text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Holt, J.
A jury convicted appellant, Arthur Carpenter, of the crime of arson and fixed his punishment at one year in the state penitentiary. The indictment charged that appellant on January 1, 1942, set fire to and burned a building belonging to the Washington county, Mississippi, Y. M. C. A. On this appeal appellant contends that the evidence was not sufficient to support the verdict and the judgment against him, and that the trial court erred in giving appellee’s instruction No. 4.
1.
In cases of this nature this court has many times announced the rule that the duty devolves upon the state to prove the corpus delicti. The state must also not only show that a building was burned, but that such burning was the result of the willful act of some person responsible for his acts. See Johnson v. State, 198 Ark. 871, 131 S. W. 2d 934, and Hancock v. State, ante, p. 174, 161 S. W. 2d 198.
The rule is also well established that arson may be proved by circumstantial evidence. See Duke v. State, 183 Ark. 1153, 38 S. W. 2d 764.
On appeal the evidence must be viewed in the light most favorable to the appellee. See Stinkard v. State, 193 Ark. 765, 103 S. W. 2d 50, and Tate v. State, ante, p. 470, 163 S. W. 2d 150.
The secretary of the Y. M. C. A. described its property located near Malvern, Arkansas, and testified that the summer before the Y. M. C. A. building, in question, was burned they had cared for approximately 550 boys and girls in the camp, and that in a conversation with appellant, a near neighbor to the camp, appellant objected to the camp and its location. Sam Easley, a caretaker at the camp, testified that he discovered the fire at about 12:30 a. m., and that by the time he reached it the fire was beyond control. He sent his boy to call officers and request that blood hounds be sent to the scene. Bill Abbott came with two dogs and about 20 feet from the place where the building had burned they came upon and followed a trail. He further testified that he saw a jug1 “partly burned right there where the fire was set.” “Q. Do you know whether or not there were any jugs under the building? A. No, because I kept it cleaned out all the time. Q. How long had it been since anybody had used this building? A. Along the last of August. It was locked and nailed up.” There had been a very hard rain preceding the fire.
Paul Easley, the caretaker’s son, corroborated his testimony.
Bill Abbott, a Hot Springs policeman, testified that he brought two blood hounds to the scene; that they were bred at the Arkansas prison farm at Tucker, were well trained and he had never seen them fooled. When he reached the scene the building had completely burned, but the rain had stopped. He took the dogs to the back of the building and they “picked up a trail” which they followed to appellant’s house. He further testified that the dogs could not have “picked up” a trail made the day before on account of the rain. On the trail they came to soft spots where they found rubber boot tracks that had been made since the rain. He put appellant’s boots in the tracks and they fitted. They found the boots in appellant’s house about two hours after the fire and after the dogs had led them to it. The boots were wet and appellant’s trousers were wet to his waist. “We began looking around over the house for wet clothing and couldn’t find them. He had on a dry pair of socks and the pants we got were soaking wet. We couldn’t find any other wet clothes in the house. He still had them on. This was about 2 a. m. on the night of the fire. ’ ’ He further testified that they tried the dogs to see if they would trail anyone away from the gate leading to appellant’s house, and they would not.
Will Lowe, a deputy sheriff, testified that he and Mr. Abbott managed the dogs and that they followed a trail up to appellant’s house. He called on appellant to come out and in four or five minutes appellant appeared. Appellant had on his trousers and a pair of socks. The trousers were wet from the waist down, and the boots which were lying in a box near the wall were still moist. Appellant saicl lie liad been in the house all evening, ever t since he had finished liis work. The trousers were so wet you could squeeze water out of them. He compared the boots with a track and they fitted. The track had been made after the rain which ceased about midnight. He found two glass jugs that had kerosene in them. Appellant said he had bought four gallons of kerosene from a country merchant within the last few days and two gallons from a peddler. Appellant told them he used the kerosene for his chickens. J. G. Fisher, sheriff of Hot Spring county, testified that appellant, when brought over to the jail, offered to plead guilty with the understanding that he was not guilty.
Jack McKenzie, state fire marshal, testified that in the northwest corner of the place where the building burned, near some steps, there was the neck of. a glass jug; that he talked to appellant about the fuel that' he used for his lanterns and lamp in his chicken house, and appellant told him he used possibly a gallon of coal oil a week and that he bad a gallon or a gallon and a half on hand at the time of the fire. Appellant then said that he had purchased six gallons previous to the fire. He also saw Will Lowe fit appellant’s boots in the tracks and they fitted perfectly. They checked up on the purchases of kerosene by appellant and found he had bought six gallons seven or eight days prior to the fire and that he had on hand a gallon to two gallons at the time of the fire. He talked to appellant and appellant said that he would like to get out of it and would enter a plea of guilty if he could get out real light, but wanted it understood in court he was not guilty.
It is our view that the evidence was ample to support the jury’s verdict and the judgment of the court.
Appellant’s objection to instruction No: 4, given on behalf of the state, can not be sustained for the reason that the transcript discloses that no objection was made to this instruction by appellant and no exceptions saved. It is not sufficient to bring forward an objection for the first time in the motion for new trial. In Boatright v. State, 195 Ark. 611, 113 S. W. 2d 107, we said: “The transcript does not reflect ’ that a motion to quash the indictment was filed by appellant or that any objection was made to overruling such a motion. It is true that in the motion for a new trial appellant states the trial court erred in overruling his motion to quash.the indictment. However, the record does not show that such a motion was filed or that any objection was made to overruling same.” See, also, Butler v. State, 198 Ark. 514, 129 S. W. 2d 226.
Finding no error, the judgment is' affirmed. | [
52,
106,
-52,
-67,
9,
-32,
106,
24,
-62,
-93,
-96,
-45,
-23,
-122,
73,
105,
39,
45,
84,
57,
-128,
-105,
19,
67,
-14,
-13,
123,
-43,
60,
77,
-3,
-35,
72,
112,
-42,
89,
-94,
104,
-57,
92,
78,
-123,
-22,
-30,
93,
24,
52,
127,
54,
15,
37,
-66,
-21,
42,
20,
-53,
73,
44,
74,
-85,
89,
57,
-126,
45,
111,
23,
-95,
98,
-98,
7,
120,
44,
-48,
53,
1,
-8,
115,
-74,
-126,
116,
71,
-120,
12,
36,
-30,
27,
-35,
-25,
-87,
9,
58,
62,
-3,
-89,
-104,
89,
27,
73,
-66,
-99,
120,
80,
-74,
122,
-25,
85,
85,
100,
64,
-113,
-68,
-77,
-113,
41,
-106,
-77,
-29,
41,
113,
116,
-51,
-94,
92,
7,
81,
-101,
-118,
-1
] |
Humphreys, J.
Appellant was convicted in the circuit court of the Fort Smith District of Sebastian County, on appeal from the municipal court of the city of Fort Smith, for the crime of possessing intoxicating- liquors for the purpose of sale, in violation of act 121 of the Acts of the General Assembly of 1925, for which he was adjudged to pay a fine of $250. From the judgment of •conviction he has duly prosecuted an appeal to this court.
An officer of the city arrested appellant for transporting- liquor, at which time he threw a half-gallon jar of corn whiskey out of his car, and broke the jar all to pieces. Thirty or forty minutes thereafter, W. L. Robertson, a police officer of said city, filed an affidavit before J. A. Gallaher, judge of the municipal court, charging appellant with the crime of having intoxicating liquor in his home for the purposes of sale, and procured a warrant for his arrest and a warrant to search his home and seize the liquor. Pursuant to directions contained in the search warrant, officers of the city, in company with appellant, went to his home, and proceeded to make la search for whiskey. Appellant informed them that there was no whiskey in the house. They made search, however, and discovered a trapdoor in the floor of one of the bedrooms, under a rug near the bed, and, upon opening the trapdoor, discovered twenty-four half-gallon jars of intoxicating liquor wrapped up in sacks.
Prior to the calling of the case for trial, the appellant filed a motion to suppress the testimony of the police officers of the city of Fort Smith, obtained while they were upon the premises of defendant, and to enjoin the city of Fort Smith from using in the trial of the cause, as evidence, the liquor seized by said officers, for the reason that said search warrant was illegal and void, and that said search warrant did not show upon its face that the magistrate issuing the same heard testimony before the issuance of said warrant, and for the reason that there wias no information filed under oath with the magistrate issuing said warrant, stating any flacts from which could be inferred probable cause for believing that the appellant possessed intoxicating liquor for the purpose of sale or otherwise, and that the search of the officers of the city of Fort Smith under said pretended search warant and the seizing of the liquor at defendant’s home amounted to an unreasonable and unconstitutional search and seizure of defendant’s property.
. The court, after considering the matter under the agreed statement of facts entered into between counsel for -appellant and appellee, overruled said motion, and, upon the trial of this cause, permitted the officers of the city of Fort Smith to detail to the jury what they found on appellant’s premises while thereon by virtue of the pretended search warrant, and permitted the city of Fort 'Smith to introduce in evidence part of the liquor taken from appellant’s home.
Appellant insists that the court committed reversible error in overruling his motion and allowing this testimony to be introduced by the city, over his objection and exception, which objection and exception were preserved by him in his motion for a new trial. Under the rule announced by this court in the case of Starchman v. State, 62 Ark. 538, 36 S. W. 940, and adhered to in the cases of Benson v. State, 149 Ark. 633, 233 S. W. 758; Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, and Knight v. State, 171 Ark. 882, 286 S. W. 1013, it is unnecessary for us to set out the agreement of facts upon which the motion was heard, the affidavit for a search warrant, and the search warrant, and to determine the sufficiency thereof. Under the doctrine of those cases the admissibility of evidence is not 'affected even though the search warrant was illegally issued.
Appellant insists that, even though the testimony gained by the officers as a result of the search and seizure was admissible, it, together with the other evidence in the case, is insufficient to support the verdict and judgment. The testimony reflected that a number of warrants had been issued against appellant, and that he had done no work for three or four years. The purpose for which liquor is kept may be proved by circumstantial evidence. State v. Barnes (S. D.), 213 N. W. 504; Porter v. City of Atlanta, 18 Ga. App. 33, 88 S. E. 744.
We think the circumstantial evidence in the instant case sufficient to support the verdict and judgment. Thirty or forty minutes before the search, appellant was arrested for transporting intoxicating liquor, and, in order to destroy the evidence, threw a half-gallon jar of corn whiskey out of his car and broke the jar all to pieces, so that the officer could not tell whether it was the same make of jar as those found in his house. Appellant told the officers no whiskey was in his house, yet they discovered, in his presence, during the search, twenty-four half-gallon jars of corn whiskey wrapped in tow sacks and hidden in a hole sawed in the floor of his bedroom, under a trapdoor that was covered with a rug. When the discovery was made, appellant made no excuse and offered no explanation as to why he had denied having it or the purpose for which he had it. It cropped out in the testimony that he was a frequent offender, and that he had been an idler for years.
No error appearing, the judgment is affirmed.
Justices Smith, Mehaffy and McHaney dissent. | [
-79,
-26,
-20,
28,
58,
64,
10,
-68,
82,
-5,
-12,
115,
-23,
66,
65,
115,
-85,
127,
117,
121,
-19,
-73,
23,
65,
-110,
-13,
57,
-43,
-76,
79,
-20,
-42,
29,
49,
71,
85,
70,
-56,
-89,
-36,
-118,
33,
41,
-24,
81,
2,
56,
43,
20,
15,
113,
14,
-26,
42,
27,
-55,
73,
44,
-55,
45,
-40,
-8,
-104,
29,
-115,
22,
-111,
102,
-104,
5,
-56,
60,
-36,
49,
8,
-8,
115,
-126,
-126,
116,
15,
-39,
12,
100,
98,
10,
-3,
-17,
36,
-120,
45,
-66,
-99,
-89,
-72,
73,
105,
-87,
-98,
-99,
126,
-112,
15,
-14,
-19,
101,
17,
108,
-122,
-34,
20,
-111,
13,
40,
-126,
19,
-23,
23,
48,
113,
-59,
-30,
92,
85,
115,
-101,
-114,
-46
] |
Mehaeey, J.
The appellee, plaintiff below, filed suit in the Pulaski Chancery Court, alleging that they sold to the defendant the land described in the complaint for $3,200, $500 of which was paid cash and the remainder evidenced by notes. It is alleged that it was first agreed that the deferred payments should be evidenced by 90 notes of $30 each, bearing interest from date until paid at the rate of 7 per cent, per annum. That these notes were evidenced by the deed, which was recorded. That it was afterwards agreed that the deferred payments should be evidenced by one note of $1,500, due and payable March 20, T927, and one note of $1,200 payable in installments of $30 per month, all bearing interest at the rate of 7 per cent, per annum from date until paid; that, in drawing the notes and deed to conform to the latter agreement, error was made in both the note and the deed, in that said $1,500 note w7as drawn to bear interest from maturity instead of from date; that said error was a mistake and oversight by all parties, and now appears in the deed which is recorded in the records of Pulaski County.
Plaintiffs state that they still own and hold the note and hold a lien against the land to secure the payment, and they ask for reformation of the note and deed so as to show that the note hears interest from date instead of maturity. ■
The defendants answered, denying that it was first agreed that the deferred payments should he 90 notes of $30 each and bear interest from date until paid; denies that it was afterwards agreed that the deferred payments should be evidenced by one note of $1,500, due and payable March 20, 1927, and one note for $1,200, payable in installments of $30 per month, all bearing interest at 7 per cent, per annum from date until paid; denies all the material allegations in the complaint, and states that the deed of January 20, 1923, constituted the final and only complete transaction of sale, and that, so far as the defendant was concerned, it was not error or mistake. Alleges that plaintiffs were not in error, and no mistake was made. Asked that the complaint be dismissed.
The chancellor found for the plaintiffs, and decreed that the deed and note be reformed so as to show that the note for $1,500 bears interest at 7 per cent, per annum from date until paid.
The appellant, defendant below, testified, in substance, that he lives on the property; that he is now and for 14 years has been the chief engineer for the Arkansas Cold Storage Company. He had known Sullivan for years, and had inquired of Sullivan for residence property for sale. He was finally told of the property where he now lives, and he inspected the premises and decided that he would take it. That, at his request, Mr. Rose looked at the place, and advised that it was a good buy. This was between Christmas and New Tear, 1922. A few days thereafter Sullivan was notified that witness would take the property. Sullivan called Brown, and, after a day or1 so, in which the papers were drawn, Maynard visited Brown and closed the deal. Witness asked Sullivan whether there had been any one with contagious diseases living in the house, and this was mentioned at the conference that night before Mr. Brown, and both Sullivan and Brown laughed, and answered in the nega tive. This was a few minutes after the cash payment had been made. There Maynard agreed to pay $500 cash and $30 per month until the property was paid out. After the $500 in cash was paid, Sullivan told witness that Brown would like an arrangement whereby a loan would be obtained in a building’ and loan association when witness had paid down to $1,500, and in this way give Brown the $1,500. Witness had never had much dealing in real estate, and thought this as good a tiling-as he could do, and agreed thereto, signing- an agreement with Sullivan that he was to carry $1,700 fire insurance, and, when it was paid down to $1,500, it should he put in building and loan association and get him his money. Witness identified the original agreement of January 23, 1922, stated that he signed it and presented it to Mr. Brown, and this was introduced in evidence and is as follows:
“M. J. Sullivan & Son Dealers in Beal Estate Little Bock, Arkansas.
“January 23, 1923.
“I agree to carry at least seventeen hundred and fifty dollars ’ fire insurance on house number 2322 Schiller Avenue, being lot 5, block 8, O. F. Shelton’s addition to the city of Little Bock, Arkansas. In case of fire, John Brown and Amelia Ellen Brown are to receive the benefits of the insurance, as their interest may appear. I further agree that, when my notes are paid down to $1,500, to pay John Brown and Amelia Brown in full.
“Alex H. Maynard.”
Witness did not sign ninety notes for $30 each at that time or any other time. If they were drawn he never saw them. No notes whatsoever were signed for the first transaction. The first deed was delivered to him for his inspection before the money was paid over, and he had same at such time. After the delivery of the first deed and the conference, Brown stated that •he would give possession of the premises as soon as he could locate elsewhere. In the meantime some of the neighbors told him that Mrs. Brown had tuberculosis.
“Well, I had closed the dicker, so that kind of upset me, and I went to Mr. Rose with it, and Mr. Rose said, well, the best thing I could do would be to bring suit and have the deal void on that.”
Mr. Sullivan was told, in the meantime, that we were figuring on getting the money back, and that Mrs. Brown had tuberculosis. Sullivan replied that ho had asked about it, and was told that nobody had tuberculosis. Witness visited Mr. Brown, at his place of business, where he was taking freight in at a wholesale house, and was told what witness had heard, and Brown laughed and replied, “Why, no, we haven’t any disease like that,” and stated that he would not mind witness calling Mrs. Brown’s physician, Dr. Green, at the State Hospital. Witness returned to the cold storage plant and called Dr. Green, and was told that Mr. and Mrs. Brown were good friends of his, but that he couldn’t tell a story for Mr. Brown or anybody else in a case of that kind; that Mrs. Brown had an old chronic case of tuberculosis, which she had had ever since her last child was born, about fifteen years ago. That Mrs. Brown had been very careful with herself, and that there was not much danger, but that it would be a good idea to have the house repapered. Witness replied, “No, I just figured on bringing suit to get my money back.”
Either that day or the next, when witness was busy with some repair work, Sullivan came to the cold storage plant with this second deed and note, and Mr. Rose had not been told anything about this agreement relating to the time when witness had paid the contract down to $1,500. In the meantime he had seen Sullivan at' the Eagles’ Club, and had talked about the first transaction, for there had been no second one at the time. Mr. Rose was displeased when he learned witness had signed the agreement mentioned above. When the second deed and note were handed to him, he saw that the note didn’t bear interest for four years. “Under that- condition- — • condition to me, I figured I could fumigate the house and repaper it and paint it inside and make it fit to live in.”
This second deed and note were already prepared, and brought to the cold storage company for his signature, and Sullivan insisted very much that that deed was the very thing that witness should take. "Witness stated that there was no dissatisfaction on his part, but there was with Brown. Sullivan explained that Brown wanted a note that he could take to the bank and get the money. Of course, the agreement witness signed was not bankable paper, and that was the reason Brown was dissatisfied with his first transaction. Witness signed the note at that time, and, before doing so, conferred with Mr. Rose only in a general way. Myers, the bookkeeper, in the office with Sullivan and Maynard, picked up the deed and note, and read both, and gave it to Mr. Rose, telling the latter how the note was drawn, and that witness was saving four hundred — the interest for four years. Witness went ahead and signed it as they advised. All of his dealings other than the conversation with Brown about his wife were with Sullivan, and witness did not know Mrs. Brown, Miss Brown, Biggs or Farris. After the note was signed, and the second deed accepted, witness and Sullivan went to the courthouse, where the latter paid for having the deed recorded, and witness returned to work. Several months after the transaction, in a conversation with Sullivan, witness told him that the note did not bear interest, and if it had borne interest, it would never have been signed.
Cross-examination: It was two or three months afterwards that witness told Sullivan that the note did not bear interest. Mr. Rose had a private office at the cold storage plant. Witness did not go into Mr. Rose’s office to talk to him about the transaction, and was in the office with Mr. Sullivan. All three were in the same office, talking. Witness had one room repapered, and all the woodwork scrubbed and repainted with a solution 'recommended by Dr. Gebauer, who first suggested that all the paper be torn off, and the walls scrubbed and repapered, but, being financially unable to do that, witness replied, “If I have to do that, I can’t take it.”
Dr. Gebauer stated that this renovating might make it safe, but that he wouldn’t like to live in it himself. Witness took a solution of chloride of lime and hot water, and hired a man for a week, scalding the house and repainting, and repapered one room, and burned candles recommended for fumigating houses, before his family moved in. Witness would not have gone to the expense of repapering a room and painting the woodwork inside if it was in good shape. Witness did not say that Sullivan and Rose were in the same room when the matter was discussed, but said that Sullivan, Myeris and himself were in Myers’ office. Witness did not discuss it with Rose, but Myers walked in his office, and showed him the note and deed, and Rose replied, “Well, tell him to sign it.” Nothing was said to Sullivan about the note not bearing interest there. Sullivan brought the note and .deed, and did not even read it, and asked witness to sign it. At that time witness had made objections to them about the first transaction.' He had told Sullivan that he was going to have the first transaction set aside. Witness had not seen any lawyer at that time about it, but had just talked to Rose and Sullivan.
Redirect examination: “Since the conversation with Sullivan, about two months after the transaction, about the note bearing interest, nothing was heard until my last payment on the $1,200 note, which was payable in monthly installments, that is, in May, 1926, when I got a letter from Mr. Newman. When the twelve hundred dollar note was paid out, about May 20, 1926, of course no more payments were made, for the $1,500 note wasn’t due until January 20, and I was figuring on taking this up when it came due. ’ ’ That was the first time witness had heard from Brown or any of them about the note. Witness saw the note at the bank when he paid off the $1,200 note, and saw that it had the notice attached to it that it did not draw any interest.
C. E. Eose testified, in substance, that Mr. Maynard had an incurable throat trouble, and that he had advised him to be very careful against tuberculosis. Witness went out and looked at the house, and it looked like a good house for the money. He told Maynard to be sure there was not any tuberculosis around the house to get into his bad throat. So he told witness that both Sullivan and Brown said there had been no tuberculosis, and he bought the house. A few days later he told -witness that things had -been misrepresented, and he had learned that Mrs. Brown had had tuberculosis for twenty years. Witness advised him to bring suit for the return of his money, and witness told Sullivan that he would get a lawyer and bring suit. But witness stated that Mr. Maynard -wanted the house very badly, so he went to see Mr. Brown, and reported, and Mr. Brown again told him that there had been no tuberculosis in the house. Witness said he never saw the first' papers, but, when the last papers were brought to him, Mr. Myers brought them in, and he saw the note bore no interest, and' Mr. Sullivan and Mr. Maynard were out in Mr. Myers’ office, and he called Mr. Maynard in and told him that he would save $400 or $500, and,for him to sign the note, and Maynard signed it. ■
M. J. Sullivan testified that he negotiated and closed the deal for the property, and that Maynard agreed to pay $3,200, $500 cash and assume a mortgage of $1,500, and the balance in notes of $30 a month, notes on or before, each note to bear its own interest. A deed was executed on these terms. Witness identified the first deed, which was introduced, and that deed, which had been recorded, recited a consideration of $3,200; $500 was acknowledged as having been paid cash and $2,700 evidenced by a note of even date, with 90 installments of $30 per month, each installment to bear interest from date at the rate of 7 per cent, per annum.
The above deed was executed, delivered to Maynard and put on record. Thereafter, the record does not show how long, Brown’s daughter went to the bank, and, because of some suggestions made to ber about the notes, the Browns concluded to get Maynard to give a note for $1,500 instead of the monthly installments of $30 per month. Witness took the matter up with Maynard. His understanding was that the interest would be paid when the note became due. He took it to Maynard, and, after consultation with .Mr. Rose, Mr. Maynard signed the note. About a month afterwards witness was told by Maynard that the note did not bear interest. Witness identified certified copy of the second deed, which was to the same land and for the same amount of money, being a $1,500 note bearing interest from maturity instead of the installments of $30 per month. This deed was executed, delivered and put on record.
Brown testified, in substance, that the trade was made, agreed to, and that there were 90 notes made and signed by Maynard, and that they bore interest from date. Witness had nothing’ to do with the handling of the second transaction; his daughter did it entirely.
Appellant contends, in the first place, that there, was no mutual mistake. Our conclusion from the evidence is that there was a mutual mistake in the sense of the law, and also inequitable conduct on the part of the defendant. It is said: “Reformation is appropriate, when an agreement has been made, or a transaction has been entered into or determined upon, as intended by all the parties interested, but, in reducing such agreement or transaction to writing-, either through the mistake common to both parties, or through the mistake of the plaintiff accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction actually made or determined upon according to the real purpose' and intention of the pai’ties.” Pomeroy’s Equity Jurisprudence, § 870.
We agree with learned counsel for appellant as to the nature of proof necessary to support the contention that the proof must be clear, unequivocal and decisive. We think the proof in this case meets the rule announced by the cases referred to by appellant.
This contract wais> made by the parties, and about its terms there is no controversy and no conflict in the evidence. It is true Mr. Maynard says he did not sign ninety notes, but he does agree that there was to be a note given, payable in monthly installments of thirty dollars each, and that these installments were to bear interest at the rate of seven per cent, per annum from date. He received the deed to the property with this recital, and it was placed on record. He does not dispute any of the facts contained in that deed, so that was the contract or agreement made between the parties. After-wards Brown’s daughter learned they could not use the note at the bank in that form, and Sullivan went to Maynard and suggested the giving of a $1,500 note instead of the thirty dollar notes, or note with $30 installments. Nobody claims that there was anything said about the interest or about any change in the interest, so that, when that agreement was reached, both parties understood that the interest would be the same as in the original notes. Mr. Maynard’s testimony shows he believed that, because no contention is made that anything was said about the interest, but he says, after he saw the note, he discovered that it did not bear interest until maturity, but that he did not tell Sullivan, and Sullivan had not read the note. According to Mr. Maynard’s own testimony he discovered this mistake, knew that Sullivan did not know it, knew that Sullivan was transacting business for Brown, and he did not tell Sullivan anything about the interest until some months afterwards. Mr. Maynard went to ■ Mr. Bose, who was Maynard’s adviser, and Bose discovered that it bore interest from maturity instead of date. Sullivan and Maynard were in the adjoining office, and Bose had Maynard called in, but not Sullivan, and told Maynard he was making four or five hundred dollars in this way, and for him to sign the note. Still Sullivan knew nothing about it, and Mr. Maynard, accord ing to bis own testimony, knew tbat Sullivan did not know it, because he said Sullivan bad not read tbe note. It is contended, however, tbat some one told Mr. Maynard tbat persons bad lived in tbe bouse who bad tuberculosis. Mr. Maynard’s own testimony on this, however, shows tbat be had tbat in mind when be made tbe trade, tbat is, long before this second transaction, and be asked both Sullivan and Brown at tbe time be paid the five hundred dollars, after be bad consummated tbe deal. There was no misrepresentation. Maynard said Brown told him at the time to call Dr. Ponder, which be did. Mr. Rose testifies tbat be advised Maynard to bring suit to recover bis five hundred dollars back, but this was all after they bad • discussed the tuberculosis, but be said Maynard wanted tbe place very badly. Tbe whole testimony shows tbat Maynard intended to take it anyhow; be thought be was getting a bargain, at any rate he wanted tbe place under tbe contract be bad made, so it appears that the tuberculosis had nothing to do with the failure to put in tbe note interest from date.
As we have already said, Mr. Maynard did not know but what it was in there until be came to sign it, and no one testifies tbat the subject of interest from maturity was ever mentioned. Mr. Biggs drew tbe note and tbe last deed, and Mr. Brown’s daughter told him be was to pay tbe interest when tbe note became due, and Mr. Biggs took tbat to mean interest from maturity. Miss Brown meant from date, but not payable until tbe note became due.
When Sullivan went to Brown with the proposition to make tbe larger note for several small notes, if be bad wanted to rescind the trade because be learned about the tuberculosis, be would not have said, “I am satisfied, Brown is tbe one who is dissatisfied,” and if he bad intended to have a change so as to pay interest from maturity and not from date, be would have mentioned that, but the matter was not mentioned.
We therefore conclude, according to tbe testimony, there was never but one agreement made with reference to interest, and that both parties agreed to this, and tbat a mistake was made in writing tlie instrument. This being true, when Mr. Maynard discovered that the note bore interest from maturity instead of date, and knew that Mr. Sullivan did not know it, and knew he had not read the note, and after being told by Mr. Rose that he would make four or five hundred dollars by that transaction, and signed the note without ever telling Sullivan about the mistake, this was, we think, inequitable conduct, and would entitle the plaintiff to a reformation, and we think the proof was clear, unequivocal and decisive, and that the chancellor’s finding was correct.
The decree is therefore affirmed. | [
-12,
108,
-8,
-51,
-104,
96,
40,
-118,
97,
-127,
54,
87,
-19,
-62,
0,
37,
-29,
109,
113,
104,
69,
-77,
118,
67,
-80,
-77,
-21,
-35,
-67,
-51,
-12,
-41,
69,
32,
-54,
21,
-58,
98,
-27,
88,
-114,
-115,
-117,
76,
-39,
-64,
52,
63,
64,
77,
117,
-121,
-14,
44,
53,
75,
104,
46,
107,
41,
80,
-23,
-105,
-123,
127,
7,
-112,
20,
-98,
3,
-54,
10,
-112,
53,
0,
-23,
114,
-90,
-122,
116,
9,
-103,
40,
38,
38,
2,
-59,
-1,
-8,
-116,
38,
126,
-103,
-90,
-30,
104,
67,
104,
-66,
-100,
92,
80,
71,
118,
-84,
21,
29,
104,
15,
-49,
-106,
-127,
15,
60,
-118,
3,
-13,
15,
-76,
81,
-51,
-30,
92,
71,
48,
-101,
-113,
-5
] |
Kirby, J.
This appeal comes from 'a judgment for damages resulting from the negligence of the appellant-in failing to correctly transmit and deliver a telegram.
The appellee, a flour milling company located in Kansas, and buying' and milling wheat purchased there, sent to its distributing agency or office, in the city of Fort Smith, which is a distinct business, purchasing for sale from the Kansas corporation flour manufactured by it as though it had no connection therewith, the following telegram from Independence, Kansas:
“Offer Marathon six seventy basis halves Fort Smith.”
The message delivered and received in Fort Smith, read:
“Offer Marathon six twenty basis halves Fort Smith. ’ ’
It was alleged that the Fort -Smith office or agency, acting under the telegram, made sales of 873% barrels of flour at a loss of 50c per barrel, resulting from the negligent transmission of the telegram; that the employees of the defendant at Independence, Kansas, and its Fort Smith agent, knew that plaintiff’s quotations on flour were based on Marathon, and that it used such ’basis for selling its other brands of flour on the basis of Marathon quotations.
The answer denied any injury or damages by carelessness or negligence of the telegraph company; that the milling company made no sales of flour other than the 52% barrels of Marathon flour, upon which it admitted it was indebted to the milling company in the sum of $26.25, which it tendered in court in satisfaction of plaintiff’s claim; denied that its employees at Independence, Kansas, or Fort Smith, Arkansas, ever knew that the plaintiff’s quotations on flour were based on Marathon, and that the defendant or its employees knew that plaintiff used Marathon as a basis for selling other grades or brands of flour upon the basis of Marathon quotations; alleged that the use- of Marathon as a basis was a trade secret of the plaintiff, and that its employees had no knowledge that the plaintiff would sell Ambassador flour, - or B. & O. flour, or any other commodity except Marathon flour, as a result of the telegram; denied that the milling company lost the sum of 50c per barrel on 873% barrels, or suffered any loss whatever.
The testimony shows that the agents of the telegraph company knew the milling company was engaged in the manufacture of flour at Independence, Kansas, and selling same through its distributing office at Fort Smith, and also that it manufactured different brands other than Marathon, which they understood was a brand or grade of flour.
The manager of the appellee company testified that the message was not received as it bad been given to tbe defendant, and, acting upon it, he sold 873% barrels of flour at an average loss of 50c per barrel; 365 barrels at $6.70, 356 barrels at $6.70, 52% barrels at $6.60, and 100 barrels at $6.95; that, in dealing in flour, the company had a basis Marathon for its quotations, and Ambassador flour is always 30c over Marathon, B. & O. brand the same as Marathon, and Heart of Wheat 30c under; the telegram meant that the flour should be sold at $6.70 per barrel, Marathon basis 98’s, the cost of manufacture; and that it was- sold at an average loss of 50c per barrel, which only included a selling charge of 10c per barrel. Said that wheat was bought on the sale of flour, and that it was difficult to make 50c per barrel profit on the manufacture of flour.
One of the ag-ents of the telegraph company stated that she understood that Marathon was a particular grade of flour, and had no information that Marathon was a basis on which other grades of flour could be sold.
The court instructed the jury,-which returned a verdict for the full amount claimed, and from the judgment thereon the appeal is prosecuted.
Appellant insists for reversal that it is not liable for special damages, the loss on other brands of flour than Marathon, having had no notice whatever from the telegram or otherwise that other brands of .flour might be sold thereunder, resulting in a loss from the negligence in failing to deliver the telegram as sent.
It is true that the answer denied that the telegraph company or its agents had any such knowledge or information, but the undisputed testimony shows that its agents knew the appellee company was manufacturing flour at Independence, Kansas, and selling and distributing it from its office in Fort Smith, Arkansas; also some of them knew that Marathon was a particular brand or grade of flour, and that the company manufactured other-brands as well. The message itself showed on its face that it was an offer to sell or a direction to offer for sale flour “Marathon six seventy basis halves Fort Smith,” and the telegraph company was thereby apprised of the importance of the message, its relation to a business transaction, and that loss would probably result unless the message was correctly transmitted and. delivered, and was sufficient, under the circumstances, to render the company liable for the resultant actual damages. 26 R. C. L., p. 605, § 102; p. 602, § 100.
The damages claimed for actual loss on the sale of all the flour are no more than would have resulted from the sale of Marathon alone on the basis quoted in the telegram as negligently transmitted and delivered, and the damages suffered because of such negligence cannot be said not to have been the proximate result thereof or not in contemplation of the parties when the message was sent.
Neither is there any merit in the contention that no damages were proved, since the undisputed testimony shows that the sales under the quotation in the telegram resulted in a loss of 50c per barrel over the actual cost of manufacture, the sale of the flour being made at a price of 50c below the actual cost, or a reduction of 50c per barrel below the cost of manufacture and sale.
We find no prejudicial error in the record, and the judgment is affirmed. | [
-80,
-8,
-72,
-83,
24,
96,
42,
-102,
104,
-95,
-26,
83,
-51,
68,
-111,
123,
-25,
73,
-64,
106,
-12,
-89,
15,
-22,
-62,
-13,
-77,
-59,
-79,
78,
-92,
-2,
76,
52,
74,
-43,
-90,
-54,
79,
-100,
-50,
8,
45,
-19,
93,
0,
56,
110,
20,
79,
113,
-116,
-14,
46,
28,
-61,
72,
62,
-23,
61,
-39,
-7,
-22,
79,
61,
18,
48,
54,
-7,
71,
-8,
30,
-104,
49,
8,
-24,
113,
-90,
-126,
-12,
43,
-71,
0,
102,
98,
32,
-67,
-25,
46,
-116,
39,
-34,
29,
-25,
-96,
8,
3,
109,
-65,
29,
58,
18,
-109,
-6,
-6,
5,
25,
124,
3,
-34,
-48,
-125,
15,
102,
-106,
31,
-17,
-73,
48,
113,
-59,
-94,
93,
-59,
50,
27,
-50,
-10
] |
Kirby, J.,
(after stating the facts). Appellant contends that certain instructions qbjeeted to were erroneous, but a careful examination of them does pot disclose any error committed, and the court gave all the instructions asked by appellant, except the one for a directed verdict. It is insisted, however, that the court erred in returning judgment against appellant upon the jury’s separate verdict for a larger sum than the amount the jury found -against the joint tort-feasor, Buie.
In the case of Spears & Purifoy v. McKinnon, 168 Ark. 357, 270 S. W. 524, where the plaintiff was injured through the joint negligence of two surgeons, and recovered a judgment for damages in the total sum of $7,000, which recited that one-half thereof, or $3,500, be recovered against each of the defendants, the court modified the judgment pronounced thereon, limiting the total sum • recovered to $3,500, saying that the defendants were joint tort-feasors and liable as such, if at all, but, as there was only one tort and one damage, there could be only one recovery, and, as the jury had fixed the - liability of each tort-fepsor at $3,500, there could be no greater recovery against either or both of them than that sum.
So here there was only one tort committed and one damage resulting therefrom, and, since the jury fixed the liability of each tort-feasor and that of Buie, who 'actively committed 1 he wrong, his company only being liable therefor as having consented thereto and authorized his act, and since he was liable also for the whole damage resulting, there could be no greater recovery against either or both of the joint tort-feasors than the lower sum assessed by the jury against Buie, $750.
The lower court should only have rendéred a judgment upon the finding or verdict of the jury in the said sum of $750, which can and will be rendered here. See Coleman v. Gulf Refining Co. of La., 172 Ark. 428, 289 S. W. 2, 26 R. C. L., § 32, page 780; Marriott v. Williams, 152 Cal. 705, 93 P. 875, 125 Am. St. Rep. 87; Smithwick v. Ward, 52 N. C. 64, 75 Am. Dec. 453; and Nashville Ry. etc. Co. v. Trawick, 118 Tenn. 273, 99 S. W. 695, 10 L. R. A. (N. S.) 191, 121 Am. St. Rep. 996, 12 Ann. Cas. 532.
The judgment is modified accordingly as indicated, and, as modified, will be affirmed. It is so ordered. | [
-112,
124,
-55,
-67,
24,
96,
43,
-118,
17,
-127,
118,
115,
-51,
-35,
77,
47,
-27,
-7,
96,
115,
125,
-93,
31,
64,
-14,
-101,
81,
4,
-79,
109,
-10,
-4,
69,
48,
-62,
-43,
102,
66,
-59,
-44,
-94,
22,
10,
97,
-39,
50,
116,
126,
20,
79,
113,
-98,
67,
45,
28,
-49,
108,
40,
105,
56,
81,
-71,
-38,
5,
109,
17,
49,
6,
29,
103,
-38,
44,
-120,
57,
1,
-24,
114,
-74,
2,
84,
9,
-117,
12,
102,
103,
48,
69,
107,
-4,
-72,
46,
-2,
13,
-90,
-111,
8,
-119,
42,
-73,
61,
126,
52,
54,
126,
-16,
92,
29,
124,
9,
-113,
-108,
-77,
-97,
100,
-100,
19,
-17,
-113,
52,
97,
-51,
-94,
93,
5,
26,
-45,
-98,
-42
] |
Mehaffy, J.
On December 5, 1916, G. H. Getty, as receiver, sold to J. E. Shutt, under a written contract, 80 acres of land, the same being the south half of southwest quarter of section 27, township 2 south, range 5 west, for $4,800. The contract was quite lengthy, but there is no dispute about any part of it except the following section:
“Party of the first part agrees to give to the party of the second part the option and privilege of selling any part of the east half of said tract of land at not less than $60 per acre, and said west half of said tract at not less than $80 per acre, the entire proceeds to be applied toward the purchase price as herein mentioned.”
Notes were executed and delivered to the seller for $500 each, due on or before January 1,1919, and January 1 each year thereafter until all were paid. Said contract also provided that, if- any note or interest should not be paid when due or within 30 days thereafter, all of said notes should become due and collectable at once.
Katie I. Shutt, who was the daughter of J. E. Shutt, purchased fifteen acres of said land by agreement, and the money was paid to and received by appellant.
On April 22, 1922, after the appellant had written to J. E. Shutt, calling his attention to notes that were past due, Shutt wrote to the insurance company and, among other things, said: “As to the other, wish to advise that I am about to effect the sale of five acres at $100 per acre, and for which purpose I am now asking that you execute the inclosed deed, and forward same to the Arkansas County Bank of this city, same to be held in escrow until the sum of $500 is paid to them, then to be delivered to the purchaser. ’ ’
The insurance company acknowledged the receipt of this letter on April 25, and inquired of Shutt whether or not the buildings were on this five acres. They stated: “If this is the case, we hardly believe we would be justified in making the deed upon the payment of only $500.”
In reply to this letter, appellee wrote that there were two dwellings on the place, and that one of them was located on the five acres.
Then, on May 12, the insurance company wrote Mr. Shutt, stating: “We are taking up your proposition with reference to deeding the five acres of land to your daughter, and will advise you in about a week what our decision will be.”
So far as the record shows, the above is all of the correspondence with reference to this matter.
Katie I. Shutt testified that she put up the $100 per acre in the First National Bank, and that the bulk of it had remained there on deposit all the time, hut that there had been one withdrawal, that there was only $400 on deposit there now.
It appears that the parties never did reach an agreement as to the sale of this land, although Katie I. Shutt testifies that she bought this, hut she describes the manner and identifies the letters which passed between the parties, she having written the letters for her father herself.
The chancellor entered a decree in favor of the appellant for the sale of all of the land except the five acres, and found that Katie Í. Shutt was entitled to that five acres upon the payment of $400. The cburt held that, ■under the contract, the defendant bad the right to sell any part of the west half of the land described in said contract.
The contract provides, or rather the parties agree to give Shutt the option and privilege to sell any part of the east half of said tract of land for not less than $60 per acre and said west half of said tract at not less than $80 per acre.
The contention of appellant is that he had the option to sell any part of the east half and had the option to sell the whole of the west half, hut that he did not have the option to sell any part of the west half without selling it all. In other words, that the option was given him to sell the west half and not a part of the west half.
The appellees contend that Shutt had a right to sell any part of the west half.
We think that the contract means' what it says: that .Shutt could sell any part of the east half for not less than $60 per acre, and that he could sell the west half, but that he was not given the option or privilege of selling a part of the west half. We think this construction is borne out by the conduct and acts of the parties themselves. It appears from the correspondence that the five-acre tract had one of the buildings on it, and that, the appellees had contracted to sell this land at $100 per acre, and that the insurance company inquired whether the five acres did contain the buildings, were informed that it did contain one of them, and that the insurance company then wrote Shutt that they would investigate it, and there was no answer to this, so far as the record shows; the appellee did not contend that they had a right to sell, did not make any response, so far as the record shows, to the statement of the appellant that they would investigate and let him know whether they would agree to the sale of the five acres. The fact that the clause in the contract does not state that Shutt has the option to sell part of the west half, the fact that the correspondence indicates that it was not so understood, and the fact "that the buildings were on the west half, convince us that the proper interpretation of the contract is that Shutt had the option to sell any portion of the east half but did not have the option to sell a portion of the west half.
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 property. 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 meaning of the words and of the correct application of the language to the' things described.” Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258; Lowdenbeck Fertilizer Co. v. Tenn. Phosphate Co., (C. C. A.) 121 F. 298, 61 L. R. A. 402; Hoffman v. Moffioli, 104 Wis. 630, 80 N. W. 1032, 47 L. R. A. 431; Rockfellow v. Merritt, (C. C. A.) 76 Fed. 909, 35 L. R. A. 633; Minn. Milling Co. v. Goodnow, 40 Minn. 497, 42 N. W. 356, 4 L. R. A. 202.
To reach the construction of the contract which we have reached does not require the addition of any word or the changing of any word, and is, we think, in conformity with the intention of the parties as expressed by the contract.
To put the construction on the contract contended for by appellee,- it would be necessary to hold that the option of selling said west one-half of said tract meant any part of said west one-half. In other words, we would have to hold that the parties intended that the words “any part” should be understood as applying to the west one-half of said tract, although these words are not used except with reference to the east one-half.
This court has said: ‘ ‘ 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.
“And when the intention of the parties is ascertained, this intention must control the construction.” Roach v. Board of Directors St. Francis Levee Dist., 168 Ark. 364, 269 S. W. 986.
The case will therefore be reversed, and remanded with directions to dismiss the petition of the intervener and render a decree in accordance with the complaint. | [
-15,
125,
-16,
44,
-72,
-32,
74,
-102,
119,
-88,
100,
95,
-3,
-60,
29,
45,
-121,
109,
-43,
108,
-90,
-30,
55,
50,
-112,
-13,
-15,
-51,
-72,
77,
116,
-41,
76,
40,
-54,
21,
-30,
-30,
-60,
28,
-2,
-123,
-85,
-20,
93,
112,
48,
-85,
84,
65,
117,
-122,
-29,
42,
17,
91,
109,
44,
-21,
-87,
81,
-8,
-85,
-123,
-2,
6,
-96,
102,
-110,
3,
-54,
78,
-112,
117,
-120,
-40,
83,
38,
-42,
116,
1,
9,
44,
34,
103,
19,
-92,
-17,
-8,
24,
6,
-13,
-115,
-90,
119,
88,
3,
8,
-66,
29,
121,
24,
-58,
126,
-16,
-59,
93,
104,
3,
-113,
-42,
-93,
15,
-8,
-100,
19,
-27,
15,
49,
80,
-49,
-26,
93,
86,
60,
-101,
14,
-13
] |
Griffin Smith, O. J.
The appeal is from the court’s action in declining to vacate a divorce decree granted Paul M. Barth, a dentist serving in the army with the rank of major. His complaint of July 7, 1941, bore fruit September 1. The wife, Gayle, was informed by her husband’s father, through her daughter, that a divorce had been granted. She promptly moved, as she contended, to protect rights that had been destroyed by a court having, prima facie, jurisdiction of the parties, but in fact being without power to render the decree because of the major’s fraudulent conduct.
Gayle and Paul, citizens of Iowa, were married in 1917. Wyllis Glee, an only child, was nineteen years of age in 1941.
Testifying in opposition to the motion, Major Barth asserted that he had been separated from Gayle since June, 1936, and cohabitation between them had not been reestablished. The court asked what caused separation, to which there was the response: “We just couldn’t get along. I will take half of the blame. ’ ’
In June, 1939, Major Barth endeavored to procure a divorce in Polk county, Iowa. His wife, then living at Boone, answered and cross-complained. She alleged her mate’s misconduct, consisting in the main of perilous proclivities for Polly Powell, whose propensities for paramours entailed substantial and continuous contributions. Professionally, Polly ivas a strip-tease dancer. Whether the lady’s finesse in disrobing had the effect, constructively or actually, of alienating Paul from his own fireside, or whether artistic dancing filled his soul with memories of King David, is not as satisfactorily revealed as was Polly’s shapely form.
Be this as it may, the Major quite suddenly developed an appreciation of the aesthetic — musical or otherwise— and followed the apparition to Des Moines, where Polly’s professional business required her physical presence. Thereafter matrimonial sedition seethed. It was difficult for Mrs. Barth to believe that “the good girl” Paul represented Polly to be could appear on the public stage in rakish costume for introductory purposes, and then, without violation of .modesty’s mandates, bid garment by garment a gentle adieu while remaining insensible to Apollo’s prototype symbolized by an erring family man who mentally measured distance and longed to participate in vociferous applause.
The Iowa court, on agreement of the parties, gave judgment for separate maintenance and dismissed the Major’s complaint. Appellee returned to his assignment at Port Leonard Wood, Missouri, 175 miles distant from Harrison. Payments were made until the Arkansas decree was procured. Thereafter he sent money to the daughter.
It is denied that appellee’s residence here was bona fide. His testimony on this issue is substantially as follows:
Having been sent to Port Wood, (May 1,1941) Barth was directed to report at Camp Robinson for manoeuvres, which continued until August 11 or 12. Appellee became ill and spent two days in a hospital. Military manoeuvres were conducted at Camp Robinson; also in South Arkansas, and in Louisiana. After being’ assigned to Port Wood, appellee voluntarily came to this state “from a little town near Poplar Bluff. ’ ’ Prom the hospital ‘ ‘ somewhere in Louisiana” appellee returned to Camp Robinson, remaining ten days from September 17. He then returned to Port Wood, where he had been stationed until time of trial, and where, with the exception of a 14-day leave, he remained.
Major Barth testified he selected Harrison as a home “because I expected to start practicing as a dentist if I g’ot out of the service within the next year.” The residence, appellee said, was established May 15, 1941. When not on army duty, spare time was spent “in or about Harrison.” The day of trial appellee went from Little Rock to Harrison and remained from Tuesday night until Friday noon. Although the record at one place shows that appellee “established” his residence at Harrison May 15, at another place May 5 is given, “and I am very sure I was here two times before that. ’ ’
During May appellee engaged a room because he wanted to establish a residence “for the purpose of divorce.” He did not remain all night, but paid a month’s rent and left a suit of clothes. Second and third trips were made during May, the visitor remaining over night. He did not know the hotel proprietor’s name, nor was he acquainted with the mayor, any county official, the postmaster, or anyone else. When asked regarding frequency of visits during June, appellee replied: “I will tell you the honest truth: I would bring Major Cottrell to his place and then I would come down here and stay all night.” Such trips were made “two or three times” in June. Appellee was in Harrison “two or three times” in July, and on one of these occasions probably spent three hours. Being on manoeuvres during August, he was unable to spend much time in the rented room, but did patronize it overnight.
Residence in good faith for sixty days before filing suit, and ninety days before a decree may be issued, are statutory requirements. In Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281, the appellant admitted she came to Arkansas to obtain a divorce, intending to remain if she could secure employment. It was held that “even though [one moved] to this state to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction.” It was then added that the residence must be actual, and acquired in good faith.
The holding in Hillman v. Hillman, 200 Ark. 340, 138 S. W. 2d 1051, is that a plaintiff seeking divorce may file his or her complaint in the chancery court of the county of such plaintiff’s residence, but residence-must not be colorable, nor may the venue be sought as a mere pretext.
In commenting upon § 1618 of Sandels & Hill’s Digest, Mr. Justice Hughes, after saying that meaning of the statute might have been made plainer by particularity in the use of language, was of opinion that “it is easily understood by anyone who does not want to misunderstand, and the court has no difficulty in determining what it means.” Furth v. State, 72 Ark. 161, 78 S. W. 759. So, here, the court has no difficulty in finding that the legislature did not intend to extend facilities of the state’s divorce courts to a nonresident who paid a month’s room rent, deposited a suit of clothes, and almost immediately returned to army headquarters where his presence was required.- That he made a few trips from Little Rock to Harrison for the admitted purpose of qualifying under § 4386 of Pope’s Digest is of but slight importance in view of his status as an officer of the armed forces.
Testimony relating to appellee’s conduct toward his wife was not improperly admitted. It tended to explain why the particular forum was selected.
The decree is reversed. Directions are that the order of divorce be vacated.
This testimony was given in the trial which resulted in a decree of divorce, and not in the hearing to set the decree aside.
Pope’s Digest, § 4386. [For statutory provision regulating acquirement of domicile, see Act 355, approved March 26, 1941.] | [
16,
72,
-99,
79,
58,
-92,
10,
104,
114,
-21,
55,
-13,
-3,
114,
72,
121,
-78,
45,
84,
123,
-69,
-77,
23,
-64,
-14,
-45,
-71,
-44,
-74,
-34,
-11,
125,
109,
48,
-29,
-105,
-90,
-118,
-51,
28,
6,
-76,
41,
-39,
-39,
-128,
51,
107,
-112,
31,
81,
-66,
-13,
108,
28,
125,
40,
42,
-41,
58,
-64,
-72,
-102,
6,
125,
50,
-93,
6,
-36,
33,
64,
46,
24,
16,
0,
-55,
49,
-92,
2,
117,
7,
-85,
0,
48,
102,
17,
-127,
-29,
-72,
-72,
46,
102,
-99,
-89,
121,
76,
16,
101,
-66,
-103,
109,
16,
19,
88,
111,
-59,
93,
96,
10,
-118,
-108,
-79,
30,
-14,
-100,
-126,
-29,
-39,
32,
112,
-57,
-96,
92,
67,
123,
-101,
-82,
-79
] |
McHaney, J.
At about 9:45 a. m. on Sunday, July 28, 1940, appellant, Richard Lowe, a lad six years of age at that time was struck and severely injured by an automobile driven west on West Third street by appellee, Mrs. W. P. Ivy, near the intersection of West Third street and Gaines street in the city of Little Rock. Through his mother as next friend, he brought this ac tion against appellees to recover damages therefor. Trial resulted in an instructed verdict and judgment for appellees and this appeal followed to reverse said judgment.
While the amended complaint alleged that Mrs. Ivy was driving the car as the ‘ ‘ servant, agent and employee and under the direction of her husband, W. P. Ivy,” the answer denied the truth of this allegation, as well as all other material allegations, and the proof wholly failed to establish it, being silent in this regard; so, the instructed verdict as to W. P. Ivy must be sustained. It was not shown whose car it was and he was not in the car at the time. Brotherton v. Walden, ante, p. 92, 161 S. W. 2d 391; Kurry v. Frost, ante, p. 386, 162 S. W. 2d 48.
We agree with the trial court that the evidence fails to disclose any act of negligence on the part of Mrs. Ivy. The undisputed facts, coming from appellant’s witnesses, are to the following effect: Richard Lowe, a little six-year-old boy, was living with his parents in the Beaumont home, at 700 West Third street, which is on the northwest corner of said streets. The house faces south on West Third street and is some 15 feet or more from the door to the north curb line of West Third street. Just what distance the east side of the house is from the west curb line of Gaines is not shown, but the fact is it is some substantial distance west of the sidewalk running north and south on the west side of Gaines. The little boy had started to Sunday school in the Second Presbyterian Church on the southeast corner of said streets. Witness Henthorn, living in the Beaumont home, seems to have observed very closely the boy’s movements from the time he ran out of the front door of the home until he was struck by the car. According to this witness the little boy ran out of the front door and continued to run out into the street some distance west of the intersection, ran in front of a panel truck going west on West Third and would have been struck by it had the driver not slackened his speed, and then in front of appellees’ car which was in the act of passing the truck, with a distance of about four feet between them; the front end of the oar had not reached or passed the front end of the truck, but was about four feet behind it. He said neither the car nor the truck was traveling very fast; that he supposes they were going at a reasonable speed; that the boy started to cross West Third street about 30 feet west of the intersection; that when the car hit him, “She knocked him a piece, I would say a little ways”; that appellees ’ car started around the truck in the intersection, at which time the truck was about even with the sidewalk, evidently ref erring to the sidewalk on the west side of Gaines. Another witness, living at 710 West Third street, and sitting on his front porch, did not see the accident, but heard the noise of brakes on the car, or the tires slide, turned around and the truck obstructed his view. The boy was under the front of the car and was six or eig'ht feet from the south curb. This witness placed the child 40 or 50 feet from the edge of the curb on Gaines, referring to the west curb on Gaines and 10 or 12 feet west of an imaginary line running south from the front of the Beaumont home, or that many feet west of the walkway leading from said home to the sidewalk. Another witness’ statement was admitted by agreement, but it added nothing to the testimony of the others.
We think this evidence wholly fails to show negligence on the part of Mrs. Ivy. There is no evidence of speeding or failure to keep a lookout, no evidence that she saw the little boy until he darted past the truck and into her line of vision immediately in front of her at a time and place she could not stop before striking him and no evidence that she did not apply her brakes and stop her car as quickly as possible after discovering his peril. The complaint alleged that Mrs. Ivy “was driving at a fast and at a reckless rate of speed and driving south of the middle of West Third attempting to- pass said car, while driving at a rate of speed estimated at approximately 25 to 30 miles per hour.” Another allegation is that she struck the boy “while recklessly overtaking and attempting to pass the car, and negligently driving her car in the south lane of said West Third street.” Also, that- she was negligent in not observing the boy and in not slowing the speed of her car, “and negligent in strik ing- Richard LoAve with the left bumper,” etc. There is no evidence that she was driving 25 or 30 miles per hour, or that she was driving fast or recklessly. There is evidence that she drove south of the middle of West Third street, but that Avas not negligence, if there was no oncoming car in her way, and there was none. It is not per se negligence to overtake and pass another car. Counsel for appellant argue that she attempted to pass in an intersection in violation of a city ordinance, and in violation of § 6718, Pope’s Digest. The complaint made no such allegation. No such ordinance was introduced in evidence, or if so, it is not abstracted, and courts do not ordinarily take judicial notice of municipal ordinances. City of Malvern v. Cooper, 108 Ark. 24, 156 S. W. 845. The cited statute does prohibit a vehicle from being “driven to the left side of the center of the roadAvay in overtaking and passing another vehicle proceeding in the same direction unless said left side is clearly visible and is -free from oncoming traffic for a sufficient distance,” etc. Nor shall it be driven to the left side of the roadAvay “when approaching* within 100 feet of or traversing any intersection or railroad grade crossing.” Assuming Avithout deciding* that this statute applies to street crossings, the evidence fails to show a violation of it here. At the most its violation would be only evidence of negligence. The undisputed proof shows that when Mrs. Ivy started to pass the truck it Avas leaving* the intersection and was about even with the west curb of Gaines. She never did pass it entirely as the front end of her car was about four feet behind the front end of the truck when the child was hit, some 30 to 50 feet west of the intersection.
Therefore, when we vieAv the evidence in its* most favorable light to appellant, together Avith all reasonable inferences deducible therefrom, as Ave are required to do in determining whether an instructed verdict was correctly given, we cannot say there was any substantial evidence of negligence to be submitted to the jury. It appears that this unfortunate incident Avas an unavoidable accident for which said appellee is in no Avay to blame. In Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110, the late Justice Kirby quoted with approval from 1 Blaslifield 'Cyclopedia of Automobile Law, p. 641, § 8, to the effect that owners and drivers of motor vehicles are not insurers against all accidents, which applies to injuries to children, and further: “If no one can reasonably foresee the sudden presence of a child in the path of an automobile, so as to prevent a collision with him, the driver or his master, proceeding at a lawful speed and being otherwise in observance of traffic regulations, will not be liable for injuries for such a collision.” There is in this case no showing that appellee was driving at an unlawful speed, nor that she was violating any traffic regulation. There is no showing that she saw or, by the exercise of ordinary care, could have seen the child as it ran out of the house and into the street, as the truck was between her and the child and, presumably, blocked her view.
There being no substantial evidence of negligence, which is never presumed from the accident and injury, the court properly instructed a verdict for appellees, and the judgment rendered thereon must be affirmed.
Meitaffy, J., not participating. | [
-16,
-20,
-28,
44,
8,
64,
58,
58,
-62,
-121,
52,
-13,
-81,
69,
77,
105,
-93,
63,
84,
99,
-59,
-93,
23,
50,
-14,
-13,
123,
-59,
-105,
-55,
-20,
124,
13,
48,
-54,
-99,
98,
72,
-59,
18,
-114,
-116,
43,
124,
-103,
-110,
36,
122,
68,
15,
117,
-98,
-25,
46,
18,
-62,
109,
44,
-21,
-65,
-48,
-15,
-118,
31,
127,
6,
-95,
-74,
-103,
1,
122,
24,
-100,
49,
32,
-4,
115,
-90,
-126,
-28,
15,
-103,
8,
100,
102,
34,
13,
-29,
-76,
-116,
38,
114,
-115,
-90,
62,
105,
3,
39,
-1,
-107,
123,
80,
6,
122,
-1,
-51,
93,
104,
35,
-113,
-108,
-111,
-115,
48,
-112,
10,
-21,
13,
48,
117,
-51,
-14,
93,
64,
115,
-109,
-122,
-78
] |
Holt, J.
On an information charging grand larceny, appellant, William Tate, was tried and convicted, and his punishment assessed at one year in the state penitentiary. For reversal two errors are assigned: (1) that the trial court erred in permitting- the prosecuting attorney, over the objections and exceptions of appellant, to amend the information; (2) that the evidence is not sufficient to support the verdict.
1.
The information, among other things, charges that “The said William Tate in the county and state aforesaid, on the 5th day of January, A. D., 1942, unlawfully and feloniously did take, steal and carry away one hundred and twenty-five feet of belting, of the value of fifty dollars, and one blow torch, of the value of five dollars, the property of Bob Stephens (S. E. Thompson & Son) against the peace and dignity of the State of Arkansas.”
The record reflects that when the first state witness, Bob Stephens, was introduced, the prosecuting- attorney made the following statement to the court: “If the court please, the information charges that this was the property of Bob Stephens. I find that Mr. Bob Stephens was in possession of the property, but the title was not in him, it was in S. E. Thompson & Son, and I ask to amend the information to that extent. ’ ’
Over appellant’s objection, to which proper exceptions were preserved, the state was permitted to amend the information by inserting after the name “Bob Stephens,” S. E. Thompson & Son in parentheses. It is our view that no error results from this action of the court for the following reasons:
Section 3840 of Pope’s Digest (formerly § 3018 of Crawford & Moses’ Digest) provides: “Where an offense involves the commission, or an attempt to commit, an injury to person or property, and is described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material. ’ ’
In construing this section of the statute in Tucker and Peacock v. State, 194 Ark. 528, 108 S. W. 2d 890, this court had Under consideration an information in effect 'the Báffle as that in the instant Cáse, In thé Tucker Case, it Was alleged in the information, among’ other things* that the “said Vance Tucker . , in the county of Drew, and state of Arkansas on or about the 15th day of December* A. D., 1936, did then and there take, steal and Carry away twelve hogs, the property of Bailey Jones in Lincoln county and transported same to the home of Vance Tucker in Drew county, contrary, etc., . . There this court said;
^T-kérO can 'be no doubt but that the information do'sbrikos the offense with sufficient certainty to identify the act. , . . The purpose of requiring the owner Of the property to be named is for the protection of the defendant. But as orrr statute provides, where the of-feUsU kS described in other respects with sufficient oer%áMy to identify the act, an erroneous allegation as to the ownership of the property is not material. . . . The offense appears to be described in such a way that there can be no doubt about it. . . . The information is sufficient if it can be understood therefrom that the act charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case. Section 3023, Crawford & Moses’ Digest.
"Section 3014 of Crawford & Moses’ Digest (now § 3836 of Pope’s Digest) is as follows: 'No indictment is insufficient, nor can the trial, judgment or other proceeding’ thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. ’
“Even if it were necessary to name the owner of the properly, under § 3018 above quoted, still no substantial rights of the appellant are affected. The owner, however, even when it is necessary to prove ownership, need not have the legal title; but if he had exclusive possession and control of the property, it may be alleged that he is the owner. ’ ’
Here we think the information describes the offense of grand largency with sufficient certainty to identify tlie act and an erroneous allegation as to the true owner of the property is not material and does not constitute error.
It is also undisputed in the instant case that Bob Stephens as the superintendent of the sawmill in question was in possession and control of the property at the time it was stolen, and, as pointed out in the Tucker case, supra, it was not error to allege in the information that he was the owner.
Still another reason why no error was committed is that § 24 of Initiated Act 3, adopted at the General Election November 3, 1936 (now § 3853 of Pope’s Digest) permits the amendment of indictments or informations. The only limitation on such amendment is that it relate, to “matters of form,” and not “change the nature or the degree of the crime charged. ’ ’
We think it clear that the amendment allowed by the court here did not have the effect of changing the nature of the crime or the degree thereof and that no error was committed in permitting the amendment.
In Brewer v. State, 195 Ark. 477, 112 S. W. 2d 976, this court in construing the effect of § 3853 of Pope’s Digest, said: “. . . So, it will be seen that an indictment may be amended under this section with leave of the court provided it does not change the nature of the crime or tlie degree thereof. The amendment did not have the effect of changing the nature of the crime or the degree thereof. So the court properly permitted the amendment.” See, also, Johnson v. State, 197 Ark. 1016, 126 S. W. 2d 289.
o
In testing the legal sufficiency of the evidence to support the verdict, it must be viewed in the light most favorable to the state. Turnage v. State, 182 Ark. 74, 30 S. W. 2d 865; Clayton v. State, 191 Ark. 1070, 89 S. W. 2d 732; Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Combs v. State, 194 Ark. 1155, 107 S. W. 2d 526; Smith v. State, 194 Ark. 264, 106 S. W. 2d 1010.
The record reflects that the state relied largely for conviction upon the testimony of Clyde Hale, an accomplice. Before the conviction of appellant, therefore, may be allowed to stand, there must be under our statute, § 4017, Pope’s Digest, corroboration of the testimony of Clyde Hale. ,
In considering the effect of this section of the statute this court in the recent case of McDougal v. State, 202 Ark. 936, 154 S. W. 2d 810, said: “. ' . . the rule is . . . well established that the corroborating testimony need only be sufficient to connect the defendant with the commission of the crime and need not be sufficient, standing alone, to convict. The sufficiency of the corroborating evidence is also a question for the jury.” See, also, Smith v. State, 199 Ark. 900, 136 S. W. 2d 673; Shaw v. State, 194 Ark. 272, 108 S. W. 2d 497; Middleton v. State, 162 Ark. 530, 258 S. W. 995; Mullen v. State, 193 Ark. 648, 102 S. W. 2d 82.
Guided by this rule, it is our view that there is sufficient testimony corroborating the accomplice Hale to sustain the verdict.
Clyde Hale testified that he had known William Tate, appellant, for about ten months; that on the night of January 5, 1942, he and appellant went to a sawmill south of Garner, operated by Bob Stephens, and stole the property in question; that they transported the property in a Ford V-8 truck, which belonged'to John White, and drove to White’s home after the theft and put the stolen property in White’s attic; that on the way back from Garner, he and appellant stopped in Beebe and got a cup of coffee and cigarettes at a restaurant; that while in the restaurant, he secured some paper from the restaurant owner with which he defrosted the windshield of the truck by holding the burning paper against the windshield. ■
R. M. Pennoch testified that on the night of the' theft in question two men- stopped at his restaurant in Beebe between nine and ten o’clock; they bought some coffee and cigarettes and that one of them got a piece of paper to defrost his windshield. On being asked to identify appellant at the trial,- the witness testified that the man with the accomplice, Clyde.,Hale, had on an officer’s cap and a leather jacket. When appellant was asked to stand lip for identification, Pennoch testified: “I didn’t pay much attention to the man that was sitting down, I wouldn’t like to swear that was the man, but he was dressed similar to that man. . . . He looked a whole lot like him.” He further testified that the accomplice lighted the paper with a match and held it up to the windshield.
S. Y. Turnage, deputy sheriff of White county, testified that he examined the footprints at the mill; that there "were two sets of tracks, one fitted shoes like those worn b}r the accomplice and the other tracks were sharp pointed and smaller. He also testified that he procured shoes similar to those worn by the accomplice from the store where the accomplice had recently bought shoes, and that they fitted one set of the tracks, and that the smaller tracks resembled those made by the shoes that appellant was wearing.
Tom Pickard testified that appellant told him that he wanted to talk to the accomplice Hale and that in his presence “he (appellant) told Hale he would be back in the morning and see the prosecuting attorney and clear it up and I asked him if he knew all about it and he said he did, he said he was going to clear it all up.” That appellant further said “We were down there, but what we want to get is the fellow that sent us down there.” They said “He will be looking out these bars before sundown tomorrow night”; that appellant called the name “White.”
Sheriff James A. Neavilles, Jr., testified that he went down to the mill and checked the tracks and that the smaller track had a leather heel and a sharp pointed toe; that when appellant was arrested in Little Rock he had on sharp pointed shoes with leather heels and that he wo\dd say the shoes compared identically with the tracks at the mill. There is other evidence that the ground was covered with an inch of snow at the time.
It is our view that this testimony sufficiently corroborates the testimony of the accomplice Hale to connect appellant with the crime charged. Accordingly the judgment is affirmed. | [
48,
110,
-40,
63,
72,
-31,
58,
58,
-61,
-127,
-76,
115,
45,
68,
1,
49,
99,
57,
85,
121,
70,
-73,
71,
119,
-10,
-77,
91,
-43,
-73,
77,
-20,
-44,
13,
32,
-62,
93,
98,
74,
-27,
-36,
-118,
0,
-86,
76,
91,
80,
32,
44,
20,
15,
33,
-66,
-77,
59,
20,
-54,
105,
44,
75,
-70,
89,
-7,
-110,
77,
123,
22,
-96,
-105,
-68,
13,
-56,
44,
-104,
17,
17,
-8,
115,
-74,
-126,
116,
109,
9,
-116,
98,
98,
0,
77,
-81,
56,
-116,
46,
62,
-115,
-89,
-40,
73,
105,
77,
-98,
-99,
115,
22,
6,
-10,
-10,
28,
89,
104,
-127,
-50,
-48,
-77,
45,
32,
-100,
59,
-13,
5,
16,
113,
-49,
-22,
93,
70,
121,
-101,
-121,
-43
] |
Mehaffy, J.
The appellants brought suit in the Johnson Chancery Court to' cancel and set aside deeds to certain property in Johnson County, Arkansas, which deeds were executed by appellant to appellee, George O. Patterson, Jr., at the instance of appellee, J. D. Hoskins. .
The plaintiff alleged that he Was a citizen and resident of Johnson County, and that defendant George O. Patterson, Jr., is a resident of Johnson County; that the defendant J. D. Hoskins is a resident of Greene County, and the defendant Gladys H. Adkins is a resident of Hot Springs, Arkansas.
The appellant alleged in his complaint that, prior to the second day of July, 1926, he was the owner of the land described in his complaint; that he and Gladys IT. Adkins were married in Texas, and lived together as husband and wife until recently; that they got along together as husband 'and wife, and never had any trouble of any kind. Gladys H. Adkins was a teacher in the city schools of Hot Springs, Arkansas, 'but returned home on the 21st day of April, 1926, and remained at home until the 20th day of May, when she received a telegram from her mother at Ploydada, Texas,, telling her to come to Texas at once; that she left on the train that afternoon, stating that she would return as soon as conditions would permit; that, when she arrived at her mother’s home, she wrote plaintiff a letter that she would return as soon as her mother’s condition permitted; that, during the month of June, while she was with her mother, she wrote appellant several letters, all of which were very affectionate, and appellant was expecting her to return home very soon; that, on the second day of July, 1926, she returned to Clarksville with John D. Hoskins, an attorney residing at Paragould, Arkansas; that, while appellant was busy at work, the said J. D. Hoskins came to his home, telling him that his wife had decided that she was not going to live with him any longer, and wanted a divorce and a division of the property, and he, Hoskins, had gone into the matter ’thoroughly, and that she had contributed certain funds from her own property in the amount of $1,400, which she was entitled to recover from him; that she had taught school at certain times, and did other work, from which she had earned $2,366, that she was entitled to recover from him this amount, with interest at 6 per cent., making a total of $3,766; that, in addition thereto, she was entitled to recover one-half of all his property, both real and personal; that Hoskins had looked up the value of their property, and that Mrs. Adkins was entitled to $7,500 or $8,000.
Plaintiff advised Hoskins that he was alarmed at the situation, did not understand this turn of affairs; that he. wanted to see his wife, and wanted to talk with her, and inquired where she was, at which the defendant Hoskins told him that she was at the hotel, and that he would bring her up at one o’clock, and that at one o’clock the defendant Hoskins returned, and told him that his wife said she would not talk to him, and restated the matter with reference to his property rights and the division of his property, and stated that she would recover this amount in any event, and, unless he settled it without going into court, that, in addition thereto, there would be between $700 and $800 court costs, which would be taxed to this plaintiff. Hoskins assured appellant that he, Hoskins, was an attorney, learned in the law, and that matters he had represented to him were true, and that the affairs would result as he outlined to him; that it would be a great saving to. plaintiff to make this character of settlement..
The appellant states that he had no knowledge of the law, and never had a lawsuit before, and was totally ignorant of the law; that he did not know his rights in the matter except as outlined by defendant Hoskins, and that, believing Hoskins’ statements and relying solely upon them, he had finally consented to a division of the property. He alleged that he has learned, or is advised and believes, and, so believing, alleges, that the statements of Hoskins as to the matters of fact therein contained are true and the matters of law as represented by the defendant Hoskins were false and fraudulent, and made for the purpose of deceiving and misleading this plaintiff, knowing that he was ignorant of the law and his rights in this particular case, and knowing that he was relying upon his statements.
The appellant stated that the defendant Gladys H. Adkins was not entitled to recover $1,400; that.she is not entitled to recover $2,366; and that she is not entitled to recover one-half of his property, real and personal, and that the court cost in all probability never would exceed $150. Appellant alleged that all of said statements were false and fraudulent, and made for the purpose of deceiving and misleading this plaintiff into a division of his property. Hoskins told him that, in order to divide his property, they must deed it to some third person, and it was customary to use some single person, and for that person to deed back to them severally their portions, and that this would clear the title to the property that they held, and that they could sell and dispose of the property as they saw fit. The appellant alleged that these representations were false and fraudulent, and that the statements were made for the purpose of deceiving, and did deceive, this plaintiff, and that he did execute deeds to all of the property to the defendant G. O. Patterson, Jr., and that said G. O. Patterson, Jr., then deeded back to this plaintiff a'forty-acre tract of land, and deeded to defendant Gladys H. Adkins the balance of the property, including their home. Appellant alleged that on the same date Gladys H. Adkins made and executed to the said J. D. Hoskins a mortgage on the property deeded to her in the sum of $2,019.25, and. that said mortgage was recorded in Johnson County, Arkansas.
Appellant stated that Gladys H. Adkins was not entitled to recover the amount of her earnings since their marriage; that she is not entitled to recover the $1,400; that no separate accounts have ever been kept .between them; that their affairs have all been as one up to the time of the separation; and that she is not entitled to recover from this plaintiff any portion of his property, for the reason that she is not entitled to a divorce.
Appellant stated that the statements of Hoskins were false and fraudulently made to deceive him, and did deceive him, and that the deed to Patterson was executed without consideration; that he would not have consented to a division of his property but for the fraudulent statements of the defendant J. I). Hoskins.
Gladys H. Adkins filed answer, admitting that she and appellant were lawfully married; denied all of the other material allegations in the complaint. She alleged that, during their married life, she delivered and supplied to the plaintiff the sum of $3,800, which was used by the plaintiff in the acquisition of the property involved in this suit; said money was advanced by her with the understanding that she was to have an .interest therein equal to the amount furnished by her. -She alleged that Hoskins did not deceive or attempt to deceive with reference to the legal rights of the defendant and his property and affairs.
J. D. Hoskins filed separate answer, denying all the material' allegations of the complaint.
George O. Patterson filed answer denying all knowledge of transactions, and alleging that said deeds were executed to .him as a matter of transferring the property, as he thought, at the request of both of them.
Defendant filed a demurrer, but it was never passed on.
Gladys H. Adkins filed a suit for divorce. Adkins filed answer, and then an amendment, in which he asked for a divorce on his cross-complaint.
The two suits were consolidated and tried together in the chancery court. The court -granted a decree for divorce to D. L. Adkins, dismissed the complaint of Gladys H. Adkins for divorce, and dismissed the complaint of D. L. Adkins against Gladys H. Adkins and others for cancellation of deeds for want of equity, and D. L. Adkins has appealed to this court.
Appellant’s contention is that he was induced to make the settlement with his wife and convoy his property on false and fraudulent representations as to the law. He does not claim there was any false representations as to any fact.
Attention is called by appellant to the statement in R-. C. L. where it stated, in substance, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up property, a court of equity will relieve him, especially if he had 'been led into his mistake of the law by the other party. The selction referred to by appellant in R. C. L. contains the following statement :
“It has already been pointed out that, in general, where the parties understand. the facts, an erroneous deduction of law is not cause for annulling a compromise, but, while relief will rarely if ever be granted merely on account of mistake of law, there are cases where there are other elements not in themselves sufficient to authorize the court to interpose, but which, combined with such a mistake, will entitle the party to relief.” 5 R. C. L. 898.
It is not urged in this case that any other elements entered into the agreement or brought about the agreement or compromise; but appellant’s claim of a right to rescind is based solely on false and 'fraudulent representations as to the law. Indeed, the appellant himself knew as much about all of the facts as anybody could know, but it is his contention that Mr. Hoskins came to him, representing that he was a lawyer and was learned in the law, and that, under the law, his wife would recover one-half of his property in addition to recovering costs, which he states was represented by Hoskins to be $700 or $800.' Hoskins went to appellant’s place about 10:30 in the morning, and he and appellant talked for about an hour, when Hoskins left, and told appellant he would be back at one o’clock.
There is no dispute about these facts, but there is considerable dispute about what was said between appellant and Hoskins during their conversations. Nobody was present but Hoskins and appellant, and the appellant testifies that he lives at Clarksville, was born and raised in that county, and is 53 years of age, and a schoolteacher. His wife was also a teacher. About ten o’clock Mr. J. D. Hoskins came to appellant’s home, representing himself as being an attorney for Mrs. Adkins. Up to this time appellant had had no notice from any one that his wife contemplated bringing a suit for divorce. He was running his canning plant. Hos-kins said he wanted to have a talk with appellant. Witness said: “We went to the house, and Hoskins said he was up there, that my wife had decided to leave me and not live with me longer, and that she had employed him to sue for divorce, and his business there was to talk about a property settlement.” Witness told him he was surprised at the turn of affairs; that his wife was in Texas, visiting her sick mother. Witness said Hoskins told him that Mrs. Adkins was in town, and witness, kept insisting on seeing his wife, and Hoskins kept talking about property. Hoskins finally said that he thought that whatever he said she would be willing to do, and that he would come back at one o’clock. Witness asked Hoskins the terms of settlement, and Hoskins told him. One item was $1,400 that Mrs. Adkins received from selling some property in New Mexico, and Hoskins demanded in settlement $3,700. Adkins said that his entire property was worth not more than $4,000. Hos-kins promised to bring appellant’s wife up to the house, but she did not come. Hoskins came back at.one o’clock. He said he was an attorney at law, that he had been practicing law some ten or twelve years, and that he knew the law in the matter thoroughly, and, unless wit ness made settlement, he would bring suit at once, and that there was no doubt but what the court would allow the claim and, in addition thereto, $700 or $800 court costs. Hoskins told witness what the grounds for divorce were, and that he had the complaint drafted; had a copy of the complaint. He stated that he had the complaint prepared to file in case a settlement was not made. The charges in the complaint were the same as were later filed. He said in addition he had charges that he was prepared to make and prepared to prove in case appellant did not make settlement, and said that he would file the complaint that he had if they settled, and if they did not, he would file another complaint with additional charges. He represented that his statement about the property was the law, and that Mrs. Adkins could absolutely recover. He referred both to his personal and professional experience. Witness then said that he made the settlements on the basis of deeding away his entire property to a third person, and that was suggested by Hoskins, and then there was deeded back to him 40 acres' of land and to Mrs. Adkins the rest of the land. He testified that the 40 acres of land was worth $2,500.
Hoskins testified that he was an attorney at law, and formerly lived at Paragould, Arkansas, but now lived in Little Rock; that Mrs. Adkins had employed him to bring suit for divorce, and by correspondence they ag'reed to meet in Clarksville. That he got to Clarksville one night, and next morning, about 10:30 or 11, saw Adkins; told Mr. Adkins his business; that his wife had employed him to represent her in recovering property and to bring suit for divorce. That the thing Mrs. Adkins was interested in was the recovery of $3,766 that she put in the property. He- testified that Adkins said he realized she put the money into the property, admitted that he owed her that much money. Hoskins suggested that Adkins get him an attorney; that he could talk to his lawyer better than he could to him; told him that he was not representing him, but representing his wife, and told him what, in his judgment, the wif e was entitled to. That lie went to the hotel, after they had talked a while, and went back at one o ’clock. Witness put the figures down, at the suggestion of Adkins; $4,000 for the home place, $2,500 for the 40 acres, and some other property, which witness said totaled $8,650. Adkins admitted that he owed $3,766. Hoskins told Adkins that, after the settlement was agreed on, he would go down to Mr. Patterson’s office and get deeds and papers drawn up, and Adkins said his deeds were at the Bank of Clarksville, and he would meet Adkins at the bank. They did meet at the bank, and went to Patterson’s office. The only connection that George O. Patterson, Jr., had with the transaction was that they were merely using him in transferring the property. Hoskins swore that he told Adkins he was an attorney at law, but did not tell him he wias learned in the law; never told him anything except that he was an attorney. He did not represent to Adkins to make the settlement.
There was a good deal of testimony both by Adkins and Hoskins about the wife, but that is immaterial' on this question. They were the only witnesses as to the conversation that led up to the compromise, and their testimony is conflicting. The appellant admits, that his wife sold some property and that he took the $1,400 and put it in the bank in his own name; told her about it; that it was an error to deposit it in his name. He also admits that she sent him $500 at one time. It appears that he was a man of intelligence and education, and had been teaching school for a number of years. He concluded to quit teaching, and the ¡arrangement was that he should work about the home and the canning factory until he got where that would be a paying business, and that his wife would teach school, and she did teaieh for several years. It appears from the testimony that, a good de’al of the property was accumulated by the efforts of both of them. Both of them worked, and what they, made went into a common fund, according to the testimony of appellant. When it is conceded that she put $1,400 in at one time, $500 at another, and then that both of them contributed to make the living and accumulate a portion of the property, this shows that she was entitled to a considerable sum as her own property; not as much, perhaps, as she got, but quite a considerable sum..
While the appellant states that he was stunned or dazed by the information that his wife had decided not to live with him any more, yet, as we have said, he was a man of intelligence and education, was in the town where he had lived a long while, had many friends, knew all the lawyers in town, and, of course, knew all the facts. He knew how much his wife had contributed, how much money he had received from her; he knew the value of his property, and his wife’s ¡attorney left him in the forenoon to come back-at one o’clock, and, on Hoskins’ return at one o’clock, the settlement was made. There does not appear to have been any representations made, even according to Adkins ’ testimony, except what he says that Hoskins told him a court would do with reference to the property. And, after having this interval between the time Hoskins left in the morning and when he came back in the afternoon, it does not appear that he consulted anybody, but made the deed to the property, and a deed to 40 acres was made back to him. He now asks that these instruments be canceled, but it has been said that the cancellation of an executed contract is an assertion of the most extraordinary power of a court of equity and that it ought not to be exercised except in a clear case upon strong and ¡convincing proof, and a court would not be justified in canceling a contract unless the proof was clear, strong and conclusive.
In this case there is no corroboration of appellant’s testimony at all. The only persons to testify about the contract and what led up to the contract are the appellant and Hoskins, and courts will not decree a cancellation of an executed contract on the uncorroborated evidence of the plaintiff, unless the evidence is clear, unequivocal and decisive. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; McNutt v. McNutt, 76 Ark. 14, 88 S. W. 589.
“As a general rule, fraud cannot be predicated upon misrepresentations as to matters of law, nor.upon opinions on questions of. law based on facts 'known to both parties alike, nor upon representations as to what the law will not permit to be done, especially when the representations are made by the avowed agent of the adverse interest. Reasons given for this rule are that every one is presumed to know the law, both civil and criminal, and is bound to take notice of it, and hence has no right to rely on such representations or opinions, and will not ■ be permitted to say that he was misled by them. Pursuant to this it has been held that fraud cannot be predi-' cated on misrepresentations as to the legal effect of a written instrument, 'as, for example, a deed, or a Federal land warrant, or a contract of insurance.” 12 R. C. L. 295.
It is not contended in this case that the facts were not known to both parties alike, or rather, it is not contended that the appellant did not know all the facts. He does not claim any misrepresentations as to facts, but claims misrepresentations as to the law.
There are some exceptions to the above rule, for instance, where a relation of trust or confidence exists between the parties. Or if Hoskins had misrepresented the law, knowing that Adkins was ignorant of it, and had taken advantage of him through such ignorance, and Adkins had relied upon the superior knowledge and experience, and the other party had advised him that it was unnecessary or inadvisable to consult a lawyer. None of these things, however, existed in this case. That is, they are not shown by a preponderance of the evidence to exist. There is ia. .conflict as to what took place, as we have said, but Hoskins swears positively that he told Adkins to get him a lawyer, and it is nowhere contended that he told him it was unnecessary or inadvisable to get a lawyer. 'Since the appellant knew all the facts, and knew how much money his wife hlad contributed, and was at his home in a town where his friends lived, where he knew all the lawyers in town and had friends that he could have consulted, it was his duty to make some effort and exercise some diligence to inform himself.
We cannot say that the evidence in this case on the part of the appellant is clear and convincing’, and the decree of the chancery court will therefore be affirmed. | [
113,
109,
-80,
125,
-88,
-88,
8,
-72,
-46,
-85,
-12,
-45,
-23,
-51,
8,
125,
-30,
77,
-43,
109,
-9,
50,
22,
38,
18,
-77,
-55,
93,
-87,
77,
-12,
-42,
76,
56,
-54,
29,
-58,
82,
-51,
92,
-50,
3,
-21,
64,
-39,
-30,
48,
57,
80,
13,
65,
-81,
-13,
43,
117,
83,
108,
46,
87,
-65,
-40,
98,
-97,
20,
93,
6,
49,
100,
-110,
-127,
72,
10,
-112,
52,
-120,
-8,
-14,
-90,
-46,
116,
69,
-65,
8,
118,
102,
26,
-83,
-29,
-12,
-120,
70,
-70,
-115,
-90,
-126,
1,
75,
8,
-66,
-99,
121,
88,
-125,
118,
60,
-59,
92,
40,
4,
-113,
-108,
-109,
12,
-71,
-104,
19,
-29,
127,
52,
113,
-119,
-30,
93,
71,
49,
-101,
-113,
-16
] |
Smith, J.
Appellant brought this suit in the Pulaski Circuit Court to recover a sum alleged to be due it on account of merchandise sold and shipped to one Jack Goddard, under a written contract of continuing guaranty which Goddard’s co-defendants had executed. Service was not had upon Goddard, but the other defendants, the' alleged guarantors, filed an answer, in which they denied liability, upon the grounds that the instrument sued upon was a mere offer of guaranty, of the acceptance of which by the guarantee they had not 'been advised, and that the alleged guaranty was in fact a mere fidelity bond whereby, .if liable at all, they were liable only for such sums of money as Goddard might collect and fail to account for.
The court below upheld both of these contentions, and, under this view, directed the jury to return a verdict in favor of the defendants, which was done. We must therefore give to the testimony tending to support plaintiff’s cause of action its hig'hest probative value.
The bond sued upon reads as follows:
“Personal Indemnity Bond.
.“Know all men by these presents:
‘ ‘ That we, the undersigned,..................................................................... acknowledge ourselves indebted to the Arkadelphia Milling Company, of Arkadelphia, Arkansas, in the sum of five thousand ahd no/100 ($5,000) dollars, same to be void upon the following terms and conditions.
“Whereas Jack Goddard, of 1201 Marshall Street, Little Rock, Arkansas, has been appointed the city rep resentative of Little Rook and North Little Rock, Arkansas, to handle and sell the products of the said Arkadelphia Milling Company: now if the said Jack Goddard shall faithfully perform the terms of the said contract and account to the said Arkadelphia Milling Company for all money coming into his hands through and by reason of the said contract, then and in that event this instrument shall be null and void, but for any shortage that might occur in his accounts we consider and acknowledge ourselves bound.
“Witness our hands and seals on this, first day of June, 1923.
“F. L. Brown, Atty., 414 A. O. U. W. Bldg.
“A. W. D. Overton, 423 Ferry St.
“F. J. Donahue, 2617 W, 14th St.
“Albert McMahon, Salesman Am. Gro. .Co., 1522 Oak St.
“Wm. Riley, Contr., 519 Cumberland St.”
So much of the contract referred to in the bond appointing Goddard as city representative of the plaintiff milling company as need be here considered reads as follows:
“This contract, made this 12th day of June, 1923, by and between Arkadelphia Milling Company, hereinafter called the consignor, and Jack Goddard, hereinafter called the consignee, witnesseth: That the consignor has delivered to the consignee on consignment certain merchandise, the description and present market price of which f. o. b. cars Little Rock, Arkansas, is as follows, to-wit: Flour, feed and meal.
“The consignee is to (pay freight) on said merchandise from Arkadelphia, Arkansas, to Little Rock, and is also to pay all drayage and storage charges. * * * The consignee, shall have the right to sell the-said merchandise in the due course of business for not less than the market price on the day of sale, and the consignee shall receive as commission all amounts for which the said goods are sold in excess of the market price and interest, and the proceeds of any and all sales of said merchandise, less the said commission, shall be remitted to the consignor by postoffice money order or cashier’s check, weekly, or deposited in Exchange National Bank to the credit of Arkadelphia Milling Company.”
The contract provided the manner in which Goddard might return and receive Credit for any merchandise found to be unsatisfactory.
The first transaction under this contract occurred June 21, 1923, at which time merchandise amounting to $970.09 was shipped to Goddard, and thereafter other shipments were made, the last being March 31, 1924. An itemized statement of the account was exhibited and shown to be correct by the accounting officers of the appellant company, from which it' appeared that merchandise of the total value of $11,314.98 was shipped to Goddard, and that credits amounting to $9,111.09 were received, leaving a net balance, with interest, of $2,203.89, for which amount judgment was prayed.
The contract — which we have not copied in full— contains no restrictions or directions in regard to sales which Goddard might make, except that the merchandise should not be sold at less than the purchase price, and he was at liberty to sell to whom he pleased. The accounting officers of the plaintiff company who testified concerning the balance due on the account did not know to whom sales had been made, nor what amounts, were due Goddard by his customers to whom he had sold merchandise. It 'did not therefore appear whether Goddard had remitted to the plaintiff company all collections made by him.
The court instructed the jury that the defendant guarantors were not liable, for two reasons: “One is, the bond was executed prior to the execution of the contract, and it is an obligation to pay certain .amounts, if any, that may accrue from Goddard, the principal. When that bond was signed the contract had not been signed, and the bond was forwarded to the plaintiff, and the plaintiff subsequently, on the 12th day of June, the date of the signing of the contract, and the bond was signed on the first day of June, signed the contract, but plaintiff did not notify these defendants that the contract had been signed by the plaintiff, and that any liability would accrue under the bond.” • The court further charged the jury that the word “shortage” appearing in the bond “means the defalcation of moneys coming into his hands through the operation of the contract, and there is no proof in the case that there has been any defalcation of moneys or goods, but, so far as the proof is concerned, it may be uncollected debts from- the resale of the produce delivered to the principal in the case.” For both these reasons the court directed the jury to return a verdict in favor of the defendant guarantors.
The testimony on the part of the plaintiff was to the effect that Goddard was promised a contract, such as was later executed, upon furnishing a satisfactory bond, and that both instruments were treated as having been simultaneously executed, although they bore different dates, and that no goods were furnished under the contract until after its execution and approval by the home office of the company.
Appellees insist that the court below was correct in construing the bond as a mere offer of guaranty, and that, as such, they were entitled to notice of its acceptance before any liability could accrue against .them. On the other hand, appellant contends that the writing was a direct promise of guaranty, and' not a mere offer of guaranty, and that notice of its acceptance was not essential to the accrual of liability thereunder.
Under the plaintiff’s testimony the jury might have found that the execution of the bond by satisfactory and sufficient sureties was the only condition precedent to placing the contract for the sale of the merchandise into full force and effect, regardless of the date of the bond or the contract, and, if so, they should be treated as contemporaneous instruments, although they bore different dates.
In 12 R. C. L., page 1072, § 23 of the chapter on “Guaranty,” it is said: “A written guaranty to pay a debt the proof of which rests in parol evidence, is legal and enforceable. Even if the principal obligation is evidenced by a writing, it need not be completely executed and delivered at the time the guaranty is entered into.”
At § 43 of the chapter on “Guaranty” in '28 C. J., page 913, it is said: “A contract of guaranty may be executed contemporaneously with the principal contract or after it is executed, and the fact that the guaranty is executed before the principal contract is executed is immaterial, where they are delivered simultaneously, or where the guarantee acts on the faith of such guaranty, in entering into the principal contract.”
In the case of Hudson Trading Co. v. Durand, 194 App. Div. 248, 185 N. Y. Supp. 187, it was held by the Supreme Court that, where a guarantor signs an agreement to -become jointly liable with a buyer in the performance of a sales contract, in consideration of the seller entering into such sales contract, and where such guaranty is an inducement to the seller to enter into the contract, the guarantor is liable for the buyer’s nonperformance, without executing a guaranty subsequent to the execution of the sales contract.
The case of Rosenwasser v. Amusement Enterprises, Inc., 88 Misc. Rep. 57, 150 N. Y. Supp. 561, decided by the same court, is to the same effect.
In the case of J. R. Watkins Medical Co. v. Brand, 143 Ky. 468, 136 S. W. 867, 33 L. R. A. (N. S.) 960, it was held by the Supreme Court of Kentucky (to quote the syllabus in that case) that: “Notification o'f acceptance of the guaranty is not necessary to bind persons who sign an agreement to be responsible for the faithful performance of his contract by one about to be reappointed ;as salesman for the obligee for another year, since the guaranty is absolute, and not conditional, and it is immaterial that the contract has not been signed by either employer or employee when the sureties put their names to the guaranty which is attached to it. ’ ’
In the annotator’s note to this case it is said: ‘ ‘ So, where the terms of a proposed guaranty contemplate acceptance by the delivery of merchandise on credit to a third person, the offer can be accepted by the furnishing’ of merchandise pursuant to the terms of the guaranty, the contract becomes complete when credit is actually so furnished, and no notice of acceptance is necessary where hot called for by the offer.”
In the case of Falls City Construction Co. v. Boardman, 111 Ark. 415, 163 S. W. 1134, appears this statement:
“In 20 Cyc. p. 1407, III, it is said: 'Both the English and American cases hold generally that the rule requiring notice by the guarantee of his acceptance of the guaranty applies only where the guaranty is, in legal effect, an offer or proposal. Where the transaction is not merely an offer to guarantee the payment of debts, and amounts to a direct promise of guaranty, all that is necessary to make the promise binding is that’ the promisee should act upon it; he need not notify the promisor of his acceptance, and at page 1409 it is said: ‘Where there has been a precedent request for the guaranty, notice of its acceptance need not be given to the guarantor.’ See Stewart v. Sharp County Bank, 71 Ark. 585-589, 76 S. W. 1064; Davis v. Wells, 104 U. S. 159, 26 L. ed. 686.”
Under the plaintiff’s testimony there was a precedent request for the guaranty, in that the plaintiff was proposing to sell Goddard merchandise upon the condition that Goddard secure satisfactory guarantors, and, in signing this bond, the defendant guarantors must necessarily have known that the plaintiff milling company would sell merchandise to Goddard if the milling* company satisfied itself that the guaranty was sufficient, that is, that the guarantors were responsible for the amount of the bond. Moreover, the bond, by its terms, is not a mere offer to -guarantee, but is a direct and •unconditional promise to pay $5,000 to be void upon the condition that Goddard should faithfully perform the terms of the contract and account to the milling company for all money coming into his hands under the contract.
See also Davis Sewing Machine Co. v. Richards, 115 U. S. 524, 6 S. Ct. 173, 29 L. ed. 480; McCarroll v. Red Diamond Clothing Co., 105 Ark. 443, 151 S. W. 1012, 43 L. R. A. (N. S.) 475; Beeson v: LaVasque, 144 Ark. 522, 223 S. W. 355; First National Bank v. Solomon, 170 Ark. 555, 280 S. W. 659; Ouachita Valley Bank v. DeMotte, 173 Ark. 52, 291 S. W. 984.
We are of the opinion also that the court was in error in construing the word “shortage” to mean that only a fidelity bond had been executed, and that the guarantors became liable only for such money as Goddard collected and failed to account for.
The contract did not authorize Goddard to sell merchandise for the account of the plaintiff. He sold for his own account and to whom he pleased, with the right do fix his own price, keeping for himself any excess over the market price at which he himself bought the merchandise. He was not required to report the names of persons to whom he sold, or the quantity sold, or the price of the salé. He exercised his own discretion in these matters, land this the milling company allowed him to do because of the indemnity or guaranty of the bond to the extent of $5,000 that Goddard “shall faithfully perform the terms of the said contract,” and Goddard’s contract required him to pay for merchandise which he bought from the plaintiff milling company. It was obviously not the purpose of the bond to permit Goddard to make indiscriminate sales of which he was required to make no report and over which the milling- company had no supervision or control, nor for Goddard to be liable only for such sums of money as he might collect. Under such a contract Goddard would have had everything to gain and nothing to lose, -.and would have been under no constraint to use discretion in making sales. If this was the contract, he could have sold to anyone willing to buy and have taken the chance, at the milling company’s expense, and without risk to himself, that the purchasers would pay.
'The bond is somewhat ambiguous, hut, when read in the light of the contract the performance of which it guaranteed, we think that the proper construction of it is that the word “shortage” meant such balance as was due after credits had been allowed for such remittances as were made to the consignor “by postoffi.ee money order or cashier’s check weekly, or deposited in Exchange National 'Bank to the credit of the Arkadelphia Milling Company.”
The judgment of the court below will therefore he reversed, and the cause remanded. | [
84,
109,
-72,
93,
90,
80,
40,
-102,
-45,
-64,
37,
83,
-19,
103,
1,
105,
-27,
121,
112,
104,
71,
-77,
49,
106,
-46,
-77,
-7,
-43,
-76,
79,
-84,
-42,
12,
36,
106,
-35,
-94,
-38,
-59,
24,
-50,
0,
43,
-19,
-3,
64,
48,
-82,
16,
11,
97,
-108,
-6,
44,
29,
75,
45,
46,
99,
-69,
80,
113,
-80,
69,
125,
21,
-79,
86,
-100,
69,
80,
14,
-104,
49,
9,
-24,
114,
-74,
-58,
116,
45,
-103,
12,
118,
98,
34,
-79,
-53,
-100,
-116,
-66,
-66,
-99,
-90,
-78,
72,
75,
9,
-74,
-100,
122,
16,
-122,
-14,
-10,
29,
-100,
104,
3,
-17,
-10,
-125,
13,
96,
-98,
-125,
-21,
-118,
-80,
113,
-51,
-94,
92,
71,
48,
-101,
-49,
-79
] |
Grippin Smith, C. J.
Tbe appeal is from a judgment awarding J. E. Carter $2,500 to compensate personal injuries received December 6, 1940, when bis truck and a street car collided in Little Rock. Error assigned is the court’s action in refusing to direct a verdict for the defendant.
Carter, driving an International truck loaded with cattle, was proceeding east on East Ninth street.- It is conceded that if the collision occurred on the east side of Hanger street, where Hanger intersects East Ninth, Carter was guilty of contributory negligence and should not recover. Contra, if the motorman in charge of the street car negligently continued west across Hanger and thereby closed Carter’s avenue of escape, recovery should be sustained. It is not alleged that the verdict is excessive.
Carter’s explanation is that automobiles were parked on the south side of Ninth street, blocking from six to eight feet of paving which ordinarily would have been available to traffic. This compelled appellee to utilize the car tracks. Time was 5:50 p. m. Rain had been falling, and there was some mist or haze. Lights were being used on' the truck; also on the street car. Appellee was driving at fifteen miles per hour and first observed the trolley car when it stopped on the east side of Hanger. Distance at that time was approximately 1301 feet. Appellee is testimony is that the street car struck him just as he went into the intersection — “between the west side and the middle of Hanger street. ’ ’
After having stopped at the intersection, the motorman started at a time when appellee’s position on the tracks was such that a collision was inevitable if the trolley car kept moving. Appellee “took it for granted” the motorman, who was looking directly at him, would realize the peril and stop before proceeding far enough into Hanger to prevent the truck from “clearing” the last automobile parked on the south side of Hanger and turning to the right. Appellee’s comment on cross-examination was: “I figured he would surely let me get off of that street car track.” When asked why he did not stop his truck, appellee replied: — “I knew if I did, and he didn’t stop, he would run over me.”
