of time will bar the cestui que tru-st from a right to an accounting. 4 Pomeroy’s Equity Juris., par. 1449.
We have just called attention to the fact that the appellant has argued that evidence of all parties is now unsatisfactory. Certainly the appellant must have expected such a condition to arise and this court has already discussed that kind of a condition in the very early cases of Brinkley v. Willis, 22 Ark. 1, and Martin v. Campbell, 35 Ark. 137. Prom these cases a general rule may be announced as digested therefrom, that whenever an action is brought in equity to compel a personal representative or other trustee to render an account of the funds coming into his hands, the court .will, irrespective of any statute of limitations, take into consideration the lapse of time in determining whether the complainant is entitled to equitable relief, and will refuse to order an accounting if the complainant has been guilty of such laches as to indicate bad faith, or to render it impossible or difficult for the court to do justice between the parties. We think this conclusion is justified and there should be added, that the rule is peculiarly applicable where’ the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impossible. Such announcement was restated in Hammond v. Hopkins, 143 U. S. 224, 12 S. Ct. 418, 36 L. Ed. 134; Patterson v. Hewitt, 195 U. S. 309, 25 S. Ct. 35, 49 L. Ed. 214.
This court is committed to the rule that Long and unreasonable delays wherein prejudice has resulted by reason of change of conditions or loss of evidence, laches may rightfully be invoked against one so neglecting his alleged rights. Norfleet v. Hampson, 137 Ark. 600, 209 S. W. 651; Casey v. Trout, 114 Ark. 359, 170 S. W. 75; Walker-Lucas Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; City of Jonesboro v. Montague, 143 Ark. 13, 219 S. W. 309, are illustrative of conditions wherein delay and changed conditions work an estoppel.
The foregoing- discussion disposes of all the questions determinative of the rights of the parties. Other matters are of such minor importance that they do not warrant further consideration. The conclusion necessarily is that the decree must be affirmed. | [
-15,
126,
-36,
28,
-118,
96,
106,
42,
80,
-125,
33,
83,
-5,
-62,
16,
45,
115,
93,
81,
122,
-57,
-73,
47,
38,
84,
-77,
-7,
-43,
-79,
-52,
-27,
86,
12,
32,
-120,
85,
-61,
-126,
-59,
-112,
14,
12,
-118,
77,
-39,
-16,
48,
-21,
92,
77,
113,
-81,
-69,
41,
53,
71,
104,
46,
111,
57,
80,
-88,
-66,
4,
127,
30,
16,
36,
-104,
-127,
-56,
42,
-112,
52,
-128,
-23,
115,
-74,
-106,
116,
15,
-103,
-120,
114,
70,
35,
109,
-25,
-112,
-104,
38,
114,
-115,
-89,
-44,
8,
1,
105,
-67,
-99,
116,
16,
103,
124,
-20,
-99,
92,
-4,
1,
-113,
-44,
-125,
-113,
-2,
-36,
19,
-25,
-69,
50,
81,
-51,
34,
93,
99,
112,
-101,
-113,
-13
] |
Holt, J.
Appellee, C. J. Flocks, a real estate broker in the city of Fort Smith, Arkansas filed suit in the Sebastian circuit court, Fort Smith district, against appellant to recover a commission of $500 alleged to have been earned by him, and for an additional $16, the cost of an abstract.
He alleged in his complaint that in January, 1938, appellant, through its duly authorized agent, entered into an oral agreement with him whereby appellee was to secure an option for appellant to lease certain lots for filling station purposes.
And he further alleged “That under the terms of said agreement, if the defendant, Lion Oil Refining Company, elected to exercise said option, then the defendant, Lion Oil Refining Company, would pay to the plaintiff, C.. J. Flocks, the sum of $500 for his services-in the matter.
“Plaintiff further alleges and states-that he secured an option on said property as provided for by said agreement; that said option was extended by mutual consent of the parties, and on the........................day of...................:................, 1938, the defendant, through its duly authorized representative, M. R. Springer, notified the plaintiff and the owners of said property that it had elected to exercise said option, and instructed the plaintiff to forward an abstract of said property. Plaintiff further alleges and states that he was caused to expend the sum of $16 to have said abstract brought down to date.
“That the defendant, although, having notified the plaintiff and the owners of said property that it had elected to exercise its option, failed, and refused to carry out said agreement, and refused to pay the plaintiff the sum of $500, which the defendant had agreed to do. ’ ’ Pie prayed for judgment in the sum of $500 for commission and $16 expended for an abstract on the property in question or a total of $516.
Appellant (defendant below) answered denying every material allegation in the complaint, and in addition denied that either Davis McGehee or M. R. Springer, employees of appellant, had instructions or authority to act in behalf of appellant or to bind it in any way as to the option and lease in question, and further “Defendant states that plaintiff did secure a written instrument from the owners of the property mentioned in his complaint, but denies that said instrument of writing was a valid and binding option for the reason that no consideration was paid therefor by defendant, or by anyone.”
The testimony as reflected by the record, stated in its most favorable light to appellee, is to the following effect:
Appellee, Flocks, testified that he is a duly licensed real estate broker in Fort Smith, Arkansas; that about a year and a half ago Davis McGehee, commission agent for the Lion Oil Refining Company, advised him that the company would probably be interested in a location, and he started looking for a location that would be acceptable to the company. He found a location at 11th and A streets that belonged to the Moore heirs, and they stated they would lease the property on a ground rental basis. He notified McGehee, who stated he would take it up with appellant. He secured an option from the Moore sisters and gave it to McGehee, who sent it to Little Rock where it stayed for two or three months.
McGehee later advised him that the option had been lost. He secured another option and gave to Mr. Mc-Gehee, who stated he would send it to Mr. Springer, the division manager, at Little Rock.
That McGehee came to his office and stated that he had been to Little Rock, and that Mr. Springer had advised him that they had accepted the option and asked that the abstract be brought down to date. He called Mr. Springer, the division manager, at Little Rock, to confirm the acceptance of the option, and “A. Definitely. I called him up and in this conversation he definitely stated that they were going to exercise their rights under the option, and if the abstract showed the title good the lease would be made; that he would have the legal department draw a written lease and send it here for signature. Q. Did you ever receive any written notification from the Lion Oil Refining Company to that effect? A. No, sir.” The Lion Oil Refining Company never did make any objection to the title.
That after the option was sent in he agreed to accept $500 as his commission and was asked by McGehee to write a letter confirming this, which he did; that the first option was extended, and at the time it was extended they changed the terms of the lease from ten to fifteen years; that he made his demand for fee of $500, and they refused to pay it; that the abstract was sent in to Little Rock at Mr. McGehee’s request and accepted there. According to the real estate custom, the abstract is never brought down to date and-expenses incurred until .the deal is closed with the exception of title examination. 1
George Ellefson testified on behalf of appellee that he was in Little Rock with Mr. McGehee, and in the office, of Mr. Springer, when the question of this option came up; that following a certain telephone conversation, Mr. Springer walked into the room where witness was and said, “Well, George (meaning witness, Ellefson), I am going to take the 11th and A street location”; that shortly Mr. McGehee came in and Springer advised him in witness’ presence that they were going to take this location, and they went into the office and entered into some discussion as to instructions to be carried on the lease; that he had nó interest in the case.
Davis McGehee testified that he is commission agent for the Lion Oil Refining Company in Fort Smith; that he had talked to O. J. Flocks on numerous occasions in regard to the leasing.of the property on 11th and A streets in Fort Smith; that he secured the information that the Lion Oil Refining Company wanted a new location in Fort Smith; that he talked to Mr. Flocks about securing-an option on it, and talked to Mr. Springer, the division, manager about it. Mr. Springer asked him to go ahead and see what kind .of a deal we could get. The option was secured by Mr. Flocks, and he (McGehee) mailed it to Mr. Springer. Mr. Springer objected to the amount of Mr. Flocks’ fee and Mr. Flocks wrote a letter stating that he would accept $500 for his fee. At the time the preliminary matters were worked out, he was doing this at the suggestion of Mr. Springer and acting for him. He informed Springer what he was doing and Springer called him over the telephone and told him what to do in regard to this matter, and what information to get.
He was in Little Rock on the date George Ellefson was there, and Mr. Springer asked him to go ahead and have the abstract brought down to date and send it to him. He came back that night and notified Mr. Flocks. He told Flocks that Mr. Springer wanted the abstract brought down to date, and that he had agreed to exercise the option. Mr. Springer told him that he had talked to Mr. Rider, the general manager, at El Dorado, and that they had agreed to go ahead with the deal and to get the abstract up to date and send it in. Mr. Springer frequently worlds in connection with making leases and contracts of this kind, and he worked up a similar deal with the Lichty Ice Company; that he had numerous conversations with Mr. Flocks and thinks he told him that Mr. Springer was division manager. As far as leasing is concerned, Mr. Springer and Mr. Burchett have general supervision as to new locations.
Mr. Springer on behalf of appellant denied that Mr. Flocks’ testimony was true where Flocks stated that he (Springer) had absolutely accepted the option in question. He admitted that he had told Mr. McGehee to have the abstract brought down and send it in. He denied that he told Mr. Ellefson he had accepted the deal. That he did not recall the conversation in which Mr. Ellefson told Mr. McGehee that he had accepted the 11th and A street deal, and that he stated, “Yes, I have accepted it.”
The cause was submitted to the trial court, sitting as a jury, and on the testimony adduced, it found for appellee and declared the law as follows:
“The court finds that as a matter of law M. R. Springer, as division manager for the defendant, had actual and apparent authority to employ C. J. Flocks to obtain the option on said property, and in furtherance of said employment had authority to use the services of Davis McGehee; that through these men a valid and binding contract of employment was made on behalf of the Lion Oil Refining Company with the plaintiff, C. J. Flocks, whereby C. J.. Flocks was to receive five hundred dollars for obtaining an option on certain property located in the city of Fort Smith, Arkansas, provided that the option was exercised by the defendant oil company; that C. J. Flocks performed his part of the contract by obtaining the option and the Lion Oil Company, prior to the time the option expired, exercised said option, bnt that thereafter repudiated said agreement and. has failed and refused to pay the said C. J. Flocks for his services rendered according to the terms agreed upon; that the ■plaintiff is entitled to recover a judgment of $516 against the defendant together with all of his costs herein laid out and expended.”
Appellant, in its reply brief, says that the question before us for determination is as follows: “stripped of all. extraneous matter, the question herein presented resolves itself into a simple one: whether the appellee had the rig’ht to rely on the assumption, without inquiry on his part, that Springer, who had no actual authority to exercise this purported option agreement on behalf of appellant, had apparent authority to exercise it, simply because he was the division manager of the appellant-company, charged with the duty of supervising sales in Arkansas. ’ ’
The testimony is practically undisputed that appellee was asked by Davis McGehee, who was acting under direct orders from M. R. Springer, appellant’s division manager at Little Rock, to secure an option on the property in question, and that appellee, Flocks, was to receive a commission of $500 if appellant elected to exercise its rights under the option which Flocks secured from, the Moore sisters. Flocks secured the option, and it was sent to Springer, appellant’s division manager at Little Rock.
We think the trial court was justified in finding from a preponderance of the testimony that Springer, the division manager, acting'as appellant’s agent, told Mc-Gehee and Ellefson that appellant had elected to exercise its rights under the option, to notify Flocks, and to have the abstract brought down to date; that the abstract was brought down to date, forwarded to Springer in Little Rock; that appellant elected to exercise its right to take the lease under the option before its expiration date; that appellee, Flocks, had done all that was required of him, and that thereby appellant became liable to appellee.
It is conceded in the instant case that Springer was the division manager for the entire state of Arkansas for appellant, and that necessarily, therefore, his territory included the city of Fort Smith, and we think that there was substantial testimony in the record to warrant the holding of the trial court that Springer was- acting as the agent of appellant with actual and implied authority to make the deal in question. Corporations must of necessity act through their duly delegated agents.
This court in the ease of American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50, in distinguishing between a general agent and a special agent, said:
“A general agent, unless he acts under a special and limited authority, impliedly has power to do whatever is usual and proper to effect such a purpose as is the subject of his employment. Hence, in the absence of known limitations third persons dealing with a general agent have a right to presume that the scope and character of the business he is employed to transact is the extent of his authority. This rule, as already stated, does not apply when limitations upon the authority of the agent have been brought home to the knowledge of the third person dealing with them. . . . The authority of a special agent must be strictly pursued, and those dealing with him must at their peril determine the extent of his authority ; for, as in the case of acts and transactions of a general agent, a special agent cannot bind his principal by acts outside of the scope of his authority.”
In Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130, this court held (quoting headnote): “A principal is not only bound by the acts of his general agent done under express authority, but he is also bound by all acts of such agent which are within the apparent scope of his authority, whether authorized by the principal or not.”
And again in Standard Pipe Line Co., Inc., v. Haynie Const. Co., 174 Ark. 332, 295 S. W. 49, this court, quoting from 2 C. J. 573, said: “Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; shell authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.”
While it is true, as appellant contends, that no valuable consideration was paid for the option in question and that the case of Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299, is a correct declaration of the law as applied to the facts in that case, the principle announced in that case does not apply here for the reason that appellant elected to exercise its right to the lease of the property in question under the terms of the option before the option had expired.
In the instant case the Moore sisters, procured by Flocks to make the lease to appellant, were at all times ready, able, and willing to perform, but were prevented by the action of appellant. Such action on the part of appellant could not defeat appellee’s commission.
In Reeder v. Epps, 112 Ark. 566, 166 S. W. 747, this court held (quoting headnote) : “When A. employed B. to sell land for him, an obligation is implied on A. ’s part not only to furnish a good title, but a marketable one, and if A. fails to do so upon the production by B. of a purchaser ready, willing, and able to buy the land, B. earns his commission, notwithstanding a defect in the title which prevented the sale. ’ ’
And in Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332, this court said: “We have stated the law to be that, ‘in the absence of a special contract providing otherwise, an agent employed to sell or find, a purchaser for land earns his commission and is entitled to recover the same when he procures a purchaser ready, willing, and able to buy upon the terms named, and the principal enters into a binding contract with the produced purchaser, or, having an opportunity to do so, declines to accept the purchaser.”
And in 8 American Jurisprudence, 1089, the author announces the rule as follows: “Although the contract negotiated is void by reason of the statute of frauds, if the party procured by the broker is ready, able, and willing to perform, and the performance is prevented solely by the employer, the broker will be entitled to his commissions.”
No errors appearing, the judgment is affirmed. | [
-80,
124,
-96,
12,
-56,
64,
40,
-110,
-47,
-31,
55,
83,
-51,
108,
4,
125,
-26,
125,
-44,
104,
23,
-77,
71,
115,
-45,
-13,
91,
-27,
-75,
-51,
-27,
-42,
8,
32,
-62,
85,
-94,
-62,
-59,
-98,
70,
-87,
-115,
96,
-39,
0,
48,
43,
17,
75,
17,
-99,
-5,
44,
25,
-53,
77,
44,
127,
41,
-48,
-8,
-54,
12,
127,
7,
16,
100,
-104,
75,
88,
78,
-112,
116,
9,
-48,
115,
54,
-62,
84,
111,
-103,
8,
36,
102,
0,
-123,
-27,
56,
92,
47,
-34,
13,
-90,
-78,
80,
66,
1,
-74,
-98,
120,
6,
-109,
-10,
106,
-107,
93,
108,
3,
-82,
-42,
-93,
47,
-31,
-97,
11,
-1,
-121,
48,
112,
-51,
-30,
93,
87,
118,
-97,
-122,
-80
] |
Holt, J.
Appellants bring this appeal from a judgment of the Clark circuit court on a jury’s verdict, in the sum of $8,000, in favor of appellee, for injuries alleged to have been sustained by him while a passenger on a motor bus of appellant, Missouri Pacific Transportation Company.
This record reflects, according to appellee’s testimony, that he, Ralph Kinney, at about five o’clock on the afternoon of July 1, 1938, boarded appellants’ bus at Brinkley, Arkansas. He walked down the aisle, which was about fourteen inches wide, toward the rear, looking for a seat. As he did so, the bus driver, J. H. Rampey, one of the appellants, followed close behind him within about two feet, carrying a suitcase in front of him at an angle of about forty degrees, and just as appellee was in the act of taking a seat the bus driver attempted to lift and swing the grip up into a rack on the side of the bus.- In doing so, the grip, which was about twenty-four inches long, struck the rear part of the right arm of appellee just above the elbow, bruising the arm and causing an injury to the ulnar nerve.
A Mr. Crawford, witness for appellee, testified that he'had gone to the bus station at the time appellee was injured to confer with appellee on a matter of business, He saw appellee board the bus, walk down the aisle toward the rear and just as appellee turned to take a seat 'he' saw the bus driver strike appellee’s elbow in the manner as described by appellee. “A. Yes, he started to throw it up on the rack and it struck Mr. Kinney on the right arm — somewhere about the elbow.” This' witness was standing on the curb within a few feet of the bus and saw him clearly through the window.
On the morning following the injury, July 2, appellee was examined by Dr. Stewart, a physician in Wynne, who testified that upon examination he found appellee’s elbow discolored and bruised. He X-rayed the arm but found no fracture but did find the ulnar nerve bruised. He put appellee’s arm in a sling and used antiseptic treatment to draw the soreness and swelling out of the arm. He treated appellee at different times up until the day of the trial, and “Q. Taking into consideration the time he received the injury, the first day of July, 1938, and the condition it is' in now, in your opinion, is that injury and condition to this arm permanent? A. It looks mighty badly like it. Q. It looks like it is a permanent injury? A. Yes. Of course, there is a chance that it might improve, but it had not improved in several months. ... I am not a nerve specialist or a.bone specialist and I don’t pose as one.”
Dr. F. W. Carruthers, a nerve and bone specialist of Little Rock, is the principal witness relied upon by appellee as to the nature and extent of his alleged injury, and he testified that appellee came to him for treatment and that he gave him a thorough examination with the following findings: “A. . . . This examination revealed that the hand had a reddish, bluish appearance and the tactile examination for paius demonstrated that there was an area of anathesia following the course of the ulnar nerve over its distribution of the lateral aspects of the arm down to the.ring and little fingers. There is no motor disturbances to this nerve. My opinion is that this is a traumatic neuritis and I advised him to have an exploratory operation in order to free this nerve from around its bed of adhesions and where he sustained the blow to a bed of soft tissue for the nerve. ’ ’
Dr. Carruthers operated on September 27th and “I found scar tissue covering over the nerve where it passes through the area of the elbow overlying the humerus. There was definitely a path of adhesions which was where I freed the nerve and lifted it up and placed it in a soft bed by transplantation of the soft tissue in the bottom bed. The wound closed without drainage and the arm was immobilized. Since the operation, Mr. Kinney came to my office for several months using physio-therapy treatments. Q. Doctor, what effect did the injury you found to this ulnar nerve in his right arm have on his arm? A. This scar tissue that is found binding the nerve down could have produced both motor and sensory disturbances, because the ulnar nerve is both a motor' and sensory nerve, but tests with an electric machine and by nerve degeneration, it responded to stimilae of electricity, which showed motor functions. This scar tissue was definitely binding the nerve; it evidently only involved the sensory side of the nerve. . . . There is more or less of what we call a sympathetic disturbance that naturally goes along with that and that would cause impairment in the motor side of the nerve. That, of course, is mental because of the disturbance of the sensory nerve itself.”
Dr. Carruthers further testified: “Q. He had no injury except to the ulnar nerve? A. That is all I found. . . . Q. But the nerve does not stick to the sheath, does it? A. You mean to- the nerve filament? Q. That’s right. A. No, they are not adhered to the sheath. . ■ . . Q. Where was the scar tissue with respect to the sheath? A. Bight on top of it. Q. And what you did was to take it off? A. Yes, sir. . . . Q. That sheath wasn’t broken, was it? A. No. Q. And the nerve was not broken? A. No. Q. And the motor nerve was not damaged? A. No, I tested that out. . . . Q. There wasn’t anything wrong with any of the nerves except the ulnar nerve, was there? A. Yes. Q. And there wasn’t anything wrong with that except the scar tissue and you removed the scar tissue? A. Yes. . . . Q. It is not an unusual operation? A. It is not an unusual operation,no. . . . Q. Have you observed whether or not Mr. Kinney has lost any weight? A. No, I couldn’t say I have observed that. . . . Q. Have you examined him to know what his nervous conditions are? A. No, I have not. . . . Q. Now, Doctor, is he anything like well yet? A. No, sir. Q. Could you tell with any degree of accuracy when he would be well? A. No, I couldn’t state with any degree of accuracy when he would be. Q. Or whether he ever will be well ? A. No, sir. ’ ’
Appellee Kinney further testified: “Q. What did he (Dr. Stewart) do for your arm? A. He had me go home and put hot packs on it. . . . Dr. 'Stewart sent me to Dr. Carruthers in Little Rock . . . sometime in September. . . . Q. Tell the jury whether or not it is better now than it was four or five months ago? A. It is not. The feeling in the bottom part of my hand plumb numb and dead before the operation — it has more feeling now, but no more use. Q. Can you use it at all? A. I can use it some, yes, sir. . . . Q. You don’t claim and haven’t claimed at any time that you had anything wrong with your arm except that you. had a tingling feeling in your arm and pain in the forearm and .hand ? A. There is quite a bit of numbness there. Q. The numbness was just numbness that comes from striking your funny bone, wasn’t it? A. I don’t know. Q. You have had that many times? A. Not like this. Part of my arm was just dead and didn’t have any feeling in it. Q. For how long? A. I would say two months. Q. Two. .months? A. Yes, sir. Q. Had the numbness gotten over with at the time you saw Dr. Carruthers? A. No, it was continually getting worse all the time. Q. And when he operated on your arm, it went away? A. No, it hasn’t all went away, but it has more feeling than it did. Q. In other words, as far as the numbness is concerned, it is getting better? A. You caii feel those fingers (indicating) and before, you couldn’t feel at all.”
Appellee Kinney also testified as to his earnings before and after the alleged injury. “Q. In 1936 you didn’t say that you and your partner together made as much as twenty-five hundred ($2,500) dollars? A. I said around that. Q. And in 1937 you said you made around five thousand dollars ($5,000) ? A. Yes. Q. And in 1938 in the springtime, you made more than five thousand dollars ($5,000)? A. 1938 hasn’t been gone very long. Q. Most of thát was made in the spring? A. No, sir. Q. When was it made? A; Along through the summer. Q. In.the spring and summer? A. Yes, the bigger part of it. Q. And your business for 1939 is just opening up? A. That’s right.”
Doctors testified on behalf of appellants, two of whom being specialists on nerve and bone injuries. One a partner in the Campbell Clinic of Memphis, testified positively that there was nothing wrong with plaintiff’s arm and elbow, no symptoms indicating any injury to the ulnar nerve, and that in his opinion appellee’s arm was normal in every particular.
On this state of the record appellants insist (1) that there is no substantial evidence to go to the jury and that, therefore, the trial court erred in refusing to give a peremptory instruction in their favor; and (2) they contend that the verdict is excessive.
On the first assignment it is our view that when the testimony is considered in its most favorable light to appellee that it is sufficient to take the case to the jury. The question of negligence of appellant’s bus driver and the contributory negligence of appellee were clearly on this record within the province of the jury to determine and were submitted under proper instructions. We conclude, therefore, that appellants’ first assignment cannot be sustained.
Appellants’ next contention that the verdict, of $8,000 is excessive, is well taken and must be sustained.
In the instant case the trial court instructed the jipry, over the objections and exceptions of appellants, to assess such damages as would reasonably compensate appellee for “the physical pain and .mental anguish suffered and endured by him in the past, if any,, and that which he will endure in the future,” “the effect of the injury on his health,” “pecuniary loss from his diminished capacity for earning money through life, if any.”
Before such a recovery can be allowed, the permanency of the injury must be made to appear from the evidence with reasonable certainty and that future pain and suffering- are inevitable and if they appear to be only probable or' uncertain they cannot be taken into the estimate.
In the case of St. L. I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104, the rule is clearly stated by this court in the following language: “The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury. A. L. Clark Lumber Co. v. St. Coner, 97 Ark. 358, 133 S. W. 1132. See, also, Ark. & La. Ry. Co. v. Sain, 90 Ark. 278, 119 S. W. 659, 22 L. R. A., N. S. 910; 13 Cyc. 144, and cases cited.
“Mr. Hutchinson says: ‘The jury may take into consideration future as well as past physical pain and suffering; but to justify them in doing so it must be made reasonably certain that such future pain and suffering are inevitable, and if they be only probable or uncertain they cannot be taken into th'e estimate.’ 3 Hutchinson on Carriers, § 805, and cases cited’; Chicago, Rock Island & Pac. Ry. Co. v. Archer, 46 Neb. 907, 65 N. W. 1043; Smith v. Milwaukee Builders & Traders’ Exch., 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912.
“The experts on behalf of appellee did not testify that, in their opinion, the injury to Wharton Bird was permanent. It was a matter of speculation with them as to whether it was permanent or not. This being true, it must also have been a matter of conjecture with the jury. But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to find that such was the fact; and the court should not allow the permanency of the injury to be considered as an element of damage, where the witnesses themselves are uncertain as to whether there would be any permanent injury, and where the nature of the injury, per se, does not show that the injury was permanent.”
This rule of law, as announced in the Bird case, has been approved by this court in many cases, among them being the following: Midland Valley R. Co. v. Scoville, 109 Ark. 29, 158 S. W. 954; Scullin v. Vining, 127 Ark. 124, 191 S. W. 924; McCord v. Bailey et al., 195 Ark. 862, 114 S. W. 2d 840.
It is our view that the testimony in the instant case, when viewed in its most favorable light to appellee, falls short of making it reasonably certain that appellee received a permanent injury and that it is inevitable that he will endure future pain and suffering.
The effect of the testimony of his own doctors, and especially that of Dr. Oarruthers, who operated upon appellee and is certainly in the best position of anyone to judge of the extent and effect of the injury complained of, does not show with that degree of certainty required under the above rule, that the alleged injury will be permanent or that there will be future pain and suffering.
The effect of this expert testimony is that the ulnar nerve, which affects only the little finger and part of the “ring” finger of the hand, was found to be uninjured and the sheath inclosing it unbroken. The only thing that retarded its functions at all was the scar tissue in which it was found to be embedded and this scar tissue was removed and the nerve released from the binding scar tissue and re-embedded in soft tissues which restored it practically to a normal state.
In view of contentions of appellee that his injury was permanent and that he would be subjected to future suffering, it is apparent that the jury took these elements of damage into consideration, although there is no testimony to sustain a finding of this nature.
While we think the testimony, did not warrant the giving of the instruction on permanent injury and future pain and suffering, in the form it went to the jury, any prejudice resulting to appellants may be removed by reducing the judgment to the largest amount the evidence warrants, which we think is $4,000.
If, therefore, appellee will within 15 days from'the date of this opinion, remit the amount of damages down to $4,000, the judgment will stand affirmed for that amount, otherwise, the judgment will be reversed and the cause remanded for a new trial. | [
48,
-19,
-96,
14,
8,
74,
122,
-118,
113,
-125,
-75,
-45,
-83,
-19,
5,
105,
-9,
-83,
-43,
123,
-77,
-77,
86,
98,
-46,
-77,
123,
69,
-77,
107,
-92,
-9,
77,
112,
74,
21,
38,
74,
-59,
28,
-114,
-96,
-87,
-24,
89,
-104,
56,
119,
86,
7,
49,
31,
-22,
40,
24,
66,
45,
109,
107,
-86,
-45,
-79,
-62,
5,
-35,
66,
-95,
4,
-97,
5,
-40,
24,
-112,
-76,
32,
-8,
48,
-90,
-126,
-44,
99,
-103,
4,
32,
102,
32,
-100,
-123,
-72,
-88,
46,
122,
45,
-123,
-118,
40,
73,
1,
-106,
-101,
83,
84,
14,
-6,
-7,
89,
28,
36,
7,
-114,
-108,
-79,
-33,
-95,
30,
42,
-29,
15,
20,
117,
-52,
-94,
92,
69,
51,
-101,
-102,
-78
] |
Humphreys, J.
Appellee filed this suit -against appellants in the chancery court of Lawrence county, eastern district, on August 31, 1937, to obtain judgment for a balance of $375.48 due for building materials it furnished to R. A. Robins & Sons, contractors, with which to construct a church building on lots 5, 6, 7 and 8, block 40, original town of Walnut Ridge, belonging to the Church of Christ..
It was alleged that it sold R. A. Robins building materials in the sum of $827.48 which were used in the construction of the church building and charged same to him., the last item sold being on July 10, 1937, and that he made payments thereon from time to time leaving an unpaid balance of $375.48, for which it was entitled to a material man’s lien on said property.
Summons directed to the sheriff of Lawrence county was issued against the trustees of the Church of Christ, H. B. Holder, J. H. Hathcoat and John L. Fry, on the day suit was filed and issued and directed to the sheriff of Sharp county for the contractors and served September 2, 1937. The summons which was directed to the sheriff of Lawrence county was delivered on August 31, 1937, to E. H. Tharp, attorney for the plaintiff, who retained same until October 26, 1937, when he delivered same to the sheriff. Summons was not served upon the trustees of the Church of Christ until October 27, 1937.
On September 21, 1938, the contractors moved to dismiss as to them because the service of summons was served upon then in Sharp county instead of in Lawrence county.
On November 17,1937, the Church of Christ, through its trustees, filed a motion to dismiss the complaint against it for the reason that' the summons which had been issued on the 31st day of August, 1937, against them and delivered to appellee’s attorney, E. H. Tharp, hád not been served upon them prior to the returnable date of same which was September 21, 1937, and that on account of the summons being out of date service thereof on them on the 27th day of October was not sufficient. The summons was quashed and an alias summons was issued and served on them on the first- day of December, 1937.
The Church of Christ, through its trustees, filed an answer specifically pleading that appellee failed to give it notice within ten days that it held a claim against the building for materials furnished in accordance with § 8876 of Pope’s Digest and that it failed to file its account within ninety days after the date of the last item with the clerk of the circuit court as required by § 8881 of Pope’s digest.
Depositions were taken in the case and the cause was submitted to the court upon the pleadings and the evidence from which it found that all parties were properly before the court and that it had jurisdiction to try the cause resulting in a judgment in favor of appellee against the contractors, R. A. Robins, Cleo Robins and Noble Robins and the Church of Christ for $375.48 together with 6 per cent, interest thereon from August 31, 1937, per annum until paid and for a lien on said real estate for the amount so adjudged and an order of sale of said real estate to pay the same, from which is this appeal.
There is no dispute in the evidence as to the amount due for the materials furnished and that same were used in the construction of the building.
A preponderance of the evidence reflects that the reason the original summons was not served immediately upon the trustees of the Church of Christ was that the trustees made a request of the attorney, E. H. Tharp, not to serve same upon them and incur further costs as it was their intention to pay the judgment and take a judgment against the contractors for the amount and that they would waive the service of the summons and enter their appearance; that this agreement was entered into before the expiration of ninety days after the date of the last item appearing on the account. We think this agreement rendered it unnecessary to get further service upon them and they are estopped by virtue of said agreement to plead that the suit was not brought within ninety days after the date of the last item on said account. The law is well settled that it is unnecessary for a lien holder to give ten days notice of its lien to the landowner if suit to enforce same is brought within ninety days from the date of the last item furnished appearing on the account. Simpson v. Black Lbr. Co., 114 Ark. 464, 172 S. W. 883. The last item appearing on the account was July 10, 1937, and the suit was brought on August 31, 1937, within the ninety-day period, and since the trustees entered their appearance to the suit the service upon the contractors in Sharp county was valid.
Appellants contend for a reversal of the judgment on the ground that the church was an unincorporated society and not subject to a personal judgment. They cite the case of District 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546, in support of this contention, but they overlook the fact that §§ 8874 and 8875 of Pope’s Digest specially provide for judgments against churches or charitable institutions whenever any trustees, deacons, elders, vestrymen or any committee of any religious organization, or charitable or benevolent institution fail to exact bond of the contractor where the contract exceeds $100 for construction, improvement or repairs on said building.
Under these sections the court correctly rendered a judgment against the contractors and against the church and in declaring a lien upon the property of the church for the payment of the balance due for the materials furnished to construct same.
No error appearing the judgment is affirmed. | [
-76,
96,
-8,
-36,
-102,
-127,
106,
106,
123,
-95,
-9,
87,
-19,
-62,
65,
63,
-29,
109,
117,
121,
-59,
-77,
51,
48,
80,
-13,
103,
-59,
-79,
77,
-74,
-9,
72,
53,
90,
29,
-42,
-120,
-51,
20,
-114,
-128,
45,
-20,
-39,
-55,
52,
-65,
116,
15,
53,
-90,
-9,
47,
52,
99,
72,
40,
109,
41,
81,
-55,
-122,
-59,
124,
15,
1,
71,
-102,
1,
108,
17,
-88,
53,
2,
-88,
115,
-90,
-62,
-11,
83,
-103,
9,
36,
-62,
2,
-75,
-67,
-64,
-103,
14,
-78,
29,
-89,
-93,
73,
-78,
41,
-74,
-99,
117,
80,
7,
126,
-20,
-60,
93,
104,
3,
-49,
-106,
-105,
-113,
100,
-102,
7,
-13,
-99,
48,
81,
-49,
-126,
94,
-57,
48,
-101,
30,
-39
] |
Smith, J.
There are no controverted questions of fact involved in this appeal. They are as follows: The Cross County Bank brought this suit to foreclose a deed of trust executed to it by John D. King and Annie B., his wife, on March 5, 1932, to secure the payment of a note executed by King and wife to the order of the bank. Payments of principal and interest had reduced the balance due on the note t.o the sum of $4,800. The property mortgaged consisted of certain lots in the city of Wynne owned by King’s mother at the time of her death. King was the only child of his mother, Callie E. Harris, who died testate in 1916. Her will was duly probated.
Pleadings filed raised the question of the power of Kang to execute this deed of trust, and of its validity, and the answer to this question turns upon the proper construction of the will, the relevant portions of which appear in paragraphs fifth, sixth and eighth thereof. They read as follows:
“Fifth. All the rest and residue of my property, whether real, personal or mixed, other than heretofore or hereafter excepted, I devise and bequeath to my trustees hereinafter named and constituted, in trust for ■my son, John Devine King.
“I direct that my said trustees shall, after deducting the expenses of handling my estate, pay to my son, John Devine King, the sum of one hundred dollars each month, unless he shall become sick or disabled; in such event the amount shall be increased in proportion to meet the demands, of such illness or disability, according to the judgment of my said executors and trustees. The said monthly income which is to he paid to my son John Devine King, shall be free of any of his debts or obligations, made by him either before my death or thereafter.
“Should my son, John Devine King, marry and die leaving issue, while the trust herein created is in force, as to the whole or any part of my estate, then I direct that this trust continue the income to be paid proportionally for the maintenance and education of said issue; each child to receive its pro rata of the principal upon becoming twenty-one years of age; but should my son, John Devine King, die without issue then I direct that my estate remaining at that time shall be distributed as follows. Divided into nine equal parts, one ninth to my brother, Isaac Block, to be held in. trust .by him for my niece, Eugenie Block; one ninth to my sister, Julia F. Block; two ninths to my brother, William M. Block, for his grandson, Allie Block, and my nephew, Sam Block; two ninths to my brother, J. D. Block, to be held in trust for my nephew, Maurice F. Block, and my niece, Mildred Wilkinson; three ninths to my brother, E. L. Block, to be held in trust for my nephews, Kennedy Block and Oscar Block, and my niece, Florence Block.
‘ ‘ Sixth. I hereby direct that my executors shall not dispose of any of the farm lands embodied in my estate for a period of fifteen years after my death. My home is to be disposed of in accordance with the terms made and agreed to in the presence of my brothers, Isaac Block and E. L. Block. . . .
“Eighth. I hereby constitute, name and appoint my brothers, Isaac. Block, J. D. Block and E. L. Block, and my son, J. D. King, executors of this, my last will and testament, and trustees for the purposes herein designated to be exempt from giving bond' in both capacities. Should all except one of my executors and trustees die either before or after assuming tlie duties of this trust then I name and constitute the Bank of Commerce & Trust Company of Memphis, Tennessee, as executor and successor to this trust; but should two of my executors and trustees herein named be alive, then they shall at all times have all the powers herein delegated to the four until my estate has been wound up, as herein provided.
“In discharging the trust herein created and their duties as executors or trustees the concurrence of two of my said trustees shall have full power as herein recited to sell, convey and dispose of my estate and personal property and pass a good title thereto according to the terms as previously herein mentioned in my will as fully and completely as if I were alive and acting.”
The will was prepared by J. D. Block, one of the trustees named therein, who was a brother of the testatrix, and known to the members of this court as one of the state’s ablest and most successful lawyers. The will exemplifies the difficulty of preparing an extended statement which is susceptible of only one meaning. We are now required to construe this will, and, in construing it, must keep in mind that the cardinal principle is to ascertain the intention of the maker of the will.
In the case of Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, it was said that “We must 6look to the will to determine the testator’s intention, but in getting this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed.”. To the same effect is Ellsworth v. Arkansas National Bank, Trustee, 194 Ark. 1032, 109 S. W. 2d 1258.
All persons referred to in the will were properly made parties, and the bank, in its complaint, prayed the court to declare King to be the present owner of the fee-simple title to the mortgaged property. The Bank of Commerce & Trust Company, of Memphis, Tennessee, which had been made a party defendant, to the foreclosure suit, alleged that it had no information with reference to the matters set forth in plaintiff’s complaint, and that at no time had the Memphis bank attempted to. act as trustee, and it disclaimed any interest in the will, and declared its purpose not to act as- trustee, and ex-. pressly refused to serve as such.
The answer filed by King and wife admitted the execution of the note sued on and the mortgage securing it, and admitted owing the balance alleged to be due on the note. They prayed the court to declare them to be the owners of the mortgaged property in fee, to the end that they might refinance their loan. King’s answer alleged that all the trustees named in the will, except himself, were dead. He alleged that, in addition to the town lots which he had mortgaged to the bank, his mother, at the time of her death, was the owner of other city property and farming lands also, title to all of which he had acquired under his mother’s will.
When the Bank of Commerce refused to serve as trustee, the plaintiff, Cross County Bank, filed a motion requesting the court to appoint a trustee in its stead, and upon this motion the court appointed O. H. Pool as substituted trustee, who filed an answer averring that the will had created a spendthrift trust, which had not been and could not be terminated during the lifetime of the testatrix’s son, and denied that he had any interest in the property which could be sold under the deed of trust which he had executed.
The testimony was to the following effect. Isaac Block, R. L. Block and J. D. Block, three of the trustees named in the will, were brothers of the testatrix, the fourth trustee, John D. King, was her son. The sum of $100 per month was paid King regularly each month from April, 1916, to May, 1929, since which time no payments have been made him. King is now 54 years of age, and was married to his co-defendant, Annie B., in 1919. No child has been born to them.
All the trustees, except King, are now dead, but on May 6, 1929, the four trustees executed to King their executor’s deed, which recites that it was executed pursuant to the powers conferred upon them by the mil, which deed conveyed to King the property devised in the will. On December 29, 1928, the beneficiaries named in paragraph “Fifth” of the will executed to King quitclaim deeds Conveying to him any and all interest in the estate devised to them by the will. All persons in being have conveyed to King their interests in this estate, and no others now have any interest under the will except children born to King, if any there should be. This possibility remains.
The court below was of opinion “That under the povisions of the last will and testament of Oallie E. Harris, deceased, the executors and trustees named'therein had a legal right to convey in fee-simple to John D. King and Annie B. King, his wife. . . .”, the property mortgaged to the plaintiff bank, and decreed the foreclosure of the deed of trust. From that decree the substituted trustee has appealed.
The case of Bowlin v. Citizens Bank & Trust Co., 131 Ark. 97, 198 S. W. 288, 2 A. L. R. 575, is relied upon by appellant substituted trustee, to sustain his contention that a spendthrift trust was created by the will, and that, where such a trust has been created, equity will not recognize a merger, even where there is a union of legal and equitable estates, in the same person, if the effect of such a merger is to destroy a valid trust and to defeat the will of the party creating the trust.
This Bowlin case, supra,, which is extensively annotated in 2 A. L. R., p. 575, recognized and decided for' the first time the right of one to create a spendthrift trust by will in this state, and supports the appellant’s contention that the cestui in a trust may not terminate or defeat it by the acquisition of the legal title to the property upon which the trust rests. See; also, Sheridan v. Krause, 161 Va. 873, 172 S. E. 508, annotated in 91 A. L. R. 1087, where many cases on this subject are collected.
If, therefore, a spendthrift trust was created, equity will not permit it to fan through the lack of a trustee to execute and perform its provisions, but will appoint a trustee for that purpose. We have, therefore, for decision the question whether a spendthrift trust, was created.
The question stated is, by no means, free from doubt. The trust created has the characteristics of a spendthrift trust, but it appears to us to fail in one essential respect, and that is in the matter of discretion which was vested in the trustees. We get the impression, and are of the opinion,. that, while the testatrix sought to protect her son from his improvidence and from misfortune, and, to that end, created what would otherwise be a spendthrift trust, yet, it was to be such only so long as the trustees, her brothers, should, in their discretion, continue it as such.. With a mother’s solicitude, the the testatrix sought to protect her son, but she had not wholly lost faith in his business capaccity, for she constituted him one of the four trustees, and empowered two of them to act, and in these trustees she placed a discretion as to the disposition of the trust estate, to which we will later refer.
Section 923 (p. 557) of Jones on Arkansas Titles reads as follows:
“A spendthrift trust is one created to provide support for designated beneficiary and to guard against his improvidence. It impounds the corpus of testator’s estate in such a way that the cestui cannot receive it, or even the income therefrom except at certain intervals.' All power of alienation of the trust fund is withheld from the cestui. [Bowlin v. Citizens’ Bank & Trust Co., 131 Ark. 97, 198 S. W. 288], 2 A. L. R. 575. It is also protected against his creditors. 39 Cyc 40, see [Leigh v. Harrison, 69 Miss. 923, 11 So. 604], 18 L. R. A. 49, as is the income, Re Hull’s Estate, 248 Pa. 218, 93 Atl. 944, 2 A. L. R. 855, compare [Forbes v. Snow, 239 Mass. 138, 131 N. E. 299], 16 A. L. R. 546 (where vested). No merger of life estate and remainder will defeat the trust. Cestui acquires no vested estate, hut title and absolute control pass to trustee. Such trusts are valid in Arkansas, though not in England and certain states. [Bowlin v. Citizens’ Bank & Trust Co.] 131 Ark. 97, 198 S. W. 288, [2 A. L. R. 575]. May be created in favor of testatrix husband, Phillips v. Phillips, 143 Ark. 240, 220 S. W. 52.
“But a will devising residue to children, subject to control of one of them until a named grandchild obtained his majority, or if such grandchild died before such age, the trust to continue for 10 years after such death, held not to create a spendthrift trust, Black v. Baily, 142 Ark. 201, 218 S. W. 210.”
At § 742, p. 861, (2d Ed.), Kales Estates Future Interests, it is said: “A mere trusteeship, even though it is for the protection of the beneficiaries, ought not, as a matter of taste, if for no other reason, to be called a ‘spendthrift trust.’ Only where there is added to the trusteeship express restraints on alienation is it justifiable to call the creation a spendthrift trust.”
Here, there are no restraints upon alienation, but that power is expressly conferred. Any two of the trustees are given that power, and King was one of those. The will directs that the farming lands be not sold for fifteen years, which limitation appears to imply that the city property might be sold at an earlier date. The will does not provide that the proceeds of such sale shall be impounded and be held by the trustees as a part of the corpus of the estate. The will does provide that the trustees shall pay King the sum of $100 per month, and a larger amount in certain contingencies; but we think it was the testatrix’s intention that such payment should be made only so long as the trustees, in their discretion, permitted the trust to continue. The will does not provide that the payment of $100 per month shall be continued during the life of King, or for any other definite time; but does provide that, “Should my son, John .Devine King, die leaving issue, while the trust herein created is in force, as to the whole or any part of my estate, then I direct that this trust continue, the income to be paid proportionally for the maintenance and education of said issue.” But it was to so continue in the event only that the trustees had not previously terminated the trust.
The trustees evidently construed this will as giving them the right to terminate the trpst at their discretion. They, or any two of them, were given the power ‘ ‘ to sell, convey and dispose of the estate and pass good title thereto according to the terms as previously herein mentioned,” and it was not provided that the proceeds of such sale should be impounded and become a part of the trust estate. The will also provides that “. . . Should two of my executors and trustees herein named be alive, they shall, at all times, have the powers herein delegated to the four until my estate has 'been wound up, as herein provided.”
Here, not two, but all four, of the trustees, King, himself, being one of them, joined in the execution of a deed to King, under date of May 6, 1929. This deed recites that it was executed pursuant to the powers conferred by the will “to make sale of and convey all of said real and personal property,” and for ten years has not been questioned by any one, and is questioned now only because it is necessary for King to refinance his loan to the bank. We are not controlled, in our construction of the will, by that placed upon it by the executors and trustees; but, in view of their intimate relationship to the testatrix, it is a circumstance which cannot be ignored.
We conclude, therefore, that the court below was correct in holding that a spendthrift trust was not created by the will, and the decree is, therefore, affirmed. | [
118,
109,
-36,
46,
-54,
-32,
-86,
-102,
-53,
-7,
-91,
83,
-23,
26,
4,
109,
-10,
61,
-59,
121,
119,
-77,
23,
9,
-46,
-13,
-7,
-35,
-79,
-51,
-26,
95,
76,
32,
8,
-43,
70,
-54,
-57,
82,
-114,
-125,
42,
101,
89,
0,
52,
-21,
86,
9,
85,
31,
-13,
40,
25,
-26,
76,
46,
91,
-68,
80,
48,
-120,
7,
95,
13,
-111,
39,
-72,
-119,
-8,
-82,
-104,
53,
-120,
-8,
51,
-74,
-122,
118,
111,
-101,
9,
118,
98,
0,
101,
-17,
-112,
-104,
30,
-50,
-115,
-89,
-58,
88,
34,
45,
-74,
-97,
105,
16,
78,
-4,
-26,
5,
82,
104,
4,
-49,
-42,
-127,
-99,
60,
-104,
-117,
-61,
27,
32,
113,
-51,
42,
93,
67,
51,
-37,
-114,
-16
] |
Humphreys, J.
Appellant was indicted in the circuit court of Crawford county for the crime of negligent homicide for running over Billy Bradley with a truck on the 23rd day of January, 1938. He was tried and convicted and sentenced to serve a term of six months in the county jail of Crawford county as a punishment therefor and from the judgment of conviction he has duly prosecuted an appeal to this court.
Appellant filed a motion to quash the regular panel of the petit jury because Pearcy Bradley, the father of Billy Bradley, was a member thereof and was one of the prosecuting witnesses against appellant, which motion was overruled by the court over the objection and exception of appellant.
He also filed a motion to continue the cause until the next term of court for the same reason, which motion was overruled by the court over the objection and exception of appellant.
It was alleged in the motions that Pearcy Bradley would have an opportunity to associate with the other jurors on the panel and that, together with the fact that his fellow jurors would be hesitant to return a verdict of not guilty against appellant who was charged with the killing of the son of a fellow juror, would have prevented appellant from getting a fair and impartial trial.
The court in refusing to quash the panel and in refusing to grant a continuance made the following statement :
■“Let the record show that Pearcy Bradley has been regularly selected and impaneled and sworn as a petit juror to serve during the present term of court and that' he is the father and administrator of the estate of Billy Bradley, deceased, and also the prosecuting witness against the defendant, Sam Shockley, and also let the record show that Pearcy Bradley was impaneled this morning and that the said Pearcy Bradley has not served as a petit juror with any of the other members on the regular panel of the present term, of court and for that reason the motions heretofore filed will be overruled and exceptions saved.”
We do not think overruling the motion to quash the panel or to grant a continuance was error since Pearcy Bradley had had no opportunity to associate with the other jurors on the regular panel or that any of the jurors who served in appellant’s case had served with Pearcy Bradley in any other case. In the case of Missouri Pacific Railroad Company v. Watt, 186 Ark. 86, 52 S. W. 2d 634, this court sustained the trial court in refusing to quash the jury panel on a finding by the trial court that the litigant had not yet served on the jury and had not associated with the other members of the panel. It is true the Watt case was a civil proceeding but we see no difference in principle in a civil proceeding and a criminal proceeding. In order to justify a trial court in quashing the panel there must be a substantial irregularity in selecting or summoning the jury, or in drawing the panel by the clerk. Section 3987 of Pope’s Digest reads as follows:
“A challenge to the panel shall only he for substantial irregularity in selecting or summoning the jury, or in drawing the panel by the clerk.”
The trial court did not commit reversible error in overruling the motions as we have concluded that this assignment of error is without merit.
It affirmatively appears from the facts herein stated-that no prejudice resulted to appellant because Pearcy Bradley had served as a member of the regular panel; but the practice should be disapproved of permitting one to serve on the regular panel who has the interest in litigation pending before the court, which Bradley was shown to have had. In such circumstances the jurors should be excused from further service where his interest in pending litigation has been made to appear.
The only other assignment of error insisted upon for a reversal of the judgment of conviction is that the trial court erred in admitting the testimony given by appellant in a civil suit brought by Pearcy Bradley as father and administrator of the estate of Billy Bradley wherein a judgment was obtained against appellant and others in favor of Pearcy'Bradley for himself as father and as administrator in the sum of $5,000.
Appellant did not testify in the instant case and learned counsel for appellant take the position that the admission of his testimony in the civil case was tantamount to compelling appellant to testify against himself and they cite paragraph 8 of article 2 of the Constitution of 1874, which reads as follows: “. . . nor shall any person be compelled in any criminal case, to be a witness against himself. ’ ’
The testimony the appellant gave in the civil suit was an admission as to how the accident occurred and was an attempted justification of his conduct and actions at the time he ran over the boy. This court said in the case of Tiner v. State, 110 Ark. 251, 161 S. W. 195, that: “Evidence of. a party’s voluntary declarations showing how the alleged crime was committed is admissible against him without regard to whether they were favorable or adverse to his interest at the time of utterance. Such testimony, giving the explanation of the defendant himself as to the transaction, is admissible at the instance of the state no matter whether they were against the defendant’s interest at the time he made them or not. ...”
The general rule announced in 16 C. J., §. 1255, p. 631, is as follows: “The admissions which are ■ received against defendant in a criminal prosecution include those which are made by him in civil actions or proceedings, y y
Moreover, in the instant case, no prejudice resulted to appellant on account of the introduction of his testimony given in the civil case which was introduced in the criminal proceeding for the reason that he made the same statement as to how the accident occurred to a number of witnesses whose testimony was introduced prior to the introduction of the testimony he gave in the civil suit. His testimony in the civil suit was merely cumulative of the’ statements he had made to others relative to how the accident occurred.
No error appearing, the judgment is affirmed. | [
112,
-32,
-4,
30,
59,
72,
40,
56,
-40,
-29,
-25,
115,
-21,
-50,
65,
33,
98,
125,
85,
57,
-27,
-121,
55,
81,
-110,
-109,
105,
-41,
54,
-53,
109,
-9,
13,
112,
74,
-47,
-58,
74,
-59,
30,
-114,
-96,
-71,
100,
25,
-120,
52,
127,
84,
15,
17,
-97,
-109,
42,
30,
-25,
105,
125,
95,
-85,
80,
88,
-96,
-57,
-51,
18,
-77,
-92,
-101,
-91,
120,
62,
24,
53,
0,
-24,
51,
-122,
-122,
116,
73,
-103,
8,
102,
54,
1,
12,
-121,
-84,
-71,
30,
62,
-103,
-90,
24,
64,
67,
13,
23,
-33,
122,
52,
30,
-6,
111,
69,
80,
108,
2,
-57,
-72,
-79,
76,
52,
-36,
-77,
-21,
5,
52,
112,
-51,
-14,
94,
7,
91,
27,
-113,
-14
] |
Baker, J.
This suit was filed by the appellant to foreclose a mortgage dated March 1, 1923, due ten years after date. The note secured by this mortgage or deed of trust was payable to the American Investment Company, Inc. On April 10, 1923, the note was assigned and delivered to Catherine Casserly, trustee. The said note and mortgage were delivered to the appellant, Annie Berry, as a part of her share in her father’s estate which estate had been left by will to Catherine Casserly, his widow, and to the appellant, his only child and heir at law.
In this suit, the defendant, Walter B. Paschal, Jr., who was the vice-president and secretary of the American Investment Company, Inc., and G-. A. Hunnicutt intervened. Paschal claimed title to the east half of the northeast quarter, section 12, township 6 north, range 6 west. The allegations were to the effect that on the 25th of September, 1936, the State of Arkansas'by its deed conveyed lands that had forfeited to the state for taxes to one Floyd W. Hamilton. Hamilton on the 19th of December, 1936, conveyed the above described tract of land to Walter B. Paschal, Jr. The allegations to support Hunnicutt’s intervention were substantially to the effect that Catherine Casserly died intestate in Jo Daviess county, Illinois, on or about the second day of March, 1933, and, at the time of her death, she was the owner of the note and mortgage sued on by appellant. Thereafter, Maud E. Smith, who was appointed administratrix of the estate of Catherine Casserly, for value received sold and assigned the mortgage mentioned in the plaintiff's complaint to the Paschal Investment Company. This Paschal Investment Company was a subsidiary or may have been only an allied corporation working in connection with the American Investment Company, Inc. Thereafter, on October 29, 1937, the Paschal Investment Company made a written assignment of the note and mortgage to the intervener, G-. A. Hunnicutt, although neither had actual or constructive possession thereof, who by his intervention asserted his ownership of the same note and mortgage that Mrs. Annie Berry had sued upon in her foreclosure proceedings. In Paschal’s intervention, in addition to his allegations of ownership acquired through the tax title, he asserted that the state of Arkansas, after the forfeiture and sale of these lands to the state, had confirmed said title on June 8, 1936.
The trial court held that Annie Berry was the owner of the note and mortgage and was entitled to a first lien on the lands described therein except that the lien had been' defeated on the 80 acres of land claimed by Paschal under the tax sale and confirmation thereof. Annie Berry appealed from that part of the court’s decree which was a denial of a lien against. Paschal’s land and Hunnicutt appealed from that part of the decree that declared ownership of note and first-mortgage to be in Annie Berry instead of in him as the intervener. These are the. only questions submitted to us for our consideration.
The plaintiff attacks the tax sale and asserts that the 80-acre tract of land was never sold by the collector of White county to the State of Arkansas for taxes due thereon for the year of 1932, and adds to this assertion that “it may be true that the collector attempted to sell the property, but the attempted sale was invalid for these reasons.” There is then set out about ten different assignments or reasons for the invalidity of the tax sale. One is that there was no proper levy of taxes in 1932 payable in 1933, that the taxes were never made and extended on the tax books of White county as provided by law. Second, that no proper appropriation of taxes for the years 1932 and 1933 was ever made and recorded as provided by law.
It is most probably unnecessary to- set out all these different objections urged as affecting the validity of the tax sale. We think it might well be conceded by anyone who would read the record in this case that practically every objection argued by the appellant is in itself sufficient to establish the invalidity of the tax sale except for the effect of the confirmation pleaded by the intervener, Paschal. It may also be said further that the appellant’s contention in regard to these matters is well fortified by the numerous well considered authorities cited. Indeed, we find no fault with the case of Mixon v. Bell, 190 Ark. 903, 82 S. W. 2d 33, as modified in the later case of Lambert v. Reeves, 194 Ark. 1109, 110 S. W. 2d 503, 112 S. W. 2d 33. These cases related to the proper extension of the taxes upon the tax book. We are also acquainted with and gave continued approval to the case of Buchanan v. Pemberton, 143 Ark. 92, 220 S. W. 660; Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15; Quartermous v. Walls, 70 Ark. 326, 67 S. W. 1014, and the very recent case of Ramsey v. Long-Bell Lumber Co., 195 Ark. 528, 112 S. W. 2d 951. All of these cases relate to notice of delinquency to uphold and support a valid forfeiture of sale to the state for the nonpayment of taxes. We see the application made by the citation of authority as the same has arisen under the facts in this case wherein proof shows there was no notice posted or publication of the delinquent lands for sale otherwise given. The mandate of the statute, § 10084 of Crawford & Moses’ Digest, as amended by act 250 of. 1933, was in full force and effect and was wholly ignored, nor is there any doubt that the requirement of the law as to publication of notice was mandatory. See Emerson v. Voight, 196 Ark. 129, 116 S. W. 2d 348; Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091; Hirsch and Schuman v. Dobbs and Mivelaz, 197 Ark. 756, 126 S. W. 2d 116. Such an irregularity, that is, the failure to give the required statutory notice, would have made act 142 of 1935 ineffectual, had it been deemed otherwise applicable. Other recent cases supporting appellant’s contention are Edwards v. Lodge, 195 Ark. 470, 113 S. W. 2d 94; Union Bank & Trust Co. v. Horne, 195 Ark. 481, 113 S. W. 2d 1091; McWilliams v. Clampitt, 195 Ark. 908, 115 S. W. 2d 280, as well as the case that has been perhaps cited more frequently than any other since it was announced, that is Carle v. Gehl, 193 Ark. 1061, 104 S. W. 2d 445.
But notwithstanding this voluminous array of authorities, we are impelled to hold that they are not applicable to the case at bar. The trial judge held that the confirmation of this title cured all the defects. His announcement was undoubtedly founded on the recent case of Fuller v. Wilkinson, et al., 198 Ark. 102, 128 S. W. 2d 251. The cited case gave consideration to act 119 of the Acts of 1935 for the first time. Perhaps no good could be accomplished by reconsidering or reiterating what we said in the last cited case. According to the analysis made therein we now think it apparent that the legislature was endeavoring to find and put into effect a remedy or means to correct the evils growing out of nonpayment of taxes, to prevent tax evasion. For many years it was a recognized proposition that tax forfeitures and sales of land on account thereof were well nigh universally held ineffectual to convey title, and there is perhaps at this time, no doubt, that there was a general recognition of the futility of taxing laws; that it was thought by many that people need not pay taxes if they were willing to meet the worry and expenses of litigation in regard thereto.
It is evident that Act 296 of the Acts of 1929, the first of the more recent corrective efforts, was a faltering struggle to stem this evil. It is probable that large delinquencies had their origin in the inability of the people to meet taxes during- depression years. When the worst of the financial stress had passed, there appeared a legislative trend toward processes to restore property to the tax books for the regularly expected revenues to be derived therefrom.
Act 142, above mentioned, while it was still in force, was another evidence of the legislature’s effort and struggle to correct or cure these well grounded and long-established practices illustrating the futility of the law requiring payment of taxes. Out of all this has come Act 119 of the Acts of 1935 construed and upheld in the last cited case. According to the terms of that statute, when it shall have been invoked in regard to such tax sales, we must, and do, hold that the decree of confirmation of a sale to the state “operates as a complete bar against any and all persons, firms, corporations, quasi-corporations, associations who may claim said property” sold for taxes subject only to the exceptions set forth and stated in the act, none of which is applicable to aid the appellant. If there are any taxes levied or assessed against the land, however defectively that may have been done and when the taxes shall not have been paid, the state has the power to sell. We are saying now that the power to sell is given by the law. Notice of sale is not an absolute prerequisite to the exercise of that power, but it is a condition. That power to sell may be exercised so defectively or erroneously that the sale may be invalid, but, notwithstanding such invalidity, the power of sale so arising or grounded on the statute still exists, as one process of enforcing tax payments. Of course, the sale may not be made for a tax that does not exist as in the cited case, still taxation is the rule and exemption from taxation is the exception. There arises the presumption that land and other property are subject to the usual and ordinary state and county taxes, and in any event wherein such tax may not have been levied, that fact must affirmatively appear, otherwise there is a presumption that the state has the right to exercise its power to sell the property on account of existing tax delinquency. In this case, there need not be considered a lack or want of power'to sell, and our recent construction of Act 119 of 1935 authorizes a confirmation of title which “operates as a complete bar against any and all persons, firms, etc. ’ ’ Since we have seen the application of the aforesaid act, there is no necessity to set forth and discuss the more recent legislative acts which do not change or modify the effect of the foregoing statute ás applied to the facts in this case.
The appellant cites numerous authorities supporting the contention that the appellee, Walter B. Paschal, Jr., was a holder of this property under the foreclosure of the second mortgage thereon; that he was in possession and receiving the rents; that it was his íegal duty and obligation to pay the taxes thereon; and that he could not legally permit a sale for taxes and become the purchaser by reason of his own default. However sound and plausible that contention may be, we think it has been effectively' answered by the showing in this record that upon the foreclosure and sale of the property under the second mortgage, The American Investment Company, Inc., became the purchaser and, whatever its duty or obligation was to pay the'taxes upon the property which it did not do, this company sold to Paschal whatever interest it had under foreclosure of the second mortgage. This was after Paschal had bought from Hamilton the confirmed title. While it is true that Paschal was the vice:president and secretary of this investment company, it is equally true that his identity and that of the corporation are not the same, and we know of no authority, and certainly none has been cited, that would have required Paschal as such an officer to act individually and make payment of these taxes and prevent forfeiture; nor have we been cited to any authority that would prevent Paschal as ah individual from purchasing the tax title from Hamilton. Before saying that the trial court was correct in holding that Paschal had acquired a title by reason of this tax delinquency and sale and confirmation superior to the first mortgage held by the appellant, we think, from the foregoing statement, that it must also be determined that, since Paschal, in order to protect his own property, was required to pay taxes not only thereon, but on the other tract of land or 80 acres upon which the appellant was decreed to have the first lien subject to these taxes, this payment made by him under the circumstances brought about or worked a subrogation in his favor giving a lien upon said property as security for the amount paid. Certainly there is no record evidence for our consideration, that he was under any obligation to pay taxes as a mortgagee in possession, and his lien was on that account properly declared.
The only remaining issue arising out of Hunnicutt’s claim is to the effect that he was .the owner of this note and first mortgage by reason of a sale made by the administratrix of Mrs. Casserly’s estate. We think the rights of the respective parties must be determined by the facts and not as a question of law. Mrs. 'Berry explains that much of her father’s estate was invested in mortgages, many of which were made to her step-mother. The proof seems to be conclusive that the attorney who handled this estate had charge of these investments. The $2,000 that Mrs. Casserly received as legatee under her husband’s will was either paid in money or by the delivery of property other than the note and mortgage involved here. The note and mortgage here considered were made payable to Mrs. Casserly as a “trustee” which may have been intended to indicate the fact that she was not the actual owner. While such designation as “trustee” under our statute would, not have that effect in law, it might be of some evidentiary force when taken in connection with other facts as they are developed. The proof is undisputed that this family counselor who had charge of these properties delivered this note and mortgage to Mrs. Berry. It may be pertinent to remark that the administratrix seems never to have made demand upon Mrs. Berry or any other custodian, nor did the administratrix pursue any remedy that may have been available to her to get possession of the disputed note and mortgage. The sale was without possession for an almost nominal consideration. Such a consideration may be determinative of Hunnicntt’s good or bad faith. Affirmed on appeal, and Hunnicntt’s cross-appeal. | [
-10,
97,
-104,
44,
72,
-32,
58,
26,
82,
-96,
-28,
83,
-23,
-28,
17,
45,
-25,
45,
81,
104,
-91,
-79,
115,
10,
-62,
-13,
121,
-35,
-72,
-35,
-28,
-42,
9,
32,
74,
23,
-62,
-96,
-57,
28,
78,
-59,
-117,
-60,
93,
64,
48,
-69,
84,
77,
69,
-90,
-13,
41,
55,
73,
109,
42,
-17,
-87,
-48,
-72,
-102,
12,
127,
7,
-95,
101,
-110,
1,
-54,
14,
-104,
53,
32,
-24,
54,
38,
-50,
116,
6,
9,
12,
102,
102,
16,
101,
-17,
48,
-84,
38,
-9,
-99,
-90,
-10,
72,
19,
73,
-65,
-97,
126,
17,
71,
120,
-13,
7,
29,
104,
-123,
-22,
-42,
-111,
19,
92,
-100,
3,
-9,
31,
32,
113,
-49,
35,
93,
71,
112,
-101,
-50,
-11
] |
Holt, J.
Appellant brings this appeal from a decree of the Columbia chancery court, second division, setting aside and canceling a certain mineral deed executed by James Keener, Sr., to appellant for a one-half interest in the minerals in a certain eighty-acre tract of land.
Appellee (plaintiff below) alleged that the mineral deed in question, which he executed in favor of appellant, was without consideration and that he did not know that he was executing a mineral deed to said land at the time he signed the deed; that he did not intend to execute a mineral deed, but intended to execute an oil and gas lease only; and prayed that the deed be canceled as a cloud upon his title.
Appellant (defendant below) answered admitting appellee’s ownership of the land in question except a one-half interest in the minerals therein. She admitted that she obtained the mineral deed to one-half of the minerals in the land in question, but denied that there was no consideration paid by her for said mineral deed and that same was null and void.
The testimony as reflected by the record is to the following effect:
Appellee, J ames Keener, Sr., is a negro eighty years of age and had lived on the land in controversy since 1900. J. M. Talley, a 'brother of appellant, Mary P. Stephens, came to appellee’s home early in 1936 and discussed with him the leasing of the land in question for oil and gas purposes. Appellee was well acquainted with Talley and quoting from appellee’s testimony:
“When he came there, he wanted to lease the land, and I told him it had gone delinquent, and that I had-sent to Little Rock to know about it, and had sent them a letter to get the amount and they said $34.75, and he said he would go up and pay that off, and he came back to town, and then he came back out there and said he had sent the money off, and that I could lease it, and he was to give me $1 per acre, and he was to take the money and pay the taxes with part of it, and then he paid me one payment in March of $6, the first time, and another payment of $4 tire next time. . . . Q. Did he bring the papers for you to sign ? A. He came back once after that, it was at twelve o’clock, and he pulled out a deed and said, ‘Here is the deed, Uncle Jim, and you sign it and I won’t come back out here any more bothering you.’ . . . A. He paid the taxes and then he came back and I signed the deed. Q. "What did you sign ? A. I signed a lease at $1 per acre. Q. Was anything said about you giving him a mineral deed? A. No, sir, nothing. Q. Did you sign two papers? A. Yes, sir, I signed two papers. I thought I was signing one for him and one for me. . . . Q. Did Mr. Talley read the paper to you? A. No, sir. Q. You could have read it? A. Yes, sir. . . . Q. They were going to get a block out there? A. Yes, sir. . . . Q. And you thought your lease would go into the block? A. That is what they said.”
Appellee further testified he talked with Mr. Stephens about the matter and said Mr. Stephens agreed to deed everything back if appellee would give Mr. Stephens one-fourth of the royalty. Mr. Edgar Hawkins advised him not to do that. Mr. Stephens told witness the expense was $125.
Appellee’s wife testified that she was present when Mr. Talley brought the papers for her husband and her to sign; Mr. Talley wanted a lease on the land; that they sold the lease to Mr. Talley for $1 per acre, which was around $80 for the entire tract. Said there was nothing said about, a mineral deed. Did not know they were signing a mineral deed, and thought she was signing a lease. Said she thought that there was about $30 taxes due on the land. And further, quoting from her testimony:
“Q. When he came out there you told him the land was forfeited for the taxes? A. Yes, sir. Q. And you wanted to get him to help you get it back? A. Yes, sir, he was to pay the taxes to get it back. Q. Did he do that? A. Yes, sir. . . . Q. How many papers did you sign? A. I didn’t sign but two. He was to leave one there with us and he was to take one, but he took them both. . . . Q. At that time there wasn’t any leasing going on ont there? A. Ño, sir.”
James Keener, Jr., testified that he was present at his father’s house when the deed and the lease were signed, knew that Mr. Talley was getting up a block of leases, and that his father was getting $1 per acre. He further testified that there was nothing said about a mineral deed.
George Keener, another son of appellee, testified that he was also present when the deed and lease were signed by his father and mother, heard the discussion between Talley and his father and that his father was getting $1 per acre for the lease and further testified: ‘ ‘ Q. Was anything said about how he was to pay the $1 per acre? A. Yes, sir. The land was up for its taxes and he was to pay the taxes out of the $80 he was paying for the lease, and the balance of it was to come to my father.” He saw his father sign the papers, but he, witness, did not read them.
Curtis McRae, appellee’s grandson, was also present at the time and corroborated the testimony of James Keener, Jr., and George Keener. He further testified that he could read, and quoting: “ Q. How many papers were there? A. Two. Q. And you didn’t read them? A. No, sir. Q. You could have read them? A. Yes, sir. . . . Q. What did he say when he came back the second time? A. He signed two papers. Q. What papers? A. The lease and a copy of the lease. ’ ’
Mr. J. T. Stephens, appellant’s husband, testified relative to appellant’s acquiring the lease and the mineral deed, and quoting from his testimony: “I have been engaged in the abstract and title business for the last fifteen or twenty years, and have been more or less-interested in oil leases since I have been doing work for the big oil companies, and in 1936 I decided I would get up a block of leases in that immediate territory and see if I could get a well. ... I approached Mr. Talley, as my notary public, and we contracted for around 3,500 acres. . . . Among the landowners out there was Jim Keener. We could have bought any amount of acreage out there for fifty cents per acre, either for the lease or one-half of the minerals. . . .”
He further testified: “Well, Jim came in and told us that he would give us a deed to his place if we would pay his taxes and let him stay there, as long as he lived, but I didn’t want the place, so I told him I would pay the taxes for a lease and one-half of the minerals. That was music to his ears. I wrote to Little Rock for a statement of his taxes, and when it came back it was considerably more than $1 per acre on his land, but we had agreed to do that, to take the lease and one-half of the minerals, so I wouldn’t go back on my word. I sent it out there for Jim to sign, and got the lease. The lease was put up just as other leases out there were. Jim very readily signed these papers, for he had represented to me that he was destitute, didn’t have anything to live on, and I advanced him $10 on the lease and told him, I said, ‘If we handle your lease you will have $70 more coming,’ and I explained the minerals to him. For two years after that Jim was very profuse for what we had done for him. Leases commenced to pick up out there, and Jim came to see a lawyer . . .”
He further testified: ‘ ‘ Jim wanted me to turn all the papers over to him, and I said to him, ‘You owe me $102 and interest for two years, but if you will give me one-fourth interest in your minerals I will deed it back to you.’ He said he couldn’t. He said he was going to mortgage the land, and I said, ‘If you are going to mortgage it for what you owe me you can’t do it, for I have the lease and a mineral deed,- and it was perfectly fair.’ ”
He further testified that he redeemed the land in question at a cost of $102.33. The block did not go through.
On this state of the record appellant contends here that there was consideration for the execution by appellee and his wife of the mineral deed in question; that they executed it in good faith, knew what they were signing ; that no fraud or deception was practiced upon either of them by appellant in procuring the mineral deed, and, therefore, the learned chancellor erred in setting aside and canceling the deed.
After a careful review of all of the testimony we have reached the conclusion that appellant is correct in her contention.
Before we would be warranted in setting aside the solemn recitals in a deed, a written instrument signed and acknowledged, the quantum of testimony required must rise above a preponderance of the testimony. To do this the evidence must be clear, cogent and convincing. A mere preponderance is not sufficient.
In 20 American Jurisprudence 1103, the textwriter in stating the general rule, says:
“Section 1252. The general rule in civil cases that the party having, the burden of proof must establish his ease by a preponderance of the evidence is not of universal application. In certain classes of cases proof by a preponderance of the evidence is held to be insufficient. . . .
“Section 1253. Proof of those issues as to which a stricter degree of proof than by a preponderance of the evidence is required by the courts, is generally satisfied by ‘clear and convincing’ evidence, or evidence that is ‘clear and satisfactory,’ or evidence described by similar terms. For example, such strict degree of proof has been required in order to establish the existence of fraud, or to establish a parol trust in real or personal property, or where reformation, cancellation, or rescission of a written instrument on the ground of fraud or mistake
And in a footnote the author quotes with approval from an opinion of the North Dakota Supreme Court in Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58, 63, as follows:- “The presumption that an instrument executed with the formality of a deed, or a contract deliberately entered into, expresses on its face its true intent and purpose, is so persuasive that he who would establish the contrary must go far beyond the ordinary rule of preponderance. To demand less would be to lose sight of this presumption, which is one. of the strongest disputable presumptions known to the law. Hence, courts have, with great uniformity, in this class of cases, re quired the proof that should destroy the recitals in a solemn instrument to be clear, specific, satisfactory, and of such a character as to leave in the mind of the chancellor no hesitation or substantial doubt.”
In Morris v. Cobb, 147 Ark. 184, 190, 227 S. W. 23, this court said: “Again, appellant is in the attitude of impeaching the deed purported to have been executed and acknowledged by him. He could only do this by clear, cogent and convincing' evidence. Bell v. Castleberry, 96 Ark. 564, 132 S. W. 649; Polh v. Brown, 117 Ark. 326, 175 S. W. 562. His evidence does not meet this requirement. ’ ’
And in the recent case of Burns v. Fielder, 197 Ark. 85, 122 S. W. 2d 160, this court said:
“The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d 574, such evidence ‘must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be. so convincing that serious argument cannot be urged against it by reasonable people. ’
“Tested in the light of this rule, we do not believe the purported agreement should have been accorded that high degree of verity which must attach to alleged verbal reservations or conditions in order to overthrow solemn recitals of a deed. Business transactions must have finality. Conveyances must not be exposed to the caprice of parol, nor explained away by less than that quantum of evidence which essentially attains the dignity of clarity, impressing conviction. ”
Applying this rule, we do not think the evidence in the instant case measures up to that high degree that would justify the cancellation and setting aside of the mineral deed in question.
Appellee and his wife admitted signing and acknowledging the deed. They could both read, but did not read the deed. Appellee admitted that Mr. Talley brought the papers for him to sign, and quoting from his testimony: “He came back once after that, it was at twelve o’clock, and he pulled out a deed and said, ‘Here is the deed, Uncle Jim, and yon sign it and I won’t come back out here any more bothering you’.” Appellee admitted signing two papers, but claimed that he thought one was the original oil and gas lease and the other a copy. He does not explain why he did not keep what he thought was his copy. He and his wife admitted signing and acknowledging, two instruments. No claim of forgery is alleged. No excuse is offered by appellee for not examining and reading the mineral deed and the oil and gas lease except that he trusted Mr. Talley.
On the question of consideration, we think little need be said. It is undisputed that appellant redeemed the land in question from a tax forfeiture at a cost of $102.33. He had agreed to pay appellee $1 per acre or $80 for the oil and gas lease. In addition to the $102.33, appellant advanced to appellee $10 with which to buy food, making a total of $1.12.33 that appellant had expended on'the two transactions. We think this was ample to support a consideration for the mineral deed over and above the $80 consideration for the oil and gas lease.
