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Humphreys, J.
This suit was brought by appellees against appellant in the circuit court of Washington county to recover $175, a 12 per cent, penalty and reasonable attorney’s fee on account of the destruction of a hen house by fire which was protected against loss by fire under an insurance policy issued by appellant to appellees on November 4, 1936, covering a period of five years, the pertinent parts of said policy being as follows:
“In consideration of the stipulations herein named and $10 and of the warranties contained in the application for insurance and subject to the tenor, terms, conditions and provisions of its charter and by-laws and any amendments thereto hereafter made, does insure Willie . and Ethel Williams and their legal representatives, etc. . . . for the term of five years from the 4th day of November, 1936, at noon to the 4th day of November, 1941, at noon, against all direct loss or damage by fire or lightning and by removal from premises endangered by fire, except as herein provided, to amounts not exceeding the sums hereinafter stated, to the -following described property while located and contained as described herein. . . . Dwelling house No. 1, $900; . . . Smokehouse, $75; . . . Barn, $525; . . . Hen house, $175.
“Special permits and stipulations
“(a) Permission is granted to keep gasoline and kerosene and to house and operate the appliances herein enumerated which use the same, upon the following warranties : (1) stoves and lamps shall be used only in dwelling and summer kitchen;
“(b) Brooders in buildings hereby insured may be used only upon special permit indorsed on this policy.
“Increase of hazard
“Unless otherwise provided by agreement in writing added hereto this company shall not be liable for a loss or damage occurring, (b) while the hazard is increased by any means within the control or knowledge of the insured.”
Appellant filed an answer admitting the issuance of the policy, but denying liability thereunder because the hen house was converted into a brooder house without special permission, which increased the hazard while the chicken house was being used as a brooder house.
The cause was submitted to the court, sitting as a jury, and at the conclusion of appellant’s testimony, it having admitted the execution of the policy and destruction of the hen house by fire and having assumed the burden of showing a forfeiture of appellees’ right to recover ■ by the conversion of the hen house into a brooder house, made certain findings of facts and declarations of law, and in accordance therewith rendered judgment in favor of appellees for $175, 12 per cent, penalty and a reasonable attorneys’ fee, to which appellant excepted and prayed an appeal to this court, before the clerk thereof, on December 24, 1940, within apt time.
By reference to the stipulation of facts found by the court, it will be seen that the court correctly found that the insurance policy prohibited the use of brooders and other stoves iii any building other than the dwelling and summer kitchen without a special permit in writing and that no special permit to do so was granted to appellees, but erred in finding that the house was not being used as a brooder house at the time Pace and his co-conspirator set the building on fire. Our interpretation of the evidence is that the house was being used as a brooder house at the time Pace and his co-conspirator set the house on fire. The evidence, undisputed, shows that Pace bought the chicks and feed to raise them in the brooder house on credit in the early fall of 1939, and gave a mortgage on them for about $700 or $800 to secure the payment of the purchase money for the chicks and feed; that Pace was the tenant of appellees and, after raising the chicks in the brooder house to broiler size for the early market, he moved the stoves and broilers out of the house on the night of the 28th day of January, 1940, and on the same night set the house on fire for the purpose of making it appear that the chickens had burned in the house, thereby preventing the mortgagee from enforcing his mortgage lien on the chickens. Appellees wrongfully permitted their tenant to convert the hen house into a brooder house and increase the hazard without getting written permission from appellant to do so.
The raising- of the chickens in the brooder house, their theft and the burning of the house was all one transaction on the part of Pace and the loss on account of the increased hazard should not be borne by appellant who had not consented that appellees allow Pace to convert the hen house info a brooder or broiler house.
As stated above the chickens that had been raised in the brooder house were removed therefrom and immediately Pace set the house on fire. The removal of the stoves and chickens from the brooder house were practically simultaneous with the burning thereof, so it was in use as a brooder house and not a hen house when set on fire. The house did not and was not being used again as a hen house when set on fire.
There can be no question under the facts in this case that the building was wrongfully converted by appellees’ tenant from a hen house into a brooder house contrary to the provisions of the policy without first getting written permission to do so; that Pace’s motive for burning was to conceal the theft of the chickens. Hence, the cause of the fire was the wrongful conversion of the hen house into a brooder house.
Had the house been restored to its original use as a hen house and then burned by Pace without appellees’ consent or knowledge the effect thereof would have been to suspend the insurance during the misuse of the house and the policy would then be revived, and the insurance be restored, but otherwise where Pace burned the house during the time it was being used as a brooder house. As stated above the removal of the chickens and stoves from the house was so closely related with the burning of the house that it must be regarded in the law as one transaction.
On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Griffin Smith, C. J.
The jury found that the plaintiff (appellee here) had been totally disabled within the meaning of a policy of insurance for the period in question, and the court rendered judgment. Appellant insists (1) it should have had a directed verdict, (2) that the jury was erroneously instructed, (3) that conduct of opposing counsel was prejudicial, and (4) that improper argument was permitted.
First. — The policy does not compensate partial disability. Appellee, an attorney, testified he had been unable-to perform the material duties of his profession. The illness for which compensation is due must result in continuous, necessary, and total loss of all business time. Appellee is not bedridden; but, according to the testi mony of Dr. Dibrell, exercise had been prescribed as an aid to circulation.
Dr. Dibrell examined appellee in 1935. The diagnosis showed acute infectious arthritis. The condition often results in fixation of the joints — that is, permanent stiffness.
January 9, 1939, and April 1, 1940, Dr. Dibrell examined appellee and found him still suffering from arthritis of a hypertrophic type. It involves a wearing away of cartilage at joints, permitting the bones to come together. As expressed by the doctor, “There is then an atrophy of the bone itself, and this is a progressive thing. We have no means to stay the course of it, no cure. The condition is permanent.”
The doctor was asked whether, in his opinion, appellee’s condition produced constant pain. He answered that it would not, adding: “If he rests, and does not take any sustained exercise he will be very comfortable throughout his life; but if he exerts himself he will have pain that will probably put him to bed.”
There was the explanation that a certain amount of exercise is stimulative and conducive to comfort, but that the patient was incapable of sustained effort.
This question was asked: “State whether, in your opinion, [Mr. Eiffel] has, since March 23, 1939, been unable to perform any duties of an occupation which would require constant exercise or extended effort.” The answer was: “Physically, yes.”
There is other testimony which in evidential value was subsidiary to that given by Dr. Dibrell; enough, we think, to have justified submission of the controverted question of disability.
In The Mutual Life Insurance Company of New York v. Phillips, ante, p. 30, the disability for which payment would be made must have been such as to continuously render it impossible for the insured to follow a gainful occupation. In construing the word “impossible” it was said: “If the disease it is claimed causes disability (although, not compelling inactivity) is such that slight effort might reasonably be expected to result disastrously, the insured would not be required to take the risk, although admittedly to do so would not be impossible.”
In the case at bar reliable medical testimony is that appellee should not engage in sustained effort. In fact, the only effort Dr. Dibrell thought would not be seriously injurious was that prescribed in aid of circulation.
Appellants ground their hope for reversal on the principles defined in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A., U. S. 635, 21 Ann. Cas. 1027; Missouri State Life Insurance Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600; Ætna Life Insurance Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007; Lyle v. Reliance Life Insurance Co., 197 Ark. 737, 124 S. W. 2d 958; Metropolitan Life Insurance Co. v. Guinn, 199 Ark. 994, 136 S. W. 2d 681; New York Life Insurance Co. v. Ashby, 199 Ark. 881, 138 S. W. 2d 65; National Life & Accident Insurance Co. v. Merritt, 200 Ark. 158, 138 S. W. 2d 79.
In the Ashby Case it was said: “We are not unmindful of other decisions which appear to be in conflict with the Snow Case, but which are distinguishable. Each has been decided upon the particular facts in issue— facts the court thought controlling.”
So, here, the controlling consideration is one of fact: —was there substantial testimony to support the jury’s finding that the disease suffered by appellee resulted in continuous, necessary, and total loss of all business time “business time” meaning ability to engage in sustained effort of a character sufficiently substantial to negative the idea that there was not a total loss of power reasonably to continue the business or profession. In view of Dr. Dibrell’s diagnosis and his prognosis, we think the answer is that there was substantial testimony to sustain the verdict.
Second. — Instruction No. 3 told the jury the plaintiff was entitled to recover if by reason of disease he had been, during the period alleged, unable to perform in the usual and customary manner all of the material duties of Ms profession. The specific objection was that the instruction permitted recovery in the event the jury should find that the plaintiff could not perform any slight duty in connection with the practice of law. It is insisted that use of the word “all” was improper.
The instruction has been approved many times. One who is unable. to perform the material and substantial duties of his or her profession, and who because of illness or injury cannot engage in remunerative work, is incapacitated. The word “all” as used in the instruction must be read in connection with “material.” If the duty or activity which because of illness or injury cannot be performed or engaged in is “material” to the insured’s business, profession, or vocation, the theory is that without such attention or application the business, profession, or vocation, will suffer to such an extent as to become non-re'munerative, or virtually so. The terms in policies compensating if total disability is caused by accident or ill health are not ordinarily intended to apply if the insured is not wholly prevented from performing, in the usual and customary manner, all of the material duties incident to the objective. While an instruction that the policy did not cover partial disability would have been proper, failure to so inform the jury was not, in the circumstances of this case, prejudicial.
Third. — On cross-examination a witness for appellee was asked if he knew “the [Pacific Mutual Life Insurance Company of California] ‘bursted’ right in the face of policyholders.” It was objected that the question was intended to prejudice the jury, since insolvency of the company was not involved and assumption of its contracts by appellant on a 35 per cent, basis was admitted. The court overruled defendant’s motion for a mistrial. It is true, of course, that the question was immaterial. It bore no relation to the fact of illness, or to the extent of disability; but it is also true the company did become insolvent and that the insured continued to pay an annual premium of $120 for slightly more than a third of the protection he had contracted for. The general subject of insolvency was introduced by counsel for appellant. Numerous questions were asked concerning- appellee’s adjudication as a bankrupt. As Chief Justice McCulloch said in St. Louis, Iron Mountain & Southern Railway Co. v. Osborne, “if error was committed, it was invited.”
Fourth. — Walter Gr. Eiddick of counsel for appellee read to the jury Instruction No. 3, and in commenting upon it said: “It tells you that if the plaintiff cannot perform, in the usual and customary manner, all of the material duties of his profession — an attorney — he is entitled to recover. [Counsel for the defendant] has conceded that [the plaintiff] cannot try jury cases; and the plaintiff is therefore disabled under the language of this instruction. ’ ’
When objection was made, the court told the jury to take the instruction as worded. The court was correct. The instruction, as distinguished from counsel’s construction of it, was the jury’s guide.
No record was made of argument of counsel on either side: The matter excepted to was brought up through bystanders’ bill of exceptions. There is no method of ascertaining whether the argument was modified or explained by other comments. In Metropolitan Life Insurance Co. v. Banion, 106 Fed. 2d 561, the appellant contended certain parts of an argument by opposing counsel were prejudicial in that they were calculated to excite prejudice. The court agreed that the castigation “went too far,” and that it could not be sanctioned in point of propriety. Nevertheless, the judgment was affirmed. The court said:
‘ ‘ Furthermore, no record was made of the argument of counsel for the company, and it, therefore, is impossible to know whether the argument in question was provoked by argument of opposing counsel. Ordinarily a judgment will not be reversed on the ground of improper argument where all arguments are not in the record so that it can be determined whether the parts drawn in question were provoked or made in response.”
While in the instant case it seems clear from the matter reproduced that reading and commenting on the instruction was not provoked, yet without the entire record of argument we cannot say the objectionable statement was not otherwise explained or qualified.
Affirmed.
Appellee’s insurance contract was originally with Pacific Mutual Life Insurance Company. A. California court adjudged the company insolvent in 1936; whereupon its business was reinsured by appellant. The policy issued appellee by Pacific Mutual provided compensation of $400 per month for total disability. Appellant’s reinsurance contract assumed 35 per cent, of Pacific Mutual’s obligation as to that class of policies carried by appellee, or $140 per month. Insurance ceased at age 60. Appellee’s total disability prior to attainment of his sixtieth year was for ten months. The policy provided that no payments were due during the first three months. Therefore, the amount in controversy was $140 for seven months, or $980, plus penalty and attorneys’ fee.
Italics supplied.
95 Ark. 310, 129 S. W. 537. | [
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Humphreys, J.
Mrs. M. J. Cunningham, who owned lot 2 in block 20 in Mooses’ Addition to the town of Morrilton, Arkansas, on the 23rd day of February, 1937, executed a warranty deed to said property and acknowledged same in accordance with the statutes of the state and delivered same to Mrs. Bertha Love, the appellee, for and in consideration of the assumption by Mrs. Bertha Love of the debt due the Home Owners’ Loan Corporation in the approximate sum of. $875 and also the assumption of all taxes,-improvement district, state and county now past due, and as a further consideration, that said Mrs. M. J. Cunningham was to have the sole use and enjoyment of the property during her natural life, and have complete control of the property as her own home, during her natural life.
This deed was recorded in Record Book 45, p. 540, in Conway county, on the 25th day of February, 1937.
On March 1, 1940, Mrs. M. J. Cunningham brought suit in the chancery court of Conway county, Arkansas, to cancel the deed on two grounds; first, because the consideration purported to have been paid for said lands was so small as to raise the presumption of fraud, and, second, that through mutual mistake, or mistake of the scrivener of said deed, or through fraud and connivance on appellee’s part, Mrs. M. J. Cunningham was induced to sign the deed without a meeting of minds between herself and appellee.
She alleged in the complaint that she entered into a contract to the effect that appellee was to pay the HOLC loan or mortgage and all delinquent taxes against the property including the state, county and improvement district taxes and to support her as long as she lives and leave her in possession of her property during her life and that when she died the property should be sold and appellee reimbursed for her expenditures out of the proceeds of the sale thereof and that the remainder should be paid to the local Presbyterian church.
On March 14, 1940, appellee filed an answer denying’ all the material allegations in the complaint.
On April 17, 1940, Mrs. Mayme Montgomery McDaniel filed an intervention that she nursed Mrs. Cun ningham for a period 'of forty-six weeks under an agreement with her that she would pay her $10 a week for her services out of the proceeds of the sale of her home when same should be sold and that under said agreement she was entitled to $460 for services she rendered Mrs. M. J. Cunningham pursuant to the agreement and alleged that the conveyance by Mrs. M. J. Cunningham to appellee was a fraud upon her rights as a creditor.
Appellee filed an answer denying the right of the intervener to any interest in said real estate or that she had any lien upon said real estate for the payment of the services which she rendered Mrs. M. J. Cunningham.
Mrs. M. J. Cunningham died on or about the 21st day of March, 1940, and the cause was revived in the name of George Leslie Cunningham and James Cunningham, grandchildren and the only heirs-at-law of Mrs. M. J. Cunningham.
On the 16th day of August, 1940, the cause was submitted to the court upon the pleadings and the testimony pro and con responsive to the issues involved who rendered a decree dismissing appellants’ complaint including the intervention of -Mrs. McDaniel for the want of equity, from which is this appeal.
(1) We have read the testimony very carefully and find no evidence which would warrant the cancellation of the deed on the ground of inadequacy of consideration. The evidence reflects, without dispute, that appellee has paid upon the HOLC mortgage and the state, county and improvement taxes $1,472.77 in actual cash and still owes a balance to the HOLC in the sum of $653.76 principal drawing a monthly interest of $2.43. In other words that-the total amount paid and to be paid on the property is $2,126.53. There is much testimony in the record as to the value of the property now and at the time Mrs. M. J. Cunningham conveyed it to the appellee. At one time the property was very valuable, worth perhaps over $10,000, but it is an old home, built many years ago and we think the weight of the evidence clearly shows That a fee simple unincumbered title to the property could not have been sold for more than about $2,500 when the deed was executed. This did not take into account the fact that Mrs. M. J. Cunningham reserved in the deed a life estate with full control. The undisputed evidence is that at the time she made the deed she had an expectancy of about ten years.
While various witnesses put various values upon the property both at the time the deed was executed and at the time they were testifying a very potent circumstance appears in the record that convinces us the property was not worth perhaps over $2,500 at the time the deed was executed. The potent fact referred to was that the Dowdle home on the other corner of the block, which was a larger and better house and with much vacant property around it, sold in 1938 for $2,500 and the owner thereof paid a commission upon the sale out of that amount.
This court said in the ease of McDonald v. Smith, 95 Ark. 523, 130 S. W. 515, that: “The rule is well settled that before inadequacy of price will be considered a sufficient ground for cancelling a conveyance it must be ‘so gross that it shocks the conscience.’ 2 Pomeroy, Eq. Jur., § 927; 6 Cye. 286; Storthz v. Arnold, 74 Ark. 68, 84 S. W. 1036.” There is no such inadequacy of consideration in the instant case that would shock anyone’s conscience.
(2) At the time the deed wás executed by Mrs. Cunningham to appellee she was behind on her payments to the TIOLC to such an extent that they were threatening immediate foreclosure against her. She had no way to keep up the payments and no way to pay the delinquent taxes against the property including state, county and improvement district taxes. Mrs. Cunningham was very anxious to remain in her home where she had always lived. She had conveyed a bottom farm to George Leslie Cunningham and James Cunningham some time prior to the time she made the deed to appellee so she had no property with which to pay the mortgage off her home. She consulted Dr. S. J. Patterson, who had been pastor of the Presbyterian church for perhaps seven teen years and of which church she was a member, to see whether the church would be willing to take care of her and assume all the indebtedness against the property and take a deed thereto reserving a life estate in her and at her death have the remaining equity therein. Dr. Patterson told her he did not think the Presbyterian church would enter into that kind or character of agreement. According to his testimony, she then requested him to see if she could not convey the property to some third party and reserve a life estate therein who would assume the mortgage indebtedness and pay back taxes and future taxes on 'the property. He testified that in compliance with her request he consulted several business men and they declined to make a deal of that kind; that in consulting parties, amongst others he consulted appellee who was willing on account of friendship existing between appellee and Mrs. Cunningham to help her out, but stated that she did not' want to make such an investment and would have to borrow thé money to do so; that after appellee had expressed a desire to help Mrs. Cunningham out, they met and discussed the matter in detail, but that he said to them both that she had two grandsons whose mother was living and that they should know what was being done and be .given an opportunity to take a deed to the property and pay off the obligations against it and permit Mrs. 'Cunningham to retain a life estate in and control of the property; that they all declined to do so, saying that they were unable to assume the obligation; that after they refused to do so he consulted E. A. Williams who was a lawyer about preparing and acknowledging the deed and that without charging any fee he did so. Dr. Patterson testified that Mrs. Cunningham’s mind was good and not impaired in any way and that she fully understood the transaction.
^E. A. Williams testified that he prepared the deed and took it to Mrs. M. J. Cunningham’s home and explained it fully to her and that she signed and acknowledged it and expressed appreciation of what appellee was doing for her and great satisfaction at being able to retain her home for her lifetime.
Three or four neighbors testified that after Mrs. Cunningham had executed the deed she told them she had done so. They also testified that she was in her right mind and capable of understanding a business transaction. In fact there is little or no evidence in the record tending to show that she was not in possession of all her faculties at the time she executed the deed. The grandsons, appellants herein, testified that about that time she was forgetful and at times did not recognize them, but this was about the only evidence tending to show that her mind was in the least impaired.
In 1938, she fell and fractured her hip and after that was not as well as she had formerly been, but no one testified that her mind was impaired at the time the deed was executed. The intervener testified that while she was nursing Mrs. Cunningham, Mrs. Cunningham asked Dr. Patterson to bring her a copy of the contract and that finally he did bring a purported copy thereof and left it on the bed and after he left she handed the purported contract to Mrs. Cunningham and informed her that it was a deed and not a contract, whereupon Mrs. Cunningham expressed surprise and disappointment and that in a subsequent conversation with Mrs. Cunningham, Mrs. Cunningham charged Dr. Patterson with having betrayed her and that later Mrs. Cunningham brought suit to cancel the deed. Dr. Patterson denied that any such conversation ever occurred between him and Mrs. Cunningham.
A few days before Mrs. Cunningham died she gave her deposition at length to the effect that she understood that the instrument she signed was a contract to the effect that appellee would pay the indebtedness against the property and after reimbursement any equity therein should go to the Presbyterian church; that at the time she signed the instrument she was in bad health and unable to attend to business; that she knew nothing about the deed; that she did not understand that appellee was to get the place by taking up the IlOLC mortgage and that had she so understood she did not know whether she would have signed the deed; that when someone told her that the deed was of record in the courthouse it was an awful shock to her; that she did not authorize Dr. Patterson to do other with her property than to pledge it for the payment of the indebtedness against it with the understanding that she should retain a life interest therein and that after reimbursement the equity should go to her church.
We think that the chancellor’s finding to the effect that she understood that she was signing a deed to the property for the considerations therein expressed at the time she executed same to appellee is in accordance with the weight of the testimony and that she was in possession of all her faculties at the time she executed same. In fact a reading of this record convinces us that both Dr. Patterson and appellee were trying to help Mrs. Cunningham in accordance with her own wish and desire and not in any way trying to deceive or take any advantage of her.
There can be no question under this record that appellants were given an opportunity to obtain just such a deed to the property as was given to appellee, but declined to avail themselves of the opportunity. We see no equity in their claim at this late date to reimburse appellee for the advances she made and take the property. Appellee took chances on the expectancy of Mrs. Cunningham and assumed the burdens. They were not willing to do so or at least did not do so.
It is unnecessary to discuss the claim of Mrs. Mamie McDaniel upon her intervention. Her contract with Mrs. M. J. Cunningham was entered into after Mrs. Cunningham conveyed the property to appellee and after the deed had been recorded, hence, she could not acquire a lien on said real estate under and by virtue of a contract with Mrs. Cunningham.
No error appearing, the decree is in all things affirmed. | [
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G-rieein Smith, C. J.
December 24, 1936, L. K. Person sued in Miller chancery court for damages to property aggregating $2,750, and in the same action alleged that a tax deed of Miller Levee District No. 2 was void. It was asserted that “within the period of the statute of limitations for this suit” the district took thirty-five acres of appellant’s land as a levee right-of-way, such property being worth $50 per acre, or $1,750; also, that forty acres were otherwise damaged to the extent of $25 per acre.
May 27, 1940, the defendant’s demurrer of May 3, 1940, was sustained. The decree recites that foreclosure of the district’s lien for delinquencies of 1930 in chancery cause No. 3415, purchase by the district, and confirmation, were void for want of proper descriptionbut it was further held that foreclosure in chancery cause No. 3855 under decree of September 8, 1934, for 1931 delinquencies, was valid.
Numerous pleadings were filed. *5There were amendments to the complaint, demurrers, motions, an intervention, etc. Damages alleged to have been sustained were increased to $4,027.50.
In March, 1931, Person, as security for a loan, conveyed to H. C. McCurry, trustee for Texarkana National Bank, 1,292.5 acres, subject to mortgage held by Federal Land Bank of St. Louis. The trust deed included the property which forms the basis of this litigation.
Default having occurred in the debt, foreclosure was instituted by the Texarkana bank. A decree dated March 24, 1936, directed that the .lands be sold September 26 of the same year. Defendant filed a creditor’s petition in the district court at Texarkana under authority of the Frazier-Lemke Act. Effect was to suspend the state court’s power to consummate the sale.
January 7, 1938, Person, in writing, proposed to the bank that it refrain from taking a deficiency judgment and that it release him from further liability in the foreclosure matter in consideration of his consent that the sale be confirmed. A stipulation was that if there should be a recovery in the damage suit, proceeds should be divided 25 per cent, to Person and 75 per cent, to the bank, Person to pay all expenses.
October 23, 1937, the district (while the cause was still iu circuit court) moved that the bank be made a defendant. The bank’s foreclosure suit against Person was mentioned, coupled with an averment that if the property had been damaged, the bank was entitled to recover. There is this statement: “The plaintiff, in his amended and substituted complaint, has alleged (and the defendant has admitted) that the lands [involved] were purchased from [the levee district by the bank] and a deed was executed by the [district to the bank] conveying the legal title, [such deed having been issued] March 28,1936.”
In its intervention the bank recited the indebtedness secured by the trust deed, and added: “By the terms of [the judgment the lien created by the deed of trust] was foreclosed on said lands [and a commissioner was appointed] to make the sale on the 26th day of September, 1936, [The] decree is complete in all essentials and is referred to for particulars. ’ ’
Action óf Person in filing his petition in federal court was referred to. It was then stated that a compromise settlement had been made with Person, in consequence of which there was an order of the district court which had the effect of revesting state judicial authority. The chancery court entered a decree September 27, 1937, setting the sale for January 4, 1938. It was alleged that except for payments aggregating $3,000, the judgment of March 24, 1936, was unsatisfied, “. . . and the sale to be made on the fourth day of January, 1938, is for the purpose of satisfying said decree in whole or in part.”
In respect of tax payments the intervention alleged: “Said deed of trust contains adequate provisions authorizing the [bank] to protect its interest as to all taxes and assessments constituting a charge against said land which [Person] should fail to pay, by making payment of same. As a result [of] the default of [Person] to pay the taxes and assessments, the [bank] as alleged 'by [tbe levee district] . . . purchased the land, . . . and now holds a deed to same.” •
Finally, the bank interposed its claim to any damages that might accrue by reason of Person’s suit, proceeds to be applied on the judgment debt.
In a motion to dismiss Person’s complaint, filed July 28, 1938, the district averred that construction of the levee complained of was begun in December, 1935, and that it was completed early in January, 1936.
In an order of May 27,1940, sustaining the district’s demurrer, the chancellor held that the lands were not redeemed from the district within the time allowed by law, and that the district’s deed of March 28, 1936, to the bank, vested title.
In a pleading styled “Petition for Rehearing,” filed in chancery court June 27, 1940, Person reviewed the various proceedings, and said: “Plaintiff’s period for redemption must now be computed from the date of the sale held under cause No. 3855 — September 8, 1934. Records of the levee district will show that the right of way was taken before one year had expired after September 8, 1934. ... If allowed to amend his complaint, plaintiff will state that the taking of said lands occurred on or about August 1, 1935.”
It is urged that, in respect of the district’s liens in cause No. 3855, erroneous descriptions avoid the decree. The descriptions were: L. K. Person, plat B. all lying east L, section 12, 183.38 acres; plat B. frl. N% lying east of drainage ditch, section 13, 149.30 acres, both in township fifteen south, range twenty-six west. Argument is that abbreviations “not known or understood” were used.
Were the descriptions so indefinite as to render the decree void on its face? It was contended by Person that “no maps are on file with the county clerk”; hence, the reference to plat B was improper.
The - decree recites that the defendants (including Person) were “duly and legally summoned in accordance with law,” and that they failed to appear. There was personal service.
That part of the complaint which seeks to avoid the decree is a collateral attack, and unless the error complained of appears on the face of the record it is unavailing. Allegation that no map of the district showing plat B was on file is not sufficient. The decree shows that evidence was heard, and maps may have been identified. It is, of course, improbable that this occurred; but on collateral attack, absolute verity must be accorded judgments and decrees unless the want of jurisdiction of the subject-matter or the person is shown, or unless the -exhibit identified in the judgment or decree (where land descriptions are involved) is so palpably unsubstantial as to be meaningless for purposes of identification.
Assuming (without deciding) that Person, if he continued to own the property, had two years from September 8, 1934, within which to redeem, the fact is that prior to November 5, 1937, an agreement or “compromise” with the bank is shown by which Person withdrew his objections to sale and confirmation under the trust deed. It is not in evidence that a division of moneys sought to compensate so-called damages featured in the negotiations, for Person’s proposal was not made until January 7, 1938, and prior to that time the rights of the parties had been fixed.
The result is that before November 5, 1937, the bank settled its controversy with Person as to the right ito foreclose. It asserted purchase from the district, and insisted that any payments to compensate damages should be made to it. There was no suggestion that appellant should receive 25 per cent, of the recovery.
The bank had a right to redeem from the district for the benefit of the mortgagor. Instead of redeeming, it purchased. But a purchase will be treated as a redemption unless, as in the instant case, it is clearly shown that the parties had agreed to a settlement involving acquisition of the mortgaged property by the mortgagee. In the ease at bar the bank consummated its arrangements with Person and its purchase or redemption from the district was after the injuries complained of had been inflicted, and it is estopped to demand benefits. Person delayed more than two years after the tax sale of 1934 before moving to avoid it. That he did not (when the complaint was filed December 24,1936) intend to redeem is shown by his failure to tender the amount due; nor did he then have in mind that the bank’s purchase was a redemption for his benefit. His attack was directed to the tax sale of May 31, 1932., In an amended and substituted complaint of June 21, 1937, Person claimed to be owner of “the equitable right of redemption.” He was still attacking the sale of 1932, and did not allege that the bank had redeemed for him, nor did he offer to redeem.
Although not of importance in view of our decision here, attention is called to Person’s contention that the district’s tax sales were void because title was in the state. In Miller v. Watkins, 194 Ark. 863, 110 S. W. 2d 531, 111 S. W. 2d 466, 113 A. L. R. 913, it was said on rehearing that the right of an improvement district to' foreclose its betterment liens is suspended “. . . where lands or town lots have been sold to the state,” and “this suspension is not dependent upon the validity or invalidity of the sale to the state. The right is suspended in either case, as the state cannot be divested of its paramount lien for its taxes, . . .”
In The Lincoln National Life Insurance Company v. Wilson, Receiver, 199 Ark. 732, 135 S. W. 2d 846, act 329 was held to “validate” improvement district fore closures where at the time title was in the state by virtue of a valid sale, or apparently in the state through a voidable sale. The Wilson Case is not in conflict with Davidson v. Crockett, 200 Ark. 488, 140 S. W. 2d 695. A headnote is: “While act No. 329 of 1939 is both retroactive and curative in its provisions, it has no application to a decree which had become final before the act became a law. ’ ’ By reference to page 494 of the Arkansas Reports, p. 697 of 140 S. W. 2d, it will be seen that the decree referred to held that the foreclosure of liens was invalid. From this decree there was no appeal. The Crockett Case is authority for the proposition that where a sale had been adjudged invalid and the decree was not appealed from, act 329 did not overturn such adjudication made prior to its passage. In the instant case the sale was valid.
Affirmed.
The land is described in the complaint as 75 acres lying in the east half of section twelve, and the northeast quarter of section thirteen, township fifteen south, range twenty-six west.
Cause No. 3415 was styled “Miller Levee District No. 2 v. Henry Turner et als.” No. 3855 was styled “Miller Levee District No. 2 v. Missouri State Life Insurance Co. et als.”
April 22, 1937, upon motion of the defendant district, the cause was transferred to circuit court. It was subsequently sent back to chancery court.
A headnote to Union Joint Stock Land Bank of Detroit v. Byerly, 310 U. S. 1, is: “Jurisdiction of a state court in foreclosure, suspended by the institution of a proceeding under § 75 of the Bankruptcy Act, again attached upon dismissal of the bankruptcy case and empowered the state court to confirm a foreclosure sale previously made and to order a sheriff’s deed.” (60 S. C. Kept. 773; 84 L. Ed. 1041.)
The proposal was that Person agree that the chancery court might act at a special term January 10. By a writing of February 28, 1938, signed by Person, his wife, and the bank, it was stipulated that confirmation might be had January 27, 1938. The proposal of January 7 was acknowledged and filed in chancery cause No. 4459— the bank’s foreclosure suit — and so was the agreement of February 28.
The district executed its quitclaim deed to Texarkana National Bank in consideration of a payment of $1,181.94, covering delinquent taxes for 1930, 1931, 1932, 1933, and 1934. Prima facie the transaction was a sale as distinguished from a redemption.
In an “amended and substituted complaint,” filed June 21, 1937, Person alleged that “. . . said loop levee construction was begun in or about the year 1935, and was completed in or about January, 1936.”
March 27, 1939, the bank sold certain lands to Person, including those alleged to have been taken and those thought to have been damaged. The consideration was $12,500, of which $4,000 was paid in cash and the balance evidenced by six notes.
An excerpt from the decree is: “The plaintiff introduced the delinquent tax list furnished by the chancery clerk of Miller county, Arkansas, from the list of delinquent lands in Miller Levee District No. 2, returned by the collector of Miller county and now recorded in the chancery clerk’s office showing the taxes to be due by the respective defendants for the year 1931 as hereinafter set forth, and from the testimony introduced, the complaint of the plaintiff, and the delinquent list returned by the collector, . . . and other evidence, the court finds . . .”
Approved March 15, 1939. | [
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Smith, J.
Appellant was charged with the crime of murder in the first degree, in an information filed against him by the prosecuting attorney, and upon his trial was found guilty of murder in the second degree, and given a sentence of 21 years in the penitentiary, from which judgment is this appeal.
The motion for a new trial contains only the following assignments of error: (a) That the verdict is contrary to the law and the evidence; (b) that witnesses Madge Harris and Buddy, her son, gave perjured testimony; and (c) that a new trial should have been granted on the ground of newly discovered evidence.
Testimony was offered on behalf of the state to the effect that appellant ran a rooming-house, and a young woman, who was called Ruby King, was one of his roomers. Joe Stevens, the person killed, was seen prowling in the rear of appellant’s place between 10 and 10:30 p. m. Ruby thought the man was trying to break into her room, which was a rear or back room. She ran and told appellant, who investigated, and found Stevens back of the building. Stevens was ordered to leave, but refused to go, whereupon he and appellant began fighting. During the course of the fight Stevens cut appellant with a knife, and appellant broke a baseball bat over Stevens’ head.
Proof of uncommunicated threats by Stevens was made to the effect that he would return and clean up the place, and that something more than a club would be necessary to stop him. Stevens returned a week after the first encounter, and again at night. He was drinking, if not drunk. When Stevens entered the apartment, he said to appellant: “Big boy, I have come to show you my license and prove to you that is my wife in the back room.” Appellant refused to examine the paper, and told Stevens the woman had checked out and was no longer at his place. Stevens said that was all right, and proposed to shake hands with appellant, who said, “You have come here for trouble.” Stevens denied this was his purpose, when appellant collared him and shoved him into the hall, where he struck Stevens with the bat, and as Stevens staggered and was shoved to the porch appellant struck again and knocked Stevens to his knees. A witness testified that after Stevens fell to the floor appellant continued heating him, striking him five or six times. Appellant admitted striking Stevens twice, but did not think he had hit him more than twice. A photograph taken of Stevens after his death shows that he was almost scalped, and the doctor who performed an autopsy said the indications were that Stevens had been struck on the head six or eight times.
This testimony is sufficient to sustain the finding that if appellant did not'kill Stevens after premeditation, he had done so with malice, and a malicious killing constitutes murder in the second degree, although it was not premeditated.
The truth of the testimony given by Mrs. Harris and her son was, of course, a question for the jury. The testimony of these two witnesses does not appear to be substantially different from that of other witnesses in the case, nor to be more damaging.
The motion for a new trial on account of newly-discovered evidence presents the proposition that the testimony of these two witnesses was different from their testimony given at the coroner’s inquest. The testimony given at the inquest appears to have been taken stenographically and transcribed and filed with the papers in the case, and apparently was as accessible before the trial and judgment from which is this appeal as it was afterwards. Surprise was not pleaded, and no diligence was shown in the discovery of this testimony. There was no affidavit showing any diligence or that the testimony was newly discovered. Buschow Lumber Co. v. Ellis, 194 Ark. 104, 105 S. W. 2d 531. Moreover, we have compared the testimony of these witnesses given at the inquest with that given at the trial from which is this appeal, and we find no important contradictions or discrepancies except as might appear in the testimony of any witness taken on two different occasions.
A number of cases were cited to support the statement appearing in the recent case of Bourne v. State, 192 Ark. 416, 91 S. W. 2d 1029, to the effect that a motion for a new trial on the ground of newly-discovered evidence addresses itself to the sound legal discretion of the trial court, and that this court will not reverse the action of the trial court overruling that motion except in cases where an abuse of such discretion is shown, or an apparent injustice has been done.
We find no abuse of discretion on the part of the trial judge, and as no error appears, the judgment must be affirmed, and it is so ordered. | [
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Smith,-J.
James Keith executed a mortgage dated March 4, 1931, conveying an 80-acre tract of land to Sam E. Montgomery, to secure an indebtedness of $500, which was evidenced by two notes, each for $250, one due March 4, 1932, the other March 4, 1933. The mortgage was filed for record on the date of its execution. No notation of any payment on these notes was ever entered on the margin of the mortgage record, but a cash payment of $7.50 was made on September 9, 1934.
Keith failed to pay taxes for the year 1931, and the land forfeited to the state for the nonpayment thereof, and on March 30,1936, Jimerson purchased the land from the state and received a deed from the State Land Commissioner. After obtaining this deed from the state, Jimerson, on April 10, 1937, obtained a quitclaim deed from Keith. At that time the mortgage from Keith to Montgomery was in full force and effect notwithstanding the failure to indorse the $7.50 payment on the margin of the record.
On May 9, 1938, which was more than a month after the lien of the mortgage from Keith to Montgomery had apparently expired, as reflected by the mortgage record, Jimerson brought suit to have the mortgage declared barred by the statute of limitations and removed as a cloud upon his title. On June 3, 1938, Montgomery filed an answer, alleging the invalidity of the tax sale and the validity of his mortgage, and prayed its foreclosure.
Prior to the execution of the mortgage to Montgomery, Keith had given a mortgage on the same land to Lutie M. Reed and Lillie B. Eshleman, who, on December 19, 1939, filed suit to foreclose their mortgage.
These cases were consolidated, and a decree was rendered in. which the sale for taxes to the state was held invalid and that the mortgage to Montgomery was not barred, but that it was subject to the Reed and Eshleman mortgage. A sale of the land was ordered in satisfaction of these mortgages, and directions given for the distribution of the proceeds thereof, including the payment of the Reed and Eshleman mortgage, and the balance, or so much thereof as was necessary, to be then applied to the payment of the Montgomery mortgage which the court found then amounted, with interest, to $885. From this decree Jimerson only has appealed. He makes no objection to the decree except so much thereof as declared that the mortgage to Montgomery was a subsisting lien, the insistence being* that it was barred by the statute of limitations.
It appears, from the numerous cases cited in the briefs of opposing counsel, that when a debt secured by a mortgage of record is apparently barred by the statute of limitations and no marginal indorsements of payments keeping the lien of the mortgage alive have been made upon the mortgage record, the mortgage becomes, as to third parties, in effect an unrecorded mortgage, and a third party may acquire title to the mortgaged land unaffected by the lien of the mortgage. The insistence for the reversal of the decree is that Jimerson is a third party and, therefore, unaffected by the mortgage lien. To sustain this contention the following* cases are cited: Beith v. McKenzie, 191 Ark. 353, 86 S. W. 2d 176; Johnson v. Lowman, 193 Ark. 8, 97 S. W. 2d 86; Hamburg Bank v. Zimmerman, 196 Ark. 849, 120 S. W. 2d 380, and Polster v. Langley, 201 Ark. 396, 144 S. W. 2d 1063.
But an examination of those cases will disclose that in each of them the facts were that no payments which had been made had been indorsed upon the margin of the mortgage record.
Appellant cites the case of Connelly v. Hoffman, 184 Ark. 497, 42 S. W. 2d 985, in which a subsequent mort gage was taken at a time when the prior mortgage was not barred. It was there held that the taking of a mort-' gage when there was a prior valid mortgage did not estop the subsequent mortgagee from pleading the statute of limitations against the prior mortgage. But appellant did not take a mortgage from Keith; he took a quitclaim deed.
The effect of the cases cited, and others on the subject, is that if one buys land upon which there is a mortgage apparently barred by the 'statute of limitations, through failure to indorse payments on the margin of the mortgage record, he is a third party as to the mortgage, and acquires title free from the mortgage lien. If one takes a second mortgage when the lien of the first mortgage is not barred, he may thereafter plead the statute of limitations against the first mortgage, when, through failure to indorse payments upon the margin of the record, the first mortgage becomes apparently barred. If one buys land upon which there is a mortgage not barred as shown by the mortgage record, he buys subject to the mortgage, and may not plead the statute of limitations if the debt was not, in fact, barred, having been kept alive by payments not entered upon the margin of the mortgage record. .
The reason for the distinction which the cases make, while not altogether clear, is this: When one buys land which the record shows is under a valid mortgage, he buys only the equity of redemption. He takes no other or greater title than his grantor had, which is the right to redeem.
In Volume 2, Jones on Mortgages (8th Ed.), p. 1038, it is said: “A purchaser with actual notice of the mortgage, or constructive notice by means of a registry, can avail himself of the presumption of payment from lapse of time only when the mortgagor could avail himself of it under the same circumstances. The grantee succeeds to the estate and occupies the position of his grantor. He takes subject to the incumbrance; and his title and possession are no more adverse to the mortgagee than was the title and possession of the mortgagor. . . .- A purchaser from the mortgagor stands in no better position than the mortgagor himself as to gaining title by possession and lapse of time, if the mortgage be recorded. The record is notice of the mortgage to a subsequent purchaser; and the mere fact that he has had actual possession under his purchase for the statute period of limitation is no bar to a foreclosure of the mortgage. ’ ’
The text just quoted was quoted as authority for the decision in the case of First State Bank v. Cook, 192 Ark. 213, 90 S. W. 2d 510, in which the facts were as follows. On June 13,1930, Cook purchased a 200-acre tract of land from McCabe who had previously mortgaged that tract and other lands to the bank to secure a note dated November 7, 1928, and due one year thereafter. No payments having been made by Cook on this note, the bank, on October 7, 1931, filed suit for judgment on this debt and for foreclosure of the mortgage given by McCabe to the bank. A decree of -foreclosure was rendered April 15, 1935, and the lands ordered sold, and the bank became the purchaser at the sale under this decree. Cook who had not been made a party to the foreclosure suit intervened and objected to the confirmation of this sale upon the ground that he had acquired by purchase the 200-acre tract from McCabe and had taken immediate possession thereof, and pleading the statute of limitations against the bank’s debt. The trial court sustained the intervention, and set aside the decree of foreclosure insofar as it related to the 200-acre tract. No notation of any payment to the bank had been made upon the margin of the record of the mortgage to the bank, and Cook invoked the provisions of §§ 7382 and 7408, Crawford & Moses’ Digest (appearing as §§ 9436 and 9465, Pope’s Digest). It was held, upon the authority of the text above quoted, that Cook could avail himself only of such defenses -as his grantor, McCabe, had, and that, as McCabe could not avail himself of the plea of the statute of limitations, Cook could not do so.
We have here the same state of case. Keith could not have availed himself of the plea of the statute of limitations, nor can his grantee, Jimerson, do so. The court below so decreed, and that decree is affirmed. | [
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Verne McMillen, Special Judge.
On September 26, 1923, the Home Life Insurance Company issued a fifteen-year endowment policy to Toy Earle Morris in which it agreed to pay the said Toy Earle Morris who was designated as the insured the sum of $2,000 if living on September 26, 1938, and the policy was in full force and effect; or upon receipt of due proof of the prior death of the insured during the continuance of the policy to pay said sum to the beneficiary, Nell Elizabeth Morris, daughter of the insured. The reserves of the Home Life Insurance Company became impaired, and a reinsurance contract, effective March 31, 1931, was entered into whereby the Central 'States Life Insurance Company re-insured and assumed, subject to the exceptions, modifications, and limitations stated in the contract, all of the outstanding policies issued or assumed by the Home Life which were in force on that date. The parts of that contract involved in the question here presented are sec tion I (a), the reinsuring clause; section I (b), in which, a lien equal to 50 per cent, of the legal reserve on all policies in force, bearing interest at the rate of six per cent, per annum compounded annually, was established, and which further provided that both lien and interest thereon should be deducted from any payment made by Central States Life pursuant to the terms of said policies, or from any settlement thereunder, or from the value used to purchase any paid-up or continued insurance, except as otherwise provided in the reinsurance contract; section I (c), which provided that Central States Life agreed that in the event of the death of an insured while his or her policy was in force it would waive the aforesaid lien or any balance thereof remaining and all interest accumulations thereon; section I (i), in which Central States Life agreed that on any endowment policy maturing before the lien had been discharged any reduction of liens as provided in the contract which became effective after the date of such maturity should be paid to the owner of such endowment policy at the time such reduction became effective; and section Y (b), in which Central States Life agreed to make an accounting on March 31 each year and apply the net earnings, if any, on the assets conveyed to it by the Home Life to the reduction of the liens established in section I (b).
At the time the reinsurance contract was entered into the amount of the lien on the policy of Toy Earle Morris was $434.62, which had increased by addition of interest to $671.45 when the policy matured on September 26, 1938. On October 6, 1938, the Central States Life made a settlement with Mr. Morris, by which it paid him $5.93, for which he executed his receipt acknowledging payment of said sum in full settlement of the amount due him as of September 26, 1938, on account of Home Life policy No. 25863, in the sum of $2,000, being the full amount of the policy less automatic premium loan of $61.83, premium lien note for $1,260.79, and less reinsurance lien and accrued interest amounting to $671.45, deducted in accordance with the reinsurance agreement.
Mr. Morris died on June 22, 1939, and subsequently Nell Elizabeth Morris, one of the appellees herein, filed this suit as beneficiary under the policy, in which she set up that the policy matured as an endowment on September 26, 1938, and by the terms of the reinsurance agreement the policy remained in full force and effect; that upon the death of the insured on June 22, 1939, it was the duty of appellant under the terms of the reinsurance agreement to waive the lien of $671.45 and pay that sum to her as beneficiary. In its answer, appellant denied that any sum was due her as beneficiary, or that it was the duty of appellant to waive the lien. Thereafter, Mrs. Nell Morris filed her intervention in which she set out that she was the widow, and that the plaintiff, Nell Elizabeth Morris, was the sole and only heir of Toy Earle Morris; that there were no debts against the estate; that if it should be held that the lien was properly payable to the deceased during his lifetime or to his Avidow and heir after his death, judgment should be rendered in favor of her as Avidow and of her daughter, Nell Elizabeth, as sole heir.
There Avas a trial by the court without a jury. In his conclusions of law the trial court held that appellant had a continuing obligation by virtue of section I (i) of the reinsurance agreement to pay to the insured the amount of any reduction in said lien which might accrue, and that in the event of the death of the insured at any time prior to the full payment and discharge of the lien appellant then became obligated by the terms of section I (c) of the reinsurance agreement to waive said lien or any balance thereof remaining and all interest accumulations thereon, and to pay the amount thereof to the heirs or legal rep resentatives of the insured. Judgment was entered for appellees as widow and sole heir of Toy Earle Morris for $671.45 with interest, penalty of 12 per cent, and attorney’s fee of $100, from which is this appeal.
The only question to be determined on this appeal is whether the appellant became obligated to waive the lien upon the death of Mr. Morris after the endowment policy had matured. There are no disputed facts. Appellees admit the validity of the reinsurance contract, and that Mr. Morris, by his acceptance thereof and by continuing to pay the premiums on the policy, became bound by its terms, as was held by this court in Home Life Insurance Company v. Arnold, 196 Ark. 1046, 120 S. W. 2d 1012.
Appellant’ contends that the only right Toy Earle Morris or his estate had under the reinsurance contract was by virtue of section I (i), which abligated the appellant to pay the amount of any reduction of the lien to him or to his estate, and that section I (c) did not apply for the reason that the policy was not in force at the time of the death of Mr. Morris. Appellees contend that the policy was in force when Mr. Morris died, that section I (c) required appellant to waive the lien and pay them the amount thereof, and that section I (i) cannot be construed so as impliedly to exclude endowment policyholders from the benefits of section I (c), which provides: ‘ ‘ Central States Life agrees that in the event of the death of an insured while his or her policy is in force, it will waive the aforesaid lien. . . .”
An endowment policy is a contract by which the insurer agrees to pay to the insured a sum certain at the end of a certain period, or if he dies before the expiration of the term fixed, to pay the amount to a person designated as beneficiary. Cooley’s Briefs on Insurance, 2d ed., v. 1, p. 32. In this case the Home Life Insurance Company was the insurer, Toy Earle Morris was the, insured, and Nell Elizabeth Morris was the beneficiary. From the time the policy was issued until its maturity, the life of Toy Earle Morris was insured, and in the event of his death the beneficiary, Nell Elizabeth Morris, was entitled to receive the full sum of $2,000 as provided in the policy. In that event the appellant would have been obli gated to waive the lien under section I (c) of the reinsurance contract. But when this endowment policy matured September 26, 1938, all elements of insurance disappeared. There remained only the obligation to pay the amount due upon maturity of the policy. As stated in Tennes v. Northwestern Mutual Life Insurance Company, 26 Minn. 271, 3 N. W. 346: “This contract is hot purely of life insurance. So far as it is an.agreement to pay, upon the death of the husband within ten years, it assured his life, and is a contract of life insurance; but the agreement to pay at the end of the ten years, though the husband be still alive, is not one assuring his life.” And in Walker v. Giddings, 103 Mich. 344, 61 N. W. 512, the court said: “In Cooke, Ins., § 107, it is said: ‘Sometimes the contract to pay on the death of the insured is conjoined with a contract to pay on the expiration of a fixed period, should he live so long. Such a contract is called a “contract of endowment insurance,” though, so far as concerns the contract to pay on the expiration of a fixed period, it is not, strictly speaking, a contract of life insurance at all.’ ”
And in Cooley’s Brief on Insurance, 2d ed., v. 1, p. 33, in discussing endowment insurance it is stated: “On the other hand, so far as the endowment feature of these contracts is concerned, they are not regarded as life insurance contracts, the endowment being regarded as a mere incident to the life insurance contract.”
When this policy of endowment insurance was issued to Toy Earle Morris there were only two contingencies. One was that if he died prior to the 26th day of September, 1938, the insurer would pay $2,000 to his beneficiary. The other was that if he lived until the 26th day of Sep tember, 1938, the insurer would pay $2-,000 to him. He was living on September 26, 1938, and what had previously been a life insurance policy was then converted into a liquidated debt. This rule is clearly stated in McDonnell v. Mutual Life Insurance Company of New York, 116 N. Y. S. 35, 131 App. Div. 643, where the beneficiary was seeking to recover a deferred dividend due the insured at the expiration of a fifteen-year period, the insured having died eleven days prior to the expiration of that period,- in which the court said: “But this contention loses sight of the fact that this is a contract for life insurance, that it involves the risk, that after death there is no risk, and that the contract for life insurance as such then and there ceases to be in force. The obligation to pay in accordance with the terms of the contract is in force, but the policy of life insurance is no longer in force. It has been transformed into a liquidated debt by the happening of the contingent event theretofore provided for.”
There must be three parties to a life insurance contract — the insurer, the insured, and the beneficiary. Without any one of these there can be no contract of life insurance. When the endowment policy issued to Toy Earle Morris matured, all the rights of Nell Elizabeth Morris, as beneficiary, then and there ceased and terminated, and the appellant was- obligated to Toy Earle Morris only. He was no longer an insured, Nell Elizabeth Morris was no longer a beneficiary, and appellant was no longer an insurer. The relationship of debtor and creditor then came into existence. He became a creditor of appellant, entitled to receive the amount due under the policy less the amount of the lien, and any sums by which that lien might be reduced in the future as provided by the reinsurance contract. Since Toy Earle Morris was not an insured at the time of his death and the policy was not in force as a life insurance contract, appellant was not obligated to waive the lien.
We have not overlooked the case of State ex rel. Attorney General v. New York Life Insurance Co., 198 Ark. 820, 131 S. W. 2d 639, which we do not regard as in conflict with the views herein expressed..
The judgment is, therefore, reversed, and the cause dismissed.
Smith, J., disqualified.
Humphreys, Meharry and Holt, JJ., dissent.
Sections involved are:
Section I.
(a) Central States Life agrees, subject to the exceptions, modifications and limitations herein stated, to and does hereby reinsure and assume all the outstanding insurance policies issued or assumed by Home Life which are in force in accordance with the terms of said policies on the day on which this reinsurance agreement becomes effective.
(b) Whereas the assets of Home Life hereby conveyed to Central States Life are not sufficient at their present value to provide for the discharge of the policy obligations of said Home Life as they mature, as part of the consideration there shall be established and placed against each policy of the Home Life assumed hereunder by Central States Life a lien equal to fifty per cent (50%) of the legal reserve thereon as it has been established and is carried on the books and records of Home Life on the date as of which this reinsurance becomes effective, such lien to bear interest at the rate of six per cent (6%) per annum, compounded annually. Both lien and interest thereon shall be deducted from any payment made by Central States Life pursuant to the terms of said policies, or from any settlement thereunder or from the value used to purchase any paid-up or continued insurance, except as otherwise hereinafter provided.
(c) Central States Life agrees that in event of the death of an insured while his or her policy is in force it will waive the aforesaid lien or any balance thereof remaining and all interest accumulations thereon and the mortality cost of waiving such lien shall be provided out of the net earnings of the business of Home Life reinsured hereunder during the calendar year in which death occurs. If such earnings are insufficient to provide such mortality cost then Central States Life will_provide therefor out of its own surplus; but nothing herein shall obligate Central States Life to maintain any reserve, legal or .otherwise, to insure the waiving of liens.
(i) Central States Life agrees that on any Endowment policy maturing before the lien herein provided shall have been discharged, any reduction of liens as herein provided which becomes effective after the date of such maturity shall be applied to the amount of lien outstanding at the date of such maturity and the amount of such reduction shall be paid to the owner of such Endowment policy at the time such reduction becomes effective; when the total amount paid to such owner shall equal the amount of the lien at the date of ma turity together with interest at 3 %% per annum on the balance of the lien, no further payment shall be made to such owner.
Section V.
(b) Central States Life agrees that on March 31, 1932, and annually thereafter it shall make a computation based upon the aforesaid statement, taking into consideration the admitted assets, exclusive of all policy indebtedness, and the policy reserve liabilities likewise exclusive of all policy indebtedness, and if the ratio of such net admitted assets to net liabilities shall be not less than fifty-five per cent (55%) then the net earnings of the period ending on December 31st of the year for which such computations are made, after deducting therefrom the mortality cost of waiving liens on policy death claims and any liens waived on payments due under supplementary contracts and monthly disability claims, shall be applied to the reduction of the liens; such reduction shall be effective as of the first day of April following. | [
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McHaney, J.
Appellant, D. J. Henderson, a Negro, is now about 80 years of age and is living with his third wife, the other appellant, Eliza Henderson. He had twelve children by his first wife, six of whom are now living, two by his second wife, and none by his present and third wife, Eliza. Appellee, Addie Williams Josey, is a child by his first wife. On November 6, 1936, appellant, D. J. Henderson, executed his will whereby he divided his property among’ his children. Through hard labor and frugality, he had accumulated a substantial fortune, consisting of about $4,000 cash in bank, a farm of 80 acres worth $4,000 or $5,000, and considerable personal property on the farm. Addie appeared to be his favorite child and on June 4, 1938, he and his wife conveyed to her the 80 acres of land in question, reserving a life estate therein during their natural lives. About the same time she persuaded her father to turn over to her the funds in bank on which he was drawing two per cent, interest as savings, on her promise to deposit same in a bank in Kansas 'City, where she was then living, at four per cent. On the same date, June 4, 1938, he executed to her a bill of sale conveying to her all his farm equipment, and four days later she mortgaged the farm 'equipment to appellee, A. W. Lowe, for $150. A little more than a year later she deeded the 80-acre tract back to her father and he and his wife then executed to her their deed conveying the fee, thereby destroying the life estate reserved in the former deed. This deed was dated August 3, 1939, and on the next day she conveyed by warranty deed the same land to appellee, G-. D. Long, who gave her a written agreement permitting her to redeem the land on or before August 4, 1940, on the payment of $600 with ten per cent, interest. Shortly thereafter appellants learned of this deed by Addie to Long and thereupon brought this action to cancel their deed to her on the grounds of fraud and undue influence and to cancel the conveyance to Long and the chattel mortgage to Lowe on the ground that they knew of the fraud practiced upon them and were in effect parties to it, and to recover from Addie a judgment for the nearly .$4,000 she had fraudulently procured from him to be deposited at four per cent, in Kansas City banks, and which she had converted to her own use and benefit. Appellees defended on a general denial and on the allegation that the conveyances made were bona fide and of his own free will, without coercion or undue influence by Addie.
Trial resulted in a decree dismissing the complaint for want of equity and sustaining the chattel mortgage to Lowe and the deed to Long as valid mortgages, subject to foreclosure. This appeal followed.
We think the learned trial court erred in refusing to cancel the deed of appellants to Addie, dated August 3, 1939, and in refusing a judgment against her for the money she secured from them, including the amount realized by her on the two mortgages and the interest thereon. The great preponderance of the evidence establishes the fact that she deliberately undertook to and did succeed in denuding her old father of all his earthly possessions, on the theory that she would look after and provide for them. She got the money to deposit in a Kansas City bank because she told him she could get four per cent, whereas he was getting only two per cent, in Arkansas banks. If any of this money was ever deposited in Kansas City, it was not deposited in his name and no interest return was ever sent him by any bank there. The undisputed fact is that she converted the money to her own use. She says he gave it to her, and that she could use some of it in her business. She also says she got the second deed from her father in August, 1939, because she wanted to mortgage the land for $600 and could not do so with the life estate outstanding; that of the $4,200 given her by her father she had only $2 left. By her own testimony as to what the consideration for the deed was, she says she was to support her father. She was asked: “ Q. "What were you supposed to do ? ” and answered: “Take it and take care of him as long as he lives. I was to invest some of it in my business as to be better able to take care of him; I was supposed to do whatever I thought best; that was the understanding. ’ ’
Now the fact is she has not done much toward support for appellants. As said in Edwards v. Locke, 134 Ark. 80, 203 S. W. 286, and cited with approval in Swetcoff v. Felts, 197 Ark. 876, 125 S. W. 2d 468, and other cases, the rule is “that an intentional failure upon the' part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract and, therefore, vitiates the deed based on such consideration.” By making way with all the money she got from her father, including that realized from the mortgages, she has put it beyond her power to support, and by the mortgage on the 80-acre home in the form of a deed with a contract to redeem on August 4, 1940, on which she has made default, she has virtually deprived her father and stepmother of a home in which she might take care of them. Not only does the presumption of fraud from intentional failure to support justify a cancellation of the' deed to her, but all the other facts and circumstances show she had the fraudulent purpose from the beginning to get everything her father had and make way with it not only to the exclusion of her brothers and sisters, but to the pauperism of her own father as well. The deed to her should be canceled.
As to the two mortgages mentioned, it appears to us that they were taken in g’ood faith, as also the lease to Lowe and without notice of the fraud practiced upon appellants in acquiring the paper title mentioned, and that appellees, Lowe and Long, will have to be protected to the extent of their loans with interest as also the lease to Lowe, rentals thereunder hereafter accruing or now due to be paid to appellant, and that a reasonable time from the date this judgment becomes final should be allowed appellants to redeem therefrom, not less than six months. Also that a judgment should be rendered against appellee, Addie Williams Josey, for the full amount of the money she has had and received from her father, with interest.
The decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion, and for such further proceedings as may be necessary to- enforce the rights of the parties hereto according to law, the principles of equity and not inconsistent with this opinion. | [
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Holt, J.
May 23, 1939, Harry Hunt, appellant, brought suit against Abbie Hunt, appellee; Mrs. M. L. Brodie, widow of George Brodie, Sr., deceased, and his heirs, for the possession of 320 acres of land in Arkansas county, Arkansas, and to have title thereto vested in him.
It was alleged in the complaint that prior to April 30, 1938, appellant was the owner of the land in question and that it had been ordered sold to satisfy a mortgage thereon, and that at the sale the land was bought by George Brodie, Sr., in Brodie’s name for $16,750, which money was furnished by appellant.
It was further alleged that before the sale it was agreed between appellant and George Brodie, Sr., that appellant was to furnish the purchase money and that Brodie was to buy the land at the sale, take title in his own name and after the termination of the foreclosure proceedings, convey the land to appellant; that since he furnished Brodie the purchase money he (appellant) was the real purchaser and the owner of said lands; that Brodie held the naked legal title in trust for him; and that upon Brodie’s death, intestate, the legal title passed to his heirs coupled with this trust.
Separate answer was filed by the widow and the heirs of George Brodie, Sr., in which they disclaimed any interest in the land in question and asserted title thereto to be in appellee, Abbie Hunt.
Abbie Hunt filed separate answer denying the material allegations in appellant’s complaint and alleged that it was the intention and understanding between herself and appellant, and also so understood by George Brodie, Sr., that Brodie was to purchase, and did purchase, the land in trust for the use and benefit of appellee, and that any money furnished by appellant for the purchase of this land by Brodie was furnished with the express intention on the part of appellant, as well as appellee, that said land was to be so purchased for the use and benefit of appellee and that she should have title thereto.
She further alleged that after the death of George Brodie, Sr., in furtherance of this intention, appellant procured and caused a deed to be executed to appellee to this land from the widow and heirs of George Brodie.
The trial court found the issues in favor of appellee and entered a decree dismissing appellant’s complaint and vesting title to the land in appellee. This appeal followed. We try. the cause here de novo.
It is undisputed, on the record before ns, that George Brodie, Sr., held the naked leg-al title to the land in question for the use and benefit of the beneficial owner and that he had no other title or interest therein. It is the contention of appellant that he was the real and beneficial owner and that Brodie was holding said land in trust for him; while appellee, Abbie Hunt, insists that she, on the other hand, was the real and beneficial owner and that Brodie held the land in trust for her.
It appears that on October 3, 1932, appellee, together with her infant daughter about six months old, went to live in the home of appellant as his housekeeper. She remained in this capacity until July 12, 1933, when she and appellant were married. During’ this period of employment she was paid for her services. They lived together as husband and wife until July 1, 1935, when they were divorced. The decree of divorce settled all property rights between the parties, but the nature of this settlement is not disclosed in the decree.
A few months following the divorce, late in 1935 or in the early part of 1936, appellant induced appellee to return to his home with her small daughter, and without the formality of remarriage, she lived with appellant, in every respect as his wife, continuously for a period of approximately three years, or until about the time this suit was filed.
At the time these parties were married in 1933, appellant owned not only the 320-acre tract of land in question here but also a 640-acre tract, and both tracts were heavily mortgaged. Nothing was paid on either of these mortgages until the termination of the foreclosure proceedings and the sale of the property in May, 1938. The section of land was purchased by the mortgageholder at the foreclosure sale for the total amount against it, which amounted to more than $33,000. The tract involved here, 320 acres, was purchased by George Brodie, Sr., the father of appellee, Abbie Hunt, in Brodie’s name.
We must first determine the nature or kind of trust created here. We think it clear from the record that no express trust was created, for such a trust can only arise out of the direct and positive acts of the parties. Such a trust can never be implied or arise by operation of law and can be proved only by some instrument in writing-signed by the party enabled by law to declare the trust. Such a trust cannot be created by parol testimony.
No such instrument in writing purporting to be signed either by appellant or appellee appears here, and therefore under the express terms of § 6064 of the Statute of Frauds, Pope’s Digest, there can be no enforceable express trust in the land here. Bray v. Tims, 162 Ark. 247, 258 S. W. 338.
Section 6064 of Pope’s Digest, is: “All declarations or creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be .void; and all grants ■ and assignments of any trusts or confidences shall be in writing, signed by the party granting or assigning the same, or by his last will in writing, or else they shall be void. ’ ’
Section 6065 of Pope’s Digest, is: “Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything in this act.”
The nature of the trust created here is an implied trust by implication of law. An implied trust includes a resulting trust and may be established by parol testimony.
In Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437, this court held (quoting headnote No. 8): “While it is necessary that proof to establish a resulting trust should be clear, satisfactory and convincing, it is not essential that it be undisputed.”
In Spencer v. Johnson, 178 Ark. 1200, 13 S. W. 2d 585, in defining implied trusts, this court said: “Im plied trusts are those which are deducible from the transaction as a matter of intention, but not found in the words of the parties, or which are superinduced in the transaction by operation of law as a matter of equity independent of any particular intention of the parties.”
And in 65 O. J. 222, § 12, the author says: “Express and implied trusts differ chiefly in that express trusts are created by the acts of the parties, while implied trusts are raised by operation of law, either to carry out a presumed intention of the parties or to satisfy the demands of justice or protect against fraud.”
We proceed now to look to the testimony as revealed in this record, to ascertain the intention of the parties here as to who should be the real beneficiary under the trust created. As has been indicated, there is no dispute but that George Brodie, Sr., at his death January 27, 1939, held the naked legal title to the land and that the equitable title remained in either appellant or appellee.
The presumption is that Brodie held this property in trust for the party, or parties, furnishing the purchase money. After a careful review of this record, we have reached the conclusion that the preponderance of the testimony establishes that the $16,750 furnished Brodie, with which the purchase of the land in question was made, was the joint money of appellant and appellee and, therefore, that he (Brodie) held the property in trust for appellant and appellee as joint beneficiaries.
The record discloses that the parties here accumulated nearly $20,000 in cash, which they kept concealed in a bookcase in their home; both had access to this money. While the divorce decree in 1935 settled property rights, the exact nature of this settlement does not appear. When appellee first went to appellant’s home, she was a paid housekeeper until she and appellant were married.
When she returned to his home, at his earnest solicitation, in late 1935 or early 1936, she lived with him for three years thereafter in every iense of the word as his wife. This, appellant admits. During these three years she not only performed all the duties of a housewife, hut she helped appellant with the operation and management of his farms.
In the autumn of 1936, appellant became gravely ill of high blood pressure and heart trouble and was confined in a hospital in Little Nock. A blood transfusion was necessary and appellee furnished the blood for that purpose. Thereafter through a long period of careful nursing on the part of appellee, appellant improved but did not recover.
They were devoted to each other and (quoting appellant’s testimony): “Q. And for all purposes, even after you and Abbie were divorced in 1935, she was treated as your wife, was she not? A. I don’t know how I could treat a wife any better. ... A. She was grand while I was sick. You take this down, if it hadn’t been for Abbie, I would be out here in the cemetery.”
Appellee testified that appellant was more devoted to her after the divorce than before and that the $16,750 furnished her father, George Brodie, Sr., to purchase the land was their joint money which she had helped to earn, accumulate and save. Appellee was not paid as appellant’s housekeeper after she returned to him subsequent to the divorce but assumed the role of a wife. During all this time appellant filed with the government a joint income tax return for himself and appellee and claimed deduction for the dependent daughter of appellee. Appellant displayed as much love and affection for this child as he would have for a child of his own.
This money was largely accumulated by the joint efforts of these parties from the products of the two farms and, as has been indicated, none of it was used to reduce the two mortgages above referred to. In fact, appellant and appellee concealed this money where it could not be reached by the mortgage-holders.
Having concluded that the land in question was purchased with the joint money of appellant and appellee and held in trust by George Brodie, Sr., for their benefit, does the testimony establish that it was the intention of appellant and appellee that this property was so purchased and held for the benefit of appellee?
We think it does. George Brodie, Sr., acquired title to this land by deed from the commissioner following confirmation in the foreclosure sale in May, 1938. He died intestate January 27, 1939, while holding title to the property. While appellant testified that Brodie was holding the property in trust for his benefit and had agreed to convey it to him, yet at no time while Brodie held the title before his death, did appellant ask him for a deed although they were on the best of terms.
And at this point some significance may be given to the fact that on November 6, 1937, appellant conveyed to George Brodie, Sr., a tract of land in Illinois and the deed was recorded on the 8th. On the same day on which this deed was executed, November 6,1937, appellant took back from George Brodie and his wife, deed conveying these lands to him (appellant), but this deed was not recorded until May 15, 1939.
On February 2, 1939, the widow of George Brodie, and his heirs, executed a warranty deed to the land, in question to appellee, Abbie. Hunt. It is undisputed that appellant assisted appellee in having this deed prepared,' knew of its execution, had full knowledge of its contents, and actually solicited Mrs. M. L. Brodie, the widow, and two of the heirs, to sign the deed.
In the deed is the following clause: “Whereas, the said George Brodie, Sr., held the following described’ property in Arkansas county, Arkansas, in trust for the hereinafter named grantee and in keeping with said trust the said heirs desire to transfer the title to said property to its rightful owner.”
This deed was prepared and executed in the office of an attorney, C. V. Holloway, in England, Arkansas, with the consent and acquiescence of appellant, delivered to appellee, Abbie Hunt, along with another deed to this same land executed by two heirs who had become of age since the execution of the deed, supra, and these deeds were turned over by Abbie Hunt to appellant to be placed in a safety deposit box in a bank.
After the death of George Brodie, appellant did not ask his widow, with whom he admits he was on friendly terms, or a single Brodie heir, to execute a deed to him to the property, but testified: “I assisted Abbie in getting her a deed from her stepmother (meaning the widow of George Brodie), to get her to sign a deed.”
While appellant testified that when he induced Mrs. Brodie to sign the deed, in which appellee, Abbie Hunt, was named grantee, he explained to her that appellee had agreed to deed the property back to him, Mrs. Brodie specifically denied this. This contention was also denied by George Nelon, who was also present at the time.
It is not denied that during all the time appellant lived with appellee that he was estranged from'his children and that they had left his home.
Appellant testified that during all conversations with George Brodie, relative to buying the land in question, no one was present except appellant, Mr. Brodie, and Abbie Hunt.
Abbie Hunt testified: “A. Before the foreclosure was consummated Mr. -Hunt and I went over to my father’s and Mr. Hunt asked my father to buy the small farm, the 320-acre farm, at this public sale, my father refused at first, and we went again and again several times to talk this over with my father and finally it was agreed between Harry Hunt and my father and myself that my father was to buy this farm in and he was to buy it in for me. Q. Now, Mrs. Hunt, prior to that understanding with your father, had the matter been discussed between you and Mr. Hunt? A. Yes, sir. Q. As to how it was to be purchased and for whom it was to be purchased? A. Yes, sir, because if you will remember in Harry’s own deposition he says that my father and myself and himself made these agreements.
George Brodie, Sr., immediately after procuring deed to the land, took possession through a tenant who was then occupying the property under lease. Brodie executed a power of attorney to appellant to look after the property. However, appellant could not get along with the tenant and Brodie revoked this power of attorney to appellant and executed power of attorney to appellee, Abbie Hunt, who then took over the management of the property and the collection of the rents.
We think the above testimony, and other evidence in the record of probative value, is sufficient and of that clear and satisfactory character necessary to establish a trust for the use and benefit of appellee, that she is-entitled to have title to this land vested in her, and that the trial court did not err in so holding.
In 65 C. J. 955, § 882, the textwriter says: “A cestui que trust, or one claiming to be such, who is competent to act for himself, may be estopped, or waive his right, to enforce a trust in his favor by words or acts on his part which, expressly or by implication, show an intention to abandon, or not to rely upon or assert, such trust, as by acquiescing, with knowledge of all the material facts, in the alleged trustee’s acts in dealing with, or disposing of, the property in a manner inconsistent with the existence or continuation of a trust, or by consenting to such an application or investment of the trust funds or property as to show an intention to abandon his right thereto. . . .”
No error appearing, the decree is affirmed.
McHaney, J., disqualified and not participating. | [
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Mehaeey, J.
This suit was brought by the appellees against the appellants to cancel a certain contract entered into, and for an order to deliver immediate possession of the property described in the contract.
Appellants filed answer denying each and every allegation in appellees’ complaint. Thereafter, an. amended answer and motion to transfer to the circuit court was filed. In the amended answer appellants admitted that they executed the $500 note sued on, but denied that only the sum of $126.33 had been paid on said note. The amended answer alleged that they had paid to appellees the principal and interest on said note in the sum of $216.33, and at the time of payment, the note was extended for an indefinite but reasonable length of time. They state that there is now due the appellees the sum of $323.67, which sum together with cost of $8.75 has been tendered to the appellees, which tender was refused. The tender was renewed and the sum admitted to be due paid into court. Appellants further state that if the court should find any other sum due, they hereby tender any and all sums which may be found due. Appellants then moved to transfer the cause to the Jefferson circuit court, alleging that the chancery court had no jurisdiction to try the cause. .
Thereafter there was an amendment to the complaint filed in which it was stated that the appellees had learned after the institution of this suit that the contract as described in the original complaint which was written by Mr. Russell Hollis did not convey the true intent of the parties, and that a mistake was made in the writing of the same; that the contract provides that interest on the 120 notes shall be paid from maturity when, in truth and fact, the agreement was that the interest should be paid from, date, and that it is so stipulated further on in said contract; that the option which was given by appellees to the appellants recites that the unpaid balance should bear interest at the rate of 6 per cent, from date, and the appellants have paid interest on all the notes to the last interest paying time, but since the institution of this suit, they have raised the contention that they do not owe interest except from maturity on said notes. The appellants did not raise this question until after this suit was filed.
Rolla E. Dotterer testified in substance that he was the owner of the land; that it contained six acres, located in Jefferson Springs; bought some of the lots more than fifteen years ago, and some of them he bought about four years ago; there is a store building and filling station with five living rooms in the rear, a two-car garage and barn, two wells, and the fences on the property. Witness testified that he agreed to sell this property to Mr. Bauer and entered into a written option with him. The written option was then introduced and reads as follows:
“Made between R. Dotterer and wife, Mrs. Emma Dotterer, parties of the first part, and C. F. Bauer and wife, Mrs. Wella B. Bauer, this 16th day of February, 1939.
“As evidence of good faith and under consideration of $1 cash in hand paid.
“Do agree to sell and deliver to C. F. Bauer and wife, Mrs. Wella B. Bauer, for the sum of $4,000, 6 acres of ground, business house and dwellings and good will on the 1st day of May, 1939.
“Terms of sale: $1,000 cash — bal. $25 monthly bearing interest of 6%, all stock to be invoiced on day deal is consummated.
‘ ‘ Signed this 16th day of February, 1931.
“(signed) R. Dotterer (signed) C. F. Bauer “(signed) Emma Dotterer (signed) Wella B. Bauer.”
Dotterer further testified that after this option was executed, the parties entered into a contract for the sale of these lots: Mr. Hollis wrote the contract. The contract was then introduced in evidence, and reads as follows:
“This agreement, made and entered into this 23rd day of June, 1939, by and between Rolla E. and Emma Dotterer, wife, of the first part, and Mrs. Chas. F. Bauer, of the second part,
“Witnesseth: That said first party does this day lease unto the said second party the following described parcel or lot of land situated in Jefferson county, Arkansas, to-wit: Lots- nine, ten, eleven, and twelve; (9-10-11-12) in section eleven (11), township four (4), south; range eleven (11) west of the 5th P. M., for and during the term of 120 months from this date, and at and for the agreed rental price of $4,000, of which $500 is paid to the first party in cash, and the remaining $3,500 is to be paid in 120 monthly installments, as evidenced by the 120 promissory notes this day executed and delivered by party of second part to party of first part, each for the sum of $25 and due and payable in one, two, three, four, and so in regular numerical order up to and including 120 months after date respectively; each note bearing interest at the rate of six per cent, per annum from maturity until paid, and one note for $500, due and payable on or before January 1, 1940, bearing interest from date'. The party of the first part is to pay 6% interest, from date, on the 120 notes semi-annually.
“In consideration of the premises, it is agreed that said second party shall promptly pay the said rental notes as they become due, and in addition thereto shall pay off and discharge all taxes and legal assessments of every character which may become a lien on said land, and shall procure and maintain insurance on the dwellings on said premises against loss or damage by fire for $1,500 for the benefit of first party or assigns, as his interest may appear, and shall keep and preserve the premises to the end that no waste be committed therein.
“Should said second party neglect or fail to pay said rental notes when samé becomes due, or within ninety days thereafter, or shall neglect or fail to comply with any of the covenants herein mentioned, then this lease, at the election of the said first party, shall immediately terminate and they or their assigns may immediately take peaceable possession of said lands, and the statutory written notice required in cases of unlawful detainer is hereby waived.
“And said first party hereby covenants with said second party that if all rental sums are promptly paid when due, or within ninety days thereafter, as also taxes and legal assessments and insurance, then first party hereby binds himself, his heirs, executors and administrator to execute and deliver to said second party a deed with full covenants of warranty, with relinquishment of dower, with abstract, conveying said land to said second party, his heirs and assigns in fee simple, but should default be made in payments as above provided, this obligation to convey shall be void.
“But all stipulations herein in regard to said contract of sale are wholly conditioned in this: That the full and complete payment of the above mentioned rental notes, taxes and legal assessments and insurance premiums, shall be conditions precedent to the execution and delivery of said warranty deed.
“And nothing herein shall be construed to change the relation of landlord and tenant existing between said parties until all said agreements are fully kept and performed.
“It is further agreed, that all improvements placed upon said land shall be at the expense of the second party, and that no liens shall be fixed thereon without the consent of the first party given in writing, and all im provements placed upon said land shall immediately become a part of the realty and shall not be removed by the second party unless he shall become the owner.
“This is to certify that I, party of the second part, have read (ór have had read to me) this contract in full, and that I thoroughly understand and do accept all the terms and conditions of same, and that it contains and sets forth fully all the agreements by and between the parties hereto.
“In witness whereof, said parties have this 23rd day of June, 1939, in duplicate signed this instrument. “Witness: • (signed) Mrs. Chas. F. Bauer ‘ ‘ (signed) Russell Hollis, Jr. “ Chas. F. Bauer “ “ Joe A. Norton.”
Rufus A. Martin testified that he was a teller in the Simmons National Bank; that Mr. Bauer and Mr. Dotterer came to the bank and Bauer said that he had $235 and wanted to pay up his interest and apply balance on principal indebtedness he owed Mr. Dotterer; that he wanted to pay interest on $3,000 and witness figured the interest on that sum for six months at 6 per cent.; figured the interest on $500 until February 2, and applied the balance, $126, on the $500 note.
Mr. Bauer testified that he was ill when he bought the property and signed the option; that Dotterer could not deliver the property at the time because he had it in the hands of Little Rock real estate men; had a misunderstanding about fixtures and stock; he thought these would go with the place, and appellee claimed they did not, and he had to pay something for them; but for that he could have paid the $1,000 cash. Witness testified that they then made an entirely different trade and that Dotterer fixed up the contract; he read the notes and signed them; he did not pay close attention to the contract; noticed the word “maturity” in it and the rest was printed form; did not notice any interlineation where interest was to be paid 6 per cent, semi-annually; saw that the interest was to be paid from maturity; that was in capital letters; did not figure he owed anything on the $3,000 at the time; did not understand that Martin was figuring interest oh $3,000; did not know he was charging interest on $3,000; did not read that parties of first part were to pay 6 per cent, interest from date; got a receipt for the money paid at the bank, but the same has been lost.
Mrs. Bauer testified in substance the same as Mr. Bauer as to the date when interest was due.
Russell Hollis testified that he drew the contract and notes; that Dotterer employed.him to draw them; notes were drawn as directed, except for a typographical error; the $500 was to draw interest from date, and the small notes from maturity; it was a typographical error in stating the small notes were to draw interest from date, payable semi-annually. Witness was employed and paid for writing the contract; where the contract states that Bauer was party of the first part, it should have stated he Avas a party of the second part.
Rolla E. Dotterer was recalled and testified that Bauer wanted a receipt; that Mr. Martin wrote it out and he signed it; Bauer did not make any complaint when Martin told him about the interest; witness gave Bauer a receipt for $90 which was interest on $3,000 from June 23rd to December 23, 1939; did not tell Hollis that the interest Avas due from maturity; the option was written by Mr. Bauer and there Avas no question about it; there Avas nothing new about the contract; the trouble was raising the money.
The chancellor entered a decree in favor of appellees, and this appeal is prosecuted to reverse that decree.
The appellants say, in their brief: “The sole question to he determined in this case is: Did the court err in reforming the contract and notes in controversy to make them read that interest on the $25 notes should run from date?”
In other words, the sole question in this case is whether the notes for $3,000 were to hear interest from date or from maturity.
The option was written by Mr. Bauer on February 16, 1939, and the contract was written on June 23, 1939. After Mr. Bauer found that he could not pay the $1,000 cash, it was then agreed that he should pay $500 cash and give his note for $500 and the 120 notes for $25 each.
The appellee, Dotterer, testified that the only change was to permit Bauer to pay $500 cash instead of $1,000; that there was no other change from the original option.
Appellants have cited a number of authorities, but there is not one of them where the facts are similar to the facts in the instant case.
It seems perfectly clear from the record that the 120 notes should bear interest from date, and that Mr. Bauer understood this; he not only understood it, but at the end of six months he actually paid the interest on the $3,000 from date and was given a receipt for $90. There is no dispute'in the evidence about these facts.
Mr. Hollis, who was employed to draw the notes and contract, is not a lawyer. The contract was written on a printed form and the word “maturity” was in capital letters. Mr. Hollis evidently wrote, on' the typewriter in the contract: “The party of the first part is to pay 6% interest from date on the 120 notes semi-annually. ’ ’ The only explanation he gave for this was that it was a typographical error. It was evidently written in at the suggestion of Mr. Dotterer, or else Mr. Hollis knew what the contract was and wrote in it. Mr. Bauer certified that he had read the contract in full and that he thoroughly understood it and accepted all the terms and conditions of the same, and it contained, set forth fully, the agreements by and between the parties thereto.
It seems to us that it was the intention of the parties, as shown by the evidence, that the interest on the 120 notes was to be paid from date.
Where there is ambiguity, in any part, word, or words of an instrument, it is the court’s duty to place itself in the situation of the parties and ascertain, if possible from the language used, what the parties meant. Wells v. Moore, 163 Ark. 542, 260 S. W. 411; Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S. W. 2d 801.
In the last cited case the court also said: “In order to construe a contract, the first and most important thing is to ascertain the intention of the parties. This may be ascertained in this case by the contract itself, by the acts of the parties under the contract, and by the situation of the improvements or buildings on the prop erty. And this court has said: “ ‘Courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they view them and so as to judge of the words and of the correct application of the language to the things described’.”
In this case the appellants knew long' before suit was brought, not only that appellees were claiming interest from date, but that interest had been calculated by the bank teller on the 120 notes for six months in compliance with the contract. The teller explained this to Mr. Bauer, who asked for a receipt. Appellees gave him a receipt for $90 which was 6 per cent, interest on the 120 notes for six months. The contract expressly provided that this interest on the 120 notes was to be paid semiannually.
Bauer, beyond dispute, acquiesced in the payment of the interest on these notes from date for six months as provided in the contract; took a receipt, and was bound to know all about it.
“The term ‘acquiescence’ is sometimes used improperly. It differs from confirmation on the one side, and from mere delay on the other. While confirmation implies a deliberate act, intended to renew and ratify a transaction known to be voidable, acquiescence is some act, not deliberately intended to ratify a former transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it. The theory of the doctrine is, that a party, having thus recognized a contract as existing, and having done something to carry it into effect and to obtain or claim its benefits, although perhaps only to a partial extent, and having thus taken his chances, cannot afterwards be suffered to repudiate the transaction and allege its voidable nature.” 2 Pomeroy’-s Equity Jurisprudence, (4 ed.) § 964.
The decree of the chancery court is affirmed. | [
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Grieein Smith, C. J.
If on appeal lawsuits could be decided by weighing' the unsupported declarations of counsel for appellant against the defensive explanations of appellee’s legal aids, the case at bar would be less perplexing. If without a complete record, and in the absence of testimony, we could give to ex parte statements appearing in the briefs that degree of verity so earnestly contended for, a decision based upon merit might he possible in spite of the difficulty in deciding between conflicting avouchments; but more often the result would serve to emphasize and justify the rule that argument must be predicated upon competent evidence as distinguished from the escalade of desire.
George Davie died in 1938, leaving a substantial estate and attending claims to it. After living as a bachelor for many years, Davie married Electa Pearcey. He obtained a divorce from which Mrs. Davie unsuccessfully appealed in 1926. Twelve years later they remarried and were living together when George Davie died. Appellee, a half sister forty years younger than the decedent, is next of kin.
In 1936 George Davie made a will. He left $20 to Mrs. Bobbie Welch, $5 to Allie Smoot (appellee) and devised and bequeathed the remainder of his property to his wife, who was constituted executrix with the request that she be permitted to serve without bond. February 13, 1939, letters testamentary were issued to her.
An appraisement was filed May 4, 1939. In addition to notes, secured and unsecured, seventeen tracts of land in White county and six tracts in Prairie county were listed; also town property in Beebe. An annual settlement (undated) was made by the executrix, showing receipts of $1,036.31. Disbursements of $1,038.79 are shown.
October 14, 1940, the probate court made an order removing Mrs. Davie as executrix. Mrs. Smoot was appointed administratrix in succession and was directed to execute a $2,000 bond “in some surety company authorized to do business in Arkansas.”
In appellant’s brief it is asserted that about thirty days after George Davie died the will was probated. The record does not show such order. It is then stated: “Upon filing the will for probate the anticipated contest was filed by Allie May Smoot.” Again, the record is silent. However, it is conceded that the widow elected to renounce the will and to take under the statutes. Commissioners were appointed to allot dower in the lands. The order recites a petition by Mrs. Davie, granting of the request, and retention of jurisdiction for further orders.
Appellant contends that the removal of Mrs. Davie as executrix was void because the order shows on its face she was not in court, and that she had not been served with notice. It is also contended that no complaint against her was filed, as required by § 37 of Pope’s Digest, and that there was no service; also, that the order does not show on its face facts essential to jurisdiction.
By certiorari appellee has brought up a certified order, nunc pro tunc, made March 10, 1941. It is copied in full in the margin. It is contended, however, that the court was without jurisdiction to make the order while there was pending an appeal from the judgment dismissing appellant as executrix and appointing commissioners to assign dower. The answer is that courts have continuing jurisdiction to correct their records in order to make them speak the truth.
It is next insisted that the order attempting to allot dower is void; that it shows on its face appellant was not in court; that she had not been served with notice; that no petition for allotment of dower was filed in probate court; that no summons was served on all interested par ties; that the probate court of White county could not make a valid order assigning dower in lands in Prairie county; that the chancery court had jurisdiction of the parties and the subject-matter, and the probate court could not lift the cause out of chancery court; and, finally, it is contended that the order fails to show on its face a finding of facts essential to jurisdiction.
Appellant, by certiorari, has exhibited her response to notice that application would be made for the order, nunc pro tunc; response filed March 10, 1941, by W. W. Shepherd to notice of application for the order; order removing appellant; order relating to dower, and appointment of commissioners, and report of commissioners dated October 21,1940.
At page 35 of appellant’s brief there is copied what purports to be a petition in the White chancery court. At brief page 10, appellant says she “. . . asked the chancery court to assign her dower in White and Prairie counties.” At brief' page 41, following the petition, appellant says:
“Summons was served and returned on all parties. . . . On the chancery judge’s docket in this case (being case No. 750) the following appears in the judge’s handwriting: ‘February 12,1940, order appointing commissioners to set aside dower.’ ”
Although this petition does not appear in the record and should not' be in the brief, nor should there be reference to it, appellant has presented it in support of the argument that the chancery court had jurisdiction to appoint commissioners, and that the probate court lacked jurisdiction for want of a petition and because lands were in two counties. Crabtree’s Adm’rs v. Crabtree, 5 Ark. (5 Pike) 638.
While it is true that the order of -September 16,1940, appointing commissioners, appears to have been in probate court, it is signed “Prank H. Dodge.” Whether he acted as chancellor or probate judge cannot be deter mined from the record. No other order or judgment of the probate court of even date appears.
The first paragraph of the order of September 16, 1940, is: ‘ ‘ On this day came on to be heard the petition of Mrs. Electa Davie . . . for allotment of her dower,” etc.
' Amendment No. 24 to the constitution does' not permit courts of chancery to lift estates out of courts of probate and to apply equitable principles in disposing of controversies cognizable only in' probate. Wooten v. Penuel, 200 Ark. 353, 140 S. W. 2d 108.
From the record we are unable to say that the chancellor was not acting as such in appointing commissioners to assign dower, and since the entire record' is not before us there is a presumption that action was by the court having jurisdiction.
The record is certified by G. 'Carl Smith, “county and circuit clerk.” The verification is that Smith “. . . does hereby certify that the foregoing fifteen pages of typewritten matter contain a true and perfect copy of the originals as [they] appear in my files and duly recorded in the records of White county.”
Half of the record, or any part of it, might have been omitted, and still the certificate could be true. Its effect is merely to attest genuineness of the fifteen pages.
Because the record is fragmentary — a fact emphasized by the efforts of counsel for appellant to use his brief to bridge the gaps — we cannot say that the court erred.
Affirmed.
Davie v. Davie, 171 Ark. 1187, 284 S. W. 780.
“On this 10th day of March, 1941, comes Allie May Smoot in person and by her solicitors, Harry Neelly and C. E. Yingling, and the respondents, Mrs. Electa Davie and W. W. ■ Shepherd, come not but wholly make default herein; and this cause is submitted upon the petition of Mrs. Allie May Smoot, as only heir at law of George C. Davie, deceased, for correction of an order made and entered by this court on the 14th'day of October, 1940, removing Mrs. Electa Davie as executrix of the estate of George C. Davie, deceased, and appointing Allie May Smoot as administratrix in succession; and notice of the filing of said.petition and the hearing upon same on March 10, 1941, having been duly served upon W. W. Shepherd, attorney of record of Mrs. Electa Davie, and upon Mrs. Electa Davie; and the reply of Mrs. Electa Davie to the notice and the petition for a nunc pro tunc order to change or modify an order made on the 14th day of October, 1940, removing said Mrs. Electa Davie as executrix, and also the response of W. W. Shepherd, and oral testimony taken in open court, of Harry Neely and C. E. Yingling, from all of which the court finds:
“That on and prior to October 14, 1940, the said Mrs. Electa Davie, as executrix of the estate of George C. Davie, deceased, was represented by W. W. Shepherd and Charles W. Mehaffy as her solicitors, and that they appeared in this court in connection with this action on several occasions prior to this date, and that the said Mrs. Electa Davie knew Charles W. Mehaffy, as well as W. W. Shepherd, was appearing in said matter as her attorney; that both of said attorneys, W. W. Shepherd and Charles W. Mehaffy had actual knowledge of the filing of the petition by Allie May Smoot for the removal of said Mrs. Electa Davie as executrix of the estate of George C. Davie on the 14th day of October, 1940, and prior thereto.
“And the court being well and sufficiently advised as to all matters of fact and law arising herein, and the premises being fully seen, doth order, adjudge and decree that the said Electa Davie, executrix of the estate of George C. Davie, deceased, be and she is hereby removed, and she is ordered and directed to file a complete accounting of her executrixship on or before the next term of this court; and it is further considered, ordered and decreed that Allie May Smoot, as only heir at law of George C. Davie, deceased, be, and she is hereby appointed administratrix in succession upon her petition for her appointment, duly verified, and the filing of a bond in the sum of $2,000 in some surety company authorized to do business in the state of Arkansas.
“And this order and decree having been made on October 14, 1940, but not having been entered of record on said date, is entered now for then.”
It is styled: “Mrs. Electa Davie v. Estate of George C. Davie, Deceased; Allie May Smoot; Citizens Bank of Beebe, and Ewell Doss.”
In White county the county clerk is clerk of the probate court, but the circuit clerk is also clerk of the chancery court. | [
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MoHaney, J.'
Appellant is an Oklahoma corporation and is a common carrier, operating an electric line of railroad between Fort Gibson and Muskogee, Oklahoma, with its principal place of business in the latter city. Appellee is a commission merchant of Yan Bnren, Arkansas.