After entering Hanger, appellee apparently “sideswiped” the trolley car with his left front fender, careened, and continued fifteen or twenty feet before being upset immediately in front of Davis ’ store.
J. T. Henry, witness for tbe plaintiff, testified he saw the impact, and “Hanger street didn’t have anything to do with the collision. It happened before [Carter] got there.” Appellee asserted that one of the parked automobiles was “awfully close” to the Hanger street intersection.
It' is difficult to understand how Carter could have driven between the street car and the parked automobile he says was near the intersection, and at the same time avoid the automobile and strike the street car as lightly as he did. From street car rail to the south curb, Ninth street is eleven feet eight inches. The parked automobile near the Hanger street intersection occupied more than half this space, and if in fact the street car was near the west side of Hanger when the impact occurred, it seems highly improbable from a physical standpoint that the truck could have negotiated the closing space, and after striking the street car or being struck by it continue to the Davis store. However, unless impossible, or so highly improbable that no reasonable mind would accept the explanation, a question was presented for the jury.
To hold, as a matter of law, that appellee was contributively negligent would require judicial deductions and harmonizations from the result of which it would be necessary to eliminate certain testimony we regard as substantial. This we do not have the right to do. Attitude of the witnesses, their manner of testifying, and explanations as to distances indicated by gestures, but not appearing clearly in the record, were heard by a judge of the highest integrity who no doubt would have set the verdict aside had he not believed a preponderance of the testimony absolved appellee of blame. In these circumstances the judgment will not be disturbed.
Affirmed. | [
-14,
120,
-64,
-82,
59,
64,
18,
10,
85,
1,
-73,
-45,
-83,
79,
29,
53,
-25,
121,
-43,
43,
-11,
-93,
7,
-13,
-37,
-77,
-69,
-121,
22,
-54,
101,
-42,
76,
112,
-54,
-107,
38,
-56,
-52,
-34,
-52,
22,
105,
124,
121,
80,
56,
122,
4,
15,
33,
-114,
-62,
46,
24,
67,
-19,
40,
107,
-80,
-63,
-16,
-55,
13,
95,
16,
-95,
-26,
-70,
9,
90,
56,
-100,
53,
40,
-8,
48,
-90,
-125,
-44,
105,
-103,
12,
-30,
114,
8,
93,
-51,
-79,
-72,
14,
-82,
-115,
-89,
58,
17,
25,
39,
-97,
-107,
107,
82,
14,
126,
-2,
13,
93,
96,
-121,
-50,
-80,
-79,
-17,
48,
-106,
75,
-21,
-121,
50,
113,
-53,
-86,
93,
5,
82,
-101,
-105,
-62
] |
Mehaffy, J.
The appellants brought suit in the Sebastian Chancery Court against the Arkansas Valley Bank, a State banking institution, and individuals, trustees of the John A. Guthrie Mortgage 'Company, bankrupt. Suit was brought for themselves and all other persons similarly situated., After isuit was brought, numerous other bondholders intervened and made themselves parties plaintiff, and adopted the complaint and amended complaints of the original plaintiffs.
Plaintiffs alleged that the defendant, John A. Guthrie, was president, W. H. Johnson vice president, Hugh Branson treasurer, and Oran C. Yoes secretary of the John A. Guthrie Mortgage Company, and were also stockholders and members of the board of directors, and composed the executive committee of the said John A. Guthrie Mortgage Company, and, by the by-laws of the said company, said defendants were required to be actively engaged, and were actively engaged, in the manr agement and financial condition of the John A. Guthrie Mortgage Company; that each land all of them held themselves out to the public as being actively engaged in the management, direction and control of the affairs of the mortgage company; that they caused to be printed advertisements, circulars, letters and other printed matter, and caused the same to be circulated throughout Arkansas, Oklahoma, Kansas, Vermont, and" other states, representing themselves to be in charge of and directing the affairs of said company.
Plaintiffs alleged that the Arkansas Valley Bank was a banking institution under the laws of Arkansas, and doing business at Port Smith, Arkansas, and that Hugh Branson was its president; that all of said defendants daily land continuously held out to the general public, and especially to, these plaintiffs, that the mortgage company was a solvent concern of unquestioned financial soundness, and deserving of public confidence, and further, by word of mouth and by private letters, generally throughout the county, assured the general public* and especially these plaintiffs, that the said mortgage company was wholly solvent and reliable, 'and carried a large surplus, and that investors in its securities and stock could stand no chance to lose their money, and that it had more money than it could loan on farms throughout the States of Arkansas and Oklahoma. That the officers and directors of the executive committee of the mortgage company authorized and caused to be issued bonds of said company, and advertised that said bonds were secured by first mortgages held/by the defendant, Arkansas Valley Bank, as trustee for the purchasers; that the plaintiffs relied upon the said advertisements, and purchased part of the bonds. Many others purchased bonds in a like manner; that the Arkansas Valley Bank, through its president, Hugh Branson, accepted the trust, and that each of said bonds bore on its face a certificate which was set out in said complaint, setting out the securities. and mortgages. That the advertisements, circulars and letters, etc., were false and wholly untrue; that the defendants knew the bonds were not secured by first mortgages, but many of the securities were unsecured promissory notes, and others were notes given where no money had ever been received by the borrower. That the mortgage company was, on July 14, 1926, declared bankrupt; that the Arkansas Valley Bank holds in trust for the plaintiffs a large number of notes, secured and unsecured, but that they are insufficient to liquidate the indebtedness; a large part of them are second and third mortgages. That the Arkansas Valley Bank had been guilty of gross breach of duty as trustee; that the Arkansas Valley Bank knowingly and negligently breached its trust agreement and dissipated or permitted to be dissipated trust property, and that it knowingly and fraudulently made and executed and put forth various false and fraudulent certificates in writing upon various bonds held by the plaintiffs, duly signed by the authorities of said bank officials, which false certificates were executed, made and put forth with the fraudulent intent th'at it would bo relied upon, and it was relied upon, and was known by the officials and directors of the bank to be false, and was done with the intention of deceiving, and did deceive, plaintiffs. Plaintiffs further alleged, that the certificates issued by the bank were false and fraudulent, and known to be so, made with the intention to deceive, and did deceive, the parties.
The complaint is very lengthy, but it is unnecessary to set it out in full here.
Defendants filed a demurrer, because they alleged, first, that the complaint did not state .sufficient facts to. constitute a cause of action 'against the bank; second, because the court has no jurisdiction of the subject-matter; third, because there is a defect of parties.
There were other demurrers filed by other defendants, but they are all in the same language. That is, they demur on the ground that there is a defect of the parties; thlat the court has no jurisdiction, and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrers on the ground of defect of parties defendant. Then, after plaintiffs had refused to elect or to amend, and having elected to stand upon the amended or supplemental complaint, the court then sustained the demurrer on each ground. Plaintiffs excepted, and have prosecuted an appeal to this court.
Appellant’s'first contention is that the holding of the court that there was a defect of parties and sustaining the demurrer because of defect of parties defendant, is error. We agree with counsel for appellant in this contention. There is no defect of parties defendant.
Defect of parties means too few, and not too many. The parties have discussed misjoinder of parties and misjoinder of causes of action, but have not discussed defect of parties.
“The first example in support- of the demurrer is that there is a defect of parties plaintiff. But that, as a ground of demurrer, means too few and not too many. A demurrer alleging this particular objection can be interposed therefore only in case of a nonjoinder of necessary plaintiffs or defendants, and never in a case of misjoinder.” Tieman v. Sachs, 52 Ore. 560, 98 Pac. 163.
It is doubtful whether misjoinder of parties could be raised on demurrer. Our statute provides:
“The defendant may demur to- the complaint where it appears on its face either, first, that the court has no jurisdiction of the person of the defendant or the subject of the action; second, that the plaintiff has no legal capacity to sue; or, third, that there is another action pending between the ¡same parties for the same cause; fourth, that there is a defect of parties plaintiff or defendant, or that the complaint does not state facts sufficient to constitute a cause of action.”
But whether a demurrer would reach misjoinder of parties or not, that question is not before the court, because the demurrer is on the ground of defect of parties, and not misjoinder.
“It is urged that there is a misjoinder of parties defendant. As this does not come within the terms of defect of parties, it is doubtful whether the question may be raised on demurrer.” United States v. Comet Oil & Gas Co. (C. C.), 187 Fed. 674.
'Counsel in their 'brief and argument do not claim that others should be made parties or that the defendants are too few, and there is no defect of parties, and the demurrer based on this ground should be overruled. The appellants for the bank say in their brief that the court was clearly right in sustaining the demurrer because there was a defect of parties defendant. But they argue that the allegations with reference to the defendant, Johnson, were in no wise-connected with the allegations witln reference to the Arkansas Valley Bank. That mig*ht be true and still the court could not sustain a demurrer for defect of parties, because, if that was true, it would be merely a misjoinder of parties, and that question is not raised by the pleadings.
Attorneys for Johnson and Branson argue defect and misjoinder of parties and causes of action as if those questions were raised by the demurrer, which is based on the ground of defect of parties. The question of mis joinder of parties defendant or misjoinder of canses of action was not raised by the demurrer.
It is earnestly contended by the attorneys for the Arkansas Valley Bank that, even if the allegations of the complaint are true, it does not state a cause of action against the bank. It is argued that for a bank to attempt to do the things which it is alleged the bank did do in this instance is ultra vires, and that, for that reason, the bank is not liable, and learned counsel cite the case of Grow v. Cockrill, 63 Ark. 418, 39 S. W. 60, 36 L. R. A. 89.
The only question decided in that case, as we understand it, was that-a national bank is not authorized to act as a broker in lending money to others, and the court said that the bank had no authority to transact business of that kind, and that the teller was not acting within the scope of his authority and business when he committed the torts complained of, and cites a Pennsylvania case as holding that.
The allegations of the complaint in this case against the bank are that it falsely represented that it had securities on hand sufficient to pay these bonds; that it made and published false statements about the condition of the mortgage company; that it induced these persons to invest their money in worthless bonds when it knew they were worthless, and the suit is based on tort, so far as the bank is concerned, and it has been many times held that the doctrine of ultra vires does not apply to a corporation’s torts, but only to its contracts or eontractural relations. Suits are maintained against corporations every day and recoveries had for negligence, willful wrong, and all kind of torts, and it has never been contended, so far as we know,'that.a corporation was not liable for these things because it was ultra vires.
“Is the doctrine of ultra vires applicable to this case? The doctrine of ultra vires has never been held to apply to la corporation’s torts, but is limited to its eontractural relations. ’ ’ Greeley National Bank v. Wolf, (C. C. A.) 4 Fed. Rep. (2d) series, 67.
The above is. a rather recent case, decided in January, 1925, and it cites a number of■ eases holding that doctrine.
“Corporations are liable for every wrong they commit. And in such cases the doctrine of ultra vires has no application. They are also liable for the acts of their servants while such servants -are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. # * * Recurring to the case in hand, it is now well settled that, if a bank be accustomed to take such deposits las the one here in question, and this is known and acquiesced in by its directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter.” National Bank v. Graham, 100 U. S. 699, 25 L. ed. 750.
The above case cites quite a number o<f authorities.
“In Bissell v. Michigan So. & N. I. R. Co., 22 N. Y. 258, a leading- case, the court held that corporations, like natural persons, have the power and capacity to do wrong. That corporations have no right to violate their charters, but they have the capacity to do so, and are to be bound by their acts, 'where a repudiation of such acts would result in manifest wrong to innocent parties; that the plea of ultra vires, according to its just meaning, imports, not that the corporation could not make the unauthorized contract, but, that it ought not to have made it; that such a defense is not to be entertained where its allowance will do great wrong to innocent third parties; that, although corporations cannot rightfully do any act not authorized by their charters, yet such acts, when done, are to be regarded as the corporation’s acts; and if, in the course of their performance, others are injured by the negligence of the officers of the corporation, the corporation is responsible; such liability arising from the duty which every railway company owes to persons within its cars with its consent.”
■Citing a number of authorities, the court, continuing, says: “While they (corporations) have no right to violate their charters, yet they have the capacity to do so, and are bound by their acts where a repudiation of them would result in manifest wrong1 to innocent parties, and especially when the offender alleges his own wrong to avoid a just responsibility.” Burke v. State, 64 Misc. Rep. 558, 119 N. T. Supp. 1089. The court in the above case also said: “It would seem that the action of the
defendant in assuming to carry on the business of dentistry was illegal and ultra vires. But, though it was beyond the corporate powers of the defendant to engage in the business, this does not relieve it from the torts of its servants committed therein.”
The Supreme Court of the United States, in a later decision than the 100 U. S., quoted with approval the case of National Bank v. Graham, and, after quoting from the Graham case, the court said:
“We are of opinion that the execution of the receipt or certificate in question and its transmission by mail direct by the defendant to the plaintiff created the relation of bailor and bailee between her and the defendant, and made it an act of gross negligence for the defendant to deliver or dispose of or appropriate the securities in question on the sole request of Juda, and without her direct authority.”
The court further on said:
“Knowing, from what passed between Mass and Juda, that the bonds were to be used to raise money for the benefit of'Walker Sons & Company, and knowing that such use was an improper disposition of the bonds unless the transaction wais affirmiatively and directly sanctioned by the plaintiff, the defendant became a party to the misappropriation of the bonds. It is immaterial, in this-view, whether or not the defendant received any portion of the money loaned by the Bank of Commerce on the security of the bonds.” Manhattan Bank v. Walker, 130 U. S. 267, 9 S. Ct. 519, 32 L. ed. 959.
The appellee is correct in the statement that a bank organized under the laws of the State of Arkansas has restricted powers, and this is true of any other corporation. But any corporation mjay have the capacity to do many things that it does not have the right to do. As we understand it, the bank would not be liable on any contract where the contract was beyond its power to make, but ultra vires has. reference to .contractual relations and not to tort. But, if the bank and its officers committed thé acts alleged in the complaint, the bank could not defend itself when charged with the wrongful conduct by showing* that it did not have authority to commit the acts.
We think the complaint states a cause of action, and that the demurrer based on the ground that the facts stated did not constitute a cause of action should have been overruled.
The next ground of demurrer is that the court had no jurisdiction of the subject-matter. The court dismissed the cause when, if it appeared to the court that the demurrer as to jurisdiction was well taken, it should not, on that ground, have dismissed the complaint, but should have transferred it to the law court.
The only thing* that appellees say about the ground of demurrer last mentioned is: “That the matters involved as against them were not cognizable in equity, and was purely a common-law action for a tort.”
‘ ‘ The complaint prayed for an accounting against the bank, that a trustee be appointed to take charge of all securities, funds and assets held by the bank, that they be ordered sold for their benefit, and that the plaintiffs have and recover of and from each defendant such a sum as may be found to be their losses sustained by the false representations and deceit of the directors,” etc.
We think the allegations of the complaint'are sufficient to justify the prayer, and that those allegations are sufficient to give the chancery court jurisdiction.
It is also contended by appellees that the suit was prematurely brought. Whether this question could be raised by demurrer in this particular case need not be decided, because the complaint asks that this property first be sold — -this is, the securities; and it could not be premature, certainly, in asking this relief, and if this relief is granted, then’ the other would, of course, not be premature, because they would only recover a judgment against the parties for any excess or any amount for which the defendants were liable in excess of the amount that the securities sold for.
The case will be reversed, and remanded with directions to overrule the demurrers. It is so ordered. | [
48,
109,
-80,
46,
-56,
96,
44,
-102,
19,
-127,
-91,
-45,
-23,
-25,
4,
101,
-28,
57,
-11,
120,
71,
-74,
23,
110,
-62,
-69,
-39,
-59,
-80,
95,
-28,
-44,
9,
56,
-120,
87,
-126,
-32,
-57,
-100,
78,
-124,
43,
108,
-39,
-63,
48,
-17,
69,
73,
85,
-123,
-9,
41,
53,
74,
77,
46,
-61,
45,
80,
-13,
-118,
-50,
-3,
7,
17,
102,
-102,
81,
-56,
44,
-112,
53,
33,
-88,
118,
38,
-58,
116,
47,
93,
12,
50,
98,
33,
-75,
-21,
36,
-120,
54,
-1,
13,
-122,
-78,
105,
11,
15,
62,
-99,
122,
0,
-121,
-8,
110,
-43,
20,
104,
5,
-18,
-42,
-89,
-99,
-4,
-100,
-125,
-13,
-49,
32,
81,
-52,
-70,
93,
71,
58,
59,
-114,
-76
] |
Mehaffy, J.
On the 5th day of November, 1925, the appellant issued a policy insuring F. E. Williams against loss by fire on a one-story building and on stock of merchandise, store and office fixtures and furniture. The insurance on the house was $1,000, on the fixtures and furniture, etc., $1,000, and on the stock of merchandise $200. On the 4th day of December the building and contents were destroyed by fire. The appellee, plaintiff below, brings this suit to collect the insurance.
Defendant filed motion for continuance, which was overruled, and it then filed answer, exhibiting a copy of its policy with the answer. And in its answer it not only denied the allegations of the complaint, but alleged violation of the terms and provisions of the policy in several instances. Attention will be'called to these and to the testimony in the opinion.
The appellant first insists that the case should be reversed because the court refused to sustain its motion to dismiss. The motion stated that the defendant was a foreign corporation, and that it designated the Insurance Commissioner of the State of Arkansas as its agent for service, and that it had no agent in Lawrence County. That suit was brought in Lawrence County, and, under the laws of the State of Arkansas, a suit against a domestic corporation may be brought, in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides, except insurance companies, the action may be brought in the county in which there is an agency of the 'company, where it arises out of a transaction of such agency.
It is alleged in the motion that § 1174 of Crawford & Moses’ Dig’est provides that an action against a foreign corporation may be brought in any county in which there may be property of or debts owing to the agency, and that this section is in conflict with the Constitution of the United States.
It is argued by appellant that this section of the statute is void under the authority of Power Manufacturing Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. ed. 1165, decided by the United States Supreme Court May 31, 1927. The appellant evidently overlooked § 6150 of Crawford & Moses’ Digest, which provides: “When loss shall occur by fire, lightning or tornado in the burning, damag’e or destruction of property on which there is a policy of insurance, * * *” one having’ a policy “may maintain an action against the insurance company taking the risk in the county where the loss occurs.” This section applies to both foreign and domestic insurance companies, and the court therefore did not err in overruling appellant’s motion to dismiss.
Appellant next insists that the case. should be reversed because its motion for a continuance was overruled. The suit was filed and summons served on April 20,1927. The case was not called for trial until June 16, 1927. The defendant knew when it was served with summons, when the court would-be in session, and § 1208 of Crawford & Moses’ Digest provides: “The defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session after service, where the summons has been served 20 days in any county in the State.”
The defendant therefore knew when the suit was filed that it would have to answer before noon of the first day that the court was in session. It could have ascertained immediately whether it had a copy of the policy, and could have made preparations to try the case.
Appellant, however, cites and relies on North American Union v. Oliphant, 141 Ark. 346, 217 S. W. 1, and states that that lays down the rule relative to continuance in cases similar to the instant case. In that case the court said: “The ground upon which the insistence is based is that appellee changed the theory of his case at the commencement of the trial, to the surprise and prejudice of appellant.” The court then called attention to the correspondence between the parties, and continued:
“With this information in hand, appellant was not warranted in assuming that only such letters as were written by appellant itself would be relied upon to establish the contract. The whole correspondence was submitted by appellant as establishing the contract pleaded and relied upon for recovery. With this information in advance, neither surprise nor prejudice resulted to appellant in denying its request for a continuance. ’ ’
It next calls attention to State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S. W. 863. In this case the motion for continuance stated that certain proof could be made by an absent witness, and that defendant had used its best effort to reach the witness, that it might take her deposition, but was never able to communicate with her; that, if the case was continued, it could locate her and take her deposition. The motion also stated that the plaintiff failed to file either the original policy or a copy of it with her complaint, and, for that reason, he could not prepare a defense to the action. And the court held that the lower court did not abuse its discretion in overruling defendant’s motion for a continuance.
In the instant case, appellant does not show any ' effort to get the policy or a copy of it. If he had been unable to get a copy from the home office, and the plaintiff had refused to let it have the policy so that it could make whatever preparations it thought proper, and then had shown that, by reason of this, it was unable to prepare its defense and had been deprived of the right to interpose or make any defense, the trial court would probably have granted its motion. But it does not claim that it made any effort to get the policy from the plaintiff, and does not show in any way that it was prejudiced.
In the instant case the motion stated that the attorney for the defendant had never seen the policy nor a copy of it prior to the day before trial. And that the general agency through which the policy was written, on account of a loss of a portion of its office files, was unable to furnish the defendant’s attorney with a copy. But he does not show that he might not have got a copy from the office of the company, and does not show that he made any effort to get it from the plaintiff.
A continuance in a civil ease is within the sound discretion of the trial court, and the action of the court in granting or overruling a motion for continuance will not be disturbed unless it has abused its discretion to the defendant’s injury. And in this case the court did not abuse its discretion. Holub v. State, 130 Ark. 245, 197 S. W. 277; Sease v. State, 155 Ark. 130, 244 S. W. 450.
Appellant next insists that the case should be reversed because the court refused to grant instruction No. 1 requested by the defendant. It first argues that there was a violation of the sole and unconditional ownership clause of the policy. 'The proof shows that the land had been sold for taxes and that the time for redemption had expired. At any rate, this is the contention of appellant. But appellant did not offer to show that the land had not been redeemed, and, since the plaintiff was at the time living on the land and paying taxes, the burden was upon the defendant to show that the land had not been redeemed.
This court has said: “The State could only act through her taxing officers. These officers, the clerk, assessor and collector, had no authority to place or keep these lands on the tax records for the assessment, levy and collection of taxes, unless they had been redeemed from the State, as required by the statute. While there is no proof in the record that the lands had been redeemed, yet, under the above undisputed facts, it will be presumed that the lands had been redeemed. ’ ’ Wallace v. Hill, 135 Ark. 353, 205 S. W. 699.
It is also contended that this clause as to unconditional and sole ownership was violated because the plaintiff did not have the deed to- the property at the time the insurance policy was issued. But the plaintiff testified that he was the true owner of the land, the sole and unconditional owner, but that the record title was in his daughter, but that she was going to make him a deed. He testified that he told this to the agent, and the agent said he would write the insurance with the understanding that plaintiff get the title transferred to him. The insurance agent said he was going to Memphis next day, and would try to see plaintiff’s daughter and get her to fix the deed. He did not get to see her, hut came back and told plaintiff he had better mail the deed to her. Plaintiff did this, and the deed was executed.
This proof is undisputed, and the deed was in fact executed and delivered within a week. It appears therefore that, so far as this defect is concerned, the insurance agent who wrote the policy knew all about it, and when an insurance agent who writes a policy knows, at the time that the policy is written, that the insured’s interest was not sole and unconditional, that provision of the policy is waived. See National Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 370.
So far as the improvement taxes are concerned, there is nothing in the proof that shows violation of the sole and unconditional ownership clause of the policy. If the lien of assessments for benefits kept one from being the .sole and unconditional owner of his property, then no person who lives within the bounds of an improvement district would be the sole and unconditional owner of his property.
Appellant next insists that its instruction No. 3 and its instruction No. 4 should have been given. What we have already said answers the objection to the court’s refusing to give instructions Nos. 3 and 4, requested by defendant.
The court’s giving instruction 2 at the request of the plaintiff was not error. It simply told the jury that, if the land was forfeited for the nonpayment of taxes and certified to the State, and that a legal title was in the State, plaintiff still had the right to redeem, and that this was a sufficient compliance with the policy. The burden would not be on the plaintiff to show that he had a right to redeem if he was in possession, paying taxes. There would be a presumption that he had redeemed. The officers would have nO' right to put the land on the taxbooks and to levy and collect taxes from the plaintiff unless he had redeemed or had the right to redeem.
Appellant next insists that the case should be reversed because the plaintiff was guilty of concealment and misrepresentation of material facts and circumstances concerning’ the insurance and the subject thereof. Appellant says that the uncontradicted and admitted testimony is that, at the time the policy was issued, the land had forfeited for taxes to the State of Arkansas and had not been redeemed within the two-year period, and that the State owned this property. The testimony does -show that the land had forfeited, but it does not show whether it had been redeemed. Plaintiff’s daughter made a deed to him after the policy of insurance was written and delivered. The plaintiff was in possession, paying taxes. There is no proof that the daughter did not redeem the land. 'The presumption is that it was redeemed. The fact that the land had been ordered sold, as stated by appellant, under certain decrees of the chancery court, did not violate any of the provisions of the policy. There is no evidence that the plaintiff concealed or misrepresented any material fact or circumstance. The suits that were brought in the chancery court were suits in rem, and no notice, so far as the record shows, was served on the plaintiff. Moreover, if the suits had been pending in court and plaintiff had been served, this would not be any violation of any of the terms of the policy, because the plaintiff had the right at any time to pay the assessments, and, if it had been sold, he had a right to redeem it, and there was therefore no violation in this of the sole and unconditional ownership clause, and, so far as this record shows, there was no misrepresentation or concealment.
It is next insisted that the plaintiff violated the record warranty clause of the policy. It is alleged that the violation was caused- by plaintiff’s failure to taire an inventory and to keep an account of sales and record of his business, and that he had no iron safe.
It has been repeatedly held by this court that, where the insurance agent inspects the property himself, knows ■that the plaintiff does' not have an iron safe, and knows the manner in which he keeps his accounts and records, and knows all the facts that the proof in this case shows the insurance agent knew, the company waives these provisions in the policy. The provision in the policy required the plaintiff, if he had no inventory on hand, to make one within 30 days.
There is a, conflict in the testimony as to what occurred between the adjuster and the plaintiff, but this was a question of fact properly submitted to the jury, and their finding is conclusive here.
Appellant next insists that the court erred in modifying the instructions by adding the following: “unless you find that defendant waived said provisions in said policy.”
Defendant’s requested instructions were erroneous without the clause being added. Each of them enumerated certain things, telling the jury, if they found these to be the facts, they would find for the defendant, leaving out entirely the question of waiver. For instance, the undisputed proof shows that the agent knew that the daughter had the legal title, but was intending to make a deed to the assured, yet these instructions say that, if the jury find those facts, they will find for the defendant. Of course this was erroneous; but it was proper to tell them, if they found these facts to be true they would find for the defendant, unless they found that the defendant waived this provision. And this is true of each instruction which is modified by adding the words, “unless you find that the defendant waived said provisions of the policy.”
It is unnecessary to set out the instructions. When considered as a whole the instructions fairly submitted all the issues to the jury, and all questions of fact decided by the jury are conclusive on this court if there is substantial evidence to sustain the jury’s finding.
It is next contended that the case should be reversed because it is alleged the fire was caused by the act or procurement of the plaintiff. It is' true Reed’s testimony was to the effect that Williams started the fire and burned His own property. This testimony is contradicted by Williams, and a number of other .witnesses testified to facts which are in conflict with Reed’s testimony. Reed’s testimony was to the effect that Williams poured gasoline or something on the stove and stovepipe and set it on fire. Two or three witnesses swear that the fire started several feet from the stove. Reed also testifies that he saw the fire, and had seen Williams pouring something on the stove or pipe, and testified that it looked like there was some paper set on fire in the stove, and the place flamed up. Reed went home after seeing this, .stating that he thought Williams wanted to burn it, and it was none of witness’ business. He went home and lay down op the bed, but did not go to sleep, and he was at home when his own store caught fire. It therefore appears that the evidence is conflicting on the question of the origin of the fire, and this court does not pass on the credibility of the witnesses where there has been a trial at law, nor the weight to be given to their testimony, the rule being that if there is substantial evidence to sustain the verdict it will not be disturbed.
It is next contended by appellant that the case should be reversed because the court erred in permitting Mrs. Williams, the wife of the plaintiff, to testify on his behalf.
Section 4146 of Crawford & Moses ’ Digest makes the husband and wife incompetent as witnesses for or against each other, and appellant contends that this statute is violated by the court’s permitting Mrs. Williams to testify.
Appellant’s witness, Reed, had testified that he had seen some one set fire.to the building and had seen some one in the building, but did not know whether it was Williams or not. The testimony was closed, and the ease went over until the following- morning, and appellant’s attorney then asked permission to put Reed back on the stand, and this permission was granted, and Reed testified that it was Williams that he saw in the store, and the reason he did not tell it when he was on the stand before was that Mrs. Williams, just before he went on the stand, had asked him if he was going to swear that Williams burned his building, and when he told her he was, she asked him if he meant it, and he told her he did. She went downstairs, and came back with a pistol in a paper bag, and came in and sat on the front seat, and that is the reason witness .did not tell the truth about seeing Williams. This action on the part of the appellant was a violation of the statute that he now invokes. If the wife was incompetent to testify, it was just as much a violation of the statute to have some witness to testify to what she said as it wouid be to put her on the stand and let her testify herself. The statute prohibits the testifying- by husband or wife for or against each other, and the appellant should not have offered proof of any declarations or statements of Mrs. Williams. If the law permitted evidence of this character, one could do indirectly what the statute prohibits doing directly. Then it would be manifestly unfair to permit one party to prove statements of the wife and then prohibit her from denying- the alleged statements.
“It frequently happens that evidence which might be inadmissible under strict rules is nevertheless introduced into the case through inadvertence or otherwise, under which circumstances it is held that the adverse party is entitled to introduce evidence on the same matters lest he be prejudiced, the rule being that the party who first introduces evidence which is irrelevant to the issues cannot assign error on the admission of evidence from the adverse party relating to the same matter. So, where a part of a conversation, declaration, document, or series of documents, book accounts, letter or correspondence, or transaction, is shown in evidence by one party, the other party may, for purposes of explanation, show the remainder, or so much thereof as is necessary to a complete understanding of the part already shown, even though the result is to let in self-serving declarations.” 22 C. J. 196.
“The transaction with .Arnold concerning the payment for his services was collateral, and had no place in the case, as it had no hearing upon the issue as to what amount appellee had agreed to pay appellants to defend him. But appellants are not in a position to complain of the introduction of this question into the case, as they brought it forward and introduced the first testimony concerning it. * * * However, if it was prejudicial, appellants are in no attitude to complain, because they had first drawn out the testimony concerning the payment of this money and the circumstances under which it was paid, and appellee was entitled to have the whole of the transaction given to the jury after a part of it had gone in.” St. L. I. M. & S. R. Co. v. Walsh, 86 Ark, 145, 109 S. W. 1164.
“The defendant is not in a situation to complain that the court admitted evidence to prove that its trains were not stopped at Coal Hill on former occasions. Witnesses for the defense testified that the train stopped on the day of the injury long enough to permit all passengers to alight. To sustain their statement, they testified that the rules of the company required a stop of several minutes, and that it was always made. If the evidence was incompetent, the defendant first introduced it, and cannot complain that the court permitted plaintiff to rebut it.” Ry. Co. v. Tankersley, 54 Ark. 25, 14 S. W. 1099.
In the instant ease the appellant is in no position to complain, after having introduced witnesses to testify as to statements made by the wife of plaintiff which were incompetent, and the court did not err in permitting the plaintiff to introduce Mrs. Williams in rebuttal of such testimony.
.Appellant complains, however, because Mrs. Williams made other statements and undertook to give testimony that was not in strict rebuttal of the incompetent testimony introduced by appellant. The court had already instructed the jury that Mrs. Williams could •not testify except with reference to Reed’s testimony as to her threats. The court had told the jury that the testimony would be confined to the question of threats, as to whether or not Mrs. Williams made the threats as testified to by the witness, and that the testimony could not be considered by the jury as testimony in this case as to whether or not plaintiff was entitled to recover on insurance policy, but would be considered only' for the purpose of what light it might shed on the question as to whether or not any threats were made to the witness Reed, who has just testified.
After the testimony the court said:
“Gentlemen of the jury, I again instruct you that the testimony of this witness must not be considered by you as testimony bearing on the merits of this case as to whether or not the plaintiff Williams is entitled to a recovery, but you will consider it only on the point relative to threats made by the witness against Reed, if any.”
It is next contended by the appellant that the case should be reversed because the court erred in permitting certain testimony, over the objection of the defendant, and in excluding certain testimony over the objection of the defendant. .The testimony complained about, however, could not be prejudicial. We have already said that the chancery suits with reference to benefit assessments would not be a violation of any of the provisions of the policy. It did not violate the sole and unconditional ownership clause, and, as long as plaintiff had a right to redeem, he was the sole and unconditional owner. And as we have already stated, as to the tax forfeitures and sales, the plaintiff, being in possession and paying taxes, raises a presumption that it had been redeemed from the State.
The instructions, as we have already said, properly submitted the case to the jury, and it would be useless to set out all the instructions requested in the case.
Appellant finally contends that the attorney’s fee allowed by the court was excessive, and that it should be reduced so as not to exceed 10 per cent, of the judgment. The court allowed attorney’s fee. of $350', and we cannot say that that is excessive.
Finding no prejudicial error, the case is affirmed.
Hr. Justice Kirby dissents. | [
-76,
-4,
-8,
-84,
-104,
-32,
120,
58,
-37,
-31,
-89,
-45,
-23,
-32,
-116,
101,
-13,
73,
-15,
26,
-107,
-89,
23,
34,
-42,
-69,
83,
-43,
-71,
93,
-10,
-2,
76,
40,
-118,
-43,
-122,
64,
-123,
-36,
-22,
13,
59,
-28,
-35,
81,
52,
59,
98,
71,
65,
-105,
-13,
40,
17,
75,
77,
44,
-21,
-87,
-46,
49,
-118,
31,
126,
19,
49,
100,
-102,
5,
106,
14,
-112,
17,
0,
-24,
115,
-90,
-122,
116,
45,
-119,
0,
98,
103,
24,
1,
-17,
-20,
24,
38,
116,
-97,
-90,
-74,
121,
43,
9,
-65,
-99,
125,
0,
-121,
122,
-18,
-43,
93,
108,
3,
-113,
-108,
-91,
-83,
96,
-103,
-125,
-26,
3,
-76,
80,
-49,
-86,
85,
70,
56,
59,
-114,
-34
] |
Holt, J.
This is an appeal by six motor carriers from a judgment of the Pulaski county circuit court affirming an order of the Arkansas Corporation Commission fixing, prescribing and publishing certain rates applicable to truckload movements by common motor carrier truck lines, of specific commodities, over irregular routes, in Arkansas, intrastate, and from the additional order of the Circuit Court.
The order of the Commission, which was made November 22, 1941, included this finding: “No evidence of probative value was introduced in the record by carrier witnesses upon which this Commission could conclude that operating conditions applicable to motor carriers in Arkansas differ with those applicable to similar carriers in Missouri ...” and that the Commission “concludes upon the record that it is justified in ordering effective for application on intrastate traffic between points in Arkansas via all motor common carriers the scale of class rates prescribed by the Missouri Public Service Commission in its Case No. 8397 decided March 5, 1935, including supplemental orders therein, effective as on the date hereof, the Missouri rates referred to being those in effect on the date hereof,” with an order in accordance therewith, and providing further that the order shall remain in effect- for a test period of six months from December 1, 1941, during which period the motor common carriers herein involved shall keep complete records specifically applicable to the traffic referred to, and submit reports to the Commission at the end of each month after the effective date of the rates.
On appeal the Circuit Court affirmed the order of the Commission and in addition adjudged that “This order shall remain in effect for a test period of six months from May 1, 1942, during which period the motor common carriers herein involved shall keep complete records specifically applicable to the traffic herein referred to, such records to include commodities, weight, origin, destination, and revenue, and the costs allocated specifically to the character of traffic involved; these records to be kept in such form as may be submitted to the Commis sion in appropriate report as early as possible after the end of each month after the effective date of the rates.”
Appellants’ assignments for reversal here may be summed up as follows: (1) they contend that the Corporation Commission was without power on its own motion to initiate and prescribe the rates in question here, applicable to truckload movements by common carrier truck lines, and in any event it could "not establish these rates without at the same. time establishing minimum rates for contract' carriers; and (2) that the Commission’s order fixing the rates was arbitrary and without sufficient evidence to support it, is invalid, and that the judgment of the Circuit Court should be reversed.
It is conceded that the rates in question here affect only truckload movements over common carrier truck lines in Arkansas; that the Commission made no order affecting contract carriers when the present order was made, and that there was no order in effect at the time in general affecting truckload movements of common carrier truck lines.
1.
We proceed now to the consideration of appellant’s first assignment.
•Since the adoption of the Constitution of 1874, it has clearly been the State’s policy to regulate transportation agencies. Section 1 of art. 17 provides that “all railroads, canals and turnpikes shall be public highways” and § 3 provides: “all individuals, associations, and corporations shall have equal right to have persons and property transported over railroads, canals, and turnpikes, and no undue, or unreasonable discrimination shall be made in charges for, or in facilities for transportation of freight.” Amendment No. 2 to the constitution, adopted January 13, 1899, provides: “The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and passengers, and shall provide for enforcing such laws by adequate penalties and forfeitures, and shall provide for the creation of snch authority as shall he necessary tó carry into effect the powers hereby conferred.”
Following these constitutional mandates, the Legislature of 1921 passed Act 124, § 6 of which (Pope’s Dig., § 2005), provides: “The Commission (now Corporation Commission) shall have the power, after reasonable notice, and after full and complete hearing, to enforce, originate, and establish, modify, change, adjust and promulgate tariffs, rates, joint rates, tolls and schedules, for all public service corporations, companies, and utilities, and all rules and regulations with reference thereto, and orders directing the performance of any duties devolving on said company, utility, common carrier, or public service corporation under the terms of this Act.’’
The General Assembly of 1929 enacted Act 62, called the “Motor Yehicle Act,” and § 4 thereof (§ 2026, Pope’s Digest) contains this provision: “The Commission (now Corporation Commission) is hereby vested with power and authority to supervise and regulate every motor vehicle carrier doing business in the state to fix or approve the rates, fares, charges, also classification, rules and regulations for every motor vehicle carrier.”
The Legislature of 1941 pased Act 367, § 17, par. (a) of which provides: “Whenever an applicable tariff has not already been prescribed by the Commission, every common carrier by motor vehicle shall file with the Commission, etc.” and paragraph (d) of this same section provides: “No common carrier by motor vehicle, unless otherwise provided by this Act, shall engage in the transportation of passengers or property, unless the rates, fares, and charges upon which the same are transported by said carrier have been prescribed, or filed and published in accordance with the provisions of this Act.”
The above legislative enactments were in full force and effect when the Commission’s order in question here was made. We find nothing in Act 367 of 1941 in conflict with previous enactments, supra, of the Legislature which we think clearly authorized the Corporation Com mission to originate, establish and promulgate the rates in question here. Act 367 must be construed as cumulative of the provisions of former acts when the act contains no specific repealing clause. We think it was the clear intention of the lawmakers in the progress of its legislative enactments to give to the Corporation Commission just such power as it has exercised here, and that the Commission has such power. To hold otherwise, it seems to us, would materially tie the hands of the Commission and seriously affect its usefulness.
Appellant’s contention that the Commission was required to establish minimum rates affecting contract carriers at the same time it fixed, established and put into effect the rates affecting truckload movements by common carrier truck lines is untenable for the reason that we find nothing in Act 367 of 1941 or any other legislation on the subject requiring it to do so. While it might have done so, it was not -required to do so.
2.
Was the order of the Corporation Commission arbitrary and without evidence to support it? We do not think it was. The record before us reflects that on May 21, 1941, the Arkansas Corporation Commission on its own initiative gave notice for hearing “In Re: Rates of Common Carriers of Specific Commodities over Irregular Routes” and stated it would consider the propriety of requiring all carriers of specific commodities' over irregular routes to file a uniform tariff. The hearing was to be had June 6,1941. At the hearing on June 6 the matter was continued to July 8, 1941. Under date of June 17, 1941, the Commission issued an additional notice broadening the scope of the case and styling it “In Re: Rates of Common Carriers of .Special Commodities over Irregular Routes and Establishment of Truck Load Rates for all Common Carriers -by Motor Vehicle.” The notice states that the question and propriety of the Commission establishing and publishing truck load rates to apply to all commodities in Arkansas by motor carrier vehicles would be considered at a hearing July 8. There was also this statement in the notice: “By reason of the fact that common carriers by motor of property in Arkansas do not file animal reports, the Commission is unable to ascertain at this time the cost of service as a whole and inasmuch as it appears that the Public Service Commission of the State of Missouri has conducted a very intensive investigation as to cost of operation of motor carriers of property in Missouri, and the Arkansas Corporation Commission concluding that the cost in Missouri closely approximates the cost of service in Arkansas, and realizing that rates should be based upon the cost of service, plus an amount to take care of taxes and return on investment in property used and useful in performing the service, concludes that the formula adopted by the Public Service Commission of the State of Missouri, for the prescription of truck load rates in that state, should be used as a guide in prescribing truck load rates in this state, now gives notice that this method of prescribing truck load rates for common carriers of property by motor vehicle in Arkansas will be considered at the hearing now set for Tuesday, July .8,1941.”
June 20 the Commission gave notice of a continuance of the hearing until July 21,1941, and in this notice it informed all motor carriers of its intention to consider for adoption the formula adopted by the Public Service Commission of the State of Missouri for the construction of truck load rates on all commodities, and called upon all interested parties to submit exhibits and data as to the level of the rates to be fixed on any exempted commodities. At this hearing, for the convenience of all interested parties, the Commission distributed in the form of an exhibit “the reflection of what the rates are in Missouri when the formula is applied.”
At this hearing a joint committee composed of J. C. Murray, C. C. Delms, T. E. Wood and Homer J. Conley for the shippers, and A. E. O’Hara, Jack Otterson, Loren Pendergraft, J. M. Williams, Bobert Black and Boscoe Staggs for the truckers was appointed for the purpose of studying the matter of the rates under consideration and to report back to tbe Commission. Subsequently, tbe committee, which was composed of men of high standing and wide information on the rate question involved, adopted and presented to the Commission the following resolution: “Resolved, that truckload rates should be made available on all commodities (subject to exceptions) for intrastate application via common carrier truck lines on Arkansas intrastate traffic! Resolved further: That the Commission be respectfully requested to re-assign this case to a date not earlier than November 1, 1941, at which time it will receive evidence upon which to reach conclusions upon the matter outlined in its notice of June 17, 1941, in these proceedings. Resolved further: That as a result of such hearing the Commission prescribe truckload rates on intrastate truckload traffic generally, except upon such commodities which in its opinion should be exempted. ’ ’
Pursuant to this resolution the Commission gave notice to all interested parties that the matter would be continued to November 3,1941, and that at that time the Commission would consider the propriety of ordering a scale of truck load rates to apply intrastate in Arkansas to all motor common carriers, whether said carriers held certificates to transport specific commodities over irregular routes, or all commodities over regular routes. The notice further stated that in the opinion of the Commission truck load rates should be made available on all commodities for intrastate application via common carrier truck lines in Arkansas.
The Commission also again suggested the adoption of the scale of rates promulgated by the Missouri Publie Service Commission previously set out in the June 17 notice, and gave notice that all interested parties might present to the Commission evidence and argument for or against the proposed rates, and that the proceeding was continued for the purpose of giving all interested parties further opportunity to present evidence and argument as to the level of the truck load rates and the formula to be adopted in prescribing said rates to apply to motor carrier movements in truck load quantities in the State of Arkansas.
At the final hearing on November 3, appellants offered one witness. We think it unnecessary to attempt to abstract the testimony of this witness. It suffices to say, after carefully reviewing it, that we think the Commission and the Circuit Court on appeal were justified in finding that its effect falls far short of showing that the rates fixed and established by the Commission were not just, reasonable and non-discriminatory as affecting appellants, carriers by motor vehicle in truck load quantities. The Circuit Court on appeal heard the cause do novo, on the record presented (§ 2019, Pope’s Digest) before the Commission, and we can not say that its action in affirming the order of the Commission is against the preponderance of the testimony.
It must be borne in mind that the public interest is the primary consideration of the Commission in fixing and establishing just, reasonable and non-discriminatory rates. In fixing these rates, great latitude must be accorded the Commission, and as was said by the court in Texas & N. O. R. Co. v. United States, 10 Fed. Supp. 198: “A court must at the outset indulge the recognized presumption of the law, that public officers will not only do their duty, but that they will perform such duty faithfully. This presumption must be indulged in the absence of proof to the contrary.”
■ In the instant case there was before the Commission, and the court on appeal, the Missouri rates in effect in that state at the time the Commission made the order. The Missouri rates, though originating in 1935, had been adjusted and revised to suit 1941 conditions in that state. There was also before the •Commission the resolution of the joint committee, supra, composed of men with -wide experience and broad knowledge in establishing rates such as we have here, and it appears that this committee, after a thorough investigation, recommended to the Commission “that truck load rates should be made available on all commodities (subject to exceptions) for intrastate application via common carrier truck lines in Arkansas for intrastate traffic.” It appears that the members of this committee were present at the final hearing, but were not questioned by appellants.
There was also before the Commission the annual report of each of the appellants'filed with the Commission in 1941, covering 1940 activities. There was also evidence before the Commission as to truck load revenues by motors at the rates and minimum rates published; a comparison of revenue by car load by rails with the per truck load revenue by motors; earnings by motors at the rates and minimum weights published, a comparison of per car mile earnings and per ton mile earnings, the rail with the per truck mile earnings and per ton mile earnings by motors.
It is apparent from the record presented that the Commission extended to appellants the opportunity to gather and introduce evidence and exhibited a spirit of fairness and thorough cooperation to the end that just, reasonable and non-confiscatory rates might be established. A period of more than six months had elapsed, from the initial notice, till the final hearing, and in the Commission’s order, it will be noted that the rates established were to continue over a trial period of six months, at the end of which time the opportunity would be afforded for readjustments. So, on the whole, we think there was ample evidence before the Commission, .on which to base its findings and order.
The principles announced in the recent case of Potahnick Truck Service, Inc., v. Missouri & Arkansas Transportation Company, 203 Ark. 506, 157 S. W. 2d 512, apply here. In that case this court said: “We said in the case of Missouri Pacific Railroad Company v. Williams, 201 Ark. 895, 148 S. W. 2d 644, that the statute under which this proceeding was had required this court upon appeal to it, to hear the matter de novo, and to render such judgment upon the appeal as appeared to be warranted, and required by the testimony. And so we do, but we cannot ignore the fact appearing in the record before us that a protracted hearing was held, both before the Commission and in the circuit court on appeal, and while the burden was upon petitioner to make the affirmative showing that the public convenience and necessity required the issuance of the permit, that find ing has- been made, and should now be affirmed unless it appears to be contrary to a preponderance of the testimony. We bear chancery appeals de novo, but when we have done so, we affirm the findings of the chancellor on questions of fact unless his findings appear to be contrary to a preponderance of the evidence.”
As has been noted, the Circuit Court on appeal by its judgment affirmed the Commission’s order in every respect except that it continued the trial, or experimental period, during which the rates were to be in effect, for a period of six months beyond May 1, 1942. We think this action of the court clearly within its discretion and was proper in the circumstances here.
Finding no error, the judgment is affirmed. | [
112,
-21,
-16,
109,
10,
66,
18,
-70,
-48,
-55,
-90,
83,
109,
-58,
5,
97,
-81,
29,
-11,
120,
-31,
-73,
85,
99,
67,
-9,
123,
-50,
63,
-39,
36,
-122,
95,
40,
-54,
85,
-90,
64,
-57,
28,
-34,
14,
-7,
101,
89,
-128,
56,
44,
18,
15,
53,
-113,
-5,
44,
24,
-61,
-19,
44,
121,
-96,
-55,
-15,
-6,
-33,
93,
6,
-111,
100,
-104,
5,
-48,
14,
-100,
48,
104,
92,
119,
-90,
-124,
100,
41,
-39,
12,
40,
99,
65,
20,
-49,
-4,
44,
38,
-6,
13,
-122,
-110,
24,
67,
67,
-106,
-107,
86,
82,
14,
-2,
-2,
5,
91,
104,
7,
-113,
-80,
-77,
21,
-31,
-100,
11,
123,
-57,
18,
112,
-56,
-14,
93,
71,
19,
-69,
-122,
-76
] |
Wood, J.
This in an action by the Union Sawmill Company against W. G. Pagan et al., in the Union Chancery Court. The plaintiff alleges that it is the owner and entitled to the southeast quarter of the southeast quarter of section 3, township 18 south, range 13 west, Union County, Arkansas, and it deraigns title from the United States Government to the State of Arkansas, and from the State, through mesne conveyances, to the plaintiff. The plaintiff alleges that the land had at all times been uninclosed and unimproved, and that it and those under whom it holds had paid the taxes regularly and consecutively for each year since 1905. The plaintiff alleged that the defendants were asserting title under a donation deed from the State to Mary McHenry, dated April 12, 1921. The plaintiff alleged that one of the defendants, W. G. Pagan, ivas engaged in cutting timber on the land; that Pagan was insolvent, and that, unless restrained, he would continue to cut the timber, to the great damage of plaintiff. Plaintiff alleged that it had no adequate remedy iat law, and prayed that Pagan be restrained from cutting the timber, and for damages in the sum of $1Q0 for the timber already cut, and that plaintiff’s title be quieted against the defendants, and that all deeds under which defendants claimed be canceled.
The defendants answered, denying .all material allegations of the complaint, and set up that, on June 4, 1885, Mary McHenry, obtained a donation deed from the State of Arkansas to the land mentioned in the complaint, and that she took immediate possession of the land and improved a part thereof, and had continued in the possession thereof until the present time, openly, peaceably, and adversely to all the world. It was also alleged that Pagan and his immediate predecessors in title were solvent, and that they had been damaged by the action of the plaintiff in having a restraining order issued, in the mm. of $500. Defendants prayed for dissolution of the restraining order and for judgment against the plaintiff in the sum of $500, and that the record title in the plaintiff be canceled.
The cause was heard upon the pleading’s, the depositions of the witnesses and record of deeds introduced by agreement of counsel, and also agreement of counsel showing that the taxes on the land in controversy had been regularly paid by the plaintiff and its predecessors in title every year since 1904, except for the year 1923. The court entered a decree dismissing the plaintiff’s complaint for want of equity, and quieting title to the lands in the defendants as against the plaintiff, and dis-' missing the defendants’ prayer for damages against the plaintiff. The plaintiff duly prosecutes this appeal.
1. The appellant proved record title to the land from the United States Government. The land was granted to and selected by the State under act of Con-' gress approved September 4, 1841. The record of deeds shows that the. State deeded the land to J. D. Hostetter, January 22,1904, and by him, through mesne conveyances ' by warranty deed to various parties, the land was con veyed to the appellant on January 22, 1906. True, there was introduced in evidence at the trial .of this cause a duplicate donation deed, showing that the lands were deeded by the Commissioner .of State Lands to Mary McHenry, on June 4, 1885, which deed recited that the lands were forfeited to the State for the nonpayment of taxes for the year 1878. But it appears from the record of deeds in evidence that, at the time of this alleged forfeiture, the title to the land was still in the State of Arkansas. The first evidence of any conveyance from the State was. the patent to J. D. Hostetter on January '27, 1904.
In Brinneman v. Scholem, 95 Ark. 65, 128 S. W. 584, we held (quoting syllabus): “A donation deed purporting to convey land as having forfeited to the State for taxes is ineffective to convey any title where, at the time of the alleged forfeiture, the land was not subject to taxation, being property of the State.” It follows that the appellant had legal record title to the land, and that Mary McHenry and those claiming under her acquired no title to the land by virtue of the donation, deed to her of June 4, 1885.
2. The next question is, did Mary McHenry and those claiming title under her to the land in controversy acquire title thereto by adverse possession thereof under the seven-year statute of limitations!? A decided preponderance of the evidence — indeed, practically the undisputed testimony — shows that the tract of land in controversy is unimproved and uninclosed. This forty-acre tract is in section 3, township 18 south, range 13 west; it was embraced in the donation deed to Mary McHenry, together with the south one-half of the southwest quarter of section 2, being eighty acres, in the same township and range. It is stipulated by the parties to the record that the taxes on the lands in controversy have been paid by the appellant each and every year since 1905, with the exception of the year 1923. The lands in controversy being unimproved and uninclosed, the appellant acquired title thereto by such payment of taxes. Section 6934, C. & M. Digest; Fenton v. Collum, 104 Ark. 624, 150 S. W. 140, and oases there cited.
Bnt it is the contention of the appellees that, inasmuch as they entered on, and, for more than seven years, were in actual, open, continuous, and adverse possession of u part of the east eighty-in section 2, adjoining the land in controversy, under the donation deed of 1885, this would give them title by constructive adverse possession to all of the east eighty as well as the land in controversy in section 3.
To sustain their contention the appellees cite the recent caisie of Moore v. McHenry, 167 Ark. 483, 268 S. W. 858, in which the title to the eighty acres in section 2 under this same donation deed was involved. But the decision and opinion in that case, as we construe it, has no application to the facts of this record. The decision in that case, as shown fejr the pleadings and testimony adduced by the respective parties, turned upon the issue as to whether or not the plaintiffs in that case acquired title by adverse possession to the eighty acres of land under the seven-year statute of limitations. The plaintiffs in that case claimed, and proved to the satisfaction of the jury, that they entered into possession of a part of the eighty-acre tract of. land in controversy under the donation deed to Mary McHenry, and had occupied and improved the same, and continuously held open, exclusive and adverse possession- thereof for a period of more than seven years, Avhich gave them title to the entire eighty ¡acres. But there was no allegation in that case, and no proof that defendants had paid the taxes on the land consecutively and continuously for seven years, and that the lands in controversy in that case were uninclosed and unimproved. That issue was not raised. In that case we held that the donation deed to Mary McHenry was color of title for' the purpose of marking the boundaries of the lands claimed and occupied by her and her heirs. The jury found, upon sufficient proof, as we have stated, that a part of the land in controversy had been in adverse possession of the plaintiffs (appellees in that case) for a period of seven years. But in the case at bar, as we have seen, no part of the land in controversy had been actually occupied by the appellees. On the contrary, the entire tract of forty acres in controversy ivas unimproved and uninclosed land, to Avhich the appellant had acquired legal title by deeds of record, and also on AAThich the appellant had paid the taxes continuously each year for more than seven years.
In Moore v. McHenry, supra, we reannounced the doctrine of many former cases that, ‘Svhere adverse possession is entered under color of title, the grantee in the instrument constituting color of title aat.11 be deemed in constructive possession of the entire body of land described in the instrument, if in the actual possession of any part, thereof.” See also Thornton v. McDonald, 167 Ark. 114, 266 S. W. 946, and oases there cited at page 118, 266 S. W. 947. The doctrine of these cases has no application here, because of the difference in the facts. The appellees here, with only color of title, seek to acquire title by constructive adverse possession against the true OAATier of uninclosed and unimproved lands, who has continuously paid the taxes thereon each year since the time of his purchase thereof for more than seven years. The doctrine applicable here is that the true owner of aatM and unimproved lands, Avho has continuously paid taxes thereon from the time he acquired title thereto and for more than seven years in succession, cannot be defeated of his title and right to the actual possession olhis lands by one who merely claims title thereto under color of title and by only a constructive adverse possession. The general rule is that constructive possession folloAvs the title, and can only be overcome or defeated by an actual possession adverse, thereto. Gates v. Kelsey, 57 Ark. 523-528, 22 S. W. 162; Haggart v. Ranney, 73 Ark. 344-354, 84 S. W. 703; Watts v. Moore, 89 Ark. 19-22, 115 S. W. 931; Arnold v. Abeles & Co., 98 Ark. 367, 135 S. W. 833; Smith v. Boynton Land & Lumber Co., 131 Ark. 22, 198 S. W. 107. Furthermore, since the land was unincloised and unimproved when Hos tetter acquired the legal title from the State and began paying taxes thereon, and continued the payment thereof for seven years in succession, this, of itsielf, was constructive possession and eviction of all who claim title by constructive possession of the land. For, under the plain terms of § 6943, C. & M. Digest, “unimproved and uninclosed land shall be deemed and held to be in the possession of the person who pays the taxes thereon, if he have color of title thereto,” etc.
In Towson v. Denson, 74 Ark. 302-305, 86 S. W. 661, 662, construing this statute, we said:
“When the Legislature said that, as to the taxpayer under color of title who paid taxes on unimproved and uninclosed land, such payment should legally constitute possession of such land, it is not reasonable to suppose that they meant anything different from what they declared,” etc.
In Paragould Abstract & Real Estate Co. v. Coffin, 100 Ark. 582, 140 S. W. 730, L. R. A. 1915B, 1006, quoting from Updegraff v. Marked Tree Lbr. Co., 83 Ark. 159, 103 S. W. 606, we said:
“It will be observed that the act merely declares that the person who pays the taxes on unimproved and uninclosed lands shall he deemed to be in possession thereof if he have color of title. The statute does not undertake to fix the period of limitation, but merely declares the continuous payment of taxes under color of title to be possession, and leaves the general statute of limitations applicable thereto. The only proviso or condition in the act is that the person who pays the taxes, before he can claim the benefits thereof, must have paid at least seven years in succession, three of which must have been since the passage of the statute. It follows from this that, where lands continue to be unimproved and uninclosed, and seven successive payments of taxes have been made, the possession continues and becomes complete, unless the possession be broken by adverse entry or by commencement of an action before expiration of tlie seven-year period from tlie date of the first payment. By such payment of taxes under color of title appellee acquired a valid title thereto, as against appellants and all others, as has often been held by this court; (citing cases).”
See also Smith v. Boynton Land & Lbr. Co. supra, where we said:
“In the case of Seldom v. Dudley E. Jones Co., 74 Ark. 348, 85 S. W. 778, Mr. Chief Justice Hill, in rendering the opinion, said: ‘The general rule is that, to charge a person on a warranty, eviction must be alleged. But, where the land is wild and unimproved, as in this case, actual eviction is not necessary. The possession follows the legal title, and a paramount title carries possession with it, amounting to constructive eviction’.”
It follows therefore that, under the law applicable to the facts of this record, the appellees have no title or right to possession of the lands in controversy. The decree is therefore reversed, and the cause is remanded, with directions to grant the prayer of appellant’s complaint. | [
22,
110,
-8,
28,
8,
-32,
34,
26,
83,
-47,
-92,
87,
-17,
-71,
9,
61,
-93,
125,
113,
106,
-58,
-78,
19,
46,
-14,
-109,
-7,
-59,
-72,
76,
-28,
-42,
78,
48,
74,
-107,
-62,
-64,
-51,
28,
14,
0,
-87,
108,
83,
64,
60,
-81,
64,
75,
113,
-74,
-5,
41,
60,
75,
109,
46,
109,
8,
80,
-70,
-72,
95,
125,
22,
33,
6,
-120,
-111,
72,
-4,
-112,
53,
4,
-24,
115,
-74,
-106,
117,
5,
-99,
9,
102,
102,
35,
-67,
-17,
-48,
-104,
38,
54,
-103,
-90,
-64,
40,
3,
8,
-68,
-108,
95,
16,
70,
126,
-96,
-115,
28,
104,
-125,
-113,
-10,
-91,
23,
-88,
-100,
19,
-17,
47,
54,
81,
-51,
99,
93,
7,
50,
-101,
-113,
-15
] |
Humphreys, J.
This suit was brought by appellee in the circuit court of Madison county, Arkansas, against appellant to recover $1,183, with interest from June 15, 1940, at the rate of six per cent, per annum on three county warrants, Nos. 2203, 2207, and 2261, issued against the county road turn-back fund in payment of machinery sold by appellant to Madison county, which warrants were sold, indorsed and delivered by appellant to appellee for the amount sued for; and to recover $693.29, with interest at six per cent, per annum from June 15, 1940, on two county warrants, Nos. 2226 and 2313, issued against the county road turn-back fund in payment of machinery sold by appellant to appellee for the amount sued for, which warrants were- sold and delivered without indorsement by appellant to appellee.
The first three warrants were set out verbatim with the indorsements in count number 1 and the other two warrants were set out verbatim in the second count of the complaint. The warrants on their face were payable to bearer and nothing on their face appeared to show that they were void or invalid. The complaint alleged that after the warrants were sold and delivered by appellant to appellee the county court canceled the warrants because they were issued in violation of Amendment No. 10 to the Constitution in that funds against which thej were issued in 1940 had already been exhausted when the claims for the warrants were filed and the orders issuing them were void; that-the order of the county court canceling thé warrants for that reason was rightfully made.
The complaint also alleged that the warrants were negotiable. This allegation of the complaint, however, was abandoned in the trial of the cause.
The complaint also alleged that the warrants could not be collected by suit against the county on account of their invalidity.
The complaint also allegue! that appellee paid appellant when the first three warrants were delivered to it on June 15, 1940, $1,183 in cash, and that it paid appellant $693.29 in cash for the other two warrants.
The complaint also alleged that appellee .demanded a return of its money and offered to return the warrants to appellant.
A demurrer was filed to the complaint on the ground that it did not state sufficient facts to constitute a cause of action against appellant.
The court overruled the demurrer to the complaint over the objection and exception of appellant, and appellant refusing to plead further and electing to stand on its demurrer, the court rendered judgment upon the first count in the complaint against appellant for the sum. of $1,183, with interest from June 15, 1940, .at six per cent, per annum, and on the second count the sum of $693.29, with interest from June 15, 1940, at six per cent, per annum, and for all costs expended by appellee.
To the ruling of the court in overruling the demurrer and rendering judgment in favor of appellee, the appellant excepted and prayed an appeal to this court.
No testimony was taken in the case so the only question involved in this appeal is whether appellee was entitled to recover the amount it paid appellant for the void warrants.
In the cases of Harriman National Bank v. Pope County, 173 Ark. 243, 292 S. W. 379, and McGregor v. Miller, 173 Ark. 459, 293 S. W. 30, this court ruled that county warrants were not negotiable instruments in the sense of the law merchant, and that persons acquiring them take them with notice of the purpose for which they were issued and the order of the county court authorizing their issuance, but the suit in the instant case is predicated upon the sale and delivery of the void or invalid warrants which constituted no consideration at all for the money paid for them. In other words, appellee is asking that the money be refunded to it which it actually paid to appellant for worthless warrants. It is asking for a refund of the money it paid for three of the warrants not only because appellant sold and delivered them to it, but also indorsed them- to it which was an absolute warranty by appellant that its title to them was good, and that they were genuine and that there was no -legal defense to the collection of them growing out of its connection with the origin of the warrants; and for a refund of the money paid for the other two warrants on the sale and delivery of them to it under the implied warranty that its title to them was good, that they were genuine and that no legal defense existed to the collection growing out of its own connection with the origin of the warrants. Appellee paid out about $2,000 in cash in the purchase of the warrants, and there is nothing in the record indicating that either appellant or appellee knew that they were void or had any reason to suspect from the face of the warrants that they were invalid. It is conceded by the demurrer that the warrants were absolutely void and nothing could be recovered by appellant or appellee from Madison county. Appellant is responsible for their being issued and appellee had nothing whatever to do with them being issued and is not responsible in any sense for their being issued.
The general rule is laid down in § 250, 20 C. J. S., at p. 1148, as follows: “Where there is a failure of consideration for the transfer because of invalidity of the warrant or other reasons, the assignee may recover from the assignor. ’ ’
In the case of Sarah Rogers v. Walsh & Putnam, 12 Nebr. 28, 10 N. W. 467, the Supreme Court had before it the exact question involved in the instant case and decided (quoting the syllabus) as follows:
“The plaintiff honght of the defendants what she supposed were, and what purported to be, the warrants of York county, but which having been issued by the county commissioners of that county, without authority of law, were void and of no value. Action to recover the price paid. Held, that the pretended warrants were not a valid consideration for the money paid therefor, and that the plaintiff was entitled to recover it back. ’ ’
See, also, the case of Kreutz v. Livingston, et al., 15 Cal. 344. The identical question involved in the instant case was involved in the case of Milner v. Pelham, 30 Idaho 594, 166 Pac. 574, and that court ruled, as reflected: in syllabi 1 and 2, as follows: “1. Where one purchases county warrants from the payee thereof, which warrant issue is thereafter held by the district' court, in a proper action, to be null and void, and the county treasurer enjoined from paying the same, and the order of the county commissioners, directing the auditor to issue the warrants, is reversed and vacated, there is a total failure of consideration from the seller of such warrants, since the purchaser did not in fact receive the county warrants he supposed he was buying, but only pieces of worthless paper.
“2. Whenever one party has in his possession money which in equity and good conscience belongs to another, the law raises a promise upon the part of the first party to repay such money.”
The warrants in the instant case appeared on their face to be valid obligations of Madison county, but were-in fact void at the time they were issued and for that reason appellee received nothing of value for the money it paid to appellant for the warrants, hence appellee is entitled to recover from appellant the money it paid for the worthless warrants.
No error appearing, the judgment is affirmed.
Mr. Justice G-reenhaw disqualified and not participating. | [
48,
101,
-16,
92,
10,
64,
8,
-118,
-46,
-71,
102,
-45,
-23,
70,
16,
121,
-30,
29,
117,
105,
-29,
-74,
83,
98,
82,
-77,
-23,
-43,
52,
79,
-20,
-106,
92,
61,
-54,
25,
68,
-48,
-17,
92,
-18,
33,
25,
109,
89,
-48,
56,
-83,
54,
11,
113,
-82,
-30,
46,
20,
75,
105,
44,
-21,
-85,
-55,
82,
-70,
-59,
29,
6,
17,
71,
-104,
65,
120,
60,
-128,
49,
0,
-88,
114,
-90,
-126,
116,
67,
-99,
40,
102,
98,
18,
-91,
-17,
-68,
-88,
6,
-66,
-99,
-90,
-118,
104,
75,
97,
-74,
-99,
120,
-110,
7,
-2,
105,
5,
95,
108,
15,
-49,
-112,
-125,
-113,
52,
-100,
27,
-17,
55,
116,
113,
-49,
-30,
93,
71,
17,
-101,
-122,
-13
] |
Hart, C. J.,
(after stating the facts). In Singer v. Naron, 99 Ark. 446, 138 S. W. 958, it was held that, in order for the possession of a tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. The reason is that the possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, ■for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be brought home to them directly or by such acts that notice may be presumed. Oliver v. Howie, 170 Ark. 758, 281 S. W. 17, and Bowers v. Rightsell, 173 Ark. 788, 294 S. W. 21. Tested by this well-settled principle of law, we do not think it can be said that the finding of the chancellor is against the preponderance of the evidence.
The record shows that J. R. Hardin died owning the land, leaving his widow and three children. By some sort of family arrangement, a grandson of J. R. Hardin was put in possession of the land in order to help support his grandmother. He lived with her and supported her, so far as the record discloses, until she died, a few years thereafter. His mother, who owned a one-third interest in the land, conveyed her interest to him, and a child of a sister of his mother conveyed her one-ninth interest to him, so that he became the owner of a four-ninths interest. After his mother died he conveyed his interest to the appellee. None of the other heirs paid any part of the taxes on the land or asserted ownership in it in any way. They' knew that their mother had died and that there was no occasion for the grandson to longer remain in the possession of the land for her benefit. They permitted the land to forfeit for taxes in 1908, after their mother had died. Appellee went into possession of the land in November, 1909, and claimed it as his own until this suit was brought,.in June, 1926. During all this time appellants made no effort to redeem the land from the tax sale or to assert any rights in it. It is inferable from the record that they knew that F. M. Hardin had conveyed the land to some one, and that his grantee was in possession of it. Under these .circumstances we think the chancellor was justified in finding as a fact. that appellee had acquired title to the land by adverse possession.
The decree will therefore be affirmed. | [
-13,
110,
-36,
60,
74,
96,
42,
-102,
99,
-113,
39,
83,
111,
-46,
80,
47,
-9,
43,
81,
107,
68,
-77,
22,
3,
-48,
-5,
-47,
-43,
-65,
77,
103,
-44,
12,
48,
-118,
117,
-26,
2,
-59,
-108,
14,
4,
-120,
101,
-39,
0,
52,
109,
86,
75,
1,
-97,
-13,
46,
57,
-27,
72,
46,
-84,
53,
-16,
-32,
-66,
4,
123,
19,
17,
4,
-104,
-27,
72,
10,
-120,
25,
9,
-84,
51,
-74,
-122,
52,
31,
9,
9,
34,
99,
16,
5,
-5,
-80,
24,
46,
-58,
31,
-89,
-106,
88,
10,
41,
-73,
-99,
125,
4,
-57,
-8,
-26,
-107,
93,
40,
17,
-49,
-42,
-79,
9,
-24,
-102,
3,
-5,
3,
49,
113,
-52,
-94,
84,
71,
114,
-101,
-124,
-34
] |
Hart, C. J.,
(after stating the facts). This is the second appeal in the case. The opinion on the former appeal will be found in 169 Ark. 62, 272 S. W. 893, under the style of Cook v. Jeffett. On that appeal, in the construction of our statute relating to the revocation and alteration of wills, it was held that a will can be revoked in whole or in part by cancellation or obliteration. It was held that the words ‘ ‘ to cancel ’ ’ and ‘ ‘ to obliterate ’ mean practically the same thing, and that, where the whole or a part of the clause of :a will is crossed out, the will i's canceled or obliterated, although the words crossed out may be legible. The effect of that opinion was to hold that, if that which is essential-to the validity of the whole will is canceled or obliterated with the intention of revoking it, the whole will is revoked. On the other hand, if a clause or a part of a clause is so canceled or obliterated as not to affect the rest of the will, then that clause or part of a clause only is revoked. In other words, upon the former appeal we held that the power to revoke a will given by the statute includes the power to revoke any part of it by cancellation or obliteration, and that, when such cancellation or obliteration of a part of a will does not affect tlie remainder thereof, such cancellation or obliteration is only effective as to such parts.
The opinion upon the former appeal, under our rules of practice, becomes the law of the case, and, in the application of the principles there decided, we are of the opinion that counsel for appellant are correct in their contention that the court erred in giving instruction No. E-l, which reads as follows:
“You are instructed that, should your verdict be against the probation and establishing of the will executed by Mrs. Nannie L. Jeffett on the 2d day of November, 1920, for any cause, then your verdict will be to probate and establish the one executed by her on the 17th day of July, 1917, as her last will and testament, provided you further find that the same has been properly and legally executed and authenticated by her, and provided you further find that said will has not been revoked by her by being canceled, obliterated or destroyed for the purpose of revoking the same by the testatrix herself, or by some other person in her presence and by her direction and consent.”
There is no fact in the record from which the jury might legally infer that the testatrix intended to revoke her whole will by canceling item 2 in whole and item 4 in part. As indicated in our statement of facts, the whole of item 2 was marked out by running a pencil through each word and figure therein, but this was not done in such a way as to render the typewriting illegible. Again, in item 4 of the will, the legatees named therein were marked out by running a pencil mark through their names, but the rest of the item was not in any way changed; and the words were not crossed out in such a way as to indicate that the testatrix intended to revoke any other part of the will than the two clauses in which the pencil was run through the words contained therein, as indicated above. It may be that the testatrix did not intend to cancel either one of the clauses of the will, and only marked out the words in the one in whole and in the other in part with the view of subsequently chang ing her will, and that she died without doing so. Be that as it may, the manner in which these clauses were canceled, by running a pencil through the words contained in them, plainly shows that the testatrix did not intend by the cancellation of such part of the will to revoke the remainder of it. Hence the court erred in submitting to the .jury the question of the revocation of the whole will by the proof presented in'the record.
Undoubtedly, as above indicated, a testator might revoke his whole will by marking out a material part thereof in such a way as to indicate that his purpose was to revoke the whole will, although it might leave it as legible as it was before. We do mean to say, however, that the manner of marking out or crossing out the clauses of the will in question, when we consider this clause in connection with the rest of the will, plainly shows that it was the intention of the testatrix only to revoke her wjll in so far as these two clauses were concerned, and this left the rest of the will as it was before. Under the facts as disclosed by the record, it was entitled to probate after the death of the testatrix, and the circuit court erred' in submitting to the jury the question of whether the testatrix intended to revoke her whole will.
No appeal was taken from that part of the judgment of the circuit court which held that the will executed of the date of November 2, 1920, was void and of no effect. It follows that that will passes out of the case, and the judgment of the circuit court holding it void remains as a judgment of the circuit court unappealed from.
The result of our views is that the judgment of the circuit court holding void the will executed July 17, 1917, must. be reversed, because the court erred in . giving instruction E-l over the objection of appellant, and the cause will be remanded. Inasmuch as the facts on this appeal with regard to the cancellation of the will of July 17,1917, are practically the same as the facts stated upon the former appeal, it appears that the facts have been fully developed, and no useful purpose could be served by remanding the casó for a new triál. The dr cuit court will therefore be directed to render judgment admitting the will of July 17, 1917, to probate, and to certify its judgment down to the probate court for further proceedings according to law and not inconsistent with this opinion. It is so ordered. | [
-78,
125,
-40,
12,
74,
96,
-117,
-103,
-46,
-127,
-77,
83,
47,
-48,
20,
123,
-9,
125,
-47,
104,
85,
-77,
23,
-128,
-10,
-45,
-47,
-43,
-71,
78,
-26,
127,
76,
96,
10,
-35,
102,
-117,
-63,
-8,
12,
21,
-120,
-23,
81,
82,
48,
43,
112,
31,
-59,
-102,
-13,
42,
31,
-58,
-24,
110,
123,
44,
84,
-72,
-84,
-123,
127,
1,
-80,
39,
-108,
-89,
-40,
-93,
28,
57,
1,
-24,
115,
-74,
-122,
84,
79,
27,
40,
114,
118,
-64,
96,
-25,
-100,
-120,
47,
110,
-67,
-94,
-112,
25,
9,
97,
-76,
-39,
113,
20,
47,
-2,
-26,
-43,
28,
-88,
88,
-53,
-108,
-77,
25,
124,
-72,
11,
-6,
-111,
37,
113,
-56,
-86,
93,
-57,
61,
-101,
-113,
-5
] |
Mehaffy, J.
The appellee,. Fort Smith Body Company, engaged in the manufacture and sale of bodies for automobiles and trucks, etc., in the city of Fort Smith, Arkansas, brought suit in the Sebastian Circuit Court against the appellant, Western Union Telegraph Company, alleging that the Knapp Motor Company of Donna, Texas, sent a wire to appellee’s agent, George F. Hall, at San Antonio, Texas. The following is a copy of the telegram sent:
“Ship rush freight twelve special wide express with stock rack open cab and windshield and six open cabs and windshields only at same price terms and so forth as stipulated in our order dated May nineteen your number ten five one. Stop. Wire acceptance. Signed, Knapp Motor Company.”
The message was addressed to George F. Hall, San Antonio, Texas. The appellant, in transmitting the message from Donna, Texas, to San Antonio, changed the letter “y” to the letter “f” in the eighth word .from the .end, making it read “four” instead of “your,” so that, when George F. Hall received it at San Antonio, Texas, it read as follows: “Ship rush freight twelve special wide express with stock rack .open cab and windshield and six open cabs and windshields only at same price terms and so forth as stipulated in our order dated May nineteen four number ten five one. Stop. Wire acceptance. Signed, Knapp Motor Company.”
. Hall sent the massage from San Antonio, Texas, to Port Smith, Arkansas, addressed to the Fort Smith Body Company, as it was received by him, but not the message that was sent by the Knapp Motor Company. In other words, the Western Union Telegraph Company, in transmitting the message to Hall, changed the letter “y” to the letter “f,” and made it read “'four” instead of “your,” and it was received by Hall and transmitted to the Fort Smith Body Company just as the Western Union Telegraph Company had transmitted to Hall from the Knapp Motor Company.
The Fort Smith Body Company, on receipt of the telegram, telegraphed Hall as follows: “We do not understand the last sixteen words of your telegram of the twenty-seventh. Please explain more fully.”
Hall then wired the Fort Smith Body Company as follows: “Wants twelve three in one jobs complete six extra cabs also four number ten and five number one at former prices terms.”
The Fort Smith Body Company thereupon began the manufacture of the articles and shipped them to the Knapp Motor Company on August 8. On July 28 Hall wrote the Knapp Motor Company at Donna, Texas, telling them, what he had done and what he had ordered. The Knapp Motor Company, on July 30, wrote the following letter to Hall at San Antonio, Texas:
‘ ‘ Our telegram calls for 1.3 of the ‘ 3 in 1 ’ and- 6 extra cabs at same price, terms and guaranteed freight rate, as previous carload we bought from you. We do not want the other bodies you mention in your letter dated July 28.
“Kindly acknowledge acceptance of this order and when shipment will go forward by wire at once.
“Yours very truly,
“Knapp Motor Company.”
Hall denied receiving the letter above set out.
The plaintiff asked for freight in transmission on the articles eroneously sent, because of defendant’s errors, $143.06; return freight on same articles $151.04; telegrams caused by the error of the defendant relating to said shipments, $16.71; demurrage on the shipment due to defendant’s negligence, $13.00. It also asked damages in the following sums:
“Loss of use of the articles shipped during the time they were detained away from the plaintiff .........................................................................................................:...........$50.00
“Loss of profits in loss of opportunity to sell said articles during the time that they were out of the possession of the plaintiff by reason of defendant’s negligence ............................................................ 50.00
“Damage to the articles which were shipped by reason of the transportation to and from the point of destination ......................................................... 40.00
“Making a total damage claimed by the plaintiff of....................................................................................................................$463.81
. The defendant answered, denying liability, and alleg ing the proximate .canse of the damage was Hall’s negligence in attempting to construe the telegram which he received from the Knapp Motor Company, when the appellee was unable to-determine what it -meant, and then permitting the goods to be shipped without confirmation.
Second, it contended that it was not liable to the Fort Smith Body Company on a mistake in the original message from the Knapp Motor Company, because the Fort Smith Body Company is the undisclosed principal of the sendee of that -message, and no action can be maintained by the undisclosed principal of a sendee of a telegram.
Third, that the messages were interstate messages, and no claim was presented in writing within 60 days after the messages were filed with the company for transmission.
The jury returned a verdict for $310.81. The verdict was made up of the following items:
Freight transmitting bodies not ordered........................$143.06
Return freight ............................................................................................. 151.04
Cost of telegrams caused by defendant’s negligence ............................................................................................................ 16.71
And found against the plaintiffs on the other items in the complaint.
F. E. -Knapp, manager of the Knapp Motor Company of Donna, Texas, testified that he desired to buy certain bodies and parts for automobile trucks on July 27, 1923; that he delivered to the appellant, Western Union Telegraph Company, at Donna, Texas, a telegram addressed to George F. Hall, and reading as follows: “Ship rush freight twelve special wide express with stock rack open cab and windshield and six open cabs and windshields only at same price terms and so forth, as stipulated in our order dated May nineteenth your number ten five one. Stop. Wire acceptance.”
The message was signed “Knapp Motor Company”; that the bodies which he desired were extra wide, with high side-racks, and that the cabs were open; that the message was sent collect; that, later on, he received the articles ordered in the telegram along with other articles which he did not order; that there were other automobile bodies in the car than those ordered, and that he declined to receive the other bodies, but did accept the goods ordered, and shipped back the other goods; that the matter .had been settled between him and the Fort Smith Body Company. He testified that George F. Hall wrote the Knapp Motor Company a letter, dated July 28, 1923, about this order, and that he answered Hall’s letter on July 30, explained in detail what the telegraphic order called for, and that the Fort Smith Body Company did not call upon the Knapp Motor Company for a confirmation of the order and that Hall did not wire them for confirmation of the order. He testified that his records showed that this shipment was made from Fort Smith on August 8, 1923, and that on July 30, 1923, he had written Hall.'
Hall testified that he was a traveling salesman, and was agent of the Fort Smith Body Company in the year 1923; that .on July 27, 1923, he received in San Antonio a message from the Knapp Motor Company at Donna, and that he immediately transmitfed it in the same' language to the Fort Smith Body 'Company at Fort Smith, Arkansas, by telegram. The telegram has already been set out above. That he immediately received a telegram from the Fort Smith Body Company as follows:
“We do not understand the last sixteen words of your telegram of the twenty-seventh. Please explain more fully.”
And that he then sent the following message to the Fort Smith Body Company:
“Wants twelve three in one jobs complete extra cabs also four number ten and five number one at former price terras.”
Tie testified that in sending the last message he relied upon the message which he had received through the Western Union Telegraph -Company from Donna, and that all messages were sent over the lines of the Western Union Telegraph C-ompany; that he, at the time, was the sales agent of the Fort Smith Body Company in San Antonio, Texas, selling the products of the Fort Smith Body Company generally in Texas; that he -did not change the word “your” to the word “four,” but that the message from Donna, Texas, -came to him with the word “four” used; that he naturally had no knowledge that the original message read “your” instead of “four”; that he did not know that the agent of the Western Union Telegraph Company at San Antonio knew the kind of business that he was transacting, and that it was not generally known in San Antonio that he was representing the Fort Smith Body Company; that he transmitted over the Western Union Telegraph Company to the Fort Smith Body Company at Fort Smith the exact language of the message which he received from Donna. He had been appointed agent of the Fort Smith B'ody Company in writing, but that he was unable to locate the writing; that he received a 10 per cent, commission on all sales made; that, at the -time of receiving the telegram from the Knapp Motor Company, he was not engaged in business for himself, buying and selling automobile bodies, and that he did not act as a broker in receiving the order from the Knapp Motor Company, but that he was the agent of the Fort Smith Body Company. When he received the message from the Fort Smith Body Company, that they did not understand the last sixteen words of his telegram, he sent his answer to the Fort Smith Body -Company, giving the definite number of bodies and cabs that the Knapp Motor Company wanted, without asking the Knapp Motor Company for a confirmation by wire, but undertook to interpret their mes sage himself; that he could not give the name of any agent that handled any of the messages; that the population of San Antonio was more than 168,000 people.
Ben B. Johnston testified that he was president and general manager of the Fort Smith Body Company; had quite a business, extending from the Mississippi River to the Pacific Coast, and that the sales manager received and wrote up the orders; that when the message came from Hall on July 27, Mr. Walker, the sales manager, brought it in to witness, and stated that he did not understand the message; that they read it over together, and neither of them understood it, but that it was not a collect message, and they received it, and he advised Mr. Walker that the thing he had better do was to wire Hall to clarify the message; so they sent a message to Hall, and Hall wired back. The original message has been introduced and marked Exhibit A. The message was not exactly clear to him. The Fort Smith Body Company had previously shipped to the Knapp Motor Company their assemblies No. 10 and assemblies No. 1 in carload lots, and had naturally assumed that they wanted four No. 10 and five No. 1. He testified to the message sent to Hall and as to the receiving of the message from Hall. Upon getting Hall’s last telegram, they shipped-the goods mentioned therein. The day following the shipment they received their first notification that there was anything wrong with the shipment. The railroad company had received the car, and it was gone, and there wasn’t anything else to do but to wait; that the shipment was made on August 8,1923; that between the date of the telegram, July 28, and the 8th of August, there was no knowledge on his part that there was any error in the telegram; that they relied on the telegram given them by the Western Union Telegraph Company from Hall as stating the goods that the Knapp Motor Company wanted; that they acted on that message and made the shipment; that on August 9 they received a wire from Hall as follows: “Knapp wires ordered only sixteens and extra cabs, and will not accept balance. Evidently original order misunderstood by me. Geo. F. Hall.”
At the time of receiving this, the shipment was already on its way; the goods got to Donna, Texas, and they received a notice that the Kaapp Motor Company had refused to receive them, for the reason that there were more bodies in the car than ordered; that they ordered the extra bodies shipped back to Fort Smith; that the extra freight by reason of the error was $143.06 going and $151.04 returning; that they were out $16.71 in telegrams, $13 demurrage; that they were shipped on August 8, and they did not get them back until Sep>tember 11. Hall was the agent of the Fort Smith Body Company; that the date of his first written communication to the Western Union Telegraph Company about this claim was on October 13; tio written claim had been filed within 60 days, but he wrote the Western Union Telegraph Company a letter with reference to the claim on October 13, 1923.
A. W. Avery testified that he was shipping clerk for the Fort Smith Body Company, and that these bodies were shipped to Donna, Texas, on August 8.
Plaintiff introduced, over the objection and exception of the defendant, an assignment from the Knapp Motor Company of any interest it might have in the litigation, and also an assignment of George F. Hall of any interest he might have in the litigation. The assignment was in the usual form, assigning to the Fort Smith Body Company the right to bring and maintain a suit, if need be, for any claim that George F. Hall might have against the Western Union Telegraph Company. The same is true of the Knapp assignment.
Hettie M. Salisbury testified for the appellant that she was the manager and operator of the Western Union Telegraph Company at Donna, Texas; that the original message from the Knapp Motor Company to George F. Hall was transmitted from the Donna office on July 27; that it was a day letter, and sent collect; that it was not a répeated message, and that she personally transmitted the -message; that the message was exactly as TCnapp testified, with the word “your” instead of the word “four” in it; that the message was relayed at Brownsville, Texas, to Sail Antonio.
Fred Ward testified that he was manager of the Western Union Telegraph Company at Font Smith; that the first time that Mr. Johnston of the Fort Smith Body Company .called on him with reference to these telegrams was on October 8; that the first letter written was October 22.
Appellant then introduced the rules, as approved by the Interstate Commerce Commission, with reference to the acceptance and transmission of messages by telegraph. Among other rules is the following: “The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.”
The court thereupon, at the request of the plaintiff, instructed the jury as follows:
“1. If the jury find from the evidence that the plaintiff received from its agent, George F. Hall, the telegram set up in the complaint, and if that telegram was based upon a telegram from the Knapp' Motor Company to George F. Hall,, and if the latter telegram was sent by the defendant, and if said latter telegram was erroneously sent, and if the said telegram-transmitted by the defendant from the Knapp Motor Company to George F. Hall called for different articles from the telegram actually written and delivered to the defendant by the Knapp Motor Company, and if George F. Hall, in sending the telegram to the plaintiff, relied upon the telegram received by him from the Knapp Motor Company as a true telegram; and if George F. Hall sent the telegram to the plaintiff, and if the plaintiff, relying upon the information received in the telegram; shipped different articles other than those ordered by the Knapp Motor Company, then, and in that event, the plaintiff is entitled to recover whatever reasonable damages, if any, it suffered by reason of the error or mistake of the defendant, if there was one, in sending the erroneous telegram from the Knapp Motor Company to George F. Hall.
“2. If you. find for the plaintiff, the plaintiff will be entitled to recover all direct damage resulting from the mistake, or error, or negligence of the defendant, if there was such mistake, error or negligence, including freight on the articles erroneously sent, because of defendant’s errors, if any, and the return freight on said articles, if any, and the extra telegrams caused by the defendant’s error, if any, and the demurrage, if any, due to the defendant’s negligence.”
To the giving of each of said instructions the defendant at the time objected and saved its exceptions.
The court gave the following instructions! at the request of the defendant:
“2. You are instructed that, if you believe that the purchaser of these bodies notified George F. Ha'll, the agent of the Fort Smith Body Company, by letter, that they did not want the extra .bodies, in ample time for the bodies not to have been shipped, your verdict must be for the defendant.
“5. If you believe that, when Hall received the mes-, sage from the plaintiff asking information because Hall’s first message was not clear, and that Hall was negligent in not asking the Knapp Motor Company to confirm its message on July 27, to him, then the plaintiff cannot recover. ’ ’
The court refused to give the following instructions requested by defendants:
“1. You are instructed that, under the law and the evidence, the plaintiff is not entitled to recover, and your verdict must be for the' defendant.
“3. You are instructed that, unless you believe that written claim was filed within sixty days'from the time the message was filed with the defendant, your verdict must be for the defendant.
“4. You are instructed that, unless the plaintiff proves that the defendant actually knew that George F. Hall was the agent of the plaintiff, there can be no recovery in an error in any message sent by the Knapp Motor Company to George F. Hall.”
The court,' on its own motion, gave the following instructions:
“The burden of proof. The court instructs the jury that the buirden of proof is on the plaintiff to establish his case by a preponderance of the testimony, and on the * * * to prove his case by a preponderance of testimony.
“Preponderance of evidence. A preponderance of the evidence means a greater weight of evidence; but this is not to be determined solely by the greater number of witnesses testifying in relation to any particular fact or state of facts. It means that the testimony on the part of the party on whom the buirden rests must have greater weight, in your estimation; have a more convincing effect than that opposed to it. If, in your opinion, the testimony on any essential point is evenly balanced, then the party on whom the burden rests to prove the same by a preponderance of the evidence must be deemed to have failed in regard thereto.”
After the verdict, the defendant filed a motion for a new trial, which was overruled. Defendant saved its exceptions, and has appealed to this court.
Appellant’s first contention is that the court erred in refusing to direct a verdict in its favor at the conclusion of all the evidence, first, because the proximate cause of the damage to appellee was the negligence of Hall, its agent; in attempting to interpret an unintelligible message without ashing the Knapp Motor Company for confirmation.
Appellant first calls attention to the Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L. R. A. (N. S.). 1020. That was an action instituted for the recovery of damages for personal injuries sustained by a child twelve years old, and it was caused by the negligent acts of the defendants. The question in that ease was whether the minor, twelve years of age, was guilty of contributory negligence. The court, however, did not hold that that was a question of law, but it held that it was error for the lower court to give instructions A and B. Instruction number A given told the jury that, i.f a person left fire, or other instrumentality attractive to children, unguarded at a place where children are accustomed to go and play, and a child does go to or near such fire or other dangerous instrumentality attractive to children, and is injured, such child can recover damages from all those concerned in leaving unguarded such fire or other dangerous instrumentality attractive to children. And the court held that the leaving upon the premises of a dangerous object attractive to children does’not alone constitute the act of negligence; the act of negligence consists in leaving such object under such circumstances that one of ordinary prudence might reasonably expect that a child too young to appreciate the danger would be allured to and attracted thereby.
This instruction did not submit to the jury the question of the contributory negligence of the child, and the court said:
“What might be an act of negligence in leaving such an object or element resulting in attracting thereto a child of a few years of age and too young to appreciate the danger therefrom might not be an act of negligence if it should be reasonably expected that only a child of the age and maturity to fully understand and appreciate the danger from such an object or element should go near thereto, because it would not be reasonably anticipated that a child of sufficient maturity and intelligence to appreciate the danger from fire would go to and play with this dangerous element.”
In other words, it was a question of fact that should have been submitted to the jury, whether the negligence of the defendant was the proximate cause of the injury. That is, if it set out fire at a place where children would be attracted, and a child too young to know or appreciate the danger should be burned, the wrongdoer would be 'liable; whereas a person old enough to know and appreciate the danger would be guilty of negligence himself which would disentitle him to recover, notwithstanding the negligence of the person who set out the fire.
The court also held that instruction B was erroneous and should not have been given, and that told the jury if the evidence showed that the proximate cause of the injury to plaintiff was some voluntary act of hers, and not caused by the defendant’s negligence, they should find for the defendant.
Here the court said that, under the circumstances, it became a question of fact for the jury to determine, after taking into consideration the age, intelligence and capacity of the child, as to whether or not she was guilty of contributory negligence. If she was not, then the defendant was liable if it directed her to watch and guard the fire, without giving her proper warning.
In the instant case the question of negligence of Hall was properly submitted to the jury, and the jury’s finding on a question of fact properly submitted to them, cannot be disturbed by this court.
Appellant next calls attention to the case of Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. (N. S.) 905. In that case the Pittsburg Reduction Company was engaged in mining at Bauxite, and it owned lands, houses, machinery, spur-tracks from the railroad, etc., which were near a schoolhouse, and a schoolboy about ten years of age, in going along a path near the spur-track, a place habitually used by the children of the neighborhood in going to and from school, picked up some dynamite caps on his way home from school, and carried them home with him. His father was a employee of the company, and he kept the caps at home for about a week, placing them on the floor, in the presence of his parents. When he would leave the caps on the floor his mother would pick them up. About a week after he found the caps he traded them to Jack Horton, a boy about thirteen years of age, and this boy was picking the dirt out of one with a match, when it exploded and tore up his hand. The court said in that case that the carrying of the caps home and playing with them in the presence of his mother there for a week, her course of conduct broke the causal connection between the negli gent act of the appellant and the subsequent injury of the plaintiff. That it established a new agency.
We do not think the same principle is involved here. Hall received the message from Knapp Motor Company, but the telegraph company had not sent it as it was given to it, and Hall immediately sent the message received by him to the Fort Smith Body Company. It is. said that the appellee, with the exact message before it, refused to act, and' was therefore not damaged by the original negligence of appellant.
It is true that appellee did not undertake to fill the order without communicating with Hall, hut Hall thought that he understood it, and, after receiving a message from him, the Fort Smith Body Company thought that it understood it. Whether it was justified in acting under the circumstances as it did act is a question of fact properly submitted to the jury. In other words, if the Fort Smith Body Company acted in filling the order as ,a person of ordinary prudence would have acted under the circumstances it was not guilty of negligence, and was entitled to recover. If it did something that a person of ordinary prudence would not have done under the circumstances, it could not recover. The negligence charged is the negligence of Hall, and, of course, his negligence, if he was negligent, would be the negligence of the Fort Smith Body Company.
Appellant next calls attention to Manley Manufacturing Co. v. Western Union Telegraph Co., 105 Gra. 235, 31 S. E. 156. Appellant states'that there is no Arkansas, case in point, but that this case is in point. But the court in the Manley Manufacturing Company case submitted the question to the jury, telling them, in substance, that if they believed from the evidence that the message received by Manley was unintelligible and ambiguous, and that a reasonably prudent man wquld not have acted upon it without having it repeated or telegraphing to the sender, plaintiff could not recover, but that if, on the other hand, they believed that a reasonably prudent man would have acted upon it 'without having it repeated, plaintiff could recover.
The court, in discussing the case, states, that it thinks any sort of diligence would have prevented the damage in that case. The court frequently decides cases upholding the verdicts of juries, when, if the question were submitted to the court, it might find the other way. The question in the Manley case was 'Submitted to the jury, and the court did not hold that it should not have been submitted to the jury.
Appellant next calls attention to the case of Western Union Telegraph Company v. Neill, 57 Tex. 283, 44 Am. Rep. 589. The question in that case was whether the company could charge half rate and limit its liability. While the court held that the company could limit its. liability under the circumstances in that case, it said:
“Whether or not telegraph companies should he held as common carriers, with all their common law liabilities, has been the subject of much discussion and conflicting decisions * * *. If the testimony, however, should show that the failure to properly transmit or deliver a message arose from such misconduct, fraud or want of due care, then it might be very seriously questioned, indeed, whether the same reasons of public policy which prohibit exemption from liability on these" grounds would not also prohibit a limitation upon the true amount of damages which should be recovered — telegraphic communication having now become almost a social as well as a commercial necessity, and -the want of competing- lines giving to the companies greatly the vantage ground over the public.”
In Nusbaum v. Western Union Telegraph Co., 42 Leg. Int. (Pa.) 16, the message involved was insensible, substituting the word “ober” for “obey.” As transmitted, it was meaningless.
The message involved in the case of Hart v. Cable Company, 86 N. Y. 633, was held by the court to be main telligible jargon. It did not mean anything.
Appellant sails attention to the rule announced in 37 Cyc. 720, and states that, while the rule is that an undisclosed principal of the sender of a message may recover, and since the .undisclosed principal of the sender may sue, a person may, of course, sue where he is the undisclosed principal of both the sender and the sendee, but it is argued that the action cannot be maintained by one who is the undisclosed principal of the addressee alone. Appellant states that this seems to be the almost universal holding of the various courts of the United States.
In the volume of Cyc. referred to by appellant it is stated: “Since the undisclosed principal of the sender may sue, a person may of course sue where he is the undisclosed principal of both the sender and addressee, but it has been held that the action cannot be maintained by one who is the undisclosed principal of the addressee alone.” 37 Cyc. 1722. From the eases cited to the above section in Cyc. it appears that the authorities are in conflict.
The learned counsel for both the appellant and appellee have cited and discussed many authorities, but it would serve no useful purpose to review them or cite them here. The authorities are in hopeless conflict on most of the questions involved in this case. The proof clearly shows that the appellant was guilty of negligence in changing the word “your” to “four,” and if this change, resulting from the negligence of appellant, caused injury to the appellee, then the appellee was entitled to recover, unless barred by its own contributory negligence. The negligence of the appellant and negligence of appellee were questions of fact to be decided by the jury, and the appellant requested and the court gave the following instruction on the question of the negligence of the agent of appellee: “If you believe that, when TIall received the message from the plaintiff asking for information because HalFs first message was not clear, and that Hall was negligent in not asking the Knapp Motor Company to confirm its message on July 27 to him, then the plaintiff cannot recover.” This instruction correctly submitted to the jury the question of.HálPs negligence. If the message had been meaningless, or, as one court said, “unintelligible jargon,” appellee could not have recovered, but if the appellee, acting with reasonable care, understood 'the message with the word “four” instead of “your,” and if a person of ordinary prudence would have acted on it, then the appellee was not guilty of negligence. It is simply a question of negligence, and, as we have said, properly submitted to the jury, and the finding of the jury is binding upon this court on questions of fact. The evidence on the questions of negligence and contributory negligence, as well as on the question of damages, were questions of fact, and there was ample evidence to sustain the verdict of the jury.
Finding no error, the judgment is affirmed. | [
48,
-8,
-96,
-17,
8,
-16,
34,
-102,
-79,
-127,
36,
83,
-23,
69,
13,
115,
-17,
29,
-15,
-8,
-12,
-105,
7,
46,
-46,
-45,
123,
-43,
-80,
-49,
44,
94,
77,
32,
-54,
-99,
-90,
-62,
-115,
-100,
-34,
0,
43,
-20,
-33,
-125,
24,
-22,
22,
71,
65,
-81,
-5,
40,
26,
67,
9,
58,
-19,
-87,
-48,
-15,
-22,
-49,
117,
22,
-96,
116,
-104,
75,
64,
30,
-104,
49,
-68,
-72,
88,
-73,
-126,
116,
33,
-119,
0,
34,
102,
34,
-75,
-23,
108,
-84,
39,
-70,
-99,
-26,
-94,
41,
43,
9,
-66,
29,
43,
18,
7,
122,
-6,
21,
21,
104,
3,
-17,
-78,
-96,
45,
-26,
28,
31,
-17,
-97,
54,
113,
-51,
-94,
93,
70,
62,
59,
-121,
-72
] |
McHaney, J.