On the whole case we conclude, that the learned chancellor erred in setting aside and canceling the mineral deed in question, and accordingly the decree is reversed with directions to dismiss the plaintiff’s complaint for want of equity. | [
-11,
110,
-16,
13,
-102,
96,
42,
-128,
65,
-87,
-75,
83,
111,
-50,
16,
57,
-89,
63,
116,
107,
-57,
-78,
71,
112,
82,
-13,
89,
-35,
-80,
77,
-28,
-42,
76,
33,
-54,
21,
66,
-128,
-59,
88,
-122,
1,
-119,
76,
-39,
64,
56,
111,
80,
75,
97,
-66,
-13,
41,
29,
-62,
109,
46,
75,
59,
88,
-16,
-102,
4,
89,
6,
17,
6,
-104,
69,
-56,
74,
-112,
53,
8,
-24,
115,
-90,
-126,
84,
3,
-71,
12,
102,
102,
113,
-19,
-25,
56,
8,
46,
-70,
-115,
-90,
-14,
80,
67,
105,
-66,
-100,
60,
-64,
55,
-2,
-20,
13,
92,
124,
11,
-49,
-42,
-79,
15,
48,
-99,
19,
-13,
17,
52,
116,
-51,
-94,
92,
71,
114,
-97,
-121,
-80
] |
Humphreys, J.
This suit was broug’lit by appellant against appellee on September 15, 1938, • in the circuit court of Pulaski county, Second Division, to recover $1,068.04 paid by appellant as premium on a life insurance policy No. 120611, which, was issued to him by the-Illinois Bankers Life Association on March 15, 1921, which policy ivas later assumed by the Illinois Bankers Life Assurance Company, the appellee herein, which policy was wrongfully forfeited by appellee for failure to pay the premium due April 1, 1938. Appellant alleged that on April 27, 1938, he mailed appellee a check drawn on the Peoples National Bank of Little Rock, drawn by R. C. Naylor as manager of the Capitol Rewinding Co., and indorsed by appellant to appellee in payment of the premium due April 1, 1938; that appellee received said check at its home office April 29, 1938, and immediately accepted the same in lieu of cash and treated the same as cash in payment of the premium; that appellee accepted checks ‘‘conditionally and for collection only,” but, in violation of such custom on which appellant relied, failed to so handle said check and by its own act in failing so to do prevented the same from being paid and was estopped to declare a forfeiture of the policy; that on May 11, 1938, appellee notified appellant said check had not been paid and that the policy had lapsed; that appellant immediately forwarded a U. S. Post Office Money ■Order to cover said check, the same being rejected; that appellant on July 25,- 1938, forwarded a cashier’s check to cover such premium which appellee likewise rejected; that appellee wrongfully canceled the contract of insur anee and appellant is entitled to recover as damages the premiums he had paid.
Appellee filed an answer denying that it accepted the cheek in lieu of cash as premium payment, but stating that it accepted the check on condition that it would be treated as a cash payment if paid when presented to the drawee bank, and admitting that it notified appellant that said check had not been paid by drawee bank and that policy had lapsed as of April 1, 1938, because the premium was not paid when due, and admitting that the money order sent to take up the check which had not been paid was rejected by it because not tendered in time for payment of premium and admitting that it rejected the cashier’s check in July, 1938, for the reason that the policy had lapsed under its terms for failure to pay the premium due April 1, 1938. For further answer, appellee stated that a failure to pay premiums rendered the policy null and void under the terms thereof and that, although the policy permitted an insured to pay the premium due within a grace period of thirty days, same was not paid. Appellee also stated by way of answer that it mailed appellant a notice of the premium due April 1, 1938, as follows:
“Remittance by check, bank draft or money order will be considered payment of any amount due, provided such check, draft or money order is actually paid to the company on presentation in due course of business; and the issuance of a receipt for such check, draft or money order shall not constitute a waiver of this provision.”
The answer further asserted that upon receipt of check mailed by appellant within the grace period same was duly deposited for collection, but was returned to appellee May 11, unpaid because of “insufficient funds”; that when the check was received to cover the premium due April 1, 1938, it mailed a receipt to appellant as follows : “On account of the universal use of checks we are glad to accomodate our members by receiving such from them, but it must be understood that the check is received not in payment of the premiums, but conditionally and for collection only, and this receipt operates as such only in case the check is paid when presented, and if not so paid the cheek is void and of no effect;” that under the provisions of the policy appellant further stated that when the payee bank refused to pay the check and returned same to it the policy lapsed, and it rightfully declared same forfeited and that it offered under the terms of the policy to reinstate appellant upon the payment of all premiums and evidence furnished to it of insurability of appellant, but that appellant declined to furnish such proof.
The cause was submitted upon the pleadings and testimony introduced by the parties at the conclusion of which the court directed a verdict for appellee upon which the court rendered judgment that appellant have and recover nothing from appellee upon his complaint and that appellant pay the costs, over the objections and exceptions of appellant.
An appeal has been duly prosecuted to this court from the verdict and judgment rendered in the cause.
There is practically no dispute in the evidence. Tt shows- that under the policy the premiums might be paid within thirty days after they should become due or, succinctly stated, that the insured might have thirty days grace in which to pay the premium which was due April 1, 1938; that on April 27, 1938, he mailed a check to appellee which it received on April 29, 1938, and upon the receipt thereof mailed to appellant the following receipt: “On account of the universal use of checks we are glad to accommodate our members by receiving such from them, but it must be understood that the check is received not in payment of the premiums but conditionally and for collection only, and this receipt operates as such' only in case the check is paid when presented, and if not so paid this check is void and of no effect.” It appears from the record that when the check was presented to the drawee bank payment was refused because of “insufficient funds” to pay same. The check was returned to appellee and upon the receipt thereof it immediately notified appellant that the policy had lapsed under the provisions thereof and suggested to appellant that he make application to he reinstated and sent forms for that purpose calling- his attention to the fact that he must produce evidence of insurability and that he must pay back premiums before he could be reinstated. Appellant declined to make such proof.
We think the receipt on its face was notice to appellant that the check was accepted on condition that it be paid when presented to the drawee bank, and was not received and accepted by appellee in payment of the premium. This court said in the case of National Life Co., v. Brennecke, 195 Ark. 1088, 115 S. W. 2d 855 that: “The company could have advised the insured that the cheek was accepted conditionally, that is, for collection only; but it did not do so. If it had advised the insured that the check was being accepted in payment only on the condition of its being honored when presented for payment, then, of course, the premium could not have been regarded as paid. On the contrary, as stated, it issued its regular receipt, advising the insured that the premium had been paid within the time prescribed by the policy.”
The receipt issued to appellant by appellee when the check was received is practically in the language of this court quoted above, and it must, therefore, be treated as a conditional acceptance of the check in payment and not as an absolute payment of the premium due April 1, 1938, within the grace period. This court decided in the case of Hare v. Illinois Bankers Life Assurance Co., 199 Ark. 27, 132 S. W. 2d 824, that- (quoting syllabus 3):
“Where the insured sent a worthless check in payment of quarterly premium, and the company accepted such check and sent a conditional receipt informing the insured that the acknowledgment was void unless the check should be paid on presentation, held that the company was not bound to accept a cashier’s check in substitution of the dishonored check, the cashier’s check having been received at the home office approximately two weeks after the period of grace had expired.”
We have concluded that the court correctly directed the jury to return a verdict for appellee under the un disputed facts in this record and for that reason the judgment is affirmed. | [
52,
109,
-16,
-52,
8,
-96,
42,
-110,
95,
-120,
53,
115,
-7,
-25,
84,
109,
-9,
41,
117,
106,
-43,
-77,
55,
34,
-46,
51,
-23,
-107,
-76,
75,
-4,
-41,
68,
48,
74,
-111,
70,
-46,
-59,
-106,
-114,
4,
41,
-20,
-39,
-56,
48,
-19,
80,
67,
101,
-114,
-29,
58,
23,
75,
105,
46,
-7,
-87,
-48,
-70,
-118,
-59,
125,
19,
1,
71,
-102,
69,
-8,
26,
-104,
53,
1,
-72,
114,
-90,
-58,
116,
99,
-103,
8,
102,
38,
-102,
53,
-81,
-116,
-104,
55,
-66,
31,
-90,
-78,
120,
11,
15,
-66,
-99,
52,
20,
7,
-36,
-2,
-108,
29,
104,
1,
-114,
-74,
-77,
-65,
44,
-100,
-117,
-1,
19,
-74,
117,
-50,
-32,
93,
-49,
57,
-109,
-114,
-45
] |
McHaney, J.
Upon the affidavit of the deputy prosecuting attorney that appellant had committed the offense of operating a car for hire without first having paid the “for hire” license fee on said car, in that he received passengers in said car and charged and received 20 cents each for transporting them from Higgins Lane to Helena, a warrant was issued out of the municipal court of Helena for appellant’s arrest upon said charge. He was arrested, arraigned in said court, and, before entering any plea to the charge, requested the court for a trial by a jury of twelve. His request was refused. He was tried by the court without a jury, found guilty and fined $142 with costs. He thereafter filed in the circuit court his petition for a writ of mandamus, setting up the matters aforesaid against appellee, “commanding and directing that all proceedings had in his court, the assessment of the fine and costs against this defendant be set aside and held for naught and that he be directed-to reopen said case and impanel a jury of 12 to hear and determine said cause.”
The circuit court sustained a demurrer interposed by appellee, denied the writ and dismissed the petition, and this appeal followed.
It was held in Brandon, Ex parte, 49 Ark. 143, 4 S. W. 452, that a person convicted for violation of a city ordinance cannot be released on habeas corpus for failure of the police court to grant him a trial by jury, as such a writ “cannot be made to perform the function of an appeal, or writ of error, in correcting errors and irregularities at the trial, ’ ’ and it was’ there further said: “To authorize' the judge of'the superior court to interfere and discharge a convicted prisoner in this summary fashion, the sentence must be a nullity, or the court which imposed it must have been without jurisdiction.” Citing cases. In Sharum v. Meriwether, 156 Ark. 331, 246 S. W. 501, a case in which Sharum was adjudged by the probate court to be a person of unsound mind over his demand to be tried by a jury, this court held that it was an abuse of discretion on the part of the probate court to refuse a jury where demanded by a person charged with being insane, but that such abuse of discretion was merely an error, which must be corrected, if at all, by appeal. The question arose on petition for certiorari to quash the allegud void order of the probate court and the writ was denied. In McClendon v. Wood, Judge, 125 Ark. 155, 188 S. W. 6, where a writ of prohibition was sought to prevent the circuit court from trying McClendon, mayor of Hot Springs, charged by indictment with nonfeasance in office, without the intervention of a jury, the writ was denied and it was there said: 11 The jurisdiction of the court itself is undoubted. The jury is but an arm of the court, and, so far as jurisdiction is. concerned, it cannot be said that there is any separate jurisdiction of the jury. The jurisdiction is exercised by the court as a whole, and, if there is an erroneous exercise of that jurisdiction during the progress of the matter while pending before the court, the error must be corrected by appeal. There appears to be no escape from that conclusion, and anything that might be said now with respect to the merits of the controversy would be mere dictum. ’ ’ 'See, also, Ex parte Williams, 99 Ark. 475, 138 S. W. 985; Abbott v. State, 178 Ark. 77, 10 S. W. 2d 30, and cases there cited.
Therefore, assuming that appellant was entitled to a jury trial in the municipal court, he being charged with the violation of a state statute and not a city ordinance, although committed in the city of Helena, the refusal of said court to impanel a jury was but an error which could not be corrected by mandamus. As we said in Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548: " “It is settled law that an officer may be required by mandamus to perform the functions of his office; but it is equally as well settled that the officer’s discretion in the discharge of this duty will not be controlled or directed by that writ; nor can it be used to correct an erroneous decision already made. Watson v. Gattis, 188 Ark. 376, 65 S. W. 2d 911.”
So, here, appellant is seeking to correct by mandamus an erroneous decision already made, assuming it to be such, which, as we have already shown, cannot be done. It is said by appellant that an appeal could not correct the mischief already done — a denial of his right of trial by a jury in the first instance. Even so, his only remedy afforded by law, as we see it, is by appeal to the circuit court, where he will be accorded a trial de novo before a jury.
Affirmed. | [
80,
-24,
-24,
-66,
43,
64,
10,
-100,
81,
-125,
118,
83,
-19,
-60,
4,
35,
-21,
123,
117,
123,
-35,
-78,
7,
113,
-78,
-13,
73,
-59,
-77,
-53,
-20,
-44,
79,
56,
-126,
29,
70,
75,
-115,
-40,
-114,
-96,
-119,
113,
-56,
-125,
36,
49,
71,
15,
113,
-97,
-46,
42,
19,
74,
-23,
110,
75,
-115,
-56,
-13,
-99,
15,
95,
22,
-112,
52,
-102,
5,
120,
60,
-100,
25,
1,
-8,
115,
-126,
-128,
-12,
75,
-101,
44,
102,
98,
0,
29,
-49,
-8,
-20,
31,
-66,
31,
-89,
-48,
113,
75,
77,
-98,
-99,
98,
20,
14,
-2,
121,
-107,
17,
108,
10,
-50,
-44,
-127,
-115,
52,
-106,
80,
-61,
35,
52,
115,
-116,
-14,
92,
-57,
115,
-101,
-114,
-106
] |
Mehaefy, J.
The appellant, A. C. Dunklin, filed suit in the Pulaski chancery court against the appellee, Z. M. McCarroll, Commissioner of Revenues. It is alleged in the complaint that appellant is one of the partners in several partnerships which operate ginning and mercantile businesses in the states of Arkansas and Oklahoma; that the Arkansas business is conducted separately and apart from the Oklahoma business; that the income derived from Arkansas business is derived from plants located in the State of Arkansas and business done by said partnerships at such plants located in the State of Arkansas; that the income derived from the Oklahoma business is derived from plants located in the State of Oklahoma; that the plants located in the State of Oklahoma are not engaged in business in Arkansas and derive none of their income from said state; that during each of the years mentioned in the complaint, appellant has duly reported to the State of Arkansas his share of the income of such partnerships derived from the plants located in and business done by said partnerships in Arkansas, and has duly paid the state the correct tax imposed by the Arkansas income tax statute; that during the years 1936, 1937, and 1938 the appellant has also reported and duly paid to the State of Oklahoma as he is required to do by its income tax statute the correct tax imposed by the Oklahoma income tax law on his share of the income of such partnerships arising from plants located in and business done by said partnerships in the State of Oklahoma; but no tax has been paid by the appellant on this Oklahoma income to the State of Arkansas; that the appellee has made written demands upon the plaintiff to pay additional income tax to' the State of Arkansas for the years above mentioned; that the claimed additional income tax for each of said years demanded by the appellee is for supposed income tax on said Oklahoma income; that the demand shows and the appellee wrongfully claims that the plaintiff should pay income tax to the State,of Arkansas upon said Oklahoma income derived as heretofore alleged; that said demand and claim of the appellee is an illegal exaction for the following reasons: The tax for each of said years was imposed by Act No. 118 of the Acts of 1929 as amended and modified by Act 220 of the Acts of 1931.
(a) That under section 15 of said Act 118, nonresidents of the State of Arkansas and foreign corporations doing business in the State of Arkansas are only required to pay an income tax on the income derived by them from the business carried on in the State of Arkansas, and that under said section the income derived by such non-residents and foreign corporations from business carried on by them in the State of Oklahoma and other states is not taxable by the State of Arkansas.
(b) That by the provisions of Act 220 of the Acts of 1931 corporations organized under the laws of the State of Arkansas doing business solety without the State of Arkansas are not required to pay income tax to the State of Arkansas on business done in the State of Oklahoma and other states. Such income is not taxable by the State of Arkansas.
(c.) That under said Act 118 of the Acts of 1929 and Act 220 of the Acts of 1931 as read together, and construed by the Supreme Court of Arkansas, corporations organized under the laws of the State of Arkansas and having plants and doing business in the state of Oklahoma and other states, are not required to pay income tax to the State of Arkansas on income derived from business done by them in Oklahoma and other states, and such income is not taxable by the State of Arkansas; that in each of the years mentioned there were persons and corporations described in (a) above who did business both in the State of Arkansas and other states of the union, and under the terms of the Arkansas statute were not required to and did not pay income tax to the State of Arkansas on income from business done by'them outside the State of Arkansas; that in each of the years mentioned there were corporations of the class described in (b) who did business outside of the State of Arkansas and who, under the terms of the Arkansas law, were not required to and did not pay income tax to the State of Arkansas on their income from business done outside the State; that Act 118 and Act 220 above mentioned, when read and construed together, are unconstitutional and void insofar as they attempt to tax appellant’s income derived from sources outside the State, and they constitute an unlawful discrimination against the appellant, and that the classifi cation which. attempts to tax income of this appellant derived from such plants and 'business outside the State of Arkansas and at the same time does not tax, but exempts similar income of the individuals and corporations described above amounts to taking appellant’s property without due process of law in violation of the Constitution of the 'State of Arkansas, and is repugnant to and in violation of § 8 of art. 2; that the demand and attempt of appellee to collect such illegal tax and to impose interest and penalty for failure to pay same constitutes an illegal exaction against which appellant is entitled to relief, • and that he has no adequate remedy at law; that appellant is entitled to a permanent injunction and prays that Act 118 of 1929, as amended and modified by.Act 220 of 1931, be declared unconstitutional and void insofar as it attempts to tax appellant’s income from said plants and business located outside of the State of Arkansas, and that appellee be permanently enjoined from taking any action against appellant to collect said tax.
Appellee filed a demurrer to the complaint stating that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, appellant refused to plead further, and elected to stand upon his complaint. The court dismissed his complaint, and the case is here on appeal.
It is first contended by appellant that the act, if enforced according to the commissioner’s idea, is discriminatory against appellant and all other citizens similarly situated, and is repugnant to the provisions of the state Constitution designed and intended to protect citizens from such arbitrary class legislation.
Attention is called to McCarroll, Commissioner of Revenues v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977. The court said in that case that: “The imposition of an income tax upon a domestic corporation, doing business both within and without this state, on income derived from sources outside of Arkansas denies to such domestic corporation the equal protection of the laws and amounts to the taking of its property without due process in violation of the Fourteenth Amendment to the Constitution of the United States and art. 2, § 8, of the Constitution of the state of Arkansas.”
It is, therefore, settled by the former decisions of this court that domestic corporations doing business both within and without the state are not required to pay income tax to the state of Arkansas on income derived from sources outside of Arkansas.
It is contended by the appellant that to require citizens of Arkansas to pay income tax on income derived from business outside of the state is an arbitrary discrimination.
There are numerous laws that apply to corporations that do not apply to individual citizens.
In the case of Lawrence et al. v. State Tax Commission of Miss., 286 U. S. 276, 52 S. Ct. 556, 76 L. Ed. 1102, 87 A. L. R. 374, the Supreme Court of the United States said: “Appellant, a citizen and resident of Mississippi, brought the present suit to set aside the assessment of a tax upon so much of his net income for 1929 as arose from the construction by him of public highways in the state of Tennessee. The taxing statute was challenged on the ground that insofar as it imposes a tax on income derived wholly from activities carried on outside the state, it deprived appellant of property without due process of law, and that in exempting corporations, which were his competitors, from a tax on income derived from like activities carried on outside the state, it denied to him the equal protection of the laws.
“The obligation of one domiciled within a state to pay taxes. there, arises from unilateral action of the state government in the exercise of the most plenary of sovereign powers, that to raise revenue to defray the expenses of government and to distribute its burdens equally among those who enjoy its benefits. Hence domicile in itself establishes a basis for taxation. Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the responsibility for sharing the costs of government.”
The court in the same case further said: “The statute relieves domestic corporations from the tax only insofar as their income is derived from activities carried on outside the state. The appellant is thus compelled to pay a tax from ■which his competitors, if domestic corporations, are relieved, and this, it is urged, is so plainly arbitrary as to infringe the equal protection clause.
“But as there is no constitutional requirement that a system of taxation should be uniform as applied to individuals and corporations, regardless of the circumstances in which it operates, acceptance of this contention would relieve the appellant from the burden which rests on him to overcome the presumption of facts supporting constitutionality, which attaches to all legislative acts, and would require us to assume that there is no state of facts reasonably to be conceived which could afford a rational basis for distinguishing, for taxation purposes, between income of individuals and that of domestic corporations, derived from business carried on without the state.”
As we have already said, there are numerous laws, some of which put considerable burdens on corporations, that do not apply to individuals, and there is no constitutional provision requiring that the system of taxation should be uniform as applied to individuals and corporations regardless of the circumstances in which it operates. Not only has the 'Supreme Court of the United States held that there is nothing in the Constitution to require uniform taxations as applies to individuals and corporations with reference to taxes of this character, but numerous states have announced the same doctrine. The court has held that the income tax is not a property tax. If it were a property tax, then under the provisions of our Constitution it would have to be equal and uniform, but there is no such requirement as to other taxes. A number of state courts have held that a state may tax its resident citizens on their total income, no matter from what source derived. State v. Weil, 232 Ala. 578, 168 So. 679; Featherstone v. Norman, 170 Ga. 370, 153 S. E. 58, 70 A. L. R. 449; Maguire v. Tax Commissioner, 230 Mass. 503, 120 N. E. 162, aff’d 253 U. S. 12, 40 S. Ct. 417, 64 L. Ed. 739; State v. Gulf, M. & N. R. Co., 138 Miss. 70, 104 So. 698; Crescent Mfg. Co. v. Tax Commission, 129 S. C. 480, 124 S. E. 761; Village of Westby v. Bekkedal, 172 Wis. 114, 178 N. W. 451.
We said in the case of Stanley v. Gates, 179 Ark. 886, 19 S. W. 2d 1000: “It is claimed that the act is discriminatory on its face between corporations and individuals. It is well settled that putting corporations in one class and individuals in another is a proper classification. The courts hold that there is a substantial difference between individuals and corporations which justifies classification. A corporation is an artificial person, created by the state, endowed with franchises and privileges of many kinds which the individual has not. The tax is measured by a percentage on the net income from the business.”
The sole question in this case is whether there is any reasonable basis for the separate classification of individuals and corporations for income tax purposes. Not only has this court held, but also many others, that there is a reasonable basis for the exemption of corporations under certain circumstances, and they have uniformly held that the question of the classification was for the Legislature.
The classification made by the Legislature is reasonable, and is neither arbitrary nor discriminatory. The chancery court correctly sustained the demurrer, - and the decree is affirmed. | [
80,
-21,
-4,
-20,
-104,
-16,
56,
-70,
89,
-125,
101,
83,
-23,
60,
28,
125,
-29,
93,
81,
124,
-12,
-73,
3,
98,
-126,
-5,
-23,
-43,
-71,
77,
-28,
-10,
77,
56,
-54,
17,
-57,
18,
-51,
-36,
-18,
8,
-85,
104,
-8,
-127,
52,
-19,
99,
11,
-11,
-89,
-5,
40,
16,
-61,
77,
46,
-23,
46,
65,
-32,
-86,
29,
126,
22,
17,
6,
-102,
1,
-54,
14,
-112,
48,
42,
-20,
115,
38,
-58,
84,
15,
-35,
12,
36,
99,
50,
-115,
-17,
-96,
-116,
46,
-5,
-99,
-26,
-48,
96,
75,
11,
-73,
20,
122,
82,
-57,
118,
-68,
-35,
-35,
120,
-121,
-113,
-106,
-93,
5,
-20,
-98,
19,
-57,
-57,
18,
113,
-49,
-94,
93,
71,
58,
-101,
-121,
-32
] |
Mehakfy, J.
The appellee, Thomas 0. Adams, was the owner of a building at Seventeenth and Railroad streets in the city of Little Rock, which was used as a warehouse. In December, 1937, without appellee’s consent, appellant sent its employee to the building to remove a dead telephone. It is alleged that said employee forced open a window, removed the telephone, failed to fasten the window, removed the bars from the inside of the door, opened the door and left it open, leaving the premises open and inviting to trespassers. The acts of appellant made possible and started in motion the unlawful trespass; that by the exercise of ordinary and reasonable diligence appellant could have anticipated that such act on its part would entice transients or hoboes using the Rock Island right-of-way to occupy the premises; that certain transients or hoboes wrongfully entered the premises, took possession of the building and its contents; that while such transients or hoboes were in such unlawful and unauthorized possession they negligently permitted fire to destroy the building and its contents, and that plaintiff was damaged in the sum of $1,090.
The appellant demurred to the complaint, stating that it did not state facts sufficient to constitute a cause of action against appellant. The demurrer was overruled, and. appellant answered denying each and every material allegation in the complaint.
There was a verdict and judgment for the sum of $1,090. Motion for new trial was filed and overruled, and the case is here on appeal.
Thomas 0. Adams, appellee and owner of the building which was destroyed by fire, is blind. He testified in substance that he lives at 1115 Cumberland, Little Rock, and was the owner of a corrugated iron warehouse located at 2623 West 17th street, or Seventeenth and Railroad streets; the building was 32 by 62 feet with four rooms in the east end of the building, which was of ordinary frame construction; the east part of the building is farthest away from the railroad; he read in the morning paper that fire occurred on the last day of 1937; he had last visited the building about December 5, 1937; he visited every month to see if everything was locked up; Mrs. Gardner and a darky named Alec Duncan were with him on this inspection trip; he unlocked the front door with a. key, made a thorough inspection finding everything securely locked, and relocked the front door when he left; every door except the front door was nailed, and they laid two big planks across the doors and locked the front door. In the building at the time were scales worth $165, a safe cabinet worth $50, records of the Guffey Coal Act, a desk worth $25, a fence worth $50, and a stove. They were all destroyed by fire. The i tove was at the east end of the building; the telephone, about December 1, 1937, was in good shape on the table in the southeast office, and the windows in that office had wooden bars and were nailed down. The building could be replaced for $800, although witness paid $1,250 for it. He thinks $1,090 will cover his total damage. It was anywhere from December 1, to December 5, 1937, when he last visited the building. One door has bars, across the middle of it and heavy pins fitting in the floor so that it was impossible to open the door without taking them off; he entered by the front door, which had no bars.
Callie Gardner testified in substance that she lives in Little Rock and remembers the visit to the building about the first of December, 1937, with appellee and Duncan. She testifies that they were there 30 or 40 minutes, and corroborates appellee about the inspection, and says she knows the windows and doors were all barred, except the door which appellee locked. They went out the front door again and appellee locked it; does not remember the date the fire occurred.
T. S. Williams, captain of No. 3 fire station, testified in substance that he answered the call to Seventeenth and Railroad on December '31, 1937; his station was located at 3515 West Twelfth; the truck arrived three or four minutes after the call; the building at that time was afire from one end to the other, and the roof was caving in when they laid the hose; he would call the building corrugated iron, and some of the iron could probably be used again; the roof caved in and the wall on the south, but the north wall had to be knocked in; fence was on fire, but witness does not know how much was destroyed; he stayed till the fire was out, about two hours; he did not know about the property in the building; some of the boys, congregated out in front, said there had been some railroad bums sleeping in the building and they might be in there; the firemen forced their way in to see if there was anyone in the building; could not tell where the fire started.
Newton O. Couch testified that in December, 1937, and 33 years prior thereto, he lived at 1708 Jones Street, which, adjoined appellee’s property; he discovered the fire around 4 a. m. and called the fire department; the firemen arrived in 15 or 20 minutes; he was in bed and the fire woke Mm up; he thought it was his brother’s barn, but saw it was the warehouse; fire was coming out of the front windows, and'the roof was not caving in; thinks the fire started in the office in the southeast part of the building; knows appellee and knows he kept the building locked at some time before the fire; does not know for how long before the fire it had been locked; a telephone man came out about a week before the fire and .opened the building by going in a three foot window, setting the window down outside; he went in, got the telephone, and came out a big eight foot door on the south side, leaving the door partly open, and people got in there. He cannot say the building was locked at the time the telephone man went in, although it looked like it by his going in the window; the telephone man did not lock the building when he left with the telephone; someone stayed in the building a few nights before the fire and they were there the night of the fire; knows that appellee had a desk, filing case, little stove, and first class scales in the building; the building was used in his coal business.
Walter Cole, CQlored, testified that he lived at 1901 Thayer at the time of the fire and .came by the premises at 6 a. m. on the morning after the burning of the building ; he was there peeling poles close by about December 15th at 8:30 or 9 a. m. when he saw a man come out of the south window and come around and enter the south window, using a small ladder; he saw this man come out the south doorway with a telephone; the man had a truck, but he does not know whose truck it was; the building had been locked before that and witness supposes it was locked that day; he cannot say that it was locked that day, but it had been for some time before that.
Appellee, being recalled, testified that he had never given anyone permission to occupy the building or rented it, from the time he locked it up until the fire, did not know that the place was left open at the time the tele phone company removed the telephone. He talked to a Miss Arnn at the telephone company in November prior to the fire, and she told him they had a pick-up order for the telephone at the warehouse and he told her where to get the key; he called her again and she said she would send for it and that was the last he kneAV about it.
The appellant introduced the following evidence: William Koch testified that he lived in Little Rock, is a station installer for the telephone company and.has been employed by it for two and a half years; is employed by the plant department of the telephone company, which takes care of installation and removal of telephones; orders are issued to the plant department by the commercial department for removal of telephones; this order Avas issued by the commercial department and called for the removal of a telephone; the order showed service Avas discontinued April 23, 1937, and that the telephone was taken out December 13, 1937; witness had this order to remove this telephone and went to this address, 2326 West 17th Street, and removed the 'telephone; he went to the front door and it was locked and he went to the back; he had a small three-foot ladder and pushed against the window and it fell in; he looked in and saw the telephone; it was demolished to some extent and the building Avas not in good enough repair to take care of a telephone; he proceeded to go in and get the telephone ; all eAddence showed the building had been entered before and had been used as a toilet; the equipment was in place and witness did not know exactly what part of the building he Avas in; was not interested in the office equipment; removed the telephone and went out the same entrance he came in; opened no door or other window, but left by the same AvindoAV he entered and replaced . it, leaving it and the premises exactly as he found them; generally when telephones are in unoccupied houses, and they haA^e some way of knowing who the building belongs to, they obtain the key and have permission to go in; seeing the building in the shape it was in and the condition the telephone was in and having no way of getting in, seeing other people had been in the building and the property of the telephone company was in danger, Avitness took the telephone out for that cause; employees are instructed not to enter buildings that are locked; but under this condition he took it upon himself to enter the building and get the telephone; someone had been in before witness; in Anew of the condition of the telephone and building, he entered the building in contravention of his instructions, but felt that under the circumstances he was justified in so doing; the building stands along the railroad tracks; he took no bars off windows or doors; the service order in question does not state the name of the owner of the building, but names the last occupant, J. L. Holdbrook; he had no way of knowing that the building belonged to appellee or who it belonged to; the telephone is the only thing he took away from the building; he did not see Avitness Couch; cannot say witness Couch did not see him when he entered his sole interest was to get the telephone; he had no way of knowing- Avho the owner of the building was; the order to remove the telephone was issued to to him that morning; that was the first time he ever saw it, and the first trip he ever made to the premises; the trip was on December 13th at approximately 9 a. m.; the building and fence were in bad repair; there was no debris in front and he did not notice the back; between the building and the railroad track some men were peeling pine logs and there Avas loose bark all oA^er the siding; he did not open the bars inside the door; saw men working there at the time; did not come out the door; he was there approximately 20 minutes; did not not see anyone go in or out of the window; Avindow was just setting up there, not on hinges; just put his hand on it and it fell in and he set it doAvn right beneath where it was; went out the window and put the Avindow back where it was; did not come out at the door; is still working for the telephone company.
The evidence showed that the appellee Avas blind.
The court correctly overruled the demurrer of appellant. The cases cited by appellant, and many others, hold that if the injury appeared to be the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances, it will warrant a finding against the original wrongdoer.
The complaint states that the appellant forced the window open, removed the telephone, removed the bars from the inside door, opened the door and left it open, leaving the premises open and inviting to trespassers; that the acts of appellant made it possible and started in motion the unlawful trespass: that the appellant anticipated, or could have anticipated, by the exercise of reasonable diligence, that such acts would entice transients or hoboes using the Rock Island right-of-way to occupy the premises. The complaint, therefore, stated a cause of action.
It is next stated by appellant that the acts of appellant were not the proximate cause of appellee’s injury. Appellant then states the rule in Arkansas as to proximate cause as follows:
“. . . in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.”
Unquestionably, this is the correct rule, not only the one announced by the authorities cited by appellant, but it is the established rule of this court.
The first case to which attention is called by appellant is Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. The court in that case, among other things, said: “In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time. ’ ’
The court also said in the same case: “The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to he determined as a fact', in view of the circumstances or facts attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft cited case of the squib thrown in the market place.”
The next case cited and relied on by appellant is Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A., N. S., 905. In discussing the rule in this case, the late Chief Justice Hart said: “The difficulty arises in each case in applying the principle to a given state of facts.” He then called attention to the case relied on by appellees in that case, Harriman v. Pittsburg C. & St. L. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507, and said: ‘£ The facts and the gist of the holding of the court in the Harriman case are fairly stated in the syllabus.” He then quoted the syllabus as follows: “A train of cars, passing over some'signal torpedoes, left one unexploded, which was picked up by a boy nine years old at a point on the track which he and other children, in common with the general public, had long been accustomed to use as a crossing, with the knowledge and without the disapproval of the company. He carried it into a crowd of boys near by, and, not knowing what it wás, attempted to open it. It exploded, and injured the plaintiff, a boy 10 years of age. Held, that the act of the boy who picked up the torpedo was only a contributory condition, which the company’s servants should have anticipated as a probable consequence of their negligence in leaving the torpedo where they did, and that that negligence was the direct cause of the injury suffered by the plaintiff.”
The next case to which attention is called by appellant is Bona v. S. R. Thomas Auto Co., 137 Ark. 217, 208 S. W. 306. The court, after citing and quoting from the Pittsburg Reduction Case, said: “It is equally well settled by the decisions of our own and other courts that ‘where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury’.”
The court also said in that case: “Applying these principles to the facts set forth in the statement, the issue of negligence raised by the pleadings was clearly one for the jury.”
Appellant calls attention to Meeks v. Graysonia, N. & A. Ry. Co., 168 Ark. 966, 272 S. W. 360. The court there announced the general rule established in this state, and said that it must appear that the injury was the natural and probable consequence of the negligence, and that it ought to have been foreseen in the light of attending circumstances.
The next case relied on is Standard Pipeline Co., Inc., v. Dillon, 174 Ark. 708, 296 S. W. 52. The court said in that case: “Under the circumstances we cannot say that the verdict is not supported by substantial testimony, nor, as a matter of law, that the jury, the question being one ordinarily for its determination, was not warranted in finding the negligence the proximate cause of the injury. While it is generally held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.”
In the ease of Mays v. Ritchie Grocery Co., 177 Ark. 35, 5 S. W. 2d 728, the late Chief Justice Hart, speaking for the court, said: “If the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in the injury óf others, it is liable for an injury proximately resulting therefrom, though it might not have foreseen the particular injury which did occur. ’ ’
In the case of Booth & Flynn v. Price, 183 Ark. 975, 39 S. W. 2d 717, 76 A. L. R. 957, the court said: “The general rule is that what is the proximate cause of an injury is a question for the jury. It is to be determined as a fact in view of the circumstances attending it. It is ofttimes difficult of .application, but the question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? So, it is generally held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable sequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. ’ ’
Appellant then quotes a statement from the annotations in the case of Strong v. Granite Furniture Co., 78 A. L. R. 465, found on page 472, but that quotation itself contains the following: “and could not have been foreseen by him,” necessarily implying, as all the authorities do, that if it could have been foreseen by the wrongdoer, then the wrongful act was the proximate cause of the injury. In that case the court said (77 Utah 292, 294, P. 303, 78 A. L. R. 465): “A person is not bound to anticipate malicious or criminal acts of others by which damage is inflicted, even though they are ■ the acts of children. But where an independent illegal act was of a nature which might have been anticipated, and which it was the defendant’s duty to provide against, he will be liable for a breach of such duty notwithstanding the production of injuries by the intervention of an act of the character described. ’ ’
Appellant quotes from 45 C. J. 926, § 489, but that section, as quoted by appellant, states that “the result cannot be said to be the natural and probable consequences of the primary cause, or one which ought to have been anticipated.” This necessarily implies that if it should be anticipated, or ought to be anticipated by the wrongdoer, then he is liable.
In the same volume of C. J., page 931, quoting from § 491: “But where the condition was such that the injury might have been anticipated, or where such condition rendered it impossible to avoid injury, from another contributing cause, it will be the proximate cause not withstanding the intervening agency. So it is no defense to an action for negligence that the injury was caused by the act of a third person who merely took advantage of a situation created by defendant in such a manner as to suggest or invite the third person’s act.”
It would serve no useful purpose to review all the authorities cited by appellant under this rule. It may be stated that all of them are to the effect that while the intervention of an independent agency ordinarily relieves the first wrongdoer, still if the result or act of the independent agent could have been anticipated the original wrongdoer will be liable. The authorities are practically unanimous in approving this rule.
The rule is stated thus in Cooley on Torts: “The rule has been stated to be that in no case in the connection between an original act of negligence and an injury broken by an intervening act of negligence of another, if a person of ordinary sagacity and experience, acquainted with all of the circumstances,, could have reasonably anticipated that the intervening event might, not improbably, but in the natural and ordinary course of things, follow his act of negligence or, stated in another way, if the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause, the intervening cause will not excuse the one guilty of the first misconduct, and the subsequent mischief will be held to be the result of the original misconduct. ’ ’
“In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.
“The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original • negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.
“Whether in any given case the act charged was negligent, and whether the injury suffered was, within the relation of cause and effect, legally attributable to it, are questions for the jury.” Lane v. Atlantic Works, 111 Mass. 136.
“If defendant was negligent in not securing the turntable, so that it could not be revolved by children, to their injury, the mere fact that it was revolved by other children who were playing upon it at the time the child was injured, will not excuse defendant, if such act ought to have been foreseen or anticipated by.it. That it ought to have been foreseen and provided against is shown by the case of Koons v. St. Louis I. M. Railroad Co., 65 Mo. 592. Not having been provided against, the original negligence continued and remained a culpable and direct cause of the injury, and the test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. Lane v. Atlantic Works, 111 Mass. 136. Mr. Wharton on Negligence, § 85, states the doctrine thus: ‘As a legal proposition we may consider it established that the fact that the plaintiff’s injury is preceded by several independent conditions, each one of which is an essential antecedent of the injury, does not relieve the person, by whose negligence one of these antecedents has been produced, from liability for such injury’.” Nagel v. Missouri Pacific Ry. Co., 75 Mo. 653, Am. Rep. 418.
The court of its own motion gave this instruction to the jury: “There has been some testimony here that has created some conflict in the testimony as to what is known in law as intervening cause. For that reason, I will instruct you as to the law of intervening cause.
“Intervening cause will not relieve from liability where the prior negligence was the efficient cause of the injury. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequences, and if the injury is the natural and probable consequence of the original negligent act or omission, and is such as might reasonably have been foreseen as probable, the original wrongdoer is liable, notwithstanding the intervening act or event. But an intervening cause will be regarded as the proximate cause, and the first cause as too remote where the chain of events is so broken that they become independent and the result cannot be said to be the natural and probable cause or one which ought to have been anticipated. The law will not look back from the injurious consequences beyond the last efficient cause, especially where an intelligent and responsible human being has intervened.”
' “Another statement of the rule is that where a number of causes and results intervene between the first wrongful cause and the final injurious consequence, which are such as might, with reasonable diligence, have been foreseen — the last, as well as every intermediate result, is to be considered as the proximate result of the first wrongful cause.” 1 Thompson on Negligence, 54.
It is also stated in Thompson on Negligence, same volume, page 55: “In a case in the Supreme Court of the United States, this phase of the doctrine was thus expounded, in the opinion of the court, by Mr. Justice Strong: ‘The primary cause may be the proximate cause of the disaster, though it may operate through successive instruments, as a vehicle at the end of a chain may be moved by a force applied at the other end, that force being the proximate cause of the movement; or, as in the oft-stated case of a squib thrown in the market place’.”
It is undisputed that the appellant’s agent deliberately, in violation of law, and in violation of what he knew to be his duty, went to appellee’s warehouse which was securely locked, broke in the building at a window, and, according to the evidence of two witnesses, went out at the door and left it open. According to the agent’s own testimony he went to the door and found it locked, could not get in; then went to a three-foot window and had to use a step-ladder in order to get in through the window. He says that he set the window down on the inside after he pushed it open, and then came out of the window with the telephone; but whether he did this or did what the two witnesses swore, was a question of fact for the jury. This warehouse was on the railroad. It is a matter of common knowledge, and known by every intelligent person, that tramps and hoboes congregate around a place of this kind. It was in December, cold weather, a stove was in the building, and, of course, anybody would know that the tramps congregated around there would occupy the building and use the stove to heat it. As we have said, every intelligent person knows this to be true. Then when the agent opened the door and left it open, he knew that tramps would get in. He was bound to anticipate this. He simply left the door open, thereby inviting the tramps to occupy the building. He says the building had been used as a toilet. He looked in the window and ascertained that. The undisputed evidence shows that the doors were securely fastened, and the only possible way for anybody to get into the building to use it as a toilet would be to get a step-ladder, climb to the three-foot window, and open it.
The authorities are practically unanimous in holding that under circumstances like these, whether the damage should have been anticipated was a question for the jury. The appellant does not contend, anywhere, that it did not know that tramps and hoboes would use the building as they did, and the question of proximate cause, or whether the damage should have been anticipated, are questions for the jury.
The judgment of the circuit court is affirmed.
Smith, McHaney, and Baker, JJ., dissent. | [
112,
120,
-4,
-116,
24,
-31,
122,
-70,
-45,
-87,
53,
-45,
-19,
64,
92,
41,
-30,
121,
-11,
121,
-28,
-77,
7,
98,
-62,
-69,
49,
-59,
-80,
-19,
-12,
-42,
76,
33,
-54,
-107,
-122,
64,
-51,
-100,
10,
45,
26,
66,
-47,
80,
52,
59,
32,
67,
33,
-98,
-13,
40,
16,
-53,
77,
44,
107,
-65,
82,
-7,
-126,
29,
125,
7,
33,
38,
26,
-123,
-24,
24,
-112,
53,
1,
-88,
115,
-90,
-126,
124,
71,
-117,
0,
32,
98,
26,
-115,
-29,
-20,
9,
38,
-66,
-115,
-90,
-16,
41,
1,
73,
-66,
-99,
112,
0,
23,
126,
117,
85,
81,
108,
-113,
-49,
-44,
-95,
47,
104,
-106,
-77,
-37,
19,
50,
112,
-50,
-89,
-34,
69,
115,
-97,
-114,
-43
] |
Griffin Smith, C. J.
Appellee is an attorney. Kissie Alderson and C. D. Garrett, Negroes, are brother and sister. As plaintiffs below they sought cancellation of two deeds, each of which conveyed to appellee a one-twelfth interest in minerals appurtenant to the lands described.
The complaint upon which the decree is predicated was filed in June, 1938.
As to Kissie Alderson it is alleged that the conveyance was without, consideration; that it was not intended an interest in the minerals should be sold; that this appellant was induced to sign an instrument with her husband affecting, as she thought, different property, for which she and her husband were paid $20; that she was informed and believed she was only releasing her dower interest, and that no other sum of money was paid her. She claims not to have read the instrument, relying upon representations made by appellee and by her brother-in-law, Archie Alderson. Archie was assisting appellee in procuring mineral deeds to other lands in which her husband was interested.
Garrett contends that at the time he executed the deed in question he .was informed by appellee and Archie Alderson that the document was a contract, by the terms of which appellee was to become “their” legal representative. The leases, it is asserted, were worth $17.50 an acre in September, 1929, while the price received averaged about $1 an acre.
The deeds wherein Kissie Alderson granted in her own rights and in which she joined with her husband were- dated September 30, 1929. Charlie Frazier joined in John Alderson’s deed. Garrett’s deed is dated September 27, 1929. Each instrument was acknowledged the day it bears date and was immediately filed to be recorded.
Garrett contends • appellee was brought to him by Archie Alderson; that while he (Garrett) was working for Lion Oil Company in the field appellee and Archie “. . . called to induce me to employ Mr. Steinberg as my lawyer in connection with ‘ an interest out there. ’ ’ ’ Witness went to Steinberg’s office and signed what he thought was a contract for legal services. The deed recites: “We, John Alderson and Kizzie Alderson, his wife, and Charlie Frazier, for and in consideration of the sum of one dollar to us cash in hand, and legal services rendered by Harry C. Steinberg,” etc.
In the typewritten part of this document Kissie’s name is spelled “Kizzie,” and it so appears in the acknowledgment. In each deed executed ,by Kissie the name as it appears in signature is “Kizzie.”
Counsel for appellants directs attention to the deed of Alderson and his wife and Frazier, and says: “Un doubtedly alterations were made [in the signature] of the deed in question.” Contention is that the two “z’s” were underscored, in consequence of which they resemble the letter “s.”
Appellee’s explanation is that the two deeds had been prepared prior to their presentation to Kissie and the name had been spelled “Kizzie.” Appellee and I. W. Stennett called on Kissie September 30, 1929. She wrote ‘ ‘ Kissie Franceis Alderson. ’ ’ Appellee called Kissie’s attention to the fact that the prepared form carried the name as “Kizzie.” Appellee told appellant to make a “ z ” out of each “ s. ” His testimony is: “ She took the pen and put stems on each ‘s.’ ”
More than a dozen witnesses testified. In point of numbers, witnesses called by appellants exceeded those used .by appellee.
Issues presented are factual. The complaint was dismissed for want of equity. Appellants’ counsel summarizes :
“To say the least, the evidence on both sides is sufficient to reflect doubt, confusion, and irregularities with regard to all the transactions between appellants and appellee.”
The requisite of evidence necessary to avoid a deed or the obligations of a contract in writing must transcend a preponderance. It must be “clear and convincing”; or, as otherwise expressed, “clear and satisfactory.” 20 American Jurisprudence 1103, §§ 1252 and 1253; Morris v. Coll, 147 Ark. 184, 227 S. W. 23; Burns v. Fielder, 197 Ark. 85, 90, 122 S. W. 2d 160; Bevens v. Brown, 196 Ark. 1177, 120 S. W. 2d, 574.
By signing a document which may be placed of record, the person so acting says to the world that he or she (or, if a corporation, it) did, in fact, execute the instrument. The signature imports something more than a mere presumption, once its authenticity is established. True, the means by which the signature was procured may form the basis of judicial inquiry, but the explanation that fraud was perpetrated by or in behalf of the procuring party, while if testified to is evidential, must be supported by circumstances or other evidence which satisfies the court that fraud was the motivating influence.
In the instant case almost eight years elapsed before the deeds were questioned. Under appellants’ summary of the evidence its effect was to reflect doubt, create confusion, and show irregularities. Irregularities may be (and in the chancellor’s opinion were) explained away. Certainly the testimony was in confusion; that is, it was contradictory. But the mere creation of doubt in consequence of contradictory testimony is not enough to justify cancellation of a deed.
The decree is affirmed.
“Deeds,” and “leases” are terms used synonymously, in the record.
A regular printed deed or lease form was used.
The references are to acknowledged instruments. | [
115,
-24,
-40,
76,
56,
96,
-88,
42,
75,
-87,
55,
83,
-23,
78,
8,
45,
-31,
45,
85,
106,
-74,
-93,
87,
102,
114,
-109,
-47,
-35,
53,
-51,
-12,
85,
76,
48,
74,
29,
34,
-94,
-59,
-36,
-50,
-123,
-120,
64,
-39,
0,
48,
43,
50,
75,
65,
-82,
-29,
44,
61,
114,
40,
110,
-1,
56,
-48,
-24,
-77,
4,
93,
23,
49,
69,
-100,
37,
-56,
10,
-104,
53,
8,
-24,
115,
-90,
-42,
116,
14,
9,
12,
34,
102,
33,
-43,
-11,
52,
-100,
47,
-10,
-103,
-89,
-62,
88,
3,
41,
-74,
-99,
93,
80,
-89,
122,
-22,
-123,
92,
56,
-93,
-53,
-42,
-95,
13,
-14,
-100,
23,
-61,
-127,
50,
112,
-51,
-94,
92,
71,
112,
-109,
6,
-15
] |
Smith, J.
Throngh a foreclosure proceeding appellant, Land Bank, acquired a farm of seventy-nine acres which had been mortgaged to it by H. A. Piercy. A contract for the sale of the farm, after the foreclosure, was negotiated by J. F. Backstrom, the “field man” representing the bank, with appellee Treece. Backstrom advised Treece that an offer of $2,000 would be considered if accompanied by a payment in cash of $500. In March, 1932, that offer was made, and Treece was advised that it had been accepted, and that the bank would prepare a deed to Treece and mortgage to be executed by him for the $1,500 balance of purchase money.
On April 1st or 2d Treece moved out to the farm, and found Piercy still in possession, but preparing to vacate. Piercy had disconnected a Delco plant and pump and certain other fixtures. Backstrom advised Treece that these fixture were all included in the sale to Treece and should be delivered to him. A voluminous correspondence occurred between Treece and the bank and its representatives in which Treece demanded the return of the fixtures. Twenty-five letters were written by Treece and twenty-eight others were received’by him, • all of which were offered in evidence.
The bank brought suit in its name and in that of Treece to recover these fixtures. This suit was not heard until May 27, 1933, which was more than a year after Treece had taken possession of the land. A judgment was rendered in favor of the plaintiffs for the possession of the Delco light and water system, the latter consisting of an engine, generator, pumps, and compressor tank. These were all the fixtures in controversy between the parties to this litigation except a kitchen sink, which was adjudged in the replevin suit to be of the value of $10, and a hay fork, hay pulley and carrier, of the adjudged value of $30, so that all the fixtures claimed to have been bought by Treece were ordered to be returned to him except those last men tioned of the total value of $40. The testimony of Backstrom, corroborating that of Treece, makes the fact certain that all these fixtures were shown and sold to Treece by the bank.
All of the fixtures recovered in the replevin suit were delivered to Treece by Piercy except the ‘ ‘ water system consisting of engine, generator, and compressor tank,” and Treece continued to insist that these be returned, but the bank advised Treece that it “. . . feels that it can go no further in assisting you to recover.” Thereafter, on May 7, 1935, a deed was delivered to Treece by the bank, and the mortgage was executed by him to the bank for the unpaid purchase money.
The mortgage required Treece to insure the residence on the farm for the benefit of the bank, and authorized the bank to pay the taxes if Treece failed to do so, and to add the taxes so paid to the debt secured by the mortgage. The residence burned, and the insurance in the sum of $1,138.08, was applied on the debt. Other payments were made until the debt, exclusive of taxes and insurance paid, was reduced to $193.88, according to the bank; according to Treece’s contention it had been reduced to $67.70. The court made no ' specific finding as to which contention was correct.
Treece allowed his payments to fall in arrear, and made written application for an extension of time, signed by himself and his wife, which recited that “We agree that any extension granted shall not impair the debt due The Federal Land Bank of St. Louis under said loan or the lien of its mortgage on the lands embraced in said loan. We further agree to pay said delinquencies within the time provided in any extension granted, and we agree to pay the balance of the mortgage debt as it matures.” The date of this application was May 24, 1937.
Further default in payment was made, and this suit was brought to foreclose the mortgage executed to secure the unpaid purchase money. An answer was filed asking credit for the value of the fixtures not delivered. Testi mony was offered to tlie effect that the value of. the farm was from $350 to $500 less without these fixtures than it was with them. The court made no finding as to the value of any of the fixtures, but made the general finding . . that the defendants have suffered damages because of the failure of plaintiff to deliver possession of said real estate as contracted and sold to defendants in an amount sufficient to offset the balance due upon the promissory note aforesaid together with taxes for the years 1935, 1936, and 1937 and any and all other sums claimed by plaintiff except the sum of $18.10 taxes for 1938 paid by plaintiff, and that such damages should be offset against the claim of plaintiff; that upon payment of said sum of $18.10 to the clerk of this court for the plaintiff, the defendants will be entitled to cancellation and satisfaction of record of said mortgage and the possession of the abstract of title to said premises now held by plaintiff.”
The effect of this decree was to find that a balance of only $18.10 was due on the mortgage, and upon that sum being paid to the clerk of the court the mortgage was canceled and declared to have been paid, and this appeal is from that decree.
It is first insisted that inasmuch as the deed was not delivered until three years .after the fixtures had been removed and the controversy about them had arisen, Treece is now estopped to raise the question. In support of that contention numerous cases are cited holding that antecedent correspondence and prior writings, as well as oral statements and representations, are merged in a subsequent written contract when it is free from ambiguity and is complete.
This is ordinarily true, but is not true in the instant case, for the following reasons. The deed to Treece conveyed the land and ail appurtenances thereunto belonging. Backstrom testified that ordinarily such trades as he made with Treece are closed when the buyer makes a payment, even though the deed is not delivered. He admitted telling Treece that the fixtures were included in the trade and went with the land, and that he at tempted to convince Piercy that the fixtures had been sold to Treece and went with the farm. Treece was put in possession of the farm before the delivery of the deed, and he had made a cash payment of $500. Not only was there no offer to return the cash payment, but it was all-along conceded that the bank had sold Treece property which had not been delivered, and the bank brought and conducted at its own expense a suit to recover the fixtures, and a judgment for their recovery was secured except a part of the fixtures of the value of $40.
' Here, there was no attempt to vary the deed. It was shown only what the appurtenances were, which, admittedly, the deed conveyed, and this to show the extent to which the consideration had failed.
The case of Held v. Mansur, 181 Ark. 876, 28 S. W. 2d 704, was one in which a vendor sought to foreclose a mortgage given to secure unpaid purchase money. The suit was defended upon the ground that the vendee had been induced to purchase through fraudulent representations regarding the land. In such eases it was said that the purchaser might retain the property and sue for the damages sustained by reason of the false representations of the vendor as to the land, in which event the measure of the damages would be the difference between the real value of the property in its true condition and the price at which he purchased it; or, to avoid a circuity of actions, he might plead such damages in an action for the purchase money and have the same recouped against the sum he had paid for the land.
Here, there is no allegation of fraud, but it would be such in effect to require Treece to pay for something which had been sold to, but not delivered to him. No complaint is made as to the character or area of the land. The complaint is that fixtures were sold which were not delivered, and their value at the time and place of s.ale is the measure of damages, and reflects the diminution in the value of the land sued for.
We are also of the opinion that Treece did not waive his claims for these damages by his application for an extension of time for payment. Both prior and subsequent to that event he demanded that these fixtures be returned to him or that he be given credit for their value, and his renewed promise to pay his debt will be construed to mean the balance owing by him when the fixtures had all been returned, or, if not returned, credit therefor had been given.
The judgment in the replevin suit, to which Treece was a party, fixed the value of the fixtures which were not ordered returned to Treece at $40, and he should have credit for that amount. All the other fixtures were returned to Treece except the water system, consisting of an engine, generator, pumps, and compressor tank, and he should have credit for their value.
It appears that when this suit was brought the taxes had not ibeen paid on the land for the years 1935, 1936, 1937, and 1938, and» the land had been sold for the 1935 taxes, and the time for redemption was about to expire, when a redemption was effected, and this was done by paying the taxes for which the land had sold and those which subsequently accrued. The mortgagee bank had the right to pay these taxes to protect its security even though the mortgage itself had not expressly granted that right, as it, in fact, did. The bank appears also to have paid insurance amounting to $5.10, which the mortgage authorized.
The decree of the court below ■ will, therefore, be reversed, and the cause remanded, with directions to ascertain the unpaid balance due on the note secured by the mortgage, to which will be added the taxes and insurance paid, together with the interest. This sum will be credited with $40, the value of fixtures not recovered in the replevin suit, and will be further credited with the value of the water system at the time and place of sale, and judgment will be rendered for the difference, and the mortgage ordered foreclosed, if any balance is found to be due.
Mehaefy, J., dissents. | [
-16,
-27,
-104,
-51,
-118,
-32,
42,
-6,
88,
-80,
55,
-41,
-7,
70,
8,
77,
-123,
125,
85,
112,
-57,
-78,
15,
-62,
-45,
-77,
81,
-35,
-71,
-19,
-76,
87,
8,
36,
66,
-107,
-30,
-128,
-59,
88,
-50,
-123,
-71,
104,
-35,
0,
48,
-117,
54,
76,
84,
60,
115,
46,
29,
75,
73,
46,
-21,
-67,
-15,
-4,
-78,
12,
127,
23,
-95,
82,
-102,
97,
-54,
46,
-112,
53,
1,
-23,
119,
54,
-106,
116,
1,
-117,
8,
34,
102,
2,
97,
-17,
-64,
-104,
38,
-67,
-115,
-90,
-108,
88,
3,
96,
-66,
-97,
116,
17,
23,
124,
127,
-99,
29,
104,
3,
-18,
-106,
-77,
29,
-48,
-100,
-117,
-2,
-121,
52,
113,
-49,
-22,
92,
71,
120,
-101,
-122,
-99
] |
Holt, J.
Appellant, Ellsworth Dansby, brought suit in the Lee chancery court against appellee, R. R. Weeks, to quiet his title to certain lands hereinafter described. The prayer of his complaint was for the cancellation of certain tax deeds issued to appellee as clouds upon appellant’s title to said lands and that his title be quieted as against any claims of appellee.
Appellant alleged in his complaint that the sale of the land to the state of Arkansas for the 1930 taxes was void for a number of reasons, among them being': (a) That said lands were sold for taxes not assessed in any form authorized by law; and (b) The description of said land as contained in the said tax deed and decree of confirmation and foreclosure was so vague and indefinite as to render such proceedings void.
Appellee answered asserting title to the lands by virtue of a deed from the Commissioner of State Lands dated March 11, 1937, based upon a sale and forfeiture of said lands to the state of Arkansas for the delinquent 1930 taxes and also by virtue of a conveyance on January 3, 1938, from the Board of Commissioners of the St. Francis Levee District based upon a decree of foreclosure rendered May 3, 1935, in the Lee chancery conrt for delinquent levee taxes, and further pleaded a decree of the Lee chancery court confirming the title of the state to said lands on November 16, 193-6, under authority of Act 119 of 1935.
Appellant, Maude Russell, intervened claiming an interest in the lands.
The cause was tried before the court below on an agreed statement of facts, which we set out as follows:
“1. On the...............day of......................................., 1929, Taylor Dansby, the then owner of the lands herein involved, died intestate in Lee county, Arkansas, leaving surviving him the plaintiffs, Ellsworth Dansby and Maude Russell, two of his heirs at law; on the - day of ......................., 1930, a decree was rendered by the chancery court of Lee county, Arkansas, in an action for partition of the lands here involved, in which all the heirs of Taylor Dansby were parties; that by the terms of said decree, said plaintiffs became the holders of the title to said lands by the following description:
“South of river, the north half of the southeast quarter of section two; and the north six acres of the south half of southeast quarter of section two (2), township three north (3N), range four east (4E), 68.93 acres.
“2. The official record of the assessment of lands in Lee county, Arkansas, for the year 1930 shows the fractional southeast quarter of section 2, township 3 north, range 4 east, assessed as 154.44 acres with a vahia“tion of $3,000. No other assessment of any part of the southeast quarter of section 2 is shown by said record; nor was any other assessment of said southeast quarter of section 2 for taxes of 1930 made at any time by the county-assessor of Lee county, Arkansas.
“3. On the real estate tax book for the year 1930, the description, acreage and valuation of the said tract of land was, until June 3, 1931, the same as upon the assessment record as shown in paragraph (2) above. On the tax book the name of the owner of this tract, the description acreage and assessed value, taxes, etc., were originally, and until June 3, 1931, as shown upon a copy of the tax record herein exhibited as Exhibit ‘A’ except that, until the third day of June, 1931, no line had been drawn through the acreage, .assessed value, or taxes, nor had any change been made in the figures in any of these columns. Until the said third day of June, 1931, this was the only entry of any part of fractional southeast quarter of section two (2) upon the tax book.
“4. On the 11th day of May, 1931, the collector of Lee county filed with the county clerk of Lee county his verified delinquent list for the taxes of 1930 showing the fractional southeast quarter of section two, township 3 north, range 4 east, 154.44 acres, delinquent in the amount of $101.75. At some later date, the county clerk caused the said delinquent list’, and the affidavit of the collector and the clerk’s certificate of the filing thereof, to be recorded at pages 265 to and including 292 of Yol. ‘A’, of the record of delinquent lands in his office and, upon this record, the total of taxes, penalty and costs for this tract is $112.77.
“5. On June 3, 1931, Belle Dansby, by an agent, made application to pay the 1930 taxes on the south 74 acres of the south half of the southeast quarter of section two (2) and, on the said third day of June, 1931, the county clerk entered upon the 1930 real estate tax books an assessment of this tract in the name ‘Dansby, Belle,’ with acreage, assessed value, number of school district, and rate of school tax, and total taxes of $50.85, all as shown upon Exhibit ‘A’ hereto attached, and at the, same time, the said county clerk drew lines through the acreage, assessed value, and taxes in the preceding assessment on Exhibit ‘A.’ and inserted new figures as indicated for acreage, assessed value and taxes. At the same time, taxes were paid for the said Belle Dansby, $50.85, upon the tract thus assessed to her, and the collector issued his receipt, No. 2262, for such payment upon the south 74 acres of the south half of the southeast-quarter.
“Exhibit ‘A’ is a copy of a page from the 1930 tax book showing alterations made by the county clerk in the assessment and extension of taxes against the real estate. The exhibit discloses that ihe fractional southeast quarter, section 2 appears on the tax hooks with the acreage changed from 154.44 acres to 80 acres; the valuation of $3,000 altered to $1,500; and the total taxes changed from $101.75 to $50.85. The exhibit further shows payment of taxes on June 3, 1931, on the balance of the land in that quarter section, after alteration, at the same valuation.
“6. The county clerk’s record of sales for taxes of 1930 shows the ‘fractional southeast quarter of section two, township 3 north, range 4 east, 80 acres, ’ sold to the state of Arkansas on the eighth day of June, 1931, for taxes, penalty and cost in the sum of $56.83.' There is nothing of record to show when this list was recorded except as shown by the clerk’s certificate thereto attached, which is as follows :
“ ‘State of Arkansas, county of Lee, I,S. C. Langston, county court clerk, within and for the state and county aforesaid, do hereby certify that the foregoing pages numbered from 33 to 107, both inclusive, contain a true list of the several tracts, lots and parts of lots sold to the state of Arkansas on June 8, 1931, for taxes for the year 1930. Witness my hand and seal this 22nd day of June, 1931. (Signed) S. C. Langston, county clerk. ’
“7. No certificate of the publication of the list of delinquent lands for the taxes of 1930 is attached to the delinquent record nor does any such certificate appear of record in Lee county, Arkansas.
“8. The lands sold in 1931 for nonpayment of 1930 state and county taxes were sold to the state en masse, no person being present desiring to bid for any tract upon the list.
“9. The clerk’s certificate of forfeiture to the state for the taxes of 1930, made April 18, 1935, includes a tract of ....................... described as ‘fractional southeast quarter, section 2, township 3 north, range 4 east, 80 acres. ’
“10. (We think the recitals in this paragraph immaterial here.)
“11. That on May 3, 1935, the chancery court of Lee county, Arkansas, rendered a decree foreclosing against these lands the lien of the St. Francis Levee District for taxes due it on these lands for the years 1931, 1932, and 1933; that at the sale held in pursuance of the decree* November 23, 1935, the district was the purchaser; that the said sale was confirmed by the court January 17, 1936, but no commissioner’s deed was ever issued and delivered to tbe said district; that the St. Francis Levee District conveyed the lands to R. R. Weeks by deed dated January 3, 1938.
“12. That on November 16, 1936, decree was rendered in this court in the case of State of Arkansas, plaintiff, v. Delinquent Lands, defendants, No. 5900, quieting and confirming the title of the state of Arkansas to the lands herein described, including ‘fractional southeast quarter, section 2, township 3 north, range 4 east, 80 acres, ’ as having been forfeited for taxes of the year 1930, said decree appearing at page 126 et seq. of Volume ‘M’ of the chancery records of Lee county; a copy of said decree in so far as it affects the lands in said southeast quarter of section 2, being attached hereto. The said confirmation suit whs brought under act 119 of the Acts of 1935.
“13. That the southeast quarter of section 2, township 3 north, range 4 east, contains 154.44 acres according to the G-. L. 0. maps.”
It will thus be seen from the above stipulation that the eighty acres claimed by appellee, Weeks, and to which he seeks to quiet title is described throughout this litigation as the fractional southeast quarter of section 2, township 3 north, range 4 east, and is the identical description used by the county assessor of Lee county in describing 154.44 acres with an assessed valuation placed thereon of $3,000 with taxes on the said 154.44 acres in the sum of $101.75.
It is undisputed that the entire fractional southeast quarter of section 2 was regularly assessed, certified as delinquent and so advertised to be sold on June 8, 1931, and in all these proceedings the lands were described as containing 154.44 acres valued at $3,000 with total taxes of $101.75 assessed.
It is also undisputed that on June 3, 1931, after the collector had closed his books, certified his delinquent list and after the clerk had published notice of sale to be held on June 8, 1931, the clerk wrote on the same page of the tax books the words and figures which appellants insist amounted to an assessment of the 74 acres of the south half in. the name of appellant, Belle Dansby, at a valuation of $1,500 with taxes amounting to $50.85, and at the time the clerk drew his pen across the acreage, valuation and amount of taxes in the regular assessment of the fractional southeast quarter of section 2, and entered new figures to show 80 acres assessed at $1,500 with taxes at $50.85, but did not, however, make any change in the description which remained “fractional southeast quarter of section 2.”
At the same time the collector assumed to receive payment of $50.85 from Belle Dansby and issued to her receipt therefor showing she had paid this amount as taxes on the south 74 acres. These acts on the part of the clerk and collector on June 3, 1931, appellant claims, made the assessment of the fractional southeast quarter of section 2 absolutely void.
Subsequently, as advertised, the property under the description fractional southeast quarter of section 2 was sold to the state, using 80 acres as the area and $50.85 as the delinquent taxes.
On March 11, 1937, the state qi‘ Arkansas conveyed its title to appellee, it. It. Weeks, by the same description, that is the entire fractional southeast quarter of section'2, containing 80 acres.
Since appellant did not file his suit herein until more than 12 months after the decree of confirmation, he concedes that the judgment of the lower court must be affirmed unless the defects existing’ in the sale for 1930 state and county taxes were of such a nature that they could not be cured by the confirmation decree of November 16, 1936, under the act 119 of 1935.
We have in former decisions of this court treated, the provisions of act 119 of 1935 as curative in their effect holding that its purpose is to cure all defects in a sale not related to the power to sell.
In the recent case of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251, this court said: “We think the pur pose of this act 119 and of the decree of confirmation rendered pursuant to its provisions, was to cure any and all defects in the sale-not related to the power to sell, and that it was beyond the prerogative of the Legislature to supply this lack of power, and that the taxing officers were unauthorized to sell land for taxes which were not . chargeable against the land. We think this is the effect of the opinion of this court in Radcliffe v. Scruggs, 46 Ark. 96.”
In Cooley on Taxation, 4th Edition, § 1590, in considering the effect of curative legislation on tax sales, it is said: “One very precise limit to the power to cure these proceedings is this: they cannot be cured when there was a lack of jurisdiction to take them. Curative laws may heal irregularities in an action, but they cannot cure a want of authority to act at all. ’ ’
It is a well-settled principle of law that a tax on land to be valid must be properly assessed. As was said ■by this court in Vandergrift v. Lowery, 195 Ark. 257, 111 S. W. 2d 510: “We think it must appear to every student of taxes or revenue measures that every tax must be assessed in-some form authorized by law before it becomes a legal charge upon the land. ’ ’
In the instant case the county clerk of Lee county, without authority or power, undertook to divide the description, assessment ánd extension of taxes, as assessed by the proper officials on the tax records, against the fractional southeast quarter of section 2, which described 154.44 acres into two tracts, and assessed and extended 1930 taxes against the Belle Dansby 74 acres in the amount of $50.85 on a valuation of $1,500 and accepted payment therefor. At the same time the county clerk assessed taxes against the balance of this land in the fractional southeast quarter of section 2 at a valuation of $1,500 and extended 1930 taxes against appellant, Ellsworth Dansby’s land in the sum of $50.85.
Five days later on June 8, 1931, the collector sold appellant’s land under the description of fractional southeast quarter of section 2 — 80 acres — to the state' of Arkansas for $56.83 being the tax, penalty and costs extended upon the assessment made by the county clerk.
In due course this land was certified to the state and the sale confirmed, and sold by the Land Commissioner to appellee, Weeks, for $81.
A similar situation to that presented in the instant case obtained in Bonner v. Board of Directors, 77 Ark. 519, 92 S. W. 1124, where the tax collector accepted payment on a portion of the land in question and permitted the balance to be sold for taxes extended on his own valuation. This court in holding the sale void for want of power,- said: “The assessor only is authorized to make the assessment. The south halves of sections 34 and 35 were each assessed as a whole. The value of no particular tract was fixed and, from the assessment, it could not be ascertained. One part may be worth more than another. For the purpose of taxation, they could not be subdivided except by reassessment. The offer of the north half of the south half of the sections as separate tracts for sale was without authority and the sale was void.”
The principles announced in the Bonner Case were reaffirmed in Fordyce v. Vickers, 105 Ark. 697, 150 S. W. 2d 402; Id., 99 Ark. 500, 138 S. W. 1010.
It will be noted that the court in these cases held the sale void not for irregularities but for lack of power to sell.
The general rule is well stated in O’Neil v. Tyler 3 N. Dak. 47, 53 N. W. 434, wherein the court said: “It is well settled that, where distinct parcels” of real estate are properly grouped as an entirety for valuation, and one tax is laid against the total value, the tax sale, if made, must correspond to the previous grouping and valuation of the property. No tax collector possesses the legal authority to divide arbitrarily the sum apportioned as a tax against such aggregate valuation, and sell a separate parcel for the whole tax, or any part of the tax. There being no tax against either lot as a separate parcel, there could lawfully be no separate tax sale of either lot. This rule is firmly established by the authorities. (Citing cases.)”
In the instant case the description under which the 80 acres was sold to appellee, Weeks, amounted to no description, therefore, since nothing was described nothing was sold, and the sale was absolutely void.
In Sutton v. Lee, 181 Ark. 914, 918, 28 S. W. 2d 697, this court said: “In the instant case the sale was unauthorized because the description of the land in the assessment and all proceedings involved was insufficient to identify it. It amounted to no description at all. . . . The state acquired no title to the real estate in controversy in the instant case as the assessment and forfeiture were void from the want of description by which same might be located.” -
It is our view, therefore, that the appellants’ contention that the confirmation decree did not cure or supply the lack of power to make the sale for the 1930 state and county taxes because of the erroneous assessment and lack of description, must be sustained.
For the errors indicated, the decree is reversed, and the cause remanded with directions to grant the relief prayed for. | [
-11,
-18,
-108,
28,
-24,
-64,
42,
-119,
67,
17,
36,
83,
45,
2,
68,
101,
107,
45,
-11,
104,
-89,
-73,
47,
118,
82,
-77,
73,
-51,
-74,
73,
-28,
-41,
12,
49,
-54,
21,
-30,
98,
-51,
-104,
6,
41,
9,
76,
-39,
80,
52,
-17,
64,
15,
117,
-82,
-6,
41,
52,
75,
104,
46,
-17,
2,
-48,
48,
30,
4,
125,
7,
49,
71,
-102,
1,
74,
-6,
-112,
48,
-120,
-68,
115,
54,
-62,
100,
0,
-39,
8,
102,
103,
1,
-83,
-17,
-88,
24,
46,
122,
29,
-90,
-30,
72,
67,
-61,
-73,
-99,
120,
16,
70,
-6,
-20,
-123,
29,
108,
37,
-54,
-106,
-111,
7,
-112,
-107,
3,
-13,
15,
48,
112,
-113,
-89,
92,
71,
16,
-101,
-113,
-44
] |
Griffin Smith, C. J.
About January 1, 1939, Olan Mills purchased the Alpha Studio at Pine Bluff, including fixtures, accounts, good will, and “. . . all other rights and privileges pertaining to said business.” The studio had for more than 20 years been used in producing photographs and portrait work.
Prior to his acquisition of the Pine Bluff property, Mills had for many years been engaged in the same character of business at Tuscaloosa, Alabama. After purchasing the Arkansas property he engaged appellant R. E. Morris to solicit orders in the various counties of this state, such orders to be filled from the Pine Bluff studio. The agreed statement concedes that Mills is still a citizen of Alabama, but that the Pine Bluff studio was conducted separately from his. Alabama business; also, that none of the work solicited in Arkansas was sent out of the state to be finished; that Mills had paid all state, county, city and privilege taxes required .by law except the privilege tax specified in act 186 of 1935; Pope’s Digest, § 13367.
Morris was convicted for soliciting in Phillips county without having paid the license fee of $25 required by the act. The defense is that, being a solicitor for Mills, and Mills being in business within the state, the statute is not applicable, inasmuch as the establishment at Pine Bluff had been operated for many years.
The fact remains, however, that Mills’ ownership was of less than a year’s duration. We do not believe it was the purpose of the law to permit one who admittedly had not been in business a year to purchase an existing business and by a process of construction or “merger” of time to say that the purchaser had engaged in business a year.
The act in question was construed in State v. Gray, et al., 192 Ark. 1045, 96 S. W. 2d 447. It was held valid on the ground that it did not discriminate against nonresidents. There it was said: “. . . the provisions of [the act] apply to all photographers doing business in this state, resident and nonresident, citizens of this state and citizens of other states alike and upon equal terms saving those only from payment of the tax who have a permanently established business of one year ’s duration immediately prior to the application for the privilege of doing such business. These and those only who have such established place of business are exempt from paying the tax. ’ ’
Having reached the conclusion that one entering the business or profession in question cannot accelerate' the period of probation by purchasing an existing business and adding to his own time of ownership the period during which his predecessor operated, we must hold that the trial court correctly declared the law.
