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Tom Glaze, Justice.
This case involves the procedural question of whether the appellant properly made service of summons and complaint on the appellee, a domestic corporation. Appellant filed a products liability suit against appellee Forrest City Machine Works (F. C. Machine Works). The summons in question was addressed to F. C. Machine Works, and the return shows that F. C. Machine Works was served as the person being named as the defendant, on February 17, 1986. The trial court granted the appellee’s motion to dismiss on the basis that service in the case was not valid, and appellant challenges the trial court’s finding and dismissal in this appeal. Alternatively, appellant argues the trial court erred in failing to allow him to amend the return to show that a proper agent of the corporation was served; and in failing to grant a continuance at the hearing to allow the appellant to have the summons reissued and properly served. We affirm.
In arguing that service was valid, the appellant contends that Jimmy Rowe, as plant manager, was a proper person to serve on behalf of F. C. Machine Works and that the deputy sheriff left the summons with Rowe. Rule 4(d) (5) of the Arkansas Rules of Civil Procedure controls service of process on a domestic corporation. May v. Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990). It provides as follows: “(S)ervice shall be made... by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive summons.”
In considering appellant’s initial contention, we first must decide whether Rowe, as a plant manager, was a managing or general agent within the meaning of Rule 4(d)(5). For guidance, we turn to the practice commentary, C4-23, to Federal Rule 4(d)(3), which is identical to our Rule 4(d)(5). In this commentary the following general rule is given on who qualifies as a managing or general agent:
(T)he person served must have some measure of discretion in operating some phase of the defendant’s business or in the management of a given office. He must have at least such status that common sense would trust him to see that the summons gets promptly into the hands of the right corporate people. And he should be working for the defendant at the time of service.
While Rowe’s specific duties were not related, we do know that Rowe worked for the appellee for thirty-two years and was the plant manager at the time of the alleged service. Rowe, as plant manager, unquestionably had some measure of discretion in operating or managing appellee’s business. In addition, Rowe’s deposition reflects that he had more knowledge than anyone else about the company’s product, a grain buggy, produced at the appellee’s plant. In view of his title, experience and tenure, Rowe was a ranking person within appellee’s business, and was one who could be trusted to make sure that any summons would be promptly brought to the attention of the corporate people.
While we agree that the plant manager was a proper person to serve under Rule 4(d)(5), we cannot agree that Rowe actually was served. At the hearing on the appellee’s motion to dismiss, the only evidence before the trial court on the service of the process was the return and Rowe’s affidavit. In his affidavit, Rowe stated that the deputy sheriff came to the plant requesting to serve the summons on an officer. After the deputy was told that no officers were present, Rowe averred that the deputy sheriff left without serving anyone. Specifically, Rowe stated that he did not accept service and that he informed the deputy that he was not an officer and was not designated to accept service. As stated earlier, the return of service indicates that F. C. Machine Work was served as “the person named therein as defendant,” and nothing on the return reflects that Rowe was ever served or that anyone refused service.
We have stated that the return of service is prima facie evidence of what transpired, but it is not conclusive where testimony shows it to be false. Hirsch v. Perkins, 211 Ark. 388, 200 S.W.2d 796 (1947); see also Emerson v. Bridgforth & Kinney, 271 Ark. 289, 608 S.W.2d 47 (Ark. App. 1980). In other words, failure to make proof of service does not affect the validity of service, because proof of service may be made by means other than demonstration on the return of the serving official. Cox, Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1, 14 (1979).
At the hearing on the motion to dismiss, the appellant failed to produce any evidence to show that Rowe, or any other proper person under Rule 4(d)(5), was served on behalf of F. C. Machine Works. Therefore, we affirm the trial court’s finding that service of process was not proper.
In the alternative, the appellant argues that the trial court should have granted his request for an amendment to the return of service to show that Rowe was served. Under ARCP Rule 4(h), a trial court may allow any summons or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued. Once again, the appellant failed to present any evidence to support an amendment to the return reflecting that Rowe had been served.
Finally, the appellant argues that the trial court should have granted a continuance to allow him the opportunity to have the summons reissued and properly served on David Hodges, appellee’s president, who was physically present at the time of the hearing. Hodges also was appellee’s attorney in this litigation.
Under ARCP Rule 4(i), if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. In Act 401 of 1989, the General Assembly attempted to give the trial court discretion under this rule by inserting the word “may” for “shall.” We have stated, however, that we give full effect to legislation in an area of procedure or practice we have not preempted by rule and will defer to the general assembly where a court rule conflicts with a public policy adopted by legislative act or as part of the constitution. See St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Here, by adopting Rule 4, we have preempted the area of service of process, thus we will not give effect to the substitution by Act 401 of the word “may” for “shall.” Therefore, under our Rule 4(i), the trial court’s dismissal of the case for failure to make service of summons was mandatory.
For the reasons stated above, we affirm.
Hays, J., concurs. Turner, J., dissents. Price, J., not participating.
Another summons addressed to David A. Hodges, president of the corporation, was issued in this case. The summons was never served and it is not in dispute in this appeal. | [
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David Newbern, Justice.
The question in this case is whether the imposition of a sales tax on cable television service is an unconstitutional, and thus illegal, exaction because the tax does not apply to other mass communications media. We hold that, for a time, the tax was illegal because it was not levied on other, similar services, such as satellite television programming. Now that the tax has been made to apply to all similarly situated businesses, however, its illegality has been cured. We remand the case to the chancellor so that the taxes illegally collected may be refunded to those who paid them.
By Act 188 of 1987 the general assembly added to the services to be subject to the sales tax:
Cable television services provided to subscribers or users. This shall include all service charges and rental charges whether for basic service or premium channels or other special service, and shall include installation and repair service charges and any other charges having any connection with the providing of cable television services.
By Act 769 of 1989, the language was changed to the following:
Service of cable television, community antenna television, and any and all other distribution of television, video, or radio services with or without the use of wires provided to subscribers or paying customers or users, including all service charges and rental charges, whether for basic service, premium channels, or other special service, and including installation and repair service charges and any other charges having any connection with the providing of the said services.
Act 769 was signed by the governor on March 21, 1989, and in accordance with its emergency clause, became law on July 1, 1989. The act is now codified as Ark. Code Ann. § 26-52-301 (3)(D)(i) (Supp. 1989).
Act 188 was promptly challenged by the appellants, Daniel L. Medlock, Community Communications Co., and the Arkan sas Cable Television Association, Inc., on behalf of themselves and all other similarly situated taxpayers. The appellees are James C. Pledger, Commissioner of Revenues, and various state, county, and city officials, Pulaski County, the City of Benton, and all other similarly situated counties and cities. The City of Fayetteville intervened.
As Act 769 had not become law when the chancellor made his ruling, the sole question before him was the constitutionality of Act 188. The taxpayers challenged it as being in violation of their rights of freedom of speech and freedom of the press guaranteed by the First Amendment, their right to equal privileges and immunities guaranteed by U.S. Const., art. 4, § 2, and Ark. Const, art. 2, § 18, and their right to equal protection of the laws guaranteed by the Fourteenth Amendment and Ark. Const, art. 2, § 3. They also claimed protection under 47 U.S.C. § 542 and the Supremacy Clause. All of the counts in the complaint boiled down to a claim of discrimination against the cable television medium, and that is the essence of the arguments on appeal, although they are segmented as was the complaint.
1. Public rights of way
In his order ruling against the taxpayers, the chancellor distinguished the cable medium from others on the ground that it required use of a public right of way in addition to the fact that there are no gross proceeds to be taxed in the case of, for example, broadcast television. There was uncontradicted testimony to the effect that a cable television enterprise pays a franchise fee for the use of the right of way. It is true that the use of public rights of way by cable television may subject it to more regulation as has been suggested in some cases. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488 (1986); Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 714 (8th Cir. 1986); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119 (7th Cir. 1982); Community Communications v. City of Boulder, 660 F.2d 1370 (10th Cir. 1981). However, those cases involve regulation related to access to'or use of the rights of way rather than a tax which has no relationship to the acquisition of the privilege of using public property. We thus find the fact that cable television uses public property and must obtain a franchise to do so should not control the result in this case.
2. The First Amendment
We need not indulge in a long explanation of the history of cable television and the cases which have gradually recognized the entitlement of such enterprises to First Amendment protection. A good discussion of it is found in Quincy Cable TV, Inc. v. F.C.C., 768 F.2d 1434 (D.C. Cir. 1985).
The Supreme Court has left no doubt about the matter. In City of Los Angeles v. Preferred Communications, Inc., supra, it was held that the complaint of a cable television company alleging violation of the company’s rights guaranteed by the First Amendment should not have been dismissed for failure to state a claim upon which relief could be granted. The court made it clear that the complaint implicated the First Amendment and facts should be developed to determine how to balance the First Amendment protection to which a cable television company was entitled against the city’s right to regulate the company’s use of public property.
3. Discrimination
Entitlement to protection under the First Amendment does not mean entitlement to absolute freedom from regulation by the government. U.S. v. O’Brien, 391 U.S. 367 (1968). If a tax is to be applied to an enterprise entitled to First Amendment protection, it must be a general tax and must not be a form of censorship. In Grosjean v. American Press Co., 297 U.S. 233 (1936), Louisiana was held to have violated the First Amendment by imposing a tax on newspapers circulating more than 20,000. The court recognized that the press may be subjected to taxation but not if the tax is discriminatory and functions as a censor of some newspapers but not others.
In Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983), it was held that a Minnesota use tax on ink and paper purchases over $100,000 was invalid because its impact was on a few newspapers and one in particular. Unlike the Grosjean case, there was no direct implication of censorship, but the tax was found to discriminate among newspapers and thus to be invalid. The Supreme Court again recognized, however, that the press is subject to a general, nondiscriminatory tax.
In Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), the Supreme Court held that a tax which was applied to some, but not other, magazines sold in Arkansas was in violation of the First Amendment.
In none of the cases we have discussed above, and in none of the other cases cited to us, do we find the Supreme Court holding that, for example, the failure to tax newspapers in the same manner as radio broadcasts violates the First Amendment. Each of the cases involved discrimination among competing mass communicators, each of whom was entitled to First Amendment protection. The taxpayers argue here that cable television is entitled to exemption from the sales tax because newspaper sales are not taxed and subscription magazine sales aren’t taxed. They would like us to issue a ruling which would invalidate not only Act 188 but, in effect, Act 769 as well. We decline to do so. As noted above, Act 769 was not before the court in this case, and we are unwilling to hold that all mass communications media must be taxed in the same way. It would be impossible to impose a tax which would have the same effect on broadcast television, the ) delivery of which produces no direct “gross proceeds,” and cable television. We must, however, hold that a tax which discriminates between mass communicators delivering substantially the same service runs afoul of the First Amendment and the cases which prohibit discriminatory taxation among the purveyors of a particular medium.
Act 188 levied a tax on cable television enterprises but did not tax the proceeds resulting from the “unscrambling” of satellite signals. The similarity of the services is demonstrated in the testimony of Paul Gardner, Jr., president of the Arkansas Cable Television Association. He testified that his company offered both cable service and decoders for “unscrambling” satellite television broadcasts which a viewer using a satellite dish could not otherwise receive. He testified that his company charged the same to a cable viewer for the premium HBO channel, for example, as it charged a satellite viewer. Act 188 thus imposed a tax which cannot pass First Amendment muster, and we must remand this case to the chancellor for orders consistent with this opinion.
Reversed and remanded.
Dudley, J., not participating. | [
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Robert H. Dudley, Justice.
M.N. Osborne purchased a 33,000 square foot building in Camden. After purchasing the property, he discovered that a zoning line traversed the building at an angle, leaving practically all of the building zoned “neighborhood commercial.” Only a small part of the rear right of the building was zoned “light industrial.” Osborne petitioned the City Planning Commission to zone all of the tract on which the building was located to “light industrial.” The Commission denied his request. He then petitioned the Board of Directors of Camden to overturn the Commission’s zoning decision. The Board affirmed the Commission’s decision and denied appellant’s rezoning petition. Osborne transferred the property to appellant Jerry King Ministries, Inc., but continued to seek rezoning, acting as King’s agent in this action. Appellant filed suit in chancery court to enjoin the City from enforcing the zoning ordinance. The trial court upheld the ordinance. We affirm the result by the trial court, but for a reason different from the one given by the Chancellor.
Municipal zoning authority is conferred solely by State enabling legislation. Taggart v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Failure to comply with a mandatory procedural requirement of the enabling statute renders a zoning ordinance invalid. City of Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). A zoning ordinance “shall consist of both a map and a text.” Ark. Code Ann. § 14-56-416(a)(2) (1987). Compliance with this provision of the statute is mandatory, and failure to comply with it will render a zoning ordinance void. City of Benton v. Phillips, 191 Ark. 961, 88 S.W.2d 828 (1936); City of Searcy v. Roberson, supra. The purpose of this provision is to give notice of the city’s zoning proposal so that, before adoption, residents may object or make suggestions, and after adoption, land purchasers may acquaint themselves with the zoning restriction. City of Benton v. Phillips, supra.
In this case the zoning ordinance in dispute was the comprehensive zoning ordinance of 1977, which consisted only of a text. No map was approved by the City as the 1977 zoning map. A Camden official explained that the City was frugal. Sometime later a city planner drew a map which contained, he said, the boundaries which the City had intended. The Chancellor upheld this “working map” as being sufficient to validate the ordinance. The cases of City of Benton v. Phillips, id. and City of Searcy v. Roberson, id., are squarely in point, and the ruling was in error. The 1977 comprehensive zoning ordinance was invalid because it did not contain a map.
The invalidity of the 1977 ordinance causes the City to fall back to its prior comprehensive zoning ordinance, the one of 1964. In 1964 the city officials were not so parsimonious. They employed the City Planning Division of the University of Arkansas to prepare a map and made it a part of the ordinance. However, this 1964 ordinance does not give appellant any zoning relief because the property was zoned at that time the same as it was in 1977. As could be expected, appellant argues that the 1964 ordinance is also invalid. The Chancellor did not rule on this argument. Rather than remand, and in order to end the controversy, we will decide the issue.
An appeal in a chancery case opens the whole case for review as if no decision had been made in the trial court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). “It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.” Ferguson v. Green, id. at 565. Accordingly, we turn to the question of whether the 1964 ordinance was valid.
Appellant contends that Ark. Code Ann. § 14-56-422(5) (1987) requires that both the text and the map of the 1964 ordinance be filed in the City Clerk’s office. Evidence established that the map was filed in the City’s Planning and Code Enforcement Office, and not the City Clerk’s office. Such a filing will not render the ordinance invalid.
The City Planner’s office does not have an outside door, and entry into the office is through the City Clerk’s office. When citizens went to the clerk’s office and asked for a zoning map they were referred into the planning office. Thus, there was substantial compliance with the statute.
In reading this opinion, one may wonder why we invalidate one ordinance for failure to strictly comply with the statutory requirement to make a map part of the ordinance and, in the same opinion, uphold another ordinance on the basis of substantial compliance when the map is not filed precisely as directed by the enabling legislation. The reason is in one instance the statute is mandatory and in the other it is directory. As early as Edwards v. Hall, 30 Ark. 31, 37 (1875), we adopted the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence are directory only. We have continued to follow that distinction. Taggart v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). In this case the existence of a map is the essence of the enabling statute and of the zoning ordinance, while the place a map is filed is not.
Additionally, the appellant argued below that the 1964 classification of appellant’s property was a mistake, and it was arbitrary and capricious for the City not to correct the mistake. We quickly dispose of the argument because the alleged mistake was never presented to the City; it was only presented to the court. The City did not arbitrarily refuse to correct its mistake when its alleged mistake was not shown to it.
Affirmed.
Hays and Glaze, JJ., not participating. | [
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David Newbern, Justice.
The appellant, Ronnie D. Mulanax, appeals from a conviction of first degree murder. He contends the court erred in failing to grant a continuance needed for the production of two witnesses and that the trial court improperly failed to exercise discretion in pronouncing sentence. We hold the denial of the continuance was proper because Mulanax waited too late to ask for it. We hold it was not error for the court to follow the jury’s sentencing recommendation. The judgment is affirmed.
1. Continuance
Mulanax contended he needed the testimony of Mark Mitchell because Mitchell had called police to say he knew of earlier hostility between the victim and Mulanax arising from the victim’s earlier attempt to collect a gambling debt from Mulanax. He contended he needed the testimony of Jimmy Baker because Baker had been an eye witness to the fatal altercation between Mulanax and the victim and that Baker had told an investigator that the victim had appeared to have a weapon of some sort in his hand.
The trial was scheduled for January 26, 1989. Baker’s statement was taken on September 15, 1988, and the call from Mitchell was logged on September 10,1988. The first subpoenas for these witnesses were delivered to the sheriffs office January 19, 1989, and the sheriff was thereafter unable to find the witnesses. The court denied the continuance and stated that Mitchell’s testimony would be irrelevant because in his phone call he had not even been certain that Mulanax and the victim were the people involved in the incident he observed. With respect to Baker, the court noted that the case had been set for trial for four or five months and there was no assurance that Baker would ever be located and brought in as a witness.
Denial of a continuance will not serve as the basis of reversal in the absence of a showing of a clear abuse of discretion. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Likelihood of obtaining a witness and diligence in seeking a witness are both proper considerations. Kelly v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). We find no abuse of discretion.
2. Sentencing
Mulanax asked the court for mercy. The court sentenced him to 40 years imprisonment, stating that it would be presumptuous to fail to follow the jury’s sentence unless it was “way off.” Mulanax contends it was error for the court to fail to exercise discretion, citing Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). In the Wing case, we held that a court must exercise discretion in deciding whether sentences will be served concurrently or consecutively. That was not the issue here.
It is the responsibility of a jury which has found one guilty of an offense to fix the punishment as authorized by law. Ark. Code Ann. § 5-4-103 (a) (1987). Subsection (b) of the same statute contains exceptions to the rule, none of which are alleged to apply in this case. See Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988), where we referred to the exceptions in our opinion, pointing out that, because of the exceptions, the rule and statute concerning presentence reports are not obviated by the basic jury sentencing subsection. It was not error for the court to impose the sentence declared by the jury.
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Jack Holt, Jr., Chief Justice.
The appellant, Thomas Womack, was convicted of two counts of delivery of cocaine and one count of delivery of marijuana and sentenced to forty years imprisonment and a fine of $50,000. For reversal, Womack contends that (1) he established the defense of entrapment by a preponderance of the evidence; (2) that the trial court erred in overruling his objection to hearsay testimony; (3) that the trial court erred in denying his motion for directed verdict based upon the State’s failure to properly identify him at trial; and (4) that the court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. We find no error and affirm.
From February 2, 1988, until October 25, 1988, Arkansas State Police conducted an undercover drug operation in Ouachita County. Mark Tokie, an undercover agent employed by PLE, a private law enforcement firm, was hired by the LTV plant in East Camden to identify drug dealers and make buys on company property when possible.
The plan was that Tokie would work a month at LTV to “fit in” with and meet employees who were involved with drugs and work in cooperation with the police authorities in the area.
Tokie met Mike Nix on the first day he worked. Approximately six weeks later, Nix sold him marijuana. This was around April 15, 1988. On several occasions thereafter, Tokie “hit Nix up” for marijuana, and around the first week of May he had a conversation with Nix “about buying bigger amounts.” On May 6, Nix introduced Tokie to Womack, an electrician at the plant, and told him (Tokie), “Here’s the guy you need to talk to.” Prior to this time, Tokie had no information that Womack was selling or using drugs.
On the same day, Tokie and Womack went out to Womack’s truck. Womack smoked and Tokie simulated smoking marijuana, which was supplied by Womack. At trial, Womack’s version of the facts was radically different from that of the State. He testified that Tokie brought up the subject of marijuana, suggested he use it to help his back problems, and then supplied it for them to smoke. According to Womack, Tokie told him he would like to locate some marijuana, and he (Womack) told Tokie he would “look around and see if he could find some.”
Tokie and Womack spoke again on May 18. At 8:00 p.m. on May 31, Tokie and Womack met to conduct a drug transaction. Tokie followed Womack to a road leading to Womack’s residence. Womack stopped on the road, got out of his truck, approached Tokie, and told him that they should do business on the road because his mother-in-law was living with him and his wife. Womack went back to his truck and returned with a shoebox containing ten bags of marijuana. Tokie paid him $80.00 for two half-ounces bags.
Once again, Womack’s version of the facts was quite different from that of the State. Womack testified that Tokie bought all of the marijuana in the shoebox and that he (Womack) put the money in a sack and laid it in a ditch to be retrieved by a guy from Bearden, who had brought the marijuana to him. Womack also stated that he made no money out of the deal but that he did get a “bud” of marijuana to smoke.
On July 10, Womack called Tokie and told him he had an “eight ball” of cocaine for him. They had discussed this transaction earlier in the week. Tokie and Womack met again at the same place where the previous buy had occurred. They got out of their vehicles and talked for a short time. Womack placed three ounces of cocaine on the front seat of his truck. Tokie heard someone else coming down the road and picked up the cocaine and put it in his pocket.Womack said, “Don’t be alarmed. He’s probably looking for some stuff, too.” Tokie paid Womack $260 and took the cocaine.
According to Womack, the individual from Bearden placed the cocaine on the seat of his (Womack’s) truck, and Tokie placed $260 on the seat of the truck and took the cocaine. The man from Bearden, who was hiding in the woods, got the money. Womack testified that he did not touch the cocaine.
On July 16, Womack called Tokie and told him he had two and one-half grams of cocaine that he wanted to sell. There was no prior plan or conversation to set up this transaction. The two men agreed that Womack would come over and deliver drugs to Tokie in his apartment. While Womack was in the apartment, he asked Tokie for a drink of water. When Tokie opened up the cupboard to get a glass for him, Womack put the cocaine in the cupboard. Tokie paid Womack $200 for the cocaine.
Tokie testified that his relationship with Womack was purely business in nature.
ENTRAPMENT
Womack contends that he established the affirmative defense of entrapment by a preponderance of the evidence. In examining appellant’s argument, it is obvious that his allegation of error is, in fact, that the trial court should have directed a verdict at the conclusion of the State’s case on the ground that entrapment was established as a matter of law.
Entrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. § 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.
“Entrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided.” Wedgeworth, supra; Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). See also Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Otherwise, entrapment is a question of fact for the jury to resolve. Wedgeworth, supra.
Here, there were factual issues to be decided by the jury as to whether or not the conduct of the authorities and the person acting in cooperation with them would have caused a law-abiding citizen to possess and deliver cocaine and marijuana. See Wedgeworth, supra. The trial court was correct in refusing to direct a verdict in favor of Womack.
HEARSAY TESTIMONY
Womack argues that the trial court erred in overruling his objection to hearsay testimony.
On direct examination, Mark Tokie testified that he made a purchase of marijuana from Mike Nix on April 15. This was before Tokie met Womack. When the prosecuting attorney asked Tokie about his conversation with Nix concerning buying larger amounts of marijuana from another person, defense counsel objected on hearsay grounds, and the trial court sustained the objection. Tokie then testified concerning his meeting with Nix and his introduction to Womack. The following exchange then occurred:
Prosecutor: What happens in this meeting?
Tokie: Mr. Nix brought me up and introduced me to Thomas Womack and he said —
Defense counsel: Objection.
The Court: I’m going to overrule it right now.
Mr. Tokie: All Right. He introduced me to him and he said, “Here’s the guy you need to talk to.”
Defense counsel: Judge, I object to that.
The Court: Well, I’ve overruled that.
Defense counsel: Save our exceptions. I think it’s hearsay.
The State claims that the testimony by Tokie that Nix introduced him to Womack and stated, “Here’s the guy you need to talk to,” was not hearsay since it was not offered for the truth of the matter asserted, but rather to show the basis of how Tokie first met Womack.
We need not address whether the testimony was inadmissible hearsay. Even assuming the trial court erred in admitting the testimony, the error was harmless beyond a reasonable doubt in that the prejudicial effect of the testimony was minimal and the evidence of guilt was overwhelming. See Schneble v. Florida, 405 U.S. 427 (1972). A defendant is entitled to a fair trial, not a perfect one. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
IDENTITY OF APPELLANT
Womack asserts that the trial court erred in denying his motion for directed verdict based upon the State’s failure to identify him at trial. We disagree.
“ [A] n element to be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.” Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Identification of a defendant can be inferred from all the facts and circumstances that are in evidence. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989).
In Becker, we held that there was sufficient proof of identity, stating:
Here, there were no codefendants; the defendant was tried alone. He was specifically identified as “Mr. Becker” and “the defendant” throughout the trial. The witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.
In the case at bar, TOkie testified that Womack was the person from whom he purchased marijuana and cocaine. Womack was tried alone and was identified as “Mr. Womack” or “Thomas Womack” throughout the trial. Furthermore, Tokie was a participant in the drug buys and did not point out that the wrong man had been brought to trial. In sum, this was sufficient proof of identity.
OTHER CRIMINAL CHARGES
Womack contends that the trial court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. This argument is without merit since Womack’s counsel raised the issue by electing to recall Womack to the witness stand on redirect, at which time Womack furnished testimony as to the other charge.
A bench conference took place during cross-examination of Womack in which the issue of the admissibility of the other charge was addressed by counsel and the court. After a lengthy exchange concerning the admissibility or inadmissibility of facts relating to the “Calhoun County case,” the court stated: “I think they can go into it.” Womack’s counsel replied, “I want to save my exceptions to that ruling. But then based on that ruling, I feel like I must inquire about it.”
Womack’s counsel then elected to place Womack on the stand for a brief redirect examination:
Q. Mr. Womack, you are charged with three transac tions in this county — one marijuana, two being cocaine.
A. (Nods affirmatively).
Q. Now that’s not the only charges that are against you or is it sir?
A. No sir.
Thereafter, the State presented testimony of Mark Tokie as a rebuttal witness; however, from our examination of the appendices the testimony has no relationship to the criminal charge other than the one for which Womack was being tried.
Notwithstanding the fact that the court in its ruling indicated that it thought the State could go into the matter of the other criminal charge, it was Womack who raised the issue of the charge when he testified on redirect examination. He cannot now be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Kaestel v. State, 21A Ark. 550, 626 S.W.2d 940 (1982). See also Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989); Williams v.State, 288 Ark. 444, 705 S.W.2d 888 (1986).
Affirmed.
Hickman, J., concurs. | [
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Jack Holt, Jr., Chief Justice.
This appeal arises from an order of distribution of the proceeds of a wrongful death action, as does its companion case decided today, Jones v. Jones, 301 Ark. 367, 784 S.W.2d 161 (1990). Jones is the subject of a separate opinion because its results are different.
On July 5,1984, Roy Milton Brewer died in a motor vehicle accident near Ashdown, Arkansas. Herman Edwin Jones, William R. Gilham, and William T. Mills were also killed in the accident. Brewer was survived by his widow, appellee Sharon Brewer Lacefield, and two natural children by a previous marriage, Jerrod Roy Brewer and Amber Tomi Brewer. The probate court appointed the widow as personal representative of his estate.
The widow entered into a contingent fee contract with attorneys John Hainen of DeQueen and William Lavender of Texarkana, Arkansas, to pursue a claim for wrongful death, whereby she agreed to pay them one-third of all money and property collected. Brewer’s ex-wife, appellant Debra Brewer, contracted with Jeb McNew of Nocona, Texas, and Steven R. Davis of North Little Rock, Arkansas, to represent her children in the wrongful death action. This contingent fee contract provided for the attorneys to receive one-third of all proceeds from the action.
Attorneys Hainen and Lavender filed suit on behalf of the personal representative against the driver of the truck, the trucking company, the leasing company, and the truck manufacturer, alleging that they were negligent. This case, along with an action filed by the personal representative of the estate of Herman Edwin Jones, was tried to a jury in federal court in Texarkana, Arkansas, from February 29 to March 3, 1988, with counsel for both parties actively participating in the trial.
The jury exonerated the manufacturer but found the other three defendants liable and awarded damages of $304,000: $4,000 to the estate and $100,000 each to the widow and the two natural children. The estate of Herman Jones and the beneficiaries obtained verdicts in the amount of $359,000.
The defendants had liability insurance of $500,000 to cover the accident. Prior to trial, the carrier settled with the estates of the other two men killed in the accident. The sum of $250,000 in insurance proceeds remained available for distribution to the beneficiaries of the Jones estate and the Brewer estate.
On April 18,1988, the personal representative of the Brewer estate filed a report of litigation and prayer for distribution in the Probate Court of Sevier County. Out of the proceeds available for distribution ($114,630.46), she proposed that Lavender and Hainen be reimbursed for litigation expenses in the amount of $1,916.87 and be paid $37,567.45 pursuant to their contingent fee contract. In addition, she stated that the judgment of the federal court awarded the estate $4,000. Out of this amount, she proposed payment of a claim by Henry C. Morris in the amount of $200; a claim by Southern Clinic in the amount of $841; and bills incurred by her for funeral expenses and travel in the amount of $2,959. Finally, she proposed that she and the children share equally in the balance remaining and recover $23,715.38 each.
The Brewer children, through their independent counsel, filed a separate petition for distribution and brief in support thereof. They objected to the personal representative’s petition for distribution in that it made no allowance for attorneys’ fees to be paid to the children’s independent counsel; to the personal representative’s proposal that the estate receive its entire $4,000 verdict, which was more than its pro rata share; and to her proposal that the claim of Henry Morris and Southern Clinic be paid out of the portion of the recovery attributable to the Brewer children. They asked that their counsel, pursuant to their contingent fee contract, receive one-third of the portion of the recovery payable to them (the children) and that the court only distribute to Hainen and Lavender one-third of the portion of the recovery payable to Sharon Brewer (Lacefield) and the estate.
After hearing oral argument, the probate court entered its order of distribution, predicated upon the personal representative’s proposed order. From this order, the appellant appeals.
For reversal, the appellant first contends that the probate court erred in failing to award a proportionate share of attorneys’ fees to independent counsel retained by her for the decedent’s minor children.
SELECTION OF ATTORNEYS AND FEES
Ark. Code Ann. § 16-62-102(b) (1987) provides that every wrongful death action shall be brought by and in the name of the personal representative of the deceased person. If there is not a personal representative, then the action shall be brought by the heirs at law of the deceased person. The wrongful death code provisions do not create an individual right in any beneficiary to bring suit. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985). However, the personal representative, in bringing suit for wrongful death, acts only as a trustee of conduit, and any proceeds recovered are for the benefit of the beneficiaries and not for the estate. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961); Ark. Code Ann. § 16-62-102(f) (1987).
It is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful death claim pursuant to our wrongful death code provisions. See Cude, supra.
In Cude, this court did indicate in closing dicta that a beneficiary may have her own counsel in a wrongful death case in order to protect her interests. However, we declined to address whether such counsel would be entitled to fees on a portion of the judgment or settlement since it was not raised.
With this issue now squarely before us, we hold that a beneficiary’s attorney is not entitled to fees on a portion of wrongful death proceeds attributable to the beneficiary.
In short, a probate court has no jurisdiction to award attorneys’ fees for services rendered to an individual beneficiary. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900). See also Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).
Appellant cites two cases in support of her claim that her attorneys are entitled to fees, Owens v. Gunther, 75 Ark. 37, 86 S.W. 851 (1905), and Greenlee v. Rowland, 85 Ark. 101, 107 S.W. 193 (1908). However, neither case is pertinent to the issue before us.
In Owens, this court simply held that where a guardian claims an interest in his wards’ property and a guardian ad litem is appointed to defend the wards’ interests, the attorneys appearing on behalf of the wards are entitled to fees out of the wards’ estates. In Greenlee, this court held that where a minor employs an attorney to defend him in a suit brought by his guardian, the minor’s estate is liable for the fee. The issue here is whether the attorneys can recover their fees from the wrongful death proceeds attributable to the children.
Granted, the beneficiaries may prefer to have independent counsel to protect their interests. However, as long as our code provisions provide that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen counsel fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative. In fact, a representative can even be removed if the court finds him or her unsuitable. Ark. Code Ann. § 28-48-105 (1987).
In sum, the beneficiaries are free to select counsel to see that their interests are protected, however, they must bear this expense.
CONFLICT OF INTERESTS
Appellant also claims that the appellee’s attorneys cannot recover a fee since they represented conflicting interests.
Rule 1.7 of the Model Rules of Professional Conduct provides in pertinent part:
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests ....
This court has not addressed whether and under what circumstances a conflict of interest exists by virtue of simultaneous representation by an attorney of both the personal representative and the beneficiaries in a wrongful death suit.
Other courts have addressed this issue. These authorities make it clear that no conflict of interest exists simply by virtue of simultaneous representation of both a personal representative and the surviving relatives. Hurt v. Superior Court of Arizona, 124 Ariz. 45, 601 P.2d 1329 (1979); Johnson v. Village of Libertyville, 150 Ill. App. 3d 971, 502 N.E.2d 474 (1986). Of course, under certain circumstances there may be a conflict. Johnson, supra.
In Johnson, the decedent’s surviving spouse, as personal representative, filed a wrongful death suit. However, in the complaint he did not include a count for loss of society by the decedent’s parents. The parents filed a motion to intervene, alleging that there was a conflict between their interests and those of the personal representative since his interest was in maximizing his degree of dependency and loss of consortium while minimizing their claim for loss of society.
The court held the parents had a right to intervene since it was clearly shown that the personal representative had acted in a manner indicating that he would not adequately represent the interests of the parents. In so holding, the court stated:
[T]he mere fact that the administrator as surviving spouse had a personal interest in the outcome of this Wrongful Death action is not so conflicting, nor an interest so adverse to that of the petitioners that both cannot be adequately represented by the plaintiff____[W] e do not find that there is a conflict of interest simply because the heirs and the personal representative might have interests that conflict in the wrongful death award. In other words, intervention is permitted here only because there is positive proof that the next of kin will not be adequately represented.
In Roberts v. Gateway Motel of Grand Rapids, Inc., 145 Mich. App. 671, 377 N.W.2d 895 (1985), the court held that a new trial was not required on the ground that the interests of the decedent’s mother, the personal representative, conflicted with those of the decedent’s natural father in that: (1) the personal representative attempted to enhance the award of damages by describing the father’s relationship with his son in favorable terms, and (2) counsel for the personal representative never called the conflict to the court’s attention before trial, so that the court could resolve the problem in advance of trial.
As in Roberts, the appellant did not call to the probate court’s attention before trial any conflicts between the personal representative, her counsel, and the beneficiaries or counsel for the beneficiaries. In fact, there was not even a hint of any antagonism between the parties until it came time to distribute the proceeds of the federal court trial to the beneficiaries.
Appellant claims that a conflict of interest is apparent from the personal representative’s recommended distribution of the proceeds. The personal representative proposed that the beneficiaries (the personal representative and the Brewer children) each be paid $23,715.38 of their $100,000 verdicts, and that the estate be paid its verdict of $4,000 in full.
We see no conflict resulting from this plan of distribution so adverse to the children’s interest that they could not be adequately protected by the personal representative. In fact, she suggested that she, as a beneficiary, receive the same share as the children.
Appellant also alleges that a conflict of interest is apparent in that in October 1984, approximately three and one-half years before the trial of the wrongful death action, John Hainen, the attorney chosen by the personal representative, “prevailed on Mrs. Debra Brewer to sign away her children’s interest in the State’s death benefit” payable to both Sharon Brewer (Lacefield) and the children.
This allegation is unsupported by the evidence in the abstract. The abstract does reflect that Debra Brewer sought to waive her children’s claim to death benefits provided by Ark. Stat. Ann. § 12-2348 (Repl. 1979), currently Ark. Code Ann. § 21-5-705 (1987). The order and findings of fact of the State Claims Commission reflect that it split $10,000 in benefits equally between Sharon Brewer (Lacefield) and the children. However, there is no convincing evidence that Hainen “prevailed on Mrs. Debra Brewer” to sign away her children’s interest in the death benefits.
In sum, the appellant has not shown positive proof that the children’s interests were not adequately represented by the personal representative. Furthermore, she voiced no objection to the personal representative’s representation of the children’s interest or selection of counsel until after the proposed order of distribution was filed, and she made no attempt to remove the personal representative pursuant to Ark. Code Ann. § 28-48-105 (1987).
ERROR IN DISTRIBUTION OF FUNDS
Appellant also asserts that the probate court erred in awarding a disproportionate amount of the funds recovered to the estate of Roy Milton Brewer. We agree.
The beneficiaries were each awarded $100,000 of the total verdicts of $304,000, or 98.68421 % of the verdicts; the estate was awarded $4,000, or 1.31579% of the total verdicts. Insurance proceeds in the amount of $114,630.46 were available for distribution.
All parties agree that litigation expenses in the amount of $1,916.87 should be deducted from this amount, leaving $ 112,713.5 9. Appellee’s attorneys get 3 3.3 3 % of $ 112,713.5 9, or $37,567.44. This leaves $75,146.15 available for distribution.
The probate court awarded the estate its entire jury verdict of $4,000, while reducing each beneficiary’s share to $23,715.38. This was error. Monies due beneficiaries cannot be taken to pay the debts of the estate. Dukes, supra.
The beneficiaries should receive 98.68421 % (their percentage of the total verdicts) of $75,146.15, which is $74,157.38, or $24,719.13 each. The estate should receive 1.31579% (its percentage of the verdicts) of $75,146.15, or $988.77.
In closing, we do note that Ark. Code Ann. § 16-62-102(e) (1987) provides that no part of any wrongful death recovery “shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” However, appellant does not argue on appeal, pursuant to this provision, that none of the proceeds of the wrongful death action should have been distributed to the estate.
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Steele Hays, Justice.
Raymond L. Davis and Marvine Davis, appellees, were awarded a judgment of $14,400 against Anna Jacobs and Chris Ragland for the conversion of twelve Holstein cows. Jacobs and Ragland have appealed. Finding no evidence to sustain the verdict, we reverse and dismiss.
The facts of the case are rather involved and are stated here in accordance with the rule that on appeal, we review the evidence and all reasonable inferences therefrom in the light most favorable to the appellees. American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987). In April 1984, Wayne Gee leased forty-six Holstein cattle, a cattle trailer and a 3/4 ton truck to Travis Slaughter and Gladys Slaughter, who operated a dairy farm at Summers, Washington County, Arkansas. The lease provided that the Slaughters would pay $637.41 per month, would not encumber the cattle or vehicles, and would replace any cow that died. Wayne Gee is now deceased and his interest in the forty-six leased cows has passed to his daughter, Anna Jacobs.
In late May 1984, the Slaughters purchased forty-three head of Holsteins from Ray and Marvine Davis, giving the Davises a security interest in the cattle to secure the purchase price of $38,000. The number of milch cows on the Slaughter farm was further increased in January of 1986 when James Frye leased seventeen head of Holsteins to the Slaughters.
For the first year or two the Slaughters generally made timely payments on their obligations to Gee, Frye and the Davises. However, by 1986 the quality of milk being produced by the Slaughter herd had declined, resulting in a “D” grade, which curtailed earnings, and the Slaughters became delinquent in their payments. By June 1986 it appears the herd had seriously deteriorated and the cows were not adequately fed or regularly milked. A number of cows had been culled due to health problems, some had died in calving and some from toxic reaction to Johnson grass. Ultimately the Slaughters filed for bankruptcy and are not now involved in this litigation.
Through her attorney, Anna Jacobs arranged for Chris Ragland to remove the cattle her father had leased to the Slaughters and take them to Ragland’s dairy farm near Harrison, Arkansas and on June 9, 1986, Jacobs and Ragland, with Slaughter’s assistance, loaded and removed forty-two head.
A few days later, Jim Frye learned that his cattle had been removed by Ragland and Jacobs and Frye went to the Ragland farm and with Ragland’s help removed eleven from his original seventeen.
Upon learning that the cattle had been removed from the Slaughter farm to the Ragland farm, Ray Davis contacted Anna Jacobs and told her that he had an interest in the cattle and she advised him that as far as she was concerned the Davis cattle replaced any cows missing from her father’s herd. Sometime thereafter Davis went to the Ragland farm and observed about twenty-five or thirty head of cattle. Davis recognized nine or ten head as being those he had originally sold to the Slaughters.
On August 21, 1986, the Davises filed suit in Washington Circuit Court against the Slaughters for the amount due on the purchase of the Holsteins, praying for delivery of the collateral so that the cows could be sold and the proceeds applied against the indebtedness. Named as defendants were Jacobs and Ragland, along with several others on the allegation that some of the cows were in their possession. The complaint alleged that seven of the cows had been sold and removed by “unknown buyers,” at the Washington County Sales Co., Inc., also named as a defendant.
On the second day of April 1987, an Order of Delivery was approved by the circuit court reciting that the Davises and the separate defendants, Jacobs and Ragland, had agreed that the Davises were entitled to a security interest in fifteen “of the total of thirty cattle now held by” Ragland and Jacobs. The order stated that the parties had agreed to an in-kind division of the cattle: the Davises would first select ten cows and their offspring, Anna Jacobs would then select five cows and their offspring, and the parties would then alternate in the selection of one cow and offspring until the Davises had acquired fifteen of such cows and their offspring, with Anna Jacobs retaining the balance.
The parties encountered difficulties in implementing the order, and the Davises petitioned for a contempt citation against Ragland, alleging that “pursuant to a compromise settlement” (our italics) the parties had entered into “a compromise settlement agreement which was manifested by the Order of Delivery.” The petition alleged that Ragland had refused to release any of the cattle and should be punished. Ragland responded that the Davises had not given notice so that the cattle could be rounded up and had attempted to remove livestock belonging to Ragland. Either by hearing or consent (we cannot determine which) the court entered an order finding Ragland in contempt but further finding that he could purge himself of contempt by delivering the cattle selected by the Davises in accordance with the Order of Delivery. It is undisputed that the Davises, by the agreed formula, recovered fifteen cows and offspring and Anna Jacobs retained fourteen cows and offspring.
On September 27, 1987, the Davises filed their “First Amended Complaint,” alleging that between the Order of Delivery on April 2, 1987, and August 3, 1987, when the cows were delivered, defendants Ragland and Jacobs “either converted the plaintiffs collateral to their own use or were negligent in allowing the same to stray, die or otherwise become lost, resulting in a loss of twelve head of cattle.”
At the close of the plaintiffs case the defendants moved for a directed verdict based upon a failure to make a prima facie showing of either conversion or negligence. The trial judge granted the motion with respect to negligence but submitted the issue of conversion to the jury, which returned a verdict of $16,800 for the plaintiffs. Ragland and Jacobs have appealed. Finding merit in their contention, we reverse and dismiss.
The fact is the Davises failed to produce any evidence of conversion by Ragland and Jacobs subsequent to April 2, 1987. The Davises may well have had a claim for conversion against Ragland and Jacobs based on the June 9, 1986 removal of the forty-two head from the Slaughter farm. But that cause of action, if it existed, was not the one alleged in the First Amended Complaint, nor, indeed, could it have been, in view of the compromise settlement entered into in April 1987. We have searched in vain for any evidence from which a jury could properly have inferred an act of conversion of twelve cows, or any cows, after April 2, 1987, by either appellant. There is no such evidence. There is, of course, the dispute over the delivery of the cows shortly after the compromise settlement was reached, but that was soon resolved and the Davises received the exact number of cows due them under the settlement agreement. That relatively brief interruption in the delivery process does not translate into conversion, nor is there any claim by the Davises to the contrary. Moreover, any existing cause of action accruing to the Davises merged into the compromise settlement. Harris v. Brewer, 239 Ark. 614, 390 S.W.2d 630 (1965); Burke v. Downing Co., 198 Ark. 405, 129 S.W.2d 946 (1939).
In Burke, the court quoted the following comment from 11 Am. Jur., Compromise and Settlement § 4 (1937):
The law favors the amicable settlement of controversies, and it is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims. The nature or extent of the rights of each should not be too nicely scrutinized. Courts should, and do, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties; the consideration for such agreements is not only valuable, but highly meritorious. Because they promote peace, voluntary settlements of differences between parties having legal capacity to contract in respect of their rights, where all have the same knowledge or means of obtaining knowledge concerning the circumstances involving their rights and where there are no fraud, misrepresentations, concealments, or other misleading incidents, must stand and be enforced if intended by the parties to be final, notwithstanding the settlement made might not be that which the court would have decreed if the controversy had been brought before it for decision. Such agreements are binding without regard to which party gets the best of the bargain or whether all the gain is in fact on one side and all the sacrifice on the other.
Here, it is clear that at the time the compromise agreement was reached Ray Davis was fully aware of the circumstances. He had been to the Ragland farm and found only “25 or 30 head” remaining, and Anna Jacobs had informed him that so far as she was concerned all the cattle removed on June 9,1986, were from the herd leased by Wayne Gee to the Slaughters. Thus, the Davises settled with the appellants while knowledgeable of all the facts.
Two additional assignments of error are asserted, but they need not be addressed.
Reversed and dismissed.
Turner, J., not participating.
The amount of the award was subsequently reduced by the trial court to $14,400 and costs. | [
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John I. Purtle, Justice.
This is an appeal from the trial court’s granting of the appellee’s motion for summary judgment in an action seeking damages for malicious prosecution, abuse of process, and outrage. For reversal, the appellant argues that the trial court erred in granting summary judgment because there were genuine issues of material fact unresolved in relation to all three counts in the appellant’s complaint. The trial court correctly found that there was no genuine issue of any material fact relating to any of the three counts in the complaint.
On October 17,1984, the appellant and his wife purchased a camper trailer from the appellees, Outdoor Living Center, Inc., and Richard Shilling under an installment sales contract. The purchasers made their living through truck driving and construction work, which carried them into many different parts of the country. At the time of the purchase, the appellant and his wife lived in Knoxville, Arkansas. The transaction was financed through Arkansas Valley Bank for a period of 36 months. The payments were made from the date of the purchase until May 1986, five months short of the end of the payment period.
After the purchase, the appellant alleged, he began having problems with the vehicle, including heating, lights, refrigeration, and the hot water tank.
The appellant’s last payment on the account was in May 1986, when his wife sent a check to Arkansas Valley Bank drawn on the Bank of Lincoln in Lincoln, Arkansas. This check represented payments for April and May of 1986, and the return address on the envelope was in the care of Dean Kilgore, the appellant’s brother-in-law, with whom he was staying at the time in Lincoln. During this period, the appellant and his wife had moved several times. Whether the appellees and the bank were notified is disputed.
Apparently it was the appellant’s intention to discontinue making payments, thereby forcing the appellees to make repairs on the vehicle. In any event, the appellant’s failure to make payments prompted the bank to order the appellees to repurchase the loan on August 18, 1986.
Shilling attempted to contact the appellant for payment but was unable to locate him at his Knoxville address; in fact the appellee found the residence vacant and the phone disconnected. He then contacted the Pope County Sheriff and the prosecutor. Warrants for the arrest of the appellant and his wife on charges of defrauding a secured creditor were issued on November 10,1986.
At some point in January or February of 1987, the camper trailer, which had been parked at Dean Kilgore’s house in Lincoln, was stolen. The insurer paid off the balance owed on the vehicle.
More than six months later, on July 8, 1987, the appellant was stopped for a traffic violation in Fort Smith. At that time, it was discovered that the Pope County warrant for his arrest was outstanding. The appellant was taken to jail and held for two hours until he posted a $2,500 bond. The prosecuting attorney subsequently dismissed the charge.
On February 16,1988, the appellant filed suit for malicious prosecution, abuse of process, and outrage. The appellees moved for a summary judgment on July 15,1988. A hearing was held on the motion on February 10, 1989, and summary judgment was granted on March 27, 1989.
Arkansas Rules of Civil Procedure, Rule 56, provides for summary judgment under certain conditions. Clearly, the motion in the present case was timely and in proper form. Rule 56(c) provides that the court shall render a summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue concerning any material fact and that the moving party is entitled to judgment as a matter of law. The burden of sustaining a motion for a summary judgment is always the responsibility of the moving party. Rowland v. Gastroenterology Associates, P.A., 280 Ark. 278, 657 S.W.2d 536 (1983). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the opposing party.
In disposing of this case, it is necessary for us to consider separately the three elements of the allegations in the complaint. We first address the issue of malicious prosecution. In the case of Farm Service Cooperative, Inc. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979), this court quoted with approval from an Arkansas Law Review note on malicious prosecution:
In an action for malicious prosecution the court concentrates on the facts before the action was commenced, while in an action for abuse of process, the question is whether the use or application of legal process, after it was issued, was one for which it was designed.
22 Ark. L. Rev. 340 at 356, quoted at 267 Ark. at 337, 590 S.W.2d at 868.
Lack of probable cause and malice are essential elements of the tort of malicious prosecution. The two terms are not convertible and neither necessarily follows as a legal presumption from the establishment of the other. Farm Services Cooperative, Inc. v. Goshen Farms, Inc. Malice may be inferred from lack of probable cause, but on the other hand, lack of probable cause may not be inferred from malice. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Probable cause is determined by the facts and circumstances surrounding the commencement and continuation of the legal action.
Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. “Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations.” Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1982). See also Malvern Brick & Tile Co. v. Hill.
At the time the warrant for the appellant’s arrest was issued, he was several months behind on the trailer payments and had moved, disconnecting his telephone and leaving no forwarding address. The bank had required the appellees to repurchase the contract. Shilling did not know the appellant’s current address. The appellees repurchased the contract on August 8, 1986, but did not go to the authorities until November 10,1986. The information possessed by the appellees was credible and sufficient to cause a person of ordinary caution to decide that probable cause existed to believe that the appellant had committed the act for which he was charged.
Sometime in the spring of 1987, the balance of the amount owed on the trailer was paid to the appellees by the bank, which had collected from the insurance company for the stolen trailer. The appellees made no attempt to notify the prosecutor that they had received the balance of the debt on the purchase price.
Malice has been defined as “any improper or sinister motive for instituting the suit.” Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114 (1897). Thus, even though a party holds great malice toward another party, he would, nevertheless, have a defense for malicious prosecution, provided probable cause existed for bringing the original charges. In other words, while malice might be admitted, a successful defense could still be established against a suit for malicious prosecution. Such an action cannot be maintained upon malice alone. Even if malice in this instance could be inferred, there does not appear to have been any improper or sinister motive on the part of the appellees for instituting the charges.
The appellee denied causing the warrant to be issued, and in fact, denied that he even knew that the appellant had been arrested. Even if the appellee knew of the arrest, it does not take anything from the facts which supported probable cause for issuance of the warrant. With a sound basis for probable cause and no strong evidence of malice, the charge of malicious prosecution could not succeed. Therefore, the trial court correctly granted the summary motion on this issue.
' Abuse of process was considered by this court in the case of Smith & McAdams Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973). In that opinion we quoted with approval from Prosser, Law of Torts § 121 (4th Ed. 1971), the three requirements giving rise to a cause of action for abuse of process:
(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but,
(2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding.
In that case and others we have determined that abuse of process is something in the nature of extortion or coercion. The key to this issue is the improper use of process after issuance, even when issuance has been properly obtained. In Smith & McAdams, Inc., we stated: “The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar. Here we have no abuse or coercive act subsequent to the issuance of the warrant.” 255 Ark. at 644, 501 S.W.2d at 770.
We have previously stated that there was probable cause for the issuance of the Pope County warrant in the first place. It does not matter, when considering abuse of process, whether the legal procedure set in motion was indeed founded upon probable cause because the second requirement is that the procedure must have been perfected to accomplish an ulterior purpose for which it was not designed. There is no dispute that the charge in the present case was founded upon a provision of the law aimed at people who abscond with property not paid for. The fact that the property was later paid for by the insurance company has no bearing on the charge for which the appellant was arrested. We are concerned here with the cause for the appellant’s arrest and the use of the process after it was commenced.