Appellee is the administrator of the estate of James K. Carrnthers, deceased, who was instantly killed in a collision with the first section of train No. 2, the Sunshine Special, at the Elm street crossing, in Prescott, Arkansas,, on the night of November 11,1940, at about 9:45 p. m. He brought this action against appellants, the railroad company, its trustee in bankruptcy and the engineer on said train, John T. Griffin, to recover damages therefor. Thé negligence alleged in the complaint and relied on at the trial was failure to sound the whistle or ring the bell, and “that the headlight on the engine — was defective, in that same was very dim, if in fact the headlight was burning at all, and alleges that it could not be seen at a safe distance by travelers upon said Elm street as was the deceased”; damages were prayed in a large sum both for the benefit of the widow and children of deceased, and for the benefit of his estate; for conscious pain and' suffering. The answer was a general denial and a plea that the death of deceased was caused by his own negligence and carelessness in driving upon the track in front of said train without exercising any care for his own safety and protection; that said Elm street crossing* is equipped with an electric gong* and wig-wag signal in the center of Elm street, which gong was sounding* and the wigwag working warning* him of the approach of said train; that notwithstanding said warning, and without looking or listening and without stopping, or without exercising any degree of care, he drove his car onto the track immediately in front of said train, causing* it to strike him, at a point and under such conditions that it was impossible for the operatives to avoid striking* him, and that his own negligence and carelessness was the direct and proximate cause of his injuries and death. Trial resulted in a verdict and judgment against appellants in the sum of $20,000.
The facts most favorable to appellee and the undisputed facts disclose that appellee’s intestate was driving his car north on highway No. 67, which parallels the main line railroad track through Prescott and is 110 feet west of said track; that at the intersection of said highway and Elm street there is a traffic light with red and green signals to control traffic; that, on reaching said intersections, intestate turned to his right without stopping and proceeded east to cross the railroad track, driving at a rate of speed of 15 to 20 miles per hour; that, immediately west of the main line of railroad, there are two switch tracks that come to a dead end at or near Elm street, both having box ears spotted on them in such close proximity to Elm street as to obstruct the view of one approaching the main line from the west until such obstruction was passed; that there is also located west of said switch tracks and south of Elm street a loading platform and freight depot which obstruct the travelers’ view to the south; that there is located, in the middle of Elm street and just west of the main line an electric gong and wigwag signal to warn persons using the crossing of the approach of trains; that at the time intestate was struck and killed the gong was sounding and the wig-wag signal was working and tha’t he had to pass same, within a few feet of it, to get on the main line track; that it is 18 feet between the end of the ties on the main line and the end of the ties on the first or No. 1 switch track to the west; that there was a freight train on a passing track south of the crossing, which is east of the main line, waiting for No. 2 to pass before pulling out, and escaping steam from it's engine was making some noise; and that this passing track is 136 feet south of the Elm street crossing. Appellant’s witness, Fielding, testified it was 38.8 feet from the center of the main line track to the center of side track No. 1. Mr. Boyette, signalman for appellant, testified, and was not disputed, that when a train hits the electric circuit 2,000 feet south of the crossing on the main line, it starts the gong ringing and the wig-wag working, and that, for the freight train on the passing track to cause the g’ong to ring and the wigwag to work, the switch to the main line has to be open and we understand that to mean it has to be lined up with the main track so as to divert a train from the main line to the side track or from the side track to the main line. In other words, the circuit that works the gong and wig wag is wired to the main line, and that a train on the side or passing track would not work the signals unless there was actual contact between the rails of the side track and the rails of the main line. That there was no such contact is conclusively demonstrated from the fact that train No. 2 proceeded along the main line past the switch stand. Had the switch been open it would have wrecked No. 2, which was running about 50 miles per hour. It necessarily follows that the local freight on the passing track did not cause the gong to ring and the wig-wag to work at the time intestate was killed, but that it was caused by No. 2 on the main line.
Five witnesses testified for appellee to the effect that train No. 2 did not whistle for the Elm street crossing, but that it did whistle down about the depot, south of this crossing, and one of them that the bell was ringing. Three of them said the headlight was not burning when the accident occurred. "Witness Silas said he didn’t think it was burning and Gee said it was out when it hit the car, but when he first saw the train, the headlight was on, and he thought it went out about the depot. Stockton said he never saw a train run without a headlight before. All five witnesses say No. 2 was making a lot of noise that could be heard a long distance away and that the gong was ringing and the wig-wag working.
Opposed to this evidence of appellee, appellants offered thé testimony of 12 witnesses, in no way connected with it, who testified positive^ either that the bell on No. 2 was ringing or that the whistle was blowing and that the headlight was burning, although it had been dimmed so that the operatives on the local freight could see its signals. In addition to appellant Griffith, the engineer on No. 2, nine other employees of the railroad company testified in corroboration of the 12 non-employees. It thus appears that there was some conflict in the evidence as to whether the signals were given for this particular crossing, but there seems to be little, if any, conflict in the evidence that the whistle blew down about the passenger depot which was some two blocks south of Elm street. One of appellee’s witnesses, Silas, made a statement to the claim agent on November 14, 1940, three days after the accident, which was taken by the official court reporter, in which he said the train whistled before he saw it, at least as far south as the passenger depot, and that it continued to whistle almost constantly up to where the accident happened. As to the headlight, the complaint did not allege it was not burning, but that it was defective in that it was very dim, and could not be seen at a safe distance. The overwhelming proof shows, not only that the signals were given, but that the headlight was burning, although it had been dimmed to enable the waiting crew on the local freight to see its signal lights which indicated that another section of No. 2 was following this train, and the engineer said he blew a classification signal at the local engine to attract their attention to his signal he was carrying for. the second section. He said that, to dim the headlight, there is a switch in the cab and it is thrown off the headlight with several hundred candle power and put on the hundred candle power, so the local crew could see his classification, and then switched back on the high candle power, and that was what he did. No doubt this dimming of the high light caused some three of the witnesses to think the headlight had gone out.
■But regardless of whether the signals were given or the headlight was temporarily off, all the witnesses agree that this train was traveling at about 50 miles per hour and was making a very loud noise, that could be heard for a mile or more down the track. We think this case is ruled adversely to appellee by the very recent case of Mo. Pac. Rd. Co. v. Howard, ante, p. 253, 161 S. W. 2d 759.
Appellee’s intestate was grossly negligent in driving upon the tracks, under the circumstances here presented, in total disregard of the ringing gong and the working wig-wag, which cried out to him, in no uncertain terms, that danger was approaching. Even though his view was obstructed to the south, the direction from which No. 2 was approaching, the duty was imposed upon him to approach said crossing with greater caution, especially in view of the warning signals staring him' in the face and' beating upon his sense of hearing. In the Howard case, supra, we said: ‘ ‘ The very fact that bos ears were spotted so near the crossing, as to cut off the view to the south, made it her duty, in the exercise of due care, to approach the main line track in such a way as to permit her to get a clear view to the south after the box cars ceased to obstruct her view and to stop, if necessary, to avoid the danger. In other words, as the danger increases, the degree of care required to free one of contributory negligence in a crossing accident increases.” See cases there cited to support that statement. We there held that the contributory negligence of Howard equalled or exceeded that of the railroad company, conceding it to have been negligent for failure to give the signals, and that there could be no recovery under the provisions of § 1213 of Pope’s Digest. The statute, § 11135 of Pope’s Digest requires railroad companies to ring the bell Or blow the whistle at crossings, that is, to do one or the other, beginning 80 rods away, and to continue until the crossing is passed. We have held in many cases that these statutory signals cease to be factors and that no recovery can be had for failure to give them when the presence of the train is plainly discoverable by other means, the latest being the Howard case. Here, not only did the warning signals in the middle of Elm street give intestate this information, but the loud noise of the train could have been heard by him, had he used the slightest care. Either he saw and heard these signals and the noise of the approaching train and thought he could beat it across, or he was preoccupied with something else and failed to see and hear what was plainly to be seen and heard and what every one else saw and heard, including his own witnesses. In either case, there can be no recovery, because his own negligence was the proximate cause of his death.
We conclude, therefore, that intestate’s negligence, under the circumstances here presented, equalled or exceeded that of appellants, assuming them to be negligent as stated, and that the judgment should be reversed and the cause dismissed.
Mehaffy, J., not participating. | [
-16,
109,
-92,
-82,
59,
96,
58,
-118,
119,
-95,
-92,
-45,
-19,
67,
81,
103,
-10,
-67,
-47,
43,
116,
-77,
7,
-30,
-37,
51,
121,
6,
18,
72,
100,
-41,
77,
96,
74,
85,
-58,
74,
-59,
94,
-50,
45,
-85,
-32,
25,
80,
32,
122,
-108,
7,
97,
-98,
-5,
42,
26,
-30,
109,
62,
107,
-84,
-63,
112,
-119,
5,
95,
4,
32,
4,
-65,
-127,
20,
27,
-104,
-107,
18,
-84,
114,
-90,
-46,
-10,
97,
-39,
8,
-26,
102,
33,
13,
-27,
-68,
56,
46,
-98,
15,
-91,
-66,
81,
73,
13,
-105,
21,
123,
-108,
15,
-2,
-4,
-43,
88,
40,
-125,
-54,
-76,
-47,
-11,
20,
-106,
-101,
-21,
-95,
50,
112,
-52,
-78,
93,
71,
54,
-101,
-49,
-108
] |
Humphreys, J.
This suit was brought in the circuit court of Washington County by appellee against appellant to recover freight and transportation charges amounting to $935.30 on a car of live poultry shipped on a through bill of lading from Ardmore, Oklahoma, to New York City, which included return freight and transportation charges to Delphos, Ohio, where the car of poultry was stopped, condemned and destroyed by the Ohio State Department of Agriculture, on account of the diseased condition of the poultry, contracted in the terminal yards at Hoboken, New Jersey. -The initial carrier was the St. Louis-San Francisco Railway Company, and appellee was the terminal carrier, which paid the freight and transportation charges to the initial and all intermediate carriers on the forward and return shipments. When the poultry reached its destination, delivery could not be made on account of a disease known as European fowl plague that had developed in the terminal yards, and the car of poultry was reconsigned, on through bill of lading, to appellant at Fayetteville, Arkansas, by the Chelsea Live Poultry Company, the duly authorized agent of appellant. The matters set out above constitute the material allegations of appellee’s complaint.
Appellant filed an answer and motion to make the St. Louis-San Francisco Railway Company a party defendant, alleging that the freight and transportation charges paid by appellee to it was on open account, upon which appellee had no right to maintain an action without making its assignor a party; and that, if the bill of lading was an assignable contract and not an open account, under the statutes of Arkansas, appellee acquired same subject to all defenses that appellee had against the St. Louis-San Francisco Railway Company. Appellant also filed, as a part of his answer and motion, a cross-bill against the St. Louis-San Francisco Railway Company, in which he alleged that said initial carrier negligently delayed the shipment between Ardmore, Oklahoma, and St. Louis, Missouri, which prevented it from reaching its destination before an embargo was declared against the delivery of poultry in the New York markets, to its damage in the sum of $3,500, the value of the car of poultry.
A demurrer was filed to the answer and cross-complaint and sustained by the court, over the objection and exception of appellant.
The cause was then submitted to the court sitting as a jury upon the pleadings and testimony introduced by appellee in support of the allegations of the complaint, which resulted in a judgment against appellant for the freight and transportation charges paid by it to the initial and intermediate carriers in the sum of $935.30 with interest at 6 per cent, per annum from March 31, 1925, from which is this appeal.
Appellant’s first contention for a reversal of the judgment is that the court erred in overruling its motion to make the initial carrier, the St. Louis-San Francisco Railway Company, a party to the action, and in support of its contention cites § 1090 of Crawford & Moses’ Digest, which is as'follows:
“Where the assignment of a thing in action is not authorized by statute, the assignor must be a party, as plaintiff or defendant.”
It is argued by learned counsel that the claim for freight and transportation charges is an open account not authorized to be assigned by statute. We cannot agree with them. The agreement to pay freight and transportation charges is a written contract in the form of a bill of lading between all the carriers and the shipper. It is not an open account, but it is a written contract in the nature of a request to the last carrier to pay the freight for him to the initial and intermediate carriers.
Appellant’s next contention for a reversal of the judgment is that, if the bill of lading was an assignable agreement, the court erred in refusing' to grant his request to make the initial carrier, the St. Louis-San Francisco Railway Company, a party, in order that he might offset his claim for damages against the amount appellee paid him for freight or transportation charges, which amounted to $424.40, according to the undisputed testimony. In support of the contention, he cites §§ 475 and 477 of Crawford & Moses’ Digest, which are as follows:
“Section 475. All bonds, bills, notes, agreements and contracts in writing, for the payment of money or property, or for both money and property, shall be assignable.
“Section 477. Nothing contained in this act shall change the nature of the defense, or prevent the allowance of discounts or offsets, either in law or equity, that any defendant may have against the original assignor previous to the assignment, or against the plaintiff or assignee after the assignment.”
We do not think the sections have any application, for the reason that the bill of lading, if assignable -under said § 475, was not assigned to appellee. Appellee was the delivering or terminal carrier that paid the freight and transportation charges to the initial and connecting carriers at the request of appellant, the shipper, in expectation of being reimbursed when the consignee or party designated in the bill of lading to receive the ear should present same and request its delivery.
Appellant’s next and last contention for a reversal of the judgment is that his .cross-complaint, seeking damages against the initial carrier on account of negligence, entitled him to counterclaim and set-off his damages against appellee’s claim for freight and transportation charges. In support of this contention he cites §§ 1194 and 1204 of 'Crawford & Moses’ Digest, which are as follows :
“Section 1194. The answer shall contain: (1) The style of the court and the style of the action, followed by the word ‘ answer. ’ But where there are several plaintiffs and defendants, it shall be only necessary to give the one first named of each class, with the words ‘and others.’ (2) A denial of each allegation of the com plaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. (3) A statement of any new matter constituting a defense, counterclaim or set-off, in ordinary and concise language, without repetition. (4) The defendant may set forth in his answer as many grounds of defense, counterclaim and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligently distinguished.”
“Section 1204. A defendant may file a cross-complaint against persons other than the plaintiff, and have proceedings thereon as follows: (1) When a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject-matter of the action, he may make his answer a cross-complaint against the co-defendant or other person. (2) The defendant to such cross-complaint may be actually or constructively summoned, and defense thereto shall be made in.the time and manner prescribed in regard to the original complaint, and with the same rights of obtaining provisional remedies applicable to the case. (3) The filing and prosecution of the cross-complaint shall not delay the trial and decision of the original action when a judgment can be rendered therein that will not prejudice the rights of the parties to the cross-complaint. ’ ’
We do not think either section has any application to the instant case.
The alleged action of appellee against appellant and that of appellant against the St. Louis-San Francisco Railway Company are entirely different and wholly independent of each other. Appellee’s right of action against appellant is based upon appellant’s request, either express or implied, to pay freight and transportation charges for him to the initial and connecting carriers, in order that the car of poultry might be delivered to the party designated by him; whereas appellant’s’ alleged fight of action against the St. Louis-San Fran cisco Railway Company is based upon the latter’s negligent delay in transporting the car of poultry from Ardmore, Oklahoma, to St. Louis, Missouri. No negligence is alleged against appellee occasioning a delay in shipment and delivery.
The causes of action are different, hence there could be no offset or counterclaim of one against the other. Ry reference to § 1204 it will be seen that a third person may be a party to the action in case the action against the third party affects the subject-matter of the original action. There is no relationship between the subject-matter of the two actions. One does not and cannot affect the other. The statutes cited and relied upon by appellant were in existence when the case of Railway Company v. Lear, 54 Ark. 399, 15 S. W. 1030, was decided. In that case Mr. Justice Hemingway said:
“Each of several lines of connecting carriers, engaging in the transportation of property under a bill of lading for a continuous carriage, may .ordinarily pay the charges of previous carriers and have a lien on the property for the amount advanced, as well as for its own charges. The rule is a part of the commercial law of the land, and, as it is said, of the world, springing from a commercial convenience and necessity. It is to the special advantage of the snipper, as well as of the public, for it facilitates rapid transit without breaking bulk, and tends to lower rates. Each carrier is entitled to hold the property until its proper charges are paid, and, but for the rule above stated, the shipper would be required to arrange in some way for the payment thereof at each point on the route where carriers changed. Convenience and necessity.therefore authorize successive carriers to receive property billed, and to advance previous charges and assert a claim for the amount advanced.”
We think the instant case' is ruled by Railway Company v. Lear, supra.
No error appearing, the judgment is affirmed.
Hart, C. J., dissents. | [
48,
76,
-4,
-52,
58,
105,
0,
-102,
86,
-127,
101,
-45,
-51,
-61,
-75,
33,
-25,
125,
85,
63,
-11,
-77,
23,
98,
19,
-9,
-95,
-57,
-70,
75,
-27,
-25,
77,
32,
74,
29,
-58,
-62,
-63,
28,
-114,
36,
-71,
-24,
-3,
2,
-80,
-23,
86,
103,
53,
-114,
-22,
46,
94,
99,
105,
40,
-7,
13,
-61,
-47,
-70,
12,
63,
6,
16,
102,
-109,
5,
-54,
30,
-112,
49,
17,
-99,
115,
-96,
-122,
-44,
7,
-35,
8,
38,
98,
0,
5,
-91,
-24,
-84,
44,
-6,
15,
-122,
-96,
33,
27,
3,
30,
29,
112,
16,
23,
122,
-3,
69,
25,
104,
3,
-82,
-108,
-125,
-65,
-28,
-34,
19,
-21,
-73,
52,
113,
-52,
-78,
93,
71,
126,
-101,
-98,
-78
] |
Hart, C. J.,
(after stating-the facts). The law applicable to cases of this sort is well settled in this State. In Joseph v. Balter, 95 Ark. 150, 128 S. W. 864, it was held that the mention of the quantity of acres after a definite and certain description of the land by metes and bounds does not amount to a covenant in a deed, unless so expressly declared, nor afford a cause of action, though the quantity of acres should fall short of the amount named. It was further held that a vendee cannot complain of a' fraudulent misrepresentation made by the vendor as to the number of acres sold to him if, before the sale was made and accepted, the vendee was informed as to the actual number of acres in the tract sold, and, with that knowledge, consummated the contract of sale. In such case the vendee can only recover damages -upon the theory that he was induced to purchase the land by the fraudulent representation of his vendor as to the quantity of the land. Where the vendee has knowledge of the deficiency of the quantity of the land, he is not misled by any misrepresentation of his vendor and is not induced to make the contract by a misrepresentation of the quantity of the land which he knows to be untrue. In short, if he knows that there is a deficiency in the quantity of the land and knows how much land he is purchasing, he has no right to rely upon the representation of his vendors as to the quantity of the land.
Again, in Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787, it was held that, when a vendor conveys for a specified price a tract of land which is described by -metes and bounds or otherwise, with the words added, “containing a specified number of acres, more or less,” this is a contract not by the acre but in gross, and does not by implication warrant the quantity. It was further held that a misrepresentation in a sale of land, to affect the validity of the contract, must relate to some matter of inducement to the making of it, in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and.trust which he reposes in the representations of the other, on account of his superior information and knowledge in regard to the subject of the contract.
In the application of the principles of these oases to the facts in the case at bar, appellants cannot maintain an action for damages upon the ground that there has been a breach of a covenant of any implied warranty of the quantity of the land. The lease shows that there was no express warranty of the quantity of the land, and appellants do not claim that the deed contains a clause expressly warranting the quantity of the land. Hence their cause of action is founded upon the ground that they were induced by false representations as to the quantity of the land to agree to pay the price expressed in the lease.
This is an application of the general rule that, where the description of the land is ¡by definite boundaries, or by words of qualification, as “more or less,” the statement of the quantity of acres in the deed is a mere matter of description, and not the essence of the contract. Hence the buyer takes t'he risk of the quantity, if there is no element of fraud in the case. It cannot be said in this case that the difference between the actual and estimated quantity of acres is so gross as to conclusively warrant a finding’ that the parties would not have contracted had the shortage been known. It is true that the price was considerable, but, when the attending circumstances are considered, it is evident that the quantity of acres was not the controlling factor in the premises.
Gilbertson was representing a corporation which was speculating in oil and gas leases, and the corporation had a quantity of acreage which had not been developed for oil or gas. He wished to purchase the lease in question for his corporation and to add it to what is termed “wildcat” acreage in order to better sell that acreage. In other words, the lease in question had been drilled for oil and had producing wells on it at the time Gilbertson purchased the lease. According to the testimony of Dr. Clark, Gilbertson wished to add these producing acres to his wildcat acreage in order to sell the latter.
As to whether the representation as to the quantity of acres was actually made, the testimony is in direct and irreconcilable conflict. Gilbertson testified that both Dr. Clark and Judge Gould represented that the lease contained 71 acres, and that he would not have purchased it if he had not believed the representation to be true. He is corroborated by the testimony of W. G. Sawyer in every respect. The testimony of Bruce only goes to the fact of the representation made by Sawyer as to the number of acres in the lease, and adds nothing to the testimony of Sawyer on that point. On the other hand, Judge Gould says that he never knew Sawyer, and did not authorize him to make such representation about the quantity of land in the lease. Dr. Clark denies having employed Sawyer to represent him in selling the lease, and denies authorizing him to represent that the lease contained 71 acres. He testified that McGahey, who was his agent, brought SaAvyer to his room -with Gilbertson, and that he supposed that Gilbertson, and Sa^wyer were associated together. McGahey says that he only showed the old lease to Gilbertson, and told him that that was all that he knew about the quantity of acreage in the lease. This could not be said to be a concealment of the quantity of the acreage, for both Dr. Clark and Speary testified that Gilbertson was told about the shortage in the lease Avhile he was examining the property Avith a view to purchasing the lease. The lease was executed the latter part of January, 1924, and Gilbertson says he did not discover the shortage until some time in December of that year. He admitted that he was on the lease frequently during this time, and was familiar Avith locating and drilling wells on such leases. The land as described in the lease was 71 acres, and it is deducible from all the circumstances that a man of Gilbertson’s experience in oil leases would have ascertained the shortage by being on the land much sooner than he did discover it. This is a circumstance which might be considered in testing his credibility.
We have examined the evidence as it appears in the record, and considered it in all its bearings, and have reached the conclusion that it cannot be said that a preponderance of the evidence shows that Dr. Clark falsely represented the quantity of the acreage to be 71 acres. Therefore the decree of the chancellor mil be affirmed. | [
-78,
109,
-36,
45,
-118,
96,
42,
-70,
-38,
-87,
38,
91,
111,
-62,
0,
39,
-26,
73,
81,
106,
68,
-78,
31,
3,
-10,
-41,
-61,
-43,
-67,
-51,
-26,
69,
76,
48,
-62,
-35,
-29,
-22,
-63,
-40,
38,
-64,
-120,
69,
-40,
68,
48,
41,
80,
74,
97,
-97,
-13,
46,
49,
-49,
41,
40,
107,
49,
-31,
-24,
-66,
79,
123,
13,
49,
54,
-20,
3,
74,
78,
-104,
121,
9,
-56,
91,
-74,
-122,
116,
9,
27,
-120,
34,
102,
16,
68,
-49,
58,
-104,
47,
-38,
13,
-90,
0,
72,
75,
108,
-73,
-99,
89,
4,
102,
-14,
-28,
93,
89,
104,
19,
-25,
-106,
-89,
-115,
92,
-102,
1,
-17,
-123,
-79,
113,
-51,
-90,
92,
65,
80,
-101,
28,
-49
] |
Humphreys, J.
This is an appeal from a judgment rendered in the circuit court of Pulaski County for $100 in favor of appellees against appellant on a graded insurance benefit certificate issued by appellant upon the life of Oliver Facen, in which appellees were the beneficiaries. The beneficiaries were the wife and three daughters of the insured. They were ignorant negroes, in the sense that none of them could read and write.
In addition to denying any liability under the certificate, appellant interposed the defense of accord and satisfaction, and, at the conclusion of the testimony in the trial court, moved for a peremptory instruction, which the trial court refused to give, over the objection'and exception of appellant.
The record reflects that, at the time the certificate was issued to Oliver Facen, he was a member of Beth lehem Council No. 88, a subordinate lodge of appellant’s, located at Scott, Arkansas. The certificate provided that, if Oliver Facen should die after the second year of his membership in the lodge, appellant would pay his wife and three daughters $150 if he was “financial” or “clear on the books” of appellant. At the time of the insured’s death he had not paid his dues for September, 1925. According to the contract he had until September 20 to pay his dues, but he died on September 21 without having paid. A dispute arose between appellant and the beneficiaries as to whether appellant was liable for anything under the benefit certificate. Mattie Brewer, formerly Mattie Facen, with friends, went to see C. B. Pettaway, supreme commander of appellant, and demanded payment-of the policy. Pettaway denied all liability, but finally agreed to pay $50 on surrender of the benefit certificate for cancellation to the grand lodge. She procured the certificate from, her stepmother, and surrendered it in exchange for a check in the following words and figures:
“United Friends of America A 6740
“Little Rock,' Arkansas, October 7, 1925.
“Indorsement of this check will be considered as full payment in settlement of policy of Oliver Facen $50.00.
“Pay to the order of Hannah, Mattie, Luella, and Ara Facen $50 fifty and no/100 dollars.
“To W. B. Worthen Company, Bankers, of Little Rock, Ark.
“M. R. Perry, Supreme Secretary.
“ J. R. Currie, Supreme Treasurer.
“Countersigned: C. B. Pettaway, Supreme Commander. ’ ’
Mattie received the check. on the day of its date, and took it immediately to her sister, Ara Walker, and left it with her. That night Ara Walker’s husband read the check to her, and advised- her to cash the check, then sue appellant for the balance of the face of the certificate. The face of the certificate was for $250, but it was a graded certificate, and if the insured liad been clear on the books of appellant only $150 could have been recovered under the clause in the policy which allowed that amount in case of the death of the insured after the policy was two years old. -
Ara Walker kept the check until October 26, 1925, at which time she cashed it at her grocer’s, and kept $12.50 for herself, and gave $12.50 to each of the other beneficiaries. The following indorsement appears on the check: “Hannah Facen, Mattie Facen, Ella Facen, Ara Facen,” together with the name of F. M. Daley, who cashed the check. The check was then presented to and paid by the drawee, W. 'B. Worthen Company, and charged to the account of appellant.
The beneficiaries each testified that the check for $50 was a gift under a clause in the policy providing for a $50 burial payment in case the insured was clear on the books of appellant. There is no testimony in the record, however, tending to show that they were induced to accept the check as full payment in settlement of the policy through deception or fraud practiced upon them by any of appellant’s agents. As appellees were not induced to accept the check through fraud, the acceptance and collection thereof with the following words on its face, “Indorsement of this check will be considered full payment in settlement of policy of Oliver Facen,” was an accord and satisfaction.
On these undisputed facts it was the duty of the trial court to instruct a verdict for. appellant, aud, on account of his refusal to do so, the judgment is reversed, and cause is dismissed. | [
48,
-20,
-16,
28,
8,
-32,
74,
26,
82,
-128,
53,
83,
-5,
-26,
17,
45,
-19,
45,
113,
104,
-45,
-77,
55,
32,
-46,
-13,
-7,
-59,
-80,
93,
-11,
-43,
73,
49,
106,
85,
70,
-30,
-51,
20,
-50,
0,
-88,
-19,
-39,
-64,
48,
-1,
82,
75,
101,
-106,
-29,
62,
29,
75,
44,
44,
89,
41,
80,
-80,
-118,
-115,
-17,
5,
17,
6,
-104,
3,
88,
14,
-104,
49,
72,
-24,
51,
-90,
-58,
52,
115,
25,
76,
98,
102,
1,
48,
-17,
-88,
-120,
14,
-74,
-99,
-122,
-78,
41,
27,
9,
-74,
-99,
122,
20,
-105,
116,
-6,
-107,
92,
104,
1,
-113,
-106,
-79,
-17,
-24,
-100,
-125,
-17,
-119,
52,
113,
-49,
-30,
93,
-57,
126,
-69,
-113,
-110
] |
Kirby, J.,
(after stating the facts). It has long been settled law that, where a municipal corporation by ordinance grants ia franchise to a public service corporation to furnish electricity or gas to its inhabitants upon certain rates, terms and conditions, which are accepted in writing by the public service company, a contract between the parties is constituted, by which their rights ¡are to be determined, the terms and conditions becoming binding on the municipality and the company. Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S. W. 712; Arkansas Light & Power Co. v. Cooley, 138 Ark. 390, 211 S. W. 664; Lonoke v. Bransford, 141 Ark. 18, 216 S. W. 38.
In § 2 of the ordinance granting the franchise to W. H. Skinner, of which appellant is now the assignee and owner, it agrees “to furnish to private consumers in said corporate town electrical energy at a rate of not exceeding 15e per kilowatt hour,” allowing a minimum charge not to exceed $1 per month.
It is not denied that the filling station of appellee, Brown, where he demanded that power and lights should be installed under the terms of the franchise granted by the city, was situate within the limits of the incorporated town. Neither is it denied that appellant refused to furnish appellee Brown power and lights for consumption at said filling station, attempting to justify its refusal to do so because of the small amount of power and electricity that would be consumed at the filling station and the high cost of supplying it to but one consumer, there being no other business house or residences in the vicinity of the filling station where other probable consumers might be served, and'for these reasons alleged that the .demand was unreasonable, unfair and unjust, and could not be complied with without great loss and damage to it.
There was no attempt made to disclose the amount of the revenue that was being derived from the entire service to the consumers in the city of Pocahontas, the •cost of such service, the value of the property devoted to the public use, upon which appellant had the right to expect a reasonable return, nor the profit derived from the service rendered, as to whether it yielded a reasonable return or a just compensation to the power company. Neither did the appellant company offer to furnish the service, which it was bound under the terms of its franchise or contract with the city to supply, to appellee’s filling- station in the corporate limits of the city for a rate which it regarded reasonable, but refused to supply it at all.
It could have applied to the city council for a change of rates for supplying consumers similarly situated, or permission to charge an increased or higher rate, if the rate was regarded unreasonable, but it could not show that the demand for the service under its franchise was so unreasonable as to excuse it from furnishing the service, by proving- only the probable expense for the service to be rendered the particular consumer with the revenue to be derived therefrom.
It is also true that appellee could only compel the furnishing of the lighting service to his filling station, under the terms of the franchise held by appellant, while his station was within the corporate limits of the city of Pocahontas. The fact that the territory upon which the filling station is situate has since been regularly detached and duly excluded from the corporate limits of the city, which have been contracted as shown by the motion to dismiss the cause, does not warrant such dismissal here, since appellee is entitled to an affirmance of the judgment for the damages recovered, in any event.
A dismissal of the appeal would still leave the order for a mandatory injunction in force, and while we do not determine whether appellant can be compelled under such injunction to supply the lighting service to appellee’s filling station, which is no longer in the corporate limits of the town, we do not find any reversible error in the record, and the judgment is affirmed. | [
-112,
121,
-48,
-4,
88,
96,
26,
-104,
123,
-79,
-90,
83,
-17,
88,
-111,
41,
-77,
125,
116,
120,
-44,
-94,
3,
66,
-104,
-109,
-15,
-59,
-79,
76,
-12,
-52,
76,
33,
-54,
-67,
-90,
-62,
-59,
-36,
14,
33,
41,
96,
-47,
66,
54,
9,
80,
-118,
81,
-116,
-13,
46,
16,
-63,
109,
46,
125,
35,
65,
122,
-22,
-41,
127,
22,
16,
100,
-103,
-25,
-24,
46,
-104,
57,
8,
-56,
115,
-90,
-126,
-3,
13,
-103,
-116,
96,
98,
0,
37,
-17,
-20,
-68,
6,
-34,
-99,
-90,
-76,
88,
35,
13,
-65,
30,
72,
6,
75,
-6,
-9,
-108,
91,
108,
3,
-114,
-68,
-95,
13,
-28,
-110,
18,
-17,
71,
48,
116,
-49,
-66,
93,
-59,
50,
91,
14,
-40
] |
Smith, J.
Appellee, as administratrix of the estate of John W. Daniel, deceased, and in her own right, filed suit against the appellant insurance company to recover a sum alleged to be due by reason of a contract contained in a certain insurance policy issued by the said company to the said John W. Daniel in his lifetime, wherein the company agreed to insure the said Daniel against loss of time on account of disability from illness in the sum of $50 per month.
The policy contained the provision that: “Written notice of injury or of sickness on which claim may .be based must be given to the company within twenty days after the date of the accident causing such injury, or within ten days after the commencement of disability from such sickness.” Another provision of the policy required strict compliance with all the terms and conditions of the policy as a condition precedent to a recovery thereunder, and provided that a failure in this respect should forfeit to the company all rights to any indemnity.
The insured had failed to pay certain assessments or premiums, as a result of which the policy lapsed, but he was reinstated in June, 1925, by paying the delinquent premiums and by furnishing a certificate that he was in good health at the time of his reinstatement. •
The insurance company denied 'liability upon the grounds that notice.’ of disability had not been given within the time required 'by the policy, and also that the insured was not in good health at the time of his reinstatement.
There was a verdict and judgment in favor of the plaintiff, from which is this appeal, and for the reversal of the judgment it is insisted that, under the undisputed testimony, a verdict should have been directed in appellant’s favor on account of the failure to give notice, and also because the insured was not in good health, as he had warranted himself to be, at the time of his reinstatement. It is also insisted that the judgment should at least be reversed on account .of the admission of certain incompetent.testimony, and because of the error in submitting the question as to whether the insurance company had waived the requirement of notice as to the insured’s illness.
It was contended by the plaintiff that proper notice of the insured’s illness had been given, and also that there had been a waiver of this requirement as a result of the correspondence between the parties in regard to proof of the claim for the sick benefits. As we have concluded that the jury was warranted in finding that proper notice was given, we do not consider whether the testimony did not also warrant the finding that this requirement had been waived.
The testimony on the part of the plaintiff was to the effect that the insured operated a small store, and, in connection with this business, ran a truck from his store to both Hot Springs and Little Rock, from both of which cities he hauled the merchandise in his truck which he sold in his store. Insured became ill about the 4th of July, 1925, but evidently did not regard his illness as serious until about the 27th of that month, at which time he first consulted a doctor. The doctor advised the insured to rest from his usual employment for a period of ten days, and later renewed that advice. The insured was not confined to his bed until the 15th of August, and, even after that, went to his store, over which he continued to exercise supervision. Mrs. Daniel testified that her husband, the insured, “finally took his bed and was confined to his room about the last of September, some time* in September, when he became worse and was not able to g*o to the store. He was not able to work after that. He went to bed on the rest cure about August 15.”
The court gave, at the request of the appellant insurance company, an instruction which told the jury that the plaintiff could not recover if the jury found that the insured was not in good health or was suffering from any ailment in June, 1925, when the insurance was reinstated.
The jury was told, in another instruction, at the request of appellant, that, before the plaintiff could recover,, it must be found by a preponderance of the evidence ‘ ‘ that all of the material terms of said contract were complied with by the deceased, and, unless you find from a greater weight or preponderance of the testimony in this case that deceased did comply with the terms of the contract, then the plaintiff cannot recover, and your verdict will be for the defendant company. ’ ’
Written notice of the illness of the insured was mailed to the insurance company on September 14, 1925,- and the illness of the insured continued until September 23, 1926, at which time he died.
The insuring clause of the policy contains the following relevant provisions as to the obligations assumed by the insurer:
‘ ‘ Section (B). Disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, hereinafter referred to as ‘such illness,’ and
“Section (C). Indemnity will be paid for ‘such injury’ or ‘such illness’ only for the time the insured is under the professional care and- regular attendance of a legally qualified physician or surgeon, at least once in every seven days.”
The insured, when he first became ill, was not under • the care of a physician at least once in every seven days, and he did not go under such care until in September, and he gave the notice within ten days of the time when he did so go under the regular care of a physician every seven days. The testimony shows that, while the insured did not run his truck after the 15th day of August, he was up and occasionally at his store until September.
The policy provides for indemnity against disability, and no indemnity was to be paid until disability began, and the insured claimed no indemnity until he asserted his disability, and we think the jury had the right to find, from the above testimony, that the insured gave the notice within ten days of the time when he had reasonably concluded that his disability had begun. The insurance was not against sickness merely, but against disability caused by sickness, and we conclude therefore that the jury was warranted in finding that due notice of the disability was given. It is not questioned that the insured was in fact -disabled by sickness during the entire period for which the disability benefit was claimed.
Plaintiff offered testimony to the effect that the insured was in good health when the policy here sued on- was reinstated, in June, 1925, and among the witnesses so testifying were L. C. Smith and W. J. Canady, and it is insisted that error was committed in admitting the testimony of these two witnesses.
Smith testified that he was a soliciting agent for the Missouri State Life Insurance Company, and that he took an application from the said J. W. Daniel for' a policy of insurance in that company in May, 1925. The witness was asked: “You remember that it was in May, 1925, that you took the application?” An objection to this question was overruled, and the witness answered: “Yes, the policy was issued, it seems to me, something like a week after I took the application. ’ ’ The witness was then asked: “So far as you were able to tell, at that time Daniel was in good health, was he not?” An objection to this question was overruled, and the witness answered: “He seemed to be in as good health as any man I ever took an application from. ’ ’
The witness Canady testified that he, too, was a soliciting ag’ent for an insurance company, and that he took an application from Daniel on May 15, 192-5, for a policy, which was delivered on June 1¿ 1925, and that Daniel appeared to be in good health at that time, and that witness “had to beg him about two weeks to take the policy.”
No objection appears to have been made to the questions asked Canady or to the answers given by him, and the questions asked the witness Smith appear to be competent. It was competent for any witness who knew the insured at the time of his reinstatement to testify that the insured appeared then to be in good health, and the incident related by the witness about taking the application of Daniel in May, 1925, is a mere circumstance fixing the time at which the applicant appeared to be in good health. No objection was made to the testimony upon the ground that it would not be competent to prove that the insured was in good health by proving that another insurance company had issued a policy about the time of the reinstatement. The court would, no doubt, have instructed the jury that the testimony was not competent for that purpose had such a request been made, but it was not.
The testimony warranted the jury in finding that a proper notice of disability was given, and, as no error appears in the record, the judgment must be affirmed, and it is so ordered. | [
-80,
-4,
-99,
-113,
-101,
96,
32,
-78,
71,
64,
-91,
83,
-35,
115,
5,
47,
-25,
41,
-43,
122,
-42,
-93,
54,
34,
-42,
-77,
-21,
-43,
-80,
-49,
110,
-36,
76,
56,
74,
-107,
-26,
-62,
-59,
24,
-54,
-121,
-87,
-19,
-103,
83,
120,
-21,
-47,
77,
81,
-97,
-22,
46,
57,
67,
41,
40,
106,
-79,
-55,
-15,
-117,
5,
127,
17,
-79,
68,
-66,
75,
90,
10,
-102,
17,
0,
-8,
51,
-74,
-42,
116,
35,
-103,
0,
98,
102,
49,
5,
-11,
-16,
-104,
-81,
118,
-97,
-116,
-77,
56,
-102,
0,
-66,
-103,
94,
20,
7,
124,
-4,
-99,
28,
40,
65,
-113,
-106,
-79,
-49,
96,
-98,
-125,
-2,
-101,
34,
113,
-39,
-88,
92,
67,
119,
-109,
70,
-98
] |
Hart, C. J.,
(after stating the facts). The judgment of the circuit court was correct.
The stock district in question was attempted to be formed under the provisions of §§ 321-332 inclusive of Crawford & Moses ’ Digest, as amended .by act 427 of the General Acts of 1921. See General Acts of 1921, p. 427. Under § 321 of Crawford & Moses’ Digest, as amended by act 427 of the Acts of 1921, whenever twenty-five per cent, of the qualified electors of three or more townships in a body, as shown by the election returns for Governor at the last election preceding the date of the petition, shall petition the county court to vote on the question of restraining certain designated animals from ■running at large, the county court shall make an order for such election in said townships at any general elec tion for State, county and township officers* or at a special election called for the purpose. Several different petitions were circulated at the same time, .signed by the requisite number of qualified electors, asking that a special election be called in the townships of Jonesboro, Nettleton, Herndon, Powell and Brooklyn. Each of these petitions was of like form, and referred to the others, and represented that they were in effect one petition. This is true because each of the petitions was for the identical purpose. They asked for a local option stock-law election to be held in five different townships, which were named in each petition. The different petitions therefore constituted a unit for the calling an election in the same townships. Another petition was filed, asking for the calling of a stock-law election in these five townships, and there was added the township of Greenfield. This. petition, however, did not contain twenty-five per cent, of the qualified electors, as required by the .statute. It could not become a part of the unit of the other petitions which called for the election in the same five townships and which did contain more than twenty-five per cent, of the qualified electors of said townships.
The order of the county court was based upon the petitions filed, and ordered the special election to be called in the six townships, including Greenfield Township. There was a variance between the - description of the territory embraced in the petitions which contained the requisite number of qualified electors and the territory described in the order of the county court calling the special election to be held January 5, 1926. This was fatal to the validity of the order. ■ The petitions calling for the election in the townships of Jonesboro, Brooklyn, Powell, Nettleton and Herndon constituted a unit because, although the signatures were to different petitions, they were all written in precisely the same language and had the same end in view. When the petition adding Greenfield Towfiship was circulated, this constituted a materially different petition, and it could not be joined with the others. Not having the requisite number of signers, it could not be made the basis of an order calling the election. The county court had no right to call the election except upon a petition as provided by the statute; and a compliance with the provisions of the statute in this respect was a prerequisite to the exercise of jurisdiction by the county court. It could not call a stock-law election on its own motion.
In Fesler v. Eubanks, 143 Ark. 465, 220 S. W. 457, it was held that a petition selecting and grouping three or more adjoining townships in a stock district is jurisdictional, and that an oyder of the county court calling for a stock-law election not based on such petition is void, and subject to collateral attack. The reason for such holding is clearly stated in Coleman v. Hallum (Comm. of Appeals of Texas), 232 S. W. 296, where it was said:
“The petition for an election is fundamental and jurisdictional. It is the basis of the court’s action in ordering the election. The court is not at liberty to disregard the request to order the election prayed for, if the requisites of the statute have been complied with; n,or is it at liberty to alter the request for an election by ordering an election different' from the one called for by the petition. The construction contended for would ascribe to the commissioner’s court the doing of an unauthorized act — the ordering of an election without a petition as a basis thereof — and also the ordering of an election that would be void because of the uncertainty as to what was to be submitted and voted upon therein.”
It is claimed, however, that this defect in the order of the county court was cured by the decree of the chancery court restraining the holding of the election in Greenfield Township. We do not agree with this contention. The chancery' court had jurisdiction to restrain the election because it was made upon a void order, but it had no jurisdiction to cancel or amend the order of the county court. As we have already seen, the order of the county court must be. based upon the petitions filed; and it was void because the order as made was not based upon the petition of the requisite number of qualified electors as provided by statute. No subsequent decree of the chancery court could give validity to the order of the county court.
Finally, it is contended that the order of the county court was made valid by the curative act passed by the Legislature of 1927, which was an act to validate special elections held for the creation of “no-fence” laws. Acts of 1927, p. 227. The act by its terms proposed to validate said elections which were irregular by reason of being held on a different day from the date named in the act, or for other causes. It does not in any sense attempt to validate an election which had no validity in the beginning, or which was held under a void order of the county court.
Therefore we hold that the judgment of the circuit court discharging Eli Phillips was properly rendered, and the appeal of the State will be dismissed. | [
116,
-25,
-8,
28,
10,
-31,
58,
-102,
82,
-95,
101,
-13,
111,
-38,
17,
97,
-13,
-67,
53,
121,
-44,
-77,
82,
-126,
19,
-45,
-109,
-49,
-75,
79,
-10,
119,
8,
32,
-54,
-35,
-58,
-28,
-127,
92,
-114,
9,
-117,
101,
92,
80,
62,
101,
114,
75,
53,
-33,
-14,
44,
24,
115,
105,
44,
-39,
56,
-63,
-5,
-66,
-57,
111,
2,
-109,
70,
-120,
-125,
88,
46,
-104,
52,
-28,
-23,
90,
-90,
22,
84,
9,
89,
40,
38,
39,
25,
-83,
-49,
-8,
-88,
12,
92,
-115,
-26,
-112,
25,
-94,
2,
-78,
-97,
79,
80,
14,
118,
-25,
-59,
-99,
60,
4,
-50,
-74,
-89,
77,
-4,
-104,
3,
-21,
-93,
48,
113,
-36,
-74,
94,
71,
16,
27,
-121,
-56
] |
Holt, J.
Emma Dickens Tisdale died testate in Columbia county, Arkansas, August 31,1940. Appellants are the only heirs of J. L. and Amanda Dickens, deceased. Appellant, W. C. Dickens, is the brother of the testatrix, Emma Dickens Tisdale, and appellants, J. W. and J. H. Dickens, are her nephews. Appellee, W. O. Tisdale, is her surviving husband. Under the terms of her will she disposed of all of her property. Following the preamble,' the will contains eight numbered paragraphs.
This litigation involves the construction of that part of paragraph four which is as follows-. “Four: Of the remaining royalty acres of which I may die seized and possessed, I give unto the heirs of J. L. and Amanda Dickens, deceased, thirty-five royalty acres to be vested in said heirs of J. L. and Amanda Dickens forever; it being understood the rents, royalties and all other proceeds of this thirty-five acres are to be my husband’s until his death. ’ ’
In the trial below and here on appeal (quoting from appellants’ brief) appellants’ contention was, and is, “that under this paragraph of said will, and upon the death of. the testatrix, they became vested with the fee simple title to an undivided l/32nd part of all the oil, gas and other minerals underlying the lands left by the said Emma Dickens Tisdale, deceased, with the right to use and enjoy the same when produced, if ever; and, that the limiting clause, ‘it being understood the rents, royálties and all other proceeds of this thirty-five acres are to be my husband’s until his death,’ is void as being an attempt on the part of the testatrix to deprive the estate, first given, of all of its essential legal properties and as being inconsistent with and repugnant to the preceding-grant to them in fee.”
It was the contention of appellee, W. O. Tisdale, husband of the testatrix, that under the provisions of paragraph four, supra, he acquired a life estate in the thirty-five royalty acres mentioned therein, and that appellants only acquired a remainder over after the termination of his life estate. This contention of appellee, Tisdale, was upheld by the trial court, and we think correctly so.
The general rule in the construction of a will, running’ through a long line of our cases, is clearly stated in the very recent case of Rufty v. Brantly, ante, p. 32, 161 S. W. 2d 11, wherein we said: “All the cases are to the effect that the primary purpose of construing a will is to arrive at the testatrix’s intention in making it, and the rule of construction applicable in all cases is that the will should be read in its entirety, from its four corners, as many cases express the thought”; and also in Bowen v. Frank, 179 Ark. 1004, 18 S. W. 2d 1037, where it is said: “The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. Fitzhugh v. Hubbard, 41 Ark. 64; Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Cockrill v. Armstrong, 31 Ark. 580; Smith v. Bell, 6 Pet. (U. S.) 68, 8 L. Ed. 322. See, also, Norris v. Johnson, 151 Ark. 189, 235 S. W. 804; Lockhard v. Lyons, 174 Ark. 703, 297 S. W. 1018.” See, also, the case of Sheltering Arms Hospital, et al., v. Shineberger, 201 Ark. 780, 146 S. W. 2d 921.
We think it clear that the testatrix intended by the words “it being understood the rents, royalties and other proceeds of this thirty-five acres are to be my husband’s until his death” to so limit the estate conveyed to appellants in the preceding clause that it would not take effect until her husband’s death. In other words, the estate which she did convey to appellants was the remainder over in the thirty-five royalty acres in question upon the termination of the. life estate of her husband, W. O. Tisdale. It will be observed that this clause is only separated from the preceding clause by a semicolon and is a part of the same paragraph — and being the last clause, it will control the intention of the testatrix. If further evidence be needed that such was her intention, we find in paragraph three of the will that Mrs. Tisdale, the testatrix, devised to each of the three appellants and other kinsmen, two royalty acres in other land which was to take effect immediately upon, her death, and not at the death of her husband, and in a separate paragraph —paragraph four in question here — she gave thirty-five other royalty acres, which she owned at her death, to the appellants here in addition to the royalty acres given them under paragraph three, effective, however, at her husband’s death and not at her own death, as provided in paragraph three. The language used in both paragraphs is clear and unambiguous.
Appellant argues, however, that while such might have been her intention, she did not do so for the reason that the last clause in paragraph four, supra, is void and appellants acquired under the language remaining in said paragraph a fee simple title to the thirty-five acres which became effective at the testatrix’s death. We think, however, that this court in Bowen v. Frank, 179 Ark. 1004, 18 S. W. 2d 1037, has ruled to the contrary. In that case this court had before it for consideration the following provision contained in the will: “I hereby give, devise and bequeath to my seven children and legal heirs', to-wit: Charles F., Bobert B., John L., Walter A., Clara M., Elizabeth Gr., and Lenora E. Frank, now Mrs. S. A. Bowen, all of my property, real, personal and mixed, wheresoever situated, not already disposed of, which I now own or may hereafter acquire, and of which I may die seized and possessed, absolutely and in fee simple, and in equal shares. The division shall be made by three commissioners to be appointed, by my said children, and the lots and parcels of land so divided shall be drawn for by them, and any difference in the valuation be settled among themselves. The property of my daughters, however, shall be held and owned by them for their sole and separate use and enjoyment, free from the debts and contracts of any husbands, for and during their natural lives, with remainder in fee to their children, and in default of children surviving either of them, then to my children who shall then be living, their heirs and assigns forever, and should any of my sons die without issue, his or their share shall also revert to my children then living, their heirs and assigns forever. ’ ’
# # *
“The first clause of the fourth item provides equally for each of the seven children of the testator, and devises an estate in fee simple to each of them, sons and daughters alike. The last clause of this item, however, announces an unmistakable intention to limit the interest of his daughters to a life estate in their respective shares, as clearly as his intention in the opening clause had by its terms created an ownership in fee. There is no ambiguity or obscurity in either of. these clauses, and no room for the operation of the rule that a clear grant of the fee by an earlier provision of the will will not be modified or qualified by a later obscure and ambiguous provision, as said by the Tennessee court. .Since the last clause in a will governs in its construction in determining the intention of the testator, we are constrainted to agree to the holding of the Tennessee court, that it was the intention of the testator to devise to his said three daughters a life estate only, with a remainder in fee to their children, and if no children, then to the children of the testator then living, their heirs and assigns (Gist v. Pettus, 115 Ark. 400, 171 S. W. 480; Little v. McGuire, 113 Ark. 497, 168 S. W. 1084; Jackson v. Lady, 140 Ark. 512, 216 S. W. 505), the devise in the first clause of the item being restricted accordingly.” See Fleming v. Blount, 202 Ark. 507, 151 S. W. 2d 88.
Appellants frankly make this statement in their brief: “It would be foolish for appellants to insist that under paragraph four of the will there was not manifest an intention on the part of the testatrix that the appellee should receive a benefit from the thirty-five royalty acres devised to the appellants.” If the testatrix intended that appellee have the benefits from these thirty-five royalty acres, we think it clear that appellee, under the terms of paragraph four, not only acquired the benefits to be obtained from the thirty-five royalty acres in question, but that he acquired a life estate therein with remainder over to appellants at his death. We think, too, that the meaning of the term “royalty acres” as used in the instrument before us is the commonly accepted meaning, and that is — that part of the oil that goes to the landowner, whether it be in place or after production.
Finding no error, the decree is affirmed. | [
-78,
105,
-44,
93,
40,
-16,
10,
-104,
-61,
-117,
-77,
83,
77,
-105,
21,
33,
35,
45,
81,
106,
-90,
-73,
14,
-64,
-47,
-37,
23,
-57,
112,
-52,
-19,
-34,
73,
40,
-62,
85,
66,
-22,
105,
24,
-122,
65,
9,
97,
89,
-80,
50,
125,
76,
79,
113,
-50,
-77,
-86,
29,
107,
44,
110,
107,
-72,
88,
-80,
-118,
22,
91,
18,
0,
7,
-92,
-61,
-56,
74,
-104,
87,
-120,
-20,
115,
-90,
-58,
118,
2,
9,
8,
102,
103,
56,
77,
103,
-72,
10,
46,
-25,
-83,
-89,
-62,
89,
99,
72,
-67,
-108,
121,
-48,
-34,
-6,
-26,
-107,
92,
104,
4,
-114,
-42,
-77,
23,
-16,
-108,
19,
-13,
-121,
32,
81,
-49,
-94,
93,
-57,
125,
-97,
-114,
-14
] |
Kirby, J.
The only question for determination here is whether appellant should have charged, certified and attempted to collect, as a franchise tax from appellee, for the year 1926, upon the proportion of appellee’s capital stock as represented b3r its property owned and business transacted in this State during the said year, or only to collect, as a franchise tax for said year, the proportion \ of appellee’s capital stock as represented by its propert3r j owned land used in business transacted in this State dur- ' ing said 3-ear.
Appellants insist that the amended statute authorizing the levying of the franchise tax was inadvertently and by typographical error made to conflict with act 236 of the Acts of 1925, which covers the. entire subject of levy and collection of franchise tax, approved on the 27th day of March, 1925, the day before the amendatory act 271 of the Acts of 1925 was approved, and that said amendatory act should be construed accordingly as not -affecting the levying of the franchise tax.
The last act, § 2 of No. 271, amended § 9804, C. & M. Digest, to read as follows:
“That § 9804 of Crawford & Moses’ Digest be, and the same is, hereby amended to read as follows: ‘ Section 9804. Upon the filing of the report provided for in §§ 9802 and 9803 the Commission, from the facts thus , reported, and from other facts coming to its knowledge bearing upon the question, shall determine the proportion of the subscribed capital stock of the corporation represented by its property and business in this State on or before July 1, and shall report the same to the Auditor of State, who shall charge and certify to the Treasurer of State, on or before July 10, for collection, as hereinafter provided, annually, from said corporation, in addition to the initial fee otherwise provided by law, for the privilege of. exercising its franchise in this State, a tax of eleven one-hundredtlis of one per cent, each year upon the proportion of the subscribed capital stock of the cor_poiratioñ'repres'ented by property owned and used in business transacted in this State.’ ”
Appellee contends that this act, being in conflict with the former statute, necessarily repeals it, and that the franchise tax must be levied only upon its property., owned and used in business transacted in the State; while appellants insist that this last act only repeals act 236 as to the rate of taxation.
Said section of the statute it last amended was § 2, act approved February 15, 1917, which provided, a privilege or franchise tax as follows: “® * * A tax of one-tenth of one per cent, each year upon the proportion of the subscribed, issued and outstanding capital stock of the corporation represented by property owned and used in business transacted in this State. ’ ’
Section 7 of Act 236 of 1925 amends said section of1 the Digest to require the proportion of the capital stock of the corporation as “represented by its property and business in this State,” and charge and certify a franchise tax,.in addition to the initial fee provided, “of one-tenth of one per cent, each year upon the proportion of the issued and outstanding capital stock of the corporation used in Arkansas, as represented by property owned and business transacted in this State.”
The last act 271 of 1925 requires the Commission to determine the proportion of the capital stock of the corporation “represented by its property and business in tins State,” and to charge and certify to the Treasurer for collection as franchise tax, in addition to the initial fee, “a tax of eleven one-hundredths of one per cent, each year upon the proportion of the subscribed capital stock of the corporation represented by property owned and used in business transacted in this State.”
The Constitution provides that, in amending a law, so much thereof as is amended “shall be reenacted and published at length.” The language of this section of the statute, as last amended by said act. 271, is plain in its meaning and free from ambiguity, and is obviously in conflict and repugnant to the provisions of said statute as amended by and published at length in said act 236 of the Acts of 1925, which it necessarily repeals.
It is argued forcefully that the Legislature could not have intended, by amending this section of the statute, which was to provide means “for the erection of armories for the units of the National Guard, and for other purposes,” as shown from its title, to repeal the law enacted the day before, covering the whole subject of franchise tax, in effect destroying it.
Appellants contend, however, that the rate and percentage of taxation as.provided in said last act of the Legislature would have to be applied in the charging and collecting of the franchise tax, but that the provision limiting the charge to the capital stock of the corporation, “represented by property owned and used in business transacted in this State,” although necessarily repugnant to the provision of the said act 236, should not repeal it, but be construed to be rather in harmony with the first act covering the entire subject, both having been passed by the same Legislature and approved within a day of each other. There is no ambiguity, however, in this last act, and the law relating to the levying of the franchise tax, before the amendment by act 236, read exactly as does the last act, and there is no less reason to believe that there was a mistake made in the passage of said act 236, changing the former law, than in the last act 271, changing and amending said act 236, and necessarily repealing it.
It follows that the Tax Department of the State was without authority to. charge a franchise tax upon the, capital stock, as represented by property owned and bus^ iness transacted in this State, but should have charged same upon the proportion of the subscribed capital stock of the "corporation represented by property owned and„ used in business transacted in this Stiate, as provided by said act 271 of 1925.
It being conceded that the amount of franchise tax ' as tendered by appellee was the correct amount that could be charged under said act 271, no error was com.mitted by the court in permanently enjoining the State officials from collecting any other or greater amount than said sum, and the decree is accordingly affirmed. | [
112,
-1,
-36,
-20,
8,
-32,
42,
-74,
121,
-95,
-89,
83,
111,
90,
-108,
117,
-41,
37,
81,
114,
-43,
-93,
7,
105,
-102,
-13,
-47,
95,
49,
77,
-28,
-4,
76,
48,
-54,
-11,
70,
-86,
-59,
-98,
70,
-118,
25,
64,
-3,
100,
52,
75,
122,
79,
-79,
-50,
-14,
44,
30,
-39,
72,
46,
41,
-69,
-127,
-24,
-70,
-123,
111,
3,
49,
36,
-71,
9,
-56,
46,
8,
61,
0,
-56,
115,
38,
-122,
-42,
41,
-39,
8,
102,
102,
0,
101,
-27,
-36,
-104,
46,
126,
29,
-89,
-45,
88,
11,
-84,
-65,
31,
108,
18,
-49,
126,
-3,
-43,
31,
124,
1,
-114,
-42,
-77,
-123,
-28,
8,
67,
-1,
-89,
48,
96,
-50,
42,
93,
39,
18,
27,
87,
-52
] |
Mehaeey, J.
The appellant states that the sole question presented by this appeal is whether or not the action of one county in refusing’ to grant a ferry franchise is conclusive or res judicata on the other county adjoining to grant a ferry franchise at the same point, where the river is the boundary line between the two counties.
The appellee states that the sole question presented by this appeal is the question of res judicata.
The appellant owns land on the Jackson County side of the river, and has control from C. P. Vaughan, the owner of the land on the Independence side of the river. Appellant filed a petition in the Jackson County Court asking the court to grant him a ferry franchise to operate a ferry at a point on Black Biver. Black River is the boundary between Jackson and Independence counties, at the point where appellant asked for the franchise. The county court of Jackson County decided against him, and he appealed to the circuit court, where the case was again decided ag’ainst him: No appeal was éver taken from the finding and judgment of the circuit court.
On January 3, Í927, appellant filed his petition in the Independence County Court for a franchise to operate a ferry at the same point on Black River that was described in his petition theretofore filed in the Jackson County Court. The Independence County Court found in his favor. An appeal was taken to the Independence Circuit Court, which court found against him on the ground that the judgment of the Jackson Circuit Court was a bar to his right to prosecute this suit.
The only question therefore for the consideration ofi this court is whether the judgment of the Jackson Circuit Court was a bar to this suit.
We deem it unnecessary to either set out or discuss the provisions of the law with reference to the right of the county courts to grant a license or franchise, except that section which regulates the practice where the river is the boundary between two counties. That is § 4697 of Crawford & Moses ’ Digest, and reads as follows:
“If any navigable stream or lake shall form a portion of the boundary of any county so that one bank shall be in one county and the other in a different county, at the place where it is proposed to erect a ferry, then a license shall be had from the county court for the ferry on the respective banks or shores.”
It will be observed from the reading of the above section that, in order to get a license or franchise to operate a ferry across a river that is the boundary between two counties, the applicant must get permission from the county court in each county.
The authorities are not in entire harmony, some holding that, when the opposite sides of the river are within the jurisdiction of different boards, there is usually a concurrent jurisdiction delegated to them of the matter of ferries. Of course, if the courts had concurrent jurisdiction, the judgment of one court would bar any right of the party to have the matter determined by the other court. If the courts had .concurrent jurisdiction, the applicant for ferry privileges would have the right to apply to either. But, when he had done that, when he had selected the forum, a decision of that court would be binding on him — would be res judicata.
This court said, in a recent case in discussing article 7, § 28, of the Constitution:
“This undoubtedly includes the regulation of ferry rates, because it is a part of the control of ferries. .It was the plain purpose of the framers of the Constitution to place within the jurisdiction of the county court all control and regulation of ferries. The jurisdiction was exercised by the county court without objection in the case of Covington v. St. Francis County, 77 Ark. 258, 91 S. W. 186; Ark. Railroad Commission v. Bovay, 174 Ark. 1057, 298 S. W. 331.
This court also said, in speaking of the jurisdiction of county courts where the river was the boundary line, in the case of Fulton Ferry & Bridge Co. v. Blackmood, 173 Ark. 645, 293 S. W. 2, decided April 11, 1927:
“In making- the orders granting appellant the franchise heretofore mentioned, they each provided that said bridge should be located at the point .where the improved road from Texarkana to Hope now crosses the river at the town of Fulton.”
The court also said in the above case:
“It is left entirely optional with the county courts of the two counties whether or not the control of the bridge shall be taken over, and this provision leaves unimpaired the jurisdiction of the county court of the bridge when it has .seen fit to exercise this .jurisdiction. This conclusion leaves out of consideration the fact that the bridge is to span a navigable river which is the boundary between two counties, and that it is not and cannot be wholly within the jurisdiction of the county court of either county.”
It will be seen therefore that this court has held that, where the river is the boundary between two counties, the bridge could not be wholly within the jurisdiction of either county. The saíne is true with reference to ferry privileges. The privileges on one side of the river in this case are under the jurisdiction of the county court of Jackson County and on the other side of the river in Independence County.
The Alabama court stated, as said by appellant:
“As the State is intersected by numerous rivers, most of which constitute the boundaries of counties, it is very improbable that the difficulty supposed to exist in this case was not foreseen. In a case where either of two counties would have an equal right to establish a ferry, the right is given to both, and when the power is exercised by either it is exhausted. It is in the nature of concurrent jurisdiction, the proper exercise of which by. one tribunal necessarily ousts all others.” Jones v. Johnston, 2 Ala. 746.
The Alabama court in another ease said:
“It is contended by counsel for the plaintiffs in error, the river .being the dividing line between the two counties of Shelby and Talladega, each county has a right to establish a ferry on its side; and that in snch a ease, the prohibition that no ferry shall be established within two miles, by water, of another, does not apply. We cannot yield to the force of this reasoning. The licensing and use of a ferry necessarily require the use of both banks of the river; and, if one is established on one side, it excludes the idea of the legitimate establishment of another on the opposite side, or within two miles, by water, on either side.” 3 Porter’s Reports, 412.
It therefore appears that, whether the courts have concurrent jurisdiction as held by the Alabama court or whether the jurisdiction is confined to the county in which the court is held, in either event, the judgment of the Jackson County Court would be a bar. If the courts had concurrent jurisdiction, appellant’s right would be barred for the reasons given by the Alabama court. And, in order to be res judicata, it is only necessary that a court of competent jurisdiction has decided the question. It is immaterial whether it decided it right or wrong. If the decision was wrong, it could be corrected by appeal, and in no other way. But, if it had jurisdiction to try the case, that necessarily means that it had the power to decide it either way, and whatever decision was reached by the court was binding.
Under our statute, which we have quoted above, it appears that one desiring ferry privileges, where the river divides two counties, must apply to each county, and, that being' true, neither county court would have jurisdiction except to the center of the stream. But, since it would be impossible to operate a ferry from one bank of the river to the other unless a franchise was granted by both counties, when one county has passed on the question and refused to grant the license, it would be useless for the other county to grant it, because the ferry could not be operated, and the decision of the county court, then, on either side of the river, would be as effective in barring further proceedings as if the courts had concurrent jurisdiction.
The appellant in this case owned the land on the Jackson County side of the river. He applied to the Jackson County Court, and that court decided against him. On appeal to the circuit court, the circuit court of Jackson County decided against him, and appellant, having selected the forum, the county court of the county in which his land was situated, a decision of that court settles the question and disentitles the appellant to apply to the court in the other county, where, if a franchise was granted him, it would be perfectly useless.
The judgment of the circuit court is therefore affirmed. | [
81,
-2,
-12,
-4,
88,
-32,
16,
-102,
-37,
-93,
-27,
115,
-81,
-38,
9,
105,
-25,
127,
113,
27,
-28,
-94,
119,
-94,
-112,
-13,
-37,
-49,
-70,
79,
-28,
-59,
76,
49,
-54,
85,
70,
74,
-59,
-38,
78,
2,
-71,
73,
-47,
-45,
52,
106,
66,
-50,
21,
-113,
-93,
44,
25,
-61,
-119,
46,
-53,
-83,
18,
-72,
-18,
-35,
85,
4,
-79,
52,
-103,
-127,
-38,
46,
-112,
57,
32,
-8,
115,
54,
-122,
-76,
11,
-69,
-120,
54,
103,
2,
-19,
-17,
-20,
-40,
6,
-38,
-97,
-90,
-44,
120,
75,
64,
-65,
31,
126,
16,
7,
-2,
-18,
-60,
31,
110,
3,
-49,
-76,
-95,
-115,
-83,
-126,
3,
-57,
23,
-80,
112,
-58,
-38,
125,
68,
51,
27,
-33,
-68
] |
Hart, C. J.,
(after stating the facts). The Legislature of 1925 passed -an act to prohibit the running at large of horses, cattle, sheep, hogs, etc., in certain parts of Yell County. Acts of 1925, p. 170. Section 1 of this act reads as follows:
“It shall be unlawful for the owner, agent, or any person having charge of any horses, mules, cattle, sheep, goats, hogs, jacks, jennets or geese to permit or allow same to run at large in the following described territory of Yell County, Arkansas, to-wit: Wilson Township; Galla Rock Township; Centerville Township; Rose Creek Township; all of Dawson Township; all of Lamar Township; all of Mason Township; Ward Township;. all of Gilkey Township; Lower Lafave Township to foot of Fourche Mountain on south side; Rover Township to foot of Fourche Mountain on south side; and Compton Township to foot of Fourche Mountain on south side; Dardanelle Township; Delaware Township; Magazine Township; Prairie Township; all of Danville Township north of Petit Jean River and Chicago, Rock Island & Pacific Railroad; Sulphur Springs Township; Ferguson Township; Riley Township; Richland Township; Wave-land Township.”
It is agreed that the cattle belonged to the plaintiff, and that they -were impounded on land belonging to the defendant in Lower Lafave Township, in Yell County. It is conceded that the case turns upon the construction of the words “Lower Lafave Township to foot of Fourche Mountain on south side.”
We have copied all of the section defining the territory in the stock-law district in order to show the condition and situation of the lands as indicated by the Legislature when it passed the law. The intention of the Legislature in framing a statute is to be collected from the words used, the context,, the subject-mater, the effects and consequences, and the spirit and reason for the law. Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000; Gay Oil Co. v. State, 170 Ark. 587, 280 S. W. 632; Harris v. State, 169 Ark. 627, 276 S. W. 361, and Summers v. Road Imp. Dist., 160 Ark. 371, 254 S. W. 696.
It will be observed that the description with reference to Rover and Compton townships is identically the same as. that of Lower Lafave Township. All three of these townships lie on the north side of Fourche Mountain, and the top of Fourche Mountain is the south boundary line of each of the townships. Fourche River runs along- the north side of Fourche Mountain, and in some places there are abrupt rises, and in other places there is a narrow valley, and the first abrupt rise leads up the mountain. Fourche Mountain is from eig*ht to ten miles across from the foot of it on the north side to the foot of it on the south side. The mountains are only fit for grazing lands, and .are not susceptible to cultivation. Indeed, a large part of the mountain in Lower Lafave and the adjoining townships in Yell County is in the forest reserve of the United States Government, and permits, under certain 'conditions, are given to cattle, owners to graze their cattle there. The plaintiff had one of these permits.
Bearing in mind the situation and condition a.s it existed at the time the act was passed, we think it was the evident intention of the Legislature to exclude all of Fourche Mountain from the boundaries of the stock district. There is no conceivable reason why Fourche Mountain in Lower Fafave, Rover and Compton townships should have been included in the district and the rest of the mountain left out.
We have already seen the particular description applicable to this case, i.e., “Lower Lafave Township to the foot of Fourche Mountain on south side.” The word “to” is a word of-exclusion, and the Legislature evidently ■meant to exclude Fourche Mountain from the limits of the stock district. We think the words, “Lower Lafave Township to the foot of Fourche Mountain on the South side,” meant to the foot of Fourche Mountain on the south side of the township and not on the south side of the mountain. In the first place, the south side of the mountain opposite Lower Lafave Township would be in Crawford Township, as the top of the mountain is the dividing line between Lower Lafave and Crawford townships. While the description is somewhat awkwardly expressed, we think there can be no doubt but that this is the meaning of the Legislature, when the object and purpose of the act and all the surrounding-circumstances and the situation of the land are considered together. This is the view of the matter taken by the circuit court in trying the case.
The court' submitted to the jury the question of whether or not the field from which the cattle were taken was situated on the side of the mountain, at such a place where there was an abrupt rise in the land as distinguished from a gradual slope constituting- the narrow valley between the southern bank of Fourche River and the foot of the north side of Fourclie Mountain. The jury settled this question of faet in favor of the plaintiff, and, under our settled rules of practice, the verdict cannot he disturbed on appeal.
It follows that the judgment of the circuit court was correct, and it will therefore he affirmed. | [
119,
-17,
-112,
62,
8,
-32,
32,
-102,
83,
-119,
113,
83,
111,
-40,
-123,
49,
-30,
-19,
85,
121,
-44,
-74,
93,
2,
0,
-13,
-111,
-49,
-71,
77,
-18,
-27,
75,
16,
-54,
93,
-58,
108,
-127,
-36,
46,
69,
-101,
-52,
93,
80,
62,
41,
114,
78,
37,
-81,
-14,
46,
84,
-29,
41,
36,
-53,
44,
73,
115,
-6,
79,
95,
2,
-127,
64,
-104,
5,
-64,
94,
-104,
17,
68,
-8,
83,
-94,
-106,
116,
13,
-119,
-84,
34,
103,
9,
29,
-49,
-32,
8,
14,
-5,
-55,
-90,
-64,
25,
98,
10,
-98,
-99,
89,
80,
-114,
-14,
-29,
-27,
-33,
44,
-122,
-50,
-106,
-93,
-57,
41,
20,
5,
-15,
39,
32,
113,
-128,
-30,
92,
69,
112,
-98,
-122,
117
] |
Lyle Brown, Justice.
Plaintiff-appellee was injured when she alighted from appellant Yellow Cab’s vehicle and was struck by an oncoming car. Prom a judgment against it, Yellow Cab appeals. The North Little Rock Transportation Co., Inc., joins in the appeal because of the possibility that it might, in a subsequent proceeding, be held liable. Appellants insist there was no substantial evidence of causative negligence on the part of any cab driver; that the court erred in its instructions; that liability insurance was injected into the trial; and that appellants’ motion for a trial on the grounds of newly discovered evidence should have been granted.
Betty Dossett, twenty-two years of age and a working girl, lived a short distance from the apartment of her friend, Bonnie Pockrus, a telephone operator. Both were unmarried. On the night of the accident in December, the girls had planned to meet at Bonnie’s apartment at 111 West Thirteenth Street in Little Rock. Bonnie’s workday ended at around 9:00 p.m., and the television show which they were to watch started at 10:15 p.m. Here is a summary of the pertinent incidents as related by appellee:
She lived only four and a half blocks from Bon nie’s apartment but because of the lateness of the hour and a misting rain she called Yellow Cab; when she entered the cab she gave the driver the address of her destination; when the driver arrived at 111 West Thirteenth he stopped the cab in front of the address but on the opposite side of the street; (the cab entered West Thirteenth headed west and his right side of the street was opposite the apartment); as they turned into Thirteenth Street she handed him a one dollar bill; he was due to give her twenty-five cents in change and she reminded him of it; when he stopped the cab, Betty pointed to the apartment and said, “I want out at the house across the street over there in the U shape . . be was mad about the change and “he just sat there”; she finally concluded that he was not going to move until she alighted; cars were parked on the side of the street where the cab stopped; the cab was in the left half of his driving lane next to the white center line; she got out of the cab in a misting rain and bareheaded; she walked out from behind the Yellow Cab and was struck by an automobile operated by one Gary Elder, who was headed in the opposite direction; her vision of Elder’s car was somewhat obstructed by the Yellow Cab and an advertising sign on the back of it. (Elder was joined as a defendant and the jury returned a verdict in his favor.)
Appellants’ Point I: There was no substantial evidence of negligence on the part of any cab company which was a proximate cause of plaintiff's injury. Appellants’ argument is devoted to the theory that the cab driver’s responsibility had ended because Miss Dossett had alighted at a safe place, thereby assuming the status of a pedestrian.
Whether a particular point is a safe place for a passenger to alight is a relative matter which must be viewed in light of the particular circumstances. It is generally a jury question. Capitol Transit Co. v. Burris, 224 Ark. 755, 276 S. W. 2d 56 (1955). Plaintiff’s evidence must have convinced the jury that the cab driver discharged Miss Dossett at a place which was likely to subject her to risk of injury and coerced her into alighting at that point. In addition to our previous summary of Miss Dossett’s testimony there was this evidence: The driver could easily have taken a route which would have placed .him on the proper side of the street when the destination was reached; there was a vacant space next to the curb and immediately in front of the apartment; the driver could have turned into an alley which ran alongside the apartment and discharged Miss Dossett on the sidewalk; and the driver witnessed the striking of Miss Dossett and drove away, evidencing complete disregard for her welfare. Appellee testified that she took the cab such a short distance because she did not want to he out on the streets at night.
The cab driver had an unescorted girl as a passenger; the hour was late; she engaged a cab for a relatively short distance to take her to a spécific address; there was evidence of misting rain; trees and shrubs are abundant in the apartment block; several old buildings are evident; at one end of the block is a liquor store; and no street lights are shown in the center of the block, the situs of the apartment. Under those circumstances, and in view of her expressions of concern to the ca'b driver, it should have been evident that the girl might attempt the shortest route rather than walk a half block to one of the corners, cross the street, and walk another half block to her destination.
The cab driver owed the highest degree of care, consistent with practical operation, to afford appellee a safe place to alight. Arkansas Power & Light Co. v. Hughes, 189 Ark. 1015, 76 S. W. 2d 53 (1934); Checker Cab & Baggage Co. v. Harrison, 191 Ark. 564, 87 S. W. 2d 32 (1935). In the face of that duty it is not unreasonable to say that he created a situation which stimulated appel-lee to attempt to cross the street. If that be true, then the initial proximate causation continues. Hill v. Wil son, 216 Ark. 179, 224 S. W. 2d 797 (1949); 2 Restatement of Torts 2d § 443. Any negligence on her part wonld, nnder onr comparative negligence law (and under which this case-was submitted), diminish or bar her recovery, depending on her degree of negligence. See Restatement, supra, % 443 c.
Appellants’ Point II. The Instructions of the Court were erroneous. Yellow Cab offered this modification of AMI 1701:
“At the time of the occurrence in question, Yellow Cab Company was a common carrier. A common carriér is not an insurer of the passenger’s safety, but it has a duty to its passengers to use the highest degree of care consistent with the type of conveyance used and the practical operation of its business. While this duty on the part of a carrier requires it to furnish to- its passengers a safe place to alight, no further duty is owed by the carrier after a passenger has alighted at a safe place or after a reasonable time and opportunity to reach a position of safety. Thereafter, the passenger assumes the status of a pedestrian,-and is subject to all of the duties and obligations imposed upon pedestrians.” (Emphasis added.)
AMI 1701 was given but without the modification shown in italics. The refusal to give the instruction as modified was not error. The modified instruction contained the same error as the cab company’s proffered instruction in Checker Cab & Baggage Co. v. Harrison, supra. Checker Cab’s proffered instruction 11 (which was refused) would have told the jury that if Checker “transported the plaintiff with safety to the gate in front of his home and discharged him upon the highway in safety, its duty to him was performed, and thenceforth the plaintiff, Harrison, was a mere traveler upon the highway. . .”
The amended portion of AMI 1701, in essence, would tell the jury the same thing as qnoted from Checker Cab. Of the proffered instruction 11 this court said:
“It will he noted that appellant’s request number 11 absolved it from all liability when the passengers were dischaiged from the cab, irrespective of the place of discharge or the conditions surrounding it. We do not understand this to be the law.”
The safety requirements surrounding the discharge of a cab passenger in a public street are to be found in Checker Cab. Exercising the highest degree of care consistent with practical operation, the driver should not discharge the passenger at a point where reasonable foresight would dictate the passenger might be injured. All circumstances at the moment which would be evaluated by a competent driver should be considered. The phrase in the amended instruction, “no further duty is owed by the carrier after a passenger has alighted at a safe place,” certainly does not embody the recited requirements.
Within the format of AMI 601 the trial court inserted a city ordinance which requires cab drivers, when possible, to discharge passengers at the sidewalk or at the extreme right side of the street. The jury was told that a violation of the recited ordinance would not necessarily be negligence, only evidence of negligence. Contrary to appellants’ contention, we perceive no er-. ror in giving that instruction. Whether.it was possible to discharge Miss Dossett near the sidewalk crossing the alley, or in a vacant place near the curb on the apartment side of the street, and whether the driver’s failure to so act constituted a proximate cause, were .questions for the jury.
Appellants’ Point III. The Court erred in refusing to- grant a mistrial when counsel for Gary Elder delib erately mjected the existence of liability insurance for the taxicab as an issue in the case although he knew that no such liability insurance existed. Mr. Fred Andres, president of Yellow Cab Company, testified. The main purpose of his testimony was to establish Yellow Cab’s contention that none of its vehicles was transporting Miss Dossett on the night of the accident. Counsel for co-defendant Gary Elder cross-examined Andres. In that examination counsel produced a deposition given by Andres. There Andres had stated that on the morning after the accident he received knowledge of the incident from the night manager’s report. Shortly thereafter he sent a report to the insurance company. Counsel for Yellow Cab moved for a mistrial because of the reference to insurance. The motion was overruled and Gary Elder’s counsel continued to read from the deposition which contained additional reference to correspondence with a liability carrier. The court admonished the jury that the only purposes for which those references could be considered would be in relation to credibility of the witness and the identity of the cab involved in the accident.
We find no error. Insurance was not injected into the ease by appellee. It was mentioned by co-defendant’s counsel and in good faith in an effort to show that the identity of the driver and of the particular cab involved was known to Yellow Cab the day after the accident. On direct examination, Andres indicated the contrary to be true. We cannot say the court abused its discretion. A latter portion of the deposition, in which Andres asserted the non-existence of liability insurance, was not read by Elder’s counsel. Counsel for Yellow Cab asserts that failure as error. Yellow Cab’s counsel did not offer to read that portion of the deposition. He asked the court to instruct the jury as to the absence of liability insurance, and the court properly refused. ^
Appellants ’ Point IY: The court erred in denying appellants' motion for new trial based on newly discov ered evidence. In a matter of days after the trial, Yellow Cab and North Little Rock Transportation Co. (the latter operated Dixie cabs) moved for a new trial. The reason here pertinent was as follows:
“The movants have discovered new evidence which they could not, with reasonable diligence, have discovered and produced at the trial. Subsequent to the trial, one Dewey "Worthey, a taxicab driver, reported that he had read the newspaper report of the jury verdict and that he remembered the incident and that the taxicab out of which Miss Dossett alighted had been driven by one Richard John Laske who was driving Dixie cab No. 24 . . .”
Most of the essential rules for the consideration of a motion for new trial are succinctly stated in Halbrook v. Halbrook, 232 Ark. 850, 341 S. W. 2d 29 (1960). Summarizing, the trial court has broad discretion; these motions are not favored by the courts; the court should be convinced that injustice has been done; the new evidence is not cumulative; the proof was not discoverable through due diligence; and the additional testimony would probably change the result.
"We have carefully weighed the evidence on Point IV in light of Halbrook and conclude the trial court’s ruling should not be disturbed. We are particularly persuaded by the testimony of Mr. Andres, president of both companies, and his own employees. Andres conceded that on the morning after the accident he knew the identity of the driver; Dewey Worthey, a cab driver employed by Andres, testified he learned the driver’s identity, having talked with the driver on the night following the accident ; and that the incident was discussed by the driver at a cafe table in the presence of some five cab drivers, all employed by Andres. A radio dispatcher testified the driver of Betty Dossett’s cab called in when the accident happened and asked for instructions. The dispatcher said he reported to the night manager, who made up a report on the accident. That report was made available to Andres, who in turn made a report to an insurance carrier.
Suit was filed July 6, 1965. From that time until the date of the trial, appellants had twenty months in which to ferret out the “missing” evidence. It is not unreasonable to conclude that due diligence would have revealed the evidence in ample time for the trial.
Affirmed. | [
48,
110,
-15,
-82,
25,
96,
58,
-70,
87,
-125,
-73,
-45,
-81,
-61,
92,
105,
-17,
125,
85,
99,
-107,
51,
7,
34,
-14,
-69,
51,
-124,
-112,
-53,
-28,
-2,
76,
49,
74,
-35,
102,
74,
-59,
28,
-122,
-122,
-103,
108,
25,
67,
32,
122,
66,
7,
97,
-97,
-61,
46,
24,
78,
45,
108,
107,
-83,
-16,
112,
-56,
13,
95,
2,
33,
4,
-101,
5,
120,
8,
-48,
-79,
40,
-24,
114,
-90,
-126,
116,
103,
-103,
-124,
-96,
98,
0,
13,
-59,
-68,
-116,
6,
120,
-81,
-89,
-96,
41,
25,
105,
-65,
-97,
111,
4,
8,
-6,
-38,
-43,
89,
96,
5,
-50,
-108,
-95,
-51,
-31,
-76,
-115,
-21,
-107,
48,
117,
-54,
-14,
92,
69,
86,
-101,
-58,
-10
] |
George Rose Smith, Justice.
On October 3, 1963, the State Highway Commission filed an action to condemn 8.67 acres of the appellees’ land, to serve as part of the right-of-way for Interstate Highway 40. On February 7, 1964, the case was settled by the entry of a consent judgment awarding the landowners $13,300 as just compensation for their land. Nineteen months later the appellees filed the present complaint to set aside the consent judgment for fraud in its procurement. They assert that the Highway Department, by its agents and attorneys, falsely represented that it would construct a culvert under the highway of sufficient size to enable the landowners to move their cattle and machinery back and forth from one side of the highway to the other, their farm having been cut in two by the controlled-ac cess highway. This appeal is from an order sustaining the charge of fraud and setting aside the consent judgment. Such an order is final and appealable. Norman v. Cammack, 105 Ark. 121, 150 S. W. 563 (1912).
The controlling principles of law are not in dispute. The appellees had the burden of showing that the judgment was obtained by fraud. Karnes v. Gentry, 205 Ark. 1112, 172 S. W. 2d 424,(1943). The charge of fraud must be sustained by clear, strong, and satisfactory proof. Graham v. Graham, 199 Ark. 165, 133 S. W. 2d 627 (1939). In explaining why such a clear-cut case must be made by one who attacks a judgment we have often used this language: “The statute to vacate judgments by this proceeding is in derogation not only of the common law, but of the very important policy of holding judgments final after the close of the term. Citizens must have some confidence in the judgments of our judicial tribunals, as settlements of their controversies, and there should be some end to them. Unless a case be clearly within the spirit and policy of the act, the judgment should not be disturbed.” Hardin v. Hardin, 237 Ark. 237, 372 S. W. 2d 260 (1963).
Fraud that entitles a party to impeach a judgment must be extrinsic of the issues tried in the case and cannot consist of fraudulent acts or testimony the truth of which was or might have been at issue in the case. It must be a fraud practiced upon the court in the procurement of the judgment itself. Ark. Stat. Ann. § 29-506 (Uepl. 1962); Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234 (1950). Even though the fraud that vitiates a judgment may be constructive rather than actual, constructive fraud is nonetheless a species of wrongdoing. It is a breach of a legal or equitable duty, which the law declares to be fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133 (1950); Levinson v. Treadway, 190 Ark. 203, 78 S. W. 2d 59 (1935).
The appellees’ proof, tested by the controlling rules of law, falls decidedly short of establishing actual or constructive fraud on the part of the Highway Department. The principal point in dispute concerns the size of the culvert under the highway. That underpass, as actually built, was ten feet wide and twelve feet high. The appellees insist that the dimensions of the culvert should have been just the opposite — twelve feet wide and ten feet high — and that essential farm machinery cannot be moved through the narrower corridor.
C. A. Clemmons, one of the appellees, took the lead in negotiating the settlement with the Highway Department. C. A. and his son Frank testified that after the condemnation suit was filed they went to the office of the Department’s resident engineer in Clarksville to learn the size of the culvert that was to be provided for the landowners. They talked to an assistant engineer, whose name they were unable to remember and who was not produced as a witness in the case. The two Clem-monses testified that the assistant engineer showed them the Highway Department’s plans, which described the proposed culvert as being twelve feet wide and ten feet high.
C. A. Clemmons first determined the actual dimensions of the concrete culvert when its construction was commenced. “It was there at the house, and I saw it.” He made no protest to the Highway Department, however, until some time after the culvert was completed. He testified that he talked to a succeeding district engineer, J. F. Price, who said that a mistake had been made in the construction of the culvert, which should have been twelve feet wide and ten feet high. Frank Clem-mons gave similar testimony.
The appellees called Price as their witness, but he did not corroborate their testimony. He testified that he had checked the plans and that they specified a 10-foot width and a 12-foot height for the culvert. He positively denied having said that a mistake had been made.
E. W. Smith, the resident engineer at the time of the trial, testified for the Highway Department. He produced a copy of the original plans, which showed that the culvert was designed to be ten feet wide and twelve feet high — just ás it was built. Smith described the care with which he had checked pertinent records to be sure that the plans had not been changed. There is no sound basis for questioning the authenticity or accuracy of the set of plans that were produced by Smith and received in evidence. They effectively rebut what was really the key testimony for the appellees; that is, the Clemmonses’ statement that an unidentified assistant engineer showed them a set of plans with the culvert’s dimensions reversed. We should add that the specifications for the culvert are set out in the plans in such a way that a layman could easily make a good faith mistake in determining the proposed width and the proposed height.
It will be seen from our summary of the evidence that there is no sound basis for a finding that the Highway Department was guilty of actual or constructive fraud in agreeing to construct an underpass for the landowners. There is in the record certain testimony going to show that the approaches to the concrete floor of the underpass were so poorly built that they were washed out by surface water produced by heavy rains. There is, however, no proof that the Department perpetrated a fraud upon the condemnees by falsely promising to construct and maintain permanent approaches to the underpass.
It is fair to say that the appellees’ evidence goes to indicate, at the very- most, that the Clemmonses understood that they had a certain agreement with the Highway Department about the promised underpass and that by mistake the Department failed to construct the underpass in conformity with that agreement. Even so, the proof fails to show that the Highway Department employees were guilty of actionable fraud, and the ap-pellees are prohibited by the Constitution from suing the State for breach of contract.
Reversed and remanded for the reinstatement of the consent judgment.
FoglemaN, J., dissents. | [
115,
-20,
-12,
-4,
107,
-64,
24,
-118,
83,
-86,
119,
83,
-17,
66,
-124,
55,
-26,
63,
116,
106,
-44,
-78,
71,
99,
114,
-13,
91,
-11,
-69,
77,
-28,
-43,
76,
48,
-54,
-107,
102,
-54,
-59,
90,
-114,
34,
-120,
109,
-55,
-64,
48,
-25,
18,
-113,
85,
-81,
-9,
46,
25,
-61,
-23,
44,
123,
-23,
73,
-14,
-100,
5,
127,
4,
33,
38,
-118,
3,
-24,
46,
-104,
49,
9,
-104,
115,
-74,
19,
116,
109,
-101,
8,
-30,
98,
1,
69,
-17,
-68,
-116,
14,
-10,
-115,
-90,
18,
88,
-53,
1,
-74,
-111,
124,
16,
14,
-2,
-9,
-123,
95,
104,
9,
-117,
-10,
-77,
14,
60,
-102,
19,
-13,
-91,
18,
112,
-51,
-16,
92,
103,
114,
27,
6,
-15
] |
McHaney, J.
For approximately three years before the death of Mrs,. Nancy E. Cowden, appellee, who was her niece, lived in her home at Morrilton, Arkansas, without charge for room and board. During all of this time appellee was employed as office girl in the office of Dr. Gray of Morrilton, at a salary of $10 per week, with the exception of the last six months of Mrs. Cowden’s life. In June, 1925, Mrs. Cowden fell, and so injured herself that thereafter she was 'confined to her room, but not entirely confined to her bed, and was. unable to attend to her usual household duties. She remained in this condition until the latter part of December, when she died. During this time, the last six months of Mrs. Cow-den’s life, appellee remained with her aunt, waited on her, and attended to the usual household duties, and did not work for Dr. Gray after the first of June. Appellee’s father, who was a brother of Mrs. Cowden, was appointed administrator of her estate, and Ms daughter, the appellee, presented a claim to him against the estate for services rendered her aunt in the sum of $3,675, which he allowed, and directed an attorney who had been employed to contest the suit of Charlie Wood against this same estate, to abandon such contest. For the facts in the case of Allnut v. Wood, see the decision in that .case this day filed. Shortly thereafter, the other heirs of Mrs. Cowden filed a petition in the probate court, and caused the removal of Williams as administrator, and appellant, Clerget, was appointed in his place. Clerget thereafter disallowed the claim of appellee, which was then presented to and disallowed by the probate court. Appellee thereupon appealed from the order of disallowance to the circuit court, and upon a trial of the case there, before a jury, she obtained judgment for the sum of $800, and the administrator has brought the case here for our consideration.
The only question raised by this appeal is the sufficiency of the evidence to sustain the verdict and judgment appealed from, it being contended on the part of appellant that, since appellee admitted that she had no express contract, agreement or understanding with the deceased, that she was to receive compensation for her services, and being of near kin to the deceased, the law will not imply a contract to pay for such services, under the rule announced in the cases of Hogg v. Laster, 56 Ark. 382, 19 S. W. 975; Lewis v. Lewis, 75 Ark. 191, 87 S. W. 134; Williams v. Walden, 82 Ark. 136, 100 S. W. 898; and Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540. The rule as stated in the last case is as follows: “It is also an elementary principle of law that the contract which the law ordinarily implies to pay for services and maintenance is not presumed between parent and child, or in any other case of near relationship, where the parties live together and create the family relation.”
As was also stated in the above case, “it is an elementary principle of the law of contracts that, where a party accepts the beneficial results of another’s services, the law implies a previous request and a subsequent promise.” In that case the relationship was brother and sister, and the court told the jury that the plaintiff could not recover without establishing a special or express promise to pay her, and further, that the evidence showed the relationship between the claimant and the deceased to be sister and brother, and that, where this relationship existed, the law' presumed the services were rendered •gratuitously. This court reversed the case on these instructions, and further said:
“No hard and fast rule can be laid down, and every case must be governed by its peculiar circumstances. It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as by direct evidence. All the surrounding- circumstances under which the services were performed may be proved.”
The proof in this case shows that appellee rendered valuable and useful services to her aunt, and that, while there was no express promise to pay, yet it was discussed between them that a hired girl might be obtained for the sum of $3 per week, and her aunt expressed the wish that appellee should attend to and look after her wants and desires; that she discussed adopting appellee and the said Charlie Wood, to the end that they might inherit her estate, and the making- of a will was also discussed, but neither idea was ever carried into execution. Under these circumstances, and others that might be detailed, we think it was quite competent for the jury to infer such a promise from all the circumstances in the case, under proper instructions from the court. No question is raised here regarding the correctness of the court’s instructions, and an examination thereof by us discloses that the case wras properly submitted to the. jury. We are, however, of the opinión that the jury lias rendered a verdict for an excessive amount, an amount not supported by any substantial testimony. At the time she quit work for Dr. Gray, appellee was earning the sum of $10 per week. It is not shown that she was a trained nurse, nor that she had any special or peculiar qualification for this particular work, nor that the duties were so much more arduous and trying as to make the services worth three and one-half times as much as she had been getting per week. It is shown that competent help could have been obtained for $3 per week, and we have .concluded that $10 per week for a period of six months, or twenty-six weeks, is as mulch as the evidence authorizes a judgment to be entered for. If therefore the appellee will enter a remittitur of $54-0 within fifteen days, the judgment will be affirmed for $260; otherwise the cause will be reversed and remanded for a new trial. | [
-112,
108,
-52,
-68,
42,
96,
99,
-70,
83,
-125,
53,
83,
-17,
86,
93,
109,
51,
125,
85,
107,
-47,
-77,
23,
-32,
-109,
-69,
-15,
-43,
-71,
-54,
-28,
-33,
73,
57,
10,
-47,
-62,
-54,
-59,
88,
6,
-115,
-55,
108,
73,
-46,
56,
109,
88,
79,
113,
-34,
-77,
40,
17,
71,
76,
110,
125,
51,
80,
97,
-118,
13,
-1,
22,
49,
7,
-102,
-119,
72,
106,
-104,
49,
-128,
-24,
51,
-74,
-126,
84,
107,
-119,
8,
118,
67,
33,
-119,
-17,
-120,
-102,
38,
126,
-99,
-26,
-110,
89,
11,
105,
-74,
-111,
119,
64,
30,
-4,
-6,
-59,
92,
104,
-119,
-49,
-42,
-79,
-123,
-32,
-108,
18,
-21,
-93,
50,
113,
-51,
-94,
93,
-57,
115,
-101,
-106,
-38
] |
Smith, J.
Appellee, Joseph Max Anderson, was married to appellant, Jewell De Arman, in 1918, and to that union two children were born, Maxine and Nanette, now eight and six years old, respectively. They were married in North Carolina, and later moved to Alabama, where, on January 1, 1925, the wife brought -suit for divorce, which terminated in a decree in her favor. This decree provided that each parent should have the custody of one child for the period of ia year, after which the custody of the children should be changed, and each parent then have for the period of a year the custody of the child which the other parent had had for the previous 3 ear.
The decree relating to the custody of the children was rendered by the consent of the parties. In February, 1926, this decree was modified by consent of the parties, and it was there ordered that the mother should have the custody of both children until July 1, 1927, after which time the father should have the custody of both children until July 1,1928, and thereafter the custody should alternate and be changed on the first day of July of each year, so that the children should be kept together by first one parent and then the other for the period of a year.
Prior to the separation which preceded and led to the suit for divorce, appellee was employed at a mill where George C. Hamilton was employed as a foreman. Hamilton at that time was a married man, but he and his wife separated, and he obtained a divorce from her in September, 1924. Hamilton and appellant were married a few months after the rendition of the last decree by the Alabama court, and, after a short residence in Alabama, they moved to Louisiana, but, in March, 1927, they moved to Walnut Ridge, where they have since lived and are now residing. This was the original home of appellant, where her father and mother 'have long* resided and now live. Appellee also returned to this State, and is now residing in Little Rock.
On March 23, 1927, appellant filed this suit in the chancery court of Lawrence County, and prayed that court to make an order awarding* to her the permanent custody of both children. The court declined to make this order, and the decree of the Alabama court was left in full force and effect, and this appeal is from the decree of the Lawrence Ohancery Court refusing to change the custody of the children ias prayed.
The jurisdiction of the Lawrence Ohancery Court is conceded, and we think there is no question about the jurisdiction of the Arkansas court to change the direction of the Alabama court as to the custody of the children, upon a proper showing.
In the case of Kenner v. Kenner, 139 Tenn. 211, 201 S. W. 779, L. R. A. 1918E 587, the Supreme 'Court of Tennessee said:
“We are of the opinion that, as between the parents, parties to the litigation, the decree of the foreign court awarding the custody of the children is res judicata, subject, as between these parties, to modification only by the court that granted the decree. (Citing cases). However, we think this doctrine should be understood with the qualification that, in ease of the removal of the child to another State, even within the custody of the parent to whom that custody had been awarded b}f the foreign decree of divorce, the courts of the State to which the ' removal has been effected will have the power, on a change of circumstances showing such course essential to the best interests of the child, to make, a new disposition. of the child. (Citing cases).” See also cases cited in the note to the text, chapter “Divorce,” 19 C. J. 366, quoting from this Tennessee case.
The courts of this State have therefore the jurisdiction to order a change of custody of the children upon a proper and sufficient showing that such a change should be made, and prior decisions of this court, have announced the conditions under which that jurisdiction should be exercised.
In the case of Weatherton v. Taylor, 124 Ark. 579, 187 S. W. 450, it was said:
“The following statement of the law on the subject is found in 9 Ruling Case Law, page 476: ‘A decree made at the time of the divorce cannot anticipate the changes which may occur in the condition of the parents, or in their habits and character, and their fitness to have the custody and care of the children. The parent, having the custody of the children may marry; may become poor and unable properly to maintain and educate them; may become vicious and morally unfit to have the control of children. These changes, and other sufficient causes, may make it necessary for the good of the children tliat their custody should be changed. * * * Moreover, a delinquent parent may, in the course of time, become entirely fit to have and retain the custody of his or her child. And so it has been held that the presumption of unfitness on the part of a father for the custody of his child, raised by refusal of the court to award it to him upon granting a decree of divorce against him, is overcome by evidence of an exemplary life for many months after the passing of the decree. A decree fixing the custody of ia child is, however, final on the conditions then existing, and should not -be changed afterward unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child’.”
The later cases of Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Stone v. Crofton, 156 Ark. 323, 245 S. W. 827, and Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492, recognized the right of the court to change the custody of children where changed conditions make it advisable and for the best interests of the child or children to do so, although the original decree awarding the custody is a final decree from which an appeal might have been prosecuted. These cases are also authority for holding that, in determining whether there have been changed conditions, the court, as was said in the case of Caldwell v. Caldwell, supra, “must keep in view primarily the welfare of the child,” and that “the custody of the child is not awarded for the purpose of gratifying the feelings of either parent or with any idea of punishing or rewarding either parent.”
Neither party to this litigation questions the fitness of the other to have the custody of the children, but. appellee insists that no change in the circumstances has been shown wdiieh will justify a modification of the amended decree of the Alabama court, which, as we have said, awarded the custody of both children to first one parent and then the other, each for the period of a year.