Judgment affirmed. | [
112,
-5,
-8,
124,
24,
64,
26,
50,
90,
-30,
103,
83,
109,
14,
4,
121,
-31,
77,
113,
73,
-12,
-77,
1,
111,
-46,
-77,
-45,
-47,
-72,
-55,
-28,
-75,
12,
48,
-54,
-55,
-57,
88,
-83,
-36,
78,
32,
11,
68,
-15,
64,
48,
43,
0,
-53,
81,
-115,
-77,
-84,
55,
73,
77,
46,
-99,
-115,
64,
-7,
-6,
-113,
-19,
17,
49,
53,
-5,
1,
-8,
14,
-104,
17,
88,
-24,
115,
-74,
70,
100,
95,
25,
40,
100,
103,
2,
-103,
-25,
-84,
16,
15,
-5,
-99,
-89,
-47,
120,
11,
15,
-65,
-97,
120,
16,
-126,
126,
-66,
21,
25,
104,
-91,
-82,
-106,
-93,
-25,
105,
76,
23,
-21,
86,
16,
117,
-58,
-90,
117,
15,
56,
27,
10,
-47
] |
'Smith, J.
In 1928, the Sun Building & Developing Company, hereinafter referred to as appellee, bought a large tract of land in the Pulaski Heights neighborhood within the corporate limits of the city of Little Bock, for development purposes. Appellee caused a survey of this land to be made into blocks and lots, with intervening streets, and filed a plat of the survey of the property and a bill of assurance with the city council of the city of Little Rock, which the council refused to accept. Subsequently an amended plat and bill of assurance, with certain restrictive covenants, was filed with and accepted by the city council in an ordinance of the council No. 4295. The land so platted is known as Shadowlawn Addition. The accepted plat and bill of assurance, with its restrictive covenants, provided that lots 1 to 24, and lots A, B, C, D, E, P, G and H, which, together, comprised a block, might be used for either business or residential purposes. The restrictions shown on the bill of assurance provided that the business houses should be only one story high, and should cost not less than $20 per front foot, and should be built only of brick, tile, stone, or cement, and that no residence should cost less than five thousand dollars. Lots 1 to 6, inclusive, and a right-of-way across lots A, E, and P, were sold and business buildings were erected thereon.
Thereafter, on March 17, 1937, the city council passed a zoning ordinance, No. 5420,- classifying all property in the city, including the Shadowlawn Addition, under which the property here involved was classed as residential property, and the ordinance provided that property so classified should not be otherwise used. The zoning ordinance provided for a board of adjustment and the method by which the city council could make changes in the classifications. Án unsuccessful attempt was made to change the classification of the block here described, whereupon this suit was filed November 6, 1937, to obtain that relief. Lots 1 to 24 of this block front west on Prospect Avenue. Other lots on the opposite side of the block front east on Jackson' street, with an easement between the lots fronting east and those fronting west. The lots fronting on Prospect Avenue have a uniform depth of 96 feet, and none are wider than ,25 feet. Other lots are as narrow as 20 feet.
It was alleged' and the testimony established the fact to be that these lots 1-24 front upon a street car track running on Prospect Avenue, which is about a foot higher than the lots, and that because of the terrait the lots were not adapted to residential purposes. 'All of these lots, as has been said, were 96 feet in depth, but ' only 78 feet thereof can be used for building purposes, due to the fact that 16 feet on the front and 2 feet at the rear were reserved as an easement to afford ingress and egress to the interior lots, and for proper parking space for automobiles. The front of the business buildings which have been erected in this block conform to this easement, and are set back 16 feet from the property line. It appears from the map of the survey that lots B, C and D might be replatted, but, even so, the lots of which they could be made a part would then have a depth of only 134 feet available for building purposes. Under the zoning ordinance, no building lot may contain less than 7,000 square feet, which is the equivalent of a lot 50 by 140 feet. It would, therefore, be necessary, if one desired to build a residence, to purchase not less than 3 of these lots. The ordinance requires a front yard having a minimum depth of 50 feet. The undisputed testimony is to the effect that it would be difficult, if not impossible, to sell those lots for residence purposes under these restrictions, and that not more than $8,000 could be obtained for all of them if restricted to residential uses, while, on the other hand, the lots are adapted to business purposes and are worth $20,000 if they may be so used.
It is insisted that no showing was made that lots 1-24 were required for business purposes, as other and sufficient lots are available for that purpose. The testimony is to the effect that north and across what would be Prospect Avenue if that street were extended on a straight line through Country Club Station, instead of curving to run in front of lots 1-24, lies other property zoned as business property, on which business houses have been erected, and that there is a space of 200 feet in one block and 150 feet in another already zoned for business purposes, and it is insisted that no more space is required for that purpose.
It appears that all this property, north across the street from the Shadowlawn property as well as the por tion of the Shadowlawn Addition already devoted to business purposes, is owned by the same owner, so that the effect of this zoning ordinance is to give this owner a monopoly of the business sites in that vicinity. This result was, no doubt, incidental, and not intentional, but the fact remains that a monopoly has been created.
The court below found that, as applied to appellee’s property, the zoning ordinance was unconstitutional apd void and constituted a taking of appellee’s property for public use without compensation, and from that decree is this appeal.
It is not contended that the zoning ordinance is unconstitutional in its entirety, but only so as applied to appellee’s property. We announce, in a general way, the legal principles which must be applied to the decision of the questions presented on this appeal.
. It may be first said that the opinions of this court in the cases of Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, and Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, definitely decide the general proposition that such legislation is constitutional; but it also appears, from those cases and especially the one last cited, that there are limitations upon this power, and that it is not absolute and unlimited.
It is pointed out at § 1051 of McQuillin’s Municipal Corporations (2d Ed.), Yol. 3, p. 369, that such legislation is not upheld in all the states as constitutional, but that a majority of the states which have passed upon the question have done so, and that this is the modern tendency.
Possibly the leading -case on the subject, and the one most frequently cited, is that of Village of Euclid et al. v. Ambler Beatty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016. In that case Justice Sutherland said: “Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.” In that case the learned justice said that any line drawn or district established by a zoning ordinance was bound to elicit complaints from the owners of property near which the line was drawn, but that there must be a line somewhere, that such lines often worked hardships in individual cases, but that this was not a fatal objection to the creátion of zoning, districts, and that unless these lines might be drawn, zoning districts could not • be created. He also said that the. hardship which does result in some cases was offset by the privilege of living in a community whose systematic growth and development had been provided by the zoning ordinance, and that there is also a corresponding benefit to the public at large, which flows even to the individual whose land is restricted. But in the opinion it was also said: “When, if ever, the provisions set forth in the ordinance in tedious and minute detail, come to be concretely applied to particular premises, or to particular conditions, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. ’ ’
In a later opinion by the same learned justice (Necto v. City of Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842) a practical application was made of the principle that the arbitrary use or abuse of the police power would be enjoined.
Our own case of Little Rock v. Pfeifer, supra, is to the same effect. In that case, while the constitutionality of the zoning legislation was recognized, we said that an unreasonable and arbitrary building restriction constituting an abuse of discretion by the city council was void, and that an aggrieved property owner was entitled to relief in equity, whether provision for granting relief was made in the statute or ordinance or not.
In all the cases in which zoning ordinances have been upheld, it is recognized that such legislation frequently, if not generally, operates to reduce the value of property the use of which is restricted. But these cases are to the effect that such damage does not constitute the taking of private property within the. inhibition of the Constitution (art. 2, § 22) against the taking of private property for public use without making compensation therefor, and that it is not required that the owner be compensated for this loss of value. The theory is that the owner of such property is sufficiently compensated by’ sharing in the general benefits resulting from the exercise of the police power. Many cases to that effect are cited in the note appearing at page 905, 12 C. J., in the article on Constitutional Law, subhead Police Power. But these and all other cases appear to be in accord in holding that this power may not be arbitrarily used, and must in all cases bear a definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city where the property zoned is situated. .
Applying these principles to the restricted use of lots 1-24, we think the ordinance is invalid, but as the provisions' of the zoning ordinance are, by the express terms thereof, severable, this holding has no application to other portions of the city. Here, the undisputed testimony is to the effect that the ordinance reduced the value of the property from $20,000 to $8,000, and it does this by forbidding its use for business purposes, and by- imposing restrictions upon its use for residential purposes, which the undisputed testimony shows will make the sale of the lots for residential purposes difficult, if not impossible. Only houses costing not less than $5,000 may be erected, and these on lots containing not less than 7,000 square feet, and a front yard of 50 feet must-be provided. The plat and bill of assurance filed with and accepted by the city council provided that all these lots from 1 to 24, inclusive, might be sold and used for either business or residential purposes, and six of the lots are now in actual use for business purposes, and were being so used when the zoning ordinance was passed.
The ordinance will necessarily require the purchasers of the lots adjoining the business houses to build their residences adjoining these building properties. Moreover, the preponderance, if not the undisputed, testimony, is to the effect that as the neighborhood builds up community needs will require additional business buildings, and that the logical direction for this development will be on these lots fronting Prospect Avenue along which the street car tracks now- run, to state highway No. 10, which forms the southern boundary of the block. The testimony is to the effect that the traffic on Prospect Avenue and State Highway No. 10, which form the west and south boundaries, respectively, of lots 1-24, is already heavy, and is constantly increasing in volume, as that avenue and that highway are the principal thoroughfares in and through that neighborhood. Necessarily, this fact alone will reduce the desirability of these lots for residential purposes.
We conclude, therefore, that the court below did not err in holding the zoning ordinance void in so far as it applied to these lots 1-24, and that decree is affirmed. | [
97,
-21,
-16,
108,
26,
96,
24,
-80,
107,
-120,
-11,
91,
77,
76,
84,
37,
-17,
125,
-47,
107,
-91,
-77,
85,
34,
-46,
-5,
123,
-43,
-72,
-35,
-12,
87,
72,
33,
-54,
-99,
-58,
-52,
-3,
-36,
78,
-123,
11,
76,
-39,
64,
54,
115,
80,
71,
85,
-99,
-14,
44,
48,
89,
40,
60,
-39,
45,
81,
-6,
-120,
21,
-1,
7,
33,
116,
-72,
1,
-32,
24,
-112,
53,
0,
-24,
115,
38,
-106,
116,
71,
27,
12,
32,
102,
10,
73,
-9,
-16,
13,
14,
-66,
-87,
-90,
-93,
25,
2,
-118,
-66,
-106,
125,
-64,
7,
126,
-26,
-107,
25,
104,
-119,
-26,
-10,
-95,
-121,
-8,
5,
3,
-29,
-125,
48,
116,
-53,
38,
-34,
-1,
118,
-109,
-114,
-39
] |
Grieein Smith, C. J.
The agreed statement is that O. E. Sharp, appellee’s tenant, owed appellee $1,198.20 for rent and supplies. Proceeds of 60 bales of cotton upon which appellee had a landlord’s lien were, without appellee’s knowledge or consent, applied on Sharp’s note to the Bank of Marion. The bank knew of the lien. Sharp either directed or acquiesced in the transaction. The landlord’s account was due November 1, 1937.
In February, 1938, the bank became insolvent. Appellee’s suit was filed April 12. The bank, Sharp, and representatives in charge of the bank, were made defendants. The claim was not presented to the bank before suit was brought.
June 27 the bank demurred to the complaint, the contention being that refusal of the commissioner or deputy to allow the claim was a condition precedent to the court’s right to exercise jurisdiction. The demurrer was sustained, but the complaint was not dismissed.
In September an amendment to the complaint was filed. It alleged presentation of the claim June 29 and rejection September 2.
There was judgment for appellee as a general creditor, with interest at 6 per cent, from November 1, 1937, and cost.
First. When the bank’s cashier bought the cotton for a company operated by the cashier personally and shipped the commodity to Memphis, Tennessee, receiving payment and applying such proceeds on Sharp’s obligation to the bank, the act of conversion was the act of the bank. Appellee’s lien was thereby destroyed. Sledge & Norfleet Co. v. Hughes, 156 Ark. 481, 247 S. W. 1077; Walker v. Rose, 153 Ark. 599, 241 S. W. 19.
At page 413, 36 Corpus Juris, § 1510 (f), chapter on Landlord and Tenant, it is said: ‘ ‘ Any person who knowingly, by purchase or otherwise, deprives the landlord of the opportunity of enforcing his lien is guilty of a tort, and the landlord has a right of action for the damages sustained.”
While our own cases contain expressions in accord with the rule stated by the text writer of Corpus Juris, there is language in some of the decisions to the effect that where the lien has been destroyed the remedy is by suit in equity “. . . to fix the lien upon the proceeds of the property where the lien on the property itself has been destroyed by the wrongdoer.” Judge v. Curtis, 72 Ark. 132, 78 S. W. 746; Reavis v. Barnes, 36 Ark. 575.
In Security Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820, in referring to the plaintiff’s rights, it was said: “His remedy is by action against the tenant for recovery of the debt and attachment of the property to enforce the lien, or by suit in equity against the third person who has received the property from the tenant to subject it to the lien.” The suit was in circuit court; and, as the opinion says, “improperly instituted.” It was held that in the absence of objections “. . . the judgment should not be reversed merely because the action was brought in the wrong court.”
The question presented in the instant suit is whether an action against the bank can be maintained after the lien period of six months had run.
Appellants rely upon Bottrell v. Farmers’ Bank & Trust Co., 172 Ark. 1165, 291 S. W. 832, in support of their contention that when appellee’s demand was rejected September 2 the lien had expired and the bank could not be held liable. It is insisted (correctly, we think) that the amendment to the complaint did not relate back to April 12, but that the right to sue arose when the claim was disallowed.
In the Bottrell Case Sweeney, the tenant, sold the cotton. The allegation was that the bank received the money, but in the opinion it is said: “Sweeney sold the crop, and, without paying the rent . . . paid the proceeds ... to the bank on his indebtedness.”
There, as here, the tenant owed the bank on an obligation with which the landlord had no concern. On page 1170 of the Bottrell decision there is this language: “So far as we know, thib court has uniformly held, not only that the action by the landlord against the tenant to enforce a lien must be begun within six months, but, when the property on which there is a lien is sold by the tenant,' a suit to enforce a lien on the proceeds must be begun within six months.”
It is true that in the case at bar the property on which the landlord had a lien was sold by the tenant, but the bank, as a party to the act of destroying appellee’s lien by shipping the cotton to Tennessee, participated in the tort. In Bottrell v. Trust Company the bank received proceeds of the sale, but had nothing to do with the actual sale.
Mr. Justice Battle, speaking for the court in Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499, 20 S. W. 406, said: “It is enough to find that the Hammett Grocer Company, having violated or destroyed Meyer’s liens, is liable to him for the damages occasioned thereby. . . . Before recovering this damage, he was not compelled to look to the personal responsibility of Ritchie & Fitzhugh, or to show their insolvency, or to follow the cotton.”
Chief Justice McCulloug’h, in the Sledge & Norfleet Co. v. Hughes, supra, recognized a new cause of action through violation of the landlord’s right when he said: “If the cotton was transported out of this state by the connivance here of appellant so as to destroy the lien and prevent its enforcement, this establishes liability on account of the violation of the rights of the landlord. ’ ’
In Bank of Gillett v. Botts, 157 Ark. 478, 248 S. W. 573, and in Harnwell v. Arkansas Rice Growers’ Co-Operative Association, 169 Ark. 622, 276 S. W. 371, it was held that liens had not been destroyed, but the facts are different from those in the instant case. See, also, Clemmons v. Byars, 197 Ark. 300, 122 S. W. 2d 652.
Claims may be filed against an insolvent bank if proof is made within a year from the time the commissioner assumes control, and suit must be begun within six. months from the date of rejection. Pope’s Digest, § 768.
The holding here is that the bank’s tortious act in depriving appellee of his right to enforce the lien within six months gave rise to a new cause of action.
Second. The chancellor was correct in holding that the demand could not be classified as'preferential. Taylor v. Dierks Lumber & Coal Co., 183 Ark. 937, 39 S. W. 2d 724. Nor can interest be paid unless assets of the bank are sufficient to pay all demands of depositors. Taylor v. Corning Bank & Trust Co., 185 Ark. 691, 48 S. W. 2d 1102; Home Life Insurance Co. v. Wasson, 187 Ark. 769, 62 S. W. 2d 27.
The judgment allowing appellee’s claim as a common creditor is affirmed. The allowance of interest is reversed without prejudice to appellee’s right to claim intei’est if depositors are satisfied in full. | [
-80,
102,
-8,
13,
-54,
-32,
42,
-102,
66,
0,
37,
-45,
-23,
102,
64,
109,
-25,
121,
117,
104,
101,
-77,
7,
98,
-46,
-77,
83,
-43,
-72,
-17,
-12,
-35,
4,
48,
66,
-107,
-58,
-96,
-63,
-100,
14,
-123,
-120,
101,
-7,
64,
48,
111,
32,
79,
33,
-65,
-77,
36,
53,
83,
73,
45,
-21,
-67,
-16,
-71,
-110,
-116,
127,
7,
51,
7,
-116,
37,
-54,
44,
-104,
-73,
1,
-24,
50,
38,
-122,
84,
63,
25,
9,
102,
98,
2,
-95,
-17,
-118,
-104,
-90,
-2,
-113,
-90,
-110,
88,
35,
42,
-66,
-99,
126,
69,
-121,
-10,
-22,
-100,
31,
108,
-121,
-113,
-42,
-73,
-83,
-8,
-102,
-117,
-33,
19,
48,
113,
-49,
-118,
93,
71,
123,
27,
-58,
-35
] |
McHanby, J.
Appellee brought this action against appellant to enjoin him and his agents from interfering with it and its agents in removing felled trees, manufactured lumber, or standing trees from certain lands hereinafter described, the timber on which had been purchased and fully paid for by appellee from appellant. The complaint alleged the purchase of the timber by it, the payment in full of the purchase price, its right to cut and remove same, and the refusal of appellant to permit it, to do so. The contract of purchase and sale between the parties is in writing, was attached to the complaint as an exhibit, and is as follows: “Little Rock, Arkansas, April 2, 1937.
“Received of The Kahler Company, Inc., the sum of thirty dollars, $30, as payment on account of timber purchased in section 14-one north 15, east half of northeast quarter, northwest quarter of the northeast quarter, and the southwest quarter of the northwest quarter amounting to 160 acres. Also, the west one-half of the northwest quarter, section two, one south, range 14 west, 99 57/100 acres. All merchantable timber on 160 acre tract. "Walnut trees are not included. All merchantable pine timber on 99 57/100 acres tract. Total sum agreed upon as the purchase price of both tracts being $350, same to be paid $100 cash, including this payment, same to be made by April 7, 1937, balance in payments as follows: $100 in 30 days from April 7th, $75 in 60 days from April 7th, $75 in 90 days from April 7th.
“Time limit for removing timber not specified. (Signed) W. J. Conch.
“Little Rock, Arkansas, April 7, 1937.
“Received of The Kahler-'Company, Inc., the sum of $70 on contract agreement of lumber purchase, this making a total of $100 paid to date. (Signed) W. J. Couch.”
Appellant answered denying the material allegations of the complaint and, by way of cross-complaint, alleged that the time for removing lumber, logs, and timber from said lands had long since expired and that appellee had forfeited all right to enter thereon or to cut and remove timber therefrom..
On April 2, 1939, upon a trial, the court entered a decree enjoining appellant in accordance with the prayer of the complaint, and gave appellee until October 1, 1939, to cut and remove said timber.
The contract provides: “Time limit for removing timber, not specified.” Appellant says that this clause was written in the contract after he signed it. Mr. Kahler for appellee testified to the contrary. We think it makes no difference whether it was or was not, as without it, no time limit was mentioned.
Appellant testified that there was a verbal agreement at the time that appellee should have only one year in which to cut and remove the timber from said lands,' but it is conceded on this appeal that such testimony was incompetent as in violation of the parole evidence rule. The undisputed proof is that appellee entered upon said lands, began the cutting and removing of timber therefrom promptly and continued to do so from time to time for more than a year and a half, before he was notified by appellant to stay off said lands, claiming that he had had a reasonable time in which to remove the timber therefrom, and that he would not be permitted to cut and remove timber thereafter.
The rule in this state is well settled that, “In a sale of standing timber, when no time is fixed in the con tract within which the purchaser is to remove the timber, the purchaser shall have a reasonable time considering the circumstances, within which to remove the timber.” Headnote to Dunn v. Forrester, 181 Ark. 696, 27 S. W. 2d 1005. A long list of other cases so holding was there collected and cited by the late Chief Justice Hart.
In Liston v. Chapman & Dewey Land Co., 77 Ark. 116, 91 S. W. 27, Judge Wood, speaking for the court, said: “What is a reasonable time is generally a mixed question of law and fact. The facts are to be ascertained by an inquiry into the conditions of the land and timber, the obstacles opposing and the facilities favoring, and the conditions surrounding the parties at the time the contract was made. When all the circumstances are considered, and the facts are determined, the law will declare whether reasonable time- has expired for cutting and removing the timber conveyed. Carson v. Lumber Co., 108 Tenn. (681, 69 S. W. 321), supra. No fixed rules can be established for ascertaining what is a reasonable time. The- facts and circumstances of each particular case must determine this.”
Now, the facts and circumstances in this case are that appellee promptly began the cutting and manufacturing the timber into lumber, employing one Knabe for this purpose. It developed that Knabe’s mill was, in some way defective, so that it did not saw the logs into merchantable lumber, and appellee stopped him from sawing. This necessitated the making of other arrangements by appellee for the sawing* of the timber into lumber. The proof shows that he continued off and on to cut and remove the timber until some time in November, 1938, when he was notified by appellant’s attorney that his time had expired and that he would not be permitted to cut and remove further timber from the land which was about one and one-half years after the date of the contract.
Under these facts and circumstances, and others in the record not herein set out, we cannot say the court was in error in holding that a reasonable time had not elapsed for appellee to cut and remove the timber from said lands, but on the contrary think the court was eor rect in so holding. Since the time given by the court was about six months from the date of the decree in which to cut and remove said timber, and since that time has expired by reason of this appeal, appellee will be allowed six months from the date this opinion becomes final in which to cut and remove the timber from said land.
No error appearing, the judgment will be affirmed. | [
113,
111,
-7,
-116,
27,
-24,
122,
-70,
27,
-95,
36,
83,
-19,
7,
12,
113,
-29,
125,
113,
106,
-59,
-78,
35,
98,
-46,
-77,
-7,
-51,
-68,
77,
-92,
23,
68,
32,
-54,
-107,
-126,
-62,
-51,
28,
30,
-124,
-101,
-20,
-39,
64,
52,
-81,
80,
75,
117,
14,
-5,
44,
21,
-53,
109,
44,
111,
43,
-48,
-8,
-69,
29,
63,
22,
33,
36,
-104,
1,
-56,
74,
-112,
49,
26,
-55,
115,
-74,
-58,
116,
7,
-103,
8,
54,
102,
34,
-115,
-25,
-40,
-104,
46,
-72,
-115,
-90,
-32,
24,
2,
105,
-66,
-108,
118,
-128,
4,
126,
-4,
-115,
29,
108,
3,
-113,
-44,
-93,
-97,
-12,
-100,
11,
-17,
7,
55,
80,
-113,
-30,
93,
71,
48,
-101,
-122,
-15
] |
Mehaffy, J.
The appellee, Metropolitian Trust Company, filed suit in the Pulaski chancery court alleging that it was the owner and in possession of the property described in its complaint; that it was the owner of said property by virtue of mesne conveyances from the United States Government; it further alleged that it was informed and believed that the appellant, Manie Schuman, on January 3, 1939, obtained from the State Land Commissioner, Otis Page, a forfeited land deed which purports to convey the said land under a forfeiture and certification to the state for the delinquent taxes for the year 1935; that the sale of said land to the state for taxes was void and conveyed no title, and that the deed from the Commissioner of State Lands to Manie Schuman was void and invalid and conveyed no title. Appellee then, in its complaint, alleges eleven reasons why the tax sale was void, and states that before filing suit it had tendered to the appellant, Manie Schuman, the amount of taxes for which the land forfeited, with interest thereon, together with all taxes subsequently paid by appellant; no improvements or betterments had been placed on the property, and the tender of taxes had been refused by the appellant. The affidavit of such tender was filed in the office of the chancery clerk before filing suit; that the appellant, Florence Schuman, claims some interest in the property as the wife of appellant, Manie Schuman; that the deeds above-mentioned constituted a cloud on petitioner’s title. The prayer was that the deed from the state of Arkansas to Manie Schuman and Florence Schuman, his wife, be canceled, set aside and held for naught, and that the sale of said lands to the state of Arkansas for the taxes of 1935 be declared void.
The appellants answered denying all of the. material allegations in the complaint, and prayed that the appellee take nothing, and that their title to said property be confirmed.
The court found that the sale by the collector of Pulaski county on November 2, 1.936, of said lands to the state of Arkansas for the nonpayment of taxes for the year 1935 was void and invalid and conveyed no title to the state of Arkansas, and that the deed from Otis Page, Commissioner of 'State Lands, to Manie Schuman, is void and invalid and conveyed no title; that the said tax forfeiture for the taxes of 1935 and the sale of said lands by the collector on November 2, 1936, to the state of Arkansas, and the deed from the State Land Commissioner to the appellant constituted a cloud upon appellee’s title, and that said tax forfeiture and sale should be canceled and set aside and held for naught. The court further found that prior to the institution of the suit and immediately after the sale by the state to appellant, the appellee tendered to the appellant the amount of money appellant paid to the State Land Commissioner, and that said tender was again made in open court and refused by appellant. A decree was entered according to the findings of the court.
The appellants excepted and prayed an appeal to the Supreme Court. The case is here on appeal.
The evidence showed that the amount of taxes and interest had been tendered to the appellant before suit was brought.
L. A. Mashburn, Pulaski county clerk, who was' chief deputy prior to January 1, 1939, testified from the records that the property was sold in November, 1936, for the delinquent taxes of 1935; that the record of delinquent taxes was on page 40 of the record; that it was published in the newspaper, and the land was sold in 1936. He then introduced the certificate of the publisher of the notice, which shows that the fir&t publication was made on October 24, 1936, and the last on October 31, 1936. The certificate of the county clerk was introduced by B. T. Hoff, clerk of the county court, certifying that the record, pages 1 to 355 inclusive, contains a true and correct amount of the delinquent lands, and that said list was published in the Arkansas Gazette, the first publication being on October 24, 1936, and the last on October 31, 1936.
The appellant, Manie Schuman, testified that the appellee offered his money back plus $20 for the five acres, and made no reference to the seven-acre tract and a fractional tract; that his business was tax title and oil business ; he buys all over the country; is at the State Land Office a good deal of the time; sometimes deeds lands back for what it costs him; does not want to hold anybody U¿).
Appellant argues that there is but one question involved, and that is: Does the failure-of the clerk to "make the certification of the publication of the delinquent list before the day fixed for the sale of said lands ’ ’ render the sale void? Appellant further states:
"The evidence establishes the fact that the sale of the lands involved herein occurred on the 2nd day of November, 1936, and that the clerk’s certificate of the publication of the sale was entered on the 5th day of November, 1936. That was 3 days after the sale.”
There is, however, a further question. It is alleged by appellee and not denied by appellants, that the delinquent list for the year 1935 was not advertised and published in accordance with the law.
We deem it unnecessary to discuss any quéstion in this case except the question of the notice of sale. Section 13847 of Pope’s Digest provides for the notice, and reads as follows:
“There shall he published once weekly between the fifteenth day of October and the first Monday in November, in each year, in any county publication qualified by law, a notice to the effect that the delinquent lands, tracts, lots or parts of lots so entered in said delinquent land book will be sold, or so much thereof as is necessary to pay the taxes, penalties and costs due thereon, by the county collector, at the courthouse in said county (or district) on the first Monday in November next, unless the taxes, penalties and costs be paid before that time, and that the sale will be continued from day to day until the said tracts, lots and parts of lots be sold. Said notice of sale of delinquent real estate for taxes shall be printed as may be provided by law.”
It will be observed that the law requires the notice to be published once weekly between the fifteenth of October and the first Monday in November. The former statute required publication of the notice to be published once each week between the first Monday in November and the third Monday,in November. The present statute is the same except the dates on which notice is to be published.
This court said in the case of Edwards v. Lodge, 195 Ark. 470, 113 S. W. 2d 94: “The requirement that ‘there shall be published once weekly’ means once a week. ‘Weekly’ as defined by Webster, means ‘coming, happening, or done once a week.’ The law requires the notice to be published in ‘any county publication qualified by law,’ and this means in one publication or one newspaper. 46 C. J. 560.
‘ ‘Act 16 requires the publication of the notice once a week between the first Monday in November and the third Monday in November. There could, therefore, be but two publications in a weekly paper, and the act evidently requires that it be published each time in the same paper. Tully v. Bauer, 52 Calif. 487; Townsend v. Tallant, 33 Calif. 45, 91 Am. Dec. 617. ’ ’
In construing statutes, it is the duty of the court to ascertain the intention of the legislature, and this intention is arrived at by what the legislature said, and in getting at the meaning from what they have said, it is proper to take into consideration not only the entire act in question, but other statutes on the subject.
When this statute is given a common sense construction, there can .be no doubt that the intention of the legislature was that there should be at least two weeks’ notice given. This could be done, under the statute, by publishing the notice on October 16 and another notice the following week; but instead of publishing the notice between October 15 and November 1, it was published between October 23 and November 1. It, therefore, gave but one week’s notice, and it is clearly the intention of the legislature that there shall be two weeks’ notice.
In the case of Townsend v. Martin, 55 Ark. 192, 17 S. W. 875, Chief Justice Cockrill, speaking for the court, said:
“The notice for the sale upon which the forfeiture to the state is based was not published for the full time prescribed by the statute by three days. It is conceded that that fact is established'by the record. The previous decisions of this court upon the subject of tax titles are uniform to the effect that failure on the part of an officer engaged in the proceedings devised.for raising the revenue to observe a requirement of the statute, the nonobservance of which tends to deprive the landowner of a substantial right, will avoid the deed. The rule was clearly formulated by Judge Scott in Patrick v. Davis, 15 Ark. 363. It had been enforced in previous cases, and has been steadily adhered to since. Notice of the intended sale is of the first importance to the owner, for the reasons assigned in Patrick v. Davis, 15 Ark., supra, and in Thweatt v. Black, 30 id. 739. The failure, therefore, to give notice in the manner or for the length of time prescribed by statute is prejudicial to the owner’s interest, and will avoid the sale. ’ ’
‘ ‘ The first proceeding usually required of the officer who is to make sale is, that he shall give public notice of Ms intention to do so. A notice of sale, as required by statute, is necessary to authorize a tax sale and the absence of the notice renders the sale void. This is one of the most important of all the safeguards that have been deemed necessary to protect the interests of persons taxed, and nothing can be substituted for it or excuse the failure to give it. The notice being a prerequisite to the officer’s authority, the fact that in the particular case it can be shown that the party concerned was fully aware of the proceedings will be of no avail in supporting them. He is under no obligation to take notice of the .proceedings unless notified.” 3’ Cooley on Taxation, § 1409.
There are a number of cases holding, in effect, that the certificate of the clerk filed after the time fixed by law, does not avoid the sale; but these decisions, for the most part, were rendered when act 142 of the Acts of 1935 was in effect; that statue, however, was expressly repealed before this suit was begun.
We know of no authorities, however, that have held that one week’s notice is sufficient, where the statute provides for two weeks ’ notice.
The chancellor correctly held that the sale was void, and the decree is, therefore, affirmed.. | [
-12,
109,
-16,
109,
-86,
80,
56,
-118,
-13,
-127,
39,
83,
-23,
6,
0,
45,
-29,
61,
-31,
104,
-26,
-78,
11,
34,
-46,
-77,
-71,
85,
-76,
77,
-12,
-42,
68,
57,
-54,
-107,
-60,
102,
-113,
-36,
78,
9,
-117,
92,
-39,
96,
52,
-23,
16,
79,
113,
-82,
-14,
41,
117,
107,
-56,
46,
-17,
-69,
72,
-70,
-69,
-123,
127,
7,
1,
52,
-110,
1,
104,
10,
-104,
49,
8,
-120,
115,
-90,
-122,
116,
5,
-103,
12,
100,
102,
25,
-83,
-17,
-88,
-120,
38,
-1,
-99,
-90,
-30,
73,
3,
73,
-74,
-108,
124,
-40,
-57,
-6,
-26,
-115,
29,
108,
7,
-50,
-42,
-95,
38,
-68,
-100,
19,
-29,
107,
48,
112,
-49,
-30,
92,
71,
56,
-101,
-114,
-13
] |
Griffin Smith, C. J.
The appeal is from a judgment compensating appellee for personal injuries sustained while loading lumber.
Appellee, with others, undertook to place a pine timber on a truck. Three men were lifting opposite the end where appellee was working. Negligence alleged is that Hale, a fellow-servant, suddenly released his hold on the timber and walked to the opposite side; that Hale gave no warning of his purpose; that appellee could not abandon his task instantaneously because of the danger to others, and that the unexpected downward thrust of the disproportioned load produced a severe strain, resulting in a hernia.
.Appellant’s abstract of appellee’s testimony does not clearly show whether appellee was aided by one or two men. Hale, however, testified that six men were engaged in the loading process, and that three were at each end. He gave the names of those so employed.
None of those working at the time in question observed Hale’s alleged negligent act.
In spite of the absence of testimony corroborating appellee’s explanation of how he was hurt, it seems conclusive that he was injured while the timber was being lifted.
A written statement dated July 7, 1938, signed by appellee, mentions Hopkins and Hale. There is the further recitation that “I quit work and went to Dr. Jones, and he advised me I had a hernia. About a year ago- I suffered the same injury and lost about a day and a half. This was the same side and Dr. Jones pushed it back and I returned to work.”
Appellee denied having made all of the statements attributed to him in the writing, but admitted having signed it. He said: “Only the top part was correct.” In the verified portion appears the statement that appellee was one of two men lifting one end of the timber when the injury occurred, although in the next sentence he said . . . “Zell Hale [and] Lee Hopkins were on the end that I was working. ’ ’
In the repudiated portion appears appellee’s reference to his visit to Dr. Jones, and there is mention of the former injury. Appellee contended that appellant’s foreman Finkbeiner and an insurance adjuster took the statement, and that “Dr. Jones told [the insurance man that the hernia] was on the same side [that had been ruptured in 1937] and [the insurance man] just put it down the way Dr. J ones said. ’ ’
On cross-examination appellee further explained how the timber was being handled when his injury occurred.
Dr. Jones testified that his last examination of appellee was August 5,1938. Witness first saw the patient in February, 1937. At that time he seemed to be suffering from a pain in the lower left side of the scrotum. An examination disclosed hernia, with possible strangulation. Appellee also, at that time, had enlargement of veins leading to a testicle. History of the case was that appelleé had been struck in the side while loading lumber.
June 20, 1938, appellee came to Dr. Jones (witness) and complained that he had hurt his back while lifting timber. An examination revealed the former hernia, . . only it was an inguinal hernia that had worked its way into the scrotum.” It was larger than in 1937.
Appellee says his 1937 injury was on the right side, and that Dr. J ones told him it was not serious.
Appellant insists the work was being done in the usual way; that in view of appellee’s experience of more than three years he knew what was being done and how the timbers were handled; that the six workmen were in line along the timber and were not at each end, and that if any unusual shifting of the load occurred it was so slight as not to attract the attention of others.
A preponderance of the testimony in point of the number of witnesses sustains these contentions. In this state of the record the trial court would have been justi fied in setting the verdict aside if, in the court’s opinion, the evidence adduced from witnesses for the defendant was more convincing than the testimony of appellee.
It is not impossible for injury to have occurred in the manner claimed by appellee. Hence, as has been held in many decisions of this court, there is authority for holding in the instant case that the evidence was legally substantial.
Appellant thinks the case at bar is controlled by St. Louis-San Francisco Railway Co. v. Ward, Missouri Pacific Railroad Co. v. Vinson, Missouri Pacific Railroad Co. v. Medlock, St. Louis-San Francisco Railway Co. v. Childers, and others of similar import.
In the Ward Case, the holding was that “. . . the evidence discloses a pure accident for which appellant is not liable. ’ ’
It is more tenuous to distinguish the case at bar from the Vinson Case; for, in point of liability or non-liability, they are similar. But there is this difference: In the Vinson Case the alleged act of negligence was an incident to the ordinary method of stacking crossties. Vinson and a colored man were carrying a tie, the former leading. In explaining the occurrence Vinson said: “The colored boy gave [the tie] a shove. Of course, he thought I had it high enough, I guess, I don’t know, and he gave it a shove. ’ ’ It was said in the opinion: ‘£ There is no evidence of a custom requiring the fellow-servant to wait until appellee gave1 a signal. Appellee merely ‘supposed’ that such fellow-servant would watch the process of elevation, and would withhold the shoving operation until the tie had cleared the stack. ’ ’
Effect of. the decision was to say that Vinson assumed the risk.
: In the Medlock Case it was stated: “From aught that appears from this testimony the slipping or stumbling which caused Sleepy Reeves to release his hold on the car may have been due to an accidental misstep. . . . Since the cause of the slipping was conjectural only, it was improper to submit the issue of neglig’ence to the jury. ’ ’
To the same effect is the Childers Case.
In the case before us appellee, testified: “It was not customary when loading for one to turn loose his hold unless he said something about it.”
On the question of negligence we think Great Western Land Co. v. Barker, 164 Ark. 587, 262 S. W. 650, and cases listed in the margin, are controlling.
Affirmance because negligence was established by legally sufficient evidence does not, however, satisfy the rule that the, extent of appellee’s injury and his physical condition prior to the incident, complained ■ of must be shown ■ by substantial evidence. Both are clearly revealed, but instead of supporting the judgment they point with certainty to evidence the jury must have arbitrarily disregarded.
It is conceded appellee was injured in 1937. In June, 1938, he was physically impaired. It is unfortunate that circumstances made it necessary that he engage in labor requiring heavy lifting. It is highly probable that an able-bodied man in appellee’s situation when Hale abandoned his hold on the timber would have experienced no ill effects; and yet, it is remotely possible that even a strong man placed momentarily in an awkward position might have been adversely affected. But even so, the jury could not have returned the verdict it did without assuming facts not substantially presented.
In this situation it is the better practice to reverse, and remand for a new trial. However, we think that when the speculative elements are removed, no jury could return a verdict for more than $1,000. Therefore, if within 15 judicial days appellee shall have entered a remittitur for $4,000, the judgment will be affirmed. Otherwise, it will be reversed, and the cause remanded for a new trial.
The timber was pine cut 4 x 10 inches, 28 ft. in length. Appellee testified it was wet and weighed "from 400 to 500 pounds.” [A cubic foot of slash pine weighs 56 pounds when green, or 48 pounds air dried. There were 7.77 cubic feet in the cut appellee assisted in lifting, or 435 pounds. See The World Almanac and Book of Facts for 1939, p. 715.]
In appellant’s brief at page 7 it is said: “Zell Hale, Jesse and Albert Lovell were at one end and picked it up first. Zell and I got our end up and he turned loose of it. Zell and I were lifting at the same end and there were three other persons at the opposite end.’’
At page 16 of appellant's brief appellee is quoted in substance as having said: “When loading these timbers they had three men at each end. Jesse and Albert and Zell were at the back end and I and (here reporter failed to get the name) were at the other end, and when I hurt myself I told Lee to get down off the truck and finish loading. All picked the timber up at the same time. That was the usual way of loading. . . . They were using the same number of men that day they always used. They had been loading that kind of timber with the same number of men for years.”
197 Ark. 520, 124 S. W. 975.
196 Ark. 500, 118 S. W. 2d 672.
183 Ark. 955, 39 S. W. 2d 518.
197 Ark. 527, 124 S. W. 2d 964.
St. Louis Southwestern Railway Co. v. Smith, 102 Ark. 562, 145 S. W. 218; Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329; Newark Gravel Co. v. Barber, 179 Ark. 799, 18 S. W. 2d 331; Louisiana & Ark. Ry. Co. v. Muldrow, 181 Ark. 674, 27 S. W. 2d 516. | [
112,
104,
-36,
-115,
24,
-30,
42,
26,
121,
-62,
39,
83,
-51,
-121,
77,
111,
-31,
61,
81,
43,
-9,
-77,
19,
-13,
-45,
-109,
115,
-44,
-70,
74,
-92,
-99,
77,
48,
78,
-43,
66,
-118,
-51,
28,
-116,
-123,
-88,
-19,
57,
64,
56,
111,
-108,
67,
49,
-98,
-5,
40,
24,
-25,
44,
46,
107,
40,
-64,
-15,
-78,
13,
95,
20,
-95,
6,
-100,
67,
88,
30,
-112,
49,
24,
-24,
112,
-74,
-127,
-12,
43,
-117,
12,
34,
102,
32,
29,
-25,
40,
-72,
47,
30,
-99,
-89,
-127,
56,
122,
11,
-74,
-103,
120,
20,
54,
126,
-19,
93,
92,
96,
-117,
-114,
-12,
-79,
-49,
96,
-100,
-65,
-25,
3,
34,
113,
-36,
-94,
92,
69,
115,
31,
6,
-86
] |
Smith, J.
Florence Murphy and Lillian Myler, residents of Cleveland, Ohio, owned a 720-acre tract of land in Arkansas county as tenants in common, but since 1929 they had failed to pay the taxes thereon, and in 1930 the lands were sold to J. A. Wilkin for the non-payment of the 1929 taxes, and in 1932 Wilkin received from the county clerk a tax deed therefor.
On May 21, 1935, Shannon Bros,, Inc., a corporation under the laws of the state of Tennessee, purchased from Lillian F. Myler all her interest in the timber standing and growing on the land for a cash consideration of $3,000. Through a defect in the abstract of the title to the land, the fact was not disclosed that Florence Murphy owned an interest in the land, and Shannon Bros., Inc., thought it had .purchased the entire title, subject to the tax title held by Wilkin, to whom, on May 23, 1935, it paid $2,500 cash for a deed to the timber on the land. An’ unsuccessful attempt was made to purchase the interest of Florence- Murphy when her interest was discovered. At that time, a suit brought by Mrs. Myler against Miss Murphy was pending to subject the interest of Miss Murphy in the land to her proportionate part of the taxes.
On August 13, 1935, Miss Murphy entered into a contract to' convey her interest in the land to Ernst and Chris Carpenter, trading under the partnership name of Carpenter, and this suit was brought to enforce the specific performance of that contract. This contract recites that Miss Murphy is the owner and claims ownership of an undivided half interest in the land, and has offered to sell that interest to Carpenter for the sum of $2,200. The contract recited that the title to the property was in dispute, and that a suit was pending wherein Mrs. Myler was plaintiff and J. A. Wilkin, the tax purchaser, was defendant, in which suit Miss Murphy had intervened and filed a cross-complaint against Mrs. Myler, Wilkin and Shannon Bros., Inc. Miss Murphy agreed to convey her interest by a special warranty deed, and that neither she nor the person from whom she claimed title had ever conveyed or agreed to convey said property or the timber standing thereon, but her conveyance was to be subject to the delinquent and unpaid taxes.
This contract recited that “Removal of the timber is being started or planned by certain parties”, and Carpenter agreed to enjoin the removal of the timber, and it was agreed that “said Carpenter or its assigns shall have a thirty’day (30) period of time from the date of this instrument within which to perform same; ’ ’ that is, to perfect the title; and that “Miss Murphy shall place in the DeWitt Bank & Trust Company of DeWitt, Arkansas, for inspection and approval by Carpenter, her said deeds and such affidavits or depositions as shall be required to prove and convey her title; that upon such approval which shall not require more than seven days after the settlement of the litigation said Carpenter or its assigns shall deliver to the said DeWitt Bank and Trust Company to the order of Florence Murphy the agreed sum of twenty-two hundred ($2,200) dollars in cash or certified check (payable at par), in consideration of which the DeWitt Bank & Trust Company shall deliver the deed and all other instruments furnished by Florence Murphy to Carpenter or its assigns.”
This contract was signed by Miss Murphy, and by Carpenter by Ernst Carpenter. The Carpenters acknowledged the contract before a Notary Public and caused it to be recorded on September 12, 1935, without having been acknowledged by Miss Murphy, the grantor.
On September 17, 1935, Miss Murphy conveyed her interest in the standing timber on the land to Shannon Bros., Inc., for the cash consideration of $1,800. It appears, therefore, that Shannon Bros., Inc., paid the total sum of $7,300 for the timber, and no witness placed its value at a higher figure.
On June 17, 1936, Carpenter filed suit in the chancery court to restrain Shannon Bros., Inc., from cutting and removing the timber, and an order to that effect was issued by the county judge of the county, which order was approved and renewed by the chancellor on Julv 13, 1936.
A decree was rendered on a day of the March, 1936, term of the chancery court, in a case styled, “Carpenter, a partnership composed of Ernst and Chris Carpenter v. Florence Murphy, John Francis Walsh, and Shannon Bros., Inc.” It does not appear when this suit was filed. Walsh had purchased the land on which Shannon Bros, had purchased the timber; but the title to the land is not involved in this litigation. The decree recites that Miss Murphy and Walsh, both of whom had been served by the publication of a warning order, filed no answer, “and this cause, as to Shannon Bros., Inc.,' and their rights herein, is not considered, and as to them is continued.” Miss Murphy had previously, on September 17, 1935, conveyed her interest in the timber to Shannon Bros., Inc., and had, at some undisclosed date, conveyed her interest in the land to Walsh, and she evidently assumed that she had no further interest in the litigation, if, indeed, she were aware of its pendency. At any rate, she filed no answer. The decree canceled the deed from Miss Murphy to Walsh.
There also appears in the record a decree rendered November 28, 1936, in a suit, the date of the filing of which does not appear, styled, “Lillian Myler, Plaintiff, vs. J. A. Wilkin, Florence Murphy and Chris Carpenter, Interveners, and Florence Murphy and Chris Carpenter, Cross-Complainants, vs. Lillian Myler, J. A. Wilkin, and Shannon Bros., Cross-Defendants,” in which it was decreed that the tax sales to Wilkin, made in 1930, for the non-payment of the, 1929', taxes, was void. This decree recites no service upon Shannon Bros, nor any appearance by it.
Upon this record a number of questions are discussed in the briefs of opposing counsel; but the findings of fact made by the court below render unnecessary their discussion by us. The court found that Carpenter had not properly offered to comply with its option. The court below found that “The undisputed evidence in this case shows — in fact, it is not denied — that the plaintiffs did not, Avithin the thirty day period fixed in the contract entered into between them and Florence Murphy', comply with the terms thereof, and for that reason alone the complaint must be dismissed; then, for the further reason that this instrument, Avhich was nothing more than an option to purchase executed between the plaintiffs and the defendant Florence Murphy on August 13, 1935, should not have been filed for record, as the acknoAvledgment thereof did not comply with § 1824 of Pope’s Digest of the Statutes of Arkansas.”
The record does show that Carpenter, about September 10, 1935, prepared and sent to Miss Murphy a deed for her execution conveying to them her interest in the land; but the deed Avas not received until after the expiration of the thirty-day option, and did not conform to the option in two essential respects: (1) It recited a consideration of $2,000, instead of the $2,200 which Car penter had agreed to pay; and (2) It contained an unlimited, and not a special, warranty. Moreover, it appears that the draft attached to the deed, drawn on a Mr. Pitts, of Jonesboro, would not have been paid had in been presented. The complaint does allege the ability and the willingness of Carpenter to pay the $2,200, but no actual tender thereof was ever made.
Under these facts we think no error was committed in refusing to grant specific performance of the option to buy, and the decree is, therefore, affirmed. | [
-44,
-24,
-7,
44,
-88,
-32,
42,
-70,
123,
-125,
55,
87,
-49,
-44,
9,
13,
35,
125,
81,
106,
-28,
-93,
51,
38,
83,
-69,
-71,
-35,
-79,
-51,
-11,
-43,
4,
32,
-62,
-99,
-58,
-96,
-51,
88,
30,
-127,
11,
108,
-35,
97,
52,
-81,
0,
73,
117,
-82,
-78,
44,
53,
67,
79,
42,
-17,
41,
67,
-72,
-70,
-108,
127,
22,
17,
100,
-72,
-125,
-56,
10,
-112,
53,
32,
-24,
83,
-74,
86,
-12,
9,
-119,
8,
32,
102,
32,
-51,
-17,
-32,
-104,
46,
-14,
-99,
-90,
64,
88,
18,
104,
-68,
-99,
116,
64,
70,
114,
-4,
29,
29,
104,
5,
-17,
-42,
-109,
-113,
-72,
-104,
3,
-13,
47,
50,
85,
-49,
42,
93,
38,
56,
27,
15,
-7
] |
Grieein Smith, 0. J.
This appeal is from a judgment, based upon a jury’s verdict, that Mary Daniels Gray was the lawful wife of Cassie Gray at the time of his death in November, 1937. The parties are Negroes.
Cassie Gray and Mary Daniels were married in September, 1915. They lived together a little more than a' year. Cassie became a member of the American armed forces in March, 1918, and was honorably discharged in October, 1919. In November, 1920, he married Mary Girtman, the wedding ceremony having been performed in Bastrop, Louisiana, which is in Morehouse parish.
While working for Crossett Lumber Company in 1937, Cassie was killed in circumstances which gave rise to .allegations of negligence upon the part of the employer. December 7, 1937, Mary Girtman, representing herself to be the widow of Cassie Gray, applied for and was granted letters of administration in Ashley county, Arkansas.
In a petition to the Ashley probate court, sworn to December 17, Mary Daniels Gray asserted she was the widow of Cassie Gray; that although her former husband had cohabited with Mary Girtman, the latter was not his lawful wife, and that the petition of Mary Girtman for letters of administration was a fraud upon the court. The prayer was that the appointment of Mary Girtman be revoked, and that the petitioner (appellee herein) be named administratrix. Following a hearing March 19, 1939, the probate court cancelled the appointment first made and substituted appellee as administratrix by appropriate proceedings. Mary Girtman appealed to circuit court, where the contentions of Mary Daniels Gray and the order of the probate court were sustained.
Appellee testified she was almost sixteen years of age when she married; that she and her husband .lived three months with John Brown, then went to her mother; that her husband was engaged in hauriiig logs; that he complained because she was sick; that they re mained with, her mother until after a baby was born to witness; that the baby died in about a year; that two months after the baby’s death Cassie went to Crossett Camp — “somewhere about December, 1916.” Witness went to see Cassie and asked why he had deserted her. He declined to resume the marital relationship, but said: “You are sick. I’ll do all I can for you until you get well.” Appellee remained “there a good little while”— about three months, she being in one house and Cassie in another. Thereafter appellee returned to the town of Crossett. She remained there about three months, then returned to her mother because she (witness) was sick.
There is this testimony: “I was back and forth from my mother’s and Crossett to the camp where he was. He gave me my support. The first amount was $25 in trade at the commissary at Crossett camp, and that followed with about $5 in money off and on. He continued to contribute to my support until his death. He would give me money whenever I saw him. ’ ’
Amplifying her former statements, appellee testified that from March, 1917, until Cassie joined the army, she saw him almost every day. When he returned from service he went to Crossett. Appellee heard he was there and called on him. In 1920' appellee again asked Cassie to live with her, but he was then living with Mary Girtman. Appellee had been to her husband’s home after he and the Girtman woman married. She insisted that Cassie never admitted to her that he had married Mary Girtman, but on the contrary denied it.
For reversal it is urged: (1) The presumption that the marriage of Cassie Gray to Mary Girtman was lawful has not been overcome. (2) Error was committed when the judge entered the jury room while the jurors were deliberating. (3) It was error to refuse to allow appellant’s attorney, on cross-examination of appellee, to ask if Frances Daniels was her mother. (4) Appellant’s attorney, on cross-examination of Fred Murphy, should have been permitted to ask certain questions. (5-6) It was error to refuse appellant’s requested instruction No. 4 and to give appellee’s instructions Nos. 1, 2, and 3. (7) Prejudice resulted from the court’s refusal to admit statements by Roy Gray and Annie Bell, witnesses by whom "it was proposed to prove statements alleged to have been made by Cassie Gray concerning his marital status. (8) The court erred in instructing the jury to disregard the answer of Missie Gray, a witness.
First. The law is well settled that, where a second marriage is established in form according to law, a presumption arises in favor of its .validity as against a former marriage, even though the husband or wife (as the case may be) of the-former marriage is living at the time the second marriage is brought into question. It has been said by this court that the presumption of validity attending the second marriage is not overcome by the presumption of law in favor of continuance of the first marital relation, coupled with the testimony of the former spouse that he or she has not obtained a divorce. Lathan v. Lathan, 175 Ark. 1037, 1 S. W. 2d 67. Authorities relating to the subject are collected in the Lathan Case. The theory upon which the principle rests is that no man is presumed to do an unlawful act. ‘ ‘ The law presumes morality, and not immorality, and every intendment is in favor of matrimony.”
The rule, however, has its limitations, and must give way to reality when facts opposing the presumption are presented. This is true in respect of all presumptions —the term “presumption” being used to signify that which may be assumed without proof, or taken for granted. It is defined as something asserted as a self-evident result of human reason and experience.
We agree with appellant that the verdict upon which the judgment rests should not be sustained if there is a lack of substantial evidence. But, while the statements of appellee may sound improbable and doubt may arise in the minds of discriminating persons as to the truthfulness of appellee’s claim that Cassie Gray contributed to her support after he married Mary Girtman, it must be conceded that the conduct asserted was not impossible, though in the circumstances it seems highly improbable. Essential testimony has been set out in the statement of facts. It was further shown that Cassie had not obtained a divorce in either Drew or Ashley county, Arkansas, or in Morehouse parish, Louisiana. We think the evidence was sufficient to go to the jury, and its finding- that there had been no divorce will not be disturbed.
Second. The record discloses that the trial judge left his hat in the jury room. After the jury retired to consider the issues, the judge, in circumstances free from suspicion, and in a manner not susceptible of ulterior purpose, entered the room for the sole purpose of procuring his hat. Details of extenuation are so clearly established that we deem it unnecessary to copy that part of the record.
Third. Appellant’s attorney had asked appellee concerning policies of insurance payable to Frances Daniels. Appellee had answered (when shown the policies) that she knew nothing about them. The question was: “This policy is payable to Frances Daniels; is that your mother?” There was an objection, and the court ruled: “I can’t permit you to give the effect of what is in that policy unless you prove its legality. She says it is not her policy. That is as far as you can go.” There was no objection subsequent to the ruling. The witness had previously testified that her father was Oliver Daniels and that her mother’s name was Frances. The question, when asked, had become immaterial. The ruling of the judge was correct.
Fourth. This assignment may be dismissed with the statement that appellant did not show what the answér would have been; therefore its materiality is not known. However, the court ruled that the witness had previously answered.
Fifth. It is objected that the court erred in refusing to give appellant’s requested instruction No. 4. It is insisted: “This instruction was taken verbatim from the quotation of this court in the case of Lathan v. Lathan.” In the opinion referred to the court was commenting upon presumptions, and in respect thereof there is the language: . . . “coupled with the testimony of the former spouse that he or she has not obtained a divorce, and has no information as to whether the other spouse has obtained a divorce . . .”
No similar competent testimony appears in the instant case. Its absence was justification for the court’s action in refusing the proposed instruction.
Sixth. This assignment goes to the court’s action in giving appellee’s instructions Nos. 1, 2, and 3. There has apparently been an abandonment of objections to instructions Nos. 1 and 3. Instruction No. 2 is printed in the margin. It is a correct declaration of the law.
Seventh. Roy Gray was asked: “When Mary Daniels Gray’s name was mentioned [to Cassie] what did he say about her?’-’ Am objection was sustained. The question was too general to be competent in the form asked. However, the record does not show what the1 answer, if given, would have been.
Annie Bell testified that appellee visited in her home at Crossett Camp, Louisiana; that during such visits appellee would see Cassie Gray as he passed along-the highway; and on one occasion witness was asked by appellee to call Cassie. There is this testimony:
“I walked to the door and said, ‘Mr. Cassie Gray?’ He said, ‘It is.’ I said, ‘There’s a lady here that wants to see you.’ He said, ‘Who is it?’ I said, ‘Your wife.’ ”
Appellee objected. Counsel for appellant stated that the witness, if permitted to answer, would say that Cassie Gray then said: “That woman is no wife of mine. I have been divorced from her and don’t want to have any part of her. He also said some very ugly and discourteous things about her.”
The objection was sustained and exceptions saved. Other testimony offered by the same witness, and excluded, formed the basis for an exception, but is not urged in the brief.
Appellant quotes from 26 Cyc. 896: “. . . on an issue as to the validity of a marriage, hearsay evidence that the husband had previously been married to another woman is offset by hearsay evidence that he was subsequently divorced.” It is also insisted that certain language in Estes v. Merrill, 121 Ark. 361, p. 370, 181 S. W. 136, is authority for the proposition that the ex parte statement of a spouse, since dead, that he was divorced from a former wife, is competent. It must be conceded that the quoted portion of the opinion seems to support appellant’s position. However, the decision does not show that the testimony was objected to.
We think Brotherhood of Railroad Trainmen v. Fountaine, 155 Ark. 578, 245 S. W. 17, more comprehensively declares the law. There it was said: “Appellee was permitted to prove by the testimony of witness Lindsey, introduced over appellant’s objection, that Meredith had stated to him, subsequent to his intermarriage to appellee, that he had been divorced from his former wife, Nora. Other ■ similar declarations made by Meredith were admitted in evidence, over appellant’s objections. We are of the opinion that this testimony was incompetent and should not have been admitted. We decided on the former appeal that declarations and admissions of Meredith to the effect that he had not been divorced from his former wife, Nora, were not admissible against appellee as the beneficiary under the certificate. We are unable to conceive any rule upon which the declarations of Meredith would be competent evidence against appellant. The statements of Meredith were merely self-serving, and it necessarily follows that they were not admissible against the appellant as tending to show that there had been a divorce.”
Statements of Cassie Gray were self-serving. If Annie Bell told him that his wife (appellee) wanted to see him, and he promptly denied that she was his wife, the statements were intended to sustain his own purposes — that is, to persuade Annie Bell he was telling the truth when he said, “that woman is no wife of mine,” and that he had been divorced from her. • Having married Mary Girtman, self-protection would suggest that 'he declare against a situation constituting bigamy, and in favor of the legal and social regularity of his status.
Eighth. The court ruled that the question (see assignment No. 8) as asked was leading. We agree. But, irrespective of this construction, the record does not show what the answer would have been.
There were no prejudicial errors. The judgment is affirmed.
You are instructed that the domicil or legal residence of a person is in no way affected by his enlistment in the military or naval services of his country and he does not thereby abandon or lose the legal residence which he had when he entered the service or acquire one at the place where he serves. | [
48,
-56,
-4,
13,
59,
-80,
75,
-72,
114,
-128,
-9,
83,
-23,
126,
93,
121,
106,
13,
81,
41,
-93,
-73,
20,
0,
115,
-13,
-87,
-41,
-80,
-51,
-76,
-1,
76,
120,
74,
-43,
102,
-126,
-57,
88,
-124,
-128,
-23,
108,
24,
-110,
56,
107,
68,
15,
113,
-106,
-78,
40,
126,
67,
104,
111,
123,
40,
72,
33,
4,
4,
109,
34,
49,
6,
-112,
-95,
-40,
30,
-112,
17,
16,
-24,
51,
-74,
-126,
116,
3,
25,
8,
48,
118,
11,
-19,
-3,
-120,
-103,
-49,
54,
-35,
-89,
-118,
65,
72,
111,
-74,
-107,
108,
20,
19,
120,
126,
77,
52,
96,
-88,
-49,
-106,
-91,
5,
3,
-100,
19,
-17,
68,
52,
113,
-51,
-18,
81,
82,
49,
-101,
-121,
-112
] |
Humphreys, J.
An information was filed in the circuit court of Lincoln county by the prosecuting attorney of the eleventh judicial circuit of the State of Arkansas, of which Lincoln county is a part, charging Garland Reynolds, Woodrow Taylor and Martin Mc-Bryde with the crime of grand larceny on or about the 24th day of February, 1939, in said county, by wilfully, unlawfully and feloniously taking, stealing and carrying away four hogs, the property of John Estelle with the felonious intent of converting same to their own use and of depriving the true owner thereof contrary to law.
When the case was called for trial in the circuit court Woodrow Taylor failed to appear and a forfeiture was taken on his bond. The state entered a nolle prosequi against Martin McBryde and subsequently used him as a witness in the case against Garland Reynolds, the appellant herein.
Appellant pleaded not guilty and the cause was tried upon the issues joined, the evidence introduced by the respective parties and the instructions of the court, resulting in a verdict of guilty and a sentence to one year in the state penitentiary, from which an appeal has been duly prosecuted by appellant to this court.
The evidence introduced by the state was, in substance, as follows: John Estelle, the owner of the hogs, lived in the northern part of Lincoln county near Snyder-ville. The hogs were allowed by him to run outside in the woods, but they came up to his house, every night. Ervin Williams was living with John Estelle, and during* the afternoon of the 24th of February they heard some dogs barking in the woods and at the suggestion of a passerby that something was happening to Estelle’s hogs he took a .22 rifle and he and Ervin Williams went down there and after walking* about 300 yards they discovered three men, Woodrow Taylor, and two others who ran away, and three of Estelle’s hogs tied by the feet and head. The hogs which were tied were being attacked and barked at by two of appellant’s dogs. In a short time appellant, who had run away, returned to the scene where the hogs were tied, and after claim was made to the hogs by John Estelle, they were released. All the parties then walked over to appellant’s car which was located on the highway about three quarters of a mile distant. While' they were talking, Lester Cogbill and Jess Brown came up and there was considerable discussion about the catching of the hogs and it was agreed that all of them would go down to the home of a justice of the peace by the name of Alf Thomas. Jess Brown testified that while they were standing* at the car appellant told them that the hogs belonged to a negro who paid them to come down and catch the hogs. He told them the negro was Essex Marks’ cousin and denied that Martin McBryde was the negro who had helped him catch the hogs, but later admitted that McBryde was the one that helped him.
Lester Cogbill testified that he understood appellant to say that when he tied the hogs up he thought they belonged to his brother Claudie.
Alf Thomas, the justice of the peace before whom Woodrow Taylor and appellant were brought, stated that appellant said the hogs that were tied belonged to some negro, but that he did not know the negro. He also stated that in a trial before him appellant claimed the hogs belonged to his brother.
Martin McBryde testified that appellant came to him about four o’clock p. m., on the 24th day of February, and got. him to help catch some hogs that he said belonged to him and that when John Estelle and Ervin Williams came upon them they ran .off in the thicket; that they ran off together and that the reason he ran away was because Estelle had a rifle; that after they caught one hog they would catch another; that he helped them tie them; that he was helping them because he wanted to earn the dollar appellant had promised him.
Appellant testified in his own behalf, admitting that he had hired Martin McBryde and agreed to give him $1 to help them catch the hogs, but denied that he told McBryde or anyone else that the hogs belonged to him, but that he told all of them all the time that the hogs belonged to his brother and that when they caught them and tied them up he did so purusant to an agreement with his brother that he might have part of them for catching them. He made the explanation that when he left the scene and ran away he ran down to where his other dog had caught a hog to keep the dog from killing the hog.
Appellant’s brother testified that he had -gotten him to catch his hogs for him; that when he heard of appellant’s arrest, and that the hogs had been turned loose he went over to John Estelle’s home to see them, but after looking at them he decided they did not belong to him although they were marked exactly like his hogs were; that he and John Estelle had the same mark.
Appellant introduced other evidence corroborating his own testimony to the effect that his brother had employed him to catch his hogs.
At the conclusion of the testimony the court at the request of the state gave instruction No. 1, which is as follows: “If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Garland Reynolds, in Lincoln county, and within three years prior to the filing* of the information, unlawfully and feloniously caught and tied up, or helped catch and tie up, the hogs in question, the property of John Estelle, with the felonious intent to convert them to his own use and deprive the true owner thereof, you will convict him of grand larceny as charged.”
This instruction was specifically objected to because he says it told the jury that the catching and the tying up of the hogs was a sufficient asportation of them to constitute larceny whereas larceny is the felonious taking, stealing and carrying away of the property of another.
Apellant asked the following instruction No. A, which is as follows:
‘ ‘ If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Garland Reynolds, within three years next before the filing of the information in this case, did unlawfully and feloniously take, steal and carry away the hogs mentioned in the information, the property of John Estelle, with the felonious intent to convert them to his own use, and to deprive the true owner thereof, you will convict bim of the crime of grand larceny as charged.”
The court refused to give the instruction over appellant’s objection and exception.
Appellant contends for a reversal of the judgment of conviction because there is no substantial evidence in the record showing that the hogs were carried off and that since asportation of the stolen property was a necessary essential of larceny the verdict and judgment of conviction is not sustained by substantial evidence. In other words, the contention for a reversal is that the technical failure to prove that the. hogs were moved after they were caught and tied up leaves the verdict and judgment without any substantial evidence to support same. We can not agree with this contention. There is evidence in the record to support all the elements of a larceny of the hogs unless it be that catching the hogs and tying them foot and mouth do not constitute an asportation of them. The hogs had been turned out to range in the woods near the owner’s home. They were chased and caught one at a time after which their feet were tied so as to keep them from getting away and their mouths were tied so as to keep them from biting appellant and those helping him. They were caught with the dogs of appellant and, according to substantial evidence in the record, appellant and those helping him were going to carry them over to the road for the purpose of putting them into a car and converting them partly to appellant’s own use. In chasing, catching and tying them up one at a time, there was necessarily a moving of them from the place where the owner had permitted them to range. We are of the opinion that from the very beginning of the chasing there was an asportation of them.
It was said in the case of Lundy v. State, 60 Ga. 143, in substance, that the slightest moving from the place in which the goods were left by the owner is sufficient proof of asportation. That was a case where a cow was shot down belonging to another which was ranging in the woods. The defendant in that case took possession of the carcass and proceeded to skin it and when he had gotten half through he was frightened away leaving the carcass of the animal where he had felled it. The court ruled that the facts were sufficient to show ail asportation. So, also, in the case of Cross v. State, 64 Ga. 443, where a person killed a hog, the property of another, and was frightened away before moving the carcass the court ruled that the asportation was complete. In the case of Driggers v. State, 96 Fla. 232, 118 So. 20, the Supreme Court of Florida discussed the question of what would constitute the asportation of animals which, under the Florida statute,- was a necessary element or ingredient of larceny. In that particular case the defendant had killed the animal causing it to fall and lie upon its side • and then proceeded to prepare the carcass for beef. It is true the defendant in that case was a trespasser and had killed the animal in a pasture in which, it was grazing.- A number of cases were cited and commented upon by the court in that case, two of which have been referred to in this opinion, and the court layed down the rule that (quoting the second syllabus) “Asportation of the thing stolen is shown by the slightest • removal; complete severance of the owner’s possession and actual possession by the wrongdoer establishes asportation.” We think under the rule announced that there is substantial evidence in the instant case showing that the asportation commenced when the hogs were chased and caught and was continued in the tying of their feet and mouth. These acts were certainly acts of ownership over the hogs by appellant and a severance of the owner’s possession temporarily or until appellant and those helping him were frightened away. Appellant admits that his purpose and intention was to take the hogs to the home of himself or his brother’s home and we think when he chased them, caught them and tied them up it amounted to an asportation of them during the time he was thus catching and handling them. In other words, we think the catching and tying them was an act in the process of carrying them away, and clearly an asportation of them.
Having determined that there wTas an asportation of the hogs it follows that the court correctly instructed the jury in instruction No. 1 and refusing instruction No. “A” requested by appellant.
No error appearing, the judgment is affirmed. | [
112,
-20,
-68,
61,
8,
-31,
42,
-104,
-45,
-127,
-12,
83,
-29,
-59,
1,
121,
-29,
-3,
92,
121,
-59,
-74,
51,
66,
-110,
59,
-119,
-57,
49,
75,
-90,
-41,
29,
80,
-50,
89,
66,
106,
-91,
28,
-86,
2,
-69,
-16,
96,
88,
56,
41,
20,
-113,
37,
46,
-26,
42,
54,
107,
73,
44,
79,
47,
88,
113,
122,
87,
29,
18,
-94,
-26,
-102,
1,
-54,
62,
-104,
113,
1,
-8,
115,
-78,
-108,
84,
13,
-99,
12,
102,
98,
1,
-3,
-81,
-88,
8,
46,
127,
-39,
-89,
24,
72,
11,
0,
-105,
-99,
82,
80,
6,
-16,
-27,
-67,
93,
104,
37,
-50,
-108,
-109,
105,
-88,
-98,
83,
-5,
101,
100,
113,
-50,
-30,
93,
69,
112,
-97,
-118,
-61
] |
Smith, J.
This suit was brought by the Federal Land Bank of St. Louis, to foreclose a mortgage executed to it by J. F. Lewis, now deceased, and his wife Sarah who is now confined in the State Hospital for Nervous Diseases under an adjudication by the probate court of the county of her residence that she was insane.
A portion of the land mortgaged was owned by Lewis and his wife as tenants by the entirety, the balance was owned by Lewis personally.
The suit was defended upon the ground that Mrs. Lewis was insane when she executed the mortgage, and the court below found the fact to be that she was insane at that time, and decreed accordingly, and this appeal is from that decree.
The question presented for our decision is whether this finding is contrary to the preponderance of the evidence, and as we think it is, the testimony on that issue will be recited somewhat more extensively than would be done if we concurred in the chancellor’s finding.
There was offered in' evidence a letter written by the superintendent of the hospital, which appears to .have been treated by consent as the deposition of the superintendent, which reads as follows:
“Mr. W. L. Parker,
“Mena, Arkansas.
“Dear Sir:
“Complying with your request of the 21st, will say our records reveal that Sarah Lewis was admitted to this hospital February 4, 1923, from Polk county, Arkansas, and paroled April 21, 1923, to J. F. Lewis, Hatfield, Arkansas; discharged April 21, 1924, by expiration of parole; Improved. She was readmitted March 14, 1932, from Polk county, at the age of sixty-nine, and she continued to reside in the hospital since that time. The diagnosis in her case is Senile Psychosis; Simple Senile Deterioration.
“Yours very truly,
“R. E. Rowland, M. D.
‘ ‘ Superintendent. ’ ’
It appears, from this letter, that, after having been a patient at the hospital for something less than two months, Mrs. Lewis was paroled as an improved patient, and one year thereafter, the parole having expired, she was discharged. Nearly eight years thereafter she was readmitted, and she has since been, and is now, a patient at the hospital. Between the -time of her discharge and her readmission, the mortgage in question was executed, the date thereof being August 1, 1924.
The only practicing physician called by appellees as a witness was Dr. B. H. Hawkins, who testified that senile psychosis was a form of insanity known as hardening of the brain or arteries, and that it was not curable, and that the fact that Mrs. Lewis had been dismissed from the hospital did not mean that she was cured. He stated, however, that persons so affected do have lucid intervals, and, when asked, on his direct examination, “Whether a person diagnosed as Mrs. Lewis is would have mental capacity during lucid intervals to sign mortgages or deeds?” answered that this would depend upon the condition of her mind at that time.
A witness giving testimony tending strongly to show that Mrs. Lewis was insane at the time of the execution of the mortgage, was Ed Myers. This witness lived near Mrs. Lewis for a number of years, and saw her frequently, and was of the opinion that she had no lucid intervals. On one occasion, while Mrs. Lewis was visiting at the home of witness, she began making a pie. All at once she quit making the pie, and said she had to go home. This was prior to 1922. Witness saw Mrs. Lewis every week or two thereafter until 1926. He testified as to conduct on the part of Mrs. Lewis which confirmed his opinion that she was not sane. After his cross-examination witness was asked, on his redirect examination: “Q. Mr. Myers, basing your answer on her conduct, as you have stated here, her laughing* and her peculiar actions and talk and maneuvers, would you say at any time you ever saw her she was capable of transacting ordinary business?” He answered: “A. I couldn’t say definitely.” He did say, upon further direct examination, that he did not think he had seen Mrs. Lewis in the last fifteen or twenty years when she was capable of transacting business.
Other witnesses testified that Mrs. Lewis did her household work, but her husband assisted her. Mrs. Lewis thought someone was going to kill her, and was afraid of a mob. She burned some of her clothes, and on another occasion burned some of her bedding. When she did her laundry work, she would boil the colored and the white clothes together. Much testimony to this effect was given by Joe Anders and his wife, but Anders admitted that he had, himself, bought ¡Some-land from Mr. and Mrs. Lewis on April 10, 1926.
Mrs. Mollie Lewis, a daughter-in-law, was appointed and is now acting as guardian for Mrs. Lewis. This witness saw Mrs. Lewis nearly every day, and stated that Mrs. Lewis was not competent to transact ordinary business from the time she returned home until she was recommitted, and expressed the opinion that her condition was no better at the time of her return than it was when she first became a patient. She stated that Mrs. Lewis “lived in an imaginary world; she had a man and she called him Holcop and he ruled for her. ’ ’ The testimony of this witness, if it stood alone, would be very convincing that Mrs. Lewis was at all times incompetent. Her interest in the litigation is, of course, apparent.
Alex Carper and G. H. Johnson testified as to conduct on the part of Mrs. Lewis indicating that she was insane.
Joe Lewis, a son, was called as a witness after appellant’s rebuttal testimony had been offered. The testimony, of this witness is to the definite effect that his mother was insane at all times since her first confinement in the hospital; but his interest also is apparent, and his testimony is greatly discredited by his denial that his mother signed the mortgage, a. fact which no other witness disputes. That Mrs. Lewis did sign the mortgage is a fact established to our entire satisfaction.
Opposed to this testimony was that of J. B. Williams, a superannuated minister, who knew Mrs. Lewis prior to 1918 and until after 1934. He and his wife visited at the home of Mrs. Lewis, and he described the circumstances of this visit and the conduct of Mrs. Lewis during its continuance. He testified: “My personal ob servation was — I knew there was lots of ways that wasn’t bright any way — I made the remark ‘that woman is normal.’ I knew her before.” He was asked: “Q. Her demeanor appeared to he that of a normal person?”, and he answered: “A. Yes, sir.” The visit just referred to was made about three months before fch'e execution of the mortgage. Witness saw Mrs. Lewis at church, and remarked “Well, they done a good job for that woman at Little Rock” (the location of the hospital).
L. A. Cummings lived about 500 yards from Mrs. Lewis since 1916, and was living there in August, 1924 (at which time the mortgage was executed). He notice'd that she was queer and erratic, hut there were times when she seemed to he normal and talked just like other persons. He was at the Lewis home many times, and stated that “Mrs. Lewis was then just like any other house wife,” and he thought she had lucid intervals.
Dr. H. Gr. Heller, a local physician, was called by appellant, and, when asked about the mental capacity of a person suffering from senile psychosis, answered: “There are times when they will be in possession of all their faculties, and again they are not.”