We have found nothing in the record showing a willful act on the part of the appellees not in keeping with the regular conduct of such proceedings. Therefore, we find no proof or evidence in the record that the process in this case was either perverted to accomplish an ulterior purpose or tainted by a willful act on the part of the appellees in the use of the process after issuance for their own benefit. The trial court correctly granted summary judgment on the issue of abuse of process.
The appellant relies particularly on the dissent in Headrick v. Wal-Mart Stores, Inc., 293 Ark. 433,738 S.W.2d 418 (1987). However, as he correctly observes, the dissent was on a point apparently not considered in the majority opinion. The court in Headrick disposed of the issue of malicious prosecution in the following manner: “Having failed to set forth facts upon which a claim for malicious prosecution could be based, Mr. Headrick cannot complain that the court found no disputed facts in relation to that claim and granted summary judgment.” 293 Ark. at 243, 738 S.W.2d at 420. Headrick is further distinguishable on the facts because the warrant was not issued against the appellant in that case until after he had paid off the hot check. In the present case, the warrant was issued long before the balance of the debt was paid.
Finally, we consider the allegation of the tort of outrage. Our most recent decision concerning this tort may be found in Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). There we quoted the case Counce v. M.B.M. Co., Inc., 266 Ark. 1064, 597 S.W.2d 92 (1980), in which this court adopted the tort of outrage. In Counce, we stated that outrage is committed under the following circumstances:
One who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, . . . ; (2) that the conduct was ‘extreme and outrageous’, ‘utterly intolerable in a civilized community’, . . . ; (3) that the actions of the defendant were the cause of the plaintiffs distress,. . .; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’ [266 Ark. at 1068, 597 S.W.2d at 94, quoted at 299 Ark. at 173, 771 S.W.2d at 753.]
The tort of outrage is not easily established; merely describing conduct as outrageous does not make it so. Clear-cut proof is necessary to establish the four elements ennumerated in Deason. See Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982). We are of the opinion that summary judgment was proper because the plaintiffs allegation on the tort of outrage, even if proven, did not rise to a level sufficient to support a claim for damages for the tort of outrage.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
Gary Barnes, appellant, sued
Rothchild Wallace, Jr., appellee, and Robert Wilkiewicz for personal injuries sustained on December 31, 1986. Barnes and Wallace are employees of Virco Manufacturing Company. Wallace is Barnes’s supervisor. Barnes alleged that his injuries were the result of the combined negligence of Wilkiewicz and Wallace, in that Wilkiewicz collided with a pickup truck which Wallace had parked adjacent to a disabled tractor trailer belonging to Virco.
Wallace moved for summary judgment, contending that Barnes’s remedy against him was limited to the Arkansas Workers’ Compensation Act. The trial judge granted summary judgment and Barnes, after taking a non-suit against Wilkiewicz, has appealed. We affirm the order.
Barnes concedes Wallace’s supervisory status, but maintains that Wallace is not being sued as an employee, but as a driver for having “breached the rules of the road, not the rules of his job.”
Barnes’s reliance on King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), is misplaced. In King, the appellant, King, drove a dump truck in hauling asphalt on a highway construction job and the appellee, Dyer, spread the asphalt hauled by King. They both were employed by the same contractor. King negligently backed a dump truck over Dyer, contrary to a company practice that dump trucks were not to be backed up to an asphalt paving machine while the machine was shut off, and fatally injured him. The workers’ compensation provisions did not prevent Dyer from maintaining an action for negligence against King, and the trial court awarded damages to Dyer’s estate.
In King, however, a master determined that a company practice established that dump trucks were not to be backed up to an asphalt paving machine while the machine was shut off, which was the underlying act which caused Dyer’s fatal injury.
Barnes interprets King as holding that the duty Wallace owed to Barnes was a personal duty of due care in the use of the public streets, unrelated to any duty between co-employees. But we read that decision as merely recognizing that an employee is held to be a “third party” under Ark. Code Ann. § 11-9-410 (1987) and, therefore, claims between co-employees are not barred by the Arkansas Workers’ Compensation Act. The opinion makes no distinction between rules of the job, as opposed to rules of the road, nor does it deal with the issue of safety at the place of work.
The problem confronting appellant Barnes is that this court has adopted what we regard as the majority view that supervisory employees, like employers, are immune from liability for failing to provide a safe place to work or when their general duties involve the overseeing and discharging of that same responsibility. Simmons First Nat’l Banks. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). This court in Simmons announced itself solidly in agreement with language from State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982):
Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law.
We have continued to adhere to that position in later decisions: Fore v. Circuit Court of Izard Co., 292 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing of St. Joseph, Mo., 290 Ark. 291, 718 S.W.2d 941 (1986).
The interrelationship between Barnes and Wallace was described as follows:
Rothchild Wallace, Jr., is an employee of Virco Manufacturing Corporation, Conway Division. He is currently classified as a Maintenance Mechanic “A”, lead person, third shift, truck shop. Mr. Wallace was so employed and held that title on December 31, 1986. As lead person for third shift truck shop, Mr. Wallace has supervisory responsibility for all persons employed by Virco Manufacturing and assigned to the truck shop third shift. Mr. Wallace had those same responsibilities on December 31, 1986. In his capacity as third shift lead person, Mr. Wallace had supervisory responsibility over the person of Gary D. Barnes who was a third shift mechanic. At the time of the accident which occurred in the early morning hours of .December 31, 1986, Mr. Wallace was acting in his supervisory capacity.
In this case, both Barnes and Wallace were assisting in the repair of a disabled Virco tractor trailer. Wallace was Barnes’s supervisor at Virco and he transported Barnes to the location of the tractor trailer in a Virco truck. The disabled tractor trailer was located next to a highway; according to Barnes, Wallace partially parked the Virco truck on the highway. While they were engaged in the repair of the tractor trailer, Wilkiewicz collided with the rear of the parked Virco truck and injured Barnes’s leg.
Consequently, Barnes was injured during, and within, the course and scope of his employment with Virco. The accident scene was the employee’s workplace; Wallace was acting in his capacity as Barnes’s supervisor. As in Allen, Barnes’s allegations and Wallace’s actions involve a failure to provide a safe place to work. As a result, Wallace is immune from suit for negligence in failing to provide a safe place to work.
Accordingly, we agree with the trial court that there was no genuine issue of material fact and that the Workers’ Compensation Act provides Barnes’s exclusive remedy.
Therefore, the judgment of the trial court is affirmed.
Glaze and Turner, JJ., not participating.
Hays, J., concurs. Newbern, J., dissents. | [
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Robert H. Dudley, Justice.
Appellee obtained a $100,000 judgment against appellant for alienation of affection. After the judgment was rendered, appeal taken, and transcript lodged in this Court, the General Assembly abolished alienation of affection as a cause of action. Act 46 of 1989 § 6 (effective Nov. 14, 1989). Section 8 of Act 46 provides that abolishment of the action does “not apply to litigation pending before the effective date of this act." [Emphasis supplied.] In spite of this italicized language, appellant asks us to judicially abolish the cause of action back to the time this case was pending and reverse and dismiss the judgment. We decline to do so.
The action for alienation of affection is a judicially created action in this state. Judicially created actions can be judicially abolished. O’Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1986); Wyman v. Wallace, 94 Wash. 2d 99, 615 P.2d 452 (1980). Even though we have the power to judicially abolish the action as of the time this suit was pending, it is a power we choose not to exercise.
Thirty (30) states have legislatively abolished the action for alienation of affection while three (3) have abolished it judicially. It has become an issue of public policy and public policy ordinarily should be decided by the legislature, although we sometimes do decide such matters. See Lewis v. Roland, 287 Ark. 474, 70 S.W.2d 122 (1985). The legislature has acted on the matter. The fact that its action came during the pendency of this appeal does not prevent us from observing its force upon our decision of the case. Van Hook v. McNeil Monument Co., 107 Ark. 292, 155 S.W. 110 (1913). We choose to follow the legislative enactment.
Affirmed.
Newbern and Turner, JJ., not participating. | [
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Tom Glaze, Justice.
Appellee, Malvern Pulpwood, Inc., is a wood cutting facility which transports pulpwood by trucks and trailers to commercial mills. Appellant, Great Dane Trailer Sales, Inc. (Great Dane), is in the business of manufacturing and selling a wide variety of trailers. This litigation involves Malvern Pulpwood’s initial purchase from Great Dane of two drop-deck, 65,000 pound weight-rated pulpwood trailers. Great Dane issued warranties on the trailers which were limited to the repair or replacement of defective parts and remedies were limited by the exclusion of consequential and incidental damages. The drop-deck trailers exhibited serious defects, as did their replacements, two straight-deck trailers. Malvern Pulpwood filed suit for breach of the warranties of merchantability and fitness for particular purpose, and Great Dane defended on the basis of its “repair or replacement” warranty and disclaimer! Great Dane also argued that Malvern Pulpwood was barred from bringing its claim against Great Dane in this state action because Malvern Pulpwood failed, as is required by the Bankruptcy Code, to schedule the claim in Malvern Pulpwood’s Chapter 11 proceeding filed in 1987. Prior to trial, the trial court considered Great Dane’s defenses and denied its motion for summary judgment. The matter was then submitted to a jury trial which resulted in a $40,000 verdict in favor of Malvern Pulpwood. Great Dane raises four points for reversal on appeal, but we find none requiring reversal.
First, Great Dane notes that Malvern Pulpwood had its warranty claim prior to, and at the time, Malvern Pulpwood filed its Chapter 11 bankruptcy petition on October 8,1987. Nevertheless, Malvern Pulpwood failed to list the claim on its schedule of assets, and when the bankruptcy court entered its order confirming the reorganization plan, Malvern Pulpwood, Great Dane argues, was barred from proceeding against it on the claim. We disagree.
When Malvern Pulpwood filed its Chapter 11 proceeding, Great Dane was not a creditor of Malvern Pulpwood nor was it named as a party in any capacity. Nonetheless, Great Dane asserts a right to use that bankruptcy proceeding to bar Malvern Pulpwood from suing it. In order for a federal court judgment to be res judicata in an action in a state court the parties must be the same; the judgment is conclusive only as against parties or their privies or others who sufficiently participate, or are represented, in the action and it is not binding on strangers. See 50 C.J.S. Judgments § 901b (1947); Cf. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985); Carl v. Elizabeth Hospital, 204 Ark. 716, 164 S.W.2d 432 (1942). In Bailey, we discussed res judicata and its claim preclusion facet, stating that it bars not only relitigation of issues actually litigated in the first suit, but also those which could have been litigated but were not. The court further explained that claim preclusion bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment, (2) the first suit was based upon proper jurisdiction, (3) the first suit was fully contested in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties or their privies. See also Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983). Here, Great Dane was neither a party nor a privy to one of the parties in the earlier bankruptcy proceeding. That being so, Great Dane is unable to rely upon res judicata to bar Malvern Pulpwood’s suit against it.
Great Dane cites a number of federal decisions, but we find none of them controlling. It relies largely on the cases of In re Emmer Bros. Co., 52 B.R. 385 (D.C. 1985) and Stein v. United Artists Corp., 691 F.2d 885 (9th Cir. 1982). In Emmer, a creditor bank had entered into a settlement with a Chapter 11 debtor, but later discovered the debtor had failed to disclose or schedule an interest in an antitrust suit. The bank, alleging misrepresentations on the debtor’s part, requested that the bankruptcy court rescind the prior settlement or award it damages. The bankruptcy court ruled the bank’s claim was barred as a matter of law, but the federal district court reversed, rejecting, among other things, the debtor’s argument that the bank’s action was an impermissible collateral attack on the bankruptcy court’s order of confirmation. The district court concluded that the bank’s action was permissible under the circumstances because the antitrust claim had been undisclosed and, therefore, was not “properly dealt with by the plan” under 11 U.S.C. § 1141(c). It further stated that the doctrines of res judicata and collateral estoppel would not bar such an action, at least when the alleged fraud could not have been asserted in the bankruptcy proceedings, the underlying factual claims were not actually adjudicated, and the relief sought would not upset the confirmed plan of arrangement.
Unlike Great Dane’s situation here, the bank in Emmer was a creditor of the debtor, and, as a named party, had a stake in the Chapter 11 proceeding. We also point out that in Emmer, the court was dealing with the bank’s allegations of fraud, which under some circumstances permit a party with standing to attack collaterally a prior final judgment. Great Dane, on the other hand, has never alleged that Malvern Pulpwood committed fraud in this matter or that the confirmation order of the bankruptcy court was void for that or any other reason. For that matter, we are unaware of anyone, including Chapter 11 creditors, who claims fraud of any kind on Malvern Pulpwood’s part.
Great Dane also relies upon th& Stein case wherein the court concluded that the Chapter 11 debtor, having failed to list its antitrust claim against United Artists and others, could not enforce the claim after the bankruptcy court entered its confirmation order. In Stein, however, no one raised or argued the res judicata and standing issues that we consider here, and for this reason alone, we find that decision unpersuasive.
Great Dane’s next point is that the trial court erred in failing to grant its motions for summary judgment and directed verdict because the parties contractually excluded all remedies except to repair or replace defective parts. Malvern Pulpwood responds, claiming that, while an express warranty excluded all implied warranties, the express warranty failed of its essential purpose, thereby entitling Malvern Pulpwood to the general remedy provisions of Article 2.
Under Ark. Code Ann. § 4-2-719 (1987), parties to an agreement may limit the buyer’s remedies to the repair and replacement of nonconforming goods or parts and to make the remedy agreed upon the sole remedy, unless circumstances cause the exclusive or limited remedy to fail of its essential purpose. See Kohlenberger v. Tysons Food, 256 Ark. 584, 510 S.W.2d 555 (1974); Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77, 679 S.W.2d 814 (1984). When there is substantial evidence tending to show that a particular piece of machinery obviously cannot be repaired or its parts replaced so that it is made free of defects, a jury verdict, which implicitly concludes that a limitation of the remedy to the repair and replacement of nonconforming parts deprived the purchaser of the substantial value of the bargain, should be sustained. Kohlenberger, 256 Ark. at 600, 510 S.W.2d at 566. Such a limited remedy fails whenever the warrantor, given the opportunity to do so, fails to correct the defect within a reasonable period. Id.
In connection with the sale of two drop-deck trailers sold to Malvern Pulpwood, Great Dane offered the following warranty:
Great Dane Trailers, Inc.’s sole obligation under this warranty shall be limited to the repair or replacement, at its option, of any defective part of said trailer which is the result of defective materials and/or defective workmanship of parts furnished and installed by Great Dane Trailers, Inc. This warranty will expire sixty (60) months from date of delivery to the purchaser, and repairs under this warranty shall be at repair facilities designated by Great Dane Trailers, Inc. Transportation expenses to the repair facility are to be borne by the purchasers.
THE EXPRESS WARRANTY HEREIN IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, NO IMPLIED WARRANTY OF MERCHANTABILITY IS MADE AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
Although the foregoing five-year warranty was given to repair or replace the 65,000 pound GVWC rated drop-deck trailers, we believe the evidence sufficiently shows the limitation failed of its essential purpose. The drop-deck trailers were described as ten-year trailers with a five-year warranty. Both drop-deck trailers “broke” in the same spot within one year from the time Malvern Pulpwood acquired them. Malvern Pulpwood offered testimony that Great Dane’s repair job was sloppy and rendered the trailers unsafe. One witness, a welder, stated he did not believe the repairs would fix the trailers; he said that any time steel is welded, the steel would not be as strong as it was before. Great Dane finally replaced the drop-deck trailers with straight-deck trailers. Nevertheless, the replacements, too, broke in the same spot as the drop-deck trailers. In its case, Great Dane offered evidence opposing Malvern Pulpwood’s claims, but even though such countervailing evidence was there for the jury to consider, we have no doubts that substantial evidence existed to support Malvern Pulpwood’s claims that Great Dane failed to correct the trailers’ defects within a reasonable period and that the limitation failed of its essential purpose.
Next, Great Dane argues that there was no implied warranty of fitness for a particular purpose — the basis for Malvern Pulpwood’s recovery. Again, we must disagree.
To recover for breach of an implied warranty of fitness for a particular purpose, the plaintiff must prove that (1) he has sustained damages; (2) at the time of contracting, the defendant had reason to know the particular purpose for which the product was required; (3) the defendant knew the buyer was relying on defendant’s skill or judgment to select or furnish the product; (4) the product was not fit for the purpose for which it was required; (5) this unfitness was a proximate cause of plaintiffs damages; and (6) plaintiff was a person whom defendant would reasonably have expected to use the product. E.I. Dupont De Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).
Great Dane contends that it was aware only of the ordinary purpose to which the pulpwood trailers would be used — hauling pulpwood — and was unaware of any other purpose. Great Dane, in citing Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), states that before it can beliablefor a breach of the warranty of fitness for a particular purpose, it must be shown it, as a supplier, knew that a particular purpose was intended by the consumer, Malvern Pulpwood. Instead, Great Dane asserts only the ordinary purpose for which the trailers would be used was shown, giving rise to a warranty of merchantability — a warranty which was not incorporated in the instructions given the jury.
Great Dane’s argument overlooks the fact that, under the circumstances of the case, the particular purpose involved was pulpwood hauling. If the particular purpose for which goods are to be used coincides with their general functional use, the implied warranty of fitness for a particular purpose merges with the implied warranty of merchantability. Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F.Supp. 548 (D. Conn. 1967). Such a holding is certainly consistent with the general rule in Ark. Code Ann. § 4-2-317 (1987), which provides that warranties, express or implied, shall be construed as consistent with each other and as cumulative.
Great Dane further argues that no implied warranty exists because Malvern Pulpwood, in purchasing the trailers, relied upon its president, Joe Gage, rather than upon the skill or judgment of Great Dane. Again, our review of the record reflects evidence that, depending upon how one views it, supports the opposing views of both parties on this issue. Nonetheless, we believe the evidence is more than sufficient to show Malvern Pulpwood justifiably relied upon Great Dane’s judgment in furnishing a suitable trailer and supports the jury’s verdict which implicitly finds a breach of implied warranty that the trailers were fit for a particular purpose.
In sum, Mr. Gage, when reading a logging magazine, learned that Great Dane sold drop-deck trailers and provided a five-year warranty. Gage was interested in drop-deck trailers because they had a low center of gravity and were safer. He also looked for a low profile trailer which had a 65,000 pound GVWR, and when he contacted Great Dane, he gave it the specifications he wanted in such a trailer. In return, Great Dane furnished Gage the specifications as well as pictures of the Great Dane drop-deck trailers. Although Gage had built certain pulpwood trailers in the past, he had no experience regarding the Great Dane trailers, and he obtained both specifications and pictures from Great Dane’s salesman before ordering the trailers. As previously noted, the trailers failed; they could never haul more than 55,000 pounds and each trailer — two drop-deck and two straight-deck replacements — broke in the same spot, thereby indicating a defect in design, which proved, considering the evidence, more than what Great Dane could correct.
Finally, Great Dane urges that, even if Malvern Pulpwood prevails on its implied warranty claim, Malvern Pulpwood still may not recover consequential damages. See Ark. Code Ann. §§ 4-2-715 to -2-719(2)(3) (1987). Malvern Pulpwood agrees with Great Dane that the courts are divided on the issue as to whether an exclusive remedy’s failure under § 4-2-719(2) also leads to buyer consequential damages under § 4-2-715. Arkansas case law indicates consequential damages are recoverable upon the failure of a limited remedy’s essential purpose. See Kohlenberger, 256 Ark. 584, 510 S.W.2d 555; Caterpillar Tractor Co., 13 Ark. App. 77, 679 S.W.2d 814. In Kohlenberger, we stated, quoting with approval from Adams v. J. I. Case Co., 125 Ill. App. 2d 388, 261 N.E.2d 1 (1970), as follows:
The manufacturer and the dealer have agreed in their warranty to repair or replace defective parts while also limiting their liability toxrtiat extent. Had they reasonably complied with their agreernejit contained in the warranty they would be in a position to claim the benefits of their stated limited liability and to restrict plaintiff to his stated remedy. The limitations of remedy and of liability are not separable from the obligations of the warranty. Repudiation of the obligations of the warranty destroy its benefits. The complaint alleges facts that would constitute a repudiation by the defendants of their obligations under the warranty, that repudiation consisting of their wilful failure or their careless and,negligent compliance. It should be obvious that they cannot at once repudiate their obligation under their warranty and assert its provisions beneficial to them.
From the above, we hold that, upon failure of Great Dane’s limited remedy’s essential purpose, Malvern Pulpwood was then entitled to any of the buyer’s remedies provided by the Code, and included among them are consequential damages provided in § 4-2-715.
In this final point, Great Dane also submits that Malvern Pulpwood’s proof on damages was insufficient and speculative. This argument is without merit. The damage instruction was submitted to the jury without objection. The jury was told to award as damages the profits Malvern Pulpwood may have lost as a foreseeable result of the warranty breach. It was also instructed that the measure of damages for a warranty breach in this case is the difference at the time and place of acceptance of the trailers between the value of two Great Dane drop-deck pulpwood trailers, or equivalent, as they were accepted and the value the two trailers would have had if they had been as warrantied. Malvern Pulpwood presented sufficient value testimony to support its claims. In fact, Malvern Pulpwood offered proof of damages as to each of the elements described in the sum of over $44,000. The jury awarded $40,000, a sum clearly justified by the evidence.
For the reasons given above, we find no error and hold the jury verdict should be sustained.
At this point, we should mention that Malvern Pulpwood apparently requested, and the bankruptcy court granted, modification of the plan to include the claim against Great Dane. This action occurred after Malvern Pulpwood obtained its judgment against Great Dane, and while Malvern Pulpwood included the modification motion and order in its supplemental abstract, it was never properly made a part of the record in this case. We agree with Great Dane that the motion and order should be striken, and it is not considered in reaching the court’s holding.
Great Dane, in its answer, affirmatively alleged that Malvern Pulpwood’s action was barred by the principles of res judicata, estoppel and laches because Malvern Pulpwood failed to schedule the claim it had against Great Dane. Nothing in the abstract reflects the reason the trial court rejected Great Dane’s motion for summary judgment or directed verdict on this issue. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Hank Wedgeworth, was convicted of possession and delivery of cocaine and sentenced to 35 years imprisonment and a $25,000 fine. On appeal he contends that the trial court erred in not holding as a matter of law that he was entrapped. We disagree and affirm.
On the morning of August 23,1988, Gene Turner and Paula Reynolds were arrested in El Dorado, Arkansas, for selling cocaine and methamphetamine. Later in the day, the El Dorado police, Turner, and Reynolds reached an agreement that the couple would not have to go to prison if they gave the police the name of their supplier and assisted in making an undercover buy from him. The couple named a resident of East Camden, Arkansas, Hank Wedgeworth, as one of their suppliers. Gene Turner then called Wedgeworth from the police station and asked him if he could supply some cocaine for the couple’s wedding party. Turner and Reynolds were to be married in a few days. Wedgeworth told Turner that he would check to see if he could locate some of the drug.
Wedgeworth claims he got some cocaine from another supplier and that he and Turner agreed to meet at the Retreat Supper Club later that night. The plan of the authorities was that Vickie Mooney, an employee of the El Dorado Police Department, would pose as Paula Reynolds’s cousin from Missouri and participate with Turner and Reynolds in the purchase.
Turner, Reynolds, and Mooney met Wedgeworth at the club. Turner, Reynolds, and Mooney then left in a van and met Wedgeworth again some two miles down the road. Apparently, Turner left Reynolds and Mooney in the van, visited with Wedgeworth, and then the two returned to the van, at which time Wedgeworth was introduced to Mooney. Wedgeworth told Turner to sell the cocaine to Mooney because he (Wedgeworth) “did not know her.” Wedgeworth delivered the cocaine to Turner, who in turn received $200 for the cocaine from Mooney. Turner then handed the money to Wedgeworth. Mooney’s testimony as to the transaction differs to the extent that she testified that she gave the money directly to Wedgeworth in exchange for the drugs. Shortly thereafter, Mooney talked to Wedgeworth privately about buying some more cocaine as a wedding present for Turner and Reynolds.
On August 25, Turner and Reynolds contacted Wedgeworth concerning the proposed sale of additional cocaine to Mooney. As a result, Wedgeworth and Mooney met in the parking lot of the Retreat Supper Club. State Police Investigator Eddie Davis accompanied her. Mooney got into Wedgeworth’s vehicle. He produced three packets of cocaine, and Mooney paid him $475. On October 25, 1988, Wedgeworth was arrested for possession and delivery of cocaine.
At trial, Wedgeworth moved for a directed verdict on the ground that he was entrapped as a matter of law. The trial court denied his motion. Wedgeworth was then convicted and sentenced. Thereafter, he moved for judgment notwithstanding the verdict on the same basis. The trial court denied the motion. From this order, Wedgeworth appeals.
Entrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. § 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.
Entrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). See also Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); McCaslin, supra. Otherwise, entrapment is a question of fact for the jury to resolve.
Here, there were factual issues to be decided as to whether or not the conduct of the authorities and the persons acting in cooperation with them would have caused a law-abiding citizen to possess and deliver cocaine.
Affirmed.
Turner, J., not participating. | [
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Otis H. Turner, Justice.
This is an appeal from a jury verdict in favor of the appellee, Hollis Eifling, the defendant below.
The appellant, Darrell Bryant, began an outing with the appellee at about 6:00 p.m. on March 1, 1986. Over a period of five or six hours, according to testimony, the appellee and the appellant each drank about five or six beers in bars or while riding around in an automobile driven by the appellee. At about midnight, the appellee lost control of his car on a curve while traveling about 60 miles per hour. The car left the road and struck a utility pole. The appellant alleged that he was injured as a result of the appellee’s negligence.
The appellant argues two points for reversal: first, that the trial court erred in admitting medical records, purportedly those of the appellant, which in fact belonged to a third party; second, that the trial court erred in allowing the jury to consider comparative fault when the appellee admitted negligence. These points are without merit in light of the proceedings had at trial of this cause.
With respect to the first issue, the appellee tendered various hospital records containing proof of medical attention rendered to the appellant over an extended period of time. Counsel for the appellant requested and was granted an opportunity to examine the records. After examining them, the appellant’s attorney expressed no objection to their introduction, and the records were admitted.
On cross-examination, the appellant was questioned about an accident referred to in one of the items in the medical records; he denied having had such an accident and stated that the medical records concerning the incident belonged to another person with the same name. Counsel for the appellant then moved that the portion of the records referring to the disputed accident be stricken. The appellee’s attorney argued that the appellant’s denial that he was involved in such an accident did not go to admissibility but instead to the weight to be given that evidence. The appellant’s motion was overruled.
Subsequently the matter came up again, and the appellee’s attorney stipulated that the disputed medical records did not pertain to the appellant, and the jury was so advised. The appellant now argues that a mistrial should have been declared because of the prejudicial effect.
The appellant neither requested nor moved for a mistrial and therefore cannot now argue reversible error for the first time on appeal. Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968). Even if a proper motion had been made and mistrial had been denied, there is a total absence of any prejudice to the appellant as a result of the objectionable evidence. Mistrial is a drastic remedy that is appropriate only if justice cannot be served by continuation of the trial and when it is obvious that the prejudice cannot be removed by any other means. Gardner v. State, 296 Ark. 41,754 S.W.2d 518 (1988). Whatever prejudice there may have been, the defect was cured by the explicit stipulation by the attorney for the appellee that the medical records in question were not those of the appellant. The Supreme Court will not reverse a judgment unless the error was prejudicial. Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982).
Regarding the second issue, it was not error for the trial court to submit the case to the jury on comparative fault. The fact that one party admits negligence at trial does not preempt consideration of any negligence of another party when negligence is properly alleged and supported by evidence. Further, there was no request by the appellant for a directed verdict, nor did the appellant object to any of the court’s instructions.
The Arkansas comparative fault statute, Ark. Code Ann. § 16-64-122 (1987), forms the basis for several instructions set forth in Chapter 21 of the Arkansas Model Jury Instructions (Civil), 3rd Edition. Here, AMI 2104, as adapted to this case, was given without objection by the appellant. AMI 2104 is the comparative negligence law when the issue of comparative negligence is submitted on a general verdict basis.
Another jury instruction raised the defense of assumption of risk. Again, no objection was made by the appellant. This court has held that assumption of the risk by a party will not bar recovery but will be considered when assessing fault. Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982); J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W.2d 176 (1964). Aside from the fact that the appellant did not preserve any alleged error by proper objection, there was substantial evidence from which a jury could find that the appellant’s injuries resulted from or were contributed to by his own negligence.
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Per Curiam.
The petitioner Boyd Huls was convicted of second degree murder and sentenced to twenty years imprisonment. The conviction was affirmed. Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Criminal Procedure Rule 37.
The petitioner, who was represented at trial by Carmack Sullivan and Wayne Emmons, contends that his attorneys were ineffective. In reviewing a claim of ineffective assistance of counsel, we adhere to the standard set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.
The petitioner was convicted of the murder of Pasha Williams, a young woman with whom he had had a personal relationship for some time. The petitioner claims that his attorneys were remiss in not preserving for appellate review his objection to testimony by Dr. Allen Windberry, a dentist, whose testimony he contends contained hearsay. At trial, Dr. Windberry testified that he had treated Williams for some missing and cracked teeth and that she told him that the injury was caused by the petitioner’s having thrown a lamp at her. (The injury to Williams’ teeth occurred approximately six months before her death.) Prior to trial, the petitioner’s counsel made an oral motion in limine asking for the exclusion of Dr. Windberry’s testimony about the “broken teeth and the history. . . .” The trial court denied the motion. When Windberry testified at trial, defense counsel did not object. On appeal, petitioner’s attorney argued that Windberry’s statements were inadmissible hearsay and the Arkansas Court of Appeals agreed; the court, however, declined to address the issue further because the motion in limine was so vague as to require counsel to renew the objection at trial in order to preserve it for appeal, which had not been done. The petitioner now argues that counsel’s failure to preserve the issue for appeal constituted ineffective assistance of counsel.
Although Windberry’s testimony contained hearsay, petitioner’s counsel were not ineffective for failing to preserve the issue. Ineffective assistance of counsel cannot be established merely by showing that some error was made by counsel. Moreover, it is not enough to show that a failure to object prevented an issue from being addressed on appeal since the standard for judging the effectiveness of counsel requires a showing of more than the failure to raise an issue; the petitioner must establish prejudice at trial under Strickland. Strickland requires a showing that, but for counsel’s errors, the jury would have had a reasonable doubt respecting guilt. In weighing the prejudice which accrued from an error by counsel, the totality of the evidence before the jury must be considered. Here, even if a timely objection at trial could have prevented the jury from hearing Dr. Windberry’s testimony, the evidence that Williams had accused petitioner of assaulting her six months before her death, when taken with the entire body of the evidence presented at trial, does not lead this court to conclude that there was a reasonable probability that the jury would have acquitted petitioner if Windberry had not testified.
The petitioner next contends that his attorneys were ineffective for failing to challenge the testimony of Officer Paul Martin on the ground that Martin was not a certified police officer. Martin, who searched the petitioner’s home pursuant to petitioner’s voluntary consent, found a hammer and a bloodstained blanket which were admitted into evidence by the state. There is no merit to petitioner’s argument for several reasons. First, petitioner has misunderstood the focus of our cases construing Ark. Code Ann. § 12-9-108 (1987), which provides that action taken by a police officer is invalid if the officer has not met the standards of the Arkansas Commission on Law Enforcement Standards and Training. In those cases where we reversed the convictions of defendants cited by a non-qualified officer, the only charging instrument was the non-qualified officer’s citation. Mitchell v. State, 298 Ark. 536, 769 S.W.2d 8 (1989); Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). In a Rule 37 proceeding the burden is on the petitioner to demonstrate prejudice, and petitioner does not allege that a valid criminal information was not filed charging him with the offense, or even so much as allege, that Officer Martin was the arresting officer. Moreover, even if the evidence obtained by Officer Martin and his testimony were excluded, there was ample evidence to convict petitioner of second degree murder.
The petitioner also contends that he was denied effective assistance of counsel in that Carmack Sullivan was unprepared for trial, old and in poor health, and physically incapable of trying the case. He states that Wayne Emmons was called in to act as co-counsel only two weeks prior to trial and was required with little advance notice to conduct a majority of the questioning for the defense. Petitioner states further that Sullivan for all practical purposes turned the trial over to Emmons with the cross-examination of the state’s third witness and that Sullivan admitted that he could not hear the witnesses, that he physically faltered throughout the trial and was asleep during substantial parts of the state’s case.
While a reading of the five-volume transcript cannot show whether counsel physically faltered or fell asleep, it does reveal that Sullivan took a much more active part in the trial than petitioner indicates. Sullivan cross-examined several witnesses after the point where petitioner says he turned the case over to Emmons, made objections, took part in an in-camera discussion during petitioner’s testimony, took part in the discussion of jury instructions and argued in favor of bond after trial. Sullivan’s statement about not being able to hear witnesses was made in a pre-trial hearing in which he said that he and other lawyers had difficulty hearing because of the poorly arranged courtroom. The trial judge replied that the clerk was engaged in discussions with the quorum court to rearrange the courtroom to make it more convenient. While Sullivan may have been old and somewhat infirm, the burden is on petitioner to point to specific instances where counsel’s conduct resulted in actual, identifiable prejudice to him. Strickland v. Washington, supra; Brents v. State, 285 Ark. 199, 686 S.W.2d 395 (1985). Petitioner has not met that burden.
Petitioner also fails to point out any specific deficiency on Emmons’s part which may have arisen from his lack of preparation, except for contending that Sullivan was physically unable to put character witnesses on the stand at the close of the defense and that Emmons could not do so because he had left the trial for an appointment in Nashville, Tennessee. The failure to call character witnesses in itself, however, does not constitute ineffective assistance of counsel because it cannot be said that the absence of the witnesses created a reasonable probability that the outcome of the trial would have been different had the witnesses testified.
The petitioner states that his theory of defense was that Pasha Williams had been addicted to amphetamines over a long period of time and was suffering from a form of drug induced psychosis. He contended at trial that at some time during the night of her death Williams began to hallucinate, that she became violent and picked up a hammer and struggled with him until he finally decided to take her to the hospital. He then wrapped her in a blanket, put her in the back of his pickup truck and drove her to the hospital where she died shortly after arriving at the emergency room. The petitioner claims that although evidence was available almost none was presented to support his theory other than the testimony of the petitioner, his family, and a social worker with North Arkansas Human Services. He states that numerous witnesses were available to corroborate his story and that some were subpoenaed but none were called. Petitioner further alleges that although Dr. Jonathan Lipman was called to testify for the defense about amphetamine induced psychosis, “little or no” evidence was presented to show that the victim suffered from it. He ignores totally the fact that Dr. Lipman, an expert witness with substantial credentials, testified that he had reviewed Williams’s medical records and that she did indeed suffer from amphetamine induced psychosis. Other witnesses also testified about her bizarre behavior.
Petitioner claims that Dr. Jay Dicks, a forensic pathologist from the University of Missouri Hospital, was available to testify and prepared to review the autopsy report and give an expert opinion as to the actual cause of death. The petitioner does not state what the actual cause of death may have been, but he states that Dr. Dicks could have testified in support of petitioner’s theory that Williams’ death was caused in part by the negligence of the Fulton County Hospital staff in their use of a laryngoscope during the resuscitation effort. However, he does not state that Dr. Dicks would have so testified. Petitioner asserts that two “nurses,” identified only as Harris and Ferrell with no designation as to their professional training, could have testified that Dr. Benton, the doctor who treated the victim in the emergency room, did not establish an airway with the laryngoscope and that a nurse inserted the instrument correctly about a half-hour after the victim arrived. No more is said about what the nurses saw which would suggest that medical negligence caused the injuries to the victim’s throat. Petitioner fails to mention the fact that Dr. Benton and Dr. Malak, the medical examiner, were questioned by the defense at length on whether the laryngoscope could have caused the damage to the victim’s throat and both firmly maintained that it could not have done so. In light of their testimony, it cannot be concluded that the testimony of the nurses, the specific facts of whose testimony are not provided, could have changed the outcome of the trial.
In a related allegation, petitioner claims that the fact that two hours were spent trying to resuscitate the victim was never brought out. The record refutes the claim. Several direct references were made to the two-hour effort, and the jury was made well aware of the time spent in the emergency room.
In a footnote petitioner states that Dr. Malak’s testimony on the cause of any death has been demonstrated in recent months to be “suspect,” and thus the defense was particularly prejudiced by not rebutting his evidence. The assertion will not be considered. This court does not take notice of gratuitous assertions based on matters not in the record.
Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that such a decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The petitioner has not shown that counsel’s decision not to call any particular witness amounted to more than a tactical decision.
Finally, petitioner claims that counsel were ineffective for failing to seek a change in venue because of prejudicial pretrial publicity. He has attached articles from newspapers in Fulton County which mention that he was originally charged with manufacturing a controlled substance, methamphetamine, as well as second degree murder. The petitioner argues that even though the drug charge was eventually dismissed almost two years after it was filed, the jury had been bombarded with news coverage of the methamphetamine charge, resulting in gross prejudice to him. He further maintains that a change of venue would have been warranted because the trial was postponed for one month after the jury was selected. The decision of whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue to be debated under our post-conviction rule. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). To establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Petitioner here does not specify any conduct of a juror from which it can be ascertained that the juror was unprepared to afford him an impartial hearing of the evidence. Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). The essentially conclusory allegations made by petitioner are not sufficient to overcome the presumption that the jurors were truthful when they stated that they could give the petitioner a fair trial. A defendant is not entitled to a jury totally ignorant of the facts of a case, Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987), and he is not entitled to a perfect trial, only a fair one. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).
Petition denied.
Price, J., not participating. | [
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David Newbern, Justice.
This is an inverse condemnation case. The appellants, Willie D. and Olivia Robinson, presented evidence that their home had, over a nine-year period, and despite their continued pleas to city officials and the city council for relief, been flooded intermittently with effluent from the sewer system constructed and operated by the appellee City of Ashdown. They sought compensation for the taking of their property which their evidence showed had been substantially reduced in value by the flooding. The court held that the Robinsons had shown only negligence on the part of the city and directed a verdict against them on the basis of the city’s immunity from actions in tort. See Ark. Code Ann. § 21-9-301 (1987). The question presented to us is whether instances of negligence, with respect to which the city has immunity from suit, may, if sustained a long time, amount to inverse condemnation. We hold that in such circumstances inverse condemnation occurs, and the judgment is reversed and remanded.
The Robinsons moved into their newly built house in 1974 or 1975. In the winter of 1978-79 they began to have sewer problems. Raw effluent came through their toilets and shower floor opening. At first Mr. Robinson thought there was a problem with his service line connecting his house to the sewer line under the street in front of the house. Plumbers investigated and found no problem with the Robinsons’ service line. It was clear that the sewage was backing up from a source outside the Robinsons’ house.
The Robinsons presented the testimony of Ray Burk, an engineer hired by them to study the problem. Burk determined that the elevations of the openings in the Robinson home were only slightly higher than that of the “wet well” at a lift station into which the city’s sewage was supposed to flow before being pumped to a higher elevation for processing. Lift pumps at the wet well were designed to pump the raw sewage to a higher elevation for processing and, when operating normally, to keep the well from overflowing. When the well did overflow, the sewage backed up into the lines. There is a manhole near the Robinsons’ home through which access is obtained to the city sewer line. Sewage backing up from the lift station flooded the manhole from time to time, and when the manhole filled, the Robinsons’ home was next lowest point, and the sewage would come out there. On many occasions, Mr. Robinson went to the lift station to turn on the lift pumps by throwing a breaker switch. Mr. Burk testified that the pumps were apparently adequate to control the problem when they were running.
The problem continued over the years. Mr. Robinson had employees of the city water department inspect his home, and he presented the matter to the city council on more than one occasion without relief. Photographs introduced into evidence showed extensive water damage to the home. Mr. Robinson made an opening in the service line in his yard and dug a hole there in an attempt to take care of the overflow. He testified that the smell was ever-present in his house and yard. His family could not use the home to entertain friends, and they feared for their physical well-being.
Mrs. Robinson testified that one of their children once came to her and said there were “flowers” growing in the shower in the master bedroom. It was a fungus. Mrs. Robinson testified that the house was constantly smelly and damp and that she and her daughters had had fungal infections resulting from germs in the shower stall.
On cross-examination, Mrs. Robinson stated that the problem had lessened in 1986. While the flooding would no longer wet the carpets, the toilets continued to overflow and the water “might... hit the edges.” She said the house smells bad now, and she and her family cannot enjoy it at all.
The technical testimony presented by the Robinsons and by the city conflicted. The mayor of Ashdown, Charles Patterson, who is an engineer with considerable experience designing city sewer systems, testified that Mr. Burk was wrong and that the problem could not have originated with the lift station as Burk had explained it. However, Bill Duckett, a foreman in the city water department testified that the lift pumps in the lift station nearest the Robinson home would stop running in periods of heavy rainfall. Restarting them would cause the water level to fall, but it would take 24 hours before the area of the Robinson home would be relieved. Mayor Patterson testified that the lift pumps were replaced after he became mayor in 1987.
Negligence, nuisance, and inverse condemnation
In McLaughlin v. City of Hope, 107 Ark. 442, 155 S.W. 910 (1913), we clearly recognized a cause of action for inverse condemnation, although we did not describe it in those words. A miller leased land through which a stream passed. The city, which was an upper riparian landowner, began to discharge sewage into the stream. That made the water unsuitable for producing steam to run the mill. The miller brought an action for damages. The city defended on the basis of its sovereign immunity. The trial court sustained a demurrer to the complaint. We reversed and held that, although the complaint could have been worded more artfully, it was not a claim for negligence or wrongdoing on the part of the city but was a claim for compensation due pursuant to Ark. Const. art. 2, § 22, for the taking of property. See also Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S.W.888 (1915), where we noted with apparent approval that the plaintiff in a nuisance abatement proceeding had, in a separate proceeding in circuit court, been allowed to recover for a taking of his property by a sewer improvement district due to the city’s negligent operation of a septic tank.
In part III of their complaint, the Robinsons clearly stated a claim for “a taking of the plaintiffs property” which “condemned and destroyed all reasonable value of the property” requiring that the plaintiffs be “compensated in full for their loss.” The question becomes whether a “taking” may occur as the result of the city’s negligent operation of its sewer plant. The trial court’s ruling suggested that by proving the city’s negligence the Robinsons killed their inverse condemnation or “taking” claim. We think not.
As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, § 8.1 [4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.
We are aware that it is commonly stated that neither negligent acts committed during routine operation of a public improvement nor other negligence having no relationship to the function of the public work as it was conceived gives rise to a claim for inverse condemnation. See, e.g., Yee v. City of Sausalito, 190 Cal. Rptr. 595, 141 Cal. App. 3d 921 (App. 1983). Although injury to property through negligence or trespass does not, without more, qualify as a taking, it has been held that a continuing trespass or nuisance can ripen into inverse condemnation. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. App. 1964).
Courts have used both nuisance and trespass theories to overcome the general rule that negligence does not result in inverse condemnation. The author of Annotation, Taking For Public Purposes, 2 A.L.R.2d 677 (1948), discusses the wide variety of rationales among the cases from various states and even within the decisions of the courts of single states in which it has been held that negligence based acts by governmental entities constitute inverse condemnation. It is noted that actions brought in an attempt to avoid municipal tort immunity
have occasionally been successful in some jurisdictions, at least in such particular and specific types of situations as those in which public projects were planned, constructed, repaired or maintained and operated in a negligent manner, or those in which public activities were planned and carried on negligently in such a manner that a nuisance condition resulted to the injury of private property. [2 A.L.R.2d at 680-681]
While it is difficult to reconcile the broad language contained in the individual opinions, even within the same jurisdiction, it may be remarked that the cases have turned upon such factors (1) as the form of the constitutional provision involved; (2) whether, in the jurisdiction, recovery is allowed at all in any type of case under the “eminent domain” theory; (3) the mode in which the asserted cause of action was presented to the court; (4) whether the project itself negligently planned or constructed was an activity for the original establishment of which the right of eminent domain could have been exercised; (5) and, similarly, whether damages which resulted were a necessary consequence or result of the work undertaken. [2 A.L.R.2d at 681]
The city argues that the cases in which we have permitted recovery against a municipality or governmental entity for a taking of property in circumstances similar to those here have been ones in which it was shown that “the governmental entity purposely engaged in an endeavor that caused damage to various landowners.” That presents no distinction in this case because when one knows that an invasion of another’s interest in the use and enjoyment of land is substantially certain to result from one’s conduct, the invasion is intentional. See Rest. Torts 2d, § 825(b), comment (d), discussing conduct constituting nuisance. Here the invasion continued long after the city was put on notice of it.
The city relies on City of Fort Smith v. Anderson, 241 Ark. 824, 410 S.W.2d 597 (1967), in which we reversed a jury award resulting from a single sewage overflow into the landowners’ home. It was a onetime occurrence, and the problem with the city system was immediately corrected, thus it presents no authority in support of the city’s position here.
The city also notes that a taking pursuant to the eminent domain power may not occur unless there has been public benefit. The benefit to the public in this case has been its use of the Robinsons’ home as an overflow dump for sewage. While it might have been less expensive for the city to have seen to it that the overflow did not occur by installing pumps that worked automatically or by hiring more employees to see that they were working when they should have been, it is our view that by failing to remedy the problem the city effectively chose to purchase the Robinsons’ property to the extent the value of that property was diminished by its actions. The public benefitted by not having to spend the money it would have taken to prevent the sewage overflow.
We agree with the suggestion of the author of the A.L.R.2d annotation quoted above that the courts have not been clear in presenting their rationales in cases where statutes conferring immunity from tort liability upon municipalities have been held inapplicable to facts which amount to negligence or nuisance. We want it to be clear that our holding here is based on Ark. Const. art. 2, § 22, which provides, “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” When a municipality acts in a manner which substantially diminishes the value of a landowner’s land, and its actions are shown to be intentional, it cannot escape its constitutional obligation to compensate for a taking of property on the basis of its immunity from tort action.
Reversed and remanded.
Glaze, J., concurs.
Hickman and Turner, JJ., dissenting. | [
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Steele Hays, Justice.
This attempted appeal by the City of Little Rock on behalf of the State of Arkansas must be dismissed for noncompliance with Rule 36.10 of the Arkansas Rules of Criminal Procedure.
Harold Tibbett, appellee, was charged with driving while intoxicated, having no liability insurance and failure to produce a driver’s license. He appealed from his convictions in the Little Rock Municipal Court and moved in circuit court to dismiss on the contention that the charges against him were brought only by the arresting officer, whose actions were invalid because of a failure to strictly comply with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101—12-9-404 (1987). See Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989).
The arresting officer was a member of the Little Rock Police Department and the appellee had challenged the method of the psychological testing employed by the city. Specifically, he charged that under Specification S-7 of the Arkansas Commission on Law Enforcement Standard Regulations, the psychological evaluation required by Commission Regulation § 1002, must be performed by utilizing both an “actual interview and a psychometric evaluation. . . .” (Arkansas Law Enforcement Standards, Specification S-7, Procedure 1.) In this case, no personal interview had been conducted, the officer’s psychological evaluation had been performed only through a written examination.
Tibbett argued that the failure to comply with Specification S-7 was a lack of strict compliance with the commission regulations as required by our holding in Grable v. State, supra. The trial court found that absent an actual face-to-face interview, the officer had not satisfied the minimum standards for employment under the commission regulations. The trial court dismissed the charges and from that dismissal, the city brings this appeal.
We do not reach the merits of the city’s challenge as the appeal is not properly before us. Although the issue was not raised by either of the parties, we have a duty to raise it on our own as a matter of subject matter jurisdiction. State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988).
Generally speaking, the state has no right to appeal beyond that conferred by the Constitution or rules of criminal procedure. State v. Hurst, supra. Appeals by the state in criminal cases are allowed under A.R.Cr.P. Rule 36.10. The pertinent provisions under A.R.Cr.P. Rule 36.10 read:
(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
The rule plainly requires that the prosecuting attor ney, after filing a notice of appeal, submit a transcript of the trial record to the attorney general and that the attorney general, after being satisfied that error has been committed and that the correct and uniform administration of criminal law requires review, may take the appeal by filing the record with this court. Nothing in the record indicates that these steps were taken in conjunction with the attorney general. Rather, the record reflects this appeal was handled by the city completely independent of the attorney general’s office.
We held in Tipton v. State, 300 Ark. 211, 779 S.W.2d 138 (1989), that the provisions of the rule dealing with the correct and uniform administration of criminal law were jurisdictional. We have the same view of the provisions requiring that the appeal be taken by the attorney general.
As we previously stated, the state has no right to appeal except as conferred by the constitution or rule of criminal procedure, and the language of A.R.Cr.P. Rule 36.10(c) is not only clear and explicit, it is mandatory. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); see also Warren, Tax Ass’r v. Wheatley, 225 Ark. 901, 286 S.W.2d 334 (1956). It is equally clear there are significant policy reasons to hold the requirement jurisdictional. See Maxwell, supra; Warren, supra.
Appeal dismissed. | [
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Robert H. Dudley, Justice.
Appellant was convicted of the rape of his girlfriend’s seven-year-old daughter. We affirm the conviction.
Appellant’s primary point of appeal is that Ark. Code Ann. § 16-44-203 (1987), the statute which authorizes the videotaping of the testimony of a young victim of a sexual offense, is unconstitutional because it is procedural in nature and, under the separation of powers doctrine, only courts can promulgate rules of court procedure.
The rule-making power of courts comes from three (3) sources: (1) inherent in the constitutional separation of powers, (2) express constitutional grant, or (3) enabling legislation. There is no real question about the existence of the court’s rule-making power, the only questions in this case concern the scope and exclusiveness of that power.
We have long had rules of court, possibly as far back as 1457. Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623 (1957). In 1927, Dean Roscoe Pound pointed out the defects in legislative regulation of court proceedings. Pound, Regulating Procedural Details by Rules of Court, 13 A.B.A.J. 12 (1927). By 1928, Professor Wigmore was arguing that all legislatively created rules of practice and procedure were constitutionally void. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 Ill. L. Rev. 276 (1928). In the past twenty-five years the courts in many states have exercised their rule-making power. We are no exception. By rule, we have adopted the Arkansas Rules of Civil Procedure, the Arkansas Rules of Criminal Procedure, and the Arkansas Rules of Evidence. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).
Unfortunately, however, there is a crepuscular, or twilight, zone which makes it difficult to determine whether the legislature or the judiciary should establish some procedures. A paper which was prepared for the purpose of making recommendations to the Michigan Legislature, Supreme Court of Michigan, and the Michigan State Bar for the revision of Michigan procedural statutes and rules is informative. In the paper, Joiner and Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623, 628-29 (1957), the authors explain:
In Michigan, as in the political structure of the federal government and many states, the powers of government are divided in the traditional American pattern between the legislative, executive, and judicial branches. The judicial power is vested in the constitutionally created courts and such other courts as may be created by the legislature. Wigmore argues in an editorial referring to the pattern of government in Illinois (similar in this respect to that of Michigan) that all legislatively created rules of practice and procedure were constitutionally void, basing his argument on the logic of the constitution itself and the policy and experience with court rules and legislatively prescribed procedure. Two courts have recognized the validity of this argument. In other words, giving effect in fullest measure to the theory of separation of powers, the judicial branch, and only the judicial branch, would be authorized to promulgate rules regulating court procedure. Some writers have taken Wigmore’s argument as jeu d’esprit while another has taken it as a serious attempt to justify the judiciary’s exercise of a complete and exclusive rule-making power. However, the better interpretation of Wigmore’s editorial would seem to be that he was pointing up the supremacy of judicially created rules of practice and procedure in the event of conflict with legislative rules and refuting the legislators who argued that rule making was a legislative power and could not constitutionally be delegated to the judicial branch.