On each of the days of February 12,14, and 15, 1940, appellee purchased certain potatoes from one Homer Anderson, d. b. a., Anderson Potato Company, at Muskogee, for which he gave Anderson a check or draft for $212.60, $132 and $162, respectively on his bank in Yan Burén. Anderson indorsed said checks or drafts in blank and delivered them to appellant in due course, in payment, as appellant contends, of freight charges due it by Anderson. Appellant promptly deposited said checks or drafts to its account in its bank for collection, but they were returned protested for nonpayment because appellee had stopped payment upon them, although the potatoes were delivered to him on the days of purchase and hauled out by trucks. Demand was made by appellant on him for payment, which was refused, and a separate suit was brought on each check to enforce payment in the municipal court of Yan Burén. Appellee admitted he had stopped payment on the checks and alleged that Anderson was indebted to him .in a sum equal to or in excess of the total of said checks; that appellant was not an innocent holder thereof in due course, due to the fact that it and Anderson were engaged in a joint venture or partnership in the potato business; that it had full knowledge of the transactions of Anderson and was in fact a party thereto and that Anderson was heavily involved financially and by reason of a working agreement between him and appellant, all potatoes handled by him were delivered to appellant and kept by it on its tracks under its control and all checks made payable to Anderson were immediately indorsed to it to avoid attachments and garnishments against him, thereby enabling him to cheat and defraud his creditors, including appellee and prevent them from collecting their debts and judgments. Trial in the municipal court resulted in a judgment for appellee, and, in apt time an appeal was prosecuted to the circuit court, which again resulted in a verdict and judgment for appellee. This appeal followed.
At the conclusion of all the evidence, appellant requested a directed verdict in its favor on the ground that, under the law and the evidence, it is a holder in due course of the three instruments sued on. The court refused said request, and this assignment is the basis of the principal ground urged here to reverse said judgment.
We think, the court erred in refusing this request and in submitting the case to the jury. It is undisputed that appellee, acting through his son and agent, Floyd Myers, bought the potatoes from Anderson in the yards of appellant in Muskogee, actually received them, loaded them in his trucks and hauled them away. Anderson refused to sell to appellee except for cash. The checks given for the purchase price were delivered to Anderson and by him indorsed and delivered to appellant, two of them in the presence of Floyd Myers. The fact that Anderson was indebted to appellee on account of previous transactions created no infirmity in the instruments. Section 10213 of Pope’s Digest defines what an infirmity or defect in title in a negotiable instrument is, as follows: “The title of a person who negotiates an instrument is defective within the meaning- of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as to amount to fraud.” Now, these checks were not acquired by Anderson under any of the conditions mentioned in said section, so he had a good title to the checks which were without any infirmity in them. His indorsement and delivery of them to appellant passed his title therein to it, and there was no infirmity in them to take notice of. Section 10217 provides: ‘ ‘ Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he . > . . acquired the title in due course. . . .” Here the burden never shifted because Anderson’s title was not defective. Section 10210 defines a holder in due course as one “who has taken the instru xnent under the following conditions: (1) that it is complete and regular upon its face; (2) . . .; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ” It appears to us to 'be undisputed that appellant was a holder of these checks in due course, as defined in said § 10210. That it took same “in good faith and for value” was testified to by its general manager, who testified that where a car of potatoes was shipped to Anderson on shipper’s order, he had to surrender the bill of lading to appellant in order to get possession of the car; that he would have to go to get it from the bank by paying the draft attached to bill of lading; and that without doing so, he could only enter the car for the purpose of inspection. Anderson put up a guaranty fund with appellant so he could take up bills of lading, starting with enough to pay the freight and take up the bill of lading on one car and increased it to enough to take up four. The witness had no control over Anderson’s operations, nor any interest in his business, no share in his profits or losses, and that the only interest appellant had in the Anderson Potato Company was to collect the freight charges and the bills of lading on cars of potatoes. So the fact that it took the checks in good faith and for value is established.
This evidence is undisputed and there is no basis for the assumption that appellant was a partner with Anderson. The fact that all checks given Anderson in payment for potatoes were indorsed to appellant, is explained, if explanation is necessary or relevant, by the fact that he had to keep his guaranty fund up to a sufficient amount to pay for four cars of potatoes and the freight thereon, in order to be able to surrender bills of lading and get possession of the cars of potatoes. Nor is the fact that some officer or employee of appellant kept the keys to the cars until' the surrender of the bills of lading indicative of an interest in or control over Anderson’s business. On the contrary it was for appellant’s protection. The statement made by an officer of appellant that it was making about $23 per car on Ander son’s business is explained by the fact that he had reference to the freight charges. But, assuming that appellant was interested in Anderson’s business other than as a carrier, we think this fact would not alter the situation nor justify appellee in stopping payment on these checks so as to afford him an offset of a debt due him by Anderson alone.
We are, therefore, of the opinion that the court erred in refusing* to direct a verdict for appellant at its request because it was a holder of the checks in due course. The judgment will be reversed and judgment will be entered here for the amount of said checks, protest fees and interest thereon at six per cent, per annum from the dates of protest, the first having been protested on February 17, 1940, and the other two on February 19, 1940, and all costs. | [
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G-reenhaw, J.
The appellee in this case, a corporation, was engaged in the undertaking business in the city of Little Rock, its sole stockholders, officers, and directors being Alfred Leymer, his wife and his sister-in-law, Miss Ruebel. Leymer was secretary-treasurer and manager. The appellant was employed as an embalmer fox-appellant by Mr. Leymer iix 1925. At that time another employee, Carl Yess, was assistaxxt manager. Ixx 1928 the said Cax-1 Vess became totally disabled due to illxxess, which terminated his services for appellee. Thereupon the duties of Vess were delegated to the appellant.
The appellee carried an insuraxxce policy with the Johxi Hancock Mutual Life Insuraxxce Compaxxy upon the life of Carl Yess for $10,000 with a total disability provisioxx of $100 per moixth, which was paid to Yess while he was disabled. On December 18, 1928, a similar policy was issued by the same compaxxy for $10,000 oxx the life of the appellaixt, with total disability provisioxxs aixd waiver of premiums in the evexxt of total disability, the beneficiary being the estate of the appellant. Oxx December 21, 1928, said $10,000 policy was duly assigned to the appellee, who thereby became the owner thereof and paid all premiums thereon uxxtil the appellant also became totally disabled iix June, 1938. Appellant had beexx continuously employed by appellee since 1925, with the ex-ceptioxx of about two weeks ixx January, 1930.
The insuraxxce coxxxpaixy begaxx making payments oxx said $10,000 policy direct to the appellee in the sum of $100 per moxxth aboxxt Jxily, 1938. The appellee collected said moxxthly payments axxd in turn paid the amounts collected iix 1938 to the appellaixt monthly. After handling the matter in this manner for about six months the appellee wrote the insurance company to pay these monthly disability installments direct to the appellaixt uiitil further notice. Thereupon the insurance company paid the monthly disability installments due under said policy direct to the appellant throughout the year 1939. The appellee in the early part of January, 1940, notified the insurance company to make no more payments to appellant, and to pay said monthly installments direct to it. This action on the part of the appellee in stopping the disability payments to appellant resulted in the appellant’s filing suit against the appellee in the Pulaski circuit court. The case was tried by a jury, resulting in a verdict for the appellee signed by nine .jurors, upon which judgment was entered for it, and from which is this appeal.
The complaint alleged the defendant was a corporation engaged in the undertaking business, that plaintiff was employed and began working for defendant in 1925 and remained in its employ with the exception of about two weeks in January, 1930, until June, 1938; that in December, 1928, the defendant, acting through its duly authorized officers, agreed as an inducement to plaintiff to continue in its emplo}^ that it would take out a policy of insurance in the amount of $10,000 on plaintiff’s life; that said policy would contain provisions for the waiver of premiums and the payment of $100 per month in the event the plaintiff should become totally and permanently disabled; that the policy would be assigned to the defendant, but in the event of plaintiff’s total and permanent disability the disability benefits collectible under the policy would be paid to the plaintiff as a consideration for past services; that plaintiff consented to continue in the employ of defendant and the policy was issued and assigned to the defendant, all in accordance with the agreement; that in January, 1930, the plaintiff went to New Orleans for a period of two weeks; that he returned to Little Rock and was informed by the defendant that the policy was still in force and that the disability benefits collectible thereunder would be paid.to him if he would resume employment; that in consideration of that offer the plaintiff resumed his duties' and worked until June 11, 1938, at which time, by reason of a serious heart malady, he was forced to retire from business; that in accordance with the terms of the agreement, which had been completely and fully performed on plaintiff’s part, the defendant directed the insurer to pay the disability benefits to the plaintiff, and such benefits were paid without interruption until the 17th of January, 1940; that since said date all payments made by the insurer have been appropriated by the defendant in violation of the contract, and plaintiff prayed judgment for the monthly installments collected by the defendant from January, 1940, to the date of trial.
The defendant in its answer admitted that plaintiff was employed in 1925 and remained until June 11, 1938, except for the short time that plaintiff was in New Orleans. It denied that it agreed as an inducement to plaintiff to continue in its employ to take out a policy of insurance; denied there was any agreement that the policy was to contain disability benefit provisions, and that benefits collectible thereunder would be paid to the plaintiff; admitted that plaintiff went to New Orleans, but denied when he returned to Little Rock he was informed that the policy was still in force, or that the defendant offered to continue it in force and pay the disability benefits to the plaintiff if he became disabled; denied that in accordance with the terms of the agreement the insurer was directed to pay the disability benefits to the plaintiff, or' that it collected any disability benefits in 1940 in violation of the terms of the agreement. It alleged that the policy of $10,000 with provision for waiver of premiums and payment of $100 per month in the event of total disability was obtained and paid for by. it upon the life of the plaintiff, but that said policy was the sole property of the defendant at the time ikwas issued, at the time of the assignment, and at all times thereafter, and that plaintiff never at any time had any interest therein; that when the plaintiff became disabled the defendant voluntarily, in order -to assist the plaintiff, directed the insurance company to pay disability benefits to the plaintiff until such time as the defendant notified • it not to do so; that it notified the insurer in January, 1940, to make all further payments under the policy directly to the defendant, and since that time payments have been made to the defendant; that the plaintiff has no interest therein, and that same belonged to the defendant.
There was a direct conflict in the testimony of the appellant, Rutland, and Alfred Leymer, the secretary-treasurer and manager of appellee corporation, as to the alleged contract which was the basis of this lawsuit. The appellant testified that when he accepted the position as assistant manager in 1928, Leymer agreed to carry a $10,000 life insurance policy on him, with a $100 per month total disability provision, and that appellant would be paid said disability benefits in the event of his total disability; that he accepted said position under this agreement; that he resigned in'January, 1930, and went to Few Orleans, and returned in about two weeks; that Leymer then told him if he would resume his employment, the total disability benefits under the terms of said policy would be paid to him if he became totally disabled, as long as he was disabled; that he accepted said offer, relying on Leymer’s statement, and resumed his work for appellee and continued to work until he was totally disabled in June, 1938; that he was paid said disability payments until January, 1940, when appellee had them stopped.
Alfred Leymer testified that there was no agreement with appellant about paying him the disability payments in the event he was disabled, either when appellant was made assistant manager in 1928, or when he returned from Few Orleans in 1930 and resumed his former position; that there never was any agreement that appellant would receive the insurance disability payments; that after appellant was disabled and the insurance company began making these payments, the appellee voluntarily and because they wanted to help appellant, paid and caused to be paid to the appellant these monthly disability payments for a period of 18 months; that appellee will collect $10,000 upon the death of appellant.
The .appellant and Leymer were the only witnesses who testified about the alleged contract. There were other witnesses and facts and circumstances in evidence. Thus it is seen that there was a direct conflict in the evidence of appellant and Mr. Leymer as to the existence of the alleged oral agreement upon which this litigation is predicated. The one said there was such an oral agree ment; the other said there was not. This was the issue to be determined.
The appellant filed a motion for a new trial, assigning- as errors the court’s action in giving instructions Nos. 2, 3, and 4 requested by appellee over the appellant’s general objections to instructions Nos. 2 and 3, and over his general and specific objections to instruction No. 4. In a supplemental motion for new trial the appellant assigned, as an additional ground therefor, newly discovered evidence. The motion for a new trial was overruled, to which appellant excepted. We do not think the court erred in giving the defendant’s requested instructions Nos. 2 and 3, nor in refusing to grant a new trial on the ground of newly discovered evidence, for the reason that it was apparent the appellant had some knowledge of the alleged newly discovered evidence and failed to use due diligence to obtain it.
And finally, the appellant contends that the court erred in giving appellee’s requested instruction No. 4. This instruction, and the specific objections thereto, are as follows:
No. 4
“You are instructed that the mere fact that the defendant paid to the plaintiff an amount equal to the disability benefits that accrued under the policy from June, 1938, to December, 1938, and authorized the insurance company to pay said benefits direct to the plaintiff during the year 1939 is not of itself sufficient to establish that the plaintiff is entitled to said benefits. If you find that the defendant did not expressly agree to pay said benefits to the plaintiff as a part of the consideration for his contract of employment, but find that the defendant permitted the plaintiff to receive said benefits as a gratuity, then you are instructed to return a verdict for the defendant.
“The plaintiff specifically objects to that part of said instruction which reads: ‘You are instructed that the mere fact that the defendant paid to the plaintiff an amount equal to the disability benefits that accrued under the policy from June, 1938, to December, 1938, and authorized the insurance company to pay said benefits direct to the plaintiff during the year 1939 is not of itself sufficient to establish that the plaintiff is entitled to said benefits.’ The plaintiff objects specifically to that part of the instruction because it singles out one feature of the evidence in the case and directs the jury that that evidence, or fact, in itself does not conclusively sustain liability on the part of the defendant. To single this testimony out unduly emphasizes the fact that it is not-conclusive and amounts to an instruction on the weight of the testimony. The plaintiff asks the court to give an instruction which submits the issue to the jury upon all the facts and circumstances in evidence without singling out any one particular fact or testimony for undue emphasis.”
Appellant vigorously contends that the first part of said instruction was highly prejudicial to appellant in that it singled out the most predominant circumstance which supported the appellant’s contention, referred to it as the “mere fact” and then said it was not alone sufficient to establish that plaintiff was entitled to the disability benefits. The appellant at the time specifically called to the court’s attention the objectionable feature of said instruction through his specific objection thereto, and insisted that it unduly emphasized this strong circumstance, and in singling it out in such a manne'r, amounted to an instruction on the weight of the testimony. We think that under the facts in this case the giving of said instruction, over the specific objection of the appellant, was prejudicial and constituted reversible error.
The courts generally have held that it is improper for a trial judge to single out any one circumstance and give it undue emphasis. This is for the reason that it is well known that a jury is ordinarily influenced by the opinion expressed by the court. It is to guard against such a tendency and to guarantee an even contest on the facts that appellate courts have condemned this practice. Reversals have not always resulted, because in some instances no prejudice could be shown. Where there is prejudice a reversal is proper. Whether there is prejudice depends upon the particular conditions as reflected by the record under consideration.
We quote from 64 C. J. 575: “It is improper for the court to state that a contraverted fact is or is not established; . . . similarly, charges are improper which minimize or’ belittle evidence, indicate or destroy probative values of testimony, . . . state that certain evidence does or does not prove a fact or only indirectly bears on the issues, state that certain evidence is of little value, is or is not material, is or is not sufficient, . . . tell how certain evidence should be regarded, or considered or interpreted.”
On page 582 of the same authority we find: ‘ ‘ The court may instruct that issues may be determined by the facts and circumstances in evidence, and it may name facts or circumstances which the jury may consider, but it must not state what the circumstances indicate or destroy the force of circumstances.”
In the case of Hogue v. State, 93 Ark. 316, 124 S. W. 783, 130 S. W. 167, this court said: “The other objection to the instruction is that it singles out this circumstance and unduly emphasizes it. The practice of framing separate instructions on distinct circumstances, and thus, as it is said, singling them out, is not commendable, and it has been held by this court in several decisions that it is not error to refuse such instructions. Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Ince v. State, 77 Ark. 418, 88 S. W. 818. But the giving of such an instruction is not prejudicial error where the court in the whole charge directs the jury to consider all the facts and circumstances proved in the case.”
In the instant case the court did not in instruction No. 4 nor at any other time tell the jury that it should consider all the facts and circumstances in evidence in reaching its verdict. See Holland Banking Co. v. Booth, 121 Ark. 171, 180 S. W. 978.
In the case of Bennett v. Bell, 176 Ark. 690, 3 S. W. 2d 996, this court said: “The instructions relative to the settlement and release were also erroneous. Number 4 unduly stresses the question, and told the jury they were called upon, first, to determine whether there had been a settlement of the claim for damages, and that they need not consider either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the question. . . . For the errors designated-the judgment is reversed, and the cause remanded for a new trial. ’ ’
In the case of Grayling Lumber Co. v. Hemingway, 128 Ark. 535, 194 S. W. 508, this court said: “But while the testimony was sufficient to warrant the court in submitting the issue of waiver on the part of appellant of a breach of contract, if any, on the part of the appellee, the court did not correctly submit that issue in instruction No. 4, supra. That instruction was calculated to confuse and mislead the jury. It was perhaps intended to cover the question of waiver, but really did not do so. It only directed attention to the single fact of leaving logs in the woods, and told the jury that if appellee did leave logs in the woods, but afterward hauled and delivered these logs, and that same were scaled, accepted and paid for, that this fact would not constitute a breach of contract on the part of appellee. The testimony disclosed other facts than the matter of leaving logs in the woods which appellant contended constituted a breach by appellee of his contract. . . . The instruction was objectional and prejudicial because it gave undue prominence to one particular fact and assumed as a matter of law that there was no breach of contract under the facts stated when this was an issue to be determined by the jury. Western Coal & M. Co. v. Jones, 75 Ark. 76, 87 S. W. 440. The instruction invaded the province of the jury. . . . For the error in giving instruction No. 4, the judgment is reversed and the cause remanded for a new trial.”
The Supreme Court of Illinois, in the ease of Minnis v. Friend, 360 Ill. 328, 196 N. E. 191, said: “Similar language to this was condemned in West Chicago Street Railroad Co. v. Petters, 196 Ill. 298, 63 N. E. 662, where we held that instructions which select one item of evidence or one fact disclosed and state that a certain conclusion does not follow therefrom as a matter of law are calculated to confuse and mislead a jury. Drainage Commissioners v. Illinois Central Railroad Co., 158 Ill. 353, 41 N. E. 1073. If such instructions were to be held proper, a defendant coiild select each separate fact constituting the entire chain of evidence by which negligence was -proved, and thus instruct the jury, through the court, that each link in the chain did not, standing alone, constitute negligence. While the separate links standing alone as ‘mere facts’ might not constitute negligence, the whole, taken together, would. Thus the consideration of these separate facts would be taken from the jury and its province would be invaded.” See Drda v. Drda, 298 Ill. 278, 131 N. E. 599.
In the case of Hanson v. Schrick, 160 Ore. 397, 85 Pac. 2d 355, the court said: “The most serious assignment of error pertains to the following instruction of the court: ‘I instruct you that the evidence of the smell of liquor on the breath or of having been drinking intoxicating liquor is not sufficient, standing alone, to prove intoxication or that one is under the influence of intoxicating liquors. ’ . . . Under such state of thé record, it was reversible error for the court thus to invade the province of the jury in determining the effect and value of the evidence as to whether plaintiff was under the influence of intoxicating liquor. It has been repeatedly held by this court that it is error for the trial court to select a single part of the evidence and instruct the jury as to its probative value.”
In the case of Garvey v. Chicago Railways Co., 339 Ill. 276, 171 N. E. 271, the Illinois Supreme Court reversed the lower court for giving the follpwing instruction: “The court instructs the jury that the defendant, the Yellow Cab Company, had the right to operate the taxicab in question on the north-bound street car track on Halsted street, and the jury are not to infer that the Yellow Cab Company was negligent from the mere fact that the taxicab was in the north-bound track.”
The court said:
“It is a settled principle that an instruction should not draw the attention of the jury to particular facts and that it is improper to inject an argument into an instruction. Where an instruction selects one item of evidence, or one fact disclosed by the evidence, and states that a certain conclusion does not follow as a matter of law from that fact, it is calculated to mislead and confuse the jury. Drainage Com’rs v. Illinois Central Railroad Co., 158 Ill. 353, 41 N. E. 1073; West Chicago Street Railroad Co. v. Petters, 196 Ill. 298, 63 N. E. 662; Illinois Central Railroad Co. v. O’Keefe, 154 Ill. 508, 39 N. E. 606; Pienta v. Chicago City Railway Co., 284 Ill. 246, 120 N. E. 1. The principles thus clearly laid down in these authorities constrain us to say that in the light of the facts of the present record the giving of instruction 35 was reversible error.”
The appellee contends that the statement included in its instruction No. 4 was not reversible error, and cites and chiefly relies upon the case of Arkadelphia Milling Co. v. Campbell, 141 Ark. 25, 216 S. W. 20, where this court did not reverse the case because of a similar provision in an instruction.
In the Arhadelphia Milling Company case the instruction was as follows: “You are instructed that if you believe from the evidence that W. L. Campbell was the foreman and agent of A. O. Campbell in the construction of Henderson-Brown College and acting as such agent purchased the necessary material for Henderson-Brown College, this fact alone is not sufficient evidence that he had any authority to enter into a contract binding A. O. Campbell, to build a warehouse for the plaintiff as payment for any material purchased.”
However, the facts in the Arhadelphia Milling Company case are clearly distinguishable from the facts in the instant case. In that case the Arhadelphia Milling-Company sued A. O. Campbell upon a contract which was executed between it and W. L. Campbell, claiming that W. L. Campbell was the agent of A. 0. Campbell. There Avas no evidence AAdiatsoeA^er that A. 0. Campbell authorized W. L. Campbell to enter into the. contract. In this case they attempted to fix liability on A. 0. Campbell by reason of the fact and on the theory that W. L. Campbell had been acting as agent for him in another matter. No one testified that there Avas any contract or agreement between A. 0. Campbell, the defendant, and the plaintiff, Arhadelphia Milling Company. Hence the court no doubt thought it aauis proper to incor porate in the instruction the fact that W. L. Campbell was foreman and agent of A. 0. Campbell in the construction of Henderson-Brown College and acting as such agent purchased the necessary material for Henderson-Brown College, was not alone sufficient evidence that he had any authority to enter into a contract binding A. 0. Campbell to build a warehouse for the plaintiff. Doubtless this instruction was given because there was absolutely no evidence of direct authorization from A. 0, Campbell to W. L. Campbell to enter into this contract with the Arkadelphia Milling Company, and the fact that W. L. Campbell had been the agent of A. 0. Campbell in another matter, was a circumstance which needed explanation.
On the other hand, in the instant case, the appellant testified positively and unequivocally that he did have a contract with the appellee which entitled him to the disability benefits. No contention was made by the appéllant in the instant case that the fact that the appellee paid and caused to be paid to the appellant the disability benefits for a period of 18 months, standing alone, was sufficient to establish liability. However, the appellant contended that the fact that such payments were made was a strong circumstance in corroboration of his direct testimony. The fact that disability benefits had been paid to appellant was only a circumstance, but the- appellant contends that it was a strong circumstance to show that the appellant and the appellee did have such a contract.
If the payment of benefits for 18 months had been the only fact in evidence, then it would have been proper for the court to say as a matter of law that no contract had been proved. Since there was direct testimony as to the existence of a contract, and as there were other facts and circumstances, the court should not have singled out this one circumstance.
■ Having reached the conclusion that the giving of instruction No. 4 at the request of appellee under the facts and circumstances in this case, and over the specific objection and exception of the appellant was preju dicial error, tlie judgment is accordingly reversed, and the cause remanded for a new trial.
Grieein Smith, C. J., Mehafey and McHaney, JJv dissent. | [
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Holt, J.
June 10, 1940, appellee sued appellant in a court of a justice of the peace in Benton county, Arkansas. August 7, 1940, judgment by default was rendered against appellant, and two days thereafter he filed affidavit and bond for an appeal. The appeal bond was in proper form and approved by the justice of the peace.
Subsequent procedure in connection with the cause is contained in the following agreed statement of facts:
“It is hereby agreed by and between counsel for plaintiff and defendant that a default judgment was rendered by J. L. Johnson, justice of the peace for Wallace township, Benton county, Arkansas, on the 7th day of August, 1940, and appeal was granted by said court, and that the transcript of the proceeding had in the justice court was delivered to the clerk of the circuit court of Benton county, Arkansas, within thirty days subsequent to the date of judgment; that said case was not marked, filed or docket kept for its cases until September 14, 1940, for the reason that the filing fee wasn’t paid until that date.
“Mr. Allred, having been sworn and called as a witness on behalf of plaintiff, testified as follows: Direct examination by Yol T. Lindsey: Q. Isn’t that right, Mr. Allred? A. Yes, sir. I didn’t file the papers until the fees were paid. We had orders from the judge to get the fees in the cases before we filed the papers. We have a place down there in the office to lay papers until the fees are paid, then we file them. That was our orders from the judge, to collect the fees.”
October 18, 1940, appellee filed motion in the circuit court to dismiss appellant’s appeal on the ground “that the transcript of the judgment in this cause was not filed in the office of the circuit court clerk within thirty days after the rendition of the judgment.”
November 13, 1940, appellee’s motion to dismiss the appeal was heard before the Benton circuit court and the court (quoting from the decree) “upon the pleadings, transcript and agreed statement of facts in support of the motion, finds for plaintiff on the motion, and that said motion should be sustained and the appeal dismissed” and entered judgment accordingly. This appeal followed.
Appellant urges here that the transcript of the proceedings in the justice court was filed within the period required by the statute (§ 8479, Pope’s Digest, as amended by act 323 of the acts of 1939), and that the court erred in dismissing his appeal. We think this view of appellant must be sustained.
Section 1 of act 323 of the acts of 1939 provides: “A party who appeals from a justice of the peace judgment, or a common pleas judgment, or a municipal court judgment, must file the transcript of the judgment in the office of the circuit clerk within thirty days after the rendition of the judgment. If the transcript of the judgment is not filed within thirty days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.”
' It is clear under this act, that appellant, in order to perfect his appeal, was required to file a transcript of the judgment and record of the justice of the peace, in the office of the clerk of the circuit court within thirty days next after the date upon which judgment was rendered against him. It is conceded that appellant did deliver the transcript to the clerk within this thirty-day period, and the clerk accepted it, hut did not mark the transcript filed because, as be says, tbe filing fee was not paid. We interpret bis testimony to mean, however, that he received the transcript from appellant and kept it in the clerk’s office without making any demand upon appellant for the filing fee and without notifying appellant that it would not be filed until the fee was paid.
In these circumstances, we think there was a filing with the clerk within the meaning of the statute. The fact that the clerk did not indorse on the transcript his filing mark cannot change the result. The fact remains, on this record, that the clerk received and accepted the transcript without complaint and without demanding- the filing fee. Had the clerk refused to accept the papers until appellant paid to him the fee to which he was entitled for filing, or had informed appellant that he would not file them until the fee was paid, then a different situation would present itself.
We hold that the clerk could have refused to accept the transcript until 'appellant had paid the required filing fee, but, as we have indicated, having received and accepted the transcript without demanding the filing fee, the filing was complete within the thirty-day period.
In Buchanan v. Commercial Investment Trust Co., 177 Ark. 579, 7 S. W. 2d 318, this court said: “The circuit court properly overruled the motion to dismiss the appeal. The act of leaving or depositing the paper in the proper office constitutes a filing of it. A paper is filed within the meaning of the law when it is delivered to the proper officer and received by him to be kept on file. The file mark is evidence of filing, but it is not the essential element of the act. Eureka Stone Company v. Knight, 82 Ark. 164, 100 S. W. 878. Hence the circuit court was justified in finding that the affidavit and bond for appeal were left in the proper office tb be filed, and that the act of leaving them there within thirty days after the rendition of the judgment constituted a filing within the legal meaning of the word, although there was no indorsement on the affidavit and bond for appeal that they had been filed.”
And in Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579, this court said: “While the certificate of the clerk ■entered upon the demurrer at the time of its receipt is the best evidence of such filing, it is not conclusive evidence to that effect, and it was competent to show byparol evidence what was intended. The reason is that while it- is proper for the clerk when he receives papers, to indorse thereon the date of the filing, such indorsement is not the filing; but is simply an evidence of such filing. A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. Bettison v. Budd, 21 Ark. 578; Eureka Stone Co. v. Knight, 82 Ark. 164, 100 S. W. 878. See, also, Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 705; Powers v. State, 87 Ind. 144, and Grubbs v. Cones, 57 Mo. 83.”
For the error indicated, the judgment is reversed, and the cause remanded with directions to the court to overrule appellee’s motion to dismiss the appeal and for further proceedings. | [
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Mehaeey, J.
This action was instituted by the appellees, H. R. Koen, and others, in the Pope circuit court against the appellants, H. L. Wilson Lumber Company, and others, to recover damages received in an automobile. collision, alleged to have been caused by the negligence of appellants.
The appellees are residents of Russellville, Pope county, Arkansas, and the H. L. Wilson Lumber Company is engaged in the business of cutting lumber and selling the same at retail, and transporting by trucks lumber to other states, and the principal office of the company is in the city of Hot Springs, Garland county, Arkansas. The H. L. Wilson Lumber Company is owned and operated by H. L. Wilson under the name of H. L. Wilson Lumber Company. E. E. Grisham is a citizen of Hot Springs, Arkansas, and is in the employ of the appellant, H. L. Wilson Lumber Company, as a driver of a truck and trailer belonging to the appellant lumber company. On May 9, 1940, at about 11 o’clock p. m., appellant, E. E. Grisham, was driving a truck and trailer for the lumber company over highway No. 64, and said trailer and truck were loaded with approximately 10,000 feet of lumber, the lumber and truck being of the weight of approximately 26,000 pounds. While driving in a westerly direction on said highway and on the paved portion thereof, the driver of the truck, while acting as agent, servant, and employe of appellant lumber company, stopped said truck, so loaded, upon the right-hand portion of the concrete slab at a point on U. S. highway No. 64 near the Morphis filling station, extinguished the lights on said truck and trailer and remained stopped there on the highway, on the paved portion thereof, without putting out flares or other danger signals. The appellee, Mrs. Laura Koen, was riding in a 1940 four-door Chevrolet De Luxe sedan, which was being operated and driven by her son, Jim Hugh Koen.
The appellees alleged that Koen was driving at a moderate rate of speed on the right-hand side of highway No. 64, traveling in a westerly direction with due care for his own safety, and the safety of his mother. The car in which Mrs. Koen was riding crashed into the rear end of the trailer, causing severe, dangerous and permanent injuries to Mrs. Laura Koen. It was alleged that said accident was caused by the negligence of H. L. Wilson Lumber Company and its agent, servant and employe, E. E. Grisham. The complaint then describes the injuries to appellee and alleges that she was taken to St. Mary’s Hospital in Russellville and suffered great pain and permanent injuries, and that she would never be able to perform the duties of a wife in and around the home, and that because of said injuries, she has been caused to expend the sum of $379.50 hospital and doctor’s bills. The other appellee, H. R. Koen, is the husband of Mrs. Laura Koen and the owner of the car in which she was riding at the time of the accident. He alleges that by reason of the injuries sustained by his wife, which were caused by the negligence of the appellants, he will be deprived of her services, companionship and consortium for the remainder of her life. He alleges that the car was damaged in the sum of $388; that the injury to Mrs. Laura Koen and the property damage were the proximate result of the carelessness and negligence of the appellants. The complaint then describes the acts of negligence.
The answer denied each and every material allegation in the complaint. It alleged that if Mrs. Koen was injured, her injuries were caused by her own negligence or the negligence of Jim Hugh Koen imputed to her, and that appellants are not liable in any sum.
There was a verdict and judgment for Mrs. Laura Koen in the sum of $6,000 'and a verdict and judgment in favor of H. R. Koen in the sum of $3,000. Motion for new trial was filed and overruled, and the case is here on appeal.
Appellant argues first that the negligence of Jim Hugh Koen will be imputed to Mrs. Laura Koen. It is true that if Jim Hugh Koen was guilty of negligence that caused the injury, Mrs. Koen could not recover. The trial court took this view of it, and gave the following instruction:
“You are instructed that if you find from a preponderance of the evidence in this case that Jim Koen was a minor, under sixteen years of age, and that in procurement of a driving or automobile operator’s license, his mother, Mrs. Laura Koen, as his natural guardian, signed the application therefor and assumed responsibility for any negligence or willful misconduct of the said Jim Koen thereafter in the driving or operating of an automobile, then any act of negligence or willful misconduct upon the part of Jim Koen, if any there be, is imputed to Mrs. Laura Koen and she would be liable with the minor, Jim Koen, for any damage caused by the negligence or willful misconduct, if any, of Jim Koen.
“So, if you find from a preponderance of the evidence in this case that the accident complained of was caused by the negligent or willful misconduct of Jim Koen, a minor, in the operation of the automobile in which his mother, Mrs. Laura Koen, was riding, then such act of negligence, if any, is imputed to Mrs. Laura Koen and she would be bound thereby and plaintiffs would not be entitled to recover herein. ’ ’
It is next contended by the appellants that the undisputed evidence shows that Jim Hugh Koen was guilty of negligence. Appellant’s truck was being driven on the highway and was stopped on the concrete, when the undisputed evidence shows that the shoulders were six or eight feet wide, and that there was a roadway from the main highway to the place where trucks were to be weighed, and ample room in this driveway for appellant’s truck. There was, therefore, no necessity or reason for stopping the track on the highway. Koen was driving about 45 miles an hour before he saw the “slow” sign, and thereafter slowed down to about 20 or 25 miles an hour.
There is a conflict in the evidence as to the flares and lights, and the negligence of Jim Hugh Koen was a question for the jury. We have reached the conclusion that there was substantial evidence to support the verdict and judgment, and it would serve no useful purpose to set out the evidence.
It is next contended by the appellant that the court erred in refusing to give defendants’ requested instruction No. 8, which reads as follows: “You are instructed that if the employees of the Highway Department had placed flares in front of and behind the place, where the driver stoppéd the truck, then it was not incumbent upon the driver to place flares in the road as provided by the statute and his failure to do so would not be negligence.”
It is the opinion of the majority that instruction No. 8 should have been given. The purpose of placing flares is to give warning, and whether the flares were put out by the owner of the truck, or someone else, the traveling public would be protected in the same manner.
The court gave several instructions, which we have carefully examined, and we find no error except in the refusal of the court to give instruction No. 8.
For this error the judgment is reversed, and the cause remanded for a new trial. | [
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Smith, J.
Before their marriage, and in consideration of their contemplated marriage, B. F. Donn and Mrs. Thelma Wilson entered.into an antenuptial contract under date of May 29, 1924. Donn owned, at that time and at the time of his death, two tracts of land, one referred to as the Hill farm, which was his homestead, the other as the Bottom or River farm.
The relevant portions of the contract read as follows:
“It is hereby agreed by the said B. F. Donn that should the said Thelma Wilson survive him and be living with him as his wife at the time of his death that she have and take as her dower and homestead one-third of said land in value, to have and to hold the same during the term of her natural life.”
It is agreed that the provision that Mrs. Wilson shall “have and take as her dower and homestead” means in lieu of dower and homestead.
The contract further provides that ‘ ‘ The said Thelma Wilson hereby agrees to accept a one-third interest, in value, of any and all lands owned by the said B. F. Donn, at his death, providing she is living with said B. F. Donn as his wife at his decease, in full satisfaction of all of her homestead and dower interest in and to all lands owned by said B. F. Donn at the time of his death, and hereby release and relinquishes all dower and homestead interests she might have in law or in equity to all of the lands which said B. F. Donn may own at the. time of his death except a life estate in a one-third interest in value of all of such lands which he may own at his decease, and that if said Thelma Wilson survives said B. F. Donn, and comes into possession of one-third of the real estate so owned by him, that upon her death said lands shall vest in the heirs of said B. F. Donn.”
The contract made a disposition of the personal property unimportant here to consider.
Donn had three children by a former marriage at the time of the execution of this contract, and two children were born to him and Mrs. Wilson after their marriage. Donn died on or about December 2, 1931, and was survived by these five children and his widow. After Mr. Donn’s death his widow qualified as administratrix of his estate, and operated both farms without profit.
The three older children filed suit April 6, 1938, against the widow and the two younger children for an accounting and for partition of the lands. After much testimony had been taken on the question of an accounting a decree was rendered in favor of the plaintiffs against the widow for the sum of $498.99 on account of the rents due them on the River or Bottom farm, and the sale of that farm, consisting of 114.50 acres was ordered for partition, it being found that the farm was not subject to partition in kind.
The decree provided that “. . . the proceeds (of the sale) should be divided one-third for life only to the defendant, Thelma Wilson Donn Dove (the widow having married Dove subsequent to the death of Donn), and the remainder to the five heirs-at-law of B. F. Donn, as named, share and share alike; and that Mrs. Thelma Wilson Donn Dove was born on October 2, 1898, and her life estate should be computed according to the expectancy and mortality tables to the present cash value, and this can be done after the land has been sold and the amount of the proceeds determined.” Partition of the Hill farm — which constituted the homestead — ■ was not ordered.
For the reversal of this decree the widow insists that the court erred in the accounting; but the bill of exceptions, which incorporated the testimony on this question, has heretofore been stricken from the record, and this testimony is not, therefore, before us for review. It is insisted, however, by the widow and the minor heirs 'that there are errors upon the face of the record which may be reviewed in the absence of a bill of exceptions.
The first of these is that it was error to declare a lien upon the widow’s interest in the lands in satisfaction of the judgment which was rendered against her; and we think this contention is well taken.
A similar lien was declared in the case of Clark v. Hershy, 52 Ark. 473, 12 S. W. 1077, and this was held error. A headnote in that case reads: “In such action on rendering judgment for the plaintiff, it is error to decree a lien in her favor on the defendant’s shares in the unsold lands, to secure the payment of rents and profits.” See, also, Brittinum v. Jones, 56 Ark. 624, 20 S. W. 520.
The chief insistence is that it was error to order partition, and it is the view of Justice Holt that, under the terms of the antenuptial contract, the widow is entitled to a one-third interest iii both farms for her life, and that it was error to award partition of the River or Bottom farm.
This is not a case where partition is sought of lands in which the widow has dower which has not been ad- measured. The widow has no dower interest. She has a life estate, which makes her a co-tenant of the heirs. Her interest is referable to and is derived from the antenuptial contract, which gives her a one-third interest, in value, for her life. The decree provides that the value of this interest shall be ascertained and paid to her out of the proceeds of the sale.
Section 10547, Pope’s Digest, which is a part of the chapter on Partition, reads as follows: “The sale of land of infants, persons of unsound mind or married women shall not be deemed to be prohibited as being- in contravention of the deed, will or contract under which they hold, unless a sale is expressly forbidden by such deed, will or contract.”
The contract does not forbid partition, and it was not error to order it, and the cause will be remanded with directions to modify the decree as herein indicated. | [
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Holt, J.
July 17, 1940, appellee, Mena General Hospital, a corporation, sued appellants, Dr. Pierre Bedman and Dr. H. G. Heller, for damages alleged to have resulted from their breach of a certain lease contract and for recovery of certain equipment, supplies and personal property, or its value, together with damages for the wrongful detention thereof. -
Appellants filed demurrers to appellee’s complaint, which were overruled. Thereupon appellants answered denying the material allegations of the complaint, alleged that appellee had breached the contract in question and appellant, Dr. Pierre Redman, filed cross-complaint alleging that appellee was wrongfully withholding from him certain personal property which belonged to him, alleged damages for its wrongful detention and prayed that appellee take nothing on its complaint and that appellant, Dr. Redman, have judgment for the return of said personal property set out in his cross-complaint, together with damages.
By agreement, the cause was submitted to the court sitting as a jury. At the conclusion of all the testimony, the able trial judge made certain findings of fact and conclusions of law, from which we adopt the following findings of fact as being supported by the record in this cause:
“On October 1, 1938, plaintiff, Mena General Hospital, a corporation, was operating a hospital in the city of Mena, Arkansas. Defendants were members of the hospital staff. On that day the parties executed their written lease contract whereby plaintiff leased the property of the hospital and surgical supplies and equipment to defendants for a period of ten (10) years. In this contract defendants agreed to begin construction of a new hospital building within one year from the date of the execution of the lease and further agreed to maintain and operate a General Hospital in the city of Mena during the term of said lease contract.
“It was further provided that defendant lessees should have the right to exchange, or apply as part payment, any part of the leased property for new or modern equipment whenever in their judgment such action would be to their best interest. It was further agreed that if defendants should exercise this right to exchange or trade in property leased for new equipment, then.the new property thus acquired should be ‘considered as substituted for the property so exchanged or turned in and be tbe property of lessor under tbe terms of this lease to the same extent and for the same purposes as that above leased. ’
“It. was further provided that in the event of . a breach of the covenants and agreements set out on the part of the lessees the lessors should have the right to retake possession of the property involved in the lease contract, and all sums paid by lessees to all persons under the terms thereof should become rent and considered as earned and not subject to refund. There are other provisions of the lease contract which do not seem material to the adjudication of the issues involved in this suit.
“Defendants operated the hospital under this agreement for a year and advised plaintiff of their inability to begin construction of a new hospital building as required under the contract and plaintiff accepted this explanation and as explained by the president of plaintiff, ‘we let it fide.’
“Sometime during the early spring of 1940, differences arose between the two defendant doctors, the nature of which seem vague but none the less serious, from the testimony. The situation became so critical that defendant, Dr: Heller, in effect advised plaintiff on May 31,1940, of his withdrawal from further management and operation of the hospital, and notified plaintiff that he would not be further responsible for the accounts and obligations of the hospital. In this connection Dr. Heller in response to a question as to whether he and Dr. Red-man dissolved their partnership of the hospital at the time said: ‘Well, I dissolved it, I just offered the board a proposition to get out and I didn’t go up or have nothing more to do with it. ’
“It is also apparent that the defendant, Dr. Redman, advised the president of plaintiff corporation of the inability of defendants to continue the operation together. While there is testimony to the effect that Dr. Heller later sent patients to the hospital and still was considered a member of the staff, there is nothing to indicate that he ever withdrew from his position as expressed in his letter of May 31,1940, in so far as the active management, operation and maintenance of the hospital was concerned.
“After considerable negotiation between the parties, plaintiff notified defendants by letter of June 21, 1940, of their termination of the contract because of defendants alleged breach thereof, and demanded return of the property under the lease contract. The next day plaintiff sent a truck to the hospital and property pointed out by Dr. Redman as belonging to the board was removed. Other property, the possession of which is involved in this action was left at the hospital. Included in the property left was a hew X-ray which had been purchased by the defendants. According to the testimony of the president and vice-president of plaintiff, defendants had informed them that the old X-ray which had been turned over to defendants at the time of the execution of their contract had been traded in by them on the new X-ray. Defendants did not deny this testimony and the old X-ray was not in the hospital at the time the other property was recovered. ’ ’
The court then announced that there were two principal issues in the ease (1) whether there was a breach of the contract in question by appellants, and, if so, (2) whether they were entitled to the new X-ray machine, a fracture table and a 'blood pressure instrument. He determined these issues in favor of appellee • and adjudged that it have and recover from appellants “one fracture table, or its value $25, together with one blood pressure instrument, or its value $10, together with one new X-ray machine, ... or its value $1,340.” No recovery was allowed appellant, Dr. Redman, on his cross-complaint. Appellants have appealed.
Appellants first urge that the trial court erred in overruling their demurrers to the complaint. In passing on the demurrers it appears that the court ordered certain paragraphs stricken from the complaint and overruled the demurrers as to the remainder. We think it unnecessary to detail here the allegations in the complaint which included, as a part thereof, the lease contract here in question. It suffices to say, however, that after reviewing the complaint, we have reached the conclusion that a cause of'action is stated and no error was committed in overruling appellants’ demurrers after striking certain paragraphs from the complaint.
The principal contention by appellee, in the court below, as well as here on appeal, was that the lease contract in question, under which appellants leased the hospital and equipment from appellee, and under which they agreed “to maintain and operate a general hospital in the city of Mena, Arkansas,’’ was a joint contract on the part of appellants which contemplated and required the personal services of each, and that a breach of the contract on the part of either of the appellants was a breach by both. In other words, one could not perform without the other. It is our view that appellee is correct in this contention.
The contract here in question contemplated the personal services of each of these skilled and experienced physicians and as such their personality becomes very material under a contract for the management and operation of a general hospital such as we have here. It is undisputed here that appellant, Dr. Heller, terminated and breached the contract so far as he was concerned by letter to appellee.
In 17 C. J. S. 330, § 10, the author defines a personal contract as follows: “A personal contract is a contract for personal services; a contract in which the personality of one of the parties is material.”
And in Page on the Law of Contracts, vol, 4, p. 3985, § 2251, we find this language: “A contract to render professional services is personal and nonassignable. An attorney cannot assign an executory contract whereby he agrees to render professional services, nor can an abstractor assign a contract employing him to do certain abstracting. A contract for the employment of a teacher cannot be assigned, . . .” And in support of the text is cited a decision from the Washington Supreme Court, Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L. R. A., N. S., 392, 111 Am. St. Rep. 922. In that case there was involved the contract of a physician and it was there said: “A contract to render professional services is personal and nonassignable. No person can perform, or tender performance, except the person therein named, without the consent of the other party to the contract. . . .”
We cannot agree with appellants that the principles announced in the case of W. D. Reeves Lumber Co. v. Davis, 124 Ark. 143, 187 S. W. 171, control here. In that case the facts are different, The contract in that case was in no sense personal nor was the personality of one of the parties material.
It is also our view that the trial court committed no error in awarding the X-ray machine, the fracture table and the blood pressure instrument in question, or their cash value, to appellee.
There is evidence that appellee on February 29,1936, purchased a complete X-ray machine and equipment for $1,286.60. Dr. Hawkins testified that the fracture table was worth approximately $80 and the blood pressure instrument $10. Appellant, Dr. Redman, placed the value of the fracture table at $62.55.
There is substantial evidence that the X-ray machine and its equipment were applied on the purchase price of the new X-ray machine here in question by appellants after taking over the hospital under the lease agreement, and under the plain terms of the lease contract this new X-ray machine should be “considered as substituted for the property so exchanged or turned in and be the property of the lessor under the terms of this lease to the same extent and for the same purposes as that above leased.” It is our view that this new X-ray machine became the property of appellee upon the breach of the lease contract by either of appellants. Had the parties to the lease contract intended that appellee should be entitled to recover only the value of the old X-ray in such situation they could have very easily so stipulated.
Having reached the conclusion on the whole case that there is substantial evidence to support the judgment of the trial court, we accordingly affirm. | [
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Smith, J.
Appellee is the holder of a permit to transport alcoholic liquors through the state of Arkansas in interstate commerce, which permit was issued pursuant to rules and regulations promulgated by the Commissioner of Revenues under the authority of acts 108 and 109 of the Acts of 1935.
The constitutionality of the legislation pursuant to which permits of this character are issued was thoroughly considered in the recent case of Duckworth v. State, 201 Ark. 1123, 148 S. W. 2d 656, and it would be a work of supererogation to further review the subject. We reaffirm the holding of that case that the commissioner has the authority to issue such permits, and to make reasonable regulations.
Pursuant to this authority, the Commissioner of Revenues issued, on February 3,1941, Supplemental Regulation No. 31, the portions of which, relevant here, are as follows:
Any contract or private carrier shall make application to the Commissioner of Revenues for a permit, which permit shall state in detail the point of origin of such shipment, the point where such shipment shall enter the state of Arkansas, the route to be used in transporting such liquors, and the point where the shipment will leave the state.
It is further required that the application for a permit shall inform the Commissioner of Revenues the day or date of the week when such shipment will be made, the approximate duration of the entire trip through the state, a description of the vehicle or conveyance in which such shipment will be made, the motor and license numbers, and the quantities, in case lots, of such liquors; and, if for more than one shipment, the regularly established schedule that such contract or private carrier intends to follow in making repeated shipments pursuant to such permit.
The contract or private carrier is required to file a surety bond in the sum of $2,000, conditioned that he will comply with the laws of this state and the regulations pursuant to which the permit is issued, and'conditioned further that, in the event the carrier violates any of the terms and provisions of such laws and regulations, the penalty of the bond shall be forfeited to the Revenue Commissioner and the permit be canceled.
•Such permit shall be issued only to carriers who shall enter the state at points known as “ports of entry” where there is a. regularly established revenue inspection station. The carrier is required to report to the inspector, and allow the inspector to examine and check his shipment.
Upon leaving the state the carrier is required to report either to the revenue inspector at the boundary line of the state or to the nearest county revenue inspector of the county from which the shipment leaves the state, in which instances the revenue inspector, or county revenue inspector, shall also cheek the permit and make an inspection of the shipment of spirituous liquors.
The inspectors, both at ports of entry and of the counties from which the shipments leave the state, are required to furnish to the Commissioner of Revenues a record of the permits and shipments which he has inspected.
Appellee, Spiers, received such a permit containing a recital of the information furnished in the application therefor. For this permittee the point of entry into the state was (Blytheville, and the time of entry “before .noon.” The point of exit from the state was Hamburg, and the time of exit “between 6 and 10 p. m.” The schedule of shipments was Monday, Tuesday, Wednesday, Thursday and Friday. The permit further specified the numbers of the highways over which the permittee should travel in passing through the state.
A citation issued to appellee, Spiers, to show cause why his permit should not be revoked, the basis of the charge being that one of his drivers had driven a truckload of spirituous liquors out of the state without the inspection required by the permit.
There is no substantial conflict in the testimony heard by the Commissioner of Revenues on this question. One of the appellee’s drivers entered the state on the morning of May 14th, where the required inspection was made. The driver inquired about the inspection at Hamburg required by his permit, and was told by the inspector at'Blytheville that the inspection could be made at Hamburg’ by any bonded officer. The driver drove on and arrived at Hamburg at 6 p. m. He went to the office of J. C. Newton, the inspector at Hamburg, but was unable to find him. He then went to the sheriff of the county, and that officer gave him a somewhat superficial inspection, and checked him out, and permitted the driver to proceed out of the state from Hamburg.
Inspector Newton admitted that he was not available for the inspection, and that his previous practice had been for a justice of the peace or the sheriff of the county to make the inspections for him in his absence, and he would sign and forward the report thereof to the revenue department. On Mondays and Saturdays he worked in Hamburg from 8 a. m. to 5 p. m., and on Tuesdays, Wednesdays, Thursdays and Fridays, he worked from 8 a. m. to 12 noon. He engaged in what he called field work in the afternoon on those days. May 14th was Wednesday, and on that day Newton worked only until noon as inspector, and devoted the afternoon of that day to field work which he said covered the entire county. His home was in Portland, 20 miles from Hamburg. He had no deputy at Hamburg, but had used both a justice of the peace and the sheriff as inspectors. The sheriff told the driver that Newton had gone to his home, and the sheriff made the inspection and forwarded to the revenue department the report thereof. This report was in proper form except that under Regulation .31 the sheriff had no 'authority to make the inspection and report. Newton was asked: “You didn’t know, on the 14th but what it was all right for him (the sheriff) to make the report?” and he answered: “No, sir, I didn’t know.” Newton admitted that the justice of the peace had checked out liquor consignments for appellee on May 5th and May 8th, and that he had signed the reports on which those shipments had been checked out.
Other testimony was offered showing the system pursued by the revenue department, the purpose being to know and to have records showing that the liquors brought into the state under these permits had been carried out of the state. On this testimony, the Revenue Commissioner canceled the permit of appellee, and that action was enjoined by the chancery court, from which decree the commissioner has appealed.
As we have said, we think the promulgation of regulation No. 31 was a valid exercise of the power conferred by law upon the Commissioner of Revenues. He has the right to require that persons appointed by and responsible to him should make the inspections, and to ignore inspections otherwise made. Bnt the regulations must receive a reasonable interpretation and application, under which their enforcement will impose no unnecessary burdens on the inter state, commerce which he proposes to regulate. The state has the power, under the 21st amendment to the Constitution of the United States, to prohibit-the sale of intoxicating liquors in this state, and, to make that legislation effective, may prohibit its importation into the state; but it has not attempted to exercise that power.
The undisputed testimony shows an attempt, in the utmost good faith, on the part of the appellee, and the driver of his truck, to comply with the law and the regulations of the Revenue Commissioner. The driver had no authority to leave the state at any point except from Hamburg, and he had no right to demand an inspection of his cargo at any time -except Mondays, Tuesdays, Wednesdays, Thursdays and Fridays, between the hours of 6 and 10 p. m. on those days. But he did have the right to have the required inspection during those hours. The Commissioner of Revenues has the power to designate at what times, and from what places, and over what highways, he will permit cargoes of spirituous liquors to leave the state; but this power must be exercised in a reasonable — and not in an arbitrary — manner. Having exercised that power, the Commissioner should have afforded the shipper a reasonable opportunity to conform to and to comply with his regulations. On the other hand, the shipper must make a reasonable and good faith attempt to comply with the regulations. He would not, for instance, be allowed to drive through and out of the state, even though he presented his truck for inspection within the designated hours, because the inspector had temporarily stepped aside and was not immediately available.
Upon the whole case, we are of the opinion that the chancellor was correct in holding that appellee had not given just cause for the cancellation of his permit, and the decree enjoining that action will be affirmed. It is so ordered. | [
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Mehaeey, J.
Mrs. Addie Parker, on July 23, 1938, made a will in which she gave to appellee, Annie Laurie Neill, the bulk of her property. Mrs. Parker died on May 2,1940, nearly two years after the will was executed. The will was admitted to probate and record on May 13, 1940.
The appellants filed exceptions to and protest against the will on May 25, 1940. The contestants stated in their protest that the will was not executed by Mrs. Parker; that it was not witnessed in conformity with the statutes of the state of Arkansas and the law relating to the execution and attestation of wills, and that if the will was signed by Mrs. Parker, she lacked the mental capacity to execute a valid will at the time when it is alleged she signed and executed it; that she was incompetent to transact any business of any nature requiring any judgment whatsoever; that Mrs. Neill, the appellee, procured the execution of said will and is apparently designated as the main beneficiary and legatee under the will; that for several months prior to the date on which the will was executed, the said Mrs. Neill exercised complete and undue influence over the testatrix and completely and fully controlled all of her finances and disbursed practically all of Mrs. Parker’s money; and the execution of the will was the direct result of the exercise of undue and overpowering influence.
It, therefore, appears that the contestants allege that the will is invalid because, they say, Mrs. Parker was not competent to make the will and because of the undue influence of Mrs. Neill.
The chancellor, after hearing the evidence and argument of counsel, found all the issues of fact and law in favor of the appellee; admitted the will to probate and ordered that it be duty recorded as the last will and testament of Addie Parker, deceased. To the court’s finding, the contestants duty excepted and prayed an appeal to the Supreme Court, which was granted. The case is now here on appeal.
A great many witnesses testified in the case; in fact twenty-nine witnesses testified for the proponents, and seventeen for the contestants. Mr. Cook, an attorney of Texarkana, Arkansas, wrote the will and testified in be half of the proponent. He said that Mrs. Parker gave him the list of relatives, and Mrs. Neill did not give him the names of any of the nephews and neiees; Mrs. Parker wrote them out; that he did not pay any attention to Mrs. Parker’s inability to walk without being’ supported; that-coming into the building there are some 15 or 20 steps, and his office is on the third floor; he never talked to Mrs. Neill about the matter; he never advised Mrs. Neill that there was a will, and does not know whether she knew it or not; witness represented Mr. Claude Parker, Mrs. Neill’s brother; knew the Parkers a long time and met Mrs. Parker in Mrs. Neill’s home; had never handled any matter for the Parkers after the execution of the will; he never mentioned the will transaction to anybody except Mr. Danaher in his office on May 4th; Mrs. Parker did not act like she was mentally incapacitated; he read the will to her after it was written and read it to the witnesses; Mrs. Parker signed with a pen and the witnesses signed in her presence.
Mr. and Mrs. Butcher, who witnessed the will* testified in substance that they signed the will as witnesses; signed it in Judge Cook’s office; Mrs. Neill did not go with them, and Mrs. Parker told them not to mention the matter to Mrs. Neill; Mr. Butcher said that Mrs. Parker was perfectly healthy as far as he knew; did not notice anything abnormal, or any disability.
Mr. E. A. Howell testified in substance that he was engaged in the automobile business at Pine Bluff for fourteen years and knew Mrs. Parker about that length of time; he sold her an automobile in 1928, in 1938, and another one in June, 1938; the last car was sold to her after her husband’s death; she traded'in an old Dodge; during the negotiations he saw her five or six times; had some trouble closing the deal; she was hard to trade with; thinks the condition of her mind was good; did not see any tendency to weak-mindedness; that she used good judgment and handled the transaction herself; rode with Mrs. Parker several times and did not notice anything wrong with her mind.
Edwin "Wells had been engaged in the monument business for the last seven years, testified in substance that he sold a stone to Mrs. Parker for her husband’s grave; Mrs. Parker seemed to know what she wanted and signed the contract and paid for the stone; would say that she was about average for a woman of her age; there was nothing to indicate any weak mental condition.
Charles A. Gordon, cashier of Simmons National Bank, testified in substance that he came in contact with Mrs. Parker on the death of her husband; that she did business with the bank until some time last year; talked with her before guardianship papers were taken out; as far as he knew she signed her own checks and later they were countersigned by Mrs. Neill;-Mrs. Parker was in bad health and he thought someone should help her; he thinks she was mentally capable of attending to business and thinks she understood the transactions.
Mr. A. C. Stewart, on behalf of the contestants, testified in substance that he had some difficulty with Mrs. Parker about some roses; she had approved his planting some roses on the boundary line, and after the bushes had grown and were blooming, witness noticed someone digging in the' middle of the flowers; Mrs. Parker informed him that she did not want any roses on her fence and instructed the yard boy to cut them down; witness decided not to have anything further to do with her; never associated with her afterwards, but saw her quite often; regards her as weak-minded, commencing about four years ago; she was crippled and something seemed to be wrong with her right arm; looked like she was in a trance at times; thinks she knew what she was doing in 1937, but thinks it got worse; does not think her mind was right; in the last few months of her life she completely lost her mind.
Numerous witnesses testified that they knew Mrs. Parker intimately and that her mind was normal, nothing wrong with it. Several witnesses testified for the con- ■ testants substantially the same as Mr. Stewart.
It would serve no useful purpose to copy all of the evidence. The chancellor found that the evidence showed that Mrs. Parker was capable of making a will, and we think the great weight of testimony supports his finding on this issue.
There was practically no effort to prove any undue influence that would make the will void. The appellee, Mrs. Neill, was a sister of Mrs. Parker’s husband, and from the evidence they were very intimate. A portion of the estate Mrs. Parker had was received from the railroad company for the death of Mr. Parker, brother of appellee, which occurred in February, 1938.
Appellant first calls attention to the ease of Tobin v. Jenkins, 29 Ark. 151. The court, in that case, held that undue influence and incapacity must be considered together, and said: “There can be no doubt but that failure of a testator to make a fair distribution of his estate amongst his children, at once arouses inquiry as to the probable cause of so unnatural an act. That provision by way of advancements had been made to part of the children, or that some of them were prodigal, or disobedient, is at once looked into by the inquiring mind. Suspicion is aroused, and this unnatural devise is ahvays a circumstance which should go to the jury; but we think that the term, strict proof of fairness, tended to induce the jury to attach unnecessary importance to this circumstance, which, though properly given as such, does not necessarily require for this cause strict proof, or stricter proof, than other circumstances.”
In the instant casé, Mrs. Parker had no children, and she was probably closer to the appellee, her husband’s sister, than to any other person.
The Tobin case is discussed and distinguished in the case of Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917D, 713. The late Chief Justice Hart, in that case, quoted with approval the following rule:
“ ‘As we understánd the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence-which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties.’ ”
Appellants argue that the issue in this ease lies in answer to the following query: “Could the testatrix retain in her memory without prompting, the extent and condition of her property, and comprehend to whom she was giving it, and be capable of appreciating the deserts and relations to her of others whom she excluded from participation in her estate?”
As we have already shown, the testatrix in this case had no children, and there is no evidence tending to show that she was influenced by anyone in the making of the will, but she gave the writer the facts herself, and the statements she made were without any prompting.
Appellants contend that it was evident from the opinion of the chancellor that much of the fallacy of his decision may be definitely traced to his acceptance of the cases of Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695, and Pernot v. King, 194 Ark. 896, 110 S. W. 2d 539, as controlling here. Appellants say that there was no serious contention and no proof of undue influence in those cases. We are of opinion that those cases are controlling.
In the Puryear case, supra, the court said, among other things: “Even if there was some testimoi^ tending to show feebleness of intellect, it would not of itself be sufficient to establish lack of testamentary capacity unless it was so great as to render the testator incapable of appreciating the nature and consequences of his act. Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352. Neither would physical suffering on the part of the testator be sufficient to render the will void unless it was so great as to make him incapable of properly disposing of his estate. Griffin v. Union Trust Co., 166 Ark. 347, 266 S. W. 289.”
In the case of Pernot v. King, supra, the court, quoting from Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, said: “The law leaves everything to the unfettered discretion of a testator, on the assumption that, though in some instances caprice and passion, or the power of new ties, may lead to the neglect of claims that ought to be attended to . . . nothing short of mental unsoundness . . . will avoid a will. Moral, or what the books term ‘medical,’ insanity — a perversion of the sentiments and affections — manifested in jealousy, anger, hate, or resentment, however violent and unnatural, will not defeat a will unless the emanation of a delusion.”
Attorney for contestants ashed appellee the following questions and she gave these answers: “Q. Didn’t you furnish the affidavit upon which the guardianship was based? A. Mr. Evan Crawford furnished that; I just signed what he told me to sign. And later on you told me he was crazy; I guess he was. Q. I told you that? A. Yes, you did, in your office; now don’t deny that. Q. Well, I am not testifying, Mrs. Neill.”
In the case of Bollinger v. Ark. Valley Trust Co., Executor, ante p. 525, 151 S. W. 2d 675, the questions of undue influence and mental capacity were discussed.
There is some conflict in authorities as to the burden of proof. Page on Wills, vol. 1, § 685.
This court said in the case of Smith v. Boswell, 93 Ark. 66, 124 S. W. 264: “As to the insanity of the testatrix and her incompetency to make a will, the ruling of the court is correct. The burden of proof was upon the contestants. . . . The ruling was also correct as to undue influence. The burden was upon the contestants to prove that the will was procured by undue influence.”
The burden of proof, under the decisions of this court, is upon the contestants.
“In ordinary civil actions a fact in issue is sufficiently proved by a preponderance of evidence, and the verdict or finding should be based upon the preponderance of the evidence, whether the evidence is direct or circumstantial. Under this rule a party is not required to prove his case ‘beyond a reasonable doubt,’ ‘beyond doubt,’ ‘beyond any doubt,’ ‘beyond dispute,’ -‘beyond question,’ ‘conclusively,’ ‘to a certainty,’ or a ‘moral,’ ‘reasonable,’ or ‘absolute’ certainty, ‘to the satisfaction of the jury,’ or by evidence which is ‘clear and conclusive,’ ‘clear and satisfactory,’ ‘clear and unequivocal,’ ‘positive and conclusive,’ or such as to ‘satisfy’ the jury, or ‘exclude the truth of any other theory.’ It is not indispensable that his evidence should be even equal to the testimony of one unimpeached witness. All that is required of the party at the outset is to give competent evi deuce sufficient, if undisputed, to establish the truth of his averments.” 23 C. J., p. 12, et seq.
The rule in equity is the same as at law. The Mississippi Supreme Court said in discussing this rule of evidence: “Equity is not more stringent in requiring evidence than a court of law in similar cases. Whatever, therefore, would sustain a verdict in the latter ought to sustain a decree in like case, in the former.” Gray v. Roden, et ux, 24 Miss. 667.
The rule as to the burden of proof is the same as to insanity and questions of capacity, as above stated; and the burden is on the contestants to show want of capacity or undue influence. Page on Wills, vol. 1, § 686.
It is our opinion that the contestants did not prove by a preponderance of the evidence either that Mrs. Parker was insane or that there was undue influence exercised in making the will.
The judgment is affirmed. | [
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Humphreys, J.
In January, 1940, appellant brought suit against appellees in the chancery court of Jefferson county for the custody of Shirley Richards.
Appellant is the father of Shirley, who is now about six years of age and appellee, J. E. Taylor, was the uncle of Shirley’s mother, Mrs. Pansy Graves, and is the great uncle of Shirley.
Appellees took Shirley’s mother into their home and reared her until she married John Mays of Clarksdale, Mississippi, in 1927. The young couple went to Clarksdale, Mississippi, to live, where a child was born to them. They separated after the birth of the child and the child was given to and adopted by John Mays’ sister. A divorce was granted one or the other of them, whereupon appellees went to Clarksdale to get Shirley’s mother and on the way back all agreed for Shirley’s mother, then Mrs. Mays, to go to Dallas, Texas, and make her home with Mrs. Wagner, a sister of appellee, J. E. Taylor, They bought a ticket for her and wired Mrs. Wagner she was coming to live with her. Mrs. Wagner took her into her home as a member of her family and she lived with Mrs. Wagner about six months and then married appellant. They lived together for about two years during which time Shirley was born to them. A short time after Shirley’s birth they separated and appellant left them with his mother and two sisters and went to Colorado in search for work where he remained between two and three months. After returning he and his wife agreed to disagree and his wife brought a suit for a divorce and obtained same, but, by her consent, the custody of the child was awarded to appellant. Some time after the divorce he took Shirley to New Orleans where he kept her in a boarding house until he returned to Dallas which covered a period of about six or eight months. In the meantime Shirley’s mother married Mr. Dallas Sims who was earning a salary of $400 a month. Mr. Dallas Sims had a home and was a man of some means. After the marriage, Mrs. Sims concluded she wanted Shirley back and went to New Orleans and made an effort to get him to agree to return Shirley to her, but appellant refused to let Mrs. Sims have her. In a short time appellant brought Shirley back to Dallas and appellant’s family persuaded him to let Mrs. Sims have Shirley. The argument advanced by them was that Mr. Dallas Sims was a man of means, earning a good salary and was able and willing to support, maintain and educate Shirley. During the time the matter was being considered Mr. Dallas Sims gave appellant a check for $300 and his testimony is to the effect that he gave it to him for the surrender of the custody and control of Shirley to Mrs. Sims. On the day he gave the check to appellant an order was made by the court awarding the custody of Shirley to Mrs. Sims. A short time after getting the check, a Mrs. Etta Mae Jackson testified that she had a conversation with appellant in which he stated he had sold his child, Shirley. Appellant denied making the statement or that he had sold Shirley for $300 claiming in his testimony that he used the money to pay debts incurred by Mrs. Sims while she was living with him as his wife and that he returned $50 to Mrs. Sims and only used $1 out of the oheclc for his own benefit.
Later appellant enlisted in the army for a period of three years and is still in the army. When he first enlisted, he got $21 a month in' addition to his board, clothing, etc., but later got $40. During his entire service in the army he never contributed or offered to contribute anything toward the support of Shirley. He made little effort during the time of his enlistment to keep in touch with Shirley or the Sims. Shirley was supported by Mr. Sims for quite a while and for some reason not disclosed by this record Mrs. Sims took French leave of Mr. Sims taking Shirley with her. She did not leave her address, but later it was ascertained that she had gone back to Clarksdale, Mississippi. The Sims were divorced and Shirley’s mother married John Mays to whom she was married the first time and Shirley was taken into their home and resided there until Shirley’s mother died. Shirley’s mother was ill for about ten months. During that time appellees visited the Mays and Mrs. Mays requested them to take the child after she passed away and rear her in their home where she herself had been reared. After the death of Mrs. Mays, John Mays brought Shirley to appellees’ home in compliance with Mrs. Mays ’ dying request and that is where Shirley now is. After Shirley’s mother ran away from home and married John Mays appellees sent her considerable money whenever she happened to be in need and took an interest in her as much so as if she had been their own daughter.
The appellees are good people, able and willing to support, maintain and educate Shirley. They have a comfortable home, no dependents and can give her every care and attention she will need. Appellee, J. E. Taylor, as heretofore stated, is Shirley’s great uncle and reared Shirley’s mother. Appellant’s people, including his father and mother, are also good people. His father and mother separated and they have a divorce and his father is married again, but the mother and his two sisters reside together. His mother has no separate estate of her own. Her daughters have employment and perhaps between them all they could support, maintain and educate Shirley, and are willing to do so.
Appellant enlisted in the army April 7, 1937, at $21 a month. His salary was raised to $30 around September or October, 1937, and was raised to $42, January 14,1938. These amounts were paid him in addition to his board, clothing, etc. During the period of his services in the army he never contributed anything toward Shirley’s support. He testified that he had completed a course in radio work in the army and has received a commission as staff sergeant which will pay him around $125 a month in addition to his board, clothes, hospital, doctor and dentist bills; that if the custody of Shirley is awarded to him, this will enable him to support and maintain her. When asked what his plans are for taking care of the child if the custody is awarded to him he answered that until he is permanently located he has made arrangements with his mother to take care of his child for him where she lives in Dallas, Texas; that he knows for certain that he will be located for a time in New Jersey and that after that he is not certain where he will be located; that his intention is to remain in the army; that Shirley was with his mother from the 21st of February until September or October, 1935, and again for a while in 1936. He also testified that during his services in the army he took out a $3,000 policy of insurance in favor of his sister, but with the understanding that if anything happened to him she would use it to take care of Shirley.
The record reflects that during Shirley’s entire life she has lived in one family or another, but at no time a sufficient length of time for strong ties of affection and love to form between those with whom she lived and herself. Dallas Sims testified that perhaps he loved Shirley more than anyone else connected with the suit. Including the $300 he paid appellant, Sims has perhaps expended more on Shirley thnn anyone else. Appellant has expended practically nothing toward her support and maintenance and none of his immediate relatives have contributed very much toward her support. Shirley’s mother married four times, two times to the same husband. In fact her life was filled up largely with marriages and divorces. She was the one who had clung pretty closely to Shirley during all her troubles and vicissitudes and she must have had great love for her and she made a deathbed request that Shirley be reared in the home of appellees. Of course her request is not controlling, but, to say the least of it, it is appealing and is the voice of her mother who has passed on in behalf of the welfare of her child.-
The evidence in the case is very voluminous covering the lives of the immediate relatives of Shirley on the paternal and maternal sides, and their ability to provide for her welfare, and, after hearing’ it all, the chancellor concluded and said that appellant had abandoned his child, Shirley Janice Richards, and had forfeited the right to have the care and custody of the child and that as between the parties it would be to the best interest of Shirley that the custody thereof should be awarded to appellees with permission to appellant to visit his child at all reasonable times and rendering a decree dismissing appellant’s petition for habeas corpus.
The late Chief Justice Hart in the case of Kirk v. Jones, 178 Ark. 583, 12 S. W. 2d 879, said: “Minors are the wards of chancery courts, and it is the duty of such courts to make any orders that would properly safeguard their rights. This is a habeas corpus proceeding, and the court had the authority to grant the custody of the child to the aunt, provided it finds that the father had forfeited his rights thereto. Three parties are interested in the custody of minor children, the state, the parents, and the child itself. While the right of the father to the custody of his child is paramount this is denied in many eases and, regard being had for the welfare of the child, its custody has been placed elsewhere. Verser v. Ford, 37 Ark. 27; Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457; and Clark v. White, 102 Ark. 93, 143 S. W. 587, Ann. Cas. 1914A, 739.
“The permanent well being of the child more than its present enjoyment is to be considered as of prime importance. No hard and fast rule can be laid down on the subject, and each case must be governed to a large extent by its own particular facts. ’ ’
Tested by the rule announced in Kirk v. Jones, supra, we are of the opinion that the welfare of Shirley will be best subserved by affirming the decree of the chancellor.
The chancery court, having retained jurisdiction, may make such orders in respect to visitations by relatives of Shirley Taylor as, in its discretion, are proper.
The decree is, therefore, affirmed. | [
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Holt, J.
May 10, 1920, Ada Night, appellee, purchased from appellant, a fraternal benefit society, a “Class A” insurance policy in the amount of $1,000. When the policy was issued, the assessed monthly premium was $1. This premium appellee paid from month to month until April 8,1939. Appellant’s Supreme Board of Trustees, by resolution April 24,1923, raised the monthly assessment rate on appellee’s policy effective June 1, 1923. In answer to an inquiry from appellee in April, 1939, appellant informed her by letter that at that time the payments of $1 per month, which she had been making since the issuance of the policy, under its terms, purchased only $300 insurance, she not having paid the increased assessment levied in 1923 necessary to purchase $1,000 insurance.
Following receipt of this information, appellee filed suit in the Jefferson chancery court May 19, 1939, and the prayer of her complaint was.(quoting from appellee’s brief): “that said policy be construed 'by said court to insure appellee in the sum of $1,000 for the premium of $1 per month, plus extra assessments provided for, or, in the alternative, that she have a money judgment of and from the appellant company, The American Workmen, in an amount equal to all moneys paid into said appellant company by the appellee since May 8, 1920, less sick benefits, plus interest at the rate of 6 per cent, per annum. ’ ’
The answer of appellant denied every material allegation in the complaint and alleged that the policy had lapsed for failure to pay premium assessments.
Upon a trial the court rendered a decree in favor of appellee for all premiums and special assessments paid by her on the policy, less a sick benefit credit of $21, or for a total amount of $365.26, and six per cent, interest thereon from April 8, 1939, together with all costs. From that decree comes this appeal.
We think the trial court erred. The material facts in this case are not in dispute. Appellant is a fraternal benefit society. Its constitution and by-laws, together with the application of the insured, appellee, were all a part of the insurance contract here in question.
The policy provides: “The dues required to be paid by a member to keep this certificate in full force and effect, shall be — $1.00—per month . . ., together with extra assessments, if necessary. . . . This certificate and application for membership, medical examination, the constitution and laws of this society and all amendments to each thereof, and the conditions and provisions on the back of this certificate shall constitute the agreement between the society and the member.”
The constitution and by-laws provide: “The objects for which this society is formed are for the purpose of establishing a system of mutual benevolence and relief in case of sickness, accident, death or old age, the said assistance, aid and relief shall be paid from funds to be created from dues and assessments levied upon the members of the society and for the promotion of fraternal relations among its members during life. . . .
“Section 3. The society may receive as members any person over eighteen and under fifty-five years of age, . . . and who shall . . . obey the by-laws of the society now in force or as hereafter modified or enacted. . . .
“Section 26. The Supreme Board of Trustees of nine members of this society, whose duty it shall be to manage the affairs of the society and constitute and enforce the by-laws and rules of the society, and perform such other duties as may devolve upon such a 'body. . . . It shall authorize and order all special assessments and fix the rate for monthly dues to be paid by members of the society.
“Section 47. Every member shall be liable for payment of such dues as are stated in his or her certificate and for any special assessments levied during the continuance of the membership. . . .
“Section 52. Certificates of this society shall be issued to its members upon such forms as are prescribed by the Supreme Board of Trustees, and members shall pay such dues and assessments as are levied by the Supreme Board of Trustees upon the class or form of certificate issued.
“Section 53. The Supreme Secretary shall immediately after the levy of a special assessment by the Board of Trustees prepare a notice of such assessment, which shall be payable on or before the fifteenth day of the next succeeding month, and notice thereof shall be mailed on or before the last day of the month to all members.
“Section 54. Should a member fail to pay his dues on or before the date they are due as shown by his certificate, he shall stand suspended and cease to be entitled to any benefits and his certificate shall be lapsed, provided that such member may (within a reasonable time from such suspension, if in good health), renew his certificate by making application to the Supreme Secretary and subject to his approval. . ...”
In appellee’s application for membership appears the following: “I do agree that the foregoing application and statements are the basis of a contract for membership in the said Society, and agree to obey and conform to all the rules of said Society and to its by-laws as may be enacted from time to time; pay all assessments as required and conform to the methods governing the same as required by its laws, otherwise the certificate of membership issued by acceptance of this application shall become null and void as may be stipulated therein, or in the by-laws, and in consequence all moneys paid thereon forfeited to the society.”
Appellant’s Supreme Board of Trustees adopted the following resolution April 24, 1923: “Resolved, that beginning June 1, 1923, the following rates shall be the official and legal monthly rates for all our Accumulative Class “A” Policies: . . . Ages 26 to 29, monthly dues first three years, $1.10; monthly dues fourth to tenth year, inclusive, $1.60; monthly dues after ten years, $2.49. . . .
“Further resolved that the above rates shall be applied to all outstanding Class “A” Policies, and if the insured elects to pay the increased rates their beneficiary shall receive full benefits, but, if the insured elects to continue their policy on the old rate, then the insurance liability shall be reduced, and in the final settlement with the beneficiary, benefits shall be adjusted by the payment of such an amount of insurance as the payments of dues would have purchased at the above stipulated rates.
It will thus be seen that appellee, Ada Night, agreed in her application, which was a part of the insurance contract, “to pay all assessments as required,” and, under the insurance policy itself, to pay monthly dues of $1, “together with extra assessments, if necessary.”
Section 52 of the constitution, supra, requires that all “members shall pay such dues and assessments as are levied by the Supreme Board of Trustees.” These bylaws were in full force and effect at the time the policy was issued May 8, 1920.
Under the plain terms of the constitution and bylaws, (.Section 52, supra), the Supreme Board of Trustees had the power to pass and put in force the resolution of April 24,1923, supra, increasing the assessment rates.
45 Corpus Juris 44, § 35, announces the rule that governs this case: “By the weight of authority a society may alter the constitution and by-laws so as to increase the amount of assessments payable, where the member consents thereto, as by an express agreement to pay all assessments that may be levied, . . .”
Section 7871 of Pope’s Digest (§ 12 of act 462 of 1917) provides that “Every such (fraternal benefit) society shall have the power to make a constitution and by-laws for the ... fixing and readjusting of the •rates of contribution of its members from time to time. . . ,” and this section was in effect when'the policy in question here was issued and appellee cannot complain at the additional assessments in the face of her agreement to pay “such dues and assessments as are levied by the Supreme Board of Trustees.” We think this assessment was legally levied in accordance with the plain terms of the insurance contract.
Courts do not make contracts for parties. Their duty is only to construe and to enforce them. Appellee insists, however, that proper notice of this additional assessment was not given to her. The record before us reflects that a copy of the assessment resolution was mailed to appellee by appellant and also that copies of a publication issued by appellant, containing the assessment resolution, were mailed to appellee from time to time. Appellee, however, testified that she never received any of these notices.
Section 53 of the by-laws, supra, which as we have indicated was a part of the insurance contract, required that the assessment notice “shall be mailed,” and we think appellant’s duty was fully discharged in this connection on June 28, 1923, when notice of the assessment was mailed to appellee by depositing it in the United States mail as was done by appellant.
The textwriter in 32 Corpus Juris 1307, § 547, announces the rule as follows: “Where the contract of insurance provides that notice shall be given by mail, a failure to receive a notice properly mailed which is not due to the fault of the company is not an excuse for non-payment. ’ ’
And the Supreme Court of Massachusetts in Lothrop v. Greenfield Stock & Mutual Fire Ins. Co., 2 Allen (Mass.) 82, 85, said: “The defendants, whose duty it was to make the request, transmitted it in the manner stipulated by the contract. They could do nothing further. They did not agree that the plaintiff should receive their letter. Nor was it the agreement of the parties that the request, to be binding on the plaintiff, should be received by him. The contingency of the failure of the notice to reacia him through the mail was not provided for by the contract, and canaaot therefore be set up as forming a valid ground on which to defeat its express stipulations. ’ ’
We are of the view that appellant has fully complied with the plain terms of the provisions of the iaasurance contract presented here, not only in the assessment levy, but in mailing’ notice thereof to appellee. We are unable to find any breach of the contract on the part of appellant. Appellee, however, by her admitted failure to pay the monthly premium assessment due in May, 1939, suffered the policy in question to lapse.
Any rights that appellee may have under the terms of the policy to have it reinstated, are not presentéd for our consideration on this appeal.
The decree will be reversed, and the cause remanded with directions to dismiss appellee’s complaint for want of equity. | [
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Griffin Smith, C. J.
The appeal is from a decree finding* that in the granting clause of a deed the estate conveyed was not limited, but that a limitation in the habendum should be given effect. Appellants deny there was an intent to delimit and seek to invoke the rule of repugnancy, to the end that “forever,” used in the deed’s granting clause, be held to control.
The grant to W. D. Stewart, his heirs and assigns forever, was an undivided half interest in oil, gas, and other minerals pertaining to the land in question. The deed is shown in the second footnote.
A printed form was used. In the habendum, as it appears in the original deed, “forever” has been marked through and “for the term of ten years” substituted.
The suit was one by appellees to reform the deed under claim that the ten-year limitation was agreed upon, but through error of the draftsman it was omitted from the granting clause. The court refused reformation, but held that ‘ ‘ consideration should be given to the intention of the parties as gathered from the face of the deed. ’ ’
We agree with the chancellor. In Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A. L. R. 1234, it was held that where an estate is definitely created in the granting clause of a deed, and in the habendum there is express language reserving mineral rights, the latter con dition will not be construed as a limitation upon the first estate, but rather as an agreement of the parties that the preceding estate was subject to the reservation. It was further said that reservations of mineral rights are so often attempted to be expressed in the habendum that it is not just to apply the technical rule of apparent limita- ■ tion on the prior grant where mineral interests are excluded by subsequent' language. Rather, consideration should be given the intentions of the parties as gathered from the entire document.
It is true that in the Beasley-Shinn Case the holding was confined to the particular facts there stated; but in principle the case at bar is not dissimilar. The estate created by terms utilized in the granting clause (“forever” being nominative of time) was a fee. In modern conveyancing the habendum ordinarily amounts to a useless form. It is commonly used to repeat the name or names of the grantee or grantees, as set forth in the granting clause, to describe the estate conveyed, and to what use. If in other parts the deed is complete, the office of an habendum is sterile. If, however, grantor and grantee choose to utilize it to explain what estate is intended, and this is done in a manner sufficiently clear to impart to reasonable minds what the parties intended the conveyance should mean, there is no reason the contract thus consummated should be judicially disregarded in order that a technical rule may be reverentially • embraced as it totters under the weight of antiquity.
It is finally insisted that appellees are barred by laches. Maloch v. Pryor, 200 Ark. 380, 139 S. W. 2d 51. The case is not applicable; nor was it the duty of appellees to ask for reformation until the limitation upon which they relied was questioned.
Affirmed.
Italics supplied.
Warranty Deed. Oil, Gas and Mineral Royalty. Know all men by these presents: That we, Mrs. N. E. Warren, J. M. Warren and P. A. Warren, for and in consideration of the sum of $200.00 to us cash in hand paid by W. D. Stewart receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said W. D. Stewart and to his heirs and assigns forever an undivided one-half interest in and to all of the oil, gas'and other minerals in, under and upon the [lands described]: . . . subject however, to a certain oil, gas and mineral lease executed by Mrs. N. E. Warren on the 6th day of March, 1925, and unto A. A. Adams on said lands. . . . And for said consideration we do hereby grant and convey unto the said W. D. Stewart and unto his heirs and assigns the right to collect and receive under the aforesaid lease such undivided one-half part and interest of all oil royalties and gas rentals due us or that may become due us under the aforementioned lease. ¶ To have and to hold the above described property, together with all and singular the rights and appurtenances thereto in any wise belonging, and unto the said W. D. Stewart and unto his heirs and assigns for the term of ten years and as long thereafter as oil and gas or either of them is produced from said land. ¶ And we hereby covenant with the said W. D. Stewart that we will forever warrant and defend the title to the above described lands and the rights herein conveyed against all lawful claims whatever.
The decree contained the further provision: “The court finds that the limitation of ten years is a valid limitation, binding on the defendants, W. D. Stewart and his wife, Emma Stewart, and that all the right, title, and interest thereunder of said defendants terminated at the expiration of ten years from the date of said mineral deed.” ÍOther recitals in the decree are not pertinent to this opinion.] | [
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McíIaney, J.
Appellant brought this action ag'ainst appellees, Fletcher and Hudspeth, to collect $11,330.73, under the terms of a written contract between them, dated and executed on October 20, 1932, hereinafter set out, to enjoin the sale of certain lands belonging to appellee, Standard Bauxite & Chemical Co., Inc., hereinafter called the Company, and to establish and foreclose a lien on one promissory note in the sum of $30,000 of the Company, dated February 15, 1932, due January 1, 1936, payable to said Fletcher and Hudspeth and by them deposited in escrow as collateral security for the payment of an indebtedness of $17,500 due by them to appellant as provided in said contract. Appellees answered with a general denial of all the allegations of the complaint. Trial resulted in a decree dismissing the complaint for want of equity, and this appeal followed.
The contract between the parties hereto is as follows : “We, the undersigned, being all the parties to the commission agreement dated May 23, 1928, pertaining to the sale of lands hereby agree that the full compensation to be paid H. W. Anderson on sale of said lands shall be $17,500 and 1,000 shares of the capital stock of the Standard Bauxite & Chemical Company, Inc., and as Fletcher and Hudspeth hold $100,000 in notes of said Standard Bauxite & Chemical Company, Inc., being part of the purchase price of said land, said notes dated February 15, 1932, and secured by first mortgage against the lands covered by said commission, and other lands» and said notes being payable as follows: No. 1 for $15,000 due January 1, 1933; No. 2 for $25,000 due January 1, 1934; No. 3 for $30,000 due January 1, 1935; No. 4 for $30,000 due January 1, 1936, these notes covering part of the purchase price of said lands, therefore, Fletcher and Hudspeth hereby agree as and when payments are made them on above notes- they shall pay H. W. Anderson 17% per cent, of such payments until the full amount of $17,500' with 4 per cent, interest from February 15, 1932, is paid.
“All parties hereto realize and understand that it may be necessary to renew these notes, but all agree that there will not be an habitual renewal of these notes, and that they will be renewed only when a forced payment of same would cause undue hardship upon the Standard Bauxite & Chemical Company, Inc.
“It is further understood and ag'reed that if the first mortgage notes are renewed it in no way abrogates but only delays these commission payments until renewal notes are paid. „
“It is further understood and agreed that Note No. 4 for $30,000 due January 1,1936, of the said series of first mortg’age notes, shall be placed in escrow with the Citizens Bank of Benton, Arkansas, as collateral security for the payment of $17,500 commission covered by this agreement.
“As H. W. Anderson was allotted some stock in the company for some lands he deeded to the company, and for other services, the said H. W. Anderson hereby agrees to transfer all other stock previously allotted to him, over and above the 1,000 shares mentioned above, to Fletcher and Hudspeth.”
The escrow agreement recites: “We agree to hold the No. 4 note in escrow as security as above outlined, until Fletcher and Hudspeth have paid the $17,500 together with 4 per cent, interest from February 15, 1932, or until an order in writing signed by all parties to this agreement, requested that same be released. Dated at Benton, Arkansas, this the 24th day of October, 1932.”
Now it is our opinion that the rights of the parties must be determined from a consideration of this contract alone, and that antecedent contracts and evidence of prior acts, declarations and agreements are inadmissible under the rule that prior agreements are merged into the later one covering the same, subject-matter and under the rule that parol evidence is not admissible to contradict, vary or add to any of the terms of an unambiguous written contract. The contract sued on appears to us to be un ambiguous and has the appearance of one in the nature of a settlement of previous dealings or. transactions.
The contract very clearly provides that the full compensation to be paid to appellant “on sale of said lands shall be $17,500 and 1,000 shares of the capital stock of the Standard Bauxite & Chemical Company, Inc.” Appellee makes the untenable contention that the words “on sale of said lands,” means a sale to be thereafter made, and, that since no sale of said lands was thereafter made, he is not entitled to the compensation named. That a sale of said lands had already been made to the Company and that that sale was the one on which compensation was based, is shown by the next words of the same sentence, reciting that appellees “hold $100,000 in notes” of said Company “being part of the purchase price of said land — and secured by a first mortgage against the lands covered by said commission, ’ ’ etc. This and other language in the contract leave no room to doubt that the commission had already been earned by a sale of the land to the Company. The contract then provides how the compensation or commission shall be paid, and appellees agree that “as and when payments are made them on above notes they shall pay H. W. Anderson 17% per cent, of such payments until the full amount of $17,500 with 4 per cent, interest from February 15, 1932, is paid.” We can see nothing ambiguous about the manner of payment, and it is undisputed that they have been paid $64,747.02 in principal and interest on said notes, but have paid to appellant no part of the 17% per cent, thereof which they agreed they would pay him “as and when payments are made to them.” They are, therefore, indebted to him in the sum of $11,330.73, and the trial court erred in not so holding. The contract makes no distinction in the payments made to appellees, whether of principal or interest, so appellant is entitled to 17% per cent, of both as and when made, and, if not made, should also bear interest from the time they should have been made.
Appellant is also entitled to receive from appellees, Fletcher and Hudspeth, 1,000 shares of the capital stock of the Company.
Note No. 4 for $30,000, mentioned in the contract, was placed in escrow to be held by the escrow agent “as collateral security for the payment of $17,500 commission covered by this agreement.” Since appellees have breached their contract with appellant, by failing to make payment as agreed, we think he is entitled to have said collateral security impounded, foreclosed upon and sold in satisfaction of the sum due him with interest at 4 per cent, from February 15, 1932.
The decree is, therefore, reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Mehaeey, J.
The appellant, Percy Lee Lewis, was convicted in the circuit court of Phillips county, of murder in the first degree, and sentenced to death. This appeal is prosecuted to reverse the judgment of the circuit court.
On October 26, 1940, information was filed by the prosecuting attorney of Phillips county charging the appellant with murder in the first degree alleged to have been committed on July 28, 1940, by shooting W. H. Patton with a pistol. The appellant was unable to employ counsel, arid counsel were appointed by the court to defend him. On arraignment the appellant pleaded guilty of homicide, and the court ordered the jury impaneled to determine the degree of the offense and fix the punishment. Upon the trial the jury rendered a verdict of guilty of murder in the first degree and fixed the punishment at death by electrocution.
On November 8, 1940, the appellant was sentenced to be put to death by electrocution, and the sentence to be carried out January 3, 1941. The case is here on appeal.
E. P. Hickey, Jr., a deputy sheriff of Phillips county, testified that he assisted in the investigation of the state against the appellant, and arrested the appellant; he arrived at the place where the crime was committed about an hour and a half after the-killing; that he had in his possession the bullet that Mr. Patton was killed with; received it from Dr. King,'and it has been kept in the office ever since. The bullet was introduced in evidence. After arresting* the appellant, the deputy sheriff took him to Wabash to Dr. Parker’s office where appellant received first aid treatment; Dr. Parker gave him a shot to stop his suffering; he was then taken back to Helena and put in jail; after that the appellant made and signed a statement which was made freely and voluntarily and without any threats of violence or promises of reward.
The appellant objected to the following question and answer: “Q. Where did you get the pistol that you used that night? A. I got it out of Mr. Craig’s house the time that I went in there.”
Appellant objected to this on the ground that the question and answer are for the purpose of showing a prior crime entirely unrelated and unconnected with the crime with which the appellant is charged; that the same is incompetent, irrelevant, and immaterial, and is prejudicial and is intended to inflame the minds of the jury. The objection was overruled, and appellant saved his exceptions.
The state then introduced the statement of' appellant taken in the identification office on August 5, 1940, before Edgar Hickey and John Anderson. The statement gave appellant’s name and where he lived, and the confession stated that he stayed at home with the baby and let his wife go to town first on Saturday night, July 27th; his wife came home around 9:30 or 10:00 o’clock, and then appellant went up town; he came home around 11:30 and lay down across the bed; he woke up about 4 o’clock and left the house intending to go to Watson’s house to get some chickens out of their chicken house; he knew when he left home that he was g’oing there to steal some chickens; he came across the dummy line and hit the mouth of the alley behind Craig’s; he saw somebody there by the hospital and went back into the alley; when he was over in the yard he saw the colored nightwatchman in the alley by the servant’s house, and appellant ran and got in the hedge fence behind the Watson’s; he came out of the alley behind Craig’s garage and went toward town; the nightwatchman stopped there on the sidewalk, stayed a while, and then went on up town; as soon as the nightwatchman had left, appellant got out and went over to the hen house again; in about fifteen minutes he saw someone in the alley throwing the light on Dr. Mattox’s house and then on the servant’s house; appellant got in the hedge fence again and was going out of the alley there; they came on down the alley and one of them said it sounded like he heard someone in the fence; they threw the light on the fence and just as they did appellant shot twice and ran; appellant was shot and knocked down; he got up and ran through the front of the house, and when he got in front of Mr. Keen’s a dog got after him, and there was a white man there who hissed the dog on appellant; appellant crossed the railroad and went up to Ida Wood’s house and asked her to take his clothes off, that he was shot, and asked her to get him a doctor. He was then asked where he got the pistol that he used that night, and he answered that he got it out-of Mr. Craig’s house the time he went in there; after the shooting he threw the pistol away in the Johnson grass just the other side of the railroad north of an old gin; at the time of the shooting he only had two shells. The statement is then made that this statement had been read to appellant and is correct; that he made it of his own free will and accord and without their offering him any reward or promise of immunity for making it, and that they warned him that anything he might say could be used for or against him in court.