We think, however, that the testimony does show such conditions as warrants a change of custody. At the time of the rendition of the Alabama decree neither parent had a home to which the children could be taken, and the father has none yet. It is true that he clearly shows his devotion to the children and his willingness and ability to provide for them, but he has remained unmarried and has established no home of his own. He shows that his father and his stepmother have a home in which the children can be properly taken care of, and that he can and will provide a home in which some suitable person will be employed to minister to the children, if necessary. But the mother has now a permanent home, and she is anxious to have the custody of the children, and has given every assurance that the children will, if delivered to her, receive the attentions which their tender ages require. The mother has been a teacher, not only of the common school studies, but of music as well, and it is not questioned that the children will, if placed in her care, have the proper environment and the best advantages.
The elder child was called as a witness at the trial below, and stated that she and her sister were living with appellee’s father, both slept, in the same room with her grandfather and grandmother, and with “Uncle Bruce,” and that, when appellee visited them, he slept with “Uncle Bruce,” and all in the same room, and she stated that she would like to stay with her mother all the time.
We cannot be unmindful of the fact that, because of their tender age, the children require the constant attention which only a mother’s love can give, and for this reason, principally, we think their custody should be awarded to her.
Section 3 of act 257, Acts 1921 (General Acts 1921, page 317) is as follows:
“Where the husband and wife are living apart, there may be an adjudication of the court as to their power, rights and duties with respect to the persons and property of their unmarried minor children. In such cases there should be no preference between the husband and wife, but the welfare of the child must be considered first in determining the custody of such child, or the control of its property * *
This statute has been construed in the cases cited as requiring the courts, in awarding custody of children, to regard, as was said in the case of Stone v. Crofton, supra, the welfare of the child as “of first importance,” and, in the discharge of this duty, we have concluded that the custody of these children should be awarded to their mother, at least during the period of their tender adolescence.
The decree of the court below will therefore be reversed, and the cause remanded, with directions to the court below to award the custody of both children to appellant, reserving to appellee, the father, the right to visit them at any reasonable time- and to give him, if he so desires, the right-to have them with him during their school vacation periods.
Hart, C. J., dissents.
Kirby, J., disqualified and nonparticipatiug.. | [
-16,
-48,
-20,
108,
58,
101,
-50,
-101,
122,
-30,
-91,
-45,
-21,
78,
72,
105,
67,
43,
85,
121,
-31,
-77,
22,
-80,
-37,
-13,
-7,
-35,
-77,
77,
-4,
86,
72,
40,
10,
-37,
66,
-112,
-51,
-44,
-50,
-88,
-87,
-20,
88,
-62,
52,
99,
16,
15,
85,
-113,
-9,
46,
61,
-47,
108,
47,
-37,
56,
-48,
-23,
-118,
4,
78,
22,
-79,
101,
-126,
-123,
72,
46,
-104,
49,
32,
-23,
51,
-124,
-110,
118,
76,
41,
8,
112,
102,
4,
-51,
-26,
-40,
-104,
-122,
42,
-99,
-89,
-109,
89,
98,
-58,
-66,
-107,
125,
17,
-117,
126,
110,
69,
52,
40,
8,
-113,
-106,
-79,
-123,
57,
-116,
3,
-29,
-93,
32,
49,
-33,
-94,
92,
71,
51,
-111,
-57,
-40
] |
Mehaeey, J.
Appellee brought this suit in the Craighead Circuit Court against appellant, alleging that, in July, 1923, he approached the defendant’s track nearNettleton on horseback, intending to cross the track, but a passenger train had stopped at the station, and the engine and part of the train obstructed the crossing. He remained on his horse about sixty-five feet from the engine, and he alleges that the servants of appellant, while he was sitting- on his horse, carelessly opened the valves on the engine and negligently permitted large quantities of steam to escape in the direction of and on the horse, causing it to take fright, resulting- in his being-thrown and the breaking of his ankle, and for the injuries thus received he brought this suit. There was a jury trial, a verdict for the plaintiff, and the defendant has appealed.
The evidence is substantially as follows: Appellee is sixty-one years old, lived at Nettleton, and had been plowing, and was on his way home at 11:30 in the morning on July 11,1923. He rode towards the crossing, and stopped about sixty-five feet from the main line. He was riding a mare that was gentle, and about nine years old, and he was in the habit of crossing* the railroad four times a day. The train stopped on the crossing, and the engineer was looking at appellee, and pulled something and the steam came' out, and the mare threw appellee and broke his ankle. Appellee had been sitting there only a minute when the steam came out and frightened the mare. According to appellee’s testimony, the steam came clear out to where he was and covered the mare. He was in plain view of those in charge of the engine.
There is no controversy about the amount of the verdict, and it is unnecessary to make any statement with reference to the extent of the injury.
The engineer, who had had 35 years’ experience as a locomotive engineer, stated that the only place the steam could come out on the right side of the engine is at the right cylinder cocks, and on the left side, the fireman’s side, is the blow-valve, but, to open it, á man would have to get on the running-board. Neither the engineer nor the fireman got out of the locomotive at Nettleton. No steam was let out of the engine. To open the valve to cover one with steam and make a loud noise one would have to get out on the front end of the engine and open the mud-valve. That was not done. The engineer testified that, when he started from Nettleton, he put the reverse lever in full stroke and opened the throttle. The train was headed towards Jonesboro. When the train started he looked back to see if trespassers were on the tender or mail-car, and he saw a horse wheel and some one fall off. On a hot sunshining day steam makes no clouds. It cannot be seen. When the cylinder cocks are opened there is just a little noise, and the steam cannot be seen. . He said on a day like that the steam could not be seen, and no steam was blown out.
The fireman testified substantially the same as the engineer, ;and also said that it is only after a long stop that it is necessary to open the cylinder cooks, and that the cylinders were 40 feet from the crossing and 18 inches from the ground.
Defendant’s witnesses did not know what frightened the horse.
There was other' testimony about the accident, and as to the manner in which the steam escaped, and the conduct of the agents and servants of the appellant, and that of the plaintiff also. There is a conflict, and we deem it unnecessary to set out the testimony, further than to show the issues submitted to the jury.
Appellant urges, first, that the evidence is not legally sufficient to support the verdict. Appellee testified that' lie was riding a gentle animal; that he had been plowing, and left the field about eleven-thirty, and approached.the railroad crossing, saw the train approaching, and stopped his horse. That the animal he was riding was about eight or nine years old, and very gentle. Any member of the family could drive her. She had been around trains frequently. That appellee crossed the tracks with her, going'to and from work, two or three times daily. Never was frightened before. The train stopped with the engine on the highway crossing. The engineer was looking around and was looking at appellee, when he pulled something, and the steam came out and scared the mare, and she threw him over her head. ' A good deal of steam came out and covered the mare. Carn'e clean out where we were. Appellee was in plain view of the men on the engine, and they saw him. The steam came out in a way that he couldn’t see anything. The engineer was half laughing and looking at appellee, and when he did that he did it out of a pure spirit of devilishness or hellishness. Cinders hit the mare. The noise was loud enough to be heard 1250 feet away.
Although some portions of this testimony of the appellee was denied by witness for appellant, it was sufficient evidence upon which to base a verdict. In other words, the evidence on the part of appellee tended to show that the servants of thé appellant negligently and carelessly frightened his horse, and that this was the cause of his injury. This court has many times held that where there was any substantial evidence to support the verdict, this court will not disturb it. That is thu settled rule of this court, and it .is unnecessary to call attention to the authorities. When the evidence is. conflicting, the verdict of the jury will not be disturbed by this court.
Appellant’s next contention is that the court should have given the instructions requested by the defendant. Appellant’s first instruction is as follows:
“No. 1. It is the duty of railroads to exercise reasonable and ordinary, care to observe travelers near crossings,' and'it should refrain from doing any heedless or unnecessary act calculated to frighten horses bearing travelers rightfully near crossings. But it is also the duty of ihe traveler not to' unnecessarily or negligently place his horse i.n a position where the horse may become frightened by the escape of steam, or other noises which engines necessarily make, even when they are operated with due care, nor to sit on his horse in a position where he cannot protect himself from falling off should the horse take fright at such escape of steam or other noises.” ■ .
It was, of course, improper to tell the jury that it was the duty of the travelers “not to unnecessarily or negligently place his horse in a position where the horse may become frightened by the escape of steam or other noises which engines necessarily make, even when they are operated with due care, nor to sit on his horse in a position where he could not protect himself from falling off should the horse become frightened at such escape of steam or other noises.” It would have been improper for the court to tell the jury whether it was proper or improper for a person to sit on his horse as plaintiff did, but he should have submitted these questions to the jury, and it was the jury’s duty to determine whether the conduct of the appellee at the time was negligent or not, and to determine also whether defendant’s servants were guilty of negligence. The instructions requested by appellant were covered by instructions given by the court.
Instruction No. 2, requested by the defendant, was properly refused. The injury in this case was caused by the running of a train, and instruction No. 2 assumed that the injury was not caused by the running of a train.
Appellant complains at the refusal to give its instruction No. 3 as requested, and to the court’s giving it as modified. The modification consisted in adding the following words: “in a degree equal to or greater than that of the employees in charge of the said train, if you find they were negligent.”
“In all suits against railroads for personal injury or death caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of a less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided that, where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.” C. & M. Digest, § 8575.
As to whether this was a proper modification of the instruction and as to whether it was proper to give it as modified, depends upon the meaning of the words “running of a train.” ' It was said by the Supreme Court of Georgia:
“It is urged that, if the injury occurred as alleged and proved by the plaintiff, this is not a case in which the statutory presumption of negligence arises. Section 2321 of the Code declares a railroad company shall be liable for any damage done to persons, stock or other property by the running of the locomotives or cars or through the machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make-it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. The argument in that case, was inasmuch as the car was standing still when the passengers were directed to leave it and go to another car, the injury was not done by the running of the car or by any person in the employment and service of the company. This argument would be sound if made in regard to an injury which was entirely disconnected from the running of a car, or which whs not produced by some direct act of a person in the employment of the company. * * * 'But it would be too narrow and restricted a view to hold that if, while passengers are in transit upon a car, it was stopped for one or more of them to alight, or to be transferred to another ear, and the injury resulted to one of them by reason of turning out the lights in the ear or causing it to jerlc while the passenger Avas alighting, this Av-as not done by the running of the car, or by a person in the service of the company, if .such person put out the light or caused the jerk. Such lan occurrence would be a part of the actual transit. The running of the oar, as used in the section of the Code above quoted, -is not confined to 'a mere collision Avith a person on the track. An unnecessary jerk, causing an injury to a passenger while alighting, is a part of the running, within the reason and spirit of the statute.” Georgia Railway & Electric Co. v. Reeves, 123 Ga. 697, 51 S. E. 610.
See also Smith v. Atlantic Coast Line Railway Co., 5 Ga. App. 219, 62 S. E. 1020, and Seaboard Air Line Ry. Co. v. Bishop, 132 Ga. 71, 63 S. E. 1103.
In the last case the court said:
“The expression ‘by the running of the locomotives or cars,’ will not be given a narrow and contracted meaning, but Avill be reasonably construed in the light of the legislative purpose and intention as evidenced by the entire statute. -To illustrate: A train pulls up to a station, and stops. A passenger in alighting is injured because the step of the car is broken or wanting. Technically speaking, the train is not ‘running’ in the sense of being in actual motion, at the instant the passenger is alighting. But he is injured by the running of the train in the sense that it is being operated, and that, as a part of such operation, the company must allow passengers proper opportunities for alighting.”
The court then gives numerous illustrations of injuries occurring while the train is not in 'actual motion, but the injury occurs by something that is really a part of the operation, something the company must do in order to operate the train.
We hold here that the running of a train should be given a reasonable construction. In the case at bar the letting steam eiscape, as it is said was done in this instance, Avas done, according to the contention of the appellant itself, if done at all, in starting of the train, and, if true, then avc hold that this Avas done in the running of the train.
Section 8562, C. & M. Digest, provides: “All railroads which are now or may be hereafter bnilt and operated in whole or in part in this State shall be responsible for all damages to persons and property done or caused by the running of trains in this State. ’ ’
This court, in construing the statute last quoted, said, among other things, that the damages referred to meant those produced by moving trains. There is no reason for supposing the. Legislature used the word “running” in any other than its narrow and restricted sense of causing trains to be moved or propelled. St. L. S. F. Ry. Co. v. Cooksey, 70 Ark. 481, 69 S. W. 259. The court there had under consideration a question very different from the one in this case. The train was not in motion, and the engineér or fireman or persons who run and operate the engine and train were not the ones whose acts were complained of, but the negligence alleged in that case was that an employee was wetting the coal on the tender while the train was standing still, and carelessly turned the hose so as to throw a stream of hot water on the plaintiff, whereby he was severely burned. That act on the part of the employee was in no way connected with the running of the train. But in this case it was the engineer or fireman — persons who were running the train- — in the act of starting or preparing- to start the train, letting the steam escape, and it is alleged that this was negligence or carelessness. The court further said, in the case last referred to, that the rule had its origin in the inability of the plaintiff to prove his injuries to have been the result of negligence in cases where the -facts lie peculiarly within the knowledge of those who produce the injury. That may be said to be the ease where the injury is caused by the actual running of the train. Those intrusted with the work of propulsion alone can know, as a general thing, what they have or have not done in that regard, while the injured party or others can only surmise or infer as to what the trainmen actually did by the circumstances and resultant conditions in any given case. * * This work is in the hands of experts, who alone are peculiarly cognizant of the facts connected with such work. The statute is not applicable to cases of the kind under consideration, and the instruction should not have been given. ’ ’
It will be observed in the case of St. L. & S. F. Ry. Co. v. Cooksey, supra, that the act complained of was in no way connected with the running of the train. If the train was actually moving at the time the steam escaped it would not be contended that this was not caused by the running of the train. Certainly, when the parties in charge of the engine are either starting or stopping the train, anything done by them is done in running the train. It is done by those intrusted with the work of propulsion. It was done in this case in the act of starting the train, and we hold that the statute applies to any act of this kind, and it is distinguished from the case in the 70 Arkansas in that in that case it had no connection with the running of the train, and the act complained of was by an employee who had no connection himself with the operation of the train.
The only question in this case is the construction of the statute, the meaning of the words “running of a train,” and the court’s instructions, as a whole, properly directed the jury, and there was conflict in the evidence, and, since there was some substantial evidence to support the verdict, it will not be disturbed by this court. The judgment is therefore affirmed. | [
-16,
124,
-104,
-113,
106,
105,
34,
-118,
101,
-61,
-25,
-45,
-49,
-57,
1,
3,
-25,
111,
-43,
59,
84,
-77,
82,
-10,
-109,
-45,
91,
-51,
-105,
108,
-32,
-41,
13,
48,
74,
85,
-26,
74,
-59,
92,
-114,
-91,
-85,
-24,
25,
-104,
40,
123,
22,
79,
49,
-97,
-45,
42,
92,
-13,
73,
62,
-21,
-23,
-64,
113,
-126,
13,
53,
0,
34,
38,
-97,
3,
10,
58,
-104,
21,
4,
-8,
114,
-92,
-127,
-12,
41,
-85,
72,
-30,
99,
33,
13,
-85,
44,
-24,
46,
126,
31,
-89,
-78,
56,
107,
43,
-105,
-99,
50,
-112,
7,
124,
-23,
-43,
92,
36,
3,
-117,
-108,
-125,
-49,
36,
-98,
23,
-53,
-67,
20,
113,
-52,
-86,
92,
5,
62,
31,
-97,
-66
] |
Kirby, J.
This appeal comes from, a judgment of conviction for the crime of grand larceny. It is assigned as error that the evidence is insufficient to support the verdict, and that the court erred in excluding certain testimony.
The testimony discloses that a Ford touring car, of the value of $400, was stolen from P. N. Wilkenson, in the city of Little Rock, about 10 o'clock on the night of Marsh 5, 1927. The car was later found in July in possession of one Mun Hunter, near Toltec, Arkansas, who testified that he purchased it from appellant, agreeing to pay him $125 therefor, and did pay him $12 of the purchase money and kept the car from March to July. Stated that Henry Ploward was present when he purchased the car, and also that he knew Son Hunter, who lived in North Little Rook, and was present at the dance the night he purchased the car.
Henry Howard testified that he was present when Mun Hunter purchased the car from appellant, and saw him make the payment and take charge of the oar.
Lindsey testified that he did not steal the car, and denied that he had sold it to Mun Hunter, and that he had anything to do with it at all. Said that the statement made by Mun Hunter and Henry Howard was untrue; that he knew nothing about the taking of the car, and the first time he ever saw it Mun Hunter and Son Hunter were riding in it in town, and denied that Mun Hunter had ever paid him a cent on the car. Stated that Son Hunter had the car at his girl’s house, in North Little Rock, and hung around there for nearly a year. Parked the oar in front of her house, and sometimes in the back yard. Said that Son and Mun Hunter were supposed to be brothers; that he never talked to Mun Hunter about the car, but did ask Son Hunter where he got it, while the car was kept at the girl’s house, and he replied that he 'bought it. Said also that Son Hunter told him, during the conversation, that he, appellant, knew nothing about the car. Denied that he saw Mun Hunter at a dance in March. Admitted that he knew the car Son Hunter had at the girl’s house was the car that was taken from Mun Hunter, and which wais claimed to have been stolen.
Another witness testified that he knew the Hunters and the girl, and that Son Hunter lived with her, and that he had seen this car at her place, kept there by Son Hunter, as. much as two or three weeks at a time. That he had seen Son and Mun Hunter in the car together at the girl’s house several times. That he first saw Son Hunter with the oar at the girl’s house before it ever went to Toltec, and that, after it was taken down there, he saw both Son and Mun Hunter riding in it.
The evidence is not disputed that the car was stolen recently before it was found in the possession of Hunter, who, with other witnesses, testified he had purchased it’ from appellant, who admitted that he knew the car taken from Mun Hunter was claimed to have been stolen.
The jury evidently believed Hunter’s story about having purchased it from appellant, and found accordingly, and the evidence is legally sufficient to warrant the conviction. Daniels v. State, 168 Ark. 1083, 272 S. W. 833; Mays v. State, 163 Ark. 232, 259 S. W. 338; Sons v. State, 116 Ark. 357, 172 S. W. 1029.
The second assignment, that the court erred in excluding from the jury appellant’s statement that Son Hunter had said to him, while he was in jail, “I know you don’t know anything about it yourself,” referring to the taking of the automobile. This was a self-serving declaration, and, although it was competent for the defendant, in order to show his imlocence, to introduce proof tending to show the .crime was committed by another person, the statement of such third person, or an extrajudicial confession even, would merely have been hearsay, and was not admissible. Tillman v. State, 112 Ark. 236, 166 S. W. 582; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.
It is argued that the court erred in rendering a judgment upon .the jury’s verdict, which, it is claimed, is not definite and certain as to the offense of which appellant was found guilty. It is true appellant wTas charged with grand larceny and knowingly receiving’ stolen property, and the jury rendered a verdict finding him “guilty as charged in the indictment,” hut this was not assigned as error in the motion for a new trial, and need not be considered. The State’s testimony, however, was directed to the charge of grand larceny, and the court’s instructions related thereto, and virtually amounted to an election to prosecute upon that charge.
We find no prejudicial error in the record, and the judgment is affirmed. | [
112,
100,
104,
61,
56,
-32,
42,
58,
-48,
-117,
117,
-45,
-117,
78,
0,
121,
-13,
93,
116,
99,
-42,
-73,
23,
-93,
-46,
51,
121,
-43,
-79,
72,
-84,
116,
12,
32,
-54,
-99,
38,
72,
-59,
80,
-114,
0,
-69,
-27,
-39,
80,
52,
42,
-108,
15,
-31,
-98,
-25,
46,
30,
-37,
105,
40,
75,
43,
80,
112,
-121,
79,
-1,
18,
-78,
4,
-103,
13,
-8,
12,
-100,
49,
0,
-7,
115,
-92,
-126,
-12,
45,
-103,
8,
102,
118,
0,
29,
-121,
-80,
-116,
46,
122,
-121,
-89,
-16,
105,
3,
97,
-98,
-99,
107,
16,
14,
118,
-21,
93,
89,
96,
3,
-49,
-108,
-127,
41,
32,
-98,
24,
-5,
57,
54,
112,
-51,
-30,
93,
4,
50,
-101,
-122,
-77
] |
Holt, J.
Wm. N. Wheeler died testate in July, 1930. A daughter, Nettie .Stewart, was named executrix in his will, which was probated August 4, 1930. The bond of the executrix was approved and letters issued to her October 18, 1930. Shortly after Nettie Stewart qualified, and in 1930, she removed to Texas where she has since resided. She acted as executrix, however, until September 10, 1941, when she was removed and I. B. Langley was appointed to succeed her.
April 2, 1941, appellee, Mrs. J. R. Wheeler, niece of Wm. N. Wheeler, filed suit in the probate court of Clay county, seeking- to establish a claim against the estate. She alleged in her complaint that she furnished board to Win. N. Wheeler from. January 1,1928, to June 30, 1930, at the rate of $10 per month, or a total amount of $300, which she alleged he was due her at the time of his death.
She further alleged that she presented this claim to Nettie Stewart, the executrix, on October 18, 1930; that said claim was in proper form, duly itemized and verified; that Nettie Stewart allowed the claim; that it was duly filed with the clerk of the court, duly presented, approved and allowed by the probate court on October 20, 1930.
She further alleged that “the clerk failed and neglected to enter the order of said court therein in the records of said court,” prayed that a nunc pro tunc order be made correcting the records so as to reflect the filing, approval and allowance of her claim of October 18, 1930, and, it appearing- that all personal property of said estate had been, exhausted, a lien be declared on the following real property belonging to said estate: “South half of north half of block two; also all of the south half of said block two; all in Huston’s Addition to the town of Piggott, Clay county, Arkansas,” and that said property be sold to satisfy her claim.
Appellant answered denying every material allegation in appellee’s complaint and specifically denied plaintiff’s claim, denied that it had ever been presented to, approved, or allowed by the executrix, Nettie Stewart,. and denied that any such claim was ever presented to and allowed by the probate court.
Upon a hearing, the trial court on parol testimony entered a nunc pro tunc order by which appellee’s claim was reinstated and allowed, a lien ivas declared upon the real property, supra, and its sale ordered in satisfaction of appellee’s claim. This appeal followed.
The primary question presented, and which is decisive of this cause, is: Did the trial court err in attempting to correct, by nunc pro tunc order, records alleged to have been made in 1930 and thus allow appellee’s claim, reinstate it and direct its payment out of the proceeds of the sale of certain real property belonging to the estate? We agree with appellant’s contention that this action of the court was error.
The record reflects that the trial court in making this mine pro tunc order relied solely on parol testimony. A different judge Avas in office in 1930 Avhen the orders and records affecting appellee’s claim were alleged to have been made. Before such action of the court can be sustained on parol testimony, the evidence established in support of such action must be clear, decisive, convincing and unequivocal. A preponderance of the testimony is not sufficient. In Dickey v. Clark, 192 Ark. 67, 90 S. W. 2d 236, it is said: “The purpose of a nunc pro tunc order is to make the record reflect the transaction which actually occurred, and which is not reflected by the record because of inadvertence or mistake. Its province cannot be extended to make the record show what ought to have been done. In mmc pro tunc pro ceedings the record may be corrected or made to speak the truth upon parol testimony alone, but the evidence thus established should be decisive and unequivocal. Midyett v. Kerby, 129 Ark. 301, 195 S. W. 674; Tipton v. Phillips, 176 Ark. 308, 4 S. W. 2d 507; Tracy v. Tracy, 184 Ark. 832, 43 S. W. 2d 539.”
The evidence before us reflects that there is no record evidence whatever in the office of the probate clerk of Olay county that the claim of Mrs. J. R. Wheeler, appellee, was ever filed, approved or allowed. No such claim was found in the files of that office. There is no record evidence that the executrix or the probate court approved or allowed the claim.
B. O. Dalton, county and probate clerk, testified: “Q. Have you searched the claim record book to see if any claim has been filed as against the estate? A. Yes, I have, and find no claims in the claim record book. Q. Have you searched to try to locate a claim which Mrs. J. R. Wheeler filed and which ought to be in the files? A. Yes, I have. Q. Have you been able to locate it? A. No, I haven’t.”
He further testified from the records in his office showing allowance against various estates, that on October 20, 1930, seven claims were allowed and duly recorded against other estates, but that no claim was filed, recorded or allowed against the estate of Wm. N. Wheeler by Mrs. J. R. Wheeler, or anyone else, on that date.
J. R. Wheeler, claimant’s husband, testified that Wm. N. Wheeler owed his wife the amount of the claim at his death; that his wife prepared the claim; that he took it to the office of the then clerk, Mr. Langley, who told him that it was necessary to make the claim out on a regular form which Langley gave him. He then filled out the claim and “Q. What did you do with the claim? A. I handed it to Mrs. Stewart and she read it and signed it and laid it on the desk. I said, is there any further need for me to stay here, or anything else to do?- Mr. Langley said no. I just left and went back to my place of business after lie told me there was nothing else for me to do. ’ ’ This was on October 20,1930.
He further testified: “Q. After this claim was left with the clerk, you didn’t know if the executrix made any payments? A. She wrote me a check for $100 on the board bill, but she didn’t have any money in the bank to cover it. Q. Why didn’t she? A. The bank closed at that time. The-money was in the First National Bank at Rector. Q. Did you get any other credit? A. We owed the Bank of Piggott a balance of a note of $85 and she agreed to let the bank give us credit for this amount to be credited on the board bill. Q. When was the $100 check sent to you, before or after the First National Bank closed? A. It was about the time it closed. It was September or October that she mailed me the cheek; the same year Mr. Wheeler died. Q. Have you received any payments in any way since that time? A. Yes, sir. She had whoever was living in the house to pay me five months’ rent of $5 per month. Q. You turned it over to your wife on that account. A. Yes, sir.”
E. Gr. Ward, appellee’.s attorney, testified that he .prepared Mrs. J. R. Wheeler’s claim and kept a carbon copy of the claim in his office; that he presented the claim to the probate court on October 20,1930; that T. A. French, appellant’s counsel, was probate judge at that time; that the judge indorsed, approved, dated and signed the claim in his presence on that date; he left the claim with L. B. Langley, the clerk, and at the request of L. B. Langley and T. A. French, he prepared an order to be entered. He delivered the original order to the clerk and kept a carbon copy. He heard nothing further in regard to the claim until this suit was filed April 2, 1941.
Bert Wheeler, witness for appellant and a son of Wm. N. Wheeler, testified that he was a surety on Nettie Stewart’s bond, and (quoting from his testimony): “Q. Did he (meaning Wm. N. Wheeler) stay around the restaurant of the plaintiff, Mrs. J. R. Wheeler? A. He stayed down there some. Washed dishes, carried in coal, made garden, and things like that. Q. Did he quit staying down or working around the Wheeler restaurant a short time before he died? A. Yes, sir. . . . Q. At the time when he discontinued his stay or occupation there, did he make any statement in regard to the obligation of himself toward the Wheelers? A. Well, he came home that afternoon and came up to my house and talked to me and my wife. He said he wasn’t staying down there any more, and that he had settled up with them and didn’t owe them a cent. Q. Did he make any statement in regard as to how the settlement was made? A. He said Jim owed him $100 and told him to go ahead and take it. ’ ’
Mrs. Nettie Stewart, executrix, testified that she received approximately $700 from the sale of ten shares of preferred stock in a Virginia corporation, the property of the estate, out of which she paid all claims presented against the estate, including $575 for expenses of last illness and burial expenses. The balance of the money was lost in bank failures.
She further testified that no creditors of Wm. N. Wheeler’s estate filed any claims against the estate in written verified form; and that neither Mrs. J. E. Wheeler, her husband, J. E. Wheeler, nor anyone else for her, on the 18th day of October, 1930, or at any other time, filed any claim against the estate of Wm. N. Wheeler.
She further testified (quoting from her testimony): “Q. Did you make any payment to either J. E. Wheeler or to Mrs. J. E. Wheeler for claim for board against Wm. N. Wheeler, deceased, and if so to which one of them? A. Yes, to J. E. Wheeler. Q. If your answer to the above question is ‘Yes,’ state the circumstances and information from which you arrived at the amount to be paid, due and owing to Mr. or Mrs. J. E. Wheeler, by the deceased, Wm. N. Wheeler? A. Jim (J. E.) Wheeler told me my father owed him $300 for board — not room— he never roomed there. I told him that my father had told me before he died that he had let Jim have $200 and it had not been paid back. Jim acknowledged he got the money but said he had paid part of it back. I told him I had my father’s word he hadn’t and if he owed $300, to take $200 from that left $100. I gave him a check for- that amount and he took it in full payment, but the bank at Rector closed before he collected it. Then I paid it, as I told you before, on the note' at the bank. There never was any other thing done about it. I never signed any kind of paper — after several years he started writing me he was so hard up he thought I ought to send him some more money. My father told me he paid Jim all along while he was down there during the day. He slept at home all the time. ’ ’
We deem it unnecessary to set out more of the testimony here. It suffices to say, that after a careful review of the record, we think the evidence falls far short of that character of oral testimony required to uphold the court’s nunc pro time order, supra. Here appellee has waited more than ten years to establish and collect her alleged claim. Mr. W. E. Spence, and his father, B. E. Spence, attorneys who represented the executrix when she was appointed and qualified, and for some time thereafter, are both dead. Mr. Langley, the clerk at that time, does not appear as a witness. A search of the books and files of R. E. and W. E. Spence fails to disclose any evidence of Mrs. 'Wheeler’s claim.
On the whole case, the order is reversed, and the cause remanded with directions to set aside and revoke the nunc pro time order in question, deny appellee’s claim, and to proceed in conformity with this opinion. | [
16,
105,
-36,
12,
-86,
112,
26,
-102,
66,
-64,
37,
83,
109,
70,
16,
117,
99,
-115,
81,
106,
-89,
-73,
22,
-82,
-38,
-78,
-7,
-49,
-74,
73,
-28,
-42,
12,
40,
74,
81,
-96,
-94,
-91,
92,
-122,
-56,
-117,
-20,
89,
66,
58,
-1,
86,
77,
-11,
-1,
-13,
42,
61,
-22,
105,
46,
-17,
-88,
-40,
97,
10,
-116,
-2,
22,
-128,
39,
-104,
9,
72,
10,
-102,
53,
-120,
-30,
51,
38,
-122,
84,
38,
-39,
12,
118,
67,
99,
-115,
-89,
40,
8,
7,
58,
-67,
-25,
-70,
89,
107,
9,
-66,
-99,
126,
-128,
-58,
-2,
-76,
-60,
92,
44,
3,
-114,
-42,
-95,
7,
-78,
-100,
11,
-25,
-94,
48,
113,
-51,
-30,
93,
71,
117,
-101,
-122,
-80
] |
Kirby, J.
Appellee brought this suit against appellants on an account for an indebtedness of the sum of $314.05 for service alleged to have been rendered to appellant Threlkeld while confined as a patient at appellee’s hospital in Alexandria, La., it being also alleged that appellant Gerhardt had guaranteed in writing the payment of the account.
A. L. Threlkeld was an employee of the Vincennes Bridge Company of Vincennes, Ind., at work upon the construction of a bridge near Trout,» in Louisiana, and appellant Gerhardt was foreman or superintendent of the construction of the bridge, and father-in-law of appellant. Threlkeld was injured in the course of his employment on October 6, 1926, and taken by Gerhardt to the Baptist Hospital at Alexandria, La., for treatment, being admitted there on the afternoon of that day. On October 11 Gerhardt signed the following notation on the ledger sheet upon which Threlkeld’s account was being kept: “This bill is guaranteed in full by me, and I hereby sign my name. F. O. Gerhardt. Now at Trout, Louisiana; permanent address, Alma, Arkansas.”
Suit was brought against both appellants for the services rendered, the payment of which was guaranteed by Gerhardt. Appellants denied the allegations of the complaint.
The undisputed testimony shows the amount of the account charged to Threlkeld was correct, a copy of it in fact having been “O.K.’d” by him, and that Gerhardt signed the guaranty.
Testimony was introduced showing that, under the workmen’s compensation law of Louisiana, the bridge company, appellant’s employer, was bound to the payment for his hospital bill and medical treatment to the sum of $250, and also to the payment of a certain per cent, of the amount of wages, that would have been earned during the disability caused by the injury at the regular contract price.
Gerhardt offered to testify that he did not intend to personally guaranty the payment of Threlkeld’s account for medical treatment, etc., at the hospital, but only to bind the company to its payment by signing the guaranty.
The superintendent of the hospital said he understood the liability of the employer, under the law, for payment of hospital bills and medical treatment to an injured employee, and stated that he was only trying to have secured, by obtaining the guaranty of Gerhardt, the payment of any amount that should become due for treatment of Threlkeld while he was iii the hospital, since his injury was so severe as to apparently require his staying- therein longer than the amount the employer was required to pay would satisfy the account for.
After the introduction of the testimony in chief, appellant was allowed to amend his answer, to allege that he signed the guaranty as the superintendent of the bridge company, and on its account placed Threlkeld, another employee, in the hospital, and, as such agent, contracted with appellee for his care and treatment.
The court directed the jury to return a verdict for the amount sued for, and from the judgment thereon this appeal is prosecuted. •
Appellant insists that the court erred in directing the verdict.
The undisputed testimony showed that the account sued on was correct, it had been O.K.’d by the injured employee to whom the services were rendered, and appellant Gerhardt did not deny its correctness, but attempted to show by parol testimony that, in signing the'guaranty for its payment, he did so as the superintendent of the Vincennes Bridge Company, for whom Threlkeld was working at the time of his injury, acting as its agent, and intending only to bind the company to the payment of the account by such guaranty. The court correctly refused to allow the introduction of parol testimony to alter, contradict or vary the terms of the written guaranty, whose meaning is plain and unambiguous. Bryant Lumber Co. v. Crist, 87 Ark. 434, 112 S. W. 965; United Drug Co. v. White, 145 Ark. 96, 223 S. W. 372.
There being no conflict in the testimony, no error was committed in directing the verdict, and the judgment is affirmed. | [
-48,
-56,
-72,
125,
72,
97,
58,
18,
123,
51,
-73,
83,
-21,
112,
1,
103,
-25,
-3,
-28,
115,
-25,
-77,
6,
104,
-46,
51,
121,
-59,
-71,
78,
-28,
-43,
13,
58,
-118,
-103,
-26,
-62,
-51,
24,
-52,
-124,
40,
-24,
-35,
-48,
48,
119,
84,
79,
49,
-98,
-17,
44,
20,
-53,
13,
44,
127,
43,
-110,
-15,
-46,
-123,
127,
85,
-96,
6,
-104,
103,
-54,
20,
-104,
53,
5,
-40,
112,
-74,
-126,
-11,
43,
-103,
4,
98,
98,
48,
49,
-23,
-64,
-104,
46,
-34,
-99,
-91,
51,
121,
-125,
13,
-74,
-99,
122,
80,
21,
120,
-12,
-51,
28,
40,
2,
-117,
-106,
-13,
-115,
-28,
-108,
-121,
-25,
-99,
52,
112,
-49,
-80,
93,
-57,
114,
-109,
-78,
-5
] |
J. Fred Jones, Justice.
T. L. Reynolds & Sons, Inc., an excavation contractor, obtained judgment in tbe Garland County Circuit Court against Mr. and Mrs. John G-. Asimos for $19,817.40 as balance due on an excavation contract, and Mr. and Mrs. Asimos have appealed.
The appellants were the owners of the De Soto Hotel in Hot Springs, as well as Lots 13 and 14 in Block 127 on a steep mountainside across Canyon Street from the hotel. In order to construct a parking lot for the hotel, appellants entered into an agreement with the ap-pellee under which the appellee agreed to excavate and remove the dirt from Lots 13 and 14 for a contract price of $56,000. The pertinent part of the agreement giving rise to the litigation is as follows:
“Contractor agrees to excavate and remove dirt, etc., from the premises known as Lots 13 and 14 of Block 127 of the United States Hot Springs Reservation, as follows:
(A) All of Lots 13 and 14 with exception of the Northwesterly two feet of said Lots to a grade on the Southeasterly line of said Lots equal to that of Canyon Street which border said lots at said point and from said grade rising in a Northwesterly direction, so as to have the grade along the Northwesterly line of said Lots 5 feet above the Canyon Street grade.”
The agreement provided for payments to be made as the work progressed and the last paragraph provided as follows:
“The Parties hereto agree that the cost of removing any stuff or cave-in materials shall be borne by the Contractor during the period of excavation, but that the cost of removing any sluff or cave-in materials shall be borne by the Owner at all times other than during the period of excavation.”
Appellants subsequently requested that additional work be done in lowering the grade level of the floor of the excavation and this work was performed. Appellants paid a total of $33,000 on the contract and upon failure to pay anything further, appellee sued for $26,659 as the balance due on the contract. This amount included $1,159 for additional work on the side-agreement for change in the grade of the floor of the excavation. The appellants answered by general denial, except as to the execution of the contract, and appellants counterclaimed for damages in the amount of $45,000 for breach of the contract.
The ease was tried in the circuit court before the-judge sitting as a jury, and the judgment in favor of appellee for $19,817.40 was rendered on the findings of the trial court, as follows:
“1. The plaintiff, T. L. Reynolds & Sons, Inc. entered into a contract with the defendants, John G. Asimos and Jane A. Asimos to excavate certain portions of Lots 13 and 14 of Block 127 of the United States Hot Springs Reservation for a total consideration of the sum of $56,000.00; that of that sum $33,000.00 was paid by the defendants to the plaintiff.
2. That the plaintiff performed the contract to the extent possible; that the plaintiff was unable to excavate a ninety degree vertical line due to the nature of the rock formation, which necessitated slope-age to protect against sloughage and cave-in of the adjoining property; that plaintiff and defendants acquiesced in the demand of the National Park Service to refrain from excavation that would undercut National Park property or permit slides that would affect the surface of National Park property.
3. That the amount of slopage remaining on said lots contemplated to be excavated amounted to 2,-412 cubic yards; that the cost of excavating said cubic yards, based upon contract price, would have been $1.80 per cubic yard; that the defendants are entitled to a set-off in the sum of $4,341.60 for the materials not removed as contemplated in the contract.
4. That the defendants, by causing the lot to be immediately paved and using same for parking purposes and by making additional payments to the plaintiff after the plaintiff had ceased work and left the job, waived and abandoned any claim against the plaintiff for completion of the work.
5. That the undisputed evidence proves that the plaintiff excavated into certain areas of the lots deeper than was required under the contract in order to provide a proper surface for paving purposes ; that the work was done at the request of the defendant, John G. Asimos; and that the plaintiff is entitled to the sum of $1,159.00 for the extra work done.
6. That the defendants waived any claims for damages against the plaintiff and are estopped by their actions in causing a concrete slab to be poured and using the lot as a parking lot without first demanding that the plaintiff complete the contract; and further, the defendant, John G. Asimos admitted from the witness stand that he owed the plaintiff additional sums of money for the work.”
On appeal to this court, the appellants designate the points upon which they rely for reversal, as follows:
“1. The court improperly considered certain hearsay evidence during the course of the proceeding to arrive at one of its findings of fact.
2. The court permitted recovery based on the contract when the appellee was in obvious breach thereof.
3. The court applied an erroneous formula in arriving at its judgment.”
The evidence reveals that the hack side or end of the excavation was sixty or seventy feet deep where it was cnt into the mountain. The written agreement between the parties is silent as to whether the walls of the excavation were to be perpendicular from within two feet of the property boundary line on the side of the mountain to the floor of the excavation. Appellee based his contract price of $56,000 on the number of cubic yards to be excavated at $1.80 per yard and he estimated the number of yards to perpendicular walls, so this litigation stems from, and involves, the question of whether the walls of the excavation were to be straight up and down when the excavation was completed, or whether some deviation from perpendicular was permissible under the terms of the contract.
When appellee commenced the excavation, it soon learned, from the nature of the ground, that a perpendicular wall of an .excavation sixty to seventy feet deep, would, not support itself, so it sloped the wall from within two feet of the property line at the top of the excavation out to twelve to sixteen feet from perpendicular at the bottom of the excavation.
As to appellants’ first point, they argue that the trial court erroneously considered certain demands made by the Park Service in a letter to appellants, with copy to appellee, the letter having been received in evidence for the limited purpose of showing it had been received. Appellants argue that outside of the contents of this letter, there-is no evidence in the record that the National Park Service had made demands on the parties to refrain from making an excavation that would undercut the National Park property.
We do not agree with the appellants on this point. The demands of the National Park Service were not material to the issue in this litigation, and if the trial court erred in considering the letter beyond the limited purpose for which it was offered and received in evidence, we consider the error harmless under the circumstances of this case. There is ample evidence that the sixty to seventy foot wall of the excavation would have sloughed or caved off if cnt perpendicular in the type of soil involved in this operation, and that snch sloughing or caving would have invaded the Park Service property which Avas only two feet aAvay from the top edge of the Avail of the excavation. All parties recognized their duty as to protecting neighboring property and the letter from the Park Service warning the appellants and the appel-lee against invasion, could have added no duty not already imposed by laAv. As a matter of fact, T. L. Reynolds testified that he discussed the contents of the letter with appellants, that appellants agreed that the property line had to he protected against sloughing off, and that they discussed, without disagreement, that the only way to protect the property line against sloughing, was to slope the Avail from the top outward toward the base, as Avas done. Furthermore, Mr. Reynolds testified that appellants observed the Avork in progress every day and made no complaint about the way it was being done. Appellants denied that they discussed with appellee the necessity for sloping the walls, hut Mr. Asimos did testify: “I told him we were going to have to look after the government property but I didn’t tell Mr. Reynolds to go into the government or not to go in, it was up to him to take care of it.”
Appellants’ second point goes to the heart of the laAvsuit, but we are of the opinion that there is substantial evidence in the record to sustain the trial court.
The contract simply calls for appellee to excavate and remove dirt, etc. from “all of lots 13 and 14 with exception of the northwesterly two feet of said lots. ...” The contract then provides for the depth of the excavation by fixing the grade of the floor in relation to Canyon Street. The grade of the walls, in relation to perpendicular, could have been fixed as easily as the grade of the floor, had the parties not intended to leave some room for variation consistent with, safety, good judgment, and common sense, as the work progressed and the nature and composition of the subsoil structure demanded. Such intent is amply supported by the circumstantial evidence in this case. Even before appellants entered into the contract with appellee, and before any topsoil was removed and the structure and composition of the subsoil or strata was revealed, Mr. Faye, a former city engineer, at appellants’ request, figured and estimated the number of yards of dirt to be excavated and removed from the lots. Mr. Faye discussed the situation with the appellants, and testified as follows:
“Q. Did you ever have occasion to talk with Mr. Asimos about the slopeage, the type of rock, texture that was protecting the property lines along that line?
A; Yes.
Q. What was that discussion, what did that consist of?
A. John had — this lot has a certain what you call a horizontal area and he wanted to get as large a parking space as he could to utilize as much of his property as he could and he wanted it coming straight down and I advised him at the time through experience on other jobs around here, similar jobs, there was danger of sloughing. In other words, cut straight up and down it’s just not going to stay there, it’s got to come off; so, I advised him to put a slope on it but John took it from there.”
Mr. Faye furnished appellants with a written estimate, as follows:
“I have made a survey of Lots 13 and 14 in Block 127 of the Hot Springs Reservation, and have made calculations of the yardage to be excavated.
The calculations are based on cutting the lots to street grade at the front of the lots for the entire frontage on Canyon Street, and the bottom of the cut to rise five feet toward the rear of the lots. The calculations are also based on the vertical cuts having a slope of one horizontal to five vertical.
On this basis, I have calculated the excavation yardage to be 26,500 cubic yards.
(29,000) straight down.”
With this knowledge, advice, and recommendation, furnished by an expert civil engineer with broad experience in mountainside excavations in Hot Springs, appellants entered into the contract with appellee and although the horizontal elevation of the floor was specifically spelled out in the contract to accomplish drainage, the vertical position of the walls was not specifically designated and spelled out in the contract. There is no evidence in the record that the parties to the contract ever discussed with each other the interpretation or meaning of any of the terms of the contract either before or during the period of performance. The intention of the parties to a contract controls its interpretation, and in construing a contract, the court should place itself in the situation of the parties in order to arrive at their intention in making it. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.
Even though the contract price of $56,000 appears to have been arrived at by multiplying the estimated number of yards of the dirt to be excavated, straight down from within two feet of the property line, by $1.80, the estimated charge for excavating one cubic yard, the overall evidence is convincing that the contract was written, and so considered, accepted and intended by the parties, that appellants were to have as.much parking space in the excavation as reasonably possible, and that appellee was to excavate as much space as reasonably possible within the designated area inside appellants’ property boundary lines.
The overall evidence is indicative that the appellants and the appellee made a common sense and practical approach to the interpretation and performance of the contract, the appellant desiring the walls to. be as near perpendicular as reasonably possible, and the ap-pellee desiring to do the excavation in such manner as to leave the walls as perpendicular as reasonably possible. The evidence is clear and convincing, that it was not reasonably possible to excavate to the depth required with the walls of the excavation being perpendicular, so we conclude that there is substantial evidence in the record that appellee was not required under the terms of the contract to excavate to perpendicular walls within two feet of appellants’ property lines.
The full performance of the contract by appellee, as intended and understood by the parties, is borne out by the evidence. Appellants agreed that property lines had to be protected. They observed the excavation in progress and made no objection to the manner in which appellee was performing the work (which was being done in keeping with the recommendations made to Mr. Asimos by his own engineer). Appellants started paving the floor of the excavation as soon as appellee removed its machinery. The appellants made payments on the contract after the machinery was removed and the paving completed, and Mr. Asimos admitted at the time of the trial that he still owed some amount to appellee. Considerable material sloughed off of the walls after ap-pellee ceased work and no request was made for its removal under the last paragraph of the contract. In fact the record reveals that no dissatisfaction was registered by appellants to the entire performance, until appellee demanded pay of the balance he contended was due on the contract price. We conclude that there is substantial evidence that the contract was fully performed by the appellee according to the terms of the contract, as under stood and intended by the parties to the contract when the agreement was entered into by them.
In support of appellants’ third point, they advance a logical argument and we agree that the trial court may have applied an erroneous formula in arriving at its judgment. But if error was committed in this connection, appellants are the beneficiaries of the error and they are not the ones to complain.
The trial court found that appellee “performed the contract to the extent possible.” This being a suit on a contract in a court of law, we interpret the court’s finding to be that the appellee performed the contract to the extent possible, as contemplated and intended by the parties to it. Appellant is correct in that there is an inconsistency in allowing appellee’s recovery on a contract performed with a set off in damages to appellants for that portion of the contract that was not performed. There was no evidence submitted as to the number of yards actually excavated by the appellee. There was evidence as to the number of yards still remaining in the slope of walls making up the difference between the contract as performed by the appellee and a perpendicular Avail as appellant contends the contract called for. There Avas also evidence that the appellee arrived at his contract price on the estimated cost of removing the dirt at $1.80 per yard and that he arrived at the $56,000 figure, on the theory that ho would be able to excavate the area to perpendicular walls, even though the contract did not call for perpendicular walls and the parties intended that the walls be as near perpendicular as reasonably possible. Apparently, the trial court reasoned that since appellee’s contract price was based partially on dirt he was unable to excavate, that equity and good conscience would not permit him to recover for work he intended but was unable to perform, and proceeded to credit appellants’ account A\dth that portion of the contract price which was based on services appellee intended but was unable to perform. In other words, the trial court apparently considered that appellee had overcharged the appellants by overestimating the number of yards of dirt he could move at $1.80. The fallacy of this reasoning lies in the fact that appellee did not contract to do the excavating at $1.80 per yard, he contracted to do it for $56,000.
There is substantial evidence that the contract was performed as the parties intended. There is substantial evidence that appellee performed additional work at appellants’ request in lowering the original grade in the excavation floor. We agree with appellant, however, that the trial court applied an erroneous formula in arriving at its judgment, but the error was favorable to the appellants, and the appellee has not appealed.
The judgment of the trial court is affirmed.
Bybd, J., concurs. | [
-43,
120,
-80,
109,
-104,
96,
58,
-70,
89,
-95,
117,
95,
-81,
-54,
16,
51,
-29,
93,
-12,
107,
-41,
-93,
7,
98,
-42,
-77,
113,
65,
121,
77,
-12,
-44,
76,
0,
-54,
29,
70,
0,
-51,
80,
78,
41,
-103,
96,
-39,
99,
48,
58,
96,
79,
49,
-90,
-5,
44,
61,
-29,
72,
44,
-5,
45,
91,
-71,
-78,
5,
89,
6,
1,
39,
-104,
-121,
-40,
26,
-111,
48,
0,
-88,
115,
-74,
70,
116,
71,
-69,
-119,
40,
102,
34,
1,
-89,
-20,
-64,
7,
-2,
-115,
-91,
-93,
25,
91,
77,
-98,
-108,
120,
8,
-124,
114,
-28,
-115,
93,
44,
-125,
-50,
-46,
-29,
-81,
49,
-99,
3,
-5,
3,
53,
117,
-50,
-30,
93,
78,
49,
-105,
15,
-79
] |
McHaney, J.
Appellant was indicted, charged with murder in the first degree for the billing of one Harold Robin. He was convicted of murder in the second degree, and sentenced to eighteen ye'ars in the penitentiary, and has appealed to this court to reverse the judgment and sentence against him.
This is a companion case to that of Tracy Sanderlin v. State, recently decided by this court, ante p. 217. The facts in this case are substantially the same as they were in that case, and we will not repeat them here. The facts show that the deceased was killed by being cut or stabbed with a knife held by Sanderlin, and appellant was indicted -and convicted on the theory that he was present, aiding and abetting Sanderlin in such act. One Ed Lane is also under indictment charged with the same offense as that against appellant, but at the time of this trial he was in jail awaiting trial.
After the defense had rested, the State put Ed Lane on as a rebuttal witness, but it does not appear whose testimony his was supposed to rebut. He testified that he was with appellant and Tracy Sanderlin at the dance the night Harold Robin met his death, and that they came from the dance back to Monticello, to Jesse Boone’s cafe, to which appellant had the keys, where he ate a bowl of soup; that appellant went up to the front of the restaurant and picked up a shotgun, and that Sanderlin picked up la bread knife or a butcher knife, put it up his sleeve, and that they all went back out the Wilmar road, and had the difficulty- which resulted in Robin’s déath. Lane had not testified in the Sanderlin ease, but was awaiting in jail on the charge against him, and was called out of jail by the State and used as a rebuttal witness. This was about 11:30 at night. After four witnesses for appellant had testified in surrebuttal, the following took place:
“Mr. Harris: At this point, twenty minutes to twelve o’clock — twenty minutes of midnight — and court having been in session since nine o’clock this morning, and the last witness placed on the stand by the State in rebuttal being a surprise witness to us, I would like to ask the court to adjourn until in the morning, so we will be able to meet the proof which has been made by the State by putting on some witnesses to prove that they would not believe the witness Lane on oath. By the court: The court overrules the motion of the defendant, and holds that the defendant ought to have anticipated the introduction of this witness, and the court rules that the testimony must close- tonight. Mr. Harris: The defendant states that they did not anticipate it, and would like to have until nine o’clock in the morning to impeach him — to prove that they would not believe him on oath. 'By the court: You can do that. You ought to have had those witnesses, but if you have not them now, the court holds that this case must close tonight, that is, the testimony. To which ruling and action of the court in refusing to grant defendant’s motion to adjourn until morning the defendant at the time objected, his objections being overruled, he lat the time saved his separate and several exceptions. Defendant rests. -State rests.
“Note: -On the morning .of October 12, 1927, at the opening of court on the morning following the taking of the testimony, the defendant moved the court to be permitted to introduce witnesses to impeach the testimony of the witness Ed Lane, introduced in rebuttal on the part of the State, and offers the witness George Oampster and offers to ask the following questions: Q. Do you know the general reputation of Ed Lane in the community in which he lives for truth and morality? A. (Expected answer). I do. Q. Is that reputation good or bad? A. (Expected answer). Bad. . Q. Basing your answer upon his general reputation in a matter in which he is interested, would you believe him on oath? A. (Expected answer). I would not. By the court: The court refused to permit the witness to be introduced, land refused to let him testify, to which ruling and action of the court in refusing the request of the defendant the defendant objected; his objection'being overruled, he at the time saved his separate and several exceptions. .
“Thereupon the defendant offered to introduce the witnesses George Fish, Elmo Lawson, and E. G. Jeff-coat, whom they offered to ask the same questions and expected the same answers as shown on the preceding page, where it shows the questions to be asked of the witness George Campster and his expected answers. The court refused to permit the defendant to introduce the above witnesses, George Fish, Elmo Lawson and E. G. Jeffcoat, to which ruling and action of the court in so doing the defendant at the time objected; his objection being overruled, he at the time saved his separate and several exceptions.”
This is the first error assigned by - appellant for reversal.
It is urged that the court abused its discretion in refusing to permit the case to remain open until the next morning to enable the defendant to secure the witnesses named, and to have them testify to the bad reputation of the witness named, aird to the fact that they would not believe him on oath. A majority of the court is of the opinion that the court did not abuse its discretion in refusing to permit the case to remain open for further testimony until the following morning, or in refusing to reopen the case the next morning to permit witnesses to testify in this regard. Appellant himself testified that he secured the gun and put it into the car, and the witness Miss Gertrude Lassiter testified that she saw Tracy Sanderlin with a large knife, something like a butcher knife, in his hand, but did not see him when he stabbed or cut Robin. Therefore, even though appellant had been permitted to impeach Ed Lane’s testimony in the manner sought, still it would leave his own ¡admission of having put the gun in the car, and the testimony of Gertrude Lassiter as to the knife, unimpeached. Hence its exclusion was not prejudicial. Mr. Justice Wood, Mr. Justice Smith and the writer of this opinion do not agree with the conclusion reached by the majority.
The next assignment of error is that the court erred in giving instruction No. 11 on behalf of the State. It is as follows:
“The court instructs the jury that, if you find from the evidence that Tracy Sanderlin, Ed Lane and Basil Boone, being in a car, stopped the same on the highway with the. common intent to obstruct the same, and.did obstruct the road for the common purpose of stopping any person traveling thereon, in order that they might raise a difficulty with such person; and by reason of such common conduct on their part an altercation arose, in which Harold Robin was cut and killed by either one of the three, the defendant, Basil Boone, being present, aiding and abetting in the acts and conduct aforesaid of his companions, then each of the three would be guilty of an unlawful homicide in some degree; and if the fatal injury was inflicted upon Robin with malice aforethought, but without premeditation or deliberation, then the defendant would be guilty of murder in the second degree; and if the fatal injury was inflicted on Robin with malice aforethought and after premeditation and deliberation, by either one of the three, then the defendant, Basil Boone, would be guilty of murder in the first degree. ’ ’
It is objected to on the ground that it makes a common intent to commit a misdemeanor the plan itself for the commission of a felony, whereas the common plan must have been to commit a felony. We do not think the instruction is open to this objection.
The general rule 'is that, where persons combine to do an unlawful thing, if the act of one proceeding according to the common plan terminates in a criminal result, though not the particular result meant, all are liable. Thus, in Carr v. State, 43 Ark. 99-106, the lower court had given the following instruction:
“If the defendant was jointly with others assembled together in the commission of a trespass, or perpetration of a crime, and one or more did a criminal thing in no way connected with the joint 'understanding, the defendant is not liable.”
Criticising this declaration, the court quoted with approval from Bishop on Crim. Law, § 636, as. follows:
“A man may. be guilty of a wrong which he did not specifically intend, if it came naturally, or even accidentally, from some other specific, or a general, evil purpose. When therefore persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminate in a criminal result, though not the particular result meant, all are liable.”
We do not think the instruction is subject to the criticism that it makes the common plan to commit a misdemeanor the foundation for a conviction of a felony. As the language of the instruction, “stopped the same on the highway with the common intent to obstruct the same, and did obstruct the road for the common purpose of stopping any person traveling thereon, in order that they might raise a difficulty with such person.” Raising a difficulty with some person might or might not be a misdemeanor, but going out to start a difficulty, armed with a shotgun and a butcher knife, is some evidence of a purpose to commit a felony. It depends upon what kind of a difficulty was raised.
What we have said with reference to this instruction also disposes of appellant’s contention that the court errecLin refusing to give his requested instruction No. 10.
It is also urged in this case that the co-urt erred in refusing to instruct the jury on manslaughter, as requested by hiffi. We held in the Sanderlin ease that the evidence there did not justify an instruction on manslaughter. We have examined the record here and fail to find any additional evidence which would have justified the requested instruction.
No errors appearing, the judgment is affirmed. | [
80,
-26,
-40,
-114,
58,
-31,
42,
56,
-46,
-62,
-10,
91,
-83,
-57,
73,
99,
-5,
-1,
85,
121,
-92,
-65,
38,
67,
-78,
-13,
-31,
-42,
-77,
-50,
-18,
-11,
77,
100,
10,
93,
-30,
42,
-27,
94,
-114,
-116,
-71,
-30,
-37,
-128,
32,
39,
124,
15,
117,
-98,
-93,
40,
-106,
-53,
73,
44,
75,
111,
64,
49,
-112,
13,
-1,
23,
-110,
-122,
-100,
1,
-40,
62,
-104,
53,
2,
-24,
115,
-122,
-58,
84,
41,
-103,
12,
34,
-126,
5,
-51,
-115,
-96,
-103,
47,
54,
-100,
-89,
-40,
97,
65,
76,
-105,
-35,
114,
116,
14,
-12,
-4,
85,
29,
108,
73,
-49,
-108,
-79,
-55,
48,
-106,
-6,
-53,
39,
17,
112,
-51,
-86,
76,
102,
120,
-37,
-117,
-76
] |
Hart, C. J.,
(after stating the facts). The decision of the chancellor was correct.
This court has held that equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession holding the legal title. The reason is that, where the title is a purely legal one, and some one else is in possession, the remedy at law is plain, adequate and complete, and an action by ejectment cannot be maintained under the guise of a suit to quiet title. In such cases the party in possession has a constitutional right to a trial by jury. Pearman v. Pearman, 144 Ark. 528, 222 S. W. 1064; Gibbs v. Bates, 150 Ark. 344, 234 S. W. 175; and Simmons v. Turner, 171 Ark. 96, 283 S. W. 47.
These cases also hold that our statute relating to actions to quiet title have not changed the rule. These and many other cases decided b}r this court hold that possession in fact, as distinguished from that constructive possession which arises simply in virtue of leg’al title, is essential to proceedings under which suit is brought to quiet title. The reason is that the original jurisdiction of equity and our statutes on the subject were designed to afford relief to a class of persons who, being in peaceable possession of a tract of land, had no means of clearing their title to it by suit in due course of law. Where some one else is in actual possession of the land to which the title is sought to be quieted, it is evident that there is an adequate remedy at law. Hence in such cases the party will be left to his legal remedy.
It is true that, in the case at bar, the plaintiff claims to hold the legal title to the strip of land in controversy because of an agreement between herself and the then owners of lot 3, and she claims to have possession of the disputed strip of land by virtue of her possession of the rest of the land owned by her in the same forty-acre tract in which the disputed strip is situated. The defendant, however, claims that, as soon as he got his corrected deed giving him title to all of lot'3 in block 1 in Clayton Addition to the town of Hardy, as shown by the plat on file, he examined the plat, and extended his fence to the limits of his lot as described in the plat, and took possession of all the land within the boundaries as shown by said plat. The land so inclosed by him included the strip of land in controversy in this suit. Thus it will be seen that Frazier had actual possession of this strip of land at the time the present suit was instituted by the plaintiff. Both parties claim the legal title to the strip of land, and, the defendant being in actual possession of it, the plaintiff had an adequate remedy at law, and, under our decisions, ■ must be left to her legal remedy.
It follows that the chancellor should have dismissed the complaint for want of jurisdiction, and nothing in this opinion shall be construed as preventing appellant from suing at law to recover said lot 3 in block 1.
It follows that the decree of the chancellor must be affirmed. | [
-16,
-2,
-36,
44,
74,
96,
42,
-72,
99,
-126,
103,
-45,
47,
74,
29,
37,
-30,
123,
113,
105,
-57,
-73,
71,
3,
-42,
-109,
82,
-51,
-65,
-49,
-25,
-25,
76,
-80,
74,
-11,
71,
-55,
-127,
28,
-114,
12,
-102,
69,
-31,
112,
52,
11,
64,
79,
1,
-105,
-13,
44,
17,
-57,
105,
41,
11,
61,
-48,
88,
-98,
77,
127,
0,
-79,
52,
-84,
35,
88,
8,
-128,
57,
9,
-22,
115,
-74,
2,
116,
15,
-101,
-88,
38,
102,
18,
105,
-5,
-80,
-72,
47,
120,
13,
-90,
-110,
72,
75,
41,
-73,
-99,
121,
0,
-58,
-10,
-22,
-60,
92,
108,
31,
-113,
-106,
-93,
15,
120,
-102,
1,
-5,
-89,
48,
16,
-49,
-18,
94,
67,
88,
27,
14,
-35
] |
Kirby, J.
There is no merit in the contention that the charges or petitions for removal of the board of improvement of the ¿district and its annexes were not sworn to, or the complaint that the members were not duly notified of the filing thereof. The undisputed testimony shows the filing of a verified petition or complaint by Herman Heiden, and the attachment thereto as exhibits of the other petitions and requests of committees, also Verified, all specifying charges against the members of the board for incompetency, gross negligence, and willful disregard of their duties, mismanage ment, and waste of the funds, and failure to file the annual settlements with vouchers as the law requires.
The testimony also shows that they had more than ten days’ notice of the time set for hearing of these petitions by the city council, and that they attended in person and by attorney the meeting’s of the council throughout the entire hearing, and filed no answer denying any of the charges made and produced no testimony in explanation or in justification of their conduct.
The law requires the 'boards of improvement in municipal improvement districts to file annual statements or settlements with the clerk of the city or town in which such improvements have been ordered made, showing all collections and money received and paid out, with proper vouchers for all such payments (See § 5718, C. & M. Digest). The undisputed testimony shows that they failed to file such vouchers showing the payments of the money with their settlements, and also that they refused to furnish the auditor, appointed by the city council to examine and audit the accounts of the district, with such vouchers, their attorney saying that they did not have them, and would not produce them for his examination if they could.
The auditor testified that there was a discrepancy or difference in the amount of the expenditures as shown by the annual settlement of the board, and such vouchers and information as he could get from others, and the books and accounts of the contractor, engineer and the bank, and that it was impossible to tell what went with this money, in the state of the accounts, and that he had no assistance from the commissioners in trying to make a correct audit of the affairs of the district and its annexes.
Certainly the cause or grounds alleged for the removal of the members of the board of improvement related specially to and affected the administration of the office, and were all substantial matters directly affecting the rights and interest of the public, and constituted cause for removal within the provisions of the statute, and the council was acting within its authority in removing them. Carswell v. Hammock, 127 Ark. 110, 191 S. W. 935.
It was not necessary that the council should vote or make-a finding upon each specification or charge made as cause for removal of the commissioners, as contended by appellants. It had the right to consider the proof as a whole and to decide upon its sufficiency as a whole, and was not required to vote upon each or any separate charge without reference to the evidence or proof upon the other charges or specifications, as held in Carswell v. Hammock, supra. There is nothing shown in this case to warrant the request for overruling that case as a correct statement of the law.
Whatever the reason for the action of these commissioners in the conduct of the affairs of the district and their failure to keep proper accounts of the money collected and paid out by the district, and make annual report or settlements thereof, with the vouchers showing the payments as required by law, the record here justifies the wisdom of such requirement of .the law.
Neither do we think there is any merit in appellants’ contentions that they were entitled to a trial before all the members of the council, or that they can complain that some of its members who sat in the trial had already made a report to the council upon the affairs of the district, showing they had a fixed opinion about the action •of the commissioners upon trial on the charges, amounting to preventing their having a fair trial before an impartial tribunal, and that any member of the council-who was not present at each and all the meeting’s of the council during the hearing of the matter was disqualified to vote upon the final decision.
The council was not a court, and was acting in' a g^asi-judicial capacity only in the hearing of the petition for removal, and its members were not disqualified to act because some of them had already, in an official capacity as members of the committee, investigated the condi tions and reported their findings to the council, indicating an opinion adverse' to the innocence of the commissioners.
The council is given-jurisdiction to remove any member of the board of improvement of an improvement district by a two-thirds vote of the whole number of aider-men elected to the council, and in the hearing it could doubtless have followed its own rules of procedure, and, by a committee of its members appointed, made an investigation of the charges preferred, and recommended a decision or determination of the matter, which, of course, must have been concurred in by a two-thirds vote of the whole numlber of the aldermen elected.
The fact that one of the sixteen members of the council voting for the removal was absent from the hearing one night, and that another missed two of the meetings, could make no difference nor affect the result, since sixteen of the eighteen aldermen elected to the council concurred in voting for the resolution, the decision, or order for the removal of the commissioners.
The fact that some of the councilmen had already made an adverse finding to the innocence of the commissioners, in an official report to the council made after an investigation of the affairs of the district, out of which the charges grew, did not disqualify them from participating in the hearing and decision of the question, in any event. The law makes no provision for any such condition, and the council’s action can be reviewed by the courts on certiorari. Hale v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Carswell v. Hammock, supra.
We find no prejudicial error in the record, and the judgment is affirmed. | [
-80,
105,
-40,
-82,
-22,
-32,
58,
-82,
89,
-69,
-89,
127,
-21,
25,
1,
39,
-14,
125,
-44,
42,
-58,
-78,
114,
99,
-74,
-45,
-5,
85,
-77,
108,
-12,
-35,
74,
52,
-62,
-75,
6,
-32,
-49,
92,
-122,
35,
-85,
-56,
-5,
64,
52,
127,
54,
15,
113,
-2,
-13,
44,
-104,
87,
74,
44,
77,
-87,
-48,
-15,
-66,
-99,
123,
14,
-79,
86,
29,
3,
-48,
44,
-88,
49,
-127,
-32,
49,
-90,
-122,
118,
5,
-119,
9,
98,
66,
17,
-67,
55,
-96,
-116,
46,
50,
13,
-89,
-77,
97,
11,
41,
-105,
-103,
68,
82,
39,
-2,
-28,
-123,
89,
108,
-118,
-114,
-92,
19,
31,
-92,
-118,
3,
-17,
44,
20,
80,
-116,
-10,
93,
100,
18,
27,
-98,
-95
] |
Humphreys, J.
This is an appeal from a judgment rendered at the November term, 1926, of the circuit court of Pope County in favor of appellee against appellants on a forthcoming bond executed by appellants in an attachment suit for rents brought to the April, 1925, term of said court by appellee against J. A. Hines. Omitting caption and style of case, the bond is as follows:
“We undertake and are bound to the plaintiff, L. G-. Martin, in the sum of $533.36,. that the defendant, J. A. Hines, shall perform the judgment of the court in this action or that he will have the property, to-wit, the crop of cotton of J. A. Hines grown during the year 1924, attached in this action, or its value, $533.36, forthcoming and subject to the orders of the court for the satisfaction of such judgment.
“In testimony whereof witness our hands this the 4th day of February, 1925.
“J. A. Hines,
“W. S. Austin,
“L. H. Austin.”
In the original suit in which said bond was given it was alleged that appellee herein, L. G-. Martin, rented J. A. Hines, one of the appellants herein, certain land for the year 1924 for one-fourth of the cotton and one-third of the corn raised thereon; that Hines raised fifteen bales of cotton and 250 bushels of corn on the land, the rentals being worth $533.36; that he removed the cotton and corn from the place without paying the rent, a part of the corn being stored in W. S. Austin’s barn and a part of the cotton in the compress at Russellville. Summons and attachment were duly issued and served. After the cotton was attached, the appellants gave the forthcoming bond set out above and took possession of the cotton.
J. A. Hines and the other appellants herein, who were the sureties on the bond, made no defense to the action, although it appears that J. A. Hines was present in court during the trial of the cause. Testimony as to the rental contract, the amount of rent due, and to sus tain the ground of attachment, was introduced. At this juncture of the proceedings J. A. Hines disclaimed any interest in the cotton attached, and the suit as to him was dismissed. Based upon the testimony introduced, the court adjudged that appellee herein recover $533.36 as rent for the- land, and sustained the attachment against eight bales of cotton which the sheriff had seized in said warehouse, and ordered a -sale thereof, or so much as might be necessary to pay the amount. The attachment was sustained and sale ordered, under the belief that the cotton was still in the custody of the .sheriff. After court adjourned the clerk issued an order of .sale for the-cotton, but the sheriff could not sell it because appellants had not returned it in accordance with the provisions of the forthcoming bond. Upon the sheriff’s refusal to sell the cotton, appellee herein brought suit against him at the next, or November, term of said court, asking judgment for the amount of the debt, interest and costs. The sheriff filed an .answer, alleging that he had received a forthcoming bond and released the cotton, stating that the bond had been lost, .and requesting permission to file a copy thereof, which was granted. The original bond was found, however, and filed instead of the copy. When the original bond was filed, the court rendered a summary judgment against the bondsmen, the appellants herein, for the amount of the debt, interest.and costs, and dismissed the suit as to the sheriff. -
At the same term of court J. A. Hines, L. H. Austin, W. S. Austin and J. K. Austin filed a motion to set aside the judgment against the bondsmen, requesting permission to intervene in the original suit of L. G-. Martin against J. A. Hines, so as to defend upon the ground that J. A. Hines was only a share-cropper of J. K. Austin, and that Austin was to pay the rent to Martin, and was only to pay $12.50 per acre. The intervention was filed interposing that defense, and at the April term of court, 1926, the court set aside the summary judgment rendered on said bond against J. A. Hines, W. S. Austin and L. H. Austin, and ordered .that summons be issued agáinst them, and that the cause be continued until the first day of November, 1926, term of said court. During the November, 1926, term of court, tall parties' being present in person and by attorney, the cause was submitted upon the pleadings and the evidence relative to the manner in which the original judgment was rendered and the subsequent proceedings had and done. The court refused to hear testimony in support of the defense offered by the bondsmen, to the effect that J. A. Hines had rented the land from J. K. Austin, the father of W. S. Austin, and J. K. Austin had rented the land from W. S. Austin before W. S. Austin sold his lease contract, to the plaintiff, L: Gr. Martin, and that J. A. Hines had agreed to pay J-. K. Austin $12.'50 per acre for the land, and that he paid said amount to his landlord in accordance with the terms of the contract. Appellants objected, and excepted to the action of the court in excluding this evidence. The court then rendered a judgment on the forthcoming bond, from which is this appeal.
Appellants contend for a reversal of the judgment upon the ground that the dismissal of the original suit against J. A. Hines was in effect a dismissal and release of the forthcoming bond. We do not understand that the dismissal of the suit as to J. A. Hines included the dismissal of the attachment proceeding'. The bond was given in the attachment branch of the case. The attachment was sustained, and the cotton attached was ordered sold, but the sheriff could not sell it because it had been turned over to appellants under the forthcoming bond. It is true no personal judgment was taken against J. A. Hines for the amount of rent due, but the amount due was ascertained and declared a lien upon the cotton. J. A. Hines and his bondsmen were not released from the forthcoming bond, and, by virtue of having' signed said bond, were parties to the attachment branch of the case. A surety on a forthcoming bond in an attachment proceeding becomes la party to the attachment proceeding. Fletcher v. Menken, 37 Ark. 206; Morse Bros. Lbr. Co. v. Burkhart Mfg. Co., 155 Ark. 350, 244 S. W. 350; Layton v. Linton, 159 Ark. 529, 252 S. W. 21; Dent v. Farmers’ & Merchants’ Bank, 162 Ark. 325, 258 S. W. 322. Being parties to the attachment proceeding they were all bound by the judgment sustaining the attachment and ordering a sale of the cotton. Under this judgment' it was their duty to return the cotton to the sheriff. It was also their duty to interpose any and all defenses which they had to the action of Martin in the original suit, and, failing to do so, they were barred from afterwards interposing any defenses which they had at that time. The court should have rendered a judgment in the first suit against appellants under the forthcoming bond, but it seems at that time that the sheriff had forgotten that the forthcoming bond had been executed, and the fact that such a bond had been issued had not been called to the attention of the court. The proceeding at the November term against the sheriff and the summary judgment rendered against the bondsmen was in aid and in reality a continuation of the first suit. The bondsmen were already parties in the suit by virtue of having executed the bond, and were in no wise prejudiced by the rendition of judgment against them at the November term, which the court had a right to enter, and should have entered, in the original judgment. The suit against the sheriff brought to the November term was in substance a motion in the original suit for a summary judgment upon the bond against the bondsmen.
The court did not err therefore in refusing to entertain the defense tendered by the bondsmen against the suit upon the bond. They were barred from interposing the defense by having failed to set up their defense in the original action. Church v. Gallic, 76 Ark. 423, 88 S. W. 979; Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973; Taylor v. King, 135 Ark. 43, 204 S. W. 614.
No error appearing, the judgment is affirmed. | [
-14,
64,
-3,
31,
26,
64,
10,
-80,
82,
32,
102,
83,
-7,
126,
80,
61,
-31,
93,
117,
105,
101,
-73,
18,
97,
-111,
-13,
-29,
-43,
61,
77,
-25,
-106,
9,
116,
2,
17,
-58,
-64,
-59,
-98,
-114,
-127,
-71,
-20,
-35,
80,
50,
47,
20,
11,
117,
7,
-22,
104,
53,
107,
105,
47,
121,
41,
64,
81,
-102,
15,
-33,
7,
16,
103,
-102,
-127,
-56,
126,
-104,
53,
0,
-24,
115,
-124,
-122,
84,
13,
-103,
8,
102,
38,
18,
-27,
-83,
0,
-40,
39,
-70,
-99,
-90,
-32,
88,
91,
38,
-66,
29,
90,
-108,
-105,
124,
108,
-59,
84,
108,
7,
-49,
-106,
-13,
13,
-72,
-102,
19,
-61,
74,
-80,
113,
-49,
-85,
92,
71,
49,
-101,
-121,
-77
] |
Humphreys, J.
Appellant was indicted in the circuit •' court of Ouachita -County, First Division, for murder in the first degree for shooting’ and killing T. N. Madden. Upon the trial of the cause he was convicted of murder in the second degree, and, as a punishment, was adjudged to serve a term of twenty-one years in the State Penitentiary, from which is this appeal.
A reversal of the judgment is sought upon two assignments of error, the first being the refusal of the court to grant appellant’s motion for a continuance, and the second, the exclusion of certain evidence.
(1). It was alleged in the motion for a continuance that appellant -could prove by James Cooper, if present, that he heard deceased threaten to take the life of appellant, and that, prior to the killing, he informed him of the threat; that he procured a subpoena for the witness, upon which a non est return was made. The motion did not state that the witness was within the jurisdiction of the court, or that he could 'be procured as a witness by the next term thereof. It is not an abuse of discretion to deny a motion for continuance for the term unless it is shown that the attendance of the witness can -be procured by the next term of court. Eddy v. State, 165 Ark. 289, 264 S. W. 832; Harris v. State, 169 Ark. 627, 276 S. W. 361.
(2). A few days before the killing, complaint was made by appellant to the mayor of the town, E. EL Timmons, about the children of deceased imposing upon his children, with the request to the mayor that he see the deceased and prevail upon him to assist him in quelling the disturbance between the children. When the mayor made the request, deceased assumed a hostile attitude to both the mayor and appellant. Appellant sought to show the demeanor of the deceased, and the court refused to allow the witness to answer relative to the demeanor of deceased, over the objection and exception of appellant. Immediately thereafter the court stated the witness might testify to anything that was of a threatening nature.
The appellant then asked the following questions and obtained the following answers thereto :
‘ ‘ Q. State to the court and jury what his demeanor was which gave you the impression that it was a threat? A. After I informed him that Mr. Graham had asked me to take the matter up with him and talk it over with him, he got angry, and grew more hostile as the conversation progressed, and I told him that I only came as a peacemaker, and I told him that if I could not be of any assistance I.would withdraw. Q. Was he angry at you or the defendant? A. He appeared to take some offense at my coming there. Q. Well, how about the defendant? A. He took offense at him, too.”
The admission of the testimony, after first excluding it, cured the error, if any.
Appellant also complains that the mayor and his wife were not permitted to testify that he advised appellant to avoid deceased. He is mistaken in this assump- • tion. The record reflects that both testified that he (the mayor) told appellant to avoid T. N. Madden.
Appellant also complains that witness Vick was not permitted to testify that deceased had the reputation of carrying a pistol. Vick testified that he had never seen deceased carry a pistol. The rule of evidence is that an accused may prove the g’eneral reputation of deceased for being a violent or' turbulent person, but not his reputation for committing any particular unlawful act.
Appellant also complains that he was not permitted to tell why he was afraid of deceased. The record reflects that appellant testified as follows:
“Q. Why were you afraid of him A. The way he was doing and talking to me, and then I went over to Mr. Timmons’ office and asked him what Madden said when he talked to him, and he would not tell me, only he said, ‘You better shun him’.”
No error appearing, the judgment is affirmed. | [
16,
-20,
-12,
-100,
58,
96,
24,
-72,
-48,
-13,
100,
115,
111,
-38,
85,
123,
123,
95,
85,
105,
101,
-73,
55,
97,
50,
-13,
17,
-41,
-74,
-49,
-10,
-35,
12,
112,
74,
17,
102,
-54,
-25,
-34,
-114,
-128,
-87,
-24,
-39,
14,
32,
45,
20,
7,
5,
-66,
-93,
106,
26,
67,
-55,
40,
91,
-113,
82,
16,
-54,
13,
-113,
7,
-77,
-74,
-104,
7,
120,
60,
-104,
49,
0,
-24,
115,
-122,
-122,
-44,
111,
25,
108,
98,
35,
10,
-115,
-25,
-88,
-55,
14,
-66,
-99,
-89,
-104,
33,
11,
13,
-105,
-33,
114,
52,
-113,
-8,
100,
92,
84,
108,
3,
-49,
-110,
-79,
-119,
60,
-108,
-109,
-21,
7,
116,
113,
-50,
-30,
92,
71,
17,
-37,
-82,
-112
] |
Mehaffy, J.
In March, 1919, T. A. Harrison and his wife, Bessie Harrison, being indebted to the Security Mortgage Company, a -domestic corporation, in the sum of $1,000, executed and delivered to said Security Mortgage Company á note bearing interest at the rate of 6 per cent, per annum, with coupon notes for interest, and to secure the payment of said notes, T. A. Harrison and Bessie Harrison executed and delivered to the Security Mortgage Company their real estate mortgage upon the south half of the northwest quarter of the northeast quarter of the southwest quarter and the west half of the southeast quarter and the east half of the southwest quarter, in section 35, township 8 south, range 30 west, containing 220 acres. The said Bessie Harrison, wife of the said T. A. Harrison, joined with her husband, and relinquished dower and homestead. The right of appraisement and redemption was waived.
After the execution of said mortgage, in .September, 1919, T. A. Harrison and Bessie Harrison, his wife, executed and delivered to M. A. Janes a warranty deed to the land described in the mortgage, and the said Janes assumed the mortgage debt as a part of the price of said land, land also executed his note for the sum of $550 for the balance of the purchase money, the grantors retaining a vendor’s lien for the unpaid purchase price. The mortgage company brought suit to foreclose its lien, alleging that its mortgage lien was superior and paramount to that of Janes.
Janes and wife, in January, 1921, executed and delivered a mortgage to C. E. Kitchens for $889.35. The Bank of Lockes'burg became owner of the notes, and brought suit and foreclosed the vendor’s lien, and a sale was ordered, subject to the lien of the mortgage of the Security Mortgage Company. The bank became the purchaser at the sale. The mortgage company asked that its lien be declared superior to the other liens mentioned. The Bank of Lockesburg answered, and filed a cross-complaint, alleging that the land was in Road Improvement District No. 2 of Sevier County, and that the benefit assessments were not paid, and the road improvement district brought suit to collect the assessments and a decree was rendered in the Sevier Chancery Court adjudging the .amount of taxes, penalties and costs against the lands above described, and ordering them to be sold in satisfaction thereof. A commissioner was appointed, the lands were sold by said commissioner and purchased by the road improvement district. Thereafter the commissioner -executed a deed conveying said lands to said improvement district, and this deed was acknowledged and approved in open court. Thereafter, on the 21st day of April, 1925, the commissioners of said district sold and conveyed the land to the said Bank of Lockesburg. A deed was executed and delivered by the road improvement district to the Bank of Lockesburg. The chancery court rendered a decree to the effect that the Bank of Lockesburg was the owner of the land involved, free and clear of any right, title, claim, interest or equity of the plaintiff; dismissed the plaintiff’s complaint for want of equity, and decreed the title to the land to be in the Bank of Lockesburg. The case was tried on an agreed statement of facts.
It is not necessary to copy the agreed statement of facts or to set out the facts in this opinion. The only question involved in the case is whether the bank, by purchasing the land from the road improvement district, acquired a title which was superior to the mortgage of the plaintiff. The bank had foreclosed a lien on the land, procured its sale, and purchased it subject to the mortgage of the Security Mortgage Company. The testimony shows that the bank paid the interest to the mortgage company for September, 1923, and March and September, 1924, and March, 1925. In April, 19'25, the road improvement district made a deed to the bank. The bank had purchased under foreclosure sale. Appellant’s con tention is that, the bank being’ in possession of the land, and it being- its duty to pay the taxes in order to protect its own interest, its purchase from the road improvement district operates as a redemption, and that the lien of appellant is superior to any claim of the bank.
Road. Improvement District No. 2 of Sevier County was a road improvement district formed under the general laws, and the taxes became delinquent for the year 1921, a decree was rendered in November, 1922, against the delinquent lands, and a sale was made in December, 1922. On April 5, 1923, the Bank of Lockesburg purchased at foreclosure sale, subject to the plaintiff’s mortgage, and on that day a commissioner’s deed was executed and delivered to the Bank of Lockesburg to said land. The bank of Lockesburg’ thereby became the owner of said land on April 5, 1923. The deed from the commissioner to Road Improvement District No. 2 was on December '2, 1924, and in April, 1925, the road improvement district conveyed to the Bank of Lockesburg.
Appellee in its brief states: ‘ ‘ The only question for this court to determine is whether or not the appellee owed any duty to appellant to pay the taxes and special assessments charged against said lands for the year 1921. If it was under obligation to pay the taxes, then its purchase from the road improvement district should be treated as a redemption, but, on the other hand, if it owed no such duty to pay said taxes, its title, so 'acquired from the .improvement district, is superior to the title of appellant.”
At the time the lands became delinquent, in 1921, • the appellee was not the owner of the land, but he became the owner on April 5, 1923, after the lands had been sold for the payment of taxes and purchased by the district. If the -Bank of Lockesburg had been the owner at the time of the sale to the district, it would have been its duty to pay the taxes, but its interest at that time was the same as a-mortgagee. It held a note given for the purchase price of the land, it brought suit and foreclosed on this note and became the purchaser, but it did not become the purchaser until after the road improvement district had purchased the property, and it was therefore under no obligation to the mortgagee, Security Mortgage Company, to pay the taxes.
This court has recently said:
“The holder of the second mortgage was under no obligation to the holder of the first mortgage to redeem the lands in possession of the mortgagor from their sale for delinquent taxes, notwithstanding the owner was bound to the' payment of such taxes by the terms of the first mortgage. The appellant, under its mortgage, could have paid the taxes before the lands were sold as delinquent and charged them against the mortgagor, and it could have redeemed the lands in the manner provided by the act from the tax sale within the time allowed therefor for such sale. Appellant makes no showing of having been prevented'from either paying'the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into security in the belief that such taxes would be paid or redemption would be made for his benefit. ’ ’ Security Mortgage Co. v. Herron, 174 Ark. 698, 296 S. W. 363.
At the time the taxes became delinquent and at the time the lands were purchased by the district, the Bank of Lookesburg was not the owner, and therefore under no duty to pay the taxes.
“A bidder to whom property has been struck off at a judicial sale may assign his bid before the deed has been delivered, and the deed will be made directly to the assignee and pass title to him.” 24 Cyc. 31; Wiltsie on Mortgage Foreclosure Sales (3 ed. vol. 1, § 678). “In the case of Wells v. Rice, 34 Ark. 346, the court said that a safe made under a decree of the chancery court is not completed until confirmed by the court, and a deed to the purchaser confers on him no right to the property. ” Purcell v. Gann, 113 Ark. 332, 168 S. W. 1102.
Appellant calls attention to the case of McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62. This case holds that, when one purchases subject to a mortgage, this amounts to a recognition by the purchaser or second mortgagee that such mortgages as were on record were prior valid liens on the lands, so, when the Bank of Lockes'burg purchased the land, it purchased with the knowledge of the existence of the mortgage of appellant; but this does not mean that he owed any duty to the prior mortgagee to either pay the taxes or redeem from tax sales. Appellant argues that, since the Bank of Loekesburg was in possession of the land under its foreclosure of its second lien, receiving all rents and profits of "the land, it became and was the duty of the bank to pay the taxes, but we do not find any evidence supporting the position or contention that the bank was in possession, receiving the rents and profits. Of course, where one is in possession, receiving rents and profits from mortgaged property, he has money received from property itself with which to pay the taxes, and it has been held that, under such circumstances, he owes the duty to pay the taxes, but the evidence in this case does not show that the bank was in possession and does not show that it received any rents or profits from the property. Cotton v. White, 131 Ark. 273, 199 S. W. 116.
It is contended also by the appellant that the letters introduced show that the bank intended to pay the first lien. E. K. Edwards, who is said to have been the attorney for the bank at- the time, advised the mortgage company of the time of the sale, and stated that, if the bank became the purchaser at the sale, as it probably would, then the bank would pay the accrued interest on the loan and meet the other payments. This was a recognition of the prior lien of the mortgage company, but, even if competent evidence, it would not bind the bank to pay the taxes or redeem the land from tax sale. This letter was written in 1923, and the taxes 'became delinquent for the year 1921. Moreover, there is not any testimony that the bank authorized the letter or authorized any statement to be made justifying the conclusion that the bank had made'a promise to pay appellant’s debt or to redeem the land from tax sale. Besides, nothing in the letter indicates that the bank intended to pay the taxes or that the mortgage company could construe as a promise to pay the taxes or to redeem from the tax sales.
As said in the case of Security Mortgage Co. v. Herron, supra, “appellant makes no -showing of having been prevented from either paying the taxes or redeeming the lands by any conduct of the holder of the second mortgage calculated to lull him into security in the belief that such taxes would be paid or redemption would be made for his benefit.”
The appellant could have paid the taxes, it could have prevented any delinquency, it could have paid the taxes before the lands were sold as delinquent and charged them against the mortgagor, or it could have redeemed the lands in the manner provided by law, but it did not undertake to do either. It suffered the lands to become delinquent, permitted them to be sold, the sale to be confirmed, a deed executed to the road improvement district, and apparently took no-steps whatever to protect its interests.
We agree with contention of appellant that, if the bank was bound to pay the taxes to protect the prior mortgagee and permitted the same to forfeit, it would be treated as a redemption. It is also true that, if the proof showed that the bank was in possession, receiving the rents and profits, receiving the -money with which to pay the taxes, or if the bank had been the owner when the taxes became delinquent and the land sold, it would have -been its duty to pay.
We do not deem it necessary to call attention to other authorities, because we think the rule announced in Security Mortgage Company v. Herron, supra, is controlling in this case. We fincl no error in the decree of the chancery court, and it is therefore affirmed. | [
-15,
85,
-8,
111,
104,
96,
11,
-102,
-6,
16,
-77,
-45,
-13,
-28,
1,
33,
-91,
77,
-27,
104,
-26,
-74,
115,
36,
-61,
-13,
125,
-59,
-80,
76,
-76,
-41,
13,
60,
-54,
29,
-122,
-88,
-49,
92,
14,
-124,
-69,
101,
-35,
-128,
52,
47,
68,
76,
113,
-81,
-78,
-82,
53,
75,
76,
42,
-49,
40,
80,
105,
-118,
-123,
127,
3,
17,
-32,
-112,
65,
-56,
26,
-112,
53,
65,
-22,
112,
54,
-106,
116,
9,
25,
9,
62,
102,
50,
-60,
-19,
-104,
-34,
20,
-10,
-71,
-94,
-93,
73,
3,
8,
-65,
-100,
90,
0,
70,
-12,
42,
-99,
28,
104,
55,
-118,
-42,
-109,
45,
-72,
-102,
3,
-9,
7,
48,
85,
-49,
-77,
85,
38,
117,
-101,
-113,
-7
] |
Mehaffy, J.
The prosecuting attorney filed the following information, the formal parts of which are omitted:
“I, Boyd Tackett, prosecuting attorney within and for the Ninth Judicial Circuit of the State of Arkansas of which Pike county is a part, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, Jim Higgins, of the crime of assault with intent to kill committed as follows, to-wit: The said defendant on the 3d day of July, 1941, in Pike county, Arkansas, did unlawfully, willfully, knowingly and feloniously and with.malice aforethought make an assault in and upon one Charlie Gentry, to-wit: a knife, by cutting and stabbing him, the said Jim Higgins, with the unlawful, willful and felonious intent then and there to kill and murder him, the said Charlie Gentry, against the peace and dignity of the State of Arkansas.”
The evidence introduced on the part of the state showed that appellant was at Mrs. Gillispie’s restaurant; that he went into the restaurant with Mr. Kelly and some other men and had an argument over paying for the food; the argument was between appellant and another man. After they had eaten and started to' leave, Mrs. Gillispie asked who was going to pay for the food and appellant answered that he had already paid for it. Mrs." Gillispie told them no one had paid for it, and they continued to argue the matter. Charlie Gentry, marshal of Delight, Arkansas, came to investigate the trouble. He told the men to pay for their food and get out; that they were too drunk to stay there. The amount of the bill was fifty-five cents; Kelly paid fifty cents,-and another man paid five cents, and they all left except appellant. When Gentry told appellant to get out, appellant swore at him and told him he would get him into it. He then tried to stab the marshal, who first threw a gun in his face and then changed his mind and beat him down with his blackjack and handcuffed him. The marshal took the knife away from him. The shirt and scabbard of the marshal which witness said were cut by appellant were introduced in evidence.
Appellant introduced witnesses who contradicted some of the state’s evidence, but the evidence being in conflict, it was a question for the jury to decide.
The jury returned the following verdict: “We, the jury, find the defendant guilty and fix his punishment at ppe year in the state penitentiary.”
Judgment was entered accordingly, and appellant was sentenced to one year in the penitentiary. Motion for new trial was filed and overruled, and the case is here on appeal.
“Appellant has failed to abstract and brief the case, so the assignments of error to be determined are contained in the motion for a new trial.” Collier v. State, 202 Ark. 939, 154 S. W. 2d 569.
So, in this case, the appellant has furnished no abstract or brief, and we determine the assignments of error by the motion for a new trial.
The first three assignments in the motion for new trial are: that the verdict is contrary to the law; that the verdict is contrary to the evidence; that the verdict is contrary to the law and the evidence. These raise the question of the sufficiency of the evidence. Bourne v. State, 192 Ark. 416, 91 S. W. 2d 1029.
It is a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained. West v. State, 196 Ark. 763, 120 S. W. 2d 26; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; Walls & Mitchell v. State, 194 Ark. 578, 109 S. W. 2d 143; Brown v. State, 203 Ark. 109, 155 S. W. 2d 722.
There was substantial evidence to support the verdict and judgment, and the evidence being in conflict, it was the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony.
There was no prejudicial error in the giving of the instructions.
The judgment is affirmed. | [
48,
-25,
-8,
-1,
9,
-32,
42,
-104,
-127,
-93,
-10,
115,
-23,
-59,
25,
97,
-21,
-19,
84,
105,
-124,
-73,
53,
96,
-14,
-77,
-87,
-43,
-77,
-49,
-20,
-44,
77,
32,
-30,
85,
102,
74,
-27,
-36,
-86,
-128,
-85,
-16,
115,
-62,
48,
51,
70,
7,
53,
-97,
-6,
42,
20,
-53,
-51,
44,
75,
-113,
80,
113,
-102,
-99,
-3,
22,
-95,
38,
-98,
1,
88,
14,
-103,
53,
0,
-8,
115,
-74,
-126,
84,
69,
-103,
12,
98,
98,
37,
-115,
-53,
-88,
-115,
47,
-81,
-103,
-89,
-38,
73,
11,
13,
-98,
-99,
126,
16,
6,
116,
113,
95,
25,
108,
-126,
-50,
-108,
-95,
-113,
44,
22,
59,
-63,
23,
20,
117,
-115,
-10,
93,
69,
122,
-37,
-118,
-108
] |
Kirby, J.,
(after stating the facts). The undisputed testimony shows that the local agent of the fire insurance company* having power to issue policies and collect premiums, was notified by the insured that a loss had occurred, and received from him a list of the property destroyed, made out upon a little book furnished by the agent for that purpose; that he notified the company of the loss, 'and the adjuster had the list of the property furnished the agent by the insured when he first called upon him relative to aii adjustment of the loss; that, during the negotiations for a settlement, although complaint was made that the proof of loss was not satisfactory, no refusal to settle was made on that account until the 28th day of June, when a formal verified itemized proof of loss was sent by registered mail to the company.
There was no reason to think that a refusal to adjust the loss or pay the claim would be made until that time, and the court properly held that the insurance company had waived the proof of loss, and that the notice given and the action taken by the insured in furnishing- the list of the property lost was a sufficient compliance with the requirements of the policy. Fireman’s Ins. Co. v. Hays, 159 Ark. 161, 251 S. W. 360; Fireman’s Fire Ins. Co. v. Mitchell, 122 Ark. 357, 183 S. W. 770; National Union Fire Ins. Co. v. Wright, 163 Ark. 42, 257 S. W. 773, Fireman’s Ins. Co. v. Bye, 160 Ark. 212, 254 S. W. 465; American Ins. Co. v. Dannehower, 89 Ark. 111, 115 S. W. 950.
The proof of loss or list of property destroyed, furnished to the agent of the insurance company a few days after the fire and later found in possession of the adjuster, upon the first of his three visits to make the adjustment, was not refused as a proof of loss meeting the requirements of the insurance policy, nor any such objection made to it as amounted to its refusal as such, until what was thought to be the last of the 60 days provided in which such proof should be furnished. This being- the case, the insured was entitled to further reasonable time to complete the proof of loss. Planters’ Mutual Ins. Co. v. Hamilton, 77 Ark. 27, 90 S. W. 283, 7 Ann. Cas. 55.
The undisputed testimony also shows that the. fire which destroyed the insured property continued into the morning of the 29th, and the law will not allocate the loss to any particular part of the time, nor consider the property destroyed before the cessation of the fire which consumed it. Such being the case, the itemized verified proof of loss was furnished within the time required by the policy, in any event,.
There is no merit in the contention that appellee refused to submit himself for examination under oath, long after the loss had occurred and suit had been filed for the recovery of the amount of the loss under the policy. As said in Conn. Fire Ins. Co. v. Boydston, 173 Ark. 437, 293 S. W. 730, such clause “did not contemplate such examination after the occurrence of the fire, with subsequent loss.”
We find no prejudicial error in the record, and the judgment is affirmed. • • | [
-76,
104,
-8,
-83,
8,
32,
58,
-8,
-61,
117,
39,
83,
-19,
-30,
49,
39,
-42,
41,
-43,
42,
-42,
-93,
82,
10,
-42,
23,
113,
-59,
49,
126,
126,
-36,
68,
32,
-126,
-43,
-90,
-120,
-59,
-40,
-50,
9,
-71,
-19,
-3,
80,
48,
-55,
112,
75,
81,
-74,
-29,
42,
16,
79,
105,
45,
107,
-87,
-47,
97,
-117,
71,
119,
1,
-79,
100,
-98,
71,
-8,
14,
-112,
49,
0,
-56,
113,
38,
-106,
116,
37,
-119,
0,
102,
103,
48,
29,
101,
-20,
-100,
39,
16,
63,
-82,
-76,
72,
42,
40,
-73,
-103,
101,
16,
36,
124,
-32,
85,
92,
100,
19,
-114,
-106,
-77,
-119,
102,
-104,
15,
-17,
23,
52,
113,
-49,
-90,
92,
103,
56,
-101,
-106,
-23
] |
MoHaney, J.
Appellants are the city attorney, municipal judge, chief of police and mayor of the city of Hot Springs. Appellee is the successor to the St'. Louis, I. M. & S. B. Co., which was the successor to the Little Bock, Hot 'Springs & Western Bailway Co., and it in turn was the successor to the Little Bock, Hot Springs & Texas Bailway Co., and is now the owner and is operating a line of railroad between the cities of Little Bock and Hot Springs. On April 2, 1894, the city council of Hot Springs passed an ordinance, the title of which and the parts thereof pertinent to this controversy being as follows:
“An ordinance granting to the Little Bock, Hot Springs and Texas Bailway a right-of-way and other rights and privileges on, through and over certain lots and blocks and streets and avenues in the city of Hot Spring’s, including the right and privilege to build, construct, establish, maintain and operate thereon and thereto such track or tracks, sidetracks, turnouts, turntables, depots, water stations and such other structures and improvements as said railway company may from time to time deem necessary.
“■Section 1. Be it ordained by the city ooun'cil of the city of Hot Springs: That a right-of-way and' all other rights and privileges hereinafter mentioned he and it and they are hereby granted to the Little Rock, Hot Springs and Texas Railway, a corporation created and existing under the laws of the State of Arkansas, on, through and over certain lots and blocks and streets and avenues of the city of Hot Springs, which lots and blocks and streets and avenues are hereinafter more specifically mentioned.
“Section 2. That the right-of-way hereby granted may be located at such place or places as said railway company may select, on, over and through that portion of said city of Hot Springs described as follows, to-wit.”