As interpreted by Dean Pound, Wigmore’s proposition was that “if every power exercisable in government must go exclusively and as a whole into one of the three categories, the power of making detailed rules of legal procedure is analytically judicial — it is inherent in the exercise of the power committed to the judiciary of determining controversies and applying laws.” It is submitted that Wigmore was underlining the fallacy of a strictly logical chain of reasoning as concerns the classification of those powers exercisable by the three branches of government. In this connection it should be remembered that political science has also abandoned the theory of complete and exclusive authority over precisely delineated spheres of activity. It is well established that the operational areas of everyday governmental functions are not defined with precision and are not capable of assignment to distinctive categories; instead there is and always has been a twilight zone of indefinition, wherein the functions and activities of the three branches overlap and conflict, and wherein cooperation among the three branches has been the key to the resolution of the conceptual puzzle. Therefore, it is submitted that while a purely theoretical argument can be made for total and exclusive possession of the rule-making power by the judiciary, such a position ignores the realities of practical operational techniques necessarily utilized in government and presumes that a total separation of powers is possible. The conclusion should rather be that theory must give way to reality. It must be recognized that there are areas in which it is not clear whether the legislature or the judiciary should establish the necessary rules.
Thus, while it is clear that courts possess rule-making power, the scope of the power cannot be defined until we determine the purpose of the questioned rule. If the purpose of the rule is to permit a court to function efficiently, the rule-making power is supreme unless its impact conflicts with a fixed public policy which has been legislatively or constitutionally adopted and has at its basis something other than court administration. When the purpose of the rule is to provide for the establishment or maintenance of the efficient administration of judicial business, and it does only that, the scope of the power vested in the courts is complete and supreme. However, until an area of practice or procedure is preempted by rules of court, we will give full effect to legislation. This will allow a healthy and orderly development of procedural reform.
The statute at issue involves procedure and evidence, but it deals with a subject which we have not preempted, videotape depositions of young victims of sexual crimes. Accordingly, the statute is not an unconstitutional violation of the separation of powers doctrine.
For his next assignment of error, the appellant contends that the trial court erred in refusing to permit him to voir dire the young victim prior to her testifying on direct examination. There is no merit to the argument under the facts of this case. Here, the qualification as to competency and the testimony was videotaped out of the presence of the jury. It was to be shown to the jury when the case was tried. At the videotaping session, after the trial court ruled that the victim was competent to testify, the appellant asked to voir dire the witness. The trial court denied the request but stated that appellant could ask the same questions going to competency on cross-examination. During cross-examination appellant conducted voir dire by asking questions going to the witness’s qualification to testify. After appellant’s cross-examination, the court again ruled that the witness was competent. Appellant did not object to the jury viewing the voir dire portions of the videotape. Under these facts, there is no error. The jury did not hear the taped testimony until appellant had completed his cross-examination and the trial court had ruled the witness competent.
Appellant next argues that the victim should not have been allowed to testify because she was incompetent as a matter of law. This argument is also without merit. As we explained in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989):
A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. . . . The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal.
Appellant’s argument focuses primarily upon the first two factors listed above. While it is true that the victim stated that she did not know what a lie was, nor what happens to a person when they tell a lie, her overall testimony showed her ability to understand the obligation of an oath and the consequences of false swearing. We cannot say that the judge abused his discretion in refusing to declare the witness incompetent.
Appellant asks us to review de novo the videotape to determine competency of the witness. We decline to do so. We can see no good reason to employ a de novo review when the testimony is by videotape and to use an abuse-of-discretion standard of review when the witness testifies in person. Appellant’s request loses sight of the purpose and goals of appellate review.
Finally, the appellant contends that there was insufficient evidence to sustain his conviction. The argument is without merit. The victim told her maternal grandmother that appellant had intercourse with her. She told the same basic story to others, although there were inconsistencies in her statements. The appellant resided in the same house as the victim. The victim testified that appellant committed the crime. There is no requirement of corroboration. The inconsistencies were for the jury to resolve, Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983), and the victim’s testimony in this case provided a rational basis for the jury to find proof of guilt beyond a reasonable doubt.
Affirmed.
Holt, C.J., Newbern and Turner, JJ., dissent.
Hickman and Hays, JJ., concur. | [
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Tom Glaze, Justice.
Appellant was convicted of burglary and theft of property. On appeal, he claims the state’s evidence was insufficient to support the theft conviction. We disagree and affirm.
Under Ark. Code Ann. § 5-36-103(a)(1) (Supp. 1989), a person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Here, appellant and an accomplice, Lee Turner, were seen entering the apartment of Kim Cruise at a time she was out of town. The witnesses observing the appellant and Turner called the police and then called on the assistance of the apartment complex’s maintenance supervisor and four men, who were nearby playing basketball. Upon reaching Cruise’s apartment, the men opened the door and saw appellant holding a stereo and a big TV; Turner was holding a pillow case with stuff in it. The apartment was in shambles. The appellant and Turner ran out of the apartment after putting down the items they were holding. When they were caught by the men who had found them, appellant had none of Cruise’s property, but Turner had possession of a watch and lighter owned by Cruise.
Appellant contends that because he never left Cruise’s premises with any property, the state failed to prove he had consummated the crime of theft, as defined under § 5-36-103 (a)(1). Such an argument is contrary to case law.
In Jarren v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), this court affirmed Jarrett’s conviction for theft of property where the evidence showed that he loaded a shopping cart with meat, rolled it into the storeroom where the public was not supposed to be, and began putting the meat into sacks that he had stuck in the back of his pants. Jarrett was stopped while he was loading the meat into sacks in the store, and therefore he was arrested before leaving the store with the meat. In affirming the conviction, this court stated that it was reasonable for the trial judge to believe that, if Jarrett had meant to buy the large quantity of packaged meat, he would have taken it to the check-out counter. Further, this court held that the trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it. had been paid for. In fact, the court stated that no other explanation for Jarrett’s conduct is readily apparent. See also White v. State, 271 Ark. 692, 610 S.W.2d 266 (Ark. App. 1981).
The rule and holding in Jarrett are controlling here. Witnesses testified that they saw the appellant and Turner break into Cruise’s apartment. The men who were called to help said that they saw the appellant with a television and stereo in his hands while he was standing in Cruise’s living room. The appellant had removed the television from where the victim kept it in the apartment and was obviously ready to remove it from the premises. In fact, Turner, his accomplice, testified that he and the appellant planned on stealing items from the apartment. His story was sufficiently corroborated by the men who testified that when they entered the Cruise apartment, they discovered the appellant holding the television. Definitely, the jury could have reasonably inferred from the evidence that the appellant had the intent of depriving the victim of her television, and as shown by the holding in Jarrett, actual removal of the items from the apartment is not necessary to show theft.
Even if we had found merit in appellant’s foregoing contention, he was clearly guilty as an accomplice. This court has repeatedly held that there is no distinction between the criminal responsibility of an accomplice and the person who actually commits the offense. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); see also Ark. Code Ann. §§ 5-2-402(2) and2-403(a) (1987). The trial court here instructed the jury as to accomplice liability.
The evidence reflects the appellant accompanied Tur ner when they unlawfully entered Cruise’s apartment. Turner admitted that upon entering the apartment, they intended to steal items of property. Turner also admitted he had a lighter and watch belonging to Cruise when he left her premises and was subsequently apprehended. Turner was clearly guilty of theft under these circumstances and, at the very least, the evidence shows the appellant actively planned and participated in Turner’s commission of the crime.
We affirm. | [
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Jack Holt, Jr., Chief Justice.
This appeal is from the denial of separate motions for new trial in two different cases involving Charles “Tubby” Wilson, the appellant. The first case was a prosecution for theft by receiving and the second was for felon in possession of a firearm. This appeal is before us under Sup. Ct. R. 29( 1 )(e) as the motions seek relief under Ark. R. Crim. P. 37.
The facts are as follows: Wilson, a previously convicted felon, was charged with theft by receiving. At the trial one of the State’s witnesses, Jimmy Hern, testified that he burglarized several houses, stealing mostly guns, stereos and televisions. He stated that he took some guns and a stereo to the appellant who gave him marijuana in exchange. Wilson’s wife testified that Hern brought guns only to their house, but that the appellant loaned Hern money and kept the guns merely as security on the debt. The appellant was convicted, sentenced to 15 years imprisonment and fined $15,000. That conviction has been affirmed. Wilson v State, 10 Ark. App. 176, 662 S.W.2d 204 (1983).
Because numerous shotguns, rifles and handguns were found in his home when the officers were searching for stolen property, a separate charge was filed for a felon being in possession of firearms. During the course of a trial on this separate charge, Hern changed his testimony and stated that he left the guns with the appellant in exchange for money which the appellant and his wife loaned to him. Hern’s testimony at the second trial was similar to Mrs. Wilson’s testimony at the first trial. The appellant was convicted of the second charge.
The appellant filed two motions for relief which are consolidated for appeal. The first motion seeks a new trial on the theft by receiving charge on the basis of the change in Hern’s testimony. The second motion for new trial claims error in permitting the prosecution to inquire into the theft by receiving conviction during the course of the felon in possession trial in that “said inquiries were erroneous and their prejudicial effect far outweighed their probative value.”
Both motions filed by the appellant seek relief under Ark. R. Crim. P. 37.1(d) which provides that a prisoner may file a motion seeking a new trial if the sentence is otherwise subj ect to collateral attack. Rule 37.1, however, only applies to a prisoner “whose case was not appealed to the Supreme Court.”
Rule 37.2(a), as amended by this court, provides:
(a) If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.
In Re: Amendment of Rule 37.2(a) of the Rules of Criminal Procedure, 283 Ark. 559 (1984).
The appellant’s conviction for theft by receiving was affirmed by the Court of Appeals. We have held that “once a case is appealed, the trial court’s jurisdiction is lost and cannot be regained without our permission. . .Rule37.2(a) clearly limits the jurisdiction of the trial court in post-conviction proceedings . . . The petition to proceed is absolutely required, (citations omitted).” Coston v. State, 283 Ark. 155, 671 S.W.2d 738 (1984). Since the petitioner failed to seek prior permission from this court to proceed under Rule 37, the trial court was without jurisdiction to hear the appellant’s motion for new trial on the theft by receiving charge. The appeal from the first conviction is accordingly dismissed.
The appellant’s second Rule 37 petition was properly submitted to the trial court since the conviction for felon in possession of a firearm has not been appealed to the Supreme Court or to the Court of Appeals. The appellant argues that it was error for the trial court to allow the prosecution in this case to inquire into the conviction received by the appellant for theft by receiving. This argument is based on the assumption that the trial court would grant appellant’s motion for new trial in the theft by receiving case. Since th.e trial court did not grant the motion for new trial and we are dismissing the appeal of the motion for a new trial, appellant’s argument is moot.
Dismissed in part; affirmed in part. | [
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George Rose Smith, Justice.
The key question in this case, on undisputed facts, is this: When the owner of the record title to a tract of land conveys an undivided half-interest in the minerals to another person, but the mineral deed is not recorded for 18 years, and a stranger to the title takes adverse possession of the land a year after the execution of the unrecorded mineral deed and continues his adverse possession for more than seven years, does the adverse possessor acquire title to the constructively severed half-interest in the minerals? The chancellor correctly decided that the adverse possessor does not acquire title to the severed mineral interest. We therefore affirm his decree.
In 1937, Ben H. Qualls and his wife, holding record title to a 120-acre tract of land, conveyed an undivided half-interest in the minerals to G. W. Nowlin and his wife. The Nowlins did not record the deed until 1956. In 1938, A. W. Austin and his wife, who appear to have been in adverse possession of the 120 acres, conveyed the land to Joe Chenowith. That deed was promptly recorded. Chenowith and his successors in title, the appellants, have been in possession of the land ever since, using it primarily as pasture.
In 1983, the appellees, successors in title to the half-interest in the minerals that had been conveyed to the Nowlins, brought this suit to quiet their title to that half-interest. The appellants defended on the ground that the constructive severance created by the 1937 mineral deed was not effective against them until that deed was placed of record in 1956, at which time they had held the surface adversely for some 18 years.
The appellants recognize our settled rule that when a mineral ownership has been severed by deed from the surface ownership, adverse possession of the surface is ineffective against the owner of the minerals unless the possessor actually invades the minerals by opening mines or drilling wells and continues that action for the necessary period. Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 ALR 1436 (1929); Bodcaw Lbr. Co. v. Goode, 160 Ark. 48, 254 S.W. 345, 29 ALR 578 (1923). The appellants insist, however, that under our law the severance is not effective until the deed is recorded.
The cases relied upon do not support that view. In Thompson v. Graves, 281 Ark. 492, 665 S.W.2d 268 (1984), we did refuse to give effect to an asserted mineral reservation in an unrecorded lost deed, but the reason was that the contents of the lost deed were not proved clearly and convincingly. In Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946), we did say that the placing of three mineral deeds of record constituted a constructive severance of the minerals. The opinion shows, however, that all three deeds were promptly recorded, with no third-party rights arising between the execution of the deeds and their recordation. We think the severance actually occurred when the deeds became effective, not when they were recorded, but that distinction was of no importance in the case. Hence the language relied upon by these appellants was dicta.
As a matter both of settled law and of simple justice, there is no reason why an adverse possessor should benefit from the record owner’s failure to record a deed. A trespasser does not examine the records at the courthouse before deciding to appropriate another’s property. He does not rely upon the record, nor is he misled by its absence. Our recording statute gives priority to the first recordation only as between purchasers deriving their interests from a common grantor. Richardson v. Fisher, 236 Ark. 612, 367 S.W.2d 440(1963).
The same principle applies to deeds that bring about a constructive severance of the minerals from the surface. In the language of Professor Kuntz:
A failure to record the instrument by which the severance was accomplished may or may not be significant. If the subsequent possessor took from the same chain of title and claimed as a bona fide purchaser, obviously the failure to record a deed by which a mineral interest was severed would be very significant and would control his rights under local statutory law. If, however, the subsequent possessor was an adverse possessor not under the same chain of title, recording would have no significance. An adverse possessor does not occupy the status of a purchaser, and an unrecorded severance should be effective as to him.
Kuntz, Oil and Gas, § 10.4 (1962). The same reasoning was followed in United Fuel Gas Co. v. Dyer, 185 F. 2d 99 (4th Cir. 1950). There Judge Parker first noted that an adverse possessor is charged with notice of a mineral severance appearing in his own chain of title, but the rule does not apply to an adverse possessor not claiming under the same chain. From the opinion:
Such adverse possessor is manifestly not entitled to any notice with respect to the estate of the true owner which he is invading. On the contrary, it is he who must give notice by exercising possession of such character as will apprise the true owner that the right of the latter is challenged.
We have no similar case in Arkansas relating to mineral deeds, but in an analogous situation we held that the purchaser at a tax sale took subject to an unrecorded timber deed, because the recording statute benefits a subsequent purchaser from the common grantor, not a purchaser at a tax sale. Brewer v. Fletcher, 210 Ark. 110, 194 S.W.2d 668 (1946).
The preceding discussion also answers the appellants’ argument that when Chenowith, an adverse possessor, sold the tract to Carrel Luningham in 1945, Luningham acquired the mineral half-interest as a bona fide purchaser. Luningham, however, was necessarily charged with notice that his grantor did not have the record title to the land. Luningham must therefore be charged with knowledge that he was not acquiring a perfect record title; so he cannot claim to be a purchaser without notice of possible outstanding flaws in his grantor’s title.
Counsel for the appellants insist that the position we are taking will “create uncertainty in the oil and gas industry and lack of confidence in the real estate records.” We do not think so. When a lawyer examines an abstract of title and finds that the apparent owner’s title rests only on adverse possession, a rare situation, he is at once on notice that there may be flaws in the title, such as the interest of a minor or insane heir of a deceased holder of the record title. There is no reason to confer a windfall on the adverse possessor by giving him the benefit of a possible record that he would not have seen or relied on even if it had existed. On the other hand, our law has long protected the owner of a mineral interest against the loss of his title to an adverse possessor of the surface only. Our present holding is in harmony with our existing case law.
Affirmed. | [
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Steele Hays, Justice.
Appellants Charles Johnson and his mother, Laura Johnson, brought suit under their homeowners policy to recover the stated value of a dwelling totally destroyed by fire on May 8, 1982. Appellee insurer defended on grounds of misrepresentation, fraud and arson. The jury returned a verdict of $55,910.64, notwithstanding an instruction that told them if they found for the plaintiffs, their verdict for the loss of the dwelling should be the insured value of the dwelling — $95,000. Both sides moved for judgment notwithstanding the verdict and the trial court set the verdict aside and ordered a new trial. On appeal and cross-appeal, we affirm.
ARCP Rule 59(a) lists the grounds on which a new trial “on all or part of the issues” may be granted, including any irregularity in the proceedings preventing a fair trial. The trial court’s power under the rule is necessarily broad and will not be disturbed in the absence of abuse. Johnson v. Bowlin, 251 Ark. 950, 475 S.W.2d 885 (1972); House v. Finney, 252 Ark. 66, 477 S.W.2d 482 (1972).
We find no abuse of discretion. The verdict and the instruction cannot be reconciled. The court instructed the jury in effect that it must either find for the defendant or return a verdict for the plaintiffs of at least $95,000. In clear disregard of that instruction the jury by a vote of 9 to 3 returned a verdict of $55,910.64, which cannot be rationally explained.
Appellants also urge it was error for the trial court not to order a partial trial limited to the amount of the damages. That decision is discretionary with the trial court and where the verdict is wholly incongruent, in the face of the instruction given, a new trial on all the issues will not be easily reversed. We have said as a matter of law the verdict must be treated as an entity. McVay v. Cowger, 276 Ark. 385, 635 S.W.2d 249 (1982). That has been our rule for decades, (see cases cited in McVay v. Cowger), but we should not overlook the plain wording of Rule 59(a), contemplating new trials on only part of the issues. The rule permits partial trials in those cases where one or more of the issues has been clearly resolved by the verdict. That cannot be said of the verdict in this instance and the trial court was right.
The other arguments are moot but will be discussed for the guidance of the trial court on retrial.
Appellants ask us to reverse an evidentiary ruling with respect to other fires. The trial court permitted the introduction of proof that Charles Johnson had had three fires prior to the one in question: the 1977 burning of a building in which he operated a grocery business, the 1977 burning of a dwelling where the Johnsons had lived and where Johnson’s wife was then operating a beauty shop, and the 1981 burning of a late model automobile. Appellants’ brief denies they benefited by these fires and whether Johnson was actually paid for the losses is not brought out. It is clear from his testimony, however, that there was insurance coverage on the buildings destroyed by these fires .
Appellants rely on Houston General Insurance Co. v. Arkansas Louisiana Gas Company, 267 Ark. 544, 592 S.W.2d 445 (1980), but that case offers little guidance here. The issue involved a claim of negligence where proof of similar occurrences requires evidence of the same or substantially similar conditions. [See Houston General, supra; Arkansas Power and Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976)]. Reversing on other grounds, we noted that no evidence was offered of circumstances and conditions surrounding the other explosions similar to the one in question.
A different situation is presented here. Charles Johnson was shown to have experienced four fires of a major sort within a span of five years, at least three of which were insured against loss by fire. Unif. R. Evid. 401 defines relevant evidence as evidence having any tendency to make a fact more or less probable. Where the issue is whether a fire was set deliberately to claim insurance, the existence of other fires, if not too remote in time or dissimilar in circumstances, may be admissible without showing the same or substantially similar circumstances. Such evidence has relevance to show motive, intent, absence of mistake, or accident. See Unif. R. of Evid. 404(b). Unif. R. Evid. 403 requires the trial court to decide whether that relevant evidence is such that its probative value outweighs the harm which its introduction might cause. There were other circumstances this jury could have found probative of a deliberate setting of the 1982 fire, as well as proof that Charles Johnson may have knowingly given a false answer when asked if similar insurance had ever been cancelled or declined; that he first insured the dwelling only in his mother’s name, later adding his own; that he may have given false answers concerning her occupancy of the dwelling as well as occupancy by his former wife; that a few months prior to the fire he attempted to increase coverage from $60,000 to $105,000, and. did secure an increase to $95,000; and that Charles and Laura Johnson were $12,500 behind in payments to the Federal Land Bank. It must be said the appellants answered with proof of their own and, as we have said, it is impossible to determine which evidence the jury found preponderant.
The case of Hammann v. Hartford Accident and Indemnity Co., 620 F.2d 588 (6th Cir. 1980) is instructive. Hammann brought suit to recover under a fire insurance policy for damage to a barn. The insurer presented expert testimony to show the fire was intentionally started and that Hammann had had six fires over the years, four of which resulted in insurance recoveries. The trial judge excluded evidence of fires which did not result in recoveries and permitted evidence of the circumstances surrounding the four fires yielding insurance recoveries. Hartford argued the evidence was properly admitted under Unif. R. Evid. 404. The Court of Appeals found the probative value outweighed the prejudice and that no abuse of discretion occurred:
Here the evidence of prior fires was properly admitted for a number of reasons: Defendant attacked Hammann’s credibility by establishing that he had willfully concealed several occurrences of fires from the defendant. Second, the trial court properly instructed the jury that the fires were to be considered as bearing only on Hammann’s motive. See Terpstra v. Niagara Fire Insurance Co., 26 N.Y.2d 70, 308 N.Y.S.2d 378, 256 N.E.2d 536 (1970). Lastly, Hartford asserted the defense of incendiarism which included evidence of Hammann’s intent or knowledge of the occurrence. See, e.g., Trice v. Commercial Union Assurance Company, 397 F.2d 889 (6th Cir. 1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 623, 21 L.Ed.2d 563 (1969).
In Raphtis v. St. Paul Fire & Marine Insurance Company, 198 N.W.2d 505 (1972) the Supreme Court of South Dakota upheld the admission of evidence of other fires in a similar suit, with this comment:
General rules of admissibility of other crimes are stated in 29 Am.Jur.2d, Evidence, § 298 through § 333, most of which deals with evidence in criminal actions. See also Arson and Related Offenses, 5 Am. Jur. 2d § 58. Evidence is admissible if it tends to show intent, motive, scheme or plan. 29 Am. Jur. 2d, Evidence, §§ 324, 325 and 326. Three fires in nine months was held admissible to show motive. Generally in a fire insurance case, where circumstantial evidence is resorted to, the objections to testimony as irrelevant are not favored, and the evidence must necessarily take a broad range. Such evidence is to be received with caution, yet in this civil action we conclude no error occurred under this record.
Two Arkansas criminal cases bear comparison. In Casteel v. State, 205 Ark. 82, 167 S.W.2d 634 (1943), we held where the defendant was charged with arson in the burning of an automobile to recover insurance, proof he had burned other cars for a similar reason was admissible. In Satterfield v. State, 245 Ark. 337, 632 S.W.2d 472 (1968), for the guidance of the trial court on remand, we said evidence of other incidents of arson would not ordinarily be admissible. However, it should be noted, the proof was “very meager, and the single witness who mentioned [another fire] never described it, never located it and certainly did not connect the defendant with it.” Thus, the proof failed for lack of a connection to the defendant.
Given the overall proof of the first trial, we cannot say discretion was abused by the reception of the evidence of other fires. Assuming the proof on retrial is at least the equivalent, we are not willing to say the proof of the other fires is so lacking in relevance as to be inadmissible per se, or that relevance is plainly outweighed by prejudice. We have recognized that the acceptance or rejection of evidence on grounds of relevance is necessarily a matter of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).
Two additional arguments are made on direct appeal; the trial court erred in denying a motion for a directed verdict in favor of Laura Johnson and in instructing the jury that Laura Johnson was bound by the conduct, acts and representations of Charles Johnson.
The argument that Laura Johnson was entitled to a directed verdict is predicated on an absence of proof she was guilty of wrongdoing. Appellants cite Mechanics Insurance Co. v. Intersouthern Life Ins. Co., 184 Ark. 625, 43 S.W.2d 81 (1931) and urge that arson by one co-insured is no defense to a claim by the other, if the latter is innocent of such wrong. Richardson v. Hanover Insurance Co., 299 S.E. 2561 (Ga. 1983); Fuston v. National Mutual Insurance Co., 440 N.E.2d 751 (Ind. App. 1982); St. Paul Fire & Marine Insurance Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (1981); American Economy Insurance Co. v. Liggett, 426 N.E.2d 136 (Ind. App. 1981); “Insurance Law: Innocent Spouse’s Right to Recover in Arson Cases,” 17 Wake Forest L. Rev. 1022 (1981).
We will not attempt to settle that issue here. For one thing, apart from the separate consideration of her innocence with respect to arson, the jury could have concluded this policy would not have been issued in the first instance if Charles Johnson, acting for himself and Laura Johnson, had given truthful answers concerning the cancellation of similar insurance. For another, this record does not reflect that appellants presented an instruction to the trial judge which preserved this issue on appeal. ARCP Rule 51. We are unable to say, therefore, the proof was such that the trial court was obliged to direct a verdict for Laura Johnson. Farm Bureau Mutual Insurance Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982).
Nor do we think the trial court erred in instructing the jury as it did. Charles Johnson testified that he handled all the affairs affecting insurance with the approval of Laura Johnson, that she left these matters entirely in his hands. She did not know with whom the coverage was placed, the amount of coverage, the amount of premium (which Charles paid), or anything else concerning coverage. Her testimony nowhere refutes the testimony of Charles Johnson on this issue. In short, we cannot say the trial court should not have given the instruction on the basis of the testimony.
By cross-appeal appellee asserts there was no substantial evidence to support any verdict in favor of appellants. The argument generally is that Charles Johnson willfully concealed material facts concerning the application for insurance. We concede there are discrepancies in some of his answers, but we are not prepared to substitute our view for that of the trial judge on the basis of a printed record of a trial lasting three days. The trial judge hears the witnesses and we recognize his advantage in passing on the weight of the evidence. Garrett v. Puckett, 252 Ark. 233, 478 S.W.2d 48 (1972).
The order appealed from is affirmed.
Purtle, J., dissents.
T. 237-238. (The record is silent concerning coverage on the automobile.) | [
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Per Curiam.
Petitioner Walter Mason was found guilty by a jury of first degree murder and sentenced to a term of twenty years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Mason v. State, CA CR 84-160 (March 20, 1985). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37. He has also filed a motion seeking to remain free on his appeal bond pending disposition of the Rule 37 petition.
Rule 37.1 provides that relief under the rule is available only to prisoners in custody. See Burkhart v. State, 271 Ark. 859,611 S.W.2d 500 (1981). An appellant whose conviction is affirmed on appeal is not entitled to remain free merely because he files a petition to proceed under Rule 37. Our postconviction rule was patterned after federal habeas corpus procedure for prisoners in federal custody to provide a procedure whereby state prisoners could raise claims in state courts of violation of constitutional rights, jurisdictional questions, claims of excessive sentence and other claims which subject a judgment or sentence to collateral attack. It was not intended as a continuation of the direct appeal.
Since petitioner here is not a prisoner in custody, the petition must be dismissed even though we find grounds for an evidentiary hearing on some allegations contained in it. The petition is dismissed without prejudice to filing with this Court a properly verified petition for postconviction relief when petitioner is taken into custody. See Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). The motion to remain free on bond is denied.
Petition dismissed without prejudice.
Hays, J., concurs; Purtle, J., dissents. | [
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John I. Purtle, Justice.
Appellant was convictedin the Yell County Circuit Court, to which he had appealed from a municipal court conviction, of DWI (Act 549 of 1983). On appeal to this court he argues: I) the Circuit Court erred in allowing the introduction of a breathalyzer test showing his blood alcohol content was .13%; II) the verdict was contrary to the facts and the law; and III) it was error to allow the test results because it was not taken immediately after he had been driving. We do not agree with these arguments and therefore affirm the judgment of the trial court.
The facts reveal that appellant had been drinking at a party before driving his girlfriend home. Near her house he struck an embankment or some stationary object. Thereafter he drove the car to her house where he stated he consumed additional alcohol. The accident occurred sometime between 11:30 p.m. and midnight on December 10, 1983, and the ticket charging him with DWI was written at 12:09 a.m. on December 11, 1983. The breathalyzer test was administered shortly thereafter. The appellant was charged with DWI in violation of Act 549 of 1983.
Officers Sheets and Hardin did the primary investigation. They testified that they found a partially empty brandy bottle in the car and stated about 15 minutes elapsed from the time of the accident until the arrest for DWI. One of the officers testified he observed the appellant as being unsteady, hardly able to stand, weaving back and forth, smelling like he had poured alcohol all over himself, and having slurred speech.
I
The trial court allowed the introduction of the breath test into evidence although appellant was charged with being intoxicated. Ark. Stat. Ann. § 75-2503 (a) (Supp. 1983) makes it illegal for a person to operate or be in control of a vehicle if he is intoxicated. Subsection (b) of the same statute makes it illegal for a person to operate or be in control of a vehicle if his blood alcohol content is 0.10% or more. Either of the above described conditions is a violation of Act 549 of 1983, commonly called the “Omnibus DWI Act.” The emergency clause stated the matter of vehicles being operated or controlled by persons under the influence of alcohol or drugs was so great a danger to the public that the Act should go into effect immediately. The thrust of the Act is to keep drinking drivers and those using drugs out of vehicles because the General Assembly has determined them to be a threat to the general public. When a person operates or controls a vehicle while intoxicated (as a result of the ingestion of alcohol or drugs or both) or with a blood alcohol content of 0.10% or more, he violates Act 549. The penalty is the same whether the act is violated by conduct described by (a) or (b). In other words, the two conditions are simply two different ways of proving a single violation. Intoxication may be proven in the manner described in Ark. Stat. Ann. § 75-2502 (a). Proof of blood alcohol content in excess of 0.10% is evidence which may tend to prove intoxication.
II
Little time need be spent on the argument of the sufficiency of the evidence. The test is whether there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Substantial evidence is such evidence that forces the mind to a conclusion which is beyond suspicion or conjecture. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). In deciding whether evidence is substantial, appellate courts take notice of the unquestioned laws of nature, of mathematics and of physics. Ocker v. Nix, 202 Ark. 1064, 155 S.W.2d58 (1941). In testing whether there is substantial evidence we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party who is relying upon the evidence. If material and relevant evidence is not in dispute or there is a conflict in the evidence to the extent that fair minded persons might draw different conclusions therefrom, the evidence is substantial. Collett v. Loews, 203 Ark. 756, 158 S.W.2d 658 (1942). The evidence, both disputed and undisputed, recited in the facts of this case are such that reasonable minded persons could reach different conclusions. Therefore, there is substantial evidence to support the verdict.
Ill
Appellant cites no authority for the argument that the trial court erred in allowing the results of the breath test to be introduced into evidence. The test was given at least 30 minutes after the accident and after appellant had drunk additional alcohol. This argument is based entirely upon the fact that appellant ingested additional alcohol between the time of the accident and the time of the test. Of course there is no method by which the additional whiskey could be measured separately from the old whiskey which was already in his bloodstream. There was substantial other evidence to support the verdict without considering appellant’s blood alcohol content. In any event the test results were admissible along with any other relevant evidence.
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Jack Holt, Jr., Chief Justice.
This case presents questions concerning the use of expert testimony and photographic evidence in a products liability matter. Our jurisdiction is under Sup. Ct. R. 29(l)(m).
The appellant, Thomas Dildine, was injured while operating a front-end loader for his employer, Tenco, Inc., a feed and grain company. He and his wife filed suit for his injuries against the appellee, Clark Equipment Co., the manufacturer of the machinery, and against appellee, Town & Country International, Inc., the distributor. United States Fidelity & Guaranty Co., intervened for subrogation rights for worker’s compensation benefits paid to the appellant.
The case was tried to a judge who granted both appellees’ motions for directed verdicts. That decision was appealed to this court which affirmed as to Town & Country but reversed and remanded as to Clark. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
On remand, the case was tried to a j ury which returned a verdict finding neither the appellant, Dildine, nor the appellee, Clark, guilty of negligence and that the product was not sold in a defective condition. It is from the jury’s verdict that this appeal is brought.
The accident occurred in March, 1982, when Dildine was thrown from a front-end loader called a 632 Bobcat. According to Dildine, he had a load of feed in the bucket of the Bobcat and was driving toward the mixer with the bucket in a lowered position. As he approached the mixer, he began elevating the bucket and the Bobcat tipped forward, throwing him from the machine and causing him certain physical injuries. The evidence showed that his employer, Tenco, had modified the Bobcat by welding a metal piece to the bucket to permit a larger load and adding compensating weight to the rear of the machine. Conflicting testimony was presented as to the effects of this modification.
Dildine’s initial allegation of error concerns the testimony of Dennis Combs, the appellee’s witness. Dildine contends that the trial court erred in allowing Combs to testify as an expert witness in that Combs was not properly qualified. The following colloquy with Combs occurred in connection with this question:
Q. Now, did you have occasion to see this particular 632 Bobcat after it had had an extension welded on the bucket?
A. Yes, I have seen it.
Q. Was that at your suggestion?
A. No.
Q. Would you recommend that such a thing be done?
A. I would not recommend it, no, sir.
Q. Tell the jury just what we had there.
BY MR. STEELE: Your Honor, I’m going to object at this time. I don’t think the proper foundation has been laid for Mr. Combs to testify as any kind of an expert witness.
BY MR. SMITH: All right. Let's put it this way. Did you see it in your shop when it had this extension? [emphasis added].
This exchange demonstrates that, although Dildine obj ected to Combs’ testimony, he never obtained a ruling from the j udge on the obj ection. The burden of obtaining a ruling is upon the movant, and the failure to secure one constitutes a waiver, precluding its consideration on appeal. Collier v. Hot Springs S & L Ass’n, 272 Ark. 162, 612 S.W.2d 730 (1981). Furthermore, in response to the objection, the mode of questioning was altered by the appellee’s attorney. Dildine therefore has not demonstrated where the trial court erred. “It is the responsibility of the appellant to demonstrate error.” Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).
In reaching the substance of Dildine’s allegation, however, we find that under the circumstances, Combs was qualified to testify either as an expert or a lay witness. Whether a witness may give expert testimony rests within the sound discretion of the trial court and will not be reversed by this court absent an abuse of discretion. Dildine, supra.
In the first appeal of this case, this court stated, “[o]bviously this case required expert testimony. There is no suggestion that the dynamics of this accident were explainable in lay terms.” Uniform R. Evid. 702 provides that a witness qualified “by knowledge, skill, experience, training, or education” may testify in the form of opinion or otherwise. Combs was qualified under this rule in that he has worked for Town & Country for six years; has been service manager for the equipment, including Bobcats, for three years; performed the pre-delivery inspection on this Bobcat; shows rental customers how to operate a Bobcat; has driven, maintained and serviced this Bobcat; and has operated all Bobcat models. He has the knowledge, skill, experience arid training and was qualified to testify under Rule 702.
His testimony was also admissible as that of a lay witness. Uniform R. Evid. 701 provides that testimony by a lay witness in the form of opinions or inferences is permitted which is rationally based on the witness’ perception and “[h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” Combs’ testimony meets this test and was admissible.
Dildine’s second objection to Combs’ testimony goes to its relevance. Decisions about relevancy are within the discretion of the trial court, and he is not reversed unless that discretion is abused. Daniels v. State, 277 Ark. 23, 638 S.W.2d 676 (1982).
The appellant maintains that Combs was allowed to testify to irrelevant, prejudicial testimony while his expert witness, Dr. Albert Mink, was prohibited from testifying on similar subject matter. The testimony concerned the feed in the bucket when the accident occurred. Dildine testified that he did not remember what type of feed he was carrying. The pertinent testimony by the two witnesses was as follows:
TESTIMONY OF DR. MINK:
Q. ... Did I provide you with a sample of the material that had supposedly been moved or transported at the time . . . the material that was being moved in the bucket?
BY MR. McNEILL: Your Honor, we’re going to object to this question. I believe the plaintiff himself testified he didn’t know what he was using or — There’s been no testimony in the record as to what material was being loaded at the time, [objection sustained]
TESTIMONY BY DENNIS COMBS:
Q. At that time, did you go over and get a load in the bucket?
A. Yes.
Q. Was it a full load?
A. What we done, we loaded the bucket just to the capacity of the bucket, without using the extension. There was no material after the level of the extension and the bucket weighed 1,060 pounds.
BY MR. STEELE: Your Honor, I’m going to object. We don’t know what type of material that was loaded. There’s been no evidence of the kind of material that Mr. Dildine was carrying.
BY THE COURT: Mr. Steele, you will be given an opportunity to explore both of those items on cross-examination.
The appellant argues that the court allowed Combs to testify about an experiment he did concerning the accident but disallowed Mink’s testimony about a similar experiment. This contention is without merit. Dr. Mink did testify about his experiment and gave his opinion on the Bobcat’s defectiveness and the effect of Tenco’s modification. He simply was not allowed to state that, in his experiment, he filled the bucket with the same kind of feed used by Dildine, since the type of feed was unknown. In Combs’ testimony, no attempt was made to state what type of material filled the bucket, he merely said that the bucket was filled. The credibility of the two witnesses and the weight to be accorded their testimony is solely within the province of the jury. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980). The trial judge did not abuse his discretion in allowing the testimony.
Dildine’s final allegation of error is that the court erred in allowing two pictures into evidence, defendant’s (appellee here) exhibits 6 and 7. Dildine argues that since the pictures were taken after the Bobcat was washed off they were not a true representation of the Bobcat as it looked when the accident occurred.
Exhibit 6 is a photograph of the warning sticker inside the cage of the Bobcat. It was admitted into evidence in conjunction with testimony that the sticker was in the cage on the day of the accident and has been in the Bobcat the whole time Tenco has owned it. Exhibit 7 is a picture of the inside of the Bobcat where the driver sits. It shows a manual and instructions hanging on a cable inside. There was testimony that the sticker and manual in the Bobcat had been cleaned up since the accident. “The law is settled that the introduction of photographs rests largely within the discretion of the trial judge.” Smith v. State, 10 Ark. App. 390, 664 S.W.2d 505 (1984). In Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984) the Court of Appeals upheld the admission of a shirt into evidence which had been washed since the crime was committed. The court said, “[t]he possibility that certain stains on the shirt had been washed away simply goes to'the weight the jury was to accord the evidence.” The same is true here. There was ample testimony to let the jury know that the Bobcat was much dirtier when the accident occurred than it was in these pictures. The pictures were not introduced as depicting the Bobcat at the time the accident occurred in any respect but to demonstrate the presence of the warning sticker, manual and instructions. The judge did not abuse his discretion.
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] |
Darrell Hickman, Justice.
Our decision in this case is controlled by Okla Homer Smith Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983), where we interpreted Ark. Stat. Ann. § 37-237 (Supp. 1983), which provides generally that suits based on property damage resulting from design or construction deficiency cannot be brought more than five years after the work is substantially completed.
Admittedly this case was brought eight years after Johnson Plaza Shopping Center was completed. The appellant rented space for a hobby shop in the center in 1973. The center was destroyed by fire in 1982. The appellant sued Guy Johnson, one of the partners in the shopping center who had contracted for the construction of the center and supervised the work. The complaint alleged that Johnson was negligent in installing an inferior quality of electrical wiring and in failing to construct fire walls. Appellant complained that as a result of appellee’s negligence, the fire, which started at one end of the center, spread to the appellant’s shop at the other end.
The appellant raises two arguments. The first is that this is a tort action rather than a contract action, and the statute of limitations imposed by Ark. Stat. Ann. § 37-237 does not apply. We expressly held in Okla Homer Smith Mfg. Co., v. Larson & Wear, Inc., supra, that this statute does apply when the allegation is one of negligence in construction or design. That is precisely the negligence alleged in this case. The other argument is that the statute does not apply to the owner of a building but only to the construction firm. The statute makes no such distinction, providing that “No action in contract . . . shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction. ...”
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Per Curiam.
Patricia Sides was convicted in the Ft. Smith Municipal Court of violating the Omnibus DWI Act, Act 549 of 1983. On appeal to the Circuit Court she was tried before a jury and again convicted. She was fined $800 and costs and her license was suspended for ninety days.
On appeal it is argued that Act 549 violates the separation of powers clause in Article 4, Section 1 of the Arkansas Constitution in that 1) the discretion given to prosecuting attorneys to bring criminal charges is transferred to police officers under the Act, and 2) the judicial function of judges or juries as fact finders is usurped by the provision of the Act which presumes guilt if the defendant’s blood alcohol level equals or exceeds .10% by weight.
Those same arguments have been considered and rejected in other cases. See Sparrow v. State, 284 Ark. 396,683 S.W.2d 218 (1985) and Lovell v. State, 283 Ark. 425, 678 S.W.2d 3-18 (1984).
Affirmed. | [
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George Rose Smith, Justice.
The question is: In the circumstances of this case, was the appellant, Truck Transport, entitled to appeal to the circuit court from an order of the Arkansas Transportation Commission without first filing a motion asking the Commission to reconsider its decision? The circuit court held that Truck Transport, by failing to ask for a reconsideration of the Commission’s decision, had not exhausted its administrative remedies. The appeal to the circuit court was accordingly dismissed. Our jurisdiction of the case is under Rule 29 (1) (c).
Truck Transport and the appellee, Miller Transporters, successfully opposed the application of a third contract carrier for authority to transport bauxite and lime. The Commission, however, in its order denying that application, apparently went beyond the issues in the matter by unexpectedly enlarging Miller Transporters’ authority to transport cement and bulk lime. Truck Transport’s appeal to the circuit court was based on the contention that Miller Transporters’ authority had not been in issue, that no hearing had been conducted on that matter, and that the Commission’s enlargement of Miller Transporters’ authority as a contract carrier should therefore be set aside.
There is no statute or Commission rule requiring a litigant to file a motion for reconsideration or a petition for rehearing as a necessary condition to an appeal to the circuit court. We are not laying down a rule that such a step is ordinarily necessary. To the contrary, it would be pointless to compel a litigant to incur the trouble and expense involved in the presentation of a motion simply repeating arguments already heard and rejected.
Nevertheless, in this case the circuit court was right in holding that the Commission should have been given an opportunity to reconsider its action. The Commission’s procedural rules would have permitted such a request, either by petition or by formal complaint. Even though the Commission’s enlargement of an existing authorization may have been unexpected and beyond the issues, the Commission should have been afforded an opportunity to correct its asserted error. Our discussion in Ark. Cemetery Board v. Memorial Properties, 272 Ark. 172, 616 S.W. 2d 715 (1981), is applicable to the present case:
It is an elementary principle of administrative law that an issue must be raised at the lower level to be pursued on appeal. This was clearly stated in Hennesey v. SEC, 285 F. 2d 511 (3d Cir. 1960), where the court said:
It is well established that issues not effectively presented to an administrative agency, where ample opportunity to do so has been afforded, cannot be raised on appeal of that agency’s decision. This principle may be viewed as one facet of the judicial doctrine of “exhaustion of administrative remedies.”
The United States Supreme Court stated the same concept in Unemployment Comm’n v. Aragon, 392 U.S. 143 (1946):
A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.
The analysis set forth in the foregoing quotation explains why we are affirming the trial court’s decision in the case at bar. In closing, however, we add that Truck Transport has not argued the case on its merits, having preferred to base its appeal on the procedural point alone. In fact, we could not reach the merits even if we were inclined to do so, because the parties by agreement have so severely abbreviated the record that facts bearing upon the merits of the Commission’s action are not before us.
Affirmed. | [
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David Newbern, Justice.
This is the second appeal arising from a mortgage foreclosure case. Our jurisdiction is based on Ark. Supreme Court and Court of Appeals Rule 29. 1. j. In the first appeal we held that, given the state of the law in 1974, when the mortgage was executed, the mortgagor, United Peoples Federal Savings and Loan Association, could not enforce a “due on sale” clause against its mortgagee, Mary Ann Abrego, and those who had purchased the mortgaged property from her. Abrego v. United Peoples Federal Savings and Loan Association, 281 Ark. 308, 664 S.W.2d 858 (1984). Larry and Brenda Cotten had purchased from Abrego, and ultimately Warner Holdings and Ruth Singer had purchased from the Cottens. Hymie Singer had co-signed Ruth’s note to the Cottens. Peoples had sought enforcement against Abrego and had named the Cottens and Warner and the Singers as defendants.
In their purchase agreement with Abrego, the Cottens had promised to indemnify Abrego for any loss resulting from demands Peoples might make, and they specifically agreed to pay attorney’s fees which might be incurred by Abrego in protecting her interest in the property and in enforcement of the indemnity agreement against the Cottens. In their agreement with the Cottens, which incorporated the Abrego-Cotten agreement by reference, Warner and Singer promised to protect the Cottens in the same manner Abrego was protected in her agreement with the Cottens.
In her original decision the chancellor awarded eighty percent of the attorney’s fees requested by attorneys for Abrego and the Cottens against Warner and Singer. In remanding the case we held the eighty percent award might have been arbitrary and directed the chancellor to award reasonable attorney’s fees, costs and other reasonable expenses. In her reconsideration, the chancellor awarded substantially more in attorney’s fees than she had originally allowed.
Warner and Singer argue that (1) no attorney’s fees should have been awarded to the Cottens for enforcement of their indemnity agreement against Warner and Singer; (2) it was error to hold Warner and Singer ultimately liable for attorney’s fees awarded to Abrego in enforcement of her indemnity agreement with the Cottens; and (3) the attorney’s fees awarded were excessive. The Cottens have cross-appealed, saying that if Warner’s and Singer’s obligations to them are reduced, their obligations to Abrego should also be reduced. As we affirm on appeal, the cross-appeal becomes moot.
1. Indemnity agreement enforcement
For their contention that they should not have to pay attorney’s fees incurred by the Cottens in enforcement of their agreement with Warner and Singer, Warner and Singer cite U.S. Fidelity and Guaranty Company v. Love, 260 Ark. 374, 538 S.W.2d 558 (1976), for the general proposition that when a party agrees to indemnify another against losses, attorney’s fees incurred in enforcement of the indemnity agreement are not recoverable. We continue to observe that general proposition but need only note here that it was developed in cases in which the indemnity agreement contained no specific promise that the indemnitor would pay the attorney’s fees of the indemnitee incurred by the indemnitee in enforcing the indemnity agreement. See, e.g., U.S. Fidelity and Guaranty Co. v. Love, cited above. We have no doubt that there was an agreement to pay attorney’s fees, as the contract between the Cottens and Warner and Singer said the Cottens were to be protected in the same manner Abrego was protected. The appellants do not challenge Abrego’s right to an attorney’s fee in enforcement of her indemnity contract against the Cottens. Because of its “same protection” language, the contract between the Cottens and Warner and Singer provided Warner and Singer were to pay the Cottens’ attorney’s fees incurred in enforcing their agreement.
2. Fees passed on
Warner and Singer argue that in her original decree the chancellor did not award the Cottens an amount to compensate them for attorney’s fees the Cottens were required to pay Abrego under the Abrego-Cotten agreement. Their further contention is that, as this court did not reverse the chancellor’s decision on that point, her first decision is law of the case, and she should not have made such an award on remand. While the chancellor was not specific in saying what the attorney’s fee she awarded to the Cottens represented, we must agree it could not have included the larger sum awarded to Abrego. Nothing in the abstract or, as far as we can tell, the record, shows this law of the case argument was called to the chancellor’s attention. It was not stated in a brief submitted to the chancellor by Warner and Singer in which they argued the effect of the hold harmless agreements. We will not consider an issue raised for the first time on appeal. Green v. Ferguson, 263 Ark. 601,567 S.W.2d 89 (1978).
Even if we were to consider it, we would have to say the chancellor reached the right result in view of Warner’s and Singer’s agreement to protect the Cottens just as Abrego was protected in the Abrego-Cottens agreement. We affirm if the chancellor reached the correct result. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).
3. Reasonableness of attorney’s fees
Warner and Singer argue that the fees awarded by the chancellor are excessive in comparison with her original awards. In view of the fact that an appeal and proceedings on remand have occurred since the original awards were made we think the comparison is not very useful.
When she made the final award of attorney’s fees, the chancellor had before her briefs of the parties and a record of unrefuted expert testimony to the effect the fees sought by the attorneys for Abrego and the Cottens were reasonable, and, in the case of one attorney, less than a reasonable hourly rate had been charged. The record also included detailed time records of the attorneys. In her decision the chancellor cited our leading case on the . manner of determining reasonableness of attorney’s fees. Love v. United States Fidelity and Guaranty Co., 263 Ark. 925, 568 S.W.2d 746 (1978).
There is no precise formula for the determination of reasonableness of attorney’s fees. Southall v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984). The question of reasonablness of attorney’s fees is to be addressed to the chancellor’s discretion. Troutt v. First Federal Savings and Loan Association of Hot Springs, 280 Ark. 505, 659 S.W.2d 183 (1983); New Hampshire Insurance v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980). We find no abuse of discretion here.
We cannot end this opinion without noting we have not. been asked to address instances in which attorney’s fees may be allowed as a general proposition. The appellant has not argued that attorney’s fees may not be awarded unless specifically authorized by statute, or that an agreement permitting recovery of such fees constitutes an unlawful penalty. See Missouri Pacific Railroad Co. v. Winburn Tile Manufacturing Co., 461 F.2d 984 (1972); Note, 9 Ark. L. Rev. 70 (1954). We recognize that our decisions in this area are not clear, and, when presented with a case raising the issue properly, we will address squarely the question whether a clause permitting recovery of reasonable attorney’s fees incurred in enforcement of the agreement containing the clause is enforceable.
We also have before us motions to assess reasonable attorney’s fees and costs in favor of the appellees on this appeal. The only response of the appellants is that this court previously found the attorney’s fees not to be covered by the indemnity agreement and the fees requested are excessive. We. made no such finding in our earlier decision.
The attorney for appellee Abrego seeks a fee of $976.00 and costs of $125.57, or $1,101.57. We find these amounts to be reasonable and assess them jointly and severally upon the Cottens, Warner and Ruth Singer.
The Cottens ask that the fees awarded to Abrego against them on this appeal be awarded in turn in their favor against the appellants. The motion is granted.
The Cottens ask further for an award of their attorney’s fees against the appellant on this appeal. They ask the amount sought by their attorney which is $2,145.00 for fees and costs plus expenses advanced on behalf of Abrego in the amount of $76.88. We hold that $1,200 may be charged as a reasonable fee for the Cottens’ attorney, and they are entitled to that amount from the appellants plus the above mentioned costs of $76.88 and printing costs of $113.56.
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Jack Holt, Jr., Chief Justice.
This case raises questions about the right of a city to condemn land. We find that the appellants are precluded from raising these issues. Jurisdiction is pursuant to Sup. Ct. R. 29(1 )(n) because the case involves oil and gas rights.
On June 4, 1975, the city of Booneville filed suit in Sebastian County Circuit Court to condemn flowage easements over lands owned by the appellants. The purpose of the taking was to provide for impounding water and rights of way for water lines and other facilities necessary for a water distribution system which the city was developing. On the day before the trial of the case, the city filed an amendment to its complaint, seeking a fee simple interest in the lands rather than flowage easements. No objection was made to the amendment and the jury issued verdicts upon the complaint as amended. The verdicts awarded compensation for the lands taken to the defendants, who are the appellants in this proceeding, with judgment entered on the verdicts on October 30, 1975.