After the introduction of the confession, Mr. Hickey testified on cross-examination, that the appellant was shot and he took him to a doctor, and the doctor did not think he was seriously wounded; he then took him to jail and he got worse, and they took him to a hospital.
The court charged the jury at length, and the close of his charge was as follows: “In this case the defendant has plead guilty to the charge of homicide, that is he doesn’t plead guilty to the charge as conveyed in the information, which charges him with murder in the first degree, but he has admitted the killing. He is entitled to have every reasonable doubt resolved in his favor, and if there is a reasonable doubt in your minds as to the degree of punishment which should be inflicted, he is entitled to the benefit of that doubt, but as to the commission of the crime there is no reasonable doubt, because the defendant has admitted by his plea in open court, he has admitted the homicide.”
It appears from the record that the appellant admitted the killing and made no objection to the instructions of the court or to the evidence, except to the one question and answer above set out. His objection was that this question and answer was evidence of another crime, unrelated to the crime for which he was being tried, and was introduced for the purpose of inflaming the minds of the jury.
This court said, in the case of Ware v. State, 91 Ark. 555, 121 S. W. 927: “And so, too, it is held that one offense cannot be proved by the evidence of the commission of another offense, unless the two are so connected as to form a part of one transaction. ' But, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue, and thus would involve the true and specific issue presented to the jury for its determination, whether the defendant was guilty of the specific crime charged in the indictment.” Dove v. State, 37 Ark. 261; Endailg v. State, 39 Ark. 278; Ackers v. State, 73 Ark. 262, 83 S. W. 909; Allen v. State, 68 Ark. 577, 60 S. W. 956.
The general rule was again stated in the case of Williams v. State, 183 Ark. 870, 39 S. W. 2d 295, but there are exceptions and limitations on the general rule, and it is held that the evidence of the commission of other crimes that tend to show the intent or premeditation are admissible for that purpose, but not for the purpose of showing guilt in the instant case.
In the case of Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, this court said: “The general rule is that admissions of testimony showing the commission of other crimes having no relation to the crime charged is error, but this general rule has no application to the facts of this case. It is always entirely proper for the state to show, if it can, motive for the commission of the crime, and the evidence of Mrs. May, in reference to appellant forcing her to have sexual intercourse with him was entirely proper for this purpose. We understand the rule to he that the fact that evidence introduced to prove the motive of the crime for which the accused is on trial points him out as guilty of an independent and totally dissimilar offense is not sufficient grounds upon which to reject the testimony.”
The court expressly stated, in admitting the evidence : “I am admitting it on the theory that it goes to the question of premeditation, it goes to the intent and purpose of what he was engaged in at the time he fired the fatal shot. In other words, it goes to the question of whether he was committing a felony at the time he fired the fatal shot. ’ ’
This evidence was clearly admissible for another reason. The question and answer do not indicate any crime. There is no indication anywhere in the record that he went to Mr. Craig’s house for any unlawful purpose, or that he committed any crime there. He got the pistol there, he says, at the time he “went in there,” but what he went in for is not indicated anywhere in the record, and so far as the question and answer are concerned, he might have gone to Craig’s house for a lawful purpose and the pistol may have been given to him. At any rate, there is nothing in the record that indicated he had committed a crime at Craig’s house or that he went there for that purpose. ,
Appellant cites and relies on § 4257 of Pope’s Digest which reads as follows: “In all cases appealed from the circuit courts of this state to the Supreme Court, or prosecuted in the Supreme Court upon writs of error, where the appellant has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the appellant shall be heard and considered by thé Supreme Court whether exceptions were saved in the lower court or not; and if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such, cause shall be reversed and remanded for a new trial or the judgment modified at the discretion of the court.”
This court said in the case of Turner v. State, 192 Ark. 937, 96 S. W. 2d 455: “This section has been construed many times by this court, and, while the appellant does not have to save exceptions, he does have to make objections, and here no objection was made.”
There were no objections made by the appellant except the one to the admission of the evidence above set out.
We have carefully examined the record, and have found no error justifying’ a reversal or modification of the judgment.
The judgment is affirmed. | [
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Grieein Smith, C. J.
Great Western Land Company, by deed, conveyed to Herman Brown a tract of land thought to contain 118 acres. Brown conveyed seventeen acres, then sold the remainder to Christine Eldridge Smith. Christine conveyed to B. J. Spain “the north seventy acres” of the tract, it being assumed, as appellees contend, that 100 acres were embraced within the area described by metes and bounds. In reality, there were but 66.71 acres.
Before the deed executed by Christine to R. J. Spain was placed of record, Spain sold to Rena Schnider, appellant. To facilitate transfer, the Smith-Spain deed was destroyed and Christine, at Spain’s request, conveyed directly to Rena Schnider. The deed recites “the north seventy acres of the following described real estate.” Then followed the measured description. •
There is a stipulation that from 1932 to 1936 the land was carried on the tax book as “East of river south part northwest quarter section 36, township 21, range 5 east, 100 acres.” A redemption certificate of April 4, 1939, issued by the county clerk, recites payment of taxes for 1937 and 1938 under the description quoted, with the addition, “valuation, $300.”
A dwelling house was erected by Brown on the southern part of the tract. It is worth $800 to $1,000, according to appellees. Northeast of this house, near a levee, there is another' building. Immediately after purchasing the land appellant went into possession by occupying the house near the levee. She did not at that time lay claim to the southernmost part, upon which the more substantial house stood. Appellant’s deed is dated March 18, 1940. April 15, 1940, Christine executed a deed to her mother, Pearl Eldridge, conveying fifteen acres on the south end of the tract. It contained the more expensive building.
Suit in ejectment was brought in Clay circuit court by Rena Schnider, in which she demanded possession of “the south three-fourths of the northwest quarter of section thirty-six, west of the levee right-of-way, excepting therefrom a piece in the southwest corner thereof 200 by 600 feet.” It is contended by appellant that the house she moved into near the levee is so'situated that members of her family are virtually deprived of ingress and egress; that the only practicable outlet is across the south fifteen acres deeded by Christine to her mother. It is contended by appellant that Christine’s deed to her mother was not executed until notice had been served, demanding possession of the property described in the ejectment suit.
In an answer and cross-complaint, ownership of the south fifteen acres was alleged by Pearl Eldridge. Facts relating to the various transactions were set out, coupled with an allegation that there had b'een a mutual mistake in respect of the acreage conveyed by Herman Brown, and later by Christine; that all parties erroneously assumed that Brown owned 100 acres, and that the north seventy acres — not the entire tract — were sold to appellant. There was a prayer for transfer to equity and reformation.
M. B. Sehnider, acting as agent for his wife, inspected the land prior to purchase. He was accompanied by E. J. Spain, the then owner. He did not remember a conversation with Spain in which the latter explained that the south boundary “would be somewhere up the levee above the highway.” His wife did not see the property before “trading for it.” In acquiring the property from, Spain the Schniders exchanged real estate in Steele, Mo., valued at $1,200. They would not have consummated the deal if informed that the Clay county land contained less than seventy acres.
Charles Eldridge testified that he acted as agent for his daughter in relation to the land; that he talked with Spain and the latter understood he was getting the north end, “and that the south end was not included.” He also claimed to have talked with M. B. Sehnider before Sehnider purchased of Spain. The conversation, in part, was about a tentative south boundary line “somewhere about twenty rods up the levee.”
It was agreed that Spain, if called as a witness, would testify that he understood the south end of the land was not to be included in Christine’s deed, and: “I am sure Sehnider understood he was getting the north three-fourths of the tract.”
The chancellor found that the term “seventy acres” was inserted in the deed by mutual mistake, both parties believing the tract contained 100 acres. There was a further finding that the land was not purchased by the acre, and “acreage was not of the essence of the contract.” It was the chancellor’s view that any claim the plaintiff might have because of a deficiency in acreage was offset by timber cut by the plaintiff from the defendant’s lands.
No complicated' question of law is involved. The facts testified to (not all of which have been set out in this opinion) are ample to sustain the chancellor’s finding that appellant must have known that “the north seventy acres” was not intended as a conveyance of the entire tract. In accepting the deed as written appellant may have been uninformed as to the total acreage, but she was not ignorant of the fact that some land was reserved.
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Holt, J.
Eugene Horn brought suit to recover under a policy of fire insurance issued to him [with lien to the Universal Credit Company], covering loss, or damage, by fire to a 1940 Ford truck. He asked for judgment against appellant, Service Fire Insurance Company, for $600, less deductions as provided for in the policy or such lesser amount as the jury may find from the testimony adduced he may be entitled to recover, together with penalty of 12 per cent., attorney’s fee, and costs. The insurance policy was made a part of the complaint and contained the provision that the amount for which the company shall be liable “shall in no event exceed . . . what it would then cost to repair the automobile or parts thereof with other of like kind and quality. ’ ’
The answer admitted that the insurance policy was in full force and effect at the time of the fire, but alleged that under the terms of the policy its liability was limited to what it would cost to repair or replace the automobile or parts thereof with other of like kind and quality, and that after the loss occurred, the cost to repair or replace the damaged parts with, like kind or quality would not be in excess of $306.10, and offered to pay this amount to appellees.
Just before the trial of the cause in the court below, a stipulation was entered into between Horn and the Universal Credit Company in part as follows (quoting from appellant’s brief): “It is stipulated by and between the plaintiff, Eugene Horn, and Universal Credit Company that Eugene Horn is indebted to Universal Credit Company in the sum of $521.20; that any sum recovered in this cause by plaintiff, Eugene Horn, against Service Fire Insurance Company shall be applied toward the discharge and satisfaction of the indebtedness of Eugene Horn to Universal Credit Company up to $521.20 and any balance to be paid to Eugene Horn.”
Following this stipulation, the cause proceeded to trial before a jury between appellee, Horn, and appellant fire insurance company, and there was a verdict for appellee, Horn, in the amount of $587.35. The trial court refused to assess a penalty or to allow an attorney’s fee.
Appellant has appealed from the judgment against it and appellee has cross-appealed from the order of the court refusing to assess the statutory penalty and attorney’s fee.
Appellant contends that “The only question to be determined on this appeal is whether there is any competent evidence to support the finding- of the jury that the damage to the truck amounted to $587.35. It is the contention of appellant that the only competent evidence as to the cost to repair the truck was that it could he repaired for $306.10.”
The record reflects that the policy of insurance was dated October 19, 1939, and the fire occurred January 2, 1940. Horn purchased the Ford truck new, and had owned it approximately two months when the fire occurred. The amount of the insurance policy was $998, less two per cent, per month. Horn paid $1,118.91 for the truck, which included insurance and finance charges.
Appellee, Horn, testified that he had driven trucks since 1925 and had bought all the parts about them, including motors; that a motor costs $121, the gasoline tank $21, gasoline tank gauge $1.85, cab assembly $142, and frame $180; that after the fire the truck could not be repaired and put in as good condition as before the fire without a new motor, new frame and the parts listed above, and that the cost of parts did not include the necessary wiring* or labor for installing them.
As to the extent of the fire, appellee, Horn, testified that the truck burned in zero weather, the frame was “white” hot in places, burned the wires that ran to spark plugs; burned the battery, saw the oil burning; and that there was no part about the truck that was not damaged by the fire, except the radiator and front wheels and the springs from the transmission to the rear end. When he reached the truck after the fire started, it was in flames all over. About thirty cedar posts that were on the truck burned at the time which made the fire more intense. Appellee had only driven the truck 2,203 miles before the fire and owed a balance of $600 on it. He had made considerable car repairs, had a knowledge of mechanics over a period of years, repaired his own trucks, putting* on and replacing parts. At the time of the fire the ninety-day guarantee of the Ford Motor Company lacked approximately thirty days of expiration.
Josh Tolliver testified that he had had ten years’ experience as a mechanic, viewed the truck, motor, transmission and frame, but did not tear transmission and motor down. He had had occasion to repair burned trucks and made an estimate of the cost to repair the truck in question and fixed the amount at $775. On cross-examination this witness was asked the cost for four of the major items necessary which he gave as $511.50, not including wiring and labor.
Another witness on behalf of appellee testified that he witnessed the burning of the truck and that the- fire raged intensely for more than forty minutes. Other witnesses gave testimony tending to corroborate appellee as to the damage to the truck, and V. M. Phillips testified : “. . . everything that wasn’t metal was burned up. It scaled the paint off, and it looked like to me it was entirely ruined.”
Appellant’s witness, T. J. McCabe, testified: “If a frame gets hot enough, they will damage beyond repairing. I didn’t think that was hot enough because the paint had not been burned off the frame. It had been burned off in a few places.” On cross-examination this witness testified that he did not include a new hood in list and that everything that showed evidence of damage was put on the first list. ‘ ‘ They wanted an estimate of what we thought would put it in serviceable condition. Q. Would you put that in serviceable condition and give him a guarantee for thirty days for that price ($305.10) ? A. No, sir, I wouldn’t give him a guarantee.”
The court permitted the jury to view the truck in question.
Without attempting to abstract more of the testimony, we have reached the conclusion that the above testimony was substantial and ample upon which to base the jury’s verdict. It has long’ been the settled rule of this court that a judgment will not be reversed where there is any substantia] evidence to support it when the evidence is viewed in the light most favorable to the party in whose favor the judgment is rendered. Southern Lumber Company v. Green, 186 Ark. 209, 53 S. W. 2d 229.
Appellant earnestly insists that this cause is controlled by G. E. I. C. v. Norville, 199 Ark. 115, 132 S. W. 2d 789. We do not think so. In that case the damage to the automobile was occasioned by an upset. The fire damage there was inconsequential. In that case four expert mechanics testified that the car could be restored to its value prior to the damage at an expense for parts and labor not to exceed $220 and there was no substantial evidence to the contrary.
Here the damage to the truck was occasioned by a fire that burned intensely for more than forty minutes and, as indicated, we think the amount of the recovery is supported by substantial testimony.
The record reflects that on appellee Horn’s prayer for a 12 per cent, penalty and attorney’s fee, the court made the following order: “Having demanded more than he recovered, the plaintiff is not entitled to the benefit of § 7670 of Pope’s Digest. It is, therefore, ordered by the court that plaintiff recover nothing on his claim for penalty and attorney’s fee.”
We think no error was committed here. Section 7670, Pope’s Digest, as amended by act 71 of the Acts of 1939 does not entitle the plaintiff to the benefit of the statute where he demands more than he recovers. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764.
From the prayer of plaintiff’s complaint, supra, the amount of recovery sought is too indefinite to warrant the assessment of penalty and attorney’s fee.
The judgment is affirmed on direct appeal and on cross-appeal. | [
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Smith, J.
Appellee filed a petition for a writ of mandamus against appellant, as mayor of the city of Little Rock, which contained the following allegations. From June, 1930, to October 1, 1939, he was custodian of City Park. On June 12, 1937, as such custodian, he was placed under Civil 'Service, by virtue of act 322 of the Acts of the 1937 'Session of the General Assembly of this state. Appellant — respondent—is, and, on October 1, 1939, was, the mayor of the city of Little Rock.
It was further alleged that “About October 1, 1939, respondent, for economic reasons, suspended the: operation of certain positions and jobs under civil service for the remainder of the year 1939 for the purpose of bringing the expenditures for that year within the income (of the city), and induced the city council to acquiesce therein. Petitioner was one of the employees respondent laid off from October 1, 1939, for the remainder of the year, with the consent of the city council.”
Petitioner’s salary was $109 per month, and his position has not been abolished. No charges were preferred against him, and he has not been legally discharged, but, in violation of his rights as a civil service employee, the mayor instructed the city engineer, who was petitioner’s superintendent, to drop petitioner from the city pay roll on October 1, 1939, for the remainder of the year, and since the 1st of the year, 1940, respondent has failed and now refuses to instruct the city engineer to again place petitioner’s name on the pay roll and permit him to resume his duties, from which he was temporarily suspended, which he has, at all times, been, and now is, ready, willing- and able to perform.
It was alleged that the city is no longer under the economic strain that brought about his suspension for the months of October, November and December, 1939, and that it now has ample funds to pay him and all other employees; wherefore, he prayed that respondent, as mayor, be directed to restore his .employment. The relief prayed was granted, and from that judgment is this appeal.
We have before us a voluminous record, consisting, in part, of the testimony of the city clerk, the city collector, numerous members of the city council and the mayor; but we will discuss only the testimony which we think should control the decision of the case.
It appears very clear that at the time appellee and other employees were suspended the city was compelled to practice numerous economies to keep the expenditures of the city within its revenues, as Amendment No. 10 to the constitution requires. It appears also that the city might have continued the employment of appellee for the remainder of the year 1939 -without exceeding its revenues; and it appears also that the city’s financial condition was improved during the year 1940, and that the revenues for 1940 exceeded the expenditures by $8,087.01, so that appellee could have been employed and paid, not only for the remainder of 1939, but for the whole of 1940, without exceeding the revenues of the city during those periods. But it has been said so often that it has become a proverb that it is the last straw which breaks the camel’s back. In view of the fact that out of the city’s revenues for 1940 of something less than $700,000, a surplus of only slightly more than $8,000 remained, it does not appear to have been unwise to have practiced economy.
Now, it is not contended that appellee’s suspension was unauthorized; nor is it contended that any attempt is being made to supplant him by the appointment of another to his place; nor has any action been taken which will affect his salary if and when he is reinstated to his place. It is conceded that under civil service regulations no charges having been preferred against appellee, his name stands at the head of those whose names must be considered when the place is re-filled.
While there is no question but that the mayor suspended appellee with the approval of the city council, there is a question as to the time for which he was to be suspended or, rather, the time during which his place should remain unfilled. The testimony of the mayor is to the effect that after a communication from him to the city council as to the state of the city’s fiscal affairs, he was authorized and directed to suspend appellee and certain other employees until the financial condition of the city justified his and their restoration, and in the mayor’s opinion that time had not arrived and for that reason appellee had not been placed back to work. On the other hand, members of the council testified that they had voted for the resolution under which appellee was suspended under the impression, and, as they thought} with the understanding, that appellee should be suspended only during the remainder of the year 1939, and would be restored at the beginning of the year 1940 if the city’s finances permitted this to be done, and in their opinion the city was able after the 1st of 1940 to restore appellee to his place.
The undisputed testimony is to the effect that a .number of the members of the council so advised the mayor and urged the latter to restore appellee to his place. It appears also that a resolution was adopted by the Parks Committee, the committee of the council having-jurisdiction over the city’s parks, directing appellee’s restoration. But the legislative powers conferred by § 9940, Pope’s Digest, are conferred upon the couneil, and not upon the committee thereof. It is the council, sitting as such, which has legislative powers, and not the committees thereof.
It does not appear that the council, sitting as such, passed any ordinance or adopted any resolution relating to appellee’s re-employment, against which the mayor might have interposed a veto, and have assigned reasons for that action. Of course, Ms veto might have been overridden; but this was not done..
Appellee invokes the provisions of § 16 of act 322 of the Acts of 1937, p. 1221, which act reads as' follows: “The City Council, or other governing body, shall, from time to time, fix the number of employees and the salaries to be drawn by each in the departments affected by this act.”
There does not appear in the record before us any ordinance enacted or any resolution passed by the city council the enforcement of which would entitle appellee to a writ of mandamus against the mayor requiring the restoration of bis position to Mm. Certain members of the city council testified that such a resolution was passed by the council, but there is no other evidence of that fact. It is stated in McQuillin Municipal Corporation, 2nd Ed., vol. 3, at § 918, p. 19, that “Usually parol evidence is not admissible to prove an ordinance or resolution.” Our eases of El Dorado v. Faulkner, 107 Ark. 455, 155 S. W. 516, Ann. Cas. 1915A, 708, and Malvern v. Cooper, 108 Ark. 24, 156 S. W. 845, are cited in support of that statement. A headnote to the case of City of El Dorado v. Faulkner, supra, reads as follows: “In the absence of proof of their destruction or loss, parol testimony is not admissible to prove an ordinance or resolution of a town or city council.” See, also, Pugh v. City of Little Rock, 35 Ark. 75; Hill v. Rector, 161 Ark. 574, 256 S. W. 848.
There is in the record before us no evidence of any action of the city council except the parol testimony showing the passage of the resolution; but, as appears from the cases cited, this testimony is incompetent to prove that fact.
The opinion in the case of Fiveash v. Holderness, 190 Ark. 264, 78 S. W. 2d 820, is applicable here. We there quoted and followed the rule announced in 2 Dillon, Mun. Corp., § 479, that “The purpose of the civil service statutes and of other laws prohibiting the discharge of em ployees without cause assigned, notice, and a hearing, is to insure the continuance in public employment of those officers who prove faithful and competent, regardless of their political affiliations. These statutes are not intended to affect or control the power of the city council or the executive officers of the city to abolish offices when they are no longer necessary or for reasons of economy.- They are not intended to furnish an assurance to the officer or employee that he will be retained in the service of the city after the time when his services are required. They do not prevent his discharge in good faith without a trial and without notice when the office or position is abolished as unnecessary, or for reasons of economy. ’ ’
In the case of State of Washington, ex rel. Ausburn v. City of Seattle, 190 Wash. 222, 67 P. 2d 913, 111 A. L. R. 418, there appears an extensive annotation on the question of the “Power to suspend or lay off public officers or employees for a temporary period without pay as an economy and not a disciplinary measure, ’ ’ from which it appears that it has been generally held that this power exists, and its exercise does not constitute a violation of civil service regulations.
In Vol. 2 (Revised) McQuillin Municipal Corporations (2nd Ed.), p. 448,- § 581.1, it is said: “As has previously been seen, civil service laws and veterans’ preference acts usually cover subordinate positions only, and as a rule have no application to elective officers, those holding confidential positions, etc. . . . Likewise, they do not apply where the removal is made in good, faith for reasons of economy; or where an office or place is abolished in good faith, but of course such action cannot be taken to cover up the discharge of an employee in contravention of the law. . . .”
Upon the face of the record before us it does not appear that the mayor acted arbitrarily, or without authority, and we- have many cases to the effect that the writ of mandamus will not be granted to review the exercise of any discretion of an officer or official board, but can only be invoked to compel the officer or board to exercise such discretion; and.this the mayor has done. State, ex rel. Latta v. Marianna, 183 Ark. 927, 39 S. W. 2d 301; and cases there cited.
Ve conclude, therefore, that it was error to award the writ, and that judgment will be reversed, and the cause will be dismissed. | [
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Holt, J.
Appellant, J. C. Honey, is the owner of 80 acres of land in Greene county described as the west half of the northwest quarter, section 1, township 16 north, range 6 east. Appellee, The Bertig Company, owns an 80-acre tract adjoining appellant’s land on the east.
About 25 years ago territory embracing these two tracts of land, together with adjacent lands, was organized into what is known as Johnson Creek Drainage District No. 2. This drainage district constructed a ditch which began about a mile north of the two tracts involved here, and extended, approximately in a straight line, in a southeasterly direction across the northeast corner of appellant’s land and the northwest corner of appellee’s land, thence on through and beyond appellee’s land.
Prior to the construction of this drainage district a stream, or creek called ‘ ‘ old Johnson Creek Bun, ’ ’ entered appellant’s land on the west side at a point about 300 yards south of the northwest corner and meandered its way east across appellant’s land on to appellee’s land for a distance of 238 feet, where the drainage ditch intersected it. Prom this point, the stream turned sharply to the right and meandered its way in a southeasterly direction over appellee’s’ land until the Johnson Creek ditch was constructed to take care of the water in this stream. Sometime after the construction of the Johnson Creek drainage ditch, appellant, with the help of the other property owners, in order to straighten the channel of the stream, or the “old Johnson Creek Bun,” and to take care of overflow and flood waters, dug a “scraper” ditch in almost a straight line east across his land to appellee’s line, and for 238 feet across appellee’s land into the Johnson Creek ditch. This “scraper” ditch varies in depth and width from approximately two feet deep and four feet wide where it enters appellant’s land on the west to eight to ten feet deep and twenty feet wide where it empties into Johnson Creek ditch.
Johnson Creek ditch has a levee on either side about four feet high for its entire length. During flood waters this drainage ditch sometimes overflows, breaking the levee to the north of the lands of appellant and appellee here and overflows them. During such overflow the water flows into and backs into the “scraper” ditch and overflows it. On the south bank of the “scraper” ditch for a distance of 238 feet, where this “scraper” ditch crosses appellee’s land to connect with the Johnson Creek ditch, appellee has constructed a levee about three or four feet high to prevent overflow or flood waters from flowing over his land to the south. Where the “scraper” ditch connects with the Johnson Creek'ditch there has been placed a thirty-inch metal pipe equipped with a floodgate. This floodgate is closed when the Johnson Creek ditch is at high water stage and stops the flow of water from the “scraper” ditch into the drainage ditch.
After appellee constructed this 238-foot levee, appellant filed suit in the Greene chancery court seeking to force appellee to remove it, and also for damages from overflow to his land, alleged to have been caused by its construction, and for injunctive relief.
The trial court found the issues in favor of appellee. Appellant has appealed.
The rule of law is well established in this state that the waters of a-natural stream, or watercourse, may not be so obstructed by dam, or otherwise, by a lower proprietor so as to cause the water to flow back to the detriment and injury of those above him. Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574.
Many witnesses have testified in this cause and much testimony has been brought into the record. We think, however, that it could serve no useful purpose to set it out at length.
In addition to what we have already said, the record reflects that appellee’s land lying immediately south of' this 238-foot levee is approximately one-half foot lower than appellant’s land lying immediately west and south of the west end of this levee. The remainder of the two tracts of land is almost level, there being but a slight drop from west to east. It is practically undisputed that there is no trouble with the water except when the Johnson Creek drainage ditch breaks to the north of the lands here involved, or overflows from excessive rains. We think the clear preponderance of the testimony shows that this short levee constructed by appellee is in no sense a dam or an obstruction, and that appellee has done nothing to obstruct the natural flow of water in the “scraper” ditch (a watercourse constructed, as indicated, to straighten and to take the place of the “old Johnson Creek Run”) to appellant’s damage. It tends to prevent the surface and overflow water from running south over appellee’s land when the overflow becomes so great that the watercourse of the “scraper” ditch overflows its banks and flows south. The levee in question tends to confine the water in this “scraper” ditch or watercourse and to carry it into the Johnson Creek drainage ditch. Except during high water appellant’s land is not overflowed. 1 ¡ | !! [
The law is well settled in this state that a landowner has a right to protect his land from surface water, flood water and overflow, unless in so doing he unnecessarily injures another. In McCoy v. Board of Directors of Plum Bayou Levee District, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A., N. S., 396, this court said:
“The question is therefore presented whether or not, for the protection of lands from inundation by the flood waters of a river, a levee may rightfully be built across depressions, swales and low places so as to prevent the escape of the flood water into surrounding low lands sought to he protected; and also whether or not, in order to prevent the spread of flood water and to protect lands which would otherwise overflow, the building of a levee which has the effect of raising the water higher on the lands between the levee and the river calls for compensation to the owner of such lands thereby damaged. . . .
“The first inquiry would seem to be as to the characterization of' flood waters overflowing a stream, to return again as they recede — whether they should be treated as surface water or as running water of the stream. But we are not sure that such an inquiry is essential to a solution of the question now presented, for, without calling it surface water, we may treat it like surface water or the waters of the sea, as a common enemy which any landowner or body of landowners or public agency may defend against without incurring liability for damages unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense could be avoided. . . .”
The court there .cites Rex v. Commissioners, 8 B. & C. 355, and says: “But the sea is a common enemy to all proprietors on that part of the coast, and I cannot see that the commissioners, acting for the common interest of several landowners, are, as to this question, in a different situation from any individual proprietor. Now, is there any authority for saying that any proprietor of land,exposed to the inroads of the sea may not endeavor to protect himself by erecting a groyne or other reasonable defense, although it may render it necessary for the owner of the adjoining land to do the like? I certainly am not aware of any authority or principle of law which can prevent him from so doing. . . . I am, therefore, of opinion that the only safe rule to lay down is this: that each landowner for himself, or the commissioners acting for several landowners, may erect such defenses for the land under their care as the necessity of the case requires, leaving it to others in like manner to protect themselves against the common enemy.”
And in Leader v. Mathews, 192 Ark. 1049, 95 S. W. 2d 1138, this court said: “The waters causing the most serious trouble in this -ease are overflow water when waters are high, or they are surface waters at other times, and against either one of these, a landowner has the right to defend himself as against a common enemy, without rendering himself liable for damages, unless he unnecessarily injures another for his own protection.”
It is our view that the great preponderance of the testimony in this case supports the findings of the chancellor, and the decree is, therefore, affirmed. | [
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McHaney, J.
Appellants, other than the county, are the county clerk, tax collector, treasurer and county judge of Lawrence county and three Arkansas banks. Appellees, who are taxpayers of. said county, brought this action against appellants to have declared void two certain bond issues of the county under Amendment No. 10 to the Constitution, and to enjoin appellant officers from levying and collecting any tax to pay said bonds and from paying out any money therefor. J. M. Kurn and John Gr. Lonsdale, trustees of St. L. & S. F. By. Co. intervened as plaintiffs, adopted the complaint filed and are now appellees here.
Appellant Merchants National Bank of Fort Smith, Arkansas, was permitted to intervene in the action, filed an answer and alleged that it was the owner of some of the bonds in question and denied their invalidity and otherwise joined issue on the allegations of the complaint. The National Bank of Commerce of Pine Bluff also intervened, as did State National Bank of Texarkana, as trustee, each being the owner of some of the ques tioned bonds, and adopted the answer of the Merchants National Bank of Fort Smith.
The facts are substantially as follows: Amendment No. 10 to the Constitution became effective December 7, 1924, and authorized counties, etc., to issue bonds to fund outstanding indebtedness on that date. On June 27, 1927, the county court of Lawrence county made and entered an order declaring the indebtedness of the county on December 7, 1924, to be $56,174.30, which order has never been questioned. And of said amount of $56,174.30, there was still outstanding at that time $22,226.61, and thereafter ón August 6, ordered the sale of that amount of six per cent, bonds, converted into bonds bearing a lower rate of interest. The court, at the time this bond issue was authorized, found that, of the original $56,-174.30 of indebtedness of the county on December 7,1924, $33,947.69 thereof had been discharged between December 7, 1924, and June 27, 1927, by the acceptance of warrants of the county by the collector in payment of taxes. In April, 1928, the county court by order authorized and directed the issuance of bonds to fund said amount and thereafter $25,000 of six per cent, bonds were issued, sold and converted to per cent, bonds. This was the second bond issué to cover the county’s outstanding indebtedness as of December 7, 1924. Later, in November, 1928, a third issue was authorized of $9,169.79 and sold. Only the second and third issues are here involved. Both were issued and sold in 1928 to M. W. Elkins & Co. of Little Rock. Three of the $1,000 bonds of the second issue were acquired by the National Bank of Commerce in 1939 and three by the State National Bank of Texarkana, both in due course, and for value, before maturity and without notice of any defect. The Merchants National Bank of Fort Smith purchased the entire third issue from Elkins in December, 1928, under the same conditions. Taxes have been duly levied and collected by the county from 1928 to 1939, both inclusive, to meet the interest and maturities of all three issues, and the rate levied in each year has been less than the maximum of three mills permitted by Amendment No. 10. The bonds and all interest coupons of all issues were duly paid as they matured up until the bringing of this suit in November, 1939, and no taxpayer has ever made any complaint until this suit, except the Frisco Railway Company refused to pay said bond tax of 1938 payable in 1939. In all orders of the county court the finding is made that the indebtedness of the county on December 7, 1924, was $56,174.30, and the county has never sought to change this amount. The only reason the county did not fund that amount in the first issue was due to the holding of this court in Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963.
Trial resulted in a decree holding that said second and third bond issues are void and making permanent the temporary order theretofore granted restraining the treasurer of Lawrence county from transmitting any of the funds on hand collected by reason of levies under the said two bond issues, who was directed to turn said funds over to Leonard' Lingo, commissioner of the court, to be held and distributed by him as the court may direct. The interventions of the three named banks were dismissed for want of equity. This appeal followed.
We think the court erred in so holding. It appears that the rule announced in Airheart v. Winfree, supra, was applied instead of the rule in Hagler v. Arkansas County, 176 Ark. 115, 2 S. W. 2d 5, where the Airheart case was expressly overruled..
Appellees rely upon such cases as Walker v. Gladish, County Judge, 199 Ark. 580, 134 S. W. 2d 540; Dowell v. Slaughter, 185 Ark. 918, 50 S. W. 2d 572; Beasley v. Combs, 197 Ark. 703, 125 S. W. 2d 806; Stahl v. Sibeck, 183 Ark. 1143, 40 S. W. 2d 442, and Ferris v. Stewart, 200 Ark. 714, 140 S. W. 2d 431. We think no one of these cases is applicable to the facts here presented, but that the case of Hagler v. Arkansas County, supra, is in point. Here, the county court correctly determined the amount of its outstanding warrants on December 7, 1924, but by June, 1927, more than $33,000 of said warrants had been turned in in payment of taxes, and the county was in no better shape financially than it had been. Amendment No. 10 authorized counties to issue bonds “to pay indebtedness outstanding at the time of the adoption of this amendment” and not indebtedness outstanding at the time the bonds were issued and paid for. Due to the decision of this court in Airheart v. Winfree, supra, bonds were issued only for the amount of warrants outstanding at the date of the first issue. After the decision in the Hagler case, the county again attempted to issue bonds to cover the balance of the outstanding debts, but issued and sold only $25,000 in bonds. Just why the whole balance of $33,947.69 was not issued at that time is not shown, but its failure to do so did not exhaust its right to issue the remainder in the third issue of $9,169.79, a few months later. The court found, and it so appears that the three issues total a small amount in excess of the total outstanding indebtedness found of $56,174.30, about $200. We think this was a mere clerical error and is de minimis of the amount involved.
Appellees’ position is one wholly without equity. For eleven years they have paid the taxes levied to retire these bonds and interest coupons. Due notice was given of the various issues of bonds. They made no complaint at the time they were issued nor at any other time. The facts here presented are quite similar to those in the recent case of Burton v. Harris, ante p. 696, 152 S. W. 2d 529, in which it was held that the appellant was estopped to contest the validity of the bond issue.
The decree will be reversed and the cause remanded with directions to dismiss the complaint for want of equity, at the cost of appellees, plus any loss suffered by the bondholders or the county by reason of the injunction granted. | [
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Griffin Smith, C. J.'
Appellant, who had served a prison sentence in Californa on a sex immorality charge relating to a fifteen-year-old girl, was convicted of the crime of sodomy and his punishment fixed at fifteen years in the penitentiary. Pope’s Digest, §§ 3428-3429. A fourteen-year-old hoy was the object of appellant’s lust.
March 11, 1941, in response to the defendant’s petition, he was committed to State Hospital with directions that his mental condition be determined. April 21 (the hospital examination having shown that defendant was sane) the cause was called for trial. Motion for continuance was argued on the ground that the court docket did not show a specific date had been set for trial, and that the defendant was not prepared.
The judge read into the record a statement that at the time appellant was committed to State Hospital he and his attorneys were told the court would adjourn until after the hospital report had been received, and that “. . . the cause would be tried at this time and on this day, to which the court then adjourned.” The judge further stated that the defendant and his attorney were informed of the nature of the hospital report, and were told that trial would start April 21. In addition, the court found that the defendant had been given ample time, that his witnesses had been subpoenaed, and that they were in attendance.
It will be observed that the appellant does not allege that he did not have notice of the time of trial. His statement is that the docket did not show the date. If the defendant had information, and the court adjourned to April 21, it was not material that the docket should show that the particular case had been set for that time.
The second transaction urged as error is that the evidence was not sufficient to connect appellant with the crime. Cletis Taylor, the boy against whose person appellant’s unnatural propensities were directed, testified that he met appellant — a stranger — who said he had something to say to him. The boy, without knowledge of Woodford’s intentions, went with him a short distance. Cletis says “. . . appellant then grabbed me and carried me across the railroad and put me down.” Additional testimony regarding the revolting transaction need not be repeated. The boy (if his story be true —and the jury believed it) was restrained and misused from eight o’clock at night until eleven. During this time appellant’s acts constituted the crime alleged. A physician’s examination showed that the victim’s rectum was torn very badly “. . . and he was so sore he could hardly walk. ’ ’
The evidence was sufficient to convict.
Finally,.it is stated that appellant could not be convicted upon the uncorroborated testimony of the boy because the latter was an accomplice. Strum v. State, 168 Ark. 1012, 272 S. W. 359. A complete answer to this argument is that the injured boy was not an accomplice within the meaning of § 4017 of Pope’s Digest, or in any other sense, as he did not consent.
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Smith, J.
International Harvester Company, here-' inafter referred to as the company, brought suit in replevin to recover possession of a motor truck which it alleged had been sold April 22,1939, to defendant Broyles under a- contract reserving title until the purchase price was paid. It was alleged that the sale price of the truck was $716, and that a balance of $276.40 remained unpaid. An order of delivery was served upon Broyles who gave bond as provided by statute for the retention of possession of the truck.
A verdict was directed in favor of the plaintiff, on which judgment- was pronounced, from which is this appeal. Inasmuch as the verdict was returned against defendants under the direction of the court we must, in reviewing that action, state the testimony in terms most favorable to appellant.
When so viewed, the testimony is to the following effect. One E. B. Taylor had purchased the truck from the company, and had executed a title retaining contract which authorized the company to procure collision insurance and to charge the premium therefor to Taylor’s account. This insurance had been taken out and charged to Taylor’s account. In addition to the balance due on the truck, Taylor had another account with the company for farm machinery.
Broyles purchased the truck from Taylor, and gave Taylor a check for $120, which was intended by Broyles to be applied on the purchase price of the truck. The check was drawn in favor of the company, and was delivered to it by Taylor. Of the proceeds of the check $60 was credited to the balance then due on the truck, which was then $776, and $60 was credited on Taylor’s farm account.
A new contract was executed, having the caption, “Order for Second-Hand Goods.” This contract recited “Resale of E. B. Taylor repossessed truck.” The truck had not, in fact, been repossessed, but the contract treated it as having- been repossessed and evidences a resale for the consideration of $716, the balance of the original purchase price due by Taylor after allowing the $60 credit. Broyles insists that the $60 credit to Taylor’s farm account should be credited to the balance due on the purchase price of the truck, for the reason that there was no intention on his part to pay anything on Taylor’s farm account.
The court disallowed this credit and treated the contract of resale as a note with reservation of title to the truck. In holding that Broyles was not entitled to this credit the court said: £ £ Gentlemen of the jury, this is a suit instituted by the International Harvester Company, the plaintiff, against Owen H. Broyles. The suit is based on a note, a retention of title note, for a truck which the defendant purchased from the plaintiff, International Harvester Company, on the 22nd day of April, 1939. The note was given for the balance of the purchase price of $716. In connection with this the defendant gave an order for the purchase of the truck in question and also executed this particular note on which this suit is based for this balance of $716. Certain testimony has been introduced here by the defendant to the effect that there should have been a $60 credit on this note made back on the 1st of April, 1939, several days prior to the purchase of the truck from the plaintiff and the execution of the note. It is the view of the court that if this purchase price of $716 was not correct, that the defendant should have had it corrected, in his purchase price contract and also in his note. In other words, if there is any amount owing prior to that time, it would be merged into this written contract and he would become bound by the. amount stated in the face of the note and could not go back of that to introduce credits which he claims should have been made. In this case the note was not executed until some three weeks after he claims he was entitled to the credit. In other words, that note had not been given and the contract made at the time he claims this $60 credit. Consequently, they would be entitled to recover the balance due on the note, which is $276 with interest at 8 per cent, from April 2nd, 1940. ’ ’ The facts stated in this direction of the court conformed to the undisputed testimony.
It is not contended that any fraud or deception was practiced upon Broyles to induce him to execute the note or sales contract. The contention is that the correct balance due on the contract was $60 less than the contract recites, and the case of Boone v. Goodlett & Co., 71 Ark. 577, 76 S. W. 1059, is cited to sustain that contention. But here there is no mistake as to the sale price of the truck, which is plainly stated to be $716, and the contract also plainly recites the disposition of the $120 check.
As we have said, the truck was treated as having-been repossessed, and upon that assumption was resold to Broyles for the credit price of $716. Payments' made by Broyles reduced that amount to $276, for which amount the jury was directed to return a verdict in favor of the company, and that portion of the judgment will be affirmed.
Another defense was also interposed, concerning which the testimony must also be viewed in the light most favorable to appellant.
When Broyles bought the truck there was in force a collision insurance policy covering short hauls. Broyles began making long hauls, and it was agreed between him and the company that the policy did not cover long hauls. The premium on the short-haul policy had been paid by the company and charged into the account evidenced by the note and the resale contract, and the policy was in the possession of the company.
Broyles testified that the company’s agent told him the old policy would have to be canceled before a new one would issue, and that at the direction of the company’s agent and representative he wrote on the stationery of the company an order for its cancellation. Broyles testified that neither he nor the company’s agent knew the premium rate for the long-haul insurance, but the agent agreed to procure the long-haul collision insurance and charge it to his account. The old policy was canceled and the short-term premium, amounting to $24 was refunded to the company, but was not credited on the note or sales contract.
Broyles began making long distance hauls, and while so engaged had a collision near Frederiektown, Missouri, on January 6, 1940, in which the truck was wrecked. Broyles called appellee company at its office in Little Rock, and was directed to salvage the truck and notify the company where it had been stored, and was told that the cost of repairs would be adjusted by mutual agreement. Broyles carried the truck to Frederiektown, and delivered it to the company’s representative at that place, and when he reached Newport, where he lived, he again called appellee’s Little Rock office and advised the disposition made of the truck. He was then told that the company had neglected to procure the long-haul collision insurance. .On December 16, 1939, the company wrote Broyles a letter in which the amount owed by' appellant was computed without reference to any refund of the short-haul insurance premium. On January 19th, which was subsequent to the collision, the company advised that it had taken out no insurance coverage, and that it would pay no part of the cost of repairs. The company denied having made any agreement to procure the insurance, and the testimony on its behalf was to the effect that it had directed Broyles to procure the insurance at his own expense.
Without further recitation of the conflicting testimony upon this issue of fact, it may be said that the testimony offered on Broyles’ behalf was to the effect that the company agreed to procure long-haul insurance, as it had previously procured the short-haul insurance, and to charge the additional premium to his account after crediting the return short-haul premium received by the company on the cancellation of that insurance and which had not been otherwise credited.
The ease of Kissire v. Plunkett-Jarrel Grocer Co., 103 Ark. 473, 145 S. W. 567, was one on which suit was brought to foreclose a mortgage on a house. The mortgagor claimed that the mortgagee had failed to obtain sufficient insurance on the house, which had burned, and for this reason the mortgagor was entitled to credit upon the note for the difference between the value of the property destroyed and the amount for which it was insured. The mortgage provided that the mortgagor and not the mortgagee should obtain and maintain insurance upon the property, but that the mortgagee might, at its option, take out insurance, but had not obligated itself to do so. It was held, under these facts, that the mortgagee was under no liability for failure to further insure the property.
Appellant insists that the facts here are similar to those in the case just referred to. If found so to be, there would be no liability, but here we have testimony which, if credited, would support the finding that appel lee agreed to procure long-haul insurance upon the cancellation of the short-haul policy.
In the case of Milburn v. People’s Building & Loan Assn., 106 Ark. 415, 153 S. W. 605, plaintiff loaned defendant money to erect a building, secured by a mortgage on the building, which provided that the mortgagor was to procure fire insurance, with the right of the mortgagee to do so if the mortgagor did not. The mortgagee procured insurance with a three-fourths loss clause instead of a three-fourths value clause. The property was destroyed by fire. It was held that, in the absence of an agreement between mortgagor and mortgagee as to the 'kind of insurance to be placed on the property, the mortgagee was entitled to recover from the mortgagor the amount of the loan not realized from the insurance; in other words, was not responsible for the kind of insurance taken.
The question of the duty of the lienholder to procure insurance is the subject of an extensive note to the annotated case of Rheuban v. Commercial Investment Trust, 81 N. H. 498, 128 Atl. 807, 41 A. L. R. 1280. Several of the cases there reviewed arose upon conditional sales with reservation of title. The annotator sums up his review of these cases with this statement: “The effect of the decisions is to uphold the proposition that a mortgagee who has agreed to place insurance on the mortgaged property must act in good faith, and must use reasonable care, and this notwithstanding the fact that the mortgage contains a covenant by the mortgagor to insure for the benefit of the mortgagee,” and is responsible for the failure to perform this agreement.
We conclude, therefore, that the testimony requires the submission of the question to the jury whether the company, upon the cancellation of the short-haul policy, agreed to procure long-haul collision insurance, and the judgment will be reversed, and the cause remanded with directions to submit that issue to the jury. | [
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McHaney, J.
Appellant, the Bar Buies Committee of the state of Arkansas, filed charges of unprofessional conduct against appellee, a licensed attorney at law of Walnut Bidge, Arkansas, in the office of the clerk of the Lawrence chancery court and sought his disbarment as a member of the bar of this state. The charges consisted of two counts in the form of a complaint. We find it necessary to consider only the first count which is as follows: “Said Boy Bichardson, on or about September 5,1939, and during the term of circuit court at Walnut Bidge, in session about said date, represented E. G. Fooks, plaintiff, in a suit in the Lawrence circuit court for the eastern district, No. 1906, against D. F. Jones Construction Company, Inc., defendant, which suit resulted in a verdict for the plaintiff for personal injuries and an appeal was taken to the Supreme Court of Arkansas, where the cause was reversed on January 29, 1940, D. F. Jones Construction Co. v. Fooks, 199 Ark. 861, 136 S. W. 2d 487, the appeal being taken and the decision on appeal rendered in two consolidated canses covering the same alleged injury.
“Also at the same term he represented one Hathcoat in a suit for personal injuries against one Sloan, which also resulted in a verdict and judgment from which an appeal was taken, and by said court decided, Sloan v. Hathcoat, 199 Ark. 530, 134 S. W. 2d 873, 136 S. W. 2d 1020, being affirmed on condition of remittitur.
“Prior to convening of said court the said Boy Biehardson and his agents, Clyde Bobbins and others, approached prospective jurors offering inducements to such jurors to attend and act as jurors and not to seek excuse and promising remuneration and favors for verdicts favorable to said Boy Biehardson. For further details of such approaches and dealings with jurors, reference is made to the affidavits of Fred A. Isgrig, Harry C. Bobinson, C. F. Grigsby, H. C. (Pud) Hutchinson, W. M. Fallis, Dent Brady, and Clyde Bobbins, which are contained in the bill of exceptions in the case of Fooks v. D. F. Jones Construction Company, Inc., and such affidavits are further referred to in the opinion of Chief Justice Grieein Smith, MoHaney and Baker, Justices, concurring.”
To this complaint appellee filed a general demurrer and motion to transfer to the circuit court, both of which were overruled at the conclusion of the evidence. Appellee answered with a general denial and a plea of res judicata on the grounds, 1, that the matters charged were adjudicated in the motions for new trials in the Fooks and Hathcoat cases; and, 2, had recently been investigated by the prosecuting attorney and grand jury, who refused to indict him.
Trial before Chancellor J. M. Shinn, on exchange of circuits, resulted in a judgment dismissing the complaint for want of sufficient proof to support the charges laid, hence this appeal.
This disbarment proceeding is the aftermath of two personal injury cases tried in the Lawrence circuit court and appealed to this court late in 1939 and early in 1940, the first being Sloan v. Hathcoat, 199 Ark. 530, 134 S. W. 2d 873, 136 S. W. 2d 1020, and the second being D. F. Jones Construction Co., Inc., v. Fooks, 199 Ark 861, 136 S. W. 2d 487. A reference to these cases and particularly to the latter, both the original and concurring opinions will be enlightening* and will obviate the necessity here of quoting the evidence produced in the trial below in ex-tenso. As stated in the brief of the Bar Rules Committee: ‘ ‘ The duty to present charges against lawyers is naturally most unpleasant and the committee approaches such matter with regret. However, in view of situation developed in the case of D. F. Jones Construction Company, Inc., v. Fooks, 199 Ark. 861, 136 S. W. 2d 487, it became very plainly the duty of the committee to file charges and in fact such charges were practically demanded by public sentiment of the profession.” We appreciate the sentiment of the committee thus expressed and were gratified to hear counsel for appellee say in oral argument that the committee had been very kind and considerate of them and their client" in the prosecution of the case, and that no rancor or ill feeling exists towards them.
Clyde Robbins, the self-confessed tool of appellee, employed by him to fix jurors at the March, 1939, term of the Lawrence circuit court, testified substantially as he did on the motion for a new trial in the Fooks case, to the effect that appellee was to pay him $5 for every juror he interviewed and $5 more if the verdict was favorable; that he was employed “To talk to them and see if they were all right.” To “see if they were for the Richardsons.” He was asked and answered as follows: “Q. What promises did he have you to make them? A. That they would be treated right in some of the cases and in one case he promised two per cent, of the verdict.” The witness talked to prospective jurors Dent Brady, Pud Hutchinson and Peyton Lately, and Brady and Hutchinson told him they wquld stand “hitched.” This witness was very successfully impeached and the trial court apparently put no credence in his testimonj7’ and we cannot say that he should have been believed in view of his bad reputation and his criminal record, although he is corroborated in the fact that he did inter view both Brady and Hutchinson in an attempt to “fix” them for appellee by both of them. Bnt he stands alone in saying he was employed to do so by appellee. Bnt conceding that Robbins is not worthy of belief, still we have the testimony of jurors Charley Grigsby and W. F. Fallis to consider. Grigsby testified that he is a school teacher, was in appellee’s office a few days before the March, 1939, term of circuit court convened, and talked with appellee in the office. He said: “Well, I was in there and he said something- about me being on the jury, and I told him ‘yes, I was, but I didn’t guess I would get to serve’ and he wanted to know the reason. I told him that I was teaching school and didn’t have any one to take my place. He suggested to me that I could let his wife take my place and me go ahead and serve, and I told him that I didn’t think they would do it. . . . He wanted to know if my wife could take my place. . . . I told him I didn’t know whether I could do it or not, that she needed to be at home, and what I would get up here wouldn’t justify me to stay out-of the schoolroom and let her leave her work.” He said he and appellee had always been good friends and that he had supported him in his campaigns for office. “He said he would like for me to serve if I could, that he felt like I was a friend to him and would treat him right ... I believe he said that he felt like I would be capable of rendering a fair verdict, and after I heard the evidence in the eases that he had, that he felt like that I . . . said that after I heard the testimony in the cases that he had that he felt sure I would see fit to render him a verdict. . . . He asked me if I knew any one else on the jury that was not a friend to him, that might not give him a fair trial; to let him know if there was any one else I could talk to that would not be fair, and to let .him know.” He testified he talked to juror- Fallis, a second cousin, and told him appellee had a case coming up for trial and would expect “us” to treat him right. He admitted that he had had a drink on that day, but denied he was drunk. Appellee denied that he had any such conversation with Grigsby, but admitted that the prospective juror was in his office and was drunk at the time. The fact that they were close personal and political friends is not disputed. The fact that Grigsby did serve on the jury panel is a matter of record and the fact that he did have such a talk with Fallis is corroborated by Fallis who said that Grigsby told him after the end of the first week of court that “Roy” had a case coming up next week and he “Roy” wanted the witness and Grigsby to help him out. Fallis served on the Fooks case. This witness is also a good friend of appellee.
We think this evidence must be accepted as true. If not, why would these two friends perjure themselves to do him a great wrong? We are willing to accept the court’s implied finding that Robbins might perjure himself to injure appellee, because of the enmity and hatred that appellee says existed between them, even though his firm had represented Robbins and settled a claim for him against an oil company for personal injuries, and even though he had frequented appellee’s firm’s office in the company of 01 Davis who was also active as a jury fixer with Robbins, but who did not testify in this case.
The only evidence of attempted bribery of jurors comes from Robbins and his activity with certain prospective jurors. There is no proof that either Grigsby or Fallis was offered a bribe. But the evidence is quite convincing that appellee was very much concerned that Grigsby serve on the jury and also serve as an informer to him of those on the jury who might be unfriendly to him. So great was his concern that he offered to have his wife teach school for the juror during his service on the panel.
We think this conduct highly unethical, and unbecoming to a member of the bar. The statute, § 8314, Pope’s Digest, requires petit jurors to have the same qualifications as grand jurors, prescribed by § 8312, that is “persons of good moral character, of approved integrity, sound judgment and reasonable information.” By §§ 3244 and 3248 the administration of public justice is further sought to be protected by the imposition of heavy fines and imprisonment for the misconduct of jurors and for the corruption or the attempt to corrupt a juror.
The fact that appellee himself talked to Grigsby as set out above shows a successful attempt to thwart the administration of justice and a contempt for or a disregard of its orderly procedure. The jury system is hoary with age. It is guaranteed by both the state and federal constitutions. It must and will be preserved, if trial courts will select jury commissioners with the qualifications prescribed for petit jurors as required by § 8306 of Pope’s Digest and require them to select petit jurors with the same qualifications — “persons of good moral character, of approved integrity, sound judgment and reasonable information,” will not permit lawyers, litigants or their agents to discuss pending litigation privately with them, and if the attempt is made it will be reported by such jurors to the court for proper punishment. A juror that is not fair is not worthy to be a juror, and a lawyer that will seek to gain an unfair advantage over his brother lawyer or the adverse litigant by secret contact or conversation with a juror or one summoned to be such so as to' render him unfair prostitutes his high calling to that of a shyster, and is deserving of punishment at the hands of the court. The power to- regulate the practice of law is vested in this court under amendment No. 28 to the constitution. Under rules adopted by this court, power to try disbarment proceedings is vésted in either the circuit judge or chan-, cellor and by this court on appeal de novo.
For the violation of the rules of ethics hereinbefore stated we think appellee should be suspended as a member of the bar of the courts of this state for the period of one year from the date this opinion becomes final. The judgment of the trial judge is reversed and judgment as indicated will be entered here. It is so ordered.
Humphreys and Mehaeey, JJ., dissent. | [
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Smith, J.
J. L. Alexander purchased from the Patton Motor Company a truck, the price of which was $660, but with an air-blast horn, overload springs, battery, sales tax, and carrying charges, including interest and insurance, the final purchase price was $808.65. A note for $744.45 of this purchase price was given, secured by a title-retaining note on the truck and a chattel mortgage on certain personal property owned by Alexander.
The motor company carried a blanket fire insurance policy covering its interest in all trucks which it sold on partial payments, which provided that in cases of total loss or damage by fire the insurer should pay either the market value of the truck at the time of the fire or the balance of purchase money unpaid at that time. This, or another policy written by the same company, also contained certain collision insurance, damages in either case being payable to the motor company as its interest' appeared.
After buying the truck Alexander had a collision, and the agreed damage to the truck Avas $86.66. The policy contained a $50 deductible clause, so that the insurance companj'- Avas required to pay only $36.66. The repair of the truck cost $86.66, and its value was not diminished materially by the collision after the repairs were made.
The truck Avas burned the latter part of February, 1939, and the testimony is in irreconcilable conflict as to the extent of the damage and the salvage value of the truck after the fire. Alexander was in default in his payments at the time of the fire, and the motor company had the right to repossess the truck on that account. Whether it did so — thereby converting the truck — is another disputed question of fact in the case.
We think the motor company did convert the truck, although it disclaimed that intention. The truck burned in Alexander’s yard, and the motor company sent its representative to haul it into its garage. The testimony on Alexander’s behalf was that this Avas done over his protest; while the testimony on behalf of the motor company was that this Avas done Avith Alexander’s consent.
Alexander was sick at the time, and was carried to the hospital. He employed an attorney to represent him in the adjustment of the insurance, who reported to the motor company that he had received from the insurance company an offer of the truck in its damaged condition and $650 in cash in settlement of the claim; but it does not appear that this offer was made by anyone having authority to make it. The adjuster of the insurance company testified that he did not make or authorize any such offer; that he regarded the damage to the truck as total and settled Avith the motor company on that basis, by paying $550 and keeping the truck. This evidently was upon the theory that having paid the market value of the truck the insurance company was subrogated to the rights of the motor company as owner. But, after making this settlement with the motor company, the insurance company sold the truck to the motor company for $70, and the motor company admitted reselling the truck at a small profit, the amount of which was not stated.
These transactions, made without consulting Alexander and without his knowledge or consent, constituted a conversion of the truck, and the motor company became liable for the value of the truck at the time and place of its conversion, less the balance of purchase price remaining unpaid. See recent case of Barham v. Standridge, 201 Ark. 1143, 148 S. W. 2d 648, and cases there cited.
The motor company filed suit against Alexander, in which the facts here recited were alleged, and the foreclosure of the chattel mortgage, covering certain mules and personal property, was prayed to enforce the payment of the $744.45 note. Certain credits were indorsed on the note, including payments made by Alexander and the $550 paid by the insurance company, leaving a balance secured by the chattel mortgage of $134.81,
Alexander filed an answer and cross-complaint, in which he alleged that Patton representing the motor company and the adjuster for the insurance company had colluded to defraud him out of his truck. He prayed judgment against the motor company for $401.85. The items comprising this total were: $36.66 insurance collected for collision; $100, the difference between the insurance paid and that offered to Alexander’s attorney, and $400, salvage value of the truck. These items total $536.66. The $134.81, alleged to be the balance due on the $744.45 note, deducted from this total, leaves á difference of $401.85, for which last named amount Alexander prayed judgment.
The testimony is voluminous, and there is a sharp conflict in it upon every question of fact in the ease, the principal question of fact being the salvage value of the truck.
The court dismissed the complaint as being without equity, and decreed the cancellation of the chattel mortgage upon Alexander’s mules and other personal property, upon the theory that the debt which the mortgage secured had been discharged. The court also dismissed the cross-complaint as being without equity, and assessed the costs of the suit against the motor company, from which decree the motor company has appealed, and Alexander has prayed a cross-appeal.
It is somewhat anomalous that the conflicting demands exactly balance, and that neither party is indebted to the other in any amount. But it would be very difficult to find which party was indebted to the other, and in what amount, and we would feel no certainty in saying that any finding upon this question was contrary to the preponderance of the evidence. Any exact finding upon this question would require a finding as to the salvage value of the truck. Just what that finding by the court below was does not appear except inferentially, the inference being that it was in an amount which balanced the accounts between the parties, and we are unable to say that this finding does not do justice between the parties, or is contrary to the preponderance of the evidence.
The debt secured by the chattel mortgage having been satisfied, the court properly decreed the cancellation of the mortgage.
A motion to retax the costs was filed in the court below, and the costs were retaxed and reduced; but, even so, it is insisted that certain items of costs were improperly allowed. We are unable to pass upon this question, as there is no abstract of the testimony here upon that issue ,• indeed, the testimony upon that issue has not been incorporated in the record.
Being unable to say that the findings of the court below are contrary to the preponderance of the testimony, the decree must be affirmed on both the direct and cross-appeals, and it is so ordered. | [
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Smith, J.
Appellants sued appellee to recover damages alleged to have been occasioned by the negligent operation of dams which appellee maintained across Ouachita river. The nature of the suit is reflected in an instruction numbered 5, given over the objections of appellants, which reads as follows:
“Defendant is the owner of Carpenter and Rem-m-el Dams on the Ouachita river. The defendant has a right to operate said dams for the purpose of generating electricity, and it may impound the waters behind said dams so as to maintain the lake levels at stages equal to the heights of the dams. The defendant, in the operation of its dams, has the right to let the water pass through the gates of its dams at such times and in such quantity as is reasonably necessary for the operation and maintenance of defendant’s property, and the owners of the lands below said dams own and enjoy their property subject to these rights of the defendant in this respect. So if, in the operation of its dams, the defendant opens its gates, and lets through various quantities of water within its rights and not in a negligent manner, and by reason of the passage of this quantity of water, property of plaintiffs is damaged, then the landowners must bear tbe loss, and you must find for tbe defendant. ’ ’.
There was a verdict and judgment for appellee, from which is this appeal, and for the reversal of that judgment no error is assigned except the giving of this instruction numbered 5.
Appellee has moved to dismiss the appeal upon the ground that there is no bill of exceptions, the insistence being that the instruction may not be considered in the absence of a bill of exceptions. All the instructions given in the case are copied in the transcript, and the clerk of the court has made a certificate to that effect. In addition, there appears in the transcript the following certificate signed by the trial judge:
“I, Thomas E. Toler, judge of the Seventh Judicial Circuit, present and presiding at the trial of the cause of J. W. Fisher and F. it. Harper, plaintiffs, vs. Arkansas Power & Light Company, case No. 3147, defendant, hereby certify that the foregoing written instructions are all of the instructions, asked, modified and given on behalf of the plaintiffs and the defendant, and that exceptions were duly saved by the plaintiffs to the giving by the court of instruction No. 5 as requested by the defendant.”
None of the testimony offered at the trial appears in the transcript.
This proceeding is unusual, but is not unauthorized. It is provided by § 1544, Pope’s Digest,- that “No particular form of exception is required. The objection must be stated, with so much of the evidence as is necessary to explain it and no more, .and the whole as briefly as possible.” -Section 1545, Pope’s Digest, provides that “Where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.” It is further provided in § 1546, Pope’s Digest, that “Where the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing and present it to the judge for his allowance and signature.”
In construing these sections of the statute we said in the case of Beason v. Withington, 189 Ark. 211, 71 S. W. 2d 461 (to quote a headnote), that “An appeal may be taken upon a bill of exceptions which presents only a single exception saved at the trial, provided so much of the proceedings at the trial were brought up as was necessary to explain the exception.”
Appellants have the right, therefore, to have this instruction reviewed; but, in reviewing it, in the absence of any testimony taken at the,trial, it will not be held erroneous if any testimony might have been offered as to which the instruction correctly declared the law. In other words, if the instruction was a correct declaration of the law, as applied to any state of facts, it will be conclusively presumed that such testimony was offered, and the instruction will not be held to be erroneous unless it is so fundamentally erroneous that it can not be said to be the law as applied to any state of facts.
The court did not direct a verdict for the defendant. Had this been done, it would be presumed, in the absence of the testimony, that this action was correct under the testimony. But the giving of this instruction reflects the view of the court that the testimony presented an issue properly to be submitted to the jury. Now, if any testimony could have been offered as to which the instruction correctly declared the law, then the instruction will not be held erroneous.
The insistence of appellants is that the instruction is fundamentally erroneous, for the reason that it, in effect, tells the jury that appellee had the right to impound or release the water in the river without reference to the rights of the riparian owners, provided only that it served appellee’s purpose to do so. If this is the meaning of the instruction, then it is erroneous, and would not be the law as applied to any state of case. But we do not so interpret the instruction. It does tell the jury that appellee had the right to operate the dams for the purpose of generating electricity, and for that pur pose had the right to impound the water behind the dams so as to maintain the lake level at stages equal to the heights of the dams, and that appellee, in the operation of its dams, had the right to let the water pass through the gates of its dams at such times and in such quantity as was reasonably necessary for the operation of the dams for their intended purposes, and that the owners of the lands below the dams held their property subject to these rights of appellee. But the instruction proceeded to say, “So, if in the operation of its dams, the defendant opens its gates and lets through various quantities of water within its rights and not in a negligent manner, and by reason of the passage of this quantity of water, property of plaintiffs is damaged, then the landowners must bear the loss, and you must find for the defendant.”
The instruction plainly tells the jury that in releasing the impounded water appellee must have acted “within its rights and not in a negligent manner. ’’ Other instructions not being incorporated in the bill of exceptions, it will be conclusively presumed that the jury was told when appellee was acting within its rights in releasing water, and what conduct on its part in this respect would constitute negligence. Indeed, it is conceded' that other instructions did correctly declare the law in these respects, the insistence being that those instructions are in conflict with instruction numbered 5. But, as we have said, instruction numbered 5 does not entitle appellee to release the impounded water except when in the exercise of its right to release the water, and that this right must not be exercised in a negligent manner.
It is urged that instruction numbered 5 is in conflict with the law as decided in the case of Arkansas Power & Light Co. v. Beauchamp, 184 Ark. 698, 43 S. W. 2d 234. In that case a judgment for damages was affirmed for the negligent operation of the same dams here involved. But in summarizing the testimony in that case is was said: “These circumstances warranted the inference that the water came from Lake Catherine, and that the floodgates had been opened negligently, thus precipitating within a few hours the water which before had flowed more slowly down stream.” It thus appears that there was testimony in that case to support the finding that the dams had been negligently operated. That finding, if made, would have supported a recovery in this case, but the instruction required that finding to be made.
Instruction numbered 5 does, not tell the jury that appellee had the right to operate the dams in any manner it pleased, and without reference to the rights of the riparian owners. On the contrary, the instruction required that appellee operate the dams “within its rights and not in a negligent manner, ’ ’ and the instruction was not, therefore, so fundamentally erroneous that it could not be the law as applied to any state of facts; indeed, it does not appear to be erroneous as applied to any state of -facts. Appellee was entitled to operate the dams “within its rights,” but it could not exercise those rights in a negligent manner.
We must presume — and, in the absence of the testimony, the presumption is conclusive — that appellee operated the dams “within its rights,” and did not do so in a negligent manner.
The judgment must, therefore,, be affirmed, and it is so ordered.
Mehaeey, J., dissents. | [
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Mehaffy, J.
The prosecuting attorney filed the following information against the appellants:
“I, J. B. Reed, prosecuting attorney within and for the seventeenth judicial circuit of the state of Arkansas, of which southern district Arkansas county, Arkansas, is a part, in the name and by the authority of the state of Arkansas, on oath, accuse the defendants, King Malone and Lucille Malone, of the crime of pandering, committed as follows, to-wit: The said defendants, King Malone and Lucille Malone, on the 18th day of April, A. D., 1940, in southern district Arkansas county, Arkansas, did unlawfully, wilfully, maliciously and feloniously procure for a house of prostitution and induced, persuaded, -encouraged, inveigled and enticed Bonnie Shephard, a female person, to become a prostitute, against the peace and dignity of the state of Arkansas; and they did, on the 17th day of April, 1940, unlawfully, maliciously and feloniously procure for a house of prostitution and induced, persuaded, encouraged, inveigled, and enticed Dollie James, a female person, to become a prostitute, against the peace and dignity of the state of Arkansas.”’
On July 1, 1940, the appellants filed motion for continuance. This motion was evidently granted by the court, because the record shows that no further steps were taken in the case until November 25, 1940. On that date the appellants filed motion to quash, which was over ruled by the court, and on November 26, 1940, appellants filed demurrer to the information, which was overruled.
The case proceeded to trial against appellants on the charge as to Bonnie Shephard. Dollie James was not present and was not a witness, and there was no evidence introduced tending to prove the charge as to her.
There was sufficient evidence, if believed by the jury, to convict both appellants of the crime of pandering. This evidence was denied by appellants and their witnesses, and there being a conflict in the evidence, -it was a question for the jury, The jury’s finding of fact will not be disturbed by this court if there is sufficient evidence to sustain such finding.
There was a verdict of guilty and King Malone’s punishment was fixed at seven years in the penitentiary. Lucille Malone’s punishment was fixed at two years in the penitentiary.
It is first contended by appellants that there are two crimes charged in the information, and that both crimes are incorporated and embraced in a single count, and it is alleged that this makes the information void.
The information was not defective because it charged two offenses. This court has held that the proper manner in which to raise this question is by demurrer. Harris v. State, 140 Ark. 46, 215 S. W. 620.
The information, however, does not charge two offenses. It charges the offense of pandering and then describes the manner in which the offense was committed. Appellants were not tried for any offense except that alleged to have been committed against Bonnie Shephard.
The appellants, however, say that the fact that only Bonnie Shephard was named in the count cannot alter the rule or result, because, they say, one was the offense of procuring for a house of prostitution; the other, an offense committed against the prosecutrix. Appellants were charged with pandering and tried for this offense. The court limited the evidence to the charge concerning Bonnie Shephard, and instructed the jury only as to that part of the information concerning Bonnie Shephard.
Appellants conld not have been prejudiced by the ruling of the court nor by the manner in which the crime was charged in the information.
It is next contended that it was error for the court to read the information as one of the instructions. Section 4007 of Pope’s Digest reads as follows: “The prosecuting attorney may then read to the jury the indictment, and state the defendant’s plea thereto, and the punishment prescribed by law for the offense, and may make a brief statement of the evidence on which the state relies.”
An indictment or information is a mere formal charge against the defendant, and unless the indictment or information is read, or a statement made as to what the charge was, the jury would have no information at all about the charge.
The only case cited and relied on to support appellants’ contention that it was error to read the information is State v. Richards, 234 Mo. 485, 67 S. W. 2d 58. This is a Missouri case, but the court did not hold that the reading of the information was error. It did hold that the prosecuting attorney is required, under the statute, to make a statement of the case to the jury. The reading of the information, to some extent, may be a duplication of that statement.* The information is a mere formal charg’e, and the court said: “The reading of the information to a jury cannot, therefore, be considered as prejudicial to the defendant.” The court, however, held that the affidavit of the prosecuting attorney should not be read to the jury. The Missouri statute, with reference to the reading of an information, is similar to our statute.
In the instant case the affidavit of the prosecuting attorney was not read to the jury, and there was no error in the reading of the information to the jury.
It is next contended by appellants that the court erred in reading § 3389 of Pope’s Digest to the jury. That section merely defines the crime of pandering, and since this was the offense for which appellants were being tried, it was proper for the court to read this statute.
We have carefully read instruction No. 2.B given by the court of its own motion, to which appellants object, and we find no error in the giving of this instruction.
It is also contended that it was error for the court to read to the jury the order of the court showing plea of insanity had been originally entered. The plea had been entered and King Malone was asked, when on the stand, if he had not, by his attorney, petitioned the court to admit him to the hospital for examination. Some controversy arose between the attorneys and the court said that the record would be the best evidence, whereupon he read the following record: “Defendant King Malone pleads insanity, and the court orders the defendant to the State Hospital for mental examination to be held for a period not to exceed 30 days.”
No prejudice could have resulted from this reading. King Malone, through his attorney, had entered the plea of insanity, and the controversy with reference to this evidence occurred before the jury. The record shows that Malone did not know anything about this plea, and that the application was made by his attorney while Malone was not present.
Appellants contend that the court erred in admitting testimony that appellants’ place of business was closed by order of the mayor. As a matter of fact, the appellants, themselves, in their motion for a continuance, had set up the very facts to which they now object in the testimony. It was already in the record, and there could be no prejudice in this evidence. They also set up in their motion that the entire story appeared in newspapers. The testimony offered by the state was admitted for the purpose of affecting the credibility as witnesses, and not for any other purpose.
As was said in Dixon v. State, 189 Ark. 812, 75 S. W. 2d 242: ‘ ‘ Trial courts have a wide discretion in the admission of testimony of this character in determining whether proof of moral delinquencies is or is not too remote to have probative value.”
It is also contended by appellants that the deputy prosecuting attorney stated that these defendants have been convicted in the mayor’s court of operating a house of prostitution, and their place of business has been padlocked by the mayor’s court. The court stated that this argument was allowed for only one purpose; that is, as affecting the credibility of defendants as witnesses. As we have already said, the appellants themselves put this in the record. In their motion for a continuance, they alleged that they had been convicted in the mayor’s court, and the place had been padlocked. Certainly, after putting it in the record themselves, they could not object to the prosecuting attorney making this statement, when they were told by the court that it was admitted solely as affecting the credibility of the appellants.'
Appellants also object to a statement made during the closing argument of the prosecuting attorney, as follows: “If you turn these defendants loose for ruining this little girl, Bonnie Shephard, and go home and tell your little girls what you have done, Grod have mercy on your souls.”
The argument of the prosecuting attorney was evidently based on the testimony of Bonnie Shephard and others, and Bonnie Shephard testified positively as to their conduct and how she had been treated by them. Moreover, no prejudice could have resulted by that statement of the prosecuting attorney, and even where error is shown, if it is manifest from the record that no prejudice resulted, this court will not reverse.
The judgment is affirmed. | [
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Smith, J.
Two informations were filed against appellant, each charging him with the crime of receiving stolen property. The first information alleged the ownership of the stolen property to be in Dr. F. B. Elliott; the second alleged the owner of the stolen property to be unknown. The cases were consolidated and tried together, and appellant was found guilty of receiving the property stolen from Dr. Elliott and given a sentence of two years in the penitentiary, and this appeal is from the judgment pronounced on this verdict.
The testimony is to the following effect. Lewis Rusk, who was 18 years old at the time of the trial and two younger boys, conspired together to steal automobile wheels and tires and casings with the inner tubes. Junior Ragan, one of these boys, testifed that they started operations in April or May, and continued their thefts until July, when they were arrested. Admittedly as many as 8 or 9 tires, wheels and casings were stolen in this interval. It is not entirely clear how many of these appellant bought, but it is fairly inferable that he bought all the boys stole.
Appellant and the boys were arrested, and appellant was told to bring to the'jail all the wheels, etc., which he had bought, and he brought 8 wheels and 6 tires to the jail. One of these wheels was identified by Dr. Elliott as his property, which he testified was stolen from the trunk of his automobile. The boys told how the sales were made to appellant, and their testimony as to the time and manner and places of sale make the inference irresistible that appellant must have known that the wheels, etc., had been stolen. For instance, one of the sales was made and the wheel delivered in a corn field.
It was appellant’s custom, when he made purchases, to take a bill-of-sale, and the boys testified that they did not tell appellant that they were selling stolen property, and they further testified that appellant did not know the property had been stolen.
Appellant operated a repair and junk shop, and dealt in second-hand wheels, .tires, casings, and inner tubes, and he testified that his purchases from the boys were made in the usual course of this business, and that he did not know he was buying stolen property.
Dr. Elliott had a new wheel, which he carried in the trunk of his car, ready to be placed on the car when occasion arose. When he identified his wheel, it was delivered to him and it was not present at the trial.
The wheel alleged to be the property of an unknown owner was produced at the trial, and witnesses placed its value at more than $10, while other witnesses thought it was not of that value.
Dr. Elliott’s wheel was one which could have been used interchangeably with the wheel belonging to the unknown owner, and we think the testimony is sufficient to support the finding that, if the wheel belonging to the unknown owner was worth more than $10, the wheel belonging to Dr. Elliott was of equal value, hut, if not, the testimony of witness Seay sufficiently proved the value of the Elliott wheel to support the verdict upon the issue of the value of Dr. Elliott’s wheel. Seay testified as follows: “Q. Do you remember Dr. Elliott’s De Soto he purchased? A. Yes. Q. Do you remember the kind of tires that came with that car, that comes with that model, the spare tire? A. Yes. Q. The car was two months old when the spare was taken off, what is the fair market value of that wheel? A. The wheel is $8.50 and the tube and tire $15.95.”
The court gave what might be called the usual instructions in cases of this kind, which conformed to the law of the subject as announced by this court in numerous cases.
At the conclusion of these instructions appellant’s counsel requested the court to charge the jury as follows : ‘ ‘ Gentlemen, you are instructed that in the prosecution for receiving stolen goods, proof of receiving the goods with knowledge that they had been stolen is the essential element of the offense. It is not sufficient merely to show that the accused had guilty knowledge that some of the goods had been stolen.”
The court did not give this instruction, but gave the following additional instruction: “Gentlemen, this is an additional instruction given you, not by Avay of repetition, but to better explain a little more fully concerning the issues in this case. There is no dispute between the State and the defendant that the property in question was stolen. The statute does not provide,that one is guilty of a violation simply in receiving or buying stolen property. It is for your determination, to, find whether or not, at the time he bought the property, he knew it to be stolen. The words of the statute are — -whoever shall receive stolen goods, money or chattels, knowing them to be stolen, with the intent to deprive the true owner thereof. This is not intended to be an emphasis of any one instruction over another.”
There was no error in this respect. The last instruction given by the court quoted so much of § 3144, Pope’s Digest, as defines the offense of “Receiving stolen goods. ’ ’ The mere receipt and possession of stolen goods does not constitute the offense. It is essential that they be received with knowledge that they had been stolen, and with the intent to deprive the owner thereof of his property. If this is done, the offense is committed, and this is the purport of the instruction above copied.
It may be said that appellant was found in possession of property recently stolen, and his explanation that he had bought it without knowledge of that fact was not accepted by the jury as true. It was said in the recent case of Morris v. State, 197 Ark. 778, 126 S. W. 2d 93, that “The possession of recently stolen property, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction either of larceny or of receiving stolen property. ’ ’
The case was submitted under correct instructions, and the testimony abundantly sustains the verdict. The judgment must, therefore, be affirmed, and it is so ordered. | [
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Holt, J.
Appellees (plaintiffs below) shipped to Civil Works Administration, a government project, 364 cars of gravel from Piggott, Arkansas, to stations in northeast Arkansas. All of these cars moved in interstate commerce. Appellees sued appellants to recover certain alleged overcharges in freight rates in the amount of $873.75. They alleged in their complaint:
“That during the years 1933 and 1934 plaintiffs shipped 364 cars of gravel from Piggott, Arkansas, Over the lines of the St. Louis-San Francisco Bailway Company consigned to the Civil Works Administration at various points in Arkansas; that at the direction of the defendants and with the agreement and understanding that defendants were to charge freight only for the actual weight thereon, said cars were loaded with less than the minimum weight provided therefor; that contrary to their said agreement, defendants collected from the Civil Works Administration freight calculated on the minimum weight capacity of said cars and the Civil Works Administration in turn deducted said sum from the purchase price of said gravel.”
Appellants filed an answer of general denial.
Upon a jury trial there was a verdict for appellees in the amount of $843.75. This appeal followed.
Appellants contend here that they were entitled to charge rates based on the minimum weight capacity of the cars of gravel which they insist were provided by the general tariff governing interstate shipments at the time.
The appellees, on the other hand, contend that they (appellees) were not permitted in the shipments in question to load the cars to their minimum weight capacity as contemplated by the tariff rates in effect at the time and, therefore, that they should be required to pay only on the actual weight of the gravel shipped. They also contend that the shipments in question were governed by a' special tariff. There is no dispute as to the number of cars shipped or as to the amount of freight paid.
It has long been the established rule that freight rates on interstate shipments, such as we have here, are controlled by the tariff promulgated by the Interstate Commerce Commission, and in effect at the time the shipments were made.
Neither the carrier nor the shipper can deviate from these rates. Should the carrier’s agent intentionally or unintentionally grant the shipper a lower freight rate than the tariff requires; the carrier may collect this undercharge or rebate from the shipper. Also, in the event of an overcharge, the shipper may recover such overcharge from the carrier.
In St. Louis, I. M. & S. Ry. Co. v. Wolf, 100 Ark. 22, 139 S. W. 536, Ann. Cas. 1913C, 1384, this court held (quoting headnote): “Where a railway agent by mistake inserted in a bill of lading for an interstate shipment a rate less than the published rate, the railroad company is not bound thereby; and it is immaterial in-such case that the shipper and the agent were both ignorant of the published rate. ’ ’
And in the opinion this court quoted from Barnes on Interstate Transportation, § 446, as follows: “Under the present law, regardless of the rate quoted, the published tariff rate must be paid'by the shipper and actually collected by the carrier. . . .” The reason for the rule, Barnes says, is that otherwise “collusion between the carrier and a shipper, which it is desired to favor, for protection for other than tariff rates would be rendered too easy of accomplishment.”
In 9 Am. Jur. 534, § 160, the author says: “The general rule requiring adherence to published rates operates also to prevent the carrier from collecting more than its published rate for a particular service, notwithstanding that the carrier, in the publication of such rate, was under a misapprehension as to its applicability to such service.”
The record reflects that there was in effect at the time the shipments in question were made, a tariff governing freight rates which contained, among others, the following provisions: “Rates in this tariff are subject to a minimum weight of 90% of the marked capacity of the car, except where car is loaded to full visible capacity actual weight will govern, but in no case less than 54,000 pounds. ... If a car is diverted or reconsigned in transit prior to arrival at original destination a charge of $2.25 per car will be made for such service. . . . Where a car that has a car capacity of 100,000 pounds the total weight on rails should be 169,000 pounds. Where a ear with a matched capacity of 140,000 pounds the total weight, wheels and axles should be 210,000 pounds.”
The record reflects that some of these shipments originated on the St. Louis Southwestern Railway Company (commonly called the Cotton Belt), but the St. Louis-San Francisco railroad was the delivering carrier in every instance. In the movement of these cars there is evidence to the effect that it was necessary that they travel not only on the main lines of these two railroads, equipped with heavy steel and callable of carrying the maximum tonnage of freight ears, but it was also necessary that they travel for short distances over branch lines of these roads having a maximum safe carrying-capacity, of gross weight of car and freight, of 169,000 pounds because of the weak condition of the track and lighter rails.
It is undisputed that appellants allowed appellees in each one of these shipments a maximum gross weight of car and gravel of 169,000 pounds, and in two instances where cars were loaded beyond this gross weight, sufficient gravel was thrown off by appellants to reduce the gross weight to 169,000 pounds.
The evidence also reflects that the actual weight'of the gravel carried in many of these cars was below 90 per cent, of the minimum of 54,000 pounds provided in the tariff, even though each car was loaded to the maximum tonnage (car and gravel) of 169,000 pounds allowed the shipper by appellants, for the reason that the weight of the cars without the gravel was far in excess of 100,-000 pounds and in some instances the car alone weighed approximately 150,000 pounds, thus permitting the shipper to place but 19,000 pounds of gravel in the car to make the maximum gross capacity of 169,000 pounds. Mr. Pollard testified for appellees that he ordered cars of 100,000 pounds capacity for loading and “they gave us some piano cars in there 65% feet long, and weighed in a few thousand pounds of the 169,000 pounds.”
The shipper was charged not on the actual weight of the gravel hauled but 90 per cent, of the minimum, 54,000 pounds, regardless of the weight of the gravel hauled.
It is our view that a fair interpretation of the tariff, set out above and in effect at the time, admits' of no such construction as placed upon it by appellant. Such a construction would be unreasonable, arbitrary and unjust to the shipper. This tariff, we think, contemplates shipments on the main line tracks of these roads where the cars may be loaded to their maximum carrying capacity, and when appellant attempts to apply freight rates under this tariff in situations such as we have here, and, for its own benefit and protection, it has not only limited the maximum gross carrying capacity of the cars in question to 169,000 pounds but at the same time has refused, according to the evidence, to furnish the shipper cars with a capacity for 100,000 pounds or such as would have permitted the shipper to load the minimum capacity of the car and at the same time stay within the 169,000 pounds gross weight allowed. Such action on the part of appellant amounted to an unreasonable and excessive freight charge to the shipper not contemplated under the tariff.
The cause was, we think, correctly submitted to the jury on the., theory that appellees were liable only for freight rates applicable to the actual weight of the gravel allowed in each car in question. The amount of the freight charges is not in dispute.
On the record before us we find no error, and accordingly the judgment is affirmed. | [
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Holt, J.
This cause comes here on appeal for a second time. The decision of this court on the former appeal is reported in Sewell v. Benson, 198 Ark. 339, 128 S. W. 2d 683. The substance of the complaint in the instant case is fully set out in the opinion on the former appeal and it is unnecessary to restate it here.
The two questions involved upon the former appeal were: (1) Whether the complaint was good on demurrer; and (2) whether the chancery court had jurisdiction of the cause. We held there that a cause of action was stated and within the jurisdiction of the chancery court. The decree was reversed and the cause remanded with directions to overrule the demurrer.
Upon remand appellees amended their complaint to include a prayer for interest from The Texas Company, and appellants filed appropriate answers denying all material allegations.
In brief the complaint charges (we quote here from appellants’ brief) “that on December 21,1935, The Texas Company, acting through its attorney, L. B. Smead, fraudulently procured the appointment by the Ouachita probate court of F. P. Benson, as curator for Arthur W. Sewell and John W. Sewell, minors, who were residents of Chicago, Illinois; that on March 7, 1937, Benson, as curator, collected from The Texas Company $15,822.86 oil royalties due the minors, and on March 17, 1937, Benson fraudulently and in furtherance of the alleged conspiracy procured an order from the probate court allowing himself three per cent, commission, amounting to $474.69, and an attorney’s fee of $500 for L. B. Smead, as his attorney. ’ ’
They prayed that the order of the probate court allowing the three per cent, commission amounting to $474.69 to F. P. Benson and the attorney’s fee of $500 to L. B. Smead, be canceled and set aside, and that the sureties on Benson’s bond, J. D. Reynolds and Howard East, along* with the curator, Benson, be ordered to account for all moneys collected by such curator and belonging to said minors and for judgment against all of the appellants (defendants below), for all moneys collected by said curator belonging to said minors, together with six per cent, interest thereon.
Upon a trial there was a decree in favor of appellees against appellants, F. P. Benson and The Texas Company, for the sums that had been allowed by the probate court to L. B. Smead, as attorney’s fees, and to F. P. Benson, as curator, and against The Texas Company for six per cent, interest; and against appellees and in favor of L. B. Smead and the sureties on the curator’s bond, J. D. Reynolds and Howard East.
The court further found that neither The Texas Company, attorney, L. B. Smead, nor the curator, Benson, entered into any conspiracy against appellees, and that their acts were not intentionally fraudulent.
Appellants have appealed and appellees cross-appealed.
The questions presented here are whether appellant, The Texas Company, is liable to appellees for legal interest (six per cent.) on monthly royalty payments due appellees which, were withheld by said company, and by the company, paid over to appellant, F. P. Benson, without authority of law; and whether all, or any, of the appellants are liable to appellees for the commissions paid to appellant, F. P. Benson, and the attorney’s fee paid to L. B. Smead, under an order of the probate court of Ouachita county, out of the funds the said F. P. Benson, as curator, held for the Sewell minors; and whether the curator, Benson, and his sureties, J. D. Reynolds and Howard East, should be liable on the curator’s bond.
The record reflects that in 1922 appellant, The Texas Company, leased from Arthur W. Sewell and John W. Sewell, negro minors, through their legally appointed guardian, A. Sewell, their father, (appointed guardian by the Ouachita probate court August 19, 1922), eighty acres of oil land in Ouachita county, Arkansas, reserving an 1/8 royalty interest, a 1/16 interest being the property of the minors. At the time this lease was executed A. Sewell and his minor sons were residents of Ouachita county, Arkansas.
Prior to May 7, 1923, A. Sewell, guardian, took his wards to Cook county, Illinois, and established their residence.
May 25,1923, at a regular term of the Ouachita pro-, bate court, A. Sewell, guardian for these minors, presented to the court his petition and first and final settlement, and prayed for approval and final discharge. Upon a hearing on this petition the court entered an order in which it is recited:
. . The court further finds that the said guardian has moved to Chicago in the state of Illinois, and desires to build a home there, and has taken his wards who are his children to Chicago with him; that the said guardian files a certified copy of his letters of guardianship, together with a certified copy of his bond, showing that he has qualified as guardian for his said wards in probate court in Cook county, state of Illinois, and he asks that the said funds which are now in his hands as guardian, and which are deposited in the Merchants & Planters Bank of ’Camden, Arkansas, to be transferred by said bank, to the Illinois Merchants Bank & Trust Company of the city of Chicago, state of Illinois. . . .” The order approved the settlement and discharged the guardian’s bondsmen and further ordered that “the said A. Sewell is discharged herein as guardian for the said Arthur "W. Sewell and John W. Sewell, minors. . . . .”
Thereafter appellee, City National Bank & Trust Company of Chicago, Illinois, succeeded A. Sewell as guardian of the minors in Cook county, Illinois.
Here it may be stated that in addition to the eighty acres leased to The Texas Company, these minors had inherited 160 acres of other land which they had leased throug’h their guardian to the Gulf Refining Company.
Shortly after the execution of the lease to The Texas Company, oil was discovered on this lease and appellant, The Texas Company, sought legal advice from L. B. Smead, and another Arkansas lawyer, as to the proper party to whom it should make royalty payments. Upon being advised that it would be necessary to make these payments to a curator or guardian for these minors appointed by the probate court of Ouachita county, Arkansas, appellant, F. P. Benson, was appointed curator for these minors by the Ouachita probate court December 19,1924.
Thereafter The Texas Company made all royalty payments due these minors, and which under the lease were to be paid to them monthly, to F. P. Benson, as curator, who in turn remitted these royalties as received by him to the Chicago guardian of the minors, until October 1, 1933.
In 1933, suit was filed in the Ouachita chancery court by F. P. Benson, curator for the Sewell minors, against the Gulf Refining Company (in which suit the Chicago guardian for the minors intervened), for certain royalty payments which it was alleged the Gulf Refining Company owed the' minors but was withholding payment. This suit was compromised and settled by the parties. Out of the money paid the minors in settlement, an attorney’s fee of $2,500 was paid, L. B. Smead’s share being $625.
In the decree it was provided that curator Benson should be paid the sum of “$500 for his services heretofore rendered, and which may hereafter be rendered in the prosecution of said cause, that his attorney, J. Bruce Streett, should be paid the sum of $2,500 for his services heretofore rendered and which should thereafter be rendered in the prosecution of that litigation to a final determination; to which all the other parties in the action then agreed.”
The said decree further provided that, after the payment of said sums to the curator and the attorney, such payments should be in full and complete settlement and in full payment of services rendered and to be rendered in that cause or in connection with said curatorship.
It was further provided that curator Benson agreed to resign as curator when that cause should be finally determined, and that “such resignation is one of the conditions precedent to the agreement entered into for the payment of the compensation herein provided for the curator and his attorney. ’ ’
The decree further provided “that upon final deter-, urination of this cause all moneys, credits and effects adjudged to be the property of the said minors, Arthur W. Sewell and' John W. Sewell, shall by the pipe line companies and all other persons or corporations holding the same, be paid directly to Wm. L. O’Connell, the domiciliary guardian of the person and estate of said minors. ’ ’
Following this decree, F. P. Benson, without resigning his curatorship as the decree directed, and while still acting as guardian for these two minors under his appointment made in 1924, again on December 21, 1935, petitioned the Ouachita probate court and had himself appointed guardian for these minors for a second time.
This latter appointment was made on the suggestion and with the knowledge of L. B. Smead. We quote from Ms testimony: “Q. When Mr. Benson was appointed curator in 1935, that was at your suggestion? A. In a way it was. . . .”
As has been indicated, appellant, The Texas Company, ceased making royalty payments to these minors on October 1, 1933, and February 26, 1937, there had accumulated in the hands of The Texas Company royalty payments belonging to these minors in the sum of $15,-822.86. A check for this amount was forwarded to Benson, as curator, by The Texas Company and received by him on March 7, 1937. Demand on The Texas Company for payment of this amount direct to it had been made on March 2, 1937, by appellee, City National Bank & Trust Company, guardian for these minors in Cook county, Illinois.
Upon receipt of this check, the Ouachita probate court, upon Benson’s petition, entered an order authorizing him as curator to pay himself a commission of three per cent, out of these funds received from The Texas Company,- amounting to $474.69, and in addition to pay to his attorney, L. B. Smead, a fee of $500. Benson then remitted to the City National Bank & Trust Company, guardian in Cook county, Illinois, what remained out of the $15,822.86 check after paying his commission of $474.69 and the $500 attorney’s fee.
Appellants attempt to justify their actions, as outlined above, under the provisions of § 6236 of Pope’s Digest which is as follows: “If any minor residing without this state shall have any estate within this state, the court of probate in the county where the estate or any part thereof may be shall appoint some competent person to be curator of the estate of such minor; and the curatorship which shall be first lawfully granted of the estate of any such minor shall extend to all the estate of such minor within this state, and shall exclude the jurisdiction of every other court.”