The testimony which appears to us to be very persuasive is that of the notary who took the acknowledgment of Mrs. Lewis to the mortgage. He testified that she personally appeared before him for that purpose, and that he never took an acknowledgment otherwise. He further testified that he read the mortgage to Mrs. Lewis, and she appeared to understand fully what she was doing, and, while he did not know that she had ever been confined in the hospital, there was nothing in her conduct to cause him to suspect that she was an imbecile or incapacitated from managing her own affairs. When asked, “From your observation of Sarah Lewis, at the time she acknowledged the above mortgage, did she appear to fully understand that she was acknowledging a mortgage?” The witness answered: “She absolutely did. I read the mortgage to her.” And he further testified that she appeared to fully under stand the effect of her act in acknowledging and in executing the mortgage.
It further appears that until his death in 1936, Mr. Lewis made regular payments as required by the mortgage without ever questioning its validity.
The law of this case is thoroughly settled, and has been announced in many of our cases. In one of those, that of Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55, 7 A. L. R. 553, it was said that the true rule is that an adjudication of insanity is not conclusive — but prima facie only — of that fact. The discharge of Mrs. Lewis removed any presumption which arose from her confinement in the hospital.
In the'case of Equitable Life Assurance Society v. Mann, 189 Ark. 751, 75 S. W. 2d 232, we said the effect of the parole of a patient previously confined in an insane asylum was to raise another presumption — that of restored sanity.
In the application for the loan in 1924 the age of Mrs. Lewis was stated to be 63 years, and as this was 15 years ago her present age is 78. It will be remembered that Mrs. Lewis was paroled as improved on April 21, 1923, and discharged one year later, on April 21, 1924, and was not again adjudged insane until March 14, 1932, which was eight years after her first discharge from the hospital.
We conclude from a consideration of the testimony which we have briefly summarized, that appellees have not met the burden resting upon them of showing that Mrs. Lewis did not realize and comprehend the nature and effect of her action in executing and acknowledging the mortgage, and the decree of the court below will, therefore, be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
-15,
-19,
-11,
-82,
26,
-64,
-86,
-102,
114,
-96,
37,
-13,
-23,
70,
69,
45,
35,
61,
81,
121,
-13,
55,
55,
43,
-46,
-5,
89,
-41,
-79,
95,
-12,
-99,
72,
40,
-62,
29,
-30,
-64,
-37,
80,
-54,
-105,
-119,
-23,
81,
-46,
48,
47,
-36,
14,
53,
-98,
-93,
46,
21,
127,
73,
42,
123,
44,
-16,
-8,
-118,
31,
75,
6,
-128,
102,
-104,
33,
-40,
30,
-112,
49,
8,
-24,
115,
-74,
-122,
84,
70,
-101,
12,
99,
98,
-102,
77,
-17,
-96,
-88,
18,
-26,
-67,
-122,
-111,
89,
80,
0,
-65,
-99,
124,
84,
15,
124,
-2,
39,
28,
108,
9,
-37,
-42,
-111,
-51,
120,
-100,
-125,
-29,
11,
96,
113,
-117,
34,
93,
-122,
123,
-101,
-114,
-76
] |
McHaney, J.
The purpose of this litigation is to have this court construe act 194 of 1939, as applied to the condition in which appellee school district finds itself relative to its non-bonded indebtedness. Perhaps many other school districts in the state are similarly situated. The facts are stipulated and are as follows:
“1. The outstanding non-bonded indebtedness as of June 30, 1939, amounted to $101,000.
“2. Cash on hand as of July 1, 1939, amounted to $2,291.28.
“3. Proceeds of taxes collected during calendar year, January 1, to December 31, 1939, will amount to $100,000, of which amount $54,000 was collected and paid out prior to June 8, 1939,- for operation of schools during fiscal year 1938-39.
“4. Net proceeds from all other sources for fiscal year 1939-40 will amount to $53,000.
“5. Cost of operating and maintaining schools for regulation nine months’ term during fiscal year 1939-40 will amount to $155,291.28.
“6. The above items of income and expense do not include moneys received or expended in connection with bonded indebtedness of the district.
“7. At a regular meeting’ held November 8, 1939, the directors of the district adopted and approved a budget for operation and maintenance of the schools for the fiscal year 1939-40, (attached as Exhibit ‘A’) and further adopted a resolution authorizing and directing its president and secretary to enter into contracts for purpose of financing the payment of its warrants. (Resolution attached as Exhibit ‘D’.)
“8. That the district will during the fiscal year 1939-40 incur obligations and issue, warrants to the amount of $155,291.28.
“9. That the maximum non-bonded indebtedness at any time reached during fiscal year 1938-39 was $127,000.
“10. Warrants will be issued from time to time in such amounts that the maximum non-bonded indebtedness reached during the fiscal year 1939-40 will be $127,000.
“11. That the district will not have sufficient cash on hand or to its credit with the county treasurer to pay warrants issued from time to time, and in order that such warrants may be cashed, the president and secretary -will enter into contracts with banks or individuals to purchase warrants so issued at par and compensate for such services; or enter into contracts for advancement of money to purchase said warrants at par and pay interest on sums so advanced at a rate not exceeding 7 per cent., and will issue warrants for the payment of such compensation.
“12. That the total amount of warrants issued during fiscal year 1939-40, including warrants issued as compensation to purchasers of said warrants, will not exceed the cash on hand July 1, 1939, the proceeds from local taxes for calendar year 1939, and net proceeds from all other sources; and that the maximum non-bonded indebtedness reached during fiscal year 1939-40 will not exceed the maximum of the preceding year.
“13. The State Board of Education, finding an emergency to exist, authorized the board of directors of said district in accordance with the last paragraph of § 97 (L) of act 169 of 1931, to borrow moneys in amounts not in excess of the maximum non-bonded indebtedness of preceding year, from next year’s revenue and issue warrants in anticipation of such revenue and make arrangements with banks or individuals to carry said warrants, and to pay such purchasers compensation or interest for carrying said warrants. (Copy of resolution attached as Exhibit ‘C’.)
“14. Defendant Henry Murphy, treasurer of Garland county, will register all warrants so issued and pay same in order of registration.
“15. If the district is not authorized to consider all of the taxes collected during calendar year 1939 as revenue, then schools will be forced to close February 1, 1940, resulting in a five months ’ term. ’ ’
Section 1 of said act'194 fixes the school fiscal year as beginning July 1, and ending June 30, following. Section 2 defines “revenue receipts” specifically as: “(1) Net cash balance on hand at the beginning of the school fiscal year, July 1. (2) The net proceeds of local taxes collected during the calendar year (January first to December thirty-first, inclusive) in which the school fiscal year starts (July 1); and (3) The net proceeds of all other funds placed to the credit of the district during the fiscal year from regular revenue sources, including tuition receipts,, fees, etc. ”
Section 3 provides: “The amount of obligations incurred by a school district for any school year shall not be in excess of the revenue for that year as determined by § 2 of this act; provided that school boards may issue post dated warrants for the purpose of purchasing school buses and school equipment. Warrants drawn for this purpose must be paid within four years of date of issuance. The amount of the warrant or warrants drawn to cover payment of school buses and school equipment shall be registered and charged against the budget of the school fiscal year in which it becomes due, and it shall be paid out of the revenue for that school fiscal year; provided further that in case of an emergency as now provided by law the State Board of Education may grant special permission to a district to create temporary current indebtedness.
“Warrants shall not be issued in one school fiscal year to cover obligations incurred in another school year except as provided herein. All warrants issued in excess of the revenue of a district for the school fiscal year except as herein provided are null and void.”
The title of the act is “to define a school fiscal year and to limit the expenditure of school boards to the amount of the revenue for a school year.” It did not have an emergency clause and, although approved March 9, 1939, it did not become effective until June 8, 1939. Plainly, the purpose of the act was to prohibit school districts from continuing- to pile up non-bonded indebtedness and to limit them, in the obligations incurred in any fiscal year to the amount of the revenue for that year as determined by § 2, with but two exceptions: (1) for the, purchase of school buses and equipment, and (2) “in case of an emergency as now provided by law the .State Board of Education may grant special permission to a district to create temporary current indebtedness.” Just what “an emergency as now provided by law” may be is not here determined, but it seems certain’ it could not consist of indebtedness incurred prior to the passage of said act 194.
The agreed statement of facts discloses that appellee district had incurred an outstanding non-bonded indebtedness during the school year 1938-39 of $127,000; that on June 30, 1939, it still owed $101,000; that the district had received from taxes during the calendar year 1939, $100,-000 of which amount $54,000 was collected and paid out prior to June 8, 1939, for the operation of schools during the 1938-39 fiscal year; that it had $2,291.38 on hand July 1, 1939, and will collect during the remainder of the' fiscal year 1939-40 the sum of $53,000;. and that “it will be necessary for the district, in the operation and maintenance of schools for the fiscal year 1939-40, to issue warrants from time to time during- said fiscal year in such amounts that the aggregate of the maximum non-bonded indebtedness of the district for the 1939-40 fiscal year will be $127,000.” This suit challenges the right of appellee to incur a maximum non-bonded indebtedness during the fiscal year 1939-40 of $127,000, since it had, prior to June 8, 1939, paid out $54,000 of its revenue on existing indebtedness or on current expenses; and also challenged appellee’s rig’ht to finance its outstanding- warrants in the manner set out in stipulation No. 11, and particularly to pay interest or brokerage. Trial resulted in a decree dismissing- appellant’s complaint for want of equity, hence this appeal.
It is agreed in stipulation 12 that the plan of operation outlined will not result in an increase of indebtedness during the fiscal year, including the compensation to be paid to purchasers of warrants at par or to be paid as interest to lenders of money to the district with which to pay warrants in cash. So long as this condition remains a fact, we can see no valid objection thereto under said act 194. In other words, the act authorizes school districts to incur obligations during any school year in a sum not in excess of the revenue for that year, as defined'in § 2, without regard to previously existing indebtedness; and, if it pays a portion of said indebtedness out of current revenue, it may incur current indebtedness in a like sum. Here the maximum outstanding indebtedness for the fiscal year 1938-39 was $127,000. On July 1, 1939, the beginning of the new fiscal year, it had outstanding a total of $101,000, showing a reduction of $26,000 which came about by payment out of the revenue for the calendar year of 1939. 'So, it would appear that the appellee can incur indebtedness not in excess of $127,000, during the fiscal year 1939-40, but this includes all the indebtedness mentioned in stipulation Í2.
In this respect said act 194 is not essentially different from amendment No. 10 to the Constitution where city and county officials are prohibited from making contracts and allowances “in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; . . Under this amendment, we held, in Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, that: “the levying board may appropriate the total revenue and the county court may make contracts and allow claims for all the revenue of any fiscal year, regardless of other indebtedness existing at the time of the adoption of the amendment, and regardless of other indebtedness incurred subsequent thereto, provided same was not in excess of the revenue for the year in which it was incurred.” This rule has been stated in many cases. See Miller v. State, use Woodruff Co., 176 Ark. 889, 1 S. W. 2d 998, where it was held to quote a headnote: “While a county cannot increase the amount of its existing indebtedness by incurring debts in excess of its current revenue, it is not an increase of indebtedness within Amendment 11, (10) where a county, which cannot redeem all outstanding indebtedness, at the beginning of a fiscal year issues warrants which cannot be redeemed through lack of funds, but which, when issued, are not in excess of indebtedness outstanding at the end of the prior fiscal year.”
As to the power of the district to borrow money and pay interest therefor to finance teachers’ salaries and other current expenses, we think this power is granted by § 11535, Pope’s Digest, being § 97 of act 169 of 1931. A proviso therein reads: “Provided, nothing in this provision shall prevent any school board from borrowing money from banks, individuals or from next year’s revenue in order to provide funds in such amount that the maximum non-bonded indebtedness of their school districts so incurred shall not be greater than the maximum non-bonded indebtedness of such districts was at any time during the preceding fiscal year.” We do not think the power thus conferred to borrow money from banks and individuals was repealed by said act 194, but the power to borrow from next year’s revenue was repealed by the express provision of § 3 of said act 194 where it provides: “Warrants shall not be issued in one school year to cover obligations incurred in another school year except as provided herein.” There is no express repeal of the other power conferred by the proviso above quoted and repeals by implication are not favored. We see no other inconsistency or repugnance between the two acts.
The power to borrow money conferred on school districts carries with it the power to issue evidences of indebtedness therefor and to pay interest thereon. Schmutz v. Special School Dist. of Little Rock, 78 Ark. 118, 95 S. W. 438. Since the act conferring the power to borrow money, § 11535, Pope’s Digest, does not fix or limit the rate of interest that may be paid, we think the district would not be authorized to contract for the payment of interest or brokerage in excess of the legal rate, 6 per cent, per annum.
With this limitation, the decree will be affirmed. | [
-16,
-3,
-12,
124,
-102,
32,
11,
-102,
-45,
-77,
55,
87,
-23,
70,
5,
97,
34,
53,
80,
88,
-27,
-74,
51,
67,
-42,
-13,
-3,
-43,
-65,
-35,
-20,
-33,
79,
-80,
-32,
-35,
-122,
-78,
-59,
-4,
-114,
-123,
-81,
69,
-35,
-64,
48,
101,
122,
-115,
33,
-49,
-93,
36,
-108,
103,
72,
43,
-39,
41,
-63,
-15,
-80,
-115,
127,
87,
-111,
21,
-116,
5,
-56,
42,
-104,
49,
-124,
-31,
122,
-90,
70,
87,
1,
-87,
-88,
100,
98,
17,
-75,
-1,
-100,
-84,
62,
-13,
-83,
-92,
-105,
89,
35,
9,
-106,
29,
117,
80,
-121,
126,
-26,
-123,
94,
109,
78,
-38,
-28,
-77,
-116,
-12,
-102,
11,
-57,
35,
48,
84,
-51,
-78,
94,
102,
58,
-101,
-57,
-39
] |
Humphreys, J.
The sole issue involved on this appeal is whether appellant bought an undivided one-half interest in the oil, g*as and other minerals in, under and upon the NW]4 of the SW%, section 6, township 16 south, range 22 west in Lafayette county, Arkansas, on the 10th day of March, 1937, from John C. Cook and his wife, Katherine Cook, without notice that appellee, W. P. Riggins, had purchased the same interest therein from Hodge Walton and his wife, Martha Walton, on May 7, 1925, who were grantors in appellee’s chain of title.
Ón May 14,1925, Hodge Walton and his wife, Martha Walton, conveyed the fee simple title to said forty acre tract by warranty deed to B. A. Baucum, and on March 1, 1928, B. A. Baucum and his wife, Artie M. Baucum, conveyed the fee simple title to the forty acre tract by warranty deed to John C. Cook and, as said above, on the 10th day of March, 1937, J. C. Cook and his wife, Katherine Cook, conveyed an undivided one-half interest in the oil, gas and other minerals in, under and upon said forty acre tract to appellant.
All the deeds in appellant’s record chain of title described the lands as being in township 16 south. Prior to these conveyances, on March 7, 1925, appellee, W. P. Riggins, purchased au undivided one-half interest in all the oil, gas and other minerals in, under and upon said forty acre tract of land from Hodge Walton and his wife, Martha Walton, but through mistake of the scrivener the land was described as being in township 15 south instead of township 16 south.
Appellee, W. P. Riggins brought this suit in the chancery court of Lafayette county to reform his deed so as to correctly describe the land as being in township 16 alleging that a mutual mistake as to the description was made in drafting the deed; and also to cancel the mineral deed executed by J. C. Cook and his wife, Katherine Cook, in favor of appellant, Trinity Royalty Company, Inc., and other relief incidental to said reformation and cancellation.
Appellant filed an answer denying the material allegations in the complaint and stating it was an innocent purchaser for value of an undivided one-half interest in all the oil, gas and other minerals in, under and upon the NW% of the SW14, section 6, township 16 south, range 22 west.
J. C. Cook also filed an answer denying the material allegations in the complaint and alleging’ that he was an innocent purchaser for value from B. A. Baucum and Artie Baucum, his wife, of said forty-acre tract.
Upon a hearing of the case the court found that a mutual mistake had been made by the scrivener in drawing the deed from the Waltons to an undivided one-half interest under said forty-acre tract as to the description; that while the deed showed the land to be in township 15 of said range, it should have shown that it was in township 16 of said range and, based upon this finding the court reformed the deed from the Waltons to Riggins so as to correctly describe the land intended to be conveyed; and also found that appellant had notice that Riggins purchased from the Waltons and owned an undivided one-half interest in the minerals under said forty-acre tract at the time it purchased an undivided one-half interest in the minerals under said tract from J. C. Cook and wife and, based upon said finding, canceled appellant’s deed from Coolc. Before appellant purchased said mineral interest from Cook, he demanded and received a certified certificate from an abstractor to the effect that the record showed no outstanding* mineral leases to an undivided onedialf interest in the minerals under said forty-acre tract 'except a one-sixteenth interest therein to C. Y. Lindsey and parties to whom he had conveyed a part of his interest, and appellant makes the contention that, in view of the fact that the record chain of title contained nothing to put him on notice that appellee had an interest in the minerals under said forty-acre tract, he bought in good faith without notice of appellee’s interest therein and is an innocent purchaser for value.
A g*reat deal of the evidence introduced related to the various deeds relating to the record chain of title under which appellant claims, but we deem it unnecessary 'to set out the evidence in this respect as we have concluded that before appellant purchased the minerals from J. C. Cook he had knowledge of sufficient facts to put him, upon inquiry as to the claim and title of appellee to the minerals under said forty acre tract. This court is committed to the doctrine that “notice of facts which would put a man of ordinary intelligence on inquiry is equivalent to knowledge of all the facts that a reasonably diligent inquiry would disclose.” Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; Townsend, v. Caple, 193 Ark. 297, 99 S. W. 2d 258. There are many other eases in our own reports sustaining this doctrine which we deem it unnecessary to cite.
A preponderance of the testimony reflects that J. C. Palmer represented appellant in negotiating the purchase by appellant from. J. C. Cook of the mineral interest under said forty acre tract of land and of course whatever information J. C. Palmer acquired in negotiating the purchase thereof as to the interest of appellee therein bound appellant who was Palmer’s principal. At the time J. C. Palmer was negotiating the purchase of the mineral interest for appellant he was advised 'by J. O. Cook that W. P. Riggins was claiming an interest in the minerals and bad be gone to W. P. Riggins, as be should bave done, and made tbe proper investigations be could bave found out that W. P. Riggins purchased and paid for an undivided one-half interest of tbe minerals under said forty acre tract and that a mistake was made in drafting tbe deed from the Waltons to Riggins. B. A. Baucum was tbe scrivener who prepared tbe deed from tbe Waltons to W. P. Riggins, and be testified positively that at the time tbe deed was prepared and executed tbe Waltons were living upon tbe forty acre tract of land in question and that they owned no other land in Lafayette county and that in tbe preparation of tbe deed he took tbe description either from an old deed or from plats or maps and that be made tbe mistake in describing tbe lands in township 15 instead of township 16. B. A. Baucum bought tbe land a short time after be prepared this deed from tbe Waltons to Cook and said that be bought it knowing that appellee bad purchased and paid for one-half of tbe minerals under said forty acre tract. • B. A. Baucum further testifies that when be sold and conveyed a fee simple title to tbe labd by warranty deed to Cook be notified Cook that, be, Baucum, did not own any of tbe minerals under tbe said forty acre tract. On page 63 of tbe transcript, it appears that B. A. Baucum testified as follows:
“Q. When you sold this land to Mr. Cook was be advised by you that Mr. Riggins owned this royalty?
“A. I don’t remember. He asked about tbe minerals and I told him-1 didn’t bave any minerals; that Lindsey and Riggins bad tbe minerals.”
Our conclusion, therefore, after a careful reading of tbe evidence, is that neither Cook nor appellant were innocent purchasers of an undivided one-half interest in tbe minerals under said forty acre tract; that appellant bought an undivided one-balf interest in tbe minerals under said land from Cook with tbe knowledge that W. P. Riggins was claiming an interest in the minerals and that Cook bought tbe land from B. A. Baucum with tbe knowledge that the appellee, W. P. Riggins, was claiming an undivided one-half interest under same.
We think by proper inquiry and investigation appellant could have discovered and should have discovered that appellee bought an undivided one-half interest in the minerals under the land and paid for same and that the scrivener in drawing the deed from the Waltons to appellee made a mistake by describing the land in township 15 instead of township 16 in said range.
The court granted some incidental relief after the reformation of the deed from the Waltons' to appellee and the cancellation of appellant’s mineral deed, but as appellant has no interest in this incidental relief after the cancellation of his mineral deed, there is no necessity for this court to determine whether the trial court erred in granting’ the incidental relief.
No error appearing, the decree is in all things affirmed. | [
-12,
107,
-40,
61,
40,
-32,
40,
-69,
121,
-95,
-11,
83,
-81,
-46,
16,
57,
-61,
105,
-27,
120,
-105,
-93,
27,
-32,
82,
-77,
89,
-49,
112,
77,
-10,
-42,
76,
40,
-54,
21,
64,
-30,
-49,
92,
-114,
0,
11,
104,
89,
-46,
60,
35,
16,
75,
113,
-82,
-14,
45,
61,
75,
105,
46,
-17,
44,
89,
120,
-70,
78,
31,
6,
0,
100,
-104,
33,
-54,
90,
-104,
48,
8,
-120,
115,
-90,
-106,
116,
79,
-103,
9,
32,
103,
33,
20,
-17,
-20,
24,
55,
-6,
-99,
-89,
-30,
72,
35,
97,
-66,
28,
126,
-112,
79,
-10,
-24,
5,
93,
104,
7,
-18,
-106,
-127,
5,
-24,
-104,
19,
-5,
23,
52,
84,
-49,
-94,
93,
71,
53,
-97,
-114,
-80
] |
Baker, J.
A suit was filed in the chancery court for the Chickasawba district of Mississippi county by Beulah Neal, appellee, against A. P. Travis. The purpose of this suit was- to partition an 80-acre tract of land described as follows: East half of northwest quarter, section 14, township 14, north, range 12 east.
The allegations as to title were to the effect that Beulah Neal and her brothers, naming them, were the owners of the one-half undivided interest in the tract of land and A. P. Travis the owner of the other undivided one-half interest.
While this suit was pending, Mrs. A. P. Travis filed an intervention claiming that she had paid for this 80-acre tract of land and that she had furnished $250 to malee improvements thereon; that this money had not been ■repaid to her. She claimed that the manner in which her money was invested in this land gave her a resulting trust in this property, and that failing to establish this trust, she had an equitable lien and was entitled to have same foreclosed.
The facts as developed show that Mr. and Mrs. Travis were living in Blytheville, Mississippi county, and that Lee Davis was living with them. Mr. and Mrs. Travis had no children and the record is devoid of any statement or explanation as to the relationship among the three of them while they lived together. Travis and his wife insist that they took Lee Davis into their home and gave him home' and shelter, board and clothing, while his brothers and sister claim that Davis lived in the Travis home practically supporting them with his labor.
After a time Mr. Travis and Lee Davis became interested in the land in question. It was owned by Mr. G. Gr. Hubbard and one or 'two brothers and sisters. Mr. Hubbard, however, had the property in charge and made the contract of sale whereby A. P. Travis and Lee Davis agreed to buy the land for $1,600. The price to be paid was divided into four installments — $400 as a cash payment, and $400 each year for, the succeeding three years. Mr. and Mrs. Travis and Lee Davis went to Hubbard’s place of business, at the time this contract was signed. Mr. and Mrs. Travis insist that Lee Davis was not satisfied with the contract as written, and said he would have nothing to do with it in the form in which it had been prepared. Mrs. Travis asserts that she then stated that if Lee Davis did not want to take over the property, she and Mr. Travis would become the purchasers.
Their statements in regard to this particular matter, we think, at this time amount to little, for the reason that even if it were true that Lee Davis asserted dissatisfaction in the contract he did in fact execute it at that time, and he and Mr. Travis assumed charge and possession thereafter until Lee Davis was killed. Mrs. Travis states that she, at the time, made the cash payment of $400, and that she afterwards furnished $250 to buy lumber with which to build a house on the property.
All of the notes evidencing deferred payments owing to Mr. Hubbard were signed by Mr. Travis and Lee . Davis. It is stated that the contract provided that in January each year, the purchasers of the land should give to Mr. Hubbard a chattel mortgage on the crops to be grown during the year to secute each annual payment. These mortgages were executed by A. P. Travis and Lee Davis.
There is no showing what disposition, was made of the crops that were produced by Travis and Davis during the time they farmed this land together. It is undisputed that they regarded themselves as partners operating under the name of f ‘ Travis & Davis ’ ’ and that they farmed the land during the years 1935 and 1936. Lee Davis was shot, and died January, 1937, and it is highly probable that Travis farmed the land during that year.
We are also told that Lee Davis had a $2,000’ life insurance policy during the period of his business opera tions with Mr. A. P. Travis, and made same payable to Mr. Travis as beneficiary who collected the $2,000 payable according to the policy. There is no evidence by him or Mrs. Travis of what disposition was made of this money. Perhaps, that may be immaterial at this time in consideration of the view we take of this suit.
It is now insisted that Travis and Davis borrowed this $1,850 from Mrs. Travis and there is some evidence to the effect that it was intended she should be repaid out of earnings from the land, but, we think, that the court might well have found that more likely the money was an accumulation of earnings of Travis and Davis.
■Since we think it can serve no beneficial purpose to set up in minute detail all of the evidence, we content ourselves with the statement that Mrs. Travis was present when the contract for the purchase of the land was executed. We know that the contract was made with her husband and Lee Davis as the purchasers and that they had obligated themselves to pay for the land. If she furnished her own money to make the cash payment of $400, there was no note given therefor, or other contract or agreement indicating that fact. If she did thereafter,, as she has positively asserted, furnish the remaining $1,200 of the purchase price, and the $250 to buy lumber, she took no kind of a written instrument from Mr. Travis or Lee Davis evidencing any obligation to pay her such sums so supplied by her. Indeed her conduct in regard to these negotiations was such as to indicate very clearly the fact that she did not regard her husband and Lee Davis as’ her debtors. When the notes fell due, or when she decided to pay them before maturity, she took the’ money and discharged these notes, accordinging to her statement, without having them indorsed, transferred, or assigned to her so that she could assert a claim against the property for security. She also claims that she paid some taxes upon the propertv. Her evidence and that of her husband shows that A. P. Travis had no money whatever. There is no explanation in this record of the fact that Mrs. Travis had accumulated money while Davis and her husband remained practically destitute, having only a title to the land.
The trial court dismissed the intervention of Mrs. Travis and then decreed the partition of the land as prayed for by the appellee. From this decree so adjudging the rights of the parties, Mrs. Travis appealed, insisting’ first upon a trust estate in the property, and, second, an equitable lien against'it for the amount of money which she alleges she furnished.
The appellant cites numerous authorities defining resulting trusts and showing under what conditions such trusts may arise from the facts proven; but it is'not now seriously insisted that a trust exists in this case. We devote very little time to the discussion of this proposition. No elements of a trust appear under the conditions testified to by the parties. There was no mistake, no unconscionable conduct that by any stretching of the imagination could be treated or considered as a fraud. There was no abuse of confidence or of the relations of the parties one to another. We content ourselves with the. dismissal of this proposition with the statement that in every case whei’e the courts have declared a resulting trust there had been some act of bad faith, on the part of someone in over-reaching or taking advantage of another in order to profit at the other’s expense; and we dare say there is not a case in' all the books wherein one who has acted as openly as the parties have in.their transactions and negotiations one with another as was here done wherein a resulting trust has been declared.
On the other hand, we find no evidence that would warrant the court in declaring a lien on this property. There was a lien on the property in favor of Hubbard, and Mrs. Travis might well have been the beneficiary of that lien had she desired to claim it against the land at the time she now insists she furnished the money to pay the notes. She could have had Mr. Hubbard assign to her the notes, contract and mortgages, and since she was a stranger to the contract, in no sense'a party to it, she could have enforced whatever lien Hubbard had against, the land. She elected not to do that' and, of course, in the payment for this property, according tc her own testimony, she was a volunteer when she paid over the money. She paid it over for her husband and for his partner who lived in her house. Her testimony given its strongest probative value does not even warrant the court in declaring that she paid these notes at the request of Davis and her husband and so put her in such a position that she could be subrogated by that process to Hubbard’s lien.
According to the case as abstracted for us, there were no special findings of the trial court, but we think that that court might have found, and probably did so, that Mrs. Travis was the treasurer for the family, the keeper of the earnings, and that she supplied the money when the occasion or necessity arose, and on that account the land was paid for from a common fund belonging to Travis and Davis.
The necessary conclusion follows that Mrs. Travis’ intervention was without merit.
The decree of the trial court was correct.
Affirmed. | [
-14,
109,
-84,
-19,
-88,
96,
8,
-78,
-6,
-125,
-30,
83,
-21,
-44,
25,
109,
-93,
61,
85,
104,
-91,
-89,
19,
96,
-46,
-77,
105,
-43,
-80,
77,
116,
-41,
73,
32,
-62,
81,
66,
96,
-51,
30,
-50,
-127,
43,
104,
-39,
-32,
48,
43,
16,
15,
117,
-89,
-77,
45,
53,
75,
77,
14,
-33,
43,
81,
40,
-118,
4,
125,
7,
-80,
103,
-72,
1,
-56,
26,
-104,
53,
-128,
-24,
115,
-74,
-122,
116,
7,
-103,
8,
34,
102,
50,
-115,
-17,
-128,
-100,
47,
-66,
-103,
-90,
-60,
73,
18,
105,
-65,
-99,
112,
80,
-106,
112,
124,
69,
29,
104,
7,
-17,
-42,
-111,
13,
-72,
-100,
3,
-29,
31,
48,
81,
-51,
-94,
93,
-26,
52,
-101,
-53,
-15
] |
Mehaffy, J.
The appellants, Prank E. Kirby and W. S. Compton, filed a complaint in the Pulaski circuit court alleging that while appellant Kirby was driving a truck belonging to appellant, Compton, the truck driven by Kirby collided with a truck belonging to the appellee, Swift & Company, and being operated by the appellee Mulhein, at a point on Roosevelt Road immediately west of the viaduct passing’ over the Rock Island and Missouri Pacific tracks. The complaint alleged that the truck of Swift & Company was parked in a negligent and improper manner without any lights or signals to warn other persons on the highway of its presence. Appellants prayed judgment in favor of Kirby for $3,000 and in favor of Compton for $360 for damages to his truck.
Appellees answered denying the material allegations of the complaint, and pleading contributory negligence.
The evidence showed that the accident happened about 6:30 in the morning on November 18, 1938. There was at that time a heavy rainfall, and appellee Mulhein was driving a truck for Swift & Company, for whom he had worked nine or ten years. In driving the truck for Swift & Company, he made Hot Springs and Benton on his route. On the morning of the accident he loaded the truck and left the plant at about 6:15 and went down Broadway to Third Street, came out Broadway to Seventh, and stopped there about ten minutes, then started for Hot Springs going out 'Broadway and turning right on.Roosevelt Road. The truck became drowned out just before he got to the viaduct. He struck a big sheet of water standing on the road and the truck started spitting. He just reached the crest of the viaduct and let it roll over on the other side, where it stopped. He stopped his truck with the right-hand side a foot or two from the curb. The front wheel was a little closer than the back wheel. The motor would not run. Mulhein asked someone passing to call up and tell'them that he was drowned out, and he then started to go up to the orphanage to telephone. When he stepped out of his truck he saw a car coming’ behind him and started to walk back of the truck, but when he got even with the back, this truck that he had seen coming was 50 or 60 feet from him and was making no effort to stop. He then started backwards holding up his hands. When he first saw the truck coming’ it was 300 or 400 feet away and did not have any lights on. He had on a white jacket. The rear doors of his truck were closed and he had turned off his lights when he started to the orphanage. The other truck ran into the hack end of Mulhein’s truck. He and another person got Kirby out of- the truck. Someone suggested that they take him to the hospital, but Kirby wanted to be'taken to the office. The jolt knocked Mulhein’s truck three or four feet and knocked the doors of the truck open. , Kirby, who was driving the truck of the Compton Candy Company, left the plant about 6 o’clock' in the morning. It was raining hard. He drove to a filling station at 25th and Arch Street. There was no attendant there. It was raining very hard at the time and he waited there until about 6:10. or 6:15, waiting for the attendant. While waiting there he saw the truck of Swift & Company pass going towards'Hot Springs. He waited there 15 or 20 minutes and had his truck serviced. He was waiting for the rain to cease so he could go ahead. The rain would only let .up when the wind would cease blowing. It was still raining when he left the filling station. He saw it was not going to stop, so he went on. His route was through Benton and Traskwood and then back to Little Rock. He drove approximately 15 miles an hour. The rain was falling so fast that he could not see. Was trying to protect himself from other cars and trucks that would be parked on the side of the road. His windshield wiper was working properly. There were two cars coming down the grade from the west and the lights were in his eyes. He could see the lights, and suddenly this truck appeared before him, and he pulled to the left. He thought he could go to the left and cut around the car, but he saw that the car coming from the west would hit him if he got too far over. He was in his right lane. The door of the truck, was open, leaving a black void in front of him. He did not have an opportunity to apply his brakes and avoid the collision. He was right on the truck at the time. There were no lights on the rear of .the truck. Had there been any lights on the Swift & Company truck he could have seen them. When the truck driven by Kirby hit the other, it broke the steering wheel and the boxes of confections were shoved through the truck onto Kirby. Kirby was seriously injured. The Compton truck ivas damaged considerably. . „
The jury returned a verdict for appellees, and the case is here on appeal.
The appellants say that they raise -but one issue on this appeal, and that is whether instruction No. 5 given at the request of appellees is erroneous. The instruction reads as follows:
“You are instructed that if you believe from the evidence that the plaintiff, Frank E. Kirby, was driving the truck belonging to Compton Candy Company at such a speed that he could not bring it to a standstill within the distance that he could plainly see parked oars, trucks, or other objects ahead of him, under the conditions existing at the time of the collision, and that such speed contributed to or caused the injury complained of, then your verdict will be for the defendants as to both plaintiffs.”
Appellants call attention to Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676. In that case there had been a collision between an automobile and truck at the intersection of streets in the city of Fort Smith. The court instructed the jury in substance that no person should drive a vehicle upon any public street or highway in thpt city at a greater rate of speed than is reasonable or proper, having regard to the traffic and the use or condition of the way, so as to endanger the life or limb or injure the property of any person. The court then instructed the jury that if appellant was driving his vehicle at a speed greater than 20 miles an hour, such speed is prima facie evidence that he was operating at a greater speed than is reasonable. He further told them that if they found that such speed was the proximate cause of the collision and damages, if any, proved by the evidence, then the verdict should be for the plaintiff. It was earnestly insisted in that case that the instruction given was erroneous. The court said in that case “that the appellant was driving at a speed greater than 20 miles an hour was one of the facts which the jury had a rig’ht. to consider in determining* whether or not he was negligent.” The court gave several other instructions that were objected to, and the judgment was reversed because of the giving of erroneous instructions. One error in that case, as stated by the court, was that the instruction told the jury to find for the plaintiff if the violation of the statute was the proximate cause of the collision and damage, without requiring the jury to find whether the appellant was negligent in failing to comply with the law.
Of course, the appellants could not recover if Kirby was guilty of negligence, and that negligence contributed to cause the injury.
Whether Kirby was guilty of negligence was a question for the jury, and not for the court. The above instruction speaks of the conditions existing at the time of the collision. The conditions were that it was early in the morning, a heavy rain falling, and one could see but a few feet ahead. Another condition was that the Swift & Company truck was parked on the road in the dark without any lights. The driver of said truck had turned the lights off so that one approaching could not see the truck until he came within a very few feet of it.
The law requires that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. Instead of submitting to the jury the question of whether the speed of Kirby’s truck was greater than was reasonable and prudent, the court told the jury that Kirby would be guilty of negligence if he could not bring his car to a standstill within the distance he could plainly see parked cars. In other words, the court, in the instruction above referred to, did not leave to the jury the question as to whether Kirby was guilty of negligence, or whether the rate of speed, under the conditions' existing at that time, was reasonable and prudent.
This court, in the case of Coca-Cola Bottling Company v. Shipp, 174 Ark. 130, 297 S. W. 856, reviewed the authorities and adopted the view of the Oregon court, which said:
“Appellant’s principal contention, aside from the question as to the proper measure of damages, is that we should hold as a matter of law that plaintiff was guilty of contributory negligence in failing to stop his automobile within the range of his vision. While some courts have announced a hard and fixed rule that it is negligent to drive an automobile at such rate of speed that it cannot be stopped within the range of the driver’s vision, ... we think it improper to do so. Bach case must be considered in the light of its own peculiar state of facts and circumstances. After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? Can we say that all reasonable minds would reach the conclusion that plaintiff failed to exercise due care to avoid this collision? We think not. Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put this dusty gray truck on the highway after dark without displaying a red light on the rear thereof. If the truck had béen lighted, the jury might well have drawn the reasonable inference that plaintiff would have been able to avoid striking it. . . . While there is authority to the contrary, we believe the better reasoned cases support the holding that whether plaintiff failed to exercise due care to avoid the collision was a question of fact for the jury.”
In the instant case, Kirby certainly had the right to assume, in the absence of notice to the contrary, that the appellee would not park a truck on the highway and turn out the lights when it was so dark that one could see but a few feet ahead.
This court said, in the case of Bush v. Brewer, 136 Ark. 246, 206 S. W. 322: “While appellee did not succeed in stopping his car before striking the train, he almost did so after he discovered it, and he would perhaps have done so within the distance if the road had not been wet and unduly slick. . . . The most careful and cautious man will frequently make mistakes in measuring and estimating distances within which he can stop his automobile. We think under the facts and circumstances of this case the question of negligence on the part of the appellees in this regard is a question solely for the jury.”
Kirby had a right to assume that no one would park a car on the road without lights, and the evidence in this case shows that the driver of the Swift & Company truck, notwithstanding it was so dark one could see but a very short distance, turned out the lights for no reason except to save his battery.
In the case of Blakely & Son v. Jones, 186 Ark. 1169, 57 S. W. 2d 1032, this court said: “In determining what is or is not negligence in any given case, the test is always what in the light of all the circumstances and in situations similar to that of the person under inquiry, one 'of ordinary prudence would or would not do, and where men of ordinary intelligence might differ in their honest judgment, the question of negligence is one for the jury.”
In the case of Coca-Cola Bottling Company of Blytheville v. Doud, 189 Ark. 986, 76 S. W. 2d 87, the court gave the instructions requested except for the concluding sentence, which was as follows: “And you are further instructed that it was her duty at the time to be driving the car at such reasonable speed and with such reasonable care that she could bring it under control.” The court said: “This sentence does not correctly state the true rule as to the control of a car by its driver . . . The rule is that the driver must have his car under such reasonable control as would enable him to avoid accidents which might be foreseen by the exercise of ordinary care.”
What would be the exercise of ordinary care is a question of fact for the jury.
In driving the automobile in the instant, case, Kirby saw the lights of approaching automobiles, but did not see the parked truck until he got almost upon it. He then undertook to go around it and could have done so but for the cars approaching him. He saw that he would be hit if he went too far over to the left, and it was then impossible for him to avoid hitting the parked car.
All of our authorities hold that one must have his car under control where there is reason to apprehend danger, and they are unanimous in holding that the question of negligence is one for the jury. While there are numbers of authorities to the contrary, we have adopted the rules above set forth, and adhere to them.
For the error in giving the above instruction, the judgment is reversed, and the cause remanded for a new trial.
McHaney, J., disqualified and not participating. | [
-16,
73,
-104,
-114,
56,
106,
42,
-70,
-47,
-127,
-75,
-45,
-49,
-47,
13,
37,
-10,
29,
-15,
59,
-11,
-89,
7,
-94,
-46,
19,
121,
15,
-79,
74,
116,
-10,
77,
16,
-54,
21,
-90,
72,
-59,
-36,
-50,
6,
41,
-8,
-39,
-104,
56,
122,
20,
7,
97,
-97,
-42,
46,
24,
67,
45,
46,
-19,
-85,
-45,
112,
-58,
7,
127,
2,
-95,
6,
-103,
1,
88,
27,
-104,
53,
32,
-100,
112,
-90,
-125,
-11,
33,
-119,
12,
-26,
98,
42,
21,
-89,
-20,
-104,
46,
122,
25,
-90,
-72,
41,
9,
-55,
-66,
21,
114,
82,
23,
122,
126,
69,
93,
104,
3,
-113,
-76,
-127,
5,
32,
-98,
23,
-21,
-113,
55,
116,
-115,
-14,
92,
7,
18,
27,
-41,
-10
] |
Smith, J.
This suit was brought by appellant, as a citizen and taxpayer of the city of Little Rock, to enjoin the extension and collection of an ad valorem tax of five-eighths of a mill for the use and benefit of the Firemen’s Pension and Relief Fund of Little Rock, and of one mill for the use and benefit of the Policemen’s Pension and Relief Fund of Little Rock, which a majority of the electors voting at the General City Election held April 4, 1939, had approved by their vote. The election was held pursuant to the provisions of Acts 25 and 196 of the Acts of 1939, and certain other acts which those mentioned amended, providing a pension and disability fund for the policemen of cities of certain population, and under Act 30 of the Acts of 1939 providing additional money for the Firemen’s Pension and Relief Fund, and for other purposes.
The objection to the levy of this additional ad valorem tax of one and five-eighths mills is that it violates § 4 of art. XII of the Constitution, which reads as follows: “No municipal corporation shall be authorized to pass- any law contrary to the general laws of the State; nor to levy any tax on real or personal property to a greater extent, in one year, than five mills on the dollar of the .assessed value of the same. Provided, that, to pay indebtedness existing at the time of the adoption of this Constitution, an additional tax of not more than.,five mills on the dollar may be levied.”
It is with profound regret that we reach the conclusion that the objection is well taken. The wisdom and the necessity of offering inducements to worthy men, brave and true, to enter and to continue in these hazardous callings, is obvious. No city under modern conditions can operate without both a fire and a police department; but relief to these employees of the city must be. afforded in a manner authorized by the Con stitution. It may be said, in passing, that, while this additional ad. valorem tax may not be levied, because of the inhibition of the Constitution against its levy, this holding does not in any manner affect the validity of such legislation as Act 491 of the Acts of 1921, creating the Firemen’s Pension and Relief Fund, and the ad valorem tax not being affected by that legislation.
The city of Little Rock, through its council, has voted the full 5-mills tax authorized by the section of the Constitution above quoted, and it is not proposed to displace that levy by the substitution of the one and five-eighths mills tax voted by the electors of the city. The new one and five-eighths mills tax voted by the electors of the city is in addition to that voted by íhé city council.
The policy of providing these pensions and disability funds for policemen and firemen is becoming general, and should be upheld where it may be.
In that part of the chapter on Municipal Corporations dealing with pensions, § 33, 19 R. C. L., p. 726, it is said: “The establishment of a pension system for municipal officers and employees, whereby, after serving a certain number of years or upon disablement from injuries received in the course of their duties, they are retired from active service and paid a certain proportion of their salaries for the remainder of their lives, is not an unconstitutional disposition of public moneys for private use when applied to officers and employees who have entered or continued in the service after the system went into- effect. The pension in such a case is not a gratuity, but a part of the stipulated compensation. A judiciously administered pension fund is doubtless a potent agency in securing and retaining the services of the most faithful and efficient class of men connected with those arms of the municipal service in which every property owner and resident of the city is most vitally interested. Reasons in support of this proposition need not be stated in detail. They are such as readily suggest themselves to every reflecting mind. On the other hand, a statute which authorizes a municipal corporation to pay a pension to persons who have formerly been in its service, but have retired or withdrawn therefrom before the statute was enacted is unconstitutional. Such a payment is a mere gratuity. This principle has been extended so far as to deny the power of a municipality to pay a pension which is based even in part upon services rendered prior to the enactment of the statute establishing the system, but the weight of authority is otherwise. In some cases it has been attempted to establish a pension system payable from other sources than the general revenues of the municipality. If the pension is one which would be illegal if paid from funds raised by taxation, it cannot be paid from other funds belonging to the municipality.. It has frequently been attempted to establish a pension system by withholding a certain proportion of the salary of each employee or officer of the municipality. A municipality has no power, in the absence of express statutory authority, to establish a pension system in such a manner, ox even by re.quiring all persons in its employ to agree that the money may be so withheld; and it has been held that a statute authorizing the establishment of a pension system in such a way is unconstitutional, but there is weighty authority to the contrary. In some jurisdictions statutes requiring insurance companies, as a condition of doing business within a municipality, to pay a tax for the purpose of establishing a firemen’s pension fund have been upheld, but in other jurisdictions the opposite view has been taken.”
Pensions and benefits paid firemen and policemen are not gratuities or bounties, but are in the nature of increased or additional compensation. As the maintenance of police and fire departments is a municipal function, the funds of the municipality may be used for that purpose. Municipal funds may, therefore, be used in paying pensions and disability benefits by way of additional conpensation. The city may devote so much of its funds as are available for this purpose. It is within the city’s discretion as to what compensation may be paid its firemen and policemen; but it is not within the discretion of the city to levy for this, or any other purpose, an ad valorem tax in excess of 5 mills. If the maintenance of fire and police departments is a municipal function, it cannot be said that compensating policemen and firemen with pensions and disability benefits is not also a municipal purpose. Nor is the nature of the tax changed by the fact that it is levied by the vote of the people, and not by the city council.
The inhibition of the Constitution is mot directed solely against the city council, but is directed also against any agency acting for the city, whether that agency be its council or its electors. The municipality is denied the right to levy ad valorem taxes in excess of 5 mills for any purpose, except to pay indebtedness existing at the time of the adoption of the Constitution, and this inhibition may not be contravened by permitting one agency to levy 5 mills and another agency to make an additional levy. It may be conceded that it is within the power of the General Assembly to enact legislation authorizing the electors of the municipality to levy municipal taxes, so that two separate'agencies may perform that function; but, even so, the inhibition of the Constitution remains. Those agencies, whether acting separately or conjointly, may not levy for any or for all municipal purposes ad valorem taxes in excess of 5 mills. If the electors of the municipality may vote ad valorem taxes in addition to the 5 mill ad valorem tax voted by the city council for the payment of pension and disability benefits to policemen and firemen, why may not. the electors do so for any other purpose related to municipal government? If the constitutional limitation is removed, there would be no limitation. Any ad valorem tax might be voted for any municipal purpose. It is not contended that Amendment No. 13 to the Constitution has any application here.
It is argued that the General Assembly itself has authorized this tax, although its provisions are not effective “until made available by a vote favorable thereto of a majority of the qualified electors of such cities participating in any election on the question, and had at the time of any election in such city, whether state, city, special or federal, or at a special election for the purposes of voting on such question.” Section 22 of Act 25 of the Acts of 1939 authorizes 100 electors of the municipality to have the question of police pensions and disability benefits placed upon the ballot at any such election, while only 20 electors are required for that purpose under the provisions of $ 5 of Act 30 of the Acts of 1939.
If this legislation is upheld, why may not any organized group have legislation enacted permitting the electors of a municipality to vote, at any general or special election, on the levy of an ad valorem tax for any municipal or quasi-municipal purpose? As, for instance, music in public parks, or swimming pools for children, or any of the numerous recreational opportunities or cultural facilities afforded in cities whose income permits. If it be answered that the electors of a municipality would not vote such a tax for a purpose less deserving than that of pensions and disability benefits for policemen and firemen, it may be answered that the question is not one of expediency, but of power. The line must be drawn somewhere, but where shall the line be drawn and who shall draw it? The Constitution answers this question by limiting the exercise of this power to the levy of a 5-mill ad valorem municipal tax for any and for all municipal purposes. The General Assembly itself has no power to remove this limitation, for the provisions of this limitation of the Constitution are as binding upon the General Assembly as ■ they are upon the council of a municipality or upon the electors thereof.
It was said in the case of Vance v. City of Little Rock, 30 Ark. 435, that: “This provision of the Constitution (limiting the ad valorem taxes which the municipality may levy) is binding alike upon the legislature, the courts, and municipal corporations,” and is equally binding upon any agency which attempts to perform the functions ordinarily discharged by the city council.
Our attention has been called to cases upholding legislation which permitted electors of a municipality to vote a tax for a special purpose; but no case has been cited in which it was held that they might do so when the tax voted exceeded the limitation imposed by the constitution.
It is true, as is pointed out in the briefs of counsel for appellees, that the tax of one and five-eighths mills will not be mingled with and will not become a part of other city revenues, hut will be held in trust and will be used exclusively for the specific purposes for which it was voted. So, also, any other special tax might like-wise be so segregated. But, even- so, it does not appear to be open to serious question that the tax is ad valorem and is levied for the municipal purpose of paying certain employees of the municipality additional compensation for meritorious services, and it is, therefore, unimportant what agency makes the levy, as the Constitution provides that no levy in excess of 5 mills on the dollar of the assessed value of the real and personal property within any municipality shall be made in any one year. ■
At § 4282 of the chapter on Municipal Corporations in 44 C. J., p. 1269, it is said:--“As the power of taxation possessed and exercised by municipal corporations is merely a delegated power, it follows that limitations set on the taxing power of the state by either the federal or the state constitution will usually apply also to municipal taxation. ’ ’
At § 4302 of the same chapter, p. 1280, it is said that “Levies in excess of the rate or amount provided by law are illegal and void, but only to the extent of the excess, if the taxes are separable.” Among the many cases cited in support of the text just quoted are our own cases of Gaither v. Gage, 82 Ark. 51, 100 S. W. 80; Cope v. Collins, 37 Ark. 649; Wortham v. Badgett, 32 Ark. 496.
We conclude, therefore, that authority does not exist for the municipality to levy an ad valorem tax in excess of 5 mills, whether levied by its council or by the electors of the city, and as a 5-mill tax has already been levied by the council of the city, the decree of the court below must be reversed, and the cause will be re manded, with directions to the court below to enjoin the extension and collection of this additional one and five-eighths mills, as prayed. | [
116,
-1,
-16,
-2,
8,
64,
24,
-88,
83,
-103,
-89,
83,
111,
25,
17,
97,
-85,
125,
85,
99,
-48,
-93,
23,
34,
-6,
-41,
123,
-59,
-72,
77,
-2,
-43,
110,
61,
-22,
-100,
-90,
-50,
-115,
92,
78,
-127,
43,
-51,
121,
80,
52,
-30,
48,
-117,
49,
-98,
-5,
44,
16,
113,
109,
44,
-39,
-88,
-61,
-77,
-120,
-115,
127,
21,
33,
70,
-104,
-63,
-48,
14,
-120,
17,
-48,
-24,
115,
-90,
-122,
-76,
37,
-103,
12,
96,
102,
10,
-115,
-21,
-80,
-118,
30,
-102,
-115,
-92,
-74,
121,
122,
30,
-74,
23,
-17,
84,
7,
122,
-9,
-107,
-35,
108,
-124,
-34,
-60,
-77,
-27,
108,
-107,
3,
-49,
19,
48,
117,
-128,
34,
94,
87,
54,
-101,
-121,
-39
] |
Holt, J.
Appellant brings this appeal from a judgment against it in the Clark circuit court in the sum of $250 for damages alleged to have been sustained byappellee as a result of being wrongfully ejected from appellant’s bus at Arkadelphia, Arkansas.
It is alleged in appellee’s complaint that on March 25, 1939, after having first procured a ticket to Gurdon, Arkansas, at appellant’s station in Arkadelphia, he boarded appellant’s bus and presented his ticket to the bus driver, which was accepted; that at the driver’s request appellee took a small seat next to the' driver’s seat; that the bus driver, without any reason therefor, maliciously and willfully shouted to appellee that he, the driver, was going to throw appellee off the bus; that the driver grabbed him by the right arm, pulled him, appellee, 'up from his seat and escorted him from appellant’s bus, in the presence of the passengers, which caused appellee embarrassment, humiliation and to suffer mental anguish.
It is further alleged in the complaint that the bus driver escorted appellee to appellant’s ticket office, ordered the ticket agent to refund appellee’s fare, telling said agent, “I don’t need him on my bus”; that said driver ‘ ‘ returned to his bus and drove off, leaving plaintiff stranded and without means of transportation to his home several miles west of Gurdon.
“That after unsuccessfully searching for a ride to Gurdon, plaintiff started walking to Gurdon where he was scheduled to make connections with another car which would leave Gurdon at five o ’clock p. m. and take plaintiff to his home. Plaintiff was forced to walk approximately two miles before he was invited to ride and in the meantime he was caught in a downpour of rain, from which he contracted a cold and a sore throat and the £flu.’ Plaintiff arrived at Gurdon too late to catch his connection there and was forced to begin walking home over a muddy country road after dark and did walk about three miles between Gurdon and his home.” He prayed for damages in the sum of $1,262.
Appellant answered denying every material allegation set out in the complaint and further answering alleged that at the time appellee presented his ticket to the bus driver and. sought transportation on the bus all the available seats on the bus were taken and appellee was given permission to sit on the box covering the projection of the motor if he so desired; that appellee objected to sitting on the covering whereupon the bus driver invited him to go with him into the ticket office that he might return his money for the ticket, and that appellee accepted a refund of the fare, but refused to surrender the ticket.
Upon a trial to a jury a verdict was returned in favor of appellee in the sum of $250. Prom the judgment on the verdict comes this appeal.
The facts as presented by this record, stated in their most favorable' light to appellee, are to the following effect:
Appellee, a young man of 29 years of age, bought his ticket at appellant’s station at Arkadelphia, Arkansas, to ride to Gurdon. The driver accepted his ticket, he boarded the bus, and quoting appellee’s testimony: “A. He taken the ticket and I started in the bus to sit down, and he said, ‘ Say, you will have to sit on this little box if you don’t mind,’ and I said, ‘Yes, sir’ — anyway, there was a kid sitting on another seat with his feet run out in front of me and I sat there a minute and I said to this boy in front of me, ‘Say, get your feet out of the way or I am liable to skin my knees and I will be suing the company like the man did that bumped his elbow on a suitcase.’ The driver was sitting down and he got up and said, ‘Come on and get off,’ and he caught me by the arm and led me down the steps and says, ‘Hand me your ticket.’ ”
Here we quote further from appellee’s testimony, as abstracted in appellant’s brief, as follows: “I was sitting down when he caught me by the arm. The bus was crowded. I was just talking to that kid like I would to somebody else in the seat. I said, ‘Move your feet over or I am liable to skin my knees. ’
“I handed him (meaning the bus driver) the ticket. He punched it and we walked in to thé ticket agent and he said, ‘Give this man his money back. I don’t need him on my bus. ’ He' gave me the money — thirty cents.
“I left the bus station. I came uptown and tried to catch a ride home. I met Mr. Will Green and asked him about going with him and he said he was loaded. Then 1 went to the mule barn and tried to catch a truck and couldn’t. It was raining and when it quit raining, I started home. I couldn’t catch a ride until I got on the highway. I am married.
“I live a quarter of a mile from my nearest neighbor on a country road. If I caught the ride on the bus, I was going out with Paul Clark from Gurdon. He is a farmer close to me.
“I was anxious to get back to attend to my stuff and be with my wife before dark. I walked out to the ‘Two Cent Less’ station and it started raining. I walked on in a drizzle and some fellows came along and picked me up and carried me to Gurdon. When I got there, I caught a ride with Mr. Grady Clark out to his house, and I walked from there to my home. It was between sundown and dark when I left Gurdon. My health was good. I haven’t taken any medicine in about three years. I got up Sunday morning and my throat was sore. I couldn’t swallow and I taken some soda water and coal oil and sugar. But I kept going. I was up at Arkadelphia again Tuesday. I taken severe pains and went around to the doctor. I don’t remember the doctor’s name. Dr. Page, he examined me and said I had the flu. The next morning I wasn’t able to get up. I had Dr. Alford from Okolona the Sunday after my discharge from the bus. I was confined to my home eight or ten days. I wasn’t in.bed all that time. I was embarrassed in the presence of the passengers.”
Appellee’s witness, Burl Cornelius, a passenger on the bus at the time, testified that the bus driver took appellee by the arm and led him off the bus.
The bus driver, L. J. Long, testified that after he had refused appellee permission to ride he accepted another passenger, one Freeman, and gave him a seat on the bus which he admitted was a safe place for Freeman to ride.
Appellant first insists that the evidence is not sufficient to take the case to the jury.' We think it was.
In the instant case the appellee did not voluntarily surrender his ticket or his right to be carried as a passenger on appellant’s bus. He insisted on his right to be carried as a passenger and offered to sit where directed by the bus driver.' Under the facts, we think, there was no cause or reason shown to warrant the bus driver in evicting appellee from the bus in the manner shown and that his act in laying his hands on appellee, taking him by the arm, leading him from the busy thus humiliating and embarrassing him in front of the.passengers, constituted an actionable wrong for mental anguish for which appellant would be liable.
While the rule in this state is, as stated in the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A., N. S., 159, that recovery of damages to compensate for mental anguish unaccompanied by actual or constructive physical injury cannot be had, the rule is different where there is physical injury accompanying the mental anguish.
In Chicago, R. I. & P. Ry. Co. v. Mizell, 118 Ark. 153, 175 S. W. 396, this court in discussing the question as to what constituted physical injury necessary to warrant recovery for mental pain and suffering, quoting from the case of Chicago, R. I. do P. Ry. Co. v. Moss, 89 Ark. 187,116 S. W. 192, said:
“The ‘other element of recoverable damages’ referred to, in the excerpt of the opinion above quoted, was clearly indicated in the .preceding part of the opinion, wherein it was stated that damages for mental suffering may be recovered where there is a physical injury, because the' two are so intimately connected that both must be considered on account of the difficulty in separating them. This is the foundation for permitting a recovery for mental suffering; and without this necessary connection between physical injury and the mental suffering, there can be no recovery for the mental suffering. There are many cases in the books where there is a constructive physical injury, such as duress, ejection from trains, etc., where there is no physical violence, but an actual restraint or coercion of the person. In such cases, and possibly others, it would not be sound to hold that, merely because the finger was not laid upon the lapel of the coat, there can be no recovery for the wrong done, including the mental suffering resulting from such duress or coerced ejection. In order not to exclude such cases, the clause which is made the basis for this suit was added; but it was not intended to permit any disconnected recoverable element to be used as a post to which to hitch mental suffering.”
In the instant case, while it appears that appellee suffered a constructive physical injury only in the process of being forcibly evicted from the bus by appellant’s driver in the manner indicated the jury had the right to consider any mental anguish suffered by him in estimating the amount of the dámages. ‘ '
Appellee testified that upon inquiry he learned that he could not get another bus out for Grurdon until around nine p. m. of the day in question; that he tried to catch a ride home but was unsuccessful; and that he was anxious to get home before dark. In his effort to reach his home he was caught in a rain and contracted a cold, an illness that confined him to his home for eight or ten days under the care of a physician.
Under facts which we think more favorable to appellant than in the instant case, this court in Missouri Pacific Transportation Company v. Schmitz, 197 Ark. 903, 125 S. W. 2d 448, held (quoting headnote): “Where appellee, a laboring man, on 'being refused transportation on his ticket over appellant’s bus line from M. to LaGr., a distance' of nine miles, undertook to walk that distance over a road which was graveled in part and blacktop in part, it could not be said as a matter of law that he, though 62 or 63 years of age, was imprudent in undertaking the journey, and that he was thereby barred from recovering for the injuries sustained in undertaking the walk. ’ ’
In an annotation at page 1339 of 52 A. L. R., the text-writer says: “And where a railroad company has negligently failed to transport a passenger, or to provide for his transportation, to his destination in accordance with the contract of carriage, and has left him at an intermediate point, the damages for an injury sustained by him by being caught in a storm of sand and rain after leaving the railroad depot at that point, are not, as a matter of law, too remote to be recovered in an action against the railroad company. Pickens v. South Carolina & G. R. Co., 54 S. C. 498, 32 S. E. 567.”
Appellant next contends that the court erred in giving appellee’s instruction No. 1 to which specific objections were made. After a careful review of this instruction, however, it is our view that it is a correct declaration of the law as applicable to the issues presented in this case, and that the court did not err in giving it. We think it would serve no useful purpose to set out this instruction here.
Appellant next complains of error in the trial court’s refusal to give its requested instruction No. 10, which is as follows: “You are told, as a matter of law, that the ordinary unlimited ticket sold by the defendant is not a contract to transport the passenger on any particular bus or schedule, and that it does not constitute a breach of contract when a passenger having a ticket cannot be accommodated by reason of the limited capacity of the bus. ’ ’
The record reflects, however, that the court at the request of appellant gave nine instructions, and after a careful review of these instructions it is our view that appellant’s requested instruction No. 10 above, although a correct declaration of the law, was fully covered in instructions Nos. 7, 8 and 12, given at appellant’s request. We, therefore, find no error here.
It is finally urged by appellant that the verdict is excessive. We think, however, that the verdict of $250 returned by the jury in this case under the facts as reflected by the record, cannot be said to be excessive, and certainly the amount does not indicate passion or prejudice on the part of the jury.
On the whole case, finding no errors, we conclude that the judgment should be affirmed, and it is so ordered.
Smith, C. J., and Mr. Justice McHaney dissent. | [
16,
-20,
-92,
62,
9,
65,
26,
-118,
83,
-125,
-91,
-45,
-83,
101,
21,
105,
-9,
127,
-11,
121,
95,
55,
69,
34,
-38,
-69,
107,
69,
-73,
78,
-28,
-42,
77,
49,
-54,
29,
38,
72,
-57,
88,
-122,
32,
-87,
124,
89,
-54,
32,
121,
64,
15,
49,
-97,
-38,
46,
24,
66,
-83,
108,
91,
-93,
-38,
113,
-50,
5,
-1,
70,
-95,
4,
-98,
1,
88,
8,
-112,
48,
32,
-4,
50,
-90,
-126,
84,
105,
-103,
8,
36,
98,
33,
-83,
-73,
-68,
8,
46,
-70,
47,
-90,
-70,
104,
73,
65,
-66,
-103,
122,
22,
31,
-6,
88,
93,
88,
36,
11,
-50,
-108,
-79,
-123,
-95,
-106,
11,
-29,
31,
48,
117,
-52,
-30,
92,
69,
55,
-101,
-106,
-78
] |
Smith, J.
The county court of Stone county condemned a right:of-way for a highway through lands belonging to appellants, Dobbins Brothers, who, on January 16, 1939, presented to the county court their claim for damages for the land thus taken. No order was made on the claim until June 13, 1939, when it was disallowed, “for the reason that the same cannot be allowed in the year 1939,” this because it would exceed the revenues of the county for that year if the claim were allowed, in violation of Amendment No. 10 to the Constitution. An appeal was prayed and perfected to the circuit court from the order of the county court disallowing the claim. Thereafter appellants obtained from the chancellor of the district of which Stone county is a part, in the absence of the circuit judge of that district, a temporary restraining order enjoining the county judge from allowing claims except for essential county purposes authorized by law, and also against the county clerk from issuing warrants based on such allowances. This restraining order, by it's express provisions, was to be effective “until the appeal of the petitioners can be heard at the November term of the Stone county circuit court. ’ ’
On August 16 thereafter, the county judge filed before the chancellor a petition to vacate the temporary restraining order in which it was alleged that appellants had received compensation through the State Highway Department and from other sources for their damages, and that the restraining order operated to suspend other important and necessary road work.
A demurrer was filed to this petition reading as follows:
“Now come the plaintiffs, by their attorney, Ben B. Williamson, and demur to the jurisdiction of the court in the above styled cause, and for cause of demurrer, say, state and allege:
“1. That this court is without jurisdiction to modify or dissolve the temporary injunction heretofore granted in this cause on June 30, 1939, for the reason that the said temporary restraining order was made by the judge of this court in the absence of the circuit judge from Stone county and was returnable to the circuit court at its November term, 1939.
“2. That the circuit court of Stone county has the sole and exclusive jurisdiction of the parties and subject matter of the above styled cause by reason of the appeal of the plaintiffs from the judgment of the county court to the circuit court, and that said temporary restraining order was made in this court in aid of the jurisdiction of said circuit court and to protect the interests of the plaintiffs pending the trial of their appeal in the circuit court at its November term, and that the granting of the said temporary order by the Stone chancery court, in the absence of the circuit judge from the county, was to all intents and purposes the same as if it had been granted by the circuit court, or circuit judge in vacation, and was and is returnable to that court.
“Wherefore, plaintiffs pray that the motion of the defendants to dissolve said temporary injunction be denied and that plaintiffs be discharged with their costs.”
The demurrer was overruled, and appellants electing to stand thereon, the temporary order was dissolved, and this appeal is from that decree.
It is provided in § 1 of Act 355 of the acts of 1937, p. 1320, appearing as § 7507, Pope’s Digest, that appeals may be prosecuted from interlocutory orders granting or refusing to grant or from orders dissolving injunctions .which had been granted. The question for decision is, therefore, whether the chancery court had jurisdiction to dissolve the injunction.
It would ordinarily be true that a court having jurisdiction to grant a temporary restraining order would also have jurisdiction to modify or. dissolve it. But it must be remembered that the restraining order relates to a case pending in the circuit court of Stone county. Upon the appeal to the circuit court from the order of the county court disallowing appellants’ claim for damages, the circuit court, and no other, had the jurisdiction to determine whether appellants had been damaged, and, if so, the extent and amount thereof, and also the question of the county’s liability therefor. The circuit court acquired exclusive jurisdiction of the case when the appeal to that court had been perfected. Thereafter the circuit court had the jurisdiction to issue such orders as were necessary to the exercise of this jurisdiction. This power is granted circuit courts in §§ 2867 and 2869, Pope’s Digest, but would inhere in that court even in the absence of that legislation.
The circuit court had the jurisdiction to issue a restraining order similar to the one issued by the chancellor and the chancellor, in issuing that order, acted for the circuit judge in the absence of the circuit judge from the county. The statute authorizes that action. See Sub. Ill of the chapter on Injunctions, § 7506 et seq., Pope’s Digest. Indeed, § 5710, Pop.e’s Digest, provides that, “In the absence of the circuit judge from the county, the county judge of any county shall have power to issue orders for injunctions and other provisional writs in their counties, returnable to the court having jurisdic tion.” This section from which we have just quoted is a part of the act of March 5, 1875, (t 2, p. 219), at which time the circuit judges had chancery jurisdiction. In the instant case, the county judge would not, of course, have issued the temporary restraining order in the absence of both the circuit judge and the chancellor from the county, for the reason that he was a party to the litigation, and was the party sought to be enjoined. But the chancellor had the jurisdiction to issue the temporary restraining order, and his action in doing so was in aid of the exercise of jurisdiction by the circuit court. Indeed, as appears from the portion of the temporary restraining order copied above, the order was effective “until the appeal can be heard at the November term of the Stone county circuit court.” This order was, in effect, the order of the circuit court, having been made by the chancellor for that court, and did not operate to vest jurisdiction in the chancery court nor to deprive the circuit court of its jurisdiction. The chancellor, in issuing' the order, had performed the only function which the law authorized him to perform. Its continuance or its dissolution was thereafter a matter within the jurisdiction of the circuit court, in aid of which jurisdiction the order had been issued.
Such is the import of the decision of this court in the ease of Ex Parte Simmons, 105 Ark. 19, 150 S. W. 141. In that case, a suit was filed in the chancery court to. restrain one Simmons from holding services in the Beautiful Zion Church of Helena, Arkansas. In the absence of the chancellor, the circuit judge issued a temporary restraining order. On June 15, the chancellor made an order dissolving the temporary injunction, and on the following day Simmons held services in the church. Thereafter, the circuit judge -who had issued the temporary restraining • order cited Simmons for contempt in disobeying his order, and, upon the hearing of the citation, imposed upon Simmons a .fine and a jail sentence. That judgment was quashed uuon a writ of certiorari which issued from this court. It was held (to quote a headnote from that case) that “Where a circuit judge, in the absence.of the chancellor from the county, grants a temporary injunction in a case pending in the chancery court, such order has the same effect as if it had been made by the chancellor, and is subject .to be controlled, modified or. dissolved by the chancellor in all respects as if issued by him in the first instance. ’ ’ In other words, the chancery court did not lose — and the circuit court did not acquire — jurisdiction of the cause by the action of the circuit judge in granting- the temporary restraining order. The jurisdiction remained in the court where the cause of action was pending, which, in that case, was in the chancery court, and it was that court which had jurisdiction to dissolve the injunction which' the circuit judge had granted. So, here, the chancellor acted in aid of the jurisdiction of the circuit court in issuing the temporary restraining order; but the jurisdiction to determine whether appellants had been damaged, and, if so, whether that damage had been compensated, abided in the circuit court. It is true the demurrer to the petition to dissolve the temporary restraining order did not controvert the allegation of the petition that appellants had received full compensation for their damages; but it was not essential that it do so. The demurrer did question the jurisdiction of the chancery court to determine that fact; and, in our opinion, the demurrer should have been sustained, for the reason herein stated that the circuit court alone had the jurisdiction to determine the truth of the facts upon the recitation of which the dissolution of the temporary order was prayed.
The decree of the court below will be reversed, and the cause will be remanded, with directions to sustain the demurrer, and to remit the petitioners, who asked the dissolution of the temporary order, to the circuit court, where their petition may be heard by the court having jurisdiction thereof. | [
-12,
-24,
-74,
28,
-69,
96,
2,
-118,
74,
49,
101,
83,
-17,
66,
1,
49,
-81,
57,
116,
123,
112,
-75,
87,
39,
-110,
-45,
75,
-33,
-73,
-55,
-18,
-73,
76,
56,
74,
-97,
71,
-32,
-51,
28,
78,
3,
-71,
-20,
81,
-126,
58,
111,
18,
11,
5,
-81,
-14,
46,
28,
-31,
73,
45,
-33,
42,
-55,
-7,
-98,
77,
127,
5,
1,
103,
-120,
-125,
-24,
59,
-104,
17,
-128,
-7,
115,
54,
-41,
116,
71,
-103,
8,
-78,
98,
1,
101,
-17,
-84,
-72,
14,
-74,
-103,
-90,
-128,
8,
42,
64,
-74,
-99,
124,
84,
-61,
126,
-26,
76,
92,
104,
-124,
-38,
-14,
-13,
-121,
-72,
-120,
3,
-29,
11,
50,
113,
-61,
-6,
86,
-57,
113,
59,
71,
-8
] |
Grieein Smith, C. J.
The appeal is from a decree of June 30, 1939, dismissing appellant’s complaint for want of equity.
The complaint alleges a “purported” sale of 1,280 acres of land June 9, 1937, with confirmation June 27, 1938; that Shannon Brothers agreed with Mrs. Pope, the mortgagor, that the property might be redeemed on or before October 10,1938, by payment of $27,800 and taxes; that appellant understood the agreement to be an ex tension of time for payment of tlie indebtedness, and but for such understanding she would have opposed confirmation of the sale.
Three acres not included in the mortgage are involved in this litigation.
This is the fourth appeal from decrees affecting the 1,280-acre tract. Pope v. Shannon Brothers, Inc., 190 Ark. 441, 79 S. W. 2d 278; McBride v. Shannon Brothers, Inc., 193 Ark. 730, 102 S. W. 2d 535; Pope v. Shannon Brothers, Inc., 195 Ark. 770, 114 S. W. 2d 1.
April 17, 1930, Mrs. Pope borrowed $8,000 of Shannon Brothers. The loan was secured by mortgage on 1,280 acres' of land near West Memphis, Ark. In May, 1933, the property was sold for $11,790.44, representing principal, interest, taxes, costs, etc. The decree of foreclosure was set aside by this court because there was no affirmative showing that act 21 of 1933 had been complied with, the sale having been confirmed at an adjourned day of court.
December 2, 1935, the property was again sold for debt, interest, and cost, amounting to $20,200. On appeal the decree of confirmation was set aside for failure to comply with the spirit of act 21 of 1933 and act 49 of 1935.
March 7, 1938, the controversy was again before this court on allegations of irregularities of the chancery court. The decree was affirmed.
The decree of June 27, 1938, recites that appellant and her attorney were in court. Appellant informed the chancellor she had acquired the interest of former co-defendants. She consented that the sale be confirmed. The confirmation decree was approved by her attorney.
At the sale June 9, 1937, appellee bid the property in for a sum approximately $2,000 less than the indebtedness, in consequence of which there was a deficiency judgment. Before the decree of June 27 was agreed to appellant deeded appellee three acres touching Highway No. 70. Payment was $10 “. . . and the further consideration of the satisfaction and cancellation [of the deficiency judgment]. ’ ’
In consideration of this deed appellee consented to the option of repurchase. Contract is printed in the footnote.
Appellant says that immediately after June 27 she began negotiations with lending agencies with a view to procuring sufficient money to pay the debt during the option period. She insists that she did not read the contract prior to its execution; that the attorney representing her at that time handed her a paper to be signed, with the explanation it was the best he could do.
Capt. W. A. Wedemeyer, of Ft. Bragg, North Carolina (appellant’s son-in-law) interested himself in loan negotiations. His wife, Synthia Pope Wedemeyer, applied to Jefferson Standard Life Insurance Company for $35,000, appellant’s lands to be mortgaged as partial security.
October 8,1938, Capt. Wedemeyer was informed that his wife’s application had been approved by the insurance company for $30,000, “. . . subject to the assignment of $5,000 old life insurance and $15,000- new insurance [on Capt. Wedemeyer’s life].” Another condition was that the notes should be indorsed by Capt. Wedemeyer.
Upon receipt of the insurance company’s letter Capt. Wedemeyer went to Memphis. The morning of October 10 appellee was told that appellant desired to pay the indebtedness. Appellant, her husband, and Capt. Wedemeyer called on Jim Shannon, president of Shannon-Brothers, Inc. The letter from the insurance company was shown Mr. Shannon, who told his callers to consult with his lawyer. When appellant and her associates called upon the attorney Mr. Shannon was present.
The record discloses testimony by appellant’s husband that Mr. Shannon, through his attorney, refused to accept any payment. On cross-examination the witness admitted they did not have the money, “. . . but thought they had the equivalent to it.” Later in the day appellant sent Shannon Brothers the following telegram: “Re your agreement to convey land to me. Accept your terms and will pay money according thereto upon abstract of title furnished by you.”
The agreement under which the right to repurchase was given is denominated “option contract.” It recites that “time is of the essence of the contract”; that the right granted may be exercised “. . . at any time up to and prior to the tenth day of October, 1938.” Notice of an intent to exercise the option “. . . shall be given in writing and shall be accompanied by a cashier’s check.” The bank (either of three) upon which the check must be drawn was designated.
The option was not availed of in the manner and within the time requisite. No offer of money or its equivalent was made. The telegram was conditional in that it imposed upon appellee the burden of providing an abstract. The option did not provide for an abstract.