In 1984 appellants filed this chancery action seeking a declaratory judgment reserving to them the oil, gas and other mineral rights underlying the lands acquired by Booneville in the 1975 judgment.
The trial court found that the city did condemn the lands in question in fee simple, and the same was done properly. We agree.
Appellants argue that the Sebastian County Circuit Court, which entered the 1975 judgment of condemnation did not have jurisdiction to award the fee simple estate because of the general rule of eminent domain that no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary to satisfy the public purpose. This general rule still applies, however, it is also a rule that when the property owners, in this instance the appellants, thought that the lands were about to be condemned, and an interest greater than necessary was about to be taken, an answer should have been filed at that time contesting the taking, with a motion to transfer to equity. Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944). This was not done. Thus, the right of the appelants to litigate these questions is deemed to have been waived and the appellants are precluded from raising this issue at this late date. Selle v. City of Fayetteville, supra.
The city of Booneville had the authority to take a fee simple interest under Ark. Stat. Ann. § 35-902 (Repl. 1962). The amended complaint of the city clearly declares a fee simple taking and the amounts awarded,, which were accepted by the appellants, fully support the taking of a fee.
Accordingly, the chancellor was correct in finding that the city did in fact acquire the lands in question in fee simple absolute and that the appellants were not entitled to claim any oil, gas or mineral rights underlying the lands.
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Robert H. Dudley, Justice.
In a non-jury trial Girdner was convicted of DWI, second offense, and was sentenced to one year imprisonment, a $1,000 fine, and revocation of his drivers license for one year. His appeal comes before us under Rule 29(1 )(c) as one of the series of cases in which we construe and interpret the Omnibus DWI Act of 1983, Ark. Stat.'Ann. § 75-2501 — § 75-2514 (Supp. 1983) We affirm the judgment.
In his first argument for reversal Girdner contends that the breathalyzer test results should not have been admitted into evidence because the breath test administrator failed to observe him for twenty minutes. There was testimony that the arresting officer, together with the breath test administrator, observed the appellant for 20 minutes and that he did not ingest anything during the period. The result of the test was properly received in evidence. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).
Girdner argues that the test result should be inadmissible because he asked for another blood test but was refused one. See Ark. Stat. Ann. §75-1045(c)(3) (Supp. 1983); Williford v. State, supra. The two police officers disputed Girdner’s testimony and denied that he asked for an additional test. Their testimony constituted substantial evidence from which the trial judge could have concluded that Girdner did not ask for a different test. It is for the trial court, not the appellate court, to weigh the evidence and resolve the credibility of the witnesses. Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984).
Girdner next contends that the act is unconstitutional because it allows the police officer, rather than the prosecuting attorney or grand jury, to file the misdemeanor charge. There is no merit in the argument in this misdemeanor case. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); reh’g. den. 283 Ark. 434, 681 S.W.2d 395 (1984); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985).
Girdner next argues that the act is unconstitutional because a machine, rather than a trier of fact, convicted him. Thus, he argues, without citation of authority, that he has lost his constitutional right to trial by a jury of his peers. The argument is without merit because appellant’s basic premise that the machine convicted him is fallacious. Although Ark. Stat. Ann. § 75-2503(b) (Supp. 1983) provides that it is unlawful to operate a motor vehicle if there is a blood alcohol level of .10% as determined by a chemical test, the statute only defines the level of blood alcohol content at which a person is prohibited from driving. It is still up to the jury to determine whether the person was operating a motor vehicle and whether his blood alcohol content was in fact .10% or more. Lovell v. State, supra.
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Jack Holt, Jr. Chief Justice.
The appellant was convicted under the Omnibus DWI Act. The sole question raised in this appeal is whether the appellant was in actual physical control of his vehicle as required by Ark. Stat. Ann. § 75-2503 (Supp. 1983). We find that he was.
The case was presented to the trial court on stipulated facts. The appellant did not testify. The stipulations were that Officer Leroy Davis was summoned by citizens band radio to U.S. Highway 67 at 6:22 p.m. on March 5, 1984, to investigate a truck which was stuck in the median of the highway. The truck belongs to the appellant. At the scene the officer found the appellant alone outside the truck. The appellant informed the officer that he was coming from Jonesboro and that he was the only person around the vehicle.
When the officer arrived, another car had stopped and its occupants were in the process of getting out and approaching the truck. Officer Davis was not able to testify as to the length of time the truck was stuck. He also did not know where the keys to the truck were when he arrived. The keys were available however because they were used to lock the truck, which was later towed and impounded. The truck was not locked when the officer arrived. Officer Davis never saw the appellant driving or exercising physical control of the truck. A breathalizer test was administered and the appellant registered .22%. The test results were properly certified and authenticated.
The parties further agreed that the only question before the trial court and on this appeal is whether or not the appellant was driving, or was in possession or in control, of the vehicle.
Act 549 of 1983, codified at Ark. Stat. Ann. § 75-2503 (Supp. 1983) provides:
(a) It is unlawful and punishable as provided in this Act. . .for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this Act for any person to operate or be in actual physical control of a motor vehicle if at that time there was 0.10% or more by weight of alcohol in the person’s blood. [emphasis added].
Although the evidence that the appellant operated or was in actual physical control of the truck while intoxicated is circumstantial, the question of whether that evidence “excludes every other reasonable hypothesis is for the fact finder to determine.” Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). This court’s responsibility is to determine whether the verdict is supported by substantial evidence. Id.
We find that it was. We have recently discussed the issue of actual physical control of a vehicle in two cases. In Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984) we found the appellant was not in control where he was found asleep in his car with the motor off, in the driveway of a business and with the car keys in the vehicle seat. We said, “He may not have been the person who drove the vehicle to where it was parked. If he drove it to the place where it was found he may have become intoxicated later.”
This case is distinguishable in that here, the appellant in his statement to the officer admitted that he was coming from Jonesboro and he was the only person around the vehicle. Therefore the court was justified in believing that he had operated and was in actual physical control of the truck until he became stuck on the median.
In Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), the appellant and a companion were found asleep in a parked vehicle. When the officer awoke them, the appellant reached for the key which was in the ignition and attempted to start the vehicle.
This court affirmed the finding of guilt stating, “There is no evidence that any one else had control over the automobile. We think the evidence in this case indicates that appellant was as much in control of his vehicle as an intoxicated person could be.”
The evidence in this case necessitates a similar con elusion. The appellant was the only person at the scene who was likely to have been in control of the truck.
Actual control of a vehicle may be proved by circumstantial evidence. The officer need not see the driver operating the car in order to have reasonable cause to believe he was doing so. 7A Am Jur 2d Automobiles & Highway Traffic § 300 p. 483-84 (1980).
This court has not previously been presented with a situation similar to the present one, where the appellant is outside of his vehicle with the motor turned off and the location of the keys to the automobile is uncertain. The New Jersey court in State v. Prociuk, 145 N.J. Super 570, 368 A.2d 436 (1976) stated that there are three ways to prove operation of a motor vehicle. They are (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving.
In Prociuk an officer was called to a turnpike exit where he saw the appellant near a toll booth with his van parked on the other side of the booth. The appellant, who was intoxicated, told the officer he had just run out of gas. The New Jersey court found that the appellant’s statement amounted to a confession because of the word “just” which implied that he had recently been driving. Applying the same test here, the appellant’s statement to the officer that he had come from Jonesboro and that he was the only person around the vehicle is considered a confession of use and control of the vehicle.
The appellant’s admissions coupled with other circumstantial evidence lead to only one logical conclusion: the appellant was in actual physical control of his vehicle while intoxicated.
Affirmed. | [
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George Rose Smith, Justice.
From 1972 until September, 1982, the appellant was employed by the appellee in the cosmetics department of its Fayetteville store. After her employment was terminated, she brought this action for slander and for her assertedly wrongful discharge. Upon the appellee’s motion for a partial summary judgment the trial judge granted such a judgment as to the discharge. The Court of Appeals transferred the case to us as possibly involving an issue that was touched upon but not decided in two recent cases. Jackson v. Kinark Corporation, 282 Ark. 548, 669 S.W.2d 898 (1984); Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982).
In Griffin we followed our long-standing rule that when the term of employment is left to the discretion of either party, or is indefinite, or is terminable by either party, then either may end the relationship at will and without cause. The possible change mentioned in the two cases would be brought about, as we said in Jackson, “by finding an express or implied agreement for a specified period of employment or by imposing on the employer a duty not to discharge the employee arbitrarily or in bad faith.”
The appellant presents her arguments as four points for reversal, but there is actually only one essential issue: Does the proof submitted for and against summary judgment present any material disputed question of fact that might bring the case within the Jackson exceptions? We find none.
The appellant testified that when she was orally employed in 1972, she was told that she could work as long as she desired. No definite term was specified. She signed a written application that included this statement: “I understand and agree that Dillard’s may terminate my employment at any time, without prior notice or liability of any kind, except for wages earned and unpaid at the time of such termination.” Thus the original agreement was terminable at will by either party, under the common-law rule we have always followed.
As to later modifications of the agreement, only three are suggested. First, Dillard’s initiated a profit-sharing plan to which it contributes. After five years an employee’s interest is vested in the sense that she receives the balance in her account at her retirement or a percentage of it if she is terminated before retirement. The plan, however, is not shown to involve any assurance of continued employment. Second, there is a stock-purchase plan. After one year’s employment an employee may contribute up to 3% of her pay, which Dillard’s will match and use for the purchase of stock in the company. The employee then simply owns the stock; it has nothing to do with her continued employment. Third, in a proffered affidavit which we have taken into consideration, the appellant stated that from the time she accepted the employment she was required to give two-weeks notice of any decision on her part to terminate the employment and would lose certain benefits if she failed to do so. Such a provision is not uncommon, but it does not assure the employee of a job for any specified length of time. Rather to the contrary, it confirms the employee’s right to quit.
In sum, we find nothing in the proof to present an issue of fact with respect to the possible exceptions discussed in the Jackson and Griffin opinions.
Affirmed. | [
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John I. Purtle, Justice.
This matter is here on an original petition for a writ of prohibition to the Pulaski Circuit Court, Sixth Division, to prevent the trial court from conducting a trial on the matter in dispute between the parties. Petitioners argue the Circuit Court lacks jurisdiction because the plaintiff lacks standing and capacity to maintain an action in the courts. We agree that the plaintiff lacks both standing and capacity.
Round River Horizontal Property Regime (Regime) filed suit in the trial court below seeking damages for breach of contract and punitive damages. The Regime was and is an unincorporated association of property owners who own most of the condominiums in a project which was originated, developed, managed and sold by petitioners. The Regime is apparently in control of the common property used by the residents. Petitioners’ answer to the complaint was that the Regime lacked capacity and standing to maintain the action. The trial court denied petitioners’ motion for a summary judgment. This petition was then filed in this court.
The trial court found that the Regime was an unincorporated association with no designated agent for service of process. This fact is undisputed. Therefore, the question presented is whether such an association has capacity or standing to maintain an action in its own behalf.
We briefly note that the purpose of a writ of prohibition is to prevent a court from exercising powers not authorized by law when there is no other adequate remedy available. Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975). If jurisdiction depends upon establishment of facts, then it is a matter for the trial court and properly presented on appeal to this court. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98 (1936). In the case before us all parties agree that the plaintiff is an unincorporated association with no agent for service and that the association is apparently operating pursuant to its own bylaws. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Titsworth v. Mayfield, 241 Ark. 641, 409 S.W.2d 500 (1966).
We now consider whether the Regime has capacity to sue. The general rule in Arkansas is that an unincorporated association does not have the capacity to sue. Curators of Central College v. Bird, 148 Ark. 323, 229 S.W. 730 (1921). In Bird we stated: “It goes without saying that suits must be instituted or defended by persons, either natural or artificial. ‘Curators of Central College’ is not a designation or description of any person either natural or artificial.” In Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S.W. 464 (1921), an unincorporated association (the union) was sued on allegations that members of the association had murdered the decedent. We held that an unincorporated association could not be sued in the absence of a statute, but that the proper parties were the individual members. We do not find that the legislature has enacted statutes allowing the Regime to sue or be sued! The same issue was considered in Smith v. Arkansas Motor Freight Lines, Inc., 214 Ark. 553, 217 S.W.2d 249 (1949). In Smith the union had entered into a contract with the employer. The president and secretary of the union brought suit, in a class action for all of its members, to compel the employer to comply with the terms of the agreement. We held that the action could be maintained. However, the authority to sue was pursuant to Ark. Stat. Ann. § 27-809 (1947). That statute was superseded by ARCP Rule 23 (class actions). In the present case there was no person, natural or artificial, purporting to act for the class. The Regime is simply a piece of property owned by the individual members of the association. Absent statutory authority or incorporation, the Regime has no capacity to sue or be sued.
We now consider the “standing” issue. An unincor porated association cannot acquire and hold property in its own name. NLR Hunting Club v. Toon, 259 Ark. 784, 556 S.W.2d 709 (1976). Suits brought by or against members of an unincorporated association may be maintained as class actions by naming certain members as representatives of the class if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. ARCP Rule 23.2. Summons may be served upon an unincorporated association by serving an agent authorized by appointment or by law to receive such service. ARCP Rules 4(d) and (5). No such person exists in the present case. In this case there was no named individual who had been appointed or designated by law to receive process or act on behalf of the other class members. Therefore, the Regime had neither standing nor capacity to sue.
Writ granted.
Dudley, J. and Hays, J., not participating. | [
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Per Curiam.
In an order signed August 31, 1984, the Circuit Court of Crawford County denied petitioner Joe Moore’s petition for postconviction relief. On September 4, 1984, the day the order was filed by the circuit court, the court received a letter from petitioner which the court treated as a motion to set aside the order. The court responded with a second order entered September 11, 1984, declining to disturb the first order.
Petitioner now asks for permission to proceed with a belated appeal of the orders on the ground that he did not know that his Rule 37 petition had been denied until he was informed of the denial in a letter from the trial judge dated November 28, 1984. He alleges further that the circuit clerk did not forward a copy of the orders to him until January 14, 1985.
688 S.W.2d 733
Rule 37.3(d) provides that when an order is rendered, a copy will be mailed promptly to the petitioner. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). The record in this case indicates that the circuit court complied with this provision. Letters to the petitioner dated September 4 and September 11,1984, inform petitioner that a copy of an order is enclosed, and both orders have a notation under the trial judge’s signature directing that a copy be delivered to the petitioner. There is a presumption that a letter mailed was received by the person to whom it was addressed. American Fidelity Fire Insurance Company v. Winfield, 225 Ark. 139, 279 S.W.2d 836 (1955). Petitioner has offered nothing to rebut that presumption beyond the unsubstantiated assertion that the letters did not arrive.
In view of the proof contained in the record that petitioner was provided a copy of both the September 4 and September 11 order, we find that petitioner has not stated good cause for failing to perfect an appeal. Accordingly, his motion for belated appeal is denied.
Motion denied.
Supplemental Opinion on Denial of Reconsideration delivered April 29, 1985
Pro Se Motion for Reconsideration of Denial of Motion for Belated Appeal; denied.
Appellant, pro se.
Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
Per Curiam. On March 25,1985, we denied petitioner’s motion for belated appeal. In the motion he had alleged that he was unable to file a timely notice of appeal because he had not received notice from the circuit court that his Rule 37 petition had been denied until several months had passed. He now asks for reconsideration based on the ground that since a prisoner’s mail is not delivered directly to him but rather to the prison officials, the prisoner has no knowledge of it until it is passed along to him. He suggests that because he has been transferred four times since being committed to prison, it is possible that his mail was not delivered to him. His statement is unconvincing.
As we said when the motion for belated appeal was denied, Rule 37.3(d) provides that when an order is rendered, a copy will be mailed promptly to the petitioner. The record in this case indicates that the circuit court complied with the rule. We also said that there is a presumption that a letter mailed was received by the person to whom it was addressed. The fact that mail is delivered to the prison mailroom and not directly into the hands of the inmate is not in itself enough to overcome the presumption that it reached him. If petitioner had provided some proof that it is the practice of prison officials to withhold mail or to delay delivering it for an extended period when there has been a transfer, there might be grounds for reconsideration of the denial of his motion for belated appeal. (We note that he states that our opinion denying his motion for belated appeal was postmarked March 25, 1985 and delivered March 27,1985.) There can be no argument with petitioner’s assertion that mail between the courts and litigants deserves prompt delivery, but petitioner has not demonstrated that there was any undue delay in his case.
Motion for reconsideration denied. | [
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Robert H. Dudley, Justice.
The issue on appeal is whether a former wife may maintain an action for alimony and marital property against her former husband, notwithstanding a valid absolute divorce previously procured by the wife in a foreign jurisdiction, solely upon constructive service.
Mary and Edwin Woods were married for 31 years. During the marriage Edwin retired from the Air Force after 20 years of service and moved to Faulkner County. Mary filed suit for divorce in Faulkner County on March 15, 1983. Edwin filed an answer and indicated that he would contest the action. Mary dismissed her complaint on August 12. Four days later, on August 16, she filed suit for divorce in New Mexico. Edwin made a special appearance and objected to personal jurisdiction. The New Mexico court ruled that it had jurisdiction over marital status but had no personal jurisdiction over Edwin. Mary later registered the New Mexico decree in Faulkner County and by this independent action sought alimony and to divide the marital property. The trial court held that Mary did not have an independent cause of action. We reverse.
The New Mexico decree granting a no-fault divorce is valid and entitled to full faith and credit recognition as terminating the marital status of the parties without a determination of fault. A division of marital property and an award of alimony were not at issue in the foreign jurisdiction. The foreign court did not have jurisdiction over both parties. See Knighton v. Knighton, 259 Ark. 399, 533 S.W.2d 215 (1976). No provision of the Federal Constitution compels this Court to recognize the foreign no-fault divorce as terminating the spouse’s cause of action for marital property or alimony. Pawley v. Pawley, 46 So. 2d 464, (Fla. 1950), 28 A.L.R.2d 1358, reh’g. den. 47 So. 2d 546, cert. den. 340 U.S. 866.
Mary voluntarily left the state of matrimonial domicile, Arkansas, and at the time of the divorce and at the time of the filing of this action was a resident of New Mexico. Edwin has been a resident of Arkansas at all material times. Neither party contests the application of the law of this forum. See Morris, Divisible Divorce, 64 Harv. L. Rev. 1287 (1951).
In Bowman v. Worthington, 24 Ark. 522 (1867), a case almost identical to the one at bar, this Court held that the right to maintain a proceeding for alimony cannot survive a dissolution of marriage. The rationale was that alimony after divorce was entirely dependent upon statutory law, and the “peculiar phraseology of our statute” provides for alimony only “when a decree shall be entered.” That statute, Arkansas Statute Ann. § 34-1211 (Supp. 1983), remains unchanged. However, twenty-four years later, in Wood v. Wood, 54 Ark. 172 (1891), we noted that a different statute, § 34-1201, contemplated two separate actions, either alimony or divorce. That statute provides: "The action for alimony or divorce shall be by equitable proceeding.” In Wood, Justice Hemingway wrote: “. . . the act contemplated two separate actions, and the legislature did not use the term ‘action for alimony or divorce,’ as the equivalent of ‘action for divorce, or action for divorce and alimony’.” Id. at 177. Since Wood, supra, we have consistently held that Ark. Stat. Ann. § 34-1201 provides that an independent action will lie for alimony. See e.g. Savage v. Savage, 143 Ark. 388, 220 S.W. 459 (1920); Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096 (1922). Also, since Wood, supra, we have not followed the Bowman statutory interpretation that alimony may be awarded only as an incident to divorce. However, all of the cases deal with alimony before divorce or as an incident to it. Ordinarily, a separate suit for alimony after a final decree of divorce is granted will not be successful because of the doctrine of res judicata. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). However, by applying the concept of divisible divorce, it becomes apparent that the doctrine of res judicata is not applicable to the issue of alimony in this case. Only Mary and the marital status were before the foreign court. That court had no jurisdiction over either Edwin or the issue of alimony. Therefore, in determining whether a separate action will lie for alimony after divorce, we only need to interpret our statute, quoted above. It simply refers to an “action for alimony or divorce.” It makes no distinction between before or after divorce, and so we must construe the statute as authorizing the action at either time. “It is a rule in this State, long and well established, that where a limited jurisdiction is conferred by statute, the construction ought to be strict as to the extent of the jurisdiction, but liberal as to the proceeding.” Wood, 54 Ark. at 178. Moreover, the statute at issue is a part of the original civil code. “The rule of common law that statutes in derogation thereof are to be strictly construed shall not be applied to the Code. The provisions of the Code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.” Ark. Stat. Ann. § 27-131 (Repl. 1979). Accordingly, we interpret Ark. Stat. Ann. § 34-1201 as allowing an independent proceeding for alimony when alimony could not have been considered in the divorce action. The trial court erred in summarily dismissing the action for alimony.
Similarly, that part of the complaint which asked for a division of marital property should not have been summarily dismissed. Prior to 1977, the Supreme Court of the United States ruled that spouses must be treated equally in the absence of a valid reason for making a distinction. In response, in 1979, the General Assembly enacted the law which created “marital property.” Ark. Stat. Ann. § 34-1214 (Supp. 1983). The legislation was intended to create a new form of property, and we must construe the act in harmony with that intent. The statute defines marital property as all property acquired by either spouse subsequent to the marriage with exceptions not important here. All marital property is to be divided equally unless a court finds that division is inequitable. The statute mandates that courts of this state divide marital property upon granting a divorce. This concept of the division of marital property requires that marital property be divided even when a divorce is granted upon constructive service in a foreign state. An independent action will lie for the division of marital property.
Appellant also contends that the trial court erroneously refused to compel answers to interrogatories. There is no merit in the argument. Rather, we note that Rule 33(e) provides that the cost of answering interrogatories may be assessed against a party who propounds an unnecessary number of interrogatories.
Reversed and remanded.
Hickman, J., dissents in part and concurs in part. | [
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Per Curiam.
Petitioner was convicted by a jury of capital felony murder and sentenced to life imprisonment without parole. We affirmed. Williams v. State, 260 Ark. 457, 541 S. W.2d 300 (1976). In 1976, petitioner filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 which was denied. He was allowed to file a second Rule 37 petition in 1979 because his original petition presented only conclusory allegations. This petition was also denied. We denied a third petition for postconviction relief in 1981.
Petitioner has now filed a petition for writ of mandamus, asking this Court to direct the Circuit Court of Pulaski County to act on a petition for writ of error coram nobis which he filed in that court on September 20, 1984.
Once a conviction has been affirmed on appeal, error coram nobis is not available to secure a new trial on the basis of newly discovered evidence or to raise issues which are properly raised in a petition pursuant to Criminal Procedure Rule 37. See Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985); see also Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). If a petitioner discovers some ground for relief such as that claimed by the petitioner in Pickens after a judgment is affirmed, he may present that ground in a clemency proceeding. Allegations of constitutional error and ineffective assistance of counsel, such as those argued by petitioner in his error coram nobis petition, may be argued on direct appeal and under our postconviction rule. We expanded the writ of error coram nobis in Penn to fill a gap in the legal system. Petition for writ of error coram nobis is not available after we review a case. Petitioner’s conviction was affirmed and three petitions for postconviction relief were considered and denied; therefore, it is not an appropriate remedy in this case. As the circuit court has no duty to grant relief to petitioner, the petition for writ of mandamus is dismissed.
Petition dismissed. | [
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Wood, J.
The appellee was indicted for the crime of assault with intent to kill. He was tried for that offense and convicted of an aggravated assault, and his punishment was fixed at a fine of t$500 and an hour in prison in the county jail. The appellee moved the court to retax the cost, alleging in his- motion that he was acquitted of the felony charge in the indictment and convicted of a misdemeanor; that the costs incident to the misdemeanor charge amounted in the aggregate to $16.70, and alleged that all costs above that sum were incident to the felony charge, and should be taxed against the county and not against the appellee. He prayed that he be required to pay as costs only the sum of $16.70.
The record recites that “the motion is, after due consideration by the court, sustained,” and the court proceeded to render judgment against the appellee in the sum of $500 asa fine and the sum of $16.70 as costs. The State, through her district attorney, excepted to the ruling of the court, and prayed an appeal from the decision relieving the defendant of the costs in the felony prosecution, and the court granted the State 45 days in which to prepare and file its bill of exceptions.. The State filed no motion for a new. trial. Judgment was rendered on August 19, 1924. What purports to be a bill of exceptions bears a filing mark of October 4, 1924, and has indorsed on it “O. K. this the 14th day of October, 1924. John. E. Tatum, Judge of the 12th Judicial Circuit of Arkansas.” It thus appears that what purports to be the bill of exceptions was not signed by the trial judge and filed within the time allowed. There 5-? therefore no bill of exceptions in the record, and the record does not show that there was a motion for a new trial. Unless therefore the judgment roll presents an error, we must presume that the ruling of the trial court was in all things correct, and affirm its judgment.
It is a well settled rule of this court' that, where there is no motion for a new trial, only errors appearing on the face of the record will be considered on appeal. Smith v. Wallis-McKinney Coal Co., 140 Ark. 218; Free v. Adams, 148 Ark. 654. The same rule applies in regard to the bill of exceptions. Crow v. Cox, 158 Ark. 641. There is no error appearing on the face of the record itself. A motion for a new trial and a bill of exceptions would be unnecessary if the court’s finding of fact entered in its judgment disclosed an error in the court’s ruling in retaxing the costs. Vaughan v. Hinkle, 146 Ark. 149. But the court’s findings of fact are not set forth in the record, and there is- nothing to disclose- any error in the judgment of the court. In-the absence of a bill of excep - tions, and the error not appearing' on the judgment roll, this court will presume that the trial court found the existence of every fact essential to the correctness of its judgment. Rogers v. Meyers, 143 Ark. 490.
In Boone County v. Mitchell, 64 Ark. 125, and Smith v. State, 105 Ark. 58, we held that, where defendants were indicted for felony and acquitted of the felonies and convicted of misdemeanors included in the indictment, “if they shall not have the property to pay the costs, the same shall be paid by the county.” In' the absence of a bill of exceptions it will be presumed that the court found the fact to be, in this case, that the appellee Moore did not have property to pay the costs. Such being the case, under the doctrine -of the above cases, appellee Moore was not liable for the costs accruing under the felony charge, and the court did not err in so holding.
The judgment is affirmed. | [
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McCulloch, C. J.
, Appellant was indicted.for the crime of murder in the first degree, committed by shooting and lrilling Cody Franklin,- and, on the trial of the cause, the jury returned a verdict of conviction of murder in the first degree, and fixed the punishment at life imprisonment.
The.killing of Franklin by appellant was admitted, but he attempted to justify the killing on the grounds of necessary self-defense. It is contended here,that the evidence was not legally sufficient to sustain the conviction for any degree of homicide higher than manslaughter, and that the court erred in submitting the higher degrees to the jury.
Therefore, the first question presented for our consideration is whether or not the evidence is legally sufficient to sustain the verdict.
The killing occurred on the night of April 8, 1924, about midnight, at the store of Miss Ida Carlton, in the village of McKamie, where appellant was employed as a clerk. McKamie is a small village in Lafayette County, containing two stores and ten or twelve residences. Miss Carlton operated a mercantile establishment, and appellant was her clerk and salesman. Cody Franklin was a farmer in the neighborhood, and traded at Miss Carlton’s store, and owed an account there at the time of the killing. Franklin came to the store that evening — drove up in a car with appellant and another person — and Franklin remained there at the store until he was killed. There were no eye-witnesses to the killing, but Miss Carlton was present, according to her testimony and that of appellant himself, at the time the controversy between the men first arose in the store. Several witnesses in the neighborhood heard the shots fired about midnight, and testified that there were three shots, which were fired in rapid succession. One of the witnesses introduced by the State testified that he heard the shots in the direction of the store, and, looking in that direction, he saw, shortly afterwards, a flashlight, and that, in about thirty or thirty-five minutes thereafter, appellant appeared at his house, and said that he had been cut with a knife. This witness and others went to the store, and found the dead body of Franklin lying out a short distance from the store — one witness said that it was forty or fifty yards from the store, and off to one side, near a ditch. There was one shot through the body, which. entered from the back near the vertebra and emerged in front, near the man’s breast. Witnesses who examined Franklin’s body testified that he had no knife, and that they found none near the body, and other witnesses testified that Franklin did not own a knife at that time. Franklin’s wife testified that he had owned a knife before then, but that their baby had lost it, and that he owned none at the time of the killing.
According to the testimony of one of the witnesses, appellant made contradictory statements at the time with respect to the particular place where the difficulty began. Appellant testified that, after Franklin came to the store that night, he went back into the office with Miss Carlton, and that soon afterwards he heard a controversy between deceased and Miss Carlton about a payment of the account of the deceased. It seems from this testimony, as adduced by appellant, that deceased had offered to pay seventeen dollars on the account, and had exhibited a twenty-dollar bill, but. that, after Miss Carlton had credited the amount on the account, he refused to hand over the bill. Miss Carlton testified to the same effect, as did another witness introduced by appellant, who was present at the time but who left shortly before the killing. After this controversy about the payment, appellant claimed that he retired to an adjoining room and left Miss Carlton and deceased in the store, and that he was aroused by hearing Miss Carlton fall to the floor, when deceased struck her or pushed her over. Miss Carlton testified that deceased did push her, and that she fell to the floor, and that appellant came out of the other room and walked up to the place in the store where she and deceased were at the time.
Appellant testified that, when he heard Miss Carlton scream, and opened the door and saw that he had either struck her or shoved her down, he ran and grabbed Miss Carlton, and the next thing he knew Franklin had jerked him out of the side door and was cutting him. lie testified further that he and Franklin, after they got outside, scuffled around for fifteen or twent-v feet, and that Franklin got' him down on the ground, that he then thought of his gun, and, believing that Franklin was going to kill him, he drew the gnn, and when the gun went off he turned and ran. His exact statement was this: “I went to trying to get my gun, and so he seen me trying to get my gun, and in the scuffle there I don’t know which one pulled the trigger, I guess I did. The gun went off, and he turned and run. ’ ’
Now, the testimony of the other witnesses was, as before stated, to the effect that there were three shots fired, and there is no evidence that deceased had a pistol or a knife.
Appellant was contradicted by Miss Carlton, who testified that, after deceased shoved or struck her down and appellant came into the store-room, the deceased walked on out of the store, twenty or thirty feet ahead of appellant.
Appellant was also contradicted as to the place where the killing occurred, he stating that he was pulled out of the door fifteen or twenty feet away, whereas other testimony introduced by the State shows that the killing occurred forty or fifty yards from the store.
Considering all these circumstances and contradictions, and the fact that the deceased was shot in the back, the jury were warranted in rejecting appellant’s explanation, and in reaching the conclusion that appellant followed deceased out of the store and shot him. Our conclusion therefore is that there was sufficient evidence 'to support the verdict, and that the court was’justified in giving instructions submitting to the jury the issues a's to the higher degrees of homicide.
This also disposes of appellant ’s contention that the court erred in giving instruction- No'. 9,- which told the jury, in the language of the statute, that, where the killing is proved, “the burden of proving mitigating circumstances that justify or excuse the homicide shall devolve on the accused, unless, by proof on the part of the prosecution, it is sufficiently manifest that the offense only amounted to manslaughter or that the accused" was justified or excused in committing the homicide.” It is earnestly insisted that the proof adduced- by the State showed that the offense was not above the grade of manslaughter, and that therefore this instruction was erroneous, under the rule announced by this court in Tanks v. State, 71 Ark. 459; but, as before stated, our conclusion is that the evidence is sufficient to warrant a verdict for the higher offense, and that, from the proof adduced by the State, it is not“sufficiently manifest that the offense only amounted to manslaughter, or that the accused was justified or excused in committing- the homicide. ’ ’
There are other assignments of error with respect to the court’s charge, one that the court erred in refusing to give instruction No. 13, which reads as follows:
“You are instructed that, if you believe from the evidence that when the defendant Beason came into' the store, attracted by the noise of the disturbance, the deceased made a violent and felonious assault upon him, and caught hold of the defendant Beason and pulled him out of the door, and commenced to fight and cut the defendant, then the law would not require Beason to retreat, but he had the right, under the circumstances, to stand his ground and repel force with force, even to the extent of taking the life of the deceased, if the defendant honestly believed, acting on the facts and circumstances from his standpoint at the time, without fault or carelessness on his part, that it was necessary to save •his own life or to prevent his receiving serious bodily ■injury at the hands of the deceased; and, if the jury find that the defendant Beason honestly believed, acting on the facts and circumstances as they appeared to him, from his standpoint, at the time, without fault or carelessness on his part, that the deceased was about to take his life or to do him great bodily harm, then the defendant 'Beason was not required to suspend his defense, even if the deceased, just before the shooting, was apparently withdrawing, if the defendant honestly believed, acting on the facts and circumstances as they appeared to him from his standpoint, at the time, without fault or Carelessness on his part, that the deceased was withdrawing apparently for the purpose of seeking a better position from which to continue and renew the combat.”
All of this instruction, except that part which relates to the deceased apparently withdrawing just before the shooting, was fully covered by other instructions requested by appellant, and we are of the opinion that they fully and correctly submitted the issues to the jury. .There was no testimony to the effect that deceased, after becoming the aggressor, if, in fact, he did become the aggressor, attempted to withdraw. At the time deceased walked out of the store there had been no difficulty between him and appellant. All of the testimony tending to show that the deceased was the' aggressor was that of appellant himself, who testified that deceased grabbed him and dragged him out of the door, and, in the scuffle, cut him with a knife. Appellant makes no contention that deceased was armed except with a knife, and there was no occasion to submit the question of appellant’s right and duty, if the deceased was withdrawing “apparently for the purpose of seeking a better position from which to continue and renew the combat.” Counsel for appellant seek. to invoke the principle announced by this court in the case of Luckinbill v. State, 52 Ark. 45, where the court held (quoting from the syllabus) that “where one is defending himself from an unlawful attempt to shoot him, it is not incumbent upon him to suspend his defense because his assailant is withdrawing himself from the immediate locality of the attempt, if .such withdrawal is apparently for the purpose of 'securing a position from which to renew the combat with -more efficiency.” No such situation arose in the present case, and therefore the court was correct in not giving an instruction applicable to such a state of facts. .
The other assignments of error relate to alleged 'misconduct of jurors and bystanders, constituting exposure of the members of the jury to improper influences. Appellant filed affidavits in support of these ■assignments, which were incorporated in the bill of exceptions. One of the affidavits tended to show that the courtroom was crowded during the trial, and that the audience was permitted to crowd around the bench, about the jury-box and within the bar, and that the court permitted applause from the audience. The court makes a statement of the facts in the bill of exceptions, which refutes the charge of any failure on the part of the court to repress applause or any other misconduct in the presence of the court.
Another charge in the affidavit is that, while the jury was out deliberating, one- of the members stood at a window and communicated by signs with one or more persons out in the courthouse yard. The affidavit named the particular juror who was said to have been the offender in this respect, and a counter-affidavit made by this juror was filed, which shows that he held no communication with outsiders at all, except to make a sign to a man eating an apple out in the yard, indicating that he (the juror) wanted an apple. It was within thé province of the court to pass upon the question whether or not the charge of misconduct was sustained, and we feel bound by the finding of the court on that issue. Payne v. State, 66 Ark. 545; Freels v. State, 130 Ark. 189.
Still another charge in the same affidavits is that, during the recess of the court, while the jury was sitting in the box awaiting the coming of the trial judge, the court room was crowded with spectators, and persons were sitting on the edge of the platform on which the jury sat, and that those persons, as well as others in the court room, talked among themselves. The two affiants who made affidavits on this subject made the following statement: “I do not know what they were talking about, but I know that the people in that part of the courthouse where I was were talking about the case being tried. Considerable excitement prevailed, and considerable feeling was manifested against -the defendant.” Counsel for appellant insist that this statement in the affidavit made a prima facie case of misconduct and noxious influence upon the jury, and that the State has failed to overcome it. We have already stated the effect of our former deci sions to be that, where the jury separates after being ordered held together, a prima facie case is made which places the burden on the State to show that the jury was not exposed to improper influences. In addition to the cases we cited, counsel rely upon the comparatively recent case of Holt v. State, 131 Ark. 391. In that case, however, as well as in the other cases cited, there was an actual separation of the jury, and it was held that this placed the burden on the State. In the present case, however, there was no separation of the jury, and therefore the burden abided with the accused to show improper exposure to noxious influences, and the burden never shifted to the State at all. The affidavits in the present case do not show that there was any improper influence, for the affiants did not hear what was actually said in the presence of the jury, and did not know that anything improper was said. The jury was in charge of a sworn officer, and the presumption must be indulged, until the contrary is made to appear, that the officer did his duty and shielded the jury from improper influences. In addition to that, we think that if a pñma facie case had been made by the affidavits it was overcome by the counter-affidavits of juror Ford, who stated that neither he nor the other jurors were subjected to improper influences. The finding of the court on that issue, if there was an issue raised by the affidavits, is binding upon us where there was a conflict in the testimony.
Another charge of misconduct and exposure of a juror to improper influences is based upon the following ■affidavit of Otis Park:
“I know Zack Beason, and I was present at his trial in the Lafayette Circuit Court. On the morning of the second day of the trial, when court was not in session and when the judge was not on the bench, I saw a bystander leaning over one of the jurors,-who were in the box at the time, in the circuit court room, and I saw this bystander .have his face down in about one foot of that of the juror, and the bystander had his hand up to his face and covering his mouth from the side next to the court room, and juror’s face was set in attention as though listening to the bystander- talk to him. I could hear, and, where I .sat, the bystander’s hand shielded his mouth, and I could not see his lips move, but his position and attitude and that of the juror’s appeared to me that the bystander was whispering into the ear of the juror, and the juror was intent upon what he was saying. This trial was at the August term, 1924, of the Lafayette Circuit Court. I am not related to Zack Beason, either by blood or marriage.”
There was no attempt on the part of the State to answer the charge covered by this affidavit, and the question presented is whether or not this affidavit is sufficient to make out a prima facie case so as to place upon the State the burden of showing that none of the jurors were exposed to improper influences. The rule, settled by repeated decisions of this court, is that, where the jury is permitted to separate by order of the court, the mere opportunity for contamination of the jury is not sufficient to place any burden on the State, but that the defendant must prove contaminating influences prejudicial to his case; but, where the court, by its order, holds the jury togethér, without separation, during the recesses of the court, a showing by the defendant of an opportunity for exposure to noxious influences places the burden upon the State of showing that there was no ■ such prejudicial conduct or influences. Maclin v. State, 44 Ark. 115; Vowell v. State, 72 Ark. 158; Holt v. State, 131 Ark. 391; Brust v. State, 153 Ark. 348. We are of the opinion that proof adduced on the part of the accused tending to show that a bystander secretly conversed with a juror or jurors, while the jury was being kept together . under order of the court, even while in the courtroom in charge of an officer, awaiting the approach of the trial judge, is sufficient to cast upon the State the burden of showing that the juror in question was not subjected to any obnoxious influence, provided the testimony is sufficient to put the State on notice so that the burden cast upon it may be met. Now, it will be observed in the present instance that the affiant merely states that he saw a bystander (without naming him) in secret conversation with a juror (without naming him). The affiant not only failed to name either the juror or the bystander, but also failed to furnish any other means of identification of either, or to state that he was unacquainted with either of the parties. If the affiant had named either the juror who was approached, or the bystander, the State would have been in position to call either one or the other to elicit all the facts with respect to the alleged conversation. Or, if the affiant had stated that he was not acquainted with either of the parties, and, for reasons given, could not state any means of identification, the State might even have gone to the extent of sending for all the members of the jury, but merely to state, in the affidavit, that an unnamed bystander approached one of the jurors in conversation is too vague and .insufficient, we think, to cast upon the State the burden of showing that no such incident occurred, or, if it did occur, that the conversation was harmless.
' Another charge of misconduct is that the court put under oath Deputy Sheriff Bowe, who took charge of the jury, but that, during the night, he left the jury in the jury-room for a short time, in- charge of Lester, another deputy sheriff, who had not been sworn. The State filed a counter-affidavit by Lester to show that Bowe was only absent long enough to go on an errand to procure a watermelon for the jury, and that none of the jurors left the room during his absence or conversed-with any one else about the case.
This answers all the assignments of error, and we are of the opinion that none of them is sustained.
It follows therefore that the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
The Louisville Silo & Tank Company, through its salesman, obtained an order for a steel granary from appellee, J. Gr. Thweatt. This order was transmitted to the company’s office in Louisville, and there accepted. The granary sold appellee was shipped from Ohio, in a car consigned to the agent at Stuttgart, along with a number of other granaries for which the agent had taken orders. Each granary was separately packed, and each had the name and address of the purchaser stamped thereon. The shipments were made together to secure the advantage of car lot rates, but some of the granaries were taken out of the car in which they were originally shipped at' Stuttgart and were loaded into a car for delivery at the homes of the purchasers, some of whom did not live at Stuttgart and did not receive their freight at that place-. Appellee resided at DeValls Bluff, and the granary consigned to him was reloaded at Stuttgart and shipped by local freight to DeValls Bluff, where delivery was made. '
Upon delivery of the granary, appellee paid the portion of the purchase price in cash which the contract of sale required,' and executed his note for $469, the balance of purchase money, payable to the order of the silo company. This note was dated September 30, .1918, and matured January 1, 1919, and bore interest at six per cent, per annum from its date. On October 7, 1918, the note was sold, indorsed and delivered by the silo company to the appellant bank, whose place of business is in Louisville, Kentucky, and, according to the testimony offered on behalf of the bank, it paid full value for the note, and acquired the same without notice that there was any defense to it:
The granary was put up, and proved defective and' valueless for the purpose for which it was sold, in that it admitted rain in openings which were intended only to admit air. An unsuccessful attempt was made to amend the defect, which appellee said was structural and not peculiar to the granary purchased by him.
At the time of the sale of the granary to appellee, the agent of the silo company took a large number of other orders, the silo included in the case of Crawford v. Louisville Silo & Tank Co., ante p. 88, being one of them.
Appellee refused to pay the note, and this suit was' brought to enforce its collection. There was a verdict and a judgment in his favor, and the bank has appealed.
A vice president of the plaintiff bank, who acted for the bank in the purchase of the note, testified that the silo company was one of its solvent customers, and that he knew the business in which it was engaged, but no one connected with the bank had any knowledge that there was any defect in the silo which the company was selling.
The undisputed testimony shows that, at the time the bank purchased the note sued on, the defect which is said to render the silo valueless had not been discovered, and the bank’s vice president testified that, upon the maturity of the note, it was sent to a bank in this State for collection, and that the collecting bank kept the note for several months before reporting that' collection conld not be made, and that the employee of the plaintiff bank whose business it was to trace the note, had negligently failed to do so or to report its non-collection, and, when this was finally done, several months had elapsed. The silo company was then called upon to make good its indorsement, but declined to do so on account of the delay in reporting to it the failure to make the collection, whereupon this suit was brought.
It was the theory of the trial court, as is indicated by the instructions given, that there was an implied warranty that any manufactured article was reasonably fit for the use for which it was sold, and that not even an innocent purchaser of such a note could recover on it if he knew that the note was given for a manufactured article and the article proved worthless, even though the purchaser of the note was not aware of the defect in the article sold. This is not the law, and there appears to be no testimony charging the bank with notice of the failure of the consideration for the note, except the fact that the bank knew it was for a manufactured -article.
The testimony does show that the bank was advised of the defect before bringing this suit; but this information was not acquired until long after the purchase of the note, and this after-acquired information would not, of course, affect the bank’s status as an innocent purchaser. Hood v. Thurman, 90 Ark. 93.
There is no testimony in this case which' brings it within the rule announced in the cases of Metropolitan Discount Co. v. Fondren, 121 Ark. 250; Iowa City State Bank v. Biggadike, 131 Ark. 514, and Metropolitan Discount Co. v. Flippo, 163 Ark. 331.
Appellee apparently concedes. now that the ■ judgment in his favor cannot be sustained upon the ground that the appellant bank was not an innocent purchaser of the note. At any rate, a recovery can not be defeated on that ground.
Appellee does insist, however, that the judgment in his favor is correct, and should be affirmed, because the note was executed to a foreign corporation doing business in this State in violation of the laws of this State. Appellee’s brief urging this defense was filed before the decision of this court in the case of Crawford v. Louisville Silo & Tank Co., referred to above, was handed down, and the opinion in that case decides the point adversely to appellee’s contention. That was a suit by the silo company itself to recover -on a note given it for one of the silos which was included in the same shipment as the silo sold appellee, and we there said the.shipment of the silos to the company’s agent at Stuttgart, for delivery from that city to the various consignees whose names' were stamped on the respective silos shipped to various purchasers, was merely a matter of detail in the manner in which the business Was conducted, and did not affect the character' of the transaction as interstate commerce.
It follows therefore that the judgment in favor of the appellee must be reversed, and, as the.case has been fully developed, judgment will- be rendered here for appellant for the face of the note and interest. | [
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Hart, J.,
(after stating the facts). In Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, the court held that one who has purchased personal property subject to a lien for the purchase money has an insurable interest therein.
The general rule also is that a mortgagee of real property who gets insurance for himself, when the insurance is general upon the property, without limiting it in terms to his interest as mortgagee, but when, in point of fact, his only insurable interest is that of a mortgagee, in case of a loss by fire, before the payment of the debt and discharge of the Mortgage, has a right to recover the amount of the loss for his own use. In such case there is no privity between the mortgagor and the underwriter. The money due upon the insurance policy, in case of loss, is upon a distinct and independent contract upon a consideration paid bv the mortgagee. King v. State Mutual Fire Ins. Co., 7 Cush. (Mass.) 1, 54 Am. Dec. 683.
In a case note to. 11 A. L. R., at p. 1299, it is said that, where the mortgagee effects insurance upon the mortgaged propertv at his own expense and for his own bonefit, money received by him on the policy is not a payment on the mortgage, and the following cases are cited which sustain the text: Carpenter v. Providence Washington Ins. Co., 16 Pet. (U. S.) 495; Concord Union Mut. F. Ins. Co. v. Woodbury, 45 Me. 447; Callahan v. Linthicum, 43 Md. 97, 20 Am. Rep. 106; White v. Brown, 2 Cush. (Mass.) 412; Leyden v. Lawrence, 79 N. J. Eq. 113, 81 Atl. 121; Stuyvesant Ins. Co. v. Reid, 171 N. C. 513, 88 S. E. 779; and Dunbrack v. Neall, 47 S. E. (W. Va.) 303.
In Concord Union Mut. F. Ins. Co. v. Woodbury, 45 Me. 447, the court said: “When a mortgagee insures his own interest, without any agreement between him and the mortgagor therefor, and a loss accrues, the mortgagor is not entitled to an allowance of the sum paid upon such loss, to be applied to the reduction or discharge of his mortgage debt, but the mortgagee may, notwithstanding, recover the whole amount due! White v. Brown, 2 Cush. 413; King v. State M. F. Ins. Co., 7 Cush. 1; Cushing v. Thompson, 34 Me. 496.”
Again, in the case of Fox v. Phenix Fire Ins. Co., 52 Me. 333, the court said that different mortgagees of the same property have independent interests, which each-may insure for his own benefit for the full amount.
In Deming Investment Co. v. Dickerman (Kan.), 66 Pac. 1029, 88 Am. St. Rep. 265, it was held that a contract of insurance upon property sold1 at a foreclosure sale between the purchaser and an insurance company is a personal contract of indemnity between such’ purchaser and the company alone, which does not inure to the benefit of the party entitled to redeem, and the purchaser, having collected the insurance money after the property has been destroyed by fire, is under no obligation to account for it to such redemptioner.
In the case of Cushing v. Thompson, 34 Me. 496, in discussing the question the court said: “The interest insured was that of the defendant alone. It does not appear that the complainant paid any part of the premium, had any connection with the insurance, or knew of its existence, till the loss of the property. The defendant could not have compelled payment from the complainant of the premium or any part of it. It is well settled that a contract of insurance does not run with the estate, as incident thereto, but is ah agreement with the underwriters against a loss which the assured may sustain, and not the loss which another may be subjected to, having an interest as mortgagor, redemptioner, or otherwise. Adams v. Rockingham Ins. Co., 29 Me. 292; White v. Brown, 2 Cush. 412.”
It follows from these authorities that the mortgagor would have no right to any part of the insurance policy in question. The policy of insurance was taken out by the purchaser at the foreclosure sale for his' own benefit, and the premium was paid by him. In this connection it may be conceded, as contended by counsel for the plaintiff, that the foreclosure decree did not affect its lien under the attachment suit, because it was not made a party to the foreclosure suit, and because, under the facts of this case, its attachment lien existed before the mortgage in question was executed to the bank.
The record shows, however, that the bank assigned the mortgage notes to Ponder, who purchased the lot at the foreclosure sale, and'Ponder should be treated, so far as the plaintiff is concerned, as a mortgagee in possession. As such mortgagee in possession he had an insurable interest in the property, and, the insurance policy having been taken for his own benefit, the mortgagor has no interest in it.
The plaintiff in this case only acquired the interest of the mortgagor at the attachment sale, and would have no greater rights in the premises than the mortgagor. Hence it was not entitled to claim that the proceeds from the fire insurance policy should be applied to the satisfaction of any debt owed by the mortgagor to the mortgagee. The rights of the piaintiff under its attachment are superior to those of Ponder as assignee of the mortgagee. The two notes for the purchase money for $500 each were described in the deed by which the property was conveyed to Palmer, and, under the repeated decisions of this court, constituted notice that the vendor had a lien on the lot for tiae unpaid purchase money. These purchase money notes were dated October 21, 1920, and were described in the deed from Halton to Palmer. The plaintiff did not obtain a lien on the property by virtue of its attachment until June 1, 1921.
These purchase money notes were assigned by the bank to Ponder. It follows that they are a prior lien on the lot in question to that secured by the plaintiff under its attachment suit, and Ponder will be entitled to have his equitable lien for the amount of the two purchase money notes for $500 each and the accrued interest foreclosed, .and to have the lot sold to satisfy the same. He should be required to account for the rental value of the property during the time he has had it in his possession; but, under the views we have expressed above, he will not be required to account to the plaintiff for any part of the insurance money.
It follows that the decree will be reversed, 'and the chancellor directed to enter a decree in accordance with this opinion. | [
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Smith, J.
The’ City National Bank brought suits on the promissory notes of appellees DeBaum and Fen-tress, which were consolidated and tried together. The notes were payable to the Crystal Glass Company, and had been indorsed and delivered by that company to the bank as collateral to a loan made the company by the bank. 'The Crystal Glass Company, hereinafter referred to as the company, was .organized as a manufacturing corporation with an authorized capital of $100,000. Fifty-one thousand dollars of this stock was subscribed for, of which $10,000 was paid in cash and $41,000 in property. After the company had received its certificate of incorporation, stock was sold to DeBaum and Fentress, in payment of which they executed their notes to the company. We think this so clearly appears that it may be treated as an undisputed fact. The articles of agreement and incorportation of the company do not show that either DeBaum or Fentress were among the original incorporators or that either of them were subscribers for stock in said company at the time of its incorporation in August, 1920.
The notes first given for this stock were not paid, but were renewed after a payment had been made on one of them, and before the renewal notes matured the company was adjudged a bankrupt, and, when DeBaum and Fentress refused to pay the notes on their maturity,'this suit Avas brought to enforce payment.