We are of the view, however, that this section, which is § 12 of the act of April 22, 1873, p. 185, does not apply in the instant case for the reason that this section does not take into consideration a case, such as the one presented here, in which the minor has a duly appointed and acting guardian in the state of his residence.
We think, however, that §§ 6293, 6294, and 6296 of Pope’s Digest, which are §§ 38, 39 and 45, respectively, of the 1873 act, sv,pra, do apply. These sections are:
“Section 6293. When any guardian and his ward are both nonresidents, and such ward may be entitled to property of any description in this state, such guardian on producing satisfactory proof to the court of probate of the proper county, according to law, that he has given bond and security in the state in which he and his ward reside, in double the amount of the value of the property, as guardian, then such guardian may demand or sue for and remove any such property to the place of residence of himself and ward. ’ ’
“Section 6294. When such nonresident guardian shall produce an exemplification, under the seal of office (if seal there be) of the proper court in the state of his residence, containing all the entries on record in relation to his appointment and giving bond, duly authenticated, the court of probate of the proper county in this state may cause suitable orders to be made discharging any resident guardian, executor or administrator, and authorizing the delivery and passing over of such property, and also requiring receipts to be passed and filed if deemed advisable.”
‘ ‘ Section 6296. Whenever it shall be made to appear to the court that any nonresident minor having a guar-dian or curator in this state has also a guardian in another state or territory, the court may authorize or compel the resident guardian or curator to deliver over to such foreign guardian all the property of such minor of which he may have the custody, and make a full and perfect settlement of his guardianship or curatorship, with such foreign guardian. The receipts of such foreign guardian shall fully discharge such resident guardian or curator and his sureties from all liability on account of the property so delivered to such foreign guardian.”
We are of the view that the order of the Ouachita probate court, supra, May 25, 1923, was made and put into effect under these three provisions of the statute, and having thus complied with these sections, the guardian of these minors residing in Coolc county, Illinois, had the right to receive all royalty payments due his wards direct from appellant, The Texas Company, without the intervention of an Arkansas curator.
As evidence that this is the proper construction to be placed upon the above sections of the statute, and the legislative intent, this court in Landreth v. Henson, 116 Ark. 361, 173 S. W. 427, construed § 6289 of Pope’s Digest (enacted in 1917), which is as follows:
“When a nonresident minor owns real property in this state and has a guardian or curator in the state where he resides, the court of probate of the county where such lands or a greater part thereof are [is] situated, may authorize such guardian or curator to lease said lands, or any part thereof, for the production of oil or gas upon securing an order from the probate court and complying with the terms and provisions of the act.”
It is there said: “The question is solely whether the Missouri court' had jurisdiction to appoint a guardian, so that the courts of this state might in consequence thereof authorize a sale of land here to be made by such guardian. The judgment of the Missouri court in appointing the guardian there is at least presumptively decisive of the question, and we think, under the authority cited, the court had, upon the facts shown in this case with respect to the legal domicile and residence, jurisdiction to make the appointment.”
In a later decision, Ingraham v. Baum, 136 Ark. 101, 206 S. W. 67, this court construed § 6288 of Pope’s Digest which is as follows:
“When a nonresident minor owns real estate in this state, and has a guardian in the state or territory in which he resides, the court of probate in the proper county may authorize such guardian, either in person or. by his agent acting under the power of attorney, to sell such real estate and receive the proceeds of snch sale. Provided, that before any order shall be made for the payment of money to a nonresident guardian, or for the sale of the property of his ward by him, he shall produce satisfactory evidence to the court that he has given bond and security as guardian, in the state in which he and his ward reside, in at least double the amount of the sum to be paid to him, or in double the amount of the appraised value of the property to be sold; and the proof shall consist of a copy of the record, setting forth his appointment of guardian, and also a copy of his bond executed as such, duly authenticated.”
In discussing this section it was there said: “The Legislature had at first dealt with the estate of resident minors, and had provided how such property might be sold. The Legislature found it wise to prescribe terms under which that property might be sold to protect the infant’s interest. The whole subject was under the control of the Legislature, which recognized that there would be nonresident minors owning property in this state whose lands should also be sold, and provision for that contingency was made in § 37 [now § 6288, Pope’s Digest].”
We think, therefore, after this valid order was made by the Ouachita probate court on May 25, 1923, swpra, that the subsequent appointment of Benson as curator for these minors by an order made in 1924, was unnecessary and in the circumstances of this case was unauthorized.
As has been indicated, one of the conditions set out in the decree in 1933 in the Gulf Refining case, under which curator Benson and his attorney were allowed and paid certain fees, was that he should resign immediately as curator for these minors.
While no formal resignation was ever made by Benson, his second appointment in 1935 by the Ouachita probate court must have been made on the assumption that he had resigned in accordance with the terms of the decree in this Gulf Refining case. This second appointment, however, was likewise unnecessary, without author ity, and void in view of the prior valid order of the probate court of May 25, 1923, and appellants are liable, as the trial court found, to these minors for the three per cent, commission of $474.69, together with a subsequent commission paid Benson of $265.68, court costs of $19.86, and the $500 paid to L. B. Smead, attorney.
We are further of the view that appellant, The Texas Company, was correctly held jointly liable with curator Benson for these commissions, costs, and the attorney’s fee of $500, and also, under the express contract (its lease from these minors) as well as an implied contract, appellant, The Texas Company, was bound for six per cent, interest on these royalty payments as they became due to these minors beginning with the payment due October 1, 1933. The Texas 'Company admits owing this money and no legal excuse has been shown for their failure to pay when each royalty payment became due.
We are also of the opinion that appellant, F. P. Benson, curator, and J. D. Reynolds and Howard East, sureties on his bond executed following his second appointment in 1935, are jointly liable in the amount of the bond for the commissions paid to curator Benson and the $500 paid to attorney Smead. Although this bond was executed under a void probate court order, it does not follow that the curator and his bondsmen would not be liable to the extent of $1,000, the amount of the bond, for the wrongful act of curator Benson in paying the three per cent, commissions to himself and the attorney’s fee to Smead out of the funds belonging to these minors, and which should have been paid directly to their domiciliary guardian in Cook county, Illinois, without the intervention of a local curator.
In Norton v. Miller, 25 Ark. 108, this court said: “The case of Iredell v. Barber, 9 Iredell’s Rep. (N. C.) 234, is strongly in point. King had been appointed guardian for Mrs. Fane, a lunatic, and entered into bond with surety for the faithful performance of his duties, and, in the condition of his bond, recited his appointment as guardian by the court — a court, however, had no power to make the appointment, and this want of jurisdiction to appoint was relied upon by King- and his sureties in bar of a right of recovery upon the bond. In considering which, Pearson, judge, said: ‘It is true the court had no power to appoint King the guardian of Mrs. Fane, and authorize him to take her estate into possession, but the defendant will not be heard to make this objection; he concurred in the act, his bond solemnly asserts that . . ., and after he has taken the estate into his possession, and wasted it, it is not for him to say that it was unlawful, and therefore, he is not bound by his undertaking deliberately entered into’.”
We conclude, therefore, that the decree, on direct appeal should be, and is, affirmed. On cross-appeal, judgment is rendered here against Benson for the commissions he collected and for the payment of $500 made to Smead, and against Benson’s bondsmen for $1,000. Judgment is rendered against L. B. Smead for $500. | [
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Smith, J.
This is a companion case to that of Viking Freight Company, Inc. v. Circuit Court for Chickasawba District of Mississippi County, Arkansas, et al., No. 6386 (ante, p. 656), in which the opinion has this day been delivered. There is this difference only between the eases. Sangalli, the plaintiff in that case, is a resident of this state; Holmes, the plaintiff in the instant case, is a nonresident of this state. They were injured at the same time, and in the same collision, otherwise the cases are identical.
Upon the authority of the case of Yockey v. St. Louis-San Francisco Railway Co., 183 Ark. 601, 37 S. W. 2d 694, it must be held that if either case may lie maintained in this state, both may be, and the writ of prohibition is, therefore, denied in the instant case. | [
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Holt, J.
Appellees, M. A. Blackford and others, sued appellants, G-. J. Hallum and A. McAlister, in the Crawford circuit court to compensate personal injuries received by them as a result of a collision between an automobile in which appellees were riding and appellants’ truck, on highway No. 64, in Moffett, Oklahoma. Upon a jury trial judgments aggregating $12,235 were rendered in favor of appellees. Appellants have appealed.
Two errors are argued here: (1) That the evidence was insufficient to take the case to the jury; and (2) that error was committed in the selection of the jury to try the cause.
This is the second time this case has been here on appeal. The cause on the former appeal is reported in 200 Ark. 847, 141 S. W. 2d 54, as National Mutual Casualty Co. v. Blackford. The judgment was reversed on the first appeal for the error in joining the insurance company as a party defendant. However, in that opinion- on the question of the sufficiency of the evidence, we said: “For a reversal, it is first insisted that the court erred in refusing to direct a verdict for appellants at their request so to do. We cannot agree that a question of fact was not made for the jury. The testimony is in direct conflict. That for appellees shows that the collision was due to the negligent driving of appellant, McAlister; that for appellants shows it was due entirely to the negligent driving of appellee, M. A. Blackford. It is said the physical facts belie the testimony of appellee. We are unwilling to give assent to this contention, even though the circumstances strongly point in that direction. We think it unnecessary to set out in detail the testimony of the various witnesses. Suffice it to say a case was made for the jury on the issues in dispute.”
Under the rule many times announced by this court, the decision on the former appeal becomes the law of the case on this appeal unless we can say that the testimony on this second appeal is substantially different from that on the first appeal. "We think it unnecessary to attempt to set out or abstract the testimony presented in this record. Suffice it to say, that after carefully reviewing it and comparing it with the testimony on the first trial, we find no substantial or material difference. Of course, there may be slight differences and variations but we think not of a substantial nature. It is conceded that the photographs in evidence on this trial are identical with those used on the former trial. As in the former trial, so in this, the testimony of the witnesses is in irreconcilable conflict.
In Missouri Pacific Rd. Co., et al. v. Foreman, 196 Ark. 636, 119 S. W. 2d 747, this court said: “ ‘Learned counsel for appellant argue with much zeal and plausibility that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued with equal force and confidence when the cause was before us on the former appeal, but we decided that there was enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and we must treat the former decision as conclusive of the question. ’
“"Where the record on a second appeal is substantially the same as on the former appeal, the holdings of this court on the former appeal become the law of the case. This rule has been followed by this court throughout its history.”
And in the recent case of Missouri Pacific Rd. Co. v. Burks, 199 Ark. 189, 133 S. W. 2d 9, we said: “The evidence is not essentially or materially different from what it was as set out and argued in the first case. It, therefore, becomes unnecessary to take up and reconsider upon this appeal the evidence tending to show liability and to support the judgment rendered.”
See, also, Missouri Pacific Rd. Co. v. Sanders, 196 Ark. 269, 117 S. W. 2d 720; Missouri Pacific Rd. Co. v. Hunnicutt, 193 Ark. 1128, 104 S. W. 2d 1070; Postal Telegraph-Cable C. v. White, 190 Ark. 365, 80 S. W. 2d 633; Milsap v. Holland, 186 Ark. 895, 56 S. W. 2d 578, and Coca-Cola Bottling Co. v. Shipp, 177 Ark. 757, 9 S. W. 2d 8.
We conclude, therefore, that the trial court did not err in submitting the cause to the jury.
Appellants next insist that the trial court erred in the manner in which the jury was selected. We cannot agree to this contention.
Appellants seem to base this assignment on the following contentions: They say in their brief “that after this cause had been called for trial and both sides had announced ready, and after the court announced that this would be the first cause tried at this term, the court, upon the suggestion and request of appellees’ counsel, displaced the case on the docket and ordered another case to be tried first,” the court erred in “denying to appellants a trial by a jury selected by the jury commissioners,” that error was committed by the court in excusing “without cause and in an improper manner, various jurors” and for refusing tp “delay the start of the trial until such time as the jury then deliberating should be available for this case.”
The record reflects that the cause could not be reached on the day on which it was set for trial. On the following day, at the request of appellees, this case was replaced by the court by the next case on call for the reason that some of appellees’ witnesses were not then present.
It appears that at the beginning of the term of court-out of the 33 jurors selected by the jury commissioners only 15 had reported for duty. Those not reporting had been excused for various reasons by the court. The court then filled out the regular jury panel of 24 from bystanders.
When the case was finally reached only 18 jurors were available, another jury of 12 being out at the time on another ease. Just how many jurors of the regular panel were on this jury the record does not clearly indicate. Upon appellants’ request for a drawn jury, the sheriff summoned six bystanders to complete a jury panel of 24 men from which the jury was selected.
It is a well settled rule of law that no litigant is entitled to the services of any particular juror. In excusing, empaneling and selecting jurors for the trial of causes, the trial judge must of necessity be given much latitude and a wide discretion. This is necessary if the machinery of our courts is to function with dispatch and without unnecessary delays and expense. Unless there has been an abuse of this discretion this court will not reverse. After a careful search of this record we have been unable to find any act of the trial court which can be said to be an abuse of discretion, and able counsel for appellants have been unable to point us to any such abuse. All of the matters complained of by appellants, as we view them, were acts of the trial court clearly within his discretion and, as indicated, we think no abuse thereof has been shown.
In the case of Sullivan v. State, 163 Ark. 11, 258 S. W. 643, this court said: “During the adjournment stated, which covered a portion .of what would ordinarily have been a part of the summer vacation, the court had for causes not shown, excused a number of the members of the regular panel, so that, when the ease was called for trial, only fifteen members of the regular panel of the petit jury responded to the call of their names. Thereupon the court ordered the sheriff to summon jurors to become members of the regular panel, and a sufficient number of persons were called from the special venire and qualified for that purpose so that when the drawing of the jury began, which the defendant demanded, there were twenty-four jurors in the box. An exception was saved to the action of the court in thus filling the jury.
“We think no error was committed in the respects stated. These were matters over which the circuit judge must necessarily have a wide discretion. It is thoroughly settled that a defendant has no right to the services of any particular juror. He may only demand that he be tried before a fair and impartial jury, and it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint.
“In the matter of summoning the special veniremen the trial judge is also necessarily vested with a wide discretion. He is charged with the duty of dispatching the business on his docket, and should, of course, do so in a way to avoid either unnecessary delay or unnecessary expenses . . . and there is no assignment of error that the defendants were compelled to accept any juror who was in fact disqualified for any reason.” See, also, Rogers v. State, 133 Ark. 85, 201 S. W. 845.
And again in Rumping v. Arkansas National Bank, 121 Ark. 202, 180 S. W. 749, this court said: “The decision of the trial judge upon the question of a juror’s qualification must necessarily rest largely in the exercise of sound discretion, and the decision should not be set aside unless it clearly appears that there has been an abuse of discretion and that a biased juror has been forced upon the parties.”
Section 8334 of Pope’s Digest provides: “A panel of twenty-four petit jurors shall be formed from the list of petit jurors and alternates, and bystanders if necessary, in the manner prescribed in §§ 8326 and 8327 for the selection of the grand jury, which shall be organized and sworn as provided in § 6375.”
Section 8335 provides: “Such panel shall be the regular jurors for the trial of all jury cases both civil and criminal. ’ ’
Section 8339 provides: “If, for any cause any of said jurors shall, at any time, be released from serving for the balance of the term, others shall be summoned and sworn so that there shall be at all times a panel of twenty-four regular jurors.”
Under the above sections, together with § 8345 of Pope’s Digest, we think appellants were entitled to a jury selected out of the regular panel of twenty-four men, provided this panel of twenty-four regular jurors were available to them at the time of the selection of the jury. In the instant case it appears that twenty-four regular jurors were not available at the time the jury was selected for the reason that some of the regular panel were deliberating on another case. It also appears that when the instant case was called the court waited for a reasonable length of time for the other jury to report and when it failed to report a sufficient number of bystanders were summoned to fill out a panel of twenty-four from which the jury in question was selected.
As indicated, we think the law contemplates and intends that appellants had the right to select the jury from the regular jury panel, but only in case the regular panel were available at the time.
Litigants have no right to demand that the business of trial courts be suspended pending the verdict of a deliberating jury. Juries sometimes deliberate for days, and certainly the machinery of our courts may not be stopped for unreasonable periods to afford a litigant the opportunity to select the jury from the regular panel.
In Pate v. State, 152 Ark. 553, 239 S. W. 27, this court said: “The first assignment of error is that the court erred in refusing to quash a special venire ordered at his trial. It appears that the jury was divided into two panels, and when appellant’s case was called one of these panels was exhausted without making the jury. The other panel was at the time engaged in considering a case which had been submitted to it. Appellant demanded that his trial be stayed until this second panel had been discharged and was available in his case. The court overruled this motion and ordered the sheriff to summon as veniremen twice the number then needed to complete the jury.
“No error was committed in this ruling. This exact question was raised in the case of Johnson v. State, 97 Ark. 131, 133 S. W. 596, and it was there held that the trial court committed no error in refusing to delay the trial until the members of the regular panel engaged in the trial of another case were available. If it were otherwise, intolerable delays would result in the administration of justice. ’ ’
No error appearing, the judgments are affirmed. | [
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MoHaney, J.
Appellant, Mary Harris, colored, was the former wife of Earl Harris, now deceased. They were divorced, and a division of property decreed on December 2,1937, by which the title to lots 7 and 8, block 1, Waters Addition to Pine Bluff, was vested in Earl and two lots 9 and 10, same block and addition, in Mary. On January 14, 1939, Earl Harris, then single, executed and delivered to W. H. Lee a deed to said lots 7 and 8 to secure an indebtedness to said Lee of about $300. Thereafter, on October 3, 1939, Earl was married to appellee, Yelma Harris, and on January 15, 1940, he paid the indebtedness due to" Mr. Lee and caused him to execute a deed to said lots 7 and 8 to appellee, Rebecca Collins, a sister, without her knowledge or consent, and caused said deed to be placed of record. This latter transaction ^was handled by Mary, but with the knowledge and consent of Earl. The deed was recorded and returned to either Earl or Mary, but was never delivered to appellee, Rebecca Collins. On May 29, 1940, according to Mary, Earl came to her to borrow $20 to go to a hospital in Little Rock, for an operation, but having advanced him numerous sums from time to time, after their divorce, amounting to $75 or more, she told him she could not give it to him, and he proposed, to have his sister, Rebecca Collins, convey said lots 7 and 8 to her (Mary) for a consideration of $75. She let him have the $20. They, Earl and Mary, went to see Rebecca to get her to make the deed which she agreed to do, but it was not done at that time. Earl left for the hospital in Little Rock on May 30 and was killed in a crossing accident, and on the next day, May 31, Rebecca conveyed said lots by deed to Mary, who, on June 5, executed a deed of trust to appellant Eddie K. Monk, to secure an indebted ness of $250 to her attorney, for services rendered and to be rendered. Six days later, on June 11, 1940, Rebecca Collins brought this action to cancel her deed to Mary. Velma Harris, the widow of Earl who died intestate, was appointed administratrix of his estate, and on July 9, 1940, intervened in said action making Eddie K. Monk a party, and sought to have her dower and homestead interest in said lots protected. Issue was joined and a trial had, resulting in a decree holding the deed to Mary from Rebecca was given to secure a debt of $75, for which a lien was decreed on said lots, and in canceling the deed of trust or mortgage from Mary to Eddie K. Monk. Title to an undivided one-half interest therein was vested in Velma Harris, as her dower, in fee, and the other half in fee in the collateral heirs of Earl Harris, Rebecca Collins and others. This appeal followed.
It is conceded by all parties that the deed from Earl Harris to W. H. Lee was made to secure an indebtedness of about $300. It was, therefore, an equitable mortgage, although a deed absolute in form. Brewer v. Yancey, 159 Ark. 257, 251 S. W. 677. In this state, the naked legal title to real property included in a mortgage passes to the mortgagee, or to the trustee in a deed of trust, to make the security available for the payment of the debt. Foreman v. Holloway & Son, 122 Ark. 341, 183 S. W. 763; Whittington v. Flint, 43 Ark. 504, 51 Am. Rep. 572. It is-also conceded that the debt secured by said deed was paid by Earl Harris to Mr. Lee on or about January 15, 1940, at a time when Velma and Earl were husband and wife. When this debt was paid, the lien of the mortgage became extinct. Baily v. Rockafellow, 57 Ark. 216, 21 S. W. 227.
In Stebbins v. Clendenin, 136 Ark. 391, 206 S. W. 681, it was said: “It was conceded, for the purposes of the demurrer, that appellee acquired an equitable mortgage from appellant upon said real estate to secure an indebtedness of $500 and interest; that thirteen years thereafter appellee accepted full payment of the indebtedness, but refused, after receiving payment, to reconvey the property. By acceptance of the debt, appellee necessarily acknowledged that she had held the lands from the beginning in the capacity of trustee to secure a debt. Her holding constituted her a trustee coupled with an interest in the land to the extent of the debt. The payment of the debt eliminated her interest and left her the title as a naked trustee. By accepting the payment, appellee clearly waived the right to invoke the statute of limitations, or laches by appellant, as a defense to the suit.” In Jones on Mortgages, vol. 2, 8th Ed., § 1136, it is said: £<To revest the title by performance of the condition, the performance must be substantially and formally within the terms of the condition. The estate of the mortgagee is at law defeasible only by the performance of the condition strictly in the manner and at the time stipulated. When this is done, the estate reverts back to the mortgagor without any reconveyance, by the simple operation of the condition.” See, also, Jones on Ark. Titles, § 955; Schearff v. Dodge, 33 Ark. 340; Stewart v. Scott, 54 Ark. 187, 15 S. W. 463. In Schearff v. Dodge, Supra, it was held that payment of the debt secured by a mortgage discharges the lien and revests the legal estate in the mortgagor, and in Stewart v. Scott, supra, it was held that payment at maturity destroys the mortgage estate without a reconveyance or release of the mortgage. In German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 54 Am. St. Rep. 297, it was held that the entry of satisfaction on the record of a chattel mortgage is not essential to the removal of the incumbrance, when the mortgage debt has been paid off and canceled. Here, Mr. Lee had a deed absolute, but when the payment was made which was the condition, as between him and Earl Harris, the title revested in the latter, and he, Lee, had no title to convey to Rebecca Collins and she acquired no more title thereby than Lee had. In order to clear the record and to guard against the acquisition of rights by third parties or innocent purchasers it was necessary either to reconvey to Earl Harris, or to satisfy the record of the deed as a mortgage. But neither Rebecca Collins, Mary Harris nor Eddie K. Monk was a third party or innocent purchaser, for Rebecca knew nothing of the conveyance to her which was without consideration, and Mary and Monk knew all the facts, Mr. H. Jordan Monk, for whose benefit the mortgage was given, having prepared all the deeds and the deed of trust or mortgage, and Mary having been quite active in getting all of them executed.
We, therefore, conclude that Lee’s deed to Rebecca conveyed no title, and that the subsequent conveyances were likewise ineffectual to convey the title, all of which should have been canceled as clouds on title to lots 7 and 8, block 1, of said addition. If Mary has a claim against the estate of Earl Harris she may present same to the administratrix of his estate and to the probate court for' allowance, but she has no lien on said lots by virtue of the conveyances aforesaid. In this respect, the decree will be modified, and, since the title to real estate is involved, the cause will be remanded with directions to so modify the decree as to conform to this opinion. | [
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Humphreys, J.
This suit was brought in the circuit court of White county by appellee against appellant to recover damages for personal injuries received by him in falling over the handle of a jack being used to raise the back end of an automobile, which handle extended across a sidewalk he was rightfully using.
The gist of the allegations of the complaint are that appellant owned a-filling station at the corner of Walnut and Second streets in Newport, which was in charge of its agent, Tom Hutson, and appellee was seriously and permanently injured; that on August 20, 1938, appellee was walking along the sidewalk on Second street, in Newport, and while passing the front of the Magnolia filling station on said sidewalk and street, stepped against the handle of a certain large and heavy jack used to raise and jack up cars to repair them and change tires, and was thereby caused to stumble and fall violently to the ground; that appellee was walking along said sidewalk in his usual and customary manner of walking, when his attention was directed across the street by the noise of a line of automobiles and trucks where cars were being inspected and tested at the police station, and when he thus glanced in that direction, he hit said jack handle and fell; that two negroes were working at the station doing general repair work on automobiles for the public, by contract and agreement with Tom Hutson, the duly authorized agent of appellant, with authority to operate and control said filling station and the premises around same for said appellant in all of the operations of said station and grounds in his charge as such agent, and said negroes were working at the instance and with the' knowledge, consent and permission and under the said contract above mentioned, of the said Tom Hutson as agent of said appellant; that the said negroes in using said jack negligently jacked up the rear end of an automobile at the edge of the said station grounds near enough the sidewalk on said Second street to cause the long, heavy jack handle to extend across the said sidewalk at said point and on account of the negligence on the part of appellant, its agents and employees, caused the appellee to be injured; that appellant, its agents, servants and employees were grossly negligent in placing said jack and allowing said jack to be placed in said position and thereby trespassing upon the rights of pedestrians and making it dangerous for them to pass said station in safety; that appellee had no warning that said jack handle was across said sidewalk and was in no way negligent in using said sidewalk where all pedestrians walked along same; that he was injured through no fault of his own. In substance, the relationship of master and servant was alleged as a basis for recovery under the doctrine of respondeat superior.
An answer was filed denying each and every material allegation of the complaint and stating- that appellant is in no wise liable or responsible for the accident complained of and resulting’ injuries, and that appellee’s injuries were occasioned solely by his own negligence in failing to exercise ordinary care for his own safety.
The cause was submitted upon the pleadings and testimony adduced by the respective parties, at the conclusion of which appellant requested an instructed verdict in its favor, whereupon attorney for appellee stated: “We are suing because the property was being used by these negroes with its knowledge and consent as a place for working on automobiles and on that account it (appellant) became responsible for the negligent act of the negroes in placing the jack under the back end of the automobile so as to allow the heavy handle thereof to extend out across the sidewalk, an act of negligence which appellant should have anticipated.”
Appellee was allowed to orally amend the complaint so as to change the allegation of negligence in this respect although appellant requested a continuance on the ground of surprise. The court thereupon declined to grant a continuance and refused to instruct a verdict for it, over appellant’s objection and exception.
The court then submitted the case to the jury on the theory that appellant would be liable if a preponderance' or weight of the evidence showed that it had knowledge that the negroes were using the property for cleaning and repairing automobiles in such a careless and negligent manner as to endanger the lives and safety of passersby upon said public sidewalk, if said passersby were exercising ordinary care for their own safety, with the result that the jury returned a verdict for $1,250 against appellant upon which a judgment was rendered, from which is this appeal.
The testimony stated in the most favorable light to appellee, is, in substance, to the effect that appellant owned the filling station and the grounds around it and had leased it to W. P. Brazille until June 10, 1938, at which time the lessee moved out leaving the property vacant; that the door was locked and windows fastened down; that it remained vacant and was vacant and un occupied at the time appellee fell over the jack handle and injured himself; that after the station became vacant two negroes, who were occupying Mrs. Hubbel’s property, just east of and adjoining appellant’s vacant filling station, used the driveway and concrete surface around appellant’s station for -cleaning, repairing, and greasing automobiles for some of their patrons, without getting’ permission from its wholesale agent to do' so; that appellant’s agent, Tom Hutson, inspected appellant’s station every few days to see whether it was locked up and whether anyone had gotten into it; that said agent had no authority to lease or grant permission to anyone to use the grounds round about the station building, but was simply a caretaker for looking after and inspecting the property for the purposes aforesaid; that at such times as he inspected the station he had observed the negroes using the concrete surface round about the station and grease rack to clean, repair, and grease automobiles, but that he did not notice any careless or negligent acts on the part of the negroes and said nothing to them about the use they were making of it; that he gave them no permission to use the premises; that a police officer, who saw the negroes using the surface round about the building cautioned the negroes, as he had done all other filling stations, not to obstruct the sidewalk; that appellant had not rented to or given the negroes any permission to use the driveway or concrete surface round about the filling station; that appellant’s caretaker was not there when the accident happened and knew nothing about the handle of the jack lying across the sidewalk and had never noticed or observed the jack handle lying across the sidewalk before when the negroes were repairing automobiles.
The court erred in not granting appellant a continuance when he permitted appellee to change the alleged cause of action by oral amendment to the complaint, when it expressed surprise and requested him to do so, but that error is of no consequence as the evidence .stated in its most favorable light to appellee is insufficient to establish liability on the part of appellant for the injuries received by appellee. These negroes com mitted the alleged act of negligence without the consent and without the knowledge of appellant. They were not employees of appellant and were not running or operating the filling station f-or appellant. They had no connection whatever with appellant, hut were third parties. Although Tom Hutson inspected the premises occasionally there is no evidence that he ever saw any obstruction on the sidewalk or anything to cause him to anticipate that the handle of the jack would be laid across the sidewalk. There is nothing to show that he had any reason to anticipate that the negroes would use the ground round about the filling station in a careless, negligent manner. As far as the record shows this is the only time the handle was placed across the sidewalk, and Tom Hutson was not there at that time. It is only where one. has reason to anticipate want of care and danger that he is required to anticipate or guard against it. The act of negligence alleged was not a continuing act or at least the evidence does not show that it ever occurred before. This court quoted in the cases of Willoughby v. Rot Springs Ice Co., 180 Ark. 231, 21 S. W. 2d 168, and in Leonard v. Standard Lbr. Co., 196 Ark. 800, 120 S. W. 2d 5, from the case of Manning v. Sherman, 110 Me. 32, 86 A. 245, 46 L. R. A., N. S., 126, Ann. Cas. 1914D, 89, as follows:
“When the injury is the result solely of the negligent act of a third person, who does not stand in such a relation to the defendant as to render the doctrine of respondeat superior applicable, no liability attaches to defendant. The fact that the negligent act which caused the injury was done on a person’s land or property will not render him liable, where he had no control over the persons committing such act, and the act was not committed on his account, nor where the third person, whose negligence caused the injury, assumes control of the owner’s property without authority. An owner or occupant of premises, not in a defective or dangerous condition, is not liable for injuries caused by acts of third persons, which were unauthorized, or which he had no reason to anticipate, and of which he had no knowledge.”
The injuries to appellee were caused by acts of the negroes, third parties, which were unauthorized, or which appellant had no reason to anticipate and of which it had no knowledge and we think the facts bring it clearly within the rule announced in Willoughby v. Hot Springs Ice Co., and Leonard v. Standard Lbr. Co., supra.
Appellee contends that the facts in the instant case bring it within the rule announced in the case of Malco Theatres, Inc. v. McLain, 196 Ark. 188, 117 S. W. 2d 45, and that the instant case is ruled by the Malco Theatres case, but not so, for in that case Mrs. McLain was injured through the negligent act of the servant of the property owner, who, while in the performance of work for the owner stuck a mop handle out on the sidewalk and tripped Mrs. McLain. In the instant case the negroes were not employed by appellant. There is nothing in the record to show that the jack was used more than one time and nothing to show that it belonged to the appellant or that appellant or its agent had ever seen the negroes using the area around appellant’s filling station in a careless and negligent manner.
We have concluded that there is no evidence tending to show any liability for the injuries received by appellee against appellant and for that reason the judgment is reversed, and the cause is dismissed. | [
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Per Curiam.
The Attorney General, acting for appellee, has moved to dismiss the appeal because the record was not lodged in this court within sixty days from the time judgment was rendered.
October 22, 1940, the Commission’s action in fixing the railroad company’s ad valorem assessment at $267,-000 was affirmed. Appellant’s motion for a new trial was filed November 4, 1940, and overruled the same day.
The appeal to this court was filed March 24, 1941. The order of November 4 overruling appellant’s motion for a new trial granted an appeal to the Supreme Court and allowed 60 days within which to perfect the appeal. Time, however, runs from date of judgment, rather than from the order overruling the motion for a new trial.
Act 124, approved February 15, 1921, as amended (Pope’s Digest, § 2020) provides that in respect of appeals of the kind here involved the record shall be lodged with the Supreme Court clerk within sixty days from date of judgment. Since the appeal was not perfected in a timely manner, the motion to dismiss must be sustained. It is so ordered. | [
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Humphreys, J.
This suit was instituted in the chancery court of White county against appellee on the 9th day of July, 1940, to enjoin him from transporting about twenty-five passengers from a community known as Opal to Beebe and back to Opal from Beebe in his bus on Saturday of each week for pay or gratis on the alleged ground that appellant was the owner of a rural bus line which he was authorized to operate under a license certificate or permit issued to him by the Corporation Commission of Arkansas pursuant to and in accordance with act 99 of the General Assembly of 1927, as amended by act 62 of the Acts of 1929 and act 12 of the Acts of 1933, over a route, intrastate, from El Paso. to Beebe and from Beebe to Searcy, the county seat of White county, and intervening points which included the road or highway from the community of Opal to Beebe.
It was alleged in the complaint that appellee had no •license certificate or permit from the Corporation Commission for the transportation of persons or property for compensation or gratis on the highway between the commnnity of Opal and Beebe along appellant’s route and that in transporting about twenty-five persons every Saturday from Opal community to Beebe and return he prevented appellant from transporting them as pay passengers in the sum of 20 cents each to his damage; in the sum of about $5 a week for a period of two years.
The prayer of the complaint was for a temporary restraining order and upon final hearing for a permanent restraining order prohibiting appellee from transporting passengers from Opal community to Beebe and return on Saturday of each week and for damages he has sustained by reason thereof.
An answer was filed by appellee denying each and every material allegation of the complaint.
A temporary restraining order was granted and upon final hearing the temporary restraining order was dissolved and the prayer of appellant was denied, except the court permanently enjoined appellee from transporting persons from Opal community to Beebe and return for hire, from which order is this appeal. ,
Appellant’s objection to the order is that it did not enjoin appellee from transporting passengers gratis from Opal community to Beebe and return, on the ground that to transport persons between said points on appellant’s route under his license certificate and permit deprived him of transorting* them for pay in accordance with rates fixed by said commission.
This court ruled in the case of Morgan v. Fielder, 194 Ark. 719, 109 S. W. 2d 922, that one to whom the Corporation Commission had issued a license certificate or permit to operate a bus line over certain roads in the state to carry passengers or property for hire under authority of a'ct 99 of the General Assembly of 1927 as amended by act 62 of the Acts of 1929 and act 12 of the Acts of 1933 was entitled to an injunction to prevent one, who, without such authority, was operating- over the same highway to the damage of the other’s business. In Morgan v. Fielder, supra, the facts showed that Fielder was operating his bus line as a common carrier on fixed schedules over a regular route for compensation without any permit to do so, and, of course, was infringing upon the rights of Morgan under his license certificate or permit.
In the instant case appellee used his bus five days in the week to transport pupils to and from the school in the Opal school district, which he had a right to do, and on Saturdays it had been his custom to go to Beebe and take along any one of the children and their parents who desired to go to the town of Beebe and return, without charge or pay of any kind. He did this as a favor to the neighborhood or as a friendly act to his neighbors and had been doing it for many years before appellant obtained an indeterminate license or permit to operate a bus line over a route, intrastate, from El Paso to Beebe. Appellee did not operate on a fixed schedule nor for compensation over appellant’s route and did not leave the Opal community for Beebe on Saturdays until after appellant’s bus had g’one through the community toward Beebe. There is no evidence in the record tending to show that appellee had an ulterior motive or purpose of infringing upon or injuring appellant’s business. He was not holding himself out as a common carrier in opposition to appellant. We cannot find an intention on the part of the Legislature in enacting the act authorizing the Corporation Commission to issue indeterminate permits on the grounds of convenience and necessity, to prevent owners of motor vehicles along the route from inviting and allowing their neighbors to ride with them, if no charge were made. No such intent was expressed or can be implied in the enactment of said act and the amendments thereto.
Conditions might arise as they did in the case of Morgan v. Fielder, supra, that would entitle one holding an indeterminate license or permit to injunctive relief, but this record does not reflect that appellee was attempting to infringe upon the business of appellant nor to compete with him as a common carrier in the operation of his business.
No error appearing, the decree is affirmed. | [
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Humphreys, J.
This is an appeal from a decree of the chancery court of Garland county wherein appellant was plaintiff and appellees were defendants.
Appellant sought in her complaint to obtain a divorce from appellee, John Woodcock, Jr., on the ground of. desertion, and one-third of his estate, most of which he inherited from his father, and an attorney’s fee and costs; also by equitable garnishments to impound certain property including bonds, stocks, lands, etc., alleged to be held by the other appellees in trust for John Woodcock, Jr., and subject said assets to the payment of such judgments as she might obtain against John Woodcock, Jr., for her interest in his property.
Appellee, John Woodcock, Jr., denied the grounds alleged for divorce in appellant’s complaint and also denied that the other appellees held any of his property in trust for him, and also interposed the further defense that he had no property, having expended all the property which he owned individually when he and appellant married or which he subsequently inherited from his father. He also pleaded res adjudicate of all issues involved herein in a suit for divorce and a part of his property filed on June 10, 1938, in which he filed an answer and cross-complaint and which was tried with the result that the trial court denied appellant a divorce and also denied him a divorce on his cross-complaint, and in which appellant was decreed alimony and costs.
This suit was filed as a separate suit on September 7, 1939, and the other appellees were made parties defendant and garnishments were issued against them.
This latter suit was consolidated with the first suit and all pleadings and evidence in the first suit were used in the second suit along with the pleadings and additional evidence introduced in the second suit, which resulted in the following decree:
“On this 9th day of July, 1940, comes the plaintiff, Meleita Woodcock, by her solicitors, J. M. Rowland, E. C. Thacker, and Roy Mitchell, Esqrs., and comes the defendants, W. K. Woodcock, Mabelle Woodcock Hikes, Lucille Woodcock Quinn and John H. Woodcock, Jr., by their solicitors, A. T. Davies and Murphy & W°od, Esqrs., and this cause being reached on the regular call ,of the docket, and it appearing to the court that due service of process by summons issued on the complaint herein for the time and in the manner prescribed by law has been made upon the defendants, this cause is submitted to the court for its consideration and judgment on the complaint of the plaintiff, the answer of the defendants, the depositions taken on behalf of the plaintiff, and the depositions taken on behalf of the defendants, and the court being well and sufficiently advised as to all matters of law and fact arising' herein, and the premises being fully seen, finds:
“1. There is no canse of action proved by the plaintiff against the defendants, W. K. Woodcock,/Mabelle Woodcock Hikes and Lucille Woodcock Qninn.
“2. The decree of this court rendered in cause No. 14,609 on October 4, 1938, wherein Meleita Woodcock was plaintiff and John H. Woodcock, Jr., was defendant, is conclusive as to the cau.se for divorce alleged in this cause, since there has been no desertion proved against the defendant, John H. Woodcock, Jr., occurring since the decree in said former cause.
“3. The plaintiff has failed to prove that the defendant, John H. Woodcock, Jr., deserted her.
“It is, therefore, considered, ordered, adjudged and decreed by the court that the complaint of the plaintiff be, and the same is, hereby dismissed for want of equity and that the defendants have of and recover from the plaintiff all the costs herein expended by them.”
The record reflects that on June 8, 1938, appellant filed the first suit seeking a divorce and a division of the property of John Woodcock, Jr., on the grounds of habitual drunkenness, personal indignities and desertion.
John Woodcock, Jr., filed an answer denying the material allegations in the complaint and by way of cross-complaint prayed for a divorce from appellant on the grounds of indignities and desertion.
Testimony was taken in the form of depositions upon the issues involved and the cause was submitted to the court in October, 1938, at which time the court found that neither party was entitled to a divorce and dismissed the complaint and cross-complaint. There was no decree entered at the time, but subsequently on July 9, 1940, by wmc pro tunc order the decree was entered. No appeal appears to have been taken from the decree.
On September 7, 1939, appellant filed another complaint against her husband and included as defendants the brothers and sisters of John Woodcock, Jr., and also the Arkansas Trust Company as garnishees on the theory that they had property in their possession belonging to John Woodcock, Jr., which he had inherited from Ms father. She alleged in the second suit desertion. John Woodcock, Jr., filed an answer denying the ground alleged for divorce by appellant and denying that the garnishees had in their possession any property which he had inherited from his father and also pleaded res adjudicaba of the issues involved in the first suit brought on June 8, 1938, by appellant and the decree rendered in that case by the court that neither party was entitled to a divorce.
The garnishees filed answers denying that they were in possession of any property belonging to John Woodcock, Jr.
On the theory that no final decree was rendered'in the first case they obtained a consolidation of the two cases for the purposes of trial.
All the evidence in the first case was introduced on the trial of the cause as well as additional evidence. The record is very voluminous especially on the issue of whether the garnishees were in possession of any property which belonged to John Woodcock, Jr. The court sustained the plea of res adjudicaba and also again found that appellant was not entitled to a divorce on the ground of desertion and adjudged that the garnishees had no property in their possession or under their control belonging to John Woodcock, Jr., and dismissed appellant’s second complaint for want of equity. The findings and decree of the court have been set out herein, so we will not repeat them.
After the appeal had been lodged in this court and a partial transcript filed, on the application of appellant she obtained an order from this court directing John Woodcock, Jr., her husband, to pay her attorneys $25 as a fee and the costs of the appeal.
John Woodcock, Jr., filed a petition setting out that he was unable to pay the attorneys’ fee and costs of the appeal and on February 3, 1941, this court remanded the cause to the chancery court with directions that within fifteen days a hearing be accorded appellant on her allegations that appellee was and is able to pay court costs, attorneys’ fee, etc.
On remand of that issue to the chancery court the court heard testimony and found and decreed that John Woodcock, Jr., had no property with which he could pay the costs of the appeal and an attorneys’ fee of $25, and ■an appeal was taken from that decree of the chancery court to this court. We have concluded that the court was correct in both the first and last suits in finding that neither party was entitled to a divorce and also in sustaining the plea of res adjudicata; that all issues involved in the first suit were also involved in the second suit.
The record reflects that in 1933 appellant was living in an apartment in Hot Springs and was being supported by her father; that she met John Woodcock, Jr., at a dance one night where liquor was flowing pretty freely, and that on the next morning he went to the apartment house where she was residing and got her to go to his father’s home. His father was away on a visit and no one was there except a colored cook; that for several days they indulged freely in drinking liquor themselves and with friends who came to the house; that while both were under the influence of liquor they concluded to marry and sent for a justice of the peace who refused to marry them on account of their condition; that another justice of the peace was called in, and after being handed a $10 bill he directed that a license be obtained and agreed to marry them; that the license was obtained and the ceremony performed; that they realized that the father of John Woodcock, Jr., was coming home so they took a honeymoon trip to Little Bock where they continued to drink to excess for several weeks; that later they sobered up and returned to Hot Springs where they lived a part of the time with appellant’s father and some seven or eight months with the elder Woodcock; that during the period, they lived together in a way for some two years. They frequently gave wild parties and attended wild parties and indulged in excessive'drinking; that finally they separated, and appellant went to Dayton, Ohio, where one. of her sisters was living and worked a part of each year; that after John Woodcock, Jr., had spent practically all he had himself and most all his inheritance in riotous living such as drinking, gambling, and playing the horse races the first suit was filed by her on June 10, 1938, and the second suit on September 7, 1939; that when they were living together appellant accompanied him to the wild parties and also to the gambling dens and other questionable places.
We think the testimony warranted the court in denying either one of them a divorce on the grounds of indignities, habitual drunkenness or willful desertion by either one of them with cause. They were both to blame, one as much as the other, for the marriage in their maudling condition and for the indignities each of them heaped upon the other during the time they lived together caused by excessive drinking of intoxicants, frequenting gambling houses and other questionable places. Fortunately no children were born to the union and they themselves will be the only ones required to reap what they sowed.
“Whatsoever a man soweth, that shall he also reap.” Galatians, 6:7.
“They have sown the wind, and they shall reap the whirlwind.” Hosea, 8:7.
We think the court erred in finding that John Woodcock, Jr., cannot pay the costs of this appeal and the attorneys’ fee allowed by this court. We think from reading the whole record that one of his sisters if not both have property belonging to him, but even if they do not have any of his property he is perfectly able to work and earn enough to pay an additional fee of $25 and the costs of this appeal. The evidence shows that she has nothing herself, and that as between the two he is more able to pay the expenses of the litigation than appellant is. The decree is modified in this respect and in all other things is affirmed. | [
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Grieein Smith, C. J.
The appeal is from an order directing Mrs. Lillian M. Oldham, as executrix of the estate of W. K. Oldham, to pay R. S. Boyd, receiver, $550.
The proceedings were brought in a suit originally instituted by Moorhead Wright, trustee, against W. K. Oldham and others to foreclose a mortgage. While foreclosure was pending (January 27, 1936) Boyd was made receiver. In March of the same year he rented the lands to Oldham for one-fourth of the cotton, “. . . subject to the government contract thereon, and $4 per acre for all tillable land that is not planted to cotton. ’ ’
March 10, 1936, the contract was approved by the chancery court, with authorization to the receiver to waive the 1936 rents in order to aid Oldham in financing his operations. Oldham rented the land for 1937 and had intended to use it during 1938. Having made partial default in payment of rents, Oldham (March 28, 1938) assigned to the receiver the anticipated government payment. A court order contains recitals shown in the footnote.
It appears that between 1920 and 1924, W. K. Oldham deeded certain lands to his daughter, Lillian. At the time of her father’s death in 1938, Miss Oldham was engaged in farming operations. Farming equipment of considerable value was from time to time mortgaged by W. K. Oldham. After his death the daughter claimed this property. The widow contends she did not receive anything from the estate. Insurance was payable to the daughter.
Appellant, as administratrix, contends the government payments were not assignable. As the widow, she claims $300 under § 80 of Pope’s Digest.
Payments made to farmers on account of 1937 operations were authorized by congress under the Soil Conservation Act, as amended. Subsection (f) of Southern Regional Bulletin 101, part III, provides: “Any share of payment shall be computed and paid without regard to questions of title under state law, without deduction of claims for advances, and without regard to any claim or lien against the crop or proceeds thereof in favor of the owner or any other creditor. ’ ’
Through oversight an agent paid Mrs. Oldham, as executrix, the item of $550.
We do not believe congress, in authorizing the secretary of agriculture to promulgate rules, intended such rules should exceed the express authority given, or that necessarily implied from the purpose to be served. The Acts of congress do not declare assignments to be void, nor do the regulations go that far. The clear intent was that the government should be protected, and that the department of agriculture should not be harassed in those cases where checks were delivered in disregard of assignments.
In the instant case it is said in appellees’ brief that at the insistence of Oldham and his attorneys the court authorized the receiver to permit Oldham to take $550 realized from the sale of cotton and use it in payment of other debts. Under this statement of fact Oldham, at the time such authority was granted, received the equivalent of the government’s prospective payment of $550, and applied the money to the discharge of obligations incurred in producing and harvesting the 1937 crop, or in preparing for 1938. In equity Oldham’s interest in the government fund ended with the assignment. It necessarily follows that the widow had no interest in something her husband had disposed of. Neither as executrix nor as a widow could Mrs. Oldham’s interest in. the subject-matter be greater than that of the assignor.
Affirmed.
Ch. 3-B, Soil Conservation and Domestic Allotment Act, §§ 590, 590h, Title 16, U. S. C. A. (b) (c) (d) (e) (f). [But see subsection (g), page 420.]
“Under the contract made with the receiver, W. K. Oldham was to pay said receiver, for the use of said lands for the year 1937, $4 per acre for all of said land, estimated to be 137.50 acres, in a state of cultivation. It appears that Oldham will receive rents from the government, or subsidy, and desires to pay the rent on said 137.50 acres out of said government subsidy, amounting to $550. . . . The . . . court doth order that the county agent of Lonoke county notify the government that the said check for said subsidy ... be made payable to W. K. Oldham and R. S. Boyd, receiver; and if this cannot be done, that . . . the subsidy check be forwarded to Albert G. Sexton, chancery clerk, at Lonoke, for final settlement in the above matter.” [There was the following indorsement: “I hereby authorize the county agent to comply with the above order.” The notation was signed by Oldham.]
One estimate, apparently not disputed, was $2,500.
Total amount for 1937, $1,211. | [
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McHaney, J.
Appellee, a citizen and taxpayer, brought this action against appellant to enjoin it from funding its outstanding non-bonded indebtedness, incurred prior to the enactment of act 194 of 1939, approved March 9, 1939, hut effective June 8, 1939, for op eration and maintenance of its schools, by the issuance and sale of $42,715 of 4 per cent, bonds, dated April 1, 1941, and maturing serially on January 1, 1943 to 1966, inclusive. Appellant made application to the state board of education under and in accordance with the provisions of § 11495 of Pope’s Digest for authority to issue said bonds and its application was approved March 17, 1941, and it was authorized to advertise the bonds for sale. Prior thereto it had petitioned the county court to include in the questions to be submitted to the electors of appellant district, at the annual school election on March 15, 1941, the question of a two-mill building fund tax, to be collected annually on the assessed valuation of the taxable property in the district, beginning with the taxes collected in the year 1942, to pay the principal and interest of said proposed funding bond issue, with the provision that the surplus in any year, over and above the amount necessary to pay bonds and interest maturing in that year and the next six months interest on the bonds, may loe used for other school purposes. The court granted the petition, ordered the question included and that notice be given as provided by law, all of which was done. The question was placed on the ballot, carrying the same information as contained in the order of the county court and in the published notice, proof of publication of which was duly made. The court canvassed the returns of said election, made an order declaring the result, and found that 47 votes were cast in the election, all of which voted for the tax and none against. The board of directors of appellant district, 'acting under the authority of § 2 of act 91 of 1941, on March 20, 1941, adopted a resolution, and entered same upon its records, declaring the total amount of the valid outstanding non-bonded indebtedness of the district, as of February 25, 1941, the effective date of said act 91 of 1941, to be $42,-715, which resolution was published for the time and in the manner provided in said act, and no suit was brought within 30 days from the date of the publication to review the correctness of said finding-.
Thereafter bonds were duly advertised for sale as required by § 11496 of Pope’s Digest and were sold to the highest bidder with the right to convert same to bonds bearing a lower rate of interest, subject to the approval of the commissioner of education, and on condition that by conversion the district should receive no less and pay no more than it would if the bonds were not converted.
Appellant district has an assessed valuation of $1,641,290 as shown by the last county assessment. It is permitted by said act 91 to issue bonds not to exceed 8 per cent, of this valuation which is $131,303.20, and it has outstanding bonds in the sum of $85,500, so it is authorized to issue bonds in the additional sum of $45,803.20, or approximately $3,000 more than it proposes to issue. The buyer of the bonds proposes to convert the $42,715 of 4 per cent, bonds to $48,100 of 3 per cent, bonds, which is $2,296.80 in excess of the permissible $45,803.20, but by such conversion, there will be a net savings to the district of $484.45.
The complaint challenged the constitutionality of said act 91 of 1941 on the alleged ground that it attempts to permit the voting of school taxes for a purpose not authorized by Amendment No. 11, that is, “the payment of bonds to fund outstanding warrants on February 25, 1941,” and also that said act is so uncertain in its terms that the indebtedness to be funded cannot be ascertained with certainty. Also that said act makes no provision for a pledge of the two-mill building fund tax voted as above stated, or for voting a continuing levy, and that the attempt to do so is void; also that the proposed converted bond issue of $48,100, together with the outstanding bonds of $85,500, exceeds the 8 per cent, permissible maximum for bonds. Appellant answered admitting appellee’s status, that it proposes to issue said amount of 4 per cent, bonds under said act 91, converted to 3 per cent, bonds, and that the converted bonds exceed the 8 per cent, maximum, and denied all other allegations. After setting out the matters heretofore stated, the answer in paragraph 8 continued: “Defendant states that it has at this time $42,715 in warrants outstanding, which it is not able to pay; that it is operating under the budget law (act 194 of 1939) and is not increasing its debt, yet it is not decreasing the debt; that a warrant issued now cannot be cashed in varying periods of time from 12 to 18 months after its date, with the. result that at this time defendant district’s warrants are being discounted at the rate of 8 per cent, of the face value, and at other times the rate of discount has been much higher; that it is having trouble in getting its warrants handled at all and is having to pay additional costs of operation because it is not on a cash basis. The district states that the effect of permitting it to issue these bonds will be to establish it immediately upon a cash basis, and under the budget law it must remain that way, with the result that the actual saving that the district will make in operation will be enough to retire the bond issue over the period of time that the bonds have to run; and that the proposed funding is highly beneficial to the district.”
Appellee demurred to the answer. The court sustained the demurrer and entered an order restraining appellant from issuing said bonds, and it has appealed. We agree with .appellant that the court erred in so holding and in not overruling the demurrer.
We cannot agree with appellee that said act 91 of 1941 is unconstitutional, because, as alleged, it attempts to permit the voting of school taxes for purposes not authorized by Amendment No. 11 to the Constitution which authorizes the electors of school districts to vote a tax not to exceed 18 mills in any one year for “the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness for buildings. Provided, further, that no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.” Section 1 of said act 91 provides that any school district that has valid outstanding non-bonded indebtedness at the time of approval of the act is “authorized and empowered to issue and sell, in the manner provided by statute for the sale of school bonds, for the purpose of funding said indebtedness, negotiable coupon bonds with the right to convert said bonds into bonds bearing a lower rate of interest, subject to the approval of the commissioner of education, upon such terms that by the conversion the district shall receive no less and pay no more than it would receive and pay if the bonds were not converted; . . . and provided further, that any district with an assessed value of over one million dollars may issue bonds as authorized herein in an amount that, with its outstanding bonds, will make its bonded indebtedness not more than 8 per centum of its assessed value; . . .” Section 2 of said act relates to the duty of the board of directors in determining the total valid non-bonded debt of the district and the procedure to question the finding of the board. Section 3 is the emergency clause and is as follows: “Because of the depression and the low assessed values that have become general throughout the state of Arkansas, it is hereby ascertained and declared that many of the school districts of the state have become badly indebted, with the result that they do not have sufficient funds to pay the operating expenses of their respective schools to the end of the present school year, their costs of operation are being increased, because they are not on a cash basis, and many of said schools will be compelled to close, thus depriving a large number of children of the state of schools, an emergency is hereby ascertained and declared, and this act, being necessary for the preservation of public peace, health and safety, shall take effect and be in full force from and after its passage.”
The answer alleges and the demurrer admits that the debt sought to be funded was incurred for maintenance. Amendment No. 11 authorizes a tax for three purposes: (1) “the maintenance of schools,” (2) “the erection and equipment of buildings” and (3) “the retirement of existing indebtedness for buildings,” and it is insisted that “maintenance of schools,” as used in the'amendment, means • future maintenance and not a valid existing indebtedness for maintenance that has been incurred prior to act 194 of 1939, for which no separate tax may be voted. We cannot agree with any such narrow construction, for, if that is true, then the twelve-mill tax heretofore voted for maintenance and operation of its schools (6 mills being voted for bonds) would have to be devoted entirely to the payment of future maintenance and operations and would result in a repudiation of the exist ing valid warrants issued and outstanding for maintenance. In other words, if no part of the maintenance tax voted may be used to pay bonds issued for past maintenance debts, then no part of it can be used to pay the debt if no bonds are issued. It is suggested that the district should economize and create a surplus in its maintenance tax fund to pay its existing maintenance debt, and so it should. But, if it cannot use a part of maintenance tax to pay the proposed bonds, how can it lawfully pay its existing debt with a portion of such tax? There is nothing in the amendment about the issuance of bonds for any purpose. The right of a school district to issue bonds is wholly dependent upon the statutes. Said act 91 was enacted for the very purpose of relieving the dire situation of appellant set out in paragraph 8 of the answer above quoted. According to it, and the demurrer admits its truthfulness, appellant is not now paying current obligations with current revenue. Its warrants are registered and paid in the order of registration, so “that a warrant issued now cannot be cashed in varying periods of time from 12 to 18 months after its date, with the result,” etc. as copied above. So appellant is not now operating* on current revenue, but is paying outstanding registered warrants with such revenue.
In the recent case of Jenson v. Special School District No. 6 of Hot Springs, 199 Ark. 886, 136 S. W. 2d 169, with reference to act No. 194 of 1939, we said: “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.” We there held that the district had the power and authority to borrow money and pay interest therefor to pay teachers ’ salaries and other current expenses, under the provisions of § 11535 of Pope’s Digest, so long as it did not increase its indebtedness over the maximum of the preceding* year.
Such a statutory provision as said act 91 is not a new proposition in our school law. Section 2 of act 164 of 1929, p. 814, provides: “All special school districts of Arkansas which owe money at the time of the passage of this act, whether said money is due for construction of buildings or operating of the schools, or other legal purposes are hereby authorized and empowered to issue bonds, at a rate of interest not to exceed six per centum per annum, and evidence said indebtedness by said bonds.” Construing this act and act 62 of 1927, this court, in Wilkin v. Special School Dist. of Hazen, 181 Ark. 1029, 29 S. W. 2d 267, said: “Said acts 62 and 164 were passed by the legislature to enlarge the purposes for which bonds might be issued by a special school district so as to embrace debts which had been incurred for general operating expenses.” And in Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225, the late Chief Justice Hart, in construing § 59 of act 169 of 1931, now § 11492 of Pope’s Digest, which provides: “All school districts are now authorized to borrow money and issue negotiable coupon bonds for the repayment thereof from school funds for building and equipment of school buildings, making additional repairs thereto, purchasing sites therefor, and for funding any indebtedness created for any purpose and outstanding at the time of the passage of this act as provided in this act,” said: “Under the express terms of the act, power is given to the school district to borrow money and issue negotiable coupon bonds for funding any indebtedness created for any purpose and outstanding at the time of the passage of the act, March 25, 1931.” There the Laura Connor School District of Woodruff County was indebted in the sum of $58,500 at the effective date of said act 169, but subsequent thereto had paid $11,093.89 of said debt. We held the district was authorized to issue bonds for the remainder of said debt only. These cases are conclusive of the constitutionality of the act and of the right of appellant to fund its outstanding indebtedness under the provisions of said act 91 of 1941.
It is argued that the specific mention of “existing indebtedness for buildings,” in Amendment No. 11, among other purposes for which a tax may be voted, excludes the right to vote a tax for any other existing indebtedness. We cannot agree, for if a tax may not be voted for existing indebtedness for maintenance, it cannot be paid, and it can make no difference what the form of snch existing indebtedness may be, whether in warrants or bonds.
' Another attack on act 91 is that it is void because of uncertainty of its terms. In § 1, the act says that “any school district . . . that has valid outstanding indebtedness at the time of the approval of this act” is authorized, etc., and in § 2 the directors are required to declare the total amount of non-bonded debts ‘£ outstanding at the time of the passage of this act.” ¥e think “the time of the approval” means the same thing as “the time of the passage.” Jackson v. State, 101 Ark. 473, 142 S. W. 1153.
Another argument is that the proposed bonds are void because appellant has pledged a two-mill building fund tax for their retirement. It is contended that because the ballots used in the election, as also the election notice, recites that six mills of the building- fund levy will be used to retire outstanding bonded indebtedness, and that two mills of the building fund tax will be used to retire the new issue constitutes a diversion of the building fund contrary to the second proviso in Amendment No. 11, that “no such tax shall be appropriated for another purpose . . . than that for which levied,” as construed in Horne v. Paragould Special School District, 186 Ark. 1000, 57 S. W. 2d 568.‘-But not so. In the Horne case they were attempting to divert a portion of the 12 mills voted for school purposes to the payment of bonds, and we held this could not be done. Here, the electors of the appellant district voted upon a ballot containing this information: “For eighteen mills school tax including eight mills for building fund. Six mills of the building fund were voted a continuing annual tax to pay a proposed refunding issue of $85,500, and the additional two mills will be used to pay the principal and interest of a proposed funding issue of $42,715 that will run for 24 years and 9 months, and, if voted will be a continuing levy of that amount annually on the real and personal property now embraced in this district,” etc. The electors could not have been misled as to the purpose of the two-mill tax levy they were voting, as the ballot informed them it would be used to pay a proposed “funding” issue of bonds. The word “funding” as here used, means, according to Webster, “To convert into a more or less permanent debt bearing regular interest; as, to fund the floating debt.” The argument seems to be that where the electors vote a'tax to support a bond issue to fund debts for maintenance and direct that the proceeds of the tax be put in the building fund, it cannot be used to pay the bonds for which it was voted because put in a building- fund. This argument is not tenable. The statute, § 11498 of Pope’s Digest, provides for the creation of a building fund and the procedure to be followed in the issuance of bonds supported by a continuing tax levy. It provides: “Hereafter on the proposed issue of ¡bonds by any school district, either for the purpose of borrowing money or to refund any outstanding bonds of the said district, the directors shall submit to the electors of the district either at the annual school election or at a special school election called for that purpose, . . . the question of the number of mills to be set aside in the building fund to pay the bonds and interest on the proposed issue.” This section was construed in Parsons v. Barnett, 189 Ark. 1057, 76 S. W. 2d 83. The purpose of the legislature was to provide a fund, called a building fund, into which the tax voted to pay bonds by a continuing levy should be credited. It could not constitute a diversion to put the two-mill tax here levied in the building fund, as the legislature has so directed. It will .be used for the retirement of the proposed funding issue, and that is the very purpose for which it was voted.
The final argument against the proposed bond issue is that appellant proposes to issue in converted bonds more than 8 per cent, of the assessed value of the property, together with its outstanding bonds, and appellant concedes this to be true. Act 91 specifically limits the amount of bonds that can be issued in two provisos in § 1. The first limits the amount of bonds that may be issued in districts with less than one million assessed valuation “in an amount that with its outstanding bonds, not to exceed 7 per cent, of its assessed value;” the sec ond “that any district with an assessed value of over one minion dollars may issue bonds as authorized herein in an .amount that, with its outstanding bonds, will make its bonded indebtedness not more than 8 per centum of its assessed value.” The right of conversion is given, subject to the approval of the commissioner of education, “upon such terms that by the conversion the district shall receive no less and pay no more than it would receive and pay if the bonds were not converted.” The legislature, at the same session, enacted act 393, Acts 1941, p. 1157, which amended § 11493 of Pope’s Digest, same being § 60 of act 169 of 1931, so as to read as follows: “No school bonds shall be issued at any time that would make the total outstanding bonded indebtedness of the school district at that time, exclusive of interest, exceed seven per cent, of the assessed valuation of the real and personal property in the district, as shown by the last county assessment. This shall not prohibit bond issues refunding bonded indebtedness, including loans from the Revolving Loan Fund, that exceed seven per cent., nor shall it prohibit bond issues funding non-bonded'indebtedness of the district whenever such funding bonds shall be authorized by any statute of Arkansas, nor shall it prohibit the conversion of authorized bond issues to bonds bearing a lower rate of interest, subject to the approval of the Commissioner of Education, upon such terms that the district shall receive no less and pay no more in principal and interest combined than it would receive and pay in principal and interest combined if the bonds were not converted, and all school bonds heretofore issued in substantial compliance with the provisions of this act are hereby confirmed and validated. ’ ’
These acts, as also § 11496 of Pope’s Digest, evidence the purpose of the legislature to authorize school districts to contract to issue bonds and to convert them into bonds bearing a lower rate of interest, “subject to the approval of the Commissioner of Education, upon such terms that the district shall receive no less and pay no more in principal and interest combined than it would receive and pay in principal and interest combined if the bonds were not converted,” etc. Said § 11496 provides in part: “. . . No bonds shall be sold for less than par on the basis of bonds bearing* interest at the rate of six per cent, per annum, but bonds bearing a less rate of interest may be sold at a discount, and bonds may be sold with the privilege of conversion into bonds bearing a lower rate of interest, but the terms of sale on any bonds sold at a discount shall be such that the district shall receive no less, and would pay no more than substantially the same as par for bonds bearing interest at the rate of six per cent, per annum. . . .” This statute is still the law and no school bonds may be sold for less than par based on a 6 per cent. rate. In Lucas v. Reynolds, 168 Ark. 1084, 272 S. W. 653, in construing amendment No. 10, and the enabling act No. 210 of 1925 which provides that “bonds may be sold at six per cent, with the privilege of conversion into bonds bearing lower rate on such terms that the county, city or town shall receive thereon and pay therefor substantially the same amount of money as on six per cent, bonds at par,” the late Chief Justice McCulloch, as to the contention that the converted bonds exceeded the amount of the county’s debt, said: “The contract for the sale of bonds was made in contemplation of converting the bonds into those of a lower rate of interest, and the county will not, in fact, become liable on bonds in excess of the actual outstanding* indebtedness existing at the time of the adoption of the Amendment to the Constitution. In other words, when the amount of premiums contracted for on six per cent, bonds is reduced to the corresponding'value of the bonds bearing* a lower rate of interest, the amount of bonds will be equivalent to the amount of indebtedness to be discharged. There is, therefore, no conflict between the contract and the terms of the statute. ’ ’ See, also, Railey v. City of Magnolia, 197 Ark. 1017, 126 S. W. 2d 273.
We are unable to distinguish this case from those. While it is true the amount of the converted bonds exceed the 8 per cent, limitation, it is also true in the cited cases that the converted bonds exceeded the indebtedness found to be outstanding on the effective date of the amendment, as found, in the first case, by the county court, and the second by the city council. But it is also true that the total amount of the converted bonds, principal and interest, is the equivalent of the total amount, principal and interest on the bonds contracted to be sold at the higher rate so the 8 per cent, limitation is not exceeded.
The decree will be reversed, and the cause remanded with directions to overrule the demurrer to the answer, and for further proceedings not inconsistent with this opinion.
Crieein Smith, C. J., and Mehaeey, J., dissent. | [
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Smith, J.
The Security Mortgage Company, a corporation, acquired title, on February 9, 1929, to south half of the northeast quarter of section 11, township 19 south, range 23 west, by foreclosure of a mortgage. This is the common source of title through which .the opposing parties claim ownership.
On April 15, 1930, the mortgage company conveyed the land to John M. Stager; but this deed was not filed for record until February 3, 1938.
In August, 1930, which was subsequent to the date of the deed from the mortgage company to Stager, the mortgage company was adjudged a bankrupt, and on October 3, 1930, its trustee executed a deed to John Pullen, which was filed for record January 22, 1932.
On January 19, 1932, Pullen conveyed one-half of the mineral rights under this land to L. E. Allen and LaVonya Pullen, who later became Mrs. John K. Smith, after which deed Pullen executed a quitclaim deed to John M. Stager.
Numerous parties claim various interests by mesne conveyances from Allen and Mrs. Smith, which we do not deraign, for the reason, as was correctly found by the court below, that none of these deeds conveyed any interest in the land, this because the trustee, upon whose conveyance these claims rest, had no title to thé land when he executed his deed to Pullen.
On December 4, 1937, appellant, R. N. Turnbow, a mineral lease and royalty broker, purchased a. one-fourth interest in the minerals under the land from Horn and Mrs. King, who had obtained a deed for the entire interest from Stager, as well as a lease on the same, which interests were, on December 30, 1937, assigned to the .Standard Oil Company of Louisiana by Turnbow. No one questions the validity of this transaction. Turn-bow had an abstract of the title to this land, which he had checked against the records in the recorder’s office, and it is not contended that he was not familiar with the title as it appeared of record. With this knowledge he negotiated with the claimants of what may be called the Pullen title which he acquired. Turnbow asserts the superiority of this Pullen title, upon the ground that he was induced to buy it through representations of Dr. Horn that he (Horn) had already conveyed to Turn-bow all the interest which he (Horn) owned in the land.
This suit was brought by Horn and Mrs. King to quiet their title against the Pullen claims, and from a decree awarding the relief prayed is this appeal.
For the reversal of this decree, Turnbow insists that Horn and Mrs. King are estopped by their conduct and representations from asserting any interest in addition to that which they had conveyed to him. This is purely a question of fact, and was decided adversely to Turn-bow’s contention, and that finding does not appear to be contrary to the preponderance of the evidence.
The various claimants to the Pullen title were made parties defendant; but none of them appealed from the decree quieting the title except Turnbow.
It appears unreasonable to us that Dr. Horn, with whom all the negotiations were conducted, should have stated that he owned no interest in the land except that which he had previously conveyed to Turnbow. Horn was aware that there was a cloud upon the title, and he had consulted an attorney, who had advised him that the cloud could be removed, although this was not done. Horn denied making any representation or statement to Turnbow which could have induced the belief that he and Mrs. King owned only the interest which they conveyed to Turnbow, and Turnbow’s testimony to the contrary is somewhat equivocal. The case was heard on oral testimony, and during the' trial the following questions were asked and answers given: “By the Court: Q. Mr. Turnbow, I don’t understand from your testimony as to your conversation with Dr. Horn, whether you mean to say he conceded to you that you were only getting one-half interest in the minerals, or whether you and he recognized that deed was outstanding, and he recognized it was a cloud upon the title? A. We appreciated the fact that that interest was outstanding and I paid for the interest on the basis of a one-half interest. - Q. And he conceded that to be true? A. It was my im pression lie did. Q. Did you understand lie conceded that, or did you just concede that yourself? A. At that time it was understood by all present, Dr. Horn, Miss McMorella and myself, that that interest was actually outstanding and that we were getting only one-half interest. That was what prompted the purchase of the royalty, to build up the cash consideration. I suppose you are familiar with the fact that it isn’t the practice of the major companies to buy wildcat royalty. We wanted to build up the purchase price in order to get the lease interest. You may buy from a number of people to be sure you get the full interest. Q. But did he concede to you that he hadn’t 'but one-half interest? A. It was discussed and agreed that he had only a half interest, and that was in the presence of the three of us.”
We think the answer above copied reading, “We appreciated the fact that that interest was outstanding and I paid for the interest on the basis of a one-half interest,” is significant, because it strongly corroborates the testimony of Dr. Horn. The effect of the admission is that the purchase price was based upon the fact that only a half interest was being conveyed, and that Dr. Horn and Mrs. King had an additional interest which they did not convey.
The finding of the court below that Dr. Horn and Mrs. King did not represent that they were conveying their entire interest does not appear to be contrary to the preponderance of the evidence, and as that finding is conclusive of this case, the decree must be affirmed, and it is so ordered. | [
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Mehaffy, J.
In the early part of August, 1935, the appellants, T. "W. Brown and Cora Brown, borrowed $800 from the appellee, Merchants & Planters Bank & Trust Company, and executed and delivered their promissory note, showing the amount of the monthly payments to be made and the time when they were to be made. To secure the payment of said sums, the appellants executed and delivered to the appellee their deed of trust conveying lots 2, 3 and 4 of block 1 in the original survey of Delight, Arkansas. The monthly installments were $8.49, and the first payment was to be made on September 1, 1935, and the first day of each month thereafter until the principal and interest were fully paid.
. The appellants defaulted in their payments and on October 29, 1937, suit was brought in the Pike chancery court against appellants to foreclose the mortgage.
On July 5, 1938, answer was filed by T. W. Brown denying every material allegation in the complaint. The appellant, Cora A. Brown, appeared specially and filed motion to quash service and return. Cora A. Brown was again served, and on May 8, 1939, adopted the answer of T. W. Brown.
Default judgment was taken on September 14, 1939.
It is alleged by the appellants that at the time of the default judgment the appellants were not represented by counsel. The property was ordered sold some time in January, but the sale was deferred, and on May 11, 1940, the property was again ordered sold. Between March 13, 1940, and May 11, 1940, there was a fire, partially destroying the building on the property. The property was repaired and a settlement made with the insurance company, by which it paid into court the sum of $240 for said damage. The insurance money was paid into court, and there was a contest as to whom it should be paid. The court made an order requiring the material men and laborers to be paid out of the insurance money, and the balance of approximately $108 to be applied on the debt to the appellee, if the property did not bring a sufficient amount from its sale.
In September, 1940, the appellants filed a complaint in the Pike chancery court stating that an action had been filed against them to foreclose the mortgage, and that on September 14, 1939, judgment had been taken against them, and that on May 13, 1940, an additional judgment had been taken; that under the first judgment the property was ordered sold. It was further alleged by'them that the judgments were obtained through fraud practiced on the appellants and on the court; that the fraud consisted in that on September 14, 1939, the appellants and appellee entered into an agreement for an extension of time from September 14, 1939:, until January 1, 1940, and that additional security was given, and that the appellants agreed to pay $75 for the said extension; that on the same day the agreement was made, the appellee filed an amendment to the complaint for an additional amount, and asked judgment, but the sale was deferred until sometime in 1940; that during the pendency of the action brought by the appellee, the appellants made payments on said indebtedness and agreed to pay the sum of $75 for the forbearance of said debt; appellants alleged that the whole contract was tainted with usury when the agreement was made to pay $75 additional, other than the interest for the forbearance of money. They alleged also that they were entitled to an accounting for the amount paid since filing the cause, and the amounts collected on the additional security.
After the original suit was filed, some payments were made and it was shown that taxes had been paid by the appellee, and it was ordered that appellee have judgment for this amount.
The appellants sought and obtained restraining orders from the circuit court and the 'county court, in the absence of the chancellor from the county, both of which restraining’ orders were 'by the chancery court dissolved, and the complaints dismissed.
The court, on its own motion, consolidated the foreclosure suit with the suit brought by appellants above referred to, and evidence was taken and the court dismissed the complaint of appellants for want of equity. The court entered a decree in favor of appellee, foreclosing the mortgage and ordering the sale of the property.
There were numbers of documents introduced, and the testimony of witnesses heard, but there is practically no dispute in the evidence. The appellants .argue that the judgment was obtained by fraud and that the assignment entered into between Brown and the bank, by which the time of sale was extended, was usurious, and that Brown had made certain payments for which he had not been credited, and was therefore entitled to an accounting’, and that the sale was improperly advertised.
The court entered a decree finding that summons was duly issued and duly served for the time and in the manner required by law; that the cause is submitted to the court for its consideration and final decree upon plaintiffs’ complaint, Us pendens notice, the original note and deed of trust, and other evidence. The court found that the appellants were indebted to appellee in the sum of $730.43 with interest and that the sum was secured by the deed of trust on property described therein; that default had been made upon the payment of said note and upon the provisions of said deed of trust;' that the appellants waived all rights of redemption and appraisement under the laws of Arkansas; that appellants, T. W. Brown and Cora Brown, his wife, released and relinquished all their rights in dower and home stead in said property, and gave a lien on the property described in the deed of trust, fixed the day of sale, and, thereafter, on November 11,1940, the court approved the sale by the commissioner and ordered a deed executed. The case is here on appeal.
At the first sale had of this property, T. W. Brown himself was present and bid. The property was sold to him and he executed a bond, but he did not pay. There was some evidence about Brown’s interest in property in Little Rock, and the sale was continued because of his belief that he would receive something from the Little Rock property, and would thereby be able to pay his debt to the appellee. The evidence, however, shows that nothing was received by Brown or the appellee from the Little Rock property.
It is urged by the appellants that the case should be reversed because fraud was perpetrated in the procurement of the judgment; that the term at which the judgment was obtained was closed before the complaint by Brown was filed; that the appellee was trying to sell the property, and that Brown secured a restraining order under § 8251 of Pope’s Digest, and that the property was sold to appellee before the trial of the case brought by Brown; that the chancery judge had no right to do anything without notice to appellants or their attorney. It is stated, however, by appellant that this is not so important to the issue now involved, but they wanted the court to get all the errors complained of. It is also claimed that the evidence shows that payments had been made up to August 14, 1937, and they refer to exhibit 2 in the record, which is the loan record, showing the amounts due monthly and the amounts paid. This, however, was a question of fact, and the chancellor’s finding is not against the preponderance of the evidence.
It is contended by the appellants that various payments had been made after suit had been filed, up to and including September, 1938, and that, according to the record, appellants had made eleven payments after August 14, 1937, the day that default judgment was taken; that the loan record was brought to current as of September 30, 1938. Appellants concede that at the time snit was filed the appellee had a right to foreclose, bnt they brought the record up to date by payments, and then they got behind again, and it is contended that judgment could not then be taken without a new snit being brought and the appellants served with process. Appellants contend that the fact that appellee continued to receive payments, disentitled the appellee to judgment without bringing a new suit and serving summons, without any notice to appellants. They cite and rely on Crawley v. Neal, 152 Ark. 232, 238 S. W. 1054.
In that case Crawley, a negro, borrowed $225 from the Peoples Building & Loan Association, and later borrowed from the association an additional sum of $750 and executed a second mortgage. Crawley also executed bonds to the association in which he bound himself to pay all dues upon his shares of stock in the association, and bound himself to pay these dues on the second and fourth Tuesday of each month. Upon making the second loan in that case, the two loans were, by consent, consolidated and carried in one loan. Crawley was not in default of making payments of dues on his first loan, and during all the time that Crawley was in default, fines were being entered against him on the books of-the association. When snit was brought against Crawley, he alleged that the association was estopped for the reason that it accepted dues from him on the mortgage which it was seeking to foreclose and without notifying bim that they intended to foreclose. The first question decided by the court was that Annie Crawley was not served, and service was not had upon her for her husband. The court also decided, however, that the conduct of the association toward the appellant after the alleged service was tantamount to an abandonment of such foreclosure proceedings and a waiver of its right to take judgment pro confesso. The court also held that the association had a right to treat Crawley as in default, and to institute foreclosure proceedings against him, but that it could not do this and at the same time treat bim as a stockholder in good standing in the association. It is said that these positions are wholly antagonistic, and that to pursue one course is a necessary abandonment of the other, and that by this conduct, the association led Crawley to believe that it had abandoned its right to foreclose. We think there is nothing in the Crawley case that supports the theory of, appellants in this case. Moreover, the evidence in the case at bar shows, and the trial court found, that appellant Brown was in the court- room at the time the judgment was taken.
Appellee concedes that if the loan had ever become current during the pendency of the suit, the suit should have been dismissed and a new suit filed after a subsequent delinquency.
The Iowa Supreme Court said: “But in no case has it been held that the acceptance of a payment of less than the total amount of interest, per se, constituted a waiver of the right to foreclose. The mortgagee cannot be penalized for the mere receipt of that to which he is in equity and good conscience entitled.” Jewell v. Logsdon, 200 Ia. 1327, 206 N. W. 136; 41 C. J. 861.
Appellants cite and rely on American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562, 36 S. W. 1051, 54 Am. St. Rep. 305. In that case the court said: “By the express terms of the policy, the insurance company was liable to the street railway company for all damages occasioned by injury to its passengers for which it (street railway) was liable, from the 9th of December, 1892, until its policy was canceled. The policy was not canceled by the insurance company until the 23rd day of January, 1893. The liability sued on had supervened in the meantime. While the insurance company had the right to cancel the policy for the nonpayment of the premium, as per the contract between the parties, it had no power to make this cancellation relate back and avoid the policy ab initio.”
We find nothing in the case last cited that supports the contention of the appellants, and we think that -the case of Abrams v. Citizens B. & L. Assn., 125 Ark. 192, 188 S. W. 557, also cited and relied on by appellants, has no application to the facts in this case.
We agree with the appellants that they had a right to pay the amount due under the contract, and were entitled to credits for all they had paid, hut the amount of the payments and when made were questions of fact, and we cannot say that the finding of the trial court was not supported by the evidence.
Appellants urge that the case be reversed because, as contended by them, it was error to confirm the sale while the suit to vacate the judgment was pending, and also because of the contract of September 14, 1939, and that the contract was tainted with usury.
The contract was for compensation for attorneys, and while it was not a proper charge against appellants, it did not make the original contract usurious. This court has frequently held that an agreement for an attorney’s fee is void, but that such a provision in a contract does not make the contract usurious.. This fee was not paid and the trial court held that it could not he collected.
Appellants urge that they were entitled to an accounting. There was no dispute about the original amount of indebtedness, and no dispute about the payments. The contract provided for monthly payments and it did not require any accounting to see how much was due.
Appellants complain about the advertisement of sale, and say that it was not published for a sufficient length of time. Section 8776 of Pope’s Digest provides for the publication of notices in some newspaper having a boma fide circulation in the county. The statute, however, does not attempt to fix the length of time for which the notice should be published, and the time and place and notice of sale are within the discretion of the trial court. This action was begun in August, 1935, and it was continued, sometimes by agreement, and sometimes postponed because of the restraining orders sought and obtained by appellants.
It would extend this opinion unnecessarily to copy all of the evidence, including the documents introduced, and it is unnecessary because the Appellants do not argue anything except the points above set out.
We have carefully examined all of the evidence, and have reached the conclusion that the chancellor’s finding of facts is not against the preponderance of the evidence. The decree is affirmed. | [
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G-reenhaw, J.
The appellants, Sarah J. Reynolds and her four children, Lavell Reynolds, Lamar Reynolds, Marzell Reynolds and Lamae Reynolds, brought suit in the Union circuit court as the widow and sole heirs at laAv of Alfred M. Reynolds, deceased, against the appellee, New York Life Insurance Company, to recover the sum of $200 alleged to be due under a disability provision in an insurance policy issued to the said Alfred M. Reynolds by the appellee on January 20, 1920. A jury was waived and the cause was tried by the court upon certain stipulations as to facts, the other evidence introduced being the policy and two letters. The court found the issues in favor of the defendant and entered judgment accordingly. A motion for a new trial was filed and overruled, from which is this appeal.
The appellee issued an insurance policy to Alfred M. Reynolds, insuring his life for $2,000, dated January 20, 1920, the beneficiary therein being his wife, Sarah J. Reynolds, one of the appellants herein. Mr. Reynolds died on November 6, 1937, at the age of 56 years, and the life insurance was paid to the beneficiary. In March, 1936, the insured sustained a serious injury which rendered him totally disabled. On October 21, 1936, the insured made due proof of his total disability as required by the policy, and same was received and accepted by appellee. The appellee declined to pay the two hundred dollars claimed by the appellants under the disability provision of the policy, which resulted in suit being filed in April, 1940.
The pertinent provisions of said policy, under which appellants allege they are entitled to $200, are as follows:
“This policy takes effect as of the 20th day of January, nineteen hundred and twenty, which day is the anniversary of the policy. If the insured becomes wholly and permanently disabled before age 60, the payment of premiums will be waived under the terms and conditions contained in Section 1.
Section 1. Total and Permanent Disability Benefits.
“Whenever the company receives due proof, before default in the payment of premium, that the insured, before the anniversary of the policy on which the insured’s age at nearest birthday is 60 years and subsequent to the delivery thereof, has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in.any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days — the permanent loss of the sight of both eyes, or the severance of both hands or of both feet, or of one entire hand and one entire foot, to be considered a total and permanent' disability without prejudice to other causes of disability — then
“1. Waiver of Premium. — Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on each anniversary waive payment of the premium for the ensuing insurance year, and, in any settlement of the policy, the company will not deduct the premiums so waived. The loan and surrender values provided for under Sections 3 and 4 shall be calculated on the basis employed in said sections, the same as if the waived premiums had been paid as they became due.
“2. Life Income to Insured. — One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the insured. Such income payments shall not reduce the sum payable in any settlement of the policy. The policy must be returned to the company for indorsement thereon of each income payment. If there be any indebtedness on the policy, the interest thereon may be deducted from each income payment.”
It is the contention of appellants that since proof of the disability of Alfred M. Reynolds was made on October 21, 1936, and he lived more than one year thereafter, or until November 6, 1937, they were entitled to recover, for one year, one-tenth of the face of the policy, or $200. The appellee contends that under the terms of the policy appellants are not entitled to recover anything, for the reason that Mr. Reynolds was not living on January 20, 1938, which was one year from the first anniversary date of the policy after proof of his disability was made. The pertinent provision of the policy on this question reads as follows: “2. Life Income to Insured. — One year after the anniversary of the policy next succeeding the receipt of such proof, the company will pay the insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the insured.”
We think the judgment of the trial court in this case was proper. We cannot agree with the contention of appellants that they are entitled to recover under this policy because Mr. Reynolds lived more than one year after proof of his total disability was given.- He died November 6, 1937, a few days over one year from the date of said proof of disability. Tbe terms of the policy are plain. It did not provide for monthly disability. It provided that the insurance company would pay one-tenth of the face of the policy one year after the first anniversary date of the policy following the proof of disability. The proof was made October 21, 1936. The first anniversary date of the policy following said proof was January 20, 1937; therefore under the terms of the policy and the facts in this case the first payment would not have been due until January 20, 1938. The policy further provided that it would make this annual disability payment to the insured during the lifetime and continued disability' of the insured. The insured was not living on January 20, 1938. Therefore, nothing was due appellants under the disability features of the policy. Tt is the function of a court to construe insurance policies in litigation, ascertain their meaning and give effect thereto as written unless they' contravene the law or public policy. There is, in our opinion, nothing ambiguous or uncertain in the terms of this policy.
In the case of New York Life Insurance Co. v. Farrell, 187 Ark. 984, 63 S. W. 2d 520, we find a similar policy involved, containing the identical language used in the disability provisions in the Reynolds policy. This court said in that case: “It is perfectly plain from this provision of the policy that it waives premiums only commencing with the anniversary of the policy next after proof of loss is made, and it will be observed from the second paragraph above quoted from the policy that one year after the anniversary of the policy next succeeding proof of loss the company will pay. . . . The provisions of the policy providing for payment are plain and unambiguous. The liability attached when the disability occurred and proof of loss was made. The company, however, did not promise .to pay from the time the disability occurred, but from the time fixed in the policy itself.” (Italics supplied.)
In the instant case the time fixed in the policy for the beginning of payments, under the undisputed facts, Avas January 20,1938, and this Avas more than two months after the insured had died.
Under the terms of the policy and the facts in this case, the event which would have entitled the insured to disability payments of $200 per year never materialized. Peek v. New York Life Insurance Company, 206 Ill. 1237, 219 N. W. 487; Nehls v. Sauer, 119 Ia. 440, 93 N. W. 346; Levy v. Neto York Life Insurance Company, 159 Misc. 431, 386 N. Y. S. 905; New York Life v. Finkelstein, 212 Ind. 155, 8 N. E. 2d 598.
The judgment of the trial court is, therefore, affirmed.
Smith, Humphreys and Mehaffy, JJ., dissent. | [
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McHaney, J.
Appellee, an employe of appellant, a foreign corporation, brought this action against it to recover damages for personal injuries sustained by him when a tree he was engaged in sawing down fell to the ground and kicked back, striking his right leg and crushing it so that it had to be amputated. The grounds of negligence charged and submitted to the jury are “failure to instruct appellee how to do his work in safety” and “failure to provide appellee a safe place in which to work.” Appellant’s defense was a general denial of the allegations of the complaint, and pleas of contributory negligence, assumed risk and unavoidable accident. Trial to a jury resulted in a verdict and judgment against appellant in the sum of $24,750, from which is this appeal.
At the conclusion of all the evidence, appellant moved the court to direct a verdict in its favor on the ground, among others, that the evidence was not sufficient to take the ease to the jury. This was renewed in requested instruction No. 1. Both were denied and it excepted.
These requests form the basis for the principal argument of appellant for a reversal and dismissal of the action, and we agree with appellant that the court erred in this respect.
The undisputed facts are that appellant is a foreign corporation and had contracted with the Carroll Electric Cooperative Corporation to construct for it an electric line through Benton and Carroll counties for the distribution of electricity, under a set-up authorized by the Rural Electrical Administration of the United States, which contract required the clearing of a right-of-way, the setting of poles and the running of lines thereon; that appellee was employed by appellant with others to clear the right-of-way by felling trees, cutting and removing bushes, saplings and other undergrowth; that he had been so employed about four or five weeks prior to June 26, 1939; that on said date the foreman of the crew in which appellee was working took this crew to the Simms farm southeast of Centerton in Benton county and directed them to cut two trees that were leaning over into the right-of-way; that appellee and another began to saw down one prong of a large sycamore tree, there being two prongs or trees growing out of the same hole, the one on which they were sawing being about 30 to 36 inches in diameter and 50 or 60 feet tall; that two other employees began sawing down another and smaller sycamore tree about 14 inches in diameter some eight or ten feet east of the one on which appellee was working, he standing on the east side of his tree and facing to the south; that the smaller sycamore tree was felled first, an alarm being given by one of the cutters of its imminent fall by shouting “timber,” so that all others in danger might get out of the way; that the smaller tree was felled to the north, was trimmed up and sawed into one or more cuts; that some minutes thereafter the tree on which appellee was working was about to fall when he himself gave the alarm by shouting “timber”; and the tree fell to the south, the trunk rebounded, struck him on the right leg and crushed it so that it had to be amputated. Appellee testified that he did not remember shouting “timber,” but did not deny that he did so. The man on the other end of his saw says that he did and others that they think he did. He also testified that he did not know the other sycamore had been felled or that it had been trimmed- and sawed into cuts, although it fell in a very few feet of him. He said the reason he did not get out of the way of the tree he was cutting was that he started going east and tripped over one of the log cuts of the other tree, not knowing it was there, and that the butt of his tree caught his leg against the log as he attempted to get away. He and others testified that the log cut over which he attempted to escape rolled down a slight decline toward appellee for a distance of two or three feet and he said he did not know that it had done so. It is undisputed that the tree fell in the exact.direction he and his co-worker intended for it to fall and that it would have been practically impossible for it to have been forced to fall any other direction as it was leaning heavily to the south. By the use of ropes it might have been made to fall in another direction, but it was not customary to use ropes except to prevent trees from falling across fences, roads or other property, thereby damaging same. These are substantially the essential facts stated in the light most favorable to appellee. Do they make or establish a case of actionable negligence for the jury against appellant? We think not.
One of the grounds of negligence relied on is that appellee was an inexperienced tree cutter and that it was appellant’s duty to warn him of the danger of getting hurt by a falling tree. In the first place, he was not an inexperienced employee, nor was he a mere youth. He is a man and was 36 years of age at the time of his injury and had been working at this same kind of work for appellant for about five weeks, not all the time cutting and felling trees, but it is undisputed that he had assisted in so doing on many occasions, whenever it became necessary in clearing the right-of-way. He had also lived on a farm and had cut firewood at times. But assuming that he was inexperienced in the matter of felling trees, what warning could the master have given him that he did not already know? He must have known as well as appellant that a falling tree is dangerous and that it is not safe to stand close by when one is ready to fall, especially a large one, as this one was. They were instructed by the foreman to shout the warning “timber” when a tree was about to fall and this was done at the time the smaller sycamore fell and by appellee when his tree fell. No one could have anticipated or foreseen that this tree would certainly kick back 10 or 15 feet when it hit the ground, but the very object of the warning was to get every one out of danger, and most certainly the one who gave the cry must have known and appreciated the danger and, therefore, needed no instruction as to how to do his work in safety. It was simply a matter of self-preservation against a danger as well known to appellee as to appellant, and no instruction in this regard was necessary, and a failure to instruct was not negligence. McEachin v. Yarborough, 189 Ark. 434, 74 S. W. 2d 228; Union Saw Mill Co. v. Hayes, 192 Ark. 17, 90 S. W. 2d 209.
The other ground of negligence relied on is “failure to provide appellee a safe place in which to do his work.” The master is not an insurer of the safety of his employe and is required only to exercise ordinary care to furnish the employe a reasonably safe place in which to work. Now, it is said that appellant failed in this regard in that a fellow servant or fellow servants of appellee cnt down a 14 to 16-inch tree within a. few feet of him, sawed it into log cuts, one of which rolled down two or three feet toward him, and that .all this was done without any knowledge on his. part that it had been done. He insists that it was negligence for his fellow servants to cut down this other tree, saw it up and leave it in his path of escape when his tree fell, especially in letting one of the logs roll closer to him. The physical facts, as well as all the other witnesses, contradict him in stating that he did not know of the presence and proximity of this other tree and the logs. He is a man of mature years, with good eyesight and with his sense of hearing unimpaired. The tree, the log of which he tripped over, fell within a few feet of him and was from 14 to 16 inches in diameter at the butt. It must have fallen with tremendous force, making a loud crashing noise. Moreover, the cry of warning “timber” was given. His own helper heard it and got out of the way and says appellee did also. He must have heard both the alarm and the falling of the tree and cannot be heard to say he did not. At least his testimony that he did not is not substantial. This is a question of law and not of fact. Mo. Pac. Rd. Co. v. Davis, 197 Ark. 830, 125 S. W. 2d 785.