Then follows a description of the route of the right-of-way through the city, from the corporate limits down to the intersection of Elm and Valley Streets, where the depot is located, and then says: “That, in addition to the rights and privileges hereinbefore mentioned and granted, said railway company is also granted the right and privilege to occupy and use all of said block fifty, and all that portion of said blocks fifty-four and fifty-eight lying east of a line drawn parallel with the east line of Elm Street, distance one hundred and ten feet easterly, at right angles with the Elm Street front of said blocks fifty-four land fifty-eight, for the purpose and use of erecting, constructing, maintaining, using and operating thereon such track, or tracks, switches, turnouts, turntables, freight depots, passenger depot and such other structures and improvements as may be necessary and incident thereto, and for such other purpose and uses as said railway company may deem necessary; said railway company is also hereby granted the right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, sidings, switches and yard tracks on that portion of Orange and Olive Streets between Elm and Valley Streets as said railway company may, deem proper. ’ ’
On July 2, 1899, the city council of Hot Springs passed an ordinance granting the Little Rock, Hot Springs and Western Railway Company a right-of-way and certain rights and privileges as successor to- the Little Rock, Hot Springs & Texas Railway Company, in which all the rights, privileges and right-of-way granted in the first ordinance were extended and granted to the Little Rock, Hot Springs & Western Railway Co., its successors and assigns. In § 2, after describing the same general route as in the first ordinance, this further grant is made:
“That, in addition to the rights and privileges hereinbefore mentioned and granted, said railroad company is also granted the right and privilege to occupy and use any part of said blocks fifty, fifty-four and fifty-eight for the purpose of erecting, constructing, - maintaining, using and operating thereon such track or tracks, switches, turnouts, and turntables, freight depot, passenger depot and such other structures and improvement as may be necessary and incident thereto, and for such other purposes and uses as said railroad company may deem necessary; said railroad company is also hereby granted the right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, switches and- sidetracks, on that portion of Orange and Olive Streets, between Elm and Valley Streets, as said railroad company may deem proper.”
Section 3 defines the conditions on which the rights are granted, among’ them the following:
“That said railroad company shall have said railroad completed and be operating within three years from the date of the passage of this ordinance, otherwise the grants herein are null and void. ’ ’
The company constructed its railroad within the time limited, and it and its successors and assigns have continuously operated same since that time. During this period of time, Hot Springs has grown from a mere village to a large and thriving city, and is the world’s most famous health resort. The facilities built by the railroad company,„both for its own convenience and that of the general public, became inadequate, and necessity demanded the construction of additional tracks to its depot, to facilitate the handling- of the enormously increased traffic and the great number of trains coming into its station. Therefore, to meet this necessity, appellee decided to spend more than $200,000 in improving its terminals in Hot Springs, and, as a part of this program, began the construction of four additional tracks parallel with the main tr a'ek and immediately west thereof, through blocks 50, 54 and 58,- and to its depot in block 58, which stands at the intersection of Elm and Valley Streets. It owned all the land on which these tracks were to be laid, except Orange Street, which extends west from the railroad, but has no outlet to the east. In fact, appellee owns all of block 50, all of 54 east of the alley, and all of 58. In order to build these tracks it was absolutely necessary to cross the “dead end” of Orange Street. When Orange Street was reached in the laying of tracks, appellants prohibited it from crossing Orange Street, arrested its employees under a claim that it had no right to cross said street, and thereby was preventing the completion of said work. Appellee thereupon brought this suit to enjoin appellants from interfering in any way with such work. A temporary restraining order was issued, and the case set down for final hearing. If any pleadings were filed by appellants, they are not abstracted, and none is mentioned in the decree. The case .was, quoting from the decree, “submitted to the court on the complaint of plaintiff with exhibits thereto, the copies of two separate ordinances of the city council of the city of Hot Springs, Arkansas, which are attached to the plaintiff’s complaint, the admissions of the defendants that said ordinances were duly and regularly passed by the city council of Hot Springs, Arkansas, and the further admission by the defendants that all the allegations of fact in plaintiff’s complaint are true, a map showing the location of the railroad tracks which plaintiff intends to build, and the testimony of E. M. Cohen to the effect that plaintiff owns all real property abutting on Orange Street, which plaintiff intends to cross same with its tracks, and that plaintiff owns all real property lying east of the alley which runs through the middle of hloclc fifty-four of United States Hot Springs Reservation from Orange Street to Olive Street,” from which the court found that appellee had the right, under the law and ordinances, to construct said tracks across Orange Street, and made the temporary order, restraining appellants from interfering therewith in any way, permanent, but provided such tracks should be so constructed as not materially to interfere with traffic on said street or the use thereof by the public. Acting under the injunction granted it, appellee has completed the construction of said tracks across Orange Street to its depot, and they are now being operated and used for the benefit of it and the public. By this appeal we are asked to reverse this case, and direct the chancery court to require appellee to remove the tracks so placed on Orange Street.
Appellant’s principal contention for a.reversal of the case, and the only.one we deem necessary to discuss, in view of the disposition we make of it, is that the ordinances in question only gave appellee and its predecessors the right to build such tracks across Orange Street as were contemplated at the time; that the grant was not a prospective and continuing one, giving the grantee the right to lay additional tracks whenever it deemed necessary or proper to do so. In other words, that, having constructed its railroad and tracks under the ordinance, all its rights were exhausted, and.it cannot now, after a lapse of 27 years, proceed to build new tracks under this authority, but would have to go to the city council for additional authority. To sustain this contention counsel have cited two of our own cases, Board of Directors of St. Francis Levee Dist. v. Bowen, 80 Ark. 80, 95 S. W. 993, and St. L. I. M. & S. R. Co. v. Stevenson, 125 Ark. 357, 188 S. W. 832.
The first of such eases “was an action to recover damages on account of the construction of. a levee by the defendant across the farm of plaintiff and the taking of land for a right-of-way therefor, ’ ’ and this court said:
“The main defense set np by the defendant seems to have been that the right-of-way to construct the levee had already been granted by a deed duly executed by plaintiff. This deed purports to convey ‘the right-of-way’ over the land in question ‘for the purpose of -constructing and maintaining any and all levees that may be built thereupon as a protection against overflows.’ This deed was made out on a printed form for a deed prepared by the levee board, and recited a nominal consideration of $1. We are of the opinion that the deed gave only one right-of-way across the land; and, when a right-of-way across the land was selected and occupied by the construction of a levee, the defendant could not construct another levee across the land on a different line without securing another right-of-way. We think that the circuit court correctly held that only one right-of-way could be taken under it, and that, after that had been selected and occupied, the power of the deed was exhausted, and no other right-of-way could be taken under it. ”
In the other case above cited, the substance of the decision is stated in the syllabus, and is as follows:
“One B granted the appellant railroad company a right-of-way over certain lands owned by him, without specifying the width of the right-of-way granted. The railroad company occupied a right-of-way about thirty feet in width, and some time thereafter sought to extend its right-of-way to the statutory limit. Kirby’s Digest, 2939-2940. Held, the railroad company could not extend the limits of its right-of-way beyond the territory already occupied by it without a new grant from the owner of the land.”
In the last mentioned case this court cited with approval the case of Vicksburg & M. R. R. Co. v. Barrett, 67 Miss. 579, 7 So. 549, in which the landowner had conveyed to the railroad company by deed a right-of-way “not to exceed in width one hundred feet” across certain lands. The full width of the strip was not actually occupied in building the road. Many years afterwards, when the original grantors had conveyed the lands to others, the railroad company sought to take the remainder of the one hundred-foot strip described in the deed for its uses and purposes. The Supreme Court of Mississippi denied the railroad company this right, and in disposing of the case the court said:
“The conveyance from Cohea did not grant a right-of-way to the company one hundred feet wide. The right granted was of a way ‘not to exceed in width one hum dred feet,’ within which limit the officers of the company were to ‘use so much land as they may deem necessary. ’ The way granted was not fixed by the deed as to place, quantity, or direction.' It was, until located, a floating right, exercisable over any portion of the land within the limit of width specified. Action was required by the company to indicate and fix the way granted, and though it may be true, as contended by counsel for the company, that ordinarily or universally the road-bed of railroads is laid along the center of the right-of-way, such custom cannot control where the conduct of the parties touching the particular right claimed is shown to -have been otherwise. * * * The claim here is to extend a grant, the limits of which have been fixed by the partiés, so as to include lands which might have been, but were not, deemed ‘necessary’ by the officers of the company when it located its way under the grant. We find nothing in the conveyance by which authority to locate the way might be exercised more than once, and by the location then fixed the company must be concluded.”
Based upon-these and other cases cited by counsel for appellants, it is the opinion of the majority of this court that appellee’s rights, granted under the ordinance in question, were exhausted when its. predecessor, the Little Bock, Hot Springs & Western Eailway Co., constructed its terminals in Hot Springs many years ago,- and that the “right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, siding, switches and yard-tracks on that portion of Orange and Olive Streets between Elm and Valley Streets as said railway company may deem proper,” which was given appellee’s said predecessor by the city of Hot Springs in said ordinance, was not a prospective grant, giving the appellee the right to do so at this time, after the lapse of so many years, but was a grant which must have been exercised presently. But it does not-necessarily follow from this view of the majority that this case must be reversed. All the facts alleged in the complaint were conceded by appellants to be true. It is conceded that the building of such additional tracks by appellee is a public necessity, that it owns all the right-of-way over which it proposes to lay such tracks, except where they cross Orange Street, and that, being a public necessity, wherein the interests of both the city of Hot Springs, the public generally and appellee will be promoted, the city council of Hot Springs would be under the duty of granting appellee the right and privilege to lay said tracks across Orange Street in order to reach its depot therewith. And while the proper course to pursue would have been to apply to the city council for such authority, and, on its refusal to grant same, to have applied to the courts for relief, yet, since said tracks have already been constructed and are in use and operation under the authority of the injunction granted by the court against appellants, and since said right would necessarily have been granted by the city council, this court will not set aide the action in granting said injunction.
It is the opinion of the minority, in which Mr. Justice Smith, Mr. Justice Humphreys and the writer of this opinion agree, that said ordinance grants to appellee a continuing right to lay the tracks in question across Orange Street, between Elm and Valley Streets, at any time when the public necessity demanded it, and that there was no necessity of going to the city council on an application for a new grant for such purpose. We are of the opinion that the ordinance in question, when properly and fairly construed, shows on its face that it was in contemplation of both parties, at the time of the grant, that additional facilities might and would be required with the growth of the city and the increased demands of the public, and that it was the intention of the council to give appellee the right to construct such additional facilities between Valley and Elm Streets, and across blocks 50, 54 and 58, and necessarily across "Orange and Olive Streets, from time to time, as necessity demanded, and, having completed its line within the three years limited in the ordinance, the grant ripened into a contract, giving the vested right to appellee thereafter, from time to time, to build such additional facilities as necessity required. We state these views generally, without going. into an analysis of the ordinance to demonstrate the correctness of our opinion. We adhere to the views expressed in the former decisions of this court in the cases cited.
It follows that the majority and minority have both reached the same result, and that the case must be affirmed. Costs will be adjudged against appellee. | [
112,
109,
-8,
94,
26,
76,
24,
-78,
83,
-85,
-28,
-13,
-81,
-55,
8,
49,
-29,
-3,
-43,
59,
-27,
-77,
71,
106,
-110,
-45,
121,
-115,
-78,
77,
-26,
-42,
76,
17,
-54,
-99,
71,
74,
-35,
94,
-114,
-95,
-117,
104,
81,
-56,
54,
115,
16,
7,
113,
-113,
-13,
40,
16,
-45,
-20,
126,
-3,
13,
81,
114,
-114,
-107,
125,
6,
0,
38,
-103,
-123,
-56,
24,
-104,
49,
7,
-20,
115,
-90,
-106,
-10,
13,
-33,
-116,
34,
99,
3,
9,
-25,
-76,
-116,
15,
-102,
-115,
-90,
-78,
17,
99,
65,
-74,
-43,
80,
70,
7,
126,
-25,
-107,
89,
60,
5,
-114,
-76,
-127,
39,
-28,
-116,
3,
-21,
17,
16,
116,
-50,
18,
93,
71,
-78,
-101,
-97,
-15
] |
Smith, J.
William Sager owned a tract of land in Arkansas County, upon the security of which he desired to obtain a loan of $5,500, and he employed the American Investment Company to negotiate the loan. The loan was obtained, and Sager executed a note for $5,500, due ten years after date, with interest at six per cent, per annum from date until paid, and, as security therefor, a mortgage was executed and recorded from Sager on the land. At the same time sixteen notes were executed by Sager to the American Investment Company, and, to secure the payment of these notes, a second mortgage was executed and recorded. Two of these notes matured each year, one being for $165, the other for $55, totaling $220, which is four per cent, of the original loan. These notes and the mortgage securing them contain an acceleration clause, which provided that, upon failure to pay any one of them at maturity, all should mature, at the option of the holder. Default was made in the payment of the first two notes at maturity, and the investment company declared them all due, and brought suit to foreclose the mortgage securing them.
Sager and his wife, who had joined him in the execution of the notes and mortgage, were both dead at the time of the institution of this suit, which was brought against the heirs of Sager. Only one of these heirs, a son, answered, and in this answer it was alleged, in effect, that the original loan was on a basis of ten per cent, interest per annum, six per cent, of which was payable to the lender and the remaining four per cent, to the Ameri can Investment Company as agent in negotiating the loan, and it was alleged that, if the payments were accelerated as prayed for, the result would be the exaction of usurious interest. The investment company filed a demurrer to this answer, which the court sustained, and, as the defendant refused to plead further, a decree was rendered foreclosing this second mortgage. Judgment was not rendered for the $1,760, the total of the sixteen notes as prayed, but for the sum of $1,348.24, and a commissioner was appointed to sell the land in satisfaction thereof, and the heir, who had filed an answer, appealed.
The opinion rendered on the decision on this appeal appears in 170 Ark. 568, 280 S. W. 654, and we there stated the facts as they were alleged to be in the answer. This we were required to do, as we were considering the sufficiency of the answer when tested by the demurrer thereto, and a demurrer to this answer had been sustained. Upon the facts alleged in the answer we held that the indebtedness due the investment company should not be declared void as usurious, as the answer prayed it should be, for the reason that, if it was paid according to the terms of the loan contract, only ten per cent, interest would be paid, and we also said that the attempt to accelerate the payments, which the answer alleged to be interest, would not make the loan usurious, as the court of equity should have treated the acceleration clause as a stipulation for a penalty, and should have refused to fore- • close the instrument, except upon the waiver of this penalty.
Under the allegations of the answer the decree should have been rendered for only $220, the amount of the two notes then due, whereas the decree rendered was for $1,348.24. But we also stated that the decree of foreclosure should not be treated as a decree for the foreclosure of the $220 due, as a redemption might have been effected had the degree been for only that amount. Upon these facts we stated:
“It appears that the land has been sold under this decree. There remains therefore nothing to do except reverse the decree, because it was rendered for an excessive amount, and the cause will be remanded for further proceedings in accordance with this opinion.”
It was there also held that the decree had been prematurely rendered.
Upon the remand of the cause the defendant moved for a decree on» the mandate, to which motion the investment company filed a written response. In this response the investment company set out a contract, under which it had been employed by William Sager and his wife to negotiate the original $5,500 loan. This contract recites the agreement of the investment company to negotiate a loan at six per cent, and to guarantee that the title of Sager was merchantable, and that the answers contained in the application for the loan were true, and to guarantee the prompt payment of said loan and the interest thereon at maturity, if necessary to procure the loan, and to collect for and remit to the mortgagee the maturing payments of principal and interest, to keep certain insurance in force at Sager’s expense, and perform certain services in connection with the examination of the abstract of title.
Defendant filed a motion to strike the response of the investment company, and renewed the motion for a decree on the mandate, which motion and response reads as follows:
“Comes now the defendant, Andrew Sager, and moves the court to strike out the pleading filed herein,, and which the plaintiff denominates as a ‘response of plaintiff to defendant’s motion for decree on mandate.’ For cause defendant says that the said pleading is simply an attempt to reopen and retry the issues already disposed of upon the original hearing of' this cause, that this court has neither jurisdiction nor authority to rehear the said cause, but simply limited to the rendition of such decree upon the present state of the record as is ordered by the mandate filed herein. That it appears from such record that the real estate in controversy was sold to a stranger to this record for the sum of $1,450 on the............................day of..............................................................................192........., and that this defendant has been damaged in such sum, because of such sale under the erroneous decree heretofore entered herein, together with lawful interest on said sum from date of said sale. That, under the terms of the mandate aforesaid, the plaintiff is entitled to recover the sum of $220 and no more, and that such sum should go as a credit on the aforesaid amount. That, since the rendition of said decree, by virtue of partition proceedings instituted in this court, this defendant has acquired all the interest of the heirs of William and Rebecca Sager in and to the land in controversy, and that the amount due from the plaintiff as aforesaid is due and owing to him. A complete transcript of the said proceedings last referred to is hereto attached, marked Exhibit A, and asked to be made a part hereof. Wherefore defendant prays a decree against the plaintiff for the aforesaid sum of $1,230 with interest thereon from the date of said sale, and for all other proper relief.”
It was stipulated that the defendant had acquired the interest of all the other heirs of William Sager and Rebecca, his wife, the mortgagors.
The court granted the prayer of the motion set out above, and the decree recites that it was rendered upon the mandate of the Supreme Court remanding the cause, and the-motion and'response, and stipulation above referred to, from all of which the court found that the land in controversy was sold under the original decree on October 25, 1924, for the sum of $1,450, that the costs of the sale amounted to $74.45; that, at the time of such sale, there was due the investment company the sum of $220 only, 'and, because of the sale for the excessive amount wrongfully claimed to. be due, the defendant was damaged in the difference between what the land actually sold for, or $1,524.45, and the sum of $220, which was the amount rightfully then due, and judgment for this difference was awarded defendant, and the plaintiff has appealed.
Appellee here, defendant helow, seeks to uphold the decree of the court upon the theory that the former opinion adjudged the rights of the parties, and left nothing for the court below to do but enter a decree in accordance with the findings made.
Learned counsel is mistaken in the effect of the opinion of this court on the former appeal. We did not 'adjudicate the rights of the parties. For the purpose of testing the sufficiency of the allegations of the answer to constitute a defense, and for that purpose only, we .assumed the truth of the facts there alleged, and adjudged merely that a defense had been alleged which made it erroneous for the court below to render a decree in excess of $220. We said, however, that the decree rendered should not be treated as having been rendered for only the amount due, to-wit, $220, for the reason that the sale had been ordered under the decree, whereas, if it had not been for aii excessive amount, a redemption might have been effected.
The effect of the former opinion is that the court below should have overruled the demurrer to the answer and should have heard the cause on its merits.
It is admitted here that no testimony has ever been heard in the court below, and the cause will be remanded with directions to overrule the demurrer to the answer and to hear the cause on its merits.
Appellee insists that appellant investment company should be held restricted to the allegations in its original complaint, and should not be permitted to enlarge or change these allegations, for the reason that the former opinion granted no such right, and, in support of this contention, the case of Felker v. McKee, 154 Ark. 104, 241 S. W. 378, among other cases, is cited and relied upon. In that case, however, as the opinion reflects, the cause had been submitted upon its merits, and the appellant had been given ample opportunity to fully develop his case upon all the issues presented by the pleadings, and we held that, no authority having been given so to do, the appellant could not, on the remand, further develop the issues joined.
We there decided, however, that this- rule would have no application where a demurrer had been sustained to a bill and the bill dismissed without an inquiry into the. merits of the case. Nor would the rule apply in a case like this, where a demurrer to the answer had been sustained and a decree rendered on the pleadings. This is true, because the issues joined were not developed by the testimony, and parties are entitled to have a trial upon the merits, and there has been no such trial in the instant case.
Neither party questions the sale made under the original decree, and appellant asks now only the right to subject the proceeds thereof to the satisfaction of the indebtedness due it, whatever that may be, and upon the remand of the cause that right will be accorded. | [
114,
104,
-112,
126,
-54,
-32,
42,
-102,
75,
-64,
-75,
83,
-7,
-117,
4,
37,
-59,
9,
117,
104,
-41,
-77,
7,
96,
82,
-69,
-11,
-35,
-80,
93,
-12,
-43,
76,
44,
66,
85,
-30,
-94,
-55,
26,
14,
4,
-103,
69,
-35,
64,
48,
-65,
80,
77,
33,
-83,
-13,
45,
53,
104,
109,
47,
-5,
41,
-64,
-8,
-70,
-60,
95,
23,
-79,
101,
-122,
71,
-54,
14,
-112,
53,
1,
-24,
118,
38,
-58,
-12,
79,
41,
40,
34,
102,
49,
101,
-49,
-104,
-103,
47,
-25,
-115,
-122,
-105,
88,
66,
41,
-66,
-99,
124,
16,
7,
-10,
-17,
13,
25,
108,
19,
-50,
-42,
-125,
-99,
124,
-100,
19,
-9,
23,
36,
112,
-54,
34,
94,
103,
121,
25,
-114,
-7
] |
Humphreys, J.
This appeal involves the construction of the first devising paragraph of the will of Bridget Kelly, the mother of appellee, and grandmother of appellants. Appellee brought this suit against the appellants for a partition of the land, under the theory that the fee simple title was devised to him and his children jointly hy the provisions of said paragraph.
Appellants maintain that a life estate only in said real estate was devised to appellee, and that the remainder in fee was devised to them by the paragraph of the will in question. The paragraph of the will is as follows:
“All the property in block twenty-seven in the city of Brinkley, Monroe County, Arkansas, known as. the Kelly Hotel, I give and bequeath to my son Tom and his children. The property is not to be mortgaged or sold during the lifetime of my son Tom or his children’s, but is to be kept as a home for the Kelly family.”
This court announced the following rule with referenee to the construction of wills in the case of Finch v. Hunter, 148 Ark. 486, 230 S. W. 554.
“The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to he gained from reading the entire will and construing it so as to give effect to every clause and provision therein, if this can he done.”
The other parts of the will throw no light whatever upon the intention of the testator with reference to the kind of estate she intended to vest at her death in appellants and appellee under the paragraph in question. For that reason we have not incorporated in this opinion the remaining paragraphs of the will. The intent therefore of the testator must be ascertained, if possible, from the language employed in the paragraph in question. Appellants argue that the terms “children” used in the first clause of the paragraph meant “heirs of the body,” and was an effort to create an estate tail, which, under our statute, would vest a life estate in appellee with remainder in fee to appellant.
Primarily the term “children” is a word of purchase and not one of limitation, and for that reason can not be construed as the equivalent of the word “heirs” or “heirs of the body,” unless there is something in the context showing that the testator intended to use the term in the sense of heirs. “Children” is a broader term than the word “heirs,” and may include adopted children as well as 'Children of one’s body. There is nothing in the first clause of the paragraph restricting the use of the term “children” to heirs of the body of Tom, the testator’s son. The plain meaning of- the language used in the first clause is that the father and children should be vested with equal estates. The first clause must be construed as vesting a fee simple title to the land in all the devisees mentioned in the paragraph, unless there is something in the additional or last clause indicating otherwise. The last clause is an attempt to abridge the fight of the devisees to sell or incumber the property. If the limitation attempted to prevent the sale or incumbrance thereof during the lifetime of appellee only, it might be argued with much effect that the testator only intended to vest a life estate thereto in appellee, with the remainder in fee to his children. In other words, that the testator used the term children as the equivalent of the word heirs; but the force of the argument is lost when it is observed that the attempted limitation for or abridgment of the right to sell or incumber the property holds throughout the life of the children also. Certainly the testator did not intend to limit the interest of appellants to a life estate by an attempted restriction against the sale and incumbrance of the land under the last clause of the paragraph. If we interpret the last clause as limiting the estate vested by the first clause in appellee to a life estate, the construction necessarily limits appellants’ estate to a life estate also. The last clause does not purport to bequeath either a life or fee simple estate to any of the devisees. It is in the nature of a direction to the devisees not to sell or mortgage the land during their life, but to reside upon it as a home, rather than an attempt to vest any kind of an estate in them to the land. The first clause in unambiguous and definite language vested a fee simple title in the devisees upon the death of the testator.
It follows, that the decree partitioning the land between the devisees in equal shares is correct, and must be and is affirmed. | [
-13,
-20,
-36,
126,
43,
96,
42,
-102,
-15,
-117,
37,
83,
47,
-54,
16,
59,
-13,
-83,
100,
104,
-75,
-77,
7,
32,
-46,
-77,
-111,
-41,
-12,
-51,
-26,
-2,
76,
32,
-54,
85,
70,
-54,
-19,
82,
42,
-119,
10,
105,
73,
98,
48,
115,
92,
71,
-27,
-33,
-77,
-88,
57,
-30,
40,
46,
73,
-68,
72,
-72,
-118,
-121,
91,
7,
48,
37,
-72,
-29,
106,
72,
-112,
48,
8,
-24,
115,
-74,
70,
116,
79,
25,
9,
102,
102,
32,
101,
-25,
-72,
-104,
14,
-17,
45,
-90,
-106,
89,
0,
77,
-75,
-100,
124,
0,
79,
114,
-26,
21,
28,
104,
8,
-49,
86,
-79,
-115,
-68,
-112,
3,
-13,
21,
32,
113,
-54,
10,
92,
-61,
117,
-109,
-114,
-6
] |
Mehaffy, J.
The appellees, plaintiffs below, brought suit in the chancery court of Logan County, alleging that they are the only heirs at law of Joe M. Fletcher, deceased, and that the appellant, who wias defendant below, is the widow of the said Joe M. Fletcher, deceased; that defendant, Dave Ramey, is the husband of the said Mary Jane Ramey.
It is alleged that on the 20th day of March, 1905, Joe M. Fletcher and his aunt, Elizabeth Hurston, purchased 165 acres of land in the .Southern District of Logan County from one J. S. Cotner. The lands were described, and it was then alleged that, on the 20th day of March, 1905, the said Cotner made, executed, acknowledged and delivered to Fletcher a deed to himself and Elizabeth Hurston, jointly, in which deed Florence Cotner, wife of the said J. S. Cotner, joined, relinquishing her rights of dower and homestead. A copy of said deed is attached to the complaint as an exhibit.
Plaintiffs allege that on the first day of September, 1906, Fletcher and Elizabeth Hurston agreed on a division and partition of said land, and that partition deeds were made carrying out the agreement. It is further alleged that Fletcher did not place the deed from Eliza.beth Hurston on the record, and that, after his death, the defendants inserted in the said deed the word “Mrs.” before the name of the said J. M. Fletcher, and changed the word “his” to “her” in said deed, and then filed the same for record; that by such forgery the defendants undertook to convey the title to the above described land to the defendant, Mary Jane Ramey.
Mary Jane Ramey and Dave Ramey filed a joint answer, admitting that the plaintiffs were related to Joe M. Fletcher, deceased, as set out in the complaint, and that Mary Jane Ramey was his widow, and that, after his death, she married Dave Ramey. And the answer, then denied all of the material allegations in the complaint, and alleged that Fletcher and Elizabeth Hurston purchased the land in Logan County, and that Mary Jane Ramey paid one-half of the purchase price with her individual money, and that the deed was made jointly to him and Elizabeth Hurston, but that Mary Jane Ramey and Elizabeth Hurston agreed upon a division, and that Elizabeth Hurston executed and delivered to the defendant, Mary Jane Ramey, a deed. She further alleged that she had owned, occupied and possessed said lands, paid the taxes thereon under and by virtue of said deed from the said Elizabeth Hurston, continuously since September 1, 1906, to the present, a period of 19 years. She denied that the defendants, or either of them, had any interest in the lands.
•Certified copies of deeds were filed with the pleadings.
The chancellor entered a decree in favor of the plaintiffs, and decreed the cancellation of the deed which Was alleged to have been fraudulently altered, and that the heirs of J. M. Fletcher are invested with and hold the title to said lands, subject to the rights of dower and homestead of the widow, Mary Jane Ramey. It is ordered that the defendants paj^ all the costs. From this decree an appeal was taken to this court.
Appellant, in his brief, states :■£ ‘ The issues before the court then are two issues. First, was the testimony offered hy the plaintiffs sufficient to warrant the court in canceling the deed? Second, if it was sufficient to warrant the court in canceling the deed, equity should reimburse the defendant, Mary Jane Ramey, for the money paid 'by her in purchasing- the land in dispute. ’ ’
The first question, of course, is purely a question of fact. The undisputed proof shows that the deed from J. S. Cotner and wife was made to J. M. Fletcher and Elizabeth Hurston, and not to Mrs. J. M. Fletcher'. The partition deed from Elizabeth Hurston was not put on record during Fletcher’s lifetime, was in the possession of the defendants, and was placed on record after the death of J. M. Fletcher. The undisputed fact is that J. M. Fletcher did not put either of the partition deeds from Elizabeth Hurston to himself upon the records, and that he died in possession of both of them, and that thereafter they were in the possession of the defendants. The defendants had the deed, had it placed on record, and then it was lost. At any rate, the defendants did not produce it at the trial. They were requested by the plaintiffs to produce the original deed, which plaintiffs claim was changed by adding “Mrs.” before J. M. Fletcher and changing “his” to “her.” The fact that Fletcher had possession of the deeds and of the property during his lifetime; that, after his death, they were in possession of the defendants; that defendants placed the deed on record, and were then unable to produce the original deed for examination so that it might appear whether or not there had 'been a change; and the fact that the original deed from Cotner was to J. M. Fletcher, are all circumstances to be considered in determining whether or not the deed was made to J. M. Fletcher or to Mrs. J. M. Fletcher. These circumstances, together with the other evidence introduced by the plaintiff, when considered with the evidence introduced by the defendant, we think justified the chancellor in finding that the deed had been changed.
W. I>. Ramey, the husband of Mrs. M. J. Ramey, testified that he had the land changed on the taxbooks from J. M. Fletcher to M. J. Fletcher, and that up to that time he had never seen the deed. He testified that he had this change made through the advice of his wife. He further testified that later he came across the deed, and took it to the courthouse to be recorded. He testified that he did not change the deed. He admitted, however, that he told Mr. Beck that he understood he could pay the taxes on the land for seven years land get a ta.x title. He did not remember making any statement to Mr. Friddle. He also testified with reference to his conversation with Beck, that he was not paying the taxes for the purpose of getting a title, but that he was just talking to hear his head rattle, and he did not know what he said it for. Ramey never read the deed, never saw it for a year or two, and did not. know what the deed contained. He did not know that it was his wife’s deed; just supposed it was.
Mrs. M. J. Ramey testified that, prior to her marriage ■with Ramey, she was Mrs. J. M. Fletcher. She said thiat most of the money paid for the land bought of Cotner was her money; that she paid $450 of her own money, but that her husband had the control of this money prior to the purchase of the land; that, after they purchased it, they divided it, and the partition deed was mlade to her; that Mr. Ramey never saw this deed until the day he put it on record; during the time 'from Fletcher’s death until the day Mr. Ramey put the deed on record she had this deed, hut did not have it put on record; that she told Mr. Ramey to change the land on the taxbooks from J. M. Fletcher to her name, M. J. Fletcher.
Witness could not read. Neither of them could read, but she said that a man named Brown read the deed, and she knew that it was Mrs. J. M. when this man Brown read the deed. She does not know what became of the deed after it was recorded, but thought it was carried back to the bank, land has never seen it since. She had had the money about a year before they bought the land, but her husband had had possession and control of it until the time they purchased the land, and he stated that he paid one-half of the price, $1,200.
As we have said, the circumstances and evidence, when considered together, we think clearly show that the land -belonged to J. M. Fletcher, and that the deed was changed after J. M. Fletcher’s death and before it was put on record. There is really no satisfactory explanation of what became of the deed after it was recorded. It was, however, in the possession of the defendant, and doubtless, if it had been produced, would have shown conclusively whether or not there had 'been the change claimed by plaintiffs, and the fact that it was not produced is a circumstance very strongly tending to corroborate the theory of plaintiffs.
“An adverse presumption, usually a strong one, is ordinarily indulged against a piarty on account of his non-production of documents. If a party, after having been duly notified to produce hooks and papers at the trial, fails or refuses to do so, it may be presumed that such failure or refusal is because such books and papers, if produced, would operate against his claim and in favor of the claim of the opposite party. Where a party relies on parol evidence of a fact, instead of producing written evidence thereof in his possession, it ought to require much less evidence to defeat him than if he had no written evidence which he could have produced. And a weak case may be strongly corroborated by the opposite party’s failure to produce or account for documents that would remove all doubt. Again, where, after notice and refusal to produce documents, it is shown or admitted that they are under the control of the party, and secondary evidence is given, and such evidence is imperfect, vague, and uncertain, every intendment and presumption is to be made against the party who might remove all doubt by producing the higher evidence.” Vol. 10, R. C. L., 889.
“The plaintiff’s evidence had tended to show that the defendant, having control of the books and- papers called for by the plaintiff, and ordered by the. court to 'be produced, had refused to produce them, in defiance of the order; that the reasons given for their nonproduction were frivolous and derisive; that the defendant and its officers stood before the court in the attitude of men who had spoliated or suppressed evidence. The question is whether the court applied the correct rule of law in the instructions to the jury. * * * This language was used in the charge: ‘But you can easily see that, if books are destroyed, if books are hidden, if books are carried away, the power of the court is limited in that respect. * * * But the arm of the law is long enough and stroug enough to reach cases of that sort, and when the jury feel, in a civil case, when they are satisfied by ia fair balance of proof, fair balance of probabilities, that a party has suppressed books, has hidden books, has kept books away that have been called for, and which it has had notice to produce, then the law says the jury may presume from the absence of those hooks and papers against the party called upon to produce them, and not producing them, and in favor of the other party.”
Further on the court said: “If you find that the defendant, after being notified to produce books and papers, has failed to do so, you have a right to presume that it is because those books and papers would make against its claim and in favor of the claim of the plaintiff. You can give to that presumption such weight as you think it ought to have.” F. R. Patch Mfg. Co. v. Protection Lodge, etc., 77 Vt. 294, 60 Atlantic 74.
“Mere withholding or 'failure to produce evidence, winch, under the circumstances, would he expected to be produced, and which is available, gives rise to a presumption less violent than that which attends 'the fabrication of testimony or the suppression of documents in which other parties have a legal interest; -but the courts recognize and act upon the natural inference that the evidence is held hack under such circumstance's because it would be unfavorable.” Jones on Evidence, vol. 1, 152. See also notes on page 582 of L. R. A. 34.
It cannot be doubted that the deed, if produced, would have shown conclusively whether or not the deed had been changed as alleged by plaintiff. Certainly, if there had not been a change, and if defendant’s theory is correct, the production of the deed would have demonstrated this — would have removed all doubt.
Appellant’s next contention is that, if the evidence was sufficient to warrant the court in canceling the deed, equity should reimburse the defendant, Mary Jane Ramey, for money paid by her in purchasing the land in dispute. Appellants did not ask this relief in the court below, and this contention is inconsistent with the theory presented and relied on in the court below.
“The appellant did not ask the court below to present to the jury the theory of the case it contends for here. Therefore it cannot complain. ” Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093.
“It is contended by counsel for appellant that there was no evidence at all of correctness of the account sued on. This, however, was not made an issue by the pleadings, and the question cannot be raised here for the first time.” Shinn v. Platt, 82 Ark. 260, 101 S. W. 742.
£ ‘ It is well settled in this State that a party cannot, on appeal, contend for a theory of the case different from that which was contended for in the trial court.” White Company v. Bragg, 168 Ark. 670, 273 S. W. 7.
It is a well established rule of this court that the finding of the chancellor will not be disturbed unless it is against the preponderance of the evidence.
The decree of the chancery court is correct, and is therefore affirmed. | [
-80,
109,
-8,
79,
-88,
-32,
74,
40,
-21,
-77,
-28,
87,
-19,
-124,
9,
45,
96,
105,
80,
109,
-26,
-73,
31,
-92,
-80,
-77,
-85,
-41,
-78,
76,
-73,
-42,
64,
48,
-54,
93,
-57,
-22,
-59,
-38,
-122,
-126,
-87,
-24,
95,
-32,
48,
51,
52,
12,
117,
-114,
-14,
41,
53,
99,
104,
46,
107,
-72,
-64,
-32,
-97,
-123,
-97,
3,
-127,
-74,
-110,
-127,
-120,
26,
-112,
21,
8,
-24,
83,
38,
-106,
116,
29,
-103,
8,
98,
98,
18,
-27,
-19,
-87,
-104,
47,
58,
-103,
39,
-30,
72,
123,
108,
-66,
-99,
120,
64,
3,
116,
116,
5,
92,
108,
-93,
-81,
-106,
-95,
13,
62,
-104,
-125,
-29,
30,
-92,
81,
-51,
35,
93,
102,
48,
-101,
-117,
-78
] |
Humphreys, J.
This is a suit brought in the chancery court of Chicot County by appellant, a resident landowner and taxpayer in said county, for the benefit of himself and all other taxpayers in the county, to recover from appellees, officers of the county, $42,934.56 alleged to have been illegally diverted by them from the compromise loan bond fund, which was a fund raised by taxation for the purpose of paying the compromised bonded indebtedness of said county to the general revenue fund and to other funds, and used in repairing the courthouse, buying records, constructing bridges and buying in general county warrants, and for $500 alleged to have been misappropriated and paid out of the county general revenue fund and used by one of the appellees, Harry E. Cook, for the purpose of taking a trip on a special train, known as “Arkansas on Wheels,’’ to Washington, D. C.
Appellees filed an answer, denying that the $42,934.14 expended by them for the purposes alleged in the complaint was a part of the fund raised by taxation for the payment of the compromise bonded indebtedness, but that same was derived from a different source, and was legitimately expended by appellees as officers of the county; and that the item of $500 was properly appropriated and expended for the necessary conduct of the county government.
The case was submitted to the court upon the pleadings and testimony adduced at the trial, which resulted in a decree dismissing appellant’s complaint for want of equity, from which is- this appeal.
The record reflects the following facts: In 1895 the Legislature passed Act No. 114, authorizing any county in the State to refund its bonded indebtedness. This act provided that any county issuing bonds for said purpose should also provide for a levy and collection of an annual tax sufficient to pay the annual interest on such funding bonds as they became due and to create a sufficient sinking fund for the payment of the principal when it became due. It also provided that the treasurer of the county might purchase one or more of the-funding bonds at any time be had sufficient funds arising from the tax to do so,' in case the purchaser thereof would sell same. It also provided that the fund arising from the tax should be held and deemed an inviolable sinking fund for the purpose of extinguishing said indebtedness, and to be used for no other purpose.
In 1909 the quorum court of Chicot County proceeded under said act to refund its old bonded indebtedness of $246,600. The refunding bonds were made payable on July 1, 1929, and a tax of five mills was levied from year to year upon all the property in the county to pay the semi-annual interest accruing upon the bonds and to retire the bonds at maturity. A resolution was adopted creating a sinking fund board, consisting of the county judge, county clerk, and the county collector of said county, and directing that funds derived from the special tax as it accrued should be turned over to said hoard and loaned out by it, to the best interest of the county. The fund derived from the special tax was turned over annually to the sinking fund board by the treasurer of the county, which was. loaned to certain banks in said county by said board at five per cent, interest per annum, and, at the time of the trial of this cause, interest on said fund in the sum of $71,348.51 had been earned and collected. All the fund, including the special taxes collected and the accumulated interest, was held and kept together and loaned from time to time to the banks by said board.
Harry E. Cook, one of the appellees, was county judge of said county from 1906 to 1916, during which time the old bonded indebtedness was refunded, and was a member of the sinking fund board that received from the treasurer the compromise sinking fund and loaned same to the banks. In 1916 he went out of office, was reelected in 1920, and again assumed the duties of office in 1921. From that time on he has served the county in the capacity of county judge by election. George Elder, also an appellee herein, has served the county in the capacity of county clerk by election for sixteen years. W. J. Splawn, also an ajipellee herein, lias served the county as its treasurer by election since, January 1, 1917.
When Harry E. Cook assumed the duties of county judge, it was ascertained that about $80,000 in county warrants were outstanding against the general revenue fund, and, in addition to making other provisions to rehabilitate the general revenue fund, which was greatly depleted, so much so that scrip was worth from forty-five to fifty cents on the dollar, it occurred to him that a part of the interest which had been derived from lending the compromise bonded sinking fund might be used to purchase a part of the outstanding warrants and to make necessary repairs on the courthouse, to buy necessary records, and to construct bridges, leaving sufficient in said fund to pay the interest on the compromise funding bonds and to retire them at maturity, and at the same time reduce the five-mill levy materially. He revealed this information by letter to the circuit judge, prosecuting attorney and grand jury, and received their written indorsement of his plan. The plan was published, so that the citizens throughout the county became cognizant of it. He then recommended the plan to the quorum court, which authorized him to use the fund for the purposes outlined. Pursuant to the authority thus vested in him, he appointed the county clerk and the county treasurer trustees to purchase the outstanding warrants which could not be redeemed with money received from other sources, to the amount of $26,375.62, which they purchased for eighty cents on the dollar, using $'21,029.14 of the interest in the compromise bond sinking fund in the purchase thereof. Thereafter, pursuant to the same authority, sums amounting to $21,905 were used out of the interest in said fund to repair the courthouse, buy certain records, and construct certain bridges in the county. The method used was to transfer the amounts needed out of the compromise sinking fund to the general revenue fund and such other funds as was necessary in order to expend the money for the purposes designed. The total amount transferred was $42,934.14. The with drawal of this amount of interest from the fund lacked $28,413.95 of absorbing all of the interest which had accumulated by lending the fund. The tax fund itself remained intact, except that it was in the hands and under the control of the sinking fund board, instead of being in the hands of the treasurer, where it lawfully belonged. As we read the record, there is practically enough left in the fund to take care of the interest as it matures on the funding bonds, and will be enough in the fund to retire the bonds at maturity. The result was obtained by the adoption and practical operation of the plan suggested by Judge Cook, notwithstanding the quorum court reduced the levy for the compromise bond sinking fund in 1922,1923 and 1924 to 3 mills, and-in 1925 .to 2 mills. The transfer of the portion of the accumulated interest of this fund to other funds for the purposes outlined had the effect of rehabilitating the finances of the county, until scrip is exchanged in the market for face value, or thereabouts.
At the October term of the quorum court in 1923 it appropriated $500 to pay the expenses of Judge Cook to Washington, D. C., to confer with the Federal Road Department with reference to the restoration of Federal aid for the building of public roads in Arkansas, which the Government had theretofore withdrawn.
Appellant contends that appellees rendered themselves personally liable for transferring the $42,304.14 from the compromise bond fund to the general revenue fund and other funds for the purposes of buying county warrants, repairing the courthouse, buying records and building bridges, because the transfer of such funds by said officers was contrary to § 11, article 16, of the Constitution of 1874, and § 8 of act 114 of the General Assembly of 1895. Section 11, article 16, of the Constitution of 1874 provides that “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.”
Section 8 of said act 114 provides that the taxes levied and collected “shall be held and deemed an inviolable sinking fund for the purpose of extinguishing such county indebtedness, and for no other purpose.” It will be observed that the inhibition in, both the Constitution and the act referred to is against the use of the money for any other purpose than that for which it was levied and collected, and not against the use of the interest derived therefrom for other purposes. No provision was made in the act for lending the sinking fund, so the interest derived therefrom came from a source not contemplated in the act. Appellees loaned the sinking fund in violation' of the law and at their own peril. Had the money been lost in the lending, they would have been personally responsible for every dollar, and the treasurer, who was the proper custodian thereof, would have been responsible on his official bond for the return of the money. The fruit of the sinking fund derived from illegally lending same was not derived from the levy and collection of the special tax, which the Constitution and act prohibited from being used for any other purpose than that for which same had been levied and collected. It was entirely separate and distinct, and derived by an illegal act of the officers of the county, appellees herein, and necessarily became the property of the county. Being the property of the county, the quorum court had a right to place it in any fund it chose, for use by the county. The undisputed testimony shows that it was transferred from the compromise bond sinking fund to other funds and used for county purposes. Although the interest was mingled with_ the sinking fund Avhioh had been raised by taxation, it was not of such character that it could not be easily separated. There is no difference in the value of the dollars derived from the different sources, and the exact amount derived from each source was knoAvn. The record reflects that the amount transferred from the compromise bond sinking fund and used for other legitimate county purposes was much less than the accumulated interest thereon at the time of the transfer. Only a por tion of the accumulated interest was transferred from the compromise bond sinking fund, a sufficient amount being left therein to take care of the semi-annual interest accruing on the refunded bonds and to retire the bonds at maturity, even though the five-mill levy was reduced in 1922, 1928 and 1924 to three mills, and in 1925 to two mills.
• We do not think that appellant’s contention that the quorum court had no right to appropriate $500 to pay the expenses of Judge Cook to Washington, D. C., is tenable. At the time this appropriation was made, the Federal Government had withdrawn Federal aid from the public roads in Arkansas, which materially affected the road work in Chicot as well as other counties in the State. According to the record, the purpose in sending Judge Cook to Washington, along with other representatives of the State, was to obtain a restoration of Federal aid for road building in this State. Under the circumstances we think it a permissible expenditure for Chicot County to have made.
No error appearing, the decree of the chancery court is affirmed.
Mr. Justice Kirby dissents.
Mr. Justice Mehaeey concurs. | [
118,
76,
-12,
120,
-22,
-128,
10,
10,
83,
-87,
-28,
83,
-71,
68,
16,
39,
-29,
61,
101,
88,
-59,
-73,
23,
99,
-38,
-77,
-3,
-59,
61,
79,
-28,
-41,
72,
48,
74,
85,
70,
-22,
-49,
28,
-50,
-120,
43,
72,
89,
-64,
52,
-27,
18,
11,
117,
-81,
-29,
54,
84,
107,
77,
45,
-39,
-85,
-48,
-47,
-80,
-59,
125,
7,
-127,
70,
-104,
65,
-24,
56,
-104,
49,
0,
-24,
114,
-90,
-126,
84,
77,
-103,
8,
98,
102,
1,
37,
-89,
-76,
-88,
2,
-73,
13,
-105,
-110,
121,
27,
73,
-66,
-99,
86,
-112,
7,
122,
-84,
-59,
87,
108,
3,
-18,
-108,
-109,
13,
36,
-100,
19,
-1,
59,
52,
113,
-52,
-14,
92,
-57,
24,
-101,
-50,
-82
] |
Griffin Smith, C. J.
Two decrees were rendered: one June 20, 1941; the other August 29, 1941. The first was set aside August 15, 1941, when the cause was reopened and continued for hearing at the regular August term.
-A recital in the decree of June 20 is that the cause was heard upon the plaintiff’s petition, the answer of defendants, and the evidence offered in support of the conflicting contentions.
The decree of August 29, after enumerating the pleading, recites a hearing upon testimony of Sam Morrow, W. M. Elvins, Mrs. O. H. Weddle, and Bernal Seáinstef.
The motion before us is to strike the matter presented as a bill of exceptions. The cause is captioned: “Iii the Washington Chancery Court. Sam Morrow v. W. M. Elvins, Faye Tom Elvins, and City Water Plant, defendants; Mrs. O. H, Weddle, Intervener.” There follows the clerk’s attestation: “. . . the above entitled cause came on to be heard upon the pleadings heretofore filed.”
Under “Evidence Introduced on Behalf of Plaintiff,” there appears the following: “Sam Morrow, having been called as a witness in his own behalf, after being duly sworn testified. . .”
Similar language precedes the testimony of Harry E. Hamilton, Mrs. O. H. Weddle, and W., M. Elvins, witnesses for plaintiff, and Bernal Seamster, called by the defendants. Certain exhibits are attached.
Finally, there is the clerk’s certificate that “. . . the foregoing 59 pages of typewriting contain a true and complete transcript of the pleadings, docket entries, and decree . . .” Immediately preceding the clerk’s certificate is the following by Gertrude Williams: “I do hereby certify that the foregoing testimony of witnesses and exceptions thereto, the rulings of the court, and the exceptions thereto, were duly taken down by me in shorthand and duly and correctly transcribed and the foregoing is a full, true, and correct copy thereof, and all the acts and things done in this cause as reflected by the pleadings filed herein and the hearing held on August 29, 1941. Witness mv hand this nineteenth day of February, 1942. ”
If, from the nature of the writing, we may assume that Gertrude Williams was court reporter, (either regularly appointed or selected especially for this case) there is the further complication that in the same certificate pleadings and other matters forming part of the record are referred to. Since it is the clerk’s duty to prepare and avoncli the record, including depositions and transcribed oral testimony properly brought in, that part of the certificate is at least superfluous.
It will be observed that no witnesses are identified in the so-called stenographer’s certificate; and while the testimony of six persons appears in that part of the transcript intended as a bill of exceptions, only four witnesses are mentioned in the decree of August 29. Harry E. Hamilton and Clyde Counts are quoted at transcript pages 39 to 42, inclusive.
In McGraw v. Berry, 152 Ark. 452, 238 S. W. 618 (chancery case), oral testimony was taken at trial without an order designating a stenographer. A paragraph in the opinion is: “Under our practice, oral evidence introduced in chancery cases may be made a part of the record by having it taken down in writing in open court and filed with the papers in the case, by bill of exceptions, or by reducing the testimony to writing and embodying it as a recital in the record of the decree. ’ ’
There was this additional holding: “. . . in order for the transcribed stenographic notes to become a part of the record, under order of the court and without consent of the parties, they must be transcribed and filed in court during the term at which the case is tried, and not at a time beyond the adjournment of the court.”
In Sercer v. Hamilton, 155 Ark. 639, 245 S. W. 35, the decision is summarized in a headnote to the Arkansas Report as follows: “Testimony of witnesses heard orally before the chancery court and taken down in shorthand and ordered transcribed and filed as depositions in the case was improperly incorporated, where it was not filed with the clerk during term time nor brought into the record by bill of exceptions or by being incorporated in the decree.”
Per curiam orders were made June 5,1939, in Causes Nos. 5536 (Jesse Pearl Loutner v. Marvin E. Lautner) and 5554 (Arabella White v. J. N. White). In each appeal —the first having been from Washington chancery, and the second from Logan chancery — appellee’s motion to strike the bill of exceptions was sustained on the ground that no time had been asked or allowed within which to file a bill of exceptions, and that which purported to be a bill of exceptions was not signed by the chancellor.
In Smith v. House, 163 Ark. 423, 260 S. W. 441 (chancery case), it was said: “Depositions filed after the term at which the ease was decided, where no time was given for so filing them, will not be considered on appeal, though the parties stipulate that they constitute all the evidence introduced at the trial.”
In the instant case there is no order by the chancellor granting time for filing the transcribed testimony. Neither is there an order fixing time for filing a bill of exceptions. Between August 29, 1941 — when the decree was rendered — and February 19, 1942 — when the clerk certified the record — the November term of court intervened.
In Floyd v. Booker, 161 Ark. 87, 255 S. W. 288, (chancery case) it was said: “No time having been requested or obtained within which to file the bill of exceptions beyond the term at which the decree was rendered, the judge trying the case could not have approved, signed, and ordered the bill of exceptions to be filed as a part of the record after the adjournment of the court. Under our statute, in order for a bill of exceptions, prepared and filed after adjournment of court, to become a part of the record, it was necessary for a day certain to have been fixed for the filing of same and for the bill to have been approved and signed by the trial judge or agreed upon by the parties, and filed with the clerk within the time allowed by the court. Watson v. Watson, 53 Ark. 415, 14 S. W. 622; Stinson v. Shafer, 58 Ark. 110, 23 S. W. 651; Springfield, v. Fulk, 96 Ark. 316, 131 S. W. 694.”
There is nothing in Act 12, approved February 2, 1937, negativing the requirement that a bill of exceptions be approved by the judge unless the parties are in agreement. Section three of the Act, after providing that the stenographer shall make copies of the testimony, directs that the original be delivered to the clerk to be inserted in the transcript, “. . . while the third copy shall be kept on file in the clerk’s office with the other papers in the ease, which copy so filed shall be treated and have the same effect as depositions in the case in the regular manner. ’ ’
In Chaffin v. Lee County National Bank, 151 Ark. 106, 235 S. W. 283, (law case) Act 163 of 1921, providing for an official court stenographer to serve the first judicial district, was construed.
Contention was that the provision for a ribbon copy for the clerk’s use “. . . as a part of the transcript in the supreme court on appeal without the necessity of another copy thereof” did away with the requirement that bills of exceptions be approved by the judge. In the opinion it is said:
“We think the section quoted has no such purpose as appellants ascribe to it. The purpose of the Act was to permit and require the official stenographer, in transcribing his notes, to make a ‘ribbon copy thereof’ so that it would not be necessary for the clerk of the court . . . to make a copy of the bill of exceptions as prepared by the stenographer, but to permit the use of the copy made by the stenographer in the transcript. In other words, the necessity of copying the bill of exceptions by the clerk was to be dispensed with. The act was intended only to save labor, and not to deprive the presiding judge of the right and duty to approve the bill of exceptions.”
So, with Act 12 of 1937. Direction that the copy filed with the clerk “. . . shall be treated as and have the same effect as depositions in the case in the regular manner” was also intended to prevent duplication of effort;
Neither does § 1493 of Pope’s Digest afford relief, as the language is almost identical with the special act.
However, in construing this section in Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096, the court held that oral evidence in a chancery case may be made a part of the record (1) by having it taken down in writing in open court “and by leave filed with the papers in the case,” (2) bj^ bill of exceptions, or (3). by reducing the testimony to writing and embodying it as a recital in the decree. See Woodruff v. Dickinson, 199 Ark. 663, 135 S. W. 2d 667.
Verity is the essential sought in testimony. The trial court (except as to a by-standers’ bill of exceptions) is the final authority, and approval by the judge of what purports to be transcribed testimony is imperative unless .brought into the decree or judgment, or unless the parties are in agreement. This goes only to the testimony covered by the agreement. It does not authorize bills of exceptions to be filed after the term has expired and a new term has intervened, unless time was given when the decree or judgment was rendered, or when the appeal was granted, or there was an agreement to that effect.
The next inquiry is, What is meant by the expression found in § 1493 of Pope’s Digest that a stenographer’s transcription of oral testimony shall be filed with the clerk “and treated as depositions taken in the regular manner?” Was it intended thereby to substitute a stenographer’s certificate for the judge’s approval of a bill of exceptions? We do not think so. The parties may agree that a particular person shall “take” the testimony, copy it, and then file with the clerk. Obviously the same procedure was intended to apply to oral testimony’ taken in open court. If the parties agree that a designated person may take such testimony, transcribe it, and file as depositions, such consent eliminates necessity for subsequent court approval of the stenographer’s work if the transcription is filed before a new term of court intervenes in those cases where time is not given, or if filed within the designated period when time is allowed.
The statute does not expressly prescribe the time within which transcribed stenographic notes of testimony must be filed, but by necessary implication the period cannot run beyond the beginning of an intervening term, except by consent. The decree becomes final when the term ends unless jurisdiction has been retained.
In the Harmon case, this statement appears: “It cannot be left to the stenograxilier to make up the record after the term has ended, without the supervision or direction of the chancellor. To allow this might be to substitute an entirely different record on appeal. Nor does the section give the stenographer and chancellor in vacation the power to make up the record without a bill of exceptions.”
That authentication of the transcript'by a court stenographer is unavailing is too well settled to require extended citations. See Murphy v. Citizens’ Bank, 84 Ark. 100, 104 S. W. 187, rehearing denied Citizens’ Bank v. Murphy, 104 S. W. 984; Blackford v. Gibson, 144 Ark. 240, 222 S. W. 367.
It follows that in the case at bar there is no bill of exceptions. That which purports to be must be disregarded because it has been challenged by appellee on grounds falling within the court’s rules. Since no errors appear upon the face of the record, the decree must be affirmed.
An original and two copies. | [
-16,
-20,
-116,
-56,
10,
96,
-120,
-86,
-53,
1,
-25,
83,
-19,
67,
0,
97,
-25,
73,
81,
107,
-63,
-93,
22,
87,
-14,
-109,
-13,
-33,
60,
127,
-12,
117,
76,
-72,
-30,
-107,
99,
-62,
-51,
80,
-58,
-127,
-103,
-23,
-103,
16,
112,
79,
-14,
13,
117,
-82,
-13,
47,
20,
70,
105,
106,
-25,
-69,
-63,
-72,
-102,
4,
93,
48,
-79,
7,
-98,
5,
80,
10,
-104,
49,
-79,
-24,
112,
-74,
-122,
-11,
71,
59,
8,
102,
102,
9,
-51,
103,
-72,
-68,
22,
62,
-99,
-92,
-109,
124,
105,
1,
54,
25,
121,
16,
39,
106,
-18,
-59,
29,
32,
6,
-118,
-74,
-79,
-97,
-14,
-116,
31,
-21,
1,
48,
118,
-49,
122,
92,
103,
49,
-39,
-58,
-107
] |
McHaney, J.
Appellee brought this action against appellant, as a class suit, to enjoin appellant from collecting or attempting to collect a sales or gross receipts tax from him, or others similarly situated, based on the gross receipts or gross proceeds derived from the sale of raw products produced by them, either from the farm, orchard or garden, where such sale is made by them directly to the consumer or user from an established business located on their farms where said products are produced. The act under which the tax is proposed to be levied is No. 386 of 1941. His complaint, in addition to alleging that he is a citizen and resident of Pulaski county and is a florist and nurseryman, operating a floral farm and nursery in said county, also alleged that he is engaged in selling products derived from his farm, orchard and garden, that is, flowers, shrubs, fruit trees and plants from an established place of business located on his farm, where such products are grown; that said act “is discriminatory, arbitrary and unreasonable in attempting to levy a tax against him as a florist and nurseryman for gross receipts or proceeds derived from the sale of said raw products made directly to consumer and user from said established place of business located on his farm and produced on said farm; that said act deprives plaintiff and others similarly situated of their privileges and immunities contrary to the constitution of the United States and the state of Arkansas, and the provisions therein made and provided.” The equal protection clauses of both constitutions are also invoked.
Appellant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court overruled the demurrer. Appellant refused to plead further, but stood on his demurrer, and the court entered a decree enjoining appellant from attempting to collect the tax as prayed. This appeal followed.
The particular section of said Act 386 of 1941 complained of is subsection (n) of § 4, which provides: “Gross receipts or gross proceeds derived from the sale of any cotton or seed cotton or lint cotton or baled cotton, whether compressed or not, or cotton seed in its original condition; gross receipts or gross proceeds derived from the sale of raw products from the farm, orchard, or garden, where such sale is made by the producer of such raw products directly to the consumer and user; gross receipts or gross proceeds derived from the sale of livestock, poultry, poultry products, and dairy products of producers owning not more than five cows; exemptions granted byr this subdivision shall not apply when such articles are sold, even though by the producer thereof, at or from an ‘established business’; neither shall this exemption apply unless said articles are produced or grown within the state of Arkansas. Provided, however, nothing in this subsection shall be construed to mean that the gross receipts or gross proceeds received by the producer from the sale of the products mentioned herein shall be taxable when the producer sells at an ‘established business’ located on his farm commodities produced on the same farm. The provisions of this subsection are intended to exempt the sale by livestock producers of livestock sold at special livestock sales. The provisions of this subsection shall not be construed to exempt sales of dairy products by any other businesses. The provisions of this subsection shall not be construed to exempt sales by florists, nurserymen and chicken hatcheries.”
It was appellee’s contention in the court below and is hero that the act, as interpreted by appellant, is unconstitutional because the classification made by the legisla ture in subsection (n) of § 4 of said act is unreasonable, discriminatory and arbitrary. It is conceded that, “If the classification is reasonable and is not arbitrary or capricious, then there is no unconstitutionality.” Appellee’s brief. The concession is well taken. The tax levied b}T the act is an excise or privilege tax. Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91; Ark. Power & Light Co. v. Roth, 193 Ark. 1015, 104 S. W. 2d 207. It is difficult to perceive what right appellee has to complain of the tax levied by the act as he is not required to pay the tax in the first instance, because the third paragraph of § 7 provides: “The seller, or person furnishing such taxable service, shall collect the tax levied hereby from the purchaser.” So, appellee is not taxed. As we said in the Wiseman case, “He.is a tax collector.” But assuming, for the purpose of this opinion, that he has such right, we cannot agree that the classification made by the act is unreasonable or arbitrary. Subsection (n) provides for exemption from the tax on gross receipts from sale of certain farm produce including cotton, cotton seed; raw products from farm, orchard or garden; livestock, poultry, poultry products and dairy products of producers owning not more than five cows. Also exempt from the tax are the gross receipts received by the producer from the sale of the above products “when the producer sells at an ‘established business’ located on his farm commodities produced on the same farm.” The concluding sentence of this paragraph is: “The provisions of this subsection shall not be construed to exempt sales by florists, nurserymen and chicken hatcheries.”
It is true that the products exempted by the act are agricultural products and that agriculture, in its broadest sense, includes horticulture, and that horticulture includes floriculture and viticulture. The florist is engaged in floriculture, and, according to Webster, is “a cultivator of, or dealer in, ornamental flowers or plants. ’ ’ Appellee is both a cultivator and a dealer in ornamental flowers and plants. He operates a florist shop in the city of Little Rock and he concedes lie is liable for the tax on gross receipts of sales made there. But, as to those he sells on his farm, where he grows the flowers and plants, he contends the classification is arbitrary because farm products as defined in the act are exempt. Appellee is also a nurseryman. That business is a branch of horticulture, says Webster, and is “a place where trees, shrubs, vines, etc., are propagated for transplanting or for use as stalks for grafting; a plantation of young trees or other plants.” Simply because the legislature saw proper to exempt certain farm produce and livestock, agricultural products, from the tax imposed, and specifically refused to exempt florists’ and nursery products, is no reason to say the classification made is arbitrary, unreasonable and capricious. It is true that all grow from the soil, but the products grown by farmers are entirely separate and distinct from the products grown by florists and nurserymen. It is not contended by appellee that the act discriminates against him in favor of other florists and nurserymen, and it does not, because it applies to all in his class alike by requiring the tax to be paid.
In Williams v. City of Bowling Green, 254 Ky. 11, 70 S. W. 2d 967, the Supreme Court of Kentucky said: “Whether a particular classification offends or does not offend the equal protection clause of the Fourteenth Amendment has been the subject of numerous decisions by the United States Supreme Court. The principles established by those decisions are in brief as follows: The restriction imposed by the Fourteenth Amendment does not compel the adoption of an iron-clad rule of equal taxation, nor prevent a variety of differences in taxation, or discretion in the selection of subjects or the classification for properties, businesses, callings or occupations. The fact that a statute discriminates in favor of certain classes does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, or if any state of facts reasonably can be conceived to sustain it.” The above quoted statement is in substance the holding of the United States Supreme Court in State Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464, 75 A. L. R. 1536, and it was there further held that the legislature may not only classify, but, for taxation purposes, it may subdivide classes into particular classes. It was there said, to quote headnote No. 7: “An Indiana statute lays an annual license tax on stores, increasing progressively with the number of stores under the same general management., supervision or ownership — such that, in the present case, the owner of a ‘chain’ of some 225 stores selling groceries, fresh vegetables and meats, was obliged to pay $5,443, whereas the owner of a single store only, though it involved a much greater investment and income, would pay but $3. Held not violative of the equal protection clause, in view of the distinctions and advantages which combine and are exerted in a single ownership and management of a series of like stores in different locations, as compared with mere cooperative associations of independent stores, or with department stores selling many kinds of goods under the same roof.”
Therefore, even though the business of the florist and nurseryman are subdivisions of agriculture, it is not difficult to distinguish their business from that of the farmer. Farming — the growing of grain, cotton, livestock, poultry and other produce — is absolutely essential to the life of the nation, while the growing of flowers and plants and of fruit trees and shrubs is not. Nor do we mean to minimize the importance of the latter. We merely point out one distinction to show that the classification made by the legislature is not arbitrary or unreasonable, and especially is this true in view of the well settled rule that the law must be sustained, “if any state of facts reasonably can be conceived to sustain it.” Other distinctions might be pointed out, but we deem it unnecessary to do so.
We think it unnecessary to cite and comment on the numerous cases cited by the parties, as to do so would greatly extend this opinion to no practical purpose.
Appellee makes the further argument that the act does not apply to him. He evidently thought it did when he brought this suit and we think it does. He alleges that he is a florist and a nurseryman, and the act specifically says his sales shall not be exempt from the tax.
The decree will, therefore, be reversed, and the cause remanded with directions to sustain the demurrer, and for further proceedings not inconsistent with this opinion. | [
-110,
-20,
-68,
12,
10,
-32,
106,
62,
80,
-125,
101,
83,
109,
86,
20,
107,
-29,
29,
81,
105,
-11,
-73,
3,
98,
122,
-5,
-55,
-43,
-67,
75,
-92,
-10,
77,
52,
-22,
-43,
103,
-30,
-19,
28,
-106,
8,
11,
77,
-7,
64,
20,
-85,
90,
11,
113,
-114,
-5,
44,
27,
-53,
9,
44,
-23,
56,
-63,
-7,
58,
13,
95,
23,
49,
36,
-102,
3,
-56,
74,
-104,
49,
1,
-24,
115,
-90,
-126,
84,
11,
-103,
8,
102,
-26,
3,
9,
-25,
-104,
-88,
46,
127,
-99,
-90,
-48,
120,
67,
15,
-66,
-108,
126,
-112,
-116,
122,
-6,
21,
22,
124,
-117,
-122,
-108,
-77,
-91,
-16,
28,
3,
-17,
-90,
48,
113,
-49,
-94,
92,
67,
18,
-101,
-121,
84
] |
Kirby, J.
This appeal comes from a judgment sustaining a motion to vacate and a decree vacating the decree of the Poinsett Chancery Court foreclosing a vendor’s fien on certain lands in said county. The motion was filed by appellees, the Hubbards, against whom the foreclosure decree was rendered, and by the sureties on the supersedeas bond given on appeal to the Supreme Court.
The appellants failed to file a transcript of the record in the Supreme Court within 90 days, as required, and it was dismissed on motion under Pule 7, at the cost of appellants and the sureties on the supersedeas bond.
None of the grounds provided in § 6290-6296, C. & M. Digest, for vacation of decrees after the expiration of the term, was alleged in the motion, which alleged that the case was heard in vacation before Hon. J. P. Gautney, in Craighead County, who was neither the regular nor a specially elected or qualified chancellor; that the decree was entered upon the records of the county without the sanction of or being signed by the regular chancellor, and was absolutely void. The death of Philip Bazenah, the judgment plaintiff, was alleged, ¡and the appointment of A. Gtevens as administrator of his estate, the appellant herein, and prayer was made for vacation of the judgment and a temporary restraining order.
■Stevens, the administrator, filed a response, denying all the allegations of the motion, except the rendition otf the decree and his appointment as administrator; alleged that the decree was rendered by consent of all parties, indorsed land approved by the regular chancellor, and regularly entered of record, and that the defendants prayed an appeal to the Supreme Court and gave a supersedeas bond, and, failing to comply with Rule 7 of that court, the appeal was dismissed. It was further alleged that T. T. Mardis, one of the petitioners, had no interest in the cause, except that he signed the supersedeas bond in the cause on appeal, and was seeking to avoid liability thereon. By amendment he denied the jurisdiction of the court to pass on the motion, since none of the grounds for vacating a judgment after the expiration of the term, as provided by §§ 1316 and 6290, O. & M. Digest, were alleged in the petition; alleged further that the decree entered in the cause was the decree of the regular chancellor, Hon. J. M. Futrell, the original copy of which was attached, bearing the initials of the chancellor, authorizing the clerk to enter it of record. A copy of the supersedeas bond executed in the case on the first appeal was also attached.
It was further alleged that T. T. Mardis was the only solvent surety on the supersedeas bond; the dismissal of the appeal in the former case for failure to comply with Rule 7; that, because of the filing of the supersedeas bond, respondents had been precluded from collecting rents on land embraced in the decree to the amount of $750, which had been paid to Á. R. Nichols, one of the defendants, and that the property had not been insured by defendants, and the house thereon had been destroyed by fire during the pendency of the appeal, at a further loss of $1,500, the cost of replacement, and that .Mardis, under the terms of his bond, was bound to the payment of all rents and damages to the property during the appeal, and that the proceeding was but a collateral attack upon the decree regularly rendered in the cause, the validity of which cannot be inquired into by the court herein. Prayed for dismissal of the petition to vacate for want of equity, or, in the alternative, for judgment in the sum of $2,250, with interest from the date of the supersedeas bond, and for damages to the property destroyed by fire.
Appellees then filed a motion for a nunc pro time order to correct the decree, alleging that the cause was beard by J. P. Gautney, by consent, in Craighead County, as special chancellor, on the 16th day of June, 1926, but the record in the case fails to disclose the fact, and it should be amended to speak the truth.
The testimony shows that the case was submitted to Hon. J. P. Gautney, an attorney at Jonesboro, by consent of the parties, on their own motion, the regular chancellor being absent engaged in a campaign for nomination to the office of Judge of the Supreme Court, was heard, findings made, and the suggested form of the decree prepared by Gautney, approved by the attorneys and given to the regular chancellor and approved, adopted and initialed by him as his decree in the case, and regularly entered upon the chancery records as the findings and decree of the chancellor.
There was no attempt made to elect or select Mr. Gautney as special chancellor, nor did he assume to act as such, but only agreed to examine the record, at the request of the attorneys of the parties, and make and suggest such findings and decree as should be rendered therein, all of which was adopted and approved by the regular chancellor, the suggested form of decree being ordered entered of record as made, and rendered in vacation by him. Such being the case, it became the decree of the chancery court as though rendered by the chancellor by consent of the parties, or on a regular hearing by him, as fully and completely as though the chancellor had heard the cause himself throughout and rendered the decree entered of record.
There was no allegation in the motion to vacate or any ground provided by the statute for vacation of decrees after the expiration of the term in which they were rendered. Nor was there any testimony introduced warranting the chancellor in holding that the form of decree so adopted, approved and rendered by the regular chancellor and entered of record, was a decree attempted to be rendered in vacation by one not regularly elected as special chancellor, and was not the decree of the chancery court and entitled to all such credit or authority as though the cause had been regularly heard throughout by him.
It follows that the court erred in amending the record by a mmc pro tunc order to show that the purported decree was in fact rendered by an attorney assuming to act as special chancellor without authority, never having been regularly elected or selected as such special chancellor, and in not denying both the motion to vacate the decree and for the vmnc pro tunc entry.
The decree is accordingly reversed, and the cause remanded with directions to deny both the petition for vacation of the judgment and the motion for a nunc pro tunc order to correct the record of the judgment.
Justices Wood, Smith and Mehaeey dissent. | [
-48,
-28,
-36,
28,
-86,
-32,
8,
52,
-62,
96,
50,
83,
-17,
-126,
0,
43,
-13,
41,
-11,
121,
-63,
-73,
103,
-32,
114,
-77,
67,
-43,
-75,
76,
-10,
-42,
12,
33,
-54,
-43,
70,
-96,
-51,
80,
78,
9,
-119,
-19,
-47,
3,
58,
63,
16,
15,
-75,
-57,
-13,
47,
17,
-61,
-56,
42,
89,
45,
90,
-8,
-66,
-99,
127,
5,
-111,
53,
-116,
98,
104,
-86,
-104,
49,
0,
-24,
115,
-90,
-122,
-12,
14,
-37,
8,
54,
67,
0,
93,
-17,
-84,
-103,
6,
126,
13,
102,
-13,
56,
107,
65,
-98,
-99,
116,
16,
-115,
118,
110,
-124,
29,
108,
-122,
-50,
-106,
-105,
-113,
57,
-126,
3,
-10,
-45,
52,
113,
-51,
-22,
88,
-25,
49,
-7,
-50,
-78
] |
Hart, C. J.,
(after stating the facts). The sole issue-raised by the appeal is whether moneys due a sheriff for feeding the county prisoners by a county may be impounded by equitable garnishment, by a judgment creditor, after the sheriff has gone out of office, upon proof of his insolvency.
In a case-note to 17 Ann. Cas., at p. 525, it is said that the rule is well settled by the weight of authority that the compensation of public officers cannot be reached for the payment of their debts by garnishment, and among the numerous cases cited is McMeekin v. State, 9 Ark. 553. In that case, a judgment having been obtained against one of the Judges of the Supreme Court, and the same remaining unpaid, a garnishment was served upon the Auditor to compel the amount due the Judge of the Supreme Court as his salary to be paid towards the satisfaction of the judgment. The relief was denied, and Scott, J., speaking for the court, said:
“Looking, then, to the whole record, the question is distinctly presented whether or not the salary due from the State to one of her public officers can, by garnishment, be seized before being paid to him, and appropriated to the payment of his judgment debts. And this seems to be absolutely forbidden by consideration of public policy. In every enlightened community, public policy must ever be paramount to individual convenience and private interests, and it cannot be doubted that the most efficient administration of the Government in general, and the free course of the stream of .justice in tribunals, are the very highest of these considerations. To inter pret the will of tlie Legislature as in conflict, in any degree, with these great public objects, could rarely, if ever, be done; as to do so would be abhorrent to every legal idea of civil liberty, and that the proper and efficient administration of the State Government in all its departments would be endangered by the establishment of the doctrine contended for by the plaintiffs in error cannot, for a moment, be doubted, as it would, at all times, in its practical operation, >be embarrassing, would .frequently be mischievous, and, under some circumstances, might prove fatal to the public service. ’ ’ To the same effect is Rollo v. Andes Ins. Co., 23 Gratt. (Va.) 509, 14 Am. Rep. 147.
In Pruitt v. Armstrong, 56 Ala. 306, it was held that a public officer, who has public moneys in his custody for disbursement in satisfaction of demands of Government, cannot be summoned as the garnishee of one having a legal right to demand and receive from him such moneys. Brickell, O. J., speaking for the court said:
“The exemption does not rest only, on the ground that the technical relation of debtor and creditor is not existing between the Government and the person who may be entitled to receive the money, which relation is the foundation of the process of garnishment, or kindred legal process, for the subjection of choses in action to the payment of debts. It is founded on considerations of public policy — the embarrassments in the administration of Government which must result if, by judicial process, the public moneys could be diverted from the specific purposes to which by law they are appropriated. Between the Government and its officers and agents, or its creditors, if those having claims on it are thus termed, individuals cannot be permitted to intervene, suspending the disbursement of the public revenue, and deferring the adjustment of the accounts of public officers, until their judicial controversies may be terminated. The law determines the character of the voucher the disbursing officer must produce to relieve himself from liability for the money committed to his custody. The officer cannot be compelled to receive any other, nor can the officer to whom, and with whom he must account, receive from him any other evidence of the proper and legal disbursement of the public moneys.”
In Fort Smith v. Quinn, 170 Ark. 54, 278 S. W. 625, the court again said creditors of public officials and employees are not permitted to garnish their salaries. Hence, whatever may be said of the public policy of exempting officers ’ salaries from the process of garnishment, the doctrine has obtained too long in this State to be overturned by the courts.
The same considerations of public policy that exempt officers of the 'State from the process of garnishment and the like, as far as the public funds intrusted to them are concerned, applies with equal force to counties and their officers. In Boone County v. Keck, 31 Ark. 387, it was held that a county is not subject to the process of garnishment. The court said:
“Public policy, indeed, public necessity, requires that the means of public corporations, which are created for public purposes, with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected, to satisfy the demands of others than the parties contracted with.”
It is earnestly insisted by counsel for appellant that the doctrine of these cases has been modified in Riggin v. Hilliard, 56 Ark. 476, 20 S. W. 402, 35 Am. St. Rep. 113, and Plummer v. School District, 90 Ark. 236, 118 S. W. 1011, 134 Am. St. Rep. 28, 17 Ann. Cas. 508; and that the ease at bar, under the facts in the record, falls within the modification to the general rule announced in the two cases last cited.
In the Hilliard case it was held that, while a county is not subject to the ordinary process of garnishment, yet in equity, when the interest of the public will not be injuriously affected, the claim of an insolvent creditor of the county maybe subjected by equitable garnishment to the payment of his debts. It was expressly stated in the opinion, however, that the remedy is allowed in no case where it is adjudged that the public will be injuriously affected.
In that case Hilliard had made a contract to repair and reconstruct a courthouse. The work had been completed under the contract, and a fixed amount was due Hilliard as contractor under it. Nothing- remained to be done except to pay him the amount due under the contract, and there was no dispute as to the amount due. Hence the court said that there was no longer any public interest to be subserved by withholding payment from the contractor, and no reason for withholding the debt from the reach of the remedy of equitable garnishment.
In the Plummer case the schoolhouse had been completed according to contract, and a fixed and definite sum was due the contractor by the school district, and nothing remained to be done except to pay the contractor the amount due. The court said that the public interest muid not be injuriously affected by allowing the equitable garnishment.
Here the facts are essentially different. By statute the sheriff is made jailer of the county prisoners, and certain fees are allowed him for feeding them. Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768, and Mays v. Phillips County, 168 Ark. 829, 274 S. W. 5; 279 S. W. 366. The fees are allowed by way of compensation, and are not a matter of contract. The principle is announced in Buchanan v. Alexander, 4 How. (U. S.) 20, 11 L. ed. 857, where it was said that money in the hands of a disbursing officer belongs to the United States, and, until paid over -by the agent of the Government to the person entitled to it, the fund is not a part of his effects, in a legal sense. Under our statutes, sheriffs and other officers are required to account to and settle with the county court at each regular session thereof. Crawford & Moses ’ Dig., § 10153. The county court may employ an expert accountant to audit the books of county officers. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917B 438.
Under present statute the county judge may apply to the State Auditorial Department for an audit of the accounts of county officers. Marable v. State, use of Columbia County, post p. 589.
Under § 10165 of the Digest, the county court may at any time correct errors in the settlements of any county officer. Garnishment proceedings might result in many vexatious and harassing suits.. The garnishment proceedings would necessarily suspend payment until the decision of the case. This would necessarily embarrass the officers whose duty it was to settle with officers whose salary or compensation might be the subject of garnishment. Their attendance at court might be frequently required, and these* and other vexatious and harassing questions which might arise would materially embarrass them in the performance of their official duties.
In cases where the salaries of officers like clerks and sheriffs, whose compensation consists in fees, settlements with the county courts would be held up until the garnishment proceedings were terminated. It is not like a case where the county owes a debt on a contract, and nothing remains to be done except to pay the contractor the amount admitted to be due him. In such cases the county merely owes an ordinary debt to a third person, and in tlie Hilliard and Plummer cases, cited above, this court has held that the mere inconvenience of answering a garnishee summons would not prevent the remedy by equitable garnishment, because in no • sense could the public interest be injuriously affected.
As we have just seen, it is a part of our public policy to adjust and settle the accounts of sheriffs and clerks, "and the public interests as. well as the public service might be seriously embarrassed and injuriously affected if the unpaid salary or compensation of public officers, and especially sheriffs, could be reached by his creditors by garnishment proceedings of any kind. The difference in the two classes of cases is clearly explained by Judge Mitchell in Roeller v. Ames, 33 Minn. 132, 22 N. W. 177.
In Webb v. McCauley, 4 Bush (Ky.) 8, it was held that allowances made by county courts to jailers for fees and services, as such, cannot be attached in the hands of the sheriff. It was further held that, fees and allowances to jailers being necessary, and provided by law, to enable them to discharge their official duties, publhj policy will not permit a creditor to attach these fees and allowances in the hands of the sheriff.
Finally, it is sought to distinguish this case from the principles above announced by the fact that the garnishment proceedings in the present case were not commenced until the sheriff had resigned his office, and ceased to be an officer. The difference is one of degree merely. The right of the county court to settle with sheriffs and readjust their settlements continues after their terms expire or they cease to be officers. This question is also discussed by Judge Mitchell in his usual clear manner in Orme v. Kingsley, 73 Minn. 143, 75 N. W. 1123, 72 Am. St. Rep. 614. The learned Justice said that he had not found any case where the question ivas alluded to, and said that in some of the cases it does not appear what the fact was.
The result of our views is that the decree of the chancery court was correct, and it will be affirmed. | [
-112,
-20,
-7,
-4,
106,
32,
-85,
-104,
65,
-29,
-105,
87,
-17,
106,
0,
107,
-15,
121,
117,
26,
-55,
-74,
55,
67,
58,
-5,
-39,
-44,
-79,
111,
-20,
-43,
77,
48,
-120,
-43,
102,
98,
-63,
-12,
-114,
-121,
-86,
-51,
-15,
-128,
48,
105,
50,
75,
113,
-113,
-29,
44,
24,
115,
-56,
41,
91,
47,
-64,
-78,
-66,
-115,
127,
28,
-109,
39,
-100,
99,
-40,
46,
-104,
49,
0,
-22,
115,
-90,
-122,
84,
79,
-101,
45,
-30,
96,
-112,
-19,
-7,
-120,
-87,
46,
-34,
-113,
-89,
-47,
88,
42,
9,
-122,
-99,
110,
4,
7,
124,
-26,
-107,
95,
46,
1,
-98,
-108,
-89,
-85,
116,
-98,
2,
-49,
39,
50,
113,
-52,
-94,
92,
71,
115,
27,
-114,
-36
] |
Humphreys, J.
. This is an appeal from judgments rendered in two cases, consolidated for the purposes of trial, in favor of Mabel Clark for $1,000 on account of injuries received when the car she- was driving was struck by a Bodge sedan car being towed by appellant’s truck, and in favor of W. W. Clark for damages resulting to his car, loss of .service of his wife, and expenditures for medical and hospital bills incurred on account of his wife’s injuries.
Appellant'contends for a reversal of the judgments upon the sole alleged ground that it is revealed by the undisputed evidence in tire record that the driver of the truck had stepped aside from the line of his duties for appellant, and was no longer appellant’s agent at the time of the injury.
As one question is presented for determination-on appeal, it will only be necessary to make a brief statement of the facts.
On the '28th day of -September, 1926, the day of the collision and injury of Mrs. Clark and W. W. Clark’s automobile, appellant had sent John Biggers down to Benton and Malvern to sell and deliver bread and -other merchandise, in one of its delivery trucks, from its place of business on 14th and Main Streets, in Little Rock, Arkansas. Biggers -sold the merchandise and collected for it, receiving both his salary and a -commission on the sales. In performing his duties he followed a regular route in going and coming. On his return trip he allowed W. W. Shoemaker, for Whom he had formerly worked, to attach a large Dodge sedan, that would not run by its own power, to the truck with a tow-chain, and was towing it into Little Rock on his reg’ular route at the time -of the collision. He was returning to appellant’s garage to put the truck away, and to appellant’s bakery to report and account for the day’s business. He was forbidden to haul passengers, and was not authorized to tow dead or disabled oars into the city. He received, no pay for towing the car in on behalf of appellant, but accepted a tip for his own personal use from Mr. Shoemaker. He made no report of having received the tip to appellant. He was driving the truck at a rapid rate of speed on Wright Avenue as he approached Wolfe Street. At the intersection of the two streets he ran the truck, or rather .skidded it, in an effort to check the speed, through a filling station in which the Clark car was standing and which Mrs. Clark was driving. He ran in front of the Clark car with the truck, missing it, but the sedan swerved, breaking the tow chain, and struck the Clark car, greatly damaging it and injuring Mrs. Clark.
Appellant contends for a reversal of the judgments upon the theory that Biggers had completely abandoned the service of appellant and was acting entirely for himself in towing the Dodge sedan that struck the Clark car. This might be true if he had changed his regular route in order to render the service to another and for the time had ceased to perform -services for his regular employer; but, where the service rendered, to a third party was only an incident to the prosecution of his duties to his employer, it cannot be said that he had completely abandoned his employer’s business. In the instant -case Biggers was driving the truck on his regular route at a reckless rate of speed, at the time of the collision, in order to get back to the garage and to report to appellant. As we understand the law applicable to cases of this character, although an agent may exceed his authority to the extent .even of violating instructions, if, at the time, he is engaged in the business he was employed to perform by his regular employer, his employer would be responsible for injuries resulting from his torts. « The exemption from liability on the part of an employer, under the doctrine of Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918B, 115, and Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602, can only be invoked where the employee has turned completely aside from his employer’s business to attend to business entirely his own. This court said in the Cockrill case, supra:
“If a servant turns completely aside from the master’s 'business and pursues business entirely his own, the master is not responsible.' On the other hand, if he is engaged in the master’s business, but performs it contrary to instructions or without express authority as to the particular manner of doing the work, the master is liable. * * * Sometimes the extent of the deviation may be so slight, relatively, that as ia matter of law it can be said that it does not constitute a complete departure from the master’s service, while, under other circumstances, the deviation may be so marked that it can.be said as a matter of law that it does constitute an abandonment of the master’s service, while, under still other circumstances, the deviation may be so uncertain in extent or degree that it leaves a question of inference to be drawn by a trial jury as to whether or not there has been such an abandonment as to relieve the master from responsibility for the servant’s act.”
We cannot say as a matter of law, under the circumstances of the instant case, that there was a complete abandonment of appellant’s business by Biggors at the time of the collision.
No error appearing, the judgments are affirmed. | [
-48,
-8,
-16,
-84,
26,
64,
2,
-102,
65,
-119,
53,
-41,
-85,
-59,
21,
9,
-25,
-99,
-43,
107,
-75,
-77,
3,
107,
18,
-109,
57,
-57,
-107,
75,
101,
84,
77,
48,
74,
-127,
102,
-54,
-59,
20,
-50,
-96,
107,
-24,
89,
86,
48,
40,
80,
7,
-31,
-114,
-53,
46,
30,
75,
109,
44,
107,
38,
-40,
114,
-54,
13,
95,
18,
17,
100,
-102,
33,
88,
24,
-100,
49,
40,
-24,
115,
-90,
-126,
-44,
105,
-103,
12,
38,
102,
0,
1,
-61,
-68,
-88,
46,
-2,
-113,
-90,
48,
16,
11,
97,
-97,
-99,
123,
18,
14,
126,
-4,
93,
29,
104,
7,
-53,
-78,
-95,
-83,
112,
-106,
27,
-21,
-49,
54,
113,
-50,
-30,
93,
5,
83,
-101,
6,
-42
] |
McHaney, J.
In Sebastian Bridge District v. State Refunding Board, 197 Ark. 790, 124 S. W. 2d 960, this court said: “Since taxpayers of the Fort Smith area have paid more than fourteen hundred thousand dollars for a public bridge, and since acts 9 and 10' (of Special Session of 1938) were obviously intended as measures of relief to property owners, we think all bonds and interest maturing in 1938 should have been paid by the state.” And we further said: “It is our view that the language in act No. 10 (of 1938) pledging the state to pay 'all such principal and interest when due,’ was expressive of the legislative intent to assume the 1938 bond obligations, and the fact that some of the districts had funds on hand is immaterial.” We there reversed the judgment of the Pulaski circuit court and directed that a writ of mandamus issue to the State Treasurer to pay a sum to appellee not to exceed $29,309.20, in addition to an outstanding state voucher for $14,765.80, the sum of which equaled the outstanding bonded indebtedness and interest of appellee, maturing in 1938, and also the whole amount of its outstanding bonded indebtedness, as this payment retired all of its bonds.
In State Refunding Board v. Sebastian Bridge District, 199 Ark. 944, 136 S. W. 2d 480, we held that, because the state did not pay the bond maturities of appellee on October 1, 1938, and did not pay same until January 27, 1939, during which time the bonds continued to bear interest amounting to $895.84, and costs of $105.40 were incurred by appellee in the former litigation, the state should pay the interest and costs incurred by its refusal to pay the amount due October 1, 1938.
This present action is one by the state to recover one-half the sum the appellee has. on hand, resulting from the amounts collected by it from the sale of lands which it had acquired for delinquent taxes and from delinquent tax payments made to it, under the provisions of § 4 of act 330 of 1939, which reads as follows: “After all of the valid bonds and interest of any bridge improvement district have been paid in full, then all amounts collected from the sale of lands and from delinquent taxes shall be paid into the State Bridge Bond Retirement Fund. Provided, however, that bridge districts which have constructed bridges that are located within the corporate limits of towns of more than 2,500 inhabitants, shall only pay into the State Bridge Bond Retirement Fund fifty per cent, of all amounts collected from the sale of lands and from delinquent taxes and shall retain the remaining fifty per cent, for maintenance and. repairs of said bridges, as the State Highway Department maintains no roads or bridges within the corporate limits of towns with a population of 2,500.”
The state has not paid the $1,001.24 adjudged against it for interest and costs in the case next above mentioned, and it seeks a credit for said amount against the amount to be here recovered. To a complaint praying this relief, a demurrer was interposed on numerous grounds and sustained. Appellant declined to plead further and its complaint was dismissed for want of equity.
We think the court correctly sustained the demurrer. The act above quoted is no authority for this action. One of the conditions of the act ig ‘c that bridge districts which have constructed bridges that are located within the corporate limits of towns of more than 2,500 inhabitants, shall,” etc. Of course we judicially know that Fort Smith is a city of more than 2,500 inhabitants. We also know that appellee built a bridge across the Arkansas River, more than half of which is in Oklahoma and which part is not in Fort Smith. Therefore, it cannot be said that the bridge is “located within the corporate limits” of Fort Smith, and said act has no application to appellee district.
Another reason why said act 330 has no application here is that a reading of its title and the context of the body of the act shows that it is intended to apply prospectively and not retroactively. There' is no express provision mailing it retroactive. The title of the act says it shall amend said act 9 of 1938 “and to provide for the payment of the maturing bonds and interest of bridge improvement districts, and to make appropriations therefor.” The act could not affect appellee district in these particulars as the state had already paid all its bonds and interest on January 27, 1939, long before act 330 was enacted or became effective. It was approved March 15, 1939, but had no emergency clause, and became effective 90 days after adjournment of the legislature. A mere casual reading of the act shows it was to operate pros pectively, but if it did not, the rule is that statutes should be construed as having prospective operation only, unless a contrary intent is definitely expressed or necessarily implied from the language used. Am. Refrig. Transit Co. v. Stroope, 191 Ark. 955, 88 S. W. 2d 840; S. R. Thomas Auto Co. v. Wiseman, 192 Ark. 584, 93 S. W. 2d 138; Roberson v. Roberson, 193 Ark. 669, 101 S. W. 2d 961. Generally, the legislature is presumed not to have intended retroactive operation of a statute. Coco v. Miller, 193 Ark. 999, 104 S. W. 2d 209.
Therefore, the statute relied upon does not authorize the state to recover the surplus funds in the hands of appellee, realized from the sale of land or the collection of delinquent taxes, and the court correctly sustained the demurrer and dismissed the complaint as being without equity.
Affirmed. | [
-12,
-20,
-106,
124,
-22,
64,
10,
-120,
-37,
-13,
-75,
83,
-83,
3,
-127,
99,
-93,
59,
101,
88,
-25,
-73,
7,
82,
-46,
-13,
-39,
-60,
-67,
77,
-28,
-43,
76,
112,
-54,
-99,
38,
-54,
-59,
24,
14,
-124,
11,
-59,
-55,
64,
52,
-19,
18,
9,
49,
-82,
-6,
61,
16,
75,
76,
44,
77,
59,
64,
-77,
-104,
4,
127,
5,
-127,
85,
-104,
67,
-56,
46,
-104,
49,
-59,
-40,
114,
38,
-58,
-10,
105,
-103,
40,
112,
102,
17,
-43,
-33,
-100,
-88,
38,
-42,
-115,
-90,
-58,
25,
3,
101,
-73,
-107,
95,
84,
-123,
122,
-10,
-91,
93,
108,
5,
-50,
-28,
-61,
78,
124,
-109,
67,
-57,
3,
50,
113,
-52,
-10,
92,
-57,
58,
-101,
-121,
-39
] |
McHaney, J.
The only question necessary for our determination in this case is whether. the appellant, a Missouri corporation, not having complied with the laws of this State relating to foreign corporations, was doing business in this State in violation of such laws, and therefore not authorized to maintain this action. The circuit court held against appellant in this regard, and it has appealed. The facts are substantially as follows:
Appellant shipped a carload of flour to Sevier & Linthicum, brokers, in Little Rock, and had same stored with appellee for a stipulated fee of 30 cents per barrel for storage and delivery, and invoiced same to Sevier & Linthicum at a stipulated price, to be sold by them at such price above the invoice price as they might add by way of profit, and requested appellee to furnish appellant with copies of dray tickets in order that they might check deliveries. Appellant also instructed appellee to have said flour insured in the name of appellant, and have the policy sent to it,, and it would pay the premium. In other words, appellant shipped and -invoiced a carload of flour to Sevier & Linthicum, and, by its own arrangement, stored same with appellee, insuring it in its own name, was the owner of the property, and authorized Sevier & Linthicum to peddle the flour out to purchasers at their own price, and to settle with it for the invoice price. A letter from appellant to appellee regarding these matters is as follows:
“Please confirm by mail to the Eisenmayer Milling Co., Springfield, Missouri, arrangement we made yesterday for you to store and deliver our flour in Little Rock on basis of 30 cents per barrel. We will be represented in Little Rock by Sevier & Linthicum, and you will please make deliveries in accordance with their instructions, and mail the mill once a week copies of all dray tickets; these dray tickets will enable the mill to keep track of the flour in your warehouse, as well as the sales made by Sevier & Linthicum. I will also ask that you kindly attend to the insurance as soon as the first car arrives, have policy issued for $2,000 in favor of Eisenmayer Milling Company, Springfield, Missouri. Please instruct agent to mail policy direct to the mill, and they will remit to cover.”
This arrangement between appellant and the brokers lasted only three or four weeks, during which time the brokers sold only eleven or twelve barrels of this carload of flour, and paid appellant therefor. Sevier & Linthicnm then dissolved partnership, and, as a result, were unable to continue to dispose of appellant’s flour. Upon being advised of this fact, appellant arranged with appellee to sell the remainder of this carload of flour, and to remit to it as the flour was sold, appellee to receive 30 cents per barrel selling charge, in addition to the 30 cents per barrel for storage and delivery, and a charge made for re-sacking some of the flour, sacks for which were furnished by appellant. In other words, the arrangement made with the 'brokers, and, subsequent thereto, with appellee, was nothing more than an agency contract with the brokers and appellee to sell appellant’s flour and to remit therefor as the same was sold. There was no outright sale of said flour either to the brokers, Sevier & Linthicum, or to appellee. Such flour' was not the property of the brokers or appellee, could not have been levied upon by creditors as their property, but, on the contrary, according- to the undisputed testimony of appellant’s witnesses, said flour had at all times belonged to it, and was being sold for its account by the brokers and appellee. Appellee failed to pay for a portion of said flour, and this suit resulted.
As heretofore stated, the circuit court held that appellant was doing- business in this State in violation of the foreign corporation laws of this State, and was therefore not authorized to maintain this suit. Sections 1825 to 1832 inclusive, C. & M. Digest, provide the terms and conditions under which foreign corporations may do business in this State, and the penalty for doing such business without compliance therewith, a part of the penalty therefor being the making unenforceable of any contract by such foreign corporation in this State, and prohibiting its enforcement in any of the courts of this State.
In the recent case of Kansas City Structural Steel Co. v. State, 161 Ark. 483, 256 S. W. 845, the steel company, a foreign corporation, contracted to build a bridge in this State, and sublet the work to the Yancey Construction Company. It thereafter shipped the structural steel into this State, consigned it to itself, and furnished the subcontractors with bolts, reinforced rods and other material, although the actual work of construction was done by the Yancey Construction Company as independent contractors, and this court held that these transactions constituted “doing business” in this State within the provisions of C. & M. Digest, §§ 1825-1832, regulating-foreign corporations doing business in this State as aforesaid. In that case, as in this, the contention of appellant was that these transactions were wholly interstate in character. They relied there, as here, upon the case of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, 236 S. W. 825, and L. D. Powell Co. v. Roun tree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414. We there held, as we now hold, that the facts in those cases do not control here. To illustrate, in the case of L. D. Powell Co. v. Rountree, supra, the L. D. Powell Company is a lawbook company, a foreign corporation, not having complied with the laws of this State, and, through its traveling salesman, took an order from a party in this State for the sale of certain law-books, which were shipped to the purchaser under a contract retaining title until the purchase price was paid. The purchaser thereof, having failed to pay for the books, later turned them over to an attorney in payment of a fee. The book company claimed the books under its reservation of title, and the attorney having them in possession admitted the validity of the claim and offered to deliver the books to the agent , of the company. The agent thereupon, by agreement with the attorney, resold the books to him, under a contract similar to the one under which they were first sold. This court held that the first transaction was interstate in character, and that the latter was but a continuation of the original transaction, and did not constitute the doing of business in this State in violation of our laws. It was there said:
“The books were not shipped into the State as sole and independent property of áppellant for the purpose of selling them to the appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of'the interstate transaction.” Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58.
In the latter case this court differentiated between an interstate and intrastate transaction- as' follows:
“One test laid down by tbe Arkansas cases differentiating an interstate transaction from an intrastate transaction is tbe ownership of the property after it arrives in the State. An interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.”
We think the facts in the case at bar are much strong-er to show an intrastate transaction than were the facts in the cases just quoted from. Here there was no sale of the flour to Sevier & Linthicum. On the contrary, it was shipped and invoiced to them, stored with appellee by an arrangement made between appellant and appellee to pay 30 cents, per barrel for storage and delivery while Sevier & Linthicum were peddling the flour to such purchasers as they might induce to buy same. This arrangement lasted about three weeks, during which time Sevier & Linthicum sold only about twelve barrels of flour, for which they paid appellant, and then dissolved their partnership-. Thereupon appellant employed appellee to sell its flour, and agreed to pay him an additional 30 cents per barrel for making sales thereof. The facts in this case are altogether different from those in the recent ease of Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609, where many of the decisions of this court pertaining to this subject are collected.
It would serve no useful purpose to set out the facts in that case and ¡attempt to distinguish it from this. Suffice it to say that the undisputed facts here show that the shipment of the flour into this State in the first instance was not a sale to Sevier & Linthicum, and that the arrangement between appellant and appellee was not a sale thereof in continuation of the former arrangement between appellant and Sevier & Linthicum. It amounted to no more than a storage of the flour in this State as its own, ¡and the employment of an agent to make sales thereof from time to time, as purchasers could be found therefor. Had it been a sale in the first instance, with title retained, and the flour retaken and a resale thereof made to appellee, the facts would be wholly different, and the result would be a transaction in interstate commerce, as held in the case of L. D. Powell Co. v. Rountree, supra.
We therefore hold that the undisputed facts show the transactions in this State were intrastate in character, which constituted the doing of business in this State in violation of law, and that appellant cannot maintain this action. Judgment affirmed.
Mehaeey, J., disqualified, and not participating.