It was shown on behalf of the bank that it accepted the notes in the usual course of business, for value, and before maturity, and without knowledge of the consideration for which they had been given, and as to one of the notes the bank offered testimony to the effect that one of its officers asked the maker of the note about it before accepting it and was assured that the note would be paid by the maker. It Avas not shown, however, that any question was asked about the consideration for the note, or that the maker made any misrepresentation concerning it. The bank therefore insists that the maker of this note is estopped to question its validity on that account.
It is admitted that the company did not comply with the provisions of the statute known as the Blue Sky law ('§§ 751 et seq., C. & M. Digest), and the notes are voidable for that reason.
It is insisted that it was not shown that the stock was actually issued; but we regard this, as unimportant, as the consideration for the notes was the agreement on the part of the company to issue the stock upon the payment of the notes, so that the consideration for the notes was in fact the agreement to issue the Stock. The company had therefore agreed to issue stock for a note, and it had made this contract without complying with the requirements of the Blue Sky law.
The case of Randle v. Interstate Grocer Co., 147 Ark. 402, appears to be decisive of this case, unless the bank is an innocent holder of the note sued on. There the corporation had sold Randle shares of its stock and had taken renewal notes in payment, and, upon his refusal to pay his note, the corporation sued him. The provisions of 751 and 762, C. & M. Digest, were set out in the opinion, and the court held that the sale, having been made in violation of law, was void, and the corporation’s right to recover was denied. We quoted from the case of Compagionette v. McArmick, 91 Ark. 69, as follows: “A sale is illegal where the statute expressly declares it to be so, or where it prohibits its execution; and a sale is equally invalid where the statute only imposes a penalty upon the party for making it.' It is not necessary that the statute should expressly declare the contract of sale to be void; but the infliction of a penalty upon what is declared as an offense implies a prohibition of such act, and thereby renders void any contract founded on such act. In this State it is the well settled doctrine that ‘every contract made for or about any matter or thing which is prohibited and.made unlawful by statute is void.’ ” Following this quotation we said: “So here the statute makes it unlawful for a person, firm or corporation of another State to come into this State and sell stocks without obtaining permission from the Bank Commissioner, in accordance with the statute. The plaintiff sold the stock without complying with the statute, and thereby rendered the contract void.”
It is- true that the sale in the Randle case was made by a foreign corporation, while in the instant case the contract. of sale was made by a domestic corporation. But this fact is unimportant, for the reason that the statute imposes the same requirements on the domestic corporation in the matter of the sale of its stock as is imposed upon a foreign corporation.
Section 751, C. & M. Digest, reads as follows: “Every person, corporation, copartnership, company, or association (except those exempt under the provisions of this act), organized or which shall hereafter be organized in this State, whether incorporated or unincorporated, which shall either himself, themselves or itself, or by or through others, sell or negotiate for the sale of any contract, stock, bonds or other securities issued by him, them, or it, within the State of .Arkansas, shall be known for the purposes of this act as a domestic investment company. Every such person, corporation, copartnership, or association a resident of or organized in any other State, territory or government shall be known, for the purposes of this act, as a foreign investment company. ’ ’
It will be observed that this section designates every •person, corporation, copartnership, company, or association (except those exempt under the provisions of this act), organized or which shall hereafter be organized in this State, whether incorporated or unincorporated, which shall sell or negotiate for the sale of any contract, stock, bonds or other securities issued by him, them, or it, as a domestic investment company. And that every such person, corporation, copartnership, or association a resident of or organized in any other State, territory or government shall be known for the purposes of the act as a foreign investment company. No distinction is made therefore between domestic and foreign corporations, except that the first is designated as a domestic investment company, while the latter is designated as a foreign investment company.
As no other distinction is made between domestic and foreign corporations, the same rule mnst be applied to each, and, if a foreign corporation cannot sell or contract to sell its stock without complying with the statute, it necessarily follows that a domestic corporation must likewise comply with the statute before offering its stock for sale.
The statute is very comprehensive in its terms, and applies to all sales of stocks and securities except those exempted from the provisions of the act by § 752, C. & M. Digest. There are eight of these exemptions, which need not be enumerated' here, as it very clearly appears that the stock for which the notes sued on were given is not embraced in these exemptions.
Under the statutes of this State governing the organization of manufacturing and other business corporations (§§ 1700 et seq., C. & M. Digest), it is provided that three or more persons may, by articles of agreement in writing, assume - any name agreed upon, and become a body politic and corporate. The statute requires that, before the corporation shall commence business, the president and directors thereof shall file their articles of association, and also a certificate setting forth the purposes for which the corporation was formed, the amount of its capital stock, the amount actually paid in, with the names of its stockholders and the number of shares owned by each, with the clerk of the county in which the corporation is to have its principal place of business, and shall thereafter file said articles and certificate, bearing the indorsement of the county clerk, in the office of the Secretary of State, and, after this certificate has been recorded in the office of both the county clerk and the Secretary of State, and the fees paid which are required by law, the Secretary of State issues to the incorporators a certificate, which is commonly designated as a charter, and the organization then becomes a corporate entity.
The Blue Sky law, appearing as §§ 751 et seq., C. & M. Digest, does not apply to these steps preliminary, to the organization of a corporation. The statute relating’ to the organization of corporations does not require that all the stock authorized shall he subscribed before the Secretary of State shall issue the certificate of incorporation, but, after the corporation is organized and has become an entity, it comes within the operation of the Blue Sky law, and cannot sell its unsubscribed stock without first complying with the laws of the State governing such sales.
As we have said, the notes sued on were executed for the stock of a corporation, and, upon the authority of the Randle case, su/pra, the transaction was void, unless the bank acquired them as an innocent purchaser.
Upon the proposition that one of the makers of the note had said that it was his note and would be paid, it suffices to say that the law is, as stated in 13 C. J., § 451, p. 506, that “a party to an illegal contract cannot, either at the time of the execution of the contract or afterward, waive his right to set up the defense of illegality in any action thereon by the other party.” And at § 453 of the same authority it is said: “An agreement void as against public policy cannot be rendered valid by involdng the doctrine of estoppel.”
It was said in the case of Embrey v. Jemison, 131 U. S. 336, that contracts made in violation of the law were not rendered valid by renewals or by subsequent promises to perform, and that this defense was not for the benefit of the party to such a contract, but to maintain the policy of the law. Numerous cases to the same effect are cited in the brief of counsel for appellee. See also Faircloth v. DeLeon, 7 S. E. 640; Dunham v. Presby, 120 Mass. 285, 289; Cardoze v. Swift, 113 Mass. 250; American Mfg. Co. v. Crescent Drug Co., 73 Sou. 883; Wilde v. Wilde, 56 N. W. 724: Barton v. Port Jackson, etc., Co., 17 Barb. (N. Y.) 397; Cansler v. Penland, 48 L. R. A. 441; Pullman Palace Car Co. v. Central Transportation Co., 171 U. S. 138, 149; Coppell v. Hall, 7 Wall. 542; Wheeler v. Wheeler, 5 Lansing (N. Y.) 355; Hardy v. Smith, 136 Mass. 328, 331; Carter v. Bradley County Road Imp. Dists. 1 and 2, 155 Ark. 288.
The bank cannot therefore recover on these notes unless the showing is made that it acquired them as an innocent purchaser.
Testimony was offered by the bank tending to show that it acquired the notes in the usual course of business, for value, and before maturity, and without knowledge that they had been executed in violation of the Blue Sky law; but the court refused to submit this issue, upon the theory that they were void even in the hands of an innocent purchaser, inasmuch as they were executed in payment of stock which had been issued in violation of law.
In the case of German Bank v. DeShon, 41 Ark. 331, Judge Battle said: “It is true, as a rule, that a bona fide holder, who has received negotiable ‘paper in the usual course of business,’ as said by Mr. Daniel in his work on Negotiable Instruments, ‘is unaffected by the fact that it originated in an illegal consideration, without .any distinction between cases of illegality founded in moral crime or turpitude, which are termed mala in se, and those founded in positive statutory' prohibition, which are termed mala prohibita. The law extends this peculiar protection to negotiable instruments, because it would seriously embarrass mercantile transactions to expose the trader to the consequences of having the bill or note passed to him; impeached for some covert defect.’ But there is one exception to this rule, and that is, when a statute declares a contract void, it gathers no vitality by its circulation in respect to the' parties executing it, but it and the instrument evidencing it are void in the hands of every holder.” (Citing numerous cases).
It appears therefore that the right of an innocent purchaser of a negotiable instrument to recover cannot be defeated because the note originated in an illegal consideration, and that it is immaterial whether the illegality is founded in moral crime or turpitude, or in violation of a positive statutory prohibition, unless the statute prohibiting the act shall also declare that the contract on which the transaction was based is void.
It appears somewhat anomalous that a note may be based on an illegal or immoral consideration, or executed in. violation of a positive statutory prohibition, and yet be enforceable when held by an innocent purchaser, unless there is an express declaration that such a contract is void; while, on the other hand, a recovery will be denied, even to an innocent purchaser, if there is an express statutory declaration that the contract forming the consideration for the note is void, or that the maker thereof may make defense to the collection of the same in the hands of any holder, as in case of notes for patent rights, etc., .although the execution of such contracts themselves may not be either a crime or a misdemeanor. But the case of German Bank v. DeShon so declares the law. That was a suit on a note yoid for usury, and the right to recover was denied an innocent holder because usurious contracts are declared void-by the Constitution, although they are not made either crimes or misdemeanors.
. It follows therefore from the decision in the Randle case, supra, that the payee in a note executed in violation of the Blue Sky law cannot recover; but it also follows from the case of German Bank v. DeShon, supra, that the right to recover on such a note will not be denied an innocent holder because the Blue Sky law does not contain the declaration that contracts executed in violation thereof are void.
The judgment of -the court below will therefore be' reversed, with directions to submit to the jury the issue whether the bank is an innocent-holder thereof.
If, upon the retrial here ordered, testimony should be offered that the notes sued on were not in fact executed in violation of the Blue Sky law, as that statute is herein interpreted, that issue may also be submitted to the jury.
For the error indicated the judgment of the court below is reversed, and the cause is remanded for a new trial.
Hart and Humphreys, JJ., concur. | [
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Hart, J.,
(after stating the facts). This court has held that the defense of the statute of limitations may be interposed in equity by demurrer where the cause of action appears upon the face of the complaint to be barred, and1 does not disclose facts sufficient to remove such bar. Flanagan v. Ray, 149 Ark. 411, and cases cited.
Hence counsel for appellees seek to uphold the decree upon the theory that appellant is not.entitled to maintain this suit in equity. The complaint alleges that no administration was had upon the estate of G. J. Murphy, deceased, and that, upon the failure of the devisees named in the will to probate it, it became the duty of the appellant, as a creditor of the estate, to take out letters of administration with the will annexed, and probate her claim.
In answer to this contention, it need only be said that the claim of appellant was a contingent one, and could not have been probated until it became an absolute claim by the construction of the building by Guinn, the grantee of G. J. Murphy, in 1922. By the terms of the duebill Murphy was not to pay for his interest in the party wall until the building was constructed on his lot whereby the party wall was used.
In Bank of Hoxie v. Meriwether, ante p. 39, it was held that agreements of the sort in question in- this case'creáte a covenant running with the land, and that a charge is created in the nature of an equitable lien upon the lot upon which the wall was erected, . which is enforceable in equity against the grantee -of the contracting party when a building is constructed under the terms of the agreement.' The fact that the agreement of Murphy to pay Ms part of the construction of the party wall when a building was erected on his lot, constituted a covenant running -with the land1,' so that there existed1 an equitable lien against his grantee, is entirely independent of the liability of Murphy. Murphy became liable because he bound himself, by his contract, to pay for the party wall when a building was constructed upon his lot.
The fact that the agreement constituted a covenant running with the land shows that the claim of Shamblee against Murphy was a contingent one. Under the terms of the agreement Murphy was not to pay his part of the cost of the construction of the party wall until a building was erected on his lot. His contract created a debt payable only in the future, upon a contingency, and that was that he or his grantee should construct a building upon his lot, and thereby make use of the party wall. Hence Shamblee only had a contingent claim against the estate. Under the agreement, the construction of the building would make what was before a contingent claim an absolute one. Such act would fix the time of payment and thereby make the liability absolute. Hence if letters of administration had been taken out, appellant, as successor to the rights of Shamblee, could not have proved his claim against the estate of G. J. Murphy until after Guinn had constructed the building on the lot, in June, 1922.
• So long as it remains uncertain whether a contract will ever give rise to an actual liability, and there is no means of removing the uncertainty by calculation, such contract is not provable as a debt against the estate of the contracting party. Walker v. Byers, 14 Ark. 246; Burton’s Admr. v. Lockert’s Ex’ors., 9 Ark. 411; and Evans v. Hoyt, 153 Ark. 334.
As we have already seen, Guinn did not construct the building on the lot until June, 1922. The present suit was commenced on the 15th dav of May,.1923. G. J. Murphy died on June 9, 1917. Thus it will be seen that appellant brought her action within ten months after it accrued and within less than seven years after Murphy died. Hence it cannot he said that she was guilty of laches in asserting her rights.
Another objection is that equity was not the proper forum in which to bring the suit. We cannot agree with counsel in this contention. The right of a creditor to proceed in equity against the heirs or devisees of a decedent who have received his estate, for a satisfaction of his claim, after the time limited for'probating it, is well settled in this State. Hall v. Breiver, 40 Ark. 433, and Wallace v. Swepston, 74 Ark. 520.
No exceptions were taken to the decree in the chancery court, and appellees insist that, without such excep.tion, no objection can be properly raised to it in this court. The rules of chancery practice do not require that exceptions should be taken to the various rulings of the court made in the progress of the cause, or to the final decree itself. The entire proceedings are matters of record, and appeals from the chancery court to this court are tried de novo without the taking of technical exceptions. Lemay v. Johnson, 35 Ark. 225; Western Coal & Mining Co. v. Hollenbeck, 72 Ark. 44; and Fletcher v. Simpson, 144 Ark. 436. To the same effect see 3 C. J., par. 808, p. 908.
The result of our views is that the decree will be reversed, and the cause remanded with directions to overrule the demurrer and to enter a decree in accordance with this opinion. | [
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Hart, J.
City of Hope brought this suit in equity against J. IVf. Dodson, as tax collector of Hempstead County, Arkansas, to enjoin him from collecting taxes on certain real estate owned by the city of Hope, described in the complaint.
It was claimed that the property was exempt from taxation, and the court sustained the exemption as to all the property described in the complaint, except forty acres of land known as the fair-ground property, and block 22. As to this property it was decreed that the complaint should be dismissed for want of equity, and to reverse the decree in this respect the city of Hope has prosecuted this appeal.
John P. Yeasey, the mayor of the city of Hope, was the principal witness in the case. According to his testimony, the city of Hope owned forty acres of land situated within its corporate limits, known as the fair-ground property. The property is inclosed by a wire fence, and has on it a racetrack and buildings for exhibits of different kinds of fairs. It has also barns and stables used for keeping stock exhibited at fairs. No fair has been • held on the ground since 1917. Since that time the land has been used for the purpose of holding track meets and agricultural exhibits, and as a place for keeping about six head of stock belonging to the city; which are worked on the streets. The city does not charge anything for the track meets and agricultural exhibits held on the property. The city owns its own water ¿nd light plant, and uses block 22 as a storage ground for wood used as fuel in its water and light plant. There is also a bandstand in the center of it, and in the summer time it has been used as a band park and for public gatherings of ' different sorts.
The only question in this case is whether the property above described is liable to taxation.
Our Constitution expressly exempts from taxation public property used exclusively for public purposes. Article 16, § 5, of the Constitution of 1874.
Our statute authorizes municipal • corporations to construct or acquire waterworks and works for lighting the streets and other public places by gas, electricity, or otherwise. Crawford & Moses’ Digesit, §§ 7563-7565', and Y 4034-4041.
Block 22 is used by the city for storing wood to be used in running the engines of its water and light plant situated on an adjoining block. Thus it will be seen that block 22 is directly connected with and is a part of the water and' lighting system of the city. It is generally held that a waterworks system owned and operated by a municipality is public property devoted to a public use, and, as such, entitled to exemption from taxation. Commonwealth v. Covington, 128 Ky. 36, 14 L. R. A. (N. S.) 1214; 107 S. W. 231; Augusta v. Augusta Water Dist. 101 Me. 148, 63 Atl. 663; Wayland v. Middlesex County, 4 Gray (Mass.) 500; Perth Amboy v. Barker, 74 N. J. L. 127, 65 Atl. 201; Smith v. Nashville, 88 Tenn. 464, 7 L. R. A. 469; Rochester v. Rush, 80 N. Y. 302; West Hartford v. Water Commissioners, 44 Conn. 360; State v. Toledo, 48 Ohio St. 112; and Stiles v. Newport, 76 Vt. 154, 56 Atl. 662.
The same rule applies to electric -light companies, and, in all cases of this sort where the primary and principal use of which the property is put is public, the mere fact that an income is derived from it does not affect its character as property devoted to public use. Traverse City v. Blair, 190 Mich. 313, 157 N. W. 81, Ann. Cas. 1918E, p. 81; Swanton v. Highgate, 81 Vt. 152, 16 L. R. A. (N. S.) 867, and see generally cases cited in 3 A. L. R., p. 1445 et seq.
Cities and towns are. political corporations, and, under our Constitution, local subdivisions of the State Government, and exist only for public purposes. Hence property held by a municipality in connection with its governmental functions is within the tax exemption clause of our Constitution exempting public property used exclusively for public purposes.
This brings us to a consideration of the forty acres of land known as the fair-ground property. This appeal does not raise the issue of whether or not a city has the authority to purchase ground and erect necessary buildings thereon to be used for holding fairs.
The evidence on this point is that the property has not been used for holding fairs since 1917. According to the testimony of the mayor, the property was used for a fair ground, public park, and a barn for keeping stock used by the city and worked by it exclusively on the streets. He further stated in detail that, at the present time, the property was used by the city for track meets and agricultural exhibits, and, in addition, for the keeping of the stock of the city as above stated.
As we have already seen, our Constitution, exempts from taxation public property used exclusively for public purposes. In discussing this provision of the Constitution, in School District of Fort Smith v. Howe, 62 Ark. 481, Mr. Justice Riddick, speaking for the court, said:
“It' seems clear that the intention was to exempt only that public property which in itself directly sub-served some public purpose by actual use, as distinguished from property belonging to the public but not used by it, and from which a benefit accrues to the public, not by the immediate use thereof by the public, but indirectly through selling or renting the same to private parties.”
In Robinson v. Indiana & Arkansas Lumber Manufacturing Co., 128 Ark. 550, the court recognized that, where the primary use to which the property is put is a public one, it is exempt from taxation' under our Constitution.
Public parks- are essential to the health, comfort and pleasure of the citizens of a city. It is therefore generally held that public parks, maintained at the public’s expense, are within the terms of constitutional provisions exempting from taxation public property used for public purposes. 3 McQuillin on Municipal Corporations, §§ 1115, 1154; Dillon on Municipal Corporations, 5 ed., §§ 976, 1096; Owensboro v. Commonwealth ex rel. Stone 105 Ky. 344, 44 L. R. A. 202; Laird v. Pittsburgh, 205 Pa. 1, 61 L. R. A. 332; People ex rel. v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; and People ex rel. v. Detroit, 28 Mich. 228, 15 Am. Rep. 202. See also Norman v. Kentucky Board of Managers, 93 Ky. 537, 18 L. R. A. 556.
The property in question was situated within the corporate limits, and was not used for any purpose of private gain. The idea of a public park in a city is that it is a place of resort of the people generally for recreation and amusement. The evidence shows that the property was used as a public park, and more particularly for track meets. It is fairly inferable, however, that it was used and kept for the recreation of the citizens. The use of it to exhibit the resources and progress of the county was in the nature of a public use which was calcuted and intended to. benefit the city. Besides this, the property was used for keeping the stock of the city which were used in working the streets. No element of private gain entered into the use of the property at all, and we are of the opinion that’ it was used exclusively for public purposes within the meaning of the Constitution, and therefore exempt from taxation. Of course if, at any time in the future, it should be used by the city for the purpose of private gain, it would-become subject to taxation.
The result of our views is that the decree must be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. | [
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McCulloch;, C. J.
Appellant’s intestate, "William Moore, came to Ms death while working as a fireman in the service of appellant, Fort Smith, Suihiaco & Eock Island Eailroad Company, and this is an action against said appellant and also the other appellant, Chicago, Eock Island & Pacific Eailway Company, to recover damages arising to the next of kin as well as to the estate of the decedent. There was a withdrawal of the claim for damages for the benefit of the estate, and the case proceeded1 to’trial on the claim of damages for the benefit •of the next of kin, and the trial resulted in a verdict in favor of appellee.
Appellant, Fort. Smith,- Subiaco. & Eock Island Eailroad Company, operates a short line of railroad from Ola, a point on the line of the Chicago, Eock Island & Pacific Eailway, to Paris, Arkansas, and, by agreement, it used the station facilities and switch tracks of the Eock Island at Ola. At that place there is a sidetrack running parallel with the main track on the north and another track on the south, called the house track. The switches of each of these two sidetracks are near,together at a viaduct over the tracks west of the station.
The decedent was a fireman, and his train was being made up about 6:30 o’clock on the morning in question. In mailing up the train, both of these sidetracks, as well as the main track, were used in assembling the cars, and there was testimony that the train was being worked hurriedly on account of the expected arrival of the westbound passenger train on the Eock Island. It is undisputed that there were interstate cars in the train being made up, and that the trainmen were therefore engaged in interstate commerce, which brings the question of liability within' the operation of the Federal Employers’ Liability Statute.
Shortly before the expected arrival of the passenger train, the engine of Moore’s train headed, but of thenorth sidetrack, pulling three or four cars, and Went onto the. main track of the Eock Island, and thence backed in on the house track for the purpose of coupling to a car or string of cars on that track. There is a little uncertainty in the testimony as to what particular cars were to be coupled into the train, but there is testimony that there was a string of twelve cars' standing on the track, and that Little, the rear brakeman, was standing on that string of cars, giving signals. Scott, the head brakeman, was standing on the ground receiving signals from Little and transmitting them to Eeed, the engineer, who moved the train on signals from the brakemen. The conductor was in the caboose, or baggage car, at the time, and did not supervise any of the movements of the train.
There is a water tank at Ola, which stands between the main track and the north sidetrack, and water can be taken by engines on either of those tracks. There is some testimony to the effect that Moore’s engine was to take water at that tank after it came out of the house track and backed in on the north passing track, and there is also evidence that it was the duty of the fireman to prepare a certain compound to be placed in the water, as it was transferred from the tank to the tender, in order to soften it — the water being considered injurious to the boilers. The theory of appellee is that Moore was standing on the top of the tender, with a bucket, mixing the compound, preparatory to taking water at the tank, and that he was thrown from the engine by a violent impact of the cars attached to 'the engine and against the cars standing, on the sidetrack. It is not certain that any one •saw Moore fall from the engine, but the engineer, Eeed, testified that, as he backed in on the house track and about the time that he made the coupling with the other cars, he saw something disappear from the rear end of ■ the tender, and at once threw on the emergency brake and stopped the train within three or four feet. As soon as the train was stopped, one of the brakemen found Moore’s body under the rear trucks of the tender, and • he was dead as soon as they could back the engine from off his body. Two of his fingers were cut off, and they wére found back about twenty feet, as well as his gloves, and several witnesses testified that there was blood on the track for a considerable distance in front of the engine, one of the witnesses said a distance of seventy-five feet.
The engineer and the brakeman testified that the train was backing in at a speed of about two miles an hour, and that there was no unusual jar or jerk, and that the impact against the other cars was slight and not unusual.
In the complaint several charges of negligence were made, particularly the charge of negligence on the part of the engineer in backing in at an unusual speed and in bumping against the other cars -so as to make a violent impact which caused Moore to fall from the train. It is also alleged that the company was guilty of negligence in employing Reed, an unskillful engineer. It is also charged that the brakemen were guilty of negligence in failing to give proper signals. The suit is against both of the railroad companies, and liability against the Chicago, Rock Island & Pacific Railway Company is sought to be established on account of the fact that it permitted its track to be used by the other company.
It is earnestly insisted, in.the first place, that the judgment should be reversed and the cause dismissed, on the ground that the case is fully developed and that .the evidence is not legally sufficient to sustain the verdict. The contention is that there is no evidence that the train was backed in on the house track at an unusual rate of speed or that there was an unusual jerk or impact, or that there was any other negligence. It is •also contended that there is no evidence that Moore was thrown from the train. It is also contended that the undisputed evidence shows that Moore assumed the risk.
Upon a careful analysis of the testimony we have reached the conclusion that there is sufficient to warrant submission to the jury of the issue of negligence on the part of the engineer in backing the train on the house track at an unusual speed, so as to cause an unusually severe impact and cause Moore, the fireman, to fall from the tender, and we are also of, the opinion that there is sufficient evidence to show that Moore was standing on the tender, in the performance of his duty with respect to mixing the compound, and that he did not assume the risk, and was not guilty of contributory negligence. It is true that the engineer and the two.brakemen testified that the train was 'backed in at a speed of only two miles an hour, that there was no sudden or unusual jerk or impact, but tlie engineer testified that he saw an object disappear from the top of the tender, and that he at once applied the emergency brake and stopped the train, whereupon the body of Moore was found under the tender. Now, the jury might properly have drawn the inference that it was Moore’s body that disappeared from the top of the tender as he was thrown off, and the jury might have found, from the statement of the witness, that this was at the time of the impact when the coupling was made.- 'To this extent the jury might have credited the testimony of Eeed, the engineer, but they-might also have rejected his testimony to the extent of the statement that there was no unusual impact or jerk, and that he was able to stop the train within three or four feet. The testimony of other witnesses showed that Moore’s body was* dragged as far as seventy-five feet, and, if that were true, it operated as a contradiction of. the testimony of Eeed in his statement that he stopped the train within a distance of three or four feet after he saw the object disappear from the top of the tender. The jury might therefore have found that Moore was standing on the top of the tender, in the performance of his duty, that the engineer was guilty of negligence in moving the train at an excessive rate of speed, and that Moore was thrown from the tender on account of.the unusual impact, and his body dragged a considerable distance. It was also a question for the jury to determine whether or not Moore assumed the risk or • was guilty of negligence in standing on the top of the tender.
■ There was much testimony adduced by appellant to the effect that it was customary for the fireman to- mix the compound on the deck of the locomotive, ¡but this did not make a case of negligence as a matter of law for the fireman t'o stand on top of the tender to perform that duty. It was a question for the jury, after, all., to determine that issue. The bucket of compound was found, mixed, on top of the tender, and there is evidence that the trainmen were getting ready to go in on the other track to take water, and that, together with the testimony of the engineer that he saw an object disappear from the top of the tender, is sufficient to warrant the inference that Moore was standing there, performing the duty mentioned above, when he was thrown from the train. There was no error therefore in submitting the issue to the jury on this charge of negligence.
We are of the opinion, however, that the court erred in submitting the issue as to negligence of the company in employing an unskillful and incompetent engineer, and that the court also erred in submitting the issue as to negligence on the part of the brakeman in failing to give the proper signals. There is no testimony in the record to warrant a submission of either of those issues to the jury, and appellants objected to the instructions submitting those issues, and saved proper exceptions.
According to the testimony of Reed himself, he had served an apprenticeship as a fireman for about two and a half years on the main line of the Chicago, Rock Island & Pacific Railway Company, and, when he left the service of that company and took service with the Fort Smith, Subiaco & Rock Island Railroad Company, he was examined as to his qualifications as an engineer on that road. He ran extra for a while, and made several trips, and had been a regular engineer on the railroad for some time before the occasion now under consideration. • There is no testimony to contradict this, and no testimony that Reed had ever been guilty of any negligent act, unless it be found that he was negligent on this particular occasion. In order to render the company liable on this issue, it is necessary to show that it negli gently employed an unskillful and incompetent servant, and there is no testimony at all to show that Reed was incompetent and that such incompetency was known to his employer, or should, by the exercise of reasonable care, have been known. This could not be proved by the mere occurrence of a negligent act on this particular occasion. Nor is there any testimony in the record tending to establish negligence on the part of either of the brakemen. They testified that they were in their proper places, giving signals, and there was absolutely no contradiction of their testimony. It was error to submit these issues, and the error was prejudicial, for there is no way of determining what influence it may have had upon the verdict of the jury. St. L. I. M. & S. Ry. Co. v. Kimbrell, 111 Ark. 134; Hight v. Sharp, ante, p. 424.
There are numerous assignments of error with respect to the court’s charge, but, as the same questions may not arise on another trial, we deem it unnecessary to discuss them.
There is no liability on the part of the Chicago, Rock Island & Pacific Railway Company, for the reason that it had no connection with the employment or with the service of Moore, who was an employee of the other railroad company. The fact that the Fort Smith, Subiaco & Rock Island Railroad Company was permitted to use the track of the Chicago, Rock Island & Pacific Railway Company does not render the latter responsible for damages to servants of the former company on account of negligence of its own servants.
The judgment against both companies is therefore reversed, and the cause will be dismissed as to the Chicago, Rock Island & Pacific Railway Company and remanded for a new trial as to the Fort Smith, Subiaco & Rock Island Railroad Company. It is so ordered. | [
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Smith, J.
Appellant was indicted for having burned the barn of W. J. Wright on the night of July 18, 1922. At his trial he was found guilty, and sentenced to a term of two years in the penitentiary, and, to reverse that judgment, has prosecuted this appeal.
He first insists that the testimony was not legally sufficient to sustain the conviction. The testimony tending to support the verdict was to the following effect: After a proper foundation had been laid for the introduction of the testimony of W. J. Wright, who had died since a former trial, which had resulted in a mistrial, his former testimony was read. Wright discovered his barn was afire a few minutes after eleven o’clock on the night of July 18, 1922. The fire originated in a loft where a lot of shucks were stored. He suspected that the firo was of incendiary origin, and excluded all persons from the lot inclosing- the barn. A bloodhound was brought to the scene of the fire about 3:30 on the afternoon following the fire. Tracks were found made by a person who had been to the barn, and who had jumped over the fence as he left the lot. These tracks were measured, and the dog was put on that trail. The ground was sufficiently wet for the tracks to be plainly visible, and were made by a man wearing a No. 7 or 8 shoe. The party making these tracks traveled by a very circuitous route, which led in an unusual way, and were followed by the dog to appellant’s house. These tracks were measured about every two hundred yards, and were found to coincide with the track measured at the barn. There were places where the tracks indicated that the man who made them had lengthened his stride. The last measurement of the track was about 40 feet from appellant’s house, and was found to coincide with all the others. The distance from appellant’s house to the barn was only a quarter of. a mile, yet the trail followed by the dog covered a, much longer distance. The occupants of appellant’s house saw the party coming as they approached it, and were observed to be watching the sheriff and his party, who were following* the d'og. The members of the sheriff’s party thought appellant was about to leave the house by the back way, but appellant came to the officer when he was called. Appellant was barefooted at the time. The conversation between appellant and the officers made it apparent that appellant knew he was being’ arrested for burning* the barn. Shoes. No. 7 or 8 in size, were found, but they were not measured because the party who found them did not have the measure at that time. One member of the sheriff’s party testified that appellant remarked, “I knew, when they °'">t the'dog*, they would get me.” Another witness testified that he saw appellant near the place where the barn burned, after the fire, and' that he was barefooted at the time, and that he had never seen appellant barefooted before or since.
The dog which followed the trail was shown to have been properly trained and handled. Fox v. State, 156 Ark. 428.
Floyd Ward testified that lie saw appellant at the church the night of the fire, and that appellant ashed him, while thejr were both at church, to assist him in burning the barn. Appellant stated at the time that Wright was talking too much. This remark related to comments Wright was making about a certain burglary which had been recently committed in the neighborhood. This conversation occurred about an hour before the fire, and the church was about a mile and a half from the. barn.
There were certain other circumstances tending, in some degree, to corroborate the testimony recited.
It was the theory of the defense that Floyd Ward had himself burned the barn. But, without setting our-the testimony on that phase of the case, it suffices to say that the truth of this testimony was a question for the jury, and that the testimony recited is legally sufficient to sustain the conviction.
It is asserted that a juror who served at the trial was ineligible to serve for the reason that he had not paid his poll tax. It does not appear, however, that the juror imposed himself on the court and defendant by representing that he had done so, and this question cannot be raised after trial, when the defendant did not avail himself of the opportunity, on the examination of the jurors on their voir dire, to ascertain if they possessed this qualification. James v. State, 68 Ark. 464; Teel v. State, 129 Ark. 180.
. The court gave a very comprehensive charge to the jury, to which no exception appears to have been taken, except to instruction numbered 6, which reads as follows : “The defendant’s plea of not guilty to the charge contained in this indictment carries with it every legal defense which he may seek to. interpose; and the evidence has been introduced on behalf of the defendant for the purpose of establishing an alibi; that is, at the time of the burning of the barn, as alleged in the indictment, he was at some other place, by reason of which it would have been impossible for him to have committed the crime. While the burden of proof is upon the State to establish the guilt of the defendant by the evidence in the case beyond a reasonable doubt, it is incumbent upon the defendant to sustain his alibi by evidence which raises in your mind a reasonable doubt that he was present at the time and place of the alleged commission of the offense.”
The objection to the instruction is that it cast upon the defendant the burden of showing, beyond a reasonable doubt, that he was not present at the time and, place of the commissioh of the crime, before he could be acquitted on his alibi defense.
The instruction told the jury that the burden was on the State to establish the guilt of the accused beyond a reasonable doubt. Th'e instruction also told the jury that the.burden of proving'an alibi was on the defendant, but, while this burden is incumbent on the defendant, it is discharged if such evidence raises a reasonable doubt that the defendant was present at the time and place of the alleged commission of the offense. In other words, the proof of an alibi is an affirmative defense, but it is established and is sufficient to require an acquittal if the evidence tending to establish it raises in the minds of the jury a reasonable doubt that the defendant was present at the time and place of the alleged commission of the offense. The instruction given conformed to the law as announced in the case of Morris v. State, 145 Ark. 241.
No error appears, so the judgment is affirmed. | [
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Wood, J.
These actions were instituted in the Logan Circuit Court, February 21,1923, by the respective plaintiffs below (appellees here) against the respective defendants below (appellants here). The actions were to recover on fire insurance policies issued by each of the respective appellants in favor of one F. L. Donothan, a resident of Booneville, Arkansas. The policies covered a theater building and its equipment. ' The appellants are foreign insurance companies doing business in this State, and had an insurance agency at Booneville through which these policies were negotiated.
The property insured was destroyed by fire on January 26, 1923. On the 30th of January, 1923, Donothan, the insured, for a valuable -consideration, assigned the policies to the appellees, with the express consent of the appellants indorsed1 thereon. On the 8th or 9th of February, 1923, the terms of the policy as to notice and proof of loss were duly complied with. The amount due under the policies was payable in sixty days after proof of loss.
On February 12, 1923, an action was instituted in the district court of Oklahoma County, Oklahoma, by the Vitograph, Inc., against Donothan, for an alleged indebtedness on a contract in the sum of $600'. Writs of garnishment in that action were issued and served on the appellants, garnishees, to impound the proceeds of the policies in the hands of the appellants. Donothan, the defendant in the action, and at that time a citizen of Booneville, Arkansas, was served with process according to the statutes of Oklahoma. The garnishees, appellants, were likewise duly served with process in the Oklahoma action, and they answered alleging that they were not in any manner indebted to Donothan, the defendant in the action, and did not have any real estate or personal effects in their possession in which he had an interest. They denied liability to him, and further set up that the court was without jurisdiction, and that the proceeds of the insurance policies issued to Donothan were not subject to garnishment.
Thereafter, on March 24, 1923, the appellants filed their amended answers in the Oklahoma suit, in which they set up that they were liable for loss on the policies issued to Donothan, and that an action had been instituted against them by the appellees, assignees of the policies, in Arkansas, to recover said loss, and that they had on hand the proceeds of the amounts due under the policies, which they held subject to the garnishments and assignments mentioned. They alleged that, since the service of the writs of garnishment upon them, the assignees of ’the policies, the appellees herein, had brought suit in Logan County, Arkansas, to recover the' sums due under the policies, and they prayed that the appellees be required to interplead in the Oklahoma suit, to the end that “the rights of all parties may be adjudicated in this ■action, and that these garnishees be not vexed with two suits for the same debt and be compelled to pay the same twice. ’ ’
The appellees were thus made parties defendant to the Oklahoma suit, and were duly served' with process in that action under the Oklahoma law, and directed to answer within twenty days after such service. The defendant Donothan and the appellees failed to' appear and plead in the Oklahoma action, and they were adjudged by the Oklahoma court, on May 5, 1923', to be in default. The cause in.the Oklahoma court came on for trial on May 7,1923, and judgment was rendered in that'action in favor of the plaintiff, the Vitograph Incorporated Company, against the defendant Donothan, in the sum of $600, with interest, total $668.30.
The court also rendered judgment against the appellants. Against the Philadelphia company in the sum of $368.88, and the Hartford company in the sum of $645.55, an aggregate sum of $1,014.43, as the proceeds of the policies in their hands as 'garnishees, and commanded them to pay the sum of $668.30 into court, and also the sum of $72 to cover interest pending an appeal in the Oklahoma Supreme Court, amounting in the ■ aggregate to the sum of $740. The Oklahoma court, in its judgment, further. ordered that the appellees, who were interpleaded and made defendants in that action, be forever barred from any right or interest in the proceeds of the policies to the extent of the above judgmént. The appellant insurance companies duly prosecuted their appeal from the judgment of the Oklahoma district court to the Supreme Court.
At the beginning of tbe trial of this action, tbe appellants tendered the appellee in open court tbe sum of $274.13 in settlement of all claims against tbe appellants, tbe amount being tbe balance of tbe proceeds of tbe • policies in tbeir bands over and above tbe amount of tbe Oklahoma judgment. In tbeir answers in this action the appellants pleaded tbe disclaimer and interpleader statutes of Oklahoma, pursuant to which tbe Oklahoma action and proceedings were prosecuted, and also pleaded tbe judgment of tbe district court of Oklahoma in bar of tbe present action to tbe extent of that judgment.
There was testimony on behalf of tbe appellees to ¡the effect that Elkins was tbe local agent of tbe appellants at Booneville, and issued tbe policies to Donotban; that tbe property covered by tbe policies was destroyed by fire about tbe 26th of January, 1923. He consented, acting for tbe appellants, to tbe assignment of the policies by Donothan to the appellees after tbe loss occurred. A few days after the assignment of tbe policies, a man by tbe name of Kincannon came to see witness, to get him to give tbe name of tbe companies issuing tbe policies. Witness refused, and told him tbe policies bad been assigned to the appellees;
r Witness Kincannon testified that be was an attorney at law in Booneville, Arkansas; that, a few days after tbe loss covered by the policies, a man by tbe name of Myers, claiming that be represented the Vitograph Inc. Company, came to see witness. He retained witness’ services. Witness interviewed Elkins, tbe local agent of tbe appellants, to ascertain the names of tbe companies issuing tbe policies, in order to determine whether they bad made an adjustment, and witness was advised by Elkins that tbe policies bad been assigned.
' Chas. I. Evans testified that be was an attorney at law at Booneville, Arkansas, and that be bad a conversation with Myers a few days after tbe assignment of tbe policies to tbe appellees. Myers claimed to be representing tbe Vitograph Inc., and stated that be was going to garnish the insurance money belonging to Donotban. Witness told Myers that the policies had been assigned to the appellees.
It was shown by the cashiers of the respective appellees that they paid Donothan a valuable consideration for the assignment of the policies. Donothan testified that he.was a resident of Booneville, Arkansas, at the time the suit was instituted against him in Oklahoma by the Yitograph Inc. Company, and he was notified of the pendency of that suit. At that time he didn’t have any property in the State of Oklahoma.
The causes were consolidated and tried upon the above facts, before the court sitting as a jury. The court-rendered a judgment in favor of the appellees against the appellants amounting in the aggregate to the sum .of . $1,038.15', from which judgment is this appeal.
1. The appellees contend, as stated by their learned 'counsel, that they had the right to maintain their suits in the Arkansas court, upon Arkansas contracts, by which contracts the appellants in this case had promised to pay'the banks the amount sued for; that these suits are simply suits on contracts between the appellants and the appellees, by which the appellants are liable to the appellees, regardless of the prior garnishment proceedings and judgment thereon against them in the Oklahoma court. This contention of learned counsel for the appellees is unsound, and cannot be sustained, for the reason that, after the loss on the policies occurred, the appellants merely assented to the assignment of those policies by Donothan, the insured, to the appellee. No consideration moved from the appellees to the appellants for such an assignment, and there was no contract between the appellees and the appellants by which the latter, for a valuable consideration, agreed to pay the loss that had accrued under the policies to the appellees. The contract of assignment was after the loss had accrued, and was between the appellees and the insured, Donothan. The effect of the assignment after the loss had occurred and the proof and adjustment thereof, was to transfer Donothan’s cause of action and rights under the policies to the appellees. The assignment simply placed appellees in Donothan’s shoes — it did not vest the appellees with any other or greater rights under the policies against the appellants than Donothan himself would have had.
Appellees’ pleadings show that their right of action as assignees against the appellants was predicated on the policies or contracts of insurance between their assignor, Donothan, and the appellants, and not on any separate contract between the appellees and the appellants, for, as we have stated, there was none, and could not have been any by the mere assent to the assignment after the loss had accrued.
2. The next question is, did the action instituted by the Yitograph Company against Donothan on the 12th of February, 1923, and the issuance and service of writs of garnishment in that action against the appellants in the district court of Oklahoma, and the interpleading by the appellants of the appellees, give the Oklahoma district court jurisdiction to render the judgment therein against tbe appellee's? The statutes of Oklahoma give any creditor the right to proceed by garnishment against any person who shall be indebted to, or have any property, real or personal, in his possession or under his control belonging to such creditors, and, on service being had as provided in the statute, to enter and collect judgment against the garnishee as in attachment and garnishment proceedings. Sections 353-356, c. 3, art. 9, Compiled Statutes Oklahoma, 1921.
Section 366 gives the garnishee the right to inter-plead any other person than the defendant who claims the indebtedness on the property in' the garnishee’s hands, by disclosing in its answer the name and residence of sucb claimant, and gives the garnishee the right to make sucb claimant a party defendant to the action and to have him served with process, and, after such service, the garnishee may pay or deliver the indebtedness or property into court and be discharged from all liability for the amount paid or property so delivered. Under this statute, upon service being had upon the party interpleaded, such party shall be deemed a defendant to the garnishee action, and is required to file an answer within twenty days, setting forth his claim or any defense which the garnishee might have made, and, in case of default, judgment may be rendered which shall conclude any claim upon the part of such defendant. It thus appears that, under the laws of Oklahoma, the Vitograph Company had the right to institute this action in the district court of Oklahoma against Donothan, its debtor, and to garnish the appellants; and also that the appellants, as garnishee's, in their answer had the right to disclose that the appellees were claiming the indebtedness, and to have them inter-pleaded and made parties defendant in the district court of Oklahoma. All this was done, as the undisputed facts above set forth show, before the appellees instituted this action in the Logan Circuit Court against the appellants to recover on the policies.
The Oklahoma statutory law on garnishment is in conformity with the law that obtains in our own and other State jurisdictions, and also as laid down by the Supreme Court of the United States. In Kansas City, etc., Ry. Co. v. Parker, 69 Ark. 401, it is said that “a situs of a debt for purposes of garnishment is not only at the domicile of the debtor, but in any State in which the garnishee may be found, provided the law of that State permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the State.” Stone v. Brake, 79 Ark. 384; Person v. Williams-Echols Dry Goods Co. 113 Ark. 467; Chicago, R. I. & P. Ry. Co. v. Sturm. 174 U. S. 710.
In Chicago, Rock Island Ry. Co. v. Sturm, supra, it is held: “The situs of the property in a debt can be changed only by the change of location of the creditor who is the owner thereof, or with his consent. * * * All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts as such have no locus or situs, but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere. ’ ’ And in Harris v. Balk, 198 U. S. 215, it is held, quoting syllabus: “Attachment is the creature of the local law, and power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues.”
But learned counsel for the appellees'say “the undisputed proof in the case shows that there was no res of Donothan within the jurisdiction of the Oklahoma court, and that Donothan was not within the jurisdiction of such court.” They contend that, inasmuch as Donothan had assigned the policies to the appellees, there was no longer any property in the State of Oklahoma belonging to Donothan and subject to the process of garnishment. The fallacy of this contention and argument is in the premise upon which it is predicated. The premise is unsound because it assumes that the amount of the debt due by the appellants on the policies of insurance was not the res, that is, property of Donothan in Oklahoma, subject to garnishment because of the assignment of the policies to the appellees. "Whereas the debt or amount due under the policies is the res, and, under the Oklahoma statutes and decisions, as well as our own, and the decisions of the Supreme Court of the United States, such debt was subject to the process of garnishment issued out of the Oklahoma court. As is said by the Supreme Court of the United States in Chicago, R. I. & P. Ry. Co. v. Sturm, supra, “The essential service of foreign attachment laws is to reach and arrest the payment of what is due and might be paid to a nonresident to the defeat of his creditors. To do it he must go to the- domicile of his debtor, and can only do it under the laws and procedure in force there. This is a legal necessity, and considerations of situs are somewhat artificial. If not artificial, whatever of substance there is must be with the debtor. He, and he only, has something in his hands. That something is the res, and gives character to the action as one in the nature of a proceeding in rem. To ignore this is to give immunity to debts owed to nonresidents creditors from attachments by their creditors, and to deny necessary remedies. A debt may be as valuable as tangible things. * * * Of course, the debt is the property of the creditor, and, because it is, the law seeks to subject it, as it does other property, to the payment of his creditors.”
Service was had upon Donothan, the nonresident of Oklahoma, under the garnishment law of that State, and also upon the appellants, as garnishees. This gave the Oklahoma court jurisdiction of the parties and of the res, or proceeds of the policies in the hands of the appellants, as between the Vitograph company, Donothan, and the appellants. The answer of the appellants in that suit and the service of process upon the appellee by which they were interpleaded and made parties defendant under the Oklahoma statutes, also gave the Oklahoma court jurisdiction to dispose of the whole matter as between the appellees and the other parties to the Oklahoma action, provided there was no collusion or fraud upon the part of the appellants and the Vitograph company by which the appellants, in their answer, failed to make a true statement of the facts and a full disclosure of the rights of the appellees as assignees of the policies; The testimony does not disclose any collusion between the appellants and the Vitograph company to defraud the appellees in any way. The Vitograph company had the right to select the forum for instituting its action against Donothan, and is not to be criticized or censured because it selected the forum most convenient to it, and where it could garnish the proceeds of the policies in the hands of the appellants. The answer of the appellants in the garnishment was a complete disclosure of all the rights of the appellees under the assignment of the policies, and appellants pursued to the letter the Oklahoma statute in giving appellees notice of the garnishment and praying that they be interpleaded and made parties defendant. There was, in short, no failure or negligence on the part of the appellants to perform their duty to the appellees. Appellants notified appellees of the garnishment, and set forth in their answer every fact concerning the right of appellees as assignees of the policies.
The case therefore differs vitally in this respect from the case of St. Louis & S. F. R. Co. v. Crews, 151 Pac. (Okla.) 879, upon which the appellees rely. Here every defensive matter was set np by the appellants in their answer to the garnishment that conld be set np to protect the rights of the appellee, which was not the case in Ry. v. Crews. The present action is likewise clearly differentiated on the facts from the case of Detroit Fire & Marine Ins. Co. v. Stewart, 123 Ark. 42, upon which the appellees rely. It would unduly extend this opinion to set forth and discuss the facts in detail. Suffice it to say, the garnishee in that case did not make a full disclosure of the facts so as to protect the rights of strangers to the garnishment proceedings,' and we held that the garnishees could not avail themselves of a judgment rendered against them as against the rights of third parties whose rights they did not disclose. In that case, among other things, we said: “It is the duty of the garnishee to make a full disclosure. of the facts, and, in the absence of such disclosure, it cannot plead the judgment in the garnishment proceedings as a'defense to a suit of a third person. * * * Defendant has not shown that it pleaded the facts in the garnishment proceedings, or even that it gave interested parties actual notice of the pendency of the proceedings, therefore it is no+ entitled fo plead the Texas judgment, for that reason, if no other.”
But here the appellants, as garnishees,- as we have, stated, fully set forth in their answer all the facts in the garnishment-action in the Oklahoma court affecting the appellees, and gave them notice of the pendency of that action, and had them interpleaded and brought into that action, so that appellees might protect their rights as assignees of the policies. In ignoring this action of the Oklahoma court, and in failing to appear there and set up their rights as the assignees of the policies; the appellees made their fatal mistake. The Oklahoma court had acquired jurisdiction of the parties and subject-matter before the appellees instituted their present action in the Logan Circuit Court. In addition to the authorities 'already cited, see St. Louis S. W. Ry. Co. v. Vanderburg, 91 Ark. 252; Citizens’ Bank v. Rudyard, 152 N. W. 1077; Stelzer v. Ry., 134 N. W. 573.
3. The judgment of the Oklahoma district court against the appellees, being in all things regular, is entitled to full faith.and credit in this action. St. Louis S. W. Ry. Co. v. Vanderburg, supra; Davis v. Patterson, 137 Ark. 187; Shaw v. Polk, 152 Ark. 18; State ex rel. Craighead County v. St. Louis, etc. Ry. Co., 162 Ark. 443; Howard-Sevier Road Imp. Dist. v. Hunt, ante p. 62. Appellees are bound by that judgment, and it is a bar to the maintenance of their action against the appellants to the extent of the Oklahoma judgment rendered in favor of the Yitograph company against the appellants. In addition to the authorities cited, see also B. & O. Ry. Co. v. Hostetter, 240 U. S. 620; Stelzer v. Ry. Co., 134 N. W. 573; Rothschild v. Burton, 25 N. W. 49, and other authorities to this point cited in appellants’ brief.
4. The appellants tendered to the appellees the balance due on the policies over and above- the Oklahoma judgment, together with costs, which the appellees refused to accept. It follows, from what we have already said, that the appellees were not entitled to any greater amount than the sum tendered. For the errors indicated the .judgment is reversed, and the cause will be remanded with directions to the trial court to enter a judgment in favor of the appellees against the appellants in the sum of $274.13, and the costs that had accrued up to the time of the tender. | [
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Hart, J.
Appellant prosecutes this appeal to reverse a judgment of conviction against him for the crime of carnal abuse.
It is conceded that the evidence is sufficient to support a verdict of guilty, and the only ground relied upon for a reversal of the judgment is that the court erred in refusing to allow to be read to the jury certain letters claimed to have been written by the prosecuting witness to a man other than the defendant.
The letters in question were exhibited to the prosecuting witness on her cross-examination, and she denied having written them, or that they were in her handwriting. She was asked to sign her name and transcribe certain portions of the letters, and did so. The defendant then offered to introduce the letters in evidence, and excepted to the ruling of the court that they were not competent. The letters tended to show that the prosecuting witness had been criminally intimate with a man other than the defendant.
The gist of the offense of which the defendant was convicted was that he carnally knew a female person under the age of sixteen years, in violation of the provisions of § 2720 of Crawford & Moses’ Digest. The question therefore of whether another man had been guilty of carnally 'knowing the prosecuting witness was collateral to the issue of whether or not the defendant was guilty of carnally knowing her.