As said by this court in Mo. Pac. Rd. Co. v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047, “It would be placing too high a duty upon the master to require him to keep the employe’s place of work clear of every object upon which an employe 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 Co. v. Henderson, 197 Ark. 724, 109 S. W. 2d 425.” There was no negligence in cutting and felling the tree over which appellee tripped. The employees were there for the very purpose of felling both trees which was necessary for the purpose of clearing the right-of-way. It had been there only a few minutes with insufficient time to have removed it, and appellee must be held to have known it was there.
No actionable negligence of appellant being shown, there can be no recovery, and the trial court erred in refusing to direct a verdict for it at its request. The judgment will be reversed and, as the cause has been fully developed, it will be dismissed.
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McHaney, J.
This ease originated in the county court of Madison county, where appellees petitioned said court for an order establishing or changing the route of a county road 'between the villages of Purdy and Marble, in said county. The order was granted establishing the road, a portion of which passes over the land of appellee Littrell, and this portion has already been constructed, 'and a portion over the land of appellants. An appeal was prosecuted to the circuit court, where the cause was submitted, taken under advisement, and an independent investigation was made by the judge in the way of a view of the route, and it was found by the court that the proposed road was necessary and convenient as a public road. Judgment was accordingly entered, and judgment was also entered against the petitioners fo'r the costs and damages, of which they make no complaint.
The first contention for a reversal of this judgment is that the proceedings of the viewers are not valid and binding; that they were directed by the order of the county court to view and lay out the proposed road from a junction with the Marble-Purdy road to its connection with State Highway No. 68, a distance of nearly two miles, which they did not do, but viewed and laid out only that part of the road to be located on the lands of appellants. We think they are wrong in this, as the old road and the proposed road had been previously viewed and laid out by the same viewers, and the road established by the county court on that report and a major portion thereof actually constructed. The description employed by the viewers was the surveyor’s description of the previously constructed road, except the portion across the land of appellants.
It is said that the report of the viewers is void, because it was changed by someone by attaching the surveyor’s description of the route of the road instead of the description thereof made by the viewers themselves. The viewer who testified that the surveyor’s description was not in the report when it was signed also said the report does describe the proposed route which they laid out. This does not make it fraudulent or void as it is not disputed that the report of the viewers properly describes the route they recommended to the court.
It is next argued that no sufficient notice was given appellants of the meeting* of the viewers. Section 6948 of Pope’s Digest provides: “The county court shall issue its order directing said viewers to proceed on .a day to be named in said order, or on failing to meet on said day, within five days thereafter.” And § 6949 provides that one of the petitioners shall give at least five days’ notice in writing to the landowners affected of the time and place of the meeting. A copy of the order of the county court appointing the viewers was mailed to appellants. We think this a substantial compliance with the statute, but even if it were not, failure to give any notice would not be fatal, or render tbe order void. It was so held in Howard v. State, 47 Ark. 431, 2 S. W. 331, and in Lonoke County v. Carl Lee, 98 Ark. 345, 135 S. W. 833. In tbe latter case the court quoted from the former as follows: “The landowner cannot be said to be deprived of his rights to be heard by the want of notice of the viewers’ meeting. The assessment of damages by the viewers is not of itself binding upon him. It requires the judgment of the county court to give it any force or validity. It is made the duty of the court to see that the award of damages is just to the public and the individual, and the landowner, who is a party by virtue of the publication, is thus afforded his day in court, regardless of the report of the viewers.”
Finally it is insisted that the trial judge committed error in making a personal view of the proposed road, its convenience and necessity, and that it was error to render judgment against the petitioners and to deny appellants the right to recover damages against the county. As to the judge’s visitation, we think he had the right to do so, both sides being present in person or by counsel, or having the opportunity to be present. The evidence adduced in court was sufficient to support the court’s finding of public convenience and necessity, and the visitation of the judge did not deprive appellants of any substantial right. As to the judgment against appellees instead of the county, appellees say the court did render judgment against the county, but because of a clerical error the record does not show it. If this be true appellants may, if they are so advised, have the judgment corrected nwic ipro tunc. Appellees are not complaining of the judgment against them, and if they do not pay, or are unwilling to do so, under the provisions of § 6953 of Pope’s Digest, the court might declare such road not a public highway, and adjudge all costs against the petitioners.
Affirmed.
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McHaney, J.
Appellants correctly state the facts in this case as follows: “On June 11, 1940, petitioners filed in the county court of Lincoln county petitions purporting to be signed by the owners of a majority in value of the lands in the area described in said petitions, praying that the said court enter its order annexing or adding said lands to No Fence District No. 2 of Lincoln county, Arkansas, which district was organized by a previous order of said court in 1925. The signers of said petition are the owners of lands outside and inside the boundaries of the town of Star City, an incorporated town. It is admitted that the signers of the petitions do not represent a majority in acreage or value of the lands lying outside the corporate limits of the town of Star City.
“The response to petition raises a pumber of questions, but only one is to be considered on this appeal. The county court dismissed the petitions on the ground that the lands within the municipal corporation of Star City are not taxable for the purpose of erecting and maintaining the fence necessary to include said lands in No Fence District No. 2.
“An appeal was duly taken to the circuit court of Lincoln county which court also dismissed the petitions on the ground ‘that the purpose of the law under which said petition was filed is to benefit people engaged in the pursuit of agriculture or kindred avocations, at least, a rural population, and that the lands, lots, blocks and parcels of land included within the incorporated town of Star City are not taxable for said purpose.’ ”
The question for decision is, May the real property in the Incorporated Town of Star City be annexed to No Fence District No. 2 of Lincoln county and be taxed for the purposes of the district? Both the county court and the circuit court, on appeal, answered the question in the negative, and we agree that they were correct in so holding. In Stiewell v. Fencing Dist. No. 6, 71 Ark. 17, 70 S. W. 308, 71 S. W. 247, this court followed its former holding in L. R. & Ft. S. Ry. Co. v. Huggins, 64 Ark. 432, 43 S. W. 145, holding* that railroad property was not included in the fencing* district act, and said, on rehearing, j). 29: “The Huggins case, 64 Ark. 432, 43 S. W. 145, was a fencing district ease, and we held that the right-of-way, road bed, etc., of railroads were not intended to be included in fencing* districts for purposes of the assessment. We think this is obvious from the manifest purpose of the legislature in providing for such districts. The design of the legislature was to benefit people engaged in the pursuit of agriculture or kindred avocations —at least a rural population.” Since that decision railroad property outside of city limits has been made taxable by statute, but property in cities and towns, that of railroads or individuals, has not been so included and there is no occasion or necessity for including cities and towns in a no fence district. By § 9625 of Pope’s Digest cities and incorporated towns are given plenary power to prevent by ordinance the running at large of animals within the corporate limits. We agree with the trial court “that the purpose of the law under which said petition was filed is to benefit people engaged in the pursuit of agriculture or kindred avocations, at least, a rural population, and that the lands, lots, blocks and parcels of land included within the Incorporated Town of Star City are not taxable for said purpose. ’ ’
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Humphreys, J.
Appellee, Arkansas Dailies, Inc., is a Tennessee corporation having* a capital stock of $10,000. C. E. Palmer and members of his family owned all the corporate stock, except $700 of the stock acquired by appellant during his ten years employment by appellee as manager of his corporation. Appellee, corporation, was organized for the purpose of soliciting advertising from various manufacturers in the east and north and placing same in newspapers which appellee secured as patrons of its organization. The remuneration it received from its patrons was a percentage of the advertising fee which the various newspapers collected from the advertisers. for advertisements which were procured through its representatives in the east and north and perhaps other parts of the country.
C. E. Palmer resided in Texarkana, Texas, and was engaged in other business and employed appellant to manage the business in which appellee corporation was engaged at a fixed annual salary together with bonuses and commissions. Appellant’s chief duty was to obtain as many newspapers as possible as patrons of appellee, coiqDoration, and to make and supervise contracts with them. His position was designated as that of manager of the corporation, and he also acted as secretary and treasurer and had charge of the office in Memphis and the employees of said corporation. He was also selected as a director of appellee, corporation, and served in that capacity with the other two directors, C. E. Palmer and his son-in-law, W. E. Hussman. Under the management of appellant the business expanded during the ten year period of his employment from about eight papers to fifty-four papers or patrons. Appellant during the last half of his employment had in mind a desire to acquire an interest in the business as evidenced by a conversation he had with a man by the name of Murray, an intimate friend, but he never revealed this desire to Palmer or anyone connected with appellee corporation. At the time of his employment by Palmer as manager of appellee, corporation, no definite term of employment was agreed upon so it partook of the nature of a contract of employment at will. In other words, appellee had the right to discharge and appellant had the right to resign when either decided to do so. There was no provision in the contract prohibiting appellant, in case of his resignation, from setting up an independent business of his own of the same character of that of appellee or from soliciting the patrons or customers of appellee from becoming his customers in an independent business.
The time arrived for an arrangement between appellee and appellant for another year’s employment. In response to a letter from C. E. Palmer, appellant, appellee and W. E. Hussman, the three directors met in Hot Springs, Arkansas, to discuss appellant’s remuneration, his salary and bonus arrangement, but no agreement could be reached. Appellant wanted more salary than the others were willing to pay him, and then Palmer asked him what kind of arrangement he was willing to make, and appellant responded that if he remained with the corporation he wanted it to give him a half interest in the business and stated that unless they gave him a half interest therein he would resign, organize a similar company of his own and take all its business with him except the patrons or papers owned by Palmer. This proposal on his part was declined, whereupon appellant resigned as manager, seeretai^y and treasurer of appellee, corporation, effective immediately. At the time, appellant proposed to sell his stock to Palmer, but Palmer replied that he would not buy the stock because the corporation was not going to furnish the capital for him to set up an independent or competitive business. Something was said about him resigning as a director, and he said that he would wait until a little later, and he did resign as a director on the 13th day of December, 1940, and his resignation was accepted.
Both appellant and C. E. Palmer returned to Memphis, and each mailed out a notice to all of the patrons to the effect that appellant -had resigned and was no longer connected with appellee corporation. This notice was mailed out on October 9, 1939. In appellant’s letter to the newspapers in addition to stating that he had sev ■ered Ms connections with appellee corporation he also stated that he was going into the same business for himself with headquarters in Memphis .and would operate his new business under the name of Wallace Witmer Company and would soon call upon them. Following the notice to the patrons by appellee corporation, it sent out to the patrons a rather lengthy letter confirming the notice it had sent out on October 9, and saying to the patrons that appellee, corporation, had employed H. K. Howard as its general manager who was thoroughly experienced in the business. It also stated in the letter that W. E. Jordan, the assistant manager, would continue on the staff. It also stated that appellant would not likely be able to successfully organize an agency that would render service to them equal to the service it had rendered, and that it would be able to render, and advising them that it would not be wise to form a new connection. It was also stated that the new general manager would call upon them and discuss matters in detail with them. From that time on it was a race between appellant and the new general manager as to which agency would get their business after their contracts expired with appellee. Appellee secured contracts with a Fayetteville paper, a Harrison paper, a Jonesboro paper, a Batesville paper and others. Later the appellee corporation persuaded the Fayetteville Democrat Publishing Company to make a contract with it and give it an indemnifying bond to protect it against any damages. that might result from a breach of its contract with appellant. The contracts with both the Fayetteville Democrat Publishing Company and the Times Publishing Company at Harrison were entered into with appellant on December 21, 1939, after appellant had resigned as manager, secretary and treasurer and director of appellee, corporation, and was not to take effect until the expiration of their respective contracts with appellee corporation.
Appellant' organized his new company and moved into offices in the same building near the offices occupied by appellee corporation. He did not take out any of the furnishings of the office, or any of the files or any of the contracts it had -with any of the papers, but later did employ Mrs. Herriot who had been acting in the capacity of assistant secretary of appellee, corporation, for about ten years. He also procured the same eastern and northern representatives who had been procuring advertisements for appellee, corporation, as his representatives to procure advertisements for the new company he established. The form of contract he used in making his agreements with the papers was in substance the same kind of a contract that appellee used in contracting with its papers.
The business in which appellee was engaged involved no trade secrets, trade marks, etc. It was technically a service corporation.
About all that appellant took with him when he severed his connections with appellee was the experience and knowledge he had acquired in acting as manager and employee of appellee and the acquaintanceship he had made with appellee’s patrons during the time he had served it.
Growing out of appellant’s activities in soliciting business from the patrons of appellee at the expiration of their contracts with it, appellee filed- a' suit in the chancery court of 'Boone county seeking an injunction against appellant to prevent him from securing such contracts for services from any of appellee’s patrons. Incidental to the main purpose of the injunction proceeding, the Democrat Publishing Company of Fayetteville and the Times Publishing Company of Harrison became parties to the suit involving the validity of any contract either of the papers had made with appellant, and the contracts he had made with them were asked to be cancelled.
Appellant filed an answer denying the material allegations of the complaint claiming that he was within his legal rights in soliciting business from the patrons of appellee after the expiration of their contracts with it.
After hearing the testimony responsive to the issues involved the chancery court rendered a decree canceling the contracts appellant had made with the Democrat Publishing Company and the Times Publishing Company and enjoined appellant from soliciting business from or enter ing into any agreement with appellee’s patrons for a term of one year, from which decree an appeal has been duly- prosecuted to this court.
Appellee prosecuted a cross-appeal upon the ground that under the evidence the court should have rendered á decree prohibiting appellant from soliciting business or entering into contracts with appellee’s former patrons for a term of three years.
It would abridge competition in business, the life of trade, if an employee who had rendered services to a business of any character for a long period of time and who had helped build up a business on account of performing his duties well should be prohibited after severing his relationship with a business concern from establishing and prosecuting a similar business in the same territory or field in which his employer had done business, especially where the employee had not contracted when entering into the employment to refrain from establishing an independent business of like nature. Legitimate competition should be encouraged rather than restricted, and, in the aid of the freedom of employment, combinations and monopolies which would result in the restraint of trade should not be tolerated in a democratic form of government. Certain restrictions have been imposed upon employees when severing their relationship with an employer. For example where the particular business in which he had been employed has trade secrets an employee is not permitted to set up an independent business of a similar nature and use the trade secrets of his employer or confidential information received from his employer in the new or independent business in which he engages, but it is allowable for him to use his experience and knowledge gained during the period of his employment in his independent business. The experience and knowledge he has acquired as an employee in no sense becomes the property of his employer. Of course during the period of his employment he must be loyal to his employer and not attempt to set up a competitive business with the business of his employer. It is said on page 219 in 39 Columbia Law Review, that: “After leaving the corporation a director may use any experience he gained while working for the corporation. Similarly, once his term is ended, he may do what was prohibited to him before.”
In the instant case it is not shown that appellant, in the prosecution of his new business, used any confidential information, trade secrets or anything else that he had obtained from appellee during the period of his service with it. It was said, in substance, in the case of H. W. Gossard Company v. Helene C. Crosby, 132 Iowa 155, 109 N. W. 483, 6 L. R. A., N. S., 1115, that: “An employee, on leaving his employer’s service is guilty of no legal wrong in profiting by the experience and knowledge gained in the service. ’ ’
In the instant case it is clear that appellant severed all the connections he had with appellee corporation, except that of nominal director, until the board could meet and accept his resignation as director. His resignation as manager, secretary and treasurer had been accepted and his resignation as director had also been accepted, before he entered into any contracts with the patrons of appellee corporation. No fiduciary relationship whatever existed between him and appellee, corporation, when the injunction in this case was issued prohibiting him from soliciting business from or entering into contracts for furnishing appellee’s patrons with advertising matter. Even then he was simply trying to obtain contracts for such service with appellee’s patrons after their contracts with appellee had expired. This was not making use of any trade secret or confidential information he acquired during his services with appellee corporation. He had never acquired any financial interest jn the business of appellee, corporation, except the purchase of $700 worth of stock in a concern that had $10,000 capital stock. We do not think it would be sound to say that a minority stockholder in any concern, might not engage in an independent similar business even though competitive in nature.
In the case of New York Automobile Company v. Franklin, 49 Misc. 8, 97 N. Y. Supp. 781, the court said: “Mr. Wilkinson as an employee of the plaintiff had, under the circumstances, a right to leave its service when he did. Concededly, he had no right to take with him any of its tangible property such as the model, the patterns, drawings; and he did not. Possibly, he had no right to use any designs which he might remember, and this he did not do. But he, as well as everyone else, had a right to plan and use a four cylinder air cooled engine. His experience, his skill, his unmatured thoughts and designs were his own. That they had been gained at the expense of the plaintiff certainly gave the latter no legal right to them. If it had possessed any unpublished inventions which Mr. Wilkinson was now using, another question would arise. But it had not. All it possessed on the 30th day of June was an unperfected model of an engine; and this it still has. Nor have Mr. Wilkinson and Mr. Brown wronged it by .any act as directors. True, the one, after he left the plaintiff, began at once to build a four-cylinder engine for the other, and this was ultimately sold to a corporation of which they were both directors. But I know of no rule which prohibits a director of a corporation engaging in a business similar to that carried on by the corporation, either in his own behalf or with another corporation of which he is likewise a director. True, he owes to his stockholders the most scrupulous good faith. He may not deal with the trust property for his own advantage. He may not deal in his own behalf in respect to any matter involving his rights and duties as a director. He may not seek his' own profit at the expense of the company or its stockholders. But, so long as he violates no legal or moral duty which he owes to the corporation or to its stockholders he is entirely free to engage in an independent, competitive business.”
We think the case of El Dorado Laundry Company v. Ford, 174 Ark. 104, 294 S. W. 393, comes nearer fitting the facts in this case than any case we have read except the case of Fulton Grand Laundry Company v. Johnson, 140 Md. 359, 117 Atl. 753, 23 A. L. R. 420. In the El Dorado Laundry Company ease, supra, it was said by the late Chief Justice Hart, that: “The facts in this case bring it within the rule laid down in Fulton Grand Laun dry Co. v. Johnson, 140 Md. 359, 117 Atl. 753, 23 A. L. R. 420. It was held that the names of the patrons of a laundry on a particular route did not constitute a trade secret which will be protected by injunction so as to prevent a driver employed on such route from utilizing- it and soliciting the patronage of such persons when he leaves the service of his employer and enters business for himself. In a note at the end of the case, it is said that in a majority of the cases which have passed on the question, it is held that in the absence of an express contract, on taking a new employment in a competing business, an employee may solicit for a new employer the business of his former customers, and will not be enjoined from so doing at the instance of his former employer. We think that under the principle announced in these cases and under the facts in the present case, the chancellor properly held that the plaintiff was not entitled to the injunctive relief asked, and that his decree dismissing the complaint of the plaintiff for want of equity should be affirmed. It is so ordered.”
To give a concrete illustration, certainly the manager of a large department store could resign or sever his connection with it and take employment as manager of another at an increased salary or he could resign and establish a department store of his own just so he did not use in the prosecution of his new business any trade secrets or confidential information he had received from his former employer, provided, however, he had not contracted with his former employer not to establish an independent similar business within a reasonable period of time after severing his connections with his former employer.
We are struck with an argument made in the amici curiae brief filed by the Friersons as an aid to this court in the instant case. It is said in their brief that-: “Every day we know that popular automobile salesmen, for instance, quit a Chevrolet agency and go into the employment of a Ford agency or vice versa, and the new employers advertise that the salesman has recently come into the employment of the new master and will be glad to see his old friends at the new address. The same transactions are common regarding’ retail merchandise salesmen of ability. The old. common law idea of apprenticeship was based upon the thought that a young man could apprentice himself until he had learned a trade or an art, and after he had learned it, he was expected to start in business for himself; and if the community was small, his activities would necessarily be in competition with his former master. Each clerk in the simple old days expected to save up, make friends and later launch his own business, which almost necessarily would compete with his former employer.”
We think under the facts in this case the trial court erred in enjoining appellant from entering into a separate competitive business with that of appellee corporation, and also in canceling the contracts appellant had made with the Fayetteville Democrat Publishing Company and the Times Publishing Company.
On account of the error indicated, the decree is reversed and remanded with directions to dissolve the injunction and dismiss appellee’s complaint for the want of equity.
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Holt, J.
Appellee, George Norman, sued appellant, Guy Singley, in the Poinsett chancery court on a note in the principal sum of $200 and sought to foreclose the lien of a chattel mortgage on certain livestock which had been executed by appellant as security. Appellant defended on two grounds: (1) That the note and mortgage sued on grew out of a gambling transaction; and (2) that the interest charged amounted to usury. Upon a trial the chancellor found the issues in favor of appellee and entered a decree accordingly. This appeal followed.
The material facts on this record are practically undisputed. The parties to this litigation were close personal friends, and gambled when the opportunity afforded.
On March 15, 1940, Singley went to his friend, Norman, and informed him of a dice game, then in progress, and asked for a loan of $50 with which to participate in the game. Norman readily agreed to make the loan and accordingly they went to a justice of the peace, who prepared a note in the amount of $50, dated March 15, 1940, due and payable the following day and with interest at ten per cent. A chattel mortgage on certain livestock was prepared at the same time and both instruments were signed by appellant.
Following the execution of these papers Norman turned over to Singley $49, retaining $1 out of the $50 loan as a bonus. Together they immediately’ went to the game where they both participated, with other gamblers, and Singley lost the borrowed money. Singley then sought and secured another loan of $50 from Norman. When appellant received this second loan from appellee they went again to the justice of the peace and the note and mortgage were changed by striking out $50 and writing immediately thereunder $100.
Singley and Norman again entered the game and proceeded to gamble with each other and with others until Singley lost all of this second loan except $1.50 which he had paid appellee, in part as a bonus for the money, and for taxi fare.
Appellant, still possessed with the gambling urge, asked appellee for another $50 loan. Appellee agreed and together they visited the justice of the peace for a third time where the note and mortgage were raised from $100 to $150, thence back to the game Guy and Georse went. Again they played as before and again Singley lost all of the third loan. Norman agreed to increase his loan to Singley another $50. Again they visited the justice of the peace, another alteration was ipade in the note and mortgage, making the final sum therein $200. With this fourth loan in his pocket, they went back to the game and proceeded in like manner to gamble until Singley lost this loan also, thus making his total losses $200, the amount of the note and mortgage.
At this point it appears that Singley suddenly lost his previous urge to gamble, but unfortunately for appellee he also lost all desire to repay his friend, appellee, the money loaned and when called upon to pay sought to escape payment by the two legal defenses indicated above.
Our lawmakers in an effort to prohibit gambling, such as is presented by this record, have enacted legislation making it ah offense and punishable by fine. Section 3330, Pope’s Digest. And in order further to discourage the practice, § 6115, Pope’s Digest, was also enacted, providing among other thing's, that all notes and securities, “where the consideration or any part thereof is . . . for money or property lent to lie bet at any gaming or gambling device, or at any sport or pastime whatever, shall be void.”
Here the evidence clearly shows that appellee loaned the money in question to appellant “to be bet” in a dice game, a form of gambling. Not only did appellee admit that he knew that appellant was borrowing the money for the purpose of gambling, but appellee actually participated in the very game with appellant and others until appellant had lost the money in question and we think it clear that appellee loaned the money to appellant with-the purpose, knowledge and intent that it was “to be bet” or used at gambling within the plain terms and meaning of § 6115 of Pope’s Digest, supra, and therefore the note and mortgage herein are void and the trial court erred in holding otherwise.
The rule of law governing here is clearly stated in Daniel on Negotiable Instruments, volume 1, p. 289, § 200, in this language: “Money lent for the purpose of being used in gaming cannot be recovered back by tbe lender; and a bill or note given for sncb purpose is, as between the parties, void. But where it was not used for the purpose for which it was lent — it was held that it might be recovered. It is fully settled that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced. But knowledge that the money was to be so used must be distinctly proved; and the mere fact that the borrower was a gambler, and that any one might expect him to game with the money, would not suffice, of course, to show it.”
In Tatum v. Kelley, 25 Ark. 209, this court said: “No principle is better settled than that contracts that contravene the law are void, and that courts will never lend their aid in enforcing them. Illegal contracts are not such only as stipulate for something that is unlawful; but, where the intention of one of the parties is to enable the other to violate the law, the contract is corrupted by such illegal intention, and is void.” See, also, Rumping v. Arkansas National Bank, 121 Ark. 202, 180 S. W. 749.
We are also of the view that the note and mortgage are void for the reason that appellee has charged and taken on the note herein a greater rate of interest than the lawful rate of ten per cent.
The Const., art. 19, § 13, provides: “All contracts i for a greater rate of interest than ten per centum per annum shall be void as to principal and interest, and the General Assembly shall prohibit same by law;
Section 9402 provides: “All bonds, bills, notes, assurances, conveyances, and all other contracts or securities whatever, whereupon or whereby there shall be reserved, taken or secured, or agreed to be taken or reserved, any greater sum or greater value for the loan or forbearance of any money, goods, things in action, or any other valuable thing than is prescribed in this act shall be void.”
We quote from appellee’s testimony: “ Q. George, at no time did you charge a bonus on money you loaned to Guy Singley? A. I charged him $1 on the first $50, in other words he gave me $1, and on the second $50 and for the drive np Mr. Collins he gave me $1.50. On the other $100 I didn’t charge him anything.”
The four loans here were reduced to and embodied in one transaction, and evidenced by the note here in the total amount of $200’ with the mortgage as security.
By appellee’s own admission he is attempting, to take from appellant more than a ten per cent, interest charge. Here he received approximately $2.50 bonus in excess of ten per cent, interest, however, the amount of the exaction or bonus appellee received in excess of ten per cent, interest is not material. It is sufficient if appellee took anything in excess of ten per cent.
In Briggs v. Steele, 91 Ark. 458, 121 S. W. 754, this court said: “To constitute usury, there must either be an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statute allows for the loan or forbearance of money; or such greater rate of interest must be knowingly or intentionally ‘reserved, taken or secured’ for such loan or forbearance. It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved. ’ ’
And in McHenry v. Vaught, 150 Ark. 612, 234 S. W. 995, it is said: “The lender may receive for the forbearance of money ten per cent, per annum and no more.”
For the errors indicated, the decree is reversed, and the cause remanded with directions to dismiss appellee’s complaint for want of equity. | [
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Grikpin Smith, C. J.
Cypress Creek Drainage District of Perry and Conway counties, embracing approximately 18,000 acres, was formed by a judgment of. the Perry circuit court December 4, 1916, pursuant to the provisions of act 279 of 1909 and amendments. The objective was' drainage of certain swampy lands north of the town of Perry, and plans called for a main canal with designated laterals.
Nearly fifty landowners filed exceptions to assessments. Some protestants were of opinion their lands were not benefited. Others thought assessments too high. Some adjustments were made. There was an appeal to this court. Oates, et al. v. Cypress Creek Drainage District, 135 Ark. 149, 205 S. W. 293.
Bonds aggregating $110,000 were sold in three issues. The first bear date of April 1, 1918 — $63,000. The second issue (July 2, 1919) was for $17,000, and the third (March 1, 1920) amounted to $30,000.
Appellant, and- intervener, O. O. Oates, are landowners. Appellees are the district’s commissioners. Juliet Sharp Benecke, another intervener, is owner of bonds of the first issue.
Lands now owned by Serena Burton were determined by the commissioners to have been benefited $200. An assessment was accordingly made, payment; inclusive of principal and interest, to be over a period of twenty-two years.
Appellant and her predecessors in title paid assessments inclusive of those extended for 1937, but appellant is delinquent for 1938 and 1939.
The third issue of bonds was under authority of act 138, approved February 18, 1920. Section 1 of the act is printed in the margin.
It is conceded that bonds issued in April, 1918, and those issued July, 1919, are valid; but avoidance of the issue of March 1, 1920, is sought, in so far as it exceeds what is termed the legally assessed benefits. Effect of the act of 1920 was to increase from $200 to $300 appellant’s assessed benefits for the years subsequent to 1920.
Appellant’s arguments are grouped under three subdivisions: (1) The act is void because not within the governor’s call of December 9, 1919, for the special session of January 26,1920. (2) Act No. 138 is arbitrary and capricious, and therefore void. It amounts to a tahing of property without due process and without compensation. (3) There is no such thing as a bona fide holder for value of a municipal bond in the sense that the expression is used in the law merchant, and this being true, neither the district nor its taxpayers can be estopped to assert invalidity of act 138.
First. — The extraordinary session of 1920 was called “For the purpose of enacting laws establishing special or local road, bridge, drainage and levee improvement districts and school districts, and conferring special powers thereon, and amending and curing defects in existing special or local laws for the same, and ratifying, confirming and validating special or local improvement districts organized under general laws or special or local laws, and enlarging the powers thereof, and to enact such laws as will permit the completion, reconstruction or extension of waterwork systems and other improvement districts in cities or .towns. ’ ’
It is argued that art. 6, § 19, of the Constitution, expressly limits subjects of legislation to those enumerated in the call unless business for which the assembly was convened has been disposed of and thereafter, by two-thirds vote, the session has been extended. Jones v. State, 154 Ark. 288, 242 S. W. 377. The 1920 special session was not extended; therefore, appellant insists, the subject-matter embraced within act 138 was alien to the emergencies listed by the governor. We think authority for the statute was found in that part of the call authorizing the General Assembly to ratify, confirm, and validate special or local improvement districts and to enlarge the powers thereof.
Road Improvement Districts Nos. 3, 4, and 5 were created in Washington county by a special act of the General Assembly of 1919. At the special session which convened January 26, 1920, an amendatory statute was enacted. By the amendment it was sought to cure irregularities; also to amend §§ 6, 8, and 27 of the creative act of 1919. In an opinion written by Chief Justice McCulloch the subject was held to have been within purview of the call. McKee v. English, 147 Ark. 449, 228 S. W. 43.
At the extraordinary session of January 26, 1920, a statute affecting road improvement districts in Wood-ruff county was enacted. Betterments levied on lands in Improvement District No. 2 of the northern district of the county were set aside. It was directed that territory within the district should be embraced within “and made a part of the hereinafter created Hoad Improvement District No. 16 of the northern district of Woodruff county.” There was a legislative finding that District No. 16 (not then in existence) had been benefited by the preliminary work, estimates, and surveys made on account of District No. 2, and that District No. 16 should assume payment of such obligations, “. , . and assessments are hereby authorized to cover the payment of said benefits by said hereinafter created District No. 16.”
Validity of the act was questioned on several grounds, one being that it was not within the governor’s call. In an opinion written by Chief Justice McCulloch upholding the act it was said: ‘ ‘ The fact that the statute incidentally amends, or even abolishes, another local district does not hamper the power of the Legislature in creating a new district. ...”
It was then pointed out that the General Assembly, under the Constitution and proclamation of the governor (having power to pass special laws establishing local districts) possessed also the power to abolish other districts or to embrace them within the limits of designated districts, and [this] is “a necessary incident to the exercise of the power conferred.” It was held that the case of Jones v. State, supra, had' no application. Mr. Justice Hart (later Chief Justice) dissented in the Jones Case. In Sims v. Weldon, (opinion also by Chief Justice McCulloch) it was said:
“We feel constrained to add onr approval to the statement of the law made in the dissenting opinion in {Jones v. State], that [art. 6, § 19] of the Constitution merely requires the governor ‘to confine legislation to particular subjects, and not to restrict the details springing out of the subjects enumerated in the call.’ . . . Legislation must be confined to the general purposes specified in the proclamation. Much latitude is allowed for the specification by the governor in his proclamation, but the purposes of legislation must be definitely specified, either broadly or in detail. ’ ’
In the call here questioned it was intended — and this intent is in express language — to authorize the General Assembly to enlarge powers of special or local improvement districts. Defects were to be “amended and cured” in existing special or local drainage and levee improvement districts. Under authority of the cases cited, enactment of the legislation adding fifty per cent, to existing betterments in Cypress Drainage District was not unauthorized.
Second. — Was the purpose achieved by act 138 arbitrary and capricious? Appellant concedes that the General Assembly has power to levy, directly, an assessment of benefits, and agrees that this authority is subordinate only to the right of a landowner to have an abuse of power judicially reviewed. We are reminded that the Legislature, in the first instance — when the district was created — delegated to designated officials the power to assess betterments, and that to assure equal justice courts were empowered to hear complaints of dissatisfied property owners.
The appeal “by about forty property owners and the Chicago, Rock Island & Pacific Railway Company” from judgment of the Perry circuit court (Oates v. Cypress Creek Drainage District, supra) was decided by this court July 1,1918. The circuit court had reduced the railroad company’s assessment from $10,000 to $4,500, and “many reductions” were made as to assessments of individuals. The opinion contains the following statements: “As we understand the evidence in this case, the assessors adopted a uniform basis for making the assessment on all the lands. . . . For example, they ascertained that the total benefit to accrue to the lands in the town of Perry would be $10,000. . . . Likewise, they ascertained that the total benefit to accrue to the lands in the country would be $72,800. . . . A total assessment of the entire benefit to the whole property was entirely feasible and practical and an apportionment of the benefit on any basis was unnecessary. ’ ’
In effect, appellant argues that here was a judicial finding, made under processes provided by the General Assembly, that benefits to the property did not exceed $82,800; yet, it is argued, the lawmaking body arbitrarily and capriciously directed the county clerks of Perry and Conway counties to extend increases of fifty per cent, against each assessment. Uniform holdings of this court have been that any amount exacted in excess of special benefits accruing from the improvement is illegal in that property is taken without compensation.
In Thornton v. Road Improvement District No. 1, 291 Fed. 518, the court of appeals for the eighth circuit had before it a case involving assessments of benefits in Road Improvement District No. 1 of Clark county, the appeal being from a judgment of the district court of the United States for the eastern district of Arkansas. After benefits were assessed the General Assembly enacted several laws whereby, in effect, it was alleged that resulting taxation was just. In its comments the circuit court said:
“This grossly disproportionate, arbitrary, and excessive assessment of benefits and the taxation based upon it does not constitute that due process of law without which the Constitution of the United States prohibits the taking- of the property of the owner without compensation for public use, and no approving acts or fiats of the Legislature of a state enacted without notice to the owners of the property and without opportunity to be heard before any tribunal upon the merits of the issue could constitute such assessments and such taxation or the act or acts which approved them due process of law or relieve the assessment and taxation from the grossly disproportionate, arbitrary, and excessive character which brings them under the ban of the fourteenth amendment to the 'Constitution.”
Tn Road Improvement District No. 2 of Conway County v. Missouri Pacific Railroad Company, 275 Fed. 600, the court said, in affirming Judge Trieber: “The Legislature did not undertake itself to make the assessment on the property in the district, but it delegated that power to and imposed that duty on the board of the district. And when the Legislature delegates to a board or to commissioners the determination of the question what lands will be benefited, or what the amount of benefits to such lands will be, the inquiry becomes in its nature judicial, in such a sense that property owners are entitled to a hearing, or an opportunity to be heard, after notice, before these questions are determined.”
This is the essence of appellant’s case. It is argued —and not without force — that because the Legislature met January 26 and adjourned February 6, there was not time for a hearing, no opportunity for a committee to examine the district’s plans, or for the members to familiarize themselves with benefits to landowners, or to grasp with understanding the relative elements entering into equitable distribution of costs of the improvements. Appellant says: “This court, in affirming the action of the Perry circuit court, was acting judicially. In so acting it entered a judgment which the Legislature was powerless to amend or reverse. The assessing of benefits and the levying of taxes may be administrative or legislative in character, but when the administrative agency has performed its function and litigation arises concerning the legality of the performance, the administrative process ends and the judicial process begins.”
However logical and appealing argument of appellant’s able counsel may be, it appears that the point has been decided against their views.
McCord v. Welch, 147 Ark. 362, 227 S. W. 765, involved the right to tax certain lands. When District No. 6 was formed, the county court found that the lands (situated in an angle formed by two highways to be constructed by Districts Nos. 6 and 8 in Little River county) would not be benefited by the improvements contemplated by District No. 6. The extraordinary session of February, 1920, passed’a special act making the excluded lands a part of District No. 6. Validity was questioned on the ground of former adjudication by the county court. This court said, in part:
“Conceding [that allegations of the complaint were sufficient to raise the question that the county court had determined, upon organization of the district, what lands would be benefited, or that it determined, on a petition to annex territory, that these particular lands had not been benefited], we do not think such a state of facts is sufficient to defeat the legislative will in determining that these lands will be benefited and in annexing them to the district.”
It was then said that such a determination by the Legislature, in spite of action by the county court “in the character of proceedings referred to,” did not constitute an invasion of jurisdiction. Decision of the county court, it was held, did not destroy power of the General Assembly to determine for itself the question of benefits and creation of the district embracing the territory. “This is so,” says the opinion, “because the Legislature has original power to create local improvement districts and to determine for itself the benefits to be derived from a given improvement, and, since the Legislature possesses the power in the first instance to dispense with the action of the county court in determining benefits, it may disregard such determination by the county court and take tbe subject up anew and determine those benefits for itself. The county court in such proceedings does not act in a strictly judicial capacity in the ordinary sense of the term-, as used in the Constitution, hut the duties thus performed are administrative.”
Missouri Pacific Railroad Company v. Izard County Highway Improvement District No. 1, 143 Ark. 261, 220 S. W. 452, involved assessments made by commissioners. In holding that the county court, in reviewing the assessments, did not act judicially, there is the following statement in the opinion, written by Mr. Justice Wood:
“It will be observed that the power conferred by our statute upon the county court is not to determine whether there should be any assessment, but to equalize and adjust the assessment that has been made by the commissioners. There is nothing in the nature of an adversary proceeding, inter partes, in the assessment made by the commissioners and equalized and adjusted by the county court under the authority of the statute. The duties which this statute devolves upon the county court, as already stated, are administrative and not judicial, although the line of demarcation is very close.”
Other cases relating to power of the General Assembly to make assessments, etc., are Payne v. Road Improvement District No. 1 of Howard County, 149 Ark. 491, 232 S. W. 943; Road Improvement District No. 6 v. St. Louis-San Francisco Railroad Co., 164 Ark. 442, 262 S. W. 26, and Coffman v. St. Francis Drainage District, 83 Ark. 54, 103 S. W. 179.
In Skillern v. White River Levee District, 139 Ark. 4, 212 S. W. 90, the district had been organized and as sessment of benefits entered, in conformity to act 97, approved March 15, 1911. An act of 1917 authorized the district, conditionally, to issue certificates of indebtedness to raise money for repairs'. The General Assembly, by act 166 of 1919, found that “On account of levee improvement and the other work incident thereto, which has already been completed, and which is largely in excess of the improvement originally contemplated by the district, as well as the improvements now in process of completion, the benefits to the real- estate therein, as heretofore fixed and determined, are hereby increased at the rate of six per cent, per annum; such increase of benefits shall be cumulative and shall continue from year to year until the present indebtedness of the district is fully matured and paid.”
It was held that, since the General Assembly had power primarily to determine value of the benefits, “it follows as a necessary corollary to this doctrine that the Legislature may increase the original amount of the benefit assessment whether same was made directly by it or by a board of assessors to which the power had been delegated.”
There was the further statement that exercise by the board of assessors, or the General Assembly, in the first instance, did not exhaust the power “until the purpose in creating the levee district had been consummated. ’ ’
These cases, and others of similar purport, seem to be controlling in respect of appellant’s rights. See Benton v. Nowlin, 187 Ark. 738, 62 S. W. 2d 16.
In the cases relied upon by appellant — particularly in Road Improvement District No. 2 of Conway County v. Missouri Pacific Railroad Company, supra, action of the Legislature was clearly arbitrary. By act 308, approved February 23, 1920, the railroad company’s assessment was singled out for an increase from $2,767.50 to $25,000. The original benefits determined by commissioners had been $25,000, but were reduced. The district contended that a representative of the company proposed an assessment of $125 per mile ($2,767.50), and that as an inducement such representative volunteered to use his influence to persuade the company to make certain facilities available to the district.
Under the law as announced in applicable cases, we are not dealing’ with a situation where capricious conduct controlled; nor was there an invasion of the judicial province, since work of the assessors, and of the court in reviewing, was ministerial. Of course the circuit court acts judicially in reviewing action of the county court from assessments; but the circuit court in appealed cases merely determines, as a matter of law, whether the county court, acting ministerially, abridged rights of landowners when it reviewed administrative duties of the assessors.
Third. — We are also of opinion that appellant is estopped to contest validity of the bond issue. Act 138, although approved February 18, 1920, provided that taxes for the current year should be collected under the old assessment; hence, the first payment under the advanced schedule was not due until 1921. There was ample time, after the act became effective and before bonds were sold, to contest its validity, but instead of applying to the courts for injunctive relief — a proceeding which undoubtedly would have delayed payment by purchasers of bonds until the issue had been determined — appellant’s predecessors in title remained quiescent, and not until the 1937 installment of benefits had been paid did it occur to appellant that relief might be procured judicially. In the meantime money of those who bought the bonds had been used to complete the improvement.
It may be argued (in view of this decision) that in so far as state courts are concerned there would have been no relief if action had been taken in 1920, or prior to payment of the first increased assessment in 1921, or before bonds were sold. But this does not follow as a necessary result, even though we now hold that the Legislature did not act capriciously. It must be presumed that if injunctive relief had been prayed, proof would have been supplied relative to benefits. We do not hold that the lawmakers could not, in any instance, act arbitrarily. The contrary has been affirmed. What we do say is that the record before us does not sustain the charge of arbitrary and capricious conduct when action of the General Assembly is gauged by the opinions cited.
Affirmed.
The court heard testimony and made a personal inspection of the lands. Reductions affected approximately forty landowners.
John S. Harris, B. E. Cragar, and G. B. Colvin.
A tabulation accompanying the stipulation of facts shows the highest annual apportionment to have been 8.7 per cent., and the lowest 3 per cent.
Bonds outstanding are: First issue, $31,500; second issue, $6,000; third issue, $1,500. Delinquent interest amounts to $12,000. There is an allegation in the complaint of Juliet Sharp Benecke that all principal bond maturities up to and including 1930 were paid when due; that the district x>aid interest to March 1, 1932; that since 1932 bond- maturities had not been paid in due course, but that the district had used tax' money to buy bonds at a discount, and that no interest had been paid as it matured since 1932.
Extraordinary session of the General Assembly, commencing January 26, and ending February 6, 1920.
“It is hereby ascertained and declared that the assessment of benefits- of Cypress Drainage District of Perry and Conway counties is equitably proportioned among the property owners, but that the same is inadequate in amount to represent the true benefits that will be derived from making the improvements contemplated by the district, and the circuit, clerk of Perry county is hereby required to make out two new books of assessment, one for each county, which will be in all respects identical with the assessment of benefits now on file, except that each assessment of benefits will be increased by fifty per cent, of the amount of the present assessment, and when said books have been prepared, he will certify the same and deliver them to the county clerks of the respective counties, to the end that the taxes of said district may be entered upon the tax books of the respective counties.
“The drainage taxes to be collected during the year 1920 will, however, be collected upon the old assessment of benefits as it now stands.”
“The governor may, by proclamation, on extraordinary occasions convene the General Assembly at the seat of government, or at a different place, if that shall have become since their last adjournment dangerous from an enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened, and no other business than that set forth therein shall be transacted until the same shall have been disposed of, after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.”
The same session enacted the measure questioned by the instant appeal.
Road Improvement District No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825.
165 Ark. 13, 263 S. W. 42.
See State Note Board v. State ex rel. Attorney General, 186 Ark. 605, 54 S. W. 2d 696; Crawford County Levee District v. Cazort, 190 Ark. 257, 78 S. W. 2d 378; Smith v. Refunding Board, 191 Ark. 1, 83 S. W. 2d 76; Pope v. Oliver, 196 Ark. 394, 117 S. W. 2d 1072; McCarroll, Commissioner of Revenues v. Clyde Collins Liquors, Inc., 198 Ark. 896, 132 S. W. 2d 19; Arkansas State Highway Commission v. Dodge, 186 Ark. 640, 55 S. W. 2d 71.
Kansas City Southern Ry. Co. v. Ogden Levee District, 15 Fed. 2d 637-39; Gibson v. Spikes, 143 Ark. 270, 220 S. W. 56; Coffman v. St. Francis Drainage District, 83 Ark. 54, 103 S. W. 179; Davis v. Chicot Drainage District, 112 Ark. 357, 166 S. W. 170.
Alexander v. Board of Directors Crawford County Levee District, 97 Ark. 322, 134 S. W. 618; Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; Kelley Trust Company v. Paving District No. 46 of Ft. Smith, 184 Ark. 408, 43 S. W. 2d 71; Johnson v. Kersh Lake Drainage District, 198 Ark. 643, 131 S. W. 2d 620, 132 S. W. 2d 658, 309 U. S. 485, 60 S. Ct. 640, 84 L. Ed. 881, 128 A. L. R. 386.
The court cited Road Improvement District No. 2 v. Missouri Pacific Railroad Company, (C. C. A.) 275 Fed. 600. [The litigation in the Thornton Case related to a road district formed in Clark county. Another road was added to the district’s plans. It paralleled one side of lands assessed in the original district. The district, in assessing benefits incidental to the new road, assessed only the new lands added. The result was that (for the new road) lands which abutted on it on one side were assessed, while lands abutting the other side were not. The Legislature passed an act confirming the arrangement. It was attacked as being arbitrary and capricious].
Hill v. Martin, 296 U. S. 393, 56 S. Ct. 278, 80 L. Ed. 293; Boom Company v. Patterson, 98 U. S. 403, 25 L. Ed. 206.
Italics supplied.
Cf. Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, 204 S. W. 630.
Appellant contends that all laterals were not dug, and that there was insufficient dredging as to a part of the main channel. The agreed statement, however, concedes that such failure only slightly reduced efficiency of the main undertaking. | [
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Smith, J.
George T. Carnall recovered judgment for a commission alleged to have been earned by him as a real estate broker upon the sale of a lot in the city of Fort Smith owned by appellant. Carnall died since the trial and the cause was revived here in the name of his administrator. The testimony is to the effect that Carnall was given an agency to sell this property, but it is undisputed that he did not have an exclusive agency. He was advised that Phillips & Henderson, real estate agents, also had the property listed with them for sale. Appellant authorized Carnall to sell the property for $22,000 and Carnall urged that $19,500 be accepted, but this appellant declined to do.
The testimony is sufficient to support the finding that Carnall interested Fagan Bourland in the purchase of the property, but Bourland was unwilling to purchase unless he could buy an adjoining lot. A contract was closed between Phillips & Henderson and Bourland for the purchase of 'both lots for $41,000 of which sum $20,000 was paid for appellant’s lot and $21,000 for the other.
Twenty-one thousand dollars was the lowest price for which Carnall was ever authorized to sell, although he testified that, if permitted to do so, he would have sold it to Bourland for $21,000, and that Bourland agreed to pay that price, but the agreement was conditioned upon the sale of the adjoining lot, an arrangement which Carnall could and would have been able to make had appellant dealt impartially between him and Phillips & Henderson, his competitors.
The court gave at Carnall’s request only one instruction, this being an instruction numbered 6. Other instructions requested by Carnall were refused. All other instructions were given at the request of appellant or upon the court’s own motion, these latter being what might be called the usual instructions in civil cases relating to such questions as burden of proof, etc.
The instruction given at Carnall’s request reads as follows: “6. Where the landowner places property in the hands of more than one broker, the broker actually consummating the sale is entitled to the commission to the exclusion of the other brokers, and the landowner is not liable to such other brokers, if such landowner has preserved strict neutrality as between the brokers and has not given one the advantage over the other.”
Appellee insists that there is only one question in the case, and that is whether appellant maintained neutrality as between the brokers, and appellant concedes this to be true. Under the instruction above copied the jury must have found that appellant did not maintain neutrality, otherwise the verdict would necessarily have been returned in appellant’s favor, as it is undisputed that Phillips & Henderson made the sale.
We think the testimony is sufficient to support this finding. It is undisputed that the first contact with Bourland as a prospective purchaser was made by Carnall, and according to his testimony he would have made the sale, had he been permitted to do so, at an even larger price than was paid for the lot. But, whether this be true or not, the testimony is sufficient to support the finding, if, indeed, it is not undisputed, that appellant accepted a lower price than that for which Carnall had been authorized to sell. Had Carnall made the sale he would have expected and would have been paid a commission of 5 per cent. Appellant admits that she paid Phillips & Henderson a commission of only $750 for the sale of the property.
In the case of Murray v. Miller, 112 Ark. 227, 166 S. W. 536, Ann. Cas. 1916B, 974, it was said by Chief Justice McCulloch that “Glood faith and strict neutral ity on the part of the owner as between the rival agents seeking to make the sale is the test of the owner’s liability. The authorities are practically unanimous on that proposition. (Citing cases.) ”
We think the facts stated, if found by the jury to be true, were sufficient to support the finding that appellant did not preserve neutrality and thus enabled Phillips & Henderson — rather than Carnall — to make the sale which Carnall would otherwise have made, and the judgment must, therefore, be affirmed,, and it is so ordered. | [
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Smith, J.
The Sebastian Bridge District was organized under act 104 of the Acts of 1913, p. 380. Appellant owned lot 18, block 2, Fishback Addition No. 2 to the city of Fort Smith, which lot was subject to the taxes levied by the bridg-e district. She failed to pay taxes due the district, and by appropriate foreclosure proceedings the lot was sold to the district, which, on September 17,1940, conveyed the lot to appellees for the consideration of $11.22, this being the total amount of the tax, penalty, interest and costs due on the lot.
Appellant filed a pleading which she called an intervention in the foreclosure suit on February 14, 1941, in which she tendered the full amount-of the tax, etc., for which the lot sold, and prayed that she be allowed to redeem her lot. This relief was denied her, and from that decree is this appeal.
The sale is first attacked upon the authority of the case of Haglin v. Hunt, 187 Ark. 480, 60 S. W. 2d 561. There, two lots were assessed and sold in solido to an individual for the taxes due the Sebastian Bridge District. The.sale was set aside by the court below — and that decree was affirmed by this court — it being held that the sale was not made in the manner required by law. We held that the commissioner making the sale should have offered, first, one lot, and then the other, to ascertain if any one would pay the taxes on both lots for one or the other of them, and that both lots should not have been sold unless it appeared that no one would bid the taxes, etc., for less than the whole amount against both lots. Here, however, only one lot was sold, and the sale was to the district, as authorized by act 104 of 1913, because no one bid the amount of the taxes, etc., due on the lot. It is not to be assumed that if no one would pay the taxes, etc., for the whole of the lot, some one might have paid the taxes, etc., for a fractional part of it.
Section 29 of the act provides: “The property shall be offered to the person who will' pay the assessment, penalty and costs for the least amount of said land; and, if none should offer the amount of the assessment, penalty and costs then the delinquent land shall be stricken off to the bridge district and a deed shall be made to it in like manner as to an individual purchaser. And it shall be lawful for said district to hold such land until such time as it may be sold advantageously, in the judgment of the commission. ’ ’
The authority for selling to the district arose'out of the failure of any individual to buy the lot at the sale, and as no one offered to buy the lot “the delinquent land” was stricken off to the bridge district. In that event, the delinquent land or lot, and not some fractional part of it, is stricken off to the district, and that was done here, so that the Haglin case, sufra, has no application.
The lot was sold September 11, 1939, and the intervention ' (which, in effect, is an application to redeem) was filed February 14, 1941, so that more than one year had elapsed between the date of the sale and the date of the offer to redeem, and it was held that the offer to redeem had not been made within the time allowed by act 104, under the provisions of which the lot had been sold, and the intervention was dismissed as being without equity.
Section 32 of act 104 provides that ‘ ‘ The owner may redeem from the purchaser at any time within one year after the sale, by paying him the amount paid by him with twenty per cent, thereon, which redemption shall be noted upon the margin of the decree by the purchaser.”
The insistence is — and the finding by the court below was — that the right of redemption must have been exercised within the time allowed by the act under the provisions of which the lot was sold, and that the provision in regard to redemption is unaffected and unchanged by later legislation.
Appellant asserts the right to redeem under any one of several sections of the Digest, § 7331, Pope’s Digest, among others. This section was enacted as act 252 of the Acts of 1933, p. 790; but ive do not think it applicable to this case, for the reason that its provisions are limited to municipal improvement districts, and the Sebastian Bridge District is not a municipal improvement district. Municipal improvement districts are those districts organized by the governing agency of the city or town or municipality in which they are located and of which they are a part, or the whole thereof, such as streets, sewers, waterworks, etc. Districts which include and impose taxes upon lands, both rural and urban, are not municipal improvement districts. These are road, bridge, levee, drainage, fencing, etc., districts. Butler v. Board Directors Fourche Drainage District, 99 Ark. 100, 137 S. W. 251. The Sebastian Bridge District includes, not only the entire city of Fort Smith, but includes also the whole of the Fort Smith District of Sebastian county, and is not, therefore, a, municipal improvement district, and the provisions of § 7331, Pope’s Digest, are inapplicable for that reason. Moreover, § 7331, Pope’s Digest, is identical with and was enacted as act 252 of the Acts of 1933, to which act further reference will be made.
The right of redemption is asserted also under the provisions of § 5644, Crawford & Moses’ Digest.
This section was a part of act 43 of the Acts of 1915, p. 123, entitled, “An Act to regulate sales by Commissioners in Chancery for special assessments and redemptions therefrom.” The act consists of a single section, yet it was broken into and appears as three sections in Crawford & Moses’ Digest, to-wit: Sections 5642, 5643 and 5644. Of these several sections, §§ 5642 and 5643 are carried forward in Pope’s Digest, where they appear as §§ 7329 and 7330, respectively. Section 5644, Crawford & Moses’ Digest, is omitted from and does not appear in Pope’s Digest.
The Digester has this note appearing between §§ 7329 • and 7330, Pope’s Digest: “This act was repealed by act 129 of 1933, but the repealing act was held void by the Supreme Court of the United States in W. B. Worthen Co. v. Kavanaugh, 295 U. S. 56, 55 S. Ct. 555, 79 L. Ed. 1298, 97 A. L. R. 905, in a suit involving bonds issued before its passage, reversing W. B. Worthen Co. v. Delinquent Lands, 189 Ark. 723, 75 S. W. 2d 62. See, also, Arkansas Mortgage & Securities Co. v. Street Improvement District, 191 Ark. 487, 86 S. W. 2d 917.”
Act 129 of the Acts of 1933, p. 375, is entitled, “An Act to repeal § 5642 of Crawford and Moses’ Digest.” This act, in its entirety, exclusive of the emergency clause, reads as follows: “Section 1. Section 5642 of Crawford & Moses’ Digest is hereby repealed.”
This repealing act, No. 129, along with acts 252 and 278, passed at the same session of the General Assembly, was invalidated by the decision of the Supreme Court of the United States in the Worthen case, supra.
With the holding of that court in that case that acts 129, 252 and 278 of 1933 were invalid in their application to existing contracts, there remained some inquiry whether those acts were totally invalid, or could be separated in their applications to situations not affected by the contract clause of the national constitution. In other words, could the provisions of those acts be applied to situations where no contracts existing prior to their enactment would be affected?
In Arkansas Mortgage & Security Company v. Street Improvement District 419, 191 Ark. 487, 86 S. W. 2d 917, in making a passing reference to the decision of the Supreme Court of the United States in the said Worthen case, this court referred to it as holding that acts 129, 252 and 278- of 1933 were invalid so far as they affect existing bonds; having no occasion to consider the question further.
It is common knowledge that the work of the improvement districts affected by those acts was done with borrowed money realized from bond issues extending over long periods of time; and that the maturities of many of those bond issues had been extended beyond the original dates. As a matter of law, the contract rights of the original bond issues would be carried forward in the refunding issues. Arkansas Mortgage & Security Co. v. Street Improvement District No. 419, supra.
In the situations described it is evident there would be few instances where the said acts of 1933 could be applied without violating contract rights in existence before those acts were passed; and that an effort to so apply them would result in the utmost confusion. It could not be presumed that the Legislature would have enacted those statutes in their general terms, and intended they should be applied only to the very limited field where contracts would not be affected.
Again, this situation is a proper one for the application of the principle that a questioned statute must be valid as it affects all that its terms embrace, or altogether void. U. S. v. JuToy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; Baldwin v. Franks, 120 U. S. 678, 7 S. Ct. 656, 32 L. Ed. 766; Replogle v. Little Rock, 166 Ark. 617, 267 S. W. 353, 36 A. L. R. 1333.
The insistence of appellees is that the effect of the decision in this Worthen case, supra, by the Supreme Court of the United States was to invalidate the entire act of 1915, supra, appearing as §§ 5642, 5643 and 5644, Crawford & Moses ’ Digest.
The opinion of this court in the case of W. B. Worthen Company v. Delinquent Lands, 189 Ark. 723, 75 S. W. 2d 62, rendered October 15, 1934, did not regard the repeal of § 5642, Crawford & Aloses’ Digest, (which was accomplished by act 129, approved March 21, 1933), as rendering § 5644, Crawford & Moses’ Digest, ineffective, for it was there said: “Section 5644 of Crawford & Moses’ Digest, which is a section of the municipal improvement district act of 1915, by plain terms gives to property owners in all such districts five years in which to redeem from such sales.”
The decision of the Supreme Court of the United States, in the Worthen case, supra, did not strike down § 5644, Crawford & Aloses ’ Digest, which does not appear in Pope’s Digest.
There was passed, at the 1925 session of the General Assembly, act 359, p. 1058, § 2 of which reads as follows: “Hereafter all'persons shall have the right to redeem from the sale for taxes of road, drainage, levee or other improvement districts at any time within two years from the date when such lands are sold by the commissioner making the sale, and not thereafter; provided that the provisions of this section shall not apply to property which shall have become delinquent or have forfeited prior to the passage of this act.”
It was said of this act in our Worthen case, supra, that: “Section 2 of act 359 of 1925 needs no interpretation. It provides that it is applicable to ‘road, drainage, levee of (or) other improvement districts? Had it been intended to apply to paving, sewerage, water and such municipal districts, the Legislature could and would have so said in plain language. The only conceivable reason asserted as to its applicability to municipal improvement districts is ‘of (or) other improvement district,’ but this phrase has reference to other improvement districts of the same kind as those specifically enumerated. The rule of ejusdem generis has ever been applied by us under such circumstances. (Citing numerous eases.)”
It would appear, therefore, that the time of five years allowed by § 5644, Crawford & Moses’ Digest, for redemption from any sale for improvement district taxes has been reduced, in cases to which act 359 applies, to two years; but as act 359 does not apply to municipal improvement districts, the five years, allowed by § 5644, Crawford & Moses’ Digest, for redemption from sales by municipal improvement districts, remains unchanged.
The Sebastian Bridge District — not being a municipal improvement district — is of the class of improvement districts to which act 359 does apply, and two years are, therefore, allowed, from the date when lands are sold for the nonpayment of the bridge assessments, in which to redeem. Appellant offered to redeem within that time, and should be permitted to do so, upon complying with the provision of § 32 of act 104, above quoted. The subsequent legislation extended the time within which redemption might be effected, but did not change the manner in which that right might be exercised.
It is insisted that the General Assembly has not changed, and is without power to change, the period of redemption allowed by act 104, supra, under which the district was formed and assessments levied. "We have frequently held to the contrary. In the recent case of Baur v. Gwaltney, 191 Ark. 1030, 88 S. W. 2d 1005, it was said: “We have several times held that the Legislature may enlarge the period of redemption or extend the time in which redemption may be effected at any time during the redemption period as fixed by the former statute where the sale has been to the improvement district and not to a private individual. (Citing cases.) ”
The sale here was to the district, and § 2 of act 359 of the Acts of 1925, under which we here hold redemption permissible, was passed long before the sale.
In his excellent work, Improvement Districts in Arkansas, Mr. Sloan says, at §1177, p. 1022, vol. 2, that “The redemption provisions in the general local assessments laws enacted prior to February 9, 1915, were, it seems, impliedly repealed by the 1915 act which is applicable to ‘all special assessment districts of every kind’ and provides: . . . Section 5644, Crawford & Moses’ Digest, is then quoted in full. ’ ’
After quoting § 5644, Crawford & Moses’ Digest, Mr. Sloan then proceeds to say: “Since the road improvement and the road maintenance statutes were passed afterwards, their special provisions on the right of redemption will, at least to the extent that they conflict with the 1915 act, govern.”
In the recent case of Person v. Miller Levee District No. 2, ante p. 173, 150 S. W. 2d 950, there was involved the right to redeem from a sale for delinquent levee taxes due the levee district, which had been created under a special act passed in 1911, which act allowed one year in which to redeem from sales for delinquent taxes. Act 69 of Acts of 1911, p. 89. Opposing eminent counsel mutually conceded that the period of redemption from that sale was two years, and we assumed, without expressly deciding, that that was the permissible period, but that question was not decisive of the case.
This is the period of time fixed by § 2 of act 359 of the Acts of 1925, sivpra, which we think applies here, and as the offer to redeem was made within two years from the date of sale, the decree of the court below will be reversed, and the cause is remanded with directions to grant that right.
The sum total and the effect of the views here expressed is that redemption from sale for municipal improvement taxes may be made, under § 5644, Crawford & Moses ’ Digest, within five years, except in the case of any district, if such there be, where a different period of redemption has been provided by subsequent legislation; and, subject to the same exception, tbe period of redemption from other sales for improvement district taxes is two years.
Holt, J., not participating. | [
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Griffin Smith, C. J.
Judgment for $660 for rent due on residential property owned by S. M. Acker, deceased, was procured by the administrator. It is questioned on grounds shown in the footnote.
The complaint alleged (and the answer admitted) representative capacity of the administrator and other jurisdictional matters. The answer alleges that in October, 1934, the appellant’s wife rented the property from Mrs. Ethel Acker (wife of the decedent) at $30 per month, on condition that the premises be kept in the condition they were in when possession was taken. Payments were made to Mrs. Acker for six months. Soon thereafter, the answer alleges, a controversy arose between Mrs. Acker and the administrator, each claiming the right of collection. It is further alleged that appellant did not personally contract with the administrator for use of the property, but continued to reside therein under the purported agreement between Mrs. Acker and Mrs. Dunklin. This contract, according to the answer, was ratified by the administrator when (August 7, 1937) he represented to appellant that unless part payment of rents should be made the property would forfeit for taxes. Acting upon such representation, “and'upon agreement of the plaintiff to comply with terms of the contract [made by Mrs. Dunklin'with Mrs. Acker], defendant paid plaintiff the sum of $600.”
It is then alleged that the representations regarding impending tax forfeitures were untrue, and that the administrator failed to abide the agreement to make repairs. A personal debt of $67 due by Mrs. Acker to appellant (who is a physician) was alleged, together with an item of $44.82 for repairs.
Finally, the defense interposed was that through failure of the administrator to maintain repairs, rental value of the property was less than $25 per month. It was conceded that $338.18 was due.
January 24, 1940, the court determined, as a matter of law, that the answer did not state a defense. The defendant refused to plead further, and the court adjudged that the answer be dismissed and stricken from the files. Defendant excepted. The appeal was lodged in this court February 28, 1941 — more than a year after judgment was rendered on the demurrer.
In the meantime (September 2, 1940) the pending complaint was called to the court’s attention. The record recites: “. . . The [case of T. A. Watkins, Administrator, v. A. J. Dunklin] came on for hearing . . . and all parties announcing ready for trial, a jury was empaneled and . . . evidence was taken and proceedings had.”
The administrator testified that he let the property to appellant at a monthly rental of $30, beginning in April, 1935, and that it was so occupied until October, 1939. Payment was made for 48 months, and “$645 would be due if lie owes fractional months; if he owes full months, it is $660.” No notice was given by the tenant that he expected to move.
On cross-examination appellant’s attorney asked: “When did you rent [the property] to him?” The question was objected to. The ruling was: “The only question for the jury to determine is the actual amount.” Appellant’s attorney:.“Note our exceptions.” The witness was excused.
Appellee’s attorneys then requested an instructed verdict for $660, which was given. Exceptions were saved.
It is first insisted that the court erred in sustaining the demurrer to appellant’s answer. The judgment of September 2, 1940, recited that the defendant appeared by his attorney and announced ready for trial. There is nothing in the record to sustain appellant’s second assignment — that the court erred in refusing to permit the defendant to file an answer after the case was called. There may have been such refusal, but we must rely upon the transcript, and it does not contain anything suggestive of a request of this nature. It therefore appears that the defendant continued to stand on his' right to contest, by appeal, the court’s action of January 24 in sustaining the demurrer to the answer and in directing that the answer be stricken from the files.
We do not determine whether the court’s ruling on the demurrer was proper. It was a final order, and appealable. In Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 433, 139 S. W. 289, there had been an order sustaining a demurrer to the complaint. It was held that this, alone, was not a final judgment for the reason that the plaintiff, after the demurrer had been sustained, had the right to amend the complaint. ‘£ The plaintiff may, however,” says the opinion, ££ elect to stand upon his pleading and refuse to amend his complaint. Until the plaintiff makes such an election and refuses to amend his complaint, the decision and order of the court sustaining a general demurrer thereto do not constitute a final judgment in the action. 'Blit when the plaintiff has elected not to amend his complaint, then the adjudication of the court sustaining the general demurrer thereto does become a final determination of the issue of law deciding the merits of the case, and it is then a final judgment which can be set aside only upon appeal.”
In January, 1940, the court found, as a matter of law, that the defendant’s answer did not state a defense. As far as the record reflects, the defendant, whose answer had been dismissed, was insisting then, and in September, that the court’s January order was erroneous. He could not, therefore, participate in a trial under an answer that did not exist in contemplation of law. It seems that as a matter of courtesy, but not of right, the court permitted appellant’s attorney to ask certain questions; and it is now insisted that effect of the court’s ruling in response to an objection by one of appellee’s attorneys was to deprive appellant of the right to cross-examine the administrator, the question being, “when did you rent the property?” ;
The court did not hold the inquiry to be inadmissible. On the contrary, it held that the only question for the jury’s determination was the amount of the debt. Without explaining the purpose of the question (which was appropriate in determining what sum was due), appellant’s attorney asked that his exceptions be noted. It is clear the court’s ruling was that testimony relating to the amount due was admissible. Appellant, however, discontinued the examination with the request that his exceptions be noted; nor did he offer evidence contrary to that given by the administrator.
The fourth assignment is that the court refused to permit the defendant to offer testimony. Even if this right had existed in the absence of an answer, the record fails to sustain the contention that there was such refusal.
In the absence of testimony contradicting the administrator, the court correctly instructed a verdict for $660.
This is not an action for damages, and the cases cited by appellant relating to procedure essential in determining extent of liability are not applicable.
For failure to perfect the appeal within six months from date of order sustaining the administrator’s demurrer to the answer, and because the testimony of the administrator was uncontradicted, the judgment is affirmed.
“Because the court erred in sustaining the demurrer of the plaintiff to the defendant’s answer. (2) Because the court erred in refusing to permit the defendant to file answer after the case was called. (3) Because the court erred in refusing to permit the attorney for the defendant to cross-examine the plaintiff. (4) Because the court erred in refusing to permit the defendant to offer testimony. (5) Because the court erred in giving oral instructions directing a verdict for judgment of $660 over the objections of the defendant.” 1 | [
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Grieein Smith, C. J.
Appellee was insured if Ms International truck should be burned, the amount recoverable under the policy not to exceed actual value “at the time of loss or what it would then cost to repair or replace the insured property, or any part thereof with other of. like kind or quality. . . . ”
The truck collided with a bus and was set ón fire. There was no collision insurance.
Judgment for $750 is questioned on the ground that evidence does not support the verdict, that the 'court abused its discretion in-permitting a witness to be recalled by the plaintiff, that plaintiff’s fifth instruction as amended is erroneous, and that penalty and attorney’s fee should not be allowed.
Appellee testified the truck cost $1,550. It had been “overhauled,” and was in good condition.
J. E. Richardson, operator of a garage since 1924, had bought and sold many trucks. Three or four months before the fire he installed a new motor in appellee’s truck. After the collision and fire witness made an inspection and estimated separately the damage caused by collision, and that occasioned by fire. Thereafter he procured prices from the manufacturer and from the Davis Wrecking Yard, and concluded all parts damaged by collision could be replaced for $210. Difference between collision damage and fire damage “was in the neighborhood of $790 or $800 — that is my opinion as to dollars and cents. ’ ’ When asked the direct question, “What was the fire damage to this truck,” Richardson replied, “About $790.” There was an objection with exceptions to the court’s ruling, but grounds of objection were not stated.
At the conclusion of all the testimony appellant offered to confess judgment for $90. Richardson was then recalled by appellee, over objections and exceptions by appellant. He again testified that the fair market value of the truck before collision was $1,000, that collision damage was $210, and that fire damage was $790, less a salvage value of $25 or $30.
A witness for appellant who estimated the fire damage testified replacement parts would cost $104.13 and labor $17.25, or a total of $121.38.
When counsel for appellee asked that the witness Richardson be recalled, and there was objection, the court (when told that appellant’s witnesses had been excused for the day) indicated the case would be continued, or that time would be given to recall any witness whose testimony might be essential. In view of the attitude of the court, as reflected by the sixth footnote, there was no abuse of discretion. Effect of the testimony given by Richardson on recall was not at substantial variance from that formerly given.
It is impossible to determine here whether witness who testified for appellant, or those who were called at the instance of appellee, were candid; or, if all were frank, which group possessed superior mechanical knowledge. If appellee and Richardson are to be believed, the fire damage was $790, less salvage value. On the other hand, if appellant’s witness Sweatman was correct, fire damage was $121.38. Questions of fact are for the jury, when submitted under proper instructions. On appeal we do not reverse judgments if they are supported by substantial testimony, although it is the trial court’s duty to set verdicts aside if not sustained by a preponderance of the evidence. We cannot say there was not substantial testimony in the instant case.
Complaint is that plaintiff’s Instruction No. 5 is in conflict with defendant’s Instruction No. 2, that it is confusing and misleading, and does not instruct the jury what the measure of damage is. We agree with appellant that it was not necessary to have the jury “take into consideration the evidence, if any, showing the fair market value of the truck before the collision.” Actual damage by fire was the test. But Richardson’s testimony that before collision the truck was worth $1,000, and that collision damage was $210, is equivalent to saying that fire damage was $790, less salvage value. Instruction No. 5 is not what is termed a “binding” instruction, and is to be read in connection with others. We do not think the jury was misled because of variance between Instructions Nos. 2 and 5 in phraseology.
Finally, it is insisted that the statutory penalty of 12 per cent., and an attorney’s fee, should not be allowed because the plaintiff’s recovery was $750, and he had testified to an offer of $50 for the salvage. If $50 should be deducted from $790, the result would require this court to direct a remittitur of $10 from the judgment of $750; therefore, it is argued, the amount recovered would be $10 less than the sum sued for.
The verdict was not specifically objected to on the ground urged, nor is the error expressly brought forward in the motion for a new trial. The court’s majority is of the opinion that item No. 2 in the motion — “the verdict is contrary to the evidence” — did not sufficiently bring the question to the trial court’s attention. The judgment is therefore affirmed.
Plaintiff testified he could have sold the truck for $850 “before it was put in good shape.” The truck bed was made for use in hauling cattle and cost $85. Twelve head of cattle burned. Appellee was offered $50 “by the Diamond-T. man” as salvage value of the truck.
The estimate on collision damage contemplated new parts, other than frame. Quotation on the frame was from the wrecking yard.
In- apparent conflict with his testimony as to fire damage is the statement by Richardson: “The fire damage to the truck — the cab, the body was completely burned — almost burned up. . All of the body was practically burned off. You couldn’t tell anything that could be a collision- — it was burned up, all but a little part of it. You couldn’t tell what the collision damage was. . . .”
Presumably the objection was to the indefinite nature of the answer — “about.”
The statement was: “The defendant hereby offers to confess judgment for $90 . . . for the reason the limit of liability of the defendant is the actual cash value of the truck after the collision and immediately prior to the fire, and $90 is the highest estimate of the value shown by the undisputed evidence.”
The record reflects the following: Mr. Isgrig: “We are not raising a new issue. The witnesses have testified [as to the measure of damages] already.” The Court: “The Court will hold if you have to have [the witnesses] if the record does not show the testimony in there — what you have shown by your witnesses the Court will suspend —.” Mr. Coffelt: “At the present time the .Court overrules the motion?” The Court: “Yes.” Mr. Coffelt: “Save our exceptions.”
“You are instructed that if you find for the plaintiff you will assess his damages at such a sum as may have been shown by • a preponderance of the evidence to be the amount of the damages sustained to the plaintiff’s truck by fire. In arriving at the damages you will take into consideration the evidence, if any, showing the fair market value of the truck before the collision, its fair market value after the collision and before the fire, and the fair market value after the fire, taking all these things together, and with all the evidence in the case.”
“You are instructed that the defendant is-not liable for the damage caused by the collision, but is liable only for the damage caused by the fire. The policy provides that the limit of liability is the actual cash value at the time the loss occurs, or the reasonable cost of repairs not to exceed the actual cash value. Therefore, the plaintiff is entitled to recover only the actual cash value of the truck after the collision occurred, and prior to the time of the fire, or the cost of reasonable repairs made necessary by the fire less the value of the truck after the fire as shown by the evidence. You will determine and fix the damage suffered by plaintiff due to fire, if any.” | [
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Holt, J.
Appellant, Weaver Graham, was charged in an information with burglary and grand larceny. A jury acquitted him on the count charging the crime of burglary, but convicted him on the count charging grand larceny and assessed his punishment at two years in the state penitentiary. No brief appears here for appellant.
The record reflects that appellant filed motion for a new trial, setting up seven grounds. The trial court denied the motion, and this appeal followed.
Grounds one, two and three questioned the sufficiency of the evidence to support the jury’s verdict. The testimony on the part of the state (appellee here) discloses that appellant confessed to the arresting officer that he entered the store, which he was charged with having burglarized, and took the officer to the place where the stolen articles were concealed. Appellant concedes that he made the confession voluntarily.
The deputy sheriff, to whom appellant confessed, testified that sometime in the fall of 1939 the store of O. D. Jacobs, located in the old bank building at Lamar, Johnson county, Arkansas, was broken into; that he arrested appellant, who made a voluntary statement to him; that he did not promise appellant any immunity or anything of that nature to induce him to make the statement; that while he was taking appellant to Lamar, appellant said, “ ‘Just stop here,’ and he told me all about it. He told me the ones that broke in. I said, ‘Let’s go back and get the merchandise. ’ Went back east of the house, there is a big hill. After we got part of the merchandise he said that the watch was down under the hill south of there by an old log under a rock. We went down there and fooled around a minute and came up to this rock by a little persimmon bush, turned the rock over and got the watch out. Then I brought him up to C. D. Jacobs ’ store and left the merchandise there, took an inventory of what we had found. Then I took him around behind the store and he showed me a stick, had a long stick, looked like a two by two, that they used to break the glass out with and reach in and open the door.”
The owner of the store, 0. D. Jacobs, testified that his store was burglarized on the 20th of November; 1939, and that there were two watches, tobacco, and other articles missing from the store the following morning. He further testified that the value of the missing articles was between $50 and $60.
It is our view that the evidence was ample .to support the conviction.
The rule is well established that the confession of one charged with the commission of a crime, when coupled with proof that the crime was actually committed by someone, constitutes sufficient evidence to support a conviction.
In one of our leading cases on this question, Greenwood v. State, 107 Ark. 568, 156 S. W. 427, the rule is announced as follows: “In the case of Melton v. State, 43 Ark. 367, the court held that the confession of a prisoner accompanied with proof that the offense was actually committed by someone will warrant his conviction. That is to say, under our statute to warrant a conviction upon an extrajudicial confession of the accused, there must be independent evidence to establish that the crime has been actually perpetrated by someone. In the instant case there was independent testimony which showed that the deceased had been killed by someone and the circumstances independent of the confession strongly pointed to the defendant as the person guilty of the crime. ...”
And later in Thomas v. State, 125 Ark. 267, 188 S. W. 805, this court again announced the rule in these words: “Appellant strongly insists that the evidence is insufficient to support the verdict. This cannot be true, however, if the confession is to be accepted. The owner of the store described the manner in which it was burglarized, and enumerated various articles which were stolen, and pursuant to appellant’s confession some of these goods were located at the place where he had stated they would be found.”
' In grounds four and five, appellant attacks the verdict on the ground that it was reached by compromise and because only five members of the jury agreed to the ver diet on condition that appellant be given a suspended sentence. Upon a search of the record we have been unable to find anything to show that the verdict was reached by compromise.
It is true that the verdict, as returned by the jury, had written, on it in pencil, “We, the jury, recommend suspended sentence.” Upon observing the form of the verdict, the trial court interrogated the jury as follows: “By the Court: I notice that you recommend a suspended sentence. Are you just making that as a recommendation? By one of the Jurors: Yes, sir. By the Court; That is an unconditional verdict? By one of the Jurors: Yes, sir.”
This court has many times held that the trial court is not bound to comply with the request of a jury that a sentence be suspended. The court has the authority to ignore the recommendation and impose sentence. In one of our late cases, that of Criglow v. State, 183 Ark. 407, 410, 36 S. W. 2d 400, this court said: “The jury returned a verdict of guilty and fixed the punishment at three years ’ imprisonment in the penitentiary, and recommended that the sentence be suspended. It is insisted that this recommendation rendered the verdict illegal, indefinite and void. We held to the contrary in the case of Clarkson v. State, 168 Ark. 1122, 273 S. W. 353, where sentence was imposed notwithstanding the recommendation of the jury that it be suspended. We there said: ‘Under act 76, Acts 1923, p. 40, circuit judges are authorized, under certain circumstances, to suspend the sentences of convicted persons, but the act vests this discretion in the judge, and not in the jury. It would, of course, be proper for' the court to consider any recommendation the jury might make in the matter, but the jury can only recommend and cannot control the discretion vested in the judge. Kelley v. State, 133 Ark. 261. 202 S. W. 49’.” See, also, Boatright v. State, 195 Ark. 611, 113 S. W. 2d 107.
In the sixth ground of the motion for a new trial, appellant complains of instructions one to five, inclusive.
The first instruction contained the information without including the affidavit of the prosecuting attorney, or formal parts, and was read to the jury as an instruction. We think no error was committed in giving this instruction.
In the recent case of Malone v. State, ante p. 796, 152 S. W. 2d 1019, a similar objection was made and there this court said:
“The reading of the information to a jury cannot, therefore, be considered as prejudicial to the defendant. The court, however, held that the affidavit of the prosecuting attorney should not be read to the jury. The Missouri statute, with reference to the reading of an information, is similar to our statute. In the instant ease the affidavit of the prosecuting attorney was not read to the jury, and there was no error in the reading of the information to the jury.”
Instruction two is one on the burden of proof, and similar in effect to instructions many times approved by this court.
Instruction three defined larceny and burglary in the identical terms of the statute. We have many times held that instructions which follow the wording of the statute, and are applicable to the facts in the particular case, are always proper. One of our latest eases on the point is Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1.
Instructions four and five on reasonable doubt are old instructions that have been approved by this court many times.
Finally appellant complains because “the court erred in calling the jury back into the court room while they were deliberating and telling them that there was nothing complicated about the case and that it was very important that they render a verdict.”
The admonition of the court, complained of by appellant, is as follows: “Gentlemen of the jury, you should vote your conscientious convictions and not give up any fixed opinion that you have, but you should go into the jury room with an open mind. This is not a complicated case and one that will have to be passed upon by a jury of Johnson county. It is expensive to the county to try these cases, and the defendant is now in jail, but that should not be considered by you in return ing a verdict. I don’t want you to misunderstand me in this explanation. I want you to vote your conscientious convictions and stay with them as to that matter. If you think it would help you for me to read the instructions to you again I will be glad to do so. It is a question of fact for you to pass upon. If you can’t return a verdict upon the merits of the case then the court can’t help you. You know whether or not you can make any progress, you are the best judge. If you see that you are hopelessly locked then you should come back and so state. I am willing to stay here as long as you think there is any chance to make any progress. ... I hope that you will not misunderstand me, I don’t want you to make any concessions, hut go in there with an open mind, discuss it freely among yourselves. I am going to let you go out for another thirty minutes. If you can’t agree you will come hack at that time.”
We think, however, that no error was committed by the court in thus admonishing the jury and that no prejudice resulted to the rights of appellant. It is our view that what the court said falls squarely within the rule announced in Stepp v. State, 170 Ark. 1061, 1072, 282 S. W. 2d 684, where it is said:
“This court, however, is committed to the general rule announced in a casenote to 11 Ann. Cas., p. 1134, to the effect that the trial court may detail to the jury the ills attendant upon a disagreement, the expense, the length of time it has taken to try the case, the length of time the case has been pending, and that the ease will have to be decided by some jury upon the same pleadings and in probability upon the same testimony.
“Again, in a casenote to Ann. Cas. 1915D, p. 675, the general rule is stated to be that the trial court may detail to the jury the ills attendant on a disagreement and the improbability of securing a more honest or intelligent jury to try the case again in the event of a mistrial, and the evils of a hung jury generally.
“This court has, in effect, adopted the general rule just stated, and has held that the trial court may Avarn the jury to lay aside all pride of opinion and consult Avith each other for the purpose of harmonizing their views, if possible, under tbe evidence, and that it was their duty to apply the law as given by the court to the facts in the case and deal with each other in a spirit of candor in order to arrive at a verdict. Evans v. State, 165 Ark. 424, 264 S. W. 2d 933; Benson v. State, 149 Ark. 633, 233 S. W. 758; and cases cited; Mallory v. State, 141 Ark. 496, 217 S. W. 482; and Clarkson v. State, 168 Ark. 1122, 273 S. W. 353.”
Finding no error in this record, the judgment is affirmed. | [
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McHaney, J.
Appellee was, on July 28,1938, working as a carpenter for the Lund-Buxton Engineering Company, hereinafter called the contractor, and was engaged in constructing forms to be used in the repair of the Main street crossing on the tracks of appellant' in the city of Malvern, Arkansas, for which purpose the contractor had been employed by it. The forms being built by appellee were to be used in the pouring of concrete, and a concrete mixer was operating near by, making a great deal of noise. Platforms were laid across the tracks, over which to roll wheelbarrows ill going to and from the mixer, and it was necessary to remove same when a train or an engine approached to pass over said crossing; A switch engine had been operating in the yards at Malvern that morning, south of the Main street crossing, and sometime during the morning, it 'backed up from the south to the north, pulling a boxcar attached to the front end of the engine, to pass over the Main street crossing, and, while doing so, struck and injured appellee.
He brought this action against appellant and the contractor to recover damages for the alleged injuries sustained by him. The negligence laid against appellant was failure to keep a lookout, operating at a dangerous rate of speed over said crossing, and failure to give the statutory signals. Negligence was also charged against the contractor, but before the trial began, a nonsuit was taken as to the contractor and a covenant not to sue executed and delivered to it. Appellant’s defense was a general denial, a plea of contributory negligence and negligence of the contractor. Appellant excepted to the action of the court in allowing a nonsuit in favor of its co-defendant, the contractor. Trial resulted in a verdict and judgment against appellant in the sum of $1,700, hence this appeal.
Among other assignments of error presented and argued for a reversal of this judgment is instruction No. 1, given at appellee’s request, over- the objections and exceptions of appellant. This instruction reads as follows: “You are instructed that if you find from a preponderance of the evidence in this case that the plaintiff was injured by the. operation of one of the trains of the defendant, Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, as alleged' in the complaint, that the law presumes negligence on the part of the defendant company, and it will be your duty, and you are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence.”
The giving of this instruction was error in this case. St. Louis-San Francisco Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. 2d 992; C. R. I. & P. Ry. Co. v. Fowler, 186 Ark. 682, 55 S. W. 2d 75; Mo. Pac. Rd. Co. v. Beard, 198 Ark. 346, 128 S. W. 2d 697; Mo. Pac. Rd. Co. v. Dalby, ante, p. 49, 132 S. W. 2d 646. The effect of all these cases is, as said in the Cole case, supra, that: “Under the constitution placed upon statutes like ours (§ 11138, Pope’s Digest), the presumption of negligence is at an end when the railroad company introduces evidence, to contradict it, and the presumption cannot be considered with' the other evidence, because to do this would, as stated by the Supreme Court of the United States, be unreasonable and arbitrary, and would violate the due process clause of the Fourteenth Amendment.” If the presumption “is at an end when the railroad company introduces evidence to contradict it and if it cannot be considered with the other evidence ’ ’ in such cases, it has no place therein. It is conflicting with other instructions, properly placing the burden of proving negligence on the plaintiff, appellee here, and is, therefore, prejudicial. Here, appellant’s fireman testified, not only that the bell was ringing and that he was keeping a lookout to the rear as the engine backed up, he 'being on the same side appellee was on, but that he saw appellee in a place of safety, several feet off the track, and that, as the engine backed up at a rate of speed of three or four miles per hour, he saw appellee rise and start toward the track and step in the path of the moving engine; that he called to the engineer who stopped the engine as soon as possible. This testimony was sufficient, if believed by the jury, to absolve appellant from all charges of negligence. It certainly did away with, blotted out and made nugatory the statutory presumption of negligence, which, thereafter, had no place in this case.
Other assignments are argued for a reversal of the judgment, including the sufficiency of the evidence to support the verdict and judgment, and alleged error of the court in allowing a nonsuit as to the contractor, all of which we have considered and find them without substantial merit. We do not review the evidence to show. ' that it was sufficient to take the case to the jury. On another trial, it may be different, and the other alleged errors may not occur again.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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McHaney, J.
This is a suit by appellant to cancel, set aside, and hold for nanght three decrees of the Miller chancery court, condemning certain lands belonging to it for sale for levee taxes in the G-arland Levee District of Miller county, the sales had thereunder and the deeds issued pursuant thereto. The suit was instituted on February 17, 1939, against appellee, Wilson, as receiver for the district, and the other appellees were permitted to intervene in the action because they had each purchased certain lands from the district, lands other than those claimed by appellant, the title to which depends on the validity of said decrees and sales.
H. S. Dorsey formerly owned the lands claimed by appellant. In 1928, he and his wife executed deeds of trust on said lands to secure certain indebtedness, which were assigned to appellant. Foreclosure and sale followed and appellant became the purchaser at that sale in March, 1937. Dorsey'failed to pay the levee taxes against said lands for 1930 and 1931, and suit was brought by the district May 1, 1933, in cause No. 3811 in the Miller chancery court, to foreclose the district’s lien for taxes. Personal service was had on Dorsey and notice of suit was published for the time and in the manner prescribed by the act creating the district, act 311 of 1913 and, as re-enacted by act 56 of 1917. Dorsey and others made default'and a . decree of foreclosure was entered condemning said lands for sale for the taxes due thereon for said years on July 27, 1933. The lands were sold by. the commissioner to the receiver on February '28, 1935, for the taxes, penalty and costs, and the commissioner’s deed to the receiver- was approved and confirmed April 25, 1935. Thereafter, while the title to said lands was in the receiver, suit was brought, in 1936, to foreclose the district ’« lien for taxes delinquent against said lands for the years 1932 and 1933, which resulted in a decree, sale and confirmation to the receiver; and again, in 1937, the same thing occurred for the delinquent taxes of 1934 and 1935. In the present action it was admitted by the receiver and appellant that if the sale and deed in cause No. 3811 for levee taxes of 1930 and 1931 were valid, the lands, being owned by the district or its receiver, they could not again be sold for levee taxes, since tbe title was in the district, under the authority of Crowe v. Wells River Savings Bank, 182 Ark. 672, 32 S. W. 2d 617, and Oliver v. Gann, 183 Ark. 959, 39 S. W. 2d 521.
The grounds upon which appellant relied in the court below, and which are urged here, to cancel the sale in cause No. 3811, are: (1) that the chancery court was without jurisdiction in cause No.-3811 because the complaint therein failed to allege any delinquency in the lands set out; (2) because the decree therein was prematurely entered; and (3) because the title to said lands, at that time, was in the state which suspended the lien for levee taxes. On these questions, issue was joined and trial resulted in a decree dismissing appellant’s complaint for want of equity, as to the proceedings and sale in cause No. 3811, which were held valid, and in holding the proceedings in the subsequent sales above mentioned, invalid. This appeal followed, and it is conceded this suit is a collateral attack on the decree in cause 3811 entered in 1933.
(1) As to the first contention, that the complaint in cause No. 3811 failed to allege that the lands listed therein were delinquent and because thereof the court had no jurisdiction, we cannot agree with appellant. The complaint alleges in paragraph 4: “That there lies within Garland Levee District.......................among other lands assessed for taxes for the year® 1930 and 1931, the following:” (Then follows a list of the lands of appellant in the name of Dorsey, with the legal description of each tract and the amount of the tax for each year.) The complaint then alleges that, under authority of certain named acts, the district had issued bonds, caused a levee to be built and protected from overflow the territory embracing the lands described in said list; that it had levied a tax of 10 per cent, to be collected for said years and that it has a first lien therefor upon said lands, and prays for judgment in rem against the lands set forth therein “for the amount of taxes, penalty, interest and costs respectively due,” which should be declared a first lien thereon and be sold.
We think this a sufficient allegation of delinquency. But if not, the decree based thereon is conclusive of the fact of delinquency. It recites service on Dorsey was had by the sheriff and by proof of publication filed and “that all of the defendants have been duly and legally summoned in accordance with law.” Continuing the decree provides: “Thereupon the plaintiff introduced the delinquent tax list furnished by the chancery clerk of Miller county, Arkansas, from the list of delinquent land in Garland Levee District returned by the collector of Miller county, Arkansas, showing the taxes due by the respective defendants for the years 1930 and 1931, as hereinafter set forth, and from the testimony introduced, the complaint of the plaintiff, and the delinquent list returned by the collector of Miller county, and by the chancery clerk of Miller county, and other evidence the court finds.” So, if we concede that the complaint was defective in the allegation of delinquency of the lands, the decree shows that the proof was ample to show it, and the court, no doubt, treated the complaint as amended to conform to the proof. The whole purpose of the suit was to enforce collection of delinquent taxes, and no one could have mistaken its purpose.
(2) The second contention that the decree of July 27, 1933, was prematurely taken, because the action was brought and the decree entered at the March term of court, cannot be sustained. It is based on a provision contained in § 6 of act 56 of 1917.. Assuming without deciding that the suit did not stand for trial at the. same term to which it was brought, still it does not help appellant, for it was a matter of defense available to it, if at all, only in the original suit and not on collateral attack. The court was one of general jurisdiction, had jurisdiction both of the subject matter and the parties, and it is conceded by all parties that this is a collateral attack. It was so held in Collier v. Smith, 132 Ark. 309, 200 S. W. 1008, where the court cited a number of cases to sustain the statement that, “Actual payment of taxes cannot avail on collateral attack where the land was sold by decree of court in accordance with the statutes of the state.” Certainly if actual payment cannot he availing, a premature entering of the decree could not. If error, it could have "been corrected by motion to set aside in term time or by. appeal.
(3) It is finally said that title to these lands was in the state and that the decree was void on that account. All or a part of these lands were forfeited and sold to the state in 1931 for the general taxes' of 1930. Two years are allowed by law for redemption, § 13860, Pope’s Digest. The lands were not certified to the state as having been sold to it for the taxes of 1930, until 1935. A decree of the Miller chancery court enjoined such certification on July 27, 1933, the date of the decree in question, on the ground that the sale to the state was void. Therefore, title did not pass to the state and the state did not acquire aiiy title by reason of a void sale for general taxes. The decree holding the sales to the state void was not appealed. But assuming the forfeiture and sale to the state sufficient to invoke the rule announced in such cases as Stringer v. Conway County Bridge Dist., 188 Ark. 481, 65 S. W. 2d 1071, and Hopper v. Chandler, 183 Ark. 469, 36 S. W. 2d 398, that “a chancery sale of land for delinquent road improvement taxes after its sale to the state for delinquent general taxes is void,” § 2 of act 329 of 1939 validates such sales.
Since we have shown that the decree and sale in cause No. 3811 were valid, it becomes unnecessary to consider the cross-appeal of intervener appellees, seeking to sustain the subsequent decrees and sales above mentioned.
We find no error, and the decree is affirmed. | [
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Holt, J.
Appellant, Frances Barnett, brought suit in the Columbia chancery court, first division, to establish and secure her property rights in the estate of her deceased husband, L. F. Barnett.