Under appellant’s own conditions there was no way by which the transaction could have been consummated October 10. If it be conceded that the insurance company had approved the loan, still, the approval was conditional. There was the requirement that Capt. Wedemeyer procure $15,000 of new life insurance and assign it to the company. There is no evidence the subject was insurable other than the fact that he had a $5,000 policy. It is conceivable that rejection would have followed a medical examination.
We are not insensible of the earnest efforts appellant has exerted to save her' lands. On two occasions this court invoked the full effect of statutory provisions in her behalf. On the other side of the picture is the lender who since 1933 has insisted upon collecting that to which it was entitled. Finally, after a long period of legal travail, appellant and appellee, by unambiguous con tract, agreed that appellant’s remaining rights were those encompassed within the option. There was a forfeiture of these rights. Courts cannot change private-contracts which competent people are permitted to make.
The decree is affirmed.
Mr. Justice Baker did not participate in the consideration of this case.
"Option contract. This agreement witnesseth: That Shannon Brothers, Inc., a corporation, for and in consideration of the sum of one dollar, cash to it in hand paid, doth hereby grant to Lady P. Pope, or her assigns, an option to purchase [the lands in question] for the sum of $27,900 cash at any time up to and prior to the 10th day of October, 1938. It is understood and agreed that in event of an election to exercise this option, the optionee shall pay in addition to the price above named all taxes and assessments due upon said lands.
"Notice of an intent to exercise this option shall be given in writing and shall be accompanied by a cashier’s check drawn by either the cashier of the First National Bank, The National Bank of Commerce & Trust Company, or the Union Planters National Bank & Trust Company, all of Memphis, Tennessee, in the sum of $27,900, payable to the order of Shannon Brothers, Inc. It is expressly stipulated and agreed that time is of the essence of this contract. . .
The attorney representing Mrs. Pope at the time the consent decree was entered is highly ethical. The testimony does not in any sense reflect upon his conduct. On the contrary it shows that he exerted every possible effort for his client. | [
117,
-20,
-68,
108,
10,
-32,
72,
-70,
83,
32,
55,
-45,
109,
70,
0,
93,
-61,
125,
65,
104,
-59,
-78,
7,
34,
-46,
-13,
-15,
-51,
-76,
77,
-28,
87,
76,
40,
-62,
-99,
-26,
-96,
-51,
90,
94,
-127,
-87,
109,
-35,
0,
50,
35,
18,
13,
21,
-81,
-29,
-84,
53,
75,
76,
42,
-23,
40,
-56,
-72,
-85,
13,
127,
5,
1,
53,
-118,
1,
-54,
10,
-48,
113,
0,
-8,
115,
54,
-42,
116,
15,
-101,
40,
32,
102,
16,
-35,
-17,
-8,
-88,
46,
126,
-115,
-90,
-63,
88,
64,
97,
-66,
-103,
124,
80,
7,
-2,
-2,
-115,
29,
104,
5,
-114,
-42,
-95,
-127,
-8,
-104,
11,
-29,
-89,
48,
112,
-49,
-86,
92,
70,
60,
-101,
-122,
-47
] |
Holt, J.
Appellant, Carl Smith, was convicted in the Sevier circuit court of the crime of burglary and of grand larceny and his punishment on the former offense fixed at two years in the penitentiary and on the latter at one year, the sentences to run concurrently.
It is alleged in the information that he broke into a building in Sevier county, Arkansas, being used and owned by the Kansas City Southern Railway Company, a corporation, with the unlawful and felonious intent of committing grand larceny and that he stole therefrom postal savings certificates, of the value of $2,500 and other personal property belonging to Joe Wilson and $15.82 in money which belonged to , the Kansas City Southern Railway Company, Western Union Telegraph Company and the American Railway Express Company.
The testimony upon which convictions were had, stated in its most favorable light to the state, is to the following effect:
State’s witness, Joe Wilson, testified that he was the agent of the railway company, the railway express company, and the Western Union Telegraph Company; that the burglary occurred between 1:10 and 7:05 a. m. on June 30, 1939; that entrance was effected through the negro waiting room, and the safe broken open. The following articles were stolen: One Stone Mountain coin and other personal property consisting of post office saving's certificates valuing $2,500, a soldier’s adjustment certificate of the value of $750, a Masonic ring of the value of $18, Sears & Roebuck refund check in the sum of $1.50, $5.96 in cash belonging to the Express Company, $8.90 belonging to Western Union, and $4.09 belonging to the Railway Company.
Wilson further testified he saw appellant the morning of the burglary at the station around 7:15 and that he remained around there 45 or 50 minutes; that appellant walked down the platform in front of the depot where some men were working and talked there; that he didn’t make any inquiry about any packages of freight or express, and that it was not his custom to hang around the depot; that he did not believe he had ever seen the appellant there at that time of day before; that when appellant was tálking to the men he kept looking at the depot and especially was that true after the sheriff arrived; that after appellant left, the witness followed the Woods boy, who testified as an accomplice, and saw him go to appellant’s residence; that appellant was at Knod’s store and left there; in 15 minutes, the Woods boy left Knod’s store and went up to appellant’s house; that he went there between 8 and 9 o’clock the morning of the burglary.
Emmett Woods, an accomplice, testified that he assisted appellant in the burglary in question; that he went down to the depot fifteen or twenty minutes after the train ran north. (The depot agent, Wilson, had testified that he served this train and left the depot at 1:10 a. m.) Woods further testified that appellant had a square tool box about 18 inches long and that he, Woods, stayed outside watching while appellant went inside the depot; that appellant stayed in the depot room about 30 or 40 minutes. Appellant told Woods, after coming out of the depot, that he got some money and other things and would divide with him; that he went to appellant’s house the morning after the burglary after daylight and found him in the kitchen about 8:30 washing a pair of trousers; that appellant told him the sheriff was in town and that he did not know any reason for the sheriff being there and was washing his clothes so if anything happened he could skip out.
L. S. Delahunter of the state police heard appellant state that he was home on the morning after the burglary when Emmett Woods came to his house and found him washing trousers.
Boyd Bond on behalf of the state, testified that on Tuesday nigbt before the burglary, which occurred on Friday morning, appellant asked him what he was doing and when he said “nothing” he asked him if he would like to make some easy money and that they could probably do it by getting into the depot; that the witness told appellant that he did not want to get mixed up in anything like that; that appellant said he wanted some money to go see a girl; that appellant told him that he could get into the depot all right; that he would take one of those outfits a doctor used to examine a person’s heart and listen to the turn of the dials and make the safe open; that appellant was an automobile mechanic.
On this state of the record, together with some other testimony of probative value, which, however, we do not deem it necessary to set out, appellant earnestly insists, first, that the evidence is not legally sufficient to sustain his conviction. He urges that the state failed to offer .any substantial testimony that would corroborate the testimony of the accomplice, Woods, connecting appellant with the commission of the crimes. We cannot agree.
In a recent case this court has laid down the rule relative to the sufficiency of the evidence to corroborate the testimony of an accomplice. The rule is made clear in that case that the evidence need only tend to connect the defendant with the commission of the crime and it is not required that the evidence be sufficient of itself to convict. In that case (Shaw v. State, 194 Ark. 272, 108 S. W. 2d 497) this court said:
. . It is sufficient to say that this was purely a question for the jury. They believed the testimony of Scott, and there is nothing in the evidence to • show that it was physically impossible for the witness to have recognized the appellants as he said he did. The testimony of Scott, independent of that of the accomplices, tended ..to connect the appellants with the commission of the crime, although it might not have been sufficient of itself to convict them. This satisfies the rule. The sufficiency of the corroborating evidence was a question for the jury and, together with the testimony of the accomplices, it is clearly sufficient to support the verdict. Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullin v. State, 193 Ark. 648, 102 S. W. 2d 82.”
It is next contended by appellant, that his demurrer to the information upon the ground that it was so vague, indefinite, and uncertain that defendant could not plead former jeopardy did not state a public offense under the statute, and did not properly describe the property alleged to •■have been stolen, its owner or value with sufficient certainty should have been sustained by the court and that error was committed in overruling same.
Appellant’s chief complaint in this connection is that the information charges appellant with the taking of $15.82 in money alleging it to he the property of the Kansas City Southern Railway Company, Western Union Telegraph Company, and the American Railway Express Company without alleging whether these companies were corporations or partnerships. Under the announced rule in this state, however, we hold the allegation sufficient to show that the companies are in fact corporations and that the court did not err in overruling appellant’s demurrer.
In Brown v. State, 108 Ark. 336, 157 S. W. 934, this court announced the rule as follows: “In McCowan v. State, 58 Ark. 17, 22 S. W. 955, the indictment charged that the allegation of ownership was that the articles stolen were the property of ‘W. L. C. & Co.,’ and we held that this was not a sufficient allegation of ownership, because it showed that the goods stolen were owned by a firm or partnership — a joint, ownership, and in such cases it is necessary that the names of the several persons who compose the firm, or who constitute the joint owners, should be stated. But that case is different from this, because here the allegation shows that the property was owned by the railroad company, which is a sufficient allegation of the corporate character of the alleged owner, and shows on its face that it was not the property of a partnership or joint owners. ” See, also, § 3840 of Pope’s Digest.
Finally error is assigned because the court refused to give instruction No. 5 asked by appellant. This instruction dealt with the testimony of the accomplice, Woods. After refusing to give this instruction, the court did give the following instruction on its own motion:
“You are instructed the witness, Emmett Woods, is what is known in the law as an accomplice. You are instructed that one may not be convicted of a felony upon the uncorroborated testimony of an accomplice. You cannot, therefore, convict the defendant upon the testimony of said witness, Emmett Woods, unless you find his testimony is corroborated by other evidence in the case tending- to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows that the crime was committed,- and the circuttistances thereof. But you are instructed that the amount of such corroborating evidence and its weight is a matter solely for the jury, and if you find that said witness has been corroborated by evidence, positive or circumstantial, other than his own, tending- to show that the crime was committed and connecting the defendant ■ with its commission, you will be justified in convicting the defendant, provided you believe him guilty from all the evidence in the case beyond a reasonable doubt. ’ ’
It is our view that no' error was committed by the court in this regard.
We think this instruction meets every requirement set out in § 4017 of Pope’s Digest of the Statutes of Arkansas, and that it required the jury to believe appellant guilty from all the evidence in the case beyond a reasonable doubt.
After a careful review of Bryan v. State, 179 Ark. 216, 15 S. W. 2d 312, relied upon by appellant, we do not think it controls here. The instruction complained of in the instant case is not the same as given in the Bryan case and we think it meets the criticism of the instruction in the Bryan case, by including all the requirements of the statute, supra, dealing with the testimony' of an accomplice.
It will be observed also that the instruction in the Bryan case, though criticized, was held to be sufficient, and the verdict of the lower court was affirmed.
After a careful review of this entire record, we find no errors, and accordingly we affirm. | [
52,
-8,
-88,
-34,
26,
96,
42,
26,
35,
-15,
-92,
83,
-23,
68,
1,
33,
-29,
61,
-44,
97,
-26,
-105,
23,
51,
-46,
-13,
123,
-59,
-66,
75,
44,
-108,
73,
52,
-50,
89,
6,
-56,
-59,
24,
-114,
-95,
-87,
-32,
122,
0,
44,
47,
-124,
15,
113,
-98,
-5,
42,
20,
88,
73,
41,
75,
-86,
-48,
-15,
-110,
69,
77,
21,
-95,
-122,
-104,
5,
88,
46,
-104,
21,
16,
120,
115,
-108,
-126,
-12,
103,
-39,
12,
98,
98,
32,
-107,
-89,
40,
8,
62,
-74,
-107,
-89,
-70,
72,
33,
5,
-98,
-99,
99,
16,
-122,
-6,
-29,
65,
81,
104,
-125,
-50,
-80,
-109,
45,
33,
-98,
59,
-13,
48,
32,
112,
-52,
-94,
93,
87,
121,
-101,
-113,
-11
] |
Humphreys, J.
The pleadings and agreed statement of facts in this case present the sole question, on appeal, for determination by this court whether the forty-acre tract described in appellee’s petition for mandamus against appellant is a town or city lot within the meaning of § 8632 of Pope’s Digest, which is § 4 of the act 129 of the Acts of 1929. If the said forty-acre tract is a town or city lot within the meaning of § 8632 of Pope’s Digest then in order for one to purchase it from the state as tax forfeited land he must pay therefor the full amount of taxes, penalties and costs charged against said land.
According to the agreed statement of facts the total amount of taxes, penalties and costs charged against the land when it was certified to the state was $1,594.75; on December 31,1938.
On January 11, 1939, appellee made application to appellant land commissioner, to purchase said land tendering as a consideration therefor $40 or $1 an acre as the purchase price thereof and $1 for the deed. The tender of $1 per acre for the land was made under the provisions of § 8631 of Pope’s Digest which is § 3 of act 129 of the Acts of 1929.
According to the agreed statement of facts the forty-acre tract is what is known as White City within the corporate limits of the city of Little Rock, Arkansas, and is of the estimated value of $30,000. The forty-acre tract or lot of land has never been subdivided into smaller tracts or lots and was carried on the tax books when forfeited to the state under the following description: The southwest quarter of the southwest quarter of section 30, township 2 north, range 12 west, containing 40 acres.
The trial court held that said tract of. land was not a town or city lot within the meaning of § 8632 of Pope’s Digest and that same might be purchased for $40 or $1 an acre and $1 for the deed under § 8631 of Pope’s Digest and issued a writ of mandamus to compel appellant to issue appellee a state deed for said amount;
From this finding and judgment of the trial court an appeal has been duly prosecuted to this court.
When §§ 8631 and 8632 of Pope’s Digest are read together it is apparent that the legislature intended to include all forfeited lands to the state for sale and classified same in two classes. The first class was governed by § 8631 of Pope’s Digest and embraced all lands located in the country except lauds adjacent to cities and towns which had been platted, and embraced in the second class all city or town property and lands adjoining cities or towns which had been platted. It was clearly the intention of the legislature to allow the commissioner to sell state forfeited lands situated in the country for $1 per acre and to sell all lands located in towns and cities and adjoining lands thereto which had been platted for the taxes, penalties and costs charged against them.
Section 8632 of Pope’s Digest was taken in its entirety from § 4245 of Mansfield’s Digest except that § 8632 of Pope’s Digest included lands that do not lie within the corporate limits of a city or town. This court had occasion to construe § 4245 of Mansfield’s Digest, now repealed, in the case of Texarkana Water Co. v. State, 62 Ark. 188, 35 S. W. 788, relative to the meaning of the word “lot,” and decided (quoting third syllabus) that: “An unplatted tract of land consisting of thirty-one acres, situated within the limits of a city, is a ‘lot,’ within Manf. Dig., § 4245, authorizing the sale of lots in towns and cities, forfeited for non-payment of taxes, for the taxes, penalties and costs charged against them.”
The trial court, therefore, erred in holding that the forty acres comprising White City within the corporate limits of the city of Little Eock, Arkansas, was not a city lot within the meaning of § 8632 of Pope’s Digest and in directing appellant to sell and convey said forty-acre tract to appellee for $41. The judgment is, therefore, reversed and the cause is remanded with directions to the trial court to set aside the judgment and dismiss appellee’s petition. | [
117,
108,
-12,
60,
58,
64,
10,
-70,
-37,
-87,
55,
115,
105,
10,
0,
81,
-29,
57,
85,
105,
-57,
-73,
7,
66,
16,
-73,
105,
-43,
116,
77,
-18,
-106,
76,
61,
-62,
21,
-64,
-30,
-59,
92,
-2,
-124,
-117,
76,
-43,
64,
52,
105,
112,
11,
53,
-114,
-77,
44,
20,
73,
105,
46,
-55,
40,
73,
-6,
-86,
-115,
-1,
6,
1,
117,
-112,
1,
-24,
90,
-104,
113,
28,
-56,
119,
-90,
-122,
116,
15,
-103,
40,
34,
-26,
25,
-51,
-25,
-72,
-120,
14,
-69,
9,
-92,
82,
88,
99,
97,
-106,
-107,
125,
80,
15,
126,
-4,
-123,
93,
104,
15,
-114,
-42,
-93,
-117,
124,
-112,
3,
-61,
-25,
16,
116,
-49,
-26,
92,
103,
56,
-101,
-98,
-39
] |
Smith, J.
The appellant insurance association issued what the parties call a Whole Family Policy, in the sum of $500, covering the lives of Orin Holland, his wife Inez, and their three minor children, the policy being payable in full upon the death of any one of the five persons insured. The policy was dated August 26, 1936, and the premium thereon was payable monthly, quarterly, semi-annually, or annually, as the persons insured elected. If paid monthly, the premium was $1.91; if paid quarterly, $5.54, but, however paid, was payable on the 1st day of the month or of the quarter, etc. It was issued subject to the constitution and by-laws of the insurance association, which, by reference, were made a part thereof, and these provided that if the premium was not paid during the calendar month in which it was due the insurance contract terminated and ceased to be effective.
It was further provided that “Reinstatement thereof cannot be required, and no contract of insurance which shall have so terminated for non-receipt of payment within the time so limited, shall be reinstated except upon express written approval of reinstatement by one of the Executive Committee. . . .” It was further provided, upon the subject of reinstatement, that the association shall be allowed thirty days from the receipt' of the application for that purpose, and thirty days from its receipt of other information, in which to accept or reject such application, and that failure to accept the application in said limited time should constitute a rejection thereof, and special notice of rejection would not be necessary. A showing of good health of all the persons insured was a condition upon which reinstatement would be granted.
Accompanying the application for the policy, which, by its express terms, made the constitution and by-laws of the association a part of the contract of insurance, there was a remittance of the first monthly payment of $1.91, which carried the policy to -October 1, 1936, and the premium for October was paid when due. The premium due November 1st was not paid, and on January 14, 1937, Mr. Holland executed an application for the reinstatement of the policy, with which he tendered the premiums for November and December, 1936, and for January and February, 1937. In this application representation was made that all persons insured were in good health. Acknowledgment was made of the receipt of the application for. reinstatement, and the association advised that the remittance would be held in trust pending investigation, and the association later advised that the policy had been reinstated.
On April 27, 1937, Mr. Holland sent the association a second application for reinstatement, with a remittance of $5.54, covering premiums for the months of March, April and May, 1937, which application was similar to the first, and the policy was reinstated the second time.
On July 10, 1937, Mr. Holland filed a third application, identical in its recitals as to the good health of the parties insured, with the first and second applications, with a remittance covering premiums for June, July and August, 1937. In a letter from the association dated July 26, 1937, Mr. Holland was advised that the third reinstatement had been granted, but he was admonished to be more punctual in his premium payments, and he was advised that “The September premium must be paid by the end of that month or the policy will again, lapse.” The receipt of this remittance, which was offered in evidence, was for the sum of $5.73, the amount of three premiums if paid monthly.
Mrs. Inez Holland, the wife and one of the .persons insured, died October 29, 1937, and this suit was brought to enforce payment of the policy after the association had refused to pay, and there was a trial and a verdict and judgment for the face of the policy, with interest, penalty and attorney’s fees, from which judgment is this appeal.
The controlling question in the case is the one of fact whether the September premium had been paid during that month, although appellee insists, for reasons hereinafter discussed, that the association is estopped to deny receipt of the premium.
Mr. Holland testified that he remitted the September premium, the remittance being made by enclosing two one-dollar bills to the association. This remittance was 9 cents in excess of the premium. Mr. Holland testified that this remittance was made in the latter part of August, and that he later received a receipt from the association for the remittance about the middle of September. He did not testify whether the receipt acknowledged $1.91 or $2. he had lost the receipt and did not produce it at the trial. The receipt of this remittance was denied by the accounting officers of the association, who explained how remittances were received and credited. The mail is opened in a glass-enclosed locked room, and a report of all remittances is made to the head cashier. Individual cards are kept for each policy, upon which remittances are respectively credited. These credits are totaled each day, and unless they balance with remittances the cashier is “over” in his account and receipts. The records were in balance. The cards on the policy here in suit were not credited with the $2 remittance, and the cashier was not over in his receipts for that amount. Moreover, it was shown that under the custom and practice of the association receipts were never sent out for monthly payments unless a receipt was requested and postage for that purpose was enclosed. Receipts were sent out for quarterly premiums or for a longer period of time. This was obviously for the purpose of avoiding the correspondence and the postage upon small and frequent payments made monthly.
Mrs. Inez Holland was carried to a hospital in the city of Fort Smith on the 8th day of October. She returned to her home October 13. She was again returned to the hospital October 18, where she died October 29, 1937. Her attending physician testified that acute Bright’s disease was the cause of her death.
Clifford Hardin, an agent for the association residing in Booneville, Arkansas, handled the application for the insurance, and appears to have assisted Mr. Holland in his several reinstatements. His connection with the association was severed before the trial from which this appeal comes. Mr. Hardin testified that a brother of Mr. Holland called him over the telephone about 9 o ’clock October 28th to see him in regard to the reinstatement of the policy. Of course, if the September premium had been paid, it was not necessary to reinstate the policy, as the month of October had not expired and the October premium could have been paid before the end of that month. Hardin testified that he prepared a reinstatement application, and inquired about the health of Mrs. Holland, and, in response to that question, wrote into the application the answer, “Wife has been ill, but is O. K. now.” In his weekly report to the association under date of October 30th, Hardin included the application for reinstatement of the Holland policy, along with three others. After filling out the reinstatement blank, he gave it to Holland’s brother for execution by Holland, and it was returned by mail and received by witness on October 29th, and it was then mailed by witness to the association, along with the premiums for the months of September, October and November. This . witness further testified that he had endeavored without success to induce the association to send receipts for monthly payments. Witness had no authority to reinstate a policy, and did not attempt to reinstate Holland’s. He sent the application to the association for that purpose.
Holland and his brother both testified that the transaction in regard to filling out the blank application for reinstatement occurred October 8th or 9th, and not October 28th or 29th, but, even so, there was no occasion for reinstatement if the September premium had been paid, and Holland had the remainder of the month in which to remit the October premium.
Lawrence Holland, the brother, testified that Mrs. Holland was placed in the hospital on the 8th of October, and that he was directed by his brother to attend to the insurance. He got a check cashed on the 8th, and went to Booneville and saw Mr. Hardin that night and he paid the premium for a quarter of a year. He took the application to his brother which Hardin gave him, and when his brother had signed the application witness mailed it back to Hardin from Waldron. It was about 10:30 p. m., when he got the application from Hardin, and he drove in his truck to Fort Smith to have his brother sign it, and he arrived there about midnight, and Mr. Holland signed the application that night in Fort Smith, in which city Mrs. Holland was then confined in the hospital. After obtaining the signed application witness drove in his truck after midnight to Waldron, where he mailed the application to Hardin at Booneville. In the letter he enclosed a letter to Hardin from his brother, which will be later copied.
Mr. Holland testified that Hardin loaned him the money with which he paid the quarterly premium covering the months of June, July and August, and that he received the receipt from the association, above referred to in the sum of $5.73, and that he had previously remitted $2 to pay the September premium, and received a receipt therefor, which he had lost. He testified that he had sent the association $2 in money two or three times to pay premiums, but he had no receipts for any of these $2 payments. He admitted signing the reinstatement application which his brother brought from Boone-ville. It was then in blank, and he only wrote his name on it. The application was signed about midnight, and at a filling-station. He wrote a letter to Mr. Hardin, to be returned with the application to Hardin, reading as follows:
“Dear Sir:
“In regard to my insurance my wife has been sick, but is better now, the reason I had not sent my insurance in is I did not have the money.
“Mr. Hardin I will sign the bottom of this paper and yon fill the other out for me.
“I thank you for paying the insurance before and would have sent it before, but I did not have it.
“Orin Holland.”
When he wrote this letter his brother made and kept a copy of it, which was offered in evidence.
The application for the reinstatement was received at the office of the association on November 1, 1937, and there was stamped on the reverse side thereof the notation: “Received, November 1, 1937. National Aid Life Association, Sales Department.” There was printed in the application the recital that ‘ ‘ The aforesaid policy in the National Aid Life Association having admittedly heretofore lapsed, application for the reinstatement or for a re-issue is hereby made, and as a basis therefor, I hereby covenant and warrant! . . .” The statement was written into the application: “Wife has been ill, but is O. K. now. ’ ’
It is an undisputed fact that this statement was false, whether the application was signed on the 8th or 9th, or on the 29th, as it purported to be, as Mrs. Holland was taken to the hospital on the 8th.
The significance of this controversy about the date on which the application was signed is that if it was in fact signed on the 28th, Mrs. Holland was then in extremis, and died the next day, and the application could not have been received by the association until after her death. If it was signed on the 29th, Mrs. Holland was then dead..
The association wrote Mr. Holland the following lettert
“November 3, 1937.
“From the desk of V. Corder
“In Re; GW-1062IN
‘■‘Lapse: September, 1937
“Mr. Orin Holland,
“Waldron, Arkansas.
“Dear Mr. Holland:
“We wish to acknowledge receipt of your application for reinstatement of your lapsed insurance and your tendered remittaiice.
“All applications for reinstatement have to take their regular course through the Underwriting Department and this requires some little time.
“As soon as this application for reinstatement has been acted upon you will be promptly advised. In the meantime your remittance is being* held in trust, pending final action upon the above mentioned application.
“Very truly yours,
“Underwriting Department
“Amount of Remittance held in trust $5.54.
“U-860.”
Mr. Holland made no response that the policy had not lapsed for failure to pay the September premium, as the letter stated.
On November 11, 1937, the association was advised through its reporting agency that Mrs. Holland had died “One day last week,” and on the next day the association wrote Mr. Holland a letter captioned as follows:
“November 12, 1937
“From the desk of K. Griffy
“In Re: GW-1062IN, Orin Holland
“Lapsed September, 1937.”
It will'be observed that this letter repeated the statement that the policy had lapsed on account of the nonpayment of the September premium, and this letter stated that the association had just been advised that Mrs. Holland was dead and for that reason the policy could not be reinstated. No reply was received to this letter, but a letter dated November 18 was received from an attorney employed by Mr. Holland, in which it was stated that “Mr. Holland was under the impression the policy was intact at the time of the death of his wife, Mrs. Holland. ’ ’
On November 29, 1937, the association issued its check for $5.54, payable to bearer as “Refund of all moneys tendered in connection with’ application for reinstatement of Policy GW-1062IN, dated October 29, 1937,” and sent same to counsel for appellee.
On December 13, the attorney wrote the association that Mr. Holland declined to accept the check and release the claim under the policy, and on December 17 the association wrote the attorney stating- that a photostat copy of the application was enclosed. The date appearing on this copy was October 29, 1937, and liability was denied. Suit on the policy had been filed before the receipt of this letter.
Mrs. Lottie Putnam, an assistant secretary of the association, connected with the Claims Department, testified that on October 4, 1937, she sent Mr. Holland a notice, addressed to him at his home in Waldron, advising him that the policy had lapsed for the non-payment of the September premium. The receipt of this notice was not denied, and no claim was then made that the September premium had been paid.
The signature of Mr. Holland to the application for reinstatement was witnessed by a person whose signature is not legible, but whose name as copied into the record is E. J. Tomdxtuo. Who this person is was not explained, but there is no claim that that application had been altered or mutilated, except that it is insisted that the figure “2” was placed before the figure “9,” making the date thereof appear thé 29th, when the correct date was either the 8th or 9th. Hardin’s testimony, as has been said, is to the effect that he filled out this application, as he had done on the three former occasions, and that the application as prepared by him required only Mr. Holland’s signature. He denied that the letter from Mr. Holland to him above copied was enclosed in the letter containing the signed application.
We may assume that the jury resolved this conflict in the testimony against the association; but such finding is not conclusive of the case. It is immaterial whether the application was signed on the 8th or 9th or 29th of October if the premium had not been paid, and upon this issue we have set out the testimony at some length, for the reason that this question of fact is the controlling question in the case.
The policy was one for term insurance, without reserve value of any kind, which might extend the insurance if the premium had not been paid during the month in which it was due. We think if the undisputed testimony and that offered on appellee’s behalf is alone considered, that no reasonable view thereof supports a finding that the September premium was paid. It is true appellee says that it was and that he received a receipt therefor. But the testimony herein recited so completely refutes and impeaches this testimony that it would be and is arbitrary to credit it. There is one fact alone which shows it is not the truth, and that is this. If the September premium had been paid, as Mr. Holland testified that it was, then the policy had not lapsed, and there was no occasion for this reinstatement. The haste shown by appellee’s own testimony in mailing the application to Hardin was a waste of energy, as he had the remainder of that month in which to pay the October premium. There is, in our opinion, no reasonable vi.ew of this testimony which gives substantial support to the finding that the September premium was paid, the testimony of Mr. Holland to the contrary notwithstanding.
Appellee insists that the association is estopped from saying that the policy had lapsed through the action of its agent in preparing and receiving the reinstatement' application and through its conduct in leading Mr. Holland to believe that the policy was in force and that the remittance accompanying the application would be received, and in the retention of the remittance for an unreasonable time. None of these positions are tenable. Mr. Holland had the right to apply for reinstatement of the policy, but he did not have the absolute right to have it reinstated. The right to reinstate was conditional upon the continued good health of all the persons insured, and the association had the contractual right to-thirty days’ time within which to make that investigation. Within less than that time the application was rejected, for the reason that Mrs. Holland was not only not in good health, but was dead.
Now, the premium was not returned until after the death of Mrs. Holland, but it appears, from the facts herein stated, that it was returned within a reasonable time. There is no element of waiver in this case. Garrett v. Pyramid Life Ins. Co. 197 Ark. 193, 121 S. W. 2d 898, is conclusive of that question. It was there held that there can be no waiver of rights without knowledge of the facts upon which such rights are based, and that the mailing of notice to the insured of a premium due after the death of. the insured without knowledge of the death could not affect the rights of the insurer under the policy of insurance as they existed at the time of the insured’s death. That case is also authority for holding’ that testimony to the effect that a premium in question was paid cannot be said to make a question for the jury when other testimony so impeaches that testimony as to conclusively show its falsity. In the Garrett -Case, supra, it was held that testimony to the effect that a premium had been paid was not substantial where its falsity was so conclusively shown that no reasonable mind could accept it as true. So with this case, we think the testimony to the effect that the September premium was paid is not substantial and does not support the verdict of the jury.
It follows, therefore, that the judgment must be reversed, and as the cause appears to have been fully developed, it will be dismissed. It is so ordered. | [
48,
109,
-80,
-20,
8,
32,
40,
-102,
127,
-32,
-89,
83,
-39,
99,
21,
117,
-109,
45,
69,
104,
-105,
-93,
55,
34,
-34,
-77,
-7,
-59,
-79,
93,
110,
-3,
64,
44,
10,
81,
-26,
-54,
-59,
48,
-34,
-120,
-87,
-19,
25,
86,
48,
111,
16,
67,
85,
-114,
-85,
46,
17,
65,
41,
40,
123,
-87,
-63,
-32,
-82,
4,
-1,
6,
-112,
70,
-72,
-25,
-40,
14,
-104,
49,
-112,
-24,
83,
38,
-58,
52,
103,
-103,
0,
98,
102,
-112,
101,
-19,
-16,
-102,
63,
-46,
31,
-123,
-105,
120,
19,
15,
-76,
27,
127,
16,
39,
124,
-4,
21,
76,
32,
0,
-118,
-106,
-79,
-49,
-24,
-100,
-117,
-18,
-106,
32,
117,
-55,
-88,
95,
-59,
117,
19,
6,
-120
] |
Baker, J.
The appellant states the points raised upon this appeal as follows:
“First:’ The court erred in not permitting the defendant to use Dr. Price to testify as to the plaintiff’s condition when he treated her after she testified as to the doctor’s diagnosis.
‘ ‘ Second: There was no issne in the evidence to go to the jury on the question of whether or not there was negligence in stopping the'bus at that point, which was wrongfully submitted in instruction No. 5A.
“Third: It was prejudicial error for the court to announce in open court before the jury that someone was talking to the witnesses and then have the bailiff bring Mr. Ward in the presence of the jury, and the jury then being excused did not know whether or not Mr. Ward had made a satisfactory explanation. This was prejudicial.”
To discuss these matters properly it becomes necessary to state some of the facts presented .upon the trial. Mrs. Moody, the appellee, bought a ticket at Monticello for a trip to Enon Church on one of the routes covered by «the bus operated by the appellant company. .She expected to leave the bus before it reached the actual location of the church. The driver of the bus admits that this was permissible, that he did stop at points short of the destination when asked to do so and permit passengers to leave the bus. The signal to stop was sounding a buzzer which notified the driver someone desired to alight. On this particular occasion Mrs. Moody expected to leave the bus before she reached Enon Church, at the home of her brother, a point at which buses frequently stopped. She says that she gave the proper signal before reaching this point and then spoke to the driver of the bus, but notwithstanding these facts, he carried her to a point about 75 yards beyond the one at which it had been accustomed to stop on signals. It was after night, somewhat after 8 o’clock on March 3, 1938, on highway No. 35, east of Monticello. When the appellee was ready to leave the bus after sounding the signal, the driver did not back up, but remained in his seat and opened the door by pulling a lever used for that purpose. Mrs. Moody left the bus at the point designated, .but says just as she was stepping to the ground the bus started, causing her to lose her balance, or foot-hold, and fall on the edge of an embankment from the top of which she slipped or slid into a ditch on the side of the road, causing the injuries which she alleged she suffered and for which she sued. In her testimony, Mrs. Moody de scribing her condition alleges that she had been at work in a WPA sewing room regularly up to the time of her injury, that after working hours on the day of her injury, she bought a ticket to go to her brother’s to spend the night. After the injuries, she returned the next day and resumed her work on the 4th, and worked only enough thereafter to prevent a discharge. Some of those who worked with her testified, in addition to her own statement, that they saw bruises and scratches upon her body, particularly upon her hip and legs. It is contended, however, that the most serious consequences arising out of this injury was occasioned by reason of the fact that Mrs. Moody was then in a pregnant condition and suffered, on account of the fall, very much for a time thereafter. On the Sunday following the fall she fainted while trying to prepare dinner for the family, called the doctor who sent her some medicine to relieve pain and later called to see her and gave her advice as to the proper care of herself under the circumstances. -There was no injury of a permanent nature so far as the evidence discloses and it may be taken as well nigh conclusive for the reason that at the proper time a normal child was born without any serious effects traceable to the alleged fall and injury.
The facts in regard to the manner in which the accident occurred are very sharply in dispute. As was stated above, at the time Mrs. Moody left the bus, it was already dark and the driver says he did not suspect any accident and did not learn of it until later when he received a letter from Mr. Moody stating that there had been an accident on that occasion.
The first question to be settled arises out of a bit of testimony offered by Mrs. Moody who was describing her condition and said that the doctor told her ‘ ‘ she was bordering on — ,” she did not finish that sentence because she was interrupted and was told not to state what the doctor had said. She was then asked if she knew what her condition was and she answered that she knew she was bordering on a miscarriage. Upon cross-examination defendant’s counsel developed that Dr. Price had so advised her. Judging from the rec ord it could not reasonably be in dispute that when she made her statement on her examination in chief she referred only to Dr. Price and for the further reason that there could be no dispute or misunderstanding about an idea she was attempting to give to the jury in her testimony, we would be impelled to disregard the effect of the cross-examination. In fact, we do not think the cross-examination in this particular developed more than the idea she had already communicated to the jury that Dr. Price upon his visit had advised her that she was bordering on a miscarriage. She was asked if she would consent for Dr. Price, her physician, to. testify in the case in regard to what he found on examination and his treatment of her from and after the time of the alleged injury. She objected. The appellant then insisted that she had waived the privilege by testifying to statements made by the doctor. We think this position is well taken. Certainly she may not open the way by testifying to statements voluntarily and then refuse to permit the doctor whom she has quoted to testify. Albritton, Admr. v. Ferguson & Son, 197 Ark. 436, 122 S. W. 2d 620.
Without attempting an analysis of the law in regard to privileged communications made to physicians and nurses, we suggest merely that if the ruling of the court was erroneous in limiting- the testimony of the doctor to such questions and answers as was necessary to cover the same matters about which Mrs. Moody testified, the case ought to be reversed unless it is apparent from the record considered as a whole that no prejudice followed this ruling of the trial court.
Prom the foregoing statements, it appears that Mrs. Moody, in quoting Dr. Price, testified to the extent of her injuries. The doctor was examined in that regard and the appellant had the benefit of his statements in that particular matter. There was nothing in this examination that would or could have been competent or relevant to determine liability nor was it necessary for the doctor to know or understand more than the fact that his patient had gotten the fall in alighting from a bus, that it was this fall that caused the bruises, scratches and abrasions from which she suffered at that particular time, all of which on account of her condition gave a greater degree of importance to the injuries received. It appears to us that the effect of the injuries is not substantially in dispute, but the occasion or cause thereof is very much so. We have given careful attention to the elaborate briefs prepared by the appellant and the appellee and the ca'se has been argued orally, and we find that the appellant is not making any controversy concerning the amount of the recovery. We think it may be fairly stated, if not actually conceded, that the appellants agree that if there is any liability, the verdict is not excessive. While it is true that the court did not permit an extensive investigation by appellant’s counsel in the examination of Dr. Price because of the objection made by his patient, the appellee, the conditions and circumstances are such that the doctor’s testimony could have been considered by the jury only to determine the extent of the injury, and consequent amount of liability. There is no statement of what the doctor’s evidence would have been; no examination of him at chambers out of the presence of the jury to indicate that the doctor’s testimony could have covered any particular phase of the case except the one mentioned. — the extent of the injuries received.
We have just re-examined the testimony of Dr. Price and find he was examined by the submission to him of hypothetical questions just as were asked other physicians who gave their several expert opinions answering the same questions propounded to and answered by Dr. Price. He did not agree with the others, but his conclusions were more favorable to appellants than theirs. Had the jury accepted the theory of appellant as exemplified by Dr. Price’s evidence, there could have been only a small recovery at most for slight bruises, scratches and a torn dress. The doctor was examined by the submission to him of hypothetical questions based largely upon Mrs. Moody’s statements and by which it seems'the appellant was able to submit questions and elicit answers that they desired from the doctor. Indeed, the appellant’s counsel followed the same form of ques tions that had been used by the appellee in the examination of the doctors or of her physicians testifying as experts in regard to the effect and consequences of the fall and such injury as Mrs. Moody was alleged to have received, and the doctor was permitted to answer all these questions. We think it appears conclusively that there was no denial on the part of the- court to permit an examination of Dr. Price. The appellants had the benefit of his presence on the stand, his testimony in answer to the hypothetical questions propounded to the appellee’s physicians which, of course, covered what was deemed to be the material facts of the case, and there is no particle of evidence in the entire record that the doctor knew any other fact that might have been of benefit in the settlement of this case. He was not asked what Mrs. Moody’s condition was on the occasion of his visit or call made immediately after the alleged fall. Had such questions been asked he would not have been permitted to answer, such was the effect of the court’s ruling. It is true we said in the case of Powell Bros. Truck Lines, Inc. v. Barnett, 194 Ark. 769, 109 S. W. 2d 673, that “prejudice is presumed when a party is denied the right to use a competent witness.” However well grounded that statement may be, it certainly cannot be controlling under the circumstances here for the reason that there was no actual denial of the right to examine Dr. Price. We declare the ruling of the court was, to some extent, a limitation upon the examination of the witness, but it seems that this limitation came only after there was somewhat of an extensive examination. There was no statement in regard to any other matter that Dr. Price knew, about which he could have been examined.
We are now confronted with the argument that we ought to reverse this case and send it back so that Dr. Price could be examined in regard to one detail only. That is Mrs. Moody’s condition at the time of his visit-after the injury. It is not contended except by inference that his testimony if given would have been materially different from that of Mrs. Moody. His conclusions differed very much from her evidence, but the jury failed wholly to accept and follow the doctor’s the ory. In truth, there is no prejudice in this case, and we think that not only is this a reasonable conclusion, but it is made affirmatively to appear by the examination of the entire record.
The next objection made was, as quoted above from the appellant’s brief, that there was no issue in the evidence to go to the jury on the question of whether there was negligence in stopping the bus at a point 75 yards beyond where Mrs. Moody requested to be put off and this was wrongfully submitted under instruction No. 5A. Instruction No. 5A is to the effect that it was the duty of the carrier operating a bus for the travel and convenience of the public to use ordinary care to deliver its paid' passengers at the point of destination in a reasonably safe place and in a reasonably safe manner, considering the situation and physical conditions then there surrounding. This objection is not urged so much against the form or substance of the instruction above set out as it is to the alleged fact or statement that there was, under the circumstances, no actual negligence on the part of the carrier upon which liability might be founded. We so understand the contention. We have already stated that Mrs. Moody testified that it was after 8 o’clock at night, that it was*dark; the driver of the bus says he could have seen Mrs. Moody by the light of the bus if she had fallen from the step; so to a certain extent the driver and Mrs. Moody both agree that at the particular time of the accident it was dark to the extent that light was necessary to see or observe just what was occurring or taking place. Mrs. Moody has testified and her testimony is not disputed, except from the fact that she is an interested party whose testimony must always be regarded as disputed until the facts are determined by the jury, that the bus stopped at a point directly on the edge of the highway so close to the side of the road or on the shoulders 'that when she stepped from the running board to the ground she was on the edge of this slope; that the premature starting of the bus caused her to fall and slip'or slide down the highway shoulder. The instructions merely told the jury that it was the duty of the driver of the bus to exercise ordinary care or reasonable care to permit the passenger to get off the bus at a place reasonably safe. The instruction was highly favorable to the appellant particularly in the light of former announcements of this court to the effect that carriers of passengers for hire must exercise a very high degree of care in the rendition of services to them.
If the jury believed the appellee, then it might well have been determined that the appellant’s driver of the bus was negligent. Indeed, it would have been surprising if they had not so found under the circumstances stated above. Negligence in this case was a question of fact for the jury. We certainly could not say that it was a question of law under the facts above stated and proof was ample and substantial, to sustain the verdict. In that respect no good purpose would be served by an extension of comment' in this particular.
The jury having found that there was negligence under the conditions, and the extent of the recovery, the first and second propositions stated must necessarily be disposed of contrary to the contention of the appellant.
The third contention as above quoted from appellant’s brief is one, we think, almost wholly without merit. This case had been tried once before without a verdict having been reached. This was a second trial and the witnesses were under a rule of the court and had been given place in a room in charge of an officer who was directed to report if anyone attempted to talk or communicate with any one of the witnesses during the progress of the trial. While the case was on trial, the deputy sheriff who had charge of the witnesses reported to the judge that someone had attempted to talk to the witnesses in violation of the rule. The court announced .that fact without naming or making any further statement in regard to the incident and directed the officer to bring the particular person before the court so that he might be examined. The deputy sheriff retired and returned in a few minutes with a Mr. Ward. The jury was then told to retire to the judge’s chambers, out of hearing of the court, and Mr. Ward was then examined in regard to his conduct alleged to have been in violation of the rule. The evidence is not exactly clear, but Mr. Ward, it developed, turned out to be a claim agent though he said he was an attorney, licensed to practice law. He admitted he talked to the witnesses without first obtaining permission to do so. The court finally let him go with a gentle reprimand, if indeed, it amounted to so much'as that. It is now urged that the ushering of Mr. Ward into the court-room while the jury was present had a prejudicial effect or influence upon the jury.
The record wholly fails to disclose any statement made by the court, by any officer, or other person in the presence of the jury indicating- who Mr. Waid was, or whether he was employed, or what connection he had, if any, with either the defendant or the plaintiff. After the verdict of the jury had been returned, and upon a hearing on a motion for a new trial, appellant offered testimony by calling several of the jurors who testified in regard to their impressions when they saw Mr. Ward brought before the court. The purport of this testimony was that some of the jurors suspected that he was an employee of or at least interested for the appel-lant company. Why this conclusion was reached by them, counsel have not advised us; but even had they done so, all such statements or arguments in that respect would have been incompetent and improper to consider. We understand, of course, that the trial court, feeling the full responsibility of the position he occupies, is inclined to guard with zealous consideration and most careful scrutiny anything that would tend in the least to reflect upon the purity and integrity of trial proceedings; but the statute should, be his guide, and, so long as it provided that, only in those cases wherein the jury may have reached their decision by lot, may they be permitted to impeach the verdict, such statute should be respected and enforced. Pope’s Dig., § 1536. We are not criticising the trial court, we are merely pointing out the fact that he was unduly cautious and careful in the light of circumstances that have been developed. The answer to all of this, however, might have been shortened very much by calling attention to the fact that at the time these incidents took place there was no objection nor exceptions by appellant although the court asked counsel if they desired to make objection to anything said or done. No objection was made by them. They raised this question when they asked for a new trial, but it was then too late. F. Kiech Mfg. Co. v. Hopkins, 108 Ark. 578, 158 S. W. 981; Pelham v. Stale Bank, 4 Ark. 202; Knight v. Wilson, 186 Ark. 662, 54 S. W. 2d 991. Numerous other authorities might be cited to the same 'effect, but this is unnecessary.
We have given due consideration to all facts, to the contentions made by the parties, the suggested errors and preservations of the right to follow up and contest on account thereof and upon the whole case we find no prejudicial error, and that is particularly true since there is no question about the amoukt of the recovery —$750.
Judgment affirmed. | [
-80,
-4,
-40,
-113,
10,
65,
122,
-118,
84,
-125,
-89,
83,
-83,
-43,
29,
43,
-74,
125,
85,
43,
-45,
51,
7,
33,
-14,
-45,
-53,
-44,
-75,
-49,
-12,
-3,
77,
106,
-54,
-43,
38,
75,
-57,
-40,
-52,
-106,
-88,
112,
25,
-102,
32,
48,
-108,
15,
113,
-98,
-93,
42,
27,
-58,
-20,
40,
107,
49,
-48,
112,
-114,
13,
111,
4,
-79,
36,
-98,
1,
-8,
0,
-104,
-79,
40,
-8,
49,
-74,
-125,
84,
111,
-103,
-116,
34,
98,
1,
85,
103,
-71,
-87,
38,
126,
55,
-89,
-106,
40,
73,
65,
-73,
-97,
71,
20,
14,
-6,
-4,
89,
92,
100,
3,
-49,
-76,
-111,
-59,
-76,
-74,
-105,
-21,
-101,
18,
113,
-50,
-6,
92,
68,
51,
-69,
-57,
-74
] |
McHaney, J.
Appellee became a passenger on one of appellant’s trains at Rudy, Arkansas, on August 15. 1938, at about 11:20 a. m., going to Fort Smith. After she had boarded said train and had entered a coach to take her seat, she says the train was started with a sudden and violent jerk, causing her to fall across an arm of a seat so as to inflict the injuries of which she complains.
She brought this action to recover damages in the sum of $3,000 for such alleged injuries on September 19, 1938.. The negligence alleged in the complaint is that the operatives of said train suddenly, carelessly and negligently started the train with an unusual, sudden and violent lurch and jerk, throwing her violently against the seat, and seriously and permanently injuring her, as therein set out. The answer was a general denial and a plea of contributory negligence. Trial resulted in a verdict and judgment for appellee for $3,000, the full amount sued for, and this appeal followed.
We think the court erred in not directing, a verdict for appellants, on their motion so to do, at the close of all the testimony.
Appellee was the only witness in her own behalf as to the manner in which the train was started after she had boarded it at Rudy. She testified that, as she was walking down the aisle of the coach into which she had been directed by the conductor, “the train gave a quick, hard jerk and threw me across the arm” of the seat in which another passenger, the witness Highfield, was sitting. She said: “I didn’t fall plumb down, but did fall op my knees”; again she said she was caused to fall by “the sudden quick jerk. "It seemed to jerk so suddenly that it jerked my feet from under me and I had no way of protecting "myself there, and it threw me across this arm and there was a man sitting in that seat”; and again, “it started awfully hard and suddenly. After I had gotten on the train, it jerked so quick and hard that it jerked my feet from under me and I tried to catch with my suit case, and I had my purse under my arm and it threw me across the seat.”
This, in brief, is all the testimony she gave as to the negligent manner of starting the train. In contradiction of her testimony, there is in the record the tes tiruony of the conductor, the brakeman, the fireman, the engineer, and six passengers on the train in the same car which appellee entered. All of them say there was no sudden or unusual jerk of the train in starting, but on the contrary that it moved off smoothly and without any noticeable jerk or jar. One of these passengers was Mr. W. K. Woffard, a fellow townsman of appellee, and well acquainted with her. He testified: “If there was any jerk, I didn’t feel it any whatever, I didn’t even know when the train started.” He. got on the train immediately following appellee. Of the other five passengers, one was an employee of appellants, and was traveling on a pass, and another was an employee of the Western Union Telegraph Company, and was also traveling on a pass. If we should say, and we do not, that the jury had a right to disregard the testimony of the five employees of appellants, because of their relationship, certainly it had no right to disregard the testimony of the other five passengers, four of whom were paying passengers, wholly without any interest in the litigation. Neither did the trial court, on the motion for a new trial, have the right to disregard their testimony. This court has many times said that where the verdict is against the preponderance of the evidence, it is the duty of the trial court to set it aside. Here, appellee, vitally interested in the result, is contradicted by ten witnesses, five of whom are employees, but are corroborated by five others who have absolutely no interest in this case.
It is difficult to see how the jury could render the verdict it did under this state of the record, or how the trial court could permit it to stand. It is not only against the preponderance of the evidence, for which we would not reverse, but the evidence of appellee is not sufficient to support a finding of negligence, and the verdict, therefore, should have been directed against her. We do not mean to intimate that the preponderance of the evidence is to be determined alone by the number of witnesses testifying on either side of the case, for such is not the law. The rule in this court is that where the trial court overrules a motion for a new trial, it is tantamount to a finding by it that the verdict is supported 'by a preponderance of the evidence, and that the question of where the preponderance of the evidence lies will not be determined by this court on appeal. But whether there is evidence of a substantial nature to support the verdict and judgment will be inquired into in this court, as that is a question of law and not of fact. -
It is well settled in this state, as said in the recent case of Missouri Pacific Railroad Co. v. Baum, 196 Ark. 237, 117 S. W. 2d 31, a case relating to the question of a sudden or unusual jerk or jar of the train on which Baum was a passenger, resulting in injury for which he sued, that: “The carrier is not an absolute insurer of the safety of its passengers. It is only required to exercise toward its passengers the highest degree of care which a prudent and cautious man would exercise, and that which is reasonably consistent with the mode of conveyance and practical operations of its trains. Citing cases. . . . The law is that negligence is never presumed, but, like fraud, must be proven. Except in cases where the doctrine of res ipsa loquitur applies, negligence is not even presumed from the proof of the happening of an accident and resulting injury.”
It is conceded by appellee that the-mere starting of the train before she had reached her seat-, but after she had safely boarded it, does not constitute actionable negligence. The gist of the negligence alleged is that the train started with a sudden lurch or jerk. But if it be conceded, contrary to all the evidence except that of appellee herself, that the train was started with a jerk or a lurch, that fact would not justify a recovery, unless there was a negligent jerking or lurching of the train. It was so held in Harris v. Bush, Receiver, 129 Ark. 369, 196 S. W. 471, where it was said: “There is much evidence tending to show that there was no unusual jerking or lurching of the train either at Argenta or while slowing down to a stop at the Little Rock station. Unless it was a negligent jerking or lurching of the train, it is apparent that appellant had no cause of action against appellee. In other words, if the injury was purely acci dental and not the result of the negligent operation of the train, appellee would not he responsible. ’ ’ Again in the same case it was said, “There is no escape from the conclusion that unless appellant was injured through the negligent jerking or lurching of the train, then her injury must have resulted from some carelessness on her own part. The inherent probabilities in this record strongly point to the fact that this injury must have resulted in some other manner than the manner outlined by appellant. She has described such an unusual lurching and jerking of the train as would hardly escape the notice of all the train men and two disinterested passengers. It is hardly probable ‘that she would have 'been the only one to receive an unusual jar. It is out of the ordinary that she would be the only one to receive a fall or injury.”
In McCluskey v. Shenango Valley Trac. Co., 105 Pa. Sup. Ct. 275, 161 Atl. 424, under similar facts as here related, the court said: “We are of one mind that the testimony, when viewed in the light most favorable to plaintiff, does not measure up to the standard which has been fixed by the decisions upon the subject of the requisite proof to establish negligence in cases of this character. A fall caused by a sudden stop while one is walking in a moving street car will not be held sufficient to 'convict the trolley company of negligence, unless the negligent character of the stop is evidenced by its disturbing effect on the other passengers or unless intrinsic evidence of the unusual character of the jolt or jerk appears in its effect on the person injured. We are of the opinion that the words ‘sudden jerk,’ ‘unusual jerk,’ ‘a jump of the car’ and ‘it threw me violently on the floor,’ as used by plaintiff in describing the jerk, and the words of her witnesses that the car ‘started unusually sudden,’ when not accompanied by testimony inherently establishing the extraordinary character of the starting of the car, or by evidence of its effect upon other passengers who would have been disturbed by an unusual or extraordinary jolt of the car, are insufficient to sustain a finding of negligence. Nor is the defect supplied by plain tiff’s statement that ‘everybody in the car lurched.’ Under all our cases such descriptive language is not sufficient proof of negligence. The character of plaintiff’s fall was not so violent and unusual as to permit the jury to predicate on it alone a finding that the jerk was extraordinary and unusual and therefore negligent. As we have pointed out before, it is common knowledge that one’s balance or equilibrium is more easily lost when walking in a moving car than when seated.”
Appellee was walking down the aisle of the ear with a suit case in one hand and a handbag or purse in the 'other, or under her arm. Any movement of the train would tend to unbalance her and cause her to fall. It was not negligence for the train to start and to apply as much steam pressure in the cylinders of the locomotive as was necessary for the purpose of starting the train. All the witnesses, except herself, say that the train started in the usual and ordinary way. She assumed all the ordinary risks and hazards necessarily incident to the usual and ordinary manner of starting the train, and the expletives or epithets used by her in describing the manner of the start, did not change the manner of the start. No one else on the train was disturbed not even the passenger who boarded the train immediately following her who said that the train was started with such ease that he did not notice when it started, nor was there intrinsic evidence of the unusual character of the jerk appearing in its effect upon her.
We are, therefore, of the opinion that the appellee failed to establish any negligence in the manner of starting the train, and that the judgment should be .reversed and the cause dismissed.
Humphreys, Mehaeey, and Baker, JJ., dissent.- | [
-112,
-23,
-88,
-49,
42,
112,
40,
-118,
115,
-123,
-92,
-45,
-19,
69,
65,
43,
110,
45,
-47,
57,
-10,
-77,
70,
-30,
-46,
-45,
121,
69,
-109,
74,
-28,
-10,
77,
16,
-54,
81,
102,
74,
-59,
24,
-114,
-127,
-81,
-24,
25,
8,
48,
123,
4,
7,
113,
-97,
-13,
42,
24,
90,
108,
63,
111,
-67,
-64,
113,
-125,
5,
61,
6,
33,
36,
-97,
5,
-52,
24,
-40,
52,
50,
-36,
112,
-90,
-126,
86,
105,
-5,
68,
98,
98,
33,
-115,
-89,
60,
-88,
46,
62,
-67,
-89,
-30,
24,
65,
109,
-65,
-107,
83,
-111,
13,
-4,
-7,
77,
88,
32,
-125,
-54,
-108,
-79,
-33,
36,
-106,
39,
-53,
39,
50,
116,
-52,
34,
92,
71,
58,
-101,
-97,
-98
] |
Holt, J.
This cause comes here on second appeal. The former opinion was on April 4, 1938, and is reported in 195 Ark. 980, 115 S. W. 2d 262. The cause was reversed for the error of the trial court in refusing to sustain appellants’ motion to require the appellee (plaintiff below) to make his complaint more definite and certain as to the time the dog in question was killed, whether the train that ran over the dog was a passenger or freight train, and the direction the train was traveling.
Upon remand, plaintiff, appellee here, filed an amendment to his complaint alleging: ‘ ‘ That his dog was killed on or about the morning of October 17, 1936, as alleged, by one of the defendants’ southbound trains, the number and kind of said train being unknown to this plaintiff, all to plaintiff’s damage in the sum of $125.00.”
Appellants (defendants below) filed their motion to require appellee to make ■ his complaint more definite and certain in this: “That the plaintiff be required to state at what time of day or night of October 17, 1936, said hound dog was killed; that the plaintiff be required to state in which direction said train was going and whether or not said train was a passenger or a freight train which is alleged to have killed said dog. ’ ’
To this motion of appellants, appellee filed response ■alleging: “That the plaintiff does not know what train killed the dog nor what direction said train was traveling nor the time of the day.”
Subsequent to the filing of this response by appellee, appellants renewed their motion to make more definite and certain and alleged, among other things, the following: “That the plaintiff be required to state the approximate time of the morning of October 17, 1936, one of defendants’ southbound trains killed his dog; that the plaintiff also be required to state the character of said southbound train, whether a freight train or a passenger train; that the plaintiff be required to state from what source and upon what authority he bases his allegation in the response that the dog was killed by a southbound train.”
Upon this motion of appellants being overruled by the court, appellants moved for a continuance and this motion the court also overruled. Thereupon appellants filed a response in which they denied each and every material allegation set out in plaintiff’s response.
Appellants earnestly insist that the trial court erred in overruling their motion, and renewal of motion, to make plaintiff’s complaint more definite and certain. It is insisted that the amendment to the complaint, which was filed in the instant case, is just as indefinite as the original complaint and gives the defendants no better knowledge or information as to when, where and what train killed the dog in question than did the complaint upon which the court reversed the cause on the former appeal.
It will be observed that the plaintiff in his amendment to his complaint alleges: “This dog was killed on or about the morning of October 17, 1936, as alleged, by one of the defendants’ southbound trains, the number and kind of said train being unknown to the plaintiff.” And in response to appellants’ motion to make more definite and certain alleged: “That the plaintiff does not know what train killed the dog nor what direction said train was traveling nor the time of day. ’ ’
In the former opinion in this cause, this court said: “Again we say we do not mean to hold that when one is unaware of the time of killing of his stock by a railroad train that he shall not be permitted, to recover for the value thereof. But we do mean to hold that he should allege the time of the killing with as much definiteness and certainty as possible. If he has no direct information or knowledge of the time, he should allege any particulars within his knowledge that would aid in identifying the time and the train which did the damage, to the end that the. railroad company might be enabled to prepare its defense and avoid the necessity of subpoenaing an unnecessary number of witnesses. Of course, if appellee did not have any information or knowledge as to the time his dog was killed and there were no means open to him by which such information or knowledge could be obtained, he should have alleged in his complaint not only that he had no information or knowledge of the number of defendants’ train that killed his dog and no information or knowledge of the direction in which the train was going, but he should have further alleged that he had no information or knowledge as to the time, whether night or day; and that he was, therefore, unable to make a more definite statement as to the time. If this had been done, it would have been necessary for appellants to go to trial. A motion to make a complaint more definite and certain as to time will not lie when the plaintiff alleges that a more definite time is to him unknown and. that he has no information or knowledge that will more definitely identify the time.”
We are of the view that plaintiff’s allegation in his amended complaint that his dog was killed on or about the morning-of October 17th by one of defendants’ southbound trains, the number and kind of said train being unknown to him, and in his response that he did not know what train killed the dog nor the time of day, was sufficiently specific and definite under the facts, and within the knowledge of plaintiff. Certainly he could not be required to allege what he did not know.
Appellants next contend that the jury’s verdict is contrary to the evidence.
The record reflects that appellants introduced no evidence on the trial of the cause.
On the part of appellee there is evidence to the effect that the body of the dog in question was found lying between the rails and his head outside of the rails. There was blood on the ties and rails, grease on the body, the gravel on the roadbed was disturbed in a manner indicating that the dog’s body had been rolled some thirty yards south from the point where the blood and a part of the body were found and there was also blood on the gravel.
The testimony further shows that the dog was heard to bark, while running, 'about two-thirty or three o ’clock on the morning of the 17th near where his body was found, and that the dog’s body was found around seven o’clock on the same morning.
We think this evidence sufficient to take the ease to the jury, and as was said by this court in the case of Mo. Pac. R. R. Co. v. Berry, 180 Ark. 437, 21 S. W. 2d 601: “If the dog was killed by the operation of the train, as the jury found, this made a prima facie case, and was sufficient to take the case to the jury, unless the railroad company offered some evidence that it was at the time in the exercise of care and did not negligently kill the dog. There was no testimony in the record. ’ ’
As stated above, appellants introduced no testimony in an effort to overcome the prima facie case made by the plaintiff.
Appellants also complain that the verdict of $100 is excessive and that, should recovery be permitted, the verdict should not be allowed to stand for more than $65.00. It would serve no useful purpose to set out the evidence on this point. Suffice it to say that after a careful review of the testimony we are of the opinion that there is substantial evidence to support the jury’s finding.
On the whole case, we find no errors, and accordingly the judgment is affirmed. | [
-80,
102,
-100,
-81,
42,
97,
42,
-102,
-59,
-127,
-25,
83,
47,
-61,
21,
49,
-1,
45,
-43,
107,
86,
-77,
82,
-94,
-46,
-13,
114,
-57,
-75,
79,
100,
126,
12,
48,
10,
85,
101,
-54,
-59,
88,
-50,
13,
-115,
-27,
57,
74,
48,
105,
86,
15,
49,
-33,
-85,
42,
28,
99,
105,
58,
123,
-23,
-62,
113,
-125,
7,
48,
2,
-95,
52,
-98,
-123,
80,
11,
-112,
53,
16,
-8,
114,
-74,
-125,
116,
105,
-39,
0,
98,
99,
33,
13,
-83,
-84,
8,
111,
56,
-81,
-89,
-70,
9,
105,
33,
-74,
-99,
116,
18,
7,
126,
-2,
-44,
-99,
-92,
2,
-50,
-80,
-101,
-41,
36,
-98,
35,
-21,
-79,
50,
112,
-56,
-96,
92,
71,
124,
-69,
-113,
-98
] |
Baker, J.
From the chancellor’s refusal to enjoin officers from holding a special election December 30, 1939, Walker has appealed.
The county court found that on November 6, 1928, valid county warrants amounting to $68,864.68 were outstanding; that such warrants were issued subsequent to December 7, 1924, to pay for two jails, but that they had been paid. It was further found that action of the collector in receiving some of the warrants from taxpayers in lieu of cash, and payment of others by the treasurer, had resulted in a deficit of $57,376.18 at the time the court’s findings were made November 2, 1939, and that the deficit [was] . in effect an indebtedness of Mississippi county existing at the time of the adoption of Amendment No. 17; . . . that under [the amendment] the county is authorized to issue jail funding bonds to take up said indebtedness ... if a majority of the electors authorize such bonds at an election duly held for that purpose.” . .
Appellant’s contention is that the deficit Avas not caused by payments from the county general fund nor by acceptance of warrants on taxes.
Evidence upon which the county court made its finding is a letter from accountants other than those attached to the state auditorial department. It was stipulated that this exhibit be introduced “. . . without the formality of calling either of said accountants to testify.”
The letter, although signed by men of high repute and known ability, does not purport to impart information gathered from original sources. It is copied in the margin. The hearsay nature of this communication as evidence is shown by its recitations.
The record justifies belief here that the county court used the term “valid warrants” in reliance upon the ac countants’ letter, there being no reference to other evidence. Nor was there reference to any evidence.
Amendment No. 17, adopted November 6, 1928, authorizes issuance of bonds to fund any indebtedness existing on the effective date.of the amendment “. . . incurred in building, constructing, or extending any county courthouse or jail.”
It was decided in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, that Amendment No. 10 did not prohibit counties from incurring obligations in excess of the year’s revenues; that if construction costs of jails and courthouses should be extended in such manner that interest and maturities payable in any designated year would not, when added to necessary governmental expenditures for such year, exceed the revenue, the fact of future obligation would not render the contract void. The illustration in the opinion is: “For instance, if Lonoke county has revenues not exceeding $60,000, and proposes to spend $10,000 a year on a court house, then all bther expenditures must not exceed $50,000 per year.”
The restrictions upon counties imposed by Amendment No. 10, as ameliorated in Kirk v. High, were met by adoption, of Amendment No. 17. In Carter v. Cain, 179 Ark. 79, 14 S. W. 2d 250, it was said that “Amendment No. 17 was evidently adopted for the very purpose of meeting the decision of this court and accomplishing what [the people] thought was accomplished by Amendment No. 11. That is, to prevent counties from going into debt, and provide a method for building and paying for courthouses and jails.” See Boydstun v. Condray, 183 Ark. 336, 36 S. W. 2d 64; Irwin v. Alexander, 184 Ark. 572, 43 S. W. 2d 85.
Amendment No. 10 was followed by a legislative enabling or facilitating act which gave to an aggrieved taxpayer the right to question correctness of the county court order. No such accommodation seems to have been extended in respect of Amendment No. 17, although the constitution of 1874 (art. 7, § 33) allows appeals to the circuit court from all county court judgments, to be taken under such regulations as may be prescribed by law. See Pope’s Digest, § 2913.
In the absence of authority in Amendment No. 17 fox-appeal from the county court’s adjudication of outstanding indebtedness — -a requirement precedent to calling an.election — it follows that the court’s determination of the amount of the indebtedness it is proposed to fund goes to the electors unchallexxged, unless resort is had to injunction. In this situation reviewing courts must scrutinize the record for evidence to sustain processes by which determination of the fact has been arrived at.
■ The first error apparent oxx the face of the record is the conflict between the county court’s finding that an indebtedness- of $68,864.68 existed November 6, 1928, and the opinion of accountants that this was the deficit December 31. The accountants attest an indebtedness of $57,331.93 November 1Ó.
The accountants say (on information and belief)-: that jail warraxxts outstaxxding November 10th were $28,693,99, a sum less by $40,170.69 than that ascertained by the county court to have been outstaxxding on the sixth. ..
■' The audit shows outstanding general warrants to have been-$16,212.09 November 10th, an increase of $14,-279.59 between that date and the 31st of December.
Approved claims November 10th were $12,425.85. That class of obligations December 31st was $9,679.01, a decrease of $2,746.84.
The three items — general warrants, approved claims, and jail warrants, listed by auditors and classified outstanding November 10th, amount to $57,-331.93. The same items December 31st were $68,864.68, a net increase of $11,532.75.
If, as the county.court found, $68,864.68 of jail warrants were in existence November 6th, then, in view of the auditors’ statement that on November 10th only $28,693.99 in warrants of this class of indebtedness was outstanding, it follows that during the intervening four days payments were $40,170.69; and yet, the account ants on December 31st say the entire county debt, inclusive of general warrants, approved claims, and jail warrants, was $68,864.68 — tlxe exact figures the county court used ixx determining the November 6th indebtedness.
Hagler v. Arkansas County, 176 Ark. 115, 2 S. W. 2d 5, overruled Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963. In the Hagler Case it was held that under act 30 of 1927 a county which had issued bonds to pay an indebtedness existing prior to October 7, 1924, was entitled to pay any indebtedness existing prior to December 7, 1924, such phyment to be made from a surplus in the bond account; or, in the alternative, supplemental bonds might be issued to retire the indebtedness if funds in the surplus account proved insufficient. The legislative act was intended as a relief measure covering the period from October 7, when Amendment No. 10 was adopted, to December 7, its effective date. See Matheney v. Independence County, 169 Ark. 925, 277 S. W. 22.
Appellees insist that the Hagler case is authority for issuance of bonds in the instant case to fund jail warrants outstanding November 6, 1928. They think the fact of subsequent payment is no bar to the right, the theory being that the debt, once having existed, was not destroyed by the county’s conduct ixi using general funds for retirement of the warrants or in accepting them in payment of taxes.
If we should hold (in view of the record we do not so decide at this time) that funding boxids may be issued in an amount not in excess of outstanding jail warrants November 6, 1928, shown November 10th to have been $28,693.99 and the same amount December 31 of that year, it would be necessary to predicate such holding upon facts showing that such jail warrants and the interest thereon matured subsequent to November 6, 1928.
Under Amendment No. 10 and the holding in Kirk v. High, if payment of jail warrants from December 7, 1924, to November 6, 1928, necessitated carrying over to a succeeding year other county general warrants or claims, the excess as to jail warrants due in that year, and general warrants and claims, would be void unless the indebtedness accrued prior to December 7, 1924, and had not thereafter been funded.
Amendment No. 1.0 does not permit relief in the case at bar merely because payment of jail warrants during the four-year period occasioned a general revenue deficit.
It must be held, therefore, that the agreed statement upon which the county court predicated its findings of facts does not support the conclusion.
The judgment is reversed and the cause is remanded with directions to grant the injunction, but with leave to appellees to have the state auditorial department or the accountants who appear of record in this case make a detailed examination and file a report to be made an exhibit to any future order showing (1) the county’s' indebtedness December 7,1924; (2) the amount of bonds, if any, issued under authority of Amendment No. 10, and how proceeds were applied; (3) the date of issuance of the so-called jail warrants, maturities, etc., and the manner and date of all payments; (4) the amount of claims and outstanding warrants, listed separately as to totals, which at the end of each year subsequent to 1924 constituted an indebtedness; (5) the available revenues with which to meet such warrants and claims; (6) the date and manner of payments of warrants in excess of the revenues for any of the years in question if any.
The letter, dated November 16, 1939, and addressed to S. "L. Gladish, county judge, follows: “From audit reports of P. E. Cooley, county auditor, on the affairs of Mississippi county, we find that the indebtedness of the general fund of Mississippi county as at November 10, 1928, was reflected as $57,331.93. An audit report by [another firm of certified public accountants] reflects an indebtedness of the general fund as at December 31, 1928, of $68,864.68. These reports show that this indebtedness was evidenced as follows: Outstanding general warrants November 10, 1928 $16 212.09; December 31, 1928, $30,491.68. Approved claims November 10, 1928 $12,425.85; December 31, 1928, $9,679.01. Jail warrants November 10, 1928, $28,693.09; December 31, 1928, $28,693.99. Total [November 10. 1928, items], $57,331.93; [December 31, 1928] $68,864.68. From a further examination of financial statements and reports prepared by county auditor Cooley and by the county auditorial department of the state comptroller’s office, setting out the indebtedness as at various dates during the period January 1, 1929, to January 1, 1939, and taking into consideration explanations of these statements, . . . we are of the opinion that the total indebtedness of the general fund has never been less than $57,382.21 at any date between January 1, 1929, and January 1, 1939. We are also of the opinion that the entire indebtedness as at December 31, 1928, could be attributed to outstanding jail warrants and to a detriment to the general fund arising from the redemption of jail warrants from this fund.”
The amendment is referred to as No. 11.
Act 210 of 1925. See, also, act 93 of 1927.
The record in this case, because of the stipulation, includes the judgment and the matter it was agreed might be introduced without calling the accountants.
These warrants were, in fact, issued against the general fund, but [presumably] bore indorsements showing the purpose for which they were issued. | [
116,
-19,
-8,
-2,
58,
-128,
11,
14,
-46,
-119,
-25,
87,
105,
98,
16,
113,
-94,
125,
117,
88,
-59,
-77,
35,
97,
-90,
-13,
-53,
-43,
-9,
73,
-12,
117,
8,
112,
-38,
-107,
70,
-30,
-121,
88,
-50,
-127,
-85,
77,
-40,
-112,
48,
41,
96,
9,
117,
47,
-21,
56,
20,
107,
-19,
44,
89,
41,
-47,
-13,
-104,
13,
123,
4,
-111,
39,
-120,
-123,
-24,
62,
-104,
48,
-112,
-7,
123,
-90,
-122,
84,
13,
-103,
40,
102,
38,
17,
-83,
-1,
-68,
-88,
22,
-6,
-107,
-90,
-42,
121,
107,
73,
-74,
-99,
127,
64,
-121,
126,
97,
-123,
95,
108,
43,
-50,
-16,
-79,
12,
116,
-116,
2,
-25,
-96,
112,
113,
-52,
-29,
92,
-25,
16,
27,
-61,
-111
] |
Baker, J.
Mrs. Deshazo filed a suit against three farmers residing in Howard county and against the two appellants, named above, and procured a judgment of $2,000 on account of alleged negligence, .causing her rather severe injuries. The three farmer defendants out a green pine tree, growing’ upon the land of one of them. It stood ábout fourteen or fifteen feet off the- fifty foot right-of-way of the Southwestern Gas & Electric Company, and nearly or -about forty feet from the nearest line which was charged with electricity of 33,000 volts. The long distance telephone lines of the Southwestern Bell Telephone Company are said to have crossed this high voltage line in perhaps two or three different places. There is no showing- upon this appeal, when these lines were built, but there is no allegation or proof that they had been permitted to deteriorate on account of long standing. The principal charges made against the telephone and electric companies are stated in two paragraphs, constituting the actual negligence set up. They are: “1. Constructing their lines to cross one another adjacent to standing timber and without insulation. 2. Permitting their lines to cross each other in such close proximity as to permit them to contact one another, without being properly insulated.”
At the time of the injury, Mrs. Deshazo was employed at the switchboard of the office of the local telephone company at Dierks. The long distance telephone line of the Southwestern Bell Telephone Company ran into this office. The three farmers who were sued cut down a pine tree for stove wood. It was perhaps from forty to forty-five feet high. The testimony shows that they cut it properly so as to cause it to fall, under ordinary conditions, parallel with the high tension lines of the Southwestern Gas & Electric Company. It appears, however, that there was a vine that had grown and connected the top of the tree that these men cut with another nearby tree, and that this vine caused the falling tree to swing to one side and strike one of the lines carrying the high voltage current. The lines broke and as it fell to the ground it sagged until it came in contact with the telephone line of the -Southwestern Bell Telephone Company. On account of this contact, the high voltage current was conducted to the telephone office three or four miles away, and the plaintiff says that she was very severely shocked and injured. The matter of her injuries, we think, is properly foreclosed by the verdict of the jury, which gave her a recovery of $2,000 against the two corporations, but this same jury, at the same time, returned a verdict in favor, of the three farmers who were defendants in this same suit, absolving’ them from any charge of negligence.
It becomes necessary in this case to consider the facts as developed in relation to the alleged negligence of the two corporate appellants. One of the charges is that they built their service lines too close to each other, adjacent to standing timber and without insulation. The appellee does not argue that either one of the appellants should have g-one upon the land of Mr. ‘Brandon and cut timber which could have possibly fallen upon one of these lines carrying high voltage electricity or that if a line was to be constructed it should have been placed in a region where there was no standing timber. There is no argument that the construction of the line through country where the timber was growing was an act of negligence. There is some argument, however, in regard to the construction of electrical appliances according to rules fixed by the National Electric Safety Code, as it has been adopted by the Department of Public Utilities in Arkansas, but there seems to be no dispute as to the actual facts developed upon trial. We shall attempt on account of that fact to state separately the issues as they have been argued by the appellants and the appellee and state our conclusions upon each matter of apparent or real importance.