Kirby, J., dissents. | [
-76,
-7,
-4,
-115,
26,
96,
58,
-102,
122,
-31,
-91,
83,
-23,
-58,
-111,
57,
-25,
125,
113,
104,
-12,
-89,
3,
114,
-46,
-13,
-111,
-59,
-80,
75,
100,
-34,
76,
2,
74,
-43,
-58,
-54,
-59,
-100,
78,
40,
57,
-17,
121,
66,
48,
-70,
20,
75,
97,
-68,
-29,
44,
-101,
-49,
13,
46,
-23,
45,
-63,
112,
-70,
13,
111,
22,
-79,
36,
-104,
5,
-54,
14,
-104,
49,
25,
-24,
115,
-90,
-58,
84,
111,
-99,
8,
102,
99,
34,
1,
-17,
-50,
-120,
38,
-42,
-99,
-89,
-80,
9,
3,
15,
-65,
-108,
118,
1,
22,
-2,
-8,
5,
95,
124,
3,
-50,
-12,
-125,
47,
112,
28,
7,
-17,
-121,
48,
81,
-50,
-78,
93,
6,
50,
-101,
-58,
-39
] |
Mehaffy, J.
The appellant, a city of the second class in Faulkner County, Arkansas, brought this suit against the appellee, the sheriff and collector of Faulkner County, and alleged, among other things, that the appellee had in his possession the sum of $6,000, collected within the corporate limits of Conway, and that the city of Conway was entitled to 50 per cent, of the amount.
The defendant filed a demurrer on the ground that, by virtue of the provisions of special act of 1911 and 1919, the provisions of act 81 of 1927 did not apply to the city of Conway, in Faulkner County, in so far as the provision of the three-mill road tax is concerned; and second, that, under the provisions of act 81 of 1927, the 50 per cent, division did not apply to and affect the division of the said road tax levied and collected by the defendant for the year 1927.
Act No. 361 of Acts of 1911 is a special act, and is entitled, “An act to better provide for the working’ of public roads in cities and towns in Faulkner County,” and to that end provided for the expenditure of not less than one-third of the road tax collected in any such city or town on the roads situated in such city or town.
Section 1 of the act provides that not less than one-third of the tax collected on property located in any city or incorporated town in Faulkner 'County, Arkansas, under the provisions of an act of the General Assembly of Arkansas approved'May 8, 1897, entitled “An act to provide for levying a road tax for working roads and highways, repairing and building bridges, ¡and for other purposes,” shall be expended in working and making public roads and buildings'and repairing public bridges located within said city or town, respectively. And it shall be the duty of the county court of said county, upon the examination and approval of the annual report and settlement of the tax collector, to determine the amount of road tax that has been paid on property located in any city or town in said county, and to appropriate and set apart not less than one-third of the amount of said tax collected in such city or town, to be expended on the roads and bridges in such city or town;”
Under the provisions of this act the city of Conway, the appellant, would be entitled to not. less than one-third of the tax-collected on property located in said city.
One of the questions to be determined by this court is whether this act was repealed by act 143 of the Acts of 1919. Act 143 is entitled, “An act to change the method of working public roads in Faulkner County, Arkansas. ’ ’ And § 1 provides that the county court shall have power to provide, by proper order of said court, for the expenditure -of funds of the county and funds arising from the levy of the three-mill tax: in said county, in any road district or on any public road or bridge or culvert of said county, regardless of the district in which said tax has been, or shall be paid.
While the writer does not believe that the act of 1919 repeals the act of 1911, a majority of the judges are of opinion that it does, for the reason that the act of 1911 is an act to provide for the working of public roads in cities and towns in Faulkner County, and the act of 1919, as expressed in-its title, is an act to change the method of working the roads in Faulkner County, Arkansas, and the act of 1919 provides a complete scheme for working the roads and highways and collecting and distributing the road fund in said county. And the act of 1919 covers the entire subject of working roads in Faulkner County.
This court said in a recent case:
“There are certain well settled rules to determine whether or not a former statute has been repealed by a later one, but there is always some difficulty, in applying these rules, in determining whether or not ¡a repeal has been effected in a given instance. It is a rule of universal application that implied repeals are not favored, and yet it is equally well settled that there is an implied repeal where there is found irreconcilable repugnance between the two statutes, and also when the Legislature appears to have taken up the whole subject anew and covered the entire ground of the subject-matter of the former statute. In a recent decision we undertook to cover this subject in the following statement: ‘It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible; but there are two familiar rules or classifications applicable in determining whether or not there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new’.” State v. White, 170 Ark. 880, 281 S. W. 678.
The above ease cites a number of cases in the application of the above principle, and proceeds:
“Applying those tests to the statute now under consideration, we are of the opinion that, in enacting the last statute, the Legislature took up the whole subject anew as a substitute for the former legislation on the subject, and that it operated as a repeal of the former statute.”
It is therefore the opinion of the court that, under the authority of the case last cited, the act of 1919 repealed the act of 1911; that it was a substitute, a change of the method of working public roads' in Faulkner County, and, being a substitute, repeals the act of 1911.
It will be observed that the title of the act of 1911 is, “To better provide for the working of public roads,” etc., and the title of the act of 1919 is, “To change the method of working public roads in Faulkner County.” While the language of the title of an act is not controlling, as was said in the case of State v. White, it has some force in interpreting the meaning of the lawmakers when otherwise in doubt, and the language of this caption leads to the conclusion that the lawmakers intended it as a substitute for former legislation, and the caption, as we have said, recites that it is an act to change the method of working public roads in Faulkner County, Arkansas.
The next question is whether act 81 of the Acts of 1927 repealed act 143 of the Acts of 1919. The title oí; act 81 of 1927 is as follows: “An act to appropi’iate 50 per cent, of the road tax collected on real and personal property situated in cities of the second class for improvement of the streets in such cities.”
Section 3 of act 81 of 1927 is as follows: “That the provisions of this act shall not rescind, repeal or otherwise amend any special law now in force which governs the division of similar road taxes in any city of the second class, within the purview of this statute.”
The act of 1919 does not govern the division of the road taxes. It merely provides that the county court of Faulkner County shall have power to provide, by proper order of said court, for the expenditure of the funds of the county and funds arising from the levy of the three-mill tax in said county in any road district or upon any public road or bridge or culvert in said county, regardless of the district in which said tax has been or shall be paid.' But it does not provide for a division, and the act does not govern the division of road taxes. It simply leaves the question of the expenditure of the road fund to the county court as it was prior to the act of 1911.
The city of Conway, in Faulkner County, is therefore entitled to 50 per cent, of all road taxes collected by the tax collector in Faulkner County on property situated within the corporate limits of the city of Conway.
It is earnestly contended that, even if the provisions of act 81 of 1927 are ¡applicable to the city of Conway, said provisions do not apply for the year 1926, as the road tax for the year 1927 will not be due until the year 1928. The act of 1927 was approved March 4, and § 2 of said act is as follows:
“That the provisions of this act shall apply to the road-tax collections on property within the corporate limits of said cities of the second class in this State for the year 1927 as well as for future years.”
We think that this section means taxes collected in the year 1927. That seems to have been the intention of the Legislature as contained in § 2 of the act. And the Legislature, of course, had the right to enact this statute, and we therefore conclude that the provisions of the act apply to collections for the year 1927; that this means taxes collected in 1927, and not road taxes levied in 1927.
The decree of the chancery court is reversed, and the cause remanded .with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. ■ | [
80,
-18,
-76,
108,
-22,
-64,
90,
-103,
91,
-95,
-28,
-37,
-17,
68,
4,
113,
-21,
-19,
-15,
104,
-27,
-73,
67,
106,
-70,
-69,
-87,
70,
-5,
-51,
-28,
-10,
76,
49,
-54,
21,
71,
66,
-115,
-36,
78,
8,
-117,
76,
89,
-61,
52,
-81,
98,
13,
49,
-50,
-2,
40,
52,
-21,
45,
44,
89,
43,
17,
-14,
24,
29,
111,
7,
-80,
54,
-102,
1,
90,
8,
-112,
49,
24,
-24,
115,
-90,
-62,
-12,
73,
-103,
8,
98,
102,
1,
37,
-17,
-4,
-116,
14,
-6,
-119,
-92,
-70,
57,
75,
-117,
-97,
20,
122,
-48,
-59,
122,
-68,
-43,
93,
108,
-121,
-17,
-44,
-95,
-121,
44,
20,
19,
-49,
15,
48,
113,
-49,
-26,
93,
-121,
50,
-101,
-125,
-48
] |
Hart, C. J.,
(after stating the facts). The sole contention for reversal of the decree is that the court acted in an arbitrary and discriminatory manner in excluding from the provisions of the ordinance creating the district a certain area, which is specifically described.
At the outset of the discussion it may be stated that, in the construction of our Constitution and statutes relating to the formation of improvement districts in cities and incorporated towns, it has been uniformly decided by this court that the determination by the common council of a city or town as to what real property is benefited and should be included within the limits of the district is conclusive, except for fraud or demonstrable mistake. By the expression “demonstrable mistake” is meant a mistake of fact as to the existence of which there is no room for doubt. Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198; Lenon v. Brodie, 81 Ark. 208, 98 S. W. 979; Hill v. Walthour, 165 Ark. 243, 262 S. W. 680; Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745; and Paving Dist. Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945.
Where the property owner delays until after the period of time prescribed by statute for a direct attack on the action of the council establishing the district and the assessment of -benefits to the real property situated therein, a suit by the property owner to review the proceedings of the common council establishing the district or the board of assessors in assessing the benefits- to the real property within the district is. a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous.
In the case last cited, in discussing the rule as to a collateral attack on a street improvement district, it was expressly stated that the court could only look to the face of the papers to discover whether or not there was a demonstrable error in the assessment of benefits, and House v. Road Improvement District, 158 Ark. 357, 251 S. W. 21, was cited. In the House case the court was dealing with a similar question as to a road improvement district created by special act, and it was said that the rule anounced in our former decisions was that, when it appears from the face of the act creating an improvement district, or from conditions or situations of which the court will take judicial knowledge, that lands of complaining owners are entirely separated from the roads to be improved by intervening lands excluded from the district, or by impassable obstructions or barriers, the inclusion of the lands thus situated renders the act void because arbitrary and discriminatory. In the application of the rule the court said there was nothing in the act or any matter of which the court'could take 'judicial notice that would cause the formation of the district and the assessment of benefits under the act creating it to be held arbitrary or discriminatory., In the Baker case, a property owner whs attacking the validity of a street improvement district in the city of Blytheville on the ground that a certain omitted area must have been 'bene fited if the other lots within the limits of the district were benefited. A map of the district was included to show the relative situations of the omitted lots to those embraced in the district. In that case, as in the present one, the omitted area was situated within the limits- of the boundaries of the improvement district. In the Baker case the court said that the fact that property is omitted from the assessment does not, regardless of the -situation of the property or its extent in comparison with the whole area embraced in the district, demonstrate a mistake which renders the assessment void. In that case it was recognized that the maps of the district and the assessment list showed that lots or blocks, similarly situated, apparently, to those assessed, were omitted. Notwithstanding this fact, it was held that the omission was not necessarily demonstrated to be a mistake of fact. It was said that there may have been reasons not apparent from a mere inspection of the lists and maps why the omitted lots were not in fact benefited, and that on collateral attack the court could only look to the face of the papers to discover whether or not there was demonstrable error in the assessments.
The principles above announced control the present case. The ordinance creating and laying off the district was approved on February 15,1927, and the present suit was not commenced until October 15, 1927. Hence the suit is a collateral attack upon the validity of the proceedings of the common council establishing and laying off the improvement district and excepting a certain area therefrom. The map showing the extent and area of the excluded lots, as to its situation with relation to the other lots in the district and the streets to he improved, is a part of the record, but there is nothing in the examination of the map itself or of facts from which the court will take judicial notice to conclusively show that there was a demonstrable mistake of fact in omitting the area-in question. It may he that- the omitted area, because of the topography of the city as being hilly, or from other causes not apparent from the plat of the town, would not receive any benefit by way of drainage or otherwise from the proposed improvement. If the property owner thought otherwise, he should have made a direct attack upon the proceedings laying off and establishing the district, to the end that he might have shown by proof that the omitted area was arbitrarily left out of the district and that the action of the council in omitting it was a demonstrable mistake of fiact.
It follows that the decree of the chancery court was correct, and it will be affirmed. | [
-15,
-18,
-36,
46,
74,
-64,
26,
-118,
65,
-88,
-89,
123,
-81,
-118,
20,
63,
-90,
-67,
84,
107,
-43,
-77,
87,
3,
-74,
-41,
-45,
85,
-71,
77,
118,
69,
76,
48,
-54,
-3,
102,
74,
-51,
-34,
-82,
-114,
10,
77,
-55,
64,
52,
110,
80,
14,
5,
-85,
-77,
45,
24,
-61,
104,
44,
73,
56,
81,
-8,
-98,
-99,
123,
5,
49,
118,
-104,
7,
-8,
10,
-104,
57,
1,
-8,
119,
-74,
-106,
116,
13,
27,
8,
96,
98,
-128,
113,
-41,
-72,
-116,
14,
-12,
-115,
-90,
-109,
24,
106,
45,
-106,
-97,
124,
22,
15,
124,
-26,
-123,
91,
60,
-119,
-114,
52,
-77,
-115,
112,
-110,
65,
-17,
-29,
48,
112,
-59,
-26,
95,
-31,
18,
-101,
-122,
-103
] |
Kirby, J.
Appellant prosecutes this appeal from a judgment of conviction against him of carnal abuse upon Ms trial upon an indictment for rape. He urges that the evidence is not sufficient to support the verdict; that the court erred in not withdrawing from the jury the testimony of the prosecuting witness for incompetency, she being incompetent to testify; in the giving of instruction No. 9, and in permitting the unwarranted and prejudicial remarks of the prosecuting’ attorney in his closing* argument.
~We do not regard it necessary to set out the testimony at length, hut it will suffice to say that, after a careful consideration of the evidence, we think the jury was warranted in finding that the defendant had carnal knowledge of the girl, under the age of consent, and its verdict will not he disturbed on that ground.
No error was committed in refusing to exclude the testimony of the prosecuting witness on the ground that she did not know and understand the obligations of an oath. • She was over 14 years of age, and presumed to have common discretion and understanding, and, no objection having been made to her examination on the ground of incompetency to testify until after her testimony was all introduced and a rigid cross-examination made, the right to have the testimony excluded was waived, the objection being untimely. Flanagin v. State, 25 Ark. 92, 28 R. C. L. 450, par. 37.
Then, too, the question of the witness’ competency was addressed largely to the discretion of the trial judge, and, in the absence of clear abuse or manifest error, the judicial discretion is not reviewable. Crosby v. State, 93 Ark. 158, 124 S. W. 781, 137 Am. St. Rep. 80, and Wakin v. Wakin, 119 Ark. 514, 180 S. W. 471.
Neither can appellant complain of the error in the giving of instruction number 9, relative to the offense of rape, since the jury acquitted him of that crime and convicted him of the lesser offense of carnal abuse, in which the questions of resistance and outcry of the female are not involved, and any error-committed in the giving of said instruction was harmless. James v. State, 161 Ark. 389, 256 S. W. 372.
The court has concluded, however, that error was committed in permitting the remarks of the prosecuting attorney complained of in the closing argument. The record recites: “This note we were not permitted to introduce in evidence to show you what was in the note, I wish we could have; I believe at the time she went to Little Rock and got these witnesses and wrote this note they were laying plans to have Coon Young present and in the car on that night that this heinous crime was committed. Coon Young was not there, I know he was not there, you know he was not there. They knew this was ihe evidence that would stick them, and they did not want it before you. They have done everything in their power to prevent justice being done. That is the kind of a mother this is.”
Much of the testimony was directed to proving that Coon Young came to the dance in the car with defendant, the girls and their mother, contradicting the testimony of the prosecuting witness and her little sister, that he did not come to the dance, nor ride in the car with them; notwithstanding the mother of the girls had also testified that he did accompany them to the dance and took the two little girls out of the car and into the dance hall, leaving her and the defendant in the car a few minutes until they could follow.
It was shown that the mother had written a note to the girl which the court would not permit introduced in testimony, and the majority think that the argument and comments of the prosecuting attorney upon the fact, with the statement of his belief that the mother had come to Little Rock and got witnesses and had written the note or letter making plans to have Coon Young present in the car on the night the crime was committed out there, and his positive statement that, “Coon Young was not there, I know he was not there, you know he was not there. They knew this was the evidence that would stick them, and they did not Avant it before you, ’ ’ — was unwarranted, and necessarily prejudicial. It is true that the court gave an instruction to the jury telling them they should not alloAV any argument of the counsel to influence them in any Avay, unless it Avas supported by the Mav and testimony, but this instruction was given along with the others, the improper argument having been allowed to be made, over the objection of the defendant, and, not •haAdng been withdrawn nor the jury specially admonished not to consider it, the said .instruction could not operate to remove the prejudice against the rights of the defendant in erroneously permitting the prosecuting attornev to make the argument. Hays v. State, 169 Ark. 1175, 278 S. W. 15; Hughes v. State, 164 Ark. 621, 243 S. W. 70.
For the error designated the judgment is reversed, and the cause remanded for a new trial. | [
-80,
-18,
-51,
-67,
8,
96,
58,
44,
16,
-93,
-10,
-45,
-17,
-54,
4,
123,
-9,
125,
84,
96,
-42,
-73,
55,
65,
58,
-13,
120,
-42,
-73,
-50,
-12,
-12,
76,
48,
-54,
-43,
98,
-54,
-59,
80,
-114,
15,
-71,
-64,
80,
6,
100,
54,
112,
15,
49,
-98,
-29,
42,
60,
-61,
107,
44,
75,
-3,
72,
32,
-102,
-121,
95,
16,
-77,
38,
-97,
2,
-8,
60,
-104,
49,
1,
-24,
114,
-90,
-126,
-12,
111,
-119,
-120,
98,
98,
33,
61,
75,
45,
-47,
62,
126,
60,
-90,
-104,
1,
75,
105,
-73,
-99,
100,
48,
47,
-6,
109,
76,
125,
108,
10,
-113,
-108,
-77,
-115,
52,
-46,
-112,
-29,
-65,
16,
113,
-51,
-32,
92,
21,
50,
-37,
-114,
-74
] |
Kirby, J.
This, appeal challenges the validity of an ordinance of the city of Blytheville, Arkansas, attempting to establish a municipal court in that city under the pro - visions of act No. 60 of the Acts of the General Assembly of 1927.
In October, 1927, the city council of that city, by ordinance .No. 353 duly passed, established the municipal court for said city in accordance with the provisions of said act of the General Assembly.
Appellees, two girls, were arrested for a misdemeanor alleg’ed to have been committed outside the city limits of Blytheville, in Chickasawba Township, in which Blytheville is situated. They were convicted in the municipal court, and on appeal to the circuit court they challenged the authority of the municipal court as not legally established. ■
It was conceded that, at the date of the passage and approval of said Act No. 60 of 1927, and at the time of the passage of the ordinance No. 353 establishing the municipal court, and also' at the time of the trial, the city of Blytheville had an actual population exceeding 9,300.
The court held that the municipal court was not legally established, and from the judgment this appeal is prosecuted.
Section 1 of the Act No. 60 of 1927, in accordance with which the ordinance No. 353 establishing.the municipal court was passed, provides:
“Section 1. All cities having a population exceeding 9,300' according to the latest preceding United States census, and all townships and counties within which are situated any of such cities, shall be subject to the provisions of this act, provided, that any city which may hereafter become subject to the provisions of this act may establish a municipal court by passage of an ordinance by the city council of such city creating and establishing such court under the provisions of this act.”
This act prescribes “the latest preceding United States census” as the guide or criterion for determining the population of the cities coming under its provisions and those that may thereafter become subject thereto, being prospective in its operation. Childers v. Duvall, 69 Ark. 336, 63 S. W. 802; Montgomery v. Little, 69 Ark. 392, 63 S. W. 993; Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707.
At the trial it was conceded that the population of the city of Blytheville was in excess of 9,300 at the time of the passage of said act No. 60 of 1927, and also when the ordinance was adopted and the municipal court established thereunder; but, according to the latest United States census, of 1920, of which the courts take judicial notice, and by which only the population of the city- of Blytheville could be determined for the establishment of the municipal court, under the provisions of said act of the Legislature, the population of that -city was less than 7,000, being 6,447 as shown by said census.
The city was without the power, under the said act, to establish the said municipal court by ordinance, unless and until its population was shown to exceed 9,300 “according to the latest preceding United States census,” and the ordinance attempting to do so was beyond its power, and void.
The ordinance being void, the municipal court was not legally established, and had no power to render judgment against the defendants, as the circuit court on appeal correctly held.
The judgment is affirmed. | [
112,
110,
-12,
60,
106,
67,
80,
-91,
18,
-77,
100,
-45,
-81,
-34,
20,
121,
67,
125,
80,
112,
-59,
-73,
18,
99,
-46,
-101,
-17,
-41,
-13,
-51,
-26,
-12,
76,
113,
-53,
-99,
70,
-20,
-123,
92,
-122,
-126,
43,
76,
88,
64,
62,
126,
120,
14,
-15,
30,
-42,
47,
48,
-6,
-24,
108,
73,
-67,
89,
-15,
-54,
69,
127,
6,
1,
44,
-119,
7,
-8,
56,
-100,
49,
-128,
-24,
119,
-90,
-122,
-11,
79,
-39,
12,
112,
102,
11,
44,
-53,
-8,
-117,
6,
-102,
-119,
-89,
-80,
81,
66,
-120,
-66,
-111,
100,
118,
4,
-2,
-21,
69,
93,
108,
-121,
-113,
-108,
-79,
5,
-28,
-118,
51,
-61,
-25,
48,
117,
-60,
54,
127,
5,
51,
-102,
-34,
-47
] |
Hart, C. J.,
(after stating the facts). It is conceded by counsel for appellees that the county court had no jurisdiction to try the contest for the adoption of the stock law, and that the circuit court was the proper forum in which to commence such contest. It is insisted by counsel for appellees, however, that, inasmuch as the circuit court had jurisdiction of the subject-matter or cause of action, it could acquire jurisdiction of the persons of appellants by their entering a voluntary appearance to the action in the circuit court. Undoubtedly this is true, and we would have no hesitation in adopting the reasoning of counsel for appellees if it could be said that appellants entered their voluntary appearance to the action in the circuit court and consented to a trial there. In making his contention to that effect, counsel for appellees relies upon the part of the record which we have copied in our statement of facts, and which we need not repeat here. It is claimed by counsel for appellees that that part of the record which shows that, after the court assumed jurisdiction of the case to try it upon its merits, both parties waived formalities, and that the cause was submitted to the court upon an agreed statement of facts showed their voluntary submission to a trial in the circuit court. We do not think so. Appellants excepted to the action of the circuit court in overruling their demurrer to the jurisdiction, and had their exceptions entered of record. We think that all that was meant by the recitation referred to was that, since the court had overruled their demurrer and had assumed jurisdiction to try the case upon the merits, they would waive all formalities and would try the case upon an agreed statement of facts and such other informal evidence as might be agreed between the parties. This was evidently done for the purpose of facilitating the progress of the trial and not for the purpose of entering their appearance to the action.
It is well settled that the circuit court can only acquire such .jurisdiction upon appeal as that possessed by the county court; if the county court was without jurisdiction to try the contest, the circuit court, acquired no jurisdiction on appeal. Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706.
Therefore it is ordered that the judgment be reversed, and that the cause be dismissed without prejudice as to bringing another action. | [
-78,
-18,
-36,
-68,
-54,
-32,
34,
-70,
64,
-94,
39,
83,
-19,
-53,
16,
61,
-9,
9,
113,
121,
-44,
-77,
23,
67,
-14,
-13,
-102,
87,
-76,
79,
118,
95,
76,
-80,
-30,
-43,
70,
74,
-123,
28,
14,
-116,
-69,
73,
-24,
-62,
48,
99,
114,
75,
113,
-113,
-14,
34,
89,
-53,
-23,
46,
105,
-75,
64,
88,
-114,
77,
125,
5,
49,
-92,
-104,
3,
88,
42,
-128,
57,
3,
-7,
114,
-10,
-126,
84,
43,
-103,
8,
38,
103,
1,
104,
-17,
-104,
-119,
46,
124,
31,
-26,
-112,
8,
75,
11,
-74,
-97,
125,
4,
15,
116,
-24,
68,
28,
108,
5,
-57,
22,
-73,
-113,
100,
-98,
3,
-61,
-125,
16,
113,
-60,
-6,
92,
71,
50,
91,
-116,
-104
] |
Smith, J.
A suit was filed on behalf of the state, under the authority of act 119 of the acts of 1935, to confirm the forfeiture and sale of the east half of the northeast quarter of section 16, township 15 north, range 2 east, with other lands, for the nonpayment of the general taxes due thereon for the year 1936.
Under the authority of § 6 of this act 119 an intervention was filed, which alleged the invalidity of the tax sale for numerous reasons, and prayed the right to redeem. It was.also prayed that -Sylvester Wilson be made a party defendant, and that intervener’s title be quieted as against Wilson. Accompanying the intervention was an affidavit of tender made to Wilson, which the intervention renewed and continued, covering the cost to Wilson of a deed from the State Land Commissioner, and also a deed from the Cache River Drainage District to Wilson, and -taxes subsequently paid by Wilson.
The deed from the State Land Commissioner recites that it is based upon a sale to the state for the 1936 taxes. It does not appear to be questioned that this sale was invalid for any one of several reasons alleged, and no at tempt is made to uphold its validity, but, in any event, its invalidity is clearly shown.
The court found that neither of the deeds to Wilson operated to convey the title; and we concur in that holding. As has been said,, the deed from the State Land Commissioner was invalid because the tax sale on which it was based was not in conformity with the law; and the deed from the drainage district is ineffective to convey title.for the reason that the district did not own the land when the deed was made.
The land was sold to the drainage district under a foreclosure decree rendered May 25,1933, which was later confirmed, and the district, in 1936, conveyed the land to the Pierce-Williams Company, and by mesne conveyances this title was acquired by intervener Fraps. The drainage taxes were not thereafter paid; but there was no foreclosure of the lien for these delinquent taxes. Five days after Wilson had purchased the land from the state, he obtained a deed from the drainag’e district which recites, as a consideration therefor, the payment of the delinquent taxes. This deed did not convey title; it only effected a redemption. Webb v. Williamson, 202 Ark. 763, 152 S. W. 2d 312; Mivelaz v. Bonner, 200 Ark. 1189, 141 S. W. 2d 22; Person v. Miller Levee District No. 2, 202 Ark. 173, 150 S. W. 2d 950.
It is insisted that Fraps is in no position to raise these questions, for the reason that he was not the owner of the land. But the record shows that he had not merely color of title, but is the owner of the record title. The Lesser-Goldman Company had been the owner of the original title. After the drainage district acquired the title under the foreclosure decree of 1933, the district conveyed the land, October 1,1936, to the Pierce-Williams Company. Recitals in subsequent deeds show that this deed should have been made to J. Paul Smith,-the manager of the Pierce-Williams Company. On October 19, 1936, the Lesser-Goldman Company conveyed to J. Paul Smith, who, on February 8, 1937, conveyed to Fraps, and a deed was executed on the same date by the Pierce-Williams Company to Fraps. Since the date last-men tioned Fraps lias been in possession through a tenant, who has a lease from Fraps with an option to purchase. This tenant also intervened, as did certain other persons, whose rights were adjudged, and that adjudication is not questioned and need not be recited.
Three of the deeds just mentioned were lost before they had been placed of record. But there was executed and recorded a deed from the drainage district to the Pierce-Williams Company, dated April 21, 1941, which recites that it was executed in lieu of a similar deed to the same grantee on October 1, 1936, which was lost and not recorded.
On April 5, 1941, the Pierce-Williams Company executed a deed to Fraps, which recites that it was executed in lieu of a similar deed to the same grantee dated February 8, 1937, which was lost without having been recorded.
On March 10, 1941, the Lesser-Gloldman Company executed a deed to J. Paul Smith, which, recites that the grantor had, under date of October 19,1936, conveyed the same land to J. Paul Smith, which deed had been lost without having been recorded.
These substituted deeds did not convey title, but evidenced the execution of deeds which had previously conveyed it. It was said in the case of Thornton v. Smith, 88 Ark. 543, 115 S. W. 677, that “A duplicate or new deed could convey nothing, but would be only evidence that a former deed conveying title had been made; and this is the only purpose it can or was intended to subserve.”
These conveyances show sufficient title in Fraps to entitle him to redeem the land from the sale to the state, it having been many times held by this court that almost any right, either in law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or encumbrance upon the land, amounts to such an ownership as will enable the party holding it to redeem from a tax sale.
In the case of Billert v. Phillips, 198 Ark. 698, 130 S. W. 2d 715, we construed § 6 of act 119 of the acts of 1935, under the authority of which the confirmation proceeding was instituted, in which the intervention was filed. It was there held that a showing that the tax sale sought to be confirmed was invalid for any reason was a meritorious defense to the confirmation suit, and that' upon establishing this meritorious def ense the land owner should be permitted to redeem upon the conditions there provided. Fraps met these conditions by tendering, as the court found, a larger sum than the law required to effect a redemption, and upon this finding, together with the finding that the tax sale of 1936 sought to be confirmed was invalid, and that the deed from the drainage district to "Wilson was a mere redemption, canceled those deeds as clouds upon Fraps’ title.
For the reasons stated this decree is correct and will be affirmed.
Certain collateral matters were adjudicated, which are not questioned, and will not, therefore, be recited or discussed.
Decree affirmed. | [
-10,
-50,
-72,
108,
122,
-64,
42,
-118,
-53,
50,
-91,
83,
-19,
6,
0,
45,
99,
125,
81,
105,
-58,
-93,
19,
-126,
18,
-77,
89,
-35,
-65,
-51,
-28,
87,
78,
36,
74,
-99,
-58,
-94,
-51,
88,
94,
1,
-85,
77,
-3,
64,
52,
111,
112,
79,
117,
46,
-5,
45,
17,
99,
73,
46,
-37,
42,
65,
-71,
-72,
-115,
127,
7,
49,
85,
-102,
3,
-56,
-118,
-112,
49,
-120,
-24,
115,
-74,
-106,
116,
5,
-103,
40,
34,
102,
3,
-75,
-17,
-80,
24,
38,
-2,
-115,
-90,
-48,
88,
98,
110,
-65,
-99,
125,
16,
-50,
-14,
-30,
5,
29,
104,
15,
-114,
-106,
-93,
-115,
-4,
-120,
3,
-13,
27,
48,
112,
-49,
-94,
92,
101,
112,
-101,
15,
-7
] |
Smith, J.
The appellant insurance company issued its policy of insurance to Paul Trotter, a telegraph operator, insuring his life in the isum of $3,000, and appellee was designated as the beneficiary therein. This suit was brought by the beneficiary to recover on this -policy, and the cause was submitted to the court below, sitting aw a jury, on the following- agreed statement of facts:
“We agree that Paul Trotter, the insured, was killed at Stuttgart, Arkansas, on October 17, 1926, in an airplane accident. The facts in relation to the accident or how it occurred are as follows:
“Bichard Schillberg was operating an airplane at a rice carnival or rice fair, at -Stuttgart, Arkansas, and ivas charging passengers $2.50 for each trip -on which they rode with him. Some time during the -day Paul Trotter took an airplane trip with Schillberg, riding a-s passenger, and paid the usual fee or fare therefor. Later in the day, as he -stood near the airpl-ane, Sichillbe-rg, the pilot of the airplane, in -soliciting passengers for another trip, saw Paul Trotter, and aisked -him if he did not want to take another ride. On this occasion Paul Trotter accepted the invitation to become a passenger to ride for a second time, and the second flight was made. The second flight was upon the same condition of payment as the first flight, but it is not known by the- parties whether the payment was made on either occasion before ascending or after alighting from the airplane. On the occasion of the -second flight the pilot of the machine, Sehillberg, attempted to perform ¡siome ‘stunts,’ -and, in doing so, lost control of bis machine-, when perhap-s not more than 300 feet from the ground, and the -airplane fell, killing Trotter and seriously injuring Schillberg. Prior to the time of taking out insurance Paul Trotter bad been on one -or two ‘plane’ trips. .The place or location where these trips were made, purpose or reason for- taking them, -or the conditions under which they were made, are not known to the partie-s executing this agreement. ’ ’
The policy sued on contained thi-s clause: “This policy does not cover -disability -or fatal injury received by the insured * ■ * * (3) While engaged in aeronautics or underwater navigation,” and the company denied liability by virtue of this clause.
At the trial from which this appeal comes the insurance company requested the court to find the fact to he that the insured received his fatal injury while engaged in aeronautics, and that death while so engaged was a risk not assumed, but expressly excepted, toy the policy.
The court declined to make that finding, but, on the contrary, made the following finding.
“Finding of fact No. 1. The court finds that the occupation of Haul Trotter was: that of telegraph operator, and that he received his fatal injury while riding in an aeroplane as a passenger; that riding as a passenger in an aeroplane does not constitute an exception or excepted risk under the terms of the policy of insurance sued upon, but the phrase ‘engaged in aeronautics’ implies that the risk excepted is for the insured to have taken part in the operation of the aeroplane as an occupation or otherwise, and that merely riding as a passenger therein does not come within the exception of the policy.”
Upon this finding judgment was rendered against the insurance company for the amount* of the policy, with penalty and attorney’s fee, and the insurance company has appealed.
It is not questioned that the insured was killed while riding in an aeroplano, and the insurance company insists that the trial court should have declared that the insured was, at the time of his death, “engaged in aeronautics” within the meaning of the clause above quoted, and that there is no liability under the policy sued on. Oases are cited by appellant which fully sustain the contention.
Appellee insists, however, that the phrase, “engaged in aeronautics,” should be strictly construed, as it constitutes an exemption from the general liability assumed by the company upon the issuance of the policy, and that it means active cooperation or faking part in, the aeronautical enterprise resulting in the death of the insured.
Appellee contrasts the use of the words, “engaged in,” quoted above, with language employed in § 5 of the policy, providing for double indemnity in certain cases, one of these being for an injury sustained ‘by the insured “while riding as a passenger in a passenger elevator,” and another provision in the same section for double indemnity for an injury sustained by the insured Avhile riding as a passenger of a common carrier; and also with an exception from liability contained in § (f) “Avhile engaged in military or naval service during the time of war.”
It is insisted by appellee that the words, “engaged in, ’ ’ should be construed as having the same meaning in each of the instances where they were employed, and that the proper construction of those words is that actual employment or participation avus contemplated, and that, if merely riding as a passenger in an aeronautical device was intended, language should have been employed which did more than inhibit one from engaging in that business.
We do not review the oases cited by counsel for appellant, ias it is thought by the majority of the court that the instant ease is ruled by the decisions of this court in the cases of Sovereign Camp W. O. W, v. Compton, 140 Ark. 313, 215 S. W. 372; Miller v. Illinois Bankers’ Life Assn., 138 Ark. 442, 212 S. W. 310; Benham v. American Cent. Life Ins. Co., 140 Ark. 612, 217 S. W. 162; and Nutt v. Security Life Ins. Co., 142 Ark. 29, 218 S. W. 672.
In the case of Benham v. Ins. Co. supra, the facts were that Benham, the insured, enlisted in the aviation branch of the military service of the United States, on February 11, 1918, at which time the United States was at war with Germany, and while still in the aviation service and during the continuance of the war, the insured died from .influenza. The policy there sued on contained the following exemption from liability: “Death while engaged in military or naval service in time of war, or in consequence of such service, shall render the company liable for only the reserve under this policy, unless the company’s permission to engage in such service shall have been obtained and such extra premium or premium® as the company may require .shall have been paid.”
Permission of the insurance company for the insured’s enlistment had not been obtained, nor had he paid the extra premium, and the company contended that it was liable only for the reserve value of the policy; but this court held that the company was liable for the full face value of the policy, and in so holding it was there said:
‘ ‘ The words in the restricted clause now under consideration mean something more than death to the insured during the period of time he was in military service of the United States. The word ‘engaged’ denotes action. It means to take part in. To illustrate, a servant injured while in the operation of a train, means that he must be injured while assisting or taking part in the operation of the train. An officer engaged in the discharge of the duties of his office is one performing the duties of his office. So here the words, ‘death while engaged in military service in time of war,’ means death while doing, performing, or taking part in some military service in time of war. In other words, it must be death caused by performing some duty in the military service. That is to say, in order to exempt the company from liability, the death must have been caused while the insured was doing something connected with the military service, in contradistinction to death while in the service due to causes entirely and wholly unconnected with such service. This construction, we think, would be according to the natural and ordinary meaning of the words. By the use of the word ‘engaged’ it .must have been intended that some activity in the service should have caused the death, in contradistinction to merely a period of time while the insured was in the service. This view is strengthened when we consider the words following. The words, ‘or in consequence of such service,’ relate to the word death. So that death in ‘consequence of such service’ means death resulting from some act of the insured connected with the. service, whether such death occurred during the period of Mb service or afterwards.”
The doctrine of that case was reaffirmed in the later ease of Nutt v. Security Life Ins. Co., supra.
The decision of this court in the Benham case, supra, was approved by the Supreme Court of Oklahoma in the case of Barnett v. Merchants’ Life Ins. Co., 87 Okla. 42, 208 Pac. 271; by the Supreme Court of Iowa in the ease of Boatwright v. American Life Ins. Co., 191 Ia. 253, 180 N. W. 321, 11 A. L. R. 1085; and by the Kansas City Court of Appeals in the case of Long v. St. Joseph Life Ins. Co., 225 S. W. 106, which case.was affirmed on the appeal to the Supreme Court of that State, 248 S. W. 923.
It is therefore the opinion of the majority — in which the writer does not concur — 'that the insured was not “engaged in aeronautics” within the meaning of the clause above quoted, and that the trial court was correct in so holding, and the judgment of the court below will therefore be affirmed, and it is so ordered. | [
56,
126,
-112,
46,
24,
32,
56,
-110,
113,
-59,
39,
83,
-35,
-25,
5,
51,
-25,
-19,
112,
106,
-74,
-109,
22,
34,
-14,
-109,
121,
-59,
-108,
79,
124,
-10,
4,
40,
-118,
85,
-90,
78,
-123,
94,
-34,
12,
-85,
-31,
25,
16,
48,
126,
-108,
79,
85,
-97,
-53,
42,
-108,
83,
45,
42,
122,
-95,
-47,
113,
-117,
13,
-1,
18,
-95,
100,
-70,
37,
88,
14,
16,
49,
8,
-8,
17,
-90,
-126,
124,
37,
-103,
-124,
98,
102,
36,
5,
-87,
-84,
-103,
38,
-14,
15,
-113,
22,
88,
19,
77,
-98,
-99,
122,
17,
6,
88,
-24,
85,
-100,
-32,
35,
-85,
-106,
-77,
-17,
-28,
28,
-93,
-29,
-97,
54,
116,
-49,
-86,
94,
69,
57,
-101,
-106,
-98
] |
Carleton Harris, Chief Justice.
This is an appeal from an order of the Jackson County Circuit Court, setting aside a judgment in favor of Yarnell Ice Cream Company, appellant herein, and granting a new trial. J. A. Williamson and Mary Frances Williamson, appel-lees herein, instituted suit against appellant, alleging severe personal injuries to Mrs. Williamson and property damage loss to Mr. Williamson, as the result of a collision which occurred in the city of Newport on April 4, 1963. On that date, Mary Frances Williamson was a passenger in the automobile owned by her husband, 1. A. Williamson, and driven by appellees’ daughter, Sharon Pugh. The Williamson vehicle stopped for a red traffic light at the intersection of Malcolm and Pecan Streets, and was struck from the rear by appellant’s truck, which was being driven by an employee, Robert Davis. According to the evidence, the Williamson car was knocked 119 feet, and the truck, which continued on after the collision, came to rest 180 feet west of the intersection. The defense offered by appellant at the trial was that the brakes on the truck had failed, and Davis was accordingly unable to stop the vehicle. Mr. Davis, 25 years of age, and employed by appellant for seven years, testified that lie had had no trouble at all with the brakes until just before the accident; that he had just gone through a green light, and as he approached the Williamson car, pressure was applied to the brakes, and they “collapsed.” The witness testified that he then pulled the emergency brake, and shifted the truck into third gear, but by that time, he had struck the rear of the Williamson automobile. The truck was carrying a load of 170 fifty-pound boxes of sweet cream. Davis testified that he endeavored to have the truck repaired before leaving Newport, and that he observed the cause of the failure of the brakes:
“Well, the brake line had rubbed on part of the truck on the under part and it had rubbed so thin that when I applied the brakes it burst the hose and all the fluid run out.”
Tlie driver testified that traffic was approaching from the opposite direction (though this was disputed by appellees’ witnesses), and when asked why he did not turn to the right and drive his car-up over a curb where a service station was located, replied, “Sir, after the brakes went out, I was busy trying to stop it.”
Gerald Holbrook, a barber, who operates a shop at the intersection of Malcolm and Pecan, heard the crash, and then looked around to observe what was happening; he testified that Davis appeared to be having difficulty getting the truck under control: “He was racing the gears, you know, like he was trying to get it in gear and it was bucking and jumping trying to slow down, you know, to get it stopped.” He said that the driver subsequently told him that “his brakes went out.”
Mr. J. T. Rocka of Searcy testified that he worked on this truck on December 12, 1962, and had fixed the brakes on that occasion. He added that the truck was kept in excellent condition at all times. The witness said that it is possible for the hydraulic brake system on a truck to become ineffective because of a ruptured brake lino without any prior warning of any defect, and that this is particularly true of a loaded truck.
Mr. James Turner of Kcnsett, also a mechanic, agreed with Mr. Rocka.
The jury returned a verdict for appellant, and when appellees filed a motion asserting that the verdict was against the preponderance of the evidence, the court set aside the jury verdict and granted a new trial. Appellant argues that in returning a verdict for the ice cream company, the jury unanimously agreed that Davis did not commit any act of negligence which caused or contributed to the collision. The company relies upon testimony of Davis, Holbrook, Rocka, and Turner, and also points out that the two investigating officers testified that Davis told them, after the accident, that his brakes had failed as be approached the stop light. Pat Babb, one of the officers, also testified, “In checking the truck, I found out that it had no brakes.”
It is asserted that the trial judge granted the motion because he misconstrued the case of Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872, and felt that that case compelled a setting aside of the verdict.
. We find no error. In numerous cases we have said 'that, where a judgment is set aside, the sole issue is whether the trial judge abused his discretion. In Bowman v. Gabel, 243 Ark. 728, 421 S. W. 2d 898, quoting Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851 (this case quoting from Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922), we said:
“ ‘ “ The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused. J) # * # J
“ ‘ * * *Having presided at the trial, and having seen and heard the witnesses testify, they have had the same opportunities as the jury, and hence are vested with the authority to ascertain whether or not the jury’s verdict is in accordance with the preponderance of the evidence, and when they have found upon conflicting evidence that such verdict is, or is not, against the weight of the evidence, such finding will not be set aside unless it is manifest that the court abused its discretion, that is, acted improvidently, arbitrarily, or capriciously in making such finding.’ ”
Certainly, we cannot say that it is here evident that the court “manifestly abused” its discretion. At the outset, let it be stated that there is no allegation of any negligence on the part of the driver of the Williamson vehicle. The driver of this car, observing the law, had stopped at a red light, and was simply waiting for the light to change when struck by appellant’s truck. According to the evidence of Davis, the truck driver, he had been traveling approximately 20 to 25 miles per hour prior to striking the Williamson car. Under the undisputed evidence, this estimate of speed seems somewhat conservative, since the testimony reflected that the Williamson automobile (though stopped) was knocked 119 feet — over a third of the length of a football field. Not only that, but the truck, although Davis, according to his statement, was frantically pulling on the emergency brake, and shifting gears in the truck to try and stop it, traveled approximately 180 feet before being brought to a standstill. Mr. Babb testified that the “whole rear end” was torn out of the automobile. Certainly, a much greater speed is indicated than that testified to by appellant’s driver. There is also evidence that Davis could possibly have avoided this crash by turning his vehicle to the right, though it does appear that he might have struck a telephone pole had this been done.
Appellant states that the trial court interpreted our decision in Houston v. Adams, supra, to require every motor vehicle to be equipped with two separate braking-systems, each independent of the other, and each capable of stopping the vehicle in substantially the same distance, and appellant states that this is an erroneous interpretation. It is argued that Ark. Stat. Ann. § 75-724 (Supp. 1967) only requires that the hand brake he capable of stopping and holding the vehicle. The statute reads as follows i
“75-724. Brakes. — (A) Brake equipment required.
,(.1) Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway shall he equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two [2] separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two [2] wheels. If these two [2] separate means of applying the brakes are connected in any way, they shall be so constructed that failure of any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two [2] wheels.”
We agree that the statute does not require two separate braking systems, each capable of stopping the vehicle in substantially the same distance, nor did Houston v. Adams, supra, so hold. We did, however, in that case, hold that the hand brake must have stopping power, and the statute so requires. In the present case, there were circumstances (herein pointed out.) that the trial court could have found clearly indicated the truck was being operated at a much greater speed than stated by appellant’s driver, or the hand brake had practically no stopping power.
We find no abuse of discretion by the court in setting aside the verdict.
Affirmed.
Appellant did not offer the brake line into evidence.
During the trial, appellant endeavored to show through cross-examination that the automobile was not “knocked” 119 feet, but rather, was “pushed” 119 feet; however, the witnesses who were interrogated as to this point were unable to give a definite answer. The only positive testimony was that the car was knocked for that distance.
Of course, Mrs. Williamson and her daughter both testified that, while they were stopped at the light, there was no traffic meeting them.
This interpretation does not appear in either the order signed by the court, nor in its memorandum opinion, in which the court, ( in finding that the verdict was clearly against the preponderance of the evidence, merely cited Houston v. Adams. | [
-16,
104,
-8,
-116,
26,
32,
26,
58,
81,
-93,
-9,
-45,
-81,
-42,
28,
33,
-9,
125,
-44,
8,
-15,
-77,
19,
-94,
-46,
-13,
-23,
-49,
-79,
-54,
116,
-10,
76,
48,
-54,
13,
-26,
72,
-59,
28,
-50,
2,
121,
-24,
89,
-110,
48,
122,
18,
15,
65,
-114,
-42,
46,
16,
67,
73,
40,
105,
41,
-47,
112,
-114,
7,
125,
22,
-80,
36,
-98,
-95,
88,
30,
-104,
-79,
40,
-8,
114,
-90,
0,
-12,
107,
-101,
8,
-96,
98,
4,
29,
-81,
-51,
-72,
15,
94,
29,
-123,
-84,
49,
9,
1,
-65,
-99,
123,
82,
-99,
124,
-2,
85,
89,
40,
-121,
-53,
-76,
-111,
-49,
-72,
20,
18,
-21,
-121,
50,
115,
-51,
-66,
92,
69,
51,
27,
-61,
-78
] |
Smith, J.
C. H. Hayden, W. T. Lewis, Mrs. M. C. Benton, C. W. Terry and W. H,. Goldman filed separate claims in tHe county court of Greene County for damages arising from an order of tHe county court of that county laying out and establishing a public road over their lands. The county court disallowed the claims, upon the ground that they were barred by the statute of limitations, and an appeal was duly prosecuted by the landowners to the circuit court, where there was a trial (before a jury, and a verdict and judgment in favor of all the claimants, except Goldman.
It appears that the county court on June 6, 1924, made and entered of record an order condemning a public road which runs through the lands of all the claimants. This order was made without notice of any kind, and no action was taken by the county to put the order into effect until January, 1926, when the road was surveyed and laid out in accordance with the order of the county court establishing it. In April, 1926, the landowners filed their respective claims for damages. The oases were consolidated, and tried as a single case in the circuit court, and the landowners asked an instruction to the effect that the statute of limitations against their claims did not begin to run until they had notice that their lands had been condemned by entry thereon to execute the order of condemnation, or until they were otherwise notified that such an order had been made. The 'court refused to give this instruction, but did submit the causes to the jury upon the question of estoppel arising from the conduct of the county judge, except as to the claim of Goldman.
There was testimony on the part of all the claimants, except Goldman, that they had been misled by the county judge as to the order made, this testimony being to the effect that they would be notified by the county judge when the actual survey olf the road would be made and the route of the road located, after which they might present their claims, and would then- be paid such damages as were assessed. % These conversations were had within a year of the date upon which the claims were filed. The court held that no such representations had ¡been made to Goldman, and that he was barred from prosecuting his suit, inasmuch as he had not filed his claim for damages for more than a year after the entry of the order of condemnation. The jury found, under the instructions submitting that question, that the county was estopped, under the representations and. conduct of the county judge, from pleading the statute, of limitations as to the other claimants, and the damages sustained by them were found and assessed by the jury. No complaint is made against the amount of damages thus assessed, but it is insisted, for the reversal of the judgment in favor of those claimants, that their claims were barred because they were not filed within one year from the date of the order of condemnation, and that the court erred in refusing to so instruct the jury. Goldman has appealed from the judgment of the court holding his claim barred.
The county court, in laying out and in ordering the establishment of the road in question, proceeded under the authority of § 5249, C. & M. Digest. This section provides, 'among other things, that the county court shall have power to open new roads and to make changes in old ones, and that, if the owner of the land over which any road is laid out by the court refuses to give a right-of-way, or to agree upon the damages therefor, the owner shall have the right to present his claim to the county court for damages, and, if he is not satisfied with the amount allowed him by the court, a right of appeal to the circuit court is given,- provided, however, that “no claim shall be presented for such damages after twelve months from the date of the order laying out or changing any road; provided, further, that when such order is made and entered of record laying out or changing any road, the county court, or the .judge thereof, shall have the right to enter upon the lands of such owner and' proceed with the construction of such road.” Another proviso relates to the manner of paying the damages, a question not raised or involved on this appeal.
This statute was construed in the case of Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260. It was there contended that the act was void, for the reason that it gave the landowner no notice or opportunity to he heard on the right to take and appropriate his land for a public use, or to' be heard as to the compensation which should be paid him as damages for such taldng. The act was upheld as a valid one fey a divided court.. The majority were of the opinion that the landowner has a right to his day in court on the question of compensation, hut that he had no right to a day in court on the question of the appropriation of the land, unless some statute required that notice be given, and that the statute did not so require.
The majority approved the following statement of the law in Elliott on Eoads & Streets, vol. 1, § 224:
“No better summary of the law on this subject and the state of authorities with reference thereto can be found than that of Mr. Elliott (vol. 1, §, 224) in the following’: ■ ‘The Legislature may decide the question of the necessity of appropriating the land, and need not submit that question to any tribunal. It follows from this that, while the Legislature may submit this question to inferior tribunals and may require notice, they are not bound to provide for notice on this question, although they are bound to provide for notice on- the question of compensation. There is therefore a clear distinction between cases involving the right to compensation and cases where the question of necessity is at issue. The rule which applies to the one class of oases cannot, with reason, be applied to the other. Losing sight of this distinction, some of the courts in their reasoning have become confused, and have erroneously intimated that, as notice is not necessary in the one cías» of cases, it is not in the other. It is, however, held in most of the cases which'have given the subject careful consideration that a statute will ibe valid which determines- without any intervention the question of the necessity for the appropriation, or submits it, without providing for notice, to an inferior tribunal, but that a statute which undertakes to determine the question of compensation or to submit it to commissioners or appraisers, without providing for notice, is unconstitutional.’ ”
It thus appears that a statute may be constitutional which contains no provision for notice to the landowner as to the necessity for taking his land, and that the land may be taken for a public use without notice, but a statute would not be constitutional after thus taking the land if no provision were made for notice to the landowner in the matter of fixing the compensation.
The opinion in the case quoted from expressly recognizes the necessity for notice of the hearing when the compensation is fixed, but declares that the statute meets this constitutional requirement. Upon this question it was there said:
“The statute under consideration meets every constitutional requirement. It authorizes the county court to determine without notice the necessity for taking lands for public use, but contains ample provisions concerning notice and hearing upon the question of compensation, or damage, which mean the same thing in that connection. There is no provision for formal notice, but the order itself and the taking of the property thereunder are in the very nature of things acts of such publicity ias to constitute notice, and the property owner is given twelve months within which to apply to the county court for an allowance of compensation, and the hearing is then given on that question. ’ ’
In other words, it was there held that, while the property owner must have notice in order that he may have the opportunity to present, and to be heard in support of his claim for damages, the order of condemnation and the taking of the property thereunder furnishes this notice, although formal notice was not given.
Here the undisputed evidence shows that the order of condemnation was entered in June, 1924, and that the county remained quiescent until January, 1926, at which time the route of the road as described in the order of condemnation was surveyed, but more than a year had then expired since the making and entry of the order of condemnation.
The law does not permit a proceeding of this character to deprive the property owner of his day in court. If it did, the property owner would be deprived of his right to be heard upon the question of compensation, and there is no question, under the Sloan case, supra,, about the existence of this right. No legislation can deprive the landowner of this right. Tet, in practical effect, these landowners have been deprived of that right. Their causes of action were barred under the contention of the county before they were advised that it had accrued.
The order of the county court did not recite the names of the owners of the land over which the road run, and nothing was there said about compensating these owners for their damage. It was not essential that, this should be done, under the case of Sloan v. Lawrence County, supra, to make a valid order; but, upon the authority of the same case, it was necessary and essential that these landowners have the opportunity to present their claims for damage and to be heard in support thereof. Formal notice might have been given, but this was not done, and was not necessary; but, in the absence of f ormal notice, the landowners were not charged with notice of the order oif the court condemning their property until the county, in some way, took the property thereunder. This taking of the property under the court order was the notice which the court said, in the Sloan ease, supra, saved the act from being declared unconstitutional by failing’ to provide notice to the property owner that his land had been taken. The constitutional requirement of notice, whereby the property owner might be heard on the question of damages, was met in that ease because, as was there said, the taking of the. property under the order was itself notice. But if this taking was sufficient notice —and the court held that it was — there was no notice in this manner until there was a taking of the property under the order of condemnation.
It follows therefore that the causes of action were not barred, as the statute did not begin to run against the landowners until they had notice of the order of condemnation by the taking of their land by the entry thereon by the surveyor, and the claims were all properly filed within a year of that time.
As no complaint is made against the amount of damages assessed, the judgments in favor of the landowners who recovered judgments will be 'affirmed; and the judgment dismissing the claim of Goldman will be reversed, with directions to assess any damages he may have sustained. | [
-16,
104,
-4,
94,
-86,
96,
58,
-104,
64,
-95,
-96,
83,
-17,
66,
12,
113,
-93,
61,
84,
107,
-28,
-93,
23,
-121,
-14,
-13,
-37,
-59,
59,
-51,
-27,
-41,
76,
32,
74,
-99,
-58,
-32,
-51,
92,
-50,
2,
-101,
108,
-39,
96,
48,
47,
82,
-49,
117,
15,
-14,
44,
-67,
-61,
40,
44,
-53,
42,
65,
-72,
-65,
76,
111,
6,
-95,
102,
-98,
-125,
-56,
11,
-104,
53,
-96,
-24,
119,
-74,
-106,
117,
5,
-103,
8,
34,
102,
11,
77,
-17,
-24,
-104,
14,
-14,
-117,
-89,
-112,
72,
-53,
2,
-66,
-97,
92,
80,
103,
126,
-20,
5,
93,
104,
3,
-113,
-46,
-79,
-49,
112,
-120,
5,
-21,
11,
52,
114,
-49,
-6,
92,
71,
113,
27,
15,
-79
] |
Hart, C. J.,
(after stating the facts). The ruling of the .circuit court was wrong. Under the agreed statement of facts the defendant was operating a motor vehicle under the provisions of act 99 of the Legislature of 1927, placing commercial motor transportation under the Arkansas Railroad Commission in. certain cases. Acts of 1927, p. 257. The defendant operated a motor vehicle between the city of Jonesboro and the town of Nettleton. It was operated over a fixed route, and had fixed termini. It did not 'make any difference that most of the money made by the carrier was in transporting passengers within the city of Jonesboro and to various places along the line in the country. He had complied with the terms of the statute, and the Arkansas Railroad Commission had granted him a permit to operate a motor vehicle between the city of Jonesboro and the town of Nettleton.. He had a right to receive passengers at stations along the line of his route, or to accept and receive passengers and discharge them on signal. This is the business carried on by him, and he was subject to regulation under the act in question, and was not subject to regulation by the city of Jonesboro as a person or company operating taxicabs within the city limits, as defined in the case of State of Arkansas v. Haynes, ante p. 645, this day decided.
It follows. that the judgment of the circuit court should be reversed, and, .inasmuch as the case was tried upon an agreed statement of facts, the prosecution will be dismissed here. It is so ordered. | [
52,
-22,
-12,
-66,
122,
-64,
18,
-104,
83,
-93,
103,
-13,
-81,
-55,
1,
57,
-89,
127,
-15,
41,
-43,
-73,
71,
35,
-46,
-41,
91,
-57,
-73,
-55,
108,
-60,
76,
48,
-54,
-43,
100,
72,
-59,
88,
-50,
32,
-87,
104,
88,
75,
52,
105,
86,
79,
113,
-113,
-45,
42,
24,
-61,
-19,
46,
107,
-95,
-55,
112,
78,
71,
79,
6,
49,
36,
-103,
1,
88,
40,
-112,
49,
40,
-36,
-13,
-92,
-124,
-44,
109,
-39,
8,
34,
99,
33,
29,
-49,
-68,
-120,
6,
-6,
-81,
-89,
-110,
25,
75,
5,
-105,
21,
90,
22,
14,
-2,
-6,
-59,
-37,
100,
3,
-114,
-76,
-95,
-27,
-91,
-106,
33,
-53,
-59,
16,
116,
-50,
-14,
93,
5,
22,
-101,
-106,
-108
] |
Lyle Brown, Justice.
P. C. and Eva Minor sued Jimmie and Maxine Holt to recover judgment on a note in the principal sum of $1400. The defendants countered with an allegation of usury. The jury awarded Mr. and Mrs. Minor judgment for $1400 and the Holts appeal. Six points are raised for reversal. We shall treat only the issue of usury because that issue resolves the lawsuit.
We summarize the essential facts in the light most favorable to the lenders. P. C. Minor had charge of a house in Springdale owned by Mrs. Ryan. She gave Minor the authority to rent the house and generally look after it until it might be sold. Minor obtained as tenants these appellants, Jimmie and Maxine Holt. The tenants became interested in buying the property. In negotiating with Mrs. Ryan they reached an agreement that she would accept $1400 for her equity. The Holts were unable to raise the money through regular credit channels. Minor agreed to advance the $1400. Minor borrowed $1400 from the First State Bank of Springdale and executed his note, due in 360 days, and bearing interest at the rate of six per cent per annum.
On the same day Jimmie and Maxine Holt executed two notes in favor of P. C. and Eva Minor. One of the notes was for $1400. Minor gave Holt a check for that amount. Mrs. Minor testified that although that note called for ten per cent interest, the Minors had no intention of collecting interest unless the note became delinquent. The other note was for the principal sum of $220 (it is apparently conceded that the note should have been for $224). Mr. Minor testified that the amount of that note was arrived at in this manner: he charged $140 for his services in raising the needed funds; and the balance of $84 was added to cover the interest that Minor would be obliged to pay on his note at the First State Bank of Springdale. Holt liquidated the smaller note by direct payments to Minor.
Accepting the recited testimony of the Minors at face value, it is readily perceived that the Holt-to-Minor loan called for a charge well in excess of ten per cent per annum. We hasten to point out that P. C. Minor was clearly a lender, as opposed to an agent of the Holts. He cannot be classified as one employed by the Holts to negotiate a loan for them. It was his proposal to lend them the money and take as security for that loan two notes made payable to P. C. or Eva Minor. The manner in which he chose to obtain the funds was of no particular concern to the borrowers. In fact, it was not necessary that he borrow the money from the bank; the Minors owned a certificate of deposit in the principal amount of $4300. Instead of cashing that certificate, Minor used it as collateral to borrow the $1400. In that manner his certificate continued to draw interest and the Holts were supplying the money to pay the interest on the capital Minor used to make his loan to the Holts.
The situation here is not unlike the practice condemned by our court in Smith v. Eason, 223 Ark. 747, 268 S. W. 2d 389 (1954). There the lender, Smith, withheld from the loan funds $42 which he incurred in borrowing the money to be advanced to Eason. This court said those expenses were obviously not for the benefit of Eason and therefore were not legitimate charges.
It is common knowledge that most lending institutions operate on borrowed capital, or on money on deposit which draws interest. If such an institution charged one of its borrowers four per cent which the money cost the institution and added seven per cent for itself, usury would certainly have to be conceded. That is the very practice which Minor invoked. He charged the Holts ten per cent ($140) on his loan to the Holts, and added six per cent ($84) to cover his cost of raising the capital.
Reversed and dismissed. | [
112,
108,
-112,
-66,
10,
96,
42,
-102,
3,
-31,
-89,
-13,
-21,
-25,
20,
109,
-26,
-71,
85,
106,
1,
-77,
23,
99,
-14,
-77,
-7,
-43,
-80,
109,
-20,
-43,
12,
52,
74,
21,
102,
-118,
-27,
20,
14,
-115,
40,
102,
-7,
66,
52,
123,
64,
13,
49,
-115,
-77,
45,
61,
74,
105,
40,
73,
57,
-48,
-16,
-118,
-123,
93,
19,
-112,
85,
-100,
70,
-22,
12,
-104,
49,
1,
-24,
114,
-74,
-122,
84,
7,
-101,
13,
102,
102,
-96,
-91,
-17,
-4,
-56,
47,
-2,
-123,
-121,
-78,
104,
3,
104,
-65,
-97,
120,
85,
54,
-6,
-57,
-107,
29,
108,
5,
-49,
86,
-93,
-115,
114,
-98,
11,
-17,
-105,
48,
113,
-50,
32,
92,
70,
58,
-71,
-114,
-69
] |
George Rose Smith, Justice.
This is an action for personal injuries and property damage brought by the appellee, a retired army colonel. At about midday on January 14, 1966, on a highway in Crittenden county, Colonel Hampton met a tractor-trailer rig being driven by the defendant Swenson for .his employer, the defendant Monroe. As the two vehicles approached each other a large inflated spare tire fell from the trailer and struck the plaintiff’s radiator with great force, inflicting the injuries complained of. In the court below the defendants filed a general denial but offered no proof, so that the principal issue for the jury was that of damages. This appeal is from a $7,800 verdict and judgment for the plaintiff. We need discuss only two of the points for reversal.
First, it is insisted that the court erred in allowing Dr. Gray, for thirteen years a general practitioner, to testify that in his opinion the accident could have caused the neck and shoulder pains that Hampton was still complaining of at the time of trial. Dr. Gray had testified that when his patient’s shoulder pain continued be yond a normal healing period lie referred the patient to a nerve specialist. “I felt that he needed some special examination, some neurological examination that I don’t make.” The appellants rely upon the sentence just quoted as a basis for their insistence that Dr. Gray was not qualified to testify that the accident could have caused the pains.
We think the court was right in admitting Dr. Gray’s testimony. A general practitioner often refers his patients to specialists, as for the removal of an appendix or for the treatment of a skin disease. That does not mean, however, that the G. P. is not qualified to discuss his patients’ ailments. To the contrary, as we held in Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309, 246 S. W. 6 (1922), his expert opinion is admissible, subject to the jury’s determination of its proper weight.
Secondly, the appellants argue that there was no substantial evidence to justify the court in submitting to the jury, as elements of damage, the permanency of the plaintiff’s injuries and his loss of earnings. With respect to permanency, Dr. Gray’s statement that Hampton had suffered a 10 percent disability to the body as a whole sufficiently supported the instruction.
The serious question is whether the plaintiff adduced adequate proof of earnings lost between the date of the accident and the date of the trial. He made no showing of his earnings in the military service, his earnings in any civilian pursuit, or his training or fitness for any particular occupation. No other witness, such as an employment counselor, was called to testify. See Woods, Earnings and Earning Capacity as Elements of [Damage] In Personal Injury Litigation, 18 Ark. L. Rev. 304, 318 (1965).
We have only Colonel Hampton’s testimony on the point. The day of the accident was also his first day as an employee of a collection agency, on a commission basis. He had no record of past earnings in that job and made no effort to show what others' were earning in a similar occupation. On direct examination he agreed with his attorney’s statement that he was “on commission” with a $400 monthly drawing account. Most of his pertinent testimony was educed on cross examination, as follows:
Q. You were to draw four hundred dollars a month in commissions?
A. Yes, sir.
Q. How was that to be drawn?
A. I had a certain schedule. They said they would pay me so much draw. I had so much draw, and if my commissions exceeded two hundred and fifty dollars I would have so much put in what they might call a sinking fund. Then if my commissions didn’t equal as much as one hundred and twenty-five dollars a week I could draw out of this fund, hut at the end it was paid on a percentage basis, rotation basis. I might agree with you that I wouldn’t push you or I would give you time to pay the account. You would give me some settlement or a note or something, and that money would go in to the company. It all went in to them. That was the agreement when I signed up. It was contingent on the way I would draw my commission. If I worked I made it, and if I didn’t I didn’t make it.
Q. You had to pay your own expenses?
A. No, sir, unless I earned less than my commissions.
Absent proof of commissions actually earned in the past, Hampton’s burden was that of producing sufficient evidence to enable the jury to determine what he would have earned had he not been hurt. Such a reconstruction of what would have happened is similar to a plaintiff’s effort to prove the value of earnings to be lost in the future. There the rule is that the loss must be shown with reasonable certainty. AMI 2206; Check v. Meredith, 243 Ark. 498, 420 S. W. 2d 866 (1967); see also McCord v. Bailey, 195 Ark. 862, 114 S. W. 2d 840 (1938). A similar standard is fairly applicable here.
We are forced to conclude that the plaintiff failed to sustain his burden of proof. Hampton’s testimony about the sinking fund and about his minimum weekly quota was really of no assistance to the jury. The only facts known to the jury were that the colonel was employed as a collection agent, on a commission, with a $400 monthly drawing account. Presumably at least part of the drawing account was intended to be used for the payment of expenses, which were not charged to Hampton “unless I earned less than my commissions” (whatever that statement may be taken to mean). There is no definite indication of what Hampton’s expenses would have been. He merely said, in describing his disability, that the job required “considerable driving.” That he was hurt in Crittenden county, at some distance from his home in Marianna, suggests that his assigned territory was extensive.'
Not only was the proof of expenses vague. The jury was given no indication of the total collections that Hampton might expect to make for his employer or of what his commission would be. Upon the record as a whole the jury had no basis, except guesswork, for estimating Hampton’s lost earnings. Such a verdict cannot be allowed to stand.
When the only error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. St. Louis, I. M. & S. Ry. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). Such a remittitur is fixed by the highest estimate of the element of damage affected by the error. Surridge v. Ellis, 117 Ark. 223, 174 S. W. 537 (1915). Here that maximum would be earnings of $400 a month for thirteen and three-quarter months, or a total of $5,500. If by any chance the appellee wishes to remit that amount within seventeen days, the rest of the judgment will be affirmed. Otherwise the canse must he remanded for a new trial.
Harris, C. J., AND JoNes, J., dissent. | [
-16,
-8,
-4,
-116,
10,
96,
34,
10,
80,
-95,
55,
83,
-17,
72,
13,
111,
-26,
15,
69,
47,
-9,
-77,
23,
112,
-46,
-77,
-21,
-57,
-83,
-54,
-92,
-43,
77,
48,
74,
-43,
-26,
-118,
-59,
92,
-50,
-124,
-88,
-19,
88,
-80,
120,
111,
-44,
79,
17,
-97,
-21,
46,
28,
71,
41,
42,
75,
40,
-48,
-95,
-128,
12,
-1,
0,
48,
6,
-98,
35,
88,
62,
-104,
49,
8,
-8,
50,
-74,
-126,
84,
107,
-103,
12,
114,
103,
49,
41,
-27,
72,
-72,
-114,
62,
-113,
-121,
-102,
49,
-40,
43,
-66,
-99,
122,
112,
20,
110,
-22,
93,
88,
104,
11,
-113,
-106,
-79,
-59,
96,
-102,
18,
-1,
3,
52,
115,
-51,
-6,
85,
69,
123,
-101,
-61,
-78
] |
Humrhrevs, J.
This is an appeal from the decree rendered in the chancery court of Pirairie County in favor of appellees for three-fourths of the rents for the year 1925 on a large plantation, upon an intervention of said appellees in a suit of foreclosuire brought in said court by appellants on a second mortgage upon said lands, which mortgage was owned by them.
According to the statement and abstract of appellants, they filed a foreclosure suit on the 8th day of June, 1925, and obtained a decree of foreclosure in the month of July following. They requested the appointment of a receiver to take charge of the lands and collect the rents at the time they instituted the suit,- but did not secure his appointment until 'September '29, and he did not qualify until September 30 following. The record reflects that, according to- the undisputed evidence, a part of the $10,000 Mrs. A. J. Elder, one of the appellees, agreed to advance in consideration of an assignment of the rent contract, was an agreement or obligation on her part to pay $5,000 to lawyers in Memphis and $1,000 to Daggett & Daggett; that her son, one of the mortgagors, owed them for services rendered and to be rendered. This obligation was incurred prior to the institution of the foreclosure suit, and, pursuant to the agreement, she paid the attorneys in Memphis $2,500 before the receiver was appointed and qualified.
On February 7, 1925, A- M. White leased 900 acres of the land from the owners thereof, who were the mortgagors in appellant’s mortgage, for the year 1925. On April 23, 1925, said mortgagors assigned to Mrs. A. J. Elder, the mother of one of the mortgagors, and her co-appellees, the rent contract in consideration of an agreement on her part to advance the said mortgagors the sum of $10,000, and a consideration on the part of her co-appellees to accept the assignment as part compensation for legal services theretofore and to be thereafter performed. The rent contract was “one-fourth of the cotton, or the proceeds thereof when marketed, ’ ’ and “one-fourth of the cotton seed, or the proceeds thereof when sold.” Neither the first nor the second mortgage covered the rents upon the land. At the foreclosure sale the equity in the land brought $100,000', leaving a deficiency judgment of over $15,000 against the mortgagors ; and, in order to collect the deficiency judgment, a sequestration of the rents was attempted under receivership proceedings, according to § 8612 of Crawford & Moses’ Digest.
Appellants first contend for a reversal o,f the decree on the ground that the rents were not payable in money, and could not therefore be apportioned according to the time mortgagors remained in possession of-the land. We see no difficulty in apportioning the rents because not payable in kind. One-fourth of the cotton raised on the place could be divided as easily as money. The receiver obtained possession of the premises on September 30, 1925, and retained possession thereof for three months, October, November and December, or one-fourth of the year 1925. . The mortgagors retained possession thereof by tenants for nine months, or three-fourths of the year. This is the proportion adopted by the trial court in dividing rents. He adjudged three-fourths of the rent cotton to the interveners and one-fourth to appellants, according to the time that each had possession and control of the property. The division was made according to the rule announced by this court in the case of Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634, las follows:
“Where a foreclosure decree appointed a receiver and directed him to rent the land to a lessee who had given rent notes to -the mortgiagor, but the receiver did not qualify or interfere with the lessee’s possession until after the land had been sold, there was. no sequestration of the rents until the receiver qualified, and the holder of the rent notes was entitled to the rent up to that time. ’’ See also Wofford v. Young, 173 Ark. 802, 293 S. W. 725.
Appellants next contend for a reversal of the decree upon the alleged ground that the rents had not matured on September 30, the day the receiver was, appointed, upon the assumption that they would not mature until marketed.
We do not think appellants’ interpretation of the rental contract is in accordance with the intention of the parties. The correct construction of the language quoted above from the rental contract is that the lessors should have one-fourth of the cotton raised upon the place as rent, but, in case of a sale, thereof while being gathered, the lessors should receive one-fourth of the proceeds. This interpretation is reflected 'by subsequent language used in the contract as follows - ‘ ‘ The intent of the parties being, the lessors shall have one-fourth of all cotton raised on the entire place.” The rent was necessarily for the use of the place for the entire year and not for any particular month in the year or for .rent during the harvesting period.
Appellants’ next and last contention for a reversal of the decree is that Mrs. Elder was not a bona fide purchaser of the rent contract for value. We do not agree with them in this position. She agreed to pay $10,000 for the rent contract, and assumed and agreed to pay $6,000 of that to attorneys who had been- employed by her son, one of the mortgagors, and actually paid the Memphis firm of lawyers $2,500, which she borrowed from the bank for that purpose.
The assignment of the rent contract was in no sense a voluntary assignment.
No error appearing, the decree is affirmed. | [
-16,
108,
-72,
-116,
-118,
96,
8,
-72,
-38,
33,
54,
87,
-7,
70,
16,
109,
-27,
125,
117,
105,
5,
-77,
0,
32,
81,
-13,
-63,
-43,
57,
76,
-28,
-41,
72,
48,
66,
-107,
-26,
-32,
-61,
-40,
14,
-127,
-51,
100,
-39,
66,
48,
-5,
80,
13,
21,
-84,
-13,
45,
53,
107,
72,
44,
-39,
57,
-48,
-8,
-114,
4,
-1,
7,
-111,
100,
-102,
-127,
72,
106,
-112,
53,
0,
-24,
115,
54,
-106,
116,
11,
27,
13,
102,
102,
50,
-31,
-17,
-40,
-104,
7,
-2,
-113,
-90,
-62,
88,
2,
104,
-66,
-99,
108,
84,
71,
-4,
-26,
-115,
29,
104,
7,
-50,
-44,
-105,
13,
-112,
-102,
27,
-29,
71,
52,
113,
-51,
-30,
93,
71,
51,
27,
-114,
-110
] |
McHaney, J.
Appellant, was convicted for manufacturing liquor, and sentenced to one year in the penitentiary. Appellant was a witness in his own behalf, and, on cross-examination, he was asked if he remembered being down at Hattabaugh’s place with a fruit jar of liquor and a gun, at which time he was about to get into a fight with the Hattabaughs, and he denied being there with liquor, or that he had any gun, or any trouble with the Hattabaughs. Upon objection, the court held that the witness could answer whether he had any liquor there.
This testimony was competent, as affecting'the credibility of the witness. In the recent case of Jim Bowlin v. State, 175 Ark. 1115, 1 S. W. (2d) 533, where the assignment of error was that the court had erred in permitting the prosecuting attorney to ask the appellant, on cross-examination, if he was the same Jim Bowlin that had been sent to the penitentiary from Newton County for cutting a preacher up, and also what he was convicted of, and why he had served a jail sentence at Dardanelle about a year before, we there said: “Appellant was a witness in his own behalf, and the above questions were asked on cross-examination, and it is well settled in this court that the defendant may be asked on cross-examination about other crimes committed by him, whether he has been in jail, the penitentiary, or any other place that would tend to impair his credibility”; and we there quoted from the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, as follows: “It has always 'been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be ásked concerning* all antecedents which are really significant, and which -will explain his credibility.” See also Whittaker v. State, 171 Ark. 762, 286 S. W. 937.
The cases cited by appellant, to the effect that a witness may not be asked concerning mere accusations of other crimes, are not in point here. Here the witness was asked concerning* a fact peculiarly within his knowledge, that is, whether he had had a fruit jar with liquor in it at a certain place, and brandished a gun. There was no error in permitting this cross-examination.
After the conclusion of the appellant’s -testimony, the State called Henry Lollar as a witness in rebuttal, who contradicted appellant regarding* the fruit jar with liquor in it, and the brandishing of a gun in connection with the Hattabaughs, and appellant contends that the questions asked Earle Shackleford were on collateral matters, and that the admission of Henry Lollar’s testimony in contradiction thereof was erroneous and prejudicial. A sufficient answer to this assignment is that no objection was made to the admission of the testimony of Henry Lollar, who was fully cross-examined by counsel for appellant, both with regard to the liquor and the brandishing of a pistol.
At the conclusion of this witness’ testimony, counsel for appellant moved the court to exclude the testimony of the witness, Henry Lollar, which was overruled by-the court, and he excepted. This court has many times held that, where no objection is made to the testimony at the time it is offered, a motion to exclude cannot be insisted upon -as a matter of right, but addresses itself to the discretion of the court. See Middleton v. State. 162 Ark. 530, 258 S. W. 995, where the court said: “A defendant is not permitted to sit by and allow testimony to be developed against him and then,; as a matter of right, have it withdrawn from the jury. The exclusion of the testimony, after it had been offered, was a matter in the discretion of the court, and it does not appear to us that the court abused its discretion in this regard.”
So here appellant not only sat by and permitted Henry Dollar’s testimony to be developed by the State without objection, but he cross-examined him at length, and we cannot say that the court abused its discretion in not excluding the testimony, on motion of the appellant. Stone v. State, 162 Ark. 154, 258 S. W. 116; Stevens v. State, 143 Ark. 618, 221 S. W. 186; Farris v. State, 133 Ark. 599, 203 S. W. 4; Warren v. State, 103 Ark. 166, 146 S. W. 477, Ann. Cas. 1914B, 698.
The next error assigned by counsel is, “because the jury brought in its verdict at about 10 o’clock at night, and turned the same into the court in the absence of the defendant and his attorney, and the court discharged the jury in the absence of the defendant and his attorney, and, so far as he knows, without making any effort to locate him or his attorney; and that said verdict was read to him by the court, on the next day, after the jury was discharged.” These allegations of fact on this assignment do not appear in the record. There is nothing to support this assignment in the record, except that the error is assigned in the motion for a new trial and the affidavit of counsel for appellant, filed with the record in this case. It does not appear in the bill of exceptions. These matters should have been set out in the bill of exceptions, and if the court refused to sign the bill of exceptions as prepared, appellant could have then established his assignment and incorporated it in the bill by bystanders, as provided by § 1322, O. & M. Digest, or have proved same on his motion for a new trial, if counsel for the State would not stipulate with him. as to the bill. This assignment of error in the motion for a new trial, being supported only by the affidavit of counsel for appellant, is not sufficient to contradict the record, which appears regular on its face, and we therefore overrule this contention.
It is .finally insisted that the verdict is not supported by sufficient testimony; in other words, that there is no substantial testimony in tlie record tending to show appellant’s guilt. We have examined the testimony carefully. Appellant was found at the still, and the witnesses testified that they saw him and another, jointly indicted with him, carrying water to the still, and performing other duties about the still, which was in operation at the time of their arrest. Without setting the testimony out in full, or going into the matter further, there was sufficient testimony to support the verdict, and the judgment is accordingly affirmed. | [
48,
-22,
-19,
-99,
42,
64,
42,
28,
-64,
-93,
-10,
114,
-23,
86,
5,
107,
-6,
123,
85,
121,
-28,
-106,
35,
65,
-94,
-6,
-103,
87,
53,
-53,
-27,
-36,
77,
56,
-118,
85,
-30,
-54,
-25,
90,
-114,
29,
-70,
-54,
-22,
-128,
32,
99,
18,
15,
113,
-106,
-93,
42,
24,
-50,
73,
40,
79,
29,
112,
49,
-104,
-115,
79,
36,
-77,
38,
-98,
5,
-16,
62,
-40,
21,
1,
-24,
115,
-122,
-128,
-28,
75,
-99,
-84,
102,
-29,
-80,
13,
-25,
41,
-3,
47,
47,
-99,
-89,
-104,
65,
75,
108,
-97,
-43,
106,
112,
-121,
-36,
-28,
20,
-36,
104,
43,
-113,
-74,
-79,
77,
20,
-46,
-110,
-53,
35,
4,
81,
-51,
-18,
84,
101,
114,
-103,
-114,
-44
] |
Kirby, J.
■ This suit by the taxpayers, residents in the annex to the original sewer district to the city of Fayetteville, challenges the validity of said annex, claiming it is, in effect, two separate improvements, because of the inclusion of two entirely separate and distinct tracts of land in one improvement and because of the excessive assessment of benefits in the annex, exceeding in proportion those authorized in the original sewer district. It is conceded that the district otherwise was duly organized and the assessment of benefits legally made.
It appears that the original Sewer District No. 1 of the city of Fayetteville included the entire area of the city at that time, and was organized in 1906, and the improvements had long since been completed before the organization of this annex. That the territory in the annex No. 1 to said sewer district includes two eig'htyacre tracts of land adjoining the north line of the orig-’ inal sewer district, which have been divided into lots and blocks, both being within the city limits, but which tracts are separated by a forty-acre tract of land between them, also adjoining the north line of the sewer distinct, but outside the city limits.
• The. testimony shows that the improvement was constructed and completed before the institution of this suit, the sewer mains in the eastern tract being built down into and connecting with the main in the original district, the sevyage being carried through the. old district, through its mains, into the mains in the western tract of the annex and on into the. septic tank constructed for the original district.
. It is true our statutes contemplate the organization of districts to construct improvements which constitute single projects, and wholly disconnected improvements cannot be joined together in one district, as said in Cooper v. Hogan, 163 Ark. 312, 260 S. W. 25. It was- also said there:
“However, this court laid down the rule, many years ago, that 'the action of a city council in including property in an improvement district is, except when attacked for fraud or demonstrable mistake, conclusive of the fact that such property is “adjoining the locality to be affected” by the improvement, Avithin the meaning of the Oonstitxition’.” Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198. “This rule necessarily implies that the determination of the city council as to the singleness and unity of the project, as Avell as the selection of the property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake.”
It cannot be said here that this improvement Avas more than a single project, nor that the property Avithin either tract of the annexed territory Avas not benefited by such improvement, notwithstanding the fact that the two tracts of land Avere separated by the forty-acre tract between them. The purpose, evidently, in malring an annex to the district was to benefit the said property by connecting it xvith the mains of the old district and furnishing a complete sewerage system to the entire property included, and the city council having determined the singleness and unity of the project, as also the selection of the property to be benefited thereby, its action is conclusive. Cooper v. Hogan, supra, and cases cited.
It is next urged that the district annex is invalid because the assessment of benefits in the territory annexed is illegal, exceeding in proportion those authorized by law and levied in the original seAver district.
In Pledger v. Soltz, 169 Ark. 1125, 278 S. W. 50, this court construed the statute relating to this question, saying’: _ _ _
_ _ _ “While it is unnecessary for the petition for annexalion to specify the limitation upon the cost, we interpret Ihe statute itself to mean that the cost of the additional improA’-ement shall be limited to the proportionate cost of the original improxmment. This limitation is expressed in the statute itself, and need not be expressed in the petition of. the property OAvners. The statute (0. & M. Dig., § 5733) provides that the assessments on the annexed territory shall be made ‘on the same basis as if said territory was included in the original district.’ This means that the proportionate cost shall be the same 'as in the original district; that is to say, the cost of improvements shall be in the same proportion to the assessed valuation as the cost of the improvement in the original district is to the assessed valuation of the property in that district. Otherwise the assessments on the annexed territory would not be ‘ on the same basis as if said territory was included in the original district’. * * * It becomes the duty of the commissioners, under the law, to ascertain the proportionate cost of the original improvement and to limit the cost of the new improvement to the same proportion, not exceeding the same proportion to the county assessment of the property in the annexed territory for the year next preceding the formation of the original district. * * All that the annexation statute requires is that the new assessment of benefits on the added territory must be made on the same basis as the assessments in the original territory, and this is fully accomplished by limiting the cost of the new improvement in the same proportion to the assessed value of the new territory to be added, the same as the proportionate cost of the original improvement to the property in the original district.”
In Little Rock v. Boullioun, the latest expression of this court of the subject, it was said:'
“This court decided in Pledger v. Soltz, 169 Ark. 1125, 278 S. W. 50, that the percentage of the cost of the added improvement must be the same as that of the original district, otherwise the assessments would not be on the same basis as required by the.statute. Now, it is seen that this statute governing annexation, as interpreted by the court in the case just referred to, limits the maximum cost of the improvement, and of course that limit cannot be exceeded.” Little Rock v. Boullioun, 171 Ark. 245, 284 S. W. 745.
This proceeding was begun long after the expiration of the 'time allowed by law for questioning the reasonableness and legality of the assessment of benefits, the maximum cost of the improvement considered, and amounts to a collateral attack upon such assessments, which cannot be maintained unless it is shown to be void on the face of the proceedings, which has not been done. Bd. of Imp. v. Pollard, 98 Ark. 543, 136 S. W. 957; Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168, 213 S. W. 773; Taylor v. Bd. of Commrs., 156 Ark. 226, 245 S. W. 491. The complainants not only waited until after the expiration of the time allowed by law for attacking-the assessment of benefit's directly, but for more than a year thereafter, and until after the sale of the bonds and the completion of the improvement, and, having done so, they are now without standing in a court of equity to attack its validity or to demand the relief prayed.
We find no prejudicial error in the record, and the judgment is affirmed. | [
-12,
110,
-36,
110,
-56,
-128,
16,
-92,
83,
-87,
101,
123,
-17,
-37,
9,
97,
-13,
125,
84,
27,
-26,
-73,
66,
66,
-38,
-13,
-5,
87,
-72,
77,
-12,
-33,
76,
37,
-55,
-35,
102,
98,
-49,
-34,
-30,
6,
-117,
73,
-35,
64,
36,
98,
98,
79,
117,
76,
-77,
45,
16,
-61,
72,
44,
-51,
46,
82,
-5,
-114,
-115,
95,
6,
33,
-58,
-111,
-125,
-6,
10,
-112,
113,
-128,
-88,
115,
-90,
-122,
119,
7,
-101,
-116,
98,
98,
2,
-91,
-17,
-72,
-116,
6,
-98,
-81,
-92,
-109,
57,
75,
-119,
-75,
21,
124,
86,
-121,
-2,
-12,
-123,
91,
108,
-83,
-122,
-108,
-95,
-49,
-96,
-128,
1,
-17,
35,
48,
113,
-51,
-26,
95,
71,
18,
-37,
-105,
-40
] |
Bruce H. Shaw, Special Justice.
In this appeal appellants seek to void a promissory note on the ground of usury. The Chancellor entered a judgment on the promissory note against appellants in the sum of $5,-941.00 with interest at the rate of 10% per annum from the date of the judgment until paid.
The pertinent facts as disclosed in the transcript are not disputed. On March 6, 1963, appellants, James Harris and his wife, Elsie Lee Harris, entered into a construction contract with Joe Lee Homes, Inc. for the construction of a shell home. The construction contract provided that the appellants would pay $10.00 in cash on signing the construction contract, receipt of which was acknowledged, and a balance of $5,825.00 payable in monthly installments of $69.61 each, beginning May 1, 1963. The construction contract also provided that the appellants would execute a promissory note and deed of trust.
The promissory note and deed of trust were also executed March 6, 1963. The note and deed of trust provided for an indebtedness of $5,825.00 with interest from the date of execution until' paid at the rate of 10% per annum, payable in 144 consecutive monthly installments ■of $69.61, the first installment due May 1, 1963. The note provided that in the event of default for a period of one month or more the entire principal indebtedness with accrued interest at the option of the holder would become due and payable. It also provided for payment of attorney’s fees and cost of collection together with other provisions not material to the issues in this appeal. The promissory note and deed of trust was assigned by Joe Lee Homes, Inc. to appellant, Guaranty Financial Corporation. Appellants defaulted on the installment due August 1, 1965, and the principal balance due at that time was $5,216.36.
Appellants contend that the note was usurious for the reasons that:
(1) A 5% late charge was assessed on the monthly payments after default.
(2) That interest computed on a daily basis rendered the transaction usurious because of an improper credit of the escrow account.
(3) That a $50.00 charge for title work was improper and should be charged to interest.
(4) That the $10.00 cash down payment called for by the construction contract rendered the transaction usurious.
Appellee denies that the inclusion of any of the -items mentioned rendered the transaction usurious.
After appellants’ default on the August 1, 1965, payment, appellee, in its subsequent collection letter, assessed a charge for delinquency of an additional $3.83. The appellants contend this late charge should be included as interest to test the transaction for usury. In Carney v. Matthewson, 86 Ark. 25, 109 S. W. 1024, a promissory note with an interest rate at 10% per annum provided that if the interest was not paid annually it would become a part of the principal and thereafter bear interest as principal. The Court held that the late charge provided in the instrument after delinquency was a penalty and did not render the transaction usurious. In Phipps-Reynolds Co. v. McIlroy Bank & Trust Company, 197 Ark. 621, 124 S. W. 2d 222, the Court held that the lender, in considering delinquent interest to be part of the principal and to also bear interest, did not thereby render a transaction usurious. The late charge in the instant action was not agreed upon between the parties to the note and construction contract. The attempt to collect the $3.83 in the collection letter which is in the nature of a penalty for delinquency does not render the transaction usurious.
After default appellee computed interest from August 1, 1965, until February 1, 1966, as $304.22. This interest computation, which is $1.43 daily, appellants contend renders the transaction usurious if the balance in the escrow account of $60.85 is credited against the unpaid principal of $5,216.36, thereby reducing it to $5,-155.51. It is not disputed that the escrow account was properly maintained. Suffice it to say that any credit of the balance in the escrow account would be applied first to interest and then to principal. To test a note and interest for usury the escrow account cannot be credited against the unpaid principal because the transaction must be viewed at the time consummated and not in relation to a balance that might thereafter accumulate in the escrow account. Appellants cite no authority which would justify applying an escrow account balance in such a manner. In other words, the balance in the escrow account cannot be used to test the transaction for usury when the underlying note and the interest thereon is lawful and does not exceed the 10% per an-num maximum limitation imposed by the Arkansas Constitution.
The proof reflects that a charge was made and agreed to of $50.00 for “title work”; that this $50.00 was expended by the lender as a premium for title insurance, insuring- the title of the mortgag-ed property. In support of their contention that the $50.00 charge for title insurance premium, and the $10.00 down payment used for a credit report were improper and rendered the transaction usurious, appellants cite Schuck v. Murdock Acceptance Corp., 220 Ark. 56, 237 S. W. 2d 1 (1952), Hare v. General Contract Purchase, 220 Ark. 601, 249 S. W. 2d 973 (1952), and Winston v. Personal Finance Company of Pine Bluff, 220 Ark. 580, 249 S. W. 2d 315 (1952), and state that these cases establish a rule that a lender may not assess service charges and increase the cash price for merchandise. These three cases involve consumer purchases or consumer loans and are not construction contracts as presented here. In 8'chuck v. Murdock, supra, the Court found the seller and the finance company listed a cash price for an automobile and after allowance of a down-payment and a trade-in, added on certain charges. The Court found on the facts that the add-on was an unauthorized charge in an attempt to evade the usury prohibition.
In Winston v. Personal Finance Company, supra, a loan was made of $108.00 evidenced by a promissory note. The borrower, Winston, received only $95.04. The note was for twelve (12) months and payable at $9.00 per month with interest on each monthly installment. The evidence disclosed that interest was calculated to be $5.40 with a service charge of $7.56 resulting in the $12.96 difference between the face amount of the note and the $95.04 Winston received. The Court found that of the $7.56 labeled as service charge, $3.76 was received by the lender for services of its salaried employees. The Court specifically finds that the $3.76 exacted for services performed by the lender’s employees and fifty cents for a credit report were in reality “nothing more or less than interest charge”. The Court, at page 585 of 220 Ark. states th!e following expenses may be charged by a lender in addition to the principal balance:
“The items ‘b’ and ‘o’ were the ordinary incidental expenses incurred by Personal in the course of its business. They were not items paid by Personal to a third person for the benefit of Winston. They are, not like the cost of (1) an abstract paid to a third person, or (2) a title opinion paid a lawyer, or (3) recording fees paid an official, or (4) insurance premiums paid a third party. These four numbered items just mentioned may be legal and valid charges when they are paid to a third party. We have upheld such fees, .in a'number of cases, but the facts •in each of those cases were different — in a most important particular — from those in the case at bar; because here, the fees, or ‘service charges’, were made by Personal to cover its own overhead costs and therefore were, in all essentials, interest on the money loaned.”
The Winston case holds that whether a particular charge is improper depends upon the facts and circumstances of each case. The Winston case establishes guidelines to test a transaction to determine whether or not a particular charge is a proper one. On the particular facts in that case the Court held that the charge for a credit report was not proper and should be considered as interest in determining the question of usury. We do not interpret this case to hold as a [matter of law charges for credit reports' are never proper. Whether a given charge may be properly made is a question of fact. Whether or not a particular charg'e is for the sole benefit of the lender or the mutual benefit of both the lender and the borrower is one element to be considered in determining the propriety of the charge. Another element is whether the charge received by the lender was actually disbursed to a third party for services rendered in the loan procedure or pocketed by the lender as. an application on his overhead for doing business. It can be readily seen that many charges which have been specifically approved by the Court, .such as charges for title work, abstract opinions, are charges beneficial to the lender as is a credit report but no case has held that these charges as a matter of law are improper solely because they benefit the lender.
The $50.00 charge far title work in the instant case, is a proper one and includable in the selling price when specifically authorized by the purchaser-buyer. The parties in this contract specifically agreed that title work was to be done and its cost was included in the construction contract. We can see no distinction between expending the $50.00 for title insurance premium and the use -of the agreed sum in abstract expense and other title expense incident to the transaction. It was not added on to the financed balance of the construction contract as an 'additional charge. Appellants cite Universal C. I. T. v. Lackey, 228 Ark. 101, 305 S. W. 2d 858, and Lowrey v. General Contract Corporation, 228 Ark. 685, 300 S. W. 2d 736, and contend that this charge for title work should be considered interest. These -cases cited by appellants involve add-on charges in automobile transactions for credit life insurance and are not analogous to charges for title work in real estate transactions which have been specifically approved by this Court.
In United Built Homes v. Knapp, 239 Ark. 940, 396 S. W. 2d 40, the Court found that certain closing cost items rendered a transaction usurious when it appeared that charges for credit life insurance and appraisal fees were not expended. The Court, however, states that appraisal fees and other charges under proper circumstances can be collected as proper closing costs. In the instant case the record discloses that all of the charges were expended for specifically the items called for and were not used as a sham to increase the interest rate.
In Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S. W. 2d 556, appellant Finance Company was the holder of a note in the principal sum of $3,830.00 payable in 72 monthly payments of $53.20 each. The purchaser disputed certain items for materials and labor and contended the transaction was usurious. The Court found the builder’s profit exceeded 10% of the contract price but that the profit on the underlying construction contract had no bearing on the issue of usury. It was shown that the builder and the finance company had identical corporate structures and officed at the same address. The Court did not find the transaction to be usurious as it distinguished between a loan and a construction contract. The same situation is presented in the instant case. The construction contract in this action signed by the parties provides for a price of $5,-835.00 with a $10.00 cash payment for a financed balance of $5,825.00. The terms of the note are identical to the terms of the construction contract as to the financial balance and does not exact a rate of interest that is usurious.
The $10.00 cash payment which is reflected in the contract signed by appellants was not added on to the financed balance in such a manner as to raise the financed balance $10.00 and include interest thereon. The contract clearly provides that the financed balance is $5,825.00 just as it appears on the promissory note. This same construction contract was presented to this Court in Guaranty Financial Corporation v. Harden, 242 Ark. 779, decided June 5, 1967. In that case the appellee here, who was the appellant then, relied upon a building contract, note and mortgage. The Court, in Guaranty Finance Corporation v. Harden, at page 780 of 242, states:
“The building contract, note, and mortgage were all executed together on October 1, 1965. The building contract was the basic instrument. By that contract Joe-Lee Homes agreed to construct a specified dwelling house for the Hardens for $6,288.00. The contract, after reciting a down payment of $10.00, goes on to say: ‘The balance of $6,278.00, plus interest, shall be paid in monthly installments of $75.01 beginning on the 1st day of January, 1966, and on the first day of each succeeding month thereafter until the whole of said indebtedness is paid. The Owner has concurrently herewith executed a promissory note and mortgage to cover the balance.’
“When the building contract and promissory note are read as one contract, as our decisions require us to do, it is crystal clear that the original principal debt was $6,278.00, with interest which can readily be calculated to be slightly less than the legal rate of 10 per cent per annum. All that the plaintiffs seek to recover is the unpaid principal plus accrued interest. Hence, the case falls precisely within our holding in Mid-State Homes v. Knight, 237 Ark. 802, 376 S. W. 2d 556 (1964), where we said: ‘The chancellor in holding the instrument to be usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 21; Sager v. American Investment Co., 170 Ark. 568, 380 S. W. 654.’”
The Court in that case recognized that the financed debt was $6,278.00 with a $10.00 down payment, or a total price of $6,288.00. The Court found the contract and note were not usurious because the interest calculated on the financed debt of $6,278.00 was less than the maximum legal rate of 10% per annum. To the same effect in this case the principal balance that is financed is $5,-825.00 and is so recited in the contract and note. Assuming that the $10.00 item which is recited in this contract as cash down payment should be considered in testing the transaction for usury, the written contract provides that:
“In the event a credit report on the Owner unsatisfactory to the Builder is received prior to beginning construction of the house, Builder at its option may within ten (10) days thereafter cancel this agreement npon returning to Owner all of the deposit except the cost of the credit report and any recording fees.”
The only proof with reference to the $10.00 charge having been expended for a credit report was the testimony by the lender’s Vice President.
Assuming the burden of proof shifted to the lender to explain the charge as required by Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737 (1957), the trial court found that the $10.00 charge was not improper. The record contains no evidence which would support a contrary finding. The uncontradicted testimony of the lender’s Vice President was that the customary practice of the business was to obtain a credit report and such affirmative testimony was not contradicted. The testimony on this point was meager but was sufficient for the trial court to find that the appellee had met its burden of explaining the Ten Dollar charge and there is no evidence in the record to the contrary. The credit report was specifically provided for in the construction contract and was not an add-on item which the appellee put in its pocket under the ruse of a service charge. The $10.00 was not included in the principal balance of the promissory note and there was no interest paid on it. There is nothing in the record that establishes any cash credit price differential as is sometimes present in consumer goods transactions. The inclusion of the $10.00 payment in the contract clearly provides for a financed balance of $5,~ 825.00 as evidenced by the promissory note in almost identical terms as approved in Guaranty/Financial Corporation v. Harden, supra.
For the reasons herein given, the decree of the Chancery Court is affirmed.
George Rose Smith, Brown and Byrd, JJ., dissent. Fogheman, J., disqualified. | [
-12,
120,
-8,
124,
-118,
-16,
-70,
-101,
121,
32,
-89,
87,
-1,
-58,
20,
107,
-15,
61,
96,
105,
117,
-77,
7,
64,
-48,
-77,
-37,
-43,
-80,
93,
-26,
-42,
76,
32,
-62,
-107,
102,
-126,
-61,
20,
78,
1,
-118,
-28,
-39,
64,
48,
123,
16,
13,
49,
-114,
-13,
44,
57,
107,
104,
40,
91,
44,
-48,
-112,
-113,
4,
127,
71,
-80,
37,
-108,
77,
-24,
14,
-100,
-79,
0,
-88,
50,
-74,
6,
116,
99,
27,
9,
32,
98,
0,
101,
-1,
-8,
-52,
14,
-34,
29,
-90,
-45,
89,
10,
37,
-100,
-99,
120,
84,
-89,
-10,
-26,
5,
91,
108,
15,
-49,
-44,
-79,
29,
122,
-101,
-117,
-18,
3,
48,
112,
-50,
-96,
92,
55,
123,
-101,
-113,
-71
] |
Smith, J.