It was competent to ask her, on cross-examination, whether or not she had written the letters, and also to ask the witness herself if she had not been criminally intimate with another man, for the purpose of discrediting her as a witness; but her answer in the negative should have been the end of the matter. The general rule is that, when a witness is cross-examined on a matter collateral ■ to the issue, his answer cannot be subsequently contradicted. Howell v. State, 141 Ark. 487; Rowe v. State, 155 Ark. 419.
It is next contended that the court erred in not admitting certain letters claimed to have been written by the prosecuting witness to Conway Lively, and the cases of McDonald v. State, 155 Ark. 142, and Rowe v. State, 155 Ark. 419, are relied upon.
In these cases it was held that a prosecution for carnal abuse of a girl under the age of consent, in which the prosecutrix exhibited to the jury a child to which she claimed to have given birth as the result of intercourse with the defendant, and was allowed to testify as to the particular qccasion*and time of the intercourse with the defendant when conception took place, exclusion of testimony that, about the same time, she was associating with others in a manner warranting a conclusion that they had opportunities for and may have had intercourse with her, was reversible error.
"We do not think, however, that the excluded letters brought the case before us within the limits of the rule. It is true that the prosecuting witness testified that she only had intercourse with the defendant one time, and that was oil the 24th of July, 1921, and that she never had intercourse with any other man.
It is also true that the child was horn on April 24, 1922, just nine months thereafter, and that the prosecuting witness was allowed to exhibit the child to the jury. The excluded letters, however, were dated in February, 1922, and, while they contained lascivious expressions upo,n the part of the writer, they do not refer to any act of intercourse at a time near that at which the child was conceived. Therefore the letters were not admissible as independent evidence to contradict the testimony of the prosecuting witness.
It follows that the judgment must be affirmed. | [
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Smith, J.
The question involved on this appeal is this: “Is real property, owned by husband and wife by entireties, subject to sale under execution to satisfy a judgment against the husband?”
At § 106 of the chapter on Husband and Wife in 30 C. J., page 572, it is said: “In some jurisdictions it is a rule that the interest of the husband in an estate in entirety during coverture may be reached by his creditors on execution; and the purchaser at the execution sale takes subject to the wife’s right of survivorship and to her right to possession, where that right is conferred or protected, either expressly or impliedly, by statute. But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other; a conveyance by the husband and wife jointly passes title to the property clear of any claim of creditors of the husband; a judgment against-one spouse alone is not, during the joint lives of the tenants of the estate, a lien on the land; and, during coverture, there can be no sale of any part on execution against either.”
Cases supporting’ both the minority and the majority rule are cited in the notes to the text quoted, and, among the cases cited as supporting what is stated to be the minority rule — that the interest of the husband is subject to sale under execution — is our case of Branch v. Polk, 61 Ark. 388, which is found annotated in 54 Am. St. Rep. 266, and 30 L. R. A. 324.
The question stated as being involved on this appeal was not directly involved in the case of Branch v. Polk, supra, but the reason given for the decision in that case is decisive of the question involved here.
The facts there were that Polk and his wife were tenants by the entirety of a tract of land, and each executed a mortgage in which the other did not join, conveying to Mrs. Branch an undivided half interest in the land to secure a note due from Mr. Polk to Mrs. Branch. Polk died, the note matured, and Mrs. Branch brought suit to foreclose both mortgages.
The trial court held that neither sponse was seized of any interest which could be conveyed unless the other spouse joined in the execution of the conveyance. Upon the appeal this court held that Mrs. Polk, having survived her husband, became the sole owner of the land, and that her mortgage deed was valid and binding as to the undivided half interest in said lands conveyed by her as security for the note executed by her husband.
It was there stated that, at the common law, the hus band had, during marriage, exclusive control of such estates, but that this authority of the husband did not. arise from any peculiarity of the estate, but arose out of the rule of the common law that, during coverture, the husband had the control of the estate of his wife, and the court proceeded to consider the question whether, under the law of this State, the wife had the power, during coverture, by a separate deed, to mortgage her interest in lands held by herself and her husband as tenants of the entirety.
After recognizing the conflict in the authorities, Mr. Justice Riddick, speaking for the court, said:
“In this State a married woman has full control of her separate property, and may convey and dispose of it as if she were a feme sole. Our Constitution and statute have excluded the marital rights of the husband therefrom during the life of the wife; Const. 1874, art. 9, § 7; Sandel & Hill’s Digest, § 4945; Neelly v. Lancaster, 47 Ark. 175; 58 Am. Rep. 752; Roberts v. Wilcoxson, 36 Ark. 355. We think that the effect of these provisions was to give the wife control of all the property owned by her, including her interest in an estate ¡by the entirety as well as other real estate. To say that it did not apply to an estate by entirety would be to deprive her of a share in the rents and profits of such an estate during the life of her husband, and would establish an exception to the operation of the Constitution and statute resting on no valid principle or reason. Riles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 766. On the other hand, to say that neither she nor her husband could convey any interest in such an estate except by a joint deed would tie up the estate, and prevent either of them from controlling or disposing of his or her interest without the consent of the other. It would also result in placing it beyond the reach'of the creditors of either of them, and such is the rule followed in several of the States. McCurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Naylor v. Minock, 96 Mich. 182, 35 Am. St. Rep. 595, and note.
“But it would seem that this rule is, to a certain extent, illogical, for, under it, the effect of the statutes giving married women control of their own property is also in.this instance to curtail the power of the husband over his own interest in real estate. The object of these laws was not to affect in any way the control of the husband over his own property. Their sole purpose was to give to the wife what she did not have at common law, the right to control and convey her own property as if she were unmarried. Mertles v. Numan, 92 N. Y. 152, 44 Am. Rep. 361.
“While such legislation has taken away the control of the husband over the interest of the wife in estates of entireties, as it has removed his control from her other property, yet it does not seem reasonable to hold that it also affected his right to control his own interest in such an estate, or that it exempted such interest from seizure by his creditors. As was said in Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52: ‘Any device of this character for the protection of the husband’s property from his creditors is unknown to the common law, and so contrary to public policy that it ought not to be ingrafted upon our system of laws, by internretation of the statute, unless the intent to do so is clearly expressed.’
“The rational construction of these provisions of our ’Constitution and statute, which ‘unrooted principles of the common law hoarv with age,’ swept away the marital rights of the husband during the life of the wife, and gave enlarged powers to married women, is, not that they lessen the power of the husband over his own interest in an estate by entirety, but that they deprive him of the control over the interest of the wife which he formerly exercised jure uxoris, and confer upon the wife the control of her own.interest. The right of the wife to control and convey her interest, we think, is now equal to the right of the husband over his interest. They each are entitled to one-half of the rents and profits during coverture, with power to each to dispose of or charge his or her interest, subject to the right of survivorship existing in the other. Hiles v. Fisher, 144 N. Y. 306; 43 Am. St. Rep. 762; Buttlar v. Rosenblath, 42 N. J. Eq. 651, 59 Am. Rep. 52.”
We have quoted extensively from Branch v. Polk in order that the reasoning of.that case may appear, for, as we have said, the legal principles which control the decision of the question here were announced there, although the question arose in a different manner.
We conclude therefore that the reason given for the decision in the case of Branch v. Polk, supra, is decisive of the question raised here, and that the interest of either spouse is subject to sale on execution, and, this being true, we do not stop to inquire whether this is the better rule or is supported by the greater weight of authority.
The court below held that the husband’s estate in the land was subject to execution, and refused to'quash an execution which had been levied upon it, and that judgment is affirmed. | [
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McCulloch, C. J.'
This is an action instituted by appellee against appellant to . recover for personal injuries., The injuries occurred at a suburb of the city of Muskogee, in the State of Oklahoma. Appellee was a fireman in the service of appellant. He had a regular day run in the operation of a train, and worked extra at night as hostler in the yards at Muskogee, the duties of that position being to prepare trains for road service. On the evening of the day before appellee received his injury he returned to Muskogee from his regular run, and was cálled to serve as hostler during the night. This work was finished early next morning, and, after riding on an engine from the roundhouse to the passenger station to put away the shovel with which he worked, he started for his home, riding an engine, from which he alighted while the engine was moving slowly, at a street near his home. He wore a pair of gauntleted gloves, which firemen were accustomed to wear, and, as he was about to alight, he took hold of the grab-iron on the edge of the tender, near which was an appliance called a globe valve, and, as he stepped off the engine, the gauntlet of his glove caught on some part of the valve, which caused him to swing around, and he fell to the ground. One of his legs was projected under the tender, and was run over by one of the wheels. It became necessary to amputate the leg below the knee.
Appellee charges that there was a general custom of long standing for employees to ride on the engines on their return to their homes after work, so that this privilege became a part of the contract of service, and that, while riding towards his home on this occasion, he was still in tlie service of his employer, and not a bare licensee or trespasser.
The engine on which appellee was riding w.as not actually engaged in performing an act of interstate commerce, but appellant is an interstate carrier, and it is claimed that liability of appellant falls within the control of the Federal statute known as the Safety Appliance Act. There is a rule of the Interstate Commerce Commission, adopted March 13, 1911, which prescribes that, on all locomotives in service, there shall be “a minimum clearance of two, preferably two and a half inches,” for all handholds, and the charge of negligence in this case is that the globe valve in question at the time of appellee’s injury was situated within less than two inches of the handhold on the tender, in violation of the- rules of the Commission. It is alleged in the complaint that the globe valve was placed in dangerous proximity to the handhold, and it is also charged that the valve was permitted to get out of repair so as to lessen the distance below the requirements of the Com mission. There was a denial of the allegations with respect to the charge of negligence, and there was a plea of contributory negligence on the part of appellee, and also a plea of assumption of risk.
. The action was instituted in the circuit court of Crawford County, and tried in that court.
The complaint contained an allegation that appellee was a citizen and resident of the State of Oklahoma, and that appellant is a Missouri corporation. There was a verdict in favor of appellee, assessing damages in the sum of $15,000. It developed from thé testimony adduced by appellee that, at the time of the trial, he had become a resident of Crawford County, in the State of Arkansas, and thereupon appellant filed its petition and bond for removal of the causé to the Federal court on the ground of diversity of citizenship. ' The petition was overruled, and that ruling constitutes the basis for appellant’s first assignment of error.
Counsel for appellant invoke the rule established by decisions of the Supreme Court of the United States that, where the jurisdictional facts upon which the right of1 removal exists do not appear from the face of the pleadings at the time the defendant in the action is called upon to plead, the petition may be filed at any stage of the proceedings when those facts aré shown to exist by the pleadings. Fritzler v. Boatmen's Bank, 212 U. S. 364; Great Northern Ry. Co. v. Alexander, 246 U. S. 276. The difficulty with appellant’s contention is that, according to recent decisions of the Supreme Court of the United States, the jurisdictional facts for removal existed under the original pleadings, in that the complaint charged that appellee was a citizen and resident of Oklahoma, and that appellant was a Missouri corporation. General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U. S. 261; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653. The contention therefore that the jurisdictional facts, according to the allegations of the original complaint, did not exist, is unfounded.
It is argued that, at the time of the commencement-of the action, under the decisions of the Supreme Court of the United States in the case of Ex parte Wisner, 203 U, S. 449, there was no right of removal under the facts charged, and that the law was subsequently changed by another decision of that court. This is not correct, for, under the decisions of the Supreme Court of the United States cited above, the law had always been, under the removal statute, notwithstanding what was thought to be the ruling in the Wisner case, that the facts set forth in the original complaint afforded jurisdictional grounds for removal of a cause to the Federal court. In other words, there was no change in the law at all between the time of the commencement of this action and the filing of the petition for removal, and the fact that counsel misconceived the state of the law at the time appellant was first required to plead did not avert the effect of the failure to appropriately petition for a removal as a waiver of that right. It follows therefore that the trial court was correct in denying the petition for removal.
It is next contended that the evidence is not legally sufficient to sustain the verdict, in that it fails to establish negligence on the part of appellant, and that it establishes beyond dispute that appellee was guilty of contributory negligence, and that he assumed the risk.
The plea of assumption of the risk may be easily disposed of on the ground that that defense is not available in an action involving a violation of the Federal Safety Appliance statute. It is clear that that statute applies in this case, and is the sole test of liability. Though the engine on which appellant was riding at the time of his injury was not actually engaged in interstate commerce at that time, the fact that the company was engaged in interstate commerce brings the case within the operation of the Federal statute so far as concerns the question of assumed risk. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33.
The first consideration in testing the sufficiency of the evidence is the particular relation which subsisted between appellant and appellee at tbe time of the latter’s injury, whether he was acting as an employee at that time, or whether he was, a trespasser or a bare licensee. The character of this relation depends upon the decisions of the Supreme Court of the United States, if any have been rendered on that question. Though the injury occurred in the State of Oklahoma, the test of all substantive questions relating to liability must depend upon the Federal statute and the interpretation thereof by the Supreme Court of the United States. N. O. & N. E. R. Co. v. Harris, 247 U. S. 367. No decisions of that court have been brought to. our attention directly deciding what the relation is upon the state of facts shown in this record, and we are therefore at liberty to look to the general principles of the law as announced by our own court- in determining what the character of that relationship was. According to our decisions, appellee was, under the facts shown, neither a bare licensee nor a trespasser, but was an employee within the line of his duty in being transported from his place of work to his home. Arkadelphia Lbr. Co. v. Smith, 78 Ark. 505; St. L. I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503; St. L. I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259; Chicago, R. I. & P. Ry. Co. v. Smith, 115 Ark. 473; Boyle-Farrell Land Co. v. Haynes, 161 Ark. 183. According to the evidence adduced, it was, at the time of appellee’s injury and for a long time prior thereto, the general custom for employees to ride on the engines from their places of work to their homes. This was done by the direction of the superior agents of the company in charge at Muskogee. • This custom became, impliedly, an element of the contract between the company and its servants at that place, and appellee was entitled to the privilege -as a part of his. contract. Boyle-Farrell Land Co. v. Haynes, supra. Appellee at that time, pursuant to that custom, had the right, under his contract, to ride, and was entitled to the same protection as that afforded to a passenger. St. Louis, I. M. & S. Ry. Co. v. Harmon, supra.
There was no evidence introduced as to the requirement prescribed by the Interstate Commerce Commission, but of that we take judicial, notice. K. C. S. Ry. Co. v. State, 90 Ark. 343; Cazort v. State, 130 Ark. 453. The failure to comply with the requirements .of the Commission created liability for any injury which proximately resulted.
This brings us to a consideration of the' principal contention in the case, that the evidence does not show any negligence in failing to comply with the rules of the Commission with respect to the clearance distance between the globe valve and the grab-iron. Appellant introduced numerous witnesses who testified that the valve was affixed to the wall of the tender in an upright position, as it should be, and about six inches distant from the grab-iron, or handhold. Two of the witnesses introduced by appellee testified that they examined the appliance immediately after appellee’s injury, and that the part of the valve nearest the grab-iron was “within two or two and a-half inches of the grab-iron.” Those witnesses and others testified that the valve, when in proper place, was in an upright position from four and a-half to six inches distant from the grab-iron, but, at the time of appellee’s injury, the valve had been allowed to,become loosened, so that it leaned over at an angle of forty-five degrees in the direction of the grab-iron. This brought the valve at its nearest point less than two inches distant from the grab-iron. While the question is by no means free from doubt, we are of the opinion that this testimony warranted the jury in finding, from the situation described by witnesses, that the valve came within less than two inches of the grab-iron, which was in violation of the requirements of the Commission. There was a .continuing duty on the part of appellant to maintain its equipment in condition so as to comply with the Federal statute and the rules of the Interstate Commerce Commission, and it is liable for any damages resulting from violation of that duty. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Louisville & Nashville Ry. Co. v. Layton, 243 U. S. 617.
Counsel for, appellant argue' with much earnestness that the evidence adduced shows beyond doubt and is undisputed that the valve could not have become loose without causing a water leak, and that thé undisputed evidence shows that there was no leak. If the evidence was'undisputed, this contention would be sound, but the testimony adduced by appellant to the effect that the' valve was not bent and that it could not have been bent over without causing a leak, and the testimony adduced by appellee to the effect that the valve was, in fact, bent over towards the grab-iron at an angle of forty-five degrees, constituted a direct conflict in the testimony, which made it a question for the jury to determine which state of facts existed. We cannot say therefore that the testimony was undisputed. The jury might have found from thé testimony that the nut holding the valve in place became loose, permitting the valve to. turn over in the direction of the grab-iron. Appellee testified that the gauntlet of his glove hung on the wheel of the valve as he attempted to alight from .the engine, and this made a question for the-jury to'determine whether or not the failure to comply with the rules of the Commission with respect to the clearance distance between the valve and the grab-iron was the proximate cause of appellee’s injury.
■ The issue as to contributory negligence was submitted to the jury, and we are of the opinion that the evidence was sufficient to justify a finding in favor of appellee on that issue. There was evidence tending to show that the train was only moving at a speed of about two miles ah hour when appelléé attempted to alight. He was an experiénced railroad man, and it cannot be said ás á matter of law that it constituted negligence for: him to alight from the engine while it was moving at that rate of speed.
It is argued that the wearing of’ gloves with gauntlets was, under the circumstances, an act of negligence, but we cannot agree to that view. The evidence shows that the gloves were of a kind usually worn by trainmen, with, gauntlets to protect their wrists, and it did not, as a matter of law, constitute negligence to wear such an article of apparel.
The failure to comply -with the requirements of the Interstate Commerce Commission can be deemed the proximate cause of appellee’s injury, for the reason that the grab-iron was in place for the use of the trainmen in entering and alighting from the engine, and the requirement for certain clearance was for the specific purpose of protecting the men while so using the grab-iron.
We are of the opinion therefore that the evidence was sufficient to sustain the verdict on every issue in the case.
The assignments of error with respect to the court’s charge and refusal to give instructions requested by appellant are very numerous, and we .deem it unnecessary to discuss them, for the reason that all of the rulings of the court in that regard are in conformity with the law as herein announced.
There is another assignment of error with respect to the ruling of the court in permitting appellee, over the objections of appellant, to state that, if the valve had been in proper position, his glove would not have caught on it. The objection to this testimony is based on the contention that it was merely the opinion of a non-expert witness, and was therefore inadmissible. If we so treat the nature of the testimony, it does not follow that it was inadmissible, for the witness at the same time stated the facts upon which he based his opinion. We do not, however, think that the statement constitutes a mere opinion of the witness, for he was describing to the jury his own act in taking hold of the grab-iron, and it was a statement of a fact to say that, under the circumstances and the situation of the grab-iron, his glove would not have hung on the valve if it had been in an upright position with the proper clearance.
On the whole case, we are of the opinion that the record is free from error, and the judgment is therefore affirmed. | [
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Smith, J.
Appellant, A. H. Vieth, brought this suit to recover on a note executed by the Mushrush Lumber Company to Otto T. Pfeffer, and which he alleged he had acquired before maturity, for value, as an innocent purchaser. The note was dated July 1, 1920, and due one year from date, and was for the sum of $4,986.88. The note bore interest at six per cent., and payments aggregating $1,448.17 had been made on it.
Appellant testified that he purchased the note on April 30, 1921, which was two months before the note matured, and he exhibited his canceled check, which was for the sum of $3,000, and which recited that it was given for the note sued on. He testified that this was the price paid for the note, and that he had no information that the validity of the note was questioned, but, on the contrary, there was indorsed on its back twelve different payments which had been made on it, aggregating $1,448.17, and that he thought the note was all right.
Pfeffer, the payee in the note, testified that he sold the note to appellant in good faith and without disclosing to appellant that there was any question about the note, and he further testified that there was in fact no defense to it.
By way of defense on the part of the makers of the note, it was alleged that there was written on the back of it, at the time of its execution, this notation: “This note is subject to contract of even date herewith,” and that this notation had been erased. The original of this note has been brought before us by a subpoena duces tecum, and it is insisted that we should find' as a physical fact that no alteration of the note had been made. If the note has been altered, it was done with consummate skill, but appellees testified that the notation was indorsed on the note at the time of its delivery, and we cannot say, as a physical fact, that such was not the case. The jury, by its verdict, under the instructions given, found that the note had been altered, and we are unwilling to reverse that verdict as being contrary to the physical fact that the note had not been altered.
Mushrush, who signed the note, testified that the contract referred to in the note was prepared in triplicate, and that he signed each copy, and that he sent two of the signed copies to Pfeffer, but he. admitted that Pfeffer had never returned a signed copy to him.
Upon this phase of the case, it may be said that the contract referred to'was not one required to be in writing, and the law is that a contract not required to be in writing is valid if signed by one of the parties and is accepted or adopted by the other party. Parker v. Carter, 91 Ark. 162. The jury might have found from the testimony that the contract was accepted and adopted by Pfeffer, and that he became bound thereby. In this connection it may be said that the credits on the note were indorsed thereon in apparent conformity to the provisions of this contract.
The relevant portions of this contract.are as follows : M. Mushrush and Mae Pepple, who are referred to in the contract as parties of the second part, together owned a one-half interest in the Diana-Mushrush Lum ber Company of Urbana, Arkansas, and Pfeffer owned the other half interest. Pfeffer sold his half interest to Mushrush and Pepple for $513.12, cash in. hand paid, and the note sued on, and the assumption of all outstanding obligations of the partnership by the parties of the second part.
By article 4 of the contract it was provided that the note was “to be paid by allowing 12% per cent, of the net mill receipts derived from all lumber shipments from Urbana yard, except as noted in article six, paragraph two.”
Articles 5 and 6 of the contract read as follows:
“Article five. Orders.
“Par. one. First party agrees to furnish second party, to the best of his ability, with orders for lumber, at the best prices obtainable and suitable to the stock on hand at mill.
“Par. two. Second party shall have the right to refuse any and all orders of first party, which he may see fit so to do; he shall ship all accepted orders as promptly as possible and fill same to the best of his ability.
“Article six. Remittances on Shipments.
“On all shipments of lumber to him or his orders, first party agrees to remit to second party, promptly, on receipt of BL and invoice of each carload, 75 per cent, of the gross F. O. B. mill invoice of same. Remaining 25 per cent., less customary 2 per cent, cash discount, 8 per cent, selling commission to first party, and 12% per cent, deduction to apply on payment of above note, to be paid promptly to second party 60 days from date of invoice.
“On all shipments of lumber to other than first party, second party shall, within ten days from date of shipment, remit 12% per cent, of net mill receipts for same to first party, to apply as payment on note; except that second party shall have the right to ship not to exceed four cars per month to his own yards free of any deductions in favor of first party. On all such ship ments, second party shall mail to first party memorandum BL for his information.”
Appellees insist that, for the reasons stated, appellant was not an innocent purchaser of the note, and that, this being true, they are absolved from liability on the note by reason of Pfeffer’s breach of the contract in the particulars hereinafter set out. The testimony tending to show a breach by Pfeffer was to the following effect.
Mushrush testified as follows on that subject: “The lumber manufactured at Urbana was shipped to the Diana Lumber Company, of St. Louis, of which Pfeifer was president, and twelve or fourteen cars were so shipped, and Pfeifer credited the note with 12y2 per cent, of the proceeds,” and along in September the market began to break very badly, and the buyers began to cut down so on the grades, and cut the prices so, that we were not getting anything out of it, and we notified Pfeffer that, unless he would do better, we would quit the job.”
In answer to a question how the lumber was shipped, the witness stated: “Pfeifer would send us an order to ship to his customers, and we would make the shipment, and our invoices would go in to Pfeifer direct.” That they discontinued filling Pfeifer’s orders on account of the low grades and prices he was giving.
Witness was asked if he recalled any shipments where Pfeifer had cut the grade too low or the sale price too low, and answered that he could not name any, as some of his records had been lost and other records burned. He was asked: “You do know that he did that, though?” and he answered, “Yes sir.”
Witness further testified that shipments of lumber on Pfeifer’s orders ceased about 'September 1, 1920, but that they continued to operate the mill until about June, 1922, at which time they sold it without having made any payments not indorsed on the note.
Pfeifer testified that he bought none of this lumber for the company of which he was president; that it was his business only to place orders, which appellee filled, and that these orders were placed by the company of which he was president; that it was to his interest to obtain the best price and highest grades, as this increased the amount of the payments he would receive.
Appellant asked that a verdict be instructed in his favor, and asked for no other instructions. This the court refused to give.
On behalf of appellees, instructions were given to the effect that, if appellant did not become the owner of the note until after its maturity, or if the note, when executed, contained the proviso that it was subject to a contract of even date with the note, appellant was not an innocent purchaser and .could recover nothing on account of the note if Pfeffer first breached the contract of purchase.
There was a general verdict in favor of appellees, and from the judgment thereon is this appeal.
"We think no sufficient excuse was shown by appellees for not paying this note, and that, under the case as made, a verdict should have been directed for appellant. There was no definite testimony that any lumber was of a particular grade, and was sold as a lower grade, nor was there any testimony that the lumber was sold at one price and was reported as sold at a less price. Pfeffer was, in effect, a sales agent, and not a purchaser, and there was no testimony that he did not correctly report and account for sales as made. When Mushrush was asked why he said Pfeffer was grading the lumber too low or selling it too cheap, his answer was “because the returns we were getting were not sufficient to warrant us to ship the lumber.”
The testimony on the part of appellees, as well as on that of appellant, was that the lumber market was very dull; that buyers were more exacting in grading and closer in prices, and appellees testified that grades and prices which Pfeffer was getting were so low that they could not afford to fill his orders. Pfeffer did not refuse to .continue to place orders and to credit the proceeds of sale as required by the contract, and we think the testimony did not warrant the finding that appellees could refuse to ship lumber or otherwise pay the note, keep the mill, operate it for nearly two years without making additional payments, and then sell the mill and refuse to pay the balance due on it as evidenced by the note sued on.
Paragraph 2 of article 5 of the contract expressly conferred on appellees the right to refuse any orders received from Pfeffer, and article 6 gave them the right to sell elsewhere, provided 12½ per cent, of the net proceeds of such sale were paid to Pfeffer to be credited on the note. This right was exercised from September 1920, to June, 1922, when the mill was sold.
We think a verdict should have been directed in favor of appellant, and the judgment of the court below will be reversed; and, as the case appears to have been fully developed, judgment will be rendered here for the face of the note and interest, less the credits thereon. | [
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Smith, J.
This suit was brought by the State Bank Commissioner against the American Trust Company, its officers and stockholders, to enjoin them from further violating § 6 of act 627 of the Acts of the 1923 General Assembly (General Acts 1923, page 515). Act 627 is an act entitled “An act to amend act 113 of the Acts of the General Assembly of 1913, entitled ‘An act for the regulation and control of banks, trust companies and savings banks’ as amended.”
The act is a very comprehensive one of twenty sections, and amends the State banking laws in many important particulars, especially act 113 of the General Assembly of 1913.
After amending act 113 of the Acts of 1913 in several particulars, § 6 of act 627 provides that act 113 “be further amended by adding thereto an additional section reading as follows:
“All persons, firms, associations and corporations, except such as discharge the burden of proving their authority under the laws of another.State or of the United States, and except those organized under the .provisions of act 632 of the Acts of the General Assembly of 1921, or except such as are subject to the supervision of and have authority from the Bank Commissioner to engage in the business, or a substantial part thereof, of a bank, trust company, savings bank, * * *, are prohibited from using in this State, as a portion of or in connection with their place of business, their name or title, or in connection with their office or other place of business, or in reference to themselves in their stationery or advertising, any of the words, or phrases, along or in combination with any other word or phrase, of ‘bank,’ ‘banks,’ ‘banker,’ ‘bankers,’ ‘banking,’ ‘Federal reserve,’ ‘trust company,’ ‘trust,’ * * *, or any other word or phrase which tends to induce the belief that the party using it is authorized to engage in the business of a bank, trust company, savings bank, * * *; and all person, firms, associations and corporations, under whatever name or title, and in whatsoever form, except mutual or cooperative banks * * * and other corporations organized under the provisions of act 632 of the Acts of the General Assembly of 1921, with the other exceptions as aforesaid, are prohibited from doing or soliciting business in this State, substantially in the manner, or so as to induce the belief that the business is that, in whole or part, of a hank, savings bank, trust company, * * * either by the sale of contract, or of shares of its capital stock, upon partial or installment payments thereof, or by the receipt of money, savings, dues or other deposits, or by the issuance of certificates of deposit or certificates of deposit or certificates of investment of money, savings or dues * # * M
It is further provided in § 6 that a violation of the provisions of that section shall constitute a misdemeanor, and be punishable by a fine of $25 for each day “during which it is committed or repeated.” And that section further authorizes and directs the Bank Commissioner “to institute and prosecute in his own name, as such, in any court of competent jurisdiction, in civil suit in the nature of quo warranto, or for an injunction, or for any other appropriate remedy, in order that thereby the violation of any provision of this or said other acts, or ultra vires action, or the usurpation or threatened usurpation or misuse of any of the powers conferred by this or said other acts upon banks, trust companies, savings banks, or building and loan associations, may thereafter be prevented. ’ ’
The complaint alleged that the defendant, American Trust Company, was violating this act, in that it was doing business under a name which implied that it was a trust company, when, in fact, it was not, and there was a prayer that the defendant be enjoined from further using the words “trust company” in connection with its business.
A demurrer to the complaint was filed, and overruled, whereupon an answer was filed setting up numerous defenses.
Among other defenses set up was that the act which the Bank Commissioner sought to enforce was void for the following reasons:
(1). Tbe act was not read upon three separate days in each house; nor were the rules suspended by a two- thirds vote of the members of each house, as required by22 of article 5 of the Constitution.
• (2). The ayes and nays on the final passage of the bill were not recorded, as required by § 22 of article 5 of the Constitution.
(3). The act did not have the necessary enacting clause, as required by § 19’ of article 5 of the Constitution. An examination of the journals of the Senate and House of the 1923 General Assembly shows that the first and second objections to the act are not well taken.
Section 19 of article 5 of the Constitution provides that “the style of the laws of the State of Arkansas shall be: ‘Be it enacted by the General Assembly of the State of Arkansas.’ ” An examination of act 627 shows that it contains this enacting clause. The separate sections of that act do not contain this clause; but the Constitution prescribes no such requirement.
Another objection to § 6, set up in the answer, is that it is, in fact, an amendment of a statute by reference to its title only. This objection is not tenable, as § 6 does not purport to amend act 113 by reference to its title, but amends this act, as amended, by adding a new section to it, and this additional section is a complete enactment in itself.
Other defenses set up in the answer are:
(a) . That there has been no violation of the statute.
(b) . That to require defendant to discontinue the use of the words “trust company” in the corporate name would deprive it of its property without due process of law.
(c) . The act is void as an ex post facto law.
(d) . Defendant is deprived of its right of trial by jury, in violation of the Constitution.
(e) . The Bank Commissioner has no authority to maintain this suit.
In support of the allegations of the answer the following testimony was offered: Defendant is a domestic corporation, having its principal place of business at El Dorado; was duly organized under the laws of this State on August 16,1922, under the name of the American Trust Company, and the words “Trust Company,” are a part of the corporate name under which it has, since its organization, conducted its growing business. The defendant company commenced operations with an investment of $28,000, and its business has been enormously successful, and the president of the company estimated the value of all its assets at several million dollars. It has an enormous correspondence, which it has conducted under its corporate name, by which it has become known to these correspondents, to whom it has sent many thousands of letters and circulars, and has stationery and literature bearing its corporate name, which cost several thousands of dollars. Much of this literature was propaganda designed to sell stock in a concern known as “Money-Back Oil Company,” for which defendant was acting as agent and trustee. There were follow-up letters having the letterhead1 “American Trust Company, Incorporated,” intended to be sent to persons on the mailing lists who had not replied to the first letters. This literature insured the bringing in of two “gushers,” or to refund one-half the money paid for stock, and promises to return all money so paid if there was a failure to bring in one gusher, and there are representations calculated to arouse in the prospective investor the hope of “a clean profit of 120 to 1, or better.” Upon reading this literature, one marvels at the generosity which would assure such prospects of profit upon terms so free from risk of loss, yet, according to the testimony of the president of the defendant company, its operations have been so successful in acquiring oil leases that it has fulfilled all representations made, and is prepared to continue to do so.
Defendant admits it is not authorized by its charter to do business as a bank .or trust company, but denies that it has ever made any representation that it was so authorized, or was, in fact, engaged as such. Its business is that of buying and selling oil leases and developing oil fields.
There was a general finding in favor of the defendant, and the complaint was dismissed, from which decree is this appeal.
Appellee insists that it has become known to its correspondents by its present corporate name, and that it has valuable stationery and literature so stamped, and it insists that it would be deprived of valuable property rights if it were deprived of the right to continue to use its present corporate name.
Appellee further insists that the decree of the court below was correct, as being in accordance with § 8 of article 2 of the Constitution, which provides that “no person shall be deprived of life, liberty or property, without due process of law.”
This provision of the Constitution must be read, however, in connection with § 8 of article 12 of the Constitution, which.reads as follows: “Corporations may be formed under general laws, which laws may, from time to time, be altered or repealed. The General Assembly shall have the, power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this Constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to th'e citizens of this State, in such manner, however, that no injustice shall be done to the corporators. ’ ’
This provision of the Constitution has been frequently construed by this court, and a late case interpreting it is that of Davis v. Moore, 130 Ark. 128, in which we quoted from Judge Battue’s opinion in:the case of Leep v. Railway Co., 58 Ark. 407, as follows: “Natural persons do not derive the right to contract from the Legislature. Corporations do. They possess only those powers or properties which the charters of their creation confer upon them, either expressly or as incidental to their existence; and these may be modified or diminished by amendment, or extinguished by the repeal of the charters.”
In the case of Woodson v. State, 69 Ark. 521, Mr. Justice Riddick, speaking for the court, said: “The citi zen does not derive his right to contract from the Legislature. The corporation does, and it possesses only such powers as may be conferred upon it by thé legislative will, and these, under our Constitution, are liable to be altered, revoked or annulled by the power that granted them. Article 12, § 6, Const, of Ark. The plain purpose of this constitutional reservation was to keep corporations under legislative control. The only limitation on this power of the Legislature contained in our Constitution is that the alteration, revocation or annulment of the corporate powers must be made ‘in such manner that no injustice shall be done to the corporators.’ ”
In the case of Ozan Lbr. Co. v. Biddie, 87 Ark. 587, Mr. Justice Battle, again speaking for the court, said: “The reserved power to amend a charter, in the. absence of an express limitation, must be exercised upon terms that are just and reasonable. In Shields v. Ohio, 95 U. S. 319, 324, Mr. Justice Swayne, in delivering the opinion of the court, says: “It is urged that the franchise here in question was'property held by a vested right, and that its sanctity, as such, could not be thus invaded. The answer is, consensus facit jus. It was according to the agreement of the parties. The company took the franchise subject expressly to the power of alteration or repeal by the G-eneral Assembly. There is therefore no ground for just complaint against the State. * * *' The power of alteration and amendment is not without limit. The alterations must be reasonable; they must be made in good faith, and be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of amendment or alteration.’ ” After reviewing other authorities to the same effect, Judge Battle continued: “It is obvious that this power to amend charters of corporations is in force under the Constitution of this State with'the same limitation. It was virtually so held' in Leep v. Railway Co., 58 Ark. 435. In that case, after a review of author-ties, it is said: ‘It is obvious that the Legislature cannot, under the power to ámend, take from corporations' the right to contract; for it is essential to their existence.It can regulate it when the interest of the public demands it, but not to such an extent as to render it ineffectual or substantially impair the object of incorporation.’ St. L. I. M. & S. R. Co. v. Paul, 173 U. S. 404; Union Sawmill Co. v. Felsenthal, 85 Ark. 346.”
There is no attempt here to deprive appellee company of its right to contract; nor is there any attempt to confiscate the property which it has accumulated under its present corporate name. Its ownership of this property, consisting principally of oil leases, will not be impaired by requiring it to change its present corporate name. The State, in the exercise of its police power, has, through its General Assembly, directed that no one shall assume to do business under a name which carries the implication that it is a bank or a trust company, when it is not 'such in fact. It was thought wise to afford the public protection from possible imposition by such a course of business, and we think it is no injustice to a corporation, within the meaning of § 6 of article 12 of the Constitution, quoted above, to prohibit a corporation from doing business under a corporate name which might be misleading to the investing public as to its corporate character.
It 'is also insisted in the answer that the act of the General Assembly in question is violative of the due process of law clause of the Federal Constitution, which provides that no State shall deprive any person of life, libertv, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ‘Section 1 of Amendment 14, Federal Constitution.
Of this defense but little need be said. In 6 R. C. L., title “Constitutional Law,” beginning with § 198, the scope and objects of enactments under the State’s police power are dealt with, and this section and those following cite annotated cases which collect an almost limitless number of cases on the subject. It will suffice to quote what Mr. Justice Harlan said, in speaking for the Supreme Court of the United States, in the case of Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205. This was the case in which the validity of the prohibition law of the State 'Of Kansas was involved, and, in upholding that statute, Justice Harlan said: “Under our system that power is lodged with the legislative branch of the ■ government. It belongs to that department to exert what are known as the police powers of the State, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.”
As to the contention that act 627 is void as an ex post facto law, it may be said that the act is not subject to this objection. It does not make any action taken before its passage unlawful.
The other defenses raised in the answer require but little discussion.
Appellee was not entitled to a trial by jury, as this was not a suit to enforce the criminal features of the act, but was one to enjoin its continued violation. Hickey v. State, 123 Ark. 180; Marvel v. State, 127 Ark. 595; Adams v. State, 153 Ark. 202.
The Bank Commissioner has authority to maintain this suit. The act imposed upon him the duty of enforcing its provisions, and expressly authorizes him to bring an injunction suit when necessary.
Appellee’s violation of the act is obvious. Its present corporate name indicates that it is a trust company, possessing the powers conferred by law on such corporations, and its answer admits that its charter confers no such power.
We conclude therefore that the court below erred in dismissing the Bank Commissioner’s complaint as being without equity, and that decree is reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. | [
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Smith, J.
This suit was brought by appellant against Pat M. Swaim, as circuit clerk of Lonoke County, and Albert G. Sexton, as deputy, to recover certain excess fees which appellant, the plaintiff below, alleges should have been paid into the county general fund of Lonoke County, as required by special act No. 173 of the Acts of 1919, approved March 4, 1919 (’Special Acts 1919, p. 294).
This act No. 173 of the Acts of 1919 is entitled “An act establishing and fixing the salaries and fees of the county officers for Lonoke County, Arkansas, and for other purposes.” It is a very comprehensive act, and includes all the officers of that county, and we think its obvious purpose was to place all these officers on a salary, which should be paid them in full compensation for all services they might render by virtue of their respective offices, and to require them to collect the fees fixed by law for their official services, and to pay these fees into the county general revenue fund.
Section 1 of this act fixes the salary of the county and probate judge. Section 2 fixes the salary of the county and probate clerk.
Section 3 read's as follows: ‘‘That the salary of the clerk of the circuit and chancery court and ex-officio recorder of Lonoke County shall be the sum of $4,000 per year; provided, that the fees, emoluments and commissions of said office amount to the sum of $4,000 per year. ’ ’
Section 4 and 5 fix the fees of the sheriff and collector; § 6 those of the treasurer; and § 7 the fees of the assessor.
Section 8 reads as follows: “That it shall be the duty of all officials herein named, whose salaries are contingent upon the collection of fees, to employ such clerical help as will promptly expedite the transaction of the business of their respective offices, and to pay for said clerical assistance out of the salaries herein allowed them.”
Sections 9,10 and 11 fix the fees of the county superintendent of public schools, the surveyor, and the coroner, respectively.
Section 12 provides that it shall be the duty of the clerk of the circuit court and ex-officio recorder, and of the other officers there named, “to charge and' collect the same fees and commissions as are now, or may hereafter be, allowed by law, and they shall each, on the first day of each quarterly term of the county court held in Lonoke County, file a true report in said court, showing the amount of all fees, emoluments and commissions collected by them respectively, up to and including the last day of the preceding quarter, and they shall each make settlement with the said court by paying all amounts collected by them during the preceding quarter, in excess of the salary and fees herein allowed, into the county treasury, and shall' file the treasurer’s receipt therefor as a voucher in said settlement, and in such settlement said officers shall be chargeable with and liable for all fees and commissions that it was the duty of said officers to collect, and that said officers shall be allowed to retain their salaries ont of the fees,' emoluments and commissions collected by them.”
By § 13 it is made the duty of the various county officers to pay over to the county treasurer all funds received in excess of the salaries fixed by the act, and it is made the duty of the county court to examine the reports of these officers and to approve them if found correct.
Section 15 provides that, if these officers shall fail to keep the records, or make the reports, or fail to pay over the excess fees as required by the act, they shall be guilty of a misdemeanor, pay a fine, and be removed from office.
Section 16 requires the county judge to furnish all record's and office supplies necessary, and § 17 provides that all excess fees shall be paid into the county general fund.
It was- alleged that the clerk had been appointed commissioner by the chancery court in certain causes, and had been allowed fees of $35 for his services, which he had not included in his report of fees collected; and that Sexton, the deputy clerk, had been appointed commissioner by the chancellor in certain causes pending in the chancery court, and had been allowed fees as commissioner, and that no report had been made of these fees.
The court found that Swain had collected fees of $35 as commissioner, which he had not included in his report, and' that he should be charged therewith, and should be required to pay the same into the county general -fund.
The court further found that Sexton had been allowed fees as commissioner, which had not been included in the report of Swain, his principal, -as clerk, and the court also found that the clerk was not required to account for or to pay over the fees allowed his deputy.
Sexton was not appointed commissioner as deputy clerk, and in no case in which he was appointed commissioner was he referred to as deputy clerk, and the chan cellor who made each of these appointments and who tried the case below made the following dandid statement, which is incorporated in the record: “The salary paid to the circuit clerk was not adequate-, in my opinion, at the time to permit him to receive a fair salary and pay a reasonable salary to -such clerical help as' he required, and there was some question as to whether, if the clerk was appointed, he would not have to account for these commissions.”
Another statute which must be taken into account in considering the question presented for decision is § 1364, C. & M. Digest, which reads as follows: “The clerk of the circuit court, by virtue of his office, shall be master or commissioner of the circuit court, and shall have all the powers that now are, or may hereafter be, conferred by law on a master or commissioner in chancery, and shall receive for such services a compensation to be fixed by the court.”
Section 1365, C. & M. Digest, provides that the judge may appoint any other person master or commissioner in special causes in said court.
These sections of the statute made the clerk ex-officio commissioner of the court, and contemplate that he shall be appointed in all cases where the service of a commissioner may be required, except in those cases where some special reason exists for not appointing him.
The fees of the commissioner are ordinarily fixed by the court in each particular case, and are largely dependent upon the duties and responsibility incident to the discharge of the appointment when duties other than the mere sale of property are involved, in which case the compensation is fixed by Acts of 1917, p. 1324; but we think it very clear that the General Assembly had this fact in mind in fixing the compensation of the circuit clerk. This officer is required to keep a record and to report all fees, emoluments and commissions collected by him, and these terms appear sufficiently comprehensive to include all compensation earned by the clerk in the discharge of the functions of his office. Indeed, we think the ‘ ‘ commissions ’ ’ which the clerk is required to account for expressly include compensation allowed him as commissioner.
The clerk is made ex officio commissioner, and, this being true, the salary allowed him as clerk covers the entire compensation fixed by law for all duties performed by him as clerk or as commissioner ex-officio.
In the case of Durden v. Sebastian County, 73 Ark. 305, the salary act of that county was construed. The act fixed the salary of the clerk, but did not fix his salary as ex-officio recorder, and it was contended by the clerk that his salary as clerk did not include his ex-officio fees,' and a similar contention was made as to other officers having ex-officio duties to perform.' This court held, however, that the salary fixed for the circuit clerk as such contemplated that the amount named should be in full payment for all duties discharged by such officer, including his duties ex-officio, and a similar holding was there made as to the other officers having ex-officio duties to perform. The court there said: “It is clear that the Legislature intended, for the purpose of fixing salaries, at least, that these various officers (except the sheriff) having ex-officio duties, should receive but one salary for all the duties performed. ’’
In the ease of Keeling v. Searcy County, 88 Ark. 386, the clerk of the circuit court had taken the affidavits of certain persons who had entered government lands and had charged the fees which had been fixed by an act of Congress for that service. The clerk who took these affidavits was operating under a special salary act, whicn fixed Ms compensation for all services required of him by law as circuit clerk, and the court, in holding that the clerk should account for and be charged with the fees thus earned, said that the salary act “embraces everv fee or emolument accruing to the clerk bv reason of his official capacity, and allows the.withholding of none. It includes every fee that was earned by him in his official capacity, ’ ’
It will be observed, from the language of the act No. 173 quoted above, that the clerk is not given an absolute salary of $4,000, but he is required to collect and account for “all fees, emoluments and commissions’’ which he is allowed by law to charge, and out of the collections so made he may receive as his salary the sum of $4,000 if his collections equal that amount. The excess must be paid into the county general fund.
What we have said about the clerk is as equally applicable to his deputy. Section 8 of the act requires the officers there named to employ such clerical help as is necessary, and to pay the cost therefor out of the salaries allowed. The clerk is permitted by law to appoint a deputy, and Sexton was duly appointed as such, and was serving in that capacity at all times when he was appointed as commissioner. He was not appointed because there was a special reason for not appointing his principal, but for the reason, candidly avowed by the court which had made the various appointments, that the salary allowed by law was not sufficient to secure efficient service. This was, of course, an evasion of the law, and one which cannot be tolerated. It was not the function of the court to decide what compensation was necessary to secure efficient service. This was a legislative question, and one upon which the Legislature had expressed itself.
The clerk is, of course, responsible for the acts of his deputy — the act of the deputy is his act-and, whileo the deputy mig’ht perform many— and, conceivably, all— of the duties enjoined by law upon the clerk himself, his right to charge any compensation for the services performed is referable to his appointment as deputy, for his principal is acting through him. And in a case where, as here, the deputy is appointed to perform a service which his principal should have performed ex-officio (unless there was a special cause for appointing some other person), the fees allowed and collected should be' accounted for as a part of the commissions which the clerk is required to report and account for. To hold otherwise would defeat what the majority of the court regard as the obvious purpose of the Legislature, to fix the total salary of the circuit clerk at $4,000 per annum. And it is the settled rule of construction of statutes similar to the one under review that “where the provision of law fixing the compensation (of an officer) is not clear, it should be given the construction most favorable to the government.” See chapter on Officers in 29 Cyc., p. 1426.
The entire act is attacked on the ground that it is unconstitutional, and, by ¡a cross-appeal, the clerk seeks to recover the fees in excess of $4,000 per annum which he has paid into the county treasury. This contention is based on § 11 of article 16 of the Constitution, which 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.”
Of this contention but little need be said. Similar statutes have been uniformly upheld by this court. One of the early cases so holding is that of Independence County v. Young, 66 Ark. 30, and the act there upheld is not unlike the act here under review. It is true that, on the same day on which this decision was handed down, the case of Gray v. Matheny, 66 Ark. 36, was also decided. Botk cases involved act No. 53 of the acts of 1895, page 66. The first of these Independence County eases involved the salary of the county clerk, and the act fixing his salary was upheld in its entirety. In the case of Gray v. Matheny the act was held unconstitutional in part as involving certain fees of the county treasurer derived from public taxation, but the court held that the obnoxious portion of the act might be stricken out and the act left complete without it. Here the salary of the treasurer is not involved, but, if it were, and if the portion of the act relating to the salary of the treasurer should be invalid, for the reason assigned in Gray v. Matheny (which we do not decide), the remainder of the act would be left complete without it.
We conclude therefore that the act is constitutional, at least in so far as it relates to the clerk of the circuit court, and appellee is entitled to no relief on his cross-appeal.
It follows also, from what we have said, that the clerk was properly charged with the commissions which had been allowed him for his own services as such commissioner; and it also follows, from what we have said, that the clerk should be charged with and required to account for the commissions allowed his deputy, and the decree of the court below will be reversed, and the cause remanded with direction to enter a decree against both the clerk and the deputy for the commissions allowed and paid to the deputy. | [
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' ' Humphreys, J.
Appellant was indicted, tried and convicted in the circuit' court of Randolph County for the crime of seduction, and'adjudged'to serve a term of two years'in the State Penitentiary and to pay a fine of $500 as punishment therefdr: From the judgment of conviction an appeal has been duly prosecuted to this court.
■' Appellant was indicted under § 2414"of Crawford -■& Moses’ Digest, and the indictment is substantially in "the language of the statute. ' '
One assignment of error insisted upon by appellant for a reversal- of the judgment is that the indictment . was fatally defective because it omitted to allege that the crime was committed with a felonious intent. Seduction was not a felony at common law, where a felonious intent was an essential' to the crime. 35 Cyc., p. 1329. T'he statute does not make a felonious intent an essential part of the crime, so the indictment sufficiently charged the ■offense without alleging a felonious intent. State v. Eldridge, 12 Ark. 608; State v. Seawood, 123 Ark. 565.
The next assignment of error insisted upon by' appellant for a reversal of the judgment was the refusal of the court to admit in evidence twenty-four letters written by the prosecuting witness to appellant, in the fall after he had sexual intercourse with her in the spring and .summer. These letters tended to show that she was unchaste previous to the alleged seduction, and not merely that her thoughts lasciviously inclined toward appellant, who was charged- with seducing her: ■ The letters should not therefore have been excluded, under the rule of evidence announced in the case of Wilhite v. State, 84 Ark. 67. In that case the letter was properly excluded on the ground that the contents thereof indicated that the prosecuting witness was bent upón sexual intercourse with the defendant, and the court said that it did not lie in his mouth, after he had seduced, her, to show her lascivious inclination toward him.
Again, the letters were clearly admissible'as. affecting the credibility of the prosecuting witness.
There are other ■ assignments of error which it. js unnecessary to discuss, as they will not likely recur on the retrial of the case.
On account of the error indicated the judgment'.!? reversed, and the cause is remanded for a new trial. | [
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Humphreys, J.
This suit was instituted in the circuit court of Conway County against appellant by appellee, in the capacity of administrator of the estate of William Cullen, Sr., deceased, for compensatory and punitive damages on account of the death of said deceased, caused by coming in contact with an electric wire heavily charged with electricity, through the alleged negligence of appellant.
Appellant filed an answer to the complaint denying the material allegations thereof, and, by way of further defense, pleading contributory negligence on the part of appellee’s intestate.
The cause was submitted upon the pleadings, testimony, and instructions of the court, which resulted in a verdict for compensatory damages in the sum of $3,000, from which is this appeal.
The court correctly instructed the jury upon the issue of negligence, contributory negligence, and measure of damages. While each instruction was objected to and the objections properly preserved, it is not contended, in the brief of learned counsel for appellant, that any one of the instructions given by the court was erroneous and prejudicial to appellant’s rights. The contention is made, however, that the court committed reversible error in refusing to give certain instructions requested by it, including its request for a peremptory instruction. We have carefully examined appellant’s requested instructions Nos. 3, 4, 5, 6 and 7, which were refused by the court, and, in so far as they announce the law applicable to the facts in the case, they are substantially covered by the instructions which the court gave. We also think that the peremptory instruction requested by appellant was properly refused. We cannot agree with appellant that the undisputed evidence revealed that the death of appellee’s intestate was not due. to negligence on the part of appellant. On the contrary, it was shown that appellant did not equip its plant at Morrilton with kick-out switches, commonly used by such plants, to take care of the current on lines which should break and fall to the ground along the streets where they were stretched. Evidence was also introduced tending to show that the wire with which appellee’s intestate came in contact had broken and fallen to the ground because it was rotten, and that it carried 2,300 volts of electricity, which rendered it dangerous and deadly to the touch. Evidence was also adduced tending to show that the wire remained in this condition for a considerable length of time before being repaired. The evidence detailed above was of a substantial nature, and sufficient to sustain the finding of the jury to the effect that the death of appellee’s intestate was the direct and proximate result of the negligence of appellant.