Appellees are the children of the deceased, L. F. Barnett, and they, together with their wives and the administrator of the estate, were the defendants below.
Appellant alleged in her complaint that about ten days before her marriage to L. F. Barnett on October 28, 1931, she advanced to him $550 in cash with which, together with $300 of his own money, he purchased 60 acres of land in Columbia county, Arkansas, taking title in his own name; that it was understood and agreed between them that after their marriage he was to execute to appellant a warranty deed to this 60-acre tract, but that during the more than four years of their married life prior to the death of her husband on January 7, 1936, he neglected to execute the deed to her as promised.
She further alleged that after their marriage they moved upon the land and occupied it as a homestead until her husband died, and while they occupied this property she made improvements out of her own money to the extent of $750 in addition to the sum advanced on the purchase price; and that her husband at the time of his death held title to the property in trust for her; and that she was entitled to have the title vested in her.
She prayed for .judgment against appellees, “divesting the title to the above-described property free from any dower or homestead rights of the wivés out of said defendants and investing said title in her, and for her cost and all other proper and equitable relief.”
Appellees answered and defended on the ground that . shortly after the death of their father, L. F. Barnett, they entered into a family settlement or agreement with appellant whereby they agreed to convey to appellant the 60-acre tract of land in question by warranty deed and further to turn over to her one-sixth of the personal property left in the estate of their father, and that appellant agreed to this settlement and to accept same in full settlement of her interest in the estate.
The leárned chancellor, after hearing and considering all of the testimony introduced in the trial of the cause, without making any findings of fact, dismissed appellant’s complaint for want of equity.
It is conceded by the. parties here, however, that the ground on which the chancellor dismissed appellant’s complaint was that, in his opinion, appellant had entered into a family settlement with appellees as claimed by them and was bound thereby.
After a careful review of the entire record, as presented here, we have reached the conclusion that the chancellor’s finding is not against a preponderance of the testimony. -
While there was much testimony produced at the trial on this question of family settlement, by both the appellant and the appellees, we refrain from setting it out for the reason that we think it could serve no useful purpose as a precedent or for any other reason.
It is the general rule, and the law in this state, that family settlements, of the character entered into between the widow and the heirs of the deceased in this case are favored and should bé encouraged where no fraud or imposition was practiced.
In Martin v. Martin, 98 Ark. 93, 135 S. W. 348, this court, in considering the question of enforcement of family settlements, said: “Courts of equity have unir formly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced. The motive in such cases is to preserve the peace and harmony of families. The consideration of the transaction and the strict, legal rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourage and enforce them. As is said in the ease of Pate v. Johnson, 15 Ark. 275: ‘Amicable and family settlements are to be encouraged, and when fairly made . . . strong reasons must exist to warrant interference on the part of a court of equity.’ Turner v. Davis, 41 Ark. 270; Mooney v. Rowland, 64 Ark. 19, 40 S. W. 259; LaCotts v. Quertermous, 84 Ark. 610, 107 S. W. 167.”
See also Giers v. Hudson, 102 Ark. 232, 143 S. W. 916; Ellison v. Smith, 107 Ark. 614, 156 S. W. 417, and Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74.
There was no fraud or imposition alleged or practiced in the instant case.
No error appearing, the decree of . the chancellor is affirmed. | [
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Mehafey, J7f
E. N. Rand and others, as taxpayers, brought this suit in the White chancery court to enjoin the City of Searcy, its mayor and city council, from calling and holding’ an election and issuing- bonds under Amendment No. 13 to the 'Constitution. An ordinance had been adopted and an election called thereunder at the time the suit was filed.
The complaint alleged that the appellants were citizens and taxpayers and owned both real and personal property in the City of-Searcy; that the City of Searcy is a municipal corporation. The other' appellees named are the mayor and aldermen of said city. It is alleged that on September 11, 1939, said city, through the mayor and aldermen, passed an ordinance, No. 271, submitting to the voters of the City of Searcy, Arkansas, the question whether it would issue bonds in the amount of $30,000 for the construction of an auditorium and on September 14, 1939, the mayor issued' a proclamation calling an election to vote on sa-id proposal of constructing said building and issuing bonds and set October 16, 1939, as the time for holding the election. It was alleged that the appellees were seeking to construct said building and issue bonds under and by the authority of Amendment No. 13 of the Constitution of the State of Arkansas. It was further alleged that the appellees were seekihg to raise funds to construct a" school building 'for the Searcy Special District, and not for an auditorium, and that the school district was using its efforts to have said building constructed for the school district; that said contemplated building was to be upon school property and grounds of said district; that the city and school district do not comprise the same territory and citizens; the district embraces the city and much other territory and citizens outside the limits of the city; that the property of said school district is mortgaged for a debt amounting to $123,000. It was also alleged that application had been made to the U. 8. WPA, and that the WPA granted the application on condition that •the school district would furnish $30,000 as its part of said building' construction; that the said school district was not able to furnish the $30,000 and is now attempting, through said appellees, to have the City of Searcy lend its faith and credit to said proposal by issuing bonds under said ordinance 271; that the city of Searcy has not applied to the WPA for a grant and that to permit the proposed election to be held and the issuance of bonds would be diverting the funds of the City of Searcy to the special school district in violation of law; that on April 25, 1938, the city passed an ordinance to submit to the vote of the people of the City of Searcy the question of issuing bonds to build a city hall and fire station; that said ordinance was approved by an election of the people and said building had been completed; that in said building there is a large auditorium sufficient to take care of the citizens of. Searcy, and that said city has no use for any other auditorium, and that to construct another building with an auditorium would be for the sole use and benefit of the school district and would not be contiguous to the city hall; that said ordinance No. 271 is void because it was not read fully and distinctly three times as required by § 9562 of Pope’s Digest; that said ordinance was pretended to be read the second and third times by reading only the title thereof, and not reading the same in full; that it is void for the further reason that it is in violation of the spirit and purpose of Amendment No. 33 to the Constitution. It is stated that unless the appellees are enjoined, there will be an irrevocable injury done appellants. It is also alleged'that the ordinance authorizing said election and the notice published in pursuance thereof are fraudulent and fail to properly notify the electors of the city of the true purpose for which said election is called and the money proposed to be raised is to be used.
The appearance of the defendants was entered-, and a demurrer filed. There were other interventions, answers and demurrers.
The issues, however, in the case are whether the city had authority under Amendment No. 13 to pass the ordinance, and if. so, whether it was properly passed; whether the city had a right to erect an auditorium on leased grounds; whether the city had authority to erect the building on property that was mortgaged.
The election was held in pursuance of the proclamation by the mayor, and the following questions were submitted to the qualified electors to be voted on by them:
“ (a) For bond issue for the purpose of constructing and equipping a city auditorium;
“(b) Against bond issue for the purpose of constructing and equipping a city auditorium.”
■ There was cast in favor of said bond issue 478 votes, and against the proposal 54 votes.
In pursuance to the provisions of the ordinance, the mayor of the City of Searcy caused a proclamation to be published in a daily newspaper having a bona fide circulation in Searcy on November 11, 1939, declaring the result of said election.
Amendment No. 13 to the Constitution of the state of Arkansas, among other things, provides that “cities of the first and second class may issue by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows: . . . for the purchase of sites for, construction of, and equipment, of city halls, auditoriums,” etc.
The-amendment also provides for a special tax not to exceed five mills on the dollar in addition to the legal rate permitted, for the purpose of paying bonds so issued.
Of course, under this provision of the Constitution, only five mills can-be levied in any year, and that means that five mills is the aggregate that can be levied. If the city has issued bonds and levied a tax for any other purr pose, then it could only levy an additional tax which may not, together with the tax already levied, exceed five mills on the dollar, except for lighting and water purposes.
Under the authority of this amendment an ordinance may be passed by a city of the first or second class, authorizing the issuance of bonds and the levy of a tax not to exceed five mills for the payment of said bonds.
The city of ‘Searcy, therefore, had the right, under this amendment, to pass ordinance No. 271.
It is contended, however, that said ordinance was not legally passed. Section 9562 of Pope’s Digest provides how ordinances may be passed. It reads as follows:
“All by-laws, ordinances, resolutions or orders for the appropriation of money shall require for their passage or adoption the concurrence of a majority of the aldermen of any municipal corporation. All by-laws and ordinances of a general or permanent nature shall be fully.and distinctly read on three different days, unless two-thirds of the members composing the council shall dispense with the rule. No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
It will be observed that the law requires the ordinance to be read fully and distinctly on three different days, unless two-thirds of the members composing the council shall dispense with the rule. It is not contended that the council did not properly suspend the rule.
Section 22 of art. V of the Constitution of the state of Arkansas provides how bills shall be passed by the legislature, and it states that every bill shall be read at length on three different days in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day. The difference between the constitutional provision providing- for the passage of bills in the house, and § 9562 providing for the passage of ordinances, is that in the house, when the rules have been suspended, the bill must still be read three times; but in the statute providing for the passage of ordinances, it simply states that two-thirds of the members may suspend the rule, and does not state, like the Constitution, that it shall be read again.
“Suspend,” as defined by Webster, among other things means “to cause to cease, for a time, from operation or effect; as to suspend the habeas corpus act; to suspend-the rules.”
It, therefore, appears that the council had the right to pass the ordinance as it did, and that the ordinance was legally passed.
The next contention of appellants is that the city had no right to erect an auditorium on leased grounds. It appears from the record that the lease was for 99 years, and in the nature of things, the auditorium ¡built now, would probably be unfit for use 99 years from now. Moreover, we know of no provision, either in the Constitution or the law, that requires the city to build an auditorium on ground which it owns. To build it on ground that is leased for 99 years, it seems, is unobjectionable, especially in view of the fact that there is no law requiring the city to own the land.
Attention is called in this connection to 3 McQuillin on Municipal Corporations, 706, 714. The reference to this authority at § 1208 contains a very short statement, that municipal corporations cannot purchase- and hold property which is subject to a mortgage, where it has no power to encumber its property by mortgage either by common law or statute. Section 1215 expressly holds that when necessary, to promote its public purposes, the municipal corporation usually is empowered to become the lessee of real property for the benefit of its inhabitants. We do not think there is anything in 43 C. J. 20, referred to, that sustains the contention of the appellant.
It is contended by appellants that the city cannot lease property that is heavily mortgaged and issue bonds for the purpose of erecting an auditorium thereon. They cite Halbut v. Forrest City, 34 Ark. 246. In that case the court said: “This was not a legitimate town purpose, and if it had appeared that this was the sole object of the renting, the contract would be invalid. See case of Jacksonport v. Watson, 33 Ark. 704. This does not appear, however, either from the pleadings or evidence, and the proper presumption is, that it was used for town purposes also. Where the town may be authorized to rent a building for its own use, it will not vitiate the contract to allow it to be used for other purposes of a public nature. ’ ’
Attention is next called to the case of Lester v. Walker, 177 Ark. 1097, 9 S. W. 2d 323. In that case we said: “A municipal corporation may be the owner of two classes of property. One class includes all property essential to, or even convenient for, the proper exercise of municipal functions and corporate power. The other class includes all property held for general convenience, pleasure or profit. . . . Municipal corporations possess the incidental or implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or statute.”
The next case to which appellants call attention is Fussell-Graham-Alderson Co. v. Forrest City, 145 Ark. 375, 224 S. W. 745. There is nothing in this case, as we understand it, that in any way sustains the contention of appellants; but it contains the same statement quoted above from Lester v. Walker.
Attention is then called to the case of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319. There is nothing in that case that in any way tends to support the argument of appellants.
Counsel discuss several other questions, but they do not affect the merits of this case, and we, therefore, do not discuss or decide them.
We hold that the city had a right to pass the ordinance and have an election and build the auditorium on leased grounds, and that the fact that it was under mortgage did not make it unlawful.
All the property of the school district is pledged for the payment of the mortgage, and we do not think under the facts in this case that the fact that the land leased is under mortgage affects the contract so as to prevent the municipality from constructing the audi-. torium as contemplated.
The decree of the chancellor is affirmed. | [
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McHaney, J.
Appellee was a tenant of appellant, S. M. Bush, for the year 1938, on a farm rented by Bush from one Arthurs for that year, Bush owns land which adjoins the Arthurs lands on the east and the Draper farm on the west, all being* west of Cache river.
Prior to July, 1924, S. B. Wilson owned and operated an independent telephone property in Cotton Plant under the name of S. B. Wilson Telephone Company. Wilson was adjudged a bankrupt, and, at the sale of his property by the trustee in bankruptcy, Bush became the purchaser of his telephone property in Cotton Plant, including two other telephone exchanges and all property of every nature and kind belonging to Wilson or the S. B. Wilson Telephone Company, and a trustee’s deed was executed to him, dated July 31, 1934, hut not acknowledged and approved by the referee in bankruptcy until November 14,1934, at which time it was delivered. Just a month and one-half later, on December 29, 1934, Bush sold and conveyed by warranty deed all the telephone property he had bought at the bankrupt sale to appellant, Cotton Plant Telephone Company, hereinafter called the company, a newly-organized corporation, and since said date it has been the owner and operator of all the telephone property which had formerly belonged to Bush and Wilson. The deed from Bush to the company recites that they, Bush and wife, “do hereby grant, sell, convey, transfer and assign unto the Cotton Plant Telephone Company, its successors and assigns, all that certain telephone property formerly owned and operated by S. B. Wilson Telephone Company, consisting of three telephone exchanges,” etc., enumerating a list of specific articles of property, and concluding, “and all other property of every kind and nature, belonging and appurtenant to said telephone exchange and long distance lines, whether enumerated or not.”
Some years prior to 1924, Wilson had constructed a rural telephone line running west from Cotton Plant, across and west of Cache river, along the highway, which line ran by the Bush property and a few miles farther west to serve rural subscribers west of the Bush place. There is some testimony in the record by .Mr. Graham that the company never did own that part of this line west of Cache river, but since the deed from Bush to the company passed whatever title Bush had to it, we think it conclusively established, and that it did own said line at that time. Telephone service was rendered to subscribers in that vicinity, but not at- the house on the Bush place until 1929. The high water or overflow in the spring of 1927 washed this line west of Cache river down. The poles were down and the wire was on. the ground, so that telephone service west of the river was discontinued. In 1929, 1930 and 1931, the Bush plantation was under lease to Lewis Finney who, for his owii convenience, early in 1929, rebuilt the telephone line between the Bush house and Cache river, and, .by contract with the company, had this rebuilt or repaired line connected with the company’s line east of Cache river, and the latter installed a telephone instrument in the house he was occupying, gave him telephone service and charged him $2 per month therefor. This monthly charge was billed to Bush who paid it for the account of Finney and charged him with it. When Finney moved out at the termination of his lease, the telephone service was continued in the Bush house for the benefit of him and his tenants until the spring of 1937, when the line was again washed down by the flood waters and was never repaired or rebuilt by anyone, although the company continued to bill Bush for the monthly rental which was paid by him until a short time after this suit was brought. On Halloween night, 1937, some pranksters picked up the wire of this line from the ground and stretched it across the highway in certain places. Travelers along the road cut the wire to get it out of the way and threw it to the side. No service was rendered over said line after said flood of January, 1937.
On February 1, 1938, appellee went into the Arthurs field which he had sub-rented from Bush, to cut cotton stalks with a stalk cutter, drawn by. two mules. While cutting his first row of stalks, having driven from the south to the north side of the field, along which side the road and former telephone line pass, and while driving along the turnrow to turn on another row, he and the stalk cutter became entangled in a down telephone wire in such a manner that he was drawn into the machine, and he received painful and permanent injuries. He brought this action against both appellants to recover damages therefor, and alleged ownership of the line and negligence in failing to keep it in repair in both. Appellants separately defended the action on a general denial of the allegations of the complaint and affirmative pleas of contributory negligence. Trial resulted in a verdict and judgment against both appellants in the sum of $15,400. Hence, this appeal.
As to appellant Bush, the undisputed evidence in this record shows that he had no ownership of or interest in the line west of Cache river, or any other line for that matter, after December 29, 1934, the date of his deed to the company, and, therefore, had no duty resting upon him to repair same, unless by reason of the fact that his lessee, Finney, rebuilt or repaired the line in 1929, and that Bush thereafter got the use and benefit of such rebuilt line by accepting service over it and paying the monthly charges for such service. We cannot agree that such a result follows. Finney rebuilt the line at his own expense, contracted with the company in his own name for service, and accepted and paid for the service for nearly three years. True, Bush paid the bills, but for the account of Finney. It is also true that Bush continued to accept the service and pay the bills after Finney’s lease expired, but the mere acceptance of service and payment of bills cannot have the effect of imposing the duty of repairing the .line over which service is rendered in the absence of ownership or other obligation to maintain, neither of which exists in this case.
Neither was there any duty on the part of Bush to exercise ordinary care to furnish appellee a reasonably safe field in which to work.' No duty of inspection was imposed on him by law. The relation of master and servant did not exist between them, but only that of landlord and tenant, and we know of no rule of law that imposes-the duty on the landlord to clear the field of possible obstructions for the safety of the tenant. Of course, he could not set a trap to the injury of the tenant without responding in damages. Here, the landlord, Bush, was himself a tenant,' renter or lesseee of Arthurs who owned the land. Under any view that may be taken of the matter, there can be no recovery as against appellant, Bush, and the court erred in refusing a directed verdict at his request.
As to appellant company a different situation exists. It did acquire ownership of the line west of Cache river by purchase from Bush, but-it does not appear that its officers ever regarded it as the owner. Service was fur nished over the line to others than Bush up to the flood of 1927, when the line was washed down, and no service was thereafter had over said line until it was rebuilt by Finney in 1929. It never did assume active ownership by making repairs to the line. This is established by the testimony of Mr. Graham and Mr. Remley, manager and lineman respectively for the company, although Mr. Wilkerson testified he saw Mr. Remley working on the line two times in 1932. It is undisputed, in this record, that no service of any kind to any subscriber was rendered thereon after the flood of January, 1937, even though Bush' inadvertently continued to pay for service until sometime in 1938. A toll ticket was introduced in evidence showing a toll charge over this line to a subscriber west of the Bush house, but the operator who introduced the ticket conceded that its date must be erroneous as she testified very positively that no service was rendered after the flood of 1937.
Another undisputed fact is that on Halloween night of 1937, the line being down and out of commission, pranksters further destroyed it by stretching the wire across the. highway at different places, and that it was cut and thrown aside to get it out of the road by travelers thereon.
All of this is strongly indicative of an abandonment of any ownership it'had in this line not later than 1927, and that such repairs as Remley made to the line in 1932 were for the account of some person other than the company.
The case of North Arkansas Tel. Co. v. Peters, 103 Ark. 564, 148 S. W. 273, is strongly relied on by counsel for appellee to justify recovery against both appellants. What we have already said, as to appellant Bush, disposes of this contention as to him. In that case, the telephone company operated a telephone exchange in the corporate limits of the city of Fayetteville. One Stuckey, who lived some four or five miles in the country, applied for service. It was agreed between them that, if he would build a line from his residence to the corporate limits of Fayetteville, it would connect his line with the exchange, install an instrument in his residence and furnish him' service for the same rate charged city subscribers. This was done. When this rural line would need repairs, by an arrangement between them, the lineman of the company would, at the company’s convenience and at the expense of Stuckey, repair the line. Peters was driving along the highway in the night time in his wagon when he was injured by a sagging wire over the highway. He sued both and recovered a judgment. In affirming this judgment, this -court expressed the “gravest concern” as to the liability of the telephone company. It was there said: “Under these facts and circumstances, we are of the opinion that-the telephone line was constructed by Stuckey for the mutual benefit and use of himself and the telephone company. The line was used by the telephone' company to serve -Stuckey as one of its subscribers, and he paid the -customary rental therefor. The telephone wire which injured the plaintiff was constructed and used for the .joint benefit of the telephone company and Stuckey, and it -cannot, therefore, be said that there is no evidence tending to show that the telephone wire which injured the plaintiff was not under the control of the defendant telephone compaify.”
We think it would be- an extension of the rule announced in that case with “gravest concern” to affirm the judgment against the company in this -case, and we are unwilling to do so. There the line was down or sagging down over the public highway over which the public traveled, and the accident was one which could and should have been foreseen as likely to happen. Here the line was down in a field, and the accident that did occur was most peculiar and unusual. Even though, it could be said the company owned the line and was, therefore, under a duty to repair, it is difficult to perceive how it could have reasonably been foreseen that a stalk cutter would pick up this wire, and that appellee would get caught in it at the same time, be drawn into the machine and receive the painful injuries he did receive, not that it was necessary that the particular accident could be foreseen, but only some accident. There, the company did assume to repair the line for Stuckey at his expense. Here, the company never undertook to keep the line in repair, except possibly on two occasions after it was rebuilt by Finney. It was out of use from 1927 to 1929, and again from 1937 to the time of trial without any repairing or rebuilding by it.
For these reasons and others we think there is no liability on the company for this most unusual and unfortunate accident, and that the court erred in refusing to direct a verdict for it at its request. The judgment will be reversed, and the cause dismissed as to both appellants. | [
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McHaney, J.
On July 15, 1937, appellee issued its three year, $1,000 policy of fire insurance to appellant, covering personal property located at 1417 Monroe avenue, Memphis, Tennessee, which was the residence of herself and husband, but the latter was engaged in business in West Memphis, Arkansas. Mr. Sperr made application to the United Insurance Agency of West Memphis, hereinafter called United, for insurance on his wife’s household goods and other personal property in Memphis, and the above mentioned policy was issued by appellee’s Memphis agent, John D. Kelly; il being conceded that the United was not the agent for appellee in Arkansas or elsewhere, insofar as having been appointed by it, nor did it have any blank policies or other blanks of appellee. Kelly issued the policy at the request of United who collected the premium and remitted to Kelly, and the policy was sent to United and delivered to Mr. Sperr by it.
A few months after the date of the policy, appellant moved from Monroe avenue to 1916 Central avenue, Memphis, and sometime thereafter Sperr wrote United tha,t it appeared his wife had no insurance since the change in address and asking what was necessary to reinstate the policy. Sperr delivered the policy to United and it had Kelly attach a rider thereto covering the property in the new location.
On or about September 1, 1938, Sperr and appellant moved to Marked Tree, Arkansas, and on November 7, 1938, Sperr wrote United the following letter:
“Marked Tree, Arkansas,
“November 7, 1938.
“The United Insurance Agency,
“West Memphis, Arkansas.
“Dear Sirs:
“I wish you would cancel the insurance on our furniture as of September first as we moved from 1916 Central avenue to Marked Tree on that date and by the terms of the policy the insurance could not apply at the new location.
“I am really ashamed of myself for not paying the auto premium sooner, but I hope you can go along with me a little longer as I am finishing up some work which will enable me to take care of this.
“Yours truly,
“P. S. I will be glad to pay the interest on this auto premium from the date it was due, if you can go along with me.”
The United replied as follows:
“November 8, 1938.
“Mr. Raymond Sperr, .
“Marked Tree, Arkansas.
“Dear Mr. Sperr:
“Re: Policy No. 25106, East & West Insurance Company — Raymond Sperr
“Replying to your letter of November 7, we will be glad to go along with you on your open account in connection with the automobile premium.
“However, to cancel the furniture policy, it will be necessary that you return this policy to our office. If you cannot find the policy itself and will advise this office, we will h'ave the company furnish you with a lost policy receipt for same.”
Sperr did not return the policy for cancellation, and on November 28, 1938, the property covered by it was destroyed by fire, no rider having been issued by any agent of appellee covering the property in its new location at Marked Tree. Proof of loss was made, payment demanded and refused, and this suit followed to collect the amount of the policy.
Appellee defended the action on several grounds: 1. That the coverage was limited to a certain location in Memphis, Tennessee, the policy expressly providing there should be no coverage elsewhere; 2. there w.as and could be no waiver; 3. that the property was mortgaged which avoids the policy under its express provisions; and 4. that United was not the agent of appellee and had no power to bind it by any action on its part, or, if an agent, it was a soliciting agent only.
At tbe conclusion of tbe evidence tbe trial court directed a verdict against appellant, on which judgment was accordingly entered, and this appeal followed. We think the court was correct in so doing on several grounds above stated, but it is unnecessary to discuss but one of them. The policy provides that appellee “Does insure . . . the following described property while located and contained as described herein and not elsewhere . . .” In other words, the property was insured while it remained at 1916 Central avenue, Memphis, Tennessee, but it was not insured at any other location, either within or without the state of Tennessee. Appellant’s husband, her agent, knew this. He showed himself to be quite familiar with this provision of the policy and so advised the United by letter on two separate occasions. In his letter of November 7, 1938, to United he says: “I wish you would cancel the insurance on our furniture as of .September first as we moved from 1916 Central avenue to Marked Tree on that date and by the terms of the policy the insurance could not apply at the new location.” But appellant says this breach was waived by the letter of United to Sperr in which he stated that, in order “to cancel the furniture policy, it will be necessary that you return this policy to our office, etc.” Let it be remembered that United was not the agent of appellee, did not issue or countersign the policy, did not issue or countersign the rider consenting to the first removal. But assuming for the sake of argument that United was the agent of appellee, still the letter written by it did not amount to a waiver of that provision of the policy, assuming that it could be waived by an agent. It directed appellant to surrender the policy so it could be canceled, or file a lost policy receipt. Appellant knew the policy was not in force, because the property had been removed from 1916. Central avenue. What Sperr wanted was to have the policy canceled presumably in order to get a refund as he wanted it canceled as of September 1, the date he moved to Marked Tree. The information United gave him was how to get the cancellation consummated. It is difficult to perceive just how this letter could be construed to be a waiver. ' Failure of appellee to return the unearned premium before suit was brought does not waive the forfeiture. We so held in Home Fire Ins. Co. v. Wilson, 109 Ark. 324, 159 S. W. 1113, where it was held, to quote a headnote:
“Where a fire insurance policy is issued and the premium is paid, and afterward the assured violates' the provisions of the policy as to vacancy, creating a- forfeiture, the insurance company having no knowledge of the same until after loss, does not waive the forfeiture by merely failing to return the unearned premium before suit is brought on the policy, nor is it precluded by such failure from setting up such forfeiture in defense of the suit.”
In so holding the court followed its previous ruling in Capital Fire Ins. Co. v. Shearwood, 87 Ark. 326, 112 S. W. 878.
Under the plain provisions of the policy, there was no insui anee on appellant’s property except while located at 1916 Central avenue, Memphis, and when the property was removed to Marked Tree, she knew she had no insurance and asked for a cancellation. She neglected to send in the policy for cancellation, but in the meantime the property was not covered by the policy, although outstanding and uncanceled.
The trial court correctly directed a verdict for appellee, and the judgment is accordingly affirmed. | [
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Humphreys, J.
. This suit was brought by appellee, GL W, Phillips, against appellants, Henry Phillips and Beulah Phillips, his wife, in the chancery court of the southern district of Logan county, Arkansas, to cancel a warranty deed appearing of record in Book 36, page 316 in the ex-officio recorder’s office in said district and county conveying 323 acres constituting his home located in said county, on the ground that it was never signed, acknowledged and delivered; 'by way of explanation and a further ground for cancellation of said purported deed alleged that he, appellee, is now and has been for more than forty years a citizen • and resident of Barber township in said county; that he is seventy-eight years of age and the father of seven children, one of whom is appellant, Henry Phillips and that Beulah Phillips is the wife of Henry Phillips; that appellee owned a farm of' 323 acres in said township and county where he has resided for many years; that after a protracted illness appellee’s wife died in June, 1938; that all of appellee’s children had left home before the death of his wife, except one of appellee’s daughters who lived with and cared for appellee; that Henry and Beulah Phillips lived on appellee’s farm not far distant from the house he occupied; that shortly after the death of appellee’s wife, appellants, Henry and Beulah Phillips, commenced and systematically pursued a course of conduct designed to and which did cause appellee great mental agony and which put appellee in fear, of his life; .that said appellants told appellee that his daughter with whom he was living was going to marry and leave him; that she was trying to and would kill appellee, and made many other false statements; that because of appellee’s age, his distress over the long illness and loss of his wife, and the effect of such false statements systematically made to appellee by said appellants, appellee was •caused to lose his normal mental balance and to become the prey and victim of said appellants; that in this situation said appellants induced appellee to sign a paper purporting to be a deed to appellee’s farm aforesaid, on the promise that said appellants would get appellee’s daughter out of appellee’s home; that said appellants would pay appellee $3,000 in cash within forty days and would provide appellee with a comfortable home for the balance of his life; that said alleged deed was not executed, acknowledged or delivered; that sometime after signing said paper appellant, Henry Phillips, in the presence of appellee, pitched a paper in the open fire, which he assured appellee was the alleged deed aforesaid; that recently plaintiff learned that a deed appeared upon the public records of this district of Logan county purporting to have been executed and acknowledged by appellee conveying to said appellants the plaintiff’s farm of 323 acres; that said alleged deed appears in Book 36, page 316 of the .records for the southern district of Logan county, Arkansas, a copy- of which is hereto attached, made a part hereof as fully as if copied at length at this point, and marked Exhibit A; that said alleged deed was never, executed, acknowledged or delivered by appellee and that he has never been paid one penny by said appellants or either of them for or on account thereof or otherwise; that said appellants moved into appellee’s home .and that shortly thereafter drove appellee therefrom, having theretofore driven the sister of appellant, Henry Phillips, and the daughter of appellee, therefrom; that appellants now hold appellee’s home and farm and though appellee has worked hard all of his life and by frugal living has acquired a sufficient estate to make him independent in his old age he had been defrauded of his home and farm, his only property, except some cattle hereinafter mentioned, and has been driven from his home and is a wanderer upon the face of the earth; that appellee owns over twenty head of cattle which are located on his farm and that in September, 1938, said appellant, Henry Phillips, in a further effort or in furtherance of his effort to rob appellee executed a mortgage thereon to appellant, Citizens Bank, who is made a party to this suit.
To this complaint, appellant, Citizens Bank, filed an answer admitting that it is the owner of a certain chattel mortgage given it by appellant, Henry Phillips,to secure a note for $500; that both the note and mortgage were dated September 27, 1938, and same was filed for record in the ex-officio recorder’s office in the southern district of Logan county; that said mortgage recites that six head of coming- three year old heifers weighing about six hundred pounds each was bought from G-. W. Phillips, the plaintiff herein; that said appellant denies each and every material allegation of appellee’s complaint, that appellee had full knowledge of the note and mortgage executed by Henry Phillips to the Citizens Bank and that appellee in person informed the lending officials of the bank that he had made all of the property including any cattle described in the mortgage over to his son, Henry Phillips, and that Henry Phillips had the authority to mortgage the same to .appellant, Citizens Bank, and prayed that the complaint-be dismissed against it with its costs.
Appellants, Henry and Beulah Phillips, filed the following answer: They and each of them • deny each and every material allegation of said complaint, and prayed that the complaint against them and each of them he dismissed and that they have judgment against appellee for their costs.
The cause was submitted to the court on the 12th day of June, 1939, upon the pleadings and proof from which the court found the issues of law and facts in favor of appellee and further found that the mortgage ■executed to the bank was executed to it by and with the •consent and knowledge of appellee and that out of the sum thus borrowed paid notes against the appellee in the total sum of $356.07. The court then canceled the •deed and divested all the interest of Henry Phillips and Beulah Phillips out of the lands and ousted them from "the possession of the property from and after November 1, 1939, requiring them to attorn to appellee for the usual rents thereon for the year 1939 and adjudged that he be required to pay the bank the amount of $356.07, which amounts had been paid for him out of the money Henry Phillips had borrowed on the chattel mortgage and that appellee have the seventeen head of cattle which had been mortgaged by Henry Phillips to said bank.
Both Henry and Beulah Phillips excepted to the finding of the court and prayed an appeal to this court and likewise appellee excepted to the finding of the court requiring him to pay the bank the amount of $356.07, and prayed an appeal to this court.
The first question involved on this appeal is whether the deed sought to be • canceled was spurious and a forgery. The evidence reflects that appellant, Henry Phillips, and his brother, Louis, accompanied appellee to the home of Clyde Turner, who' was a justice of the peace in the township, to execute a deed from appellee to appellants, Henry Phillips and Beulah Phillips, to said 323 acre tract of land but did not bring the old deed; so the justice of the peace gave them a blank deed and told them that anybody could copy the description off of the old deed and that if appellee signed same he would acknowledge it for them; that later on Henry Phillips brought the deed back and the signature of appellee appeared in the middle of the deed and that, in the absence of appellee, he filled out the acknowledgment; that he did not see appellee sign the conveyance and that he did not acknowledge it in his presence and that he, said justice of the peace, did not know whether it was properly signed and executed and advised Henry Phillips to take it to Mr. Sadler who would inspect it and tell him whether it was properly executed. Pursuant to this advice, Henry Phillips took the deed to Mr. Sadler who drafted a new deed from appellee to Henry and Beulah Phillips and the first deed was torn up and thrown into the waste basket. Henry Phillips testified that he took the deed drafted by Sadler and that appellee signed same in the presence of himself and wife, Beulah Phillips; that he then took it over to the justice- of the peace who filled out the acknowledgment on same in the absence of appellee and returned it to Henry Phillips. This deed purports to have been sighed by appellee on September 1, 1938, and the acknowledgment was filled out by Clyde Turner, justice of the peace, in the absence of appellee, and was filed for record on the 6th day of September, 1938, at 10 o’clock p. m. and is recorded in Record Book No. 36 at page 316.
This is the deed that is sought to be cancelled and which was canceled by the trial court.
Appellee testified that he never saw this deed and never signed or acknowledged same and that he only learned of it being on record a short time before he brought this suit to cancel and set it aside. The only parties who claim they saw him sign the deed are Henry Phillips and Beulah Phillips, his wife. Several parties who claim to be familiar with appellee’s signature testified that in their opinion the signature to the deed was that of appellee. Several others who claim to be familiar with the signature of appellee testified that it was not. In the course of the trial, note No. 7377 and note No. 6295, which appellee admitted he signed, were introduced in evidence and an oil lease which appellee executed in 1927 and which' he admitted signing was shown to him. The deed purporting to have been executed by appellee was also introduced in evidence. A photograph was made of the signature to the oil lease and to note No. 7377 and to note No. 6295 and to the deed sought to be canceled, and appears on page 43 of appellants’ brief so that this court might examine same and by comparison determine whether the signature to the deed was the true signature of appellee, Gr. W. Phillips. We insert herein a photograph of the signatures which has been furnished us, as follows:
The signature of G. W. Phillips to the two notes which he admits he signed and especially the signature to No. 6295 are apparently the signatures of an old person with a “shaky” hand. The signature to Note No. 6295 can hardly be read, especially the surname. The signature to the deed sought to be canceled appears to be made by a firm hand and not by a shaky, nervous or trembling hand. The “G” to the signature in the deed is not like any other “ G ” photographed. The “ W ” on the deed is not like any other “ W ” photographed. The “W’s” that G. W. Phillips made on both notes are sharp, but the “W” to the deed is round. These notes were signed before the deed was signed and G. W. Phillips was an older man when the deed was signed than when he signed the notes.
We have concluded under the evidence in the case that the signature to the deed was not the signature of appellee and that we must accept as true the denial of appellee that he ever saw the deed, that he ever signed same or ever acknowledged same.
This court said in the case of Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, that: “No one can claim that an estate in land should be divested by forgery, and the forgery need only be established by a preponderance of the evidence. This rule was recognized in Watson v. Billings, 38 Ark. 276, 42 Am. Rep. 1, and Meyer v. Gossett, 38 Ark. 377.”
Our conclusion that the deed was a forgery renders it unnecessary to analyze the evidence in this opinion to determine whether appellee had the mental capacity to execute the deed or whether in his condition of mind the deed was procured from him through the undue influence of appellants, Henry and Beulah Phillips, on account of his age, infirmity and distressed condition of mind.
We think the weight of the evidence is to the effect that appellee authorized the execution of the mortgage to the Citizens Bank on his cattle and that hé is bound by the mortgage given to the extent of appellee’s notes which were paid out of the proceeds of the mortgage and that the court did not err in requiring him to pay the bank said amounts.
No error appearing, the decree is affirmed. | [
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Baker, J.
In this opinion the appellant will be referred to as such or as Gumpert, and Hernreich will be' referred to by name or as the appellee. Gumpert sued Hernreich to recover $728.04 alleged to be due on open account, also for a balance of $86.06 together with interest, making a total of $89.07, for additional items alleged to be due for commissions advanced, and also to recover from the appellee $65.88 collected by him for the account of Dinty Moore’s Quality Foods, Fort Smith, and $12.73 in like manner from Public Service Cafe, Tulsa, Oklahoma.
Attached to this complaint was a copy of the contract of employment, some of the provisions are set forth with - out attempting to copy this rather lengthy instrument. Hernreich was to be paid 25 per cent; of the net amount of all orders which he might sell at list price and which were accepted by the company, except upon certain articles smaller commissions were agreed upon. This salesman was allowed a drawing account of $125 a month to be paid in equal amounts on the 15th and the last day of the month. Hernreich had the right to accept or collect money from customers, for his principal, but this money was to be remitted the same day it was collected, the cash by money order for the full amount less the cost for procuring the money order. If collections were made in checks these were to be forwarded as collected. In Hernreich’s contract there was provision for a bond and insurance in the sum of $1,000, but this was not insisted upon and inasmuch as they operated under a contract without such bond or insurance, the parties are deemed to have waived that provision.
Seymour Roth, an employee of appellant, represented his company in making this contract, but he did not sign it for or on behalf of the company. It was testified to by him and also b.y other witnesses that Roth did not have the power or authority to act for the company in the execution or signing of such contract.After the terms had been agreed upon, the contract was sent to the home office in New York where it was duly signed.
Hernreich worked for several months and was finally discharged by a letter received by him on March 26, 1938. In this letter it was stated that his discharge was effective as of March 1st.
When Hernreich was sued, he pleaded several defenses: one was that, in January of 1938, he met Mr. Roth in Chicago and made a new contract with biiu whereby he was to be paid $50 a week which was to include both his drawing account and expense account, and he finally pleaded and testified that this sum of money was to be the consideration for a new contract in place or instead of the commission contract which had been in existence np to that time; and he said it was the agreement that the old debts or' obligations would be canceled or “wiped out,” and further that he was entitled to the sum of $50 a week for the four (4) weeks in March before he received the notice of his final discharge. This theory of the case was submitted to the jury and there was a verdict for Hernreich for the $200, less a credit of the amount of collections that he had made during the month of January and which had not been reported to the company as stated in the verdict. From this verdict and the consequent judgment, Gum-pert has appealed. There are one or two other matters that deserve a place in the statement of this case, but these can perhaps be better presented in the discussion that we shall have to make in regard to the authority, or the apparent scope thereof, of Roth as an employer of the appellee for his company as well as the same power or authority of Hernreich as a representative of his company in some matters.
Hernreich says in regard to the authority of Roth that Roth may have been the owner, the president, the vice-president, or secretary of the Gumpert Company; that he knows nothing about it except the fact that his only dealings were with Roth representing Gumpert. This statement so made by Hernreich perhaps ought to be accepted with a certain degree of reservation since the written contract executed between the parties and introduced in evidence here was not signed by Roth although he represented the company in the negotiations as to the terms and conditions thereof. The proof from other witnesses is to the effect that Roth had no authority to execute contracts or to change or modify the conditions thereof after they had been executed on behalf of the corporation, but it was also equally certain that Roth had power to hire salesmen such as Hernreich and to discharge them; so the theory is that he was acting as general agent and apparently had the power as general agent, and, therefore, stood for or in the place of his company in the dealings between the appellant and the appellee. Hernreich offers in corroboration of this theory the fact that he made a new contract in January with Mr. Both, the one that he sues on wherein he claims he should have been paid $50 a week for all expenses and services. It is forcefully argued that in corroboration of this statement money was so advanced to him from and after that day, at least until the 1st of March. There is a denial that such change or modification was made in the contract and that Mr. Both agreed to cancel or charge off the indebtedness that the appellee owed up to that time. It was also urged that Mr. Both had no power or authority to charge-off debts that might be due or owing to the corporation, but it is undisputed that there was a change or modification of the contract in that there should be a remittance of $50 per week which the appellant insists was the only modification asked for and suggested by Hernreich in writing which was sent to the home office and accepted by the corporation by acquiescing to Hernreich’s proposal and by forwarding to him thereafter the $50 per week upon the terms, conditions and agreements made and offered by him at that time.
Hernreich was working largely in Arkansas and Oklahoma. The company’s home office was in the state of New York. Obviously, all transactions and negotiations in reg-ard to these disputed matters were in writing.
We think it becomes necessary, therefore, to determine at least the salient facts and agreements from these writings. In the presentation of these letters exchanged between the parties, we have made some effort to try to arrange them not in the order in which they appear in the abstract and brief, but in the sequence in which they Avere Avritten and received in so far as they relate to the disputed matters under investigation. A letter written by Mr. Hernreich from the Enloe Hotel at McAlester, Oklahoma, is not dated, but was addressed to Mr. Both. It is as follows:
“'Beginning Jan. 15th, I Avould like to suggest that you send me $50.00 per week, which shall include expenses and. draw. Any balance, I want credited against my overdraft, in order to reduce them.
“The overdraft is working as an obsession instead of an incentive.
“Hold everything above $50.00 per week until my overdraft has been materially reduced.
“I trust that this will meet with your approval.”
Another letter by Mr. Hernreich, evidently written after the above copied letter, was dated January 31st of 1938, and was from the Washington Hotel, Fayetteville, Arkansas. It is as follows:
“In re: Letter Jan. 27th. The only reason I sent my expense reports is because I thought you wanted them, although I know I am only getting a total of $50.00 per week in order to decrease my overdraft. I do not expect my expense sheets to be honored too.
“I recently received $44.00 and $23.00 for two weeks work. Is it possible to inform me how the house arrived at these figures. I certainly cannot work or travel on $23.00 per week.
“You know by now of last week. The first two days, hemmed in by floods, so I decided to see a dentist.”
Other matters in this letter are not important. Perhaps before we proceed to copy other letters evidencing the negotiations between the parties, we should discuss the effect of the two foregoing letters. In the very first sentence in the letter written from the Enloe Hotel he makes a suggestion that he be sent $50 a week “which shall include expenses and draw.” There is no doubt about what he meant by this expression and the interpretation given by the company to it was not in any sense disputed by him except the explanation which he made when he testified and which also appears from another letter, and such explanation will be considered later in this discussion. The next sentence is “any balance, I want credited against my overdraft, in order to reduce them.” This expression does not permit a conclusion that Hernreich did not owe at that time upon his overdraft, nor could it possibly be intended as an expression by him that the' amount should be paid to him as a salary including’ his expenses, but the amount that should be dravm by him as a salesman was to be charged to and be repaid out of the commissions that he might earn. The remaining portion of the letter is also contradictory of Hernreich’s position at the time of the trial. He says “overdraft is working an obsession instead of an incentive. Hold everything above $50.00 per week until my overdraft has been materially reduced. I trust that this will meet with your approval.” So far as this record discloses this is the first step or the beginning of negotiations to change the contract in the one particular. It had evidently not been discussed at that time between Hernreich and Both to whom he wrote the letter. We say that for the reason that there was no indication that there had been any former discussion because he was now offering this as a substitute arrangement or provision whereby he was to be paid $50 per week in lieu of advancements upon expense account or otherwise. There is nothing to indicate that such sums should not be repaid by him. He had so obligated himself in the contract of employment and this part of the proposed change in no way lessened or decreased that obligation. Although this letter is not dated, it was undoubtedly written early in January so it would be received in time for a remittance to be made beginning January 15th. The second letter of those above copied sent from the Washington Hotel, Fayetteville, Arkansas, is in response to a letter written January 27th. He had forwarded to the company his expense reports and it seems highly probable the company had questioned the proprietary of his having sent these expense reports as he was drawing $50 per week according to the change in the contract whereby he was to receive $50 a week beginning January 15th in accordance with the first letter. He says that he sent in the expense reports because he thought they were wanted by the company and “I know that I am only getting a. total of $50.00 per week in order to decrease my overdraft.” We find here a new acknowledgment of the indebtedness on account of the overdraft and an acknowledgment that the $50 per week was forwarded to cover expenses or amount to be drawn by him. Such must be the interpretation by the language -used by him. It is not susceptible of any other meaning. He so construed the only modification made in his contract. A statement sued'on was under date of January 31, 1937. It was as follows: “S. Gumpert Co., Inc., Gentlemen: The statement of my account as of December 31, 1937, with the S. Gumpert Co., Inc., has been received, showing a balance of $728.04 due, S. Gumpert Co., Inc. This statement is correct, (signed) G. T. Hernreich.” It becomes necessary to comment upon this particular matter for but one reason, that is, Hernreich says that he signed this statement only for the reason that he was under duress or forced to do so in order that he might get a check from the company upon which to live and in order that he could go on and transact business for his employer. There is no evidence in this entire record showing that, at that time, there was any controversy between the appellant and appellee, nor is there a word of testimony that the company was not at that time regularly forwarding to him the expense accounts as they were made out by Hernreich and received by the company, nor had it failed'to pay to him the $125 per month as a drawing account. Hernreich is probably correct in his surmise or suggestion that if he did not make reports, respond to requests, if he failed to show that he was working that the company would withhold checks that had been regularly forwarded up to that time, but it may be asserted without any reasonable contradiction that in everything that Hernreich has said taken together with its most forceful implications, there was no duress. The company had the right to demand of him the regular reports, 'the acknowledgment of indebtedness that he owed, and if he did owe the indebtedness there is no reason why he should not have so stated. In conclusion on this point it may be stated further that we presume this is the debt that he now insists was canceled or wiped out by Mr. Roth.' He acknowledged no other until some weeks later. His statement in regard to such cancellation of the indebtedness may not be seriously considered here for several reasons, one is that no consideration is shown for it, but if we should concede that the parties might mutually agree to the forgiveness and cancellation of the debt, it was certainly not done when the contract was changed so that Hernreich should receive $50 per week. The evidence to that effect is contradictory of the very terms of the agreement which he said tvas made and which h'e himself wrote, evidenced'by the letters. There is no better settled principle of law than the one so often stated that written contracts and agreements may not be contradicted, changed or modified by parol evidence. 12 Am. Jur. 1004, § 427. Although the contract may, by agreement, be changed or modified, yet when-that is done it may not then be contradicted. 12 Am. Jnr. 1006, § 428. See Engleman, Inc., v. Briscoe, 172 Ark. 1088, 291 S. W. 795; Dewey Portland Cement Co. v. Benton, County Lbr. Co., 187 Ark. 917, 63 S. W. 2d 649.
The trial court -erred in permitting such evidence to be so offered under the circumstances as they appear from this record.'
That conclusion must also be reached from another viewpoint presented by appellant. Whatever may be said about the general power or authority of Roth to make contracts, the evidence offered by the appellant is to the effect that he did not have power to change or modify contracts, or to cancel indebtedness due or owing to the company. While this evidence is from officers and employees of the appellant company, they are not parties to the contract, agreement or litigation, and their statements are not disputed by any witnesses or by any circumstances or conditions that otherwise appear. It may reasonably be argued that Mr. Roth agreed to the change whereby the $50 per week was to be advanced for expenses and drawing account, as the letter making such a request was addressed to him. The evidence that the company acceded to this request made by Hernreich is to the effect that the company, not Roth, forwarded the money in accordance with Hernreich’s request. As to the other items introduced into this suit these were collections in most instances made by Hernr.eich which he admitted having made and did not forward to the company. The explanations of these matters and the reason assigned for not having forwarded these collections was that he was not paid $50 a week for four (4) weeks in March and that he did not receive notice of his discharge until he received the letter on the 26th day of March. We accept his own explanation for his conduct: “I do all the work I am physically able to do. The least you. could have done was to have let me finish out the season, April, May, and June. I could have reduced my overdraft considerably in these months.” This was a letter written from Tulsa, Oklahoma, on the day he says he received the letter telling him he was discharged.
Hernreieh offers one other defense and that is to the effect that the appellant was a foreign corporation not authorized .to do business in Arkansas and that it' was in effect doing business in the state and for that reason could not4 maintain a suit against him arising out of his employment which was in part the doing of such business in Arkansas in violation of the Arkansas statute relative thereto. Pope’s Digest, § 2251.
. We have examined the contract which Hernreieh entered into with this foreign corporation. There is no provision thereof under or by which Hernreieh might be required to engage in any intrastate business in the state of Arkansas on behalf of the company.' He says that he maintained an office in his home for the company where he accepted mail or ’phone orders and where his wife, for him, accepted ’phone orders when he was not in. The evidence in this regard is very indefinite and very uncertain. It is of such a nature that it .appears that such matters as before mentioned were mere incidents that may have arisen in the course of interstate commerce. Besides these facts the appellee could not go out and engage in business unauthorized or without authority expressed or implied from his principal and in that way subject his principal to the penalties of the law and thereby enable him to defeat his acknowledged obligation and indebtedness. Our conclusion is that the appellee was not doing intrastate business for the company in the state of Arkansas. In order to bind the company and subject it to the penalties of the law he must have been authorized, or the business must have been of such a nature that the company would have had knowledge of it and approved his conduct by the acceptance of benefits; or, knowing what he was doing, failed to object or make an effort to restrain him therefrom. No such a condition prevails. His conduct in that respect must be regarded under the same limitations that we have stated above in regard to Both as another agent for the same company. He would be estopped to take advantage of his own misconduct to penalize appellant, and thereby profit by reason thereof. 17 Fletcher Cyc. of Corp., Chapter 67, p. 661, § 8532.
The conclusions are irresistible, therefore, that he is indebted for the full amount for which he was'sued. There has been no legal evidence showing a release or' discharge thereof. All of the evidence that tends to do so is offered in contradiction of the terms of the agreements, contracts between the parties as confessed and stated and agreed to by the appellee himself.'
The appellee argues most forcefully that he requested each of the witnesses who testified to furnish a statement showing the amount of business done by Hernreich while employed as a salesman for the appellant, since the company failed and refused to do this. This is argued as a just cause or reason why the jury may have decided the issues in this case as it did. That may be true, but if so there was no legal evidence to support the verdict. Every item sued upon by the appellant is one that is just and correct and which has been admitted by Hernreich. There is no pleading in this case that suggests' the possibility of mistake or fraud. We know of no reason why the company may not have properly answered the questions asked in that respect and there is no justification that because it did not, the items undisputed should not be paid for. There was no cross-complaint pending when this proof was taken to recover for any commissions not credited. We had a recent case with a similar controversy. It was decided contrary 1o appellee’s contention. Sirman v. Sloss Realty Co., Inc., 198 Ark. 534, 129 S. W. 2d 602.
The judgment of the circuit court is, therefore, reversed and judgment is entered here for the amount of the indebtedness as stated in the complaint and admitted by the appellee — $921.20—with interest from date of suit.
Holt, J., not participating. | [
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McHaney, J.
Appellant, James K. Gearhart, Jr., is the son of James K. Gearhart, Sr., who died testate in March, 1933, and, through his mother, said appellant inherited an undivided 1/3' interest in the land in controversy. The other appellants are the widow and the heirs at law of Fremont Stokes, who died intestate in April, 1934, and inherited another undivided 1/3 interest in the land in controversy. They brought separate actions to compel the appellee to account to them for the rental value of a certain coal mine located on the property in controversy, including its shafts, tunnels and equipment. Appellee defended the actions on two or more grounds, some of which will be later herein discussed. The cases were consolidated for trial which resulted in a decree dismissing the complaints for want of equity.
In the year 1907, James K. Gearhart, Sr., Fremont Stokes and C. H. Langford, being the owners of ex tensive coal properties in Johnson county, Arkansas, organized a corporation known as the Pennsylvania Anthracite 'Coal Company, to which they leased most of their coal properties and to which they sold and conveyed the surface' of an eighty acre tract also covered by the lease. In this lease the lessors dealt very nicely with themselves, for by its terms the lessee was required to pay them a royalty of 25 cents per ton and to mine a minimum of 60,000 tons yearly, making a minimum royalty of $15,000. On May 20, 1909, the parties entered into a new twenty-five year lease agreement by which the minimum tonnage required to be mined annually was reduced to 40,000 tons, or a minimum annual royalty of $10,000. On the same date of this new lease, the company conveyed back to Gearhart, Stokes and Langford the surface of 20 acres of land, on which the coal mine is situated and which is the land in controversy, described as N% N¥ SW - 21 - 9 - 24, Johnson county, and the deed recites it conveys “the surface only” in the above described land. Said deed contained this reservation immediately following the granting clause: “Reserving nevertheless unto the parties of the first part and to its successors and assigns the right at any and all times to enter upon said lands to mine, remove and carry away the coal and the mineral deposits thereunder now; leased by said company, and for that purpose to sink .shafts and erect such buildings and-machinery as may be necessary to successful operation of a mine and removing the coal leased as aforesaid. With the further right to use such openings and improvements for the purposes incident to the mining and removing the coal in any adjoining or nearly contiguous lands that may be owned and leased by said company, its^ successors and assigns, with further right to sell or remove at the expiration of the lease now held upon said land, or within a reasonable time thereafter any buildings and machinery placed by said company, its successors and assigns upon said land.”
On November 18, 1910, the Pennsylvania Anthracite Coal Company conveyed all its interest in this twenty- five year lease to Arkansas Anthracite Coal & Land Company. On March 16, 1912, said Langford conveyed all his interest as lessor in said lease and his interest in the 20 acre tract to Gearhart and Stokes, who on June 2, 1913, conveyed Langford’s interest to the last above named company, and it later went through bankruptcy, its assets including said lease and reservation in said deed of May 20,1909, passed by mesne conveyances to appellee under date of June 19, 1934.
The trial court found “That the reservation of the right of the grantor, his successors or assigns to enter upon the land conveyed in the deed — dated May 20, 1909,- considered in connection with the lease of the same date, gave to the grantor and its successor, the defendant, the right to use the premises and property therein described as reserved and for the purposes therein set out on lands owned or leased by the defendant adjacent or nearly contiguous to the property conveyed acquired by it prior to April 1, 1934, the expiration date of said lease, free of rent to the plaintiffs.”
As to this reservation in said deed of May 20, 1909, appellant makes two contentions that the court erred in so holding: (1) that the Pennsylvania. Anthracite Coal Company, the grantor, was without power to reserve therein the perpetual right to mine coal through the shaft and tunnels now on the property; and (2) that the language of the reservation limits it to the life of the lease executed at the same time.
(1) The argument advanced with reference to the power to make the reservation is that it owned the surface rights only and could not reserve rights to use the shaft and tunnels constructed far below the surface. It appears to be undisputed that all the mineable coal under this 20 acre tract has been removed and was removed some time prior to May 20, 1934, expiration date of said lease, and that appellee and its predecessors, have, both before and after the expiration date of said lease, used the shaft, entries and tunnels under this 20 acre tract to mine coal on other adjacent lands. We think the word “surface,” as used in the conveyances above mentioned, means something more than that portion of the land which is or may be used for agricultural purposes. It means not only the actual top of the ground, but also all the earth substructure, except the coal therein, the right to mine and recover which was granted in the lease. The parties themselves may have thought, as others have, that the lease conveyed the fee to the coal in place, but such is not the law in this state. Goodson v. Comet Coal Co., 182 Ark. 192, 31 S. W. 2d 293. In that case the owner of the fee, Thompson, sold to Goodson, with this reservation: “Beserving all coal, oil and gas and mineral with the usual mining privileges. Grantor reserves the right to use the surface about the mine opening for mining purposes during the life of. said coal mine.” Thompson leased the minerals to Comet Coal Co., which was mining coal from this and other lands. Goodson objected to coal being hauled from other lands through the tunnels under his land. In denying Goodson injunctive relief this court said: ‘ ‘ The rule, supported by the great weight of authority, is that the owner of coal in place, as Thompson was under his deed from B. G. Parrott, has the absolute right until all the coal is exhausted to use the passages opened for its removal for any and all purposes whatever, including the right to transport coal over the underground passages and out of the entry, having due regard for the rights of the surface owner.”
We think this case is authority for the holding that the grantor had the power to make the reservation, since it owned not only the surface, but the right to mine the coal under the surface.
(2) Nor can we agree with appellant that the reservation in the deed, above quoted, is limited to the life of the lease. The wording thereof indicates that. the draftsman had three purposes in view for the protection of the grantor, its successors and assigns: 1. To protect and safeguard its right at any and all times to enter upon said lands to mine the coal under it, and for that purpose to sink shafts and erect buildings and machinery. 2. To use such improvements for the mining- of coal in “any adjoining- or nearly'contiguous land.” In other words to use its facilities on the granted lands for mining coal on other lands. 3. The right to sell or remove its buildings and machinery at the expiration of said lease or within a reasonable time thereafter.
The lease provides 'that it shall run for a period of 25 years, “or until all the merchantable coal in the premises hereby demised is exhausted,” and the right to remove coal in any adjoining or nearly contiguous land that may be owned or leased by the lessee, through “any subterranean process, ways and openings” is reserved therein. Both the lease and the reservation in the deed contemplated that the lessee and its successors should have -the right to mine the coal in the leased premises and in the adjacent lands owned or leased by it, and if all the mineable coal in either had not been recovered during the period limited, mining operations could continue until the coal in each was exhausted.
This view is strengthened, if not made conclusive, by the letter of James K. Gearhart, Sr., written to Mr. Puterbaugh, president of appellee, under date of September 15, 1928, in which he said, in part: '“The lease expiring 5/20/34 provides it shall be good until that time or until all the mineable coal has been removed. When all coal is mined out or paid for Stokes is through. The deed covering the 20 acres reserves the right to úse it for mining coal from contiguous lands and says nothing as to when this right shall terminate' — I cannot see why the company can not use these twenty acres forever under reservation clause in said deed, and reading deed in conjunction with lease I believe we have right to use mine workings for mining- contiguous coal.”
While this letter may not be competent against the heirs of Stokes, it is at least a declaration against Gear-hart’s interest as grantee in the deed and as lessor in the lease, and in favor of his interest as president of the lessee and grantor. It may also not be competent as evidence as it is the expression of his opinion on a question of law. We copy the above portion of the letter to show that he, with an interest on both sides, construed the reservation in the deed as we do, when viewed in the light of the lease, executed simultaneously. We therefore, hold that it was the purpose and intent of the parties that this 20’acre tract could he used to mine coal on the leased premises and upon contiguous lands owned or leased by the lessee or grantor, not only for 25 years, but so long as the coal remains unexhausted under either the leased premises or the contiguous lands purchased or leased at any time during the term of the lease.
Having reached this conclusion, it becomes unnecessary to discuss the plea of res adjudicaba as to Stokes.
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McHaney, J.
Petitioner is a non-resident individual, doing business as Alexander Motor Company. On April 26, 1939, one of his agents, while driving petitioner’s truck over highway 67 in this state, negligently .struck and injured one Fred Weeks in the town of Hoxie, .in Lawrence county, Arkansas. On November 10, 1939, Weeks brought suit against petitioner in the Clark circuit court in Arkadelphia, some two hundred miles from the scene of the accident, to recover damages for the injuries he alleges he sustained. Service was had on petitioner by service on the secretary of state, under the provisions of act 39 of the Acts of 1933. In due time, •petitioner, who was promptly notified by the secretary ■of state, entered his special appearance in the action .and filed a motion to quash the service on the ground that said act 39, under which said service was had, was void as -being in conflict with the Fourteenth Amendment to the Constitution of the United States. The court overruled the motion to quash and petitioner broughtu this action in this court to prohibit the Clark circuit court from proceeding- in the action on the alleged void service.
Petitioner insists that we should overrule our decision in Kelso v. Bush, 191 Ark. 1044, 89 S. W. 2d 594, “for the reason that act 39, of the Acts of 1933, should require that actual notice of the pendency of the suit be given to the non-resident defendant, or at least that the notice of the pendency of the suit should be left at the visual place of residence of the defendant with a mem-' ber of the family over 15 years of age, as is provided for the service of summons on a resident individual defendant. ’ ’
It is not suggested that petitioner did not get “actual notice” of the pendency of this action and we think the act requires such notice to be given before jurisdiction of the defendant is acquired. The last part of § 1 thereof provides: “Service of such process shall bé made by serving a copy of the process on the said secretary of state and such service shall be sufficient service upon the said non-resident owner, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or his attorney to the defendant at his last known address, and the defendant’s return receipt or the affidavit of the plaintiff or his attorney of compliance herewith are appended to the writ or process and entered and filed in the office of the clerk of the court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant or defendants reasonable opportunity to defend the action.”
As construed in Kelso v. Bush, and as followed in Yocum v. Ohlahoma Tire and Supply Co., 191 Ark. 1126, 89 S. W. 2d 919, and Highway Steel & Mfg. Co. v. Kincannon, Judge, 198 Ark. 134, 127 S. W. 2d 816, and as said in the last mentioned case: “The act affords conven ient redress to residents and non-residents alike for injuries received to persons or property while traveling on or using the' highways of this state, through the negligent operation of motor vehicles on the highways of the state by any and all non-residents of the state, be he an individual, firm or corporation.”
Since.we have sustained the constitutionality of said act, we think it unnecessary to restate the reasons, which will be found in Kelso v. Bush, supra.
We do agree with petitioner that the act may work a hardship on him and others similarly situated by permitting the suit to be brought in any county in the state, and in not limiting the venue to the county of plaintiff’s residence or in which the accident occurred. But, so far as petitioner’s brief shows, Weeks may be a resident of Clark county, where the action was brought, as was the plaintiff in the case in Kelso v. Bush. Whether he was or not, by the express language of § 2 of said act 39, such service “shall be deemed sufficient service of summons and process to give to any of the courts of this state jurisdiction over the cause of action and over such non-resident owner defendant or defendants, and shall warrant and authorize- personal judgment against such non-resident owner defendant or defendants in the event that the plaintiff prevails in the action.” In the Highway Steel & Mfg. Co. case, supra, the accident occurred in Sebastian county and suit was brought and sustained in Crawford county, by residents of Crawford county and residents of the state of Missouri, of which state the Highway Steel & Mfg. Co. was a corporation. We there further said: “These are transitory actions and the petitioner, being a non-resident defendant, may be sued in any of the courts in this state for injuries to the person or property of another caused by its negligent operation of a motor vehicle upon the highways of this state upon service obtained, in the manner provided by said act.” Appeal to Supreme Court of United States was dismissed, 60 S. Ct. 88, 84 L. Ed. , for want of any substantial federal question.
The fact that petitioner in that case was a corporation can make no difference, as the act covers individuals as well as corporations. The question of venue is one to be addressed to the legislature and not to the courts and since the' legislature has fixed the venue of such actions in these broad terms, the, courts are powerless to limit it and must construe the act as written.
We again decline to overrule Kelso v. Bush and the other cases cited, so the petition for the writ must be denied.
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Mehappy, J.
On August 15, 1928, Calvin Gribbs borrowed $11,000 from tlie State Building & Loan Association and to secure said loan executed and delivered to the appellee a mortgage on a filling station at Malvern, Arkansas. Gribbs remained in possession of the mortgaged property and received the rents and profits.
On November 1, 1933, Gibbs leased the filling station to the Magnolia Petroleum Company for a period of five years at a monthly rental of $65.
On November 16, 1933, Gibbs assigned the rental, payable under the lease, to the building and loan association for the purpose of applying the same upon his indebtedness to the association. The assignment recites that Gibbs does: “Hereby sell, assign and transfer unto the State Building & Loan Association, its successors and assigns, all rents which may hereafter become due upon the filling station.” On the same day Gibbs wrote the Magnolia Company advising it that he had thus assigned the rents.
On November 21, 1933, the appellant and appellee entered into a memorandum whereby the association agreed that it would not disturb the lease agreement so long as the Magnolia paid the rental as set out in the lease to be paid to Calvin Gibbs.
On October 12, 1934, the Building & Loan Association filed its action in the chancery court of Hot Spring county for the foreclosure of the mortgage, but did not make the Magnolia Petroleum Company a party. The Magnolia Petroleum Company paid the rentals due under the lease to the building and loan association from the date of the assignment of such rentals to April 30, 1935. On that date, the lease was terminated by agreement between Gi'bbs and appellant.
The building and loan association wrote to the general manager of the Magnolia Company at Little Rock protesting against the cancellation of the lease by the lessor and lessee, and notifying the Magnolia Company that on May 16, 1935, application would be made for the appointment of a receiver to take charge of the filling station. Application was actually made for the appointment of a receiver on May 15th, and Mr. J. Elmo Young was made receiver. He took charge of the property and rented it for less than $65 a month.
Judgment was had against Gibbs, a decree of foreclosure and sale was had, and the building and loan association became the purchaser. The proceeds of the sale, less expenses, were credited on the judgment, hut this left a deficiency judgment.
On November 4, 1938, the building and loan association filed a complaint in the Hot Spring circuit court against the Magnolia Petroleum Company, not to recover rent, but to recover damages for breach of contract. The measure of damages claimed was the difference between the amount agreed to be paid, $65 per month, and the amount which was collected by the association.
The Magnolia Petroleum Company filed answer denying that it had breached its contract, and alleged that Gibbs, the lessor and owner of the reversion, had agreed upon the cancellation of the lease, and that thereafter no rents were due and payable.
The cause was submitted to the court sitting’ as a jury, and judgment was entered in favor of the plaintiff for the sum of $1,779.68. Motion for new trial was filed and overruled, and the case is here on appeal.
D. C. Bossinger testified in substance that he was the secretary of the State Building & Loan Association, and that the association, in 1928, loaned Calvin Gibbs $11,000 and that Gibbs was to pay $100 a month on the loan; that in 1933 the Magnolia Petroleum Company wanted to lease the station and wanted the association ■to agree that it would not foreclose during the life of the lease; the association refused to do this, but agreed that it would give a contract not to disturb the Magnolia Company in case they did foreclose. He knew about the lease at the time it was made, and insisted that all rentals due thereunder be assigned to the building and loan association; Gibbs executed an assignment of the rentals and wrote a letter to the Magnolia Company instructing them to pay the rents to the association. It was his understanding that the Magnolia Company would pay the rentals to the association, and after the assignment it did pay the association $65 per month. Gibbs agreed to pay the difference between the $65 and the amount he was to pay on the loan; he agreed to do this by paving taxes and insurance, but he did not do so. He would not pay anything on the balance, and the association had judgment against him and decided that it might as well begin foreclosure. The suit to foreclose was filed October 12, 1934. He instructed his attorney not to make the Magnolia Company a party defendant, because the association had agreed that it would not disturb it. About May ■1, 1935, witness received a letter from Mr. Kotch stating that appellant was not’going to pay any more rent on the station. Witness told Mr. Kotch that he did not think they had a right to cancel fhe lease. Up to that time, the building & loan association had done nothing to interfere with the possession of the station. The Magnolia Petroleum Company gave witness notice that it was abandoning the station about May first. The property was in danger of depreciation and waste, and the association had a receiver appointed to take charge. Mr. J. Elmo Young was appointed receiver. The association had nothing to do with the station during the pendency of the foreclosure suit. The equity of the association has been sold for $3,500. At that time, Gribbs owed the association about $4,000. The Magnolia Company paid $65 a month from November 1, 1933, to May 1, 1935.
An itemized statement of the monthly payments was introduced; the sums of $35 shown on the statement were paid to the receiver; the association received them later. Witness does not know the name of the man with whom he talked, representing the Magnolia Company, but this man first held out that he would not lease it unless he got a contract that the association would not foreclose, and later agreed to compromise with the association that it would not disturb it during its lease; that was before Gribbs leased it; witness knew before the lease was made that the rentals were to be assigned to the association; does not think the foreclosure suit was pending when this instrument recognizing the assignment was executed. Later the association brought suit to foreclose but did not make the Magnolia Company a party. When asked what was going to happen when the association took the decree and somebody else bought the property, he answered that the association generally had to buy it itself.
Mr. J. Elmo Young testified that he was appointed receiver May 16, 1935, and took charge of the premises at the time of his appointment; rented the property; collected the sum of $1,257.50 rent; rented the property for the best offer he could secure; by order of court deducted 10 per cent, for his services, and remitted balance to the association.
The lease was introduced in evidence, and the assignment to the association, and a letter by Mr. Bossinger to Mr. Cox. The following stipulation was introduced: “That H. H. Marshall was the resident agent of the Magnolia at Malvern during the year 1933, and that he represented the Magnolia in negotiating the lease with Calvin Gibbs, which lease was signed on behalf of the Magnolia by one of its-executives in the home office at Dallas, Texas; that H. H. Marshall died some two or three years ago.”
Gibbs was the mortgagor and had mortgaged the property including the filling station to the State Building & Loan Association; Gibbs remained in possession and was at the time the lease was executed, the owner of the property, subject, of course, to the -mortgage.
Appellee argues that the instruments introduced, the lease and the assignment, do not bear the same date, but that a complete understanding was had b-efdre any of them went into effect. It is stated in appellee’s brief that the sole question involved on this appeal is whether or not, after the entire future rental on a lease has been assigned and pledged by a lessor to secure a loan, and notice of the assignment given to and accepted by the lessee, that thereafter, without consent of the assignor, creditor, the assignor and lessee can by agreement between themselves alone, cancel the lease. It is argued that there is no provision for cancellation by any of the parties, and that it is elementary that when two or more parties enter into a contract, it cannot be rescinded, abrogated, modified or annulled by any of the parties, without the consent of all. Attention is called to the case of Schmid v. Baum’s Home of Flowers, 162 Tenn. 439, 37 S. W. 2d 105, 75 A. L. R. 261. The facts in that case were wholly different from the facts in the instant case. In that case, the tenant remained in possession, the owner went into bankruptcy, and the question arose whether the trustee in bankruptcy or the assignee of the rent note was entitled to the rent. The court among* other things said: “The tenant was clearly entitled to retain possession of the leased premises as against the lessor’s trustee in bankruptcy. He did retain possession, in full enjoyment of the privileges contracted for, and, therefore, no equities arose as between the tenant and his lessor. The tenant concedes his liability for the rent, and the question for determination, is whether this rent is payable by the tenant to the holder of the notes or to the trusee and receiver.”
The court also in the same case said: “The issue made by the trustee’s appeal is, therefore, whether the creditors of the bankrupt are bound by his assignment of his right to receive the rent for the twelve months covered by the notes, the assignment having been executed for value, in good faith, and without fraudulent intent, more than four months before the institution of the bankruptcy proceedings.”
In the instant case, the assignment was not executed for value, no consideration whatever wa's given, and the mortgagee already had the right to apply to a court of equity for a payment of rents to it. Moreover, the association’s promise to not disturb the tenant if foreclosure proceedings were begun, meant nothing, because it could not know who would be the purchaser, and, of course, the foreclosure sale would terminate the tenant’s right.
The case above referred to also decided whether a lease of the character involved in that suit should be recorded. Also the court stated: “Under the authorities cited, this right must depend upon the terms of the deed of trust under which he claims, as well as upon the ' equities asserted in the proceeding* in which the receivership was ordered. Since these essential facts are not shown in the record, his right does not appear, and we have no discretion but to affirm the decree of the chancellor, sustaining the claim of the assignee bank. ’ ’
It will be observed that the case cited and other cases relied on by appellee are cases where the assignment was made for value in good faith. ,
Appellee calls attention to the case of Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634. The court said in that case: “An assignment of a rent note by the lessor to a bona fide purchaser for value before the transfer of the reversion by him operates as a severance of the rent from the reversion. ’ ’
In the instant case there was no assignment for value. As we have already said, the appellee gave no consideration whatever for the assignment of the rent. It already had a mortgage on the entire property, the right to foreclose at any time, and the owner of the reversion had a right to assign the rent. Since .the assignment was without consideration, the lessor and lessee had a right to cancel.
Prom the Deming Investment Company Case, supra, the appellee quotes as follows: “In such a case the owners of the land would have the absolute right to transfer the rent note, and the purchaser thereof in good ■ faith would be the owner of the rents, and no subsequent sale could affect his rights. It is manifest that a subsequent sale would impair the obligations of his contract. ’ ’
Of course, if the sale to a second party or the cancellation of the lease violated the obligations of a contract that Gibbs had with appellee, such action on the part of the lessor would be void. But there is no such reason in this case.
The appellee, in discussing points two and three discussed by appellant, says that these propositions are inherently wrong, and that it is ridiculous to assume that the association would enter into a contract giving up a very valuable right to the Magnolia Company if it got no benefit from it, or if its execution was not. to bind other parties in any manner. Appellee does not mention what valuable right the association gave up to the Magnolia Company. It agreed that it would not disturb appellant if it foreclosed its mortgage, but it did not agree that appellant would not be disturbed if some third party purchased the property at the sale.
Learned counsel on each, side argue a number of propositions and cite numerous authorities. We do not think it would serve any .useful purpose to discuss the propositions discussed by counsel, or review all the authorities cited. Both parties seem to rely on the case of Franzen v. Kinney Co., 218 Wis. 53, 259 N. W. 850, 105 A. L. R. 740. In that case there was not an assignment of rents, but an assignment of the lease itself, and the court in that case said: “But these decisions and statements must be considered in connection with the facts upon which they are based, and can be applied only to similar factual situations.”
We do not think the authorities relied on are controlling here. In the instant case the lessor and lessee had a right.to enter into the lease contract. They had the same right to cancel this contract, provided, of course, that it did not injure any other party. The appellee had a mortgage on the premises to secure the payment of a debt. While that mortgage existed, and before foreclosure, the mortgagor was the owner and had a right to the possession of the premises. The assignment made by the-lessor to the mortgagee was without consideration and was taken, evidently, as additional security for its debt, and it thereby obtained, during the continuance of the lease, the rents and profits which it would not have been entitled to under its mortgage. Again, it actually foreclosed its mortgage, and upon its application, a receiver was appointed who immediately took charge of the property and collected the rents. We are of opinion that it had no right to sue for damages for a breach of the assignment.
The judgment is, therefore, reversed, and the cause dismissed. | [
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Grieein Smith, C. J.
This cause was tried upon the theory that a contract of September 14, 1935, signed by W. G. Furry, Ell Edwards, and J. H. Cole, created a partnership .
Edwards and Furry were owners of one-half of the owner’s royalty in certain lands upon which oil was being produced at the time the agreement was consummated. The Edwards-Furry interests in such lease was pledged to Cole to the extent of $750 in connection with an advance of $2,000 he was to make for use in developing oil and gas on other leases. For the purpose of this opinion the interests of Edwards and Furry in the owner’s royalty from which $750 was conditionally to have been repaid will be referred to as Tract No. 1, and the lands upon which there were operations under the contract of September 14 will be referred to as Tract No. 2.
Under the agreement whereby Cole advanced $2,000, Edwards and Furry contributed $500. The Edwards-Furry note of September 14, 1935, for $750 was due . . one year or before after date,” with interest at 10 per cent., and was the joint and several obligation of the makers.
From time to time during 1935 and 1936 Cole made other advances — a total of $11,100. In most instances when a check was written, a note for half the amount remitted was executed by Edwards and Furry. These notes contained the expressions: — “As per contract after date, for value received, I, we, or either of us promise to pay”; or, “after date, for value received, I, we, or either of us promise to pay.” The phrase “. . . as per contract executed September 14, 1935,” appears in some position in each note. Except as to the first note there was no fixed due date.
J. H. Cole died in September, 1937. W. H. Cole (a son) found among his father’s papers Edwards-Furry notes aggregating $5,300, inclusive of the $750 item. As administrator, W. H. Cole sued on the notes. Service was had on Furry, but Edwards was beyond the court.’s processes and did not enter his appearance.
Defense was that the references “as per contract” found on the notes constituted in each instance a reservation as to payment; that the entire fund advanced by appellant’s father was for partnership purposes; that the notes were executed as memoranda only, to indicate the amount Cole would be entitled to receive from oil or gas production; that the venture did not prove profitable, although oil and gas in small quantities were found; that the partnership had not been liquidated, and without a sale of assets it was impossible to determine the true status of affairs; that all books, records and accounts were in possession of Edwards, and he was in Oklahoma.
The suit, brought in circuit court, was by agreement transferred to chancery, where the complaint was dismissed for want of equity. As expressed by the chancellor, “. . . the partnership has not been settled, with findings of indebtedness of one partner in favor of another, and the notes are qualified by the terms of the contract, to which each refers. ” _;
The contract shows that $2,500 was requiried for the initial undertaking. Of this amount $2,000 was supplied by Cole and $500 by Edwards and Furry. But, as to Cole’s participation, $1,250 appears to have been an investment, while $750 is conceded to have been a loan secured by values in Tract No. 1. By this arrangement Edwards and Furry were responsible for $1,250. Cole invested an equal sum. It is not at all certain the contract created a partnership. However, it is not-necessary to pass upon this question, and it is pretermitted. What seems conclusive is that Cole (with the exception of $500 initially paid in by Edwards and Furry) supplied all of the money spent in developing the property.
After completion of the well mentioned in the contract two others were drilled. Furry testified that the first well yielded “considerable profit” from the sale of oil and gas.
By deposition Edwards testified there had been no court action ‘ ‘ to wind up the partnership ’ ’; that oil and gas development continues; that he has charge of all books, papers, records and physical properties; that no profits were earned, but on the contrary there had always been an indebtedness; that the money provided by Cole was used in developing, equipping, and'operating the leases, and that all income from development had been used in the same way.
By payment of $1,250 and through loan of $750, Cole acquired a one-half interest in the leases embraced within Tracts No. 2. Apparently it was not in contemplation that more than one well was to be drilled through use of original capital. An additional obligation assumed by Cole in the event a producing well should be brought in required that he “. . . finance the necessary expense of connecting said well with the pipeline.”
Edwards and Furry both testified that there was no oral agreement subsequent to the writing of September 14. We must, therefore, construe the contract of the parties in the light of what the signed' agreement undertook to accomplish.
It seems to have béen contemplated that the investment of Edwards and Furry should equal that made by Cole, even though the latter, in order to equalize available cash, had to lend his associates $750. This being the apparent purpose, it follows that subsequent advances were shaped by the same pattern- — one-half being Cole’s investment, and one-half being the investment of Edwards and Furry. That Cole chose to lend Edwards and Furry an amount equal to his own investment is not a mere supposition to be discounted because the notes bore references to the contract of September 14. That contract fixed the ratio of investment to loan, and it is authority for appellant’s contention that the note was intended to be paid. If this is true (and assuming, without deciding', that there was a partnership) the amounts advanced to Edwards and Furry individually would not be matters within the partnership relation.
We think the contract and the manner of repayment had reference to the investment made by Cole, and not to money he loaned. Of the first $2,000 advanced there was no intent that Cole should be repaid $1,250 — his investment — other than to the extent of his one-half participation in production, etc.
In reversing the judgment we do not act with a settled conviction that appellee’s construction of the contract, is wholly untenable. Yet, in view of the fact that the contract was drafted and transcribed by Furry, its ambiguous provisions must be construed most strongly against him.
The judgment is reversed, and judgment given here on the notes, with interest in accordance with their terms.
The contract, signed by W. G. Furry, Ell Edwards, and J. H. Cole, dated September 14, 1935, follows: “Whereas, W. G. Furry and Ell Edwards . . . are joint owners of one-half of the owner’s royalty in [the northeast quarter of the northwest quarter of section 33, township fifteen, range fourteen east, Okmulgee county, Oklahoma], . . . and the said Furry and Edwards are also the lease owners in and to [the northwest quarter of the northeast quuarter of section 33, township fifteen, range fourteen east, and the south half of the northeast quarter of section 33, township fifteen, range fourteen east, Okmulgee county, Oklahoma], which lease will expire by January 1, 1936, unless lessee shall commence drilling of a well on said premises before January 1, 1936, and prosecute said drilling with due diligence to the Red Fork sand,' found at about 1,500 feet, unless oil or gas is found in paying quantities at a lesser depth.; . . . Now therefore, . . . we, W. G. Furry and Ell Edwards, as owners above stated and set forth, for and in consideration of the sum. of $2,000 to be paid by J. H. Cole, of Alma, Arkansas, do hereby grant, bargain and sell unto the said J. H. Cole one-half interest in and to the aforedescribed leases on the lands last described. . . . The said Furry and Edwards put in the sum of $500 cash and the said J. H. Cole pays into the said Edwards and Furry the sum of $2,000, which sum is to be used by the said Ell Edwards as supervisor in commencing as soon as possible a well for gas or oil upon the premises aforedescribed in said leases, and said drilling shall be prosecuted with all due diligence: It is further agreed by and between the parties hereto that if the first well drilled upon said leased lands shall be a non-producing well, that the said Furry and Edwards shall assign their royalty payments over to the said J. H. Cole, said lands being the northeast quarter of the northwest quarter of section 33 [etc.] until said royalties due Furry and Edwards shall have repaid to the said J. H. Cole the sum of $750; whereupon the said royalty payments shall revert to the said Furry and Edwards, it being the intention of Furry and Edwards to secure to the said J. H. Cole the loan of $750 included in the said $2,000 cash put into the leases by said J. H. Cole for development of said leases. It is further understood and agreed in consideration of the premises that in case a producing well is brought in on said leased lands, the said J. H. Cole is to finance the necessary expenses of connecting said well to the pipe line, and it is understood and agreed that the said J. H. Cole shall receive all financial returns from the production of oil and gas on said lands until he shall have been repaid all moneys invested in said leased lands, save and except the sum of $1,250. After said moneys put in for financing the leased lands and necessary production have been repaid to said J. H. Cole, then and thereupon the said J. H. Cole shall receive one-half of the returns of production and W. G. Furry and Ell Edwards shall receive one-half of the said financial returns from said leased lands by oil or gas production thereon.” | [
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Humphreys, J.
Appellant, B. L. Johnson, obtained a judgment against W. T. Lane, Jr., on August 22, 1932, in a foreclosure proceeding in the chancery court • of Craighead county and on August 17, 1937, said judgment was revived in a proceeding for that ■ purpose. Not being able to collect said judgment by execution or other wise appellant brought this suit in said court against appellees to cancel a deed executed by W. T. Lane, Jr., and Nell Lane, his wife, who died before the institution of this suit, on June 1, 1920, to the Home Mission Board of the Southern Baptist Convention conveying the following described real estate situated in Craighead county, state of Arkansas, to-wit:
“The southwest quarter of the southwest quarter of section nineteen (19), township fourteen (14) north, range four (4) east, containing forty (40) acres. Also the south half of the south half of the southeast quarter of the southwest quarter of section nineteen (19), township fourteen (14) north, range four. (4) east, (except 2 acres east of Main street), containing ten (10) acres,” and to subject said real estate to the payment of his judgment.
The deed sought to be canceled was made an exhibit to the complaint and is as follows:
“Know all men by these presents:
“That we, W. T. Lane, Jr., and Nell Lane, his wife, for and in consideration of the matters hereinafter set forth, do hereby grant, bargain, sell and convey unto the Home Mission Board of Southern Baptist Convention and unto- its successors and assigns, the following described real property, situated in the Jonesboro district of Craighead county, Arkansas, subject to the reservations and conditions thereinafter set forth, to-wit:
“The southwest quarter of the southwest quarter of section nineteen (19) township (14) north, range four (4) east, containing forty (40) acres. Also the south half of the south half of the southeast quarter of the southwest quarter of section nineteen (19), township fourteen (14) north, range four (4) east, (except 2 acres east of Main street), containing ten (10) acres.
“To Have and to Hold the same unto the said Home Mission Board of Southern Baptist Convention and unto its successors and assigns together with all appurtenances thereunto belonging except such as are hereinafter reserved and excepted.
“And I, Nell Lane, wife of the said W. T. Lane, Jr., for the consideration aforesaid do hereby release and relinquish unto the said Home Mission Board of Southern Baptist Convention all of my right of dower and homestead in and to the said lands.
“The grantor, W. T. Lane, Jr., specially reserves any buildings, fences or other improvements now located upon said property with the right to remove the same at any time within thirty (30) days' after the grantee may give notice of a desire to use said property. In making this conveyance grantors herein transfer this property as being of the value of twenty thousand dollars ($20,000) and said property is conveyed as a donation or gift to the Home Mission Board of Southern Baptist Convention as the location for a school or college, which will be erected upon or near the said lands so given and this gift or donation is made with the understanding and agreement that if said school or college be not erected within four (4) years that these lands are to revert to grantor, W. T. Lane, Jr., or to his heirs or assigns.
“It is understood and agreed, however, that as soon as the grantee shall have expended as much as two hundred fifty thousand dollars ($250,000) in the erection of the contemplated improvements upon said grounds or grounds adjacent thereto, then this deed becomes absolute and unconditional so long as the said lands herein mentioned shall be used for the purpose of the aforesaid school or college. It being the intention of the grantor, W. T. Lane, Jr., herein that the grantee may use said property for school purposes or may sell or transfer or assign same to any other organization to be used for such purposes, and title shall remain in the grantee or its assigns so long as a protestant school or college shall be kept or maintained, but said lands, or any part thereof shall not be sold or transferred for any kind of private or individual use, nor for speculative purposes, but if the same shall be sold, or shall cease to be used for school purposes as aforesaid, then the title shall revert to the said W. T. Lane, Jr., or to his heirs or assigns, hut the grantee or its assigns may take or remove any buildings or improvements placed thereon by it or them.
£ £ Given unto our hands on this 1st day of June, 1920.
££W. T. Lane, Jr.,
££Nell Lane.”
The deed was properly acknowledged, delivered, and recorded in the ex-officio recorder’s office in said county.
It was alleged in the complaint that the grantee, Home Mission Board of the Southern Baptist Convention, did not at any time undertake to convey said described real estate or to transfer any interest therein, but that for some years an association or group of people having no legal organization or incorporation assumed or exercised under the name of Jonesboro Baptist College some proprietary interest in or possession of said described lands and that Dr. G. C. Jernigan, Landrum Newcom and Alfred Carpenter, holding themselves out as trustees, undertook for and on behalf of said alleged Jonesboro Baptist College to pass back to the original grantee, Home Mission Board of the Southern Baptist Convention, any and all rights which may have been claimed, exercised or enjoyed by said Jonesboro Baptist College. It was further alleged in the complaint that the conditions and reservations of said original deed were never complied with for the following reasons:
££ First, grantee never has expended as much as $250,000 in the erection of the contemplated improvements on said grounds or grounds adjacent thereto, and therefore, said deed never did become absolute and unconditional so long as said lands were used for school or college.
££ Second,, said land has ceased to be used for school purposes for a period of three years; that there is no intent, purpose or possibility of said property again being used for school and college purposes within the meaning and purpose expressed in said deed of conveyance, and, therefore, under the terms and provisions of said deed, the title shall revert to the said W. T. Lane, Jr., Or his heirs or assigns.
“Third, said described lands have been offered for sale for purposes other than school purposes as specified and intended under the conditions, limitations, and restrictions of said original deed:”
“To this complaint the appellees, W. T. Lane, Jr., and Dr. Gr. O. Jernigan, Landrum Newcom and Alfred Carpenter, as trustees and executive committee of Jonesboro Baptist College, for their demurrer and answer to the complaint herein respectfully state:
“The complaint does not state facts sufficient to constitute a cause of action against said defendants and appellant has not alleged any ground on which he might exercise any alleged right of re-entry for alleged breach of condition in view of the fact that the complaint does not show that the said W. T. Lane, Jr., ever re-entered or elected to re-enter for breach of any such condition.
“And reserving said demurrer and saving exceptions if it be overruled, said appellees answer as follows: “Said appellees deny each and every material allegation of the complaint and traverse said allegations as fully as if each paragraph and statement was denied separately.”
During the pendency of this suit and after the answer aforesaid had been filed, an amendment was filed to the complaint alleging, in substance, that on or about January 3, 1938, the trustees and executive committee of Jonesboro Baptist College as well as W. T. Lane, Jr., had executed oil leases to the Tennark, Inc., a foreign corporation, but who maintained an office in Jonesboro, Arkansas, through and by Claude B. Sewall and Charles F. Walker, its duly authorized agents, The Tennark, Inc., Claude B. Sewall and Charles F. Walker were made parties defendant and they and the executive committee of Jonesboro Baptist College and W. T. Lane, Jr., filed answers to the amendment to the complaint relative to the purpose for giving these leases, but we deem it unnecessary to set out their pleadings under our construc tion of the original deed and the effect thereof. We have ■concluded under the authority of Pettit v. Stuttgart Normal Institute, 67 Ark. 430, 55 S. W. 485, that the deed from W. T. Lane, Jr., and wife to the Home Mission .Board of the Southern Baptist Convention conveyed a ■determinable fee in the property. The Home Mission Board of the Southern Baptist Convention was to have this property so long as the school or college was maintained thereon. In the Pettit case the grantor deeded the property involved to the grantees so long as the •grantees should use the property for school purposes which are exactly the words used in the deed from W. T. Lane, Jr., and his wife to the Home Mission Board of the Southern Baptist Convention. The use of property :in the Pettit case was discontinued for school purposes and this court held that it reverted upon failure to continue the school to the grantor, holding that the effect ■of the deed was to convey to the trustees of the Stuttgart institution a qualified or determinable fee in the “block of land involved. In the instant case the evidence ■shows that at the time appellant instituted this suit the -property conveyed by W. T. Lane, Jr., and his wife to the Home Mission Board of the Southern Baptist Con-vention had ceased to be used for college or school purposes and the estate acquired by the Home Mission Board of the Southern Baptist Convention being a qualified . and determinable fee reverted eo instanti to the •grantor, W. T. Lane, Jr. We think the effect of the 'Pettit Case was to rule that when a qualified or de-terminable fee passed to the grantee upon the failure of -the purposes of the grant the property reverted to the -grantor. There seems little conflict in the authorities -that where a determinable fee is granted upon a con-tingency or a future event that when the contingency or -future event happens the estate is terminated ipso facto -without any entry or claim by the person to whom the -estate reverts:
In Magness v. Kerr, 121 Ore. 373, 254 Pac. 1012, pp. 1470-1471, A. L. R. 51 it is said “The distinction between an estate upon condition and an estate with, a limitation annexed is clearly recognized by courts and text-writers, and the difference between the two is illustrated in 2 Washburn on Real Property, 5th ed. 458, as. follows: ‘A grant to A. B., provided she continues unmarried, is an estate upon condition; and if she marries, nobody can take advantag-e of it to defeat the estate but the grantor or his heirs. But a grant to A. B., so long as she continues unmarried, is a limitation. The moment she marries, the time for which the estate was to be held has expired, and the estate is not technically defeated, but determined.’ ”
Again it is said in 51 A. L. R. 1473 that: “The distinction between an estate upon condition subsequent and one subject to a conditional limitation (sometimes characterized as £a condition in law’) is that in the case of the former the words creating the condition do not originally limit the term, but merely permit its termination upon the happening of the contingency, while in the case of the latter the words creating it limit the continuation of the estate to the time preceding the happening of the contingency. In other words, the breach of a condition subsequent merely gives the grantor or his heirs the right to secure a revesting of the former estate, so that, if no steps are taken to secure a revesting, the estate granted remains as before, while the happening of the event described by a conditional limitation ipso facto determines the estate.”
Our conclusion is that since the Home Mission Board of the Southern Baptist Convention acquired a determinable, base or qualified fee the title reverted immediately to W. T. Lane, Jr., when it ceased to use the property for college and school purposes and it was not necessary for W. T. Lane, Jr., to re-enter the property in order to regain the title thereto. It revested in him at once upon the happening of the contingency and became subject to the just claims of his creditors.
The decree of the court is, therefore, reversed and the cause is remanded with directions to the trial court to cancel the deed and by proper orders to sell the land in question at public vendue to satisfy the judgment of appellant against W. T. Lane, Jr., with costs. | [
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Griffin Smith, C. J.
Appellant’s motion for a new trial alleges 26 errors. Assignment No. 24 is determin ative: the court erred in refusing defendant’s requested instruction No. I.
Appellee, alleging that while employed by J. L. Williams & Sons, as a log cutter, he received personal injuries, seeks compensation upon the theory that a fellow servant’s negligence was the proximate cause. Averment is that while appellee was attempting to move a limb from a tree he and Havis Wilson had felled, Wilson suddenly severed the limb from the body of the tree. It is admitted that it was Wilson’s duty to cut the limbs, but negligence is urged in that Wilson failed to notify appellee that he intended to sever the particular limb in question, and that there was a failure to use ordinary care in ascertaining appellee’s position of peril.