The first matter that appears is that the proximate cause of that unfortunate occurrence was the cutting of this particular pine tree, which fell and broke a high tension wire. Certainly if this tree had not been cut by the three farmers, who have been exonerated from all negligence, there would have been no broken line, no contact of one line with another and the plaintiff would never have received the shock from which she suffered. If this were the sole proximate cause of the injury, the appellee must fail in her suit to recover compensation for the injuries alleged. The authorities governing this situation are numerous. A few typical ones are here cited. Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A., N. S., 905; Bona v. Thomas Auto Co., 137 Ark. 217, 208 S. W. 306; Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44; St. L. I. M. & So. Ry. Co. v. Bragg, 69 Ark. 402, 64 S. W. 226, 86 Am. St. Rep. 206.
But appellee urges that there was faulty construc- . tion in that these lines were permitted “to cross each other in too close proximity to each other and to standing timber,” the lines not being properly insulated. The National Electric Safety Code adopted by the Department of Public Utilities of this state has made suitable regulations for lines that cross each other. While these regulations may be regarded as official, and as furnishing, under ordinary circumstances, reasonable margins of safety in the conduct of those who construct and maintain such electric systems, it may perhaps be said that such regulations prescribe only the minimum of care that should be tolerated under such circumstances and conditions; but certainly if such minimum of care be taken and exercised in such construction work, then one who asserts defects such as to make the construction or maintenance dangerous must assume the burden of proving the particular acts or conditions that constitute the negligence complained of. The proof in this case does not show any facts in regard to faulty or negligent construction. For instance, in regard to trees, Rule 281, paragraph A, was offered in evidence. It provides that: “Where trees exist near supply line conductors they shall be trimmed, if practicable, so that neither the movement of the trees nor the swinging or increased sagging of conductors in wind or ice storms or at high temperatures will bring about contact between the conductors and the trees. Exception. For the lower voltage conductors, where trimming is difficult, the conductor may 'be protected against abrasion and against grounding through the tree by interposing between it and the tree a sufficiently nonabsorptive and substantial insulating material or device. B. At wire crossings and railroad crossings as far as practicable, from overhanging or decayed trees which might fall into the line.”
We find no provision in these rules, or any part thereof, that the owner of the high tension lines should anticipate every possible condition whereby a sound, green tree, approximately forty feet away might be so broken down or storm-swept as to make it necessary to go upon the land of another -and cut trees, or move the line already constructed, should a tree on land adjacent thereto, though belonging to another, grow to a sufficient height that it might at some time be blown across such line. The proof in this case is not that there was any sagging condition of any line'. There was not any overhanging tree. There was no decayed tree, nor is there a requirement in law that those who construct and maintain ware circuits should anticipate the falling of any sound, green tree, or that it might be cut by the owner, or, if cut, that a vine growing in the top might cause it to fall so as to break some wire and cause damage. The witnesses tell us also that such wires, or lines, where they cross shall be at least six feet apart according to the rules of National Code of -Safety, and those who are experienced in such construction say under ordinary conditions such allowances could not be criticized as improper. In this cause, however, the facts are undisputed that the lines were twelve feet apart, that is to say that the electric lines carrying the high voltage were twelve feet higher than the telephone lines which crossed below. The proof also shows that these high tension lines were properly built above the smaller or lighter lines of the telephone company, so if six feet be a reasonable clearance, twice that distance furnished greater protection.
The proof fails to show there was sagging, and close or dangerous proximity of one line to another, except that caused by the conduct of the three farmers held blameless. 'But there does remain the charge that these lines were in such close proximity -as to permit them to “contact one another without being properly insulated.” That was a charge, but there was no such evidence. We assume, and we think the record discloses that these high tension lines of the electric company and the telephone lines were without any covering as insulation. One of the rules of the Safety Code in regard to insulation is rule 114, page 41, par. 5. We are told it contains this provision: “The insulating covering on parts exceeding 750 volts to ground shall not be considered a protection. ’ ’
We understand this announcement or declaration to mean that the usual covering upon electric wires, where the current exceeds 750 volts, may not be deemed to be a protection against the current carried by the wire. We. cannot and do not agree with appellee that there is a practical method of insulation of high tension wires by some form of covering. If there is, the experts who testified in this case did not tell about it, nor does any witness suggest that there is any practical method in use. There is a possibility that a line of almost any voltage might be insulated. We do not pretend to know what it is. We know sometimes that cables are carried under ground or even under water, but, for practical purposes, in sparsely settled communities such requirements of insulation are met by isolation; that is to say, the construction or building of the lines high in the air. So the form of insulation ordinarily used in cross country electric systems' is the system of isolation, by which lines are built twenty-five or thirty feet above the ground, far out of reach, and without danger to anyone, except meddlers and trespassers. The National Electric Safety Code and also our Department of Public Utilities indicate that a system constructed as was the electric system in this instance is one that may be properly maintained and that its location, high in the air, is the kind of insulation approved by experts; and not a word of testimony has been offered by appellee or any other witness in this case indicating that such construction as was maintained by both the electric company and the telephone companjr was negligent in the slightest degree. Certainly, we cannot say as a matter of law in the face of this record that because there was injury, a recovery may be had. On several occasions this matter of insulation has been discussed by this court and no ease has been cited for our consideration indicating that there was negligence, either in the construction or maintenance of the high tension lines, isolated as these were, according- to the undisputed proof in this case.
In onr consideration of this identical question we announced: “There is involved here no question about the duty of the electric light company to insulate all its wires. The authorities appear to be unanimous-in holding that there is no such duty, but the cases do hold, as we understand them, that this duty must be performed, or other safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated.” Supporting this statement is a citation to 9 R. C. L. at § 21, Electricity, p. 1213. Hines v. Consumers’ Ice Co., 168 Ark. 914, 272 S. W. 59.
Again at a later date we said: 1 “This court has recognized the true rule in Hines v. Consumers’ Ice Co., 168 Ark. 914, 272 S. W. 59, where it was said:” Then followed the exact quotation above from the Hines case. Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44.
In the last cited case there was a reversal because of errors in instructions. One of these was because the trial court told the jury that the defendant ‘ ‘ owed to the public a high degree of care,” etc., and that if the defendant “failed to exercise a high degree of care,” etc., plaintiff should recover. This was held to be error in that ordinary care was all that was required.
In a more recent case we again considered the matter of insulation. Although we held by a divided court that in the particular case insulation was properly a requirement and that a recovery should be sustained upon the failure to insulate all electric wires in the city of Waldo, this opinion is not of controlling effect here. The reason given for this holding was the fact that there was an ordinance requiring such insulation. This ordinance had been accepted by the electric company and was recognized as a contract. We said after quoting the identical statement above set out from Hines v. Consumers’ Ice Co., supra, “The above authorities as said in Morgan v. Cockrell, supra, have recognized as the true rule, but it is the rule under the common law, and where there is no ordinance or statute.” There is, in addition, a recognition of the application of this “true rule” in the absence of legislation. Arkansas Power & Light Co. v. Gates, 180 Ark. 1003, 24 S. W. 2d 846. Since no contractual obligation exists in the instant case it furnishes no rule in regard to insulation except the one universally recognized.
In technical phraseology one of the experts testified: “The voltage would arc from, one line three and one-half inches to another. ’ ’ That is an expression which the ordinary layman interprets as a “jump,” so it would appear that any practical method of insulation, by covering the wire, must be sufficient to prevent this arc or “jump” and such insulation has not yet been developed, we are told, that might be put to reasonable use without undue and unnecessary increase of weight. One expert said: “To my knowledge we do not have an insulating material that is light enough in weight and practical in overhead lines for voltage that high.”.
As we understand the facts developed in this case they are substantially as we have stated above. There is no controverted question or matter in dispute therein. The remaining facts in regard to appliances at the telephone office, or exchange, where appellee was employed, are without dispute. The parties have argued some matters in regard to the ground wire at the telephone exchange. As we understand, this exchange was one operated by the local telephone company at Dierks, which is not a party to this suit. In the establishment of this system at this office it had constructed or made a proper ground to which its wires had been attached, in order that there might be carried away any overcharge of electricity that might be caused by lightning or otherwise. We do not understand that there is any dispute about the sufficiency of this ground. The appellant, Southwestern Bell Telephone Company, when it established its long distance line, connected it to this same ground in the station, and did not construct or make a new or different ground. There is no insistence by anyone who pretends to know that this was improper in construction or insufficient. Several witnesses who were not parties to this suit gave evidence in which they described the safety devices by which any overcharge of electricity or any surge of power that might come from natural causes, lightning, or otherwise may be carried off. These appliances were not constructed or built, or installed with the sole idea of the protection of the switchboard or system. The testimony is to the effect that if the current actually were permitted to enter upon the switchboard and there were not a proper ground through the protective devices, the switchboard would be seriously impaired or damaged. These devices are for the protection of employees or patrons who may be connected with the system by any kind of contact, if a surge of energy should come over the wires. The proof is to the effect that these protective devices that were so employed were all of standard make and quality, of the highest efficiency known at this time; that they did in fact operate properly when this great voltage of power was thrown suddenly upon the line and they carried this power away without damage to the switchboard.
There was further evidence of the proper operation of these protective devices in the fact that the fuses were melted or burned out, not only at the Dierks’ plant, or office, but also in one at Center Point, some miles away. If we understand the effect of this testimony, and it seems there can be no doubt about it, if these devices had not operated properly, most likely the switchboard would have been burned up or destroyed and probably the appellee would have been killed instantly.
All these matters were set forth in minute detail and there is iiot a word of dispute among any of the witnesses testifying in regard thereto, nor is there a suggestion by appellee nor any witness that there is any system more modern, more efficacious than the one employed at the time she is said to have been seriously shocked.
The only other matter upon this appeal that merits comment is the argument made on the part of appellee that the judgment should be sustained upon the doctrine of res ipsa loqmtwr. We do not agree to that theory. This court is committed to the theory announced in 45 C. J. 1206, § 774 C, that . . the presumption or inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has full knowledge and tes tifies as 'to the specific act of negligence which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all the facts and circumstances attendant upon the occurrence clearly appear.”
The same announcement in principle is made upon the subject of negligence in 20 E. C. L. 156. We think it may be announced that the only instance in which the rule of res ipsa loquitur applies must be that the act or thing causing the injury must have been under the exclusive control and management of the one charged, and it will not apply except when the occurrence must be such as in the ordinary course of events it does not happen when due care has been exercised. In such instances, it is said a rebuttable presumption arises that there was negligence on account of which plaintiff may recover, unless the defendant, or one charged,, offers evidence to meet and offset or rebut the presumption. But in all cases where all the facts attending the injury are disclosed by the evidence and nothing is left to inference, certainly no presumption can be indulged. In this .case there are several things that were not found within the control or management of either of the defendants. The first of these is that three farmers who cut the tree acted independently. The tree and the manner of its falling was certainly not within any power or authority of the defendants to control or direct in any way. There is no evidence that any one had any knowledge that the top of this tree that was cut was tied or connected by a vine to another tree. There is no showing that the electric company had any control over or management or direction in any sense of the long- distance telephone line, nor is there any connection of the telephone company to the electric line. Certainly the electric company had no control over the office of the telephone company nor the grounding of any of the wires. It did not even have the right or power to make an inspection, and if there had been a defect, to correct or repair the same.
We think it must appear from the rendition of this verdict and consequent judgment that whatever negligence the jury may have suspected upon which to render a verdict must have been one common to both the defendants. There is certainly no reason to render a verdict and judgment against one of these corporations for any matter of commission or omission on the part of the other, but such alleged negligence must, as just suggested, have been one common to both; and, in an analysis of this case, we can think of only two matters, that is the position of one line to another and the fact that there was no insulation. Only one was near the tree that was cut down. We have already discussed both of these matters and we think it must be apparent to anyone who would give thought to the subject that there should be no requirement that one line should not cross another under such reasonable rules and regulations as experience has taught may be applied for safety; and we have already seen that a requirement for absolute insulation is unreasonable and impracticable.
Since all these facts are known, nothing is left to inference. There is certainly no presumption of negligence arising out of the fact of the injury. If we should so hold, our decision would be tantamount to a declaration that electric and telephone utilities must operate under the burden of being insurers against injury to anyone who might come in contact with wires or appliances anywhere and be thereby shocked or injured. We are without power so to legislate, and if we had such power would not be inclined so to exercise it.
We think the case must be reversed, (1) for the reason that the only proximate cause of the injury here is the act or conduct of the three farmers who have been wholly freed and exonerated from all blame by the finding of the jury; (2) all the facts have been developed with reference to the construction of the systems operated by each of the utilities with no evidence of negligence. They are shown to have been constructed in accordance with the rules and requirements of the Nationál Electric Safety Code and even with wider margins of safety than are required thereby. That such code had been approved by the Department of Public Utilities of this state necessarily constitutes a prima facie showing of the lack of negligence on the part of each of the said utilities, particularly when considered in the light of this record wherein there is no evidence that there was any defect.
In conclusion, it is certainly not within the rule of res ipsa loquitur, as has heretofore been announced by this court in cases we have considered. We are unwilling to extend that rule to include cases developed as this one has been. The seriousness of plaintiff’s injuries and absence of negligence on her part cannot, under the above circumstances, supply proof of negligence otherwise wholly wanting.
No good purpose can be served by a reversal for new .trial.
The judgment is, therefore, reversed, and the causé is dismissed.
Humphreys and Mehaepy, JJ., dissent. | [
-16,
124,
-8,
-115,
8,
-32,
58,
88,
115,
-31,
-10,
87,
-3,
-29,
-52,
103,
-87,
121,
81,
113,
116,
-78,
7,
34,
-110,
-5,
-95,
-43,
-69,
75,
-27,
-43,
77,
48,
10,
21,
-26,
0,
-51,
28,
-50,
-105,
-119,
104,
-71,
82,
20,
63,
54,
77,
117,
15,
-1,
44,
21,
-17,
8,
46,
107,
105,
-63,
-71,
-78,
28,
95,
18,
33,
4,
-102,
-125,
-54,
30,
-104,
49,
8,
-88,
115,
-78,
-125,
116,
1,
-83,
12,
98,
38,
1,
-115,
-25,
-24,
-88,
7,
-4,
-103,
-90,
36,
40,
3,
15,
-66,
-105,
66,
84,
23,
124,
117,
-51,
94,
104,
-121,
-54,
-108,
-77,
-97,
-10,
-100,
-93,
-21,
47,
52,
113,
-49,
-78,
93,
71,
114,
-69,
71,
-73
] |
Grieein Smith, C. J.
The appeal questions correctness of a decree that Mrs. M. 0. Usrey had not lost a landlord’s lien by reason of certain transactions in the handling and sale of cotton. Her tenant was Neely Curtis, whose indebtedness on his rent account was found to be $479.15. Of this sum $300 was cash rent. The balance was for one-fourth of the cotton disposed of.
Other controversies relating to sales of relatively small quantities of cotton are disregarded in this opinion because appellant’s prayer is that the judgment in favor of Mrs. Usrey be reversed and that the court below be directed to find that the intervener, Commodity Credit Corporation, has a prior lien on 17 bales of cotton rep resented by warehouse receipts pledged as security; or, in the alternative, that liability be decreed against Farmers Bank & Trust Company of Blytheville.
Curtis had rented lands of Mrs. Usrey in 1935, 1936 and 1937. The acts which gave rise to this litigation relate to cotton grown in 1937 and delivered by Curtis to the Shaver-Foster Gin Company. The gin company, acting through Farmers Bank & Trust Company, negotiated loans from Commodity Credit Corporation. Proceeds were retained by the gin company, and it became insolvent.
Mrs. Usrey testified that she made several trips to see Curtis, urging him to get a government loan on the cotton “so she could get her money,” The following appears in her testimony:
“Q. I believe you told Mr. Foster [of the Shaver-Foster Gin Company] to pay you directly; and you told Mr. Curtis you wanted them to pay you directly; did you mean ‘as they saw fit,’ and ‘as they saw fit to sell the cotton, ’ or how — or as it was. handled in the loan Í A. If handled, I was to be paid as soon as the cotton was sold. My check was to come to me. [It was] not to be held, or anything ofvthat kind.”
Mrs. Usrey also testified that the gin company was not to sell the cotton without notifying her.
The bales in dispute -were stored with Federal Compress & Warehouse Co. Receipts were delivered to the gin company, and on the strength of these $791.72 was procured from Commodity Credit Corporation. Primary obligations were Curtis’ notes. He admitted signing one for $407.25. Four others, aggregating $384.47, were apparently executed by Curtis, but he denied the signatures. All of the notes were transmitted by the bank with the indorsement, “Without recourse.”
Legal title to the cotton until disposed of was in Curtis. The landlord had a lien, enforcible within six months from due date of the rent. Pope’s Digest, § 8845. The gin company knew of Mrs. Usrey’s lien, and officials doubtless intended, after receiving the loan checks, to correctly prorate amounts. But this was not done.
Authority by which the gin company obtained possession of the cotton, and in sequence received warehouse receipts, was the concurrence of Mrs. Usrey and Curtis. While Curtis disclaims having’ signed four of the notes, he admits directing that advances be procured from the government agency. He knew the receipts would be pledged, and does not repudiate the notes.
Appellees rely upon § 8849 of Pope’s Digest to sustain their contention that there can be no innocent holder of the warehouse receipts as against the right of the landlord to enforce her lien. Appellants reply that the lien statute was -repealed by § 14453 of Pope’s Digest — the Uniform Warehouse Eeceipts Act, passed in 1915.
It is not necessary to determine this phase of the controversy. If Mrs. Usrey and Curtis authorized the gin company to consummate the loan there was no wrongful disposition of the receipts. The wrong occurred when there was failure to account for proceeds.
In the light of Mrs. Usrey’s testimony that she talked with Curtis and with Ollie Poster of the gin company about procuring a government loan; that she urged them to “hurry it up”; that the gin company was authorized to sell Curtis’ cotton and to retain for her account a sum equal to one-fourth of the rent payable in kind, it must be held that she entrusted the gin company with the receipts. She says there was the condition that she be notified when sales were made, and that “papers” be executed in her name and in that of 'Curtis.
As expressed, supra, the breach of faith occurred not in the bank’s manner of' handling the loan application, nor in acceptance of the receipts by Commodity Credit Corporation, but in failure of the gin company to account to Mrs. Usrey and Curtis when the loan remittance was received.
The gin company was Mrs. Usrey’s agent. It was permissively in possession of the cotton, with authority to sell and to remit one-fourth to her. She is charged with knowledge of a custom, and therefore must have known that the ginners did not long retain the physical property, hut either sold it or stored it in a warehouse. Commodity Credit Corporation had no notice of the reservations Mrs. Usrey says attached to the authority of her agent, and it is not bound thereby.
In American Jurisprudence, v. 2, § 105, Chapter on Agency, it is said: ‘Although a principal may limit the authority of his agent in any manner he pleases and make' his limitations binding and obligatory between himself and his agent, such limitations are not necessarily binding upon third parties. Special or secret instructions or limitations upon the authority of an agent, whose powers would otherwise be coextensive with the business intrusted to him must be communicated to the party with whom he deals, or the principal will be bound to the same extent as though they were not given. Such instructions or limitations are not binding upon a third person who deals with the agent in good faith without knowledge of such instructions or limitations, and in reliance upon the apparent authority with which the principal has clothed him. ’ ’
In Calais S. B. Co. v. Scudder, 2 Black (U. S.) 372, 17 L. Ed. 282, it was said: “No secret agreement between the principal and agent can effect third persons who purchase from the agent, where the agent was in possession of the property and documentary evidence of ownership, and was thus held out to the world as the legal owner. ’ ’
That part of the decree holding that Commodity Credit Corporation and Reconstruction Finance Corporation were not innocent purchasers of the warehouse receipts is reversed, and the cause is remanded with directions to enter an order holding that the two government agencies are not bound by the liens. In all other respects the decree is affirmed.
“The purchaser or assignee of the receipt of any ginner, warehouse-holder or cotton factor or other bailee for any cotton, corn or other farm products in store or custody of such ginner, warehouseman, cotton factor, or other bailee shall not be held to be an innocent purchaser of any such produce against the lien of any landlord or laborer.”
For Arkansas cases on the subject, see West Publishing Company’s Arkansas Digest, vol. 14, “Principal and Agent,” subdivision 116 — “Undisclosed Limitation of Authority.” | [
112,
-26,
-8,
13,
26,
-32,
40,
-102,
90,
-23,
-89,
83,
-19,
102,
80,
121,
-29,
93,
81,
106,
-25,
-77,
3,
97,
82,
-5,
-37,
-35,
-68,
-51,
-12,
-36,
13,
48,
74,
-107,
102,
-64,
71,
94,
-114,
1,
41,
-27,
-3,
64,
56,
43,
0,
77,
65,
14,
-13,
44,
25,
75,
8,
46,
-23,
57,
96,
-7,
-102,
12,
127,
7,
49,
4,
-116,
39,
-56,
42,
-104,
21,
0,
-24,
114,
-76,
-122,
84,
47,
11,
44,
102,
98,
2,
-91,
-19,
-56,
-104,
-90,
-2,
-99,
-90,
-112,
88,
66,
96,
-66,
-99,
126,
84,
-89,
-12,
-6,
-115,
93,
108,
3,
-113,
-42,
-80,
13,
112,
-102,
27,
-29,
-122,
-80,
113,
-49,
-86,
93,
5,
119,
-101,
-58,
-2
] |
Smmíh, J.
Appellant insurance company issued a policy September 1, 1928, upon the life of Franklin S. McElwee, with a provision for double indemnity, “In the event of the death of the insured by bodily injury effected exclusively by external, violent and accidental means, . . . .” The insured died November 25, 1937, as the result of being fatally wounded by four or five pistol shots between 2 and 4 a. m. during the night of November 24, 1937. Proof of death was made, and the face of the policy was paid, but the double indemnity was refused upon the ground that insured had committed suicide. The policy provided that “This agreement to pay a double indemnity does not coyer death by suicide, whether sane or insane, nor does it cover death resulting from riding in any aerial vehicle. ’ ’ The question for decision is, therefore, whether the insured had committed suicide.
This issue of fact was submitted to the jury under instructions to.several of which exceptions were saved by the insurance company. We do not consider the objections to the instructions for the reason that, in our opinion, the undisputed testimony establishes the fact that the insured committed suicide. From a verdict and judgment in favor of the beneficiary named in the policy is this appeal.
There is a presumption of law against suicide, and here that presumption is re-enforced by the verdict of the .jury; but the question at issué has not been concluded by this presumption of law and the verdict of the jury.
The law of the subject was fully stated in the very recent case of Brotherhood of Maintenance of Way Employees v. Page, 197 Ark. 498, 123 S. W. 2d 536, and no useful purpose would be served by its restatement. In the opinion in that case it was said:
“It must be conceded that we have a number of cases, of very tenuous character, affirming verdicts apparently finding that the insured had not committed suicide, in which the evidence greatly preponderated to the contrary. But we have always recognized the fact that the legal sufficiency of the testimony to support such a verdict was a question of law for the court. Catlett v. St. Louis, I. M. & So. Ry. Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254.
“In the following cases the jury had found that the insured had not committed suicide: Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532; New York Life Ins. Co. v. Watters, 154 Ark. 569, 243 S. W. 831; Aetna Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W. 743; Fidelity Mutual Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. 2d 80; Home Life Ins. Co. v. Miller, 182 Ark. 901, 33 S. W. 2d 1102. We reversed each of those cases, for the reason that, in our opinion, there was no reasonable conclusion which could be drawn from the testimony recited in those opinions except that death had been caused by suicide, notwithstanding the verdicts of the jury to the contrary.”
The testimony in this casé was given by the friends and acquaintances of McElwee, the insured, and their sympathy for the beneficiary is made evident by a study of their evidence. But we. must — and we do — give to this testimony its highest probative value insofar as it tends to support the verdict. It is to the following effect.
The insured, at the time of his death, was serving as night marshal and watchman in the town of Augusta. He enjoyed the respect and confidence of his acquaintances. All the witnesses testified that he was a man of great determination and unquestioned personal courage. The sheriff of the county testified that McElwee was one of the best officers he had ever worked with. For more than a year prior to McElwee’s death, he had been afflicted with arthritis, from which disease his suffering at times was very great. For a time he carried his left arm in a sling on account of this disease. As a World War veteran, he received treatment one or more times in hospitals, both in Memphis and in Hot Springs, where he received some relief. He had been discharged and had just returned from the hospital at Hot Springs after a stay there of two months, and had resumed his duties as night marshal, for which he was paid a salary of $50 per month. This salary was supplemented by small fees paid him by certain merchants as a night watchman. Before returning from the hospital he had written a letter of inquiry about obtaining a filling station which he had formerly operated, thus indicating the intention and the ability to re-engage in that employment. He does not appear, however, to have made this arrangement, and he had been employed for several days as night marshal. He stated to one of his friends the night before he was shot that he believed his trouble was coming back on him. and that but for his wife and children he would end it all. Similar remarks to other friends indicated his apprehension about his condition.
The witness in best position to know most about the circumstances under which'McElwee was shot was Morgan Jones, in front of whose house the shooting occurred. This witness was in bed when he heard a pistol shot, and, when asked the number of shots he had heard, the .witness answered, “T couldn’t be positive, about 5, I think.” Asked what next attracted his attention, witness answered, “Well, I got up and looked out of the window, I saw nothing, and went back to bed for just long enough to get back ill bed, and heard another shot.” He again went to the window and saw a man lying on the sidewalk in front of his house. He made a fire, and went to the house of Jack Goad, a neighbor. The sheriff was telephoned for from Goad’s house to meet them at the street corner. When asked, “About how much time had elapsed from the time you ’phoned him (the sheriff) until he (the sheriff) got there?”, witness answered: “I guess fifteen minutes.” It was about 7 feet from witness’ steps to the sidewalk. The sidewalk was about 3% feet wide, and the body of McElwee was found on the street side of the walk. Upon finding McElwee, witness went for Dr. McGuire. Witness was not sure, but he thoug'ht 5 shots were fired, they were not fired “one right after the other, there was a minute or two between the shots.” Witness was not sure, but he thought he saw a man across the street, in the shadow of a garage, but he did not hear or see that man fire any shot. He knew McEiwee well, and when the sheriff asked McElwee who had shot him, McElwee answered, “I did it, myself.”
The testimony of Goad substantially corroborates that of Jones after Jones came to his house, except that he did not hear the conversation between McElwee and the sheriff. When Goad was asked, ‘ ‘ About how long was it before the sheriff got there?”, Goad answered: “I presume 15 or 20 minutes — 10 minutes anyway.” The pistol was 2 or 3 feet from McElwee’s body, but witness could not say whether it was in reaching distance from his body.
It was admitted that the pistol was one which Mc-Elwee carried, and that it was a double-action revolver, which could be fired only by pulling the trigger. It was not an automatic pistol.
The sheriff of the county testified that it was 20 minutes of 4 when he was called, and that he went at once to the residence of Jones, in front of -which he saw the body of McElwee lying on his left side, with his overcoat pulled up over his head. The night was cold. The witness identified the pistol as one which McElwee carried. It was a 32-30 Smith & Wesson. The cylinders carried 6 cartridges, but he knew that McElwee always carried the gun with its hammef on an empty chamber. This witness knew McElwee well as a man of great courage and determination, and could not believe that such a man would shoot himself, and he, therefore, thought that some one else had shot McElwee, so he asked Mc-Elwee who had shot him. The exact testimony of this witness was: “Q. Did you have any conversation with him? A. Only I asked him who did it. Q. What was his reply? A He said he did. Q. Did you ask him why he did it? A. No, sir. Q. Did he give any reason why? A. No, sir.”
Further testifying, the sheriff stated there-was no evidence of a scuffle or struggle, and, when asked, “Mr. Sheriff, did you conduct any investigation of the matter further?”, he answered: “No, sir.”
There was one empty chamber and five empty shells in the pistol. Witness identified an overcoat offered in evidence as the one worn by McElwee, and in regard to his coat the sheriff gave the following testimony: “Q. You said the overcoat, was over his head, do you mean it was thrown back over his head, or how? A. It being cold I imagine he pulled it up over his head himself, it was pulled up like this. Q. He still had it on? A. Yes, sir, but- he had it over his head. ’ ’
The undertaker who embalmed the body testified that there was a powder burn on the chest of the deceased, and another powder burn on the edge of the hair on his forehead.
Dr. McG-uire was insured’s family physician, and responded to the call for his services. When he arrived, insured had been removed to the home of the witness Jones. The doctor testified that there were 3 bullet holes in the lower quadrant of the left chest. One shot narrowly missed the heart. The 3 shots could have been covered by' a circle having a diameter of 3 or 4 inches. There was a burn on the upper chest, that looked like a bullet burn. Asked if he saw a bullet hole in deceased’s hat, the doctor answered, “If I remember right it was in the brim of the hat and right near the front part of the crown of the hat there were two holes, ’ ’ but he could not tell whether they had been made by one bullet or not.
After giving first aid treatment in the home of witness Jones, the doctor called an ambulance and sent insured to the hospital in Searcy, where he died at some hour during that day not disclosed by the record.
The doctor'stated that “ McElwee’s mind seemed-to be very clear,” but the insured was badly shocked and was suffering. Before administering an opiate, the doctor asked McElwee who had shot him, and McElwee answered, “I did it.”
Guy Willis, engaged in the cleaning and pressing business, had cleaned and pressed McElwee’s overcoat. The overcoat was produced by this witness, and he was asked to run a pencil through the holes in the coat. He stated there were either 4 or 5 holes through the left side. “There is one there, and there is one, and there is one. Three is what I have found so far. It seems to me there was more than that, there is the fourth one down there, there is the fifth one, five holes in the coat. ’ ’
We think no reasonable view of this testimony can be taken except that McElwee died by his own hand. The theory that he may have shot himself accidentally is preposterous. No reasonable mind could conclude that McElwee shot himself accidentally five times, at intervals of a minute or more.
The only other theory refuting suicide is that some one shot him, and the only testimony lending any support whatever to that theory is that given by the witness Morgan Jones, and Willis, the cleaner and presser. Jones said he thought — but was not certain — that he saw a man standing in the shadow of a garage across the street. It does not appear whether the garage was directly across the street or not, but Jones did not testify that he saw or heard any shot fired from the direction of the garage. There was no quarrel or scuffle and no outcry when McElwee was shot. It would have been a wonderful exhibition of pistol shooting for one in the dark shooting across the street to have placed three shots within a circle having a diameter of 3 or 4 inches; but this was not a physical impossibility. It was, however, impossible for those shots to have powder burned Mc-Elwee ’s forehead and cheek. Now, the presser testified that he found 5 holes in the coat, and there was at least one bullet hole in the hat, and McElwee only fired 5 shots. We quote the testimony of the presser. One of the attorneys for appellee put on the coat, and the presser was asked to show where the bullet holes were. “Q. Now, Mr. Willis, demonstrate very briefly on Mr. Dungan about where the bullet holes went in? A. All I can tell is where the holes in the coat are. Q. That is what I mean, show where they go in? A. There is one of the holes and there is another one right there. Q. Right oyer the left arm demonstrating? A. Another one down there under the left arm. Q. The third one is under the left arm about how far down. A. Six inches. Q. That is three, then where are the other two? A. There is one of them right there toward the front. Q. That is the fourth one? A. Yes, sir. Q. Where is the fifth one you found? A. I don’t seem to find the fifth one now. Q. At any rate, you say there were four holes immediately under the left arm! A. Yes, sir.’’
The testimony of the presser, just quoted, shows that he found three holes readily in the coat, but the other two were not so easily found; in fact, he appears to have failed to find the fifth hole. There appears to be no explanation of the facility in finding three of the holes, and the difficulty in finding the other two, if all had been made by bullets. It would appear that the holes would be approximately the same size. One of the bullets, according to this witness, was over the left arm, another under the left arm, and a third hole six inches farther down. The doctor’s testimony was to the effect that all three of the wounds on the body could have been enclosed in a circle the diameter of which was 3 or 4 inches. Admittedly, McElwee’s pistol had been fired five times, when his cartridges were exhausted, and that is the number of shots which the witness Jones (in front of whose house the shooting occurred) testified that he heard.
The testimony affords no sufficient basis for the reasonable conclusion either that McElwee shot himself accidentally or was shot by some other person.
The judgment must, therefore, be reversed, and as the case appears to have been fully developed it will be dismissed. | [
-80,
109,
-4,
-113,
40,
96,
40,
122,
83,
-62,
-91,
83,
-35,
-13,
69,
37,
-2,
109,
-47,
34,
-76,
-89,
39,
42,
-46,
-77,
99,
-59,
-112,
79,
-2,
125,
76,
42,
10,
69,
-30,
74,
-59,
-38,
-54,
-116,
-119,
-16,
-103,
-48,
48,
118,
68,
19,
117,
-97,
-125,
-86,
19,
-49,
41,
44,
106,
-71,
-30,
112,
-114,
-121,
123,
20,
-77,
6,
-104,
45,
-48,
13,
-104,
49,
8,
-8,
91,
-90,
-42,
20,
41,
9,
-124,
102,
71,
61,
17,
-19,
-20,
-104,
47,
-10,
13,
-115,
60,
121,
50,
12,
-98,
-35,
84,
101,
14,
124,
-4,
85,
29,
32,
1,
-117,
-10,
-80,
-53,
118,
-100,
-85,
-1,
-113,
35,
113,
-115,
-94,
94,
103,
126,
-105,
-105,
-100
] |
Holt, J.
Appellee, Harry G. Casson, brought suit in the Clark circuit court against the Southwestern Bell Telephone Company and Phil L. Beal to recover alleged damages in the amount of $65,000 for injuries claimed to have been received by him from a fall on the floor in the supply room of appellant telephone company in the city of Batesville, Arkansas, on August 28, 1937. On a jury trial he was awarded damages in the sum of $30,000.
The allegations of negligence upon which appellee soug'ht recovery are that it became necessary for him to remove a heavy cardboard box of supplies, on the floor, from in front of his locker, to enable him to open the locker door, and that when he "stooped over and took hold of the said box and attempted to lift or slide it to another position on the floor of said supply room, the box suddenly slid forward and at the same time the plaintiff’s feet slipped from under him and to the side, causing plaintiff suddenly to fall and thereby injure himself as hereinafter more particularly described.
"Plaintiff states that the said box was caused to slip suddenly as stated above because it rested upon some fine shavings or excelsior which were hidden from his view by the said box and his feet were caused to slip as stated because of some fine particles of shavings or excelsior dust on the floor which were not visible to the plaintiff until after his attention was called to the same by the accident or mishap; that the said fine shavings or excelsior and said dust were carelessly and negligently placed or left on the floor, as stated above, by the defendant, Phil L. Deal, who, at the time, was an employee of the defendant company; and that the said Phil L. Deal had so carelessly and negligently placed or left said shavings or excelsior and fine dust on the floor while handling and removing boxes of supplies of defendant company which were in, and intended to he placed in, the locker of the company which was used exclusively by the defendant, Phil L. Deal.”
Appellants entered a general denial and affirmatively pleaded contributory negligence and assumed risk on the part of appellee.
The evidence, as reflected by the record, stated in its most favorable light to appellee, is to the following effect:
On Saturday, August 28, 1937, appellee Casson, an employee of appellant telephone company, and who had been in its employ for ten years prior thereto, went to the supply room at about four-thirty in the afternoon to secure certain supplies from his locker. This room was kept looked and only Deal, appellee, and the janitress had access to it. The room was well lighted from two west windows, through which the sun shone, and by another window on another side of the room. Immediately in front of his looker, which was about three feet from the floor and resting on the locker belonging to Phil L. Deal, was a cardboard carton of supplies about 33 inches long, 30 inches wide, and 12 inches high, and weighing between 60 and 100 pounds. The room was about 14 feet square. It was admitted that it had been swept clean and dusted by the janitress of the building between six and eight o’clock of that morning.
Appellee testified relative to his attempt to pick up the box, or remove it, as follows: “When I got there, of course, unconsciously I noticed a box about the size of that one (indicating-) laying down and I reached down to pick it up, and get it out of the way . . . Q. How much does that box weigh? A. I judge around 50 or 60 pounds, maybe. Q. Anyway 50 or 60 pounds, or maybe 100 pounds? A. I never did pick the box up, I just lifted it up. . . . Q. When you reached down to get it (the box) what did you do? A. I hit the floor about as hard as I could. Q. What caused you to hit the floor, A. The box slipped and I slipped at the same time. Q. When you picked it up the box scooted across the floor? A. My feet went one way .and my arm caught on ■ Mr. Deal’s cabinet and the bottom of my back hit the floor. . . . Q. After you fell did you look to see what caused you to fall? ... A. Fine rosin dust and excelsior where it had slipped out of the box. Q. Did you find it where you slipped on the floor? A. Yes, the floor showed the marks. Q. What color was the floor? A. Light gray. Q. What was it you saw on the floor? A. Pine greasy dust, kind of white yellowish, like rosin dust. Q. Had you noticed anything like that on the floor before you slipped? A. No, I did not have my mind on slipping. Q. You say there was excelsior on the floor? A. It was fine dust excelsior where I slipped, but heavy excelsior shavings under the box.”
He further testified “after I slipped.I saw on the floor fine greasy dust, kind of white-yellow, like rosin dust, ’ ’ and that a small amount of excelsior was seen on the floor from where the ¡box had slipped, and further: ‘‘ Q. Could you tell the jury how much excelsior and trash and stuff was on the floor under the box? A. I couldn’t say how much was under the box. The box was left there as far as I know. There was a small amount laying out to the end of the box where the box had been moved —and what was under the box, I don’t know.”
Witness, Buck Hall, a drayman, testified that he brought a box of supplies similar to the one in question to the supply room at about twelve o’clock of the day of August 28th .and saw Phil L. Deal, manager for appellant telephone company, in the supply room worldng. Mr. Deal let him in and showed him where to place the box, and that he set the box down. He paid no particular attention as to just where he placed it. “Q. Did you notice to see or did you make any examination or inspection .as to whether or not there was anything on the floor? A. Not particularly. I noticed some boxes sitting on the floor, but I didn’t pay much attention to it — it was something scattered around. Q. Did it look like boxes he had taken supplies out of? A. Yes, sir.”
Witness, Claud Julian, testified on behalf of appellee that he went to the telephone company building at about four p. m. on the day in question to see appellee Casson. As he went up the stairs to the supply room, he heard appellee fall and say, “Oh.” He entered the supply room through a window and when he got to appellee he found him lying with his arm on a cabinet where he fell, and further: “Q. Did you see anything on the floor around there? A. I seen some fine shaving dust, excelsior dust. Q. Did you see a box there? A. Yes, sir. . . . Q. About how much excelsior would you say was on the floor there? A. I couldn’t say; there was a lot of fine dust and I noticed some sticking out of the edge of the box. . . . Q. Tell the jury whether or not it (excelsior dust) is slick if you step on it. A. Yes, sir, it is slick — pine rosin is slick.”
He further testified that he saw appellant, Phil L. Deal, in the office of the telephone company at about eight o’clock a. m. of the day in question; that the day was clear and the sun was shining, and that there were three windows in the room in question.
On this state of the record, appellants contend (1) that the evidence is not sufficient to take the case to the jury; and (2) that appellee assumed any risk attending the act causing his alleged injuries.
Upon consideration of all the evidence, we think both of these contentions must be sustained.
Briefly summarizing, appellee contends that after the janitress had cleaned up the supply room on the morning before the injury to him, the defendant, Phil Deal, in unpacking some supplies allowed excelsior dust to get on the floor; that the cardboard box in question had been placed on the floor against the lower locker on top of some excelsior that had come out of one of the supply boxes when Mr. Deal unpacked the supplies; that Mr. Deal was guilty of 'actionable negligence, and through his neglig’ence the Southwestern Bell Telephone Company was also liable, in leaving on the floor this fine excelsior dust or rosin dust.
As a general proposition it could make no difference whether appellee was injured by the negligence of appellant, Deal, or any other employee of the appellant telephone company so far as the liability of appellant telephone company is concerned, since any negligent acts of employees are chargeable to that of the master.
In the instant case, however, as said above, it is our view that no negligence has been shown as against ap pellant, Deal, and none as against appellant, Southwestern Bell Telephone Company.
The master is not the insurer of his servants’ safety. The only obligation resting upon the master is to exercise ordinary care to furnish his servant a reasonably safe place in which to perform his duties and labors.
The rule was stated in Mosley v. Raines, 183 Ark. 569, 37 S. W. 2d 78, by this court as follows: “The master is not only bound to exercise reasonable care to furnish a safe place to work, but the servant has a right to assume that the master has performed his duty. It is, however, also thoroughly established by the decisions of this court that the master is presumed to have performed his duty, and the servant cannot recover for an injury unless he shows that the master was guilty of negligence and that the negligence of the master caused his injury. The master is liable for the consequences of his negligence, but he is not an .insurer of the employee’s safety.”
Appellee contends that there was probably two handfuls of excelsior concealed under the box and that he slipped in some fine excelsior dust or rosin dust at the end of the box, and in his brief says: “. . . this excelsior was a whitish-yellow color and that the paint on the floor of the supply room was a grayish color, and that it would be necessary to make a very close inspection in order to discover this excelsior and fine dust that was on the floor; that this excelsior and fine dust contained rosin, which would necessarily be slick. ’ ’
We think it clear that it would be placing too high a degree of care upon appellants to require them to keep the floor of this well-lig’hted supply room absolutely clear of every particle of fine dust such as appellee claims caused him to slip and fall in the instant case.
In Missouri Pacific Railroad Company v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047, this court said: “It would be placing too high a duty upon the master to require him to keep the employee’s place of work clear of every object upon which an employee might step and slip or fall. They are not insurers, but are only held to the exercise of ordinary care to furnish a. safe place to work.” This language was approved in Caddo River Lumber Company v. Henderson, 194 Ark. 724, 109 S. W. 2d 425.
In the recent case of Temple Cotton Oil Company v. Brown, 198 Ark. 1076, 132 6. W. 2d 791, this court held no actionable negligence was shown where plaintiff, while helping to carry a drive shaft around an engine, sliped on- some oil which he alleged had been negligently left on the engine room floor since the previous day. In holding that a verdict should have been directed for defendant, this court said: “Let it be assumed that there was some oil on the floor of the engine room of the cotton gin, and that the foreman had given general instructions to keep the floor clear of oil. It is not unusual, indeed it may be said to be the usual thing to find more or less oil or grease on the floor of the engine rooms of all cotton gins. The engine operated by appellant was a well-known make of open crank case engines, and such engines do throw out some oil. But this fact must have been well known to appellee, as he was frequently in and about the engine room, and had worked at this gin one or two seasons before the 1937 season, and assisted in removing the drive shaft the day before. So, it is difficult to see that appellant was negligent, because its employee in the engine room had not mopped up the oil which appellee says he stepped in, even in violation of instructions so to do.”
See, also, Kroger Grocery & Baking Company v. Kennedy, ante p. 914, 136 S. W. 2d 470.
We are also of the view that appellee assumed whatever risk attended the uncomplicated, simple act of attempting to lift or move the box in question in this well-lighted room.
In the case of Missouri Pacific Railroad Company v. Lane, 186 Ark. 807, 56 S. W. 2d 175, where the facts were more favorable to appellee than those in the instant case, this court said:
“. . . [appellee] says he did.not notice the oil until he slipped, and that he supposed that if he had looked down where he put his foot he might have seen it. . . . He was unloading this car in the broad open daylight, and the only excuse he gives for not seeing this oil and thereby avoiding it is that he did not look. Had he looked, he Avould have seen the oil, as it was plainly visible on the top of the car. The law, under such circumstances, is well settled. In the recent case of Mississippi Valley Power Company v. Hubbard, 181 Ark. 487, 26 S. W. 2d 118, Aye said: Ht-is true employees do not ordinarily assume risks created by the negligent act of the master, and that he has a right to require of the master to provide suitable appliances and a safe place in which to do his work, and to do such is the clear duty of the master. St. L. I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109; Pettus & Buford v. Kerr, 87 Ark. 396, 112 S. W. 886; St. L. I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181, 114 S. W. 221. But it is equally true that where the danger arising from the negligent conduct of the master is so apparent and obvious in its nature as to be at once discoverable to one of ordinary intelligence, an employee, by voluntarily undertaking to perform his work in such a situation, assumes the hazards which exempts the employer from liability on account of injury to the employee. Wisconsin & Ark. Lbr. Co. v. McCloud, 168 Ark. 352, 270 S. W. 599; Chicago, R. I. & P. R. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Ward Furniture Co. v. Weigand, 373 Ark. 762, 293 S. W. 1002.’ Other recent cases on the subject are Howell v. Harvill, 185 Ark. 977, 50 S. W. 2d 597, and Koss Construction Co. v. Vanderburg, 185 Ark. 316, 47 S. W. 2d 41.
“No one knew how the oil happened to be on top of the tank, whether it had sloshed out of the tank car through the dome or whether it had been spilt there by the oil company, from whom it Avas purchased, in loading it; but this can make no difference.”
For the errors indicated, the judgment of the court beloAv will be reversed, and since the cause seems to have been fully developed, it Avill be dismissed. | [
-80,
120,
-84,
-115,
8,
-21,
10,
26,
115,
-95,
37,
-45,
-19,
102,
-55,
103,
119,
61,
-47,
108,
-69,
-93,
70,
99,
-46,
-101,
59,
-123,
-79,
107,
-28,
-43,
73,
32,
-54,
-107,
66,
64,
-27,
-100,
-58,
1,
-103,
-20,
125,
16,
112,
60,
-108,
71,
113,
30,
-14,
42,
20,
-53,
41,
46,
107,
-72,
-48,
-15,
-126,
5,
127,
18,
-95,
38,
-97,
-123,
88,
30,
-100,
53,
16,
-72,
120,
-74,
-125,
116,
3,
-3,
4,
96,
98,
96,
-123,
-89,
60,
-72,
47,
46,
-99,
-90,
-96,
72,
1,
35,
-66,
-99,
114,
16,
23,
126,
-7,
-99,
21,
108,
7,
-114,
-108,
-109,
15,
-30,
20,
-69,
-17,
-89,
52,
113,
-52,
-94,
92,
71,
118,
-105,
-121,
-107
] |
Holt, J.
At about 1:30 a. m. on April 19, 1938, 'the residence, together with its contents, belonging to appellee, Eddie B. Tidwell, in Hot Springs, Arkansas, was seriously damaged by fire.
Tidwell filed suit against appellant, Franklin Fire Insurance Company, and the Arkansas Investment Company in the Garland circuit court to recover $1,000 fire damage on certain pool room equipment stored in the dining room on the first floor of his residence at the time of the fire.
He and his wife, Mary Tidwell, also filed suit against the Westchester Fire Insurance Company, the Franklin Fire Insurance Company, the Arkansas Investment Company and Mrs. May D. Young, administratrix of the estate of Dr. J. K. Young, deceased, to recover $2,000 from the Westchester Fire Insurance Company on the residence and $1,000 from the Franklin Fire Insurance Company on the household goods.
. The Westchester Fire Insurance Company filed answer and cross-complaint denying liability on the ground that Eddie B. Tidwell burned or caused the property in question to~be burned and for its cross-complaint alleged it had paid Mrs. J. K. Young $755.25 due her by virtue of a mortgage which she held on the residence in question, had taken an assignment of the note and mortgage executed by Eddie B. Tidwell and Mary Tidwell, held and owned by Mrs. Young, administratrix of the estate of her deceased husband, and asked that the case be transferred to equity and the mortgage fore-' closed.
The cases were transferred to the chancery court and consolidated for trial.
The record reflects that prior to March 29, 1938, there was no fire insurance carried by appellee, Tidwell, on either his residence property or the contents or personal property contained and stored therein.
However, on March 29, 1938, Tidwell procured a policy for $1,000' on his household goods from appellant, Franklin Fire Insurance Company. On April 18, 1938, he moved certain pool room equipment to his residence, placed it in the dining room thereof on the first floor, and took out another policy Avith the Franklin Fire Insurance Company on this equipment in the sum of $1,000. On April 12, 1938, he procured a policy in the sum of $2,000 from appellant, Westchester Fire Insurance Company, on his residence.
It further appears from the record that at the time these policies of fire insurance were obtained from appel lants by Tidwell, the pool room equipment and household goods were under mortgages totaling some $350. These mortgages had been foreclosed, but Tidwell had been permitted by the mortgage-holders to retain the property in his possession. The mortgages on the pool room equipment and household goods had been in effect since 1935.
At the same time the residence property was under mortgage for approximately $700'to the estate of Dr. J. K. Young, deceased, and this mortgage was in process of foreclosure.
The fire .occurred on the day following the effective date of ithe fire insurance on the pool room equipment, seven days after the effective date of the insurance on the residence, and about twenty days after the policy on the household goods.
One of the principal defenses set up by appellants, insurance companies, to the suits instituted by appellees was that appellee, Eddie B. Tidwell, burned or caused to be burned the property in question.
After a careful review of the record' in this case we have reached the conclusion that the controlling question presented here is ithe one of fact, and that is whether appellee, Eddie B. Tidwell, burned or caused to be burned the property in question. We, therefore, must determine whether the decree of the learned chancellor is contrary to a preponderance of the testimony on this question, and since it is our view that it is, we set out the testimony somewhat at length.
The chancellor found in favor of appellees against the Westchester Fire Insurance Company in the sum of $1,245, together with 12 per cent, penalty amounting to $240' and $300 attorney’s fee, and against the Franklin Fire Insurance Company for $700 on policy covering household goods and $500 under policy covering pool room equipment. From that decree' both of the insurance companies have appealed.
Appellee Tidwell testified that the fire occurred at about 1:30 a. m. on April 19, 1938. There was no one in the house at the time except himself. The house was two stories with eleven rooms and two baths of stucco construction, and he valued the house and contents far in excess of the total amount of insurance carried. He had moved the pool hall equipment into the house the day before the fire and stored it in the dining room. He got home at about twelve o’clock at night and went to bed. He heard some one at the door of his room hollering “fire.” He opened the door and further testified: “Well, he came. When I heard him he was at the door of the room that I was in. He made quite a noise hollering ‘fire.’ So I jumped up and opened the door, and he says, ‘The house is on fire and burning up here,’ and I grabbed my robe and got out and went over to the fence to my- next-door neighbor’s and hollered, ‘Turn on the alarm.’ So this fellow was in the room at the time and he said, ‘I g'ot your suit.’ I remember that. I think he kept going with the suit. Q. You mean you haven’t seen him or the suit either? A. I haven’t. Yes, he had the suit, he brought out the suit I was wearing that day. Q. Didn’t you see him around there any more? A. I never saw him any more. I had $12.60 in the pockets and he took the suit across the street and robbed the pockets and I haven’t seen him since.” He saw no one else around the house at the time. He intended to close the house for the summer.
He further testified that when the fire department arrived the house was in a hot blaze but they succeeded in extinguishing the fire before the contents of the house were entirely destroyed and that the residence could not be profitably repaired.
Appellee, Mary Tidwell, wife of Eddie B. Tidwell, testified that she had been keeping roomers up until a few days before the fire. She was in Gary, Indiana, at the time of the fire and had taken her linens with her, two of her husband’s suits and many of his shirts. At the time of the fire practically all of ithe bed sheets and pillow cases had been sent to the laundry.
She further testified that she tried, while at Gary, to refinance the $700 mortgage on the house and had talked with a man named John Dalton Smith, an undertaker there, a friend of her husband, and quoting from her testimony: “Q. What did he say? A. He told me to tell Tidwell that he would be down about the 25th; he said he was going to Miami anyhow and he would come over here on the 25th. Q. What did he promise you to do? A. He promised that he would come here on the 25th and take up the note.”
She further testified that she had $300 in cash when she went to Indiana and she intended to help Ed and knew he needed a loan and was trying to get it.
John Dalton Smith did not testify in the case.
Eddie B. Tidwell further testified that prior to the fire he tried to raise the money to pay off the mortgage on his residence through Mr. Ray Smith, secretary to the Arkansas Savings and Loan Association in Hot Springs, and offered him a $100 bonus to procure the loan. Smith, however, was unable to secure the loan for him.
Jack McKenzie, on behalf of appellants, testified that he was a special agent for the National Board of Fire Underwriters; that shortly after the fire he made an investigation as to the cause of it. He went to Hot Springs, and together with assistant chief, Brown, of the fire department, examined the house and they found that there had been a fire in the room where the. pool room equipment was stored and there was paper at different places intermingled with this equipment. There had been a fire in the southeast corner of ¡the upstairs bedroom and on the back porch back of the kitchen. There was a disconnected unused hot water heater on top of which was a pasteboard box containing excelsior and other waste material and there had been a fire there. Upon inquiry they found there was no wearing apparel in the house, no bed clothing or bed linens of any kind. He has been investigating fires for more than eight years. The fire downstairs was confined to the dining room where the pool room equipment ivas stored and maybe the room just east of it. The physical facts disclose that the fire did not go through ithe floor to the rooms above, in the southeast corner of the southeast bedroom upstairs, and that that fire did not communicate with the fire downstairs in the dining room. There were two separate and distinct fires in the house, in his opinion. The fire had burned through the ceiling of the downstairs room but not through the floor of the room just above. The only way the fire could have gone downstairs would be to go down the stairway and vice versa. The stairway is smoked or charred- very slightly. Witness was with the State Fire Marshal’s office in Oklahoma for about seven years before coming to Arkansas.
Weldon Rasberry, Commissioner of Public Safety of the City of Hot Springs, testified that he examined the property with witness McKenzie the next day after the fire. They found paper had been stuffed in and around the pool room equipment on the ground floor and the back room on the second floor had been'- burned. There were at least two separate fires, in his opinion, because they could find nothing that would point to the fire upstairs being caused by the burning downstairs. He made certain pictures of the fire which were introduced in evidence. There was paper stuffed in under the pool tables which were in the center of the dining room. The upstairs room that was burned so badly is not directly over the dining room. Clothes closet was burned out, burned through the ceiling and side walls. Considerable charcoal was piled in one corner, he moved some of it clear to the floor, the linoleum was still on the floor and the top of it was not burned. The fire did not burn up through the floor nor down through the linoleum, and if there was a fire through there it came from the bottom but he didn’t see any holes ithere. ■
M. -S. Patton, witness for appellees, testified he was a building contractor in Hot -Springs; that'he had been so engaged for thirty or thirty-five years; estimated that it would take $3,844.70 to replace the fire damage to the building and that it would cost between $5,500 and $6,000 to replace it entirely.
Ray Smith testified for appellants that he had been in the real estate business in Hot Springs for twenty-five years and knew values there. Tidwell came to him to get a loan on the residence in question on April 1, 1938. Tidwell wanted $750, stating that he owed Mrs. Young $650 and offered to pay Smith a $100 bonus to procure the loan for him. Smith tried to procure the loan, but failed. Tidwell advanced Smith $25 on the proposed bonus but on April 5th he came to Smith and Smith returned the $25 to Tidwell because “He said he had made some other arrangements. He had procured a loan some place else. Q. On the 10th or 11th of the month along there, did he come back? A. It was after the 5th, and several days before the fire, because I remember the fire occurred sometime after that. Q. Did you look at the property at that time? A. I only drove by in the car; I didn’t get out to go through it. Q. Do you know the property, A. Reasonably well, yes.”
Mary Tidwell, wife of Eddie B. Tidwell, and one of the appellees, testified relative to what use Tidwell made of this $25 repaid to him by Smith, in the following language: “A. Tidwell had given me $25 and I paid— Q. Was that the $25 he took down from Mr. Ray Smith. A. Yes, sir, and I went down and paid for it myself. Q. You took that $25 that he gave you that he drew down from Ray Smith and you went down and paid it for insurance, is that right? A. Yes, sir. Q. How much did that cost you? A. It cost twenty-three dollars and something; I gave him $25 and he gave me some change back, I think about $23.50.”
Ray Smith further testified in his opinion that Tidwell’s residence in April, 1938, had a fair cash market value of $1,000, that the house was out of plumb, was irregularly built, and doubted if it would be sold for $1,250 on terms. It was stucco on chicken wire, not very well put up. He estimated the value of the furniture 1o replace in any room that he saw, except the front room, at $25 per room.
Riley Brown, on behalf of appellants, testified that he was assistant chief of the fire department of Hot Springs and had been for twenty-seven years. He was in charge of the fire in question and on arrival found the house a roaring furnace downstairs. Made an investigation next day with Mr. McKenzie and the best he could tell the fire was in a back room against the mountain. There ivas a little winding narrow 'stairway be tween the first and second floors. The fire upstairs was off in the back end of the house. They found an old torn up box. of excelsior and a five-gallon empty coal oil can on the back porch. There was no odor of coal oil. The worst patch was downstairs; upstairs the worst was right in the back. Upstairs fire was in a room over the room downstairs that had the pool tables in it. He would call it one fire because he thought the fire from downstairs went upstairs; fire could have gone up through the cracks. He had made a statement that he believed the fire had been set “and I still believe it was set for the insurance.” After the fire he couldn’t find a sheet on the bed. No bed linen at all.
C. C. Disheroon testified that there was $2,000 fire insurance written on the Tidwell residence on April 12, 1938, through a Mr. Dodson, in the Westchester Fire Insurance Company. Tidwell paid witness the premium, however, on this policy on the day it was written in the sum of $23.40.
Rawleigh East, witness for appellants, testified that he lived next to the Tidwell residence and was at home sick the night of the fire and had been up back and forth to the bathroom and heard a noise like some one walking on Tidwell’s porch, but went back to bed. About an hour later he was up and heard something drop, but thought it was on his front porch, heard it again in about five minutes. When he came out of the bathroom he distinctly heard a roaring noise, saw the flames coming through the windows of the Tidwell house. This was about 1:30 a. m. After about fifteen minutes he came out on the porch and saw flames coming out of the windows ■ upstairs. He thought' he heard Tidwell or some of his 'roomer's coming in from work. It was about an hour after he heard the noise on the porch until he saw the fire. The fire appeared to be bigger downstairs than upstairs.
There was other testimony on behalf of appellees corroborative of their testimony that the value of the residence, pool room equipment and household ■ goods was in excesp of the amount of the insurance carried*. There was likewise testimony on the part of appellants placing the value of the residence and its contents at a value less than the total amount of insurance carried. We think it would serve no useful purpose to set out further the conflicting testimony as to-these values since it would unduly extend this opinion."' ■
To sum up the testimony, we think the following facts stand out as practically undisputed: The three policies of insurance in question were procured by appellees within a few days of the fire in question and prior to their procurement the property was uninsured. All of this property had been under mortgage for several years. The mortgages on the personal property had been foreclosed and title subject to vest in the mortg’age-holders. The mortgage on the residence was in process of foreclosure. Tidwell tried diligently to secure a loan ito pay off the mortgage on the residence, even to the point of offering a $100 bonus, but was unsuccessful. The $25 advanced by Tidwell to Smith on the bonus, at the request of Tidwell, was returned to him and he immediately turned it over to his wife, Mary Tidwell, who used it to secure the $2,000 policy on the residence just seven days before the fire. Just a few days.before the fire the residence had been practically divested of all sheets, linens, and bed covering and most of the wearing apparel of appellees. The firemen on reaching the fire, found that it had gained more headway than usual on such fire calls. There had been a fire upstairs and one downstairs. Old newspapers were found stuffed under and about the pool tables in the dining room where the fire occurred downstairs.
Upon careful consideration of this testimony and other facts and circumstances of probative value as presented in this record, we have reached the conclusion that a finding that the fire was not caused by Tidwell is contrary to a preponderance of the testimony.
We conclude, therefore, that the decree must be reversed and as to appellant, Franklin Fire Insurance Company, it is dismissed here, but as to appellant, Westchester Fire Insurance Company, the decree is reversed and remanded with directions to foreclose the mortgage executed by Tidwell and wife to Dr. J. K. Young, deceased, and assigned by the administratrix of Ms estate to the Westchester Fire Insurance Company. | [
-76,
109,
-8,
47,
24,
-31,
42,
-22,
71,
-16,
-93,
83,
-7,
-60,
29,
109,
-58,
41,
-43,
123,
-105,
-73,
23,
46,
-46,
27,
121,
-59,
-71,
89,
-4,
-41,
64,
36,
-114,
17,
-94,
-128,
-59,
28,
82,
-56,
43,
-32,
-35,
74,
48,
-33,
-12,
9,
97,
-103,
-47,
41,
-107,
75,
77,
44,
-53,
-88,
-47,
49,
-117,
70,
123,
18,
1,
118,
-110,
1,
96,
12,
-110,
53,
-111,
-84,
114,
38,
-42,
116,
7,
-115,
0,
36,
98,
56,
5,
-17,
-24,
8,
47,
-121,
-113,
-81,
-96,
73,
-102,
9,
-65,
-99,
117,
22,
-90,
120,
-88,
-47,
85,
36,
3,
-98,
-108,
-13,
-115,
-26,
29,
-85,
-26,
11,
38,
117,
-53,
-94,
92,
70,
113,
-97,
23,
-20
] |
McHaney, J.
On November 21, 1912, J. Franklin Reddick, hereinafter referred to as Frank Reddick, a resident of Texas at that time, and still is, purchased a forty-acre tract of land in Union county, Arkansas, for a home for his mother, and for the appellees, his brother and wife, to live thereon and take care of their mother. The mother and appellees moved on said land in 1913, and continued to live there until after the mother’s death in 1923. Frank Reddick paid the purchase price for and received a deed to said land in his name from C. Gr. Dumas and wife, the then owners of said land.
In 1931, Frank Reddick, being insolvent, filed a voluntary petition in bankruptcy in the United States District Court at Dallas, Texas, and in Schedule B, a statement of all property of the bankrupt, he listed the forty acres of land in controversy among his assets at a valuation of $600 and swore that he was the owner thereof. Thereafter, at a sale of the bankrupt’s assets, appellant became the purchaser of this forty-acre tract. The sale was approved and a deed issued to it by the trustee.
On April 5, 1935, appellant brought an action in ejectment against appellees to recover the possession of said land, alleging ownership thereof and deraigning its title as above stated. Appellees answered, denying appellant’s ownership, and asserting title in themselves. They pleaded adverse possession for more than seven years and that their possession had been open, notorious, peaceable, and without any adverse claims, and they, therefore, pleaded the seven years ’ statute of limitations and'adverse possession in bar of the action. On a trial, appellees based their claim in addition on the ground of an oral contract with Frank Reddick to convey said land to them in consideration of their moving on the place and taking care of the mother during her lifetime.
Trial resulted in a decree in appellees’ favor from which is this appeal.
We think the court erred in so holding. The undisputed facts, in addition to those above stated, are that the record title to this land has at all times since its purchase been in Frank Reddick, with the exception that in 1920 he conveyed same to A. V. Warner and the latter, on the same date executed a deed back to Frank Reddick, but which latter deed was not recorded until some- time later. The land was assessed in the name of Frank Reddick and the taxes paid in his name from the year 1915 to the year 1930. In 1922, before his mother’s death, this land became valuable because of the discovery of .oil and gas in its vicinity, and in that year Frank Reddick executed and delivered an oil and gas lease on said land to the Humble Oil & Refining Company for a consideration of $3,400, paid in cash, which was more than ■ eleven times the $300 purchase price paid by him to Dumas. All of this was well known to appellee. The lease just mentioned retained a one-eighth royalty interest in the oil and gas produced therefrom in Frank Reddick. It was a five-year lease, renewable annually by payment of a consideration which was payable to Frank Reddick. After the expiration of this lease, another lease was executed between the same parties for a consideration of $40, but appellee, Harvey Reddick, says that this $40 was paid to him by his brother. Like reservations of royalty were provided in this lease in favor of Frank Reddick, as also annual pay ments to renew the lease from year to year for a period of five years. Appellees made no objection to his brother’s having exercised these acts of ownership over said land, although he says it was his land at that time because his brother had agreed for him to have it for the consideration aforesaid. The land was attached in 1930 by the sheriff of Union county under a writ issued out of the circuit clerk’s,office on a judgment in the case of Dallas Bank d Trust Company v. J. Frank Reddick. At the time the sheriff posted the notice on the land, appellee did not claim the property as his own, did not intervene in the suit, but merely asked the sheriff to send the notice of levy to his brother, Prank Red-dick. This land was sold for taxes on January 8, 1931, for the taxes of 1930, but said appellee did not redeem it as he could have done if he ■ had claimed to be the owner, but he says he purchased the collector’s certificate of purchase 'from one Clark, the purchaser at the tax sale, and that he paid Clark $100 for his certificate of purchase, when he could have redeemed from the sale, if he were the owner, for $11.99 and interest:
As against this evidence of ownership of Prank Red-dick, and other facts and circumstances that might be detailed, appellees claim to own this land by virtue of the oral agreement above set out and are corroborated to some extent by the testimony of several witnesses who say they heard Prank Reddick state that he had given this place to his brother to take care of his mother, or that he was going to give it to him on this account. The value of this testimony depends upon the memory of witnesses running back approximately twenty-five years. Prank Reddick did not testify in this case, and it seems reasonable to believe that if he had made any such agreement with his brother appellees would have either had him present to testify to such fact or have taken his deposition in this case. The failure to produce Prank Reddick as a witness in his favor is a circumstance tending to show that Prank Reddick would not have so testified.
The rule, in cases such as this, is that where an attempt is made to overcome a record title with a con tract resting in parol, it is necessary to establish the oral contract by clear, decisive and convincing testimony. Walker v. Eller, 178 Ark. 183, 10 S. W. 2d 14. We think the evidence tending to support the oral contract relied upon falls far short of measuring up to the requirements of the rule. In fact, we think that the preponderance of the evidence is against the finding of the trial court.
Nor do we think appellees can avail themselves of the plea of adverse possession and limitations for the reason that the proof shows that their possession was permissive. He went into possession of .the land with the consent of Prank Reddick, to make a home for his mother. There is no showing in this record that he, at any time, brought home to Prank Reddick his claim of ownership. As said in Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, to quote a syllabus: “To be adverse, possession of land must be actual, open, continuous, hostile, exclusive, and be accompanied with an intent to hold adversely to the true owner.” The statute of limitations (Pope’s Dig., § 8918) would not begin to run in this case until he had brought home to Frank Reddick notice that he was holding adversely to him. As late as January 27, 1931, when Prank Reddick listed his assets in bankruptcy, he was still claiming to be the owner of said land. Up to that time, it had been assessed in his name and the taxes paid in his name; so up to that time, it does not appear that Frank Reddick had any notice that his brother was claiming title to said land.
The judgment will therefore be reversed, and the cause remanded with directions to grant appellant the relief prayed in his complaint. | [
-15,
111,
-36,
60,
8,
96,
40,
-102,
74,
-85,
-28,
87,
109,
74,
76,
109,
99,
109,
-44,
123,
-91,
-77,
67,
-30,
-46,
-77,
121,
-57,
48,
77,
-26,
-41,
76,
24,
-54,
21,
-26,
-30,
-59,
24,
-118,
-127,
-103,
116,
-55,
16,
60,
-89,
0,
15,
81,
-114,
-26,
46,
53,
107,
77,
46,
-49,
40,
88,
-16,
-97,
15,
-1,
19,
-95,
-26,
-72,
97,
72,
24,
-104,
48,
0,
-24,
115,
54,
-122,
116,
12,
-99,
8,
38,
118,
34,
-51,
-17,
-88,
-104,
15,
-66,
-115,
-90,
-32,
88,
3,
73,
-98,
-108,
127,
-120,
31,
-12,
100,
-59,
60,
40,
11,
-117,
-106,
-79,
-113,
-2,
-106,
19,
-29,
39,
-80,
112,
-51,
-30,
93,
7,
112,
-101,
-122,
-39
] |
Holt, J.
Z. M. McCarroll, commissioner of revenues for the state of Arkansas, 'brings this appeal from a final decree of the Pulaski chancery court permanently enjoining him from collecting, or attempting to collect, a tax on motor vehicle fuel sold within the town of Omaha, Boone county, Arkansas, at a rate in excess of that provided for by the laws of Missouri.
It is alleged by appellees in their petition for a restraining order that they are residents of the incorporated town of Omaha, Arkansas, .and are engaged in the sale of gasoline to retail dealers therein; that Omaha was duly incorporated prior to March 25, 1937, and its corporate limits extend to the Missouri state line; that appellant was, and is attempting to collect the regular state tax of .6% cents per gallon on all gasoline sold by them within the corporate limits of said town and that in the absence of an injunction restraining appellant from collecting said tax, petitioners would suffer irreparable damage. They prayed for a temporary restraining order and that upon final hearing said order be.made permanent.
Upon this petition a temporary restraining order was entered.
Appellant in his answer admitted that petitioners resided in, and sold gasoline to retail dealers within the town of Omaha, Arkansas, that an order incorporating the town on January 30, 1936, was entered in the Boone probate court (and not in the Boone county court as required by statute) and admitted that the corporate limits extended to within two miles of the Missouri state line. Appellant admitted that he had ordered appellees to pay a tax of 6.y2 cents per gallon on all gasoline sold within the town of Omaha.
All other material .allegations in the petition were denied and appellant, by way of affirmative defense, among other things, alleged that the great majority of the land included in the incorporation order was utterly unfit for town purposes and was not in fact needed for such purposes; that the sole reason for incorporating said town of Omaha was to evade the provisions of the gasoline tax- laws of the state of Arkansas, and that the incorporation did not include all of the former village of Omaha.
The legislature of Arkansas in 1935 passed act 147, which provided (under § 1) that gasoline dealers in any city or incorporated town, the corporate limits of which extend to within two miles of a state line, might sell gasoline at the rate of tax prescribed by law in the adjoining state. When this act was passed the unincorporated village of Omaha was located about 3% miles south of the Missouri-Arkansas state line in Boone county.
Subsequent to the passage of .act 147 of 1935, and prior to 1937, the town of Omaha was incorporated under the name of Omaha embracing territory which extended over a tract of ground approximately four miles long and a quarter of .a mile wide, terminating at the Missouri state line.
As thus incorporated, Omaha sought the right to avail itself of the privileges extended under act 147., supra. This court, however, in Wiseman, Commissioner of Revenues, v. Town of Omaha, 192 Ark. 718, 94 S. W. 2d 116, held that the act applied only to towns, or cities, incorporated prior to the passage of said act 147 and, therefore, its provisions did not apply to the town of Omaha. After this decision, the legislature of Arkansas in 1937 enacted act 303, which contained and re-enacted the identical provisions of § 1 of act 147 of the Acts of 1935, supra.
It was subsequent to the passage of act 303 that appellees filed their petition, supra, in the Pulaski chancery court seeking and securing the restraining order in question.
The record reflects that appellees (petitioners below) relied for relief solely on a certified copy of an order issued by the Boone county court as of the 30th day of January, 1936, establishing the incorporation of the town of Omaha, signed by M. 0. Penix, county and probate judge.
Appellant (respondent below) offered in evidence the testimony of Mr. J. P. Soard, and upon objection by appellees the learned chancellor ruled the proffered testimony incompetent. The substance of the testimony offered by appellant was stated by appellant as follows:
“I intended to prove by Mr. Soard’s testimony that the town of Omaha, which was incorporated, included a strip of land a quarter of a mile wide and four miles long, and further intended to prove by his testimony that the land included within the description of the order of the county court was agricultural land, included timber land, and also bluff-land, which was impossible of traversal, either by wagon or by automobile. I further intended to prove that the incorporated limits of the town of Omaha actually failed to include the school in the town — that is, the school was left outside of the incorporated limits, and the church and the railroad station, but we will stipulate that the business section is included and all the residential section except the consolidated school, outside of town; that approximately seven-eighths of the territory included therein was uninhabited territory, except for isolated farm houses.”
It thus appears on this record that the town of Omaha was purportedly incorporated on January 30, 1936, and that act 303 of the Acts of the General Assembly of the State of Arkansas for 1937 was passed more than a year subsequent to the date of this incorporation.
Appellees insisted on the trial below, and contend here, that appellant cannot make a collateral attack on the order of the Boone county court incorporating* the town of Omaha and that the trial court was correct in so holding.
On the contrary, appellant urges here that under the evidence offered by him before the chancellor he was entitled to attack collaterally the incoi-poration of the town of Omaha for the reason that said incorporation order is void ab initio; that the court erred in refusing this testimony and in denying him this right of collateral attack.
After a careful review of the record we have reached the conclusion that appellant is correct in both of these contentions. The question, therefore, presented here is whether an unincorporated town can incorporate a strip of land four miles long and a quarter of a mile wide running to the borderline of an adjoining state, which strip of land includes therein territory unsuited for municipal purposes, agricultural land not needed or adapted for city uses, to which no streets or other municipal improvements extend, which is uninhabited except for a few isolated farm houses, and thus avoid payment of the state tax on gasoline on the theory that the order of incorporation, though void ab initio, is not subject to collateral attack?
On the record before us, it is our view that the order of the Boone county court purporting to incorporate the town of Omaha was and is void, and, therefore, open to collateral attack.
We think the principles of law enunciated in the case of Waldrop, Collector, v. Kansas City Southern Ry. Co., 131 Ark. 453, 199 S. W. 369, L. R. A. 1918B, 1081, control here.
The Waldrop case involved a suit for injunction on the part of the Kansas City Southern Railway Company to restrain W. D. Waldrop as collector of taxes for Little River county from enforcing the collection of taxes in the town of Ogden on the grounds that the incorporation of the town of Ogden was void and a. nullity. In attempting to organize the town of Ogden, land on both sides of the railroad seven miles in length and five miles in width was taken. This land included principally farm lands or timber lands unsuited for town purposes.
This court in commenting upon the purported incorporation of the town of Ogden, said:
“The order of the court organizing the proposed territory into an incorporated town was null and void for the reason that the land was not of such character as could form an incorporated town. The record shows that the territory attempted to be formed into the town of Ogden ran parallel with the railroad track on both sides of it and was seven miles in length and about five miles in width. The railroad station of Ogden was situated on eighty acres of the land and there were a few residences on these eighty acres. Most of the remainder of the lands within the limits of the proposed town were timber lands and the remainder were agricultural lands. There were four lakes upon the lands within the limits of the proposed town. It'was manifest that the owners of the lands could not receive any benefits whatever from the lands being placed within the limits of an incorporated town. . . .