“It is well settled that it is the imperative duty of an electric company not only to install proper appliances but also to make reasonable and proper inspection of such appliances and to use due diligence to discover and repair defects therein, and a failure to do so constitutes negligence.” 9 R. C. L., § 25, p. 1217.
“From the very nature of its business, an electric company using highly charged wires owes the legal duty, irrespective of any contract relation, toward every person who, in the exercise of a lawful occupation in a place where he has a leg’al right to be, is liable to come into contact with the wires, to see that such wires are properly placed with reference to the safety of such persons,” etc. 9 R. C. L. § 20, p. 1210.
It follows, of course, from the principle thus announced, that the wires should be inspected at reasonable intervals, mended, and kept in repair. Haynees v. Raleigh Gas Co., 26 L. R. A., p. 812 (N. C.).
Neither can we agree with the contention of appellant that the undisputed evidence revealed that appellee’s intestate was guilty of contributory negligence.
Appellee’s intestate, in company with Peter Miller, late Sunday afternoon, June 10, 1923, discovered that the wire in question had broken and fallen to the ground. As they approached it, they saw some children near by, and appellee’s intestate remarked that it was a house wire, and that he would remove it before some one was injured by it. The undisputed evidence reveals that house wires in -the system carry only 210 volts of electricity, and will shock but not kill one if touched where insulated. The wire in question was insulated. Instead of being a house wire, carrying 210 volts of electricity, the wire in question was a primary wire, carrying 2,300 volts of electricity. Appellee’s intestate reached up high and took hold of the wire where it was insulated, but, on account of the strong current, his muscles, convulsed, thereby preventing him from releasing the wire. Before his companion could knock the wire out of his hands with a stick he was dead, and, when released from the wire, fell to the ground. It cannot be said that, under the undisputed evidence, appellee’s intestate voluntarily put himself in contact with the live wire, knowing it to be charged with a deadly current, for there was some evidence tending to show that he thought, and had reason to believe, that it was a house wire, carrying only a small voltage of electricity. In view of the disputed evidence in this regard, it was proper to submit the issue of contributory negligence to the jury.
No error appearing, the judgment is affirmed. | [
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Smith, J.
The testimony in this case is sufficient to support a finding that the Midwest Hay Company, a copartnership engaged in selling hay and grain in Kansas City, was indebted to the Forrest City Grocer Company. While so indebted, the grocer company ordered two cars of hay from the hay company. These cars were shipped from Kansas City on May 3 and. May 4, and in due course reached Forrest City.
The bills of lading were made in the name of the hay company, and were indorsed by it. Separate drafts were drawn by the hay company for each car of hay, and the drafts were identical, except as to date and amount. The draft covering the first car of hay reads as follows: “Midwest Hay Company No. 5571. Kansas City, Mo., May 3, 1923. On demand pay to the order of Midwest Hay Company $312.33, three hundred twelve and 33/100 dollars, with exchange. Midwest Hay Company, Thos. M. Brandon, Jr.. To Forrest City Grocer Co., Forrest City, Ark. Accept original paid freight bill as part -payment.” There was stamped on the back of each draft, with a rubber stamp, the following indorsement: “Pay to the order of any bank or banker. Previous indorsements guaranteed. Live ¡Stock State Bank,. Kansas City, Mo., May 4, 1923.” On the face of each draft the following notation was stamped: “Hold draft until arrival of car. Documents attached to be delivered only on payment of draft.” The document attached to each draft was the bill of lading for the car of hay, to collect the price of which the draft was drawn. These drafts, with bills of lading attached, were sent by the Live Stock State Bank, of Kansas City, hereinafter referred to as the bank, to the First National Bank of Forrest City.
Upon the arrival of the cars of hay in Forrest City, the. grocery company paid the drafts, took up the bills of lading, and unloaded and stored the hay, and commenced suit against the hay company for the debt due it, and garnished the proceeds of the drafts in the hands of the First National Bank of Forrest City as the property of the hay company.
The suit was begun in the court of a justice of the peace, and the hay company made no defense, and judgment was rendered against it by default, and no appeal was prosecuted by the hay company from that judgment. The bank, however, intervened in the justice court, and alleged that it was the owner of the proceeds of the drafts, and it appealed to the circuit court from a judgment adverse to it. ■
Upon the trial in the circuit court before a jury the following testimony was offered: It was shown that the hay company was a depositor and customer of the bank, and carried an active account there. The first draft was deposited on May 3 and the second on May 4, and each draft was deposited along with a number of other drafts. Each deposit was made on a deposit slip, which contained,..at its top, the following recitals: “Out of town items credited subject to final cash payment. This bank will observe due diligence in its endeavor to select responsible agents, but will not be liable in case of their failure or negligence or for loss of items.”
The officers of the bank testified that these deposits were made in the usual course of business, and that the bank became the absolute owner of each draft upon its deposit; that the bank gave the hay company full credit for the face of the draft, and permitted the hay company to check against the deposit, as would have been done had the deposit been in cash. This was the practice observed with all solvent depositors and customers,, although it was understood that, if any item so deposited was not collected, it was charged back to the account of the depositor. The hay company became insolvent and ceased to do business with the bank, and the account was inactive after May 8, at which time the hay company’s balance was $105.30, and this sum was checked out on June 1, thereafter.
Objection was made by the plaintiff grocer company to the admission of the testimony showing the circumstances under which the bank came into possession of the drafts. But this testimony was properly admitted. After admitting this testimony, the court gave, over the objection of the bank, the following instruction: - “No. 1A. The contract between the Midwest Hay Company and the Live Stock State Bank with regard to these drafts consists of the drafts themselves and the two deposit slips. This contract cannot be varied by parol testimony. ’ ’
There was a verdict and judgment for the grocer company, from which is this appeal. -
The instruction set out above was erroneous, and the judgment must be reversed on that account.' It was competent for the bank to show how and for what purpose it acquired the drafts, whether, when they were deposited, they were received' merely for collection or as an absolute'deposit of money, and the effect of this instruction" was to exclude the testimony on the part of the bank tending to" show that it did not receive the drafts for collection merely, but had received them as an absolute deposit of money.
It is insisted on behalf of appellant bank that the judgment of the court below should be' reversed ánd judgment rendered here in its favor, for the reason that the undisputed testimony shows that it received' the drafts as deposits of money and not for collection merely. We do not think, however, that this conclusion, and no other, must be- drawn from the testimony in this case. This case is in many respects similar to the very recent case of Merchants’ Bank of Kansas City v. Searcy Wholesale Grocery Co., ante p. 153, in which the law of the subject was declared. But a very important distinction is that, in the case cited, the draft was drawn to the bank itself, and the'bank was there attempting- to collect the draft for its own account. In the instant base the drafts were not drawn to the bank which remitted for collection, nor were they indorsed to it. Indeed, the drafts were not indorsed at all. Sections 7815 and 7796, C. & M. Digest; Johnson v. T. M. Dover Merc. Co., 164 Ark. 371.
In the case of Cox Wholesale Grocery Co. v. National Bank, etc., 107 Ark. 601, the court quoted as follows from the case of Burton v. United States, 196 U. S. 283: “When a check is taken to a bank, and the bank receives it and places the amount to the credit of a customer, the relation of creditor and debtor between them subsists, and not that of principal and agent.” And from the case of Taft v. Bank, 172 Mass. 363, the court quoted as follows: “■So when, without more, a bank receives upon deposit a check indorsed without restriction, and gives credit for it to the depositor as cash in a drawing- account, the form of the transaction is consistent with and indicates a .sale, in which, as with money so deposited, the check becomes the absolute property of the banker.” After approving the law as thus stated, the court said, in its application to the facts of that case, that there was nothing in the record of that case to contradict the fact that the bank had become the absolute owner of the check, and that the only liability of the drawer was upon his indorsement in case the check was not paid. But it was there also said: “Of course, it would have been competent to prove that, notwithstanding the indorsement, the check was delivered merely for collection.”
Here the’bank admitted that it would have charged the drafts back to the account of the hay company if that company had not become insolvent and had not transferred its account to another bank; but the reservation of this right, pursuant to the custom of banks so to do, would not divest the bank of its character as owner, if there was nothing else in the case to contradict the testimony of the officials of the bank. But there were other circumstances in evidence tending to refute this testimony. The drafts were not indorsed by the hay company; there was nothing on them to indicate the bank’s ownership; there was an indorsement on them which authorized the collecting bank to allow a credit for the freight, which was an unknown sum when the drafts were deposited in Kansas City. It is true, the bank received them on a deposit slip which gave credit for their face, but it was known and understood that a credit for a then unknown amount would be allowed. The recitals on the deposit slips would indicate that the items out of town were received only for collection, and that the bank’s relation to the drafts was that of an agent, whose responsibility was limited to the selection of another reliable agent to consummate the collection. Of course, this recital was subject to explanation in a particular case, but it is a circumstance to be considered in determining what, in fact, was the bank’s relationship to the drafts. The bank officials admitted that, although it was their custom to credit the account of any customer with the face of any draft or other item deposited, they yet reserved the right, in cases of irresponsible depositors, to treat their relation to the depositor as that of agent, instead of that of debtor.
. Under the facts stated, we think there is a question for the jury as to the bank’s absolute ownership of the drafts; but, for the error in giving the instruction set out above, the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Smith, J.
The complaint filed by appellants in this cause alleged that their father, S. H. Collins, died seized and possessed of the lands described in the complaint, and that these lands constituted his homestead at the time of his death. After the death of S. H. Collins, his widow, the mother of appellants, married a man named Bailey, and Mrs. Bailey was appointed guardian for her children. The petition for her appointment as guardian referred to the children as Luther Bailey, age 17 years, and Hosie Lee Bailey, age 13 years. The name of the children was Collins, of course, but the mother used her then name of Bailey as the name of the children. The letters of guardianship which were issued upon Mrs. Bailey’s application named her wards as “Luther and Hosie Lee Bailey, minors, under the age of 18 years.”
Mrs. Bailey, as guardian, made application to the probate court for an order to sell the lands of her wards, and alleged in the petition therefor that this was necessary for the support, education and maintenance of said minors. This petition was filed February 25, 1913.
On March 8, 1913, appraisers were appointed to appraise the lands, and in this order the wards were for the first time referred to as being named Collins, and in all the subsequent proceedings they were referred to by that name.
The sale was duly made by the guardian, and a report thereof was filed with the clerk of the probate court on April 14, 1913, and on that day the probate court entered an order reciting the facts in connection with Mrs. Bailey’s appointment as guardian of her children, who had been referred to as being named Bailey, whereas their true name was Collins, the name of the guardian’s former husband and the father of the children, and the court, ordered that all former proceedings be amended to show the true name of the children, and that “all matters and proceedings had and done with relation to the sale of said land and the guardianship of said minors shall be taken to be as in the name of Luther and Hosie Lee Collins, and this order is made for the purpose of correcting the proceedings heretofore had in this matter.”
The sale was made to defendant’s grantor, and was duly confirmed, and a proper deed was executed and approved.
Appellants seek by this suit to set the sale aside, and assign two grounds therefor; first, that the whole proceeding was void because Mrs. Bailey was appointed as guardian for Luther and Hosie Lee Bailey, and there were no such persons, and second, the order of sale made by the probate court did not recite the facts that S. H. Collins owed no debts at the time of his death.
We think the erroneous application for and the issuance of letters of guardianship to Mrs. Bailey, as guardian for her children, who should have been designated as being named Collins, instead of Bailey, did not affect the jurisdiction of the court to make the sale. The order of the court appointing the appraisers recited the true name of the wards, and no one who desired to bid at the guardian’s sale could have been in doubt as to the interest which would be offered for sale and would be acquired by the purchaser thereat, and the order of April 14, 1913, which was-made on the day the report of sale was filed and before the sale was approved, corrected this error.
As to the other ground of attack, that it nowhere appeared from any order of the court that there were no debts due and unpaid by S. H. Collins at the time the order of sale was made, it may be said that this omission would be fatal to the validity of the sale upon the authority of the cases of Beakley v. Ford, 123 Ark. 383; Ex parte Tipton, 123 Ark. 389, and Rushing v. Horner, 130 Ark. 21. But, subsequent to the rendition of those opinions, the General Assembly, at its 1919 session, passed an act No. 263, entitled “An act to render conclusive judgments and decrees of the probate court in guardians’ and administrators’ sales.”
This act was reviewed and upheld in the case of Day v. Johnson, 158 Ark. 478, and we need not repeat here what we there said in the construction of the act. It will suffice to state what was there decided. In that case an administratrix and a guardian, both of whom were nonresidents of this State, had sold lands belonging to their intestate and wards at a private sale, and the effect of these irregularities on the validity of the administratrix’s sale and the guardian’s sale was considered.
We there held that the rule announced in the case of Apel v. Kelsey, 52 Ark. 341, had been reenacted, and that, under this act, all sales by guardians and administrators which had been made under orders of the probate court and which contained the recitals made jurisdictional by that act, were impervious to collateral attack, save for fraud or duress, with a proviso that the provisions of the act should not apply to attacks on probate sales made within twelve months after the passage of the act.
This act 263 does not require that the order of the probate court directing the sale shall show that there were no debts, and tbe order of court under which the land here involved was sold, contained the recitals which act 263 designated as essential and jurisdictional.
The complaint filed by appellants does allege that the order changing the name of the wards was fraudulently obtained, but it appears, from what we have already said in regard to the court’s order in this respect, that there was ho fraud in making this order, as it was made to conform with what appellants allege to be the truth, and it may be further said that there are no allegations of fact in the complaint upon which to predicate a charge of fraud in the procurement of the other orders of the court. It may also be said that this suit was not brought within twelve months after the passage of act 263.
Upon these facts the court below properly sustained the demurrer to the complaint of appellants, and that decree is therefore affirmed. | [
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McCulloch, C. J.
Appellee claims that he was injured while passing along a public street under appel lant’s railroad track in the city of Texarkana. He was injured by being struck with a lump of coal, wbicb fell or was thrown from the tender of one of appellant’s engines passing along the bridge over the street, and he instituted this action to recover compensation for such injuries. Appellant filed its answer denying each of the allegations of the complaint, and, on .a trial of the issues before a jury, there was a verdict in favor of appellee fixing the damages at the sum of $400.
Appellee testified that he was passing along the street in question about midnight, with a companion, and, as a train passed along the bridge over the street, he was struck in the face by a lump of coal which came from the tender of the engine. He testified that the piece of coal struck him above the eye and cut to the bone, dropping the flesh down over the eye. He was corroborated by the testimony of his companion, who was his brother-in-law. There was other testimony to the effect that appellee was found at the scene where he claimed the injury occurred, and was carried to a hospital and treated by an eye and ear doctor.
Appellant introduced testimony of its trainmen who operated the engine which passed over the bridge at the time appellee claims to have been hurt, and this testimony was to the effect that coal did not fall from the tender of the engine, and that the tender was so con-' structed that lumps of coal could not roll off. The testimony of these witnesses tended to establish the fact that the claim of appellee was false, and that a lump of coal was not in any way expelled from the tender.
It is not contended that the evidence is insufficient to sustain the verdict, 'but the first assignment discussed in the brief relates to the ruling of the court in refusing to permit appellant to propound a certain question to appellee on cross-examination. Appellant’s attorney, in cross-examining appellee, asked him many questions for the purpose of testing his credibility. Among other things it was shown by appellee’s own admission on cross- examination that he was an ex-convict, having pleaded guilty in the State of Illinois to the crime of robbery, and had been sentenced to the penitentiary. It was also shown by appellee’s own admission that he had collected a claim against another railroad company for an injury of the same character, inflicted in the same way, by having a lump of coal strike him on the head. Appellee also admitted that he had frequently passed under an assumed name. Counsel for appellant questioned appellee for the purpose of proving that the latter’s son-in-law, Wesley Splaun, had received a personal injury at Benton, Arkansas, prior to the date of the injury to appellee, for which injury Splaun made a claim against the Rock Island Railroad. The court excluded the question, and appellant saved its exceptions. Further on, in the cross-examination, appellee testified that he was at Benton at the time Splaun claimed to have been injured, but was not with Splaun at the time, and that he registered under an assumed name at one of the hotels in Benton. It is insisted that the court erred in excluding the question propounded to appellee on cross-examination concerning the claim of Splaun against the Rook Island Railroad Company. The argument is that, having shown that appellee had put in a similar claim against another railroad company, it was competent to show that Splaun, his son-in-law, had put in a claim against the Rock Island, so as to discredit appellee by establishing a scheme on his part to present fictitious personal injury claims against railroad companies. The ruling of the court was, we think, correct. It was not competent to prove the bare fact that the son-in-law of appellee had presented a personal injury claim to another railroad company. But when counsel for appellant sought to connect appellee with the occurrence of the injury to his son-in-law and the presentation of his claim, the court permitted counsel to question appellee about that and to ask him whether or not he was present.with Splaun when he was injured, and if he did not put in a claim for Splaun, all -of which appellee denied.
The only other assignment of error argued in the brief relates to alleged error of the court in modifying one of appellant’s requested instructions, which reads as follows, the modification being the striking out of the words italicized:
‘ ‘ 5. The court instructs you that the defendant railroad company had the right to occupy its tracks and run its trains over the crossing at any and all times, and to use such means for that purpose as were necessary; and the court further instructs you that the law required the plaintiff to use ordinary care for his own protection in approaching to and crossing under the tracks; that is to say, he must use such care as an ordinarily prudent person would use, in view of the rights of the railroad company to operate its trains over the crossing, and he must use ordinary care to look out and protect himself, from injury from missiles falling from the train, and if you believe from the testimony that he failed to do that, then plaintiff was guilty of contributory negligence; and if you find that plaintiff himself was negligent in that respect, and that the accident was caused partly by the negligence of the plaintiff himself and partly by the negligence of the railroad company, and that they were equally negligent, then your verdict should be for the defendant, notwithstanding’ plaintiff was injured. ’ ’
The instruction was complete without the use of these words, and there was no prejudice in modifying the instruction by striking them out. Moreover, there was no place in the case for the question of contributory negligence, for there was no testimony tending to show negligence on the part of appellee. The issue in the case was whether or not the coal fell from the tender and struck appellee. He and his companion testified that this did happen, but the testimony adduced by appellant tended strongly to show to the contrary. Appellee was traveling along the street, as he had a right to do, and he also had the right to assume that lumps of coal would not be expelled from the tender of the engine or from any part of the train. If there had been any testimony tend ing to show that appellee saw the lump of coal falling from the engine and might have dodged it, there would have been a question of contributory negligence involved, but there is no such state of facts presented by the evidence. Appellant defended on the ground that the claim of appellee was fictitious, but the verdict of the jury is conclusive on that issue.
We find no error in the record, and the judgment is affirmed. | [
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Smith, J.
Three indictments were returned against appellant, one charging him with manufacturing liquor, the second with making mash, and the third with possessing a still. With his consent he was placed upon trial on all three charges, and was convicted upon the charge of possessing a still, and was acquitted upon the other two charge.
For the reversal of the judgment pronounced upon the jury’s verdict, appellant insists (1), that the evidence does not sustain the verdict, and (2), that the court erred in giving an instruction numbered 4 to the jury.
Upon the first assignment of error it may be said that the testimony on the part of the 'State was to the following effect: The husband of a Mrs. Williams had been convicted of manufacturing liquor, and had been sent to the penitentiary. He left in his wife’s possession the still which he had used for manufacturing the liquor. Mrs. Williams was left in destitute circumstances, with the care of four children, one of whom was blind. Appellant moved Mrs. Williams to a house on his farm about fifteen feet back of the house in which he himself resided. The still was moved along with Mrs. Williams ’ other effects, although it was not shown certainly that appellant was aware of that fact at the time it was moved.
Officers of the law searched the house in which Mr®. Williams lived, and they found the still set up and in operation, and some white whiskey dripping from it. A quantity of mash from which whiskey was made was found, and the officers found in appellant’s home four gallons of whiskey in a tin bucket and about a gallon in some beer bottles and fruit jars. Appellant was drunk at the time, and told the officers that the outfit belonged to him.
At his trial appellant denied that he owned the still, and testified that it belonged to Mrs. Williams. He admitted, however, that he knew of the presence of the still, and that it was being operated and that he was drunk when arrested from drinking the whiskey distilled on his premises.
Mrs. Williams had been released! by the officers when appellant admitted the ownership of the still, and she had left the county and did not appear as a witness.
We think this testimony so connects appellant with this still and its operation that the jury was warranted in finding that he had possession of it within the inhibition of act 324 of the Acts of 1921, page 372, which prohibits any person from having a still in his possession. Ring v. State, 154 Ark. 250.
The instruction which appellant insists is error calling for the reversal of the judgment reads as follows: “The defendant here, in addition to the general plea of not guilty, has interposed a special defense here to the extent of claiming that he did not manufacture this liquor, but that another party did, and for that reason he is not guilty. On that proposition you are instructed, gentlemen, that, if you find from the proof in this case, beyond a reasonable doubt, that this woman, Mrs. Williams, manufactured liquor, and that the defendant was present while she was manufacturing the said liquor, and aiding or abetting, aided or abetted, or ready and consenting to aid and abet in the making of this liquor, then this defendant would be as guilty as Mrs. Williams; but the mere knowledge of the fact that she was making liquor, if he was not in fact present at the time Mrs. Williams was making liquor, would not be a violation of the law in this trial. And so, if you find from the proof that Mrs. Williams made the liquor, and that this defendant was not present while she was doing so, your verdict should be one of not guilty. But if you find she did in fact make the liquor and this defendant was present aiding, assisting, and abetting, or was present ready and willing to aid, assist, and abet, then your verdict should be one of guilty, and his punishment fixed at one year in the State Penitentiary.”
The argument is that one could not aid and abet another to possess an article. Whether this be true or not, it suffices to say that appellant was on trial for the crime of making whiskey as well as for possessing a still, and one could aid and abet another in that act, so the instruction was- not abstract. It is obvious that this instruction dealt with the charge of manufacturing liquor, and this instruction was appropriate and proper on that subject, and could not have been prejudicial, because appellant was acquitted of the charge to which it related.
No error appears, so the judgment is affirmed. | [
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Humphreys, J.
Appellant was tried and convicted in the circuit court of Searcy County, on appeal from a judgment of conviction before a justice of the peace, for violating the cattle quarantine law, and, asa punishment therefor, was fined $50. He has prosecuted an appeal from the judgment of conviction to this court.
Appellant’s main contention for a reversal of the judgment is that the court erred in instructing the jury as a matter of law that the quarantine line was between Van Burén and Searcy counties. This instruction was predicated upon the theory that the order promulgated by the Board of ’Control fixing the quarantine line sufficiently described the line as being between said counties. Of course, if said order sufficiently described the line as being between said counties, it would have been proper for the court to have instructed the jury as to the location of the line, for courts take judicial notice, and all other persons are required to take notice, of orders promulgated by the Board of Control fixing the quarantine line. The notice in the instant case followed the language' of the order, and is as follows:
‘1Notioe — Cattle Quarantine
“Effective April 24, 1923.
“That part of Van Burén County west of township line separating townships 13 and 14 west is hereby quarantined by proclamation on account of being infested with Texas fever ticks (Margaropm annulatus). Cattle from the above named county are not allowed to be shipped, trailed, transported, or allowed to drift into the free counties, or counties, doing systematic tick eradication in the State of Arkansas.
“Joe H. Bux, State Veterinarian,
“Secretary Board of Control.”
The order and notice are admittedly meaningless as written, but the Attorney General suggests, and we agree with him, that it is obvious that the Board of Control meant to use the word “ranges” instead of “townships,” and that the use of the word “townships,” was an obvious clerical error which courts will correct. Bowman v. State, 93 Ark. 168. The use of the word “west” after the figure 14 in the order and notice clearly indicates that said board intended to use the word “ranges,” as ranges lie east and west of the meridian line and townships north and south of the base line. If the word “ranges” is -substituted for the word “townships” in the order and notice it is apparent that all that part of Van Burén County lying west of the dividing line between ranges 13 and 14 was placed below or immediately south of the quarantine line. This being true, it was proper for the -court to instruct the jury that the quarantine line was the -dividing line between Searcy and Van Burén counties.
Appellant next, and lastly, contends for a reversal of the judgment upon the alleged insufficiency of the evi dence to support the finding of the jury that he drove the cattle out of Van Burén County into Searcy County, across the quarantine line. We have read the testimony carefully, and find that it tends to show that appellant sold the cattle at his home in Van Burén County, and delivered them to the purchaser at the salting ground in Searcy County the next day after selling them. According to the testimony of Henry Clayton, appellant was seen with the cattle within two hundred and fifty yards of the quarantine line, driving them in the direction of the line, and that appellant admitted that he was taking them across the line, and asked him (Clayton) to say nothing about it. The testimony was sufficient -to support the verdict. '
No error appearing, the judgment is affirmed.
Smith,-J., dissents. | [
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McCulloch, C. J.
This is an action instituted against appellee in the chancery court of Howard County by appellants, Robert Leake and Nancy Greenhaw, to cancel two quitclaim deeds executed by appellants to appellee, conveying their respective interest in real estate, consisting of two lots situated in Nashville, the county seat of Howard County. The prayer of the complaint was that relief be granted either by cancellation of the deeds or by decreeing a trust ex 'maleficio in favor of appellants. The complaint contained allegations to the effect that appellee and her agents induced appellants to execute the deeds by false and fraudulent misrepresentation and upon promises to account to appellants for a part of the proceeds in proportion to their several interests therein.
Appellee filed an answer denying the allegations of the complaint with respect to false representations or promises, and, upon the hearing of the case, the chancellor dismissed the complaint of appellants for want of equity.
The real estate in controversy was originally owned by appellee’s former husband, John Collins, who died intestate in February, 1899, leaving appellee as his widow, and two children, a boy and a girl.
John Collins and his wife occupied the property in controversy as a homestead, and continued to occupy the same up until the time of his death, and thereafter the property was occupied as- a homestead by the widow and the children.
About three years after the death of Collins, appellee intermarried with John Garrett, and, since then, she has not lived on the premises, but has rented the same and received the rents. The boy, Roy Collins, the son of John Collins and appellee, was killed out in Colorado, when he was about nineteen years of age, and the girl, Della, married and moved away and has not been heard' from for the last twelve or fourteen years. She left no issue, so far as is known.
Appellant Leake was a half-brother of John Collins, and Nancy Greenhaw was the latter’s niece. They claim the property, subject to the widow’s homestead and dower right, as collateral heirs of the two children of John Collins.
The property in controversy has become dilapidated, and, according to the testimony, has been condemned by the city authorities, and appellee has been making an effort to sell or dispose of the same. The property usually rented at a monthly rental of ten to sixteen dollars.
After the execution to appellee of the deeds in question, she sold the house on the lots for seventy-five dollars, with the privilege to the purchaser to remove the same from the lots.
Appellants executed separate quitclaim deeds to appellee, conveying their interests in the property. The deed of Nancy Greenhaw was executed on September 17, 1921, and the deed of appellant Leake was executed on September 19, 1921. Both deeds were filed for record on September 20, 1921. The two deeds were prepared by and executed before different officers, and each of the officers testified as to what occurred when the respective deeds were executed. Each of the appellants testified, in substance, that appellee represented that she was selling and conveying the property to an oil company.for use as a gasoline filling station; that the deed executed was one, not to appellee herself, 'but to the oil company, and that she (appellee) would account to each of appellants for his or her respective portions of the consideration, which was represented to be the sum of $1,600. Neither of the appellants testified as to any specific amount he or she was to receive, but stated merely that appellee told them that she would pay them his or her “part” of the proceeds as soon as the sale was consummated.
The two deeds were, as before stated, executed at different times, also at different places and before different officers.
Appellee testified in the case, and denied that she made any representations to the effect that the deeds of conveyance sought to be secured were to an oil company, or that-she promised either of the appellants to account for any of the proceeds. 'She testified that both of her children had abandoned the property, or, rather, turned it over to her to do as she pleased with, and that, when she applied to each of the appellants for a quitclaim deed, each of them executed the deed in question for the purpose of turning over the property to her to do with as she pleased as her own. Each of the deeds recited a nominal consideration of one or two dollars.
The. two officers who, respectively, prepared the deeds and took the acknowledgments, testified in the case. Each testified that nothing was said between the parties, at the time, about the consideration for the deed, other than the nominal consideration mentioned therein, but the officer who prepared the Leake deed testified that appellant Leake executed the deed with apparent reluctance, and that he got the impression from the conduct of the parties that there had been some former understanding between them. It is admitted by appellee that Leake hesitated about executing the deed, but finally agreed to do so, and she testified that there was no understanding that there was to be any other consideration except the nominal one expressed in the deed and the circumstances under which the title was held. In other words, the testimony of appellee shows that both of appellants executed the deed in consideration of the fact that she was the widow of John Collins and the mother of the latter’s two deceased children. At any rate, the testimony of appellee is to the effect that each of the deeds was voluntarily executed and that there were no misrepresentations or promises made to induce its execution.
An express trust cannot be ingrafted on a deed by oral testimony. That principle is elemental. Even if it be conceded that the alleged misrepresentation that the deed was to be made to the oil company was material, we think that the evidence does not preponderate against the finding of the chancellor on that issue. Each of the appellants testified separately that appellee made such representations, but this is denied by appellee, and appellants are not corroborated.
A trust ex maleficio must be established by clear, decisive and convincing evidence, not merely by a preponderance. Eason v. Wheeler, ante p. 320. It can scarcely be said that there is even a preponderance of the evidence in favor of appellants, much less to say that the testimony in their favor is clear and convincing.
It is also contended that the conveyance should be set aside on account of inadequacy of consideration, but that does not afford grounds for setting aside a voluntary conveyance.
There are no valid grounds established for setting aside the deed; hence the decree must be affirmed, and it is so ordered. | [
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Humphreys, J.
This suit is predicated upon an appeal bond given to supersede a judgment for $125 obtained' in a magistrate’s court in Craighead County by appellee against the Bear State Life & Accident Insurance Company. The bond was executed on the 21st day of September, 1917, and was signed by appellant as surety. In attempting to appeal the case to the circuit court of said county, Jonesboro Division, said insurance company failed to make an affidavit for an appeal, and, at the instance of appellee, the appeal was dismissed by the circuit court on the 7th day of May, 1921, before any substantive step had. been taken in the case. The bond contained a provision that the surety would pay the judgment of the justice of the peace, tog-ether with the costs of the appeal, in case the appeal should be dismissed. On the 1st day of September, 1923, this suit was instituted in the circuit court of Greene County, First Division, against appellant, the surety in the bond, to recover the judgment, with interest and tbe cost of the appeal.
Appellant filed an answer denving the allegations in the complaint and pleading the five-year statute of limi- tations in bar of the action. The cause was tried upon the pleadings and testimony, resulting in a judgment in favor of appellee for $170.41, from which is this appeal.
Appellant first contends for a reversal of the judg"ment upon the alleged ground that the circuit court of G-reene County had no jurisdiction of the cause. It is argued that, because the appeal was dismissed for the want of an affidavit, a judgment could not be rendered by any court upon the bond. The case of Billingsley v. Adams, 102 Ark. 511, is cited in support of the contention. It was ruled in that case that the court to which the appeal was taken acquired no jurisdiction over the case, because an affidavit is a necessary prerequisite for an appeal. It was not ruled in that case, however, as contended by appellant, that the appellee was without a remedy upon the bond. The bond was a binding obligation, upon which suit might have been brought and a recovery had in any court having jurisdiction of the amount involved.
. Appellant next contends for a reversal of the judgment upon the alleged ground that the action was barred by the five-year statute of limitations at the time it was instituted. This contention is based upon the fact that the suit was brought more than five years after the'bond was executed and filed with the justice of the peace. The right of action on the bond did not accrue on the date that same was executed and filed, but when the case of appellee against the Bear State Life & Accident Insurance Company was dismissed by the circuit court of Craighead County, which was on the 7th day of May, 1921. The instant suit was commenced on September 1, 1923, or within five years after the dismissal of the appeal, and is not barred by the statute of limitations.
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Hart, J.,
(after stating the facts). It is earnestly insisted that the evidence is not sufficient to warrant the chancery court in finding that there was a conversion of the cotton by the Newberger Cotton Company. We cannot agree with contention of counsel for appellant. According to the testimony of A. L. Cray, he shipped 600 bales of cotton from his warehouse in Prairie View, Logan County, Arkansas, to Port Smith, Arkansas, and the cotton in question was in the lot. The Lesser-Cold-man Cotton Company insisted on allowing it to sell the cotton, and T. M. Mason, of the T. M. Mason Cotton Company of Port Smith, was employed to make the sale. Cray heard Mason talking with somebody at Little Eock about the sale of the cotton, and understood that there was an agreement to -sell it for ten cents the pound. After the conversation on the telephone was closed, he assisted in making an invoice -of the cotton and consigning it to the Newburger Cotton Company at Little Eock, Arkansas. The cotton in controversy was included in the list of cotton shipped by the Lesser-Coldman Cotton Company at Port Smith to the Newburger Cotton Company at Little Eock. The latter company paid the Lesser-Cold-man Cotton Company for the cotton, and refused to pay aupellees for it. Practically the undisputed testimony shows that -neither Cray nor the Lesser-Coldman Cotton Comoany had permission from the apoellees, who were the owners of the cotton, to sell it. It is true that appellant purchased the cotton upon the faith that the Lesser- Goldman Cotton Company had the right to sell it, and that the latter company sold it believing it had a right to do so as the cotton factor of A. L. Gray. These facts, however, do not relieve appellant from liability. Appellant’s liability to appellees rests upon the ground that it has converted, though in good faith, and under a mistake as to its rights, the property of the appellees. Appellant is therefore liable to respond in damages for the value of the cotton.
It is next contended by counsel for appellant that the measure of damages for the conversion of the cotton is the value of the cotton at the time of the conversion. This is the general rule, but it has been modified with respect to the conversion of property the market value of which is liable to frequent and great fluctuation. The proper measure of damages for the conversion of cotton, which is subject to depression and inflation of price in the market, is the highest price for which the same grade of cotton has been sold between the time of the conversion and a reasonable time after notice to the owner of -such conversion; in other words, the price at which the owner might have replaced the cotton within a reasonable time. Galigher v. Jones, 129 U. S. 193; Wright v. Bank of Metropolis (N. Y.), 1 L. R. A. 289; 6 Am. St. Rep. 356, 18 N. E. 79; Dimock v. U. S. Nat. Bank (N. J. L.), 39 Am. St. Rep. 643; Citizens St. R. Co. v. Robbins (Ind.), 42 N. E. 916; Brewster v.Van Liew (Ill) 8 N E. 842; and Wiggin v. Federal Stack, etc., Co. (Conn.), 59 Atl. 607.
Judge Peckham, who delivered the opinion in the case cited above from New York Court of Appeals, said that justice and fair dealing are both more apt to be promoted by adhering to the rule which imposes the duty upon the plaintiff to make his loss as light as possible, notwithstanding the unauthorized act of the defendant. It has been well said that to adopt the value as existing at the time of actual conversion would enable the wrongdoer to make the market for the owner and deprive him of his cotton, whether he so wills or not.
On the other hand, to adopt the highest value between the time of actual conversion and the trial would be to encourage the owner to delay and speculate upon the chances of hig*her markets without assuming the chances of lower markets. Justice can only be done in such cases by requiring the factor or broker to pay a sum sufficient to put the other party in a position as good as he had before the sale, and this can more nearly be done by holding the true and just measure of damages in these cases to be the highest intermediate value of the cotton between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the cotton.
There is nothing in the case of Hudson v. Burton, 158 Ark 619, which conflicts with this rule. In that case the landlord had a lien on his tenant’s crop for supplies furnished him to make and gather the same. The tenant moved away from the place, without paying his account. The landlord, under our statute, was entitled to the possession of the crop, in order that he might subject it to his lien for supplies furnished the tenant. He took possession of the property without resorting to law; but he had a lien on the property, which he might have asserted in the courts, and for that reason he was .only held liable to the tenant for the value of the crop at the time of its conversion.
In the case before us, appellant had no lien of any kind whatever on the cotton, and the rule announced above applies for the reasons given. The cotton was sold about the first of August, 1921, and the owners found out about it about the 10th of September, 1921. Cotton at that time had doubled in value, and the owners demanded the market value of that date.
Under the rule announced above, the finding of the chancellor in favor of appellee was fully justified by the evidence, and the decree will therefore be affirmed. | [
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Smith, J.
This cause was heard in the court below on a stipulation, from which we copy the following recitals:
Appellant operates a line of railroad through Perry County.
The State Tax Commission, in manner and form prescribed by law, certified to the tax assessor of' that county the valuation of the railroad’s property located therein, upon which valuation the taxes were to be assessed for the year 1922, and the valuation so certified was $791,442.
Subsequently the levying court of Perry County, at its October term, 1922,. increased the valuation of the railroad’s property 100 per centum above the valuation certified out by the Tax Commission for the county taxes only, but the valuation for other purposes was unchanged. No notice of this action was ordered or was given, but, pursuant to this action of the levying court, the valuation for county taxation purposes was extended against the property of the railroad amounting to $1,582,884, which action resulted in an increase of $3,957.21 in the amount of taxes levied against the property of the railroad.
The action of the quorum court was taken pursuant to an order of mandamus issued in the United States District Court for the Eastern District of Arkansas, Western Division, on the 3rd day of December, 1920, commanding the. assessing officers and the county collector to raise the valuation of all property in Perry County 100 per centum for county purposes, said mandamus being issued in aid of a judgment rendered in said 'court in favor of one Con Grabel against the county.
The revenues derived from the increased valuation were to be applied on said judgment, and were applied from year to year. On July 17, 1922, there was due and unpaid on said judgment the sum of $477.19, at which time the collector issued his cheek for $1,269.93, payable to the order of Grabel, to apply on' said judgment. Gaid check was drawn against the special fund realized from the collection of taxes for the year 1921 in the year 1922, and represented the balance of the special fund remaining in the hands of the collector on the day the check was drawn. The cheek was never delivered to Grabel, but was cashed by some one without authority.
A representative of the railroad applied to the collector of taxes for a statement of the railroad’s taxes, and the statement was furnished on April 9, 1923, as requested, and was based upon the increased valuation made by the levying court, and check for these taxes was remitted to the collector, and this was done without any protest or objection. The railroad company made no objection to the levying of the tax complained of as provided in §§ 9870, 9871 and 9872, C. & M. Digest. At the timé the payment was made the railroad was not advised that there had been collected in the year 1922, for the year 1921, sufficient taxes to pay the judgment in favor of Grabel.
At the time of the commencement of this, suit the defendant collector had in his hands, over and above the amount the railroad would have been required to pay upon the valuation as certified out by the Tax Commission, a sum of money equal to the excess thereof which the railroad had paid.
The parties alleged to have been concerned in cashing, without authority, the collector’s check to the order of G-rabel, as well as the banks through whose agency the collection was made, were made parties defendant.
Attached to the stipulation were exhibits showing the order of the levying court and the mandamus from the Federal court, which last-mentioned order contained the following provision: “It appearing that an-increase in the assessment of property above described for the county general purposes is all that is required to enforce the judgment of this court, this court does not assume jurisdiction further; and this order shall not apply to said assessment for any other purpose.”
There was a prayer in the complaint for a judgment directing the collector to return to the railroad the excess taxes sued for, and, upon submitting the cause on the stipulation set out above, each side asked that judgment be rendered in its .favor. Judgment was rendered in favor of the defendant, and the railroad company has appealed.
It is conceded that the taxes assessed upon the increased valuation were illegally levied. This concession is based upon the authority of the cases of State to use of Craighead County v. St. L. S. F. R. Co., 162 Ark. 443, 258 S. W. 609; Dickinson v. Housley, 130 Ark. 261; and Nelson v. Meek, 127 Ark. 349.
Several questions have been raised in the briefs which we find it unnecessary to consider, as, in our opinion, the payment was a voluntary one, the point being ruled 'by the opinion in the case of Brunson v. Board of Directors, 107 Ark. 24. There an owner of land in an improvement district paid to the collector of taxes certain assessments levied against his land. The assessments were illegal, and the payment was made under protest. The statute under which the collections were being made provided that, if the taxes were not paid within the time, limited by law for that purpose, the collector should file a list of the lands upon which the taxes had not been paid, and thereafter the improvement district would bring suit to enforce payment. The statute authorizing these suits provided that a decree directing the sale of the lands so returned delinquent should be entered to enforce the payment of the delinquent taxes. But the collector did not sell for the delinquent taxes; he merely reported the delinquency, and the authority to make the sale was derived from the decree which was to be rendered after the notice provided by the statute had been given to the landowner, in which the lands were adjudged to be delinquent, and were ordered to be sold unless the landowner paid the sum adjudged against the property within the time specified by the decree.
In that case a landowner whose lands had been taken out of the improvement district by an act of the Legislature, paid the taxes which had been illegally assessed against his land, under protest, and thereafter brought suit to recover them.
Under the facts stated we there held that the taxes were not paid under duress or compulsion. Upon tire authority of Lamborn v. County Commissioners, 97 U. S. 181, and Railroad Company v. Commissioners, 98 U. S. 541, we approved 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 'be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.”
After thus laying down the law, we said that the landowner “was in no immediate danger of being disturbed in the possession of his property, and he would not have jeopardized it by not paying the taxes at the time he did pay them. ■ No irreparable injury could have resulted from his not paying them at the time.. If he had refused payment to the collector, the latter had no authority to levy upon and seize his land to enforce payment. The statute requires suit to be brought by the board of directors of the levee district to collect the taxes. In the event of such suit, the plaintiff would have his day in court and the opportunity to plead and to offer proof in support of his claim that the taxes were illegal. He could have interposed the same defense to that action which he now asserts as the basis for his recovery in the present action. To hold otherwise would put it -in the power of the party paying under protest to choose his own time and opportunity for commencing suit. To permit a person to ignore the remedies permitted under the statute against the alleged illegal taxes upon real estate and pay them, with knowledge of all the facts, and then allow him to recover them back by suit, would be inconsistent with our tax laws. We are aware that there is a sharp and irreconcilable conflict in the authorities on this question, but we believe that our decision is in accord with the weight of authoritjr on the subject.”
What we there said is applicable here. The collector ■ of Perry County would not have seized or sold the property of the railroad if the payment had not been made. The collector of that county could only have done what the collector of the improvement district ■ did, to-wit: return the property as delinquent, after which a suit would have been necessary before the property of the railroad could have been sold for the nonpayment of the taxes. Sections 10’204'eí seq., C. & M. Digest. And in such a suit, as was said in the Brunson ease, supra, the railroad could have made the defense that the taxes were illegal.
A different proceeding is provided by statute for enforcing the lien for taxes against railroads from that employed against the lands of individuals. As to such owners the collector himself makes the sale, after notice has been given as provided by statute; whereas the collector of county taxes merely returns the property of a railroad as delinquent, as was the case in Brunson v. Board of Directors, supra, and the rule announced in that case therefore applies to the payment made by the railroad company in the instant case.
Our attention is called to the case of Dickinson v. Housley, 130 Ark. 259, where, under very similar facts, we permitted the receiver of the appellant railroad company to recover taxes illegally levied. An examination of that case and of the briefs filed by counsel shows, however, that the question of duress Avas not there raised, and our decision and opinion covered only the points raised by counsel. Had this point been raised, or had it suggested itself to us in our consideration of the case, we Avould necessarily have held, upon the authority of Brunson v. Board of Directors, supra, that the payment was a’voluntary one, and that the taxes paid could not be recovered on that account.
It follows therefore that the complaint of the railroad praying judgment for the taxes so paid was properly dismissed, and the judgment in favor of the defendant is therefore affirmed. | [
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Humphreys, J.
This suit was brought by appellants against appellee in the circuit court of Clark County to recover an alleged balance of $6,300 due them under contract for clearing and grubbing about 121 acres of the right-of-way of three roads in said county, between July 1 and December 1, 1919.
Many pleadings were filed by the respective parties, introducing a number of issues, but the real issue joined and upon which the case turned in the trial court was the amount of clearing and grubbing done, according to the measurement of the area under the proper interpretation of the contract relative thereto and as applied to the facts in the case, and whether, under a proper interpretation and application thereof, appellant had been fully paid for the work done.
The cause was submitted upon the pleadings, testimony and instructions of the court, which resulted in a verdict and judgment dismissing appellant’s complaint from which is this appeal.
There was no dispute about the price per acre which appellant was to receive for the work, the only dispute being the manner in which the amount of the acreage should be determined. Appellant was to receive $150 an acre for the work under the contract, and sublet it to J. W. Overton for $100 per acre. The engineers of the appellee estimated that only 54 acres had been cleared and grubbed, and appellees refused to pay for any acreage in excess of that estimate. A suit was brought by Overton against appellants, in which he recovered $4,200 additional upon the theory that his contract with appellants allowed a recovery for the entire acreage contained in a station if he did any clearing or grubbing in said station. The highways of the various roads embraced in the contract had been divided into stations and numbered for purposes of convenience in identifying any particular .part of the road. Overton claimed a greater estimate in acreage than the jury allowed, in arriving at their verdict. Appellants defended that suit upon the theory that the contract they made with Over-ton was the same, in substance, as the contract they made with appellee, and that Overton should only recover for such acreage as they were entitled to receive pay for from appfellee. During' the pendency of this suit a settlement was reached between appellants and appellee as to the amount due them for the construction of the road, excepting from the contract appellants’ claim for additional acreage due them on account of the Overton claim and suit. The settlement contract was reduced to writing, and contained the following exception relating to the Overton suit: “If said contractor (Overton) finally collects judgment from C. A. Rees & Company, then the said C. A. Rees & Company have not, by this agreement and settlement with the said road district, released their right to sue the.road district to recover such amount as-they shall have been compelled to pay said Overton.”
The settlement aforesaid was introduced in the case, appellant contending that, under it, appellee agreed to pay appellants any amount that Overton might recover against them, and appellee contending that it preserved the right of appellants to test out their claim of extra acreage in the courts if Overton recovered a judgment against them. We think the latter construction of the settlement contract -correct, and that the issue should not have been submitted to the jury as was done by the court. The submission of the issue, however, was not prejudicial to appellant, but was favorable to him.
The reversal of the judgment is also sought upon the ground that a number of the jurors owned property and were taxpayers in appellee Improvement District No. 1 -of Clark County, Arkansas, and that -Graham Brown, one of the jurors, was also in business with one of the attorneys for appellee, and with Mr. Clark, one of the commissioners of said district. The jurors were examined very carefully upon their voir dire, and stated that they would not be influenced in returning their ver-, diet -on account of being owners of land and taxpayers in said district.- The amount of any judgment which might have been rendered when apportioned amongst the taxpayers would have been almost infinitesimal. Their interest was so slight that it is easy to see how they might answer, under oath, that they would not permit their interest to influence them in arriving at a verdict. This court ruled in the case of Osborne v. Board of Improvement of Paving District No. 5 of Fort Smith, 94 Ark. 563, that the “interest that will disqualify a judge must be direct and immediate, and not contingent and remote,” citing in support of the ruling Mr. Works in his “Treatise on Courts,” p. 396, and, in making the ruling, said: “It does not appear that the chancellor had any interest in the real estate of the litigation other then the general interest which any other citizen and property owner in the district had, * * * which is, at most, only a remote interest and not a direct one.”
Neither do we think that, because Graham Brown was associated with one of appellee’s attorneys and one of the commissioners in business, he was necessarily disqualified as a juror. He stated that his association with these gentlemen in business would not influence his verdict.
The court did not abuse his discretion in permitting the jurors to serve and in refusing to sustain the challenges to them.
Appellant also seeks a reversal of the judgment because the court refused to permit H. H. Catchings to testify, in rebuttal, that according to the evidence of Overton and the statement filed with his testimony, he had cleared and grubbed 107 acres. Overton, one of the witnesses in the case, attached a statement to his evidence showing, according to his figures, that he had cleared and grubbed 122 acres, but the accuracy of this statement had been questioned and the acreage very much reduced by two witnesses introduced by appellee. The testimony of H. H. Catchings was offered to counteract the effort of the testimony of the two witnesses last referred to. If the evidence of Overton and the statement he attached involved calculations which any one could make, both the evidence and statement were before the jury, and the court properly excluded the testimony of H. H. Catchings in verification thereof. It was not shown that, in order to reach a correct result in the calculation of the number of acres which Overton had cleared and grubbed, expert knowledge was required.
Lastly, a reversal of the judgment is sought upon the ground that the court, in effect, peremptorily instructed a verdict, and, in doing so, excluded the theory of appellants that, in the beginning, the engineers of appellee interpreted the contract as allowing pay for the entire area in a section if any clearing’ was done therein upon which they acted to their damage. There was some testimony introduced in the case tending to show that the engineers for appellee so construed the contract, and that appellants governed themselves in subletting the contract by such interpretation, and were compelled to pay Overton upon that basis.
Section 53 of the contract provided that the engineers should have “full supervision, * * * and his decisions # # * as to the meaning of all drawings and specifications should be final and conclusive. He shall determine the amount and quantity of the work of the several kinds performed.” Belying upon this provision of the contract, the court abandoned his construction of § 83 (c), 53, 62, 65 and 68, when read together, as meaning that, if any clearing or grubbing was done in a station, the contractor should receive pay for the entire acreage within the limits of the station, and instructed the jury that the estimate of the engineers -as to the amount of the clearing and grubbing was final and binding upon appellants, unless the engineers made a gross mistake in measuring the clearing and grubbing. This instruction gave a binding effect to the final estimate of the engineers, irrespective of how they arrived at their measurements and irrespective of whether they adopted a different method at the outset and during the progress of the work from that adopted on final -settlement. The contract contained the clause “that the quantity shall be measured according to the United States standard measurements. ’This clause was binding upon the engineers, and, unless they followed the correct rule, their estimates would not be binding upon the parties.
Appellants had witnesses present to show what the United States standard measurements were, but, until near the close of the trial, the court held to -the view that the contract, as a whole, meant that, when clearing or grubbing was done in any station, the contractor was entitled to pay for the entire acreage in said station. After the court placed this construction upon the contract, appellants excused their witnesses, and, when the court abandoned this view and permitted appellee to prove by witnesses what the United States standard measurements meant, appellants were not prepared to meet the proof. This greatly prejudiced their cause, as they claim the rule was not correctly defined by appellee’s witnesses. The instruction given therefore ignored this provision of the contract, and was prejudicial. It was also prejudicial because it permitted the engineers to adopt one method of arriving at the measurements in the beginning .and during the progress of the work and later change it, even if the contractor had acted upon the first method adopted and sublet the contract upon that basis. There was testimony introduced tending to show that, both at the outset and during the progress of the work, the method adopted by the engineers in arriving at the acreage in this and many other districts was to calculate the entire area in a station where any clearing and grubbing was done. One witness testified that this method was adopted to equalize the light and heavy work, and thereby accomplish an equitable result.
The appellants requested instruction No. 5, which was refused, over their objection and exception. It correctly declared the law applicable to the facts upon that phase of the case, if true. 'The instruction is as follows;
“You are instructed that, if you find that the engineers interpreted the 'contract with reference to measurement of clearing and grubbing, at the outset, to be that a full station is allowed where any clearing and grubbing is done between 'stations, and the defendants adopted same, and the plaintiffs acted on the said interpretation to their injury, the defendant is estopped, and you will find for the plaintiff.” The court committed reversible error in refusing to give this instruction.