Appellants, who operate a lumber business in the city of Texarkana, Arkansas, sold lumber from time to time to a partnership composed of W. H. Furqueron and Bill Smith. Some, but not all, of these sales were made under a guaranty of payment made by Furqueron’s sister, Nellie, but there was no continuing guaranty to pay for any or all lumber bought by Furqueron & Smith, as some sales were made to them without this guaranty. It had been the practice in all cases for Furqueron & Smith to sell the lumber purchased and to make settlements therefor out of the proceeds of the resale by Furqueron & Smith.
Such sales were made by appellants to Furqueron & Smith on May 8, 1940, of a bill of lumber amounting to $221.51, and two bills of lumber on May 10, 1940, one for $284.37 and the other for $228.89, making a total of $734.77.
It is not contended that these sales were made under any guaranty of payment by Miss Furqueron. After purchasing the lumber it was hauled in trucks by Furqueron & Smith into the State of Texas, where Smith absconded with a part of the lumber. Furqueron returned to Texarkana and reported that fact to appellants who prepared a paper writing which they requested Furqueron to have his (Furqueron’s) sister to sign reading as follows:
“Wilson Bros. Lbr. Co.
“I guarantee the payment of the above amount within 7 days from date. Signed this the 17th day of May, 1940.
(Signed) “Nellie Furqueron.”
This writing was attached to the invoice of the lumber.
Miss Furqueron testified that no one spoke to her about the matter except her brother, and he did not explain to her that Smith had absconded with a portion of the lumber, and that she would not have signed the paper had she been so advised.
Furqueron sold a portion of the lumber which Smith had not absconded with and paid appellants the proceeds of that sale. He also returned to appellants a part of the lumber which he had not sold amounting to $144.59, and was given credit for both items.
Suit was brought for the face of the invoices, less the credits mentioned, against Furqueron and his sister. The balance sued for was $483.54. Furqueron filed an answer and a cross-complaint, which he later dismissed, and a verdict was directed against him by the court for the balance due, from which judgment there is no appeal by him.
The question of Miss Furqueron’s liability was submitted to the jury, and a verdict was returned in her favor, and from the judgment thereon is this appeal.
The liability of Miss Furqueron, who defended upon the ground that there was no consideration for her guaranty; was submitted to the jury under instructions to which no objections were made and which are not now questioned, and reversal is asked upon the ground only that the verdict is contrary to the law and the evidence.
There appears in the opinion in the case of First National Bank of Fort Smith v. Nadkimen, 111 Ark. 223, 163 S. W. 785, Ann. Cas. 1916A, 968, a quotation from 20 Cyc., pp. 1413 and 1417, which declares the law applicable to the issues in this case reading as follows:
“ ‘It is essential to a valid contract of guaranty that there be a sufficient legal consideration. If there is not to be found in the contract either a benefit to the principal debtor, or to the guarantor on the one hand, or some detriment to the guarantee on the other, the contract will fail for want of a consideration. The mere naked promise in writing to pay the existing debt of another without any consideration therefor is void. . . . The guaranty of a pre-existing debt relates to a past consideration and therefore to be valid must be based upon a new and additional consideration. Such a consideration may be found in an agreement to extend the time of the payment of the debt, or to forbear suit thereon. And a promise to forbear generally without specifying any time is a sufficient consideration. But mere forbearance to sue the debtor, without any agreement to that effect on the part of the creditor, is not a sufficient consideration for a guaranty of the debt.’ ”
The instructions of the court conformed to this declaration of the law.
For the reversal of the judgment it is insisted that there was a benefit flowing to Furqueron & Smith and that the indulgence granted them and the loss sustained by appellants constituted a valuable consideration sufficient to sustain the guaranty.
Appellee insists that there was no such testimony, but, if so, that it was disputed and that this question of fact has been concluded by the verdict of the jury.
In testing the sufficiency of the testimony to support the verdict in favor of the appellee we must, of course, give it the highest probative value of which it is susceptible, and it is to the following effect. The lumber had been sold and delivered nearly a week before appellee signed the guaranty. No extension of time for payment was asked, and none was given.
The complaint was amended to allege that the sentence, “I guarantee the payment of the above amount within 7 days from date,” meant, and was intended to mean, that an extension of seven days was given in which to pay for the lumber, and that this was an indulgence given to the principal debtor, which constituted a sufficient consideration for the guaranty.
Both Furqueron and his sister testified that no extension of time was asked or given, and that ultimately Furqueron returned part of the lumber and was given credit for it.
The writing which appellee signed is not in conflict with this testimony, as it merely promises to pay the bill within seven days. But there must have been, of course, a consideration for this agreement before it will be enforced, as a mere agreement to pay an existing debt without a consideration for such an agreement is not enforceable, and whether there was such a considera tion was the question of fact submitted to the jury, and as there was substantial testimony to support the verdict the judgment pronounced thereon must be affirmed, and it is so ordered.
Grieein Smiti-i, C. J., dissents. | [
112,
-1,
-72,
-52,
24,
96,
56,
-70,
27,
-61,
37,
-45,
-19,
102,
1,
121,
33,
125,
113,
104,
-25,
-93,
13,
110,
-45,
-77,
-39,
-57,
-68,
-54,
-92,
-42,
76,
48,
-50,
-107,
-93,
-48,
-51,
-36,
46,
-128,
-87,
96,
-3,
-32,
48,
-69,
52,
79,
113,
-114,
-5,
45,
29,
75,
45,
46,
111,
43,
-48,
-7,
-70,
-116,
63,
22,
49,
102,
-104,
1,
-40,
10,
-112,
53,
0,
-24,
115,
-76,
-122,
116,
109,
-83,
8,
102,
98,
34,
-107,
-17,
-44,
-8,
46,
-6,
-99,
-90,
64,
88,
19,
105,
-66,
-108,
127,
1,
-108,
-6,
-10,
29,
-104,
104,
-117,
-50,
-106,
-95,
-97,
-12,
28,
19,
-17,
-122,
50,
117,
-49,
-80,
93,
5,
113,
-101,
-114,
-3
] |
McHaney, J.
On June 4, 1941, Leo Hairell sliot and mortally wounded liis wife, Lucille Hairell, and then shot and killed himself, she surviving him about two hours. He was an employee of Ely & Walker Dry Goods Company, Paragould, Arkansas, and as such his life was insured in the sum of $500 under a group life insurance policy issued by appellee to his employer and a certificate of such insurance issued to him in which his wife, Lucille, was named the beneficiary. Said certificate contained the following’ language: “In the event of the death of any beneficiary, prior to that of the employee, the interest of such beneficiary shall vest in the employee by whom he was designated. If there be no designated beneficiary at the time when any insurance hereunder shall be payable to the beneficiary, then such insurance shall be payable as -follows-:
“To the wife or husband, if living, of- such employee; if not living, to the children of' such employee who survive such emplo3ree, equally; if none survives, to either the father or the mother of such employee, or to both equally; if none of the above survives such employee, to the estate of such employee.”
The group policy contained this provision: “Upon receipt by the company of the notice and proof- — in writing — of the death of any employee, while insured hereunder, and upon the surrender of the certificate and all certificate riders — if any — issued hereunder to such employee, the company shall pay, subject to the terms hereof, to the beneficiary of record, the 'amount of insurance, if any, in force on account of such -employee at the date of his death,- according to the schedule of benefits.”
As above stated, Lucille Hairell, the named beneficiary, survived her husband about two hours. After her death an administrator was -appointed for her, estate, who surrendered said certificate and made proof of death of insured to appellee and it paid the amount of said insurance to said administrator, with knowledge -at the time that appellant, the mother of Leo Hairell, was claiming- same. There were no children surviving and Hairell’s father had predeceased him. Appellant, the mother, requested of appellee forms on which to make proof of death which appellee refused, and she then brought this action to recover the $500 insurance, penalty and attorney’s fee. To a complaint alleging said facts, a demurrer was interposed and sustained. Declining to plead further, she suffered a judgment of dismissal.
Counsel for appellant s-ay: “The only issue in this case is whether appellant, mother of Leo Hairell, is entitled to the $500 insurance on his life as against the claim of the estate of his deceased wife, who survived the insured by less than two hours and who under the terms of the policy could not have -enforced payraent of the insurance as -against appellee at any time during her life. ’ ’ In other words, because she was mortally wounded and did not live long enough to make proof of death and surrender the policy, her rights as beneficiary were lost.
If we understand the novel contention of appellant, it is based upon the following portion of the above quoted clause in the certificate: “If there be no d-esig nated beneficiary at the time when any insurance hereunder shall he payable to the beneficiary, then such insurance shall be payable as follows: ” It being contended that there was no beneficiary at'the time when the insurance became payable, as provided in the above quoted clause from the group policy, which provides that the company shall pay “upon receipt . .■ . of the notice and proof —in writing — of the death . . . and upon the surrender of the certificate,” etc. But that clause concludes by providing it shall pay “to the beneficiary of record the amount,” etc. Lucille Hairell was the beneficiary of record even though she was dead at the time the notice and proof were given and made. But, aside from that, the general rule is that, where the insured reserves the right to change the beneficiary in a policy of life insurance, the beneficiary has no vested interest therein during the life of the insured. Sovereign Camp, W. O. W., v. Israel, 117 Ark. 121, 173 S. W. 855; Watkins v. Home Life & Acc. Ins. Co., 137 Ark. 207, 208 S. W. 587, 5 A. L. R. 791. In the latter case, W. R. Fischer insured his life and named his son, J. E. Fischer as beneficiary. They were shot from ambush and both instantly killed. The policy provided that the insured might change the beneficiary at any time in the manner provided therein. It also provided: “If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured. ’ ’ In construing this provision the late Judge Hart, for the court, said: ‘ ‘ This provided for a substituted beneficiary in case of the death of the primary one. The beneficiary, therefore, had a qualified interest in the policy, and his death in the lifetime of the insured is therefore a condition which must exist before the right of any subsequent beneficiary can be asserted. J. E. Fischer was the beneficiary named in the policy, and under its terms- his representative had a prima facie title to the fund. In this case, by the terms of the policy itself, the substituted beneficiary could only take in case the insured survived the beneficiary. . . . Until it is shown that the beneficiary died in the lifetime of the insured we think, according to the terms of the'policy of insurance, the fund is payable to the representative of the beneficiary because it is only in the event of the death of the named beneficiary in the lifetime of the insured that the heirs of insured can take.”
Here the relevant clause is in substance the same. It provided: ‘ ‘In the event of the death of any beneficiary, prior to that of the employee, the interest of such beneficiary shall vest in the employee by whom he was designated.” Now, it is undisputed that Lucille Hair ell survived her husband and there was no change in or new designation of a beneficiary. She did not die in the lifetime of her husband, but continued to live, although mortally wounded, and immediately on his death her interest as beneficiary in the proceeds of the policy became vested. As said by Judge Hart in the Watkins case, supra, “by the terms of the policy itself .the substituted beneficiary could only take in case the insured survived 'the beneficiary, ’ ’ which he did not dp.
Appellant cites and relies upon certain cases to support her theory that the policy was not payable until proof of loss is made and received by the company, such as Metropolitan Life Ins. Co. v. Jones, 192 Ark. 1106, 96 S. W. 2d 957, involving disability benefits, in which it was held, to quote a headnote, that: “Under a group policy providing that ‘Upon receipt at the home office . . . of due proof that any employee . . . has become totally and permanently disabled, the company will pay equal monthly installments . . . The first monthly installment will be paid upon receipt of the proof of total and permanent disability,’ proof of disability is not a condition precedent to the fixing of liability, but is only a prerequisite to the institution of an action to recover for the liability; and insured may, under such a policy, recover from date of disability, and not merely from date of receipt of proof by the company.”
There, as here, liability attached on the happening of the eventuality insured against, but the liability was not enforcible until proof was made. As stated above, when Leo Hairell died, his wife’s theretofore contingent interest as beneficiary in the policy became vested and liability attached in her favor, whether she survived him one minute, one hour, one day or one year and passed to her administrator on her death, and the matter of making proof and surrendering the certificate were conditions subsequent, conditions inserted for the benefit of the appellee and which it might have waived, and which it did waive, as to appellant, by refusing to furnish forms for proof 'and by denying liability to her.
The trial court correctly sustained the demurrer and its judgment is accordingly affirmed. | [
16,
45,
-4,
61,
8,
-94,
10,
26,
115,
-56,
-91,
83,
-21,
-17,
85,
97,
-13,
-83,
113,
104,
49,
-89,
23,
32,
-45,
51,
-7,
-59,
-95,
89,
-2,
-33,
109,
96,
-118,
-44,
-30,
-118,
-59,
92,
14,
8,
-93,
-31,
89,
-48,
48,
107,
-36,
79,
117,
-98,
-77,
34,
22,
-58,
76,
38,
122,
-87,
-64,
120,
-85,
-123,
-1,
18,
-109,
7,
-104,
37,
-48,
31,
-104,
-79,
8,
-88,
50,
38,
-42,
116,
33,
9,
16,
102,
99,
0,
21,
-19,
-96,
-102,
-114,
-26,
31,
-121,
-100,
120,
17,
13,
-97,
-99,
122,
-107,
-106,
116,
-2,
20,
95,
40,
-104,
-98,
-74,
-80,
-51,
-8,
-100,
-117,
-21,
-121,
38,
113,
-53,
-94,
92,
71,
126,
27,
-42,
-60
] |
Griffin Smith, O. J.
May 20, 1937, there was foreclosure of a mortgage executed in 1919 by Brooks Jacobs and Ms wife, Lilian. The decree recites that default occurred October 1, 1933, and thereafter only $21.41 was paid, leaving a balance of $1,838.22. It was also contended that taxes were not paid after 1932, and that the land bank had expended $192.53 to protect its interests. Sale June 28, 1937, was to John G. Knox.
There is testimony that Knox, after bidding the property in for $2,530 on Saturday, told the clerk of the chancery court he had the money and was ready to close the transaction. The clerk suggested that he return.
When Knox endeavored the following Monday to consummate his bid, he was met by a federal conciliator’s intervention, filed by O. M. Martin, attorney for the Jacobs heirs. The chancery court thereupon ordered all proceedings stayed. While jurisdiction of the state court was in suspense, pine timber on the 252 acres included in the mortgage was sold for $1,000, the amount being applied on the land bank’s debt.
May 27, 1941, without notice to Knox, the commissioner’s sale of 1937 was set aside. Knox intervened July 5, 1941, in consequence of which chancery court vacated its decree of May 27.
Bankruptcy proceedings were dismissed November 10, 1941, whereupon certified copy of the federal court order was filed in chancery court. Knox immediately left with the clerk the personal check of a third party. The Clerk testified he considered the check an equiva lent of money, in view of the known responsibility and' integrity of its maker, Joe K. Mahony.
November 29, 1941, the court heard argument on the question of confirming of vacating the sale of 1937. The decree recites that Knox was purchaser at a reasonable price; that no other person made a substantial bid, and found that the deed should be approved.
This appeal is from the order of confirmation.
In dismissing the intervention filed with the conciliator, the federal court was of opinion that the administrator of the estate of Brooks Jacobs was not authorized under the Frazier-Lemke Act, or any other statute, to place the Jacobs estate in bankruptcy.
There was no appeal from the holding that the entire proceeding, which resulted in delaying confirmation of the sale more than four years, was illegal (perhaps ‘ ‘ unlegal ’ ’ would be a better word) for want of jurisdiction.
The result is that a valid hid was made by Knox in 1937. He was willing to pay, but could not do so because the clerk'thought Martin’s petition on behalf of the heirs superseded state processes, and in consequence confirmation was defeated, and possession was withheld from the purchaser because of what was later found to be a mistaken belief upon the part of heirs that certain legal rights were available to them.
The sale was confirmed by a chancellor who has since died. His record on the bench is an enviable one. He was trusted, respected, beloved, honored — even revered — by those who knew him. .Much testimony appears- to have been given orally rather than by depositions. The Chancellor was familiar with transactions from initial steps in 1937 until the decree of confirmation was rendered in 1941. He had heard hundreds of cases involving land and mineral values in Columbia county. Based upon a record which does not show that the Jacobs tract sold for a sum inadequate in 1937, Judge Walker Smith thought substantial justice would be done by permitting the Knox bid to stand.
The question is,' Did the court abuse its discretion1? Our answer is that it did not. The transcript does not contain all of the record incident to Federal Land Bank’s foreclosure procedure. According to the decree, minor heirs were represented by a guardian ad litem, while defense was made for them by an attorney ad litem. Heirs sui juris did not defend. It must be presumed, therefore, that the defense made for minors was because of legal necessity, the logical inference being that none of the defendants thought there was substantial equity in the property.
In Martin v. Kelley et al., 190 Ark. 863, 81 S. W. 2d 933, it was held that in considering exceptions to confirmation in circumstances somewhat similar to those presented by the instant case, the pertinent inquiry should be whether, if the property should be resold within a reasonable time, it would bring a price substantially higher than the amount offered at the former sale; or, Is there a prospective bidder who at resale will make a substantially higher offer?
While counsel for appellants stated, and no doubt honestly believed, that a better bid could be obtained, there is no testimony to this effect. But even if such testimony had been offered we would be unwilling to say the chancellor abused his discretion. Certainly there is no showing that the price proffered in 1937 was not reasonable. Following that offer the defendants for fifty-three months hindered Knox in his bid. If it be argued that they had a right to take advantage of the FrazierLemke Act, answer is that the federal court held the Act gave them no such right.
Affirmed.
- — The mortgage was to secure $1,500 borrowed of St. Louis Federal Land Bank with interest at 5% per cent. The obligation was amortized, semi-annual payments being $48.75, except the last payment, which was $48.70, due October 1, 1953.
— These amounts were increased through interest charges, taxes, etc., that accumulated between filing of the complaint and rendition of the decree, in consequence of which judgment was for $2,044.25. Although the decree mentions notes drawing interest at 5%% per annum, and 8% after maturity, the judgment bears interest at five per cent. No explanation of this apparent discrepancy is made. However, it is unimportant in view of the fact that the decree from which this appeal comes is affirmed.
— Action by the conciliator for Columbia County was under authority of the Frazier-Lemke Act.
— Contentions made on behalf of the heirs were: (1) Knox had failed to give bond to secure his bid. (2) The price, $2,530, was “insignificant, unfair, and unreasonable for the reason that the land, at the time, was worth $4,500 to $5,000.” (3) Deposit by Knox of the check of a third person was not a compliance with the court order of 1937. (4) Timber was sold without Knox’ consent, the amount having been paid to Federal Land Bank, and the debt balance did not at the time exceptions were filed exceed $1,750. (5) The lands in 1937 were worth $4,500 without considering minerals. Oil and gas leases “on the north and adjoining said lands” have brought from $10 to $25 per acre; west and adjoining the lands oil and gas leases have brought $25 per acre. Royalties are worth $15 per acre, and were of that value when Knox made his purchase. (6) Royalties in section ten, immediately north of the lands, are worth $15 per acre, “and much royalty in section ten has been sold for $15.” (7) Seven large oil fields were discovered in Columbia county before and after the sale to Knox. The land had considerable mineral value as distinguished from the fee, and the foreclosure sale was made during a period of depression. (8) The Brooks heirs were “scattered,” and it had been difficult to communicate with them and arrange to pay the Federal Land Bank debt. Petitioners had not had time to seek buyers who would offer a reasonable price for the land. Some of the appellants (petitioners below) had “arranged” for a buyer who would pay $350 more than the sum bid by Knox. (9) Confirmation would place Knox in position to sue for value of the timber, now alleged to be worth four times the amount it sold for. (10) When the federal court caused the land to be appraised in 1938 and its value was fixed at $4,400, consideration was not given to the worth of minerals. [Two of the appraisers testified the appraisement was made in February 1940.] | [
-14,
96,
-40,
-50,
10,
-96,
10,
122,
88,
-31,
-93,
91,
-19,
68,
81,
109,
-95,
41,
117,
104,
-60,
-78,
55,
-10,
-13,
-77,
-63,
-3,
-76,
93,
-28,
-41,
8,
52,
74,
61,
-26,
-94,
-59,
-108,
78,
-59,
57,
105,
-43,
64,
48,
-81,
22,
13,
85,
-113,
-9,
46,
53,
110,
104,
42,
-5,
-87,
-48,
-8,
-77,
12,
77,
23,
33,
97,
-102,
1,
72,
-54,
-104,
21,
-128,
-23,
113,
22,
-42,
116,
6,
11,
40,
38,
102,
17,
-51,
-17,
-32,
-104,
46,
-73,
-99,
-90,
-47,
88,
-126,
32,
-66,
-97,
125,
80,
6,
-8,
-17,
-123,
93,
104,
5,
-86,
-42,
-125,
30,
127,
-120,
27,
-10,
7,
34,
113,
-113,
-84,
95,
101,
112,
-101,
-114,
-7
] |
Greenhaw, J.
Millie Shelton, wife and guardian of V. C. Shelton, an incompetent World War veteran, filed a petition in the southern district of the probate court of Logan county, asking that the court authorize her, as guardian, to purchase a home for the ward and his family, and pay for same out of the proceeds of the ward’s estate.
The petition alleged that the guardian and their two minor children make their home with the incompetent, and depend upon him for their support and maintenance. The family has been living in rented houses and moving from place to place, which is detrimental to the ward’s physical and mental health, and has caused the ward who is in a highly nervous condition to become dissatisfied and irritable. The children are now approaching school age, and they desire to have a permanent abode while these children are being educated.
It was further alleged that the guardian has an opportunity to purchase the property which they now occupy in Booneville, and in which the ward is perfectly contented, for $2,000, which is a reasonable price. Rental on this property during the children’s education there would be, at the present rate, approximately $3,000. The ward’s income from pension and insurance is $156 per month, and assets of his estate are more than $10,000. The ward and his family desire to make this property their home, which would be for the best interests of the ward and his estate, and an economical and businesslike way in which to provide support and maintenance for the ward and his dependents.
The Veterans’ Administration filed an entry of appearance, pursuant to act 283 of 1941, which provides that the Administrator of Veterans’ Affairs shall be a party in interest in any guardianship proceeding involving an incompetent veteran or his estate. It stated there was no objection to an order authorizing a purchase of a home for the incompetent ward, provided the court found that the premises to be purchased are fairly valued at the proposed purchase price.
The United States Fidelity & Guaranty Co., surety on the guardian’s bond, filed a response to the petition, in which it admitted the facts set forth in the petition, but alleged that the probate court was without jurisdiction to grant the relief prayed for.
The probate court entered an order holding that it had jurisdiction to try the cause and grant the relief asked in the guardian’s petition, and dismissed the response of the surety company. Thereupon the company filed a petition in this court for a writ of prohibition against Hon. J. E. Chambers, judge of the probate court, to prohibit him from trying this case, stating that respondent will grant the relief asked unless prevented by an order of this court, and contending that the probate court is without jurisdiction to authorize the expenditure of funds in the hands of the guardian to purchase a home for the incompetent ward.
The question to be decided, therefore, is whether the Logan probate court has jurisdiction to authorize the guardian of the incompetent ward to purchase a home for the benefit of the ward and his dependents. It is our opinion that the probate court has jurisdiction to grant the relief prayed for, and that prohibition should be denied herein.
Section 7543 of Pope’s Digest provides: “Probate courts, within their respective counties, shall have power and jurisdiction to appoint, and possess a superintending control over, guardians to take the care, custody and management of idiots, lunatics, habitual drunkards and persons of unsound mind who are incapable of conducting their own affairs and their estates, real and personal, and to provide for the safekeping of such persons, the maintenance of themselves and their families, and the education of their children, in the manner hereinafter directed. ’ ’
Section 7570 of Pope’s Digest is: “Every probate court by which any insane person is committed to guardianship may make such orders for the restraint, support and safekeeping of such person; for the management of his estate and the support and maintenance of his family and education of his children out of the proceeds of his estate-; to set apart and reserve for the use of such family any property, real or personal, not necessary to be sold for the- payment of debts; and to let, sell or mortgage any part of such estate, real or personal, when necessary for the payment of debts, the maintenance of such insane person or his family, or the education of his children. ’ ’
'In the case of Branch v. Veterans’ Administration, 189 Ark. 662, 74 S. W. 2d 800, this court differentiated between management of the estates of minors and insane persons, and, among other thing's, said:
“The sections which deal with the administration of an insane person’s estate are §§ 5852 and 5853 of Crawford & Moses’ Digest, which are §§ 43 and 19 of chapter 78 of the Revised Statutes. Section 5853 empowers the probate court, where an insane person is committed by it to guardianship, to make the necessary § orders with respect to the person of the ward, and ‘for the management of his estate and the support and maintenance of children out of the proceeds of his estate.’ Section 5852 places in the court the control of the guardian in the management of the person and estate of the ward and the settlement of his accounts with power to enforce its orders in the same manner as a court of chancery.
“We are of the opinion that the authority given the court to make orders for the management of the estate of an insane person and to control the guardian of such in the management of the estate by necessary implication confers the authority to make all necessary orders affecting the surplus money of the ward which, in the judgment of the court, would be to the best interest of the ward and of his estate. Therefore, the court is authorized to order a guardian to lend the surplus money of his ward. ’ ’
The ownership of the home sought to be purchased in this case would enable the ward and his dependents to be permanently located in the property they have occupied for some time, and which they desire to continue to occupy, thereby removing the uncertainty of occupancy which is always incident to rented property. The property, if purchased, would be an asset of the ward’s estate, and would also save the rent which otherwise would have to be expended. We must and do recognize the fact that a dwelling place, whether owned, rented or donated, is a necessity for the ward and his dependents. The statutes above quoted specifically vest ■ jurisdiction in the probate courts to malee orders for the management of the estates of mentally incompetent persons, for the support and maintenance of their families and the education of their children from the proceeds of the ward’s estate. We think these provisions are sufficiently broad to empower the probate court to authorize the guardian of the mentally incompetent person to purchase a home for the ward and his dependent family, suitable to their means and station in life.
Prohibition is, therefore, denied. | [
83,
108,
-44,
28,
26,
96,
24,
-86,
115,
-77,
35,
95,
99,
-54,
17,
107,
112,
43,
97,
125,
81,
-77,
99,
-32,
82,
-45,
-77,
-49,
-93,
111,
-32,
-105,
76,
56,
-6,
-107,
6,
-117,
-115,
24,
30,
-95,
-101,
97,
-47,
-46,
48,
55,
20,
12,
21,
-98,
-13,
14,
53,
67,
72,
106,
-39,
-87,
-47,
-21,
-81,
5,
-5,
15,
-112,
100,
-104,
71,
-64,
106,
-112,
49,
64,
-23,
113,
54,
-122,
48,
11,
-99,
41,
100,
102,
-96,
-84,
-11,
-48,
-120,
14,
126,
-115,
38,
-109,
121,
96,
37,
-106,
-99,
124,
16,
94,
-12,
-17,
4,
93,
-20,
-113,
-113,
-44,
-79,
-100,
-8,
-104,
3,
-17,
69,
48,
113,
-56,
-26,
84,
35,
51,
-101,
-116,
-69
] |
McHaney, J.
Appellant, a foreign corporation, brought this action in the Washington Chancery Court against H. I. Culberson and Claudine Benton, doing business as the Fayetteville Electric Company, and V. McDan iels, charging that Culberson & Benton were indebted to it in the sum of $102.42 for certain radio material and supplies, and that, while so indebted to it, they had made a sale in bulk of the business.known as the Fayetteville Electric Company to McDaniels, not in the regular-course of trade, and without 'conforming with §§ 4870, 4871 and 4872, C. & M. Digest, as amended 'by act 374 of the Acts of 1923, commonly known as the Bulk Sales Law. It thereafter filed an amendment to the complaint, making the Mcllroy Banking Company a party defendant, and alleging that, prior to said sale by Culberson & Benton to McDaniels in bulk, said Fayetteville Ele'ctric Company had executed and delivered to said bank a chattel mortgage on certain stock and fixtures belonging to the electric company, without complying with the Bulk Sales Law. The mortgage thus given covered a number of light fixtures, a showcase, a counter, a lamp case, tools, truck, wiring material, and radios. Thereafter the Fayetteville Lumber & Cement Company, ’Southwest Power Company, Empire Electric Company and American Electric Company intervened in said action and filed their separate complaints, each alleging- that it had sold and delivered to the Fayetteville Electric Company, composed of Culberson & Benton, merchandise in the respective sums of $79.20, $360.73, $208.76, and $101.35, for which payment had not been made, and that the business of the Fayetteville Electric Company had been sold by Culberson &. Benton to McDaniels without complying with the Bulk Sales Law, and in like manner raising the question of the validity of the chattel mortgage executed to the Mcllroy Banking Company.
McDaniels answered, denying, that he was indebted to any of the parties in any sum, and admitted that he had purchased the business of the Fayetteville Electric Com- ' pany, but that, in doing so, the Bulk Sales Law of Arkansas was in no wise violated; that the business purchased by him was an electric repair shop, in which all kinds of electrical repairs were made, and in which various accessories were kept for the business of making repairs, and that the Bulk Sales Law of Arkansas had no application to such a business. The banking company filed substantially the same kind of answer, and claimed that the Bulk Sales Law had no application to the business conducted by the Fayetteville Electric Company. Culberson & Benton did not answer, although service was had upon them upon the original complaint of appellant, Wellston Radio Corporation, but no service was had upon them by any of the interveners. Only two witnesses testified for appellant and interveners who pretended to know anything about the icharacter of the business 'conducted by the Fayetteville Electric Company.
R. E. Estes testified that the business, at the time it was owned by'Culberson, was retailing electric appliances and doing electric job work, the same as his company, the Southwest Power Company; that they kept lamps, lighting fixtures, washing machines, ice boxes, radios and other electrical accessories in stock.
Harry B. Curtis testified that, to the best, of his knowledge, the Fayetteville Electric Company was engaged in the retail business, and also did job and repair work, but primarily a retail establishment, carrying such articles as heretofore enumerated by Estes, and including vacuum cleaners, electric wares, curling irons, waffle irons, heating pads, grills, bath heaters, and all small appliances. He was also a witness for the intervener, Southwest Power Company, which was a competitor of the Fayetteville Electric Company.
On the other hand, Mr. McDaniels testified that he bought the contracting, wiring and repair business that Culberson & Benton then had on hand for $4,250, in which he assumed payment of certain debts listed in the bill of sale in the sum of $1,439.51, and assumed the mortgage to the Mcllroy Banking Company; that he had paid and was paying the accounts he assumed. He did not assume any of the accounts in question, nor agree to pay same. None of the material and supplies on which their accounts were based were in the stock at the time he bought, except one Westinghouse range, which was still on hand, which had been purchased from the Southwest Power Company. This was the only item in the stock at the time he bought that belonged to either the appellant or any of the intervening appellants. He further testified that eighty per cent, of his business is for contract work and repairs, and that the stock kept on hand is for his own convenience in fulfilling contracts and in doing repair work. He stated that he would not estimate that over ten per cent, of his business was for sales of accessories and stock carried away by the customer at the time of the sale.
O. W. McDaniels, son of Y. McDaniels, corroborated his father in every respect. He also testified that he worked for Mr. Culberson before his father purchased the business, and that Culberson carried on his 'business substantially as they did, but could not say what percentage of Culberson’s business was for 'contract and repair work, and what percentage of counter sales in the. store.
After hearing the testimony, the chancellor found “that the business of the Fayetteville Electric Company is not a merchandise business within the meaning of that term as used in the Bulk Sales Law, and therefore finds for thé-defendant, V. McDaniels. The court further finds that the mortgage held'by the Mcllroy Banking Company in no way conflicts with the rights of the plaintiff or intervener herein,” and he thereupon entered a decree dismissing the complaint and interventions for want of equity, from which comes this appeal.
The only question involved in-this controversy therefore is the applicability of the Bulk Sales Law to this particular business. In the recent case of D. C. Goff Co. v. First State Bank of DeQueen, ante p. 158, we said:
“It will be noticed from the language of the act that it pertains only to the business of merchandising — the business of a merchant or trader in merchandise — and the prohibition is leveled against the sale or mortgage in bulk of a ‘part of or the whole of a stock of merchandise, or merchandise and fixtures’ of a merchant. Clearly, we think, a keeper of a restaurant, whose business it is to serve food and drink to the public, is not engaged in the mercantile or merchandising business, nor is he a merchant, within the meaning of the Bulk Sales Law. Even though he may keep some merchandise which is used or useful in his business, including cigars and cold drinks, still we are of the opinion that this does not change the character of the business, but is only incidental thereto. ’ ’
In the case of Fisk Rubber Co., Inc., v. Hinson Auto Co., 168 Ark. 418, 270 S. W. 605, this court said:
“Here there was a sale of the entire business, but the question is whether there was a stock of merchandise within the meaning of the statute. A stock of merchandise might, of course, consist -solely or largely of automobile parts and accessories, but we have concluded that the finding of the court below that there was no sale of a stock of merchandise is not clearly against the preponderance of the evidence. The business sold was primarily and essentially a repair shop, including an agency for the sale of cars, but it is not contended that any automobiles were included in the sale. To carry on this business it was essential that various parts be kept in stock, but. such parts were kept ordinarily for use in repairing cars, and the articles were usually adjusted to the cars of the purchaser.”
In the case of Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 252 S. W. 20, this court held that the Bulk Sales Law “has no application to a manufacturing plant which sells its products merely as an incident to the business ”; and in Fisk Rubber Co. v. Hayes, 131 Ark. 248, 199 S. W. 96, an automobile agency and accessory business was held not to be within the Bulk Sales Law, for the reason that the part of the stock sold was inconsequential in comparison with the value of the entire stock.
We think this case is controlled by these cases, and that the decision of the chancery court is supported by the preponderance of the evidence; at least we cannot say that it is against the preponderance of the evidence.
Affirmed. | [
-80,
124,
-20,
76,
8,
96,
56,
-102,
90,
-95,
-91,
83,
-23,
-60,
-115,
97,
-13,
121,
80,
122,
-28,
-77,
3,
106,
-46,
-109,
-39,
-59,
-80,
-53,
-28,
-33,
76,
40,
-54,
-43,
-29,
-62,
-51,
30,
-86,
32,
59,
-20,
-3,
64,
116,
-85,
116,
79,
65,
-100,
-77,
40,
31,
-54,
41,
46,
-17,
46,
-47,
-7,
-104,
5,
127,
23,
17,
4,
-104,
1,
106,
30,
-40,
-76,
33,
-23,
114,
-90,
-122,
-12,
9,
29,
40,
98,
99,
2,
-127,
-1,
-40,
-120,
39,
94,
-99,
-92,
48,
57,
3,
41,
-65,
-108,
120,
18,
4,
-8,
-6,
13,
28,
108,
9,
-113,
-106,
-15,
45,
116,
-100,
-101,
-18,
-126,
-80,
112,
-50,
-94,
93,
75,
26,
-101,
-114,
-44
] |
Humphreys, J.
The purpose of this suit is to enforce an alleged equitable vendor’s lien for $350 and accumulated interest against a certain forty-acre tract of land in Sevier County, and the additional sum of $40.60 and interest, which was paid by appellee on November 13,1922, to redeem said forty-acre tract of land from forfeiture to the State.
Appellants filed an answer, denying* the right of appellee to an equitable lien upon said land for either amount. Appellants also interposed the defenses of the statute of frauds and limitations.
The cause was submitted to the chancery court of Sevier County upon the issues joined and the testimony introduced by the parties, which resulted in a decree in favor of appellee for $350 and interest at the rate of 6 per cent, per annum from June, 29,1916, and for $40.60 at the rate of 6 per cent, per annum from the 13th day of November, 1922, and the establishment of a vendor’s lien for said amounts, and order of sale of said lands to satisfy same. From that decree an appeal has been duly prosecuted to this court.
Appellee owned 110 acres of land in said county, which he mortgaged to the Conservative Loan Company on June 29,1916,-payable eight years after date, and bearing interest at the rate of 6 per -cent, per annum from date until paid. On the 3d day of August, 1917, appellee and wife executed and delivered to Z. Baldwin their warranty deed, conveying said forty-acre tract to Z. Baldwin in consideration of $300 cash in hand paid and the assumption of $350 of the indebtedness to the Conservative Loan Company, which conveyance, as well- as the mortgage aforesaid, was recorded at the time of the execution and delivery in proper record books in said county. On October 7,1918, Z. Baldwin executed and delivered to "W. O. Hobbs his warranty deed for said forty-acre tract, with lien retained, in consideration of $900, $200 in cash, notes for $350, and the assumption by said Hobbs of $350 of the indebtedness to the Conservative Loan Company, which deed was recorded shortly after the execution thereof in the proper record book in said county. On December 30, 1919, W. O. Hobbs conveyed by warranty deed said forty-acre tract to B. F. Coyle for a consideration of $1,400, $500 cash and notes payable to Hobbs for $550 and the assumption by Coyle of $350 of the indebtedness to the Conservative Loan Company, which deed was filed for record in the proper record book in said county a short time after the execution and delivery of same. The notes executed by Coyle to Hobbs were not paid at maturity, Coyle having died intestate. Hobbs instituted suit in the Sevier Chancery Court against the heirs of Coyle to foreclose the amounts due him, evidenced by notes which Coyle had given him, and, at the October term, 1922, of said court a decree was entered in favor of Hobbs, and the land ordered sold in satisfaction of the indebtedness. On October 28, 1922, Hobbs assigned said judgment to appellants without recourse on him. The land was sold by the commissioner, and appellants became the purchasers of same for the amount of judgment assigned to them by Hobbs. The sale was reported to the court at the October, 1923, term, at which time same was approved and a deed executed and acknowledged by the commissioner conveying said land to appellants.
On January 9, 1918, appellee and his wife executed and delivered their warranty, deed to Mary N. Thompson, conveying the other seventy acres described in the mortgage to the Conservative Loan Company in consideration of $1,400, $400 cash, $500 evidenced by notes payable to plaintiff, and the grantee assuming the full amount of the $500 note and mortgage to the Conservative Loan Company, which deed was immediately filed for record in said county in the proper record book.
On August 2, 1918, Mary N. Thompson and J. C. Thompson, her husband, executed and delivered to C. S. Tebbs their warranty deed, conveying said seventy-acre tract in consideration of $2,000, $1,000 in cash, one' noté for $500 payable to Mary N. Thompson, and the assumption of the indebtedness to the Conservative Loan Company, which deed was immediately filed for record in said county in the proper record book.
In the year 1924 C. S. Tebbs sold the seventy-acre tract of land to J. S. Parson, who assumed and agreed to pay the $500 mortgage to the Conservative Loan Company as a part of the consideration for the land. On June 2,1924, Parsons paid $500 to the Conservative Loan Company. The release deed described and released the entire 110-acre tract from the Conservative Loan Company mortgage. After Parsons paid the $500 mortgage and obtained a release deed for the entire 110-acre tract of land, appellants refused to pay the $350 which the grantors in their chain of title had assumed and agreed to pay, and also refused to refund to appellee taxes in the sum of $40.60 which appellee was forced to pay to redeem the forty-acre tract from the sale of taxes for the years 1920 and 1921:
Appellants contend for a reversal of the decree upon the theory that the lien against the land, including the lien on the forty acres purchased by them, was discharged and extinguished by payment of the $500 mortgage by Parsons to the Conservative Loan Company. This payment did discharge and extinguish the mortgage lien for $500, but did not discharge and extinguish appellee’s right to the balance of his purchase money of $350, which the grantors in the chain of appellant’s title had contracted to pay for the forty-acre tract by the assumption of $350 of the $500 mortgage given by appellee to the Conservative Loan Company. Appellants purchased the forty-acre tract under a junior mortgage lien in favor of C. S. Tebbs, there being upon the forty-acre tract an equitable vendor’s lien in favor of appellee by virtue of the assumption by appellants ’ predecessors in title of $350 of the Conservative Loan Company’s mortgage even after the loan company’s mortgage was paid by Parsons. Otherwise appellee would have received the initial cash payment of $300 for the forty-acre tract, whereas he sold it for $650, $300 cash and the assumption by Baldwin and the other grantors in the chain of appellants’ title of $350 of the Conservative Loan Company’s mortgage. There can be no question in this case that appellee sold the forty-acre tract for $650 to Baldwin and only received $350 of the purchase money, and that appellants ’ predecessors in title assumed the payment of the $350 in their respective deeds by agreeing to pay $350 of the Conservative Loan Company’s mortgage as a part of the consideration for said tract.
We think it cannot be gainsaid that an owner of land may contract in his conveyances to two different grantees for each of them, as a part of the consideration of the lands he separately conveyed to them, to pay any part or all of a prior mortgage upon said lands, and, upon the payment of the entire mortgage debt by one of his grantees, to enforce a vendor’s equitable lien against the land sold to the other grantee for the proportion of the mortgage debt he agreed to pay as a part of the purchase money for the land he bought. One who has acquired the estate of another by purchase should not be allowed to keep it without paying the entire contract price. An equitable vendor’s lien 'arises by operation of law out of the contract for the payment of the purchase money. Beard v. Bank of Osceola, 126 Ark. 420, 190 S. W. 849.
Tn this view of the law the plea of the statute of frauds has no application to the facts in the case. This defense was interposed to meet the allegation and proof that appellee bad an oral agreement with Baldwin to pay him the $350 in case the purchasers of the seventy acres of the tract should pay the entire mortgage debt to the Conservative Loan Company. Appellee was entitled to enforce a lien for the unpaid purchase price of the forty-acre tract by virtue of the provisions of the deeds of appellants ’ predecessors in title, irrespective of the oral agreement.
Under the law thus announced as applicable to the facts in the case, the plea of the statute of limitations must fall, as appellee’s right to enforce his lien did not accrue until Parsons paid the entire mortgage indebtedness to the Conservative Loan Company. Parsons did not pay the mortgage debt and obtain the release deed until June 2,1924, and appellee instituted this suit before his action was brought.
Appellants also contend for a reversal of the decree because the trial court subrogated appellee to the State’s lien for the taxes paid. Appellee had an interest in the land, and had a right to pay the taxes to protect his interest. He was not a volunteer in the payment of the taxes, hence is entitled to a lien on the land for the amount he paid to redeem it from the tax sale.
Appellants also contend that the court erred in allowing appellee interest from the date of the mortgage given by appellee to the Conservative Loan Company. They are correct in this contention. Appellee is only entitled to interest from the time his right of action accrued, and that did not accrue until Parsons paid the entire mortgage indebtedness.
The decree is affirmed except as to the excessive allowance of interest, and as to that is reversed and remanded for correction. | [
-12,
109,
-8,
13,
42,
96,
40,
-102,
104,
-95,
-73,
87,
-7,
-58,
64,
33,
-27,
9,
117,
104,
-27,
-77,
51,
100,
82,
-77,
89,
-43,
-79,
77,
-10,
-42,
76,
52,
-54,
85,
-62,
-32,
-19,
16,
-50,
-96,
-71,
108,
-39,
-80,
48,
-81,
80,
79,
97,
-89,
-14,
41,
61,
79,
72,
47,
75,
45,
81,
-24,
-102,
-116,
89,
11,
17,
-25,
-104,
1,
-22,
30,
-112,
49,
8,
-24,
115,
-74,
-106,
116,
10,
-103,
8,
38,
102,
18,
-59,
109,
-116,
-104,
14,
-14,
13,
-90,
-78,
104,
3,
8,
-65,
-99,
82,
16,
7,
114,
108,
-115,
92,
104,
23,
-114,
-106,
-57,
-115,
-68,
-120,
7,
-9,
3,
48,
81,
-50,
-30,
92,
103,
113,
-101,
15,
-5
] |
Carleton Harris, Chief Justice.
This case involves an ice machine. Appellant, Guy -Dwight Sawyer, is an independent grocer, operating in Little Eock. Appellee, Pioneer Leasing Corporation, is a Delaware corporation, which instituted suit against Sawyer for the sum of $2,039.40, pursuant to a written instrument termed “Master Lease Contract.” The instrument recites that the lessor is Pioneer Leasing Corporation and the lessee is Guy Dwight Sawyer d/b/a Sawyer’s All Star Poods. The parties agreed that lessee was leasing a Lineo lee Station, and provided:
“This schedule is for a period of 60 months, at $45.32 per month beginning July 23, 1963. First and last 4 payments payable at time of signing this Schedule in the amount of $226.60.”
Section 5 of the agreement recites:
, “No warranties or representations regarding the items herein leased or their condition, quality or suitability, or their freedom from latent defects, have been made or shall be deemed to be made by the Lessor, and Lessee has selected the items leased and the same have been delivered to Lessee at Lessee’s sole risk and discretion. ’ ’
Section 8 states:
“At the expiration of the term of this lease for any item(s) leased hereunder, Lessee shall immediately redeliver such item(s) at Lessor’s place of business or such other reasonable place as Lessor may designate within the State where the item)(,s) was leased, in like-condition as it was received, less normal wear, tear and depreciation; properly crated with freight prepaid.”
Section 9, a rather lengthy section provides, inter alia, that in ease of default in payment for a period of •ten days, lessor is authorized to take immediate possession of the leased property, and lessee shall remain liable for the payment of the total rental, all such rental being immediately due and payable. Both pages of the instrument provide, “This lease cannot be cancelled.”
The contract commenced on July 23, 1963, and appellant made his down payment, and several monthly payments, the last payment being made in May, 1964. Upon default, the suit was filed, and Sawyer, in his answer, asserted that the performance of the machine had been misrepresented at the time he entered into the contract, and that it was not suitable for the purpose for which he desired to use it, though represented to be suitable, and that there had been an implied warranty of fitness upon which he l-elied; that such warranty had been breached, since the machine had ceased to operate, and was incapable of being repaired. On trial, appellee moved for a directed verdict at the conclusion of the evidence, which motion was granted, the jury returning its verdict for appellee in the amount of $2,039.40. From the judgment so entered, appellant brings this appeal.
Sawyer testified that he had a number of customers who desired that he acquire an ice maker, in order that they might obtain packaged ice. He made inquiry, and subsequently, a man named Don Barnett from Benton (evidently learning of Sawyer’s inquiries) contacted him about a machine. Barnett showed appellant pictures of a Lineo ice making machine, and advised that the machine would work either inside or outside of the building. They decided the best location would be the front porch. Sawyer further stated that Barnett told him that the machine would manufacture 400 pounds of ice per day, and appellant, in agreeing to take same, stated that he understood that he was purchasing the property. Subsequently, Barnett brought back the lease agreement, heretofore referred to, and when Sawyer inquired why he was being asked to sign a lease agreement, instead of a purchase agreement, was told, according to the witness, “Well, it was just like buying a car, after you pay so many payments, it is your box.” Sawyer testified that he did not read the provisions of the contract in detail, and that he had only a sixth grade education.
Still further, according to the witness, the machine, after being installed, worked satisfactorily for about six months, in fact, until “the first cold spell came.” It then ceased to function. Appellant called Barnett to get the name of the mechanic for the company, and was advised that the company did not have one, and that Sawyer should call any refrigeration company. Ralph Henderson, a refrigeration man, was contacted, and the witness related that Henderson worked for over a month on the machine, and was paid “around $100.00 for his work,” but Henderson was unable to get the machine to produce more than fifty pounds of ice per day. Nothing further was done until spring, when a man named Byers was contacted; Byers, too, was unable to get the machine in any better working order, and only charged around $100.00 for his work, instead of the original intended charge of $150.00. After the unsuccessful efforts of Byers, appellant testified:
“Well, I called Mr. McCoy . . . well, I first call Mr. Barnett and in turn called Mr. McCoy, then I called Mr. 'Carter from Memphis and I called a fellow from Warren, then I called the ice making company itself, down in Texas . . . tried to get all of them to do anything about the box, tried to get it to operate. * * * None of them would do anything.”
Thereafter Sawyer quit making payments, and the suit followed.
C. H. Turner of Memphis, Treasurer of Pioneer Leasing Corporation, and in charge of all the records of tlio company, testified that Pioneer Leasing Corporation is in the equipment leasing business. He stated that his company buys equipment after it has been selected by the lessee, and he has signed lease agreements; that all items are delivered to a lessee at the latter’s sole risk, and that the company only purchased the ice making machine because Sawyer had selected it. Turner testified that he had no idea what Sawyer was told at the time he signed the lease; that Barnett had never been an employee of appellee, hut rather, was a sales agent for the supplier of the equipment; that the machine Ijad been purchased from the Tri-State Ice Machine Company, and Sawyer had paid a total of $679.80. The company official said that the expected life of the machine was eight or ten years, and at the end of the five-year lease period, Pioneer “more than likely would have offered to sell it to Mr. Sawyer” for a price that would have to be negotiated. He stated that appellee had had no leases on ice machines that had expired.
John P. McCoy, who had been employed by Pioneer in 1964, 1965, and 1966, stated that prior to the transaction, he had never met Sawyer or Barnett; that he did not write up the agreement and did not know who did write it. The witness had directed a letter to Turner, relating that Sawyer was very unhappy with the machine, had spent money endeavoring to have it repaired, and had expressed the thought that Pioneer should “put the pressure on Tri-State to get the machine working. He claims lie is not going to make any more lease payments until the machine is fixed. I told him that maintenance was not our problem.” McCoy had no idea what Barnett might have told Sawyer about his relationship with the company. These were all of the witnesses who testified.
Of course, the only question before this court is whether appellant offered sufficient evidence to warrant the submission of the case to the jury. There are no express warranties, and the appellant relies upon alleged misrepresentation by Barnett, and a breach of implied warranty. The testimony of Sawyer relative to Barnett’s statements has heretofore been set out. Appellee’s first answer to this argument is that Barnett was not an agent of Pióneer. The testimony of Turner (that Barnett was never an employee of Pioneer)' is pointed out, as well as the fact that Sawyer never did testify that Barnett said he was an agent or employee of Pioneer. Nonetheless, it is undisputed that Barnett was the man who presented the contract to Sawyer, and obtained his signature thereto. In fact, it appears that all proceedings in connection with the execution of the lease by appellant were handled by Barnett — who did not testify. Certainly, the obtaining of the lease was called to the attention of appellee company, for the instrument was subsequently executed by the president of the company, Barclay McFadden — evidence that the contract was thus ratified. More than that, the company accepted payments from Sawyer of over $600.00. In Mark v. Maberry, 222 Ark. 357, 260 S. W. 2d 455, we held that when one accepts the fruit of another’s agency in the sale of property, he cannot subsequently be heard to disclaim such agency. That case involved real estate, but the principle applies likewise to the sale of personal property. We think the testimony on the question of agency was certainly sufficient to make a jury question.
Appellee calls attention to the fact that the “spec sheet” describing the features of the Lineo machine, and prepared by the C. M. Lingle Company, maker of the machine, is stamped at the bottom as showing the distributor of this machine to be Arkansas Ice Making and Vending Equipment Company of Benton. However, we consider this only a circumstance to be presented for the jury’s consideration in reaching its verdict.
This brings us to the question of the implied warranty. Sawyer stated that Barnett told him that the machine would make four hundred pounds of ice per day, and it would operate either on the inside or outside of a building. The literature which was shown to Sawyer states that the ice maker has a capacity of “up to 400 lbs.” According to appellant’s evidence, representations as to the ice making capacity were not limited to the function of the machine during warm months; in fact, the literature shown Sawyer points out “bonus features,” one of which reflects the machine to be “winterized. ’ ’ "What this may mean, is not entirely clear, but it would appear that it could well mean that the ice maker will operate efficiently in the winter, as well as in the summer. "Whether Sawyer was entitled to rely upon this representation is simply another matter for the jury to pass upon.
It is also pointed out that the machine worked well for the first several months, and that, even if Barnett was an agent of Pioneer, and made the representations testified to by Sawyer, such representations (that the machine would operate outside), in order to afford appellant. relief, must have been false at the time Sawyer claims to have relied upon them; since the machine did operate, as represented, for six months, there could be no misrepresentation of this fact. As a matter of law, we cannot say that we agree. After all, six months is about one-tenth of the total period to be covered by the lease, a lease that was non-cancellable. Could it be said that, if one purchases a new automobile which operates entirely satisfactorily for a few months, any implied warranty that the vehicle was suitable for the purpose for which it was bought has been fully complied with even though it practically falls apart thereafter?
It is likewise argued that appellant employed mechanics to work on the machine, and continued payments for about ten months, and (says appellee) this confirms that Sawyer understood that there were no warranties, and that maintenance was solely his obligation. Of course, the record also reflects that Sawyer contacted Barnett and McCoy relative to the malfunction of the machine, but again, we simply point out that these were circumstances to be considered by a jury when determining the controversy, i. e., these acts by appellant over the period of time involved, do not, as a matter of law, bar him from obtaining relief.
Ark. Stat. Ann. § 85-2-316 (2) (Add. 1961), a part of the Uniform Commercial Code, provides:
“Subject to subsection (3) [which does not here seem applicable], to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify amy implied warranty of fitness the exclusion must be by a writing and conspicuous. [Our emphasis.] Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’ ”
In the contract before us, this provision has not been complied with. In fact, the entire agreement itself, including Section 5, heretofore quoted, is in very small print.
Of course, appellant contends the transaction is governed by the code, but the code is generally thought of as applying only to sales. Appellee points out that the contract under discussion was not a sale, since the lease does not provide for the passing of title. We agree with that contention. Item 8, previously set out, describes what shall be done with the property at the end of the sixty months.
It is entirely possible, in fact, probable, as testified to by Turner, that Pioneer would have sold the machine to Sawyer if a price could be agreed upon, and the transaction is very close to being a sale. Still, the lease agreement definitely sets out that appellant shall, at the expiration of the term of the lease, immediately redeliver the leased property to lessor. It would thus be difficult to say that the instrument is not a lease — 'but we have reached the conclusion that it is subject to the pertinent, provisions of the code, more specifically, the quoted subsection of Section 85-2-316. In reaching this conclusion, we are impressed with the reasoning of several authorities in this field. E. Allen Farnsworth, Associate Professor of Law at the Columbia University Law School, in an article, “Implied Warranties of Quality in Non-Sales Cases,” 57 Colum. L. Rev. 653 (1957), states:
‘ ‘ To say that a warranty is implied in a sale is not to say that none is implied if there is no sale. Implied warranties of the quality of goods are today firmly entrenched in sales law and their growth has been paralleled by that of similar warranties where goods have been supplied under conditions not amounting to a sale. Yet so little attention has been directed to the latter that it is not unusual to find the assertion of an implied warranty rejected with the explanation that since the transaction was not technically a sale, no warranty could be implied. Conscious of this, the draftsmen of the Uniform Commercial Code state in a comment:
“ ‘Although this section is limited in its scope and direct purpose to warranties made by the seller to the buyer as a part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined either to sales contracts or to the direct parties to such a contract. They may arise in other appropriate circumstances such as in the case of bailments for hire, whether such bailment is itself the main contract or is merely a supplying of containers under a contract for the sale of their contents. ’
The writer then compares other uniform acts (Uniform Sales Act and Negotiable Instruments Law), pointing out that, though the sales act does not expressly provide for the implication of warranties in non-sales cases, it has influenced cases involving the non-sale of goods; further, that the Negotiable Instruments Law has, at times, been used as a source of rules to govern non-negotiable bills and notes.
Continuing, the writer says:
“A bailment for hire differs from a sale in that, while a sale transfers ownership in exchange for the price, a bailment for hire merely transfers possession in exchange for the rental and contemplates the return of the chattel to the owner. Yet it is very like a sale in regard to the reliance upon the supplier of the goods, and it is not surprising that a warranty of fitness for the intended use has been implied in a variety of such cases. * * *
‘ ‘ The obligation is in many respects similar to that of the seller of goods. For example, there is no warranty where the bailment is gratuitous, nor does the duty extend to those not in privity with the bailor, and if the bailee has inspected the chattel, there is no warranty as to defects which the inspection should have revealed. The warranty is commonly described as though analogous to that of fitness for a particular purpose under the Uniform Sales Act, rather than that of merchantability.”
Still further, it is added:
“It has been suggested that just as the mass production of goods gave momentum to the growth of the modern law of the seller’s obligations for the quality of those goods, so too the mass production of housing can he expected to create new obligations of sellers for the quality of that housing. Even more certainly, the boom in enterprises which thrive on the rental of everything from automobiles and floor waxers to linens and diapers portends an increase in the obligations of entrepreneurs now operating largely under rules formulated during the time of the horse and carriage.
* * #
“The preceding discussion indicates that there is respectable authority for the extension of implied warranties to non-sales cases, in spite of a tendency to overlook the possibility. In borderline cases reasoning by analogy to sales law should not be merely a technique of last resort to be used only where the facts will not support the finding of a sale. It is preferable to categorization of the contract as one of sale and direct application of the sales statute.”
In Hart and Willier, Forms and Procedures Under the Uniform Commercial Code (1966), a similar view is expressed. The authors state in Paragraph 12.02, Subsection 1, Page 1-64:
“The warranty question is an example of application of Code provisions by analogy. While rented goods are not ‘sold,’ a property interest short of ‘title’ is transferred as in a sale and the transaction is in the nature of a bargain. Thus, express warranties, promissory or affirmatory in nature, could as well be a basis of the bargain under Section 2-313 as in a sale, and implied warranties, collateral to the transfer aspect, could logically accompany the transaction. More specifically, the lessor may expressly affirm that a machine to he leased will he of a certain model or capacity or the lessee may rely npon the lessor’s skill and judgment in supplying goods suitable for a particular purpose to the lessor [sec. 2-315], How much simpler and more certain it is for courts, counsel and parties if they can apply the rules of Article 2 by analogy to determine their obligations and their remedies. Still, courts at the trial level have shown a reluctance to do this. One court, however, has done so with reference to the sale of securities, expressly excluded from the definition of ‘goods’ in Section 2-105, insofar as Article 8 contained no rules relevant to the particular conduct in dispute. Both the leasing-of-goods and sale-of-securities examples involve commercial transactions and the Code encompasses commercial transactions. ’ ’
It is pointed out that Section 2-102 (Ark. Stat. Ann. § 85-2-102 [Add. 1961]) applies to transactions in goods, and that Section 2-202 (Ark. Stat. Ann. § 85-2-202 [Add. 1961]) omits all direct reference to sales transactions. The authors then state:
“ * * * It should, therefore, apply to a lease of goods —a transaction in goods — by this simple construction of statutory language. ’ ’
It is thus clear that there is respectable authority for applying code provisions in some instances where the transaction is analogous t'o a sale. It is true that the authorities cited do not discuss the disclaimer provision in the code, nor do we find cases where this provision, as applicable to a lease, has been decided. However, in Fairfield Lease Corp. v. Colonial Aluminum Sales, Inc., 3 UCC Rep 858 (NY Sup Ct., 1966), a case from the New York Supreme Court (not the court of last resort), a coffee vending machine had been leased by a vending company to the defendant. This lease had subsequently been transferred to a vending credit corporation, and suit was instituted against the defendant for a balance of payments dne under the lease agreement. After passing upon one point, the court then stated:
“The defendants also claim the lease, when considered in its entirety, is unconscionable (see, Uniform Commercial Code, § 2-302). This contention is based on the absence of any provision in the lease obligating the lessor to service and repair the machine, and the inclusion of a clause reciting that: ‘Lessee agrees . . . .[the machine] is suitable for its purposes, and that Lessor has made no representation or warranty with respect to the suitability or durability of [the machine] for the purposes and uses of Lessee, or any other representation or warranty, express or implied with respect thereto.’ In view of the denial of summary judgment, the court at this time need not decide whether the disclaimer of warranties is enforceable (Uniform Commercial Code, § 2-316) * *
So, at least, the question of whether the disclaimer provision is applicable, in appropriate circumstances, to a lease agreement, though not passed upon by the court, has been noted and urged as a point of reversal. We see no reason why, if appropi’iate lease transactions can properly be governed by the rules applying to sales, the disclaimer section should not also apply. If, in a sales transaction, one is required to exclude an implied warranty of fitness by a writing that is conspicuous, we see no reason why the same provision should not apply to leases that are analogous to a sale.
The comment by the New Jersey Supreme Court in the case of Cintrone v. Hertz Truck Leasing, Etc., 212 A. 2d 769, somewhat expresses our thinking in the matter. This case was not decided under the Commercial Code, but under common law warranties, although the code is referred to. The litigation related to the injury of Cintrone while a passenger in a truck which had been leased by bis employer from appellee. The complaint, inter alia, alleged a breach of appellee’s warranty that the vehicle was fit and safe for use. The trial court dismissed this warranty claim by Cintrone, but on appeal, the Supreme Court reversed, holding that, on the facts proved, the contract for the leasing and use of the truck gave rise to an implied warranty that it was fit for the use contemplated by plaintiff’s employer. It was further held that the evidence adduced created a jury question as to whether a breach of the warranty had been shown, and whether, if shown, it was the producing cause of the accident. It is true that this action was in tort, but we find it entirely logical to apply the same rationale to cases in contract. The court’s discussion as to this feature is as follows:
“There is no good reason for restricting such warranties to sales. Warranties of fitness are regarded by law as an incident of a transaction because one party to the relationship is in a better position than the other to know and control the condition of the chattel transferred and to distribute the losses which may occur because of a dangerous condition the chattel possesses. These factors make it likely that the party acquiring possession of the article will assume it is in a safe condition for usé and therefore refrain from taking precautionary measures himself. 2 Harper and James, Torts, § 28.19 (1956). Harper and James point out that the presence of such factors in sales set in motion the development of the doctrine of implied warranties. They decry the notion, however, that because the doctrine had its origin in sales, the warranty protection should be ivithheld in other situations when the same considerations obtain. And they argue persuasively that in the face of present-day forms of business enterprise, development of the warranty doctrine in sales should point the tray by suggestive analogy to similar results in cases cohere a commodity is leased. [Our emphasis.]
“In this connection it may be observed also that tlie comment to the warranty section of the Uniform Commercial Code speaks ont against confining warranties to sales transactions.* * *”
The court continued, first quoting the article from Farnsworth (not included in our earlier quote):
“ ‘The expansion of enterprises engaged solely in bailment for hire seems to justify increasing imposition of absolute warranties, at least to the extent that they would be imposed upon a seller of similarly used goods. In addition, reliance is greater than in the typical sale, for it is generally true that the bailee for hire spends less time shopping for the article than he would in selecting like goods to be purchased, and since the item is not one he expects to own,, he will usually be less competent in judging its quality.’
“A sale transfers ownership and possession of the article in exchange for the price; a bailment for hire transfers possession in exchange for the rental and contemplates eventual return of the 'article to the owner. By means of a bailment parties can often reach the same business ends that can be achieved by selling and buying. ’ ’
We are holding that Section 85-2-316 (.2) is applicable to leases where the provisions of the lease are analogous to a sale. Here, the contract provides that the lessee shall pay all expenses of repairs and maintenance ; further, Mr. Turner, the company treasurer, testified that it was probable that the machine would be offered for sale to appellant at the end of the sixty months’ period. The transaction really seems to be a sale in every respect, except for the fact that the instrument provided that the ice machine should be returned to the lessor.
Let it be remembered that this subsection refers only to implied warranties; this holding has no effect on any other provisions in the code — and, of course, to protect himself, the lessor néed only, in his disclaimer, to use conspicuous language. He is thus fully protected. After all, what legitimate objection can be made to using type (for the disclaimer) that is conspicuous?
This is the first case of this nature to come before this court since the Uniform Commercial Code was enacted into law by the General Assembly, and, though not meaning to imply that subsequent remarks are directed to the case at bar, we think it well to point out that agreements of this nature will be examined closely by this court. It is possible that similar agreements could be used to cloak usurious charges, i. e., a transaction which was actually a sale could be set up as a lease in order to enable charges to be made that would, under a credit sale, constitute usury.
In accord with the reasoning set out in this opinion, we are of the view that the court therefore erred in directing a verdict for appellee. The judgment is reversed, and the cause remanded, with directions to proceed in a manner not inconsistent with this opinion.
Fogleman and Byrd, JJ., dissent.
See A page 962 for paragraph inserted here by amendment .September 3, 1968.
These were not cases under the code.
Willier and Hart are professors of law at Boston College Law School.
Under the common law, there was an implied warranty of fitness in leasing contracts of personal property. | [
114,
122,
-40,
-52,
24,
96,
58,
-38,
81,
100,
119,
19,
-17,
-58,
20,
43,
-9,
127,
85,
122,
103,
-29,
2,
-30,
-46,
-45,
-47,
-3,
-79,
79,
-28,
-60,
76,
44,
-126,
53,
-26,
67,
-63,
-36,
78,
32,
57,
-32,
-15,
0,
48,
24,
16,
76,
73,
5,
-9,
44,
17,
75,
41,
44,
-23,
33,
-48,
-16,
-13,
-115,
127,
18,
-80,
36,
-108,
69,
-56,
12,
-128,
-79,
40,
-24,
122,
-90,
-124,
116,
11,
-97,
9,
34,
103,
-126,
9,
-17,
-44,
-68,
-124,
-38,
15,
-122,
-44,
88,
43,
65,
-66,
-100,
120,
20,
101,
118,
38,
-108,
31,
97,
3,
-118,
-44,
-93,
-115,
-22,
-98,
15,
-17,
7,
48,
112,
-113,
-86,
92,
71,
58,
19,
-57,
-78
] |
McHaney, J.
Appellant, a citizen and taxpayer of the city of Little Rock, brought this action against appellee to enjoin it from appropriating and paying $5,000 to the Community Chest of Greater Little Rock. The complaint alleges that such payment would be in violation of § 9583 of Pope’s Digest as amended by Act 288 of 1941. Appellee answered admitting that it had passed an ordinance appropriating $5,000 as a contribution to the Community Chest; that the Little Rock Community Chest is a non-profit association or institution which provides funds for carrying on various types of social and welfare work in greater Little Rock, and it realizes funds from contributions from the citizens of both cities and other sources; and that the Community Chest supplies funds to 22 different social and welfare agencies, such as Ada Thompson Home, Florence Crittenton Home and others, naming them and setting out the work of such agencies.
The answer then sets out the purposes and objects of the Community Chest and that the city has in its treasury sufficient general funds to pay said donation. It denies that the payment of said amount is forbidden by any provision of statute and particularly those cited. Appellant demurred to this answer, which was overruled. He declined to plead further, and his complaint was dismissed as being without equity, and he appealed.
This is a companion ease to case No. 6857, City of Little Rock et al. v. Community Chest, ante, p. 562, 163 S. W. 2d 522. We think § 9583 of Pope’s Digest, quoted in the other case, does not have the meaning contended for by appellant. It was § 2 of Act 230 of 1919 and was in effect when the decision in the case of Bourland v. Pollock, 157 Ark. 538, 249 S. W. 360, was rendered in 1923. We are of the opinion that this case is ruled by that.
Affirmed. | [
-12,
-4,
-4,
124,
10,
64,
50,
-86,
83,
-93,
38,
-45,
105,
76,
20,
105,
-29,
125,
81,
114,
-59,
-74,
7,
98,
-6,
-77,
-7,
-59,
-79,
-51,
-28,
-10,
76,
49,
-22,
-35,
98,
-62,
-59,
26,
-114,
-115,
26,
-51,
121,
-64,
52,
103,
48,
11,
101,
-98,
-77,
40,
16,
107,
45,
44,
73,
63,
80,
-13,
-66,
-123,
111,
5,
33,
38,
-104,
69,
-62,
56,
-104,
49,
17,
-24,
115,
-90,
-126,
52,
79,
-99,
44,
112,
98,
2,
-91,
-13,
-112,
-120,
14,
-98,
-115,
-92,
-44,
121,
11,
79,
-74,
22,
108,
-44,
6,
-2,
-10,
-43,
95,
108,
9,
-114,
-44,
-79,
-83,
112,
84,
-125,
-49,
35,
18,
112,
-50,
-78,
92,
-57,
50,
-101,
-122,
-48
] |
Mehaeey, J.
The appellant, J. L. Driver, brought suit in the circuit court of Mississippi County for $500 for breach of contract. The jury returned a verdict for. $1 on January 19, 1927. Court was in session on the 20th and 21st days of January, and then adjourned until the 24th day of January, and on that day, January 24, the appellant, Driver, filed his motion-for a new trial.
Treadway thereupon filed a motion to strike the motion for a new trial from the files, on the ground that it was not filed within three days after the verdict was rendered. The court, in sustaining Treadway’s motion, stated: “The plaintiff was entitled to a verdict for $500, and the verdict ought to be set aside. But the plaintiff did not file his motion for ia new trial within three days after the verdict was rendered, and I cannot consider it.” And the judgment striking the motion for a new trial from the record recites: “The court is without jurisdiction to entertain plaintiff’s motion for a new trial or set aside said verdict, for the reason that said motion was not filed within three days from the date of the rendition of the verdict.”
The only question presented hy this appeal is whether Ihe court could act on the motion for a new trial which was filed more than three days after the verdict was rendered.
The statute reads in part as follows:
“The application for a new trial must be made at the term the verdict or decision is rendered, and, except for the cause mentioned in subdivision 7 of § 1311, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” Section 1314, Crawford & Moses’ Digest.
The remainder of the section of the Digest provides for the manner of filing motions when the verdict is rendered at or about the closing of the term of court, and authorizes the losing party to present his motion to the judge within 30 days from the date of the verdict or decision. That part of the section, however, is not involved in this appeal.
Appellant contends that the court had jurisdiction and had the right to grant appellant’s motion, although the motion was not filed until more than three days after the rendition of the verdict. The court had the power to set aside the verdict at any time during the term, and a majority of the judges are of opinion, since the lower court announced that plaintiff was entitled to a verdict of $500 and that the verdict ought to be set 'aside, that it was the duty of the court to treat the motion for a new trial as a motion to set aside the judgment, and that he should have heard the motion, and if, in his judgment, the verdict was not sustained by the evidence, he should have set the verdict aside and granted the plaintiff another trial.
Mr. Justice Humphreys, Mr. Justice Kirby and the writer, do not agree to this, their opinion being' that the statute fixing the time in which motions for a new trial shall be filed is mandatory and that the phrase, “unless unavoidably prevented,” authorizes the court to extend the time or permit the motion to be filed after the three days if there is a showing that the person filing the motion was unavoidably prevented from filing it within the three days.
The prior statute on the subject of motions for new trials reads as follows:
“All motions for new trials and in arrest of judgment 'shall be made within four days after the trial, if the term of court shall so long continue, and if not, then before the end of the term, and every such motion shall be accompanied by a written specification of the reasons upon which it was founded.” English’s Digest, chapter •J26, § 131.
In construing that section, this court said:
“More than four days after verdict for the defendant, the plaintiffs below, who are the plaintiffs in error, filed a motion for a new trial, which was stricken from the files on motion of the defendant, and, because the court considered that under the 123d section of chapter 126 of English’s Digest, it had no discretion to entertain the motion. If the circuit court had simply refused, in the exercise of its discretion, to allow the motion for a new trial to remain on file, because filed too late, this court would be slow to interfere with the discretion exercised; but when, as shown by the bill of exceptions, the action of the court was not discretionary, but in obedience to a statute it considered imperative, this court may, if it does not consider the statute imperative, direct the court to use, but not to abuse, its discretion. And it would seem better that statutory regulations concerning the dispatch of business in court should be considered advisory merely, and not destructive of the power of courts to make them comformable to the unforeseen contingencies of legal practice. Courts of original jurisdiction, better than superior tribunals or foreign bodies, can adopt general rules to the exigencies of current business. A golden mean in the administration of justice is found when rules of practice can cause it to be dealt out with certainty and dispatch, but with due regard to accidents that befall and frailties that beset the men that are the agents of such administration. From the considerations of this sort, and from the happily plastic nature of the practice in courts of common law and equity, a distinction has been made between directory and imperative statutes, which has been fully recognized by this court.” Gould v. Tatum, 21 Ark. 329.
This court again said:
“Where a motion filed out of time is considered by the court and overruled, this court will indulge the presumption that the motion was filed with the permission of the court. Fordyce v. Hardin, 54 Ark. 554. The court had the power to consider the motion at any time cluring the term, and the record shows that the court heard the motion at the same term, and overruled it.” Fitzhugh v. Norwood, 153 Ark. 472, 241 S. W. 8.
This court has also said:
“Under the law the verdict of a jury should be in favor of that party who has established the issues of fact for which he contends by a preponderance of the evidence. If the jury hJas not so decided, then its verdict is not correct, and it is the peculiar and exclusive province of the trial court to correct such error by granting a new trial. When the trial court becomes convinced that the verdict is not sustained by a preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict is not sustained by ia preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact, then he must set aside such verdict. Tie trial court presides over the trial. He observes and hears the witnesses, and has the same opportunity as the jury in this respect, and that is the reason why it is made his peculiar and exclusive function to determine the issue, on a review of the verdict, as to whether it is responsive to the preponderance of the evidence in the cause. This court cannot do that, for the reason that it has no such opportunity. Hence the rule is firmly established by the authority of our own decisions, as well as courts of last resort in many other jurisdictions, that a ruling of the trial court overruling a motion for a new trial and sustaining the verdict of a jury, as in accord with the preponderance of the evidence, will not be reversed and the verdict set aside by the appellate court, even though such court may be convinced that the verdict of the jury is clearly against the weight of the evidence. * * # The trial judge still has control of the verdict of the jury after and during the term it was rendered. Because of his training and experience in the weighing of testimony, and of the application of legal rules to the same, and of his equal opportunities with the jury to weigh the evidence and judge of the credibility of witnesses, he is vested with the power to set aside their verdicts on account of errors committed by them, whereby they have failed in their verdict to do justice and enforce the right of the case under the testimony and instructions of the court. This is a necessary counterbalance to protect litigants against the failure of the administration of the law and justice on account of the inexperience of jurors. * * * We cannot approve the doctrine that it is an invasion of the province of the jury for the trial court to set aside a verdict which he finds to be against the preponderance of the evidence. On the contrary, if he fails to do so, he surrenders his own province, ignores his duty, and by so doing destroys the integrity of the best system that thus far has been devised in this country for the administration of justice.” Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851.
It will be observed that the last case cited holds that the trial judge still has control of the verdict during the"term of court, and the majority of the court, as we have already said, holds that the trial court had control of the verdict, and, since he stated that the verdict was wrong and should be set aside, it became his duty to do so.
It is unnecessary to refer to additional authorities, but, for the reasons above given, a majority of the court is of opinion that the circuit court committed error in its refusal to set aside the verdict, and for this error the case must be reversed, and remanded with directions to exercise his discretion as to whether he should set aside the verdict and grant the plaintiff another trial. | [
-48,
-16,
-4,
14,
74,
97,
34,
-68,
-64,
67,
118,
83,
-81,
-57,
12,
61,
115,
105,
117,
107,
-60,
-93,
38,
35,
-78,
-109,
-63,
95,
-67,
-49,
116,
-2,
76,
120,
-62,
-107,
71,
67,
-63,
26,
-114,
-94,
-71,
108,
89,
-53,
48,
57,
86,
15,
33,
-49,
-30,
42,
57,
-57,
-20,
40,
91,
59,
-48,
112,
-101,
5,
127,
0,
-79,
-91,
-98,
7,
120,
12,
-124,
17,
58,
-24,
114,
-74,
-58,
-44,
107,
-103,
8,
34,
34,
1,
5,
-25,
-40,
-87,
47,
30,
29,
-90,
-111,
104,
75,
74,
-106,
-99,
118,
20,
4,
126,
108,
-43,
93,
44,
3,
-113,
-48,
-93,
15,
52,
-74,
-126,
-62,
-125,
48,
50,
-50,
-22,
92,
71,
59,
27,
-49,
-103
] |
J. Fred Jones, Justice.
This appeal is from a decree of the Greene County Chancery Court setting aside a previous decree and confirming and quieting title to all that portion of Lots 4, 7 and 8 east of the St. Francis Levee in Section 32, Township 18 North, Range 8 East in Greene County, Arkansas. For conven ience these lots will hereafter be referred to by number except where a fuller description is necessary.
The first decree in chancery case No. 8366 was entered on December 20, 1961, and confirmed title in the appellant who was the plaintiff in that case. The second decree in chancery case No. 8881 was entered on November 7,1966. This second decree set aside the first decree and confirmed title,in the appellees who were defendants in the first case and plaintiffs in the second case. The entire record of the trial in the first case was made a part of the record in the trial of the second case. On this appeal from the second decree, the appellant relies on the following points for reversal:
“1. The .lower court should not have set aside, cancelled and held for naught the decree of the Greene County Chancery Court in Cause No. 8366 because the proof in this case is contrary to the Court’s finding that no service of any kind was had on Troy Luther and Lula Mae Luther, his wife.
“2. The lower court should not have decreed that title to all that part of Lots 4, 7 and 8 lying Bast of the St. Francis Levee and Drainage ditch in Section 32, Township 18 North, Range 8 Bast, be quieted in Troy Luther and Lula Mae Luther, his wife, as against Alvin J. Ingram because such finding was contrary to law.
“3. Payment of taxes on land under color of title is deemed to be possession.
“4. Payment of taxes on unimproved land for a period of fifteen consecutive years creates presumption of color of title.
“5. Redemption of land from tax sale is not payment of taxes within the meaning of the law.”
The pertinent facts in the record before ns are as follows: In 1940, a Mr. Barnes who owned all of Lots 4, 5, 6, 7 and 8, sold Lots 5 and 6 and all that part of Lots 4, 7 and 8 west of the St. Francis Levee to a Mr. Donaldson.-In 1941, Barnes sold that portion of Lots 4, 7 and 8 east of the levee to a Mr. Austin, and in 1954, appellees purchased Lots 4, 7 and 8 east of the levee from the Austin heirs.
Donaldson sold Lots 4, 7 and 8 west of the levee to Hudson, who in turn sold to Kent who quitclaimed to W. T. Kitchen in 1951 under description as follows: “Lots 8, 4, 5, 6 and 7 in accordance with recent survey and plat replatting lands south and east of re-established meander line and north and west of original levee, of Section 32, Township 18 North, Range 8 East.” In 1952, W. T. Kitchen transferred by quitclaim deed this property by this same description to Kitchen Farms Company. In 1958, Kitchen Farms Company transferred to Mrs. Effie C. Kitchen under description as follows :
“Lots Four (4), Five (5), Six (6), Seven (7) and Eight (8), according to plat of new survey of 1922, and in what would be section thirty-two (32) if the lines were extended.”
In 1959, Effie C. Kitchen sold to appellant, Alvin J. Ingram, under the following description: “Lots 4, 5, 6, 7 and 8 of said Section 32, according to resurvey of 1922.”
In November 1959, the appellee, Troy Luther, executed an instrument in form of timber deed, but designated “Bill of Sale,” conveying the timber on that portion of Lots 4, 7 and 8 east of the levee to one William Leach, and Leach proceeded to cut timber using a steel barge and other equipment in the process.
In May 1960, appellant Ingram filed a verified complaint in the Greene County Chancery Court against Troy Luther and William Leach alleging ownership in certain described lands in Greene County including
“All of Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 according to plat of new survey of 1922, and in what would be, if the section lines were extended, Section 32.”
In deraigning title in his complaint, appellant recited an unbroken chain of deed conveyances from Barnes through Donaldson, Hudson, Kent, W. T. Kitchen, Kitchen Farms, and Effie C. Kitchen. The complaint then alleged that Leach had trespassed and cut timber from the lands described in the complaint under claim of timber deed from Luther, notwithstanding the fact that Leach had been advised that the land from which the timber was cut did not belong to Luther, “and that Troy Luther only claimed that part of Lots 4, 7 and 8 east of the Old St. Francis Levee” (Emphasis supplied).
The complaint prayed a restraining order against Leach, a judgment against Leach for $3,750.00 and an order of attachment against the barge and equipment belonging to Leach. The complaint then prayed that the court
“. . . enter a decree quieting title to said Lots 4, 5, 6, 7, and 8 in this plaintiff, divesting any right, title or interest in said lots out of the defendant Troy Luther and vesting the title thereto in this plaintiff.”
On June 9, 1960, amendment was filed to the complaint alleging payment of taxes for more than fifteen years. On May 27, 1960, a warning order was filed by the chancery clerk warning the defendants to appear within thirty days and answer the complaint of the plaintiff, Alvin J. Ingram.
An attorney ad litem was appointed and publication of the warning order was completed on August 10, 1960, but proof of its publication was not filed until December 20, 1961. The attorney ad litem filed his Report on August 10,1960, setting out that on July 8, 1960, he wrote a letter to Bill Leach and “copies of the same letter to Mr. Troy Luther, General Delivery, Marysville, California;” and that the copies to Luther were returned. The copy of the letter was filed with the report and the pertinent parts of the letter are as follows:
‘ ‘ Suit has been filed against you in Chancery Court here in Greene County, Arkansas, by the above named plaintiff, claiming title to certain lands in Greene County, Arkansas, and alleging that you have jointly cut timber on said lands and damaged the plaintiff to the extent of $3,750.00, and has attached a steel barge with all equipment thereon in Greene County. The prayer lof the complaint is that title be quieted in the plaintiff to the lands described in the complaint for judgment against the two of you jointly in the amount of $3,750.00, and for injunction against you enjoining you from further trespassing upon the land.
“I am enclosing a copy of the temporary restraining order issued in this case. . .” (Emphasis supplied.)
The restraining order did not mention Lots 4, 7 and 8, but only mentioned,
“Fractional Section 32 lying south and east of the New St. Francis River Levee and Lots 1, 2, 3, 5, 6 and 9 according to the plat of New Survey of 1922, and which said lots would be in Section 32 if the section line were extended, all in Township 18 North, Range 9 East, Greene County, Arkansas.” (Emphasis supplied.)
On January 8, 1961, a warning order was issued warning Lula Mae Luther to appear within thirty days and answer the complaint. One month later, on Febru ary 8, 1961, Lula Mae Luther was made a party defendant, by amendment to the complaint, alleging that:
“. . .[T]he said Lula Mae Luther is the wife of Troy Luther and that the deed dated November 12, 1954, recorded in Record Booh 126, page 61, of the records of Greene County, Arkansas, wider which the said Troy Luther claimed title, was made jointly to the said Troy Luther and defendant Lula Mae Luther and, therefore, all of the allegations made in the original complaint against Troy Luther are equally applicable to the defendant Lula Mae Luther.” (Emphasis supplied.)
The amendment then alleged that Mr. and Mrs. Luther aided and abetted Leach in cutting timber from the lands described in the original complaint and prayed judgment against Mr. and Mrs. Luther for $1,000.00 and for attachment against “. . .all of Lots 4, 7 and 8 resurvey of Section 32, in Township 18 North, Range 8 East, G-reene County, Arkansas, east of the Old St. Francis River Levee.”
The attorney ad litem mailed letters to Mrs. Luther c/o Emery Horner, Yuba City, California and e/o General Delivery Marysville, California (the same address he had used six months earlier for Mr. Luther). The (letter mailed to Mrs. Luther imparts exactly the same information to her as the one written to Mr. Luther, including reference to enclosed copy of the temporary restraining order. The amendment to the complaint and the attachment on the land were not mentioned in the letter.
The letters mailed to the appellees were not received by them but were returned to the attorney ad litem. No answer was filed by the appellees and on December 20, 1961, hearing was had on appellant’s complaint. The appellant offered proof to the effect that the land involved was wild and unimproved; that taxes had been paid by Kent, W. T. Kitchen, Kitchen Farms, and appellant, from 1950 through 1961, and the chancellor entered a decree finding among other things,
“That the plaintiff, Alvin J. Ingram, is the owner of Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, in Greene County, Arkansas; that said land is wild and unimproved; that the plaintiff and his grantors have held said land under color of title for more than seven (7) years and have continuously paid the taxes thereon during that time; that there is no adverse occupant of said land; that due notice of the filing of this action has been given as required by law, that Troy Luther and Lula Mae Luther, two of the above named defendants, are non-residents of the State of Arkansas, and although having been duly served, as by law required, came not but made default.” (Emphasis supplied).
The chancellor then decreed:
“ [T]hat the title to the said land, to-wit: Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, Greene County, Arkansas, be and the same is hereby forever quieted and confirmed in the said Alvin J. Ingram, and any claim of defendants Troy Luther and Lula Mae Luther of any interest in said land is hereby cancelled as a cloud upon the title to said land as vested in the plaintiff, Alvin J. Ingram. ’ ’
On February 6, 1963, appellees filed a complaint against appellant to set aside the original decree and to quiet their own title to:
“All that portion of Lot 4, Lot 7 and Lot 8 East of the St. Francis Levy [sic] and Drainage Ditch in Section 32, Township 18 North, Range 8 East.”
The appellant filed a general denial to the complaint and prayed that the complaint be dismissed and that he be awarded “such general and equitable relief as to which he may be entitled.”
On November 7, 1966, after hearing evidence on the issues thus joined, the chancellor set aside the original decree and quieted title in appellees, “for the reason no service of any kind was had on Troy Luther and Lula Mae Luther, his wife, and said decree is void and of no effect.”
Appellant obviously attempted to follow Ark. Stat. Ann. § 27-354 (Repl. 1962) in attempting service on ap-pellees. This section provides:
“Where it appears by the affidavit of the plaintiff, filed in the clerk’s office at or after the commencement of the action, that he had made diligent inquiry, and that it is his information and belief that the defendant is * * * a non-resident of this state; * * *the clerk shall make and file with the papers in the case, an order warning such defendant to appear in the action within thirty [30] days from the time of making the order.”
Ark. Stat. Ann. § 27-357 (Repl. 1962) provides as follows:
“A defendant against whom a warning order has been made and published shall, upon completion of the publication of the warning order for the fqur [4] weeks required by law, be deemed to have been constructively summoned upon the date of making the order.”
Something more than the mere publication of a warning order is required in subjecting a nonresident, or his interest in land, to the jurisdiction of the court under a proceeding to quiet and confirm title, and the case be fore us is an excellent example of the good reason why that is so.
The rights and procedure for quieting title to lands in Arkansas are set out in Title 34, Chapter 19 of Arkansas Statutes Annotated §§ 34-1901-1925 (Repl. 1962). Section 34-1901 provides that any person claiming to own land, may bring an action to confirm and quiet title by proceeding in the manner set out. Section 34-1902 provides for the filing of petition in the office of the chancery clerk in the county where the land is located, and for the issuance of summons.
Ark. Stat. Ann. § 34-1905 provides as follows:
“Upon the filing of such petition the clerk of the court shall publish, on the same day of each week, for four (4) weeks in some newspaper published in the county, if one there be, and if not, then in some newspaper having circulation in the county, a notice of the filing of the petition describing the land and the calling upon all persons who claim any interest in the land or lien thereon to appear in said court and show cause why the title of the petitioner should not be confirmed. The chancery court within proper county is hereby authorized and empowered under said notice to find apparent existing liens on said real estate to be barred by the laws of limitation or laches, and decree the cancellation of said liens and the records thereof.” (Emphasis supplied.)
Section 34-1906 provides for the hearing, proof and decree “after proof of publication of the notice aforesaid has been filed. . .” (Emphasis supplied.)
Section 34-1909 is as follows:
“The decree in the cause shall not bar or affect the rights of any person who claims by, through, under or by virtue of any contract with the petition er, or who was an adverse- occupant of the land at the time the petition was filed, or any person who within seven [7] years preceding had paid the taxes on the land, or a remainderman, unless such person shall have been made a defendant in the petition and personally summoned to answer the same. (Emphasis supplied.)
Section 34-1910 provides as follows:
“Any person may appear within three [3] years and set aside the decree if he shall offer to file a meritorious defense, and every person laboring under the disability of infancy, lunacy, idiocy, [or] married women under the disability of coverture and those claiming under them may set aside the decree at any time within [3] years after the removal of such disability.”
Had appellees received everything mailed to them by the attorney ad litem, they would have only been advised that appellant had filed a suit in Greene County to quiet and confirm title to some unspecified land he owned in that county; that Leach, to whom they had sold some timber, had trespassed on- the land belonging to appellant and had cut some timber therefrom; that appellees were being sued, along with Leach, for damages in trespass; and that Leach was being restrained from cutting timber from the land belonging to appellant and in which appellees had no interest and claimed none. A copy of the complaint was not mailed to appellees, but apparently for the purpose of allaying any curiosity appellees might entertain as to exactly what lands were involved, in the event they should receive the letters, the attorney ad litem enclosed a copy of the restraining order on section 32 east of the new St. Francis River levee and Lots 1, 2, 3, 5, 6 and 9. Appellees’ land east of the old St. Francis River levee was not mentioned in the restraining order, neither was any part of Lots 4, 7 and 8 mentioned in the restraining order or in anything else mailed to appellees. Had ap-pellees seen the warning orders published by appellant, they would have only been informed that they had thirty days in which to answer the complaint filed against them for damages caused by Mr. Leach’s trespass on land belonging to appellant and cutting timber which they did not sell to Leach, and on land never claimed by the appellees.
It would appear, from the overall record in this case, that appellant attempted to quiet title to appel-lees’ land by alleging adverse possession through the payment of taxes in a complaint disguised as an adversary proceeding for money judgment in damage for trespass; The record indicates that an effort was ¡made to submerge a quiet title action in a complaint for damages in trespass requiring nothing more than a thirty day warning order for service on appellees, who are out of state owners of the land involved. Instead of doing’ everything possible to advise appellees that a suit had been filed to quiet title in their land, the attorney ad litem appears to have made a concerted effort to avoid doing so, and he made no effort whatever to advise ap-pellees that their title was being questioned. If the attorney ad litem knew that appellant was claiming title to the land involved, the information he mailed to ap-pellees could only have been designed to mislead appel-lees as to the nature of the law suit filed against them, and to lull them into a sense of false security in the event appellees should receive the information he mailed to them. In the amendment to the complaint making Mrs. Luther a party defendant, the complaint even prayed an attachment before judgment against the very land appellant claimed to own in his original complaint.
Appellees alleged fraud on the court in that appellant concealed from the trial court the fact known to him that appellees had record title to the property and had paid the taxes thereon. A part of appellant’s veri fied answer to the complaint in canse No. 8881 is as follows:
“In this connection defendant alleges that in the argument to the Court counsel for this defendant stated to the Court that on a part of said area claimed by plaintiff in Cause No. 8366 said parties had on a few occasions attempted to pay taxes on a portion of said land. . .” (Emphasis supplied.)
A few excerpts from the testimony of appellant’s own attorney speaks plainly on this point:
“Q. Mr. Davis, just tell what efforts you made to locate the defendant in that law suit?
A. I was very much interested personally in this property because I represented, me and my firm, represented Mrs. Effie Kitchens who had received from the Kitchens Farm Company, for her stock, one-half interest in the Kitchens estate. She had received all of the land that is shown on Exhibit “A” that we filed here.
# * *
I handled the sales, personally, of all of that property that Mrs. Kitchens received out of the Kitchens estate. . .Now Dr. Ingram is my son-in-law ancf I prevailed on him to buy this land from Mrs. Kitchens and because of the fact that he is my son-in-law and the further fact that I had gotten him to buy this land, I was vitally interested in the title. I had the abstract made and brought down to date and I had never heard of Troy Luther until a Mr. William Leach started cutting timber over there and Dr. Ingram’s tenant called me and told me.
# # #
I did know Mr. Luther was paying taxes occasionally and then letting them go and redeeming them. I found that from the record.
I knew from the deed from Mrs. Kitchens that Luther was claiming it.
Q. At the time you got your deed from Mrs. Kitchens to the lots -that are involved in this law suit, you were on notice that Troy Luther had been paying taxes on these particular lots for more than fifteen years?
A. From the standpoint of the record, yes. But from the standpoint of personal knowledge, no.
Q. You knew when you filed that law suit Troy Luther had a warranty deed and record vested title to the property in question to he and his wife?
A. Certainly I hneiv it at that time. (Emphasis supplied.)
Appellant here was his attorney’s son-in-law. He is charged with the knowledge of his attorney. Appellant’s attorney knew from the deed and tax records, that ap-pellees had record title to the property involved and had been paying their taxes thereon for fifteen years when his suit for damages in trespass and to quiet title was filed. He was bound to have known that Kitchens Farms had no title to this land when it was deeded to Effie Kitchens — he represented Effie Kitchens at that time and personally handled the transaction whereby she acquired her deed.
If appellant did not know of appellees’ title and continuous payment of taxes when the complaint was filed in case No. 8366, the quiet title portion of that law suit was not such adversary proceeding that would support a confirmation decree on constructive service on an out of state owner without notice, or notice filed, and without personal service.
If appellant did have full knowledge of appellees’ record title and payment of taxes, then certainly in the light of the misleading information mailed to appellees by the attorney ad litem, appellant’s statement, through his attorney, to the trial court that appellees “had on a few occasions attempted to pany taxes on a portion of said land” as alleged in his verified answer, was misleading and smacks of fraud, and will not be condoned by this court on appeal, where we try .equity cases de novo.
We conclude that the decree entered in case No. 8366, insofar as it confirmed appellant’s title in appel-lees’ land, was void for several reasons. It was void- for the reason that the notice was not published as required by Ark. Stat. Ann. § 34-1905, supra, and as recited in the decree as having been done. The decree.was void because it was rendered before proof of publication of the aforesaid notice had been filed. Even if the notice had been published as required by § 34-1905, supra, and the decree had been rendered after proof of the publication of notice had been filed as provided in § 34-1906, supra, still appellees’ rights would not have been affected by the decree, because appellees had paid the taxes on the land, not only within seven years, but for fifteen years preceding, and they were not personally summoned to answer the petition in which they were made defendants, as provided in § 34-1909, supra.
Even if all the statutory requirements had been met and complied with and the first decree had been a perfectly valid decree, still under § 34-1910, supra, ap-pellees had three years from the entry of the decree in which to appear and set aside the decree by offering to file a meritorious defense.
Appellant joined the issues by general denial in his answer. The record in the first case was consolidated with the record in the second, and for all practical purposes the separately numbered cases were consolidated at the trial of the second numbered case, and no objections were made by the appellant to this procedure.
We are of the opinion that the chancellor was correct in setting aside his original decree. We are also of the opinion that the chancellor’s decree, quieting and confirming appellees’ title to the property involved, is not against the preponderance of the evidence and should be affirmed.
Affirmed.
Harris, C. J., concurs in the result.
BrowN and Byrd, JJ., concur.
George Bose Smith and FoglemaN, JJ., dissent. | [
-16,
-18,
-11,
124,
-70,
-63,
10,
9,
90,
-93,
100,
83,
111,
-62,
21,
57,
-29,
125,
117,
121,
-26,
-74,
119,
-32,
80,
-77,
67,
-57,
-67,
77,
-90,
-41,
76,
32,
-53,
-107,
-60,
-62,
-51,
92,
86,
65,
-117,
77,
-39,
96,
52,
43,
80,
15,
21,
-66,
-14,
44,
49,
-62,
105,
44,
-55,
43,
80,
-70,
-101,
21,
-1,
7,
1,
36,
-104,
1,
72,
74,
-112,
49,
0,
-24,
115,
-90,
22,
116,
15,
-103,
40,
34,
102,
2,
-83,
-17,
-16,
-104,
6,
-2,
-115,
-74,
66,
25,
67,
32,
-74,
-108,
125,
16,
70,
-2,
-28,
-123,
93,
108,
15,
-50,
-106,
-111,
-49,
40,
-126,
19,
-29,
67,
48,
113,
-49,
-26,
93,
71,
83,
27,
-114,
-47
] |
Hart, C. J.,
(after stating the facts). The instrument of writing in question specifically names Annie Hayes as one of the devisees therein. The record shows that the widow of E. P. Powell, deceased, took out letters of administration upon his estate, and thereby in effect refused to offer the instrument of writing in question as his last will and testament. In such cases the general rule is that a devisee is .an interested party, and may offer the will for p-robate. 40 Cyc. 1229; Page on Wills, 2d ed., vol. 1, § 535; and 28 R. C. L. 360, § 361.
Of course, the instrument in writing offered for probate should be of a testamentary character, because only wills are entitled to be offered for probate under our statute. This brings us to a consideration of whether the instrument offered for probate is a will.
If it be conceded that the devise to Annie Hayes is too indefinite in description of the property to be capable of enforcement, still we think that, when the instrument is construed as a whole and read in the light of the circumstances surrounding the testator when it was made, it is a will. It will be noted that the testator, after the devise to Annie Hayes, wills the balance of his property to his wife and heirs, ias the law provides. This court has held that a will in which the testator provides for all of his children as a class, without expressly naming them, is a sufficient mention of his children within the statute providing that, when any person shall make a will and shall omit to mention the name of a child, he shall be deemed to have died intestate as to such child. Brown v. Nelms, 86 Ark. 368, 112 S. W. 373.
In the alleged will under consideration in this case the testator gave the balance of his property to his wife and heirs, as the law provides. In its strict legal sense the word “heirs” signifies “those upon whom the law oasts the inheritance of real estate.” But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children. Flint v. Wisconsin Trust Co., 151 Wis. 231, 138 N. W. 629, Ann. Cas. 1914B, p. 67, and case-note at p. 70; Commentary on Wills, by Alexander, vol. 2, par. 850-852 inclusive; Page on Wills, 2d. ed., vol. 1, p. 1496, § 891; and 28 R. C. L., p. 248, § 216.
The word “heirs” has been held to be susceptible of two interpretations; the one which is technical, and embraces the whole line of heirs; the other, not technical, but common, and is used to denote the heirs who may come under the designation of heirs at a particular time, and it is often used in common speech as synonymous with children. Turman v. White, 14 B. Mon. (Ky.) 450; and Feltman v. Butts (Ky.), 8 Bush. 115. The holding of this court is in accordance with this rule. Robinson v. Bishop, 23 Ark. 378, and Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914B, 712.
Looking at the entire will and all the circumstances surrounding the testator, we think the word “heirs,” as used in the will, manifestly meant children. The word was not used to denote succession but to describe devisees who were to take under the will. The record shows that the testator had several pieces of real estate, and left surviving him his widow and several children, who state that they are his only heirs at law. He devises the balance of his property, after the devise to Annie Hayes, to his wife and heirs as the law provides. This meant that they should take such part of his estate as they were entitled to under our statutes of descent and distribution, and shows that he did not intend to omit any of his children from his will. Under these circumstances the instrument in writing offered for.probate must be considered to be a valid will, and hence was entitled to be offered for probate by a devisee named in the will, when the other parties beneficially interested had failed or refused to probate it.