“The attempted organization of the proposed territory into an incorporated town was palpably wrong and was an arbitrary and unreasonable exercise of power. Under the circumstances, as they appear from the record, it is evident that the property of the railroad company is subject to the local burden of taxation solely for the benefit of others, and we think this is a case of taking private property for public use under the form of taxation without giving any protection or other compensation therefor. The attempted organization of the town of Ogden was therefore within the prohibition of our Constitution and was absolutely void. Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778; City of Covington v. Southgate, 15 B. Monroe (Ky.) 491; and Morford v. Unger, 8 Ia. 82.”
It will thus be seen that the effect of our holding in the Waldrop case is that where an attempted act of incorporation is void ab initio, it is subject to collateral attack, and we have been cited to no subsequent rulings of this court to the contrary.
We conclude, therefore, that the chancellor erred in excluding testimony offered by appellant. The cause is therefore reversed, and will be remanded for trial in accordance with the principles of equity as outlined in this opinion. | [
-12,
-55,
-16,
46,
106,
112,
58,
-94,
112,
-77,
-11,
83,
109,
-64,
5,
117,
-17,
125,
-11,
88,
-25,
-74,
5,
65,
-64,
-13,
-103,
-57,
-75,
-55,
100,
-43,
79,
44,
74,
-43,
-122,
98,
-83,
94,
-58,
8,
43,
109,
88,
-54,
54,
-17,
83,
11,
53,
-113,
-5,
42,
30,
-52,
109,
44,
-51,
42,
73,
-14,
-24,
-57,
127,
23,
17,
100,
-104,
1,
64,
94,
-104,
49,
76,
-24,
115,
34,
-126,
116,
67,
-39,
40,
32,
98,
67,
37,
-17,
-72,
40,
14,
-5,
-87,
-124,
-16,
104,
98,
41,
-97,
-105,
90,
18,
-122,
-6,
-18,
13,
88,
124,
6,
-50,
-106,
-95,
7,
-15,
28,
19,
-29,
-89,
32,
117,
-55,
-74,
92,
-58,
50,
-101,
6,
-16
] |
Grieein Smith, C. J.
On hearing in circuit court in a proceeding instituted by petition for writ of habeas corpus, appellee was released from State Hospital. The hospital superintendent, to whom the' writ was directed, has appealed.
In the order releasing- appellee the trial court found that “. . . the county and probate judge did not have jurisdiction of said cause.”
The attorney general treats the judgment as a finding that the county court was without jurisdiction to commit insane persons to State Hospital. It is urged that act 132 of 1939 confers such authority upon county judges, and that the act is not in conflict with the constitution . We do not think that question must be determined in order to dispose of the instant case .
Section 12546 of Pope’s Digest provides that any county and probate judge to whom a citizen’s affidavit has been presented shall fix a time “. . . as soon thereafter as may be practicable for hearing, and at such time appointed shall proceed to hear the testimony of such competent witnesses as may be produced at such hearing, and, in addition to the testimony of such witnesses, shall cause such insane person to be examined by two reputable, competent, and disinterested physicians, such examinations to be made at different times and places separately, who shall severally present to the county judge a sworn statement of the result of such examinations. ’.’
Twenty-six questions are set out in the statute, “. . . which shall be included [in the examinations made by the physicians”].
Section 12547 provides that “If it shall appear to the said county and probate judge, upon his hearing of all the testimony in the case, and from the statement of the physician or physicians, as indicated in [§ 12546] that the original statement filed with him by the said citizen is true, he shall so decide, and shall without delay transmit to the superintendent of the state hospital his decision in writing, with copies of the original statement filed with him by said citizen, and of the statement of said physician or physicians, including the interrogatories and answers as heretofore specified.”
The petitioner, below (appellee here) alleges that after the filing of a purported citizen’s statement with the county and probate judge of Clark county, the judge did not set a time for hearing testimony; that testimony of competent witnesses was not received; that the petitioner was not informed that a citizen’s statement had been filed; that he was not given a hearing of any kind, “. . . . despite the fact that he was on the public streets and his whereabouts were well known at all times. ’ ’
There is the further allegation that petitioner was not examined by any physician, that no questions were asked him as required by law, either by a physician or anyone else, and “. . . he was not examined in any way so as to satisfy said statute for such commitment.”
There was an averment that the county judge failed to hear testimony and make a written decision and transmit a finding to the hospital superintendent.
There is this final allegation: “What actually occurred was that a purported citizen’s statement was prepared, blank forms were filled in by two physicians who did not know the condition of petitioner and without any examination whatever of him a warrant of commitment was forthwith issued by the county judge of Clark county, and with said statements was placed in the hands of the sheriff with orders to transport petitioner to State Hospital, without any hearing of testimony and without giving petitioner any opportunity to present any evidence as to his sanity, or any opportunity to be heard at all.”
There was an allegation of sanity, supported by a number of affidavits.
The record does not disclose a response to the petition. The trial court’s judgment recites that the cause was submitted “. . . upon' the petition and affidavits. ’ ’ The finding was ‘ ‘. . . that the petition should be granted for the reason that the county and probate judge did not have jurisdiction of said cause, and for that reason the commitment was void.”
The petition first alleged that the so-called citizen’s statement was filed with “the county and probate judge of Clark county. ’ ’ All other references are to the county judge, as distinguished from the probate judge. The circuit court, however, found that the county and probate judge did not have jurisdiction. It did not find that jurisdiction of the subject-matter was wanting. Since we are agreed that jurisdiction of the person was lacking, it is not necessary to construe act 132 of 1939, or to consider constitutional amendment No. 24. [See Lewis v. Smith, 198 Ark. 244, 129 S. W. 229, Wooten v. Fennel, 140 S. W. 2d 108.]
In the absence of a response, we must look to the petition and its exhibits. The petition alleges facts which, if true, rendered the proceedings void even if we should assume (which we do not decide) that the county court had jurisdiction of the subject-matter.
The rule is that where a petitioner for a writ of habeas corpus is in custody under process regular on its face, nothing will be inquired into except the jurisdiction of the court whence the process came. Ex parte Williams, 99 Ark. 475, 138 S. W. 985.
In Ex parte Farley, 40 F. 66, it was said: “The court may grant this great ‘writ of right’ in every case where a party is restrained of his liberty anywhere in the territorial jurisdiction of the court, against the constitution and laws of the United States, or the petitioner is deprived of his liberty without due process of law.”
Our own statute (Pope’s Digest, § 6341) provides that if it appear that the prisoner is in custody by virtue of process from any court legally constituted, or issued by an officer in the exercise of judicial proceedings before him, such prisoner can only be discharged for one of the following causes [six being listed]: (Fourth) “Where the process, though in proper form, has been issued in a case, or under circumstances, not authorized by law.”
Clearly the case at bar comes under this subdivision of § 6341 in that the warrant or order delivered to the sheriff was issued in circumstances not authorized by law.
The judgment of the circuit court is affirmed.
References in the pleadings and briefs are to “State Hospital for Nervous Diseases.” By act 240 of 1933 the name of the institution was changed to “State Hospital.”
Article 7, § 34, of the constitution of 1874, as amended by constitutional amendment No. 24, adopted in 1938.
Porter v. Watermann, 77 Ark. 383, 91 S. W. 754; Martin v. State, 79 Ark. 236, 96 S. W. 372. [See cases cited in West Publishing Company’s Arkansas Digest, v. 4, p. 624.] | [
112,
-24,
-27,
-68,
43,
-31,
34,
-102,
67,
-21,
103,
51,
109,
-126,
-111,
53,
115,
59,
85,
113,
-42,
-74,
86,
65,
-10,
-9,
27,
-41,
-77,
-53,
-4,
-68,
77,
-84,
-22,
85,
102,
-54,
-43,
80,
-50,
3,
-119,
-32,
-48,
-48,
32,
39,
86,
15,
53,
95,
-29,
-82,
16,
67,
105,
40,
91,
-67,
64,
-23,
-98,
-115,
107,
6,
-95,
38,
-120,
-89,
112,
62,
-104,
57,
3,
-6,
115,
-106,
-126,
85,
78,
-69,
44,
102,
98,
-127,
77,
-25,
96,
-88,
14,
62,
29,
-89,
-101,
89,
105,
0,
-106,
-103,
124,
80,
14,
126,
-17,
-60,
124,
100,
1,
-113,
-110,
-91,
-57,
108,
-104,
-78,
-29,
-125,
48,
49,
-115,
-22,
84,
-57,
115,
89,
-54,
-80
] |
Holt, J.
On January 4, 1939, appellant, S. J. Knott, filed his complaint in the Crittenden chancery court, and later an amendment thereto, in which he alleged that a certain court order alleged to have been made and entered on February 23, 1937, by the Crittenden county court on its records, in which he was declared to be an insane person, is absolutely void.
The reasons for alleging said alleged county court order to be void were that no proper affidavit declaring appellant to be insane had been filed; no proper medical examinations by two disinterested physicians were made; that such purported medical examinations, as were made, were not under oath; that he was given no hearing in open court; was not notified of the hearing; and was not even present.
He further alleged that appellee, Mrs. W. C. Pace, was, subsequent to the above county court order on June 28, 1937, illegally appointed guardian over his person and property by the Crittenden probate court. Certified copies of the tw;o court orders, above referred to, were attached as exhibits and made a part of appellant’s original complaint.
Appellee, by answer and amendment thereto, denied that the two court orders-set out in plaintiff’s complaint are illegal and void, and further alleged, that the order adjudging appellant to be an insane person on February 23, 1937, was in fact made by the Crittenden probate court, and not the county court, and that said order was entered on the county court records through a clerical mistake or misprision, and that appellant is now an insane person.
Appellant (plaintiff below) first filed a motion to strike defendant’s (appellee’s) original answer because the two court orders relied upon for her defense were void from the beginning, and did not constitute a defense. Upon the denial of this motion by the court, appellant later filed a motion to strike appellee’s amended answer because it was not responsive to plaintiff’s complaint and the court w-a-s without jurisdiction to determine plaintiff’s present mental condition. This motion was also denied by the court.
At this point in the proceedings, appellant (plaintiff below) announced to the court that he would stand upon his motion to strike appellee’s answer, and amendment thereto, and upon the record as made without introducing any testimony, whereupon the trial court dismissed his complaint for want of equity.
As indicated, the pleadings in the case constitute the record before us. On this record, appellant (plaintiff below) sought to have declared void an alleged order of the Crittenden county court declaring him to be an insane person, to have declared void an alleged subsequent order of the Crittenden probate court appointing appellee, Mrs. Pace, guardian over his person and property, and sought an order directing Mrs. Pace, as guardian, to malee an accounting.
If the order of February 23, 1937, complained of by appellant, in which appellant was declared to be an insane person, were in fact made by the Crittenden probate court, the only court having jurisdiction to make the order, and not by the Crittenden county court, then it must follow that the subsequent order of the probate court appointing Mrs. Pace, appellee, guardian of appellant must be held valid.
We are of the view that appellee put this question squarely in issue when, in her answer and amendment thereto, she denied that the order in question was made by the Crittenden county court on February 23, 1937, but alleged that the order was in fact made by the Crittenden probate court and was entered on the county court records through a clerical error or misprision.
The motion of appellant to strike appellee’s answer, and amendment thereto, we treat here in effect as a demurrer, and when so treated, appellant must be held to admit the truth of all the allegations set up by appellee in her answer and amendment thereto. In fact, this record discloses that appellant does not deny appellee’s allegation in her amended answer that the order of February 23, 1937, was in fact made by the Crittenden probate court, and not the Crittenden county court, and that the order was erroneously spread upon the county court records by the clerk instead of upon the probate court records where it should have been entered.
We conclude, therefore, that no error is revealed in this record, and the decree of the chancellor is affirmed. | [
-79,
-23,
-4,
63,
-86,
97,
42,
-120,
-13,
-125,
39,
83,
-17,
-46,
0,
57,
122,
47,
117,
120,
103,
-73,
39,
36,
114,
-45,
-55,
-41,
-77,
73,
-12,
-34,
72,
40,
-54,
85,
-62,
32,
-91,
92,
-50,
-127,
-119,
100,
89,
-126,
48,
119,
92,
79,
117,
-98,
-29,
42,
95,
-53,
72,
40,
91,
-72,
-40,
113,
-99,
5,
76,
4,
-95,
6,
-102,
1,
72,
62,
-102,
53,
0,
-6,
49,
54,
-110,
116,
70,
-37,
8,
102,
-62,
33,
-84,
-25,
-72,
-120,
62,
62,
-99,
-90,
-102,
73,
105,
9,
-74,
-99,
116,
-48,
14,
-2,
-24,
-116,
28,
44,
10,
-50,
-106,
-109,
-121,
48,
-108,
35,
-21,
1,
48,
49,
-49,
-31,
84,
71,
-79,
-101,
-122,
-110
] |
Grieein Smith, C. J.
J. T. Cheatham and others, children and grandchildren of J. Gr. Cheatham and Celia Aim Augustus Cheatham (the latter hereinafter referred to as Celia Cheatham) brought suit in Columbia circuit court against J. S. Scott, Seaboard Oil Company, and others. The plaintiffs claimed to own, by inheritance, certain lands. On motion of the defendant oil company the cause was transferred to chancery court.
Relationship of the parties and the chain of title necessary to this opinion are shown in the footnote.
It conclusively appears that at the time of her death Celia Cheatham owned the property in question, having acquired it in the manner shown in the margin.1 In 1895, J. Gr. Cheatham began cultivating the land and continued to exercise dominion over it until 1909. He then sold to C. D. Stephens. In 1910 Stephens built a house on the property and occupied it until 1917, when he sold to Scott. The latter erected a new house and utilized it. J. G. Cheatham died in 1936.
It is not in evidence that either Stephens or Scott had actual knowledge of the condition of the title.
In July, 1938, J. T. Cheatham found among his father’s papers the deed from S’. D. Stephens and wife to Celia Cheatham. A short time thereafter the instant suit was filed.
Some of the appellees lived near the land and had knowledge of Cheatham’s sale to Stephens, of Stephens ’ conveyance to Scott, and of physical activities incidental-to nse of the properties.
Effect of the chancellor’s decree implies a finding that the heirs did not know J. Gr. Cheatham held by curtesy only, the deed to Celia Cheatham not having been recorded. However, the lack of this information would not be controlling.
The chancellor correctly found that J. Gr. Cheat-ham’s interest was for life. The heirs of Celia Cheatham were not negligent in failing to assert their unknown rights. Those to whom J. Gr. Cheatham conveyed took for the duration of his estate only.
The case at -bar is similar to Smith v. Maberry, 148 Ark. 216, 229 S. W. 718. The rule there announced is applicable here.
The decree is affirmed.
J. F. Cheatham died in 1877. His mother, Mrs. Elizabeth Cheatham, was his only heir. There is testimony that Mrs. Elizabeth Cheatham deeded the property to Mrs. Elizabeth Stephens, but the deed was lost or destroyed, and was not recorded. Mrs. Elizabeth Stephens died in 1895 survived by two children: S. D. Stephens and Celia Cheatham. The latter was the wife of J. G. Cheatham. The deed from S. D. Stephens and his wife, N. A. Stephens, to Celia Cheatham, was not filed until July, 1938. Celia Cheatham died in 1899, In 1909 J. G. Cheatham conveyed to C. D. Stephens. In 1917 Stephens conveyed to Scott. In October, 1936, Scott leased for the benefit of Tidewater, and Seaboard Oil Companies. | [
-16,
111,
-36,
-65,
-70,
-32,
40,
-70,
104,
-24,
-25,
83,
-35,
80,
-119,
61,
-125,
73,
81,
107,
-10,
-93,
23,
-125,
-45,
-13,
-7,
-50,
48,
89,
119,
-41,
12,
32,
-54,
125,
-58,
2,
-37,
-38,
-50,
-110,
10,
101,
89,
48,
48,
42,
84,
79,
101,
-114,
-77,
47,
29,
103,
41,
46,
-51,
41,
-64,
104,
-98,
6,
127,
22,
51,
71,
-72,
-125,
-54,
8,
-102,
49,
8,
-8,
59,
-74,
82,
116,
15,
-119,
-119,
34,
118,
33,
-19,
-17,
-80,
-104,
46,
118,
-99,
-90,
86,
104,
3,
110,
-65,
-97,
119,
64,
-74,
118,
-26,
-51,
-36,
40,
3,
-113,
-106,
-127,
13,
-16,
-104,
19,
-10,
-29,
-96,
112,
-61,
-86,
93,
70,
113,
-109,
15,
-78
] |
Holt, J.
Appellant brings this appeal from a decree of the Greene chancery court which involved the title to 160 acres of land in Greene county sold to satisfy delinquent drainage district taxes.
The record reflects that in 1911 appellee, Greene and Lawrence County Drainage District, under statutory enactment, was organized and issued twenty-year bonds to obtain funds with which to construct a drainage system, the last of said bonds being due and payable in 1931. Assessments to meet the bonds as they fell due were duly made and collected against the lands embraced in the district for the twenty-year period. However, at the expiration of this period in 1931, it appearing that additional funds were necessary to complete the improvements, and since the total tax collections on the assessment of betterments against the lands here in question had not amounted to the betterments assessed, a two per cent, additional levy of tax on the betterments placed against said lands aforesaid was duly made and carried cut by the county court of Greene county.
The lands here in question are described throughout this litigation as the east half (E%) of the northwest quarter (NW%) and the west half (W%) of the northeast quarter (NE14) of section 14, township 17 north, range 3 east, containing 160 acres, in Greene county, Arkansas.
There seems to be no dispute that the north forty acres of each of the above described eighty-acre tracts-were never assessed any betterments from the beginning and none were assessed or collected under the two per cent, levy on the original assessment of benefits referred to. •
Betterments, however, were levied against each of the south forty-acre tracts, amounting to eighty acres in all, under the original assessment and said two per cent, levy, and the clerk of the Greene county court in 1933 extended the betterments levied against the said two south forties (eighty acres) the two per cent, levy, or $3.60 .against each south forty, making a total assessment of $7.20.
Appellant, which was the owner of the property at the time, failed to pay said re-assessment of $7.20, and thereby the lands became delinquent.
Appellee, drainage district, on February 7, 1934, filed suit against appellant in the Greene chancery court to enforce the payment of this $7.20 delinquent assessment, and on April 9, 1934, a decree was rendered ordering the sale of the whole of the above described lands in eighty-acre tracts, amounting to 160 acres, the decree describing said lands just as above. The commissioner, pursuant to said decree, sold each eighty-acre tract, which included the two north forties and the two south forties, to appellees, Golve Faulkner and L. 0. Allen, although, as above indicated, no betterments had ever been assessed against either of the north forties, no taxes were due or collectible against either.
After the two years allowed for redemption had expired, and said lands not having been redeemed, the commissioner on order of the court executed and delivered to the purchasers, Faulkner and Allen, a commissioner’s deed conveying to them the entire 160 acres of land in question.
The record further reflects that, although this 160-acre tract lies within the drainage district in question, during the period from 1911 to 1931 no betterments were ever assessed or drainage taxes collected against the two north forties except for the year 1921 when taxes in the amount of $5.22 against each north-forty-acre tract were assessed and actually collected, though without legal authority so to do. This assessment was paid by the then owners of the land, H. A. and L. C. Webster, without protest.
On September 11, 1937, appellant, being unsuccessful in its efforts to redeem the lands from the tax sale, filed, by permission of the court, a complaint in the Greene chancery court in the form of a bill of review. Appellant, in its bill, alleged newly-discovered testimony - that no betterments had ever been assessed against the two north forty-acre tracts of land in question, but that notwithstanding this fact, in 1921, taxes in favor of said drainage district in the sum of $10.44 were actually assessed, extended against said tracts and actually cob lected and received by the drainage district, which amount was in its 'possession when the decree of April 9, 1934, condemning- said land, as aforesaid, was rendered.
It further alleged that appellees, H. A. and L. C. Webster, on December 17, 1919, were owners of the 160-acre tract in question, and at that time mortgaged same to The Netherlands American Mortgage Bank, predecessor and assignor of appellant, to secure a loan of $4,000, and that they agreed under the terms of the mortgage to pay all taxes that might become due or a lien on the lands in question. The note was to become due January 1, 1930.
The prayer of the bill of review sought to have the court reopen the decree of April 9, 1934, and grant appellant a new trial of the suit against delinquent lands by defendant drainage district which resulted in the decree of April 9, 1934, aforesaid.
The chancellor granted appellant’s prayer, reopened the cause, and upon a hearing found the issues .in favor of appellant as to the two north’forty-acre tracts herein involvéd and for appellees, Faulkner and Allen, -as to the two south forty-acre tracts in question. From a decree based on his findings there is no cross-appeal, hence the two north forty-acre tracts passed out of the case and are not in question here.
Appellant very earnestly insists that, since the delinquent taxes claimed in the suit which resulted in the decree of April 9,1934, amounted to only $7.20, and since the appellee, drainage district, actually had .in its possession at the time $10.44 collected by means of the illegal assessment and collection of taxes against the two north forty-acre tracts for the year 1921, the chancellor should have applied a sufficient part of this $10.44 so unlawfully collected, as was necessary to pay the said $7.20 delinquent taxes due by virtue of the two per cent, levy on the original assessment of benefits in 1933, and that he should have further found for appellant as to the said two south forties.
We cannot agree with this contention of appellant.
While it is true from the testimony in this record that there was never intended to be, and no betterments were charged against the two north forty-acre tracts of land in question during the life of appellee, drainage district, except for the year 1921, when each of the two north forty-acre tracts was assessed $5.22, or a total of $10.44, illegally and without authority so to do, and this money was received by the appellee, drainage district,, we are clearly of the view that this assessment was paid at the time by the then owners, the Webster brothers, without protest, voluntarily, and that they would be, and their successors in title to the property, are barred after a delay of approximately thirteen years from any claim to this $10.44.
Nor do we think that appellant has shown due or proper diligence in its efforts to discover the matter alleged and set out in its bill of review. The law on this question is stated by this court in Bartlett v. Gregory, 60 Ark. 453, 30 S. W. 1043, in the following language: “Where a bill of review is for newly discovered matter, the rule now is that the matter, must be such as could not have been discovered by the use of reasonable diligence, for, if there be any laches or negligence in this respect, that destroys the title to the relief.” To the same effect see Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535.
In the case of Williams v. Miller Levee District No. 2, 179 Ark. 299, 15 S. W. 2d 986, this court announces the rule that taxes voluntarily paid to an improvement district, or special taxes, cannot be recovered. It recites and adheres to the case of Brunson v. Board of Directors of Crawford County Levee District, 107 Ark. 24, 153 S. W. 828, 44 L. R. A., N. S., 293, Ann. Cas. 1915A, 493.
While it is held in the Brunson case that in order to constitute one who pays illegal taxes a volunteer he must have knowledge of the facts, there is testimony to the effect that for the two years prior to 1921 the drainage district tax receipts received by the Websters showed payment of taxes on the two south forties only, and this is true 'for the two years immediately following the taxes for the year 1921. We think when the Websters were called upon to pay for the first time assessments on the two north forties, in addition to the assessments on the two south forties on which they had been paying and continued to pay, that this was sufficient to put them on inquiry as to the legality of the assessment of the two north forties.
In the case of Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985, this court, reading from the.first headnote, held: “Whatever puts a party on inquiry amounts to notice, where inquiry becomes duty and would lead to knowledge of the requisite facts by the exercise of ordinary diligence and understanding. ’ ’
Appellant next contends that, on the rehearing of this case in 1937 on the bill of review, the learned chancellor should have found in its favor as to said'two south forty-acre tracts for the reason that 'the court’s findings were that there was due in delinquent taxes on the two per cent, levy on the original assessment of benefits $3.60 against the east half of the northwest quarter of said lands (eighty acres) and $3.60 against the west half of the northeast quarter (eighty acres) and because it ordered these two eighty-acre tracts sold in sólido to collect these separate sums, when in fact the said delinquent taxes had been assessed only against the south eighty acres by forty-acre tracts, $3.60 against each of the south forties.
The undisputed testimony in this case shows that the two per cent, levy made by the county court in 1933 was against each of the two south forties only in the sum of $3.60, and that no levy was made, extended, or collected against the two north forties, yet the trial court in its decree held that not only the two south forties but the two north forties were liable for the tax and directed the county clerk, as commissioner of IKe court, to sell all four forties in eighty-acre tracts, as described heretofore in this opinion, and that in fact the commissioner sold the property in eighty-acre tracts described as follows: The west half of the northeast quarter of section 14, township 17 north, range 3 east, to Golve Faulkner and L. O. Allen for the 1933 drainage taxes for $3.60 plus costs, or a total of $6.98; and the east half of the northwest quarter, section 14, township 17 north, range 3 east, for $3.60 plus costs, or a total of $6.98, to Golve Faulkner and L. O. Allen.
Thus it appears that the two north forty-acre tracts-were erroneously sold, and without authority of the trial court to order their sale. While the learned chancellor found that the sale in this manner was null and void, but, quoting from his decree, “that that part of said decree of April 9, 1934, which affects the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of said tract of land be and the same is hereby declared to be valid and binding and that the aforesaid commissioner’s sale, the confirmation thereof and the aforesaid deeds are all and singly wholly valid and binding, and that part of plaintiff’s which refers to said southeast quarter of the northwest quarter and the southwest quarter of northeast quarter of said tract of land is dismissed for want of equity, and the title to said southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of said tract of land is forever quieted in the said defendants, Golve Faulkner and L. 0. Allen, their heirs and assigns, and the court hereby retains jurisdiction of this cause for such further proceedings as shall appear proper and necessary to a full adjustment of the rights of the respective parties hereto.”
We are of the view that the order of the trial court directing the lands to be sold in eighty-acre tracts for taxes due only on one-half of each tract, the south half, when no taxes were due by appellant on-the north half of each eighty, and the sale thereunder, are absolutely void, and that the court had no jurisdiction to order the sale consummated in such manner.
In the recent case of Fuller v. Wilkinson, et al., 198 Ark. 102, 128 S. W. 2d 251, this court held (quoting headnote) “It is not within the power of the legislature to authorize a sale for taxes which are not due and which are not a charge upon the land sought to be sold.”
In the case of Dickinson v. Arkansas City Improvement Company, 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170, this court said: “The second tax deed under which appellants claim title is void for a different reason. Conceding that the description ‘Frl. EV2, NE14, Sec. 32, T. 12 S, R. 1 W,’ where the section is not in fact frac tional, is sufficient to describe the whole of the east half of the northeast quarter, the record shows that appellee paid taxes for the same year on part of the same subdivision, and, this being true, a sale of the tract for the whole of the taxes assessed, when part of the taxes thereon had been paid, renders the sale void. ’ ’
In 26 R. C. L. 398, § 357, the text-writer lays down the following rule: “The land must be sold for the tax assessed upon it and if it is sold for taxes assessed upon a tract with different boundaries from that sold, the sale is void. A sale of an entire tract of land for taxes due on the whole when a tax is due for part only is also clearly void. When different parcels of land belonging to the same owner and separately assessed are sold it is the law in most jurisdictions that each parcel must be sold for the tax assessed upon it alone.”
° In People v. Golding, et al., 55 Misc. 425, 106 New York Supp. 821, the court held (quoting; headnote) : “The sale of more lands than are covered by the assessment is a jurisdictional defect.”
In the instant case we think the chancellor, as above indicated, had no authority to order the sale of the north and the south forty-acre tracts in eighty-acre blocks for taxes due on only the two south forties. It might be argued that appellant was not injured or prejudiced. This, however, is' purely speculative.
For the error indicated, the decree will be reversed and the cause remanded with directions to the trial court to cancel and set aside the commissioner’s deed conveying the two south forties, eighty acres, in question to Faulkner and Allen; that appellant be permitted to redeem said lands, and that upon its payment of the amount required to redeem, title to said lands be quieted in appellant. | [
-12,
110,
-68,
76,
-6,
-64,
106,
11,
83,
-95,
-11,
87,
-19,
3,
0,
117,
-29,
125,
117,
121,
71,
-73,
115,
98,
88,
-13,
-21,
71,
-67,
77,
-28,
-42,
76,
16,
-54,
21,
-58,
98,
-59,
88,
-122,
11,
-117,
77,
89,
64,
48,
111,
82,
15,
117,
-68,
-6,
40,
53,
-61,
77,
44,
-55,
43,
81,
-13,
-118,
29,
91,
5,
32,
-57,
-120,
3,
72,
42,
-112,
112,
-128,
-4,
123,
38,
-106,
84,
5,
-103,
8,
96,
102,
35,
-91,
-25,
-16,
9,
6,
-38,
-115,
-26,
-126,
88,
83,
-125,
-76,
-99,
124,
22,
-57,
-10,
96,
-123,
95,
108,
-123,
-113,
-108,
-77,
-113,
-96,
-117,
3,
-1,
41,
48,
117,
-51,
-58,
92,
71,
115,
27,
-114,
-112
] |
Mehaeey, J.
On February 2, 1933, the appellants, T. H. Robinson and Mollie Robinson, his wife, executed and delivered to Tom Bigger promissory notes amounting to $1,208.64, due October 15, 1933, bearing interest at the rate of 10 per cent, per annum and on the same day executed and delivered to said Bigger a real estate mortgage on certain lands to secure the payment of said notes. On June 15, 1937, Tom Bigger instituted suit on the notes and to foreclose the mortgage lien. At the time suit was filed the appellants, T. H. and Mollie Robinson, were the owners of other lands.
The appellants, on August 11, 1937, executed to J. T. Robinson, their son, all of the lands owned by them that were not embraced in said mortgage for the recited consideration of $1 and love and affection. The debt to Bigger was not paid, and after suit was brought to foreclose the mortgage, but before the decree. was rendered, the deed to the son was made.
On October 25, 1937, the chancery court gave judgment on the notes in favor of Bigger, and ordered the land sold by the commissioner. The sale was made and both the appellee and T. H. Robinson, appellant, were present at the sale. The property was purchased by appellee for $475, which was credited on the judgment, leaving a balance of more than $1,200 due Bigger from the appellants. An execution was issued and returned nulla bona on November 11, 1938. Both T. H. and Mollie Bobinson, according to the return of the sheriff, stated that they had no goods, chattels or property of any kind with which to pay. Everything was in their son’s name.
On December 5, 1938, the appellee instituted this action against T. H. Bobinson and Mollie Bobinson, and their son, J. T. Bobinson, to cancel and set aside the deed from the Bobinsons to their son. The lands which were conveyed to the son were described in the complaint.
The appellants filed answer denying the material allegations in the complaint.
T. H. Bobinson, one of the appellants, testified in substance that he is the father of J. T. Bobinson and the husband of Mollie Bobinson. J. T. Bobinson is 23 years old and is single; lives with his parents and has continuously since suit was filed by appellee; that on August 11, 1937, he conveyed the lands to his son, J. T. Bobinson, and stated that the deed calls for $1 and other valuable considerations, but that his son was to pay off the mortgages on the lands conveyed to him; the son made certain payments with the money that came off the farm; he farms and does other work; made a crop on some of the land before it was deeded to him; that he had no property left after he deeded this to his son; just had one pair of mules.
J. T. Bobinson testified that he would be 23 years old in August, is unmarried, lives with his father and mother; was present when the father and mother deeded him the property; does not know when deeds were made up and signed; they told witness that when he became 21 years old, if he would not go to the army they would deed him the property; he did not go, and that was the main reason; he had no money at the time the deed was given to him and paid no money for the deed; put the deed on record and paid the Federal Land Bank money out of the rents of the land and made some payments to Ada Baker; has no other property except this deeded to him by his parents; did not know at the time that Tom Bigger had a judgment against his father; saw it in the paper; did. not know that .the property failed to bring enough to pay the debt; he learned about the suit when it came out in the paper and learned later that the property did not bring enough to pay the debt; his parents told him the night after the sheriff came there with the papers that they had been served with summons.
There was other evidence introduced showing that parties had rented the land from J. T. Robinson.
Tom Bigger testified about the indebtedness and how long he had waited and about the suit to foreclose the mortgage, and that the suit was pending to foreclose when the Robinson’s conveyed land to their son; that Robinson wanted Bigger to take a quit claim deed to the mortgaged property in satisfaction of the debt; Bigger was willing to take a warranty deed which they refused to give; there was some question about the title to a portion of the property mortgaged; that none of the appellants owned any property other than that deeded by the parents to the son.
The chancery court found that on February 2, 1933, the defendants, T. H. Robinson and Mollie Robinson, for value received, executed and delivered to .Tom Bigger • two promissory notes, one for $1,100 and one for $108.64, due and payable October 15, 1933, bearing interest from date until paid at the rate of 10 per cent, per annum, and that on the same day, to secure the payment of said notes, the said T. H. and Mollie Robinson, made, executed and delivered to the plaintiff, Bigger, their real estate mortgage on 70 acres of land, describing the land; that on June 15, 1939, plaintiff, Tom Bigger, instituted suit in the Randolph chancery court against the defendants, T. H. and Mollie Robinson, service of summons being had on the same day for collecting the balance due on said notes and a declaration of lien on said lands, and a foreclosure; that at the time of the institution of said suit, T. H. Robinson and Mollie Robinson were the owners of certain lands, describing same. The court found that during the pendeney of the suit to foreclose, and notwithstanding the indebtedness due to the plaintiff, and the inadequacy of the security, T. H. and Mollie Robinson did, on August 11* 1937, fraudulently convey all of said land then owned by them and not covered by this mortgage, to the defendant, J. T. Robinson, who is the son of the other defendants, for the consideration of $1 and love and affection. The court further found that the conveyances were made for the express purpose of defrauding, hindering and delaying the plaintiff, Tom Bigger, in the collection of his said indebtedness and interest; that said conveyances were made during the pendency of this suit in order to prevent plaintiff from realizing upon the anticipated judgment, which he later obtained. The court further found that all of the defendants knew, both actually and constructively, of the said indebtedness due the plaintiff, Bigger; that they well knew and understood that said purported conveyance was a contrivance designed to hinder and delay plaintiff, and that all said defendants participated in the fraudulent intent. The court further found that said conveyances rendered the plaintiffs, T. H. and Mollie Robinson, wholly and completely insolvent and judgment proof, and had the effect of denuding them of all property of every kind and wholly without funds or property with which to satisfy the debt of Bigger; that thereafter, on October 25, 1937, a decree was rendered in favor of Bigger in the Randolph chancery court against the defendants, T. H. and Mollie Robinson, for $1,683 and all costs; that the mortgaged land was sold and Bigger became the purchaser and deed was made by commissioner and confirmed by the court. The court gave judgment in favor of Bigger in the sum of $1,256.50 with interest and $48.50 costs, and found all of the issues in favor of Bigger. The decree canceled and set aside the deed from Robinson and wife to their son, and held that the title to the property was in the defendants, T. H. Robinson and Mollie Robinson. The case is here on appeal.
There is very little dispute about the facts. The deed made by Robinson and wife to their son recited a consideration of $1 and love and affection, but they testify that in addition to that, he was talking about entering the army and they agreed that if he would not do that, they would deed him this land, and they say that it was subject to a mortgage to the Federal Land Bank and Mrs. Ada Baker. It could not have been otherwise; that is, whoever bought the land would necessarily take it subject to the mortgage. When the original mortgage was made to Bigger, the Robinsons owned this other land. They had not paid him anything for some years, and it was discovered by Bigger just prior to his bringing the suit to foreclose the mortgage, that there was a defect in the title to the land mortgaged to him. He offered to take a warranty deed to the land in satisfaction of the entire debt, but Robinson would not give a warranty deed, evidently because the title was not good, but offered him a quit claim deed, which Bigger declined to accept. When the Robinsons conveyed this land to their son, it left them without any property. Robinson was insolvent. He testifies himself that he had no property, and it is undisputed that both Mr. and Mrs. Robinson told the sheriff who levied the execution that neither of them had any property. Suit to foreclose the mortgage had already been filed and summons served before this deed to the son was made. He was living with his parents and learned that night that the summons was served, after it was served during the day. They all evidently knew all about the debt that Robinson owed to Bigger, and knew about the defect in the title to the mortgaged property, and, therefore, knew that it was not adequate security for the debt.
Appellants call attention to several cases, the first one is Home Life Accident Co. v Schichtl, 172 Ark. 31, 287 S. W. 769. It is true the court said in that case, as quoted by appellants, that a voluntary conveyance by a party to his wife or child, though he be indebted at the time, is prima facie only, and not conclusively fraudulent. But the court also said in the same case: ‘ ‘ Every voluntary alienation of his property by an embarrassed debtor is presumptively fraudulent against existing creditors.”
The court also said in that case that the reason for indulging the presumption of fraud did not apply in that case; that there was no presumption under the circumstances existing; but the court also said: “The reason for this distinction in putting secured creditors in the same category as subsequent creditors is that, whatever presumption is to be indulged, the creditor, in selecting his security, had, unlike a general creditor, disregarded other property of the debtor and looked only to his security for the collection of his debt, hence he is entitled to no presumption of fraud in the conveyance of other property. . Such a creditor is one who has already been given a preference over others, and is not in the attitude of an existing general creditor, hence his reliance is deemed to have been founded on his security rather than on the solvencjr of the debtor. ’ ’
The reason does not apply in this case because before this conveyance to the son was made, and before suit was brought to cancel the deed, it had been discovered by Bigger that there was a defect in the title to the land that had been mortgaged to him, and Robinson knew of this, and, therefore, refused to give him a warranty deed, but offered him a quit claim deed in satisfaction of the debt. They, therefore, knew before the conveyance was made to the son that the security was inadequate, and that the title to the property was defective.
Attention is, also, called to the case of Gavin v. Scott, 172 Ark. 234, 288 S. W. 391, and that case also holds that the rule does not appty in a case of secured creditors, and gives the same reason as is given in the former case.
Appellants also call attention to the case of Bertrand v. Elder, et al., 23 Ark. 494. This case also holds that the presumption of fraud is not conclusive as to secured creditors.
Appellants next call attention to Wilkes v. Vaughan, 73 Ark. 174, 83 S. W. 913. In that case the court said: “It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with, care; and when they are voluntary, they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” Barham v. Fed. Reserve Bank, 176 Ark. 1082, 5 S. W. 2d 318.
The next case to which appellants call attention is Cave v. Zimmerman, et al., 198 Ark. 684, 130 S. W. 2d 717. That case also held that secured creditors were in the same category as subsequent creditors, and gave the reason why there was a different rule applying to them and existing creditors. The court further said:
“This court again said that it is thoroughly settled that conveyances made to near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care, and when they are voluntary, they are prima facie fraudulent. ’ ’
“The view taken by some courts is that the existence of valid and adequate security in favor of a creditor seeking to set aside a fraudulent transfer of other property by his debtor has no effect upon the right of such creditor to maintain his action. Other courts, however, have taken the contrary view on this question. If the security is invalid, it can have no effect, ordinarily, upon the right of such creditor to set aside a fraudulent conveyance made by his debtor. The rule in some jurisdictions is that before a secured creditor may maintain an action to set aside a fraudulent conveyance of his debtor, he must show that at the time such conveyance was executed the security was inadequate to satisfy the indebtedness.” 24 Am. Jur. 280, 281.
The law with reference to fraudulent conveyances is well settled in this state. Attention is called to § 6071 of Pope’s Digest providing that conveyances of any estate or interest in lands made or contrived with the intent to hinder, delay, or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.
In the annotations to the case of Marshall & I. Bank v. Stepke, 228 Wis. 39, 279 N. W. 625, 116 A. L. R., 1042, it is stated: “In several cases where it appeared that the creditor had foreclosed a mortgage held by him and secured a deficiency judgment, it has been held that such creditor could maintain an action to set aside as fraudulent a conveyance by his debtor of other property.”
The authorities as to subsequent and secured creditors, we think, have no application here, for the reason that before suit was begun in this case, the mortgage had been foreclosed, the property sold, and a deficiency judgment had. The reason given is that a defect was discovered in the title to the mortgaged property. The son to whom the conveyance was made had no property, the parents who made the conveyance had no property except that conveyed.
The chancellor found that at the time this suit was begun, T. H. Robinson and Mollie Robinson were the owners of the lands which they afterwards conveyed to their son; that during the pendency of the suit to foreclose, and notwithstanding the indebtedness due to the plaintiff and the inadequacy of the security, T. H. Robinson and Mollie Robinson fraudulently conveyed all said land then owned by them and not covered by this mortgage, to their son, J. T. Robinson for $1 and love and affection; that the conveyance was made for the express purpose of defrauding, delaying and hindering the plaintiff, Tom Bigger, in the collection of his debt. The chancellor further found that all the defendants both actually and constructively, knew of the said indebtedness to the plaintiff; that they all knew and understood that the purported conveyance was a contrivance designed to hinder and delay plaintiff, and that all the said defendants participated in the fraudulent intent; that T. H. Robinson and Mollie Robinson were wholly and completely insolvent.
The rule is well established that the findings of a chancellor will not be set aside or reversed by this court unless such findings are against the preponderance of the evidence. We think the chancellor’s findings are supported by the evidence and the decree is affirmed. | [
114,
124,
-112,
12,
74,
-96,
40,
-70,
-17,
56,
-25,
87,
-53,
-58,
4,
45,
-92,
105,
-63,
120,
-89,
-77,
58,
-118,
-48,
-13,
-39,
-41,
-11,
-35,
-26,
-41,
76,
48,
-54,
85,
-90,
-62,
-25,
84,
14,
-121,
11,
101,
-39,
66,
52,
-1,
112,
71,
117,
6,
-78,
46,
61,
91,
72,
44,
-17,
56,
80,
56,
-113,
4,
-33,
71,
-76,
37,
-104,
65,
90,
-114,
-112,
53,
-128,
-88,
114,
-74,
-122,
116,
65,
11,
8,
54,
70,
2,
-59,
-17,
120,
-103,
47,
-10,
27,
-90,
-62,
88,
3,
98,
-67,
-35,
124,
80,
70,
-10,
-19,
5,
25,
104,
55,
-113,
-42,
-125,
-83,
-8,
-100,
19,
-9,
7,
53,
113,
-51,
34,
85,
38,
57,
-101,
-114,
-80
] |
McHanby, J.
Appellants brought this action against appellees to cancel a certain oil and gas lease covering’ approximately 12 acres of land in Union county, described by metes and bounds, and 'being a part of lots 7 and 1 of section 7, township 18 south, range 17 west, which said lease was assigned to appellant Coffee and appellee Porter by the other appellees, and to recover the purchase price paid by Coffee of $12,000 for such assignment. They also sought to recover certain moneys paid by Coffee to Porter for oil payments reserved under said assignment. The ground of the action was the fraud alleged to have been perpetrated on appellants by the appellees, Berg, Laney, Dudney, Gordon, and Porter, who defended on the ground of a general denial of the allegations of the complaint. In addition, Porter defended on the ground that he bought the lease from one Tom Green for the consideration expressed in said assignment, $24,000 in cash and $24,000 in oil payments, and that he had no dealings, no agreement or contract with the other appellees. Trial resulted in a decree dismissing the complaint as against all appellees, except Porter, against whom a judgment was rendered for $1,714.75 in favor of Coffee, being the amount paid Porter for oil payments reserved, and his interest in said lease was divested out of him and vested in Coffee.
We think the overwhelming weight of the evidence establishes the fact that appellee Porter devised a scheme to defraud appellants and that the other appellees actively joined with Porter in such scheme and aided and abetted him in its consummation. The facts are, as disclosed by the evidence, that Adams and Coffee were friends; that Coffee went to El Dorado from his home in Minden, Louisiana, about the middle of March, 1938, at the request or invitation of Adams, for the purpose of making an investment in oil properties; that they were invited by Porter to ride with him out in the oil fields and to Magnolia which they did; and that while on this trip Porter showed them on a map the location of the lease in question and told them he was going to buy it. He said the lease was very expensive, was as “high as Hell, but it has a million in oil under it,” and would cost $24,000 in cash and $24,000 in oil. He invited appellants to join him in the purchase of the lease, if his associates in the Crescent Drilling Company of which he represented himself to be the vice-president did not wish to join, on a 50-50 basis. Appellants agreed to join him in this purchase, .if his associates did not, and they were deposited at their hotel to await his reply. A short time later he called on appellánts at the hotel, advised them that his associates did not care to join him in the lease purchase and it was agreed that the deal would be closed the next morning in the law office of Senator Marlin. Present at this meeting were all the parties to this litigation, including the wives of owners of the lease. Berg 'and Laney owned 3/7ths of the lease, known locally as the Ruple lease, and Gordon and Dudney owned a 4/7ths interest. Marlin was to prepare the papers, examine the title and act as escrow agent until the title was approved and the deal closed. In the presence of all parties, Marlin inquired what the consideration was, and Gordon replied, in the presence and hearing of the others, that it was $24,000 in cash and $24,000 in oil. As to whether Gordon made this statement or whether it was by Porter- or someone else is in dispute, but it can make no difference who made it. The fact remains that the statement was made as a fact and they all acquiesced in it. The papers were drawn. Porter wrote his check for $12,000 and delivered it to Marlin. Coffee had Marlin write out :a check for him on his bank in Louisiana for $12,000, which he signed and delivered to Marlin. Whereupon Adams told Marlin to examine that title -with a “magnifying glass,” and Dudney said, “I want you to turn these checks into cash.” The fact is, by virtue of a preconceived agreement between the appellees, Porter’s check was to be returned to him and he was to pay nothing for his half interest in the lease. Coffee’s cheek, put up for himself and Adams, they to share equally in the ownership of a half interest, was deposited for collection and was promptly paid. The proceeds, after paying' exchange on the foreign check, were distributed to appellees, other than Porter, less a commission of 5 per cent which was paid to Tom Green. A short time later, on Porter’s representation that he had paid Dudney and Gordon $3,428.50 for their share of the oil reservation, Coffee paid Porter the sum of $1,714.25 for one-half thereof, when as a matter of fact Porter had paid said Dudney and Gordon nothing, because the oil reservation was bogus. As to what occurred in Marlin’s office the morning the deal was closed by escrow, Dudney testified that when they arrived in El Dorado, Porter called them off (referring to himself and Gordon) and told them that the deal was to be $24,000 and $24,000, and told them to go through with the deal on that basis. He then said he told Porter “Under no circumstances would I, until I had talked to Mr. Berg and Mr. Laney, that we were a little surprised about the way they were going to get more out of it than we could, so we called Mr. Berg and Mr. Laney out and talked to them and it was agreeable to them.” He also testified that Coffee wrote his check for $12,000 and Porter wrote his and they were handed to Marlin. He said: “I then stated ‘Tom, I have one request to make, I want you to convert those checks into money.’ I knew that one of those was not going to be cashed and I felt that some one was being taken for a half interest. In our assignment we reserved an oil payment of $10,714. Out of this assignment we assigned $6,867 to Harry Porter. Porter didn’t pay us anything for it, as that represented the oil payment we were not to retain.” Subsequently, when Adams and Coffee were in Magnolia, investigating matters, he admitted he knew they were being robbed. He was asked the following question and gave the subjoined answer: “Q. Didn’t you tell Mr. Coffee, then and there, that you knew he was being robbed, but that that was the only way you could get the deal over 'and you couldn’t say anything? A. I may have stated something along that line, but that was after Adams had disclosed the real OAvner. I may have made such a statement. ’ ’
We think it would serve no useful purpose to set out more of the facts and circumstances showing that appellants were defrauded in the deal and that all the appellees were parties to it. There is a lot more evidence to the same effect. In fact it is not seriously disputed.
But, in defense of the decree, counsel for appellees, other than Porter, who has filed no brief in his behalf, say that if any fraud was practiced, it was Porter’s fraud for which they are not responsible. We cannot agree. The facts already recited show conclusively that they all became parties to Porter’s fraudulent scheme, that they discussed it with him and entered into it for the purpose of reaping one-half the spoils.
Nor can we agree with appellees’ contention that appellants waived their right to rescind by ratification or otherwise. After appellants became suspicious that they had been defrauded, they undertook at once to find out from appellees the true facts. Adams approached Berg who told him he knew they were being fleeced, but that that was the only way they could make the sale and get their money. When Adams approached Dudney and Gordon and asked them to tell him the facts, they went out, conferred together, came back and Dudney said, “You are asking- us a very delicate question, and one you shouldn’t ask.” They finally “spilled the beans,” however, but said Adams told them, if they would tell him the facts, he and Coffee would look to Porter and not to them for their money, and that all he wanted was an assignment from Porter for the other half of the lease. Adams denies making any such statement to Dudney and Gordon, but even if he did, this would not create an estoppel in bar of this action.
Finally it is contended by appellees other than Porter in support of the decree in their favor that appellants did not return or offer to return their interest in the lease, which, it was contended, is a condition precedent to the bringing of this action. We cannot agree. In the first place appellants owned only a one-half interest in the lease and could not convey or offer to convey back the whole lease. In the second place, this is a suit to cancel the instruments conveying the whole lease, and amounts to the same thing- as an offer to convey.
The decree will be reversed and the cause remanded with directions to cancel the lease and to enter judgment against all the appellees in favor of appellants for $12,000 and $1,714.25, with interest from the respective dates of the checks for said amounts, and all costs. It is so ordered. | [
112,
108,
120,
-115,
26,
112,
46,
-70,
95,
-31,
117,
83,
-23,
94,
4,
49,
-26,
105,
-44,
107,
-91,
-93,
2,
-94,
-46,
-77,
-7,
13,
-80,
77,
-28,
85,
76,
32,
74,
21,
-62,
-62,
-59,
92,
-114,
-127,
-119,
-24,
-39,
9,
52,
-5,
20,
79,
113,
-114,
-13,
44,
21,
79,
109,
46,
-1,
59,
-47,
121,
-117,
21,
61,
22,
32,
39,
-104,
-63,
-24,
30,
-104,
-15,
40,
-24,
114,
-74,
-58,
-12,
3,
-119,
-116,
38,
102,
39,
-124,
-81,
-24,
-104,
47,
-102,
-115,
-90,
-14,
73,
67,
123,
-97,
29,
91,
95,
-123,
-4,
-8,
21,
61,
60,
-91,
-21,
-42,
-93,
47,
102,
-100,
29,
-17,
19,
38,
96,
-51,
-94,
93,
79,
50,
31,
-113,
-79
] |
Mehaeey, J.
Parkin Road Improvement District of Cross county, Arkansas, was created under and by virtue of act No. 181 of the Extraordinary Session of the legislature for the year 1920. The act creating the district named the commissioners, authorized them to issue bonds and levy assessments of 'benefits against the lands within the district. The district built approximately 35 miles of roads and bridges and placed a gravel surface thereon. Approximately nine miles of said road directly south of Parkin is now a part of the state highway system, designated as highway No. 75, and has been and now is being maintained by the State Highway Department.
The above mentioned act, No. 181, provided for the construction of the main line, which was taken over by the state, and provided for lateral A, lateral B, lateral C, and lateral D.
These laterals constitute that part of the road which was not taken over by the state highway, and are not a part of the state highway system. The improvement district had issued bonds, and these bonds are being paid by the state.
Section 5 of act 112 of the Acts of 1927 provides that commissioners of districts whose roads are not wholly included in the state highway system shall, with the approval of the county court of the county in which the greater portion of the land of the district is situated, or with the approval of the State Highway Commission, use the funds and revenues of the district for the repair, maintenance, and completion of construction of the roads not included in the state highway system, and for other lawful expenses. It is provided that the approval of the county court or the .State Highway Commission shall not be necessary in paying out funds in compliance with valid contracts in existence at the time of the passage of the act. Said section also provides that the commissioners of the districts shall have the right to call on the State Highway Commission for the advice and services of state highway engineers.
A complaint was filed by the appellees in the Cross county chancery court alleging that in order to perform the duty required by law, the commissioners employed appellee, W. E. English, to care for the records of the district and to supervise and perform labor on the roads in said district, and to do such other work as was necessary to be done, and they executed warrants in evidence of the indebtedness to the amount of $587.50. It is alleged also that the district employed T. E. Lines' as attorney and that the president and secretary of the ■Board of Commissioners, under authority of the board, executed the warrants to Lines amounting to $812.50. English indorsed his certificate to Luther Wallin as collateral, the latter now holding the same. It is also alleged that under act 119 of 1927 the state assumed all the bonded indebtedness of the district, and that no taxes have been levied upon the lands since that time; that the state is paying the bonds as they mature; defendants and commissioners have refused to levy a tax against the assessed benefits to pay plaintiffs the claim sued on. They pray judgment for the amounts of said voucher®, with interest, and that the judgment be declared a prior and first lien against the lands within the district, and against the assessments of benefits as levied by the commissioners. They also prayed that the chancery court levy a rate of tax against the assessed benefits sufficient to pay the judgments and costs, and that the county clerk of Cross county be directed to extend upon the tax books the amount of taxes against each tract of land during the year 1938 and subsequent years, and that the sheriff and collector of Cross county be directed to collect such taxes and pay the money collected to plaintiffs in satisfaction of their judgments and costs.
Appellants filed answer denying every material allegation in the complaint.
Evidence was thereafter taken, and the cause was submitted by agreement for final hearing.
An amendment to the complaint was filed alleging that the county clerk of Cross county, pursuant to act 112 of the Acts of the General Assembly of 1927, authorized defendant district to create the indebtedness sued on, and entered its order to that effect.
There was an amendment to the answer filed which especially plead act 112 of the Acts of 1927 as a complete bar to the relief prayed for.
Counsel for the parties introduced the following stipulation:
“It is hereby agreed by and between the parties hereto through their solicitors, J. L. Shaver and T. E. Lines for plaintiff and W. N. Killough for defendants that the records show the following facts, to-wit:
“That the total amended assessed benefits of the entire defendant district aggregates $1,060,431, and was filed in the office of the county clerk bn March 10th, 1922, and drew interest at 6 per cent.
“That there were only two bond issues by the said district, the first being for $650,000 and the second for $225,000.
* ‘ That there was levied against said benefits for the purpose of paying said bonds, the interest thereon, and incidental expenses of the district the following amounts, to-wit: The years 1921 to 1939, both inclusive, 7.7 per cent.; and for the years 1940 to 1942, both inclusive, 3.6 per cent.
“That there was collected for the year 1921, 5.7 per cent., for the years 1922,1923, and 1924, 7.7 per cent., for the years 1925 and 1926, 7.2 per cent.; that there was no collection prior to 1921 nor after 1926.
“That of-said bonds $137,000, with interest thereon, and interest on the other bonds up to the Martineau Road Law, were retired by the district.
“That of said bonds $738,000 were assumed under the Martineau Road Law and $191,000 paid under the Martineau Road Law.
“That of said bonds $547,000 were to be refunded under said act.
“That there are approximately thirty-six miles of road included in the improvement in said district; that approximately ten miles thereof has been incorporated into the state highway system and designated as highway number 75, thereby leaving approximately twenty-six miles' thereof in the charge and jurisdiction of said district.
“That this stipulation may be introduced in this cause in lieu of other evidence, and that the same may be corrected by either party at any time prior to the final hearing of this cause in Supreme Court.
‘ ‘ Whatever maintenance has been done on lateral or non-highway roads since 1934 has been done by WPA or Cross county.”
The parties entered into the following additional stipulation :
“It is hereby stipulated by and between J. L. Shaver, attorney for W. G. English, Luther Wallin, and T. E. Lines,. and T. E. Lines, per se, on the one part, and W. N. Killough, as attorney for Parkin Road Improvement District of Cross county, Arkansas, and the commissioners thereof, on the other part, that Cause No. 493A now pending in the Cross county chancery court shall be submitted to Honorable A. L. Hutchins, chancellor, in vacation at Forrest City, Arkansas, on the 13th day of February, 1939, for final decision upon the following record:
“Complaint, amendment to complaint, depositions of W. G. English and T. E. Lines, and exhibits thereto, stipulation of counsel under date of February 13, 1939, certified copy of order of county court of Cross county, Arkansas, of record in clerk’s Road Record Book 2, p. 623 of the records of Cross county, Arkansas; partial copy of pledge of record in Deed Record 46, pp. 582-586, partial copy of pledge, and of record Deed 43, pages 125-129, being in the records of Cross county, Arkansas, and two page statement issued by Refunding Board, Little Rock, Arkansas, showing the financial standing of the bonds issued by said district as of September 1, 1938, a.nd the act of the legislature, being act No. 181 of the Extra-Ordinary Session of the General Assembly of the state of Arkansas, of the year 1920, entitled, ‘An act to create Parkin Road Improvement District of Cross county, Arkansas,’ approved February 18, 1920, all of the above being introduced on behalf of the plaintiffs in the above matter. The record offered ¡by the defendant in its answer and amendment to answer and same shall constitute a part of this record.”
There was also introduced in evidence a certified copy of the order of the county court made November 28, 1937, which ordered and adjudged that the authority of said Board of Commissioners heretofore and hereafter collecting and expending funds according to the terms of said act, be and the same is, in all things, approved.
Mr. Lines and Mr. English testified about the work they had performed and introduced the warrants sued on. The warrants showed that they were issued on March 15, 1933, and that they were for services performed up to December, 1931. There were also introduced copies of the minutes of the board’s meeting.
The chancery court entered a decree in favor of the plaintiffs and found that the district levied in 1921-1926, inclusive, a total tax rate of 43 per cent, against the benefits of said district, and that no levy had been made against the benefits other than as stated. The decree also held that on November 28, 1927, the county court of Cross county, Arkansas, on petition of the commissioners of the district authorized the Board of Commissioners of said district to collect and expend funds of said district in accordance with the provisions of § 5 and other parts of act 112 of the Acts of 1927. The court further decreed that the plaintiffs have judgment for the amounts sued for with interest from March, 1933, •until paid. It was further provided in the decree that the judgments should be a lien against the total assessed benefits levied in the district, and • proceeded to levy a tax of one-half of one per cent, against the total assessed benefits for the purpose of providing funds with which to pay the judgments, together with interest and costs. The decree further directed the commissioners to forthwith petition the county court of Cross county, Arkansas, to enter an order directing the clerk of the county court and his successors in office, to compute and extend the rate of levy against the assessed benefits on each and every separate piece of property within the district upon the tax books for the year 1939, and the attorney for the district was directed to forthwith prepare the petition and attach a certified copy of the decree and file the same in the county court, requesting that the county clerk of Cross county be directed to extend the above tax against the assessed benefits of each separate tract, and further provided that the court retains jurisdiction of the cause for the purpose of making any further and other orders that it may find necessary in order to enforce the decree.
•Both parties insist that there are but two questions for this court to consider; first, was the Board of Commissioners of the defendant district authorized to issue the vouchers sued on? and, second, can the lands in the defendant district be subjected to a tax for the purpose of paying said voucher?
Appellees contend that act No. 112 of the legislature of 1927, by §§ 1, 5, and 9, made it the duty of the commissioners to repair and maintain 26 miles of lateral roads in this district. They contend that they complied with the law, continued the services of English at .$25, a month and put him over the supervision of the laterals and proceeded to purchase gravel, rebuild bridges, grade roads, cut weeds, and cut several ditches, and that Mr. Lines had for many years represented the district at a salary of $25 .a month and that he did considerable .work for the district.
' It is not contended that.Mr. English and Mr. Lines were not employed. Section 5 of act 112 provides that the commissioners, with the approval of the county court or with the approval of the State Highway Commission, may use .the funds and revenues of the district for the repair and maintenance and completion of construction of the roads not included in the state highway system, and for other lawful expenses.
Appellees say that the county court did, on November 28, 1927, give its approval to the employment and payment of appellees. This was practically four years before the services for which these vouchers were given are alleged to have been performed. Certainly the county court could not know what expenses would be necessary four years from the time he made the order. It is evidently the intention of act 112 that the approval should be made annually. It is provided in § 5 that on or before January 10th of each year the commissioners of .such districts shall file in the county court a report duly sworn to by them, showing the items enumerated .in 2 of . the act: It is further provided that within' 30; days after the passage of the act, they shall file with tnfe county court a similar report duly sworn to, showing the same items for the period from January 1,1927]'to the date of filing such report. ' . ' ,
It is not contended that these provisions of act 112 were complied with. Section 9 of the act relied on by appellees also provides that: “With the approval of the county court the commissioners in each district whose roads are not wholly included in the state highway system, may annually, as necessary, levy a tax not to. exceed one per cent, on the assessed benefits in the district, for the purpose of constructing, repairing, and maintaining the roads of the district which are not included in the state highway system, and for such purpose, in order not to delay such necessary work, such road improvement districts may issue and sell certificates of indebtedness, bearing interest at a rate of not exceeding six per cent, per annum and for an amount not exceeding one annual tax, which certificates shall be and are hereby made negotiable, and shall mature :and be made payable within one year after, their issuance and shall constitute a lien and charge against the •funds of the district.”
It will be observed that this section begins: “With the approval of the county court,” and it appears perfectly clear from the act that these reports and the approval of the county court, must be .annual.
There is no claim that these provisions of the stat-. ute were complied with, and they must be complied with before any tax can be levied or vouchers issued.
• We know of no authority, and our attention has been called to none, that would authorize the chancery court to take jurisdiction of this case or to order and direct tlie commissioners to apply to the county court.
The chancery court was without authority or jurisdiction to declare a lien against the assessed benefits.
Counsel call attention to a number of authorities supporting their arguments as to the jurisdiction of the different courts. It is wholly immaterial whether the chancery court or circuit court would have jurisdiction to issue a writ of mandamus in a proper case. Before any court would have authority to pass on the questions raised by the parties, it would have to be shown that the provisions of act 112 had been complied with, and until appellees complied with this act, they could not maintain a suit either in chancery or circuit court.
The decree of the chancery court is reversed, and the complaints are dismissed. | [
-63,
106,
-12,
126,
-22,
66,
18,
-118,
67,
-117,
101,
95,
-81,
78,
20,
49,
-93,
-1,
84,
105,
-27,
-78,
83,
67,
-110,
-77,
-65,
71,
-77,
93,
36,
-111,
74,
48,
-54,
29,
68,
96,
-113,
90,
-18,
11,
-53,
-60,
25,
-64,
56,
39,
82,
15,
117,
47,
-86,
-72,
48,
-13,
45,
108,
85,
43,
25,
-14,
-16,
-35,
126,
7,
33,
70,
-102,
1,
-4,
-86,
-112,
53,
-36,
120,
87,
-90,
-42,
101,
1,
-103,
-120,
32,
98,
33,
-92,
-57,
-32,
-84,
22,
-70,
9,
-73,
-94,
-71,
74,
-117,
-101,
-108,
-35,
86,
-62,
-4,
-92,
69,
83,
104,
-89,
-53,
-80,
-29,
76,
-87,
-120,
3,
-49,
13,
52,
119,
-19,
-9,
119,
-42,
50,
-101,
-57,
-80
] |
G-biepin Smith, C. J.
The appeal is from a decree finding that Nomines owes Brumfield $20.0.
A written agreement of March 9, 1938, provided that the two should share equally in all live stock then in possession of the contracting parties. As to berry crops, the division did not apply to 1938, but was effective on a fifty-fifty basis thereafter. There was the further agreement that all products of the farm should be shared equally. It was expressly stipulated in the contract that Nomines and his wife, and Brumfield and his wife,, were to “. . . care for all live stock and farm all products and berry crops,” and that the contract should continue until further arrangements were made.
Operations under the contract were conducted on the farm owned by Nomines, and the two families lived in the same house. Appellee testified that although there was no written evidence of their agreement until March 9, the first business dealings were a month earlier. Work of building a house for appellee and his wife had been started.
Appellee claims to have suffered a sunstroke June 5. He was in Veteran’s Hospital in North Little Nock until July 13, 1938. Appellant charged that appellee had been drinking and neglecting his work. Appellee denied the charge and said that he had not had a drink cf liquor for thirty days prior to June 5.
Appellant talked with appellee the day the latter became ill. Appellee said' he could not hold up “. . . under the oppression and bossing and the work I have to do.” Appellant testified that appellee told him “Whatever agreement you make with my wife is all right with me.”
While appellee was in the hospital appellant settled with Mrs. Brumfield, who wrote: “Neceived from J. B. Nomines $30.25 for. my interest in the farm. Paid in full. Mrs. W. E. Brumfield.”
Appellant insists he understood from appellee that Mrs. Brumfield was authorized to make settlement; that the $30.25 payment was intended as a settlement of appellee’s interest as well as the interest of Mrs. Brumfield. He regarded the transaction as closed.
It was appellee’s contention that the payment was without reference to his interests; that if appellant chose to pay Mrs. Brumfield for services she had rendered on the farm that was his own affair. Mrs. Brumfield was not appellee’s agent and was without authority to represent him.
Mrs. Brumfield testified that she acted in her own behalf. In support of this contention she pointed to the fact that she signed the receipt personally.
Appellant testified: “I couldn’t say whether Mr. Brumfield told his wife to settle with me. She said something about Bill settling with me at the time I paid her the $30.25, but I don’t know just what it was she said about it. ... We talked the settlement over and agreed upon what the receipt shows. I understood it was to cover the full interest of Brumfield and his wife. Mrs. Brumfield indicated that she understood she was settling for both herself and her husband. She said she was settling in full. She made some statement about Bill seeing me, but I don’t know just what she meant by it.”
Appellant further testified that when Brumfield returned from the hospital “. . . he brought a bunch of hands to work out the strawberries and I wouldn’t let him do it. I promised to pay them $42 for the house they started on the place, but nothing more was said about it. They did not accept my offer.”
J. W. Barnhill, who was working for appellant, testified he overheard a conversation between Nomines and Brumfield just before the latter went to the hospital. In talking about a settlement Brumfield said: “I am going to leave it up to [my wife] and whatever you two do — any way she settles — will be all right with me. ’ ’
There was other testimony, including statements alleged to have been made by Mrs. Brumfield confirming the settlement.
The chancellor found that appellee had been damaged $200 and gave judgment therefor. The findings are based upon evidence as to investments made by each, the value of livestock, farm produce, etc.
Counsel for appellant say: “The fact [that appellee appointed his wife as his agent] having been established-by a clear preponderance of the evidence, appellee is estopped to deny that his wife was his agent for the purpose of making settlement under the contract, and it becomes at once immaterial whether or not. he did in fact so appoint her. Appellant had no way whatever of knowing whether or not appellee had in fact appointed his wife his agent. He had a right to rely upon the representations of appellee that he had done so.”
No question of estoppel is involved. The question is, Did appellee actually designate his wife as his agent? The attempt is made to prove by Barnhill that there was an express appointment, Brumfield having told Homines that whatever his (Brumfield’s) wife did would be satisfactory. The issue is one of fact. It is true that more witnesses testified for appellant than for appellee, but “the weight of evidence is not a question of mathematics, but depends upon its effect in inducing belief. One witness may be contradicted by several and yet his testimony may outweigh all of theirs. The question is not on which side are the witnesses more numerous, but what is to be believed.” [See Ballentine’s Law Dictionary, citing 10 R. C. L. 1013, and other authorities].
The record does not justify a finding here that the decree is contrary to a preponderance of the evidence. Affirmed. | [
17,
-2,
-71,
-51,
-102,
32,
42,
-102,
96,
-85,
55,
83,
-17,
86,
16,
105,
-27,
41,
64,
104,
119,
-77,
55,
-32,
-14,
-13,
-55,
-35,
-72,
77,
-43,
86,
77,
40,
-118,
-47,
-30,
-46,
-55,
28,
-114,
-123,
-87,
-23,
89,
-126,
48,
127,
92,
73,
49,
-114,
-13,
44,
53,
71,
105,
46,
109,
45,
-64,
-16,
-86,
13,
111,
6,
-94,
39,
-100,
-25,
-56,
110,
-104,
49,
-128,
-23,
114,
-76,
-58,
116,
3,
57,
8,
34,
102,
18,
21,
-5,
-64,
-72,
38,
-2,
-99,
-89,
-48,
88,
19,
64,
-66,
-100,
126,
80,
-89,
126,
-11,
-115,
29,
104,
3,
-113,
-42,
-78,
-113,
124,
-98,
15,
-21,
47,
32,
113,
-49,
-86,
93,
71,
123,
-101,
-121,
-45
] |
Humphreys, J.
Appellees brought separate suits in the circuit court of Ouá chita county for $3,000 each against appellant to recover damages for personal injuries received by each in a collision between the automobile in which they were riding and appellant’s passenger train on the Main street crossing with Fourth avenue in Pine Bluff, Arkansas, at about 4:30 o’clock, a. m., on September 18, 1936, through the alleged negligent operation of said train by its agents, servants and employees in failing to give signals as it approached the crossing and in operating same at an excessive rate of speed, with headlights dimmed so that it could not be seen by travelers approaching the crossing and by shutting off the power and coasting toward the crossing so that it could not be heard by the traveling public approaching the crossing.
Appellant filed an answer to each complaint denying the allegations of negligence and pleading as a complete defense that the sole proximate cause of the collision was due to appellee’s failure to exercise ordinary care in driving upon the railroad track at a time and place when they ■could have seen the approaching train.
The causes were consolidated for purposes of trial and were submitted to a jury upon the testimony introduced by the parties and instructions of the court, which resulted in a verdict in favor of Nick Newton for $3,000 and in favor of Truman Dalby for $1,000, from which verdicts and consequent judgments rendered thereon an appeal has been duly prosecuted to this court.
There was substantial evidence introduced tending to support the allegations of negligence contained in appellees’ complaints against appellant, and also some substantial evidence was introduced by appellant tending to show that it, was not negligent in approaching the crossing.
In view of this conflict in the evidence, the court should have submitted the issue of negligence to the jury-on the evidence pro and con without any reference to the statutory presumption of negligence. The prima facie presumption of negligence arising under § 11138 of Pope’s Digest passed out of the case when the railroad company introduced some substantial evidence tending to show it was not negligent in approaching the crossing. When such evidence was introduced by the railroad company it was improper to submit to the jury the question of whether the statutory presumption of negligence arising from the injuries or damage done by the running train was overcome by competent evidence. Instead of eliminating that issue the trial court gave instruction No. 2 requested by appellees as follows:
“You are instructed that under the laws of Arkansas, in any cause of action against a railroad company, arising from injuries or damages done or received by the running of a train, there is a presumption of law that the defendant railroad company, its agents, servants and employees were guilty of negligence and there is thereby placed upon said defendant railroad company the burden of overcoming said presumption of negligence by competent evidence. This presumption is not evidence and does not take the place of evidence and must not be considered by you as a part of the evidence in the case. This presumption merely constitutes a temporary burden on the defendant which passes out of the case upon the introduction of competent testimony explaining the facts in issue.”
The substance of the first part of instruction No. 2 was to the same effect as instruction No. 1 given by the trial court .in the case of Missouri Pacific Railroad Co. v. Beard, Admr., 198 Ark. 346, 128 S. W. 2d 697, the only difference being that instruction No. 2 given in the instant case was not a binding instruction whereas instruction No. 1 given in the Bear'd Case, supra, was a binding instruction. This court ruled in the Beard Case that the statutory presumption of negligence applicable to rail roads disappears or vanishes when evidence has been introduced by a railroad company contradicting the alleged negligence against it.
In the latter part of instruction No. 2 in the instant case'the court did say in effect that the statutory presumption of negligence was not to be regarded as a part of the evidence by them in determining the issue of negligence, but we doubt in so doing whether the misleading effect in the first part of the instruction was removed. Since this instruction was not a binding instruction we would not reverse for this defect alone which we think might have misled the jury.
We find, however, that the court gave instruction No. I at the request of appellees, which is as follows:
“You are instructed that if you find from a preponderance of the evidence in this case that the agents, servants and employees of the defendant railroad company when within a city block of the public crossing in question shut off the power, dimmed the headlights of the engine and coasted over said crossing, striking the truck in which plaintiffs were riding and that said'train was then and there moving at a rate of speed in excess of twenty miles per hour; and that by said conduct, if you find from a preponderance of the evidence that the agents, servants and employees were* guilty of such conduct, such agents, servants and employees thereby failed to exercise ordinary care for the safety of travelers upon said crossing, you should find for the plaintiffs; unless you find plaintiffs were guilty of contributory negligence, in which event, the recovery as to the plaintiffs or plaintiff so affected shall be diminished in proportion to such contributory negligence, unless you should further find that the negligence of such plaintiff in question was of as great a degree as that of the defendant, if you find it was negligent, in which event your verdict should be for the defendant. ’ ’
This instruction was a binding instruction and in effect told the jury that should they find that the train approaching the crossing was doing so at a speed in excess of twenty miles an hour they should find in favor of appellees and against appellant. There was a city or dinan.ee in force at the time of the collision restricting the speed of trains in the city of Pine Bluff to twenty miles an hour. It was agreed in the course of the trial that the ordinance was in force and effect.
This court said in the case of Hovley v. San-Francisco Ry. Co., 193 Ark. 580, 102 S. W. 2d 845, in citing Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840, that: ‘ ‘ The rule is that the violation of a city ordinance relating to the rate of speed at which an automobile is driven is not per se negligence, but is only evidence of that fact to be considered with other evidence in determining the question of negligence.”
Applying the rule thus announced instruction No. 4 was inherently wrong and in giving it the court committed reversible error.
After a careful reading of the testimony we are unable to ag’ree with appellant’s contention that the undisputed evidence reflects that appellees were guilty of contributory negligence which was the sole proximate cause of the collision and resulting injuries. There is a sharp conflict in the testimony on the issue of contributory negligence on the part of appellees.
We think it best not to discuss the evidence bearing upon the issue of contributory negligence as it might not be the same in the new trial of the cause and for that reason refrain from doing so.
In view of the fact that it will be tried again it is unnecessary to discuss the question of whether the judgments rendered were excessive.
On account of the error indicated the judgments are reversed and the causes are remanded for a new.trial. | [
-16,
104,
-60,
-81,
75,
99,
42,
-102,
113,
-95,
37,
-45,
-19,
-57,
-111,
55,
-25,
-65,
85,
43,
-9,
-109,
71,
98,
-110,
-109,
113,
-59,
-106,
-53,
100,
-10,
77,
49,
75,
85,
71,
72,
-51,
28,
-50,
44,
-85,
-24,
25,
-112,
32,
112,
84,
71,
49,
-98,
-9,
42,
24,
-61,
76,
46,
-21,
-84,
-56,
48,
-118,
5,
61,
6,
49,
36,
-101,
33,
-20,
25,
-104,
49,
25,
-68,
115,
-94,
-110,
-12,
105,
-103,
8,
98,
102,
0,
21,
-25,
-84,
-120,
46,
-66,
31,
-90,
62,
9,
73,
47,
-73,
-99,
116,
80,
12,
-6,
-4,
77,
89,
108,
-127,
-53,
-108,
-95,
-35,
36,
-106,
35,
-53,
-83,
50,
112,
-50,
-30,
93,
69,
18,
-101,
-97,
-106
] |
Holt, J.
Appellant brings this appeal from a decree of the Pulaski chancery court in favor of appellees in the total sum of $1,660.50 for alleged commissions and bonuses earned by appellees while in the employ of appellant.