We do not determine questions of assumed risk and contributory negligence. Since appellant’s request for an instructed verdict should have been given, other points of controversy are unimportant. The instruction was necessary because appellee was a servant of Z. T. Allen, a contractor independently employed by appellant, and appellant did not exercise supervision over the methods employed in producing contractual results, nor did it interfere with operations by directing the means of production.
Transactions relied upon by appellee to prove (1) that Allen was not an independent contractor, and (2) that if such relationship originally existed it was destroyed insofar as appellee is concerned by conduct of appellant and its agents, are that Tom Allen (appellant’s woods foreman and a brother of Z. T. Allen) told workers what length logs were to be cut. It is further claimed that the foreman informed the men that the federal wage and hour law had become effective and that it would be necessary for employees to cut enough footage to earn $1.25 a day “or hunt another job”; that a company employee scaled the logs; that if Tom Allen were in the woods he would tell the workers what size timber should measure at the stump; also, he would direct them how to care for the small growth. He usually came out once a week (sometimes two- or three times a week), but at other times wordd send word by the drivers. Orders were issued on appellant’s commissary. Appellee and Wilson each earned 62% cents per thousand feet for their work in producing log’ lengths. Appellee “got one check from J. L. Williams & Sons.”
Appellee conceded that Z. T. Allen was the only one who talked to him about the job, but insisted that the Williams company required its employees to carry insurance. Appellee had served a penitentiary sentence for burglary and grand larceny. In connection with his employment, appellee testified that Z. T. Allen told him he (Allen) “had room for another saw hand for J. L. Williams & .Sons”.
Z. T. Allen testified to a contract with appellant, made through Tom Allen. Logs were to be delivered on skidway for $7.50 per thousand feet. Allen furnished his own trucks and other equipment and employed his own men — “I just worked under a contract to put the logs to the mill at that price”. Witness had done contract work of a similar nature for others. He employed appellee and Wilson, but arranged through the Williams company to get advances. — “I made arrangements with the bookkeeper to pay these saw hands when their time came through so I would not have to keep up with it. They got groceries at the commissary regularly and [the amounts paid appellee and Wilson] were deducted [in arriving at the balance due me by appellant].”
Allen also testified that the men were paid by appellant’s bookkeeper or cashier, but that such payments were charged to his logging account. Witness admitted that his truck was in the name of one of his sons, and that a team was in the name of another. He did not make any profit on the work done by appellee or Wilson.
Appellant’s bookkeeper testified that logs coming in from a particular .job were measured by mill scalers. If the contractor wished a person to be paid, the scaler was instructed to prorate the credits at so much per thousand feet, or at so much per day, or in such manner as the contractor might direct. Such items were credited to the men whose names were handed in by the contractor and were charged against the logs. In this way it was designated that Hunter and Wilson should receive $1.25 per thousand feet on logs marked “No. 4”, with a corresponding charge to Z. T. Allen’s account. The amounts absorbed by Hunter and Wilson at the commissary were likewise charged to Allen’s account.
There is this testimony by the bookkeeper: “Every employee of the company is required to pay 1% of his wages to social security and the company is required to pay 1%. If Jesse Hunte'r and Havis Wilson had been carried on the books as company employees they would have been required to pay monthly 1% of their wages . . . Z. T. Allen did not have a social security account, as he was not an employee.”
Tom Allen admitted having told different groups of loggers that the wage and hour law had been enacted by congress, and says he told the contractors they would be expected to comply with its terms. He insisted, however, that he was not talking with or addressing the men other than by way of information.
There is accord in respect of the circumstances of appellee’s employment to this extent: he was told by Z. T. Allen that the latter had a place for him.
In effect there is no difference in the testimony regarding methods of payment as explained by witnesses for the disputants. Controversy arises over effect to be given conceded transactions, or inferences to be drawn from beliefs and suppositions.
Allen’s contract was oral. As to its terms, neither appellee nor his witnesses professed to have information. ■ If its tenor was that testified to by Allen, he was not an employee of appellant! Given its highest probative force, the evidence on behalf of appellee assumed that because of certain conduct upon the part of Z. T. Allen and appellant, there was a reasonable inference that Allen was appellant’s servant, or that his activities were directed to such an extent as to superimpose upon appellant responsibility for the methods utilized in reducing the trees to sawlogs. To sustain this contention the activities of Tom Allen in specifying log lengths, in instructing as to care of small timber, and other collaborations are pointed to.
The naked statement of appellee that he was working for appellant is his own conclusion. It is possible he believed this to be true. He had been reared by the Allen family. As one of witnesses expressed it, “he had grown up in their home”. Quite naturally he did not question Z. T. Allen when the latter stated that employment was available. Payment at the commissary, or by appellant, in the manner described by appellant’s bookkeeper and concurred in by appellee, was not inconsistent with Allen’s contract to deliver logs at $7.50 per thousand feet. Credit at the commissary was a matter of mutual convenience.
It is common knowledge that hundreds of logging operations throughout the state are constantly handled under contract, both oral and written, which leave to the performing party complete independence in effectuating the purposes of such contract. While the facts of each case should be carefully examined when suits are filed for personal injuries resulting from operations conducted by so-called independent contractors,' something more than speculation and conjecture is necessary to convert a bona fide contract independently performed into one of master and servant.
In Moore and Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, there is a review of decisions of this court dealing with the controverted subject of independent contractor, or master and servant. Many cases from other jurisdictions are cited.
We think the principles announced in the Phillips Case are controlling here. Attention is directed to Farmer Stave & Heading Company v. Whorton, 193 Ark. 708, 102 S. W. 2d 79. An oral contract was there involved.
For the error heretofore mentioned the judgment is reversed, and the cause dismissed.
Assignment No. 24 is: [The verdict should be set aside and a new trial granted] “Because the court erred in refusing to give defendant’s requested instruction No. 1 over the objections and exceptions of the defendant [as follows]: ‘You are instructed to find for the defendant, J. L. Williams & Sons, Inc.’ ” | [
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Baker, J.
This is the third appeal of this case, but the issues have not been exactly identical each time. The report of the first appeal appears in 189 Ark. 449, 74 S. W. 2d 232; the second, 194 Ark. 925, 109 S. W. 2d 1251.
In the second opinion we mentioned and discussed some announcements in the first opinion “as the law of the case.” To save time and space we incorporate by reference only such former declarations “as have become the law of the case” with controlling effect not only upon the trial court, but upon this court upon appeal. We have called attention to this principle of law for the reason we do not now intend to give a reconsideration of any of the propositions already settled. But we do quote from the last opinion in order that the particular matters not already foreclosed by the two prior decisions may appear. This language is found at the top of page 929 of 194 Ark., 109 S. W. 2d 1251, the second opinion as officially reported . . . “but the statute did not in terms declare the contract to be null and void, that- the parties to it having performed the contract in good faith, might, retain out of the proceeds received from the operation thereof the reasonable value of the services rendered, etc. ” It is also true we said that under the facts the “relation of trusteeship still exists and has existed all the time. ’ ’ But this last declaration was not intended to negative the effect that appellants were entitled “to retain . . . the reasonable value of services rendered.” This matter is concluded by directions' given upon reversal as appears from the final paragraph of the opinion. The trial court was directed “to reinstate the complaint and to state an account between these parties taking as a basis therefor the amount they have received in operating the plant and deducting therefrom a reasonable compensation for operating the same, and to render a judgment in favor of appellants for any balance that may be due them, etc. ” ’ ’
Upon the reversal and remand of the case with the directions above quoted, the trial court appointed a master to state an account. A large volume of evidence having already been taken, the parties agreed to submit the matter of accounting upon that proof.
The master, after nearly or about a year’s study, submitted a tentative or first report. Early hearings were had upon objections and exceptions. Thereafter the first, or tentative report, was corrected in some particulars and a final or supplemental report was filed. Exceptions were filed and upon the issues thus made the trial court heard arguments and considered briefs.
After what appears to have been a full consideration, the report of the master was approved in all particulars except upon the matter of interest. The court held that the master had erred in the failure to compute interest from the 1st of July, 1934, at 6 per cent, per annum. The exception of the plaintiffs in regard to the interest charge was the only exception that was sustained. The master’s report was filed, showing plaintiffs were entitled to recover $18,452.54. The interest charge having been added, the recovery was for $23,862.18. ■
From the decree of the court comes this appeal urging many exceptions. Appellees have prayed and been allowed a cross-appeal.
We do not feel warranted in any effort to set forth the great array of evidence produced and considered upon this trial. We shall content ourselves with an announcement of conclusions reached after due consideration of all matters in evidence.
The first matter we • consider is the action of the court in overruling a motion of appellant for permission to introduce additional proof after the master’s report had been filed.
Appellants allege that after the reversal of this case on the second appeal the appellant installed a meter to. determine the amount of current used by the water department. Prior to that time, current to operate the ice-plant and water department was-measured by a singlé meter. As appellants had realized the necessity for determining actual costs of water service, a' separate meter was installed. Meter readings from that time were attached to the motion.
Of course we understand this evidence was important largely for purposes of comparison. The motion shows that a greater part of the time, if not all of it, wherein the current was metered to the water department was long after all proof-taking had ended by agreement, and, we may add, possibly after substantial changes had taken place. We find no criterion whereby we might be justified in holding the court abused judicial discretion in denying the motion. Fromholz v. McGahey, 120 Ark. 216, 179 S. W. 360; Hollabaugh v. Taylor, 134 Ark. 415, 204 S. W. 628.
The next item we desire to dispose of is the value placed upon the reservoirs by the master and used by him in the computation of a reasonable return to the appellant company. This value was determined to be $7,900.02. In arriving at this figure the testimony of several witnesses was heard. One fixed the original cost at $10,000. Another computed reproduction value as of the date of testimony. We do not accept this as a challenge to decide between the value determined by actual cost and one estimated by an expert as for reproduction. The master was not bound to accept either of the statements, each contradictory of the other as the correct one. But if we assume no other witnesses testified, certainly both the master and court might accept as conclusive that which they find most convincing, and do so without error.
It suits our purpose best to consider next the value of the land, one-third of which was devoted to the water plant. One witness has fixed the value at $10,000 considering some appraisement, not introduced, another witness fixed the value at $6,000, and finally a former tax assessor who qualified by testifying he was acquainted with real estate values, fixed the value at $1,250. The fact also appeared that one-half of one of the two lots was purchased for $150. Now with this statement of the evidence in this regard, we hold the report and its approval determining the value to be $1,250 with approximately one-third part thereof, or $450, allocated to the water department, were justified.
Another item we shall discuss as an alleged error most strongly insisted upon by the appellant is that there were used 220,000 K. W. H. electric current pumping water and that the master erred in allowing only 76,000 K. W. H. per annum. .
To reach this conclusion the master accepted the statement of Mr. Frank Wilkes that there was a consumption of 480,000 K. W. H. to operate the ice plant and to operate the water system. He accepted also the same witness ’ statement in regard to the amount of the ice produced and the current necessary for that production. The requirement found necessary was taken from Mr. Wilkes ’ total of 480,000. Certainly this may be regarded as fair to the appellant company when we give consideration to the fact that it was shown that there were times in ice-making when water at the rate of about or nearly 200 gallons per minute was played over the coils. 'But we give attention to arguments of counsel based upon evidence of average consumption per customer to which is added 30 .per cent, for fire hydrants, flushing sewers, and waste.
From that viewpoint approximately the same result was reached; but there is still another test. The appellant company paid over to the city ten per cent, of gross proceeds from the water plant, and the calculation based on this admittedly correct report of the appellant com pany supports the master’s deductions as confirmed by decree of the court.
• The city required the appellant to install an automatic valve in the water system so that when high pressures were required this was had from the pump rather than from the standpipe, or water tower. At least, we so understand the evidence. The valve cost $1,200. The evidence shows the motor operating this valve burned out shortly after installation and was never repaired. Appellant company now insists this article was 100 per cent, depreciated and such credit should have been allowed.
If we accept the proof as stated, the valve was either of no value, or was so improperly installed as to cause the operating motor to burn out very shortly after installation. It never served the purpose intended nor met requirements of appellees in supplying an added protection against fires. Certainly, with no further explanation we cannot say, as a matter of law, appellant should not be responsible for the quality of the article it selected, or for the manner of installation.
The foregoing discussion is sufficiently extensive to show why there is a wide variance in the holding, or finding of the master, as approved by decree of the court, covering value of supplies or commodities as determining capital investment upon which appellant company had the right to expect a reasonable return. Since ordinarily losses only, not profits, accrue from poor or ill considered investments, or improper installation, we are persuaded the appellant company may not now insist upon a reasonable return upon capital already lost even though the loss was the result of decreased cost of materials or labor that entered into the original investment.
We have given due consideration to other exceptions of the appellant although we do not discuss them. None of them seems more substantial than those we-have considered.
We have in like manner fully considered every question raised upon the cross-appeal and find there.is very little substantial merit in most of these matters.
One of these insistently urged on this cross-appeal is the allowance of $650 taxes. The master indicates that the amount may be hig’h, but that he has followed the evidence given by Mr. Wilkes. If we understand appellee’s controversy upon this item, they sustain their contention that the allowance is excessive by stating an amount of taxes for each year, and they say: “This is shown by the certificate of the county clerk,” etc. This document referred to does not purport to be a certified copy of any record, but is a certificate of a matter as a fact. It does not appear such a certificate is one authorized by law. We have but recently decided a very similar matter. Pekin Cooperage Co. v. State, use of Pike County, 197 Ark. 341, 122 S. W. 2d 468.
We must, and do, presume the decree was based upon legal evidence only and we find no error in the decree upon this point. Niagara Fire Ins. Co. v. Boon, 76 Ark. 153, 88 S. W. 915; Baldwin v. Brown, 166 Ark. 1, 265 S. W. 976.
There is also objection to an allowance of two cents per K. W. H. for all electric current used to supply water. It appears from the report that this charge was usual to large consumers, and that it was regarded as one upon which the appellant had a margin of profit. It was in this manner our directions to allow a reasonable compensation were interpreted. We think there was no error in this respect.
Upon Mr. Wilkes’ testimony there is a basis for allowance of items for repairs, stationery and other office expenses. Such allowances were not arbitrary, but based upon proof adduced without objection.
It now appears to us that the report of the master and decree provide reasonable compensation for all water pumped or produced for the water works department connected, as it was, with the ice plant. There seems to be at least -30 per cent, allowance for fire hydrants, flushing sewers and waste. Certainly appellants are not insisting upon any return approaching $36 per year, or any other sum, usually charged for rentals by such utilities when they furnish these hydrants. The water im provement district, not the appellant, installed the hydrants in the instant case.
No good purpose may be accomplished by a more extended comment upon matters already disposed of, nor by further discussion of less important items not mentioned.
The issues have been in a very great degree but a settlement of disputed questions of fact, and we hold these have been correctly decided.
The decree is affirmed. | [
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Holt, J.
Appellants bring this appeal-from a foreclosure decree in tbe White chancery court.
On May 6, 1932, Eolsie Cox, now deceased, and his wife, Ollie Cox, executed a note to Neal Peebles in the sum of $265 and gave a deed of trust on certain real property in Searcy, Arkansas, as security.
On May 5, 1938, Neal Peebles, one of the appellants, brought suit on the note and sought foreclosure under the terms of his deed of trust. He named as defendants, Ollie Cox, widow of Eolsie Cox, and their four minor children, James H. Cox, Virgie Cox, Ethel Cox, and Pauline Cox, and T. A. Watkins, trustee in the deed of trust,, and Gulden Blount, who held a second mortgage on the property in question.
On September 12, 1938, a decree was entered awarding a judgment in favor of Peebles in the sum of $139.57 and the property ordered sold by O. L. Fisher, appointed by the court as commissioner to make the sale. The property was properly advertised and sold to appellee, W. N. Wilkerson, for $172.50, and in due course this sale was confirmed by the court, the commissioner was ordered to prepare a deed and, quoting from the decree, “that upon the payment of the costs the commissioner is directed to make a deed to the purchaser and present same to the court for suitable action thereon.” When this deed was tendered to the purchaser,- Wilkerson, by the commissioner, Fisher, Wilkerson refused to accept it.
The commissioner, O. L. Fisher, then filed petition in the cause seeking to compel Wilkerson to comply with his bid and accept deed to the property. To this petition appellee, Wilkerson, filed an answer, or a response, and asked that same be dismissed because the decree of foreclosure was void. The- chancellor entered a decree dismissing the commissioner’s petition for want of equity, and from this decree comes this appeal.
It is earnestly insisted here by appellants that inasmuch as the decree of foreclosure was rendered in this, case on September 12, 1938, the regular term of court having expired thereafter on the second Monday in December, 1938, the decree became final and the attack upon it by the purchaser, appellee Wilkerson, is a collateral and not a direct attack, and that, therefore, the chancellor had no authority to set the decree aside and that Wilkerson is bound by its provisions and must be required to comply with his bid.
We cannot agree with this contention of appellants.
While the foreclosure decree did recite that the four minor children of the deceased, Rolsie Cox, and his wife, Ollie Cox, were duly served with summons, an attorney ad litem duly appointed to defend for them and that a proper answer was filed in their behalf, it stands undisputed in the record before us that no summons was ever had upon these minor defendants in compliance with § 1370 of Pope’s Digest. No guardian ad litem was ever appointed to represent these minor defendants, nor was any answer filed on behalf of said minors by anyone in compliance with § 1330 of Pope’s Digest.
While it is true that appellee Wilkerson’s attack on the foreclosure decree of September 12, 1938, was not made until after the expiration of the term in which the foreclosure decree was entered, the chancellor never lost control over this cause, but specifically, in the last paragraph of the foreclosure decree, retained control for further orders and proceedings in the following words: “And the court doth retain control of this cause for such further orders as may be proper and necessary to enforce the rights of the parties hereto, as herein adjudged, and the rights of such others as may hereinafter become parties to this action by proper proceedings.”
The parties to this cause have never changed. The petition filed by Commissioner Fisher in which he sought to compel appellee Wilkerson, the purchaser at the foreclosure sale, to accept the deed, was a proceeding-in the same suit. Appellee Wilkerson’s answer to this petition and motion to dismiss same was in the nature of a direct attack on the decree in question, setting up that the decree was void for the reasons that the minors in question had never been legally served with process, and no answer liad ever been made for them by a proper guardian ad litem or anyone else.
■ It is our view that the chancellor clearly acted within his power and discretion in dismissing the interventions of O. L. Fisher and Neal Peebles since he had retained control of the cause until all necessary and final orders had been made. Certainly the matter was not finally closed until the commissioner, Fisher, had executed and delivered a deed to appellee, Wilkerson, upon final order and approval of the chancellor.
We conclude, therefore, that the decree of the chancellor is correct and accordingly we affirm. | [
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Baker, J.
An information was filed in the circuit court for the western district of Carroll county, charging Norman Baker, who will hereinafter be referred to by name, or as appellant, or defendant, with the crime of libel. ' Upon trial there was a conviction with a fine of $2,500. This appeal is from that judgment of conviction. ' The information was based upon an open letter, allegedly written by Norman Baker to and about Mr. and Mrs. Ray Freeman, published in a local newspaper, Daily Times Echo. In the information setting' forth the charge this open letter is copied in full.
“Information
“I, John K. Butt, prosecuting attorney of-the Fourth Judicial Circuit of the state of Arkansas, of which said circuit the county of Carroll, and the western district thereof, is a part, in the name and by the authority of the state of Arkansas, upon information, upon my official oath, at the instance of and with the consent of Ray Freeman and Mrs. Ray Freeman, accuse the defendant, Norman Baker, of the crime of criminal' libel, committed as follows:
“The said Norman Baker, in the said western district of Carroll county, Arkansas, on or about the 15th day of June, 1939, did unlawfully, wilfully and maliciously defame Ray Freeman and Mrs. Ray Freeman, by causing to be printed, and by writing and causing to be published of and concerning the said Ray Freeman and Mrs. Ray Freeman in the Daily Times Echo, a newspaper edited and published by W. E. Diehl in Eureka Springs, Carroll county, Arkansas, and having a general circulation therein, language tending to impeach the honesty, integrity, veracity and reputation of the said Ray Freeman and Mrs. Ray Freeman, which said language in words and figures is as follows, to-wit:
“An open letter to Mr. and Mrs. Ray Freeman and the Eureka Springs Boosters Association (By Norman Baker, personally):
“I address Mr. and Mrs. Ray Freeman in this manner so the citizens can understand the unfair and damaging methods they are using and I address the Eureka Springs Business Boosters, so they can, if they choose, take action against such persons who would stoop to such tactics. It is understood that I write this personally, without any connection with the Baker Hospital, but as an honest and progressive citizen, interested in the welfare and upbuilding of the community.
“Mr. and Mrs. Freeman, I charge both of you with underhanded methods, in your attempt to destroy the business of the Baker Hospital which I founded here. I charge you with telling prospective patients who. stop at your camp, discriminating statements in an effort to turn them back home, to discredit the hospital doctors. I charge you with pure falsehoods against the hospital doctors. I charge you with actions unworthy of being a citizen of this city, I charge you with actions that should bring condemnation upon you by every true and patriotic citizen of the community.
“I freely state that I have affidavits sworn to, to prove all my assertions and such affidavits are open for any citizen to read if they will call at the Baker Hospital office, that I have also caused to be presented, these affidavits to the business people before the Eureka Springs Boosters Association; thereof, I know whereof I speak.
“You are a business man of this city, Mr. Freeman, you own stock in the Berryville Wholesale Grocery, conduct a swimming pool with a charge after the city pool was closed officially, you sell groceries to the local stores, used to sell such to the Baker Hospital who discontinued all business with you, and do you realize that these business people support you by buying from your wholesale house. Do you realize that every person you turn away from this city means a loss to every business person in town,' that those persons you turn away would become patients that stay here for weeks and buy groceries, rent rooms, buy clothes, souvenirs and what nots.
“Could you blame people who suffer from your actions, especially as an official, or the women who belong to the same clubs as Mrs. Freeman, to condemn both of you and refuse both their support in anything?
“Yon are in the habit of telling prospective patients who stop at your camp, according to affidavits I have, that they should not go to the Baker Hospital without investigating about town; about the horrible place it is; about others who came here and went back home, thus deserting our city and spreading unfavorable impressions of the city to the folks back home; that you would not go to the Baker Hospital for anything in the world, that it is not a fit place; that some of the folks are ‘no good folks,’ that there are no licensed doctors at the hospital, etc.
“Still you take these poor folks’ money for your tourist camp room, you are eager to get it, you would get more if you kept your mouth shut and spoke only the truth. You have practiced a seemingly boss rule in your city office, you have literally defied the people to put you out, you are all for Ray Freeman, you know of city affairs that would make bad reading; you know the citizens support you and still you and Mrs. Freeman deliberately try to destroy the biggest and finest institution that ever came to your city since the days of the Frisco Lines opened the Crescent Hotel. Is wreck or ruin your motto?
“To you members of the Business Boosters Association, do you realize and Mr. and Mrs. Freeman’s actions are tearing down the good the Baker Hospital is doing? Do you realize that every person they turn away by discouraging the prospective patients, means that they came here all enthused from our radio talks, regarding the Baker Hospital, the city, that their returning home discouraged robs you of not only the patient, but their friends and relatives who came with them, that such people are the ones who buy your merchandise, your groceries, rent your rooms, buy your gas, oil, garage and all'other things. If they could succeed in turn ing all away, would not your city be in depression and the hospital closed? Some of you buy your goods from the Freeman Store as the Baker Hospital used to do, and do you think his actions in robbing you of customers by turning away people from the city is helping you?
“Surely not, and I feel that every member of your association, every citizen should protest such actions and I think with this exposed showing Mr. Freeman is not acting for the best interest of the city, that he as a city official should resign.
“Wouldn’t your association and the citizens be justified in ousting him from office and running your city in a decent manner ? Mr. and Mrs. Freeman cannot deny the charges made as I have affidavits and will meet both of them in any public meeting and prefer with proofs these charges I have mentioned.
“To the Chamber of Commerce I say this: Do you approve of one of your members, Mr. Ray Freeman, doing these things? If so, then what good does it do to spend the people’s money you collect for advertising for people to come to the city when your own member attempts to turn them away with a bitter taste in their mouth. Shouldn’t Mr. Freeman be expelled from your association and shouldn’t you assist in removing him from city office? With new officials in, the city swimming pool may come back to the kiddies to whom it belongs, and many other things will come to light, with possibly charges against some that will be mighty serious. Can the citizens expect the Baker Hospital and other progressive citizens to give good co-operation as long as these ungentlemanly, underhanded and contemptible things exist?
“Norman Baker.
‘ ‘ Advertisement.
which words and language in their common acceptation are false, and tended to and did impeach the honesty, integrity, veracity and reputation of the said Ray Freeman and Mrs. Ray Freeman, who were at the time living, and the said Norman Baker did thereby unlawfully, wilfully, maliciously and falsely expose the said Ray Freeman and Mrs. Ray Freeman to public hatred, contempt and ridicule, against the peace and dignity of the state of Arkansas.”
The defendant first filed a demurrer, then a motion to quash the information, a motion to dismiss, then a motion for a bill of particulars. All of these several pleadings were denied or overruled by the trial court, except the prayer for a bill of particulars. Whereupon the prosecuting attorney filed a bill of particulars in which there was set forth in full the aforesaid open letter. Thereupon the defendant filed another motion to strike the bill of particulars, and, being overruled, a written plea was filed by him, the effect of which was: 1. That he is not guilty. 2. That the alleged defamatory statements are true. 3. That the alleged defamatory statements are absolutely privileged. 4. That the alleged defamatories are qualifiedly privileged. 5. That the defendant is a citizen of the United States. A trial and conviction upon the information filed therein would result in depriving him of his liberty and property without due process of law in violation of the 14th Amendment to the Constitution of the United States. 6. The defendant is a citizen of the state of Arkansas. A trial and conviction upon the information would result in depriving him of his liberty and property in violation of art. 2, § 8, of the Constitution of the State of Arkansas.
The defendant thereupon attempted to waive trial by jury and was overruled in this matter because of the failure of the prosecuting attorney to agree thereto. The defendant then made objections to the introduction of evidence in the case, said objections being based upon matters raised by the demurrer, motion to dismiss and the final pleas.
It can perhaps serve no good purpose to set forth in minute detail all of the many and several objections made to the information upon which the defendant was tried.
After careful and intensive study, we feel that justice will be served and all rights of the defendant will be protected and preserved by the shortest statement possible under the circumstances indicating the substantial questions presented and argued.
It is urged that the information is bad. (1) Because it was indefinite. (2) Because it did not give the notice sufficient to enable him to defend. (3) Because the court erred in not requiring a definite bill of particulars. (4) Because it contained no allegation of fact which is libelous per se. (5) Because the article published shows on its face that it was privileged.
Whatever may have been formerly argued as to the sufficiency or validity of this information, under the discarded practice in this state may not now be regarded as entirely proper under our present form of criminal procedure. We have heretofore given due consideration to initiated act No. 3, adopted November 3, 1936 (Acts of 1937, p. 1384),. which permits the prosecuting attorney to file an information or to proceed against one by charging him with having committed some offense. This act was provided for by amendment No. 21, adopted November 3, 1936. It is provided that a defendant may be charged in the simplest language with having committed a crime, it being necessary only that the charge in effect be such as to advise the defendant of the nature of the crime so that he may prepare himself to present whatever defense he may have. Instead of the particularity of the old form of charging by. indictment, the act itself furnishes a new form and accepts this as being sufficient to charge one with murder: “Bichard Boe did kill and murder John Doe.” Moran v. State, 179 Ark. 3, 13 S. W. 2d 828.
Of course, this act is applicable in the matter of charging a defendant with having committed any other crime than that of murder, so in this case the defendant is charged with having written the open letter, which is set out in full and which, of course, contains not only the matter alleged to have been libelous, but some other matters connected or associated with the particular offense charged against the defendant. The defendant, in writing the letter set forth the details, the basis therefor, the background with associated and related facts as a reason for his writing the so-called open letter, and published it in a newspaper. The mere statement of these facts as they appear from a study of the instrument itself is conclusive upon the point argued so seriously, that the court erred when it did not require the prosecuting attorney to furnish a bill of particulars. The defendant wrote his own bill of particulars, gave his own reasons or excuses for wanting and publishing the open letter concerning which he is charged. Had the prosecuting attorney selected and set forth only particular parts or portions of the aforesaid letter and had he failed to show the connection and'relation thereof to other portions, it may have been possible to have fallen into error in the failure so to present the charge of libel as to preclude other or further prosecutions growing out of the same letter as written and prepared by the defendant.
The court might properly have denied or refused appellant’s request for the bill of particulars. The argument to the effect that the charge of libel is indefinite is based upon the contention that the pleader did not select from the letter particular portions thereof as being libelous as distinguished from the other connected parts set forth by the defendant himself as explanatory of his own conduct. He begins his letters as quoted above, with the following introduction: “An open letter to Mr. and Mrs. Ray Freeman and the Eureka .Springs Boosters Association. (By Norman Baker, personally).”
The next paragraph is one in which the writer identifies himself and sets forth in his own manner the purposes of the letter. We quote only a part of this first paragraph as the whole letter has hereinbefore been set out. The part to which we now give attention is “I address Mr. and Mrs. Ray Freeman ... I address the Eureka Springs Business Boosters. ... It is understood that I wuite this personally without any connection with the Baker Hospital. ’ ’
The next paragraph is also written in a form in which the author uses also the first person singular. It is: “I charge both of you with underhanded methods, in your attempt to destroy the business of the Baker Hospital which I founded here. ... I charge you with telling prospective patients who stop at your camp discriminating statements in an effort to turn them back home, to discredit the hospital doctors. I charge you with pure falsehoods against the hospital doctors. I charge you with actions which should bring condemnation upon you by every true and patriotic citizen of the community. ’ ’
The parts of the open letter above quoted, some for the second time, will serve very well to illustrate the futility of some of the suggestions argued so fully and forcefully by the defendant. Defendant has chosen for example the sentence wherein the appellant has said, “I charge you with telling prospective patients who stop at your camp, discriminating statements in an effort to turn them bank home, to discredit the hospital doctors.”
We agree that if this particular sentence be severed and read separated from its context, it would perhaps be of little consequence, but left in the setting in which the author placed it, its meaning would not be misunderstood, nor is there real necessity for explanation. One may readily see that the word “discriminating” was used in the sense of disparaging, depreciating and perhaps dishonestly undervaluing-. Had the prosecuting attorney charged libel based on that sentence alone, learned counsel’s insistence that without innuendo or proper pleading, by way of inducement, the charge would not be understood, but pleading by way of innuendo or setting forth matter by way of inducement, explanatory of the phraseology used, is by no means necessary when the particular matter is considered in its relation to the context. A part of this same context is, “I charge you with pure falsehoods against the hospital doctors. ’ ’ It did not serve the author’s purpose to charge merely that Mr. and Mrs. Freeman had told untruths or falsehoods concerning the doctors at the Baker Hospital, but the jury might well have'found from the expression used that it wa,s the intention of the writer not only to say that Mr. and Mrs. Freeman had not told the truth in regard to the doctors, but he meant to emphasize the fact that they had intentionally and knowingly told falsehoods.
If the next paragraph in appellant’s letter be read, it will be found that he is not only making these statements, but he is asserting in a most positive manner that he is “able to prove all my assertions.” He tells of the affidavits he has in his possession and his willingness to show them to people that may he interested. ‘Certainly one who assumes the superior position of being so well informed on the subject concerning which he was writing and publishing his conclusions and deductions from the facts in his possession was not misled or misinformed to the extent that he was unable to defend himself against the charge of libel made against him soon thereafter. ¥e must and do conclude that no innuendo or qualifying-explanation was necessary in this case notwithstanding the holdings and authorities under the more ancient practice. Even an indictment substantially in the language of the statute is legally sufficient. Moran v. State, 179 Ark. 3, 13 S. W. 2d 828.
There are other matters in the open letter as unfounded as the ones mentioned, but it is unnecessary to pursue such subjects further.
The next matter most seriously insisted upon by counsel for appellant is that this open letter was privileged and, therefore, could not become a proper basis for this prosecution. Of course, there may be many charges made by one person against another under such conditions that the charges would be deemed to be privileged and not a proper basis for prosecution to redress the alleged grievance. The best examples of privileged communications are furnished by expressions or arguments in legislative assemblies, or in the trial of cases, or it may be in necessary pleadings filed in the courts raising issues for trial and determination by the tribunals whose jurisdiction has been invoked. Even editorial writings or such really public expressions of opinions in regard to purely public affairs may be privileged or, at least, qualifiedly so, but no such condition as any of these mentioned prevails in this case.
It is argued in the briefs that the Baker Hospital at Eureka Springs is an institution depending upon the public for support and that the appellant here had the right to defend this institution from unjust and malicious attacks, as contained in false or untrue statements. Such a conclusion does not arise out of the issues that have ■been presented, either upon the trial in the lower court or upon this appeal. There is no showing whatever that the Baker Hospital is a public institution. We are willing to presume that it must depend upon the public for support, but in like manner, so must any other community enterprise, whether it be a department store, barber shop, or a meat market. One is no more dependent upon public approval for patronage than another, and yet any one of these probably would be found to be a private enterprise, founded and operated for the profit that would accrue to those in charge thereof.
There is nothing in the record that causes the hospital to appear as an organized charity, conducted in the public interest, and, therefore, perhaps entitled to more protection than is a purely commercial organization.
In spite of the theory upon which this case has been argued, we find that the writer of the letter takes an entirely different viewpoint from that presented by learned counsel in regard to this matter of privilege. He assumes full responsibility for the letter and attempts, contrary to the viewpoint argued, to absolve the Baker Hospital from any or all blame that might follow on account of the publication of the letter. “It is understood that I write this personally, without any connection with the Baker Hospital, but as an honest and progressive citizen, interested in the welfare and upbuilding of the community.”
We find from this quoted part of the open letter the assertion of those purely altruistic principles which motivate and inspire the ideal citizen whose sole object is the upbuilding of the community in which he lives. If this is really the attitude of the defendant he was in position to establish that fact as one must believe by his assertion, “I freely state that I have affidavits, sworn to, to prove all my assertions and such affidavits are open for any citizen to read if they will call at the Baker Hospital office; that I have also caused to be presented these affidavits to the business people before the Eureka Springs Boosters Association, thereof, I know whereof I speak.”
Besides the conclusions above reached it is not improper to suggest that the appellant was by no means deceived or not properly informed as to the issues he had created when the propriety of his open letter was questioned. He did not rely solely upon these affidavits, but he brought and had present in court and presented upon the trial of the case the affiants as his'witnesses.
The foregoing, we think, shows conclusively that the open letter was not a privileged communication, and it was not so regarded by the appellant in the preparation or trial of his case. Indeed, he boasted of the fact that he had a complete defense as contained in the affidavits in his possession. This, of course, was but another method of asserting the truth of the charges he had made.
The foregoing facts are arrived at and determined from the letter itself, except as to the argument made upon the asserted basis or theory of counsel that the Baker Hospital was a public institution.
Some of the authorities which justify our conclusions as to matters privileged are epitomized in 17 R. C. L., p. 330, § 76. It is there said: “An absolutely privileged communication is one in respect to which, by reason of the occasion on which it is made, no remedy can be had in a civil action. The class of absolutely privileged communications is narrow, and is practically limited to legislative and judicial proceedings and other acts of state, . . .”
As to matters that were or may be qualifiedly privileged we have recourse to the case of Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S. W. 257, 36 L. R, A., N. S., 449, Ann. Cas. 1913C, 613, for an example and application. We decide there is not a qualifiedly privileged situation shown here.
We think it must appear, therefore, that the published article was one that was libelous per se, for the reason it “tends to impeach the honesty, integrity, or reputation ... of one who is living and thereby expose him to public hatred, contempt and ridicule.” There is a violation of Pope’s Digest, § 3015. We find, also, in 17 R. C. L., p. 289, §27: “It is well settled that written words charging a person with being a liar or uttering falsehoods are libelous per se.”
The next most important matter in issue is the evidence introduced on behalf of the state by which the state attempted to prove by R. R. Thompson that he was familiar with and recognized the style of writing of Norman Baker. Mr. Thompson was first qualified by a showing that he had been the dean of the faculty at Crescent College at Eureka Springs, having served thirteen years as president thereof; that he had taught English in the said school for a time and was himself a university graduate. His testimony was to the effect that he had examined writings of Norman Baker; that he had read articles that Baker admitted writing; that he was familiar with Baker’s method of speech and his style in written articles; that he had examined the so-called open letter and he recognized it as one written and- prepared by the appellant, Norman Baker.
It is most seriously contended that the admission of this evidence is an innovation; that it was error seriously prejudicial for the court to have admitted such testimony ; that it must 'be deemed such prejudicial error as to warrant a reversal. We do not agree. There can be no prejudice in that regard even if we should hold the evidence of Mr. Thompson inadmissible for the reason that the appellant himself settled the question of authorship of the article appearing over his name. It is, therefore, unnecessary to decide the admissibility of this -evidence. He identifies himself as the founder of Baker Hospital. He also identifies himself as the holder of affidavits produced and offered at the trial of this case. Certainly there was no question for the jury to pass upon in this respect. The matter does not merit further consideration.
We have given due regard to all the instructions given by the court upon the trial of this case, and also we have considered those offered by the defendant, appellant here, and refused, and we find no error upon the part of the court in the giving of the instructions nor in the refusal to give others as requested.
The foregoing discussion of matters presented indicates, by settlement of the matters determined herein, our conclusions in this respect, and we think it barely possible that a separate discussion of each instruction and the determination in regard thereto would be of any value.
In order that this opinion may not be unduly extended, we hold appellant’s contentions in regard to all these instructions are without substantial merit.
The only remaining matter is the amount of the fine as determined by the jury. The jury fixed the fine at $2,500. It might have been as high as $5,000, Pope’s Digest, § 3016. We have on occasions given due consideration to the fines and penalties adjudged and we dare say that ordinarily there is little authority for holding that a fine or other penalty is so large that it must be deemed erroneous, so long as the fine remains in the limits fixed by the law.
Certainly this case does not belong to the class which would justify a ruling in that respect. We have for consideration an instance wherein a man connected with one of the largest enterprises in the community and recommending himself as “an honest and progressive citizen interested in the welfare and upbuilding of the community,” making most serious charges against another business man of the same community, one who has received the respect and esteem of his people to the extent that he is one of the commissioners of the city, connected also with private enterprise, of perhaps some relative importance, as well as the wife of the last mentioned citizen, in the same manner, with perpetrating’ falsehoods, with pursuing underhanded, dishonest methods, doing wrong to others without justification, then admitting his authorship by offering to prove the truth of the charges and wholly failing in that respect according to the verdict of the jury.
The finding of the jury determined that the charges made against Mr. and Mrs. Freeman were wholly false, were unjust, and, therefore, not even qualifiedly privileged.
The defendant was living in the community where he was tried; the members of the jury doubtless knew him. At the same time they were acquainted with the two victims of the libelous assault. Most likely, the trial court and the jury understood best what would prevent a recurrence of an attack so unwarranted.
Since we find there is no substantial error, the judgment is affirmed. | [
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Griffin Smith, C. J.
Ten notes for $400 each, dated September 27, 1927, payable to bearer, were executed by D. A. Busby and his wife, Hattie, in consideration of balance due on certain lots they purchased from appellant. The lots were in West Memphis, Ark. One of the notes was due each year over a ten-year period, “on or before.”
Hodges (appellant) executed a warranty deed. The Busbys secured their notes by a mortgage covering the purchased property.
February 17, 1928, D. A. Busby and his wife, by deed, conveyed the lots to Emma James. This grantee immediately conveyed to Richard C. Busby, trustee, to secure an indebtedness of $2,500 due D. A. Busby and wife.
February 4, 1929, Emma James joined with John L. White and wife in conveying the property to Harry Spears, the conveyance being subject to Warner Hodges’ mortgage. Interest of the Whites is not a matter of record. The mortgage executed by D. A. and Hattie Busby to Warner Hodges was recorded prior to the conveyance by Mrs. James and the Whites.
In August, 1929, appellant filed suit to foreclose his mortgage, naming D: A. Busby and Hattie Busby as defendants. The notes at that time were pledged to Security Bank & Trust 'Company of Memphis, Tenn. The bank was in receivership. It was alleged that the de fendants had failed to pay taxes, and had also defaulted in payment of the note due September .27, 1928. An acceleration clause of the mortgage provided that failure of the mortgagors to pay any note when due, or to. pay taxes, rendered all notes due. There was a declaration that all notes were due. The receiver for the bank did not join in the suit, and it was dismissed a year later. In the meantime, the defendants had moved to have the complaint made more specific.
December 27, 1936, appellant again instituted foreclosure proceedings. It was alleged that W. H. Dilatush claimed an interest in the lots through purchase conducted for the benefit of St. Francis Levee District. Other defendants were brought in. June 10, 1937, judgment by default was rendered. Thereupon, W. H. Dilatush and Harry Spears successfully moved to have such judgment vacated, and answers were filed. Spears claimed title as a remote vendee of the Busbys; also by virtue of redemptions from state tax sales.
Various defenses were interposed to the rights asserted by Dilatush and Spears, including alleged irregularities of tax sales, the contentions being that there were jurisdictional defects in proceedings.
The chancellor found that all of the notes were barred by limitation. Appellant insists that this holding is erroneous in part, but concedes that the notes maturing in 1928, 1929,1930 and 1931 are barred.
Although conceding that on the face of the complaint an attempt was made in 1929 to invoke the acceleration clause of the mortgage, appellant now insists the effort was ineffective because the notes were pledged to the Memphis-bank, and the receiver declined to recognize the proceedings; therefore, he says, the last six notes are not barred.
Appellees point to the language of the mortgage, and insist that no option was left to appellant; that the language of the contract fixed the rights of the parties, and that when default was made in payment of the note due in 1928, and in payment of taxes, the remaining notes, ipso facto, became due. Appellees alsb insist that if notice of an intent to exercise the option of acceleration were necessary, it was given'in the suit filed in 1929.
The acceleration clause is: “Default in any payment shall and does hereby constitute default in all unpaid notes, in which event all shall be due and payable. ”
The general rule is that when a mortgage is given to secure notes maturing at different dates, the acceleration clause is for the benefit of the mortgagee if the language employed is such as merely to create an option.' In such cases the statute of limitation does not begin to run until the mortgagee has declared the forfeiture. Sherwood v. Wilkins, 65 Ark. 312, 45 S. W. 988 ; Hodges v. Taft, 194 Ark. 259, 106 S. W. 2d 605. [See, also, State National Bank v. Temple Cotton Oil Co., 185 Ark. 1011, 50 S. W. 2d 980.]
The acceleration clause in the instant case is- not an option. By express language it declares the event. The default “hereby” makes all unpaid notes due. “Hereby” means by the language of the mortgage, by the act of the parties. The contract is that the happening of a contingency, of its own force, is a declaration that all of the notes are due.
[For other cases on the subject see McCormick v. Daggett, 162 Ark. 16, 257 S. W. 358; Markel v. Fallin, 161 Ark. 504, 256 S. W. 841; Johnson v. Guaranty Bank & Trust Co., 177 Ark. 770, 9 S. W. 2d 3; Perkins v. Swain, 35 Idaho 485, 209 P. 585, 34 A. L. R. 894.]
Having reached the conclusion that the partiés made an enforci'ble contract which is clearly expressed and free from ambiguity, it mu'st''be held that the statute of limitation began to run when default was made in payment of the first note.
Affirmed. | [
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Mehaffy, J.
Appellant, L. E. Lister, is a citizen of the city of Fort Smith, Sebastian county, Arkansas, and is eng’aged in said city in the practice, of law. He was charged and convicted in the municipal court for failing, to pay his privilege or occupation tax, in violation of the ordinance of the city of Fort Smith. The city ordinance requires each person, and where there is a partnership, each member of the firm, to pay a tax for the privilege of practicing law.
He prosecuted an appeal to the circuit court of Sebastian county in two cases. In one case, the appeal was dismissed because it had not been filed in the circuit court -within the time fixed by law for taking appeals from the municipal court. In the other case he was convicted, and he prosecuted this appeal seeking to reverse the judgment in both cases.
When the cases were lodged in the circuit court, the appellant filed a demurrer, and for grounds of said demurrer stated: first, that the charge filed against him does not state facts sufficient to constitute a public offense or a crime; second, that the charge of failing to pay privilege license tax in violation of the city ordinance of the city of Fort Smith does not constitute a violation of the criminal statute, or constitute a crime or public offense under the laws of the State of Arkansas ; third, that the city of Fort Smith is without authority in law to make the non-payment of privilege tax levied for the purpose of revenues only a public offense or crime unless authorized by state law so to do, and that the state statute upon which said city ordinance is based does not make the failure to pay said tax a misdemeanor or violation of law; fourth, that the statute, § 9728 of Pope’s Digest of the statutes of the state of Arkansas, upon authority of which said city ordinance which the defendant is charged with violating is unconstitutional and void in that it violates § 11 of art. 16 of the Constitution of Arkansas; fifth, that the ordinance which the appellant is charged with violating, is unconstitutional and void for the reason that said tax is levied for revenue purposes only, and that said ordinance violates and is in conflict with § 11 of art. 16 of the Constitution of the State of Arkansas; sixth, that the amendment adopted by the people of the State of Arkansas at the regular •election/ in November, 1938, authorizing the Supreme Court to regulate the practice of law repeals all laws and ordinances providing for the levying of a privilege tax upon the practice of law, and that said plaintiff is without authority of law to levy or attempt to collect a privilege tax from this defendant since the adoption of said amendment.
This demurrer was filed in case No. 114, and the same demurrer was filed in case No. 106 except paragraph 6 of the 'demurrer, and this paragraph was not included in case No. 106 because the conviction was had before the adoption of amendment No. 28.
When the cases were called for trial in the circuit court they were consolidated and the appeal in case No. 106 was dismissed because not filed within 30 days, as required by the act known as the Municipal Court Act of the city of Fort Smith. The demurrer was presented in the other case, and after hearing, the same was overruled by the court. The appellant declined to plead further, electing to stand on said demurrer. The court rendered judgment against appellant for a fine of $12.50. To the action of the court in overruling the demurrer, appellant saved exceptions and prayed an appeal to the Supreme Court, and also prosecuted an appeal in case No. 114.
It is contended first by apellant that the statute providing for appeal within 30 days applies to civil appeals only.
Section 9903 of Pope’s Digest reads: “All appeals from municipal courts must be taken and the transcripts of appeal lodged in the office of the clerk of the circuit court within thirty days after judgment is rendered, and not thereafter. The Circuit Court shall advance on its docket such causes on appeal and the same shall stand for trial de novo in the circuit court ten days after being docketed. ’ ’
It' will be observed that this section provides that all appeals must be taken within 30 days, and this necessarily includes criminal as well as civil appeals.
In the case of Loveland v. States Pharmacy, 123 Ark. 320, 185 S. W. 288, the court passed on the statute providing for appeals under act 64 of 1913. That act provided that all appeals in criminal cases from justice, mayor, or police courts, must be filed in the circuit court of Pulaski county within 30 days, and also provided that all appeals in civil cases should follow § 4666 of Kirby’s Digest. This section of Kirby’s Digest provides that the appeal must be taken within 30 days after the judgment is rendered, and not thereafter.
The court in the above mentioned case construed the act and the statute, and held that the appeal must be taken within 30 days.
The section of Pope’s Digest above referred to is controlling and has reference to appeals in both civil and criminal cases. The trial court was, therefore, correct in dismissing the appeal, because it was not taken within the time allowed by law.
It is next contended by the appellant that the privilege tax levied is a tax for revenue purposes only, and that a privilege tax levied1 for revenue purposes only is void because it is contended that the city has no inherent power to tax and must receive its authority from the legislative authority, and that the legislature cannot delegate any greater authority to the municipality than it possesses itself. It is contended that § 11 of art. 16 of the Constitution provides that no tax shall be levied except in compliance with law, and every law levying a tax shall state the purpose for which the tax is levied. Appellant, therefore, contends that both the statute and ordinance are void under this provision of the Constitution. He calls attention to § 4271 of 44 C. J., p. 1261.
The question of the constitutionality of the act was settled in the case of Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769. The court in that case said: “The attack is on the validity of the statute itself as well as the ordinance in question passed by the municipality. It is conceded to be within the power of the legislative branch of our State Government to pass laws authorizing municipal corporations to provide by ordinances for the enforcement of a tax on occupations, including professional, trade and business avocations of all kinds. This-court has expressly decided that under the Constitution now in force that power exists.”
The opinion in that case was written by the late Chief Justice McCulloch, and every provision of the statute and ordinance was thoroughly discussed therein. The constitutional questions raised by appellant in this case were decided against the contention of appellant. That case has been followed and the question discussed in many cases, among which are the following: State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611; Texarkana v. Taylor, 185 Ark. 1145, 51 S. W. 2d 856; Helena, v. Russwurm, 190 Ark. 601, 79 S. W. 2d 993; McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605; Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720; Rogers v. Rogers, 174 Ark. 486, 295 S. W. 708; Merritt v. Gravenmier, 169 Ark. 779, 277 S. W. 526. These questions were also thoroughly discussed in Baker v. State, 44 Ark. 134.
There seems to be no reason to again review the authorities on these questions. However, the appellant contends that since the adoption of amendment No. 28, requiring the Supreme Court to make rules regulating the practice of law and the professional conduct of attomeys-at-law, this amendment takes the place of all these other constitutional provisions and the statute.
Amendment 28 has nothing to do with the privilege tax required of lawyers. This amendment has no application to this case.
The authorities we have cited thoroughly discuss the power of the legislature and the constitutionality of the city ordinance,j and all uphold the power of the legislature and the city, without exception.
The judgment of the circuit court is affirmed. | [
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Mehaffy, J.
The appellee, W. J. Mangum, about August 8, 1938, was engaged in hauling rock with a wagon and team along and over a certain highway crossing of appellant’s railroad go.ing in a westerly direction and upon reaching said crossing of the highway with appellant’s railroad, and in attempting to cross said crossing which he alleged was kept and maintained by said railroad in a very negligent, dangerous and hazardous condition, and while said team was on appellant’s track and highway crossing, a certain clevis connecting the singletree with the doubletree on said wagon broke and came loose and the said team was unable to pull said wagon over and across said railroad, and while the appellee and his companion were trying to get the team off the said railroad crossing, appellant’s passenger train, traveling in a southernly direction, approached said crossing with said highway without ringing the bell, blowing the whistle or giving any signal or warning whatever of such approach, and he alleged that in approaching said crossing the appellant’s engineer and fireman operated said locomotive at a careless and negligent rate of speed, to-wit, 50 miles an hour, and that they carelessly and negligently failed to exercise ordinary and reasonable care to keep and maintain a reasonable lookout for persons, and property, and particularly appellee and his wagon and team he was using in approaching in and about and on said crossing, so that as a result thereof, the said team and wagon were struck by said locomotive so operated and the appellee seriously and permanently injured. He alleges that his injuries and damages were caused by the carelessness and negligence ■ of appellants in the following particulars: That the servants, agents and employees of appellant carelessly and negligently approached said crossing on said track the same being an extremely dangerous crossing, operated said locomotive and train without exercising* ordinary and reasonable care to ring the bell or blow the whistle or otherwise give a signal or warning of the approach of said train to said crossing, and carelessly and negligently approached said crossing without exercising’ ordinary and reasonable care to keep and maintain a lookout for persons and property, and particularly for appellee and the team and wagon which he was driving; that they carelessly and negligently approached ■said crossing at a reckless rate of speed, 50 miles per hour, and carelessly and negligently approached and ran into said dangerous crossing without exercising any precaution for the protection of persons and property approaching on said highway. On account of the negligence of appellants the team and wagon being used and driven by appellee was struck and collided with the locomotive, and appellee was thrown into a ditch beside ■the track and the team was knocked and thrown against and upon him with great force and violence, thereby seriously and permanently injuring him. Appellee was thrown into a ditch beside the track and the team was thrown upon and against his body, and the bones, flesh, tendons, muscles and ligaments in and about appellee’s back and spine were fractured, crushed, injured and torn; his face and head and parts thereof were cut, bruised and damaged; his back and spine and entire nervous system were shocked and injured. He prays for damages in the sum of $3,000.
Appellants filed answer specifically denying all the material allegations of the complaint, and pleading sper cifically the contributory negligence of appellee.
There was a verdict and judgment for the appellee and the case is here on appeal.
Appellee testified that on August 8th he was hauling rock; that the railroad maintains a crossing, and he had made three loads and was crossing with the third load at the time of the collision; the crossing was fenced and had gates on both sides, and on one side dirt was thrown up to the end of the ties; as he was going across the crossing he dropped down in a sink hole about the time the wheel hit; the railway crossing was down and water had been standing there; the wagon dropped down in the hole against the rail, and when it did it broke a clevis on the left-hand horse and it could not pull the load; witness backed np to fix it, gave the horse about a foot clearance, and while he was working there the -train came around the curve; it did not whistle and did not ring a bell until it gave five blasts and then it rang the bell; it did not apply brakes until it hit the mare; when he discovered the train coming he ran to the horses’ heads and grabbed them with the intention of getting them in the clear; they broke the wagon tongue out and he was bringing the' horses around to his right; the train hit the left-hand mare and knocked her over the tongue and over the other one and on top of appellee; he was trying to get them in the clear of the train at the time; was about five feet from the rail at the time the train hit the mare; was in the ditch and the mare was between him and the track at the time; one mare was killed. He then describes his injury. A statement made by appellee after the accident was introduced.
The testimony also showed that there was a curve that the train passed before it reached the crossing, and that it was going at a speed of about 40 or 50 miles an hour. The conductor testified that it was going 40 miles an hour. There was also evidence that there were no signals or alarms given, and no warning of the approach of the train until appellee heard the five blasts.
There is very little conflict in the evidence. There is, however, some conflict, and as to what was the truth, where there was a conflict, was a question for the jury. There was ample evidence to submit to the jury the question of the negligence of the appellants and also the contributory negligence of the appellee, and, on the facts, the verdict of the jury is binding.
It is urged by the appellants that the court erred in giving instruction No. 3 requested by the appellee. That instruction is as follows:
“You are instructed that under the laws of the state of Arkansas when any person is injured or killed by the running’ of a railroad train the law presumes that said injury or death was negligently done by the railroad company. To avoid liability for such injury the company must show by a preponderance of the evidence that the injury was not the result of negligence of the rail road company or it may show that if it was the result of negligence on the part of the railroad company that the plaintiff was guilty of negligence in a degree equal to or greater than the negligence, if any, of the railroad company. 'So in this case if you find that the plaintiff was injured by the running of a railroad train, the law presumes that the injury was negligently done unless the railroad company shows by a preponderance of the evidence that the injury was not the result of the negligence of the railroad company or that the plaintiff himself was guilty of negligence equal to or greater than that of the railroad company, if any.”
Appellee argues that the jury could not have been misled by the giving of instruction No. 3, and also that the specific objection was on the ground that the instruction was abstract and that there was no true guide for the jury as to contributory negligence on the part of the appellee.
It is true that the court also told the jury that they were not to pick out any single one of the instructions, bht should consider all of the instructions given as the law governing them in the consideration of this case.
The Supreme Court of the United States, in the case of Western & Atlantic Rd. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 73 L. Ed. 884, said, in discussing, an instruction similar to the one here involved: “The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the .jury upon all of the evidence.” The court further said, in discussing the Georgia and Mississippi •statutes: “The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. . . . That of Georgia as construed in this case creates an inference that is given effect of evidence to be weighed against opposing testimony and is to prevail unless such testimony is found by the jury to preponderate. ’ ’
The vice of instruction No. 3 is that it gives effect to the presumption and it is to be weighed against op posing testimony and is to prevail unless such testimony is found by the jury to preponderate. In other words, the instruction tells the jury that the appellee is entitled to recover when it is shown by the evidence that the injury was caused by the operation of a train, unless the railroad company introduces evidence that preponderates, or shows by a preponderance of the evidence that it was not guilty of negligence.
In the case of St. Louis-San Francisco Ry. Co. v. Cole, 181 Ark. 780, 27 S. W. 2d 992, we followed the decision of the United States ¡Supreme Court, supra, and quoted as follows from that opinion: “The only legal effect of this inference is to'cast upon the railway company the duty of producing some evidence to the contrary. When this is done the inference is at an end, and the question of negligence is one for the jury upon all the evidence.”
Under § 11138 of Pope’s Digest, railroad companies are made responsible for all damages to persons or property done or caused by the running of trains in this state. Under the decisions of the Supreme Court of the United States and our own decisions, when one is shown to have been injured by the operation of a train in this state, it creates a presumption of negligence and the burden is then upon the railroad company to produce some evidence to the contrary. When it does that, however, the presumption is at an end and the question of negligence is one for the jury upon all the evidence; the presumption or inference cannot be considered by the jury as evidence, but it is at an end and the jury must then pass upon the question of negligence from all the evidence introduced.
To permit the presumption to be considered as evi-' dence after other evidence has been introduced, would, as stated by the Supreme Court of the United States, be unreasonable and arbitrary, and would violate the due process clause of the Fourteenth Amendment.
The principle considered in the case of Western & Atlantic Rd. Co. v. Henderson, supra, has been considered and discussed by the Supreme Court of the United States in several cases since that time. The same principle was announced in the following cases: Bandini Petroleum Co. v. Superior Ct. Los Angeles County, Calif., 284 U. S. 8, 52 S. Ct. 103, 76 L. Ed. 136, 78 A. L. R. 826; Seaboard Airline Rd. Co. v. Watson, 287 U. S. 86, 53 S. Ct. 32, 77 L. Ed. 180, 86 A. L. R. 174; Georgia Ry. & Electric Co. v. Decatur, 295 U. S. 165, 55 S. Ct. 701, 79 L. Ed. 1365; N. Y. Life Ins. Co. v. Gamer, Extr’x., 303 U. S. 161, 58 S. Ct. 500, 82 L. Ed. 726, 114 A. L. R. 1218.
A recent case decided by this court, Mo. Pac. Rd. Co. v. Beard, Admr., 198 Ark. 346, 128 S. W. 2d 697, 1939, held that an instruction similar to the one given in this case was erroneous, and held that the only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When this is done the inference is at an end, and the question of negligence is one for the jury upon all the evidence. To the same effect is the case of Mo. Pac. Rd. Co. v. Ross, ante p. 182, 133 S. W. 2d 29. In other words, after evidence is introduced, the presumption of negligence passes out, and whether the railroad company is negligent is determined from all the evidence introduced. This question was not only thoroughly discussed by the Supreme Court of the United States in the cases cited, but also in the cases by this court above cited. It would serve no useful purpose to discuss it further here.
We find no error except the error in the giving of instruction No. 3, and for this error the judgment is reversed, and the cause remanded for a new trial. | [
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Holt, J.
Appellant brought this suit in the Phillips circuit court on March 25, 1939, against appellees on a contract entered into between the Gazette Publishing Company, appellant, and Charles W. Stephens, principal, and W. D. Keeshan and L. P. Keeshan, bondsmen or sureties.
The complaint is based upon this contract and is a restatement of it. It alleges the employment by appellant of Charles W. Stephens under the contract to deliver its papers in the Helena, Arkansas, territory, and that for the faithful performance of his duties he was required under its terms to furnish a bond conditioned that he would account to appellant for all amounts that may become due it under this contract of employment, that appellees, W. D. Keeshan and L. P. Keeshan, became sureties or guarantors for the performance of the terms of the contract on the part of Stephens, that among the recitals of the contract, as set out in the complaint, is the following provision: “(3). First party agrees to sell second party, at wholesale price, newspapers which may be by second party sold to customers in said toivn or towns, payments therefor to be made by second party not later than the tenth day of the month following service rendered.”
The complaint further alleges “that in compliance with said written contract it .commenced on September 30th, 1938, to furnish and deliver, and did furnish and deliver, newspapers to the defendant, Charles W. Stephens, and continued to furnish and deliver such newspapers up to and including November 30th, 1938; that the defendant, Charles W. Stephens, made payments from time to time for said papers, the last payment being on January 6, 1939, and at that time there was a balance due the plaintiff from the said Stephens of $253.61. An itemized, verified statement of said balance is attached hereto as exhibit ‘B’ to this complaint.” Recovery was sought in the sum of $253.61.
Appellees, W. D. Keeshan and L. P. Keeshan, filed their separate answer in which they denied that they owed appellant any sum under the terms of the contract and bond in question, basing their answer and defense on the provision of paragraph 3 of the contract, set out, supra. While they admitted signing said contract and bond, they further alleged “that the. contract executed by them required the plaintiff in this cause to malee collection in full not later than the 10th day of the month for all amounts that may be due for deliveries made during the preceding month, and these defendants state that provision of the contract was made for the benefit of these defendants, and for their protection, and for the purpose of limiting their liability in any event to the amounts that might be due for any one month.” And further “that the plaintiff in total disregard of the provisions of said contract, and in total disregard to its duty to these defendants failed and refused to collect from the said Charles W. Stephens not later than the 10th of every month the amount that was due for the previous month, but permitted said amounts to accumulate and to increase and that by reason of such failure on the part of the plaintiff to perform the provisions of its contract it has forfeited any right now to assert a cause of action or claim against these defendants.”
The testimony introduced at the trial is undisputed and at its close both plaintiff and defendant asked the court for an instructed verdict. The court denied ap pellant’s request, but granted that of appellees and returned a verdict in their favor. Prom the judgment on this verdict comes this appeal.
Appellant urges here that the trial court committed error in directing a verdict for the appellees on this record, and it is our view that appellant is correct in this contention.
There is no controversy as to the amount due under the contract: Appellees admit signing the contract and bond as sureties and guarantors, but they insist that they are not liable for the reason that appellant has failed to comply with the provisions of paragraph 3 of the contract set out, supra.
Appellees interpret this provision of 'the contract to mean that appellant obligated itself to make collection of all amounts due by the principal, Stephens, for any month on or before the 10th day of the following month and that in the event such collections were not made it was the duty of appellant to notify appellees, the sureties on Stephens’ bonds, of default in these payments by Stephens. We cannot agree with this interpretation placed upon the contract by appellees. The contract does not require any such notice. Had appellees, as sureties, desired that such notice be given to them it would have been an easy matter to have embraced it in the contract in question.
Appellees insist that the interpretation of this clause of the contract is governed by the decisions of this court in the following cases: Furst & Thomas v. Rowland, 188 Ark. 804, 68 S. W. 2d 451; Athletic Tea Company v. McCormack, 159 Ark. 405, 252 S. W. 7, and Singer Manufacturing Company v. Boyette, 74 Ark. 600, 86 S. W. 673, 109 Am. St. Rep. 104.
After a careful review of these cases, however, we think they do not control here for the reason that the contract involved in each of those cases specifically requires notice of default and reports at stated times to he made to the sureties; whereas, as said above, no such notice of default nor reports are required under the contract and bond in the instant case from Stephens to appellant nor were reports required from appellant to sureties.
In Jones v. Gaines, 92 Ark. 519, 123 S. W. 667, this court held: “The sureties upon a contractor’s bond, given to secure the performance of a building contract, were not released because they were not notified of the default of their principal or of his having abandoned the work, where the bond did not require that such notice be given to the sureties.”
And in First National Bank of Helena v. Solomon, 170 Ark. 555, 280 S. W. 659, it is said: “The circumstances under which the contract of guaranty was executed makes it an original obligation and the liability of the signers absolute and unconditional. . . . The facts of this case bring it within the general rule that mere delay by a creditor to collect of the principal debtor, or to proceed against a fund pledged by him for the payment of the debt, will not exonerate the surety or affect his liability.”
The rule is stated in 50 C. J. 170, par. 276, by the textwriter, as follows: “A surety is not discharged from further liability, generally, upon failure of the obligee to notify him of his principal’s default, where the suretyship contract contains no stipulation that such notice shall be given.”
Again in Wilkerson v. Crescent Insurance Company, 64 Ark. 80, 40 S. W. 465, 62 Am. St. Rep. 152, this court held (quoting headnote): “The surety on the bond of an insurance agent conditioned for the performance of his duties is not released from liability by the failure of the insurance company to advise the surety that his principal was in default for three years after learning of the same. ’ ’ And further in the opinion this court said: ‘ ‘ The inaction of the creditor will not discharge the surety unless it amounts to fraud or concealment, for the surety is bound to inquire for himself, and cannot complain that the creditor does not notify him of the state of the accounts of his agent for which the surety is liable. Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85, 41 Am. Rep. 196.”
The judgment of the circuit court is therefore reversed, and judgment is entered here for the amount of the indebtedness as stated in the complaint, $253.61, with interest from the date of suit. | [
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Griffin Smith, C. J.
The question is whether the court erred in refusing to declare C. W. McKay and W. D. McKay trustees for appellant in respect of forty acres of land.
The Federal Land Bank of St. Louis foreclosed its lien on the. land in question, appellees having purchased at the sale for $310.
Appellant alleged, and testified, that when foreclosure became inevitable she asked C. W. McKay to purchase the property for her, and that he agreed to • do so and to’allow her “ample” time within which to' repurchase.
C. W. McKay testified that after numerous importunities he did agree to purchase at the foreclosure sale, but told appellant the transaction would be “without any strings on it;” that appellant said she wanted McKay to buy “. . . because I know you won’t put Joe and me out.” ' McKay admitted having told appellant that if he could make financial arrangements he would 'bid the property in “. . . and let her and Joe stay on the place.” This occurred early in 1937 after summons had been served in the land bank case. The foreclosure sale was May 29, 1937. At that time, according to McKay, there were no oil activities near enough to affect values.
Appellant’s suit was filed April 28, 1938. In an. amendment June 11 it was alleged that “about five weeks ago” McKay informed appellant she had no interest in the land. Later she was dispossessed. The complaint alleged plaintiff “. . . had tendered and now tenders” the amount of money appellees paid for the property, with interest at ten per cent.
Prior to the discussions between appellant and appellees, appellant had executed a deed to the property in favor of Wade Kitchens.
In the final decree of March 14, 1939, there is the finding that “The court is of the opinion that the complaint of the plaintiff and her cause of action should be dismissed with prejudice for want of equity.” Title to the land was quieted in the McKays.
When appellant was served with summons she took it to the law firm of McKay & McKay. Appellant insists she made several trips to the McKay offices; that certain papers (presumably the summons) were left with-the attorneys; that the elder (C. W.) McKay had promised to take care of the matter, but later told her to take the papers to Wendell Utley.
C. W. McKay testified that he frequently sent cases to Utley, who was an attorney not associated with his firm. O. W. McKay’s sister was an office assistant. McKay says he instructed Miss McKay to give the papers to appellant if she came back again — -“and to get rid of her.” He admitted that “. . . when I sent her to Utley I thought our firm was representing her.” The contention is made, however, that with delivery of the papers McKay considered his employment at an end.
Appellant’s testimony sheds light upon the relationship. She said: “I went to see Col. McKay and told bim my -land was up for foreclosure and I had come to see him to see if he could save [it] and give me a chance to get it back, and he said, ‘How much is it?’ and I said it was $268 and some odd cents. He said he could if it wasn’t any more than that.”
It thus appears that appellant’s purpose in contacting C. W. McKay was to induce him to purchase the land and hold it a reasonable length of time in order that she might redeem. There is testimony that oil activities later created a lease market. McKay admits he told appellant that if he could arrange to buy the property he would allow her and Joe to retain possession. He says that after the purchase was made appellant wanted him to buy a horse or a mule for her, and also to “furnish” for making a crop. lie declined to do so. Appellant was not forced to move until she filed suit.
Dave McKay (C. W. McKay’s son, and a. member of the law firm) testified to having overheard conversations between his father and appellant. There was other testimony, some of which sustained appellant’s claims that a trust in her favor arose by reason of the conduct and agreements of McKay.
If we should believe appellant and her witnesses to the exclusion of appellees, then unquestionably McKay’s status was that of trustee. If, on the other hand, we accept appellees’ construction of the transaction, the purchase was “without strings,” and appellees were under no obligation to do more than permit appellant and Joe (appellant’s son who has since died) to live on the land a reasonable length of time. If appellant wrongfully brought suit,' her right of possession under the contract was abandoned.
The question is one of fact alone. The law is quite clear and would protect appellant if the transactions were as she and her witnesses testified. The chancellor found otherwise. In the light of the entire record it cannot be said that the decree was contrary to the weight of evidence.
Affirmed. | [
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Smith, J.
A suit brought by Burl Grubbs was revived after his death to recover damages from Sewer Improvement District No. 1 of Sheridan, Arkansas, to a 7%-acre tract of land upon which Grubbs resided at the time of his death under color of title, alleged to have been occasioned by the improper maintenance and operation of a septic tank, which was an essential part of the sewage system, and by the construction of two ditches across the Grubbs land through which polluted water ran from the septic tank.
The first insistence is that there was no sufficient showing of title to support the action. But, as we have just said, Grubbs was in the actual possession of the land at the time of his death, claiming ownership under color of title, and this is a prima facie showing of title. Of course, it is only prima facie, but there was no showing that Grubbs’ prima'facie title was not actual title. It was held in the case of Weaver v. Rush, 62 Ark. 51, 34 5. W. 256, that proof by plaintiff that his ancestor died in possession of land, claiming under color of title, makes a prima facie showing- of title sufficient to support an action in ejectment. 'See, also, Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945.
It was alleged and shown that fecal matter flowed from the septic tank into the ditches, and that the effluvium therefrom greatly depreciated the value of the Grubbs land. There was a verdict and judgment in favor of the plaintiff for the sum of $500, from which is this appeal.
It is uncertain upon what theory this verdict was returned. There was testimony to the effect that after rains had fallen the ditches overflowed' and the fecal matter was scattered over the. land, and that this occurred with such frequency that the land had lost its entire market value, which previously had been about $70 per acre, and had become worthless. The verdict of the jury, was for “temporary damages,” although there was no testimony showing to what extent, if at all, the rental value of the land had depreciated.
The verdict is defended upon the ground'that the cause of action was not an original one arising out of the construction of the septic tank, and the digging of the ditches, but was a recurring injury, upon which separate causes of action might be based as each cause of action arose.
It is undisputed that the septic tank was erected and the ditches dug more than three years before the institution of the suit; but it is also undisputed that the. tank was not properly maintained, and that by clearing it out and by other small expenditures it might be made to function as intended, and, if so, there would be no damage resulting from its operation. One defect in the tank that has developed is that it is now uncovered, and as long as it remains so, and until the tank has been cleaned out and restored to its original and intended condition, there will continue to be a flowage of polluted water.
But this recovery of damages is one which we think may not now be sustained, because of the law applicable to sewer districts as announced in a number of cases and especially Jones v. Sewer Imp. Dist. No. 3 of Sogers, 119 Ark. 166, 177 S. W. 888, and Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. 1057.
In the Jones case, supra, it is said that, in the absence of a statute making them liable, an action for tort will not lie against a municipal corporation or local improvement district, or the officers thereof, because such corporations and their officers are merely agents of the state for governmental purposes; but as the Constitution forbids the taking of private property for public use without just compensation, the grant of the power by the legislature to cities and towns to form sewer improvement districts and to obtain an outlet therefor outside the corporate limits of such municipality imposes upon such corporations the correlative duty to make just compensation for property so taken.
In this Jones case, supra, it was further said that “In the exercise of this power we have held that the turning of sewage by a municipal corporation into a stream to the injury of lower riparian owners is within the constitutional provision requiring compensation for damaging property for public use, and that in such cases the damages should be assessed on the theory of a permanent taking under the right of eminent domain. McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910, 47 L. R. A., N. S., 137.”
And it was there further said that the measure of damages to a riparian owner from the use of a stream as an outlet for sewage is the difference in value of the land before and after the stream was so used.
Now, a sewer improvement district may acquire an outlet for the sewage, and it may do so although the outlet extends beyond the corporate limits of the municipality within which the sewer improvement district was organized. The statute expressly confers that authority. Section 9977, Pope’s Digest. But the express holding in the Jones case, supra, based upon the authority of Mc- Lauglin v. City of Hope, supra, which it cites, is that compensation for this outlet and the damages incident thereto should be assessed on the theory of a permanent taking under the right of eminent domain.
In the McLaughlin case, supra, it was held that the turning of sewage into a branch by a city and polluting the water thereof, to the damage of riparian owners below, is a damage done to such property for public use within the meaning of art. 2, § 22, of the Constitution of 1874 for which the city must make compensation. The theory upon which damages were held recoverable was that, as the pollution of the stream was an incident to the exercise of the right of eminent domain, improvement districts and municipalities exercising that right were liable for damages incident to its exercise. There was, however, in that case no intimation that the damages there sued for, which were assessable on the theory of a permanent taking under the right of eminent domain, had not been brought within three years after the exercise of this right of eminent domain, which is the applicable statute of limitations in actions of that character.
In the case of Wood v. Drainage Dist. No. 3, supra, the facts were that an improvement district, in digging drainage ditches for which purpose it was organized, so delayed digging and so negligently constructed a ditch that water was .impounded which overflowed and damaged adjacent land. Suit was 'brought to recover this damage, and in holding that the damages were not recoverable it was there said: “So here it may be said that the drainage district has only such power, and has only such liabilities, as are prescribed by the statute creating it. The district has no property, out of which a judgment for toit could be satisfied. It is true, it has the power to levy assessments, but this can be done only for the purposes provided in the act (under which the drainage district was organized), and the statute does not give it any power to levy assessments for the satisfaction of judgments for tort against it. Therefore, we hold that the district was not liable, under the allegations of the complaint.”
Here, in the exercise of the right of eminent domain, the sewer district caused ditches to be dug across the Grubbs land, into which polluted water flows from the septic tank, and the owner of that property had the right to be compensated for any damages resulting therefrom, and if, through the effluvium and the water from it, the value of the land had diminished, this- is a taking of the land to the extent of the diminution of value. But suit for these damages must be brought within three years of the date of the exercise of this right of eminent domain.
In this Jones case, supra, it was said: “The object of the organization of a sewer district and the authority of its board of commissioners is limited to the construction of the sewer and paying for same. "When completed, they become subject to the control of the city. Pine Bluff Water Co. v. Sewer District, 56 Ark. 205, 19 S. W. 576; City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846.”
It does not appear whether the town of Sheridan has control of this sewer project. But neither the city nor the sewer improvement district has the right to create or maintain a nuisance. In this Jones case, supra, after stating the measure of damages to the riparian owner from the use of a sewer as an outlet for sewage, it was said: “In the circuit court the plaintiffs were allowed to recover damages according to this rule, that is to say, they were entitled to and allowed to recover damages for the land taken and damaged by the construction of the sewer. .The damages allowed in such cases are those which result from a proper construction of a sewer. According to the allegations of the complaint, after the sewer was constructed it was maintained in such a way as to constitute a nuisance. The right to construct sewers and drains implies no right to create a nuisance, public or private. It is the duty of the commissioners of the sewer district to construct the sewer so that it will not become a nuisance to any neighborhood or to any particular inhabitant thereof; and it is the duty of the city after the sewer has been turned over to it to avoid the same result by properly maintaining and repairing the sewer after it is constructed.”
After quoting a statement to the same effect from Joyce on Umsances, the opinion in the Jones case proceeds to say: “The defendants pleaded the statute of limitations. The sewer system was created and put in operation in April, 1910, and the sewage has been continuously discharged on the lands of the plaintiffs for a period of three years thereafter. We do not agree with the contention of the defendants, however, that the action is barred by the statute of limitations. The mere fact that sewers are of permanent construction does not render the nuisance, if any, permanent also. As we have already seen, the nuisance in the present case arose from faulty operation and maintenance of the sewer. It was, therefore, of a continuing or recurring' nature, and the action of plaintiffs (which was one to abate a nuisance) was not barred. The action of the defendants in negligently maintaining the sewer approximately and efficiently contributed to the nuisance. Thus the fundamental basis of all equity jurisdiction in tort manifests itself and the right of the plaintiffs to equitable relief is clear and indisputable. (Citing authorities.) As we have already seen, this court has uniformly held that neither municipal corporations nor local improvement districts nor their officers may be sued at law for tort; but it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them. Indeed, this affords ground for equitable relief in actions like this.”
After reversing the decree of the court below, which had dismissed the suit to abate the nuisance as being without equity, the cause was remanded with leave to the complaining property owners to make the city in which the improvement district had been organized a party, if they were so advised, and the direction was given the chancellor to enjoin the city authorities or sewer commission, whichever had control of the operation and maintenance of the sewer system, from operating and maintaining it so as to create or continue a nuisance on the lands of the plaintiffs.
We have quoted extensively from this Jones case, for the reason that it announces principles which must be applied and which will control here, a summary thereof being that all damages incident to the construction of a sewer system and the digging of outlet ditches as a part thereof were recoverable by the persons damaged; but as the action was based upon the exercise of the right of eminent domain, such suits must be brought within three years after that right had been exercised. This limitation upon the time within which suits for damages must be brought does not apply to a suit to abate a nuisance if the sewer plant has become one.
When the betterments are assessed to pay for the construction of a municipal sewer system, it is not contemplated that it will be improperly maintained or negligently operated, and as was said in Wood v. Drainage District, supra, the improvement district has no property out of which a judgment recovered for improper maintenance and operation could be satisfied. In other words, damages incident to the construction of a sewer system must be sued for within three years after the exercise of the right of eminent domain. If, when and after the plant has been completed, it is so maintained or operated as to become a nuisance, relief must be obtained by suit to abate the nuisance.
In the case of Sewer Imp. Dist. No. 1 of Wynne v. Fiscus, 128 Ark. 250, 193 S. W. 521, L. R. A. 1917D, 682, it was held that a sewer district was liable for damages to land owners caused by the emission of bad odors from a sewer system, althoug-h the system was constructed in accordance with engineer’s plans, it being said in the opinion that ‘ ‘ The placing of the tank and the general manner of construction of this system was in keeping with the plans, and so far as this record disclosed, is a permanent structure,” in other words, the damages occasioned by the exercise of the right of eminent domain. See, also, Sewerage Dist. No. 1 of Siloam Springs v. Black, 141 Ark. 550, 217 S. W. 813; International Shoe Co. v. Gibbs, 183 Ark. 512, 36, S. W. 2d 961; City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Meriwether Sand & Gravel Co. v. State, 181 Ark. 213, 26 S. W. 2d 57.
The judgment of the court below will, therefore, be reversed, and the cause will be remanded, with leave to transfer to equity if appellees are so advised, and for further proceedings not inconsistent with this opinion.
Mehafity, J., concurs. | [
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Holt, J.
This suit was commenced hy appellant, M. L. Burns, against his wife, Mrs. C. E. Bums, Will Woods, and George Shepherd in the Pulaski circuit court on September 30, 1938. The cause was transferred to equity on November 16,1938, by agreement of the parties.
Appellant’s complaint alleged that prior to October 18, 1929, he and appellee, Mrs. C. E. Burns, were the owners of a certain lot in Little Bock, Arkansas, and that on that date they conveyed the property to George W. Shepherd, who in turn conveyed it by warranty deed to Mrs. C. E. Burns for a consideration of $300, and that the deed was filed for record on said date.
The complaint further alleged that on October 18, 1929, M. L. Burns entered into a lease with his wife, under the terms of which Mrs. Burns, for a consideration of $300, agreed to lease to him 20 feet running east and west and 40 feet running north and south on the southeast corner of the lot for a period of 99 years. That the lessee was to have immediate possession of the leased property, but although he paid the consideration of $300 stipulated in the lease that Mrs. Burns refused to deliver possession to appellant and refused to abide by the terms of said lease agreement.
Appellant further alleged that he was fraudulently induced by Mrs. Burns to join in the conveyance to Shepherd and to enter into said lease with Mrs. Burns, “in that said defendant, Mrs. C. E. Burns, induced plaintiff to part with title to his property, and induced plaintiff to pay her $300 in cash, knowing that she did not intend to give plaintiff possession of the aforesaid lease, a scheme to cheat and deprive this plaintiff of his- property, and same was fraudulently conceived by defendant, Mrs. C. E. Burns, who accepted payment of the aforesaid $300 and then refused to carry out her part of said agreement, and she has consistently refused to give possession, and that said acceptance and refusal to give possession constituted a fraud upon this plaintiff perpetrated by Mrs. C. E. Burns with the fraudulent intent of depriving him of his interest in said property.”
He further alleged that he was ready and willing to carry out his part of said lease contract; that the conveyance from Shepherd to Mrs. Burns was without consideration, “in that the $300 mentioned in said conveyance was not paid by defendant, Mrs. C. E. Burns, to George W. Shepherd, and was never intended to be paid; that the consideration of said warranty deed was in reality an agreement on the part of defendant, Mrs. C. E. Burns, to lease the above described property to this plaintiff, but that the consideration for said agreement and deed has wholly failed.”
His prayer was that the deed conveying the lot in question from Shepherd to Mrs. Burns be canceled; that appellee, Woods, be ousted from possession; that possession and title be vested in appellant, and for judgment against Mrs. Burns in the sum of $2,000 damages for said broken lease and for costs.
On January 30, 1939, the cause was dismissed as to defendant, George W. Shepherd.
The remaining defendants, Mrs. C. E. Burns and Will Woods (appellees here), filed separate demurrers on the ground that the facts set forth in the complaint were not sufficient to constitute a cause of action.
The court sustained these demurrers, dismissed appellant’s complaint for want of equity and found “that plaintiff’s complaint upon its face, shows that more than five years has elapsed since the date that plaintiff’s cause of action accrued to him, and said cause of action is, therefore, barred by limitation, and the plaintiff shall have and recover nothing from the defendants and each of them.”
Appellant says in his brief, “If no . allegation of fraud appeared in appellant’s complaint, then it is conceded appellant’s cause is barred by the five-year statute, assuming for the moment that the five-year statute is applicable. Appellant’s whole complaint is predicated upon fraud perpetrated upon him by Mrs. Burns. ’ ’
This court has many times held that where fraud is relied upon the complaint must state something more than mere conclusions, but the facts relied upon as constituting the fraud must also be clearly set forth 'in the complaint to justify the court in overruling a demurrer.
As far back as McIlroy v. Buckner, 35 Ark. 555, this court said: “It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by which another is misled, to his detriment; and these, or some of them, must be alleged and proved. Mere epithets, or adverbs characterizing conduct, which, in itself, may be innocent, amount to nothing. This has been repeatedly ruled by this court.”
In Evans v. Pettus, 112 Ark. 572, 166 S. W. 955, this court said: “We are of the opinion that the court was correct in sustaining a demurrer as to the cause of action of Mrs. Evans. Her allegations as to fraudulent misrepresentations are so vague that they amount only to conclusions of law, and are entirely insufficient to state a cause of action. The only allegation is that appellee induced her to execute the contract ‘by misrepresentation as to the value of said wall, and as to the nature of the contract.’ There is no allegation that she relied upon these representations; or that she had no opportunity to investigate for herself; or that she was induced to sign the contract without reading it.
“The statement in the complaint that the contract was induced by misrepresentation is not sufficient to state a cause of action for cancellation or rescission of the contract, and the chancellor was correct in holding the complaint to be insufficient.”
It is our view that -the allegations set forth in the complaint in the instant case are but conclusions of the pleader, and that the learned chancellor was correct in so holding and in sustaining the demurrer.
Appellant insists that the case of Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408, controls here. We cannot agree. Upon a review of this case, it will be seen that the facts relied upon as constituting the fraud were set out in the complaint, and that the pleader did not content himself by stating mere conclusions.
We are also of the view that the trial court was correct in holding that appellant’s complaint shows on its face that his cause of action is barred by the five-year statute of limitations (§ 8933 of Pope’s Digest). According to the complaint, appellant Burns and his wife, Mrs. Burns, appellee, conveyed the property in question to Shepherd on October 18, 1929, and on the same date Shepherd re-conveyed by warranty deed to Mrs. Burns. On the same date Mrs. Burns executed a 99-year lease covering a portion of the property to Mr. Burns for $300. Under the terms of the lease, Mr. Burns, appellant, was entitled to possession, which Mrs. Burns refused to give. Appellant’s cause of action arose in 1929 at the time possession was denied him. He did not file suit, according to the complaint, until September 30,1938, more than five years after his cause of action accrued.
Since the complaint in the instant case shows on its face that the cause of action is barred,- the trial court correctly held that the plea of the statute of limitations on the part of appellee could be properly raised by demurrer.
In Evans v. Pettus, 112 Ark. 572, 166 S. W. 955, this court said: “The bar of the statute may be pleaded by demurrer in an action in the chancery court where the complaint shows affirmatively that the -period of limitation has elapsed since the accrual of the cause of action. ’ ’
In Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408, this court said: “The defense of the statute of limitations should be raised by answer and not by demurrer, where the facts stated in the complaint do not show that the action is barred. ’ ’
In Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A., N. S. 1013, this court held (quoting headnote): “The defense of the statute of limitations may be interposed by demurrer in equity where the cause of action appears upon the face of the complaint to be barred, and does not disclose facts sufficient to remove such bar.”
See, also, McGinnis v. Less, 147 Ark. 211, 227 S. W. 398, where this court said: “Either laches or the statute of limitations may be raised by demurrer in a suit in chancery where the allegations of the complaint are sufficient to show the existence of those defenses. In such an action these defenses go to the equity of the complaint, and may, therefore, be raised by demurrer.”
We conclude, therefore, that no errors are presented by this record, and we accordingly affirm. | [
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Humphreys, J.
Appellant brought suit in replevin against appellee in the circuit court of Cleveland county to recover a Dodge automobile which it alleged was sold to appellee by Arkansas Motors, Inc., under a sales contract which provided that appellee would pay the sum of $26 per month on the purchase price of said car for a period of eighteen months and that the title to the car should remain in the seller until fully paid for and upon failure to make said monthly payments the seller could retake the car and declare the contract forfeited.
'It was also alleged that appellant bought said note and contract for a valuable consideration before maturity with all the rights and interest of the Arkansas Motors, Inc.; that appellee has failed tó comply with the provisions of the contract and note and, under the provisions thereof, he has forfeited his right to retain possession of the automobile and that appellant is entitled under the accelerating clause in said contract and note to the immediate possession of the automobile and damages for the detention thereof.
Appellee filed an answer to the complaint and a cross-complaint against the Arkansas Motors, Inc., and obtained service on it, but the Arkansas Motors, Inc., filed no answer thereto.
Appellee interposed several defenses, the main defense being that he exchanged an automobile of the agreed value of $175, as a down payment, for the car in question and executed a note and sales contract for the balance of the purchase money on the representation of the Arkansas Motors, Inc., through its authorized agent, that the car in question was worth $547 and that it was in first class condition or mechanical order, which representation was falsely and fraudulently made to induce Mm to make the exchange and sign the note and contract, and, believing the false and fraudulent representation was true and relying upon same as true, he made the exchange and signed the note and contract.
Appellee denied that appellant was an innocent purchaser of the note and contract and alleged that he was the qualified owner of the automobile and entitled to the possession thereof on account of having put $179 in same.
The cause was submitted to a jury upon the pleadings, instructions of the court and the evidence introduced by the parties which resulted in the following verdict: “We, the jury, find for the defendant, T. F. Childs, and against the plaintiff, Commercial Credit Company, for the possession of the Dodge coupe.” Judgment was, rendered in favor of appellee for the possession of the Dodge car, from which is this appeal.
Appellant has not favored us with an abstract of the instructions so we are unable to determine whether the court erred in his declarations of law applicable to the facts.
We must conclude that the court correctly instructed the jury as to the law applicable to the facts as revealed by the testimony introduced, leaving the only question for determination by us of whether the court erred in admitting evidence over the objection of appellant tending to show that the sale was effected and the-notes and contract procured through fraud and misrepresentations of the duly authorized agent of the Arkansas Motors, Inc.; and whether there is sufficient evidence to support the verdict and judgment.
The court, over the objection of appellant, permitted the introduction of oral evidence tending to show that the conditional sales agreement was procured by fraud and misrepresentations. Appellant contends that this was error because the sales agreement contained the following provision:
“This agreement constitutes the entire contract and no waivers or modification shall be valid unless written upon or attached to this contract, and said car is ac cepted without any express or implied warranties unless written hereon at the date of purchase.”
This court ruled in the case of Hayes v. Gammon, 168 Ark. 1116, 272 S. W. 644, that under such a provision in a contract in the sale and purchase of a bus testimony was properly admitted to prove that the purchasers were induced to buy the bus through the fraudulent and false representation by the seller that the bus was only two years old. This rule of evidence was approved in the case of Shaver v. Clark County Bank, 182 Ark. 188, 31 S. W. 2d 132.
The proof admitted in the instant case was to the effect that a Mr. Howell, the salesman of the Arkansas Motors, Inc., represented to appellee that the car he purchased was of the value of $547 and that same had been thoroughly overhauled and every part put in brand new and said that the car had the same guarantee as a brand new car. We think this testimony clearly admissible under the rule of evidence announced above and was sufficient to prove that appellee was induced to buy the car and sign the note and contract through fraud and misrepresentations concerning its value and its con- . dition.
The testimony strongly tends to show that the automobile was almost worthless and that on account of some defect it would not start and would choke down, even after the Arkansas Motors, Inc., attempted to repair it many times.
This court held in the case of Fine v. Moses Melody Shop, 182 Ark. 155, 30 S. W. 2d 817, where property sold is not reasonably fit for the purpose intended, the purchaser has two remedies; first, he may rescind the contract, surrender the property and recover his money, or, second, he may retain the property and recoup his damages for the deficiency when sued for the purchase money.
Appellant also contends that it was an innocent purchaser of the note and contract before maturity and was entitled to take the automobile under the terms of the contract upon the failure of appellee to pay any one or more of the monthly installments of $26 and to sell same and apply the proceeds from-the sale to the balance due it on the note and contract.
The note and contract are attached and constitute one instrument covering an agreement of the sale and purchase of the automobile in question. The instrument contains many provisions and conditions and there appears on the back of the contract and attached .note, a printed assignment to the Commercial Credit Co., appellant herein, signed by the seller, the Arkansas Motor's, Inc. The note, contract and assignment were all executed and signed the same day. The instrument was prepared and delivered to the Arkansas Motors, Inc., by appellant to be used by it in the sale and purchase of oars. Appellant financed the deal.
We think appellant was so closely connected with the entire transaction or with the deal that it can not be heard to say that it, in good faith, was an innocent purchaser of the instrument for value before maturity. It financed the deal, prepared the instrument, and on the day it was executed took an assignment of it from the Arkansas Motors, Inc. Even before it was executed it prepared the written assignment thereon to itself. Rather than being a purchaser of the instrument after its execution it was to all intents and purposes a party to the agreement and instrument from the beginning. To • say the least of it, it put the Arkansas Motors, Inc., in the position to procure appellee’s signature to the instrument through fraudulent misrepresentation as to the value and condition of the automobile it was selling to appellee. There is little or no dispute in the testimony that Arkansas Motors, Inc. procured the signature of appellee to the instrument appellant has made the basis of its suit by falsely and fraudulently representing to appellee that the car it was selling him was worth $578 and in practically perfect condition, whereas it was of little or no value and so defective that it could not be used.
Under the facts detailed above we think it was appellants duty before taking an assignment of the instrument to inquire whether appellee’s signature thereto had been obtained through fraud and misrepresentations.
This court will not disturb, on appeal, the finding of a jury that one is not an innocent purchaser of a note, if the finding is justified or warranted by any substantial evidence. Holland Banking Co. v. Booth, 121 Ark. 171, 180 S. W. 978; Iowa City State Bank v. Biggadike, 131 Ark. 514, 199 S. W. 539.
It is unnecessary to decide whether the instrument in question was negotiable under our negotiable instrument act, Pope’s Dig., § 10152, et seq., for we have concluded, under the facts and circumstances detailed above, the jury was warranted in finding that appellant was not an innocent purchaser of the note sued on. •
No error appearing, the judgment is affirmed.
Griffin Smith, C. J., and McHaney, J., dissent. | [
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Smith, J.