The question whether or not the attempted devise to Annie Hayes is sufficiently definite in description of the property to be capable of enforcement cannot be considered by us on this appeal, for that would be to construe the will, which, as we have already seen, we can only do in so far as it is necessary to ascertain whether or not the instrument offered for probate is of a testamentary character and might be considered as a will.
In Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11, it was held that whether an offered instrument is testamentary in form or in substance so as. to be admitted to. probate is a question of law for the court to determine from the face of the instrument. It was also held that the functions of a probate court, when a will is offered for probate, are limited to inquiring into and determining whether the instrument presented as the last will of the decedent was executed in the manner prescribed by stat ute and when he was legally competent to execute it, and free from duress, menace, fraud, and undue influence; but questions as to property rights which might arise out of the consideration of the terms of the will are not to be determined in a proceeding for the probate of a will. The court said, if the instrument offered for probate purports to bequeath or devise any property, either in general or in particular terms, to an individual or class of individuals, then it is of a testamentary character, and may be admitted to probate; but that the probate court has no jurisdiction to interpret or construe the will for the purpose of determining its effect upon the distribution of the property of the testator.
This holding is in accordance with the views expressed by the Supreme Court of Oklahoma in construing our statute. Taylor v. Hilton, 23 Okla. 354, 100 P. 537, 18 Ann. Cas. 385. In that case the court had under consideration § 6521, Mansfield’s Digest, which is now § 10525 of Crawford & Moses’ Digest, providing that, when the proceeding to- probate a will is taken to -the circuit court, the court or jury trying the proceeding shall try how much of any testamentary paper produced is or is not the last will of the testator. It is no part of the proceeding on probate to construe or interpret the will or any of its provisions or to determine' what provisions are valid and what are invalid. If the instrument offered for probate is a will, it must be admitted to probate, and the construction and interpretation of the various provisions are to be determined by other courts having-jurisdiction in the matter.
It follows that the judgment of the circuit court must be affirmed. | [
-16,
125,
-60,
94,
10,
112,
-86,
-104,
-31,
65,
7,
19,
105,
-38,
20,
43,
115,
-85,
65,
75,
70,
-73,
7,
65,
-10,
-13,
-12,
-42,
-31,
-51,
102,
87,
77,
34,
-54,
-43,
-26,
-117,
-51,
-48,
14,
73,
9,
-28,
-63,
-16,
48,
33,
84,
13,
69,
-105,
-79,
43,
61,
71,
-84,
46,
123,
-95,
-48,
-88,
-65,
-121,
125,
3,
-109,
7,
-48,
-51,
-56,
14,
-120,
57,
-128,
-24,
51,
-90,
-122,
-44,
15,
41,
8,
118,
98,
50,
-59,
-1,
-72,
-120,
47,
103,
61,
-89,
-98,
89,
43,
-19,
-75,
-97,
57,
16,
47,
124,
-25,
21,
30,
-28,
8,
-113,
-42,
-95,
9,
122,
-104,
11,
-21,
-109,
48,
117,
-55,
16,
86,
99,
60,
-101,
-122,
-70
] |
Greenhaw, J.
Appellant prosecutes this appeal from the judgment of the Izard circuit court in favor of appellee, in which that court found and held, upon the plea of appellee, that the decision of this court in the case of Metropolitan Life Insurance Co. v. Petty, 196 Ark. 1178, 118 S. W. 2d 248, decided June 20, 1938, involving the same parties, constituted res judicata. The first suit was filed in August, 1937, and the present suit in February, 1942.
On April 2, 1925, appellee issued to appellant a life insurance policy in the amount of $5,000, and a few days thereafter issued to him a supplementary contract, commonly called a total and permanent disability rider, providing for waiver of premiums and payment of monthly-income, which was attached to said life insurance policy. The supplementary contract covered total and permanent disability "as the result of bodily injury or disease occurring and originating after the issuance of said policy.”
In his first suit appellant alleged: : "He has suffered from a general weakened condition; is very nervous, tottery, physically run down and unable to perform any kind of manual labor, (and is) suffering from what the doctors who examined him call Parkinson’s disease.”
In the present suit he alleged: "That plaintiff, Charles C. Petty, is now and has been continuously during and since the month of January, 1938, suffering from nervousness, loss and defect in his speech, loss of use of his right side, including right arm and right leg; poor vision, shaking palsy, Parkinson’s disease, and paralysis agitans; that plaintiff, Charles C. Petty, is prevented thereby from engaging in any occupation and from performing any work for compensation or profit.”
In the case of Metropolitan Life Insurance Co. v. Petty, supra, this court, in reversing the judgment for Petty and dismissing the cause, said: “We have quoted extensively from'appellee’s testimony because it shows beyond a reasonable doubt (1) that appellee was afflicted with a disease of the nervous system at the time he applied for insurance; (2) that the condition of which he now complains is a continuation of the malady existing in March, 1925, symptoms of which relate back to 1921; (3) that such symptoms were apparent to appellee while he was working for Chas. T. Abeles & Company, and (4) that appellee, in applying to the Veterans’ Bureau for service connected disability compensation, regarded his affliction as one originating during the period of his army service.”
In the above case the evidence was reviewed at length. The opinion does not appear in the Arkansas Reports, but'will be found in the Southwestern Reporter.
In the instant case appellee sued for the monthly disability benefits for the months of October, November and December, 1941, and January and February, 1942, as well as for those other months which might accrue before trial. He also sought a waiver of all premiums, beginning at once thereafter, both upon the policy and the supplementary contract,, together with 12 per cent, penalty and attorney’s fees.
A jury was waived and the case was submitted to the court upon the pleadings, the policy involved, and a written stipulation of facts. No other evidence was introduced. The stipulation reads in part as follows:
“That plaintiff is now and has been continuously during and since the month of January, 1938, totally and permanently disabled as a result of Parkinson’s disease and paralysis agitans with which he is afflicted and is prevented thereby from engaging in any occupation or performing any work for compensation or profit, which disability is permanent and which has caused plaintiff to be almost helpless; that the fact that plaintiff is now and has been disabled as set forth hereinbefore has been known to defendant continuously during and since the month of January, 1938; that due proof of said disability has been furnished to defendant.
“The disability referred to above was caused by the same disease and ailments that were the basis for a suit which was filed on this policy and disability rider by plaintiff herein against this defendant in this court and was tried in this court on the 27th day of September, 1937, which suit resulted in a judgment for plaintiff, which judgment, on appeal by the defendant to the Supreme Court of Arkansas, was reversed and the cause dismissed on the ground that the disability of plaintiff upon which he relied for recovery was based upon and caused by a disease which occurred, originated and existed prior to the issuance of the policy; said decision of the Supreme Court was rendered on the 20th day of June, 1938, and is reported in 196 Ark. 1178, 118 S. W. 2d 248 and was docketed as Case No. A-5110.
‘ ‘ The disability alleged in the case at bar is the same disability which plaintiff was suffering when the previous suit hereinabove mentioned was filed and was the basis for said action; that this disability of plaintiff herein is now total and permanent as alleged by him, since the month of January, 1938, but the basis of said present disability and the cause of same is a disease (Parkinson’s disease) which occurred, originated and existed prior to the date of the policy and disability rider sued upon herein as held by the Arkansas Supreme Court in said case.”
It was also stipulated that appellant had paid all premiums due on the policy and rider for the years 1938, 1939,1940 and 1941.
It will be observed that according to the agreed stipulation of facts the disability alleged as the basis of this suit was the same disability (Parkinson’s disease) with which appellant was suffering when the previous suit was filed, and that it “occurred, originated and existed prior to the date of the policy and disability rider sued upon herein, as held by the Arkansas Supreme Court in said case.”
Appellant contends, however, that the doctrine of res judicata does not preclude recovery in the instant case for the reason that appellee concedes that appellant has been totally and permanently disabled since January, 1938, as a result of Parkinson’s disease and paralysis agitans, and that with knowledge of these facts appellee has continued to receive the annual premium of $9 due on the disability rider contract for the years 1938, 1939, 1940 and 1941. It is appellant’s contention that the action of appellee in accepting the premiums due on the supplementary contract with full knowledge of appellee’s total and permanent disability, since January, 1938, constituted an estoppel or waiver which precluded it from contesting this suit and pleading res judicata.
Appellee contends that it had no alternative but to accept the disability premiums; that the contract, including the disability rider clause, was a continuing one, and it had no right to cancel the same and refuse to accept such premiums without appellee’s consent. It further contends-that under the terms of the policy and disability rider appellant was entitled to continuous protection against any bodily injury or disease not originating or occurring prior to the issuance' of the policy, and that in consideration of the $9 premium he has paid annually since the first case was reversed and dismissed by this court in 1938, he has received such protection under the contract, and that it had a right to assume that appellant continued to pay his premiums because he desired such protection, and did not want his disability coverage canceled. ' s
The case has had our careful consideration, and we think the circuit court was correct in sustaining the plea of res judicata. For a discussion of the law regarding res judicata. See Meyer v. Eichenbaum, Trustee, 202 Ark. 438, 150 S. W. 2d 958.
Even though appellant is precluded from recovering -the benefits sought here, it is possible he might sustain a bodily injury or contract a disease other than the disease with which he is now afflicted, which would, within the meaning of the policy, render him totally and permanently disabled, thereby entitling him to the benefits thereunder. We think, therefore, that in accepting the premiums for the years 1938-41 it was not appellee’s intention to waive its defenses to a claim by appellant based upon Parkinson’s disease, but to afford appellant coverage for any subsequent disability which he might incur.
Appellant further argues that the two-year incontestable period had expired since the trial in the other case and prior to the filing of the present suit. We are unable to agree with this contention. Under the incontestable clause of the policy, the right of the insurance company to contest all claims thereunder expired two years from the date of the policy “except as to provisions and conditions relating to benefits in the event of total and permanent disability . . . contained in any supplementary contract, attached to and made a part of this policy.” The supplementary contract among other things provided for disability benefits, waiver of premiums, etc., in the event the insured became totally and permanently disabled as the result of bodily injury or disease “occurring and originating after the issuance of said policy.” Therefore, the incontestable clause did not .preclude appellee from contesting the present suit on the ground that the disability originated prior to the issuance of the policy.
Affirmed. | [
-80,
-24,
-44,
-114,
10,
97,
32,
-126,
113,
-62,
37,
83,
-23,
-10,
21,
33,
-25,
109,
65,
42,
-9,
-77,
54,
-94,
-46,
-105,
-23,
-59,
-111,
93,
-26,
-76,
13,
56,
66,
17,
-26,
66,
-59,
16,
-54,
12,
9,
-23,
121,
-48,
48,
127,
-48,
79,
49,
-114,
-53,
42,
27,
-61,
44,
106,
88,
-72,
-48,
-72,
-117,
5,
-5,
19,
33,
4,
-104,
79,
-12,
25,
-104,
49,
16,
-20,
50,
-90,
-58,
118,
107,
-103,
12,
102,
98,
32,
9,
-75,
-56,
-104,
54,
-48,
31,
-123,
-77,
120,
59,
1,
-106,
-99,
126,
12,
15,
124,
-4,
-100,
28,
44,
3,
-114,
-108,
-77,
-17,
100,
-100,
11,
-26,
75,
54,
81,
-113,
50,
92,
71,
115,
-101,
-106,
-122
] |
Conley Byed, Justice.
Personal jurisdiction 'over nonresident appellees Crown Cork & Seal Company, Inc., a New York corporation with its principal place of business in Philadelphia, Pennsylvania; Superior Valve & Fittings Company, a Pennsylvania corporation; and Chase Products Company, an Illinois corporation, under Ark. Stat. Ann. § 27-2502 C. 1(d) (Supp. 1967) (being § 103 [a] [4] of the Uniform Interstate and International Procedure Act), is the issue on this appeal by appellants W. C. Hull and Lillie Hull, his wife, and Pennsalt Chemical Corporation, a Pennsylvania corporation, which has filed a third party complaint against appellees. The statute provides:
‘ ‘ C. Personal jurisdiction based upon conduct.
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State;
* # *
(d) causing tortious injury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State;
* * *
2. When jurisdiction over a person is based solely upon this section, only a (cause of action) , (.claim for relief) arising from acts enumerated in this section may be asserted against him.”
This case originated in the trial court as a tort action and a breach of warranty action, which were consolidated for trial purposes, against Pennsalt Chemical Corporation, a Pennsylvania corporation; Crown Cork and Seal Company, a New York corporation; Chase Products Company, an Illinois corporation; Superior Valve & Fittings Company, a Pennsylvania corpora tion; and in the warranty action against Budlock Refrigeration Supply Company, Inc., a Tennessee corporation.
The action arises out of an explosion on May 16, 1962, of a can of refrigerant manufactured by Pennsalt Chemical Corporation and labeled “ PENNSALT HAN-DI-CAN REFRIGERANT 12.” The can and top for the refrigerant were manufactured by defendant Crown Cork & Seal Company. The refrigerant was packaged in the can by Chase Products Corporation. The valve used by Hull in attempting to put the refrigerant into the air conditioner of an automobile was manufactured by Superior Valve & Fittings Company. The allegation in the complaint is that Hull’s employer, the McCaa Chevrolet Companjr, purchased the Pennsalt Handi-can Refrigerant 12 from Budlock Refrigeration 'Supply Company, Inc.
The trial court restricted all interrogatories about appellees’ solicitation of business and the revenues derived therefrom to matters arising before May 16, 1962, and upon the record made held that the court had no personal jurisdiction over appellees Crown Cork & Seal Company, hereinafter referred to as Crown Cork; Chase Products Company, hereinafter referred to as Chase; and Superior Valve & Fittings Company, hereinafter referred to as Superior Valve.
For reversal appellants contend that the trial court erred in holding that appellees’ activities were not embraced within § 27-2502 C. 1(d), and in limiting or restricting interrogatories on the subject to the period before accrual of plaintiff’s cause of action.
For affirmance appellees contend (1) that the cause of action involved herein did not arise from actions enumerated in § 27-2502 C. 1(d) as the same is restricted by subsection C. 2 of the statute; (2) that to submit them to the jurisdiction of the Crittenden Circuit Court would violate due process of law; (3) that appellees were not regularly doing or conducting business or engaged in any other persistent course of conduct in Arkansas or deriving substantial revenue from goods consumed or services used in Arkansas; (4) that § 27-2502 C. 1(d) does not apply to a warranty case and (5) that appellants did not preserve their right on appeal to argue the limitation of interrogatories in the trial court.
It is admitted that appellees are not authorized to engage in business in the state of -Arkansas, have no offices or places of business in the state and have no agents or servants resident in the state. It is further admitted that up to May 16, 1962, appellees had no warehouses and stored no merchandise in the state of Arkansas for delivery to customers.
The facts show that Chase does not sell directly to persons, firms or corporations in the state of Arkansas but does sell through independent brokers and manufacturers’ agents. During the three years immediately before the accident it sold through such agents and shipped by common carrier to Little Rock Wholesale, Little Rock, Arkansas, an item known as “Super Spraysno.” The amount shipped in 1960 was $1,987.78; in 1961 was $546.48; and in 1962 (up to May 16) was $123.60. Its annual sales volume is over $5,000,000. It had processed $22,000 worth of units for Pennsalt in connection with “Pennsalt Handi-can Refrigerant 12” for the period involved. This processing consisted of 63,955 units in 1960, no units in 1961, and 49,779 units in 1962 up to May 16. The units processed were, upon orders of Pennsalt, shipped by common carrier to all of the states bordering Arkansas.
Notwithstanding its shipments to the bordering states and the fact that it knew the intended use of the refrigerant, Chase denies that it had knowledge or reason to believe that the cans would be sold or used in Arkansas.
Superior Valve makes valves for high and low pressure gas industries; fire extinguishers and refrigeration; and allied assemblies such as manifolds, heat exchangers, liquid indicators and charging hoses for refrigeration and air conditioning. Valves and fittings for air conditioning and refrigeration use and valves for use with gases such as chlorine and oxygen are shipped to customers in Little Rock, Conway, Port Smith and El Dorado, Arkansas. Annual sales made to such customers through manufacturers’ agents amounted to $670 in 1959, $2,025 in 1960, $3,423 in 1961, and $2,743 in 1962. Superior Valve admits that it manufactured the FITZ-ALL valve described in the complaint, but states that from January 1, 1960 to October 15, 1965, it had shipped only twelve such valves to the state of Arkansas for a total revenue of $11.60. The manufacturers’ agents for Superior Valve left its advertising brochures with customers from time to time, and Superior Valve would mail them to a customer upon request. The only advertising of its products through news media was in national trade papers and magazines, none of which are published in Arkansas.
The interrogatories and affidavits of Crown Cork show that it manufactures containers and crowns. It admitted making cans of the type used by Pennsalt which it delivered to Chase in the state of Pennsylvania. In 1960, $332 worth of cans of this same type were sold to Southwest Aerosol of Little Rock, Arkansas, and $2,-621 worth in 1961 to Reasor Hill Company, Jacksonville, Arkansas. It had one salesman who called on customers in Arkansas not more than eight times a year. Its Arkansas sales in 1960 totaled $719, in 1961 $3,191 and in 1962 $379. In an affidavit Crown Cork stated that its annual sales were $141,000,000 and that its Arkansas sales amounted to .24% of the total. Appellants interpret the total annual sales allocable to Arkansas as .24% of $141,000,000, or $338,400._
The right of a state court to exercise personal jurisdiction over a nonresident for acts committed outside the state but affecting a resident of the state has been recognized in McGee v. International Life Ins. Co., 355 U. S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957), where Justice Black in speaking for the court stated:
“Since Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoined “consent,” “doing business,” and “presence” as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c.V. More recently in International Shoe Co. v. State of Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, the Court decided that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Id., 326 U. S. at page 316, 66 S. Ct. at page 158.
“Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years. Today many commercial transactions touch two or more States and may involve parties separated by the full con tinent. With this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines. At the same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.”
The only restriction in International Shoe Co. v. State of Wash., 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A. L. R. 1057 (1945), and McGee v. International Life Ins. Co., supra, is that before a state can exercise such jurisdiction it is essential that there be a showing that the defendant purposefully availed itself of the privilege of conducting activities within the forum state. It is recognized that such activities may be carried on by mail, Travelers Health Ass’n. v. Commonwealth of Va., 339 U. S. 643, 70 S. Ct. 927, 94 L. Ed. 1154 (1950), and by an independent agent or manufacturer’s representative, Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W. D. Va. 1965); Gray v. American Radiator & Sanitary Corp., 22 Ill. 2d 432, 176 N. E. 2d 761 (1961); Johnson v. Equitable Life Assur. Soc., 22 App. Div. 2d 138, 254 N.Y.S. 2d 258 (1964); and Coreil v. Pearson, 242 F. Supp. 802 (W. D. La. 1965).
We think the facts here show enough of a persistent course of conduct within the state of Arkansas by each of the nonresident corporations, either through its own agent or an independent manufacturer’s agent, to constitute the minimum contacts necessary to give a state jurisdiction without offending the traditional notions of fair play and substantial justice. As pointed out in Gordon Armstrong Co. v. Superior Court, 325 P. 2d 21, 160 Cal. App. 2d 211 (1958), in determining this issue much consideration must be given to. the forum which is more convenient and to the facilities of modern transportation and communication. Under today’s mode of travel, the city of Little Rock is closer and more easily accessible to Dallas than it was to Pine Bluff, a mere distance of 45 miles, a generation ago. Consequently, we hold that the exercise of personal jurisdiction does not violate the due process of law provisions of the United States Constitution.
Appellees’ arguments (1) and (3), above, are based on the premise that subsection C. 2 makes it mandatory that the conduct that gave rise to the injury must have some relation to the activities upon which service is founded. Thus appellees argue that subsection C. 1(d), as modified by subsection C. 2, requires that the tortious injury must arise out of the business regularly solicited or engaged in by appellees. This argument is contrary to the comment of the commissioners in adopting the act, which specifically points out as follows:
“It should be noted that the regular solicitation of business or the persistent course of conduct required by section 1.03 (a) (4) need have no relationship to the act or failure to act that caused the injury. No distinctions are drawn between types of tort actions.”
Furthermore, to adopt appellees’ construction would limit the jurisdictional reach of subsection C. 1(d) to that of subsection 0. 1(a) (“transacting any business in this State;”), thus making subsection C. 1(d) sur-plusage. We think the better construction is that an action brought under subsection C. 1(d) must be limited to a tortious injury in this state arising out of an action or omission outside of this state, thus preventing a citizen injured in Missouri from bringing a cause of action in Arkansas. But we do not interpret subsection C. 2 as applying to the qualifying portion of subsection C. 1(d) —i. if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State; ...” This interpretation places beyond jurisdictional reach of the statute those isolated transactions where the nonresident has no other contact with the state, Hill v. Morgan Power Apparatus Corp., 259 F. Supp. 609 (E. D. Ark. 1966), but on the other hand recognizes that one who pursues a persistent course of conduct or otherwise derives substantial revenue from activities in this state will be liable for acts committed outside this state resulting in injuries in this state. Therefore, we hold that the trial court erred in quashing service of summons upon the nonresident appellees.
Furthermore, we find that subsection C. 1(d) applies both to actions for breach of warranty and to actions in tort. Appellees’ contention in this respect would unduly restrict the interpretation of the word “tortious.” Most authorities treat personal injuries arising from an implied warranty as tortious in nature. See Prosser, Torts, Ch. 19 (3d ed. 1964); and Harper & James, The Law of Torts, Ch. XXVIII (1956). Also, in Evans Laboratories v. Roberts, Judge, 243 Ark. 987, 423 S. W. 2d 271 (1968), we recognized that a personal injury action for implied breach of warranty fell within our venue statute for personal injuries rather than being an action upon a contract.
It follows that the argument over whether appellants properly objected to the trial court’s action has become moot. Since the issue may arise in the future, we point out that the testimony relative to the persistent course of the nonresident’s conduct and to whether it derived substantial revenues subsequent to the date of the accident is ordinarily within the permissible scope of inquiry under subsection C. 1 (d).
Reversed and remanded.
Fogleman, J., disqualified and not participating.
It is not contended that the valve here involved is one oí the twelve shipped to Arkansas. | [
-16,
-8,
76,
-100,
11,
96,
42,
-70,
98,
-30,
103,
81,
-17,
-61,
-107,
99,
-17,
127,
-15,
59,
-45,
-78,
19,
67,
-42,
-37,
-79,
69,
-76,
-5,
-19,
-34,
88,
-96,
10,
-43,
-57,
18,
-63,
28,
-62,
12,
57,
-24,
113,
-126,
48,
-8,
18,
75,
65,
-115,
-29,
46,
27,
-53,
41,
46,
-53,
13,
-62,
88,
-117,
5,
95,
18,
3,
4,
-100,
-89,
-56,
27,
-104,
57,
32,
-24,
114,
-74,
-62,
-10,
35,
-115,
-127,
98,
99,
33,
1,
-89,
-4,
57,
47,
-34,
15,
-123,
-111,
104,
11,
14,
-89,
-99,
122,
6,
-121,
124,
-22,
85,
23,
-24,
-125,
-57,
38,
-77,
15,
-64,
30,
3,
-17,
-121,
52,
64,
-34,
104,
-36,
71,
50,
27,
78,
-128
] |
Carleton Harris, Chief Justice.
Searcy County, Arkansas, appellant herein, has appealed from a judgment of the Circuit Court of Searcy County holding Act 68 of 1965 (Ark. Stat. Ann. § 3-841 [Supp. 1965]) unconstitutional, and granting judgment to Howard Stephenson against said county in the sum of $1,497.00. The facts giving rise to the litigation are as follows:
Stephenson, appellee herein, qualified as an independent candidate for the office of Sheriff and Collector of Searcy County, Arkansas, for the general election to be held in November, 1966. In filing as a candidate, Stephenson paid a fee of $1,500.00 in accordance with the provisions of Act 68 of 1965, which, inter alia, provides as follows:
“Hereafter, any person who shall file as an independent candidate, as authorized by Act No. 352 of 1955 [Ark. Stats. (1947) Sec. 3-836 through 3-840], for election as United States Senator or Congressman, or for any state, district, or county office in this state shall pay a filing fee in the same amount charged by the appropriate officials of the political party in this state charging the greatest filing fee for nomination for such office at the primary election of such political party preceding the general election at which such person is a candidate.”
The highest filing fee at the primary election in Searcy County for the office of Sheriff and Collector was set by the Republican Central Committee, and was in the amount of $1,500.00. Appellee was unsuccessful in his race for this office, and in December, 1966, filed a claim against the County of Searcy for reimbursement of the $1,500.00 filing fee. The then County Judge, sitting as the County Court, allowed the claim, but the claim and order were lost without ever being placed of record. The subsequent county judge held that the claim was not valid, and that the order allowing same should be set aside. In the meantime, the first order had been appealed to the Searcy County Circuit Court. There, as here, appellee contended that Act 68 was void and unconstitutional because it was discriminatory against independent candidates in the general election, the $1,-500.00 fee being required of him, while party nominees for county office were allowed to get their names on the general election ballot by the payment of the sum of $3.00. The Circuit Court held the act unconstitutional for that reason, and for the further reason that it constituted an attempt by the General Assembly to delegate to political parties the authority to fix ballot fees required of candidates for public office in the general election. Thereupon, the court entered its judgment, holding that Stephenson was entitled to recover $1,-497.00.
. The main issue here is whether Searcy County owes Stephenson $1,497.00, and we have held on numerous occasions that we do not pass upon constitutional questions if the litigation can he determined without doing so. In Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S. W. 2d 436, this court said:
“ * * * It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very Us mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed.,,of without considering it, and when consequently a decision upon such question will be unavoidable. Such has been the unvarying practice of this court. See also Martin v. State, 79 Ark. 236, 96 S. W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S. W. 1073; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S. W. 1031.”
Here, the question of whether the county is liable can be determined without passing upon the validity of Act 68 of 1965, and in accordance with the above cited cases, we by-pass the constitutional question.
It is asserted by appellant, and we find correctly so, that Mr. Stephenson did not take the proper steps to insure a return of the filing fee, whatever the status of the act in question. Of course, if the statute be constitutional, he could not prevail. Assuming, therefore, for purposes of this discussion only, hut without deciding, that the act is unconstitutional, it will he noted that no complaint was raised hy appellee until after the election had been held, and it had been determined that he was the losing candidate. Then, and then only, did he raise any question about the legality of the amount of the fee. Before paying the $1,500.00, as far as this record reflects, he made no effort to ascertain whether the statute was valid or invalid. It is not disputed that the payment of $1,500.00 was entirely voluntary.
The most that can be said on appellee’s behalf is that the payment was made under a mistake of law. In Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S. W. 2d 375, this court said:
“Appellee seeks to recover voluntary payments made of taxes. This cannot be done. Cooley in The Law of Taxation, Ch. 20 § 1282, gives this rule: ‘It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory’ (Vol. 3 at p. 2561); and further: ‘Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every mam is supposed to know the law, and if he voluntarily makes a payment which the law would not compel¡him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legad remedies to recover it back. * *
“* * * The common law rule governing cases of this kind is laid down in the following cases: Lambron v. County Commissioners, 97 U. S. 181, 24 L. Ed. 926; Union Pacific R. R. Co. v. Dodge County 97 U. S. 541, 25 L. Ed. 196. These cases lay down the following rule: ‘Where a party pays an illegal demand, with, full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary and cannot he recovered back.”
While this case related to a voluntary payment of taxes, the overall principles are set out in the italicized language. Applying the principles to the instant case, Mr. Stephenson was due to know the law; yet he voluntarily made a payment which, according to his present contention, the law would not have compelled him to make. Still, he made it, and he cannot now assert ignorance of the law as a reason why his money should be returned. Further applying the language in Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., supra, if Stephenson paid an illegal demand, he certainly, at that time, had full knowledge of all the facts, i. e., he knew that the $1,500.00 charge to him was based on the fee set in the Republican primary, and he certainly should have been as aware of any alleged illegality before the election — as after it!
Actually, it would seem that there is less reason to refund a fee paid to seek office, than to refund taxes paid under an invalid act, for under the last circumstance, an owner is endeavoring to protect his property from detention or seizure.
Stephenson had two remedies which he could have followed before making the payment. He could have sought a writ of mandamus, directing the proper county official to place his name upon the general election ballot after the payment of $3.00, or he could have acted under provisions of Ark. Stat. Ann. § 34-2502 (Repl. 1962), which states:
“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute municipal ordinance, contract, ¡or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. ’ ’
Certainly, the validity of Act 68 of 1965 could have been determined prior to paying the fee.
A rather pertinent argument is also made by appellant to the effect that the filing fee, having been oo-mingled with other county monies in the general fund, cannot now be refunded without an appropriation, and it is argued that there is no constitutional authority to make such an appropriation. It is not necessary that we discuss this point, since the litigation is disposed of under the previous contention.
Reversed.
Byrd, J., concurs.
In fact, he did not even pay the amount “under protest.”
Emphasis supplied.
Emphasis supplied.
Emphasis supplied. | [
116,
-20,
-24,
92,
9,
1,
83,
2,
90,
-93,
-27,
83,
-81,
67,
20,
113,
-13,
-85,
125,
89,
-59,
-94,
83,
64,
34,
-13,
-117,
-57,
57,
-51,
-67,
-12,
76,
57,
-38,
69,
70,
2,
-123,
-100,
-50,
2,
-103,
69,
125,
67,
56,
107,
50,
95,
53,
-66,
-21,
40,
19,
75,
76,
4,
-33,
-86,
-128,
-69,
-97,
7,
125,
23,
49,
-90,
-102,
5,
88,
46,
-48,
49,
64,
-8,
114,
-90,
-122,
-12,
8,
-103,
-84,
102,
98,
32,
-79,
-17,
-84,
-120,
30,
-41,
29,
-90,
-106,
41,
43,
15,
-74,
-107,
126,
-112,
7,
-2,
33,
68,
29,
46,
-81,
-50,
-108,
-93,
14,
-84,
5,
2,
-25,
69,
84,
113,
-57,
-26,
92,
7,
50,
-101,
-122,
-32
] |
John A. Fogleman, Justice.
This appeal comes from a decree of the trial court enjoining the Governor and other appellants from proceeding with efforts to remove any of the members of the Arkansas Game & Fish Commission. The decree of the lower court was rendered on the pleadings and a stipulation of the parties. The chancery court based its decision in this suit brought by certain members of the Commission upon the finding that § 5 of Amendment No. 35 of the Arkansas Constitution was not self-executing. It is conceded by the parties that the only question on this appeal is whether this section is self-executing. Section 5 is one of eight sections of the amendment initiated by the people and adopted in 1944, dealing comprehensively with conservation and regulation of wildlife of the state. The amendment creates a Game & Fish Commission of 7 members, each of whom is appointed by the Governor for a seven-year term. The first members were appointed for terms varying from 1 to 7 years, so that the terms would be staggered with the term of one member expiring each year. There are provisions for removal of commissioners, the filling of vacancies, and the election of a Chairman and an Executive Secretary. The powers and,duties of the commission are also set out. This court has called the amendment complete in itself, superseding all prior legislative acts, both directive and restrictive, and covering the whole subject. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Commission, 215 Ark. 229, 219 S. W. 2d 948. The section in controversy reads:
“A Commissioner may be removed by the Governor only for the same causes as applied to other Constitutional Officers, .after a hearing which may be reviewed by the Chancery Court for the First District with right of appeal therefrom to the Supreme Court, such review and appeal to be without presumption in favor of any finding by the Governor or the Trial Court.”
Appellants say that the section is self-executing and may be utilized without the necessity of legislation to make it effective. On tbe other hand, appellees contend that the provision is not self-executing because it constitutes a statement of principles only making legislation laying down rules providing means of carrying the principles into effect necessary to put it in force. Ap-pellees state that they are not, at this time, particularly concerned with the question whether the hearing procedure which has been adopted by the Governor satisfies the constitutional direction of a hearing by the Governor except insofar asUhat procedure illustrates the lack of guidelines for procedures and the absence of limitations on the Governor’s power to establish the rules for such a hearing. Generally speaking, those matters asserted to indicate that the section is not self-executing are:
I.The failure to prescribe procedures does not assure to an accused commissioner due process of law guaranteed by Article 2 of the Constitution of Arkansas and Amendment 14 to the United States Constitution in that:
A. The governor might act summarily: to remove dll. commissioners ex parte.
B. He could remove the entire commission in order to gain control over the commission.
C. There is a lack of requirement for:
1. notice of charges;
2. reasonable notice of hearing;
3. right to make defense;
4. right to appear in person or by counsel;
5. preservation of record;
6. compulsory attendance of witnesses and production of documents;-
7. public hearing.
D. No rules of evidence are provided.
E The place and forum of hearing are not fixed.
F. The nature and type of and time limitation on, review by chancery court and appeal to this court are not prescribed.
G-. The burden of proof is not placed.
H. No mention is made of the weight to be given a decision of the chancery court.
II. The section might result in vacation of a removed commissioner’s position immediately upon the finding of cause for removal by the Governor in spite of the right of review by the Chancery Court of the First District and appeal therefrom to this court.
There is a presumption of law that any and every constitutional provision is self-executing. Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68. The impact of this presumption should be especially great where the provision in question was initiated by the people.
One of the principal tests as to whether a constitutional provision is self-executing is the determination, from its language, its nature, and its objects, whether it is addressed to the legislative branch or to the judicial branch. Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199; Myhand v. Erwin, supra. We see nothing that suggests that Amendment 35 is addressed to the legislative branch. Considerable reliance is placed by appellees on Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380. This case is readily distinguishable. The constitutional provision there involved reads:
“§ 23. Maximum of officers’ salaries or fees. — No officer of this State, nor any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more than five thousand dollars net profits per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation.”
In holding this section not to be self-executing, we said:
“There is a strong implication from the concluding phrase of the provision in question — ‘ as shall hereafter be directed by appropriate legislation’ — that the framers of the Constitution did not mean it to be self-executing, but intended that the whole provision should be put into force by appropriate legislation. This is greatly strengthened by a consideration of the general and indeterminate character of the language employed. In the first place, the provision for payment of the excess .over $5,000 ‘into the state, county, city or town treasury’ is, at least so far as the office of prosecuting attorney is concerned, too indefinite to be properly enforced without legislation. The language, standing alone, would mean that all state officers shall pay the excess into the state treasury, and county officers into the county treasury; yet, when we remember the source whence the fees of a prosecuting attorney come, the language is too general to warrant a conclusion that so unjust a disposition of the excess in his case as payment into the state treasury was intended. As is well said by learned counsel for appellant, probably 90 per cent of fees in felony convictions and 50 per cent of fees for convictions for misdemeanors are paid to the prosecuting attorney by the counties of their respective districts. The state pays only a small part of that officer’s compensation — the maximum salary to be paid by the state is fixed at $400 in the Constitution. * * * if we give the provision in question a literal interpretation, and hold it to be self-executing, it would require the excessive fees gathered by some of the prosecuting attorneys from the counties composing their circuits to be paid into the state treasury to become a part of the common funds of the state. We do not say that the Legislature cannot prescribe such a disposition of the surplus funds, however unjust it may appear to be, in carrying out the constitutional provision; but we do say that the apparent injustice of such a disposition of the funds affords much reason for not ascribing such a meaning to the general form of expression employed. In the next place, the words ‘net profits per annum in par funds,’ when applied to emoluments of office, are so indefinite that it would be extremely difficult if not impossible to judicially determine, without legislation on the subject, what are ‘net profits * * * in par funds.’ What basis should the court adopt in ascertaining what are net profits of the office? What expenses are to be deducted? And what tribunal is to pass upon the accounts of the prosecuting attorney, ascertain what his legitimate expenses have been, and fix the amount which he should pay into the treasury? This is a matter-easy of solution for a legislative body, but not for tribunals exercising purely judicial functions, unless the Legislature first provides a basis for determining what the profits of the office are. Of course, if we should reach the conclusion that the provision in question is self-executing, then it would devolve upon the courts, in'the absence of legislation on the subject, to work out in as nearly an approximately just method as possible what the expenses and net profits of this office are, but the almost insurmountable difficulties in the way of doing it without legislation affords the strongest reason for concluding that the provision was not intended to be self-executing.”
The section under examination in the Griffm case was addressed in express words to the General Assembly, not the courts. The problems for the judicial branch here, such as confining procedural steps within the boundaries of due process, are not as great as the problems which would have been presented in the Griffin case. Unquestionably, the problems there were legislative, not judicial. On the other hand, those appearing here are primarily judicial, rather than legislative. The fact that review of the action is to be by the courts is an indication that the provision is addressed to the courts. That 25 years have passed without any implementing or enabling legislation by the General Assembly would indicate that it agrees that the provision was not addressed to it and that legislation was not required to effectuate it. It seems strange that the legislature proposed Amendment No. 42, governing the State Highway Commission, using Amendment 35 language relating to gubernatorial removal of commissioners, but failed for all these years to adopt implementing legislation for either amendment if it thought such language was not self-executing. Legislative interpretation, of course, is not controlling, but is to be considered, if there be any doubt. Hooker v. Parkin, 235 Ark. 218, 357 S. W. 2d 534; Arnold v. City of Jonesboro, 227 Ark. 832, 302 S. W. 2d 91. See, also, United States v. Bowling, 256 U. S. 484, 41 S. Ct. 561, 65 L. Ed. 1054 (1921); California School Township, Starke County v. Kellogg, 109 Ind. App. 117, 33 N. E. 2d 363 (1941); Stanford v. Butler, 142 Tex. 692. 181 S. W. 2d 269, 153 A. L. R. 1054 (1944); Chatlos v. McGoldrick, 302 N. Y. 380, 98 N. E. 2d 567 (1951); 2 Sutherland Statutory Construction, 3rd Ed., § 5110.
The most closely parallel case is Cumnock v. City of Little Rock, 168 Ark. 777, 271 S. W. 466. There we held the following proviso of Amendment 10 (then called 11) self-executing:
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”
A dissenting opinion aptly pointed out that the proviso made no provision for the following rather vital matters with reference to issuance of such bonds:
the length of time they should run; K
the rate of interest they should hear; W
Avho should execute them; W
whether they should be sold privately or at public auction; ^
in what denominations they should be issued; U3
whether they should be sold below par. CD
It seems that legislative action would have been called for to a greater extent there than here.
The remaining test, and the controlling one, is whether the people, in adopting this section, intended that it be self-executing. Faubus v. Kinney, 239 Ark. 443, 389 S. W. 2d 887. Unless it clearly appears that they did not so intend, we must hold this provision to be self-executing for reasons heretofore set out and for the further reason that no construction of a given power is to be allowed which plainly defeats or impairs the avowed objects. Ex Parte Levy, 204 Ark. 657, 163 S. W. 2d 529. It is our duty to construe a constitutional provision in such a way that an express purpose or implied result will be given effect. Humphrey v. Garrett, 218 Ark. 418, 236 S. W. 2d 569. The remaining arguments of appellees are addressed to this test.
"We find no merit in their argument that a Governor might act summarily and that an accused commissioner might not be accorded due process of law. In the first place, we must and should presume that any officer of the state, and especially the chief of the executive branch of the government, will act lawfully, correctly, in good faith and in sincerity of purpose in the execution of his duties. Rose v. Ford, 2 Ark. 26; Buxton v. City of Nashville, 132 Ark. 511, 201 S. W. 512; Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586; Phillips v. Rothrock, 194 Ark. 945, 110 S. W. 2d; Matthews v. Bailey, 198 Ark. 703, 130 S. W. 2d 1006; Beaumont v. Faubus, 239 Ark. 801, 394 S. W. 2d 478.
Furthermore, summary action is not consistent with removal after a hearing for which there is express provision in the section itself. Where an officer can be removed for specified causes only, he must he afforded a hearing beforehand. Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667. The requirement of a hearing implies that the accused be given reasonable notice with a statement of charges sufficient to apprise him of the action or actions alleged to constitute the cause or causes of removal. Lucas v. Futrall, supra; Mechem, Public Officers, § 454 p. 287; State ex rel. Beck v. Young, 154 Neb. 588, 48 N. W. 2d 677 (1951); Norton v. Adams, 24 R. I. 97, 52 Atl. 688 (1902). See, also, Annot, 135 Am. St. Rep. 256. The use of the word “hearing” implies certain essential elements as quoted in Wisconsin Telephone Co. v. Public Service Commission, 232 Wis. 274, 287 N. W. 122 (1939):
“There are at least three substantial elements of a common-law hearing: (1) The right to seasonably know the charges or claims preferred; (2) the right to meet such charges or claims by competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence adduced by both sides, and upon the law applicable thereto. If either of these rights is denied a party, he does not have the substantials of a common-law hearing Ekern v. McGovern, supra. [154 Wis. 157, 142 N. W. 595, 46 LRA (n. s.) 796]”.
We agree with the parties that the phrase “for the same causes as apply to other constitutional officers”, means for high crimes and misdemeanors and gross mis conduct in office. Any hearing on charges of this gravity would certainly require that one accused he heard, both personally and by counsel, and that he be permitted to produce evidence in his defense. Etzler v. Brown, 58 Fla. 221, 50 So. 416 (1909); Emerson v. Hughes, 117 Vt. 270, 90 A. 2d 910, 34 ALR 2d 539 (1952); Farish v. Young, 18 Ariz. 298, 158 Pac. 845, (1916); State v. Frazier, 47 N. D. 314, 182 N. W. 545 (1921); People v. Nichols, 79 N. Y. 582 (1880).
In short, any officer, board, tribunal or agency having the power to remove, for cause, an officer serving a fixed term acts in a quasi-judicial capacity in conducting a hearing and the procedure must be of a quasi-judicial character. Emerson v. Hughes, 117 Vt. 270, 90 A. 2d 910, 34 ALR 2d 539 (1952); Hawkins v. Grand Rapids, 192 Mich. 276, 158 N. W. 953, Ann. Cas. 1917E 700 (1916); Speed v. Detroit, 98 Mich. 360, 57 N. W. 406, 22 LRA 842, 39 Am. St. Rep. 555 (1894). As such the procedure must assure a fair trial and due process of law. McAlpine v. Garfield Water Commission, 135 N. J. L. 497, 52 A. 2d 759, 171 ALR 172 (1947); Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 LRA (n. s.) 796 (1913.) It would seem highly desirable that any hearing be public, and certainly it should be if any accused commissioner so desired.
It is not necessary that every detail for application of a constitutional provision be specified in order that it be self-executing. See, Samples v. Grady, 207 Ark. 724, 182 S W. 2d 875; Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466; Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128 (1884); State v. Young, 154 Neb. 588, 48 N. W. 2d 677 (1951). As to many of the matters pointed out by appellees as deficiencies in the removal section of this amendment, it is sufficient to say that review by the courts necessarily requires that the courts see that any accused person is accorded the basic fundamentals of fair play and substantial justice. These elements seem to constitute the current test of due process.
The trial court, in reaching the conclusion that section 5 was not self-executing, stated that the legislature realized that article 15, dealing with impeachment, was not self-executing by enacting Ark. Stat. Ann. § 12-1201 et seq. While this legislation was adopted before the 1874 Constitution, it doubtless remained in effect. However, we find little merit in this argument because impeachment is a matter for action by the legislative branch. Certainly, it would be expected that the branch of government having responsibility for the proceeding should adopt procedural rules subject to constitutional or statutory limitations. The grant of power to remove an officer for specified causes without provision for ef-fectuation, carries with it, as incidents to the grant, all means necessary to effectuate the power. State v. Wallridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663 (1893); Ridgway v. City of Fort Worth, 243 S. W. 740 (Tex. Civ. App. 1922); Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128 (1884).
One other argument of appellees that deserves consideration is the contention that there is uncertainty as to the time when a commissioner’s removal becomes effective so that a vacancy might exist throughout the process of review and appeal. We feel that the provision that review and appeal be without presumption in favor of any finding by the Governor or the trial court is inconsistent with the idea that the Governor’s removal would be effective during this process. It is only when the removal order becomes final that it is effective, and any order of removal by the Governor should be held in abeyance upon prompt institution of proceedings for review. Support for this construction is found in the fact that there is no provision for an interim appointment pending review and appeal.
The time for application for review is certainly limited by standards of reasonableness. The situation is somewhat analogous to situations where review of the actions of a tribunal on petition for certiorari or prohibition is denied because not sought promptly when the necessity therefor appears. See, Johnson v. West, 89 Ark. 604, 117 S. W. 770; Galloway v. LeCroy, 169 Ark. 838, 277 S. W. 35.
We do not intend to imply that legislation in this field is barred. The General Assembly is the repository of all the powers of sovereignty not reserved by the people or reposed in one of the branches. Hackler v. Baker, 233 Ark. 690, 346 S. W. 2d 677. There can be no doubt that the legislative branch may implement any constitutional provision by legislation which is not inconsistent therewith or repugnant thereto, so long as the legislation does not invade specific powers delegated to one of the other branches or exceed specific constitutional limitations. Myhand v. Erwin, 231 Ark. 444, 330 S. W. 2d 68.
When we consider all governing factors, we conclude that Section 5 of Amendment 35 is self-executing. The courts of other states having similar constitutional provisions conferring upon the Governor the power to remove officers have reached the same result. See, e. g., Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Ref). 128 (1884); State v. Young, 154 Neb. 588, 48 N. W. 2d 677 (1951). Since it has been conceded by all parties that the only question now before the court is whether this section is self-executing, the propriety of the procedure adopted by the Governor is not now before us. We have dealt only with those questions we deem necessary to consider in order to reach our conclusion that Section 5 of Amendment No. 35 is clearly self-executing.
The decree is reversed, and the injunction is dissolved.
The Head of the Department of Zoology of the University of Arkansas is an associate, non-voting member.
This is the test applied by this court in Pennsalt Chemical Corporation v. Crown Cork & Seal Company, Inc., 244 Ark. 638, 426 S. W. 2d 417 (1968). | [
53,
-18,
-36,
60,
9,
98,
-72,
-98,
67,
-21,
-27,
83,
-85,
67,
-108,
121,
-53,
-81,
-4,
123,
-59,
-74,
55,
96,
51,
-13,
89,
-57,
51,
79,
-12,
-1,
72,
96,
-54,
85,
-58,
-18,
-51,
-40,
-126,
3,
-101,
101,
-56,
-64,
56,
111,
82,
-121,
53,
-2,
-22,
-82,
16,
-61,
-23,
36,
-53,
-83,
81,
-71,
10,
-51,
127,
2,
49,
-89,
-103,
-125,
64,
46,
-112,
48,
24,
-4,
115,
-90,
-114,
100,
15,
-39,
8,
98,
99,
10,
57,
-57,
-96,
-120,
22,
-85,
-115,
-122,
-112,
89,
106,
9,
-106,
-107,
122,
16,
14,
-10,
-26,
-59,
-45,
108,
2,
-114,
-108,
-93,
78,
-67,
-108,
3,
-53,
-25,
112,
117,
-50,
-30,
93,
71,
48,
27,
-122,
-48
] |
Tom Glaze, Judge.
The appellant, Cox, appeals an adverse chancery court decision and argues one issue for reversal. The sole issue to be decided is whether the trial court erred in applying the equitable doctrine of subrogation so as to entitle the appellee, Wooten, to the rights of the Federal Land Bank of St. Louis on its note and mortgage executed by Cox and other named heirs who acquired an interest in certain property under a family settlement agreement. Whether or not the trial court correctly applied the doctrine directly depends upon the facts before the court and the facts are not in dispute.
On February 27, 1967, Clinton Hickingbottom, Nola Hickingbottom, his wife (now Cox, appellant), and Jerry Hickingbottom, Mildred Hickingbottom, Shirley Baker and Jane Dare (all children of Clinton Hickingbottom by a former marriage) executed a promissory note arid mortgage to the Federal Land Bank of St. Louis in the sum of $89,475. Clinton Hickingbottom owned land situated in Phillips County which secured the promissory note. Clinton Hickingbottom died, and after his death the widow, Cox, and the heirs, the deceased’s four children, entered into a family agreement. The agreement limited each family member’s liability on the Federal Land Bank note. First, 100 acres of the encumbered land was assigned to Cox as her dower interest, and the remaining 267 acres were assigned to the heirs. By this same agreement, the note payment to Federal Land Bank was prorated between Cox and the heirs so that each was to pay their share when the note payment came due. This agreement became a part of a probate court order.
Sometime after the family agreement, Hickingbottom’s heirs (children) agreed to sell their assigned property to Wooten. Wooten agreed, among other things, to assume the heirs’ total obligation on the note to the Federal Land Bank. Wooten received credit on the purchase price paid in the amount the heirs were to pay on the note, i.e, 71.2% of the entire debt. Wooten also required the heirs to give it a mortgage on their remainder interest in the lands, assigned to Cox in case Wooten was ever called upon to pay her pro rata share (28.2%) of the debt owed on the Federal Land Bank loan.
All went well for four years until Wooten' found it necessary to refinance its operation and obtain an additional loan from the Fedéral Land Bank. Before Wooten could be approved for additional funds, Wooten was required to pay off the entire mortgage indebtedness, including the pro rata obligation of Cox. Cox was unaware that Wooten had paid the entire Federal Land Bank note until she was advised that the pro rata payments she had continued to pay were being placed in Wooten’s account and not on the Federal Land Bank note. Cox then refused to make her 1980 payment and any further payments, contending Wooten was a volunteer when it liquidated the Bank note, and she no longer was obligated to pay Wooten or the Federal Land Bank. Wooten filed action against Cox in lower court seeking the 1980 payment which was past due and an order compelling her to make all further payments to Wooten on her pro rata share of the original debt to the bank. The trial court granted Wooten the relief it sought and it is this adverse decision from which Cox appeals.
Our Supreme Court has considered the doctrine of subrogation and its application on many occasions and most of the relevant Arkansas cases are set forth in the parties’ briefs. The doctrine is no better set forth and explained than in the case of Baker, Adm’r v. Leigh, 238 Ark. 918, 385 S.W. 2d 790 (1965) wherein the Court, citing Southern Cotton Oil Company v. Napoleon Hill Company, 108 Ark. 555, 158 S.W. 1082 (1913), adopted the following discussion and guidelines in determining when subrogation should be applied: ing money to pay a debt, should be substituted for or in place of the creditor, such person will be so substituted.’
The doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties without regard to form, and its purpose and object is the prevention of injustice. Cyc. also says, ‘And generally, where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnish-
mm*
‘It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice and good conscience demand its application in opposition to the technical rules of law, which liberate securities with the extinguishment of the original debt. This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. And this equity need not rest upon any formal contract or written instrument. Like the vendor’s lien for purchase money, it is a creation of a court of equity from the circumstances.’ The theory of equitable assignment, as laid down by Pomeroy is: ‘In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor, primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection. The doctrine is also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, at the instance of a debtor party and for his own benefit; such k person is in no true sense a mere stranger and volunteer.’ [Citations omitted and emphasis supplied.]
From a review of the record and undisputed facts of the case at bar, we can conceive of no more appropriate set of facts and circumstances to which the equitable doctrine of subrogation should apply. Of course, Wooten was not originally and primarily indebted to the Federal Land Bank; Cox and the four children (the heirs) were. Cox continued to be obligated to the Bank even after Wooten purchased the heirs’ land and assumed the debt in question. It was not until Wooten was compelled to pay the entire note by the Federal Land Bank when Cox decided she was no longer indebted to anyone, the Bank of Wooten. Wooten was protecting a legitimate interest when it paid the entire debt to the bank, and Cox should not be permitted to be unjustly enriched merely because Wooten was required to pay off a loan for which both Wooten and Cox had an obligation to pay. It is difficult to perceive how Wooten can be called a volunteer under the circumstances described when it purchased land that is a part of the Hickingbottom family agreement, and in doing so also assumed a note obligation to the Federal Land Bank albeit to be paid apart but in conjunction with Cox, who had a continuing pro rata responsibility on the same note.
Cox relies heavily on the case of Moon Realty Company, Inc. v. Arkansas Real Estate Company, Inc., 262 Ark. 703, 560 S.W. 2d 800 (1978) which she claims is controlling of the facts herein. We disagree. The Moon case involved two tax defaulting property owners, Rose Courts and Arkansas Warehouse Corporation. The United States obtained a tax lien on the property owned by the Rose Courts and the Warehouse Corporation. This property was purchased by Moon Realty Company at a foreclosure sale, but the sale was subject to a United States tax lien. Before the government would release its lien interest in the defaulting owner’s property, it required that Moon pay not only the taxes owed by three other parties, Arkansas Real Estate Corporation, Robert and Mary Traylor. These last three named parties had no interest in the foreclosure action or in the property owned by Rose Courts and the Warehouse Corporation. Unlike Cox in the case at hand, the Traylors and Arkansas Real Estate Corporation were truly strangers and the court did not apply the doctrine of subrogation to permit Moon to recoup the tax payment Moon made for the Traylors and the Arkansas Real Estate Corporation. The court did, however, find Moon was entitled to subrogation rights against Rose Courts and the Warehouse Corporation.
After a careful review of the record, it is clear that Wooten was required to and in good faith did liquidate the' debt owing to the Federal Land Bank, including Cox’s pro rata share. We further hold that Wooten was in no sense of the word a volunteer, and therefore, Wooten is entitled to equitable subrogation rights against the appellant, Cox.
Affirmed.
Cracraft, J., not participating. | [
80,
109,
-108,
108,
10,
-96,
41,
-102,
90,
-64,
-89,
89,
-7,
-61,
16,
45,
-93,
25,
65,
105,
-59,
-77,
23,
64,
-45,
-13,
-15,
-51,
-75,
76,
117,
87,
76,
32,
66,
85,
-58,
-86,
-57,
-48,
-114,
-124,
-117,
-63,
-40,
86,
48,
11,
20,
77,
65,
-114,
-77,
46,
61,
102,
104,
46,
123,
57,
-48,
-72,
-70,
-121,
127,
21,
-111,
7,
-104,
7,
88,
14,
16,
49,
17,
-23,
115,
-74,
-122,
116,
73,
25,
-120,
102,
119,
17,
-56,
-17,
-8,
-104,
47,
-1,
-99,
-122,
-106,
89,
3,
7,
-65,
-98,
116,
68,
23,
116,
-18,
13,
93,
109,
9,
-50,
-42,
-125,
-116,
124,
-104,
19,
-9,
-95,
48,
113,
-49,
-30,
93,
-26,
59,
-77,
-114,
-75
] |
Frank Holt, Justice.
Appellant was convicted by a jury of manslaughter, Ark. Stat. Ann. § 41-1504 (3) (Repl. 1977), and fleeing from an attempted arrest in violation of Ark. Stat. Ann. §§ 41-2822 and 41-2823 (Repl. 1977). He was sentenced to ten years and five years, respectively, to be served consecutively. The only issue raised on appeal is the admissibility of two photographs of the deceased.
A police officer observed appellant, who was intoxicated, at night driving erratically — weaving, passing cars in no-passing zones, and running cars off the road. He attempted to stop appellant, but appellant fled. A chase ensued with speeds in excess of 100 m.p.h. As they approached a curved stretch of road, appellant, driving in the wrong lane, struck an oncoming car. At the time of impact, the officer estimated appellant’s speed in excess of 120 m.p.h. Appellant’s Oldsmobile traveled 189', hit a sign, became air borne, and stopped in a ditch approximately 244' from the point of impact. The other car, a Pinto, exploded upon impact, and the car was demolished. The driver received severe injuries, and his passenger, his wife, was killed instantly.
Without objection, the state introduced several photographs depicting the scene and the condition of the two cars. However, trial counsel objected to the admissibility of two photographs of the deceased before she was removed from the wreckage. The objection was that these photographs would add nothing other than have a highly prejudicial effect which would outweigh any probative value they might have and that other evidence would “probably be introduced” to the effect she died as a result of injuries received in the collision. The trial judge overruled the objection, stating they were not color photographs, they were the best evidence of a part of what happened at the scene, and they were of probative value on the issue of “speed, force of impact.” Appellant argues here that the probative value is substantially outweighed by their prejudicial nature and, therefore, should be excluded, Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1977); and, further, the photographs are inflammatory, cumulative and irrelevant to the element of recklessness which is essential to the crime of manslaughter.
We have held that even inflammatory photographs are admissible in the sound discretion of the trial judge “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979); see also Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979); Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973); Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980); and Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). Whether or not the court should admit a photograph depends upon whether the asserted inflammatory nature is outweighed by its probative value; and neither is it rendered inadmissible merely because it is cumulative or unnecessary due to admitted or other facts proved. Campbell v. State, supra. Here, the photographs, which were in black and white, were close-up views of the deceased, showing only the head injuries, and not the full extent of the injuries sustained to the other parts of her body. In our view they corroborated testimony as to the head injuries, which caused death, the reckless and excessive speed and the force of impact. Further, they were relevant to the state’s burden of proving the essential element of the crime of manslaughter; namely, recklessly causing the death of another person due to a conscious disregard of the risks involved in one’s conduct.
We hold the trial court did not abuse its discretion in weighing the probative value of the photographs against the danger of any unfair prejudice.
Affirmed.
Purtle and Mays, JJ., dissent. | [
112,
-21,
-32,
60,
25,
66,
26,
58,
-14,
-57,
-28,
19,
45,
-61,
69,
51,
111,
61,
-11,
105,
-43,
-73,
87,
25,
-14,
-13,
107,
-57,
-73,
-55,
-20,
-36,
76,
112,
-54,
-59,
36,
72,
-123,
88,
-58,
-128,
-71,
113,
88,
18,
36,
125,
-60,
15,
-95,
-97,
-61,
43,
30,
-58,
77,
56,
75,
-87,
-64,
48,
-59,
-121,
-5,
22,
-79,
-124,
-66,
9,
88,
24,
-104,
57,
16,
-4,
115,
-90,
-108,
84,
107,
-101,
4,
98,
102,
1,
21,
-59,
-83,
8,
38,
62,
15,
-89,
24,
65,
73,
45,
-105,
-33,
122,
48,
14,
-6,
-6,
85,
85,
108,
5,
-49,
-74,
-111,
-25,
36,
86,
120,
-21,
1,
50,
117,
-51,
-30,
84,
21,
117,
-69,
-122,
-106
] |
James H. Pilkinton, Judge.
On June 4, 1977, Evelyn K. Marshall of Arkansas County, Arkansas, married John W. Marshall, an elderly man from Oklahoma. His previous wife had died. Evelyn lived with appellee until on or about March 15, 1979- The wife sued the husband for divorce, and Mr. Marshall answered and counterclaimed also seeking a divorce. He alleged in addition that Mrs. Marshall wrongfully and by undue influence gained possession of the sum of $28,000, and other personal items, which were his separate property. The wife denied all of the allegations of the cross-complaint.
Mr. Marshall was 78 at the time of the trial. After a full and patient hearing, the chancellor dismissed the wife’s complaint for want of equity, and awarded the husband a divorce on the cross-action. There is no appeal from that part of the decree. The trial court also found that Evelyn had exercised undue influence upon the husband to obtain $13,500 from him which represented a portion of the proceeds from the sale of certain real property which the husband had acquired prior to the marriage. The wife has appealed from that part of the decree rendering judgment against her for the $13,500. She contends that Mr. Marshall voluntarily gave this money to her.
I
Appellant first argues that the chancellor abused his discretion in finding that she used undue influence in obtaining the $13,500. The real test on appeal, however, is whether the decision of the chancery court that Mr. Marshall did not voluntarily give this-money to her was clearly against the preponderance of the evidence. See Rule 52, Arkansas Rules of Civil Procedure.
The parties were husband and wife, and appellant does not dispute the existence of a confidential relationship in which she was dominant. Therefore, under the circumstances here, the transfer of the $13,500 to Mrs. Marshall was presumed to be invalid. Dunn v. Dunn, 255 Ark. 764, 503 S.W. 2d 168 (1973). Appellant therefore carried the burden to support by proof her contention that the transfer of the $13,500 to her was a gift, voluntarily made, and was not the product of a confidence betrayed or influence abused. The chancellor found that she had failed to discharge this burden of proof, and we cannot say on appeal that this decision was clearly erroneous (clearly against a preponderance of the evidence). Rule 52, A.R.C.P.
Prior to the marriage, Mr. Marshall had only known Evelyn for about ten days. The testimony clearly shows that Mr. Marshall had a major stroke in October of 1977, soon after the parties were married. He had previously suffered blackouts in May and August of 1977- The stroke in October of 1977 was severe, and Mr. Marshall had difficulty talking, could not walk, and was incoherent; and, as he termed it, “did not know what he was doing half the time.” This testimony was substantiated by Mrs. Marshall. She testified that her husband had suffered smaller strokes about every three months during the entire marriage. She further testified that these strokes would affect Mr. Marshall to the extent of disabling him for a while, and that he would not be able to walk or talk. Mrs. Marshall said that she took care of appellee during these periods of incapacity as he would not see a doctor. In November of 1977, soon after his major stroke, Mr. Marshall gave his wife a power of attorney over his affairs. There is no doubt from this record that the testimony regarding Mr. Marshall’s mental and physical condition, much of which was undisputed by appellant, clearly shows that because of his condition Mr. Marshall was extremely dependent upon his wife. This was especially true in financial affairs. Mrs. Marshall testified that she wrote all the checks on the parties’ joint account for the payment of the expenses of remodeling her home, which was done with Mr. Marshall’s money, because appellee’s mind got so bad after the stroke that he did not know enough to pay the bills. Mrs. Marshall claimed that she was writing most of the other checks on the parties’ joint account for the reason that after his major stroke Mr. Marshall did not know what he was doing. During this period Mrs. Marshall made a $3,000 down payment from the parties’ joint bank account on a new automobile which she purchased in January of 1978. She placed the title to the car in her name alone. The record is clear that it was Mrs. Marshall who principally controlled the financial affairs of the parties during the marriage, although Mr. Marshall supplied most of the money, and that the operation of their financial affairs by the wife was, at times, detrimental to the interest of the appellee. At the time of the marriage, Mr. Marshall owned as a separate estate a parcel of land in Oklahoma. This particular property had been owned and resided on by Mr. Marshall and his first wife before her death. The chancellor held Act 705 of 1979 (Ark. Stat. Ann. § 34-1214) applicable and that.neither the property nor the proceeds therefrom were marital property, thus appellant had no interest therein. The home in Oklahoma was sold by appellee and the first payment received on the purchase price was a check for $3,000. Appellant received this $3,000 check, and Mr. Marshall testified he never saw it. Mr. Marshall next received a check in the amount of $23,-185.12 on the sale of the property which he deposited in a bank at Enid, Oklahoma, in his and his daughter’s names. Mr. Marshall testified that he deposited this money in Enid, Oklahoma, because he did not consider the proceeds of this sale to be the property of appellant and did not wish to give appellant any of this money because the property belonged to him and his first wife and he wanted the money to go to his children. Mrs. Evelyn K. Marshall did not know for a time that appellee had received the $23,185.12. Appellant testified that she found out about the $23,185.12 check when she discovered a letter from the realtor along with another check for .$4,398.50 which represented the final payment on the sale price. When she discovered that the $23,185.12 had been disbursed, and deposited in the bank account in Oklahoma, appellant testified that she got upset and confronted appellee with this information. She took appellee’s pants to a neighbor’s house at 1:00 a.m. and admitted that the main reason for that action on her part was so that Mr. Marshall could not leave the house. The upshot of the matter was that appellant forced appellee to go to Enid, Oklahoma, and threatened to put him in a rest home if Mr. Marshall did not draw the money out, move the funds to Arkansas, and give her half of the combined total of the $23,185.12 and $4,-398.50 checks, one-half of which amounted to approximately $13,500. Mr. Marshall finally capitulated to her demands, and gave her a check for $13,500. The chancellor felt it was his duty to closely scrutinize this alleged gift under these circumstances, and to hold invalid the transfer of the $13,500 in question to Mrs. Marshall. We cannot say that this decision is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, Arkansas Rules of Civil Procedure.
II
Appellant places much emphasis on the fact that the appellee, almost at the conclusion of the trial, and in apparent exasperation, said that she could have the $13,500, and all the personal property in issue. The trial court attached no significance to this contradiction in the appellee’s testimony, and apparently treated it as an emotional outburst of an elderly man, under great strain at the trial. It is apparent from the record that the chancellor viewed this statement as only serving to point up the confusion which appellee was experiencing, and the extent to which he was subject to influence and coercion. The entire thrust of the cross-action was to the effect that appellee did not want or intend for appellant to have any part of the sale proceeds from his former home in Oklahoma. He had earlier testified positively that he did not want appellant to share in any part of the sale proceeds in question because that property had belonged to his first wife. We cannot say that the chancellor erred in his interpretation of Mr. Marshall’s testimony, or that the trial court did not have the right to adjudicate the case on its merits, irrespective of the confused statemént made by appellee just before the conclusion of the trial.
Finding no error, the decree of the chancery court is affirmed. | [
48,
-18,
-20,
108,
74,
0,
58,
-128,
98,
-125,
119,
83,
-17,
114,
80,
121,
98,
43,
65,
99,
-41,
-73,
23,
66,
114,
-14,
-7,
-57,
-76,
-3,
-27,
87,
76,
40,
-62,
-43,
102,
-54,
-57,
88,
-122,
6,
-86,
116,
-39,
-128,
52,
39,
68,
9,
113,
-98,
-13,
41,
60,
71,
104,
46,
95,
-72,
80,
-80,
-118,
13,
127,
54,
-109,
20,
-104,
5,
112,
42,
-104,
49,
0,
-23,
123,
-74,
-122,
116,
111,
-69,
9,
100,
98,
34,
-124,
-1,
-112,
-120,
46,
127,
-99,
-90,
-110,
64,
75,
9,
-66,
-98,
101,
-44,
46,
-8,
104,
-99,
88,
104,
43,
-33,
-106,
-79,
-116,
114,
-100,
26,
-25,
-13,
20,
113,
-49,
-29,
93,
87,
58,
-101,
-122,
-74
] |
Marian F. Penix, Judge.
Timothy Smart died July 16, 1979 as a result of an injury sustained while working for Glenn Brothers Trucking Company. The claim was accepted as compensable and funeral expenses were paid. The Ad ministrative Law Judge held Timothy is survived by no dependents. This decision was affirmed by the Workers’ Compensation Commission. Timothy’s mother, Nancy Smith, and his sister, Natalie Smart, have appealed to this Court alleging dependency on the decedent Timothy. They also allege there should be a 50% penalty added to all benefits due to a violation of the safety provisions of Section 10(d) of the Workers’ Compensation Act. They further allege all benefits should be doubled as Timothy was a minor, illegally employed in violation of Section 10(e) of the Act. Both the Administrative Law Judge and the Commission held the mother and sister were not Timothy’s dependents.
Timothy was born April 7, 1964 in Maryland. His sister, Natalie, was born October 30, 1965. Their parents divorced in 1971. They have received no support from their father since that time. Nancy, their mother, remarried and they moved to Arkansas. On June 4, 1979, Nancy, having separated from her husband Ernest Smith, moved with Natalie back to Maryland. Before leaving for Maryland she talked to Brenda Glen about Timothy’s application for a job at Glen Brothers. Brenda is the wife of Phil Glen, owner of Glen Brothers Trucking. Brenda picked up Timothy and took him to make out a job application. He was hired, although at the time he was only fifteen years old. Timothy remained with his stepfather, Ernest Smith and began working for Glen Brothers. Nancy and Natalie left Arkansas on June 4, 1979 for Maryland. Nancy went to work on June 27, 1979, for the State of Maryland. She testified she received her first pay check about the middle of August, 1979. She testified she received S 5 0.00 cash by mail from Timothy four times from the time she left Arkansas until his death on July 16, 1979. She contends she and her daughter, Natalie, were dependents of Timothy at the time of his death, because she had no other means of income during the period in which he sent money to her. She testified she sold her piano to get enough money to make the trip to Maryland. The record reflects Nancy previously worked for the State of Maryland until August, 1977 when she moved to Little Rock. She had two years leave of absence “and if they had an opening within two years I would be reinstated at the same salary that I left.” She testified she borrowed $400.00 from her mother to help place a deposit on an apartment.
The Administrative Law Judge found Nancy moved to Virginia and began working as a district court clerk for the State of Maryland on June 27, 1979, earning $10,500.00 per year. He found Nancy to be gainfully employed and had failed to prove by preponderance of the evidence Nancy and Natalie were dependent upon Timothy on the date of his death. It was further held since no dependency benefits were awarded Nancy’s and Natalie’s claim for penalty under Section 10 (d) and (e) is moot. The Commission accepted these findings and affirmed.
Section 63.12 of Larson’s Workmen’s Compensation Law entitled “Partial Dependency” gives the following summary which puts the present claim in perspective:
Among the cases in which dependency claims have failed largely on the strength of other income are that of a father with an income of $2,000 per year whose son’s contributions went to pay for the family home, that of parents of a son who contributed $40 a week while the father earned $300 a month, that of aged parents with an income of $250 a month claiming dependency on a son whose weekly salary was $20 to $30 a week, that of parents with an income of $4,000 a year who received $240 a year from an adult son who did not live with them, that of a mother whose son contributed $1,440 to the total family income of $7,000, that of a daughter whose income combined with her husband’s was $2,219 a year claiming dependency on her father who earned $3,281.99, and that of parents who were denied the status of dependents on their nineteen-year-old son, on a showing that the father earned $77 a week, the mother $42, and the decedent about $50 . . .
It is apparent from the record that neither Nancy, the mother, nor Natalie, the sister, was dependent upon fifteen year old Timothy for support. Timothy’s step-father testified Nancy had bought clothes for Timothy prior to leaving for Maryland. Timothy began work on June 4, the day his mother and sister left for Virginia and Maryland. They went in the family auto, stayed at Nancy’s mother’s beach home in Ocean City, Virginia, until her mother loaned her the money for a down payment on an apartment. Nancy had taken a two year leave of absence from her job as a court clerk for the State of Maryland. She reapplied for her old job June 6 and was told she could start to work June 27. Although there is evidence Timothy sent his mother $50.00 on four different occasions, we nevertheless find substantial evidence to support the Commission’s findings that Nancy and Natalie were not in fact dependents of Timothy. We agree with the Commission that Nancy and Natalie have not met their burden of proof by a preponderance of the evidence.
If we find the decision of the Commission to be support-fed by substantial evidence we must affirm. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).
The Commission found “Since the within death case is compensable with no dependents and in accordance with Section 13(f)(2)(iii) and Section 10(c)(2) the respondents are ordered to pay $500.00 to the Second Injury Fund and $500.00 to the Death and Permanent Total Bank Fund.”
Section 10(c)(2) of the Workers’ Compensation Act provides:
Each employer or the insurance carrier of the employer shall in each case of death of an employee where there are no dependents pay into the Death and Permanent Total Disability Bank Fund the sum of Five Hundred Dollars ($500.00) which shall be in addition to the Five Hundred Dollars ($500.00) paid into the Second Injury Fund by such employer or his carrier in such cases.
Section 13(f)(2)(iii) provides in relevant part:
The employer, or if insured, his carrier, shall pay the sum of Five Hundred Dollars (S500.00) into such special fund for every case of injury causing death in which there are no persons entitled to compensation. The State Treasurer shall be the custodian of this special fund, to be known as the Second Injury Fund, and the Commission shall direct the distribution thereof.-
The Commission decided the penalty provisions do not apply to payments to these funds. It is the responsibility of the Commission to administer the Workers’ Compensation Act and its various funds. The Commission found Nancy and Natalie are not titled to dependency benefits and that the penalty provisions of the Act do not apply. We cannot say such finding is clearly contrary to the statutory intent.
Affirmed. | [
16,
108,
-52,
-67,
9,
-32,
10,
-102,
-44,
-29,
55,
83,
-49,
119,
81,
107,
-77,
29,
65,
107,
-13,
-77,
5,
42,
-38,
-9,
-71,
-58,
-80,
79,
60,
-97,
73,
50,
-54,
-60,
102,
3,
-49,
80,
70,
0,
-117,
-25,
89,
18,
48,
-21,
-44,
15,
61,
-115,
18,
30,
56,
-18,
44,
110,
127,
35,
-56,
-16,
-117,
5,
127,
19,
-125,
4,
-70,
-113,
-8,
10,
-112,
49,
-128,
-24,
50,
-74,
-58,
116,
35,
-103,
5,
100,
98,
-80,
5,
-43,
-32,
8,
15,
-18,
-99,
-60,
30,
121,
19,
15,
-105,
-108,
124,
20,
26,
-8,
-6,
77,
28,
104,
-124,
-50,
-42,
-128,
-115,
96,
-36,
-102,
-26,
-113,
50,
113,
-39,
42,
93,
6,
123,
29,
-121,
-102
] |
David Newbern, Judge.
In this workers’ compensation case, we are presented with a problem of applying our supreme court’s decision in Shipper Transport of Georgia, et al v. Stepp, 265 Ark. 365, 578 S.W. 2d 232 (1979), which dealt with denial of workers’ compensation claim because of the claimant’s misrepresentation of his physical condition at the time of hire. As did the supreme court in the Shippers case, we conclude the evidence in the record before us is insufficient to make a determination whether there is a causal connection between the misreprsentation of the injury.
A month or so before he was injured on the job, the appellant applied for a position with the appellee, Ward School Bus Manufacturing Company. The appellant is semiliterate, and his wife assisted him in answering questions on the employment forms provided by the company. There is substantial evidence that the appellant, although asked, did not provide information about a back injury he had sustained some 13 or 14 years earlier. The appellant strongly denies this misrepresentation was done knowingly and wilfully.
In the process of drilling holes in a bus body, a drill bit bent and stuck, causing the drill to turn in the appellant’s hands, and in turn causing the appellant’s body to move in such a way as to cause a sharp pain in his back. The appellant thereafter consulted and was treated by several doctors and ultimately had an operation on his lower back. In the course of his consultations with physicians, the appellant revealed that some 13 or 14 years prior to this accident, he had injured his back while working in a fig harvest in California. This earlier injury was apparently mild, as the appellant testified he lost no time from his work and the only treatment he received was heat application for what was described as a muscle spasm.
During the time between the earlier injury and the one under consideration here, the appellant did various kinds of heavy labor requiring lifting and other uses of his back. There is no evidence in the record to show that prior to the examination in connection with the latter injury the appellant knew he was the victim of a congenital defect in his back. Likewise, there is no doubt that the appellant failed to inform his employer of the previous back injury. In the Shippers case, supra, the supreme court said:
The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee mst have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury. [265 Ark. at 369].
The appellant contends he did not knowingly and wilfully make a false representation and that there is no evidence of a causal connection between the false representation and injury. He does not argue that the misrepresentation was not a substantial factor in his being hired.
1. Knowing and wilful misrepresentation.
In stating this point, the appellant refers to the “preponderance of the evidence.” The standard on appeal to this court is that we must affirm the commission if there is substantial evidence to support its factual determinations. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979); O. K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W. 2d 224 (1979). Although we might agree if we were assessing the preponderance of the evidence, that it favors the appellant in these circumstances, we find substantial evidence to support the conclusions that he knowingly and wilfully failed to reveal his previous back injury at the time he was hired by the appellee, Ward. At one point, the appellant seemed to say in his testimony before the administrative law judge that he did not reveal the injury because he was only interested in getting a job. The context in which that statement was made was such that it is not nearly as devastating to the appellant as it will appear in cold print here. However, given the fact that he said it and the undeniable evidence that he, with the assistance of his wife, incorrectly answered the employer’s questions when he was hired, we cannot say there is no substantial evidence to support the conclusion that he knowingly and wilfully misrepresented the facts.
2. Causal connection.
Our supreme court took that which has become known to us as the “Shippers test” directly from IB Larson, Workmen’s Compensation Law, §§ 47 — 53 (1979). Professor Larson does not elaborate on the third of the factors he and our supreme court say must be present before an employee is barred from receiving compensation because of misrepresentation. To say there must be a causal connection between the misrepresentation and the injury leaves some questions in our minds. Does that mean that, as the appellee argues here, if the misrepresentation caused the employee to be hired, and had he not been hired no injury would have occurred, the misrepresentation therefore caused the injury? If so, then this third requirement would, in effect, be the same as the second one. Although we have not specifically addressed this problem, we have regarded the third requirement as being that a causal relationship exist between the previous injury or illness the employee misrepresented and the injury for which he seeks compensation. In Baldwin v. Club Products Co., et al, 270 Ark. 155, 604 S.W. 2d 568 (1980), this court held “a thorough scrutiny of the record fails to reveal any medical evidence touching on a causal relationship between the injury in 1969 and the current injury,” and thus the matter was returned to the commission for further evidence. This approach has been followed in other jurisdictions. See e.g., Daniels v. Gudis Furniture Company, 541 S.W. 2d 941 (Tenn. 1976); General Motors Corporation v. Cresto, 265 A. 2d 42 (Del. Super. 1970). We believe this is the correct approach, as otherwise, the third stated requirement would be meaningless.
Here, there is evidence that the appellant’s disease is a contributing factor to his injury. However, he cannot be said to have misrepresented his condition by failing to reveal his congenital back problem, as there is no evidence he knew he it when he was hired. Thus, we are left with the question whether there is a causal relationship between the appellant’s old injury and his new one. In his cross examination of the appellant, counsel for the appellees attempted to demonstrate that both the old and the new injuries resulted from a sort of lateral twisting at the waist: the first when he turned while holding a heavy fruit crate, and the second when he was turned about by the force of the drill. The appellant testified he could not recall where on his body the pain occurred when he was first injured. Thus, we only know that there may have been some similarity between the injuries and the manner in which they occurred, but that is no evidence of a causal connection between them.
The only other item which might be considered substantial evidence of the required causal relationship is the medical report of Dr. R. Barry Sorrells, in the form of a letter, which stated “this man tells me he has had recurrent mild to moderate back symptoms since 1968, when he was lifting a heavy case of fruit.” That statement might indicate the appellant’s back was in a substantially weakened condition because of the previous injury, thus making the first injury a contributor to the second one. At another point in his letter, Dr. Sorrells said that the back problem had been “allegedly quiescent” since 1968. That, of course, is inconsistent with his statement the appellant had described the problem as recurring. When asked at the hearing about this aspect of Dr. Sorrells’ report, the appellant emphatically denied he had said anything to the doctor, about recurring back symptoms since 1968, although he freely admitted he had told the doctor about the previous injury.
We cannot say this doctor’s letter which is predicated' upon a statement by the appellant, which the appellant denies having made, rises to the dignity of “substantial evidence.” While rules of evidence are not strictly applied, in administrative hearings, an inherently inconsistent statement such as the one relied upon here cannot be considered substantial evidence.
The commission’s decision, therefore, is reversed and the matter is remanded to the commission for the taking of further evidence with respect to the question whether there is a causal relationship between the two injuries. Shock v. Wheeling Pipeline, Inc., et al, 270 Ark. 57, 603 S.W. 2d 446 (Ark. App. 1980).
Reversed and remanded.
Penix, J., dissents. | [
-80,
106,
-39,
-116,
26,
97,
58,
122,
85,
-121,
37,
127,
-17,
-57,
13,
111,
-9,
61,
-11,
31,
-9,
-77,
67,
-22,
-14,
-41,
-5,
-41,
-72,
107,
100,
-43,
77,
48,
10,
-43,
-26,
75,
-60,
24,
-52,
6,
31,
-18,
89,
80,
32,
110,
92,
79,
48,
-68,
3,
46,
24,
-57,
44,
44,
107,
57,
-64,
-7,
-86,
5,
109,
0,
-93,
68,
30,
15,
-4,
47,
-112,
-80,
32,
-56,
88,
-74,
-126,
-12,
43,
-71,
-124,
98,
98,
33,
-115,
37,
-8,
-72,
15,
-66,
31,
-90,
-80,
56,
115,
11,
-105,
-67,
82,
20,
52,
44,
-14,
93,
29,
108,
-125,
-122,
-76,
-77,
-49,
-92,
-98,
-125,
-17,
7,
-111,
97,
-52,
-94,
93,
101,
18,
27,
22,
-70
] |
W. Harold Flowers, Judge.
The sole question presented on this appeal is whether there was substantial evidence to sustain the appellant’s conviction on charges of carrying a weapon and resisting arrest. Ark. Stat. Ann., § 41-3135 (1) (Repl. 1977), and Ark. Stat. Ann. § 41-2803 (Repl. 1977). We find the evidence was sufficient.
On July 29, 1979, appellant was at the Other Center Cinema in North Little Rock, Arkansas, where she caused a disturbance and commotion following her charges that the cashier had overcharged her children. An offer to refund her money was made by the manager as he requested her to lower her voice or leave the theater. She continued the disturbance and the manager sought and received the assistance of an off-duty police officer who placed the appellant under arrest after she had used vile and vicious language. She continued her remonstrations and, according to a witness, “started screaming, hollering, digging her heels into the concrete to avoid leaving, and again shouting obscenities.” Testimony showed it took two officers to get the appellant into the police car.
When the appellant was placed in the police car, an officer took her purse. She repeatedly requested that it be given back to her, and upon a search by the officer, it was found to contain a .22 caliber Imperial pistol.
The appellant waived a jury trial, and upon trial to the court, she did not challenge the lawfulness of the search of her purse or admissibility of the pistol into evidence.
The appellant argues the charge of carrying a handgun as a weapon” should have been dismissed because of insuf ficiency of the evidence. The only weakness in the evidence asserted by the appellant is the state’s failure to show the gun found in the appellant’s purse was loaded. While our supreme court has referred to the fact that a gun was loaded as being evidence it was being carried or transported “as a weapon,” McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979); Rowland v. State, 255 Ark. 215, 499 S.W. 2d 623 (1973), it has not identified that fact as an element of the offense or as essential to a finding that a handgun was carried with a purpose of using it “as a weapon.”
In Hathcock v. State, 99 Ark. 65, 137 S.W. 551 (1911), the supreme court approved an instruction to the effect that when one carries a pistol it is presumed to be loaded and carried as a weapon. The court quoted the following from Wardlaw v. State, 43 Ark. 73 (1884):
The statute does not require that the pistol should be loaded. ... If it did, its value would be severely impaired, for that is a fact which can hardly ever be ascertained beyond peradventure until somebody is shot. [43 Ark. at 74-75]
While the statute has been modified in some respects, the question in the Hathcock case, as here, was whether the handgun or pistol was being carried or used “as a weapon.”
In Carr v. State, 34 Ark. 448 (1879), a defendant showed affirmatively that one of the two pistols he had carried was inoperable and the other was unloaded. The court said, “[t]hese things, affirmatively shown, rebut the presumption that they were worn to be used as weapons,” (34 Ark. at 450), and the conviction was reversed and a new trial ordered.
Although these are old cases, they are the only ones in which our supreme court has confronted squarely the issue with which we are faced, and we find their authority undiminished. Thus, we hold it was not necessary for the state to have shown the pistol was loaded.
Affirmed. | [
113,
-5,
-32,
61,
8,
-31,
96,
-70,
115,
-93,
117,
83,
-95,
66,
21,
121,
74,
127,
117,
105,
-58,
-73,
111,
96,
-14,
-77,
57,
-41,
-77,
73,
-92,
-44,
77,
113,
-22,
-43,
102,
-54,
-57,
88,
-114,
1,
-69,
65,
96,
-54,
36,
43,
98,
7,
113,
-73,
-29,
42,
30,
-50,
41,
44,
75,
-68,
112,
121,
-118,
69,
-17,
20,
-77,
36,
-97,
5,
-40,
28,
88,
49,
1,
104,
115,
-94,
-126,
84,
105,
-85,
-116,
106,
98,
7,
-116,
-18,
-72,
-120,
118,
123,
-123,
-90,
-112,
73,
75,
45,
-106,
-107,
108,
-112,
14,
-14,
115,
92,
82,
108,
15,
-58,
-12,
-79,
13,
40,
86,
-78,
-21,
-91,
48,
117,
-50,
-30,
92,
81,
16,
-37,
-50,
-42
] |
Richard B. Adkisson, Chief Justice.
This case involves the construction of a will in which certain land was devised “to my son-in-law Hayward Spence and my daughter Donnie Spence and her bodily heirs.” The appellees are the sole bodily heirs of Donnie Spence by her husband, Hayward Spence.
Following the probate of this will and Donnie Spence’s death, Hayward married Hazel Spence and quitclaimed to her his interest in the land. Appellees filed a quiet title action in Lonoke County Chancery Court against Hazel Spence, appellant to cancel this quitclaim deed.
The primary question presented is what estates were created by the testator’s language. First, an estate by the entirety was created by the devise to the parties who were, in fact, husband and wife. Curtis v. Patrick, 237 Ark. 124, 371 S.W. 2d 622 (1963). This arises from the common law unity of husband and wife, and it applies to an estate in fee as well as for life. Roach v. Richardson, 84 Ark. 37, 104 S.W. 538 (1907); Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903 (1954). Second, a fee tail estate is created by a devise to Donnie and Hayward Spence which singles out “her bodily heirs.” Horsley v. Hilburn, 44 Ark.458 (1884); Weatherly v. Purcell, 217 Ark. 908, 234 S.W. 2d 32 (1950). Third, under such circumstances, Ark. Stat. Ann. § 50-405 (Repl. 1971) establishes a life estate in the person seized of the fee tail with a remainder in fee to whom the estate tail would first pass at common law. Therefore, Hayward and Donnie Spence took an estate by the entirety for life with the remainder vesting in the heirs of Donnie Spence in fee simple absolute.
We need not concern ourselves with appellant’s contention that the trial court erred by admitting into evidence oral declarations of the testator made before and after the execution of the will. The chancellor clearly ignored such testimony in finding the testator’s intent, as reflected in the judgment which states that such intent was found “from the will itself.” This complies with our well-established rule that the testator’s intent should be derived from the “four corners of the will,” when possible. Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977).
Affirmed. | [
114,
108,
-40,
60,
40,
32,
-70,
-93,
-15,
-85,
101,
83,
109,
-42,
85,
99,
-29,
-115,
97,
104,
-73,
-89,
15,
64,
-14,
-13,
-112,
-116,
-13,
77,
-10,
-33,
72,
115,
-62,
85,
-26,
15,
-35,
-112,
78,
11,
11,
101,
-39,
84,
58,
113,
16,
87,
85,
-97,
-14,
46,
61,
-58,
72,
46,
91,
56,
-64,
56,
-81,
5,
123,
6,
-79,
7,
-80,
-57,
98,
9,
-104,
49,
-128,
-24,
115,
-90,
22,
118,
79,
25,
-88,
102,
-14,
0,
105,
-27,
-72,
-104,
14,
110,
31,
-122,
18,
73,
11,
111,
-68,
93,
125,
16,
14,
-12,
-26,
-59,
28,
-20,
4,
-113,
-42,
-95,
-117,
126,
-100,
19,
-33,
3,
32,
112,
-37,
-86,
93,
39,
125,
27,
-114,
-5
] |
Frank Holt, Justice.
Appellant was convicted of burglary (Ark. Stat. Ann. § 41-2002 [1] [Repl. 1977]), theft of property (Ark. Stat. Ann. § 41-2203 [2] [b] [Repl. 1977]) and sentenced as a habitual criminal (Ark. Stat. Ann. § 41-1001 [Repl. 1977]) to ten years and five years, respectively, the sentences to run concurrently as recommended by the jury.
Appellant first contends there was insufficient evidence of the current market value of the stolen items, which consisted of a television and a muzzle-loading rifle in a buckskin scabbard. The owner testified that that he had purchased the television set for $442.85 at Sears about two years previous to the theft. He produced the receipt. His wife testified she had paid $23 for the gun case the previous summer. There was no evidence of the value of the rifle nor the condition of any of the items at the time of the theft. Appellant overlooks the fact, however, that he testified on cross-examination that, in explanation of his possession of the items, he paid another person $ 115 for them. In the circumstances, the evidence is amply substantial that the property was in excess of the statutory requirement of $100. Tillman v. State, 271 Ark. 552, 609 S.W. 2d 340 (1980); Bailey v. State, 266 Ark. 260, 583 S.W. 2d 62 (1979); and Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978).
We next consider appellant’s assertion that error occurred in the admission into evidence of a sketch made of the man by a witness who observed him taking the items from the victims’ home. The sketch reflected how tall she thought the burglar was, the thickness of his hair and the lines on his shoulder garment. She thought he might have been wearing a “two-tone shirt or something.” A photograph of appellant, introduced into evidence and taken shortly after his arrest, showed appellant wearing a similar shirt. Appellant argues that the sketch was not relevant to any fact issue and, therefore, inadmissible under Ark. Stat. Ann. § 28-1001, Rules 401 and 402 (Repl. 1979).
Relevant evidence is that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979); and Rule 401, supra. In our view the sketch certainly tends to make it more probable than less probable that appellant was properly identified as having committed the alleged offense.
We now consider appellant’s contention that prejudicial error was committed during the sentencing phase of the trial when appellant’s attorney and the prosecutor were permitted to stipulate to the existence of seven prior convictions without appellant being questioned as to whether he understood and agreed to the stipulation. The record shows the stipulation was made in a discussion at the bench. Although appellant’s counsel stated to the court that he had consulted with the defendant, who agreed to the stipulation, no inquiry was made of the appellant by the court as to his acquiescence or that he understood the previous convictions could be used to enhance his sentence. Appellant cites Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979) (Cox I), which holds that such a stipulation is a denial of due process of law, because it amounts to a waiver of a defendant’s constitutional right to have the state prove the prior offenses and his right to rebut that proof under Ark. Stat. Ann. § 43-2330.1 (2) (Repl. 1977) and Ark. Stat. Ann. § 41-1005 (2) (Repl. 1977); such a stipulation is the equivalent of a guilty plea and, therefore, the trial court is required to question a defendant to determine if he knowingly and voluntarily agreed to the stipulation; and it is “constitutional error” not to do so. See also Cox v. Hutto, 619 F. 2d 731 (8th Cir. 1980) (Cox II); and McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1975).
Thus, the question is whether or not the asserted error mandates reversal of this case; that is, whether the verdict at sentencing can be supported by valid convictions, authenticated copies of which were presented to the jury, and whether we can say appellant did not suffer prejudice. See Cox v. Hutto, supra (Cox II). Here, three of the seven convictions did not show that appellant had the benefit of counsel or made a valid waiver. Therefore, these convictions admittedly cannot be used to support the enhanced sentence. McConahay v. State, supra. This leaves four prior convictions which could support the sentences, argues the state, since the jury found two or three prior convictions. Appellant argues that it cannot affirmatively be said without speculation that the stipulation did not affect the jury’s deliberation and that the stipula tion denied him the opportunity to challenge, before the jury, the use of the prior convictions, which runs afoul of Cox v. Hutto, supra (Cox II).
However, in our view, the Cox cases are not controlling in the case at bar. There, four previous convictions were stipulated and read to the jury; it found him guilty of four previous convictions which subjected him to a maximum sentence enhancement of 31 1/2 years and the jury so imposed. Here, the seven prior sentences were stipulated, introduced as evidence and given to the jury which found appellant guilty of only two or three of the seven stipulated prior felonies. It imposed only ten of a possible thirty years for burglary and five of a possible fifteen years for theft of property under our enhancement statute. The record shows appellant had an attorney in three of the seven stipulated convictions and waived assistance of counsel in another. Furthermore, appellant, during cross-examination by the prosecutor, had admitted to the jury two previous convictions and did not deny a third.
In the circumstances, we are of the view that the jury’s verdict, absent the stipulation, is supported by sufficient valid convictions, and the state adequately met its burden of showing appellant suffered no prejudice as a result of this stipulation.
Affirmed.
Purtle, J., dissents. | [
48,
-18,
-3,
60,
25,
96,
42,
-86,
99,
-93,
38,
19,
-91,
-58,
1,
107,
-10,
93,
117,
104,
-34,
-73,
35,
99,
-46,
-69,
-39,
-47,
57,
79,
-84,
-100,
76,
116,
-62,
93,
98,
-56,
101,
80,
-118,
-127,
-69,
71,
116,
64,
40,
45,
92,
3,
-79,
-99,
-29,
43,
28,
-53,
73,
40,
75,
61,
64,
-7,
-94,
79,
-33,
22,
-77,
38,
-84,
5,
-40,
42,
-100,
49,
0,
-24,
115,
-90,
-126,
84,
105,
-97,
12,
98,
98,
0,
13,
-25,
-88,
-128,
39,
-2,
-113,
-89,
-112,
72,
75,
45,
-98,
-100,
102,
20,
12,
-6,
-13,
12,
29,
108,
7,
-114,
-108,
-109,
-83,
32,
-44,
-69,
-1,
-91,
48,
113,
-51,
-30,
93,
21,
90,
-101,
-114,
-41
] |
James H. Pilkinton, Judge.
Appellant, Alton Hodnett, was employed by Willamette Industries until January 31, 1980, at which time he was terminated due to lack of work.
Appellant filed a claim for unemployment benefits on February 5, 1980. The Employment Security Division denied his claim for benefits on February 21, 1980, because he was not seeking other work.
A timely appeal was filed with the Appeals Tribunal on February 25, 1980. A hearing was held on March 6, 1980, in Magnolia, Arkansas. Appellant appeared on his own behalf with one witness. Employer did not appear.
The Appeals Tribunal upheld the Agency’s decision on March 12, 1980. The appeals referee found that appellant was not doing those things a reasonably prudent man would be expected to do to secure work within the meaning of Section 4(c) [Ark. Stat. Ann. § 81-1105(c) (Repl. 1976)] of the employment security law.
Appellant through his attorney appealed the decision of the Appeals Tribunal to the Arkansas Board of Review. The Board of Review affirmed and adopted the Appeals Tribunal decision on June 26, 1980.
A notice of appeal was timely filed with this court on July 11, 1980.
Ark. Stat. Ann. § 81-1107(d)(7) states, in part:
In any proceeding under this subsection the findings of the Board of Review as to facts, if supported by evidence in absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.
The Arkansas Supreme Court has stated, “. . . In a proceeding of this kind the Board’s findings of fact are conclusive if supported by evidence; which of course means substantial evidence.” Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).
This standard for review was reiterated by the Arkansas Supreme Court in Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).
Section 4(c) of the employment security law states that an insured worker shall be eligible for benefits during any week only if:
(c) Such worker is unemployed, physically and mentally able to perform suitable work, and is available for such work. Mere registration and reporting at a local employment office shall not be conclusive evidence of ability to work, availability for work, willingness to accept work unless the individual is doing those things which a reasonably prudent individual would be expected to do to secure work.
The record shows that claimant-appellant’s wife was ill, and he was deeply concerned about being layed off from work. Mr. Hodnett’s supervisor, Mr. Hardaway, told him not to be concerned about the layoff since he could collect unemployment insurance. The following week the appellant spoke with the plant manager, Mr. Mark Robinson, and informed him that he wanted to continue working at least until he had paid some of the extensive hospital bills incurred as a result of his wife’s illness. Mr. Robinson told the appellant not to worry about the hospital bills since he could pay them out of his unemployment compensation and that the company “would not fight the unemployment claim.”
Shortly after appellant’s dismissal, his daughter, who was living in Texas with her children, was killed and appellant had to go to Texas for several weeks to stabilize the family situation. He then returned with his grandchildren to Magnolia, Arkansas. During and immediately after the family emergency, appellant was not able to seek employment. Appellant attempts to justify his failure to seek work by arguing that he was unable to seek employment because of a family emergency situation when his daughter was killed in Texas after he had left his job and this prevented him from looking for a job.
Appellant asserts that this personal emergency exception to Section 4(c) is set out in the case of Wade v. Thornbrough, 231 Ark. 454, 330 S.W. 2d 100 (1959). The Arkansas Supreme Court in the Wade decision found that a woman who quit her job as the result of a personal emergency was not disqualified for unemployment benefits based on Section 5(a) [Ark. Stat. Ann. § 81-1106(a)] of the employment security law. Section 5(a) of the Act does allow unemployment payments upon voluntary quitting if, after reasonable efforts to preserve job rights, a claimant leaves work due to a personal emergency of such nature and conpelling urgency that it would be contrary to good conscience to impose a disqualification. The personal emergency in the Wade case was five children with measles.
The Wade v. Thornbrough decision does not apply to appellant’s situation. The Wade decision dealt with Section 5(a) of the law pertaining to the voluntary quitting of a job due to personal emergency. Appellant here was disqualified under Section 4(c) of the law for not actively seeking employment after separation from this previous employment. The Arkansas Legislature clearly expressed its intent to allow certain exceptions to eligibliity disqualification under Section 5(a) of the Statute. No such intent is shown under Section 4(c). Moreover there is no case law setting out an “emergency” exception to the search for work requirement of Section 4(c). This absence of exception to Section 4(c) is perhaps because the 4(c disqualification is strictly a week-to-week disqualification and can be overcome when claimant shows that he is available and is looking for work. This is apparently what happened in subject case since appellant did qualify for unemployment benefits on April 7, 1980.
Appellant also cites numerous cases which purport to hold that rejection by a claimant of prospective employment (or the failure to seek employment) does not necessarily disqualify him from receiving unemployment benefits if such rejection is for good cause. Each case cited dealt with the issue of a claimant rejecting specific employment and whether the rejection was for good cause. In the case at bar appellant did not look for employment during the period in question because of the family emergency. We are not aware of any cases which allow an exception to the availability or search for work requirement on the basis of “good cause” for personal reasons under Section 4(c).
We can agree with appellant’s argument that a reasonably prudent person would not be expected to actively seek work under the circumstances this claimant faced from February 5, 1980, until he got his family together and settled. However, the crucial point is that appellant was not available for work during the period in question. He was making trips to Texas, getting his grandchildren settled, and doing other things which were necessary, but personal.
As there is substantial evidence to support the Board of Review finding that appellant was not available for work, within the meaning of Section 4(c), during the period in question, we must affirm. | [
48,
-24,
-4,
-99,
10,
-63,
58,
-70,
82,
-113,
39,
83,
-25,
-42,
29,
121,
-29,
109,
-44,
107,
-45,
-109,
17,
97,
66,
-13,
-5,
-25,
-67,
107,
-11,
92,
76,
48,
-54,
-48,
-26,
-48,
-57,
24,
-18,
7,
-21,
-21,
120,
0,
40,
43,
-80,
11,
17,
-98,
-5,
46,
-104,
-62,
13,
46,
89,
-66,
112,
112,
-118,
15,
-17,
20,
-79,
68,
-101,
7,
-48,
44,
-112,
48,
1,
-52,
114,
-74,
-126,
84,
75,
57,
8,
98,
98,
52,
24,
-25,
-24,
72,
14,
-2,
-113,
-92,
-104,
57,
75,
67,
-98,
-99,
126,
20,
6,
124,
-6,
-59,
31,
44,
-125,
-121,
-78,
-77,
13,
-20,
60,
27,
-21,
-89,
16,
117,
-49,
-18,
93,
69,
115,
95,
-122,
-112
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.