Appellees alleged in their complaint that while employed by appellant, first as salesmen and later as district sales managers, under contracts providing for certain commissions and bonuses, they were wrongfully discharged by appellant and that appellant without cause refused to pay to them commissions and bonuses alleged to be due.
The complaint further alleged that the amounts due plaintiffs were unknown to them and asked for an accounting to determine these amounts and for judgment.
The contracts relied upon were made a part of the complaint and those provisions material here will be set out and considered hereafter in this opinion.
Appellant first demurred to the complaint on the g’round that equity was without jurisdiction. The court overruled the demurrer and appellant answered denying every material allegation set up in appellees ’ complaint, and alleging that appellees had breached the contracts in question, had forfeited any and all rights to any alleged commissions and bonuses thereunder and were not entitled to recover anything from appellant.
The learned chancellor found the issues in favor of appellees and from this decree comes this appeal.
, The record in this case is voluminous, however, the material facts are to the following effect:
Appellees, Edgar J. Browne and Roy E. Bell, were first employed by appellant under similar contracts on April 18, 1936, and on October 3, 1935, respectively. Under these contracts they were engaged as salesmen to sell Hamilton Trust shares, for cash and on the installment plan. In case of installment purchases, appellees were paid when investors made their installment payments to appellant. Each of these contracts provided that if the contract should be terminated while the salesman was in good standing he should be paid all earned commissions and bonuses even though they might accrue after the termination of the contract. These contracts terminated on August 1, 1936, and February 3, 1936, respectively, and there is no evidence that appellees violated their terms.
On the dates last above mentioned, appellees entered into another contract with appellant in all respects similar to the first except as to commissions and bonuses, which were increased. These last mentioned contracts remained in force until January 3, 1938, when they were terminated by mutual consent and each of the appellees was given a contract as sales manager, increasing their bonuses and commissions, and in which the general provisions in all other respects were similar to those in the previous contracts.
These last mentioned contracts continued in force until June 1, 1938, when they were terminated and new contracts, omitting certain provisions in the prior contracts, were entered into between appellant and appellees in which appellees were employed as district sales managers and these were the contracts under which appelleeswere serving appellant at the time of their discharge, and which they are alleged to have breached.
The material provisions of these contracts of June 1, 1938, with which we are concerned here, are:
Section 1 provides: “Nothing contained herein shall be construed to create the relation of employer and employee between the company and the district manager.
Section 6, Subdivision h, provides that appellees shall “Not engage in any business other than that covered by this contract during its continuance. In event the district manager violates the provisions of this contract, the same shall constitute an immediate breach hereof, and the company may cancel this contract and retain as liquidated damages all earnings accruing to the district manager’s account.”
Section 12 provides: “The district manager may. terminate this contract after first having given the company thirty days ’ notice in writing of his intention so to do, and in case he discontinues his services hereunder without giving such notice he shall forfeit all earnings that are then due or will later become due him and the company shall retain and keep all such moneys as liquidated damages for losses sustained thereby. In case of dismissal of the district manager for. cause, this contract shall terminate immediately upon written notice to the district manager at his .last known address.”
Section 13 provides: “If this contract is terminated while the district manager is in good standing hereunder and not indebted to the company, he shall receive any balance of earning's as the same accrue, even though they accrue thereafter. Further, that under the above circumstances, the district manager shall receive bonus, provided he has been continuously and entirely in .the services of the company fox at least one year at the time of termination hereof. ’ ’
Section 19 provides: “This agreement revokes and cancels all former contracts which have existed between the parties hereto relative to the sale of Hamilton Trust Share Certificates.”
One Erringer, prior to the employment of appellees by appellant, had been appellant’s sales manager in Arkansas, and it was through him that appellees were first employed. Upon the death of the president of the appellant company, Erringer decided to organize a cor-oration known as the Arkansas Fund, Inc., patterned after that of appellant and made this known to appellees.
On August 8, 1938, appellees sent a lettér on stationery of appellant to all the agents of appellant company in Arkansas, some thirty-five in number, urging them to attend an important meeting in Little Bock on August 17, 1938. Practically all of these agents attended this meeting at which they were informed of the organization of the Arkansas Fund, Inc. Appellee, Browne, was one of the incorporators and appellee, Bell, had agreed to become an officer and director.
On the part of appellant the testimony as to what transpired at this meeting tends to show that the salesmen assembled where urged to terminate their contracts with appellant. Other evidence presented by appellant tended to show that appellees, during their employment, neglected appellant’s business to its damage, devoted time to the organization, and interest, of the new' company, that their sales fell off before their discharge, and that thereafter appellant’s business continued to grow smaller, and that the new company, which appellees helped to organize, and in which they were interested, prospered. The evidence is conflicting.
On the part of appellees, the testimony shows that these salesmen were merely informed of the new organization and its purposes. Appellees approved the plan, expressed their belief in the future possibilities of the new company and a desire to have those salesmen present, who so desired, to associate themselves with the new company. They were informed at- this meeting that before they could terminate their contract with appellant sompany they must give thirty days’ written notice in advance. It appears that all but ten of the agents present decided to go with the new company, and their resignations, together with those of the former state sales manager and appellees, were mailed to the appellant on August 20, 1938.
The testimony further reflects that appellees and these salesmen were informed that they could not work for the new company until after the thirty days’ notice had. expired.
Appellees continued to serve appellant until they received a letter from appellant dated August 27,1938, in which they were informed that their resignations were not accepted, but on the other hand they were discharged for cause, which was not stated.
It further appears that up until the receipt of this letter of discharge appellees had continued to work for appellant and both had produced business within the week prior thereto, Bell having sold one $6,000 contract for appellant. Neither sold any stock for the new corporation until after the discharge notice. They had sold no investment certificates for the new corporation. The new company was not authorized to sell investment certificates until October 7, 1938.
The record further reflects that on August 16th appellees and their associates applied to the State Securities Commissioner of Arkansas for-authority to sell shares of the capitol stock of the new company (Arkansas Fund, Inc.) and on August 19th they obtained this authorization, and on the same day applied for salesmen’s licenses for twenty-three of appellant’s Arkansas salesmen to sell the stock of the new company and that five licenses were immediately issued.
As has been indicated, much evidence by both parties has been brought into this record. We think it unnecessary to set it out more at length for to do so would serve no useful purpose, and would unduly extend this opinion. Suffice it to say that after a careful review and consideration of all the testimony we have reached the conclusion that the findings of the learned chancellor are not against the preponderance thereof.
Appellant first insists that no cause was stated in the complaint of appellees that would give jurisdiction to a court of equity. In determining this question we must look to the allegations of the complaint. Graysonia, Nashville & Ashdoton Railroad Company v. Newberger Cotton Company, 170 Ark. 1039, 282 S. W. 975.
It is alleged in the complaint that appellees were unable to determine the amount of commissions and bonuses to which they were entitled, that the company alone had this information, and, therefore, an accounting was sought to determine the total commissions and bonuses due them at the time the suit was filed. We think this allegation was sufficient to give the chancery court jurisdiction and that no error was committed in overruling appellant’s demurrer.
Appellant next urges “that appellees grossly violated both (a) the express provisions of the contracts under which they were employed by appellant and (b) the fundamental principles of law and equity governing the relationship between principal and agent; therefore appellant has the right, either by reason of the terms of the contract of employment or by virtue of the principles of law and equity, to retain, as reimbursement for the grave damage wrought to appellant by appellees and their co-conspirators, the commissions and bonuses accrued and accruing to appellees.”
It will be observed that appellees resigned their positions with appellant in a letter dated August 20,1938, and that they were discharged by appellant on August 27. We think a preponderance of the testimony reflects that they continued in good faith to work for appellant until the date of their discharge, August 27. Thereafter they began the sale of stock in the new company (Arkansas Fund, Inc.) and after October 7, 1938, when the new company received its permit to sell securities, they began the solicitation for the sale of these securities.
Before their discharge they had permitted their names to be used in the incorporation of the new company and as its directors. Was the organization of the new company (Arkansas Fund, Inc.) by appellees and others, under the facts as disclosed by this record, in violation of the terms of the contracts in question? We do not think it was.
It is a general principle of law that the organization of a corporation during- the employment to carry on a rival business after the expiration of the term of employment is not engaging in business.
In 18 R. C. L. 519, § 31, the author says: “Manifestly, when a servant becomes engaged in a business which necessarily renders him a competitor and rival of his master, no matter how much or how little time and attention he devotes to it, he has an interest against his duty and may be dismissed. It would be monstrous to hold that the master is bound to retain the servant in his employment after he has thus voluntarily put himself in an attitude hostile to his master’s interest. But the mere planning by an employee during his contract of employment to engage after the expiration thereof in a competing business, does not justify his discharge, as a matter of law. And the organization during the term of his employment by the manager of a business,' of a corporation to carry on a rival 'business after the expiration of such term, and the perfecting of arrangements for such business, have been held not to- be ground for discharge from his position of manager.”
In Alfred J. Myers v. Roger J. Sullivan Company, 166 Mich. 193, 131 N. W. 521, 34 L. R. A., N. S., 1217, the court held (quoting from the syllabus): “The organization during the term of his employment by the manager of the business, of a corporation to carry on a rival business after the expiration of such term, and the perfecting of arrangements for such business, is not ground for his discharge from his position of manager.” And in the body of the opinion the court said:
“The complaint made by defendant is that by connecting himself with this corporation plaintiff put him self in ail attitude of hostility towards defendant, and that of itself was sufficient cause for discharge. The facts are that the concern had not as yet entered into business, and did not propose to until the expiration of plaintiff’s term of hiring. It amounted on the part of plaintiff to a mere planning’ for employment. One is entitled to seek other employment before he is on the street. The contrary would be a monstrous doctrine. A servant may not, while engaged in the service of his master, ‘injure his trade or undermine his business; but everyone has a right, if he can, to better his situation in the world, and if he does it by means not contrary to law, though the master may be eventually injured, it is damnum absque injuria’.”
In the well-considered case of Jones v. Ernst & Ernst, 172 La. 406, 134 So. 375, in which the facts are quite similar to those in the instant case, principles of law applicable here are set out and in that case the court said:
“Plaintiff sued for an alleged balance due for salary for the first nine months of 1927. Defendant, a partnership, answered that the amount claimed was for a bonus, not for salary, which under its contract it was not obligated to pay; and, if not a bonus, that plaintiff by his disloyal acts had forfeited any claim thereto. Defendant also reconvened praying for the return of the amount paid plaintiff as salary during the period of his alleged disloyalty, for an amount due for overdrafts, and for the damages resulting from plaintiff’s alleged disloyal activities. . . .
“Plaintiff resigned his position with defendant on thirty days’ notice, the resignation becoming effective on October 1, 1927. Thereafter, plaintiff engaged in the business of accounting on his own behalf, several of the defendant’s employees becoming associated with him therein.
“Defendant predicates its reconventional demand for the recovery of salary paid and for damages on plaintiff’s alleged disloyalty in persuading certain of its employees to leave defendant and for failing to obtain renewal contracts from its regular clients.
“The employees who left defendant to engage in business with plaintiff were employed by defendant on a monthly basis only. We know of no law, and have been referred to none, which prohibited them at the end of any monthly period from leaving defendant’s employ. On the contrary, we think that in consonance with the spirit of free labor they ought to be maintained in their right to do so. Certainly no action lies against plaintiff merely because he chose to employ them after they had left defendant’s service. And this is so, even though plaintiff and defendant’s former employees during their term of employment planned to- engage in a competitive business at the expiration thereof. Every person has the right to better his condition if he can lawfully do so. . . .
“The plaintiff and his present associates rendered valuable service to defendant while in its employ, and the fact that they chose to leave that employment and engage in a competitive business does not authorize a recovery by defendant of the compensation received by plaintiff for his services. Nor does the fact that by reason of these acts of plaintiff and his associates defendant may have suffered some injury give rise to an action for damages in defendant’s favor. They are damnum absque injuria.”
On the whole record we conclude that the decree of the chancellor is correct, and accordingly we affirm. | [
-76,
126,
-8,
-115,
-70,
98,
42,
-78,
-71,
97,
55,
83,
105,
99,
0,
119,
-9,
125,
85,
106,
21,
-77,
86,
97,
-37,
-77,
-39,
-59,
-75,
79,
-92,
86,
65,
32,
66,
-43,
-26,
-62,
-27,
28,
-122,
13,
41,
-20,
-39,
-124,
52,
-1,
-12,
75,
33,
-114,
-5,
40,
21,
-54,
109,
56,
107,
-85,
-48,
-24,
-85,
-123,
127,
23,
48,
4,
-104,
67,
-56,
78,
-102,
52,
-120,
-55,
122,
-90,
-62,
116,
43,
-71,
8,
32,
98,
32,
-31,
-89,
24,
28,
46,
-34,
-115,
-91,
-80,
104,
2,
65,
-66,
-100,
-14,
20,
-121,
-2,
-6,
-35,
29,
36,
15,
-113,
-122,
-93,
15,
-10,
-98,
3,
-25,
-117,
16,
81,
-49,
-93,
92,
71,
126,
31,
-122,
-62
] |
Smith, J.
W. G-. Black, who departed this life April 3, 1939, was survived by Ida B., his widow, who was his second wife, by whom he had no children, and by a son and daughter, born of his first marriage. In addition to his home, he owned two other pieces of city real estate. He had, at the time of his death, a cash balance in his bank checking account, of $613.86, and, in addition, he had $3,790.00 in cash in a safe deposit box, and this litigation involves those cash items.
Black had made a will naming a niece as executrix, but the will had been destroyed. For a time he kept his checking account at the bank in his individual name, but he had changed the account to the names of “Mr. and Mrs. W. G. Black,” and this account stood in their joint names at the time of Black’s death. It appears that Mrs. Black had made no deposits to the credit of this bank account, nor had she drawn any checks against it, but her authority to have done so is conceded.
On October 26, 1934, Black leased a safe deposit box from W. B. Worthen Company, Bankers, in his individual name as lessee, and on the lease this indorsement was written: “In the event of the death of Mr. Black, any one entering the box must be accompanied by Mrs. Mary E. Beaumont (a niece).” It was this niece who had been named as executrix in the destroyed will. Following this indorsement there was written: ‘ ‘ Change this to Mrs. Black. ’ ’ Lines were drawn through the name “Mrs. Black,” and there followed on the lease this notation: “After W. G. Black’s death he wants his wife, Daughter & Son to be present when box is opened 3/10/37 (Signed) W. G. BLACK.”
On March 12, 1937, a new lease was taken to the safe deposit box in the names of W. G. Black and Mrs. W. G. Black, and under this lease either lessee had the right of access to the box in the absence of the other. The lease signed by both Mr. and Mrs. Black contained a provision reading as follows: “In case the Lessees are joint tenants, including husband and wife, it is hereby declared that all property of any kind at any time heretofore or hereafter placed in said box is the joint property of both lessees and, upon the death of either, passes to the survivor subject to inheritance tax laws. Each of the lessees shall have full access to and control of the contents of said box without further authority. The lessor shall not be liable, in the event that property belonging to the joint tenants having access to said box be misappropriated by one or more of those having access. Each or all of the lessees may appoint a deputy to have access to or surrender the box.”
A certificate appended to this lease was signed 5/9/39 by Mrs. Black, which recites that the contents of the box had been safely withdrawn and that the box had been surrendered.
Shortly after the death- of Mr. Black, his widow, with the bank’s approval, checked out the bank balance and withdrew the currency from the box, and this was done although Black’s son and daughter had, after their father’s death, given the bank written notice not to permit that action. Thereafter the son and daughter filed this suit in the chancery court, praying that Mrs. Black be restrained from wasting or using this money, and an order was made by the chancery court requiring Mrs. Black to deposit in the registry of the court the $3,790 found in the box. She was permitted to retain the $613.86 bank deposit subject to the outcome of the litigation.
Both cash items are claimed by the widow as surviving tenant by the entirety, but the court found that an estate by the entirety had not been established by the testimony and dismissed the widow’s cross-complaint praying that relief as being without equity, from which decree is this appeal. The distribution of the estate was postponed subject to the outcome of the appeal.
In addition to the $3,790 in cash, Mr. Black had placed in the box certain tax deeds, tax receipts, abstracts of title, and other valuable papers. He had also placed in the box a letter, in his own writing, dated January 27, 1938, addressed “To My Wife, Daughter and Son.” He wrote letters both to his son and daughter advising them of this letter in the box and explaining why he had written it.
In this letter, found in the box, Mr. Black stated that he had “done away with the will” in which his niece had been named as executrix, “or any other documents or will heretofore made by me.” The remainder of the letter reads as follows:
“It is my wish that all three of you abide by the provisions of this letter, being my wishes and instructions, as I believe that all three of you are honest and loyal and will comply herewith as it is my sincere wishes to all concerned.
“I want all of my funeral expenses paid out of the estate. I give, devise and bequeath to my Avife. Ida B. Black, for her natural life, one third of my real property, except as hereinafter specified, it being understood that she is to have and possess for her residence during her natural life my residence at 2308 West 11th Street, Little Rock, Arkansas, providing that the said Ida B. Black remains single after my death, but should she remarry, it is my wish that the aforesaid property no longer remain as her place of abode unless same is agreeable to my son and daughter. The expense of upkeep of my real property is to be equally borne by my wife, son and daughter.
“I give and bequeath to my son, Victor R. Black, one-third interest in all my real property except as hereinafter specified.
“I give to my daughter, Laura Jean Kersey, one third of all of my real property except the 12th St. property, which should I not sell during my lifetime, I give her personally, independent of other property, there will be found in my vault box a deed, deeding the last named property to her.
“I give to my grandson, Victor Rukins Black, Jr., my watch, and my masonic emblems, Avhich are to be kept by Victor R. Black, Sr., who is to give my watch to the Victor R. Black, Jr., when he is 25 years of age and my masonic emblems to be given him when he is entitled to Avear them.
“It is my wish that out of my personal property, that my funeral expenses first be paid and the balance to be divided equally between my wife, Ida B. Black, daughter, Laura Jean. Kejjsey, and Victor R. Black, Sr., share and share,, alike.
‘ ‘ Signed W. Gh Black
“Witnesses:
“W. S. Rogers
“Opal H. Adams
“Sam J. Spitzberg, J. P.”
The letters to the son and daughter confirmed the disposition which Mr. Black asked to be made of his estate as stated in the letter copied above, it being explained in the letters to both son and daughter that it was desired to save the expense and to avoid the delay incident to an administration upon the estate. Mr. Black owed no debts at the time of his death, and his estate owed only his funeral expenses amounting to $353.
The undertaker who buried Mr. Black was permitted to testify that Mr. Black arranged with him for his funeral, whenever it should occur, and directed that all expenses incident to the funeral should not exceed $400. and Mr. Black stated to him that this item would be paid from a checking account which Mr. Black had at the Worthen bank. •<> .>•
When Mrs. Black found the' letter in the box, she filed it for probate as a will, but she has not relinquished her claim to the money as surviving tenant by the entirety, and the letter does not appear to have been probated as a will.
This case involves no question arising out of any contract between the husband and the wife, nor does it present any question of a trust relation. All the money was at one time the sole and separate property of the husband, and the question for decision is, What interest in the money has the husband given his wife? We think this question must be determined by ascertaining Mr. Black’s intention in opening and carrying his checking account in the names of himself or wife and in depositing the money in a safe deposit box which had been leased to him and his wife jointly.
That an .estate by the entirety may be created in personal property was expressly decided in the case of Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1; and that holding was reaffirmed in the case of Dichson v. Jonesboro Trust Co., 154 Ark. 155, 242 S. W. 57.
This Dickson case is cited and relied upon by both parties to this litigation; but each attempts to distinguish this case from that one under the facts.
There; a bank account, kept in the name of Dickson and .wife, was held to have created an estate by the entirety in the bank deposit, but that, when the husband, with the wife’s consent, had withdrawn portions of the deposit and had reduced the sums withdrawn to his separate possession by buying bonds and stamps and taking notes in his individual name for portions of the money withdrawn and loaned by him, with his wife’s consent, the estate did not exist in the assets thus acquired by the husband. It was said, that the estate by entirety was destroyed in the funds so withdrawn and reduced to separate possession of one of the tenants, but that the estate continued in so much of the bank account as had not been withdrawn and reduced to the separate possession of one of the tenants. That principle applies here as to the bank account. Deposits made by either spouse to this joint account would have become part of an estate by the entirety, and would have continued so to be unless and until one spouse or the other withdrew a portion of the deposit and reduced it to a separate possession, in which event the estate would have continued only in so much of the account as had not been withdrawn.
We conclude, therefore, that Mrs. Black owned the bank deposit as surviving tenant by the entirety.
But a different principle is applicable to the contents of the safe deposit box. Appellant insists that the recital contained in the contract of lease of the box, hereinabove quoted, is conclusive of the common ownership of the contents of the box. But we do not think this was the purpose or the effect of that provision of the lease. Its obvious purpose whs to protect the lessor, who could not knoAv what money or things of value Avould be placed in the box, nor by which of its tenants; nor Avould it know by Avhich of the tenants withdrawals Avere made. The lessees were, therefore, declared and agreed to be, as betAveen themselves and the lessor, joint tenants of the box and owners of its contents, so that it became and Avas unimportant, so far as the lessor was concerned, which tenant"-made deposits or withdrawals. Each tenant Avas given the right to deposit objects in the box and to remove them, and the lease contract has no relation to, or bearing upon, the question of owner ship as between the tenants themselves.
If it be said and conceded to be true that there was a presumption of ownership in favor of the surviving lessee of the box, this was a mere presumption, which would not prevail in the face of testimony to the contrary. The question of the presumption as ■ to OAvnership of property in a safe deposit box is the subject of the annotator’s note to the case of Re Estate of Alphonse Wohleber, Deceased, 320 Pa. St. Rep. 83, 181 Atl. 479, appearing in 101 A. L. R. 829.
In a headnote to this decision by the Supreme Court of Pennsylvania it is said that “The fact that a safe deposit box was leased in the names of both the husband and the wife, either or the survivor of them, is not of itself sufficient to establish a tenancy by the entireties, Avith right of survivorship, of securities found therein after the death of the husband, where there is evidence to shoAv that the securities were in fact owned by the husband.”
The annotator’s note upon this and other cases Avhich the author cites is:
“As against the contention that the taking of a safe deposit box in the name' of one ‘or’ another made the parties joint tenants, equally entitled to the property contained therein, and that upon the death of one the title vested in the other, the court in Mercantile Safe Deposit Co. v. Huntington (1895) 89 Hun 465, 35 N. Y. S. 390, said that all that could be deduced from the way in which the box was rented was that it was the intention of the parties that either might qualify, himself to have access to the safe; thát it did not, by any means, determine the ownership of the coiítbnts of the sáfe, of justify a conclusion that there was a joint ownership' in the property, contained therein, with a right,of survivorship. The court concludes : £'We think it’would be a proposition which wbuld somewhat astonish the renters of boxes in safe deposit companies'if it should be held that, when two combine to rent a safe, the presumption would be that there was a joint ownership in all the property contained therein, eveh though the names of the renters wére disjunctively‘Associated.’ This decision was cited in Gilkinson v. Third Ave. Rd. Co., (1900) 47 App. Div. 472, 63 N. Y. S. 792, as holding that the joint ownership of a box indicates nothing as to the ownership of the contents, and that all that could be inferred from the fact of ownership was ‘the intention of the parties that either might qualify herself to have access to the box.’ And see Re Brown, (1914) 86 Misc, 187, 149 N. Y. S. 138 (affirmed without opinion in (1915) 167 App. Div. 912, 151 N. Y. S. 1106, which is affirmed without opinion in (1916) 217 N. Y. 621, 111 N. E. 1085), to the same effect, the court refusing to recognize any right of • survivorship of the wife in securities that belonged to- her husband, when they were put into the box held by them as joint tentants with-right of access in each in case of the death of .either.” See, also, the annotated case of Cleveland Trust Co. v. Scobie, 114 Ohio St. 241, 151 N. E. 373, 48 A. L. R. 182.
We digress at this point to comment upon § 727a, Pope’s Digest, which appellant cites and relies upon.as vesting title in her to the bank deposit. This section reads as follows: “When a deposit shall have been made by any person in the name of such depositor and other person and in form to be' paid to either, or the survivor of them, such deposit thereupon and any additions thereto made' by either of such persons, upon the making thereof, shall become the property of such per sons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by anyone' of such joint tenants not to pay such deposit in accordance with the terms thereof.”
While we think and hold that the widow has title to the bank deposit as surviving tenant by the entirety, we do not ascribe her title to this section of the statute. It will be observed that the application of this statute is not limited to deposits of husband and wife, but applies to joint deposits of any two persons, and was, we think, passed for the protection of the bank in which the deposit was made. It permits the bank to pay out the deposit in accordance with the apparent intent of the depositors, and protects the bank in doing so; but such withdrawals of the deposit, or portions thereof, must be made “prior to the receipt by said bank of notice in writing signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof.” The statute effects no investiture of title as between the depositors themselves, but only relieves the bank of the responsibility and duty of making inquiry as to the respective interests of the .depositors in the deposit until one of the joint tenants shall give notice in writing that the joint ownership has beén dissolved.
We -think--the ’’letter found in the box, hereinabove copied, which, wa’s "hot addressed nor delivered to the bank, did not destroy the estate by the entirety in the deposit, as this estate, after its creation, could have been destroyed only by the act of one tenant or the other withdrawing the deposit, in whole or"in part, by checks upon it, which the bank would have been required to honor, and after the reduction of the money withdrawn to the personal and individual use of the tenant who had withdrawn it, as ivas done in the Dickson case, 'supra.
But an estate by the entirety was never created in the money placed in the safe deposit box. Any presumption that this money had become a joint estate is completely refuted by the letter indicating a contrary .intention. The money belonged to Mr. Black, and he had the right to place it in the box, to Avhich he had given his wife access as a joint lessee of the box, Avithout creating an estate by the entirety in the money. It Avas not placed there for that purpose, and such estate never existed in,the money in the box.
We concluded, therefore, that the court below Avas correct in holding that Mrs. Black did not acquire title to the money in the box as surviving tenant by the entirety; hut we are of opinion that she did so acquire title to the bank deposit.
As the distribution of this estate has been suspended pending this appeal the decree of the court below will he modified to the extent indicated, and the cause will he remanded for further proceedings not inconsistent with this opinion.
Baker, J., dissents from the holding that the AvidoAv owns the hank, deposit as surviving tenant by the entirety. | [
-79,
121,
-20,
92,
24,
-16,
10,
-102,
82,
-63,
-95,
83,
-39,
58,
84,
109,
113,
123,
113,
99,
-25,
-109,
23,
-94,
-46,
123,
123,
-107,
-74,
-51,
45,
-43,
4,
36,
-30,
-100,
114,
-126,
99,
124,
30,
0,
40,
-95,
125,
65,
51,
47,
-128,
13,
-59,
-33,
-77,
44,
115,
85,
104,
46,
-1,
-86,
-14,
-79,
-85,
-60,
-1,
31,
49,
86,
-80,
-51,
72,
8,
-104,
85,
-128,
104,
49,
60,
-106,
116,
38,
15,
44,
106,
98,
82,
-91,
-5,
-80,
-102,
-122,
-90,
-97,
-89,
-97,
124,
1,
58,
-66,
25,
127,
64,
54,
-36,
-18,
29,
28,
40,
21,
-113,
-42,
-77,
-99,
-87,
-88,
27,
-1,
3,
32,
113,
-53,
-86,
77,
71,
121,
-111,
-121,
-16
] |
Mehaeey, J.
This action was instituted in the justice of the peace court in Howard county, the appellee filing a complaint alleging that he and Floyd Tolleson are residents of Howard county, and that Sutton & Collier is a partnership dealing in livestock at Hope, Hempstead county, Arkansas; that Floyd Tolleson was the authorized agent of Sutton & Collier, buying livestock for them and drawing drafts on them in payment thereof; that on October 25, 1937, the defendants became indebted to the plaintiff in the sum of $160, evidenced by draft on the First National Bank and due on demand; that said draft was duly presented for payment; payment refused by the bank, and the draft returned to plaintiff with the notation thereon: “No sufficient funds. ’’ Payment has often been demanded of defendants, and they have refused to pay; that the indebtedness of $160 is long past due, is just, correct and wholly unpaid, and that he is entitled to a judgment against the defendants and each of them for $160 with interest.
Tolleson and Sutton & Collier were made defendants. There was a judgment in the justice of the peace court in favor of Kesterson, and an appeal prosecuted to the circuit court by Sutton & Collier. Sutton & Collier is a firm composed of C. H. .Sutton and J. A. Collier. Sutton & Collier operate a livestock auction sales barn at Hope, Arkansas, at which livestock is sold every Tuesday. Sutton & Collier charge a commission for the sale of livestock to the individual or person selling the stock.
There was a verdict and judgment for the appellee in the sum of $160, with interest. The case is here on appeal.
The appellee, Kesterson, and Floyd Tolleson, are residents of Howard county, Arkansas, and Sutton & Collier is a firm composed of O. H. Sutton and J. A. Collier, dealing in livestock at Hope, Hempstead county, Arkansas. Floyd Tolleson was the agent of Sutton & Collier for buying livestock and drawing drafts on them to pay for the stock bought. In October, 1937, Tolleson bought eight head of cattle from the appellee for Sutton & Collier and gave them a draft for $160'. This draft was not paid. The cattle were shipped to Sutton & Collier, and they sold them and received the money.
■ It is first contended by appellants that instruction No. 1 given by the court was erroneous. They object, because it states that Tolleson was an authorized agent, which they deny, but even then that it would not necessarily follow that he would be authorized to issue a draft or sign the name of Sutton & Collier to the draft, and that it would not necessarily .follow that he had unlimited authority to draw on Sutton & Collier by means of draft, and that said draft would be paid. They then cite numbers of authorities supporting the proposition that an authorized agent of a principal does not necessarily have the authority to indorse checks or draw drafts.
C. H. -Sutton, one of appellants, testified that he was a partner with Mr. Collier, and that they were engaged in the stock business at Hope; that they had an agreement with Mr. Tolleson that he would buy cattle for them and draw on them for the money; that they had an understanding with Mr. Tolleson that if he bought and drew a draft on them, brought the cattle, and they were worth the money, appellants would pay the draft.
It, therefore, appears from the testimony of the appellants that Tolleson ivas their agent to buy cattle, and was authorized to draw drafts. Other evidence shows that they not only authorized him to draw drafts, but went with him to the bank, got a book of drafts, and showed him how to make them out.
The instruction given by the court was not erroneous, as contended by appellants, but appellants ’ own testimony shows that it was proper.
It is then contended that the court erred in its refusal to instruct a verdict for appellants because, under § 10284 of Pope’s Digest defining a bill of exchange, the drawee is not liable, unless he accepts the saihe, and it is argued that Sutton & Collier did not accept this.
This suit was not based on the draft. The complaint alleged the agency of Tolleson, the purchase of .the cattle, and the drawing of the draft and the refusal of appellants to pay.
The undisputed evidence, however, shows that the cattle were purchased by appellants ’ agent, and that appellants actually received the cattle, sold them, and received pay for them, and that they have never paid the appellee. Therefore, if the appellants had not been liable on the draft, still, since the undisputed proof shows that they received the cattle and sold them and received the money for them, they would be liablé to Kesterson for the amount.
We find no error, and the .judgment is affirmed. | [
116,
-20,
48,
108,
8,
-32,
42,
10,
82,
-87,
102,
83,
-23,
84,
0,
121,
-29,
29,
101,
105,
-59,
-77,
1,
114,
67,
-45,
-79,
-123,
-71,
77,
-92,
-41,
93,
32,
-54,
93,
-126,
-94,
-123,
-104,
78,
1,
-103,
-28,
-35,
-64,
49,
43,
22,
75,
33,
15,
-6,
38,
118,
111,
109,
46,
107,
43,
-64,
-13,
-110,
15,
47,
21,
-125,
-26,
-104,
1,
88,
110,
-112,
49,
1,
-8,
122,
54,
-110,
84,
11,
13,
8,
38,
98,
-96,
77,
-19,
-96,
-116,
46,
62,
-99,
-89,
-80,
72,
19,
47,
-74,
-99,
122,
22,
6,
126,
-31,
-99,
-39,
104,
-124,
-50,
-108,
-93,
15,
100,
-104,
27,
-13,
71,
52,
117,
-115,
-30,
89,
71,
54,
-101,
-118,
-11
] |
Humphreys, J.
Cases numbers 5758 and 5839,'bear-ing the same style and pending in this court, are consolidated for the reason that case number 5839 is a continuation of case number 5758. Case number 5758 is an appeal from a judgment for $5,000 in favor of appellee against appellant in the circuit court of Lawrence county, eastern district, for damages on account of personal injuries received by appellee through the alleged negligence of C. R. Cutrell who was appellant’s employee and foreman, in backing a large caterpillar used in construction work on highway 39, between Rector and Pig*gott, so as to catch appellee’s left foot between the cleats of the caterpillar and a crosstie which appellee and a co-laborer were engaged in pushing or shoving under said cleats so as to prevent the caterpillar from spinning* when power was applied, mashing off his “big toe” and mashing three others so that they had to be amputated.
In this particular case a reversal of the judgment is sought upon two grounds, namely:
(1) That the court erred in giving its oral instruction No. 10 over the objections and exceptions of the appellant, and
(2) The verdict was grossly excessive and was the result of prejudice or passion engendered by the remarks of counsel for appellee in. his closing argument to the jury.
Case number 5839 is in effect a second appeal from the judgment rendered in case number 5758 on the ground of newly discovered evidence after the first motion for a new trial in case number 5758 was filed and overruled.
The second motion for a new trial alleged that one Clyde Robins did attempt and did talk to a number of the jurors who served in the case, and did offer said jurors a bribe to return a verdict for the appellee; that the attempt to fix the jury in this cause apparently resulted in the jury being prejudiced in favor of appellee and destroyed the verity of- the verdict; that the newly discovered evidence was not discovered by appellant for some time after the case had been tried and could not be brought to the court’s attention previous to the time the motion was filed; that the conduct of the parties on behalf of the appellee in this case constituted a fraud on the court and a fraud on appellant and unless the verdict of the jury rendered thereon be set aside by the court, the rights of this appellant will be destroyed. Wherefore, appellant moves the court to set aside the verdict of the jury herein and vacate the judgment on said verdict and grant appellant a new trial.
Appellee filed a response denying- all the allegations in the motion and praying that the motion for a new trial be denied.
The motion and response thereto were supported by affidavits attached and the case was heard upon the attached affidavits which .resulted in the following finding by the court:
“I don’t think, gentlemen, that there is sufficient evidence here to cause any reflection on the verdict of the jury. The attorneys cannot be criticized for trying to determine the kind and character of men that are going to serve on the juries where they have cases to try. 1 had to make investigations, I know, and I think all the attorneys do that, they try to find the prejudices, feelings and everything towards the parties involved in criminal and civil cases. I find no proof here to show the court substantially where the court could find-that this jury has been corrupted. Let the motion for new trial be overruled. ’ ’
The affidavit of Clyde Robins was to the effect that he offered certain jurors who served upon the jury in the case a bribe to return a verdict for the appellee. He was corroborated by two members of the regular jury panel who sat in the case to the extent that he had approached and attempted to bribe them to return a verdict for appellee. Outside of this corroboration practically every statement made by Clyde Robins in his affidavit was contradicted .and it was shown that he was not worthy of belief; but, notwithstanding his bad character, it is not denied that he did approach at least two members of the jury that tried the case and offered to bribe them to return a verdict for appellee. When these jurors were chosen to sit in the case they did not disclose to the court that Clyde Robins had approached and offered to bribe them. They do say they were not influenced, but in view of the fact that they qualified to sit upon the jury they should have disclosed to the court that an attempt had been made to bribe them and should have told the court who offered to bribe them. They qualified on the theory that they had not formed any opinion and that they had not been talked to by anyone relative to the case, whereas they admitted that Clyde Robins had not only talked with them about the case, but had offered them a bribe to decide the case in favor of appellee. The fact that they did not disclose to the court that an attempt was made to bribe them in favor of appellee is a silent circumstance that they were not impartial. After withholding the information from the court that an attempt had been made to bribe them, it was not the proper thing for them to qualify as jurors. They should have disclosed this fact to the court.
Clyde Robins, by his own admission, is ,a jury fixer to the extent of actually offering to buy certain jurors to return a verdict in this particular case as well as in other cases. According to his own admission, he was not only guilty of reprehensible conduct, but he violated the law which prohibits one from bribing juries or attempting to do.so. As this admission was made in open court we presume he has been or will • be prosecuted, as the law provides, under § 3248 of Pope’s Digest. •
The affidavits filed in this case on the second motion for a new trial contain many charges, denials, counter-charges and denials, but from among all conflicts we find it undisputed that Clyde Robins, a self-confessed bribe giver and jury fixer, offered to bribe certain members of the jury who tried this case and that the jurors who qualified and sat in the case did not disclose the attempt to bribe them when qualifying themselves as jurors. It is true that the undisputed statements in the affidavits do not connect the appellee or his attorneys with the conduct, of Clyde Robins, but the fact remains that appellee obtained a judgment against appellant for $5,000 from certain jurors whom Clyde Robins had attempted to bribe. It may be that appellee was entitled to a ver diet and for the amount returned, but when verdicts are obtained from juries by any litigant, it should come from a jury whose members have not been tampered with. Jury trials are vouchsafed and preserved by the constitution of the state in cases at law. The jury system is a great institution and should hold itself aloof from any and all corrupt influences. Members of juries owe it to themselves and to the great system to preserve the integrity of their verdicts. If there is substantial evidence in the case to support the verdict of the jury this court will not try a case de novo, but will accept and receive the verdict of the jury as final on issues involving not only property rights, but issues involving life and death. The only way to preserve the integrity .of the verdicts of juries and keep the stream of justice pure is to set aside verdicts returned by juries which have been, tampered with or attempted to lie tampered with. It is stated in 64 C. J. 1013, in the first part of § 790, that:' “An attempt of a third person to bribe jurors will result in a reversal irrespective of whether or not the attempt was successful.”
We think this a most wise rule and adopt it as the rule in this state irrespective of whether such third persons are interested in the case or whether their attempts are sanctioned by the parties litigant or their attorneys. This court will not affirm a judgment on a verdict returned by a jury which has been tampered with or unduly influenced by parties litigant or by third persons. We regard this rule as necessary to inspire the confidence of the-body politic in the jury system and in order to preserve the integrity of verdicts rendered by juries. The trial court should have sustained the second motion for a new trial and granted same. In view of this conclusion it is unnecessary to comment on the two alleged errors in case number 5758 urged by appellant for a reversal of the judgment as instruction number 10 may not again be given in its present form to the jury, and since the amount recovered, if any, in a new trial of the cause may not be the same as that recovered in this case.
The cause will be reversed and remanded for a new trial on account of the failure of the trial court to grant a new trial of the canse on the second motion filed by appellant.
Grieein Smith, C. J., concurs in part. | [
-14,
100,
-8,
124,
-66,
-32,
42,
-98,
9,
1,
-73,
-45,
-17,
-57,
4,
41,
-17,
121,
84,
107,
109,
-77,
75,
99,
-126,
-77,
-19,
-59,
-75,
74,
-10,
-75,
77,
112,
66,
-123,
-58,
0,
-51,
94,
-116,
8,
-71,
-56,
-103,
-62,
-80,
-68,
54,
7,
53,
-82,
-1,
106,
60,
-53,
-19,
40,
121,
43,
65,
-40,
-94,
5,
62,
0,
-93,
5,
-98,
-93,
-40,
47,
-112,
53,
16,
-24,
115,
-106,
-62,
116,
75,
-103,
8,
98,
98,
3,
13,
15,
-72,
-72,
14,
-10,
-115,
-90,
-104,
8,
99,
1,
-98,
29,
116,
22,
5,
126,
-4,
77,
89,
124,
-121,
-113,
-44,
-109,
-113,
68,
-34,
-109,
-21,
29,
18,
117,
-97,
-30,
92,
7,
25,
-101,
-121,
-77
] |
Grippin Smith, C. J.
Title to 160 acres of land described as the south half of the southeast quarter of section twenty-two, and the north half of the northeast quarter of section twenty-seven, township eighteen south, range seventeen west, is involved in this suit.
Statement op the Case
Prior to his death, intestate, Frank Sheppard, Sr., was the owner of several hundred acres of land in Union county, including that described in the preceding paragraph. The senior Sheppard had conveyed such lands to his son, Frank, but the deed had been lost or destroyed.
April 27, 1916, Jane Sheppard, widow of Frank, Sr., and Georgiana Sheppard and Lilly Sheppard Cooksey (the last two, with the exception of the son, Frank, Jr., being the remaining surviving heirs-at-law of Frank Sheppard, Sr.) conveyed the lands to Frank, Jr.
The record is .voluminous. The controversies were elaborately presented to the chancellor; and, as the result discloses, the latter made an exhaustive study of the conflicting contentions, and a finding of facts was based thereon.
The court found that Frank, Jr., married Geneva Braxton January 26,1913, and that to such marriage two children were born: Lowell Harrison Sheppard (December 14, 1913), and Stephen Douglas Sheppard ( June 9, 1917). For several years after 1913, Frank, Jr., with his wife, Geneva, occupied said lands as Frank’s homestead.
Frank (Junior) died intestate in France April 9, 1918, seized and possessed of such lands, then occupied by his family as a homestead. He left surviving, as his heirs-at-law, Lowell Harrison Sheppard and Stephen Douglas Sheppard. Geneva Braxton Sheppard also survived him.
Frank’s widow and minor children continued to occupy the lands in question as their homestead until some time during 1935. Taxes were regularly paid thereon until 1930, at which time they became delinquent. In due course the property forfeited and was certified to the state for the unpaid taxes of 1930. The facts so found by the trial court are sustained by a preponderance of the evidence.
The state, by deed No. 42077 dated November 23, 1934, conveyed its interest in the lands to S. B. (Pete) McCall. The deed was recorded in Union county.
According to evidence adduced, and under findings of the chancellor, title to the 160 acres, treated as separate 80’s, is deraigned as follows:
North Half of the Northeast Quarter of Section 27: By quitclaim deed of February 9, 1935, McCall conveyed to Geneva Sheppard Miller, formerly Geneva Braxton Sheppard, widow of Frank Sheppard, Jr.
December 23, 1935, Geneva Sheppard Miller and Lowell Harrison Sheppard, by warranty deed, reconveyed to McCall the northwest quarter of the northeast quarter of said section.
October 11, 1935, Lowell Harrison Sheppard, by quitclaim deed, conveyed all his right, title and interest in the north half of the northeast quarter of section 27, the conveyance being to his mother, Geneva Sheppard Miller. At the time this instrument was executed, Lowell Harrison Sheppard was of age.
.June 11, 1936, Geneva Sheppard Miller executed to W. T. McKinnon, trustee, deed to one-half of the mineral rights of the northeast quarter of the northeast quarter of section 27.
Juné 15, 1926/ Geneva Sheppard Miller, as guardian of Lowell Harrison Sheppard, and in her individual right, executed to Joe Zeppa, trustee, a warranty deed to an undivided one-fourth interest in the mineral rights of the north half of the northeast quarter. (By mesne conveyances the title so acquired, whatever it may have been, subsequently vested in the defendant, Arkansas Fuel Oil Company).
July 8, 1926, Geneva Sheppard Miller, as guardian of Lowell Harrison Sheppard, by warranty deed conveyed an undivided one-fourth interest in the mineral rights of the north half of the northeast quarter, W. L. Anderson taking thereunder. (By mesne conveyances, two-twelfths of the title so acquired, whatever it may have been, vested in H. R. Dickerson and the heirs of L. T. Campbell, defendants herein. The one-twelfth interest of Anderson was later.subjected to an oil and gas lease in favor of Delta Drilling Company, dated April 1,1937.)
September 24, 1937, Geneva- Sheppard Miller executed to W. L. Anderson quitclaim deed covering an undivided one-fourth interest in the mineral rights of said 80-acre tract.
April 6, 1937, McCall, by warranty deed, conveyed to Wilmer Davis the south half of the northwest quarter of the northeast quarter, and to Aimer Davis five acres off the south side of the north half of the northwest quarter of the northeast quarter.
April 14, 1937, McCall conveyed to Moddie and Willie Steward the north fifteen acres of the north half of the northwest quarter of the northeast quarter of section 27. (In each of the deeds so executed by McCall, he attempted to reserve certain mineral rights.)
South Half of the Southeast Quarter of Section 22: February 9, 1935, Geneva Sheppard Miller and Lowell Harrison Sheppard, by warranty deed, conveyed to S. B. McCall the south half of the southeast quarter of section 22. (At that time Lowell Harrison Sheppard was of age.)
Aprii 26,1936, McCall executed to Sun Oil Company an oil and gas lease covering such lands.
March 23, 1937, McCall conveyed to G. W. James a seven-sixteenth interest in the mineral rights. He also conveyed an undivided one-sixteenth interest in the mineral rights to Clyde E. Byrd.
Thereafter, by mesne conveyances, a one-sixty-fourth interest of the seven-sixteenths interest conveyed by McCall to James passed to Samuel H. Eby. Eight sixty-fourths went to C. W. Lane and C. W. Lane Company, Inc.; eight sixty-fourths passed to W. H. North, and eleven sixty-fourths went to the heirs of George. W. James. The one-sixteenth interest conveyed to Byrd passed by mesne conveyances to Boy Dickenson and Leona E. Wilson, two sixty-fourths to each in separate transactions. (McCall also executed' conveyances of oil and mineral rights to J. H. Alphin and to C. M. Paynes, trustee; but, as indicated by the decree, these deeds were subsequent in date to those executed by McCall to James and Byrd. The decree, however, states that settlement of the rights, if any, of Alphin and Paynes, trustee, under these deeds, was effectuated out of court prior to the decree.)
April 14, 1937, McCall executed to Moddie and Willie Steward a warranty deed to this 80-acre tract, but attempted to reserve certain oil and mineral rights therein.
August 23,1937, Stephen Douglas Sheppard, a minor, by Jane Sheppard as next friend, filed his complaint in which Geneva. Sheppard Miller and Lowell Harrison Sheppard were named defendants, along with others who were asserting adverse claims. By the suit the plaintiff sought to recover his homestead estate and his estate of inheritance in the lands identified, supra. Geneva Sheppard Miller and Lowell Harrison Sheppard answered. They also filed a cross-complaint against their co-defendants. In the cross-complaint it was alleged, in substance, that the deeds executed by them to McCall were procured by fraud induced by misrepresentations. They sought to recover, as against their codefendants, their homestead rights and the estate of inheritance.
Answers of all interested parties were filed, both as to the original complaint of Stephen Douglas Sheppard and the cross-complaint of Geneva Sheppard Miller and Lowell Harrison Sheppard. Moddie Steward and Willie Steward answered, admitting the title of Frank Sheppard and forfeiture of the lands to the state. They admitted that McCall conveyed to them the south half of the southeast quarter of section 22 and fifteen acres of the northwest quarter of the northeast quarter of section 27, hut denied that McCall reserved any mineral rights in the lands. By way of cross-complaint they set up various conveyances and asked for the cancellation thereof, and that title be quieted in themselves.
Wilmer Davis, who had acquired a deed from McCall to the south half of the northwest quarter of the northeast quarter of section 27, adopted the answer and cross-complaint of Moddie and Willie Steward. Aimer Davis, who had acquired from McCall a deed to five acres off the south side of the northwest quarter of the northeast quarter of section 27, filed answer and cross-complaint identical with that of Wilmer Davis.
On issues so joined, after introduction of a mass of testimony and documentary evidence, a great part of which was oral, the chancellor, after an exhaustive presentation, made findings of facts and entered final decree.
The Decree. — In addition to the chancellor’s findings heretofore recited, there is a special finding that McCall did not claim any further interest in the lands; that Stephen Douglas Sheppard was a legitimate son of Frank Sheppard, Jr.; that there was no evidence in support of the allegations- of Geneva Sheppard Miller and Lowell Harrison Sheppard that the deeds executed by them to McCall were procured by fraud or misrepresentation, and that such deeds should be sustained.
Oh the findings so made the chancellor held as a matter of law that Stephen Douglas Sheppard was entitled to recover the 160-acre tract of land as his homestead,' but that such homestead rights ceased June 9, 1938. The court further held that Stephen Douglas Sheppard was entitled to recover “. . . his estate by inheritance to the extent of an undivided one-half interest therein. ’ ’ This interest was confirmed and quieted in Stephen Douglas Sheppard as against each named defendant. The cross-complaints of Geneva Sheppard Mil ler and Lowell Harrison Sheppard were dismissed for want of equity. Likewise, the cross-complaints of Mod-die and Willie Steward, and of Wilmer and Aimer Davis, were dismissed for want of equity.
The chancellor then found, and so declared, that the interest of Stephen Douglas Sheppard, as quieted in him, did not conflict with the oil, gas, and other mineral rights claimed by Zeppa, trustee, or with the interests claimed by Dickenson, Anderson, Dickerson, the heirs of L. T. Campbell, Arkansas Fuel Oil Company, Delta Drilling Company, George W. James, Samuel H. Eby, Leona E. Wilson, C. W. Lane, C. W. Lane Company, Inc., or W. H. North, trustee. The complaint was dismissed insofar as it related to the oil, gas, and other mineral rights in the lands, as claimed by the defendants. The court further found, and so declared, that as to the lands attempted to be conveyed to Aimer Davis, Wilmer Davis, and Moddie Steward and Willie Steward, Stephen Douglas Sheppard should recover the mineral rights thereof, and should also recover an undivided one-half interest in the surface rights.
As to the north half of the northeast quarter of section 27, the effect of the decree, as we construe it, is to quiet title in the oil, gas, and other mineral rights in Stephen Douglas Sheppard, and in the several defendant claimants, as follows:
Stephen Douglas Sheppard, an undivided one-half interest; Arkansas Fuel Oil Company, an undivided one-fourth interest; widow and heirs of L. T. Campbell, an undivided one-twelfth interest; H. B. Dickerson, an undivided one-twelfth interest; W. L. Anderson (subject to oil and gas lease executed by him to Delta Drilling Com- • pany), an undivided one-twelfth interest.
As to the south half of the southeast quarter of section 22, the construction we place upon the decree is that it quiets title in the oil, gas, and other mineral rights as follows:
Stephen Douglas Sheppard, an undivided one-half interest; Samuel H.' Eby, an undivided one-sixty-fourth interest; G. W. James, an undivided eleven-sixty-fourths interest; W. H. North, trustee, an undivided eight-sixty- fourths interest; C. W. Lane and C. W. Lane Company, Inc., an undivided eight-sixty-fourths interest; Roy Dickerson, an undivided two-sixty-fourths interest, and to Leona E. Wilson, an.undivided two-sixty-fourths interest.
Rights of Sun Oil Company under its lease from McCall, were properly preserved in the decree.
From the decree so entered, Stephen Douglas Sheppard appealed. He “. . . seeks a reversal . . . as to those oil, gas, and mineral rights awarded defendants, and as to the interests so found.”
Seven alleged errors are assigned, all of which relate to action of the court in sustaining validity of the deeds executed by Geneva Sheppard Miller as guardian of Lowell Harrison Sheppard, and also executed in her individual'capacity; also as to the deeds executed by Lowell Harrison Sheppard. Principal contention under all of the assignments is that the court erred in sustaining the muniments of title of the several defendants as against the rights contended for, particularly those of Stephen Douglas Sheppard.
Opinion
On the death of Frank Sheppard, Junior (intestate), title to the lands vested in his widow, Geneva, and in the minor children, Lowell Harrison Sheppard and Stephen Douglas Sheppard, under applicable laws of descent. The widow had a life estate. The minors had two separate and essentially distinct estates: the homestead estate, and the estate of inheritance. These estates are incapable of merger. Shapard v. Mixon, 122 Ark. 530, 184 S. W. 399; Kessinger v. Wilson, 53 Ark, 400, 14 S. W. 96, 22 Am. St. Rep. 220.
When Lowell Harrison Sheppard reached his majority, his homestead interest ceased. The widow (Geneva), by alienation to McCall, abandoned her homestead interest. Therefore, the homestead estate in its entirety vested in Stephen Douglas Sheppard until he became of age. In addition, he had an undivided one-half interest — his estate of inheritance — in the whole of the lands. This, as we understand the decree, was quieted in him, without restriction. To this he was entitled, but to ho more. Therefore, irrespective of any attempted alienation by Geneva Sheppard Miller and Lowell Harrison Sheppard by virtue of their deeds, and regardless of the probate court proceedings and conveyances authorized thereunder, the interests of Stephen Douglas Sheppard remained, and they were preserved intact by the chancellor.
Our construction of the decree is that Stephen Douglas Sheppard was given his homestead interest, and an undivided one-half interest in fee in the lands as his estate of inheritance, the latter carrying with it as of necessity an undivided interest in all of the oil, gas, and •minerals pertaining to the lands. This being true, Stephen Douglas Sheppard has no cause for complaint.
That the conclusion reached by the chancellor in this respect is correct is evident when the title is deraigned. Regardless of the tax forfeiture, and irrespective of the probate court proceedings had prior to the date when Lowell Harrison Sheppard reached his majority, his homestead estate in the lands ceased at that time. But, conceding that the probate court proceedings did not divest his interest, his estate of inheritance became alienable, subject, of course, to the rights of the minor, Stephen Douglas Sheppard. When, on February 9, 1935, Lowell Harrison Sheppard (being then of age) executed and delivered to McCall a warranty deed conveying the south half of the southeast quarter of section 22, he there(in the absence of fraud) disposed of all interest he then had — his estate of inheritance in the 80-acre tract.
Likewise, under the quitclaim deed executed by Lowell Harrison Sheppard to his mother October 11, 1935, he legally disposed of his estate of inheritance in the north half of the northeast quarter of section 27. And again, by warranty deed of December 23, 1935, he joined his mother in conveying to McCall, by warranty deed, the northwest quarter of the northeast quarter of section 27. Under these deeds the grantors divested themselves of all interest in the whole of the tract involved in this litigation, which passed by mesne conveyances to certain of the named defendants. Certainly Stephen Douglas Sheppard is without cause for complaint insofar as these several conveyances are held not to conflict with his admitted interest. It follows that the decree of the chancellor quieting in Stephen Douglas Sheppard an undivided one-half interest in the lands, as well as in the oil, gas, and mineral rights pertaining thereto, and in holding that the rights of the other named defendants were not in conflict with the title so quieted in him, was correct, and it is affirmed.
The chancellor dismissed the cross-complaints of Lowell Harrison Sheppard and Geneva Sheppard Miller, and of H. L. Edwards, trustee, their last-named grantee, against all named defendants. We think this, also, was correct.
Lowell Harrison Sheppard became of lawful age in December, 1934. February 9, 1935, as heretofore shown, he conveyed to McCall his undivided interest in the south half of the southeast quarter of section 22, a warranty deed having been executed. October 11, 1935, he conveyed to his mother an undivided interest in the north half of the northeast quarter of section 27. December 12,1935, he joined his mother in a warranty deed, under which he conveyed to McCall the northwest quarter of the northeast quarter of section 27. He then waited until January 6, 1938 — a-period of more than three years after attaining his majority — before attacking any of these deeds. He now contends that the deeds executed to McCall were procured by fraud and misrepresentation. The chancellor found otherwise. Such finding is not contrary to a preponderance of the evidence.
Limitation statutes are not involved. As to the right to attack the probate court proceedings, we are of the opinion that the question there presented is not one of limitation. By the deed to his mother, Lowell Harrison Sheppard thereby quieted the title in her grantees, which she as-his guardian undertook to dispose of — that is, the mineral rights in the lands in section 27. He was of full age when he executed the deeds to McCall and to his mother. To now allow him to set these deeds aside and to question the titles acquired by the several defendants from his grantees, McCall and his mother, would not comport with equity. Therefore, the decree in respect of these transactions is correct. Validity or invalidity of the probate court proceedings is not involved for any purpose other than to afford a predicate for ratification thereof by Lowell Harrison Sheppard.
As to the Appeal of Geneva Sheppard Miller. — The finding of the chancellor that the evidence did not show fraud or misrepresentation by McCall in procurement of the deeds from Geneva Sheppard Miller and Lowell Harrison Sheppard effectually disposes of any claim' by Geneva Sheppard Miller to the south half of the southeast quarter of section 22, and to the northwest quarter of the northeast quarter of section 27. As to the mineral rights in the northeast quarter of the northeast quarter of section 27, the appellant (Geneva) conveyed an undivided one-fourth interest to Zeppa by warranty deed dated June 15, 1926. In other words, in the deed which she executed as guardian on behalf of Lowell Harrison Sheppard, she expressly warranted the title. Conceding that she, personally, had nothing at that time but a life estate, and irrespective of validity of the probate court proceedings, the fact remains that when she subsequently acquired the interest of Lowell Harrison Sheppard in the north half of the northeast quarter of section 27, by quitclaim deed dated October 11, 1935, such title as she had previously attempted to convey and warrant to Zeppa passed to him and to his grantees. Section 1798 of Pope’s Digest. At a later date (September 24, 1937) she 'executed to W. L. Anderson a quitclaim deed to an undivided one-fourth interest in the oil, gas, and mineral rights in the whole of the 80-acre tract. It follows that her cross-complaint against Zeppa and Anderson and their grantees, and as against McCall and his grantees, was properly dismissed.
Cross-Appeal of Wilmer Davis, Aimer Davis, Mod-die Steward and Willie Steward. — McCall acquired the title of Geneva Sheppard Miller and Lowell Harrison Sheppard to the northwest quarter of the northeast quarter of section 27. He conveyed to Wilmer Davis the south 20 acres of this tract. To Aimer Davis he conveyed the south five acres of the north half thereof, and to Moddie Steward and Willie Steward he conveyed the north fifteen acres of the north half of the tract. The deed executed by McCall to Wilmer Davis contains this provision: “Grantor hereby reserves to himself, his heirs, assigns and successors, an one-fourth of the mineral rights upon and under said land. ’ ’ The same provision is found in the deed executed by McCall to Aimer Davis.
McCall also acquired from Geneva Sheppard Miller and Lowell Harrison Sheppard, by warranty deed, Lowell’s undivided one-half interest in the south half of the southeast quarter of section 22, the surface of which he subsequently attempted to convey to Moddie Steward and Willie Steward. In the deed executed by him to the Stewards there is a reservation in the following form:
“All mineral rights in, upon and under the southeast quarter of the southeast quarter of section 22, and also mineral rights in, upon and under the north fifteen acres of the northwest quarter of the northeast quarter of section 27. ' Also all mineral rights in, upon and under the southwest quarter of the southeast quarter of section 22, save and except one-eighth of one-eighth royalty [thereon], which is hereby conveyed to said Stewards.”
We first dispose of the Steward appeal. As to the south half of the southeast quarter of section 22, McCall, under his deed from Geneva Sheppard Miller and Lowell Harrison Sheppard (February 9, 1935) acquired Lowell’s estate of inheritance — an undivided one-half interest in this tract. On March 23, 1937, he conveyed to James a seven-sixteenths interest in the mineral rights therein, and to Byrd an undivided one-sixteenth interest. It follows that on April 14, 1937 — the date- of his deed to the Stewards — he had previously disposed of the gas, oil, and mineral rights acquired from Lowell Harrison Sheppard. So, regardless of the validity of the reservation of the oil, gas, and mineral rights set out in the Steward deed, no title to the oil, gas, or mineral rights could have passed to the Stewards under the deed.
As to the oil, gas, and mineral rights pertaining to the 15-acre tract conveyed by McCall to the Stewards, it appears that McCall acquired the undivided one-half interest o£ Lowell Harrison Sheppard under a deed executed to him by Lowell and his mother, December 23, 1935. Whether he took title subject to the rights of Anderson and Zeppa under the guardian’s deed is immaterial for the reason that the deed executed to the Stewards expressly .reserved “. . . the mineral rights in, upon and under the north fifteen acres of the northwest quarter of .the northeast quarter of section 27.” We hold that this reservation was effective to withhold oil, gas, and other minerals from the conveyance.
As to the oil, gas, and mineral rights claimed by Wilmer- Davis in the south twenty acres of this tract, and by Aimer Davis to the south five acres of the north half thereof: McCall acquired the undivided one-half interest of Lowell Harrison Sheppard by warranty deed executed by Lowell and his mother, December 23, 1935 —this, provided the probate court proceedings under which Zeppa and Anderson claimed be held invalid. We do not deem it necessary that the validity or invalidity of the probate proceedings be determined in order to dispose of the appeal of Wilmer and Aimer Davis, for the statement is made by their counsel that ‘ ‘ Cross-appellants raise no question concerning their validity.” (The term ‘ ‘ their ’ ’ relates to the conveyances of the guardian to Zeppa and Anderson.) So, admitting" the validity of the conveyances by the guardian to Zeppa, trustee, and to Anderson, the undivided one-half interest of Lowell therein is now vested in the named defendants in whom the court quieted title. By the same process ■ of reasoning, McCall acquired no interest in the gas, oil, and mineral rights by virtue of his deed from Lowell Harrison Sheppard and Geneva Sheppard Miller, and of course could not convey an interest therein to Wilmer and Aimer Davis under the deeds executed by him — and this, too, irrespective of the reservation of mineral rights contained in said deeds.
A great deal of time has been spent in exploring the abstract of the record, and in resort to the transcript, in an effort to deraign the complex and complicated title to the lands involved in this appeal. The record is replete with duplications, and an enormous mass of evidence im material to the issues appears. The abstract of the record, as well as the transcript, contains innumerable errors as to dates and filings. As a consequence, there devolved upon the court the extraordinary duty of designing titles in order that the respective rights and diverse interests of the many clients be ascertained. In oases of this kind the trial court renders great service to the appellate tribunal in reducing to writing and making a part of the record the essential findings of facts, and the conclusions of law. A written opinion by the trial court would be helpful.
The decree is in all respects affirmed. | [
-16,
110,
-44,
60,
-120,
-96,
-102,
-102,
67,
-94,
-31,
119,
-51,
-62,
5,
41,
98,
13,
81,
107,
-25,
-77,
118,
-125,
80,
-13,
-13,
-49,
-79,
93,
-10,
-41,
8,
48,
-54,
93,
66,
32,
-57,
80,
-114,
68,
-119,
125,
93,
80,
60,
111,
82,
15,
17,
47,
-78,
46,
61,
97,
73,
40,
-53,
40,
65,
-8,
-1,
-122,
127,
3,
-95,
-57,
-80,
-117,
90,
42,
-104,
49,
-124,
-8,
51,
38,
-122,
118,
8,
-88,
-115,
102,
103,
49,
-35,
-19,
-8,
24,
46,
-70,
9,
-89,
-78,
88,
82,
34,
-66,
-99,
117,
88,
91,
112,
-32,
4,
28,
104,
4,
-82,
-106,
-125,
-113,
-20,
-110,
3,
-13,
29,
36,
113,
-55,
-94,
93,
71,
112,
-69,
-122,
-68
] |
Bakes, J.
Mrs. Mary E. Driver died on October 5, 1938. Her last will and testament was one that disposed of approximately $100,000 worth of property. Her son, Abner Driver, and her daughter, Virginia Driver Potter, were named as executors in the will, but Mrs. Potter did not qualify. Abner Driver presented the will for probate on notice and the will was duly probated on October 22, 1938, and on that date Abner Driver qualified as executor and letters testamentary were duly issued. After the executor had entered upon his duties as such, two of Mrs. Driver’s children, Ida May Quinn, and Cooper Driver, and two grandchildren, Laura Johnson and Louise Pope, had themselves made parties and prayed an appeal from the .order of probate of the will. They attempted to have the order of probate set aside and the will declared invalid for the reason of the alleged unsoundness of Mrs. Driver’s mind and on account of undue influence. The executor filed pleas to said petition and defended the said suit contesting the will. The suit terminated in a jury trial, with a verdict and resulting* judgment sustaining the validity of the will.
The executor, immediately after having qualified as such, with approval of the court, employed E. S. Driver and S. W. Polk to represent him as executor in the administration of the estate. When the contest arose the probate court authorized the executor to employ counsel to assist S. W. Polk in representing the executor in defending the will, E. S. Driver having* withdrawn for the reason that he. had been attorney for the testatrix, and had aided in the preparation of the will. The executor employed Mr. W. F. Kirsch to assist Mr. Polk in representing the executor in defending* the Validity of the will. The order under which Mr. Kirsch was appointed was dated November 10, 1938. Immediately thereafter, the contestants, the appellants here, asked that the order permitting the executor to appoint counsel be set aside and this was done on November 28, 1938. 'The probate court held that the court could not properly approve employment of an attorney by the executor in making a defense to this attack, seeking to establish the invalidity of the will. Prom this last order made by the probate court the executor appealed to the circuit court where the case was tried by the judge, without the intervention of a jury, on May 29, 1939. The circuit court, after trial, entered a judgment reversing the order of the probate court made on the 28th day of November, 1938, which had set aside the order of November 10, 1938, and declared that the order of November 10, 1938, was proper and reinstated it, and that the last order, attempting to set it aside, was without force and effect. It is from this circuit court judgment that Mrs. Quinn, et al. have appealed.
Appellants say the sole issue upon this appeal is: “The question now before the court is whether or not the executor had the right to employ attorneys. to defend the will in this fight between the heirs, . . . ”
A few pertinent facts brought forward in a proper bill of exceptions should be stated as a part of the basis, at least, for the conclusions we have reached.
Abner Driver introduced the will of the testator by which each of the children and the two grandchildren were to receive certain specific tracts of land and small-amounts of personal property. Practically all of the land was so disposed of, and there had been about $25,-000 in advances made to the several children which was charged as a lien against the bequests or devises to those who had received these advances. There was an order made whereby all the land had been placed in the possession of the executor with directions to collect rents for the year 1939 therefrom. There was not sufficient personal property to pay the debts of the estate. It was also in evidence that a considerable portion of the land will have to be sold in order to pay the obligations of the estate. It is shown that claims allowed against the estate amounted to about $9,400. Other claims amounting to $1,300 were filed for probate and another for about $2,500, represented by a note of Walter Driver, which had been signed or indorsed by Mrs. Driver, the testator. We accept as part of the facts conclusions of the pleader to the effect that the will was somewhat technical and involved, having provisions with reference to disposition of the property and also special provisions with reference to portions of the estate devised to Cooper Driver and a requirement that the beneficiaries be required to make elections in certain matters concerning the disposal of properties in order that the necessity for partition might be precluded; and the will also declared liens on parts or portions devised to children for debts they owed her and which liens, it was provided, should be superior to judgment liens. Indeed, there appears to have been an anticipation that creditors of certain of the children might seize some of the property devised to them and so prevent the estate from recovering the debts claimed unless the conditions of the will should be enforced before delivery of possession of the several legacies and bequests.
. The mere statement of the involved situation of this valuable estate appears to make necessary the employment of legal counsel provided such employment be au thorized by law. The particular portion of the statutes upon which both the appellants and the appellee rely for authority to establish their conflicting claims is § 117 of Pope’s Digest. This section is part of the act 118 of March 3, 1913, p. 511. It is as follows:
“In all cases of administration of estates of deceased persons, and in the probate and executions of wills of deceased persons, and in all matters of guardianship of minors or insane persons, and in all cases where one person shall hold, or handle an estate or property in trust for another, or others, the executor, administrator, guardian, or other trustee may employ legal counsel, and the court having’ jurisdiction or control of the matter shall, in addition to the compensation allowed by law to such executor, administrator, guardian or other trustee, make a reasonable allowance for an attorney’s or solicitor’s fee, to be taxed and allowed as expenses for advice and services rendered in the management of the matters involved in such administration or other trust, and to be paid out of the trust fund.”
The difficulty arising in this situation has been argued to the effect that the executor and his administration of the estate will not be hampered or in any wise be interfered with without regard to the decision in this contest of the will; that the debts of the estate would nevertheless have to be paid;, that the executor would use such portion of the estate as was-necessary for that purpose, and that the contest would terminate merely in a settlement of the controversy among the children and grandchildren — heirs of the testatrix. On account of this conclusion as stated by appellants, it is urged by them that since the litigation over the validity of the will was only a dispute among the heirs, the executor may not be regarded as a necessary party to the proceeding; that it is improper to reduce the value of the estate, by paying attorney’s fees for one set of the heirs as distinguished from another. We cannot agree with this conclusion. Such conclusion ignores one of the basic principles underlying the administration of estates. We frequently find administrators and executors re ferrecl to as legal representatives. The necessity for a legal representative arises out of the fact that when the owner of the property dies, all of the estate does not necessarily vest in the heirs. The decedent may have left debts equal to the value of the estate and creditors who will he protected before heirs may seize upon and dispose of the property that should be used to pay' the debts, so the legal.representative becomes a trustee who takes charge of the property and when he shall have been named as executor-by the will itself, he may not sit idly by and permit some one to destroy the very warrant, power, and authority with which he is clothed. He stands in the place of the testator, holding the property under the will, and his defense against any attack is the assertion of the right of self-preservation; while, at the same time, the refusal to make such defense would be a breach of a legal duty. We think it unnecessary to cite authority. The provisions of a will, if not illegal, fix certain duties upon the executor, not imposed by the law of administration. The express desires and wishes of the testator are declared and it becomes the executor’s duty under the will to enforce its several provisions. He is a trustee of an express trust. We think he is, therefore, a necessary party to any contest of the validity of the will, particularly, after he shall have qualified and received property into his custody or possession.
But the matter of employing counsel and paying fees is still another proposition properly to be determined by an interpretation of the foregoing statute. In Kenyon, Executor, v. Gregory, 127 Ark. 525, 192 S. W. 887, this court said: “Since the passage of this act, attorney’s fees for services rendered in the administration of estates are placed in the same category as necessary expenses incurred in the course of administration by executors or administrators.”
In the case of Souter v. Fly, 182 Ark. 791, 33 S. W. 2d 408, Dr. R. M. Ply was appointed administrator with the will annexed. A suit was filed by E. E. Smith and Sible Smith to recover the estate. They asserted the testator had agreed to will the entire estate to them in consideration of their care and support of the testator during his lifetime. The administrator, through his attorney, defended the suit and in his final settlement he claimed credit for fees paid the attorney defending the estate. There was an exception to the allowance of this fee and the propriety of the allowance became the issue upon appeal. This court said: “It is insisted, however, that the court erred in making an additional allowance of $150 to the attorney defending the suit brought by E. E. Smith and Sible Smith. . . . ” The conclusion of the court was “the administrator, with the will annexed, had the authority to employ an attorney to defend the will and he is entitled to have an allowance made to his attorney to be j>aid out of the estate for services upholding the will. ’ ’ Appellants argue that this case of Souter v. Fly, supra, is not authority in the present situation for the reason that it was not a controversy among heirs, but that it was a suit for specific performance of the alleged agreement by which the deceased was to convey certain lands to the plaintiffs. It is urged that the distinction between the cases is that the administrator was resisting an illegal demand and employed counsel to do it; that the instant case is only a controversy or “fight among the heirs,” and that the executor has no interest in the result and is not a proper party. We think, however, that this argument ignores a controlling factor, present in both cases. In the case of Souter v. Fly, supra, if Mr. and Mrs. Smith had prevailed, necessarily all of the property would have been delivered over to them. By a successful assertion of their claim they would have taken out of the hands of the administrator all of the property. He resisted and established a defense to the suit, so in the case under consideration, if the appellants had prevailed by establishing the fact they alleged, that Mrs. Driver was of unsound mind and incapable of making a will, or that the will was void because she was unduly influenced, then the provisions of the will would have been defeated and the property would have passed into the hands of an administrator appointed by the court and would have been administered under the law and not in accordance with the wishes and desires as expressed in the will by the testatrix.
Appellants insist that there is no express authority for the employment of counsel in a contest among the heirs, that since there is a statutory authority for the several matters mentioned in the section of the statutes above quoted, and the matter of contest is not expressly mentioned, but excluded therefrom by implication that under the established rules of statutory construction, it may not now be determined without a judicial extension of the provision of the statute that the executor may pay fees to attorneys employed to defend against an assault upon the will. "We think the premise from which counsel draw their conclusions is much too narrow. The statute provides that fees may be allowed in the probate “and execution of wills of deceased persons.” Of course, the probate is not had until the death of the testator and the word “execution” must necessarily mean in the connection in which it is used, the carrying out or performance of the conditions and provisions of the instrument.
So, if it be given that meaning, then there is express authority to employ counsel to render proper assistance to the executor in his efforts to abide by the provisions of the will and administer the -property as directed therein.
Necessarily it follows that by the term “execution of the will” the executor must preserve the will in order that it may be executed as the testator has directed, and it certainly would be a vain thing to empower the executor to employ counsel to aid in the execution of the will and at the same time require him to stand clear of any attack made upon the will by some one interested in the property disposed of by it. It would make little difference whether the provisions of the will were defeated by an heir seizing all the property or whether a stranger to the will was permitted to do the same thing, by taking over the property, the subject-matter of the will. In either event the will would be of no effect when it might not control the disposition of testator’s property.
Since the decision of Kenyon v. Gregory, and also of Souter v. Fly, supra, the same principle as announced in the cited cases has been followed with approval in the case of Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. 2d 36, and we think that these decisions, construing this section of the statute, are authority to sustain the trial judg'e in this case. We refrain from a discussion based upon decisions of other jurisdictions for the reason that we think the entire controversy is controlled by the above statute, as construed by our own court independently of what other courts may have held. In truth, there may be a difference in the statutes or basic authority in other jurisdictions. Our own statute as construed by this court is sufficient to determine the one issue presented upon this appeal.
The circuit court was correct. Affirmed. | [
-16,
108,
-36,
-84,
26,
-16,
-118,
26,
-44,
-61,
-89,
83,
-87,
86,
20,
37,
123,
61,
81,
43,
-9,
-93,
7,
32,
114,
-13,
-31,
-33,
-73,
-56,
-11,
127,
77,
104,
66,
85,
-58,
-118,
-51,
24,
-116,
76,
-86,
-27,
-103,
-14,
50,
115,
112,
15,
-63,
-66,
-77,
42,
61,
-25,
44,
106,
121,
57,
-56,
-80,
-113,
-123,
109,
22,
-108,
70,
-104,
-117,
72,
46,
-108,
48,
2,
-32,
51,
-74,
18,
-44,
107,
-104,
24,
118,
102,
51,
-91,
-27,
-104,
-104,
6,
62,
13,
-89,
-2,
57,
73,
72,
-73,
-101,
116,
16,
6,
-12,
-2,
-107,
28,
120,
8,
-117,
-44,
-123,
-114,
-14,
-116,
-126,
-17,
-57,
50,
81,
-54,
16,
94,
71,
113,
-101,
-57,
-126
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.