The contracts out of which this litigation arose are sufficiently recited in the opinion on the former appeal. Little Red River Levee District No. 2 v. Moore, 197 Ark. 945, 126 S. W. 2d 605.
The contracts were construed in the former -opinion, and their specific performance was decreed, and the cause was remanded with the following directions: “The decree is reversed and the cause remanded, with directions to allow Moore and Bailey, or either of them, six months from the date of this opinion in which to pay the tax equivalents on so much of the land as was subject to the holdover privilege of the contract. It is so ordered. ”
The contracts were made exhibits to the complaint first filed in this cause, and it was alleged that the plaintiffs were entitled to the relief prayed under the provisions thereof. Separate demurrers were filed by the respective defendants, that of the defendant Bailey being upon the ground “That the said complaint does not state facts sufficient to constitute a cause of action against the defendant.” The demurrers were sustained, and the plaintiffs stood on their complaint, which was dismissed.
We reversed that decree, and declared the respective rights and liabilities of the parties under the contracts, and remanded the cause with the directions above quoted.
Upon the remand of the cause Bailey filed an answer, in which he prayed reformation of the contract under which he had purchased the oak timber. He alleged that whereas Moore & Denton had purchased all the timber under a contract which required them to cut and remove it within five years, one-fifth each year, and to surrender the fifth each year upon which the timber had been cut, or to pay the taxes if an extension of time were required, he had purchased the oak timber under a contract which gave him the right, without conditions, to cut and remove the oak timber within five years of the date of the release of lien to him for the oak timber. He filed a cross-complaint against his co-defendants, Moore & Denton, in which he prayed that, in the event he should be required to pay any taxes or costs by reason of this suit, he have and recover of and from said Moore & Denton any sum he should be required to pay, under and by virtue of their warranty deed to him.
The opinion on the former appeal was treated, upon the remand, as being decisive of the rights andTiabilities of Moore & Denton, and as to them it was ordered that they surrender to the plaintiffs three-fifths of the land, as three of the five years allowed for cutting and removing the timber had then expired. But as to Bailey it was decreed that the instrument referred to as “Release of Lien” be reformed so as to give him five full years from the date of said instrument in which to cut and remove the oak timber.
In support of the prayer for this relief testimony was offered to the effect that it was understood between Bailey and the secretary of both improvement districts that he should have five years in which to cnt and remove the oak timber, and that it was virtually understood that the contract gave that right, as it was, in fact, intended to do.
The three persons who are commissioners of the drainage district are the directors of the levee district, and both districts have the same officers. Each district claimed the lands on which the timber was sold under forfeitures and sales to the respective districts for the nonpayment of the improvement district taxes due them respectively. How they proposed to divide the proceeds of the sale of the timber is not disclosed.
The testimony is sufficient to support the finding that the secretary of both districts had agreed that appellee should have five full years for the removal of the oak timber, although: the secretary - denied that fact. However, there was no testimony to the effect that either of the other two members of either of the two boards had made any agreement which the contract did not express. The contract must, therefore, stand as written, and, as written, it was construed in the former opinion.
We said in the former opinion that plaintiffs had released their claim for unpaid purchase money against the oak timber and that “ Thereafter ■ the districts could enforce payment of unpaid' purchase money due by Moore only against the timber other than oak. But the oak had been purchased by Bailey ‘. . . with all the rights and privileges granted unto the said Gr. D. Moore in the original contract of sale and purchase.’ ”
The opinion then asks the question, “What were these rights and privileges 1 ’’ The opinion answers this question by saying: “They included the right to cut and remove the timber within five years — one-fifth each year — and the land from which such one-fifth was annually cut should be surrendered to the districts. Additional cutting time was provided for, but this extension could be secured only by paying ‘the state and county taxes due’ on the lands which otherwise would .have reverted. No extensions beyond these times were given Bailey. The districts had only released, as against the oak timber, the right to enforce payment of the balance ■due on purchase price of all the timber. While the oak was fully paid for, the right to cut and remove it was referable to Moore’s contract.”
It appears, therefore, to have been definitely decided in the former opinion that while Bailey acquired the oak timber free from any claim against such timber for any part of the unpaid purchase money, the restrictions as to time for cutting and removing the oak timber had not been changed or removed. The directions of the ■decree here appealed from were correct -in ordering Moore & Denton to surrender three-fifths of the land, inasmuch as three of the five years allowed for the removal of the timber had then expired, but, for the reasons herein stated, that direction should not have excluded the oak timber. Three-fifths of all the land should have been ordered surrendered, as the taxes have not been paid.
In the former appeal no question was 'raised that the contracts made exhibits to the complaint- did not reflect the actual contract 'between the parties. - That question could have been raised, but was not. Tndeed, the demurrers confessed that the contracts made exhibits to the complaint were the contracts between the parties. The insistence then was that plaintiffs were asking a relief to which the contracts made exhibits to the complaint did not entitle them. When it had' been field that plaintiffs were entitled to the relief prayed under the contracts, which the demurrers confessed to be true, an answer was filed, after remand of the cause, in which it .was alleged that the contracts, made exhibits to the complaint, did not express the true contract between the parties, and its reformation was prayed. The prayer to reform the contract comes too late. Litigation would be interminable if a party were allowed to present his defenses piecemeal, or, failing in one defense, to then interpose another. One may not change his hold in this manner. Luttrell v. Reynolds, 63 Ark. 254, 37 S. W. 1051; Felker v. McKee, 154 Ark. 106, 241 S. W. 378; Hollingsworth v. McAndrews, 79 Ark. 193, 95 S. W. 485; 5 C. J. S., p. 1526, Chapter, Appeal & Error.
The decree here appealed from will, therefore, be reversed and the cause will be remanded, with directions to enter the same decree in regard to the oak timber as was entered in regard to the other timber. Bailey may, of course, prosecute his cross-complaint against Moore & Denton to obtain ■ any relief against them to which he may be entitled.
The decree will, therefore, be reversed and the cause remanded with directions to enter a decree conforming to the views here expressed. | [
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McHaney, J.
Appellant brought this action of ejectment ag’ainst appellee to recover the possession of the SW, SE and SE, SW, 14-10-3, in Jackson county, Arkansas. He deraigned his title -by quitclaim deeds thereto, one from Village Creek & White River Levee District, hereinafter called Levee District, and one from May-berry Drainage District, hereinafter called Drainage Dis trict, said land being located in both districts, and alleged that title thereto passed to the districts by reason of separate foreclosure actions in which the said lands were sold to the districts. The facts are stipulated. The Levee District was placed in federal receivership in 1929. In 1934, in the suit of the then receiver, Joe S. Long, in the federal court court at Batesville, said lands were sold by the commissioner to Joe .S. Long as receiver for the delinquent levee taxes of 1929, 1930, and 1931 and deed issued to him, which was duly and promptly recorded in Jackson county. The record title to said lands was in Joe Thrift from 1929 to October 8, 1932, when the lands were deeded back to appellee, from whom Thrift had bought in 1929, and appellee’s deed was duly recorded. In the suit to foreclose the lien for taxes in the federal court, said lands were advertised in the name of Joe Thrift as the supposed OAvner.
The deed to appellant from the drainage district was based upon a deed to the district in a foreclosure proceeding wherein said lands were condemned to be sold for delinquent assessments to said district, and in which they were advertised in the name of Block, Lyons & Keel, as supposed owners.
Appellee defended on a general denial, and among other defenses, alleged that he Avas the owner of said land, his deed to same being of record, and was in the actual, open and notorious possession of same and had been for many years prior to the institution of said suits to foreclose; that the notice of the pendency of said suits was insufficient to confer jurisdiction on the courts; that the sales thereunder were Amid; and that the deed to the receiver of the levee district and the deed to the drainage district, as also their deeds to appellant should be canceled. The case was transferred to the chancery court. Trial resulted in a decree for appellee on the insufficiency of the notice as to the supposed owner, in which a lien was decreed against said land for the amount of outlay of appellant in the payment of taxes.
For a reversal of this decree appellant says the only question presented for our determination is “whether or not the sale of the lands involved herein by Joe S. Long, receiver of Village Creek & White River Levee District of Jackson county, Arkansas, was valid or not.” Appellee states it as follows: “Is the record owner of lands, who has been in actual possession for a full year, bound by a decree of foreclosure in a proceeding against his grantor as the ‘supposed owner,’ under a statute substantially identical in terms with the general statute governing' the giving of notice in the foreclosure suits of drainage districts?”
It is conceded by appellant that the sale in the drainage district suit was invalid, under the authority of Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15, but it is strenuously insisted that the sale in the levee district case by the receiver was valid under the same authority.
The act creating the levee district is act 170 of 1913, Acts 1913, p. 1553. It provides that suits for the foreclosure of the lien of delinquent assessments shall be brought in the chancery court of the county in which the land is located and further provides: “Said proceedings and decrees shall be in the nature of proceedings in rein, and it shall be immaterial that the ownership of said lands or other property subject to said assessment be incorrectly alleged in such proceedings and said decree shall be in force (enforced) solely against said lands or property so proceeded against . . .” It then provides for the publication of a notice and prescribes a permissible form. It then provides: ‘‘Then shall follow a list of supposed owners, with a descriptive list of said delinquent lands and amounts due thereon, respectively, as aforesaid.”
This statute is in all essential respects identical with the statute construed in Simpson v. Reinman, supra. That case was decided by a divided court, and without expressing any opinion as to the correctness of the reasoning of the majority, we decline to overrule it. However, we decline to extend the holding there announced, which we feel we would be compelled to do, in order to affirm the decree here in question. The facts in that case were that one Adams was listed as the “supposed owner” of the tract of land there delinquent for road improvement assessments. As-to him the opinion re cites: “It is not shown that he ever had any title to the property or that he was in possession of it, or made any claim thereto at the time the foreclosure proceedings were had. ” In the case at bar, Joe Thrift, who was listed as the “supposed owner,” was the owner and in the actual possession of said lands from 1929 to 1932, during which time the assessments accrued thereon and became delinquent, for the enforcement of which suit was brought to foreclose. We think the receiver was not shown to be negligent in listing Joe Thrift as the supposed owner, for he was in fact the owner when the delinquencies occurred. Nor was the receiver required to search the records or get an abstract of title to the lands before proceeding with the sale. We so held in Deaner v. Gwaltney, 194 Ark. 332, 108 S. W. 2d 600. In the opinion on rehearing in Simpson v. Reinman, supra, the late Judge Hart said: “As we have already seen, while the statute requires them to designate the supposed owners, it relieves them of the consequences of mistakes on their part by providing that a mistake in the allegations of ownership of the land shall not be material. In other words, it does away with the rule that giving of the name of the owner incorrectly invalidates the sale; but the Legislature did not intend to bind the owner where the commissioners named a person as the ‘supposed owner’ who they knew had no interest whatever in the land, or when they acted with gross carelessness in the matter.”
In this case appellee testified he had no actual knowledge of the suit to foreclose, but that he knew the land was in the district and that the taxes had not been paid.
We are, therefore, of the opinion that the statute above mentioned relating to the publication of the notice was substantially complied with and that Simpson v. Reinman, supra, is not controlling here. Appellee’s loss is due to his own negligence, and he has no just complaint. His land was sold according to law.
The decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Smith, J.
This is the third appeal in this case. Opinions on the former appeals appear in 194 Ark. 67Í, 109 S. W. 2d 115, and 196 Ark. 952, 1£0 S. W. 2d 566. The facts out of which the litigation arose are sufficiently stated in the opinion on the first appeal.
It appears, from the opinion on the first appeal, that Evangelee Bell, the girl for whose benefit the suit was brought, is suffering from amoebic dysentery, which is a persistent stomach and bowel trouble. The suit was originally prosecuted upon the theory that, by drinking a bottle of Coca-Cola containing a fly, plaintiff had contracted that- disease. We said, however, that there was no testimony that the fly in the bottle had been a carrier of this disease, and the first judgment was reversed on that account. The case was not dismissed, for the reason that it appeared plaintiff might have sustained some injury and damage from drinking the fly, even though it had not -been the cause of her dysentery, and in reversing this first judgment we said (194 Ark. 671, 109 S. W. 2d 117): “The judgment must be reversed as the testimony does not support the finding that appellee’s illness was caused by the presence, of the fly ■in the bottle; but if there was other damage compensation for that damage, alone, may be recovered.”
Upon the remand a second judgment was recovered, which was also reversed, and in our opinion reversing that judgment we said:
“The intention and effect of that direction was to exclude from a second trial any question of compensation for appellee’s suffering from amoebic dysentery, for the reason that the only possible cause for contracting this disease, which could be attributed to the bottling company, was the presence of a fly in the bottle, and, for the reason stated in the former opinion, there was no liability on that account. That opinion became the law of this case on the question of appellee’s suffering from amoebic dysentery, and should not, therefore, have been submitted to the. jury. Missouri Pacific Rd. Co. v. Foreman, 196 Ark. 636, 119 S. W. 2d 747.
“The case was remanded with directions to determine whether appellee had sustained any other damage, and for that purpose alone. The question whether appellee had amoebic dysentery was excluded from the case upon our finding, in the former opinion, that the bottling company was not responsible for the existence and consequences of ■ that ailment. ’ ’
We said, in the opinion in this second appeal, that, for reasons stated in the first opinion, it had become the law of the case, that the Coca-Cola Company was not responsible for any damages resulting from the fact that the plaintiff suffered from amoebic dysentery, and, in reversing this second judgment, we said: “The cause will be remanded, with a renewal of the direction contained in the former opinion that the jury determine what damage, if any, appellee sustained from drinking the Coca-Cola, excluding the amoebic dysentery, for which ailment we held there was no responsibility on appellant’s part.”
Judgments were recovered, upon the remand of the cause, one in favor of Evangelee for $5,000, another in favor of her father for $988, from which is this appeal. At this third trial no attempt was made to show the cause of appellee’s present condition. No physician testified in her behalf, and there was an entire lack of testimony that the fly could or did cause appellee’s illness. It was shown only that she was well before drinking the Coca-Cola, and had been ill since that time. This was a sharply controverted fact at the first trial, the testimony on the part of the Coca-Cola Company being’ that the child was sick long before drinking the Coca-Cola.
The first opinion recites the fact to be that “It was not contended that the child swallowed the fly.” But there was testimony, at that trial and in both the subsequent trials, that she had drunk a portion of the contents of a bottle containing enough of a fly for its identity as such to be established.
The only testimony offered tending to show the nature of the disease from which the child was suffering at the last trial was that of Dr. M. D. Prickett. The plaintiff’s case had been closed without any testimony being offered as to the cause of plaintiff’s illness, when, just before the case was submitted to the jury, the record recites: “Defendant offered as rebuttal testimony the evidence of Dr. Prickett.” This witness was asked: “What was Evangelee suffering from?” and he answered, “Amoebic dysentery.”
When this testimony was offered (quoting from appellee’s brief) objection was made as follows: “Mr. Goza of counsel for appellee: To which we object, because we have not produced any doctor that made any examination or diagnosis whatsoever, and, therefore, they cannot bring either of their doctors on here at this time.” No further testimony was offered on that or any other feature of the case after Dr. Prickett had testified.
We think there was no error in the o admission of this testimony.
The plaintiff testified that she had been well before drinking the Coca-Cola, but had been sick since that time; that when she drank the Coca-Cola she became sick at her stomach and vomited off and on during the night, and that she vomited blood all the next day. Her stomach mow goes wrong, and her mouth gets so sore she can not eat. She had been treated by five different physicians, but did not remember what any one of them said was the cause of her trouble.
Plaintiff’s mother testified that she bought some soda water and a bottle of Coca-Cola for her children. She stated: “Sat the bottle down on the porch, and opened it up, and the children drank their soda water, and she (plaintiff) taken the Coca-Cola and drank about half or two-thirds of it, and handed me the bottle and said she didn’t want it, that it made her sick. I taken the cap and put on the cap.” In just an instant plaintiff began vomiting. She put the child to bed, and examined the bottle, and saw some specks in it. Plaintiff vomited during the night off and on, and the next morning vomited two-thirds of a. cup of blood. “Her temperature ran as high as 105, and she still runs temperature, and has lost weight.”
About two months later witness took the bottle containing* what was left of the Coca-Cola to Dr. Barrier, who, in turn, carried-the bottle to the office of Dr. Prickett, the witness hereinabove referred to. The contents of the bottle were strained through a’ cloth and part of a fly was found.
Without further reviewing the testimony, it may be said that the plaintiff has been and may even yet be very seriously ill; but it is equally as certain that her trouble is amoebic dysentery. The plaintiff herself made that proof upon the first trial, and Dr. Prickett’s testimony to that effect at the trial .from which this' appeal comes is undisputed.
But the law of this case, as was said in the second opinion, is that the Coca-Cola Company' is - not liable on that account. No physician or other witness at this last trial stated that plaintiff’s illness was caused by drinking a fly, and it is, therefore, mere speculation and conjecture that this was true. The testimony does show, however, that the drink nauseated plaintiff and caused her to vomit throughout the night following, and for that she should be compensated, but, in our opinion, any award of damages in excess of $500 on that adcount would .be excessive.
We think it clear that the .jury, by their verdict, attempted to compensate plaintiff for her entire illness and suffering, including that caused by her amoebic dysentery, and we think the instructions permitted the jury to do so. This is evidenced by the fact that the court refused to modify an instruction which modification would have directed the jury to exclude the injury and suffering caused by the amoebic dysentery; but the court refused to modify the instruction as requested. The result of this refusal to modify the instruction was to permit the jury to award compensation for all the injury and suffering which the plaintiff had sustained, whether caused by the amoebic dysentery or not.
The judgment in favor of Evangelee will, therefore, be modified by reducing it to the sum of $500, and for that amount will be affirmed. The judgment in favor of her father will be reversed and that cause of action dismissed. | [
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Baker, J.
The appellant company on October 12, 1938, issued to Delia Balter a policy of insurance in the sum of $500. The appellee named herein is the beneficiary of that policy. On December 15, 1938, a little more than two months after this policy was issued, the insured died. Proof of death was made, but the insurance company denied liability. In answer to the complaint filed in this case the company pleaded that it operated a mutual assessment plan of insurance or ganized and existing under act 139 of the Acts of 1925; and that the policy of insurance was written without a medical examination and upon the written application of the beneficiary, Pleas A. Baker. This application showed that the insured was in good health, eligible for membership and insurance and that the statements as to the age, good health and eligibility in the application for insurance are warranties of the truthfulness thereof; that defendant relied solely upon said warranties when it issued said benefit certificate on the life of the deceased and that all of the said statements were untrue. The insurance company pleaded further that after death of the insured it made an investigation and found that the deceased died of cancer and that she had been suffering- from the disease for several months before the application for insurance and that at the time the application was made she was under treatment of physicians. The company pleads further that upon finding the warranties were untrue and upon the discovery of fraud, it tendered the appellee a refund of all premiums paid, but it was refused; the tender was again made in open court. Upon the trial of the case when all the evidence had been presented the insurance company moved for a directed verdict in its favor whereby the plaintiff also asked for a verdict in his favor. The court directed the jury to return a verdict for the plaintiff in the sum of $500, but denied the prayer or motion of the appellee for a 12 per cent, penalty and attorney’s fee. Both parties duly made objection and saved exceptions to the action of the court in the denial of their respective prayers. After a motion for a new trial was made and overruled, the appeal was perfected and the cross-appeal was allowed in due time.
Notwithstanding the direct appeal of the insurance company and the cross-appeal of the appellee, there is only one question presented for determination; that is, the propriety of the court’s ruling in directing a verdict for the appellee. If this ruling is correct, the appellant concedes that there should have been an order allowing the penalty of 12 per cent, and fixing a reasonable attorney’s fee in the case. Upon the other hand, if the court was in error in directing a verdict for appellee, the decision of this question also determines that presented upon the cross-appeal.
While the facts in this case have not been settled by a stipulation or agreement, there is really no substantial dispute between the parties in regard thereto. The plaintiff testified that he told the agent exactly what the condition of his wife was and that he showed him a letter from the hospital where she was then receiving-treatment. The letter stated that she was coming home on the 12th or 15th of the month. He explained to some extent about her physical ailments, but that she was much better, that she did not go to bed and that she was not confined continuously until about three (3) weeks 'before her death; she worked in the store, and that Mrs. Campbell, her neighbor, helped her some. He says that it was in September her stomach got wrong, and she got to vomiting, and it was at that time he took her to Eureka Springs. When she came home he thought she was getting along all right until three wéeks before she died; “The reason I told the agent she was in good health was because I thought she was getting better. I did not read all the application, but he did, and he asked three or four questions; I signed the application in its present form; I had become seriously disturbed about my wife’s health when I sent her to Eureka Springs; her stomach was bothering her and she had intestinal trouble three or four months before; had hemorrhages. After she stayed there about two or three weeks she began eating hearty and had no more stomach trouble; if I hadn’t thought she was sick I would not have been paying her hospital bill and would not have sent her over “there; I 'believe she weighed 130 pounds in August, 1938; I do not believe she fell off much in October; she gained a little while she was at Eureka; she stayed there six weeks;” Without copying all he said, we may add from his evidence this statement .favorable to the position he has assumed: “We thought she was going to get well; I didn’t know the company required any medical examination; the company didn’t have a doctor there for examination; the agent who took the application told me the company did not require a physical examination; the policy was issued under questions,he asked me and the answers I gave him; I don’t remember word for word just what was talked over between me and him, and don’t know whether he put the answers down as I gave them or not. I have acknowledged it as my signature and I am not denying it now.” There was also testimony given by Mrs. Joe Campbell which showed that the insured had been sick for some time, but was improving.
On this matter of health and physical fitness for insurance there is no contention that the insured was at any time in good health or a fit subject for insurance either at the time the policy was written, or at the time it was delivered, or thereafter until she died. The appellee has briefed this case to support the recovery citing as authority such cases as the Supreme Forrest Woodman Circle v. Sneed, 190 Ark. 112, 77 S. W. 2d 636; American National Insurance Co. v. Hale, 172 Ark. 958, 291 S. W. 82; Mid-Continent Life Insurance Co. v. Parker, 181 Ark. 213, 25 S. W. 2d 10, and the very late case of Callicott v. Dixie Life & Accident Insurance Co., 198 Ark. 69, 127 S. W. 2d 620. The contention is made that the knowledge of the agent of the insurer obtained while performing the duties of his agency in receiving applications and delivering policies as to the state of the insured’s health is imputed to the insurer and if such knowledge did vitiate the contract in its inception according to the terms such knowledge constitutes a waiver of the provisions of the contract inconsistent with the known facts.
The authorities cited are recognized as being among those well considered announcements of principles involved which govern in all the cases wherein they are applicable. There is another case which we desire to group with the others above cited. The-proof in that was to the effect that the physician who made the medical examination knew the facts in regard to the health of the insured though he did not state them correctly. In the application, the facts set out were alleged to be warranties. .The court held, and properly so, that these statements amounted to no more than representations under the conditions therein set out, and since the company had knowledge of the facts as they really existed, the beneficiary was entitled to a recovery. Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792. It would perhaps shorten our comment to say that the defense offered and urged, in most, if not in all, of these cases, was one of fraud arising out of false statements made by the applicant for the insurance. But in practically every case of the class cited the applicant gave answers which were incorrectly written down by the agent or examining physician. They knew what the facts were, and knowledge constituted a waiver for the reason there was no actual deception.
The facts of the situation here under investigation are different. The matters upon which the insurance policy was based, found in the application were stated by the beneficiary himself not as mere matters of his opinion as he insisted upon the trial, but they were in law, warranties. We do not have to find or determine them to be such from their form or substance nor are they made such by, the declaration of the beneficiary.
We have already seen that the company was organized under the act 139 of Acts of 1925. Section 14 of that act reads as follows: “Statements, representations, and answers on the part of applicant for membership as to question of age, condition of health, and eligibility shall be construed as warranties on the part of applicant, and such .applicant shall be bound thereby, and shall constitute a part consideration for issuance of the policy or certificate of membership on the part of the association. It shall be unlawful for the beneficiary, his agent or representative,' under any policy or certificate issued by the association or company coming within this act, or any doctor, or undertaker, or other attendant to knowingly conceal, withhold, or misrepresent any facts concerning the health, age, or other material information as to the deceased member or policyholder because of whose death or accident claim is being made. ’ ’ However we may feel impelled to declare the law in any case wherein this statute is not involved, we fail to see in this case either estoppel or waiver. If there is any point to § 14 of said act 139 of the Acts of 1925, we must follow the plain letter of the law and give due effect to this provision, or declare it unconstitutional and void. There is no room for construction, nor question of validity raised on this appeal. Truly, if we might say that the parties by their conduct could waive these provisions and their effect in this class of insurance, then there is no reason why the Legislature should have troubled about the enactment of this bit of legislation. If there were a declaration now of such power to waive, we would follow the lead of cases like that of the Mutual Aid Union v. Blacknall, supra.
The beneficiary in this case acknowledges full responsibility for the signed application. The manner in which he has stated the facts in his evidence as they appeared to him justify the conclusion reached by the trial court if the waiver could exist in spite of the law and in disobedience of its mandates.
Some form of assessment insurance has been in existence for a long time. The idea has always been to insure at a cheaper rate than is practiced by other organizations. Such companies that have heretofore occupied the field experienced in most instances indifferent success. The new custom may be an improvement. Under it, the applicant may not speculate. He makes a misstatement of a material fact at his peril. It cannot be gainsaid that the statements in the application were warranties. They are admittedly untrue and the insurance' contract on account thereof is not enforceable. Fidelity Mutual Life Ins. Co. v. Beck, 84 Ark. 57, 104 S. W. 533, 1102.
The judgment is reversed; the cause is dismissed. | [
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Smith, J.
Bill Ballentine prayed an appeal from the judgment of the Sebastian circuit court sentencing him to a term of twenty-one years in the penitentiary. The stenographer of the 12th judicial circuit, of which Sebastian county is a part and who had reported the trial, was called upon to transcribe his stenographic notes, to be used in the bill of exceptions required on the appeal. The stenographer refused to do. so unless paid for that service. Thereupon, Ballentine made affidavit conforming to § 2876, Pope’s Digest, which reads as follows: “In all cases no party shall be denied his bill of exceptions on account of his inability to pay the stenographer’s tax fee and for transcribing the stenographic notes when he makes affidavit that he has no property and is unable to pay the same.
Upon the stenographer refusing thereafter to transcribe his notes and to furnish a transcription thereof, mandamus was prayed and granted by the circuit judge of that circuit requiring the stenographer to do so, and from that order is this appeal.
The case of Thornsberry v. State, 192 Ark. 435, 92 5. W. 2d 203, is decisive of this appeal. That opinion announced the proper practice in similar cases to be for an application to be made to the presiding judge to compel the stenographer to perform his duty. This Ballentine did. After defining the practice it was there said: “We make these observations simply for the purpose of indicating that defendants, regardless of how poor they m*ay be, are entitled to a record of the proceedings in the court below to the end that those proceedings may be intelligently reviewed by this court, and, the remedy is ample to compel the court stenographer to prepare a bill of exceptions for authentication by the trial court.”
Appellant insists, however, that § 2876, Pope’s Digest, above quoted, does not apply to the stenographer of the 12th judicial circuit, for the reason that this office was created by a special act, No. 185, of the Acts of 1901, p. 339 § 3 of which reads as follows: “That in all cases where the stenographer is called upon to make a transcript, he shall do so. Such stenographer’s transcript to be'used as a part of record for supreme court without additional charge by the clerk.”
Upon the authority of this § 3, it is insisted that only the clerk is required to perform the service mentioned without charge, and that the act does not require the stenographer to do so. This is true, and we must look to other portions of the act and to other legislation to (determine what charges the stenographer is permitted to make. When we have done so, we find that § 2876, Pope’s Digest, is a general law, applicable to all official court stenographers, and applies to the stenographer of the 12th judicial circuit as well as to all other official stenographers.
The only part of this § 3 dealing with official fees relates to the fees of the clerk of the court. The stenographer is required to make the transcript when called upon to do so, and if he does so under circumstances which make § 2876 applicable, as is the case here, he must do so even though Ballentine is unable to pay for that service.
The judgment of the court below is correct and is affirmed. | [
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Mehaeey, J.
This suit was brought by the appellee, Waymon Guinn, against the Metropolitan Life Insurance Company, appellant, for the recovery of accumulated disability benefits, and also the commuted value of future benefits claimed under a $1,000 life insurance policy, because of alleged total and permanent disability of appellee, occurring while said policy was in force.
There was a trial, verdict and judgment in favor of appellee for $446.25 with 12 per cent, damages and $125 attorney’s fee. The case is here on appeal. '
Appellee alleged in his complaint that he was insured under a group industrial policy issued by the appellant, appellee being then in the employ of the Bernice Anthracite Coal Company of Russellville, Arkansas; that appellee held insurance certificate, serial-No. 3095 under the Metropolitan group policy No. 5006G, under which certificate and.group policy appellee was insured against death, disease and bodily injury for the sum of $1,000, with monthly benefits payable to him under said policy at the rate of $26.25 per month for a period of 40 months in the event of total and permanent disability suffered while the policy was in force.
He then alleges that while the policy was in force he became disabled as the result of bodily injury while working’ as a coal miner for Bernice Anthracite Coal Company, and he has been continuously and will continue to be totally and permanently disabled from engaging in any occupation and performing any work for compensation or profit.
Proof of disability was made and demand for the payment of the disability installments, and said payments were refused by appellant. It was alleged that all premiums had been paid.
Appellant filed answer admitting the issuance of the policy and that all premiums thereon had been paid and that said policy was in full force and effect at the time appellee was alleged to have suffered the injury complained of; admitted that the policy provided for payment for total and permanent disability . benefits for 40 months in the amount of $26.25 per month, in the event appellee were to become totally and permanently disabled while the policy was in force prior to reaching the age of 60 years. Appellant denied that it had committed any breach of the contract or repudiated or renounced liability thereunder; denied that appellee was permanently and totally disabled so as to be entitled to enforce a claim for disability benefits.
Waymon Guinn, the appellee, testified that he lived in Fort Smith, Arkansas, and was engaged in coal mining- for the Bernice Anthracite Coal Company, át Bernice, Arkansas, in 1935 as a regular employee, and had been working there off and on for the year prior to September 2, 1935; that he had never followed any other work and did not know how to do any kind of work except mine work; that he earned four or five dollars a day.
The certificate of insurance was introduced in evidence, and the certificate contained the following: “Under the terms of the group policy mentioned on page one of this certificate, any employee shall be considered totally and permanently disabled who furnished due proof to the company that, while insured thereunder and prior to his 60th birthday, he has become so disabled, as a result of bodily injury or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit. ’ ’
The certificate further provided that three months after receipt of such proof, the Metropolitan Life Insurance Company will commence to pay to such employee, equal monthly installments. On policies of $1,000 appellant would pay 40 installments of $26.25 each, such installment payments to be made only during the continuance of such disability.
Appellee further testified that he became disabled while working for the coal company in the mine; he injured Ms leg one day and went home and it became stiff, and lingered four or five months, suffering severe pain. He then described his injury, and said the doctor kept his knee in a cast about three weeks; he suffered three months and was unable to work; since that time he has been able to work a little, not much; makes $7.50 a week and gets two meals per day at the work which he is now doing- and works seven days a week; he cannot now dig coal or work in a coal mine or do any other work that requires lifting heavy objects or strain; cannot go up and down stairway without pain or stand on his leg any length of time without severe pain; has had to stop working because of pain four or five times in the last .two years; has never tried to get another job or any other kind of work than what he is doing now, which is the only kind of work he can do; he was 21 years of age ■ on December 16, 1938; lives with his parents; went to work for Mr. Mosley at Phil’s Luncheonette early in 1937 and has worked continuously since that time except three or four times when he was off for two or three days at a time; he works as porter, cook and delivery boy at Phil’s Luncheonette; sometimes helps wash dishes, in fact nearly every day; delivers sandwiches and drinks to customers in the neighborhood; is porter and handy-man; making deliveries around in the Kennedy building, court house, etc.; court house is half a block away from the Kennedy building; Phil’s Luncheonette is in the Kennedy building-; goes to work about six o’clock in the morning and gets off at 3:30 in the afternoon. Appellee further testified that when he first went to work for Mr. Mosley he was paid $4.50 a week; later he was paid $6.50 a week and then he was raised to $7.50, which he is now earning; persons of his type doing- such work, if able-bodied, get $12 a week.
The undisputed evidence shows that appellee was severely injured and that his injury is permanent. The question here, however, is whether his disability is total. The policy provides for the payment of disability installments in the event that the insured is prevented permanently from engaging in any occupation and per forming any work for compensation or profit. It will be observed that under the terms of this policy, in order to recover, his disability must be such that he is prevented permanently from engaging in any occupation and performing any work for compensation or profit.
This court said, in the case of Industrial Mutual Indemnity Company v. Hawkins, 94 Ark. 417, 127 S. W. 457: ‘ ‘ The right of the plaintiff to recover in this case depends upon the interpretation of the languag-e of the contract describing- the extent of the disability under which he must suffer from the injury, and what would constitute a total disability, within the meaning of the policy.”
In the construction of contracts, the object is to arrive at the intention of the parties, and we must get that intention from the contract itself. The contract in the instant case agrees to pay disability benefits only in case the insured is prevented permanently from engaging in any occupation or performing any work for compensation or profit. The appellee himself in this case says he works constantly. It'is true that he cannot work at his former occupation, mining coal; but that is not the contract. The contract is that he must be unable to work at any occupation or perform any work for compensation.
We said in the case of Lyle v. Reliance Life Ins. Co. of Pittsburgh, Penn., 197 Ark. 737, 124 S. W. 2d 958: “The question is, was appellant wholly disabled? We do not find any evidence to show that he was. By his own admissions he continued to work, and he drew the same salary throughout the period of so-called disability. It is not in the record that his employers complained. On the contrary, appellant ‘had an idea’ they were satisfied with his services.”
In the case of Aetna Life Ins. Co. v. Person, 188 Ark. 864, 67 S. W. 2d 1007, this court said: “To be thus totally and permanently disabled, the inability to perform any necessary act of the work is not required; the contingency contemplated is that, where the condition renders the insured unable to perform all of the essential acts of any calling, for which otherwise he might be fitted, in the usual and customary manner, then he is totally and permanently disabled within the meaning of the insurance contract.”
It is true that appellee is not able to do the kind of work he did before his injury; he cannot work in the mine; but the undisputed proof shows that he is constantly employed at a luncheonette and that he receives a salary of $7.50 a week. It, therefore, cannot be said that he is totally and permanently disabled and prevented from performing any work for compensation. Some witnesses testified that he is totally disabled, and he probably is totally disabled from performing the kind . of work he did before his injury, but the contract in this case requires that he be prevented from doing any work for compensation. The appellee is a colored boy 21 years old, and his wages have been increased at the luncheonette from $4.50 to $7.50 per week. It would be impossible to construe the contract in this case to mean, that he was totally disabled because he could not work in the mine.
It has been repeatedly said that the courts cannot make contracts for parties, but they can only construe the contracts made by the parties. This court has many times construed insurance contracts for permanent and total disabilities. Among the cases discussing this question are the following: Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. 2d 407; Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. 2d 788; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. 2d 310; Aetna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Industrial Mutual Indemnity Co. v. Hawkins, supra; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600; Mutual Benefit, etc. Ass’n v. Bird, 185 Ark. 445, 47 S. W. 2d 812; Travelers’ Protective Ass’n v. Stevens, 185 Ark. 660, 49 S. W. 2d 364; Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. 2d 433.
This contract must be construed most strongly against the insurance company that prepared it, and if a reasonable construction could be placed on the contract that would justify a recovery, it would be the duty of the court to so construe it. But the court cannot make a new or different contract. The'evidence shows that the appellee is an industrious and capable boy, better than the average colored boy, but according to his own testimony, he is not totally disabled.
The judgment of the circuit court is reversed and the cause is dismissed. | [
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Hart, J.,
(after stating the facts). Counsel for the defendant urge upon us that the judgment should be reversed because the court refused certain instructions asked by them, but, as insisted by counsel for plaintiff, they are in no attitude to complain of this for the reason that they have not seen fit to abstract the instructions given by the court. In such case the presumption is that the court correctly instructed the jury,, and that all of defendant’s instructions which should have been given were covered by those given. Carpenter v. Hammer, 75 Ark. 347; Files v. Law, 88 Ark. 449; St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374.
The court also refused to give instruction No'4 as asked by the defendant, but gave it over the objection of the defendant in the modified form as follows, towit: “You are instructed that if you believe from the evidence that the plaintiff was to sell the land on or before the 12th day of May, 1909, and he failed to do so, then he can not recover from the defendant in this action.” By the court orally: “In connection with the foregoing instruction, I give you further instruction. If you find from the evidence that Strickler undertook to sell this land, and had procured a purchaser for the land at the price named, and the purchaser agreed to take the land at the price fixed within the time agreed upon, it was immaterial as to when the deed was executed or the money paid, although not completed by Strickler. If Mr. Wallace completed the sale afterwards on the same terms that Mr. Strickler procured it, if would have been a ratification of the trade of Strickler, and he would have a right to receive his part of the commission.”
In such cases the rule is, “since the appellant has not abstracted the other instructions that were given on behalf of appellee and those that were given on his own behalf, we must assume that the instructions given, in the particulars of which appellant. complains, were cured by others, unless the instructions as given were so radically defective that they could not be corrected by others.” Dobbins v. Little Rock Ry & Elec. Co., 79 Ark. 85; Bourland v. McKnight, 79 Ark. 427; Jacks v. Reeves, 78 Ark. 428. Defendant’s contention was that Poston and the plaintiff, under the terms of the contract with him, must have made the sale and received the purchase money before the 12th day of May, 1909, in order to be entitled to commissions. His theory of the case was entirely ignored by the court in the above instruction.
In the case of St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, the court reviewed our previous decisions on the question of conflicting instructions, and said: “It has been decided by this court in an unbroken line of cases thát an instruction which ignores a material issue in the case about which the evidence is conflicting, and allows the jury to find á verdict without considering that issue, is misleading and prejudicial, even though another instruction which correctly presents that issue is found in other parts of the charge. Where the instructions are thus conflicting, it is impossible for an appellate ■court to tell which of them the jury followed, and such an error ■calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” It is manifest that, the instruction as given, having entirely ignored defendant’s theory of the case, could not have been cured by any other instruction which the court might have given.
Therefore, for the error in giving the fourth instruction as - indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial. | [
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McCulloch, C. J.
Plum Bayou Levee District was created by an act of the General Assembly in 1905 for the purpose of constructing a levee along or near the east bank of the Arkansas River, in the counties of Pulaski, Lonoke and Jefferson, to protect the lands embraced in the specified territory from inundation of waters of that river. The levee constructed pursuant to the creation of the district is 42 miles long, commencing in Pulaski County about the head 'of -Plum Bayou, and extending into Jefferson County, within two miles and a half of what is known as Rob Roy bridge. The levee is a solid, continuous embankment, of sufficient height and width to prevent the spread of waters overflowing from the Arkansas River. It protects from overflow about 270,000 acres of fertile land, a considerable portion of which is improved and in a high state of cultivation. The general direction of the river course in front of the' levee is south, but there is a wide reverse bend which changes the local course east and west, and the levee is constructed across the bend instead of following it. Plaintiff, Mrs. Sallie E. McCoy, owns land embracing three hundred acres in cultivation, fronting on the east bank of the Arkansas River, and situated at the lower end of the reverse bend and in front of the levee — that is to say, between the river and the levee.
After the levee was constructed, and after the overflow of 1908, plaintiff instituted this action against Plum Bayou Levee District to recover damages for alleged injuries done to her land by reason of the construction of the levee. She alleged in the complaint that the levee was constructed across - two streams, known as Gar Slough and Plum Bayou, and stopped up said streams so that no water can pass from them into the Arkansas River, or from the river into those streams; that said streams are well-defined, natural streams, with clearly marked banks and beds, and carry well-defined and constant flow of water; that, until the levee was constructed by defendant, when the river reached flood stage Gar Slough and Plum Bayou would drain the water from the Arkansas River, thus relieving the river from a vast volume of water at flood stage at points above plain tiff’s land, thereby relieving the main channel of the river to such an extent that, even in the highest flood ever known, plaintiff’s land was secure from overflow; that after the construction of the levee, the natural outlet of flood water through Gar Slough and Plum Bayou being obstructed as aforesaid, so that all the water coming down the Arkansas River was confined to the main channel of the river and the lands lying between the river and the levee, it thereby caused the water to rise at least six feet higher on those lands than it would have risen if the escape of water through Gar Slough and Plum Bayou had not been obstructed; that, on account of said raising of the waters at flood stage, the lands of plaintiff during the overflow of 1908 were permanently damaged, and the crops thereon destroyed.
Defendant in its answer denied that Gar Slough is a well-defined, natural stream with clearly marked banks and beds, or that it carries a well-defined and constant flow of water, but. that said slough is a depression or swag about one and one-fourth miles in width, about 15 or 16 miles north of plaintiff’s land, and carries no water except in wet seasons, and has no natural flow or outlet except the common territory comprising the Plum. Bayou Levee District; that, since the construction of the levee, said slough is in as high a state of cultivation as is common to the remaining vast territory situated behind the levee. Defendant admitted that Plum Bayou is a natural stream with natural banks, and in most seasons contains water, said stream having its source many miles north of plaintiff’s land and running generally in a southeasterly direction from the Plum Bayou Levee District community into the Arkansas River several miles below the end of the levee. It denied that it has constructed its levee across Plum Bayou, but that the levee at the point mentioned in the complaint is constructed about 500 feet west of Plum Bayou, across a cut-off extending from the Arkansas River to said bayou, which -cut-off, pri-or to the construction -of the levee, contained water only in very wet weather, and the bayou, which is a sluggish stream, was unaible to hold within its banks the increasing volume of water, thereby causing water from the bayou to overflow into and through the cut-off into the Arkansas River. Said cut-off is situated about four miles north of plaintiff’s lands. It denied that when the river reached a flood stage the said two streams, or either of them, was sufficient for and did in fact drain the water from the Arkansas River, or that such so-called streams were the natural drainage for water from the Arkansas River, or that they or either of them relieved the Arkansas River at flood stage from the vast volume of water at points above plaintiff’s land, thereby so relieving the main channel of the river as to secure the plaintiff’s land from overflow, as alleged, or that the construction of the levee, as alleged, has so stopped up and cut off the flood waters of the river as to cause the water in the river to rise not less than six feet higher than it would have risen had the levee not stopped up and cut off the said so-called streams.
There was another issue in the case, as to the damage to plaintiff’s land actually used in the construction of the levee, but that was settled by the verdict of the jury awarding a certain amount to plaintiff, and it passed out of the case, so far as. concerns its consideration here. The verdict was in favor of defendant on the issue of damage for raising the flood water on the land.
The testimony was conflicting, but there was sufficient to sustain defendant’s contention as to. the situation of Gar Slough and Plum Bayou and the effect of the construction of the levee upon the flow of water. It shows, too, that, in order to protect the land within the bounds of the district, it was necessary to build the levee across the depressions which permitted flood water to pass through to the surrounding low lands of the district. Plaintiff’s land was, according to the evidence, subject to overflow before the construction of the levee. But the water rose' higher on it in 1908 after the construction of the levee; and the evidence establishes the.fact that the land was seriously and permanently injured by the overflow of 1908.
Plaintiff requested the court, to give instructions which in substance stated the law .broadly to be that she would be entitled to compensation for damages done to her land by reason of the levee having been built so as to prevent the escape of flood water through Gar Slough and Plum-.Bayou, and confine its flow to the channel of the river and to the space between the levee and the river. The court refused to so instruct the jury, but instructed that defendant was not liable for the construction of the levee unless it be found that the slough and bay ous obstructed were natural outlets of the river, and were of sufficient capacity to have relieved the river from the increased flood water which caused the injury to plaintiff’s land. The question is therefore presented whether or not, for the protection of lands from inundation by the flood waters of a river, a levee may rightfully be built across depressions, swales and low places so as to prevent the escape of the flood water into surrounding low lands sought to be protected; and also whether or not, in order to prevent the spread of flood water and to protect lands which would otherwise overflow, the building of a levee which has the effect of raising’the water higher on the lands between the levee and the river calls for compensation to the owner of such lands thereby damaged.
The solution of these questions is not free of - difficulty, and there are but few decisions of the court which shed much light on them. The first inquiry would seem to be as to the characterization of flood waters overflowing a stream, to return again as they recede — whether they should be treated as surface water or as running water of the stream. But we are not sure that such an inquiry is essential to a solution of the question now presented, for, without calling it surface water, we may treat it, like surface water or the waters of the sea, as a common enemy which any landowner or body of landowners or public agency may defend against without incurring liability for damages unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense, could be avoided. Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463; Baker v. Allen, 66 Ark. 271.
The rule established by the English cases is that waters of the sea are a common enemy and may foe warded off by artificial mthods without incurring liability for damages to another. In Rex v. Commissioners, 8 Barnewall & Cresswell, 355, commissioners had, for the purpose of protection of property entrusted to their care, erected works which cause the sea water to flow with greater force against and injure the land 'of another which fronted on the sea. Lord Tenterden, delivering the opinion, said: “But the sea is a common enemy to all proprietors on that part of the coast, and I can not see that the commissioners, acting for the common interest of several landowners, are, as to this question, in a different situation from any in dividual proprietor. Now, is there any authority for saying that any proprietor - -of land exposed to the inroads of the sea may not endeavor to protect himself by erecting a groyne or other reasonable defense, although it may render it necessary for the owner of the adjoining land to do the like? I certainly am- not aware of any authority or principle of law which can prevent him from so doing. * * * I am, therefore, of opinion that the only safe rule to lay down is this: that each landowner for himself, or the commissioners acting for several landowners, may erect such defenses for the land under their care as the necessity of the case requires, leaving it to others in like manner to protect themselves against the common enemy.”
The Supreme Court of Mississippi had this to say, which we think is pertinent in the present case: “It is not of controlling importance to hold that the flood water from which the plaintiff claims to have suffered be dealt with as surface water, or as the water -of a stream, or as a separate and distinct sort. It .can not be the law, however, in this State that the flood waters of the large streams which are within or along the borders of this State are to be dealt with as the waters of a stream, nor to be obstructed, impeded or turned aside under any circumstances, except upon condition that the persons so doing shall- respond in damages for all injury sustained by another uparían owner, and be liable for nominal damages as for the infringement of the legal rights of adjacent proprietors who in truth suffer no real injury. * * * If the waters of the Mississippi River, which at flood sometimes spread in width from twenty to forty miles, and flow in a continuous and unbroken body down the valley, are to be dealt with as the waters of a stream, and the whole valley is to be given up as the course way of the stream, the most fertile portion of our State may at once be abandoned. From Memphis to Vicksburg, and from the foothills to the river, there is not a square yard of land that was not deposited by the overflowing waters of the river. If the course usually pursued by the ordinary flood waters is the channel of the stream, the whole valley is the channel. It is evident that to so declare would be to announce as a positive rule of law, and as an un disputable fact, that which is not true, and which, if put into practical operation, would relegate prosperous and fertile districts to the condition of a wilderness. There are farms innumerable, and railroads, villages, towns and cities situated in a watercourse, if the usual flow of the flood waters of the Mississippi River mark and define the course of that stream. It is manifest that to apply the strict rules of law controlling in cases of streams and the obstructions thereof to such river and such conditions is, in the very nature of things, impracticable and impossible. Calling these overwhelming floods ‘surface’ or ‘channel’ water for the purpose of dealing with them under rules applicable to entirely different conditions, advances us no step in the solution of the questions involved. We must deal with things, and not names, and conditions inherently and radically different can not be assimilated by mere terminology.” Kansas City, M. & B. Rd. Co. v. Smith, 72 Miss. 677, 27 L. R. A. 762.
There is a decision of the Supreme Court of California wmch is directly in point, the facts of the case and conclusion of law reached by the court in the case being stated in the syllabi as follows: “A reclamation district, organized and existing under the laws of the State for the purpose of reclaiming certain swamp and overflowed lands situated upon the Sacramento River, has a right to erect and maintain a levee along the bank of the river so as to prevent the inundation of the land sought to be reclaimed, notwithstanding the possible or probable effect of the levee would be to cause the waters of the stream to overflow other lands situated upon the river. Damages so caused by the levee several years after its erection, on land situated upon the opposite bank of the river two miles farther down the stream, are damnum absque injuria, for which the reclamation district is not liable. * * * The reclamation district has a right to construct and maintain the levee across the mouth of a slough through which, in times of flood, a part of the waters of the river was accustomed to flow and escape upon the adjoining low lands.” Lamb v. Reclamation District, 73 Cal. 125.
The Supreme Court of Iowa, in the case of Hoard v. Des Moines, 62 Iowa 326, held that (quoting from the syllabus) “every owner of land has a right' to protect himself from overflow in times of flood by water from a river, even though, by excluding the water from his own premises, he deepens it between his land and the river; and, on the same principle, a city may protect its territory from overflow by the construction of a levee, and, in the absence of negligence, will not be liable to one who owns a lot between the levee and the river.” See also Cairo & V. Rd. Co. v. Stevens, 73 Ind. 278, and other Indiana cases therein cited. 2 Farnham on Waters, § 1340.
We conclude that, upon the state of facts which the jury could have found under the instructions of the court to exist, the defendant could rightfully construct the levee in the manner described without liability to plaintiff for damages. It is insisted, however, that a distinction should be made because of the provision of our Constitution that “private property shall not be taken, appropriated or damaged for public use without just compensation therefor.” Art. 2, § 22, Constitution of 1874. In reaching the conclusion above announced, we are not unmindful of the Constitutional provision; but where no right has been violated, there is no injury for which the law affords compensation. It is a case of an injury without damages. Lamb v. Reclamation District, supra.
The judgment of the circuit court is affirmed. | [
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Wood, J.,
(after stating the facts). The decree was correct. Sections 5442, 5445, 5446 and 5447 of Kirby’s Digest, inclusive, give to municipal corporations the power to provide “a supply of water” and “to regulate same,” and authorize the city council “to determine whether the prices charged for water are reasonable,” and “to fix such prices to be paid for water as they may deem to be a reasonable charge,” and require the water company “to adopt such rates to be charged for water as shall be fixed by the city council.” Under these provisions of our statute the ordinance of the city council of Arkadelphia, passed September 6, 1909, was valid. That was an ordinance “to fix and regulate the price and rates to be charged for furnishing water in the city by the water company.” The provision permitting the water company, in case it became dissatisfied with the flat rate, to install a meter at its expense and to require the consumer to pay at the rates fixed for measured water was hut a means of regulating the distribution and “supply of water” and of fixing the price that should be paid for same. In Red Star Steamship Company v. Jersey City, 45 N. J. Law (16 Vroom) 246, it is said:
“A meter is a contrivance to regulate the distribution of water by adjusting the quantity and price. It is therefore within the province of the city board’s duties to enable them to fix their rates with exactness, instead o'f by uncertain estimate, and to deal justly with the consumers. The idea advanced on the argument in behalf of the city was that the meter was for the advantage of the consumers, to protect themselves against the overcharge of the commissioners, and from excessive estimates of the quantity of water used. The only duty of the consumer spoken of in the charter is the payment of rent for the use of the water, and there is nowhere an intimation that the city may, without his consent, supply fixtures for the distribution or use of water and charge him with the cost. Section 87 of the act of 1871, under which the right to make this charge is claimed, enables the board of public works to make by-laws, rules and regulations for the security and proper management of the waterworks and drainage, for the introduction of water into the houses and to regulate the use thereof, as may seem to them necessary and proper; but it is not said that by such by-laws, rules and regulations they may, on their own motion, procure expensive devices for regulating the supply of water and impose the cost on the consumer.”
There is nothing in appellant’s charter authorizing it, when it puts in meters, to charge the consumer for the cost of such meter. There is a provision in the charter that, if the flat rate should exceed the rate established by the company’s rules, “the consumer may demand metered service according to the rules and regulations of the grantee” (water company). But this provision of the charter is for the benefit of the consumer, and is only to be invoked by him. The charter refers to the “rules and regulations of the grantee.” But there is nothing in these “rules and regulations” that gives the water company the right to charge the consumer with the cost of .meters. The rule that “meters will be put in whenever deemed proper by the company” does not authorize the appellant to charge the consumer with the cost of the meter when it is “put in.” The ordinance of the city council of March, 1909, § 1, provided * * * “that, in case the water company shall become dissatisfied with the flat rate paid for water by any consumer, it may require the said consumer to install a meter of some standard make,” etc. This probably did authorize the company to have the consumer install a meter at his own expense. But this section of the ordinance was expressly amended by the ordinance of September 6, 1909, allowing the water company, if it became dissatisfied with the flat rate paid for water by any customer, to install a meter at its own expense. So in the case under consideration there is a valid ordinance passed by the city council under authority of statutory provisions permitting the appellant, on becoming dissatisfied with the flat rate paid by the consumers of water, to install and connect a meter at its own expense, and to require the consumer thereafter to pay “for measured water.” The appellant is therefore not warranted in demanding that the consumers of water shall put in meters at their own expense. The case before us does not call for a discussion of what is, or should be, the rule in cases where the city council, having the authority to do so, has passed an ordinance requiring the consumers of water generally, or a certain class of consumers, to pay for installing meters. Such are the cases of Shaw Stocking Co. v. Lowell, 18 L. R. A. (N. S.) 746; State v. Gosnell, 61 L. R. A. 33. These cases, however, are authority for the position that where a city council is authorized to pass an ordinance requiring the consumer to furnish meters, and the council makes such a regulation, it will be enforced. The same rule is necessarily applicable where the city council is authorized, as in the case at bar, to pass and does pass an ordinance permitting the water company, where it is dissatisfied with the flat rate, to put in meters at its own expense. The ordinance in the latter case will be enforced upon the same principle as the former. Nor is the case at bar one in which the city council, although having authority, has not passed any ordinance upon the subject. Here the city council, having authority, has spoken, and has said that the appellant, if it becomes dissatisfied with the flat rate being paid by its consumers, may put in meters at its own expense. This necessarily excludes the idea that appellant may put in meters at the expense of appellees.
In addition to the authorities above cited, see in note to State v. Gosnell, supra, 61 L. R. A. at page 112, “Meters.”
Act 282, Acts of 1905, p. 700, provides: “That all persons, partnerships or corporations, owning or operating any company or enterprise for the furnishing of water * * * to the general public, in cities of the first and second class, * * * in case they furnish .meters to their patrons for the purpose of measuring such water * * * (and in cities of the first class such meters shall be furnished upon demand without charge), are hereby required to supply printed tables to their patrons semi-annually, on the 1st day of January and July of each year, which said tables shall show the Drice charged per thousand units for such water.”
There is nothing in the above statute prohibiting city councils in cities of the second class from passing an ordinance requiring water companies to furnish meters to their patrons at the expense of the companies, nor is there anything in the statute prohibiting cities of the second class from passing an ordinance requiring the patrons of water companies who demanded meters to pay for same. The law in this respect as to cities of the second class has not been changed by the passage of the above act. The council has precisely the same power in these cities with reference to “meters” as it had before.
Having reached the conclusion that the judgment ot tlxe chancery court granting, the injunction is correct, the questions incident to the regularity of the proceeding for temporary restraining order necessarily pass out. The decree is affirmed. | [
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Frauenthal, J.
This was an action instituted by the Simmons National Bank to recover upon two promissory notes. One of these notes was for $3,000, and was dated November 2, 1908, and was signed by F. B. Dilley as the maker thereof. The other note was for $5,000, and was dated December 31, 1908, and was signed by Leola Dumber Company as the maker thereof. Both notes were made payable to the order of the Simmons National Bank four months after date, and were indorsed in blank by the Dilley Foundry Company by F. B. Dilley, treasurer. The latter note was also indorsed by F. B. Dilley. The action was instituted against the makers and indorsers of the notes; but no defense was made thereto except by the Dilley Foundry Company. The Dilley Foundry Company in its answer alleged that it was a corporation organized under the laws of the State of Arkansas, and that the indorsement of its name upon said two notes was made without authority; that the notes were executed without benefit or consideration to it; and that it was solely an accommodation indorser thereon. It pleaded that said indorsements were ultra vires, and that it was not legally bound thereby. The uncontroverted testimony adduced upon the trial presents substantially the following case:
The Dilley Foundry Company was a domestic corporation organized in 1892 for the following purpose as set out in its articles of incorporation: “The general nature of the business proposed to be transacted by this corporation is to manufacture iron and brass work and to repair and sell machinery.” F. B. Dilley was the secretary and treasurer of said corporation, and from the date of its organization had complete control and' management of its assets and business. He was held out to the world by its board of -directors as having, and the testimony tended to show that he actually had, authority to transact all business and make any and all contracts for the corporation in carrying out the purposes for which it was formed. But he did not have any authority to execute in its name any contract by which it became surety or guarantor for any other person or corporation, or to make or indorse commercial paper for the mere accommodation of another person or corporation. F. B. Dilley was the president of the Beola Bumber Company, which was also a domestic corporation, but it was an entirely separate and distinct corporation, and the evidence does not indicate that any person other than F. B. Dilley was a shareholder in the two corporations. The Dilley Foundry Company, F. B. Dilley and the Beola Bumber Company had been doing the greater part of their banking business for several years prior to the execution of the notes herein sued on with- the plaintiff, but their business and accounts with it was done and were kept separate and distinct.
In October, 1967, the plaintiff made a loan to the Beola Bumber Company and to F. B. Dilley. Thereafter there came on a general financial depression throughout the country, and in February, 1908, when the financial ^ panic had somewhat subsided, -the Beola Bumber Company applied to plaintiff for an additional loan. On February 15, 1908, plaintiff loaned to the Beola Bumber Company $5,000, and therefor took a note signed by that corporation as maker with the indorsement thereon in blank by F. B. Dilley and Dilley Foundry Company. The cashier of plaintiff testified that this money was borrowed by the Beola Bumber Company, and was paid to that corporation by placing same to its credit, and that this was drawn on from time to time by its checks. On February 4 plaintiff loaned to F. B. Dilley $3,000, for which it took a note signed by F. B. Dilley as maker with the indorsement fhereon in blank by the Dilley Foundry Company. The Dilley Foundry Company received no ■benefit or consideration for the indorsement of these two notes, but its indorsements thereon were solely for accommodation. Subsequently these two notes were renewed from time to time in the same manner, and this suit is instituted on such renewal notes.
Upon tlie trial of the case the lower court directed the jury to return a verdict in favor of the Dilley Foundry Company, which was done. The plaintiff has appealed to this court from the judgment entered upon that verdict.
F. L. Dilley was the manager of the Dilley Foundry Company, and he had authority to transact generally the business of that corporation, and to bind it by the execution of any contract within the scope of the purposes for which it was created; but he had no power, and,.under the evidence, no authority, to bind it by any contract made for any other purpose. Ordinarily, a corporation itself can only do those things which are necessary to carry into effect the purposes for which it was organized. It may enter into contracts that may be fairly regarded as incidental to carrying out those purposes; but it can do no act, and can make no contract, which is not authorized by its charter, cither expressly or by fair implication. In the case of Thomas v. West Jersey Rd. Co., 101 U. S. 71, it is said: "Conceding the rule, applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that' the enumeration of these powers implies the exclusion of all others.” In the case of Central Trans. Co. v. Pullman’s Palace Car Co., 139 U. S. 24, after reviewing the various decisions of the Supreme Court of the United States relative to the powers of corporations to make contracts, Mr. Justice Gray, speaking for the court, sums up the result as follows: “The charter of a corporation, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental. All contracts made by a corporation beyond the scope of those powers are unlawful and void, and no action can be maintained upon them in the courts, and this upon three distinct grounds: the obligation of every one contracting with a corporation to take notice of the legal limits of its powers; the interest of the stockholders not to.be subjected to risks which •they have never undertaken; and above all the interest of the public that the corporation shall not transcend the powers conferred upon it by law. * * * These principles apply equally to companies incorporated by special charter from the Legislature and to those formed by articles of association under general laws.” The general rule is well settled that the power of a corporation to make and take contracts is restricted to the purposes for which it is created, and can not legally be exercised by it for other purposes. City Elec. St. Ry. Co. v. First Nat. Bank, 62 Ark. 33; Pittsburgh, C. & St. L. Ry. Co. v. Keokuk Bridge Co., 131 U. S. 371; McCormick v. Market Nat. Bank, 165 U. S. 550; California Bank v. Kennedy, 167 U. S. 363.
The statutes of this State, under which the corporation was formed, and which specify its powers, provide (Kirby’s Digest, § 839): “The purpose for which every such corporation shall be established shall be distinctly and definitely specified by the stockholders in their articles of association, and it shall not be lawful for said corporation to direct its operations or appropriate its funds for any other purpose.”
It follows from this that no corporation has the power to divert its funds or assets from the purposes for which it was created, and it therefore has not the power by any form of contract to become a surety for or otherwise to lend its credit to another person or corporation. It has the power to make all contracts necessary or incidental to its own business; and therefore a corporation organized for the purpose of carrying on a manufacturing business, such as the- Dillev Foundry Company, has the implied power to borrow money and make negotiable paper for use within the scope of its own business; but it has no power to become a party to a bill or note for the accommodation of another person or corporation. The officers of a corporation have no power to bind it by the execution of such accommodatiori paper, and it can not be held liable thereon when it is known by the payee or holder that it was executed only for accommodation. 3 Thompson on Corporations, § 2225; West St. Louis Savings Bank v. Shawnee County Bank, 95 U. S. 557; 7 Cyc. 679; 10 Cyc. 1115; El Dorado Improvement Co. v. Citizens’ Bank, 85 Ark. 185; Park Hotel Co. v. Fourth Nat. Bank, 30 C. C. A. 409; Owen v. Storm, 72 Atl. 441.
But it is urged that the plaintiff is protected herein because it was a bona tide holder of the paper, and acquired it in the usual course of business and for value. But, before one can become a bona fide and innocent holder of commercial paper, it must also appear that it was acquired without notice or knowl edge of defenses or circumstances which would put him on inquiry of such defenses.
In 3 Thompson on Corporations, § 2229, it is said: “The general rule of commercial paper imputing notice of infirmities to a holder apply equally to the holder of paper accepted or indorsed .by a corporation for accommodation. If the circumstances are sufficient to suggest inquiry which would lead to a knowledge of the fact, then he is not regarded as an innocent holder of such paper; and a holder with knowledge of its accommodation character can not enforce the paper against a corporation.” This notice and the knowledge that is imputed from such notice may arise from any irregularity in the paper or in its chain of title or from the fact that the maker only has put the note in circulation and for his benefit. Thus in the case of Evans v. Speer Hardware Co., 65 Ark. 204, we said (quoting syllabus) : “Knowledge that a note is in the hands of one of the joint makers to be negotiated for his benefit is sufficient to give notice that the others signed for accommodation merely.” Daniel on Neg. Instruments (5 ed.), 380, § 365; Nat. Park Bank v. German-Am. M. W. & S. Co., 116 N. Y. 281; Campbell v. Manufacturers’ Nat. Bank, 67 N. J. L. 301; 1 Am. & Eng. Ency. Law 367.
In the case at bar the plaintiff had refused to extend further credit to the Leola Lumber Company and also to F. L. Dilley; and when these two customers applied for further loans, it desired security. It knew that the money thus loaned iby it was for the benefit of these two parties, and not for the benefit of the Dilley Foundry Company, because it paid the money to these parties only by placing same to their credit respectively on its books. At the time the money was loaned upon the notes no suggestion or intimation was made that it was for the use or benefit of the Dilley Foundry Company, directly or indirectly. On- the contrary, the uncontroverted evidence shows that it was for the use and benefit only of those who appear as the makers of the notes, and must have been so known to the plaintiff. The indorsements of the Dilley Foundry Company upon these notes were therefore made only for the accommodation of those persons who appeared on. the notes as the makers thereof, and of this the plaintiff had such notice that the law will impute to it knowledge of that fact. The officers of the plaintiff bank and F. L. Dilley thought no doubt that he had the power, as a matter of law and incidental to his general authority, to indorse the notes in the name of the corporation, but they knew as a matter of fact that the indorsements were made for accommodation merely. F. D. Dilley had no power, because he was an officer of the company with general authority to manage and conduct its business and affairs, to indosse or sign its name on commercial paper for accommodation. The power of indorsing for accommodation is not incidental to the powers conferred upon the corporation itself organized for a manufacturing business as'was the Dilley Foundry Company; nor was such authority incidental to the general authority given to one of its officers in the management of its business. It has been held that a private business corporation may distribute its assets as it sees fit, give away its property, and therefore may become an accommodation indorser, provided all the stockholders assent, and no creditors are injured thereby. But there was no legal or competent evidence adduced on the. trial of this case showing that all the stockholders, or even those owning a majority of the stock, of the Dilley Foundry Company, assented to or had any knowledge of the accommodation indorsements of these-two notes. The undisputed legal testimony in the case is that they did not know, assent to or authorize these indorsements for accommodation. This act of the officer of the corporation was not, according to the evidence, authorized or ratified by the corporation; and it was therefore beyond his power to bind the corporation by the indorsements. Louis De fonge & Co. v. Woodport Hotel & Land Co., 72 Atl. 439.
It is urged by counsel for plaintiff that it might be inferred from the evidence that the Dilley Foundry Company made the indorsements in order that the makers of the notes might obtain money with which to pay some debt to it, or that the officers of the bank might have thought this, and therefore the jury might have inferred that the indorsements were made for the benefit of the Dilley Foundry Company. But we do not think that there were any facts or circumstances proved in the case from which such inferences could arise. The undisputed evidence shows that the Dilley Foundry Company received no benefit from or consideration for making the indorsements of these' notes; and the plaintiff loaned the money on these notes to the persons who appear thereon as makers and at the time knew that the Dilley Foundry Company indorsed the same solely to secure the payment thereof to plaintiff.
We have carefully examined the testimony adduced upon the trial of this case, and we are of the opinion that under this testimony -the lower court was correct in directing a verdict in favor of the Dilley Foundry Company.
The judgment is accordingly affirmed. | [
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McCulloch, C. J.
The circuit court on appeal from a justice of the peace sustained a plea, in the nature of a demurrer, to the jurisdiction of the court to hear and determine the cause of action set forth in the following complaint:
“That on the 4th day of December, 1908, plaintiff bought and purchased of and from the defendant certain lands lying in the county of Independence and State of Arkansas, and the defendant made and executed his deed therefor. That it was expressly understood and agreed that the defendant, R. H. Powell, would pay all taxes due upon said lands for the year 1908 by a contract and understanding then and there had and entered into, and that but for such contract and understanding plaintiffs would not have purchased said lands at said time. That defendant failed and refused, and still fails and refuses, to pay said taxes for the year 1908, and that said lands forfeited for taxes, and the penalty in such case made and provided has attached; that the taxes, penalty and costs due on said lands as aforesaid amounted to the sum of $51.79; that plaintiffs have paid said sum of $51.79 in full, and here attach said tax receipts as exhibits hereto. Wherefore plaintiffs pray judgment against defendant for said sum of $51.79, for their costs and for all proper relief.”
The court sustained the objection to its jurisdiction, and' dismissed the action, on the authority, we presume, of the decision of this court in Sanders v. Brown, 65 Ark. 498, and Naylor v. McNair, 92 Ark. 345. The first of the above cited cases was an action instituted in the circuit court by Brown against his vendor, Sanders, to recover on broken covenants of warranty the sum of $61, the amount paid by plaintiff to remove the incumbrance of a lien for special improvement assessment. This court held that, the question in the case being whether or not the amount claimed was a lien on the land, a justice of the peace had no jurisdiction, and that the circuit court had jurisdiction regardless of the amount in controversy. In the other case cited above this court held that the circuit court had jurisdiction in an action for alleged breach of a covenant of warranty, notwithstanding the amount sought to be recovered was less than $100, where the decision involved the question whether the amount sued for constituted a mortgage lien on land.
Does the principle announced in those cases control in the present one? We see no well-founded distinction, and think that those cases are decisive of the present case. It is not stated specifically in the complaint whether the contract was a verbal one, or whether it was in writing and embraced in the deed. But, as it is alleged that a deed was executed, and as that evidenced the consummated trade between the parties, the statement as to the contract is referable to the written instrument. Be that, however, as it may, the allegation is that appellee had agreed to pay the taxes on the land for the year 1908 and failed to do so, and that “said land forfeited for taxes,” and that appellant paid the taxes, penalty and costs, amounting to $51.79. Now, this contract was, it seems to us, no more nor less than a covenant of warranty against incumbrance for the taxes of 1908, which had not then accrued but which were to accrue in a few days. Appellant was not interested in the payment of the taxes further than the fact that the same constituted a lien on the land which he was then purchasing, and, in order to recover for breach of the alleged contract, it devolved on him to show that he sustained injury by being compelled to remove the lien. The first inquiry in the case, then, was whether or not there was a lien on the land which appellant was compelled to remove; and the justice had no jurisdiction to hear and determine that question.
The jurisdiction of the justice of the peace cannot, as insisted by counsel, be sustained on the ground that only a contract to pay money is involved, and that the question of a lien on the land is not involved in the case. There was no agreement to pay any specific sum of mbney — only to pay the taxes of 1908 — and, as we have already said, appellant was not interested further than in the removal of the lien on his land, and had no cause of action for breach of the contract unless he showed that there was a lien on the land which he was compelled to remove.
We are therefore of the opinion that the ruling of the circuit court was correct, and the judgment is affirmed.
BattIvB, J., dissenting. | [
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Battle, J.
The Arkansas Fertilizer Company, for cause of action against J. N. Banks and W. C. Brummett, alleges:
“That plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Arkansas, with its principal place of business at Little Rock, Arkansas. That defendants, J. N. Banks and W. C. Brummett, are indebted to plaintiff in the sum of two hundred and fifty dollars and seventy-two cents, with interest frorh December 1, 1908, at the rate of eight per cent, per annum, as- evidenced by a certain promissory note, which in words and figures is as follows, towit:
“ ‘$1,130.50. De Queen, Ark., May 1st, 1907.
“ ‘On or before November 1st we promise to pay to the Arkansas Fertilizer Company, or order, eleven hundred thirty and 50-100 -dollars, for value received, with interest at the rate of eight per cent, per annum from date until paid, and with current rate of exchange on Little Rock, Arkansas, if paid elsewhere. This promissory note is given in full settlement for fertilizers sold, and payment is secured by farmers’ promissory notes as collateral.
“ ‘Extended to Nov. 1st, 1908.
' “‘(Signed) “‘J. N. Banks,
“ ‘W. C. Brummett.’
“Wherefore plaintiff prays that it have judgment against the defendants, J. N. Banks and W. C. Brummett, for and in the sum of two hundred and fifty and 72-100 dollars with interest from the 1st day of December, 1908, at the rate of eight per cent, per annum, and for its costs in and about this cause expended.”
Defendants claimed damages for money paid out and for loss of time in handling said fertilizers, which they claimed were worthless.
The issues were tried by a jury. The cause of action was based upon the following contract in writing:
“This contract, made between the Arkansas Fertilizer Company, of Little Rock, Ark., and J. N. Banks and W. C. Brummett of De Queen, State of Arkansas. *
“Witnesses, that the Arkansas Fertilizer Company agrees to deliver at the prices and on the terms named herein to the party above named such quantities of the White Diamond fertilizers as are specified below, to be ordered shipped by consignee, before . the expiration of this contract, and authorizes them to sell the above named fertilizers and to be sole agents for their sale in the De Queen vicinity, provided that the Arkansas Fertilizer Company shall not be liable for any damages, commissions, or expenses because of failure to deliver goods •promptly, if such delays are on their part unavoidable. And provided further that all goods shipped on this contract and the proceeds from the sale thereof shall remain the property of the Arkansas Fertilizer Company until full cash settlement has been made.
“We, J. N. Banks and W. C. Brummett, accept the above, and agree to act as agents for the sale of-Arkansas Fertilizer Company’s ‘White Diamond’ brand of fertilizers, and, in consideration of having- the exclusive agency for these fertilizers in the above-described territory, agree to make or have made a thorough canvass of said territory for their sale at the proper time, and agree not to undertake the sale of any other fertilizers in said territory during the period covered by this contract; and further agree to pay freight charges, if unpaid, and if necessary store fertilizers in a dry place until sold or settled for, and not to sell or offer to sell the White Diamond fertilizers in the territory of any other agent for the same brand without such agent’s consent.
“Terms and prices per ton of 2,000 pounds on cars in car lots at De Queen, Ark., in 100 pound bags.
“Five tons Ammoniated Bone Superphosphate for sandy soil, -net to agent, $20.251 5 tons 20th Century Fertilizer for clay soil, net to agent, $20.25; Nitrated Superphosphate with potash for vegetables’ quick growth, net to agent, $26.25; Potash Special, Raw Bone Meal with potash, Pure Raw Bone Meal; 5 tons Kali Superphosphate for fruit soil to make fruit, net to agent, $17.75; Economy Fertilizer; 5 tons Acid Phosphate to make cotton open early, net to agent, $15.25; Orchard Fertilizer, and as much more as can be sold by us.
“Terms: Settlement for spring shipments due May 1; for all fall shipments‘due November 1. Settlements to be made in cash, or 8 per cent, interest-bearing notes to cover time sales, secured in every instance by the notes of the' farmers to whom sales are made, indorsed by agent as collateral. All fertilizers sold by agents for cash by settlement date are to be settled for with cash. Unsold fertilizers in agent’s possession to be settled for by notes without interest, due at the next settlement date. Eight per cent, per annum allowed on payments made before due. It is mutually agreed that this contract may be cancelled by either party hereto when the other party shall fail to perform their part thereof. This contract not valid until approved by the Little Rock office of the Arkansas Fertilizer Company.
“Signed this the 18th day of December, 1906.
“Arkansas Fertilizer Company.
“J. N. Banks,
“W. C. Brummett.
“Accepted December 24, 1906,
“By Arkansas Fertilizer Company.
“Wm. S.”
In pursuance of the foregoing contract the plaintiff shipped and delivered to the defendants three carloads of fertilizers to sell for it as agents. On the first ‘day of May, T907, defendants executed to plaintiff the note sued on, on which are indorsed various sums as credits, amounting in the aggregate to $960.95. They sold a considerable portion -of the fertilizers to farmers. They took notes for a part of the purchase money, and delivered them to plaintiff to hold as collaterals. Plaintiff, insists that, according to the evidence adduced in the trial, defendants sold fertilizers for $1,130.50, and remitted to plaintiff the same except $250.72, and that they are indebted to it for that amount. On the other hand, the defendants say that, according to the evidence, they remitted to the plaintiff all the moneys collected by them for fertilizers sold, and that plaintiff is indebted to them in the sum of $150.
In the progress of the trial a number of witnesses were allowed to testify in behalf of the defendants, over the objection of plaintiff, that they had purchased fertilizers of the defendants, and paid for them, and used them, and they failed to improve their crops; and others were allowed to testify, over the objection of the plaintiff, that the fertilizers of plaintiff did not improve crops in 1907 as much as other fertilizers.
After instructing the jury as to plaintiff’s liability for warranty, the court instructed them, at the request of the plaintiff, as follows:
“7. The court further instructs the jury as a matter of law that under the terms and conditions of the contract entered into between the plaintiff and the defendant it became and was the duty of the defendants to use good judgment and exercise diligence in extending 'Credit to purchasers -of fertilizer, and to know that the parties to whom they sold were reasonably honorable annd responsible; it was also their duty to look diligently after the collection of all sums due for such fertilizer so sold, and they can not in this case recoup any amount as against plaintiff on account of their failure to collect any sum or sums due on notes of their customers unless they show that they did comply with their duty in these respects.
“8. You are instructed that the claim of defendants in this case for credits on the note sued on constitutes what is known at law as a severable account, and, before the defendants will be permitted to set off any item of said account as against the claim of plaintiff herein because of the failure of the. fertilizer to be reasonably fit for the use intended, they must show by a fair preponderance of the testimony that said amount has not been collected by them; that their failure to collect the same is the direct result of the failure of the fertilizer furnished them by the plaintiff to come up to the implied warranty.
“9. You are instructed that, even though you find that the fertilizer furnished defendants by plaintiff was not reasonably fit for the purpose for which it was intended, yet if you find that defendants actually sold all the fertilizer with which they stand charged for the price for which they expected to sell it when they bought it, and if you further find that they have collected for practically all of it, you would not be warranted in allowing defendants credit for a greater amount by way of counterclaim or setoff than the amount represented by the difference between the amount actually received by them and the amount they would have received had the fertilizer been reasonably fit for the purpose intended, together with any additional amount which you may find that they were forced-, to expend and the reasonable value of any additional time which they were forced to spend in handling the said fertilizer; and you would not be warranted in allowing them credit for any of these amounts unless you find from a fair preponderance of the evidence that their loss was occasioned as the direct result of the said fertilizer to be reasonably fit for the purpose for which it- was intended.”
And the court refused to instruct the jury at the request of the plaintiff as follows:
“16. The jury are instructed that in no case will defendants be entitled to credit on the notes sued on herein for any amount on account of any warranty, either express or implied, until they show that same was used on the character of soil for which if was intended; that it was used in a way calculated to produce good results; that the amount had not been collected, and that the failure to collect the same was wholly due to the failure of the fertilizer to measure up to the analysis.
“17. The jury are instructed that, before the defendants can claim as a setoff in this case any item represented by notes of their customers, they must show that they have used'due diligence to collect the same; that they have endeavored to collect them according to law and reduce the same- to judgment, and their failure to procure judgment on such note was solely on the ground of the breach of warranty on the part of the plaintiff.”
And the court instructed the jury, over the objection of the plaintiff, at the request of the defendants, as follows: -
“1. Although you may believe from the evidence that the defendants did not apprise the plaintiff of the worthless condition of the fertilizer, if you find that it was worthless, this could be considered by .you only in determining whether or not the fertilizer was in fact worthless; and if you find from a preponderance of the testimony that it was worthless, or that -it was not reasonably fit for the purpose for which it was bought, then defendants would not be liable for its value.
“2. You are iold that any settlement which might have been made between plaintiff and defendants which did not take into consideration the question of the quality of the fertilizer can only be considered by you in determining whether or not the fertilizer was worthless; and if defendants made no claim on account of the quality of the fertilizer in such settlement, this can only be considered in determining whether the fertilizer was in fact worthless, or that by their failure to assert such claim they intended to waive the defect, if any existed, in its condition. It is for you to say from all the evidence in the case whether or not the fertilizer was reasonably fit for the purpose for which it was purchased, and whether or not the defendants did in fact waive any claim on account of its worthless condition, if you find it was worthless.
“3. The court instructs the jury that, when a manufacturer offers his goods for sale, where the opportunity of inspection is not present before the purchase, the vendee necessarily relies upon the vendor’s knowledge of his own manufacture. In such cases the law implies a warranty that the article shall be merchantable and reasonably fit for the purpose for which it was intended, and for a breach of such implied warranty, the vendee may return-or offer to return the goods, if they are susceptible of being returned, after he discovers their unfitness for the purpose for which they were to have been used, or he may keep the goods and, when sued for the purchase money, may plead failure of consideration or recoup the amount of damages sustained by reason of their unfitness.
“4. If the jury believe from the evidence that the unfitness of the fertilizer for the purpose for which it was to be used, if you find that it was so unfit, could not have been known to or discovered by defendants by inspection, but that such unfitness had to be demonstrated by actual use, and that such use made it impossible to return the fertilizer after its unfitness was discovered, then and in that event the defendants were not required to return- it or to offer to return it.
“5.. If you find from a preponderance of the evidence that the fertilizer in question was entirely worthless for the purpose for which defendants bought it, you will find for the defendants on the question of warranty. .
“7. If you find for the defendants on their -counterclaim, you will fix their damages at such sum as you may find from the evidence will fairly compensate them for the money expended in payment of freight and the profits which they would have derived from the sale of it, if any.
“9. You are told that the vendor of fertilizer, by selling a compound as a fertilizer, thereby expressly warrants that it is capable of giving additional producing capacity to land of the character for which it was represented to be suitable.”
The jury returned a verdict in favor of the defendants for $120, and the court rendered judgment accordingly, and the plaintiff appealed.
The court erred in trying the issues in the case upon the theory that the fertilizers were sold to the appellee, instead of being consigned by plaintiffs to them to sell as its agent. Upon this theory witnesses were improperly allowed to testify that they purchased a part of them and used them and they failed to improve their crops; and upon the same theory the jury were instructed at the request of appellees. According to the express terms of the written contract, the appellant "authorized the appellees to sell the fertilizers and to be sole agents for their sale in the De Queen vicinity,” and the appellees “agreed to act as agents for the sale of appellant’s ‘White Diamond’ brand of fertilizers, and, in consideration of having the exclusive agency for these fertilizers in the above-described territory, agreed to make or have made a thorough canvass of said territory for their sale at the proper time, and agreed not to undertake the sale of any other fertilizer in said territory during the period covered by the contract.” In that capacity it was their duty, under their contract with appellant, to be reasonably diligent in selling the fertilizers, to exercise reasonable care and prudence in the selection of responsible purchasers, and to sell the same for their fair value or market price, upon a reasonable term of credit, or to sell for such value or price for cash; and to exercise - reasonable diligence in collecting purchase money when entrusted with the collection, and to promptly account to appellant for all money and property which has or may come into their hands during and by virtue of their agency. Wynne v. Schnabaum, 78 Ark. 402; Mechem on Agency, § § 1013, 1019, 5222.
The instructions given at the request of appellees should not have been given. The jury should have been instructed according to the issues in the case.
Appellant asked the court to instruct the jury as to an account stated. But appellant had not sued on such an account, and in such cases this court has held that it is proper to refuse such instructions. Allen-West Commission Co. v. Hudgins, 74 Ark. 468, 472; Bagnell Tie & Timber Co. v. Goodrich, 82 Ark. 547, 555. But, as the cause will be remanded, appellant can amend his complaint in the circuit court so as to allege an account stated. If it be true, as stated, that appellant and appellees settled and agreed as to the debits and credits to which each was entitled, and a balance was ascertained to be due the appellant on the appellee’s note, and time for the payment of such balance was extended to a future time, then such statement of accounts would be an account stated, and could be ¡impeached only for fraud or mistake, and appellees became liable accordingly. Charlesworth v. Whitlow, 74 Ark. 277; Weed v. Dyer, 53 Ark. 155; Dunavant v. Fields, 68 Ark. 534; Hamilton-Brown Shoe Co. v. Choctaw Mercantile Co., 80 Ark. 438, 440; Fletcher v. Whitlow, 72 Ark. 234, 240.
Reversed and remanded for a new trial. | [
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Hart, J.,
(after stating the facts). It is insisted by counsel for appellant that the court erred in directing a verdict for appellees, and in this we think counsel is correct. Assuming that the defendants had a right to be on the premises and to hunt there, this fact of itself did not absolve them from liability under the facts stated. The test of liability is, not whether the injury was accidentally inflicted, but whether the defendants were free from blame.
Mr. Thompson, in drawing the distinction between an intentional shooting and a shooting by mere accident, says: “But where the weapon is accidentally and not purposely pointed at another, * * * the liability of the person pointing it will depend upon the answer to the question whether he was guilty of negligence, or whether it was the result of pure accident, unmixed with negligence. Here, as in other cases, the test of the liability of the defendant is whether, in what he did, he failed to exercise reasonable or ordinary care. And here, as in other cases, the reasonable care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injury; and the principle is applicable that he who does what is more than ordinarily dangerous is bound to use more than ordinary care. Whether, in case of an injury proceeding from such a cause, ordinary or reasonable care was used by the person inflicting it will in almost every case present a question for a jury.” Thompson, Negligence, § 780, and cases cited.
This principle of law has been recognized by the court in the case of Bizzell v. Booker, 15 Ark. 308. In that case the complaint alleged that the defendants, who had camped in the woods adjacent to plaintiff’s cotton shed for the purpose of hunting, had, by the negligent management of their camp fire, set the 'woods on fire, and that the fire had extended to the shed and consumed plaintiff’s cotton. The court held (quoting from syllabus) : “Where one is doing a lawful act — or an act not mischievous, rash, reckless or foolish, and naturally liable to result in injury to others — he is not responsible for damages resulting therefrom -by accident or casualty, while he is in the exercise of such care and caution as a prudent man would observe, under the circumstances surrounding him, to avoid injury to others; but he is answerable for damages resulting from' negligence, or a want of such care and caution on his part.”
In discussing the liability for the negligent use of firearms, in the case of Hankins v. Watkins, 77 Hun (N. Y.) 360, the court held: “When one does an illegal or mischievous act which is likely to prove injurious to others, or when he does a legal act in such a careless and improper manner that injury to third persons will probably ensue, he is answerable, in some form of action, for all the consequences which may directly result from his conduct. It is not necessary, in order to justify an action against him, that he should intend to do the particular injury which follows, or any injury at all.” See also Moebus v. Becker, 46 N. J. L. 41; Welch v. Durand, 36 Conn. 182; Judd v. Ballard, 66 Vt. 668.
It is undisputed that the sight of one of appellant’s eyes was destroyed by a gunshot wound, and the court should have submitted to the jury the question whether the gun was discharged by either of appellees, and, if so, whether he was at the time in the exercise of such care and caution to avoid injury to others as a prudent man would observe under the circumstances surrounding him.
For the error in giving the peremptory instruction in favor of appellees, the judgment is reversed, and the cause remanded for a new trial. | [
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Frauenthal, J.
This was an action instituted by H. D. Jones, the plaintiff below, against George Seymour, seeking to recover upon a rent note and to enforce a landlord’s lien therefor. A writ of attachment was sued out, which was levied upon a lot of cotton and corn. This cotton and corn were claimed by Albert Seymour, who filed an intervention therefor in the -case. The defendant admitted that he had rented the land from plaintiff, and had executed the rent note therefor which was sued on. He alleged that he had made payments thereon, and that he had sustained damages by reason of the failure of plaintiff to make certain repairs, which he sought to recoup. The intervener, Albert Seymour, alleged that he had rented a portion of the land from the defendant, and that the amount of the rent due from him had been paid to the plaintiff-; that the cotton and corn attached in the case were raised by the intervener on the land thus rented by him, and that he was the sole owner thereof. To- this intervention the plaintiff filed an answer in which he denied that the attached, corn and cotton were raised by intervener on land rented by him, and denied that intervener had rented any of the land from the defendant; and that he was the owner of the attached cotton and corn. He also alleged that the cotton and corn "were raised by the defendant, and that the intervener, who was a son of the defendant, was claiming title thereto under a fraudulent and collusive arrangement with defendant in order to defeat the plaintiff in the collection of his rent.
The plaintiff rented to the defendant a tract of land containing 160 acres for $750 for the year of 1907. The testimony tended to prove that about 122 acres of this land were in cultivation. On the part of the intervener the testimony tended to prove that the defendant sub-rented to him 45 acres of the land at $5.50 per acre, and that he had paid the full amount of the rent due from him, and that this had been paid to the plaintiff. The testimony tended further to prove that the corn and cotton were raised by the intervener on the land rented by him, and that the defendant had no interest therein. The defendant had during the same year sub-rented other portions of the land to. other parties, but had not raised or cultivated any crop on the land himself.
Upon the trial of the case the jury returned a verdict in favor of the intervener for the attached cotton and corn. They also rendered a verdict in favor of plaintiff and against defendant for the balance due on the note. The plaintiff has appealed from the judgment rendered upon the verdict in favor of the intervener.
Before any evidence was introduced the plaintiff requested the court to allow him to open and close the argument in the case, and again made this request after the introduction of all the testimony. The court refused this request, and ruled that the intervener was entitled to the opening and conclusion of the argument.
It is urged by counsel for plaintiff that the court erred in this ruling. Our statute provides that in the argument the party having the burden of proof shall have the opening and conclusion. Kirby’s Digest, § 6x96. It further provides that the burden of proof in the whole action lies on the party who would be defeated if no evidence was given on either side. Kirby’s Digest, § 3107. Ordinarily, the plaintiff in an action has the burden of proof, and is therefore entitled to the opening and conclusion of the argument.
In the trial of an intervention in an attachment suit the intervener becomes in effect the plaintiff, and is entitled to the opening and conclusion of the argument when the burden of proof is upon him in the whole case. He asserts ownership of the attached property, and the onus is upon him to prove his title. State v. Spikes, 33 Ark. 801; Stephens v. Oppenheimer, 45 Ark. 492; Excelsior Mfg. Co. v. Owens, 58 Ark. 556.
But it is contended that the burden of proof in the matter of the intervention in this case was upon the plaintiff because he alleged a fraudulent combination between the intervener and ■defendant under which intervener was claiming the property; and he relies upon the case of Mansur & Tebbetts Implement Co. v. Davis, 61 Ark. 627, to sustain this contention. But we <do not think that the pleadings or issues presented in that case are similar to those made in this case. In the case relied on the plaintiff admitted the sale and delivery of possession of the attached property to the intervener, and to defeat that sale alleged that it was fraudulent. In that case, if no evidence had been introduced, the intervener necessarily would have recovered the property. In the case at bar the plaintiff denied that the defendant had sub-rented the land to the intervener, and in effect denied that intervener had raised the attached cotton and corn. He thereby denied that intervener had any title or interest in the property. It is true that he also alleged that there was a collusive and fraudulent arrangement between defendant and intervener to defeat plaintiff in the collection of his rent. But, if no evidence had been introduced under these pleadings, the intervener must necessarily have failed to recover. Thus in the case of Railway Company v. Thomasson, 59 Ark. 140, the railway company was sued for killing stock, and admitted the killing by its train and the value thereof. It was there held that the railway company was entitled to open and conclude the argument, because the plaintiff would have been entitled to a recovery in accordance with his pleading if no evidence had been introduced. But in the case of Railway Company v. Taylor, 57 Ark. 136, where a railway company was sued for the killing of stock, and admitted the killing thereof by its train, but denied the value of the animal, it was held that the plaintiff was still entitled to begin and reply because he was not entitled to a recovery in accordance with the prayer of his complaint if no evidence had been introduced. In the case at bar it was incumbent upon the intervener, under the pleadings, to prove that he had sub-rented the land from the defendant and had raised the attached cotton and corn before he was entitled to recover the property. And this onus of proof was on him in the whole case. He was 'therefore entitled to the opening and conclusion of the argument.
It is urged by the plaintiff that the intervener was not entitled to recover because he had not paid the full amount of the rent that was payable to plaintiff for the land sub-rented by him. It is contended that there were 122 acres of land in cultivation, which was rented from plaintiff by the principal tenant for $750, and this would have been at the rate of $6.15 per acre. That the intervener subrented from the principal ten ant 45 acres of the land at $5.50 per acre, and only paid that sum; and that therefore he did not pay to the landlord the proportionate amount of the principal rent which was due from him as a sub-tenant. But, if it shall be conceded that the intervener should have paid the amount of rent now claimed by the plaintiff, he is not entitled to insist upon this contention because he did not make it an issue in his pleading, and did not present the question in the lower court. He can not raise this issue for the first time upon his appeal to this court. . He did not ask any instruction upon this issue, and can not complain that it was not submitted to the jury. It was not submitted by á request for a peremptory instruction. The object of requiring the parties to present all questions and issues to the lower court before they can be presented to this court is to have the lower court pass thereon, so that this court upon appeal may determine whether or not such .ruling was erroneous. The purpose is also in furtherance of justice to require the party to first present the question he contends for in the lower court, so that the other party may not be taken by surprise. Had this question been suggested in the lower court or this issue there made, it may be that the intervener could have shown that $5.50 per acre for the land subrented by him was the pro rata amount of rent for which the land cultivated by him would have been liable to the plaintiff. However this may be, the plaintiff is not entitled to raise this question for the first time in this court! Western Coal & Mining Co. v. Jones, 75 Ark. 76; Ward Furniture Mfg. Co. v. Isbell, 81 Ark. 561; Shinn v. Platt, 82 Ark. 260; Kansas City So. Ry. Co. v. Skinner, 88 Ark. 189; Price v. Greer, 89 Ark. 308.
The judgment is affirmed. | [
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