On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, J.
C. N. Houck prosecutes this appeal to reverse a judgment of conviction against him for permitting his stock to run at large, in violation of the statute.
The Legislature of 1915 passed an act for the creation of districts wherein live stock might be prevented from running at large, and the validity of the act was sustained in Harrington v. White, 131 Ark. 291. The Legislature of 1919 passed an act to provide a stock law and regulate tlie operation of the same in Columbia County. 'Special Acts of 1919, p. '648. It was claimed that this act repealed the act of 1915 referred to above, and in McIlvene v. Warren, 150 Ark. 627, it was held that the statute of 1915 was not repealed or suspended until there was a complete adoption of the statute of 1919 in the whole of Columbia County. In other words, it was held that, until the new act had been voted on and adopted, it' was to be considered as an accumulative act.
The Legislature of 1923 passed an act for-the purpose of amending § 10 of special act No. 510 of 1919, in the method of voting for or petitioning for or invoking the stock law as applied to Columbia County. Act 173- of tire''Special Acts of 1923, p. 328.
Section 1 of this act provides that § 10 of act 510 of the Special Acts of the G-eneral Assembly of 1919 be amended so as to read as follows:
“Section 10. If it is shown by the return of any election under this act that a majority of the electors of any township or any number of townships vote for ‘stock law’ four months thereafter, this act shall be íd operation in such township or townships; but, if a majority of the electors of any township in Columbia County, where this act is not now in operation and effect, file a petition ‘for stock law’ before the general election in 1924, with the county clerk of said county, four months after date of such filing, this act shall become operative and be in full force and effect in such township or townships until suspended by a vote of the electors as in this act provided. Where a majority of the electors of any township or townships in Columbia County, Arkansas, in which this act is now in operation and effect, file a petition ‘against stock law,’ before the general election in 1924, with the county clerk of Columbia County, Arkansas, four months after the date of such filing’, the operation of this act shall be suspended in such township or townships, until put in force and effect by a vote of a . majority of the electors of any township or townships as in this act provided. By this act it is intended to provide a method by which and a law under which the citizens of Columbia County, Arkansas, may, within any locality, control and regulate the restraining and running at large of horses, mules, asses, goats, sheep, geese, jennets, and cattle and hogs. ’ ’
The act was approved February 23, 1923, and it is claimed by counsel for the defendant that it repealed the act of 1915 referred to above, in so far as Columbia County is concerned. No election was-held or petition filed under the provisions of § 1 of act 173 of the Legislature of 1923. •
The case was submitted to the circuit court without a jury, and the court found the. defendant guilty of permitting his stock to run at large, in violation of the provisions of act 156 of the Legislature of 1915, and assessed his punishment at a fine'of'$5. ' ■ ’ '
The facts sustained the finding of the circuit court, and the sole question raised by this appeal is Whether or not act 173, passed by the Legislature of 1923,. repealed ■act-156, enacted by the Legislature of 1915, in so far as it affects' Columbia County.
There has been no express repeal of the act of 1915 ■referred to; and repeals by implication are not favored. To produce this result, the two acts -must be upon the same subject and there must be a plain repugnancy between their provisions, in which case the latter- act, without the repealing clause; operates, to'the extent of repugnancy, as a repeal of the first. Coats v. Hill, 41 Ark. 149; Blackwell v. State, 45 Ark. 90; Sanderson v. Williams, 142 Ark. 91; Bank of Blytheville v. State, 148 Ark. 504; and Aetna Casualty & Surety Co. v. North Little Rock, 157 Ark. 291.
Tested by this rule, we do not think that the act of 1915, under which thé defendant was convicted,'was repealed by the special act of 1923 copied above. As we have already seen, an act cannot be repealed by implication, unless the implication necessarily follows from the language used.
. In Wood v. United States, 16 Pet. (U. S.) 342, Jndg*e Story said:
“We say by necessary implication; for it is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by it; for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and evexi then the old law is repealed by implication only pro tanto to the extent of the repugnancy.”
Section 1 of the special act of 1922 purports to amend § 10 of the special act of 1919, “so as to read as follows,” and thereby repeals everything contained in said § 10 not reenacted; and the amended statute is to be construed as if the statute had been originally enacted in the amended form.
The general act of 1915 is to be superseded by the operation of the special act of 1923 upon the occurrence of a definitely specified contingent event, and that event is. the action of the majority of the people in any township or townships in Columbia County. Therefore, it will be seen that the general act is to be repealed by legislative authority exercised, through the electors of the various townships of Columbia County as its chosen agency. The1 operation of the general statute is not suspended until the special act of 1923 is put in operation by some act of the electors in the way specified in the statute. Until the prescribed action is taken by the electors of any township or townships, the old statute is in force, and the new statute is merely cumulative or auxiliary to it.
In Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769, Ann. Cas. 1915D, p. 99, the Supreme Court of Florida held that a statute may be, in whole or in part, repealed or superseded or abrogated by implication of law, as the result of the due enactment of a subsequent statute covering the same subject, or by the operation of a later statute upon the occurrence of a definitely specified contingent event.
The result of our views is that the judgment of the circuit court was correct, and should be affirmed. | [
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McCulloch, C. J.
Appellant instituted this action in the chancery court of Union County to quiet title to a tract of land containing ninety-seven acres, which she acquired by inheritance or gift from her father, L. C. Burgess. 'She also claimed title by adverse possession for the statutory period of limitations. The action was instituted against the other heirs of L. C. Burgess, who are the children of appellant’s deceased sister, Eula Walton, née Burgess, and against the Union Sawmill Company, a corporation which claims to hold a conveyance of the pine timber on a portion of the lands.
It appears from the pleadings and undisputed proof in the case that the land in controversy was originally owned by L. C. Burgess, who was also the owner of other lands in the same immediate locality. L. C. Burgess had three children — appellant, a daughter, and Eula Walton, another daughter, and E. D. Burgess, a son; he also had a brother named B. M. Burgess. L. C. Burgess executed a timber deed to one Starrett, conveying the pine timber on eighty acres of the land in controversy. Starrett subsequently assigned the deed to appellee, Union Sawmill Company. L. C. Burgess conveyed a tract of his land, containing 120 acres, to his daughter, Eula Walton. It appears also from the evidence that he prepared and1 executed a deed for another tract of 120 acres to appellant, his daughter, but there is some conflict in the testimony as to what disposition was made of the deed — whether or not it was delivered. It is undisputed, however, that the deed was either undelivered or was returned to L. C. Burgess, and that he conveyed the land to his brother, D. M. Burgess. Appellant contends that her father agreed to either give her the proceeds of the sale of the land to D. M. Burgess or to convey to her other land. This was not done, however, and there is testimony to the effect that there was an estrangement between appellant and her father.
On June 21, 1913, L. C. Burgess executed to his son, E. D. Burgess, a deed conveying the land in controversy, which said deed reads as follows:
“Know all men by these presents: That I, L. C. Burgess, of New London, Union County, Arkansas, for and in consideration of the sum of one dollar, to me in hand paid by E. D. Burgess, the receipt of which I do hereby acknowledge, and with the further consideration of the care and love I have for the said E. D. Burgess, who is my only son, do hereby grant, bargain, sell and convey unto the said E. D. Burgess, and unto his heirs and assigns forever, the following- lands lying in the county of Union and State of Arkansas, to-wit: (Here follows a description of the land in controversy). Conditioned, that if the said E. D. Burgess remains single and unmarried he shall have the rights, rents and' profits of the said land when single and unmarried; if single and unmarried at death, then the said lands shall revert to the estate of L. C. Burgess. If the said E. D. Burgess marries and has a family, in addition to the rights, rents and profits of the said lands he shall — the further right to sell and convey or dispose of the said lands as he may consider proper and right. On this condition to have and to hold the same unto the said E. D. Burgess and unto his heirs and assigns forever, with all appurtenances thereunto belonging.”
It appears that these several conveyances herein-before mentioned covered all of the lands mentioned by L. C. Burgess. There is no proof in the case that he left any other estate at the time of his death, which occurred on September 23, 1913.
E. D. Burgess took possession of the land in controversy under the deed from his father, and occupied the same until his death, which occurred on November 5, 1920. After his death, appellant took possession of the land, and has occupied the same up to the present time.
Eula Walton died September 5, 1900, leaving appellees, Clyde Pagan, Zella McClendon, Euretta Walton and C. F. Walton as her children and only heirs at law.
The timber deed executed by L. C. Burgess to Starrett was dated February 28, 1903, and it conveyed the pine timber on eighty acres of the land, and specified eleven years from the date of the deed as the period within which the timber should be removed, and provided that the time might be further extended by payment of an annual rental of twenty dollars. E. D. Burgess entered into a contract with the Union Sawmill Company on February 28, 1915, for an extension of the period for removal of the timber during a period of twenty years from the date of the instrument, and there was paid to him by the Union Sawmill Company a consideration of $400. The Union Sawmill Company was joined as defendant in the suit in a prayer that the timber deed be canceled, and the company answered setting up the original deed from L. C. Burgess and the extension deed from E. D. Burgess, claiming title to the timber and the right to remove the same within the period specified in the contract with E. D. Burgess.
The case was submitted to the chancery court on oral testimony as well as the several documents hereinbefore referred to, and the court rendered a final decree, finding that appellant is the owner of an undivided one-half interest in the lands in controversy, and that appellees, children of Eula Walton, are the owners of the other undivided one-half, all subject to the timber rights of the Union 'Sawmill Company, and that the latter is the owner of the pine timber on an undivided one-third of the eighty acres of' land constituting part of the lands in controversy.
Appellant has prosecuted an appeal, and contends that she is entitled to the whole of the tract of land in controversy, free of any claim of the Union Sawmill Company to timber rights, and the Union Sawmill Company has also cross-appealed, claiming that it is entitled to all of the pine timber on the land under the renewal deed from E. D. Burgess.
The first question for determination relates to the ownership of the land. All of the appellees have joined in the brief, and contend that the deed of L. C. Burgess to E. J). Burgess conveyed the title in fee, and that the renewal timber contract executed by E. D. Burgess to the Union Sawmill 'Company was binding on all the parties to this action who inherited the land from him. On the other hand, it is contended on the part of appellant that the deed to E. D. Burgess did not convey the title in fee, but either conveyed a life estate or a conditional fee, which reverted to the heirs of the grantor on failure of the condition. The contention of counsel for appellees that the deed conveyed the absolute fee to E. I). Burgess is that the condition expressed in the deed is in conflict with the granting clause, and is void. They rely upon the decision of this court in the case of Carl Lee v. Ellsberry, 82 Ark. 209, and they cite that case as controlling the present one. We do not agree, however, with counsel that the case referred to is controlling, for the framework and language of the deed are entirely different. In the present case the condition is expressed in the granting clause itself, and not merely in the habendum, and it is also included in the habendum clause. In this respect.the facts of the present case fall squarely-within the rule announced by this court in McDill v. Myer, 94 Ark. 615, where it was held that a condition expressed in a deed was not void unless found to be in conflict with the granting clause. Our conclusion therefore is that the deed did not convey an absolute fee.
In order to determine the present status of the title, it is unimportant whether the deed be construed as conveying merely a life estate or whether it conveyed the fee with a condition subsequent attached, for, according to the undisputed evidence, the condition stated in the deed was never performed, in that E. D. Burgess died without having married, and the title passed to appellant and appellees, the children of Eula Walton, by inheritance, and this was in accordance with the decree of the chancery court.
The contention of appellant is that the deed to Eula Walton was an advancement, and that, since appellant got nothing else from her father’s estate, she is entitled to this land, because the amount of land conveyed to Eula Walton constituted her full share- in her father’s estate. It is urged that the -conveyance by the father to the daug’hter without other consideration is presumed to have been intended as an advancement rather than a gift. The principle of law contended for by counsel for anoellant is correct, -but, after all, it is a question in any given case to determine whether the facts show that the intention of the grantor was to make an advancement or to make a gift. In the case of Holland v. Bonner, 142 Ark. 214, we said:
“The question as to whether or not a conveyance or transfer of money or property is regarded as a simple gift, or advancement, or a sale, is to be determined by the intention of the parent. The question as to what was the intention is generally purely one of fact, to be ascertained from the circumstances of the transaction. The donor’s intention is the controlling principle, and, if it can be said, from all the circumstances surrounding a particular case, that the parent intended a transfer of property to a child to represent a portion of the child’s supposed share in the parent’s estate, such transfer will be treated in law as an advancement. Conversely, if it appears that the ancestor intended that a gift to his child should not be treated as an advancement, such intention will prevail.”
In that case it was held that the circumstances were such as to warrant a finding that the presumption of advancement was overcome, and that the parent intended the conveyance as a gift. Likewise in the case of Latiner v. Moore, 152 Ark. 577, we announced the same principle of law, and held that the circumstances, about which there was a conflict in the testimony, were sufficient to support a finding of the chancery court that the transfer of the property was intended as a gift rather than an advancement. So we conclude in the present case that the circumstances are such that we cannot say that the chancellor erred in finding that the conveyance by L. C. Burgess to his daughter was a gift rather than an advancement. The circumstances are such as .reasonably warrant the inference that L. C. Burgess was dividing up his property by gifts to his several children, and that he disposed of all of his property by gift without any intention of leaving an estate from which advancements to his children should be deducted. He made a conveyance to his daughter, Eula Walton, and also to his son, and the proof shows that the other tract of land which he owned was first covered by a deed to appellant, but that deed was either undelivered or was surrendered, and the land subsequently conveyed to the brother of L. C. Burgess. All this clearly indicates that the parent was parceling out his property by sale or gift, and was not making an advancement. Moreover, there is proof from which the chancellor might have found, and doubtless did find, that there was an estrangement which arose between L. C. Burgess and appellant, and that he had no intention of reserving any of his property for her, but intended to give it to his other children.
We conclude therefore that the decree, was correct in holding that the conveyances were not made as advancements, and that the children of Eula Walton are not cut out of their inheritance of an interest in the lands in controversy.
This disposes of the question of the title to the property, and there only remains the question of the rights of appellee Union Sawmill Company. We have already disposed of the argument that E. D. Burgess had the fee and the right to convey the timber. It is further contended, however, by counsel for appellees, that, even though E. D. Burgess was merely a life tenant, or the holder of a conditional fee, his timber contract was valid as against others interested in the property. We do not agree with this argument of counsel. If Burgess was a mere life tenant, he had the right, of course, to dispose of the timber for the purpose of cultivating the land, if it was good husbandry to do so. McLeod v. Dial, 66 Ark. 10; Rutherford v. Wilson, 95 Ark. 246; McCarroll v. Fall, 129 Ark. 245; Causey v. Wolfe, 135 Ark. 9. But it is obvious from the length of time given that the intention was not to dispose of the timber in order to open up the land,' but that it was merely a commercial venture, and a long period of time, twenty years, was given for the removal of the timber. This may have been called good business judgment as a commercial venture, but it is not good husbandry to give an extension of twenty years to remove the timber from land which was intended for cultivation by the owner. The effect of the renewal contract executed by E. D. Burgess merely constituted a new sale, and it was dependent entirely upon the right or authority of E. D. Burgess to sell the timber. This contract gained no vitality from the original contract executed by L. C. Burgess. Appellee Union Sawmill Company is not in any better attitude if the deed from L. C. Burgess to E. D. Burgess be treated as a conveyance of a conditional fee, for the company took the conveyance' of the timber right subject to the condition, which has failed. The Union Sawmill Company is like any other purchaser who takes title subject to a condition expressed in a deed of a prior grantor, and must abide by the terms of the deeds in the chain of title. The one-third interest in the timber awarded to the sawmill company by the chancery court is as much interest as it is entitled to under this renewal deed from E. D. Burgess, and our conclusion further is that the company was entitled to that much of the timber. Treating the deed either as conveying a life estate or as a conditional fee, E. D. Burgess was, after the death of his father, the owner by inheritance of one-third of the reversionary interest, the other interest being owned equally by appellant and the other daughter, Eula Walton. Appellant and the other heirs are bound by the timber deed to the extent that it conveyed the interest of E. D. Burgess.
We are of the opinion that the decree of the chancery court was therefore correct in every particular, and the same is affirmed. | [
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Smith, J.,
(after stating the facts). The jury found against the will, and the contestee insists that there was no testimony legally sufficient to support that finding. We think, however, that there was enough testimony to warrant the submission of the issues of lack of testamentary capacity and of undue influence to the jury, and, this being true, we do not stop to consider what the preponderance of the testimony shows.
■ We do not think any error was committed in refusing to give the instruction directing the jury to disregard the testimony showing that Mr. Kennedy had been arrested on three occasions. This testimony was admitted without objection, and counsel for contestee asked questions relating to those incidents, which elicited answers exculpating Mr. Kennedy. There appears to have been no denial that Kennedy was guilty of speeding, and, while this does not appear to involve moral turpitude which would tend materially to impair the credit of the witnesses, we cannot say that the jury should have been told to disregard it, especially as the testimony had been admitted without objection. We do not understand that Mr. Kennedy denied having shot a man in Kentucky, and this was not therefore a mere accusation agninst him, although he was not indicted. The charge against Kennedy in regard to having carnally abused a child appears to have been a mere accusation, and, had the request to exclude been limited to it, the court should have excluded that testimony.
We have frequently, and recently decided that a witness cannot be interrogated on his cross-examination for purpose of impeachment concerning indictments or mere accusations of crime. He may be asked if he was guilty or was convicted, but he cannot be asked if he was indicted or accused. Johnson v. State, 161 Ark. 111; Jordan v. State, 165 Ark. 506; Parnell v. State, 163 Ark. 316.
But, as we have said, the instruction was not asked until after this testimony had been admitted without objection, and the request, as made, included not only the mere, accusation of having carnally abused the child, but included also the admitted acts of speeding and of having shot a man.
The reference in the argument to appellant having been accused of train robbery was, of course, improper; but the court sustained the objection thereto, and told the jury that this testimony had been excluded and should not be considered, and we think this admonition removed any prejudice resulting therefrom.
We are also of the opinion that the argument of counsel that appellant had committed the offense of carnal abuse was improper; but no objection appears to have been made to it.
Contestee asked an instruction numbered 17, reading as follows: “The evidence of statements and declarations on the part of Sue E. Kennedy of her intention to make a will or not make it, disposing of her property in a certain way, can be considered by you for the purpose only of determining whether she was sane or insane at the time she signed the will.”
This instruction obviously related to the testimony that Kennedy had caused a will, similar in its provisions, in that he was made the chief beneficiary, to be prepared, and that his wife had refused to sign it, and had stated that she would never sign such a will so long as she was in her “right mind.”
It is conceded that this testimony was competent on the issue of lack of testamentary capacity on the part of the testatrix, and it is insisted that the instruction was asked for the purpose of excluding the. testimony from the consideration of the jury when they came to the question of undue influence, and it is urged that the instruction should have been given upon the authority of the case of Mason v. Bowen, 122 Ark. 407, where we said: “It seems to be well settled, both by text-writers and the decisions of courts of the various States, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, statements or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external fact, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.”
In so announcing the law, we quoted the decision of the Supreme Court of Tennessee in the case of Hobson v. Moorman, 115 Tenn. 73, which case is annotated in 5 Am. & Eng. Ann. Cas. 601, and 3 L. R. A. (N. S.) 749.
This case, as we said in Mason v. Bowen, supra, was a well considered case, and, by approving and following it, we are committed to the doctrine that the statements and declarations of a testator, whether made before or after the execution of the will, are not competent as direct or substantive evidence of undue influence, and counsel insist that the purpose and effect of the refused instruction was to apply that doctrine to the facts of this case.
But the instruction was not so worded. It did not tell the jury that the testimony of Mrs. Kennedy in regard to the disposition of her estate could not be considered on the question of undue influence. It stated that this testimony could1 be considered for the purpose only .of .determining whether Mrs. Kennedy was sane or-insane .'at the time she signed the will. The case of Hobson v. Moorman, which we followed in Mason v. Bowen, does not thus limit the testimony. Mr. Justice McAlister, who delivered the opinion of the court in that case, there said: “In our opinion, the great weight of authority confirms the rule, announced by the circuit judge in his instructions to the jury, that such previous declarations (indicating the disposition which the testator intended to make of his estate) are always admissible for the purpose of illustrating the mental' capacity of the testator and his susceptibility to extraneous influence, and also to show his feelings, intentions-, and relations to his kindred and friends; but such declarations are not admissible as substantive evidence of undue influence.”
Had the requested instruction been given, the jury would have had no right to consider the declarations of Mrs. Kennedy for the'purpose of showing her feelings towards the parties to this litigation, and. the evidence was competent for that purpose, although it was not admissible as substantive evidence of undue influence.
The court gave, over contestee’s objection, an instruction numbered 7, reading as follows:' “The jury, are instructed that, if you find from the testimony in this case that the defendant, H. B. Kennedy, unduly influenced' the deceased, Sue Kennedy, to execute the alleged will in his favor, by constant' entreaty, importunity or persuasion, and that, on account of her weakened1 physical condition, she yielded to his request and executed, the same, then your verdict will -be for the plaintiffs.”
The objection to this instruction is that it rendered ' the will inyalid on account of Mrs. Kennedy’s weakened physical condition if, while she was in such condition, Kennedy exercised influence on her which induced the execution of the will. It is, of course, the law that a person’ may enjoy full testamentary capacity although he is suffering from extreme physical weakness or from the violence of disease; but the jury may 'consider the evidence showing the physical condition of the testator in determining whether a will executed under those circumstances was in fact the will of the testator. The instruction does not direct the jury to find for contestants because an influence was exercised on Mrs. Kennedy while she was in a weakened physical condition, but to do so if she was unduly influenced while in that condition, and other instructions defined undue influence in accordance with the decisions of this court on that subject as announced in McCulloch v. Campbell, 49. Ark. 367.
■ We understand the instruction.to.'mean that, if the jury should-find that if Mrs.’ Kefinedy was induced by constant entreaty, importunity or persuasion to execute the will, and'that she was'unable, because of her physical condition, to resist this entreaty, importunity or persuasion, when she would not have yielded otherwise, that ah undue influence had bben exercised, and, as thus interpreted, the instruction is 'the law. The instruction might more accurately have expressed this idea, but there was no specific objection to it, and, as we have said, other instructions given on behalf of contestee made it plain to the jury that Mrs. Kennedy could make a valid will notwithstanding her weakened'physical condition, if she possessed testamentary capacity, and that the will would not be invalid because of undue influence on account of Kennedy’s'conversations with his wife on that subject, if she knew and understood what she was doing, and had not been induced so to do because she was unable, on account of weakened physical condition, to resist influences brought to bear upon her whereby she executed a will which she would not otherwise have made.
The court gave, over contestee’s objection, an instruction numbered 5, reading as follows: “The jury are instructed that, if you find from the testimony in this case that the testator, in the execution of the will, did not act intelligently or voluntarily and as a free agent, but was subject to the will and purpose of the defendant, H, B. Kennedy, then your verdict will be for the plaintiffs and against the will.”
The objection to this instruction is that it leaves out of account any consideration of the question of undue influence, and that, under this instruction, the jury would! have to find against the will, although the jury might believe that Mrs. Kennedy was subject to the will of her husband because of her love for him and her desire to benefit him. ¡We do not think the instruction is open to this objection. The jury was not instructed to find against the will upon the mere finding that Mrs. Kennedy had become subject to the will and purpose of her husband, but to do so if they found that she did not act intelligently or voluntarily and as a free agent. The influence would be an improper one if it deprived the testator of the capacity to act intelligently or voluntarily and as a free agent, and we think no error was committed in giving the instruction.
Certain other questions are raised which we do not think require discussion, and, as we find no prejudicial error, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). The view we have reached renders it unnecessary to decide whether or not the change from the overhead to the up-feed system was a material one, for the reason that we are of the opinion that, under the facts and attending circumstance, the doctrine of equitable estoppel applies, and the defendant has waived the right to have the overhead system of heating installed.
In 'discussing the doctrine of equitable estoppel, Professor Pomeroy says that acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. 2 Pom. Eq. Jur. 3d. ed., § 818. The general doctrine is that, if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. In other words, to constitute silence an estoppel there must be both the opportunity and the duty to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining silence must be in a situation to know that some one is relying thereon to his detriment. Indiana Lumbermen’s Mut. Ins. Co. v. Meyers Stave & Mfg. Co., 164 Ark. 359, and cases cited; and Brownfield v. Bookout, 147 Ark. 555.
This principle of equity and of natural justice, under the facts and attending circumstances of this case, decides the case against the defendant. The undisputed proof shows that the contract was prepared by the architects of the defendant, and that they were to have general charge of supervising and directing the installation of the heating plant in the theatre and two stores of the defendant. The judgment of the architect about the kind of heating system was taken.. The overhead system was adopted because it was understood that the boiler was to be located in the basement, and that it could not be set deep enough in the ground to install the up-feed system and .at the same time to get proper drainage. This seems to have 'been understood by the plaintiff as well as the architect. The superintendent of the plaintiff discovered, before the work of installing the heating system had begun, that the basement would be deeper than the profile showed, and that proper drainage could be secured. He at once informed the architect of this fact. The architect then instructed him to change from the overhead to the up-feed system. It was known that it would cost somewhat less to install the up-feed system than it would the overhead system, and the plaintiff agreed to make a corresponding reduction in its price. The architect does not remember, but thinks that he told the defendant of the change a day or two later. In any event, the foreman of the defendant was told of the change.
It was also shown that the defendant lived in the town where the work was being done, and himself directed the superintendent of the plaintiff to make some minor changes in the work as it progressed. After the heating system had been installed, fires were placed in the engine and the water in the boiler heated for the purpose of testing the plant. The defendant was present, and, after the building had been sufficiently heated, ordered the fires drawn. He was not a witness in the case. Under the circumstances just detailed, it is fairly inferable that he knew that the change from the over head to the up-feed system had been made, and that the change was due to the instructions given by his own architect. In the face of these facts, the defendant permitted the plaintiff to go ahead with the installation of the heating system under the changed plans. If he proposed to dispute the rights of his own architect to change the plans under the contract, good faith required that he should have done so before the plaintiff went to the trouble and expense of installing the heating system. The evidence shows that the plaintiff acted in perfect good faith in the matter, and in reliance upon the instructions given its agent by the architect of the defendant. The conscience of the defendant was therefore touched in the matter, and, after allowing the plaintiff to install the changed system without objection on his part, he must he presumed to have consented to the change, and the doctrine of equitable estoppel applies in this case.
Counsel for the defendant also seek to uphold the decree on the ground that the up-feed system was not properly installed, and that, on account of the defects in the work, the plaintiff should not be entitled to recover. On this point the testimony is in direct and irreconcilable conflict. On the part of the plaintiff it was shown by the architect and by the superintendent and foreman of the plaintiff that the work was done in an efficient manner, and that there was no defect in the work, except one minor leak, which they offered to repair. On the other hand, it was shown by the defendant that the system was not properly installed. The witnesses on each side gave in detail their reasons.for testifying as they did. Here again it is not necessary to decide where the weight of testimony on this point lies. The contract provides that the architect shall have general supervision and direction of the work. The work was performed according to the architect’s instructions and was approved by him. After the defendant refused to pay for the work, the plaintiff offered to make a test of the system and to show the defendant that it had been properly installed, and that it would heat the buildings in an efficient manner. The contract provided that the architect of the defendant should make decisions on all claims of the owner or contractor. He approved of the work done by the plaintiff, and, as we have already seen, it is fairly inferable that the defendant was present during all the time the heating plant was being installed. The architect’s decision is conclusive that the work was done according to' the specifications, and there is nothing-in the record to show that his decision was the result of gross mistake or the failure to exercise an honest judgment in the matter. Boston Store v. Schleuter, 88 Ark. 213; Carlile v. Corrigan, 83 Ark. 136; Hatfield Special School Dist. v. Knight, 112 Ark. 83; and Hot Springs Ry. Co. v. Maher, 48 Ark. 522.
The result of our views is that the chancellor erred in rendering a decree in favor of the defendant, and, for that error, the decree must be reversed, and the cause remanded with directions to the chancery court to render a decree in favor of the plaintiff, and for such further proceedings as he may be entitled to in equity. | [
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Hart, J.,
(after stating the facts). This court has held that the filing of a complaint supported by the affidavits of ten reputable citizens, who are members of the party holding the primary election, within the time prescribed by the statute, is a jurisdictional prerequisite, and that, if it is not filed within the statutory time, the circuit court has no jurisdiction to hear or determine the contest. Logan v. Russell, 136 Ark. 217, and McLain v. Fish, 159 Ark. 199.
Counsel for the contestant, however, contends that the ten days required by the statute within which to file the complaint did not begin to run until the certificate of nomination was given Mrs. Land by the Democratic county convention, on the 18th day of August, 1924, or, in any event, that it did not begin to run until Saturday at noon, the 16th day of August, 1924.
The right to contest is given by § 3772 of Crawford & Moses’ Digest. The section provides that a right of action is hereby conferred on any candidate to contest the certification of nomination or certification of vote as made by the county central committee.
It provides further that the complaint shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten. days of the certification complained of.
As we have already seen, the right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit. Thus it will be seen that a right of action is given any candi date to contest the "certification of vote as made by the county central committee. The statute is unambiguous in this respect, and it was evidently the intention of the Legislature to provide for a speedy hearing and determination of a contest.
In our opinion it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of nomination had been actually issued by either the county convention or by the county central committee. We think that, when the county central committee has canvassed and tabulated the votes, and it is ascertained by this canvass and tabulation which candidate has received the greatest number of votes, the opposing candidate may at once, and must within ten days thereafter, begin his contest proceedings, although no certificate of nomination has been issued.
It will be noted that the section referred to above provides that the complaint shall be filed within, ten days of the certification complained of. This carries us to a consideration of the provisions of §§ 3767-3769 of Crawford & Moses’ Digest.
Section 3767 provides that the county central committee shall convene at noon of the Friday following the primary on Tuesday, and that the returns shall be delivered to said committee, as hereinbefore provided, oh or before said time.
Section 3768 provides that, if the returns and ballots of any precinct are not then delivered, the committee shall send for the same and immediately bring the same to said committee. Continuing, it provides that, if all returns and ballots are not before the committee by Friday noon, it may adjourn until it receives them, not later than Saturday noon. Then the section provides that the committee shall canvass the returns, and, when demanded, examine the ballots, may hear testimony, if offered, of fraudulent practices and illegal votes, and may cast out illegal votes, fraudulent returns, and find the true and legal votes cast for each candidate, and shall certify the result not later than Monday following the primary.
Section 3769 provides that said committee shall certify the nomination of all county and township officers. Thus it will he seen that the county central committee is vested with quasi-judicial powers. It has the power to hear testimony, cast out illegal votes or fraudulent returns, and find the true and legal votes cast for each candidate. It is then made its duty to certify the result. When the county central committee has canvassed and tabulated the votes and ascertained who has received a majority of the votes, its duties, except to issue a certification of nomination, are at an end, and it must award a certificate of nomination to the candidate who, by its canvass and tabulation, has received a majority of votes.
Section 3768 provides that the county central committee shall find the true and legal votes cast for each candidate, and shall certify the result. This means that it shall certify its decision of the number of votes received by each candidate. When the canvass and tabulation show that a particular candidate has received the hig’hest number of votes cast for the office, he is then entitled, as a matter of right, to a certificate of nomination.
It is true that the certificate of nomination is evidence of title to the nomination,. and should be given the successful candidate, yet the actual issuance of the certificate is not a prerequisite to the commencement of a contest. The right to contest grows out of the fact that one candidate has received, on the 'face of the returns made by the county central committee, a majority of the votes, and this gives him the rights of a regular nominee until he is deprived of them by a successful contest against him.
It is true that, under the statute, the county central committee might have adjourned until Saturday noon to complete its canvas and certify the results thereof. But our statute regulating primary elections does not provide that contest'proceedings shall not be started until after a certificate of nomination has been issued. On the other hand, it provides that the complaint shall be filed within ten days of the certification complained of; and that certification, we think, is the one made hy the ; county central committee finding the number of legal votes cast for each candidate and certifying that result. In short, the intent of the statute is that the contest shall be commenced within ten days from the time the county central committee finishes canvassing and tabulating the returns and ascertaining the result thereof. This was done by the county central committee in the case of all the races, except that for chancellor, before the county central committee adjourned on Friday.
The views we have expressed are strengthened by the holding in McLain v. Fish, 159 Ark. 199. It was there held that the requirements of the statute as to the time of completing the canvass of a primary election and the issuance of a certificate of a nomination are directory.
In the case before us the county central committee finished canvassing and tabulating the votes on Friday, the 15th day of August, 1921, in so far as all of the offices were concerned, except that of chancellor, and this finding included the office of county treasurer. The tabulation made hy the committee showed that Mrs. Land received the highest number of votes cast for treasurer, and the result was so certified by the committee on the same day. Wilson did not file his. contest within ten days thereafter, and the court was right in dismissing his complaint.
The judgment will therefore he affirmed. | [
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McCulloch, C. J.
This is an action instituted against appellees by appellant in the chancery court of Boone County to subject certain real estate to the payment of appellant’s debt against appellee E. G. Whitaker on the ground that the legal title is held by appellee Pearl Pox, the daughters of E. G. Whitaker, in fraud of the latter’s creditors. Appellees answered denying the allegations of the complaint, and the chancery court, on the hearing of the cause, dismissed the complaint for want of equity.
The facts are that, prior to the year 1912, E. G. Whitaker was in the mercantile business at Alpena Pass, in Boone County, and was the owner of the real estate in, controversy, subject to a mortgage in the sum of $2,-500, which he had executed to secure his own debt. He sold out his mercantile business on account of ill health, and paid all of his debts except the mortgage debt mentioned above, and on May 13, 1912, he executed to his wife A. B. Whitaker, a deed conveying property subject to the mortgage, and this deed was immediately placed on record. A few years later E. G. Whitaker re-entered the mercantile business at Alpena Pass, but, in the year 1917, he became insolvent, and conveyed his stock of goods and other personal property to appellant, J. P. Grriffin. There was a failure to comply with the bulk sales law, and appellant was held liable to Whitaker’s creditors in the sum of $696, and he discharged the liability by payment of the amount in full. It is conceded that E. G. Whitaker is still liable to appellant for that amount, by way of subrogation of the rights of Whitaker’s debts which were discharged by appellant.
After the commencement of this action A. B. Whitaker conveyed the lands to Pearl Fox, who was her daughter.
It is not contended by appellant that E. G. Whitaker was insolvent at the time he executed the deed to his wife on May 13, 1912, nor that the deed in question was exe cuted with, any' intention to defraud future creditors, but the contention is that, according to the proof in the case, Mrs. Whitaker permitted her husband, E. G. Whitaker, to use the property as his own and hold it out to creditors as a 'basis of credit. Counsel rely upon the principle announced by this court in the case of Briggs & Co.’s Bank v. Norwood, 50 Ark. 42, and subsequent decisions adhering to that rule.
According to the testimony adduced by appellant, E. G. Whitaker continued to manage the property, rent it- out and offer it for sale up to the time of the commencement of this action, and there is proof tending to show that, before he failed in business in the year 1917, he included this property in a written statement to a commercial agency concerning his financial condition, but Whitaker denied that he made the statement, and we cannot say that a finding by the court in his favor on that issue was against the preponderance of the evidence. The proof is sufficient also to show that Mfcs. Whitaker knew that her husband was managing the property and collecting the rents, but she contends that he was doing that merely as her agent.
This court has no disposition to disregard, or to depart from the wholesome rule announced in the decision referred to above, which has been so often followed in other decisions, but the mere fact that a wife permits her husband to manage her property does not necessarily imply that she is permitting him to hold it out to creditors as his own property. It is a question for the determination of the court in.a given case, on the evidence adduced, as to whether or not the situation is such as to reasonably warrant creditors and those dealing with an insolvent to believe that the property is his own, and whether or not the wife’s conduct was such as to justify the belief that she permitted her husband to do that. In the present instance the property in controversy was a building in town, and the deed was placed on record five years before Mrs. Whitaker’s husband became insolvent. The mere fact that he rented the property and offered it for sale does not necessarily imply that he was, with the knowledge of his wife, holding himself ont to be the owner. The fact that many people in the vicinity believed it to be his property does not compel the conclusion that the wife’s conduct justified such a belief.
After consideration of the whole testimony in the case, we cannot say that the inference drawn by the chancery court from the conduct of the parties was unjustified by the facts proved in the case. In other words, the decree is not against the preponderance of the evidence, and, the case here being one that turns entirely upon determination of the questions of fact the decree is affirmed. | [
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Wood, J.
On the 23rd of December, 1922, Arkansas State Life Insurance Company, hereafter called appellant, issued its certificate, or policy of insurance, on the life of Angelene Allen. Austin Allen, her husband, was named as the beneficiary in the policy. The appellant was engaged in the life- insurance business on the .assessment or mutual plan. It is specified in the policy that the application and the constitution and by-laws shall be the basis, and form a part of, this contract.
The insured died on the 20th of March, 1923. The value of her policy at the time of her death, if valid, was $235. She paid one quarterly premium of $5.30. The appellee instituted this action' against the appellant and its bondsmen setting up the policy and the amount due thereunder, the payment of the premium, the death of the assured, notice to the company of the death, demand of payment, and prayed judgment in the sum of $235.30, and for attorney’s fee of $75 and 12 per cent, penalty.
The appellant, in its answer, denied the material allegations of the complaint except as to the issuance of the policy and filing- of the bond, and set up by way of affirmative defense that there was a breach of warranty as to the condition of the health of the insured at the date of the policy, in that the statements of the insured in the application on which the policv was issued were false and fraudulent, by which all rights under the policy were forfeited.
The appellant also, in response to the motion to make its answer more definite, alleged that the assured stated in her application for insurance that she had not been treated or advised by a physician during the past two years, and that the plaintiff stated in his claim for death benefit, and swore to same, that the assured died with la grippe.
' The appellee denied that there were any misrepresentations.
The cause was tried before a jury, and, after the evidence was adduced, the appellee prayed the court to instruct the jury to return a verdict in its favor, which prayer the court granted over appellant’s objection and exception. From a judgment rendered on the verdict in favor of the appellee is this appeal.
1. "We will consider the assignments of error'in the order presented by counsel for the appellant. It is stated in the application, which was made December 23, 1922, and signed by the assured, as follows: “I have not been treated or advised by a physician in the past two years, except * * * no, my family physician is doctor.” The application contains the following provision: “I understand and agree that each of the foregoing statements are warranties; that I made them to induce the issuance of a policy of insurance for which I made this application, and to that end I warrant them to-be true.” There is also a' statement in the application to the effect that the insured made the application subject to all the conditions and agreements in the policy; that the application is a part of the policy.
Dr. Odom testified that he was called to see Angelene Allen in 1921;.that she had a slight case of influenza-or la grippe, with some fever; that it was a temporary attack, and her general health was not affected. He also stated in .the proof of death that he thought the sickness for which he treated the insured the year before had no connection with the cause of her death.
The appellee testified that, when the agent took the application, he asked witness if his wife was well, and witness told him that she was. The agent had never seen the insured in his life, and did not ask the witness whether his wife had been treated by a physician in the past two years. The witness answered all questions truthfully, which the agent asked him, and the agent wrote the answers down. This testimony of the appellee was corroborated by another witness, and there is no testimony to the contrary in the record.
It is the doctrine of this court that an insurance company is bound by the contract of its soliciting agent acting within the apparent scope of his authority. Any knowledge or information given to.him during the course of his employment will bind his principal, the society, and it will be estopped from denying that which its own agent had asserted to be true. Mutual Aid Union v. Blacknall, 129 Ark. 450-55, and cases there cited. Maloney v. Maryland Cas. Co., 113 Ark. 174.
It is not alleged by appellant in its answer that there was any collusion on the part of the appellee and appellant’s soliciting agent to defraud the appellant. • The soliciting agent was acting within the scope of his authority in writing the answers and taking the application, and there is no proof whatever that any fraud was perpetrated upon him by the appellee.
Moreover, if the above statement had been made by the assured, It would not have rendered the policy void for the reason that the testimony of the physician showed that his treatment of the assured within two years prior to the issuance of the policy was for a trivial ailment of temporary duration, which did not affect her general health. Such ailments were not in the contemplation of the parties, and did not affect the risk assumed by appellant, and were not a breach of the warranty. Providence Life Assurance Society v. Reutlinger, 58 Ark. 528; Mutual Reserve Fund Life Assn. v. Farmer, 65 Ark. 588; Des Moines Life Ins. Co. v. Clay, 89 Ark. 230.
2. There is a provision in the policy to the effect that the company shall in no instance be liable for an amount greater than the amount paid in by the whole series in which the insured was classified on the last month preceding the death or disability of the insured, and the value of this policy is dependent on this condition One of the grounds of the motion for a new trial is that the court erred in refusing to allow the appellant to introduce in evidence its ledger showing the amount of receipts and expenses of said company for the month prior to the death of the insured. This testimony was offered after the appellee’s testimony was all adduced. The trial court refused to allow this testimony on the ground that there was nothing in the answer to put the appellee on notice that this defense would be pleaded on trial of the cause. There was no error in the court’s ruling, as the issue was not raised. It was within the discretion of the court during the progress of the trial when this evidence was offered, to refuse to allow the appellant to amend its answer to raise this issue. Amer. Bonding Co. of Baltimore v. Morris, 104 Ark. 276, See also St. Louis, I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181.
The ruling of the court was correct for the further reason that the record does not disclose what the contents of the ledger were, and it does not therefore appear that the appellant was prejudiced by the court’s ruling. Fort Smith Light & Traction Co. v. Ward, 123 Ark. 548; New Hampshire Fire Ins. Co. v. Blakely, 97 Ark. 564.
3. The appellant offered a document purporting to be the constitution and by-laws of the appellant. The court refused to allow the document on the ground that there was no evidence offered to authenticate it as the constitution and by-laws of the appellant, and that all these things are set forth in the policy and is a part of the contract sued on here in the case. The ruling of the court was correct. There is nothing in the record to show that the document was duly authenticated, and the record discloses that the provisions of the by-laws, which the appellant asked to be introduced, were covered by the provisions of the policy. Therefore, it is. manifest that no prejudice resulted to the appellant in the court’s ruling. Crawford County Bank v. Baker, 95 Ark. 443; Fletcher v. Freeman-Smith Lumber Co., 105 Ark. 230.
4. The appellant contends that the directed verdict resulted in a judgment against two of the bondsmen of appellant, to-wit: J. W. Simpson and L.- Mayfouz, upon whom no service was had in the action. These parties were named defendants in the complaint, and the answer states, ■ ‘ ‘Come all the defendants named herein who have 'been served with summons, and for their answer herein state,” etc. There is nothing in'this statement to show that the answer was not intended to be the answer of J. W. Simpson and L. Mayfouz, as well as the appellant and the two other individuals named as defendants, and the record does not show that they were not served with process. They are not appealing, and, if it be a fact that they were not served, then they are not bound by the judgment.
5. The judgment of the trial court is in all things correct, and it is therefore affirmed. | [
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Wood, J.
The appellant and one C. A. Wilson were the only members of a firm or partnership doing a mercantile business at Addielee, Oklahoma, under the firm name and style of Valley Trading Company. The appellee instituted this action against the appellant and Wilson, alleging that they Were indebted to it in the sum of $1,418.70 on an open account for merchandise, and that appellant and Wilson were'indebted to appellee in.other sums which were duly asigned to the appellee, amounting in the aggregate to $3,029.07; that appellant had made fraudulent conveyances of lands in Washington County to defraud appellee, and that Wilson, the other partner, had been adjudicated a bankrupt on or about the first of April, 1922, and that all of his individual assets had been administered or were in the process of being administered in bankruptcy. Appellee prayed judgment against the appellant and C. A. Wilson in the sum of $3,029.07, and asked that the conveyances of the. lands be set aside for fraud, and that appellee have a lien upon them for its debt.
It was admitted in the answer that Wilson had been adjudicated a bankrupt, and that all of his individual assets had been administered, or were in the process of being administered, in bankruptcy, and it was admitted that the Valley Trading Company had been adjudicated a bankrupt, and that a distribution had been made of all of its assets, as alleged in the complaint, and that the Yalley Trading Company had been discharged from all its debts in such bankruptcy proceedings, and it was alleged that the appellee and each of its assignors, as creditors, were duly notified of the bankruptcy proceedings, and had filed their claims in bankruptcy, which had been duly allowed, and which had received the dividend's allowed to the creditors of the bankrupt estate, and that each of said claims upon which this action was founded had been fully discharged in such bankruptcy proceedings. The appellee, by permission of the court, moved to strike from the answer of the appellant the paragraph which set up that the discharge in bankruptcy of the Yalley Trading Company was a complete defense to the action.
The cause was heard upon the pleadings and the agreed statement of facts relating to the issue as to whether the discharge in bankruptcy of the partnership was a defense to the action against the appellant. The court found that the discharge in bankruptcy of the partnership, Yalley Trading Company, was not a defense to the action against appellant Bloyd, and entered a decree in favor of the appellee against the appellant Bloyd for the amount claimed by the appellee, from which decree is this appeal.
The only question presented by this appeal, as set forth in the pleadings and proof in the agreed statement of facts, is whether or not the discharge in bankruptcy of a partnership operates as a discharge of the individual members of the partnership who were not, as individuals, adjudicated and discharged as bankrupts from individual liability for the debts of the partnership. The appellant contends that the adjudication in bankruptcy of the partnership and a discharge of the partnership from all debts likewise discharged the appellant, as a member of the firm, from his individual liability for the partnership debts. To support this contention, he relies upon the case of Young v. Stevenson, 73 Ark. 480. The facts in that case, as stated by the court, were as follows:
• “This is an appeal from a judgment quashing a writ of execution sued out by appellant against appellee on a judgment rendered by a justice of the peace, and after-wards filed in the circuit court. The judgment was against 'appellee Stevenson and Munder, upon notes executed to appellant, and signed individually by each, and upon an account for money paid by appellant for appellee and Munder. Subsequently to the rendition of this judgment, appellee and Munder as partners, and Munder individually, filed their petition in bankruptcy in the District Oourt of the United States for the Western District of Arkansas, and scheduled the Young judgment among their partnership debts; and notice was given to appellant, according to the practice under the bankrupt act of Congress, but he did not appear and prove his claim against the estate of the bankrupts. Appellee joined in the petition in bankruptcy as a member of the firm, praying for a discharge from the partnership debts, but did not schedule any separate individual debts or assets, nor ask for a discharge from his individual debts. And an order was entered in due form discharging the firm of Munder & 'Stevenson, composed of Millie Munder and W. H. Stevenson, ‘from all debts and claims which are made provable by the acts of Congress against its estate, and existing oix the date of the filing of the petition in bankruptcy.’ The execution was issued after the discharge in bankruptcy, and appellee filed his motion to quash on the grouxxd that the judgment was a partnership debt of the firm of Munder & Stevenson.”
Upon the above facts, the court held that “the effect of the discharge in bankruptcy was to release the members of the firm, individually and as partners, from all the provable debts of the firm, save those specially excepted by the terms of the statute, such as judgments in actions for fraud or false pretenses, etc. The discharge is the judgment of a court of competent jurisdiction, and cannot be collaterally attacked.”
It will be observed that tlie facts of the above case of Young v. Stevenson readily differentiate it from the case at bar. In that case the appellee, one of the partners, joined in the petition in bankruptcy as a member of the firm, praying for a discharge individually from the partnership debts. This petition of the individual partner to be discharged in bankruptcy from liability as an individual for the partnership debts gave the bankruptcy court jurisdiction of the person and the subject-matter of whether or not the individual partner was a bankrupt and the administration of his individual assets as such. The determination of the court that no individual assets had been included in the schedules was held conclusive of that fact. That, in the above case, adjudicated the question of the individual liability of partners for partnership debts, and determined that the discharge in bankruptcy under the pleadings was to release the members of the firm individually from the partnership debts. But to so hold in the case at bar would be beyond the scope of the issue. There is nothing in all this record to indicate that the bankruptcy court was asked to adjudicate that the partners, as individuals, were bankrupt and to discharge them from individual liability for the partnership debts.
But, if the appellants be correct in their contention that there is no distinction in principle between the facts of this record and the facts of the record in Young v. Stevenson, supra, then the doctrine of that case is unsound and is overruled by the later cases of Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227, and Curlee Clothing Co. v. Hamm, 160 Ark. 483.
In the case of Wm. R. Moore Dry Goods Co. v. Ford, supra, we said: “The complaint contains the affirmative allegation that individual partners composing the firm of Ford & Wheeler did not obtain a discharge in bankruptcy. There appears to be a conflict in the authorities as to the effect of the discharge of a partnership on the liability of the individual partners. * * * ‘It has been uniformaly held that, in a proceeding by a partnership, in which the individuals are not adjudicated bankrupt, they are not entitled to a discharge. ’ ’ ’ And in the case of Curlee Clothing Co. v. Hamm, supra, this doctrine is reiterated and followed. To sustain the doctrine announced in the later cases, the following authorities are cited in the opinions: Armstrong v. Norris, 247 Fed. 253; Horner v. Hanner, 249 Fed. 134; Francis v. McNeal, 228 U. S. 695.
It would be supererogation, pure and simple, to enter here upon a review' of these cases. In view of the diversity of opinion in the lower Federal courts on the issue as to whether the bankruptcy of a partnership involves an adjudication likewise of the bankruptcy of the individual partners, we shall treat the question as definitely settled in accordance with the doctrine of our own cases, as announced in the cases of Wm. R. Moore Dry Goods Co. v. Ford and Curlee Clothing co. v. Hamm, supra, until there shall have been a pronouncement to the contrary by the Supreme Court of the United States, the ultimate authority on the subject. Thus far it seems there has been no such decision of the Supreme Court of the United States. See Liberty National Bank v. Bear, 265 U. S. 365, 68 Law. edition, 564.
The decree is therefore correct, and it is affirmed. | [
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McCulloch, C. J.
This is a contest, of the last will and testament of Mrs. E. G. Wells. The judgment of the circuit court of Pulaski County, rendered upon the verdict of the trial jury, sustained the validity of the will, and the contestants have appealed.
The testatrix, Mrs. Wells, resided in the city of Little Rock, and died here on August 291, 1922, the testamentary paper in controversy having been executed by her in due form of law on July 24,1922. Mrs. Wells was unmarried at the time of her death, and childless, and she ■left as her heirs at law three sisters, a brother, a niece— the daughter of a deceased brother — 'and five others, the children of another deceased brother. She bequeathed the sum of one dollar to each of her said heirs, and the remainder of her estate to Mrs. Minnie Jean Waller, who was not related to the testatrix by blood or marriage, but was merely a friend of long standing and whom, according to the testimony, the testatrix held in affectionate regard. Mrs. Wells was sixty-six years of age at the time of her death, and had resided in Little Rock more than forty years. She was a stenographer by profession, and followed that work-in -different lines for many years. She did stenographic work in several business' institutions, covering a period of many years, and for a number of years before her death, in addition to working as a stenographer, she operated a school for the purpose of instructing others in the art. She accumulated by her own work and thrift property of considerable value, the property consisting of both real estate and personalty.
At the time of the execution of the will Mrs. Waller, the chief beneficiary, was out of the State, and did not return until after the death of the testatrix.
Mrs. Wells became seriously ill a short time before the execution of the will, and was confined to her room in her own home. She was nursed by Mrs. Scroggins, the-mother of Mrs. Waller, and was also attended by Mrs. Brooks, -a sister of Mrs. Waller. Physicians also attended her regularly, and they testified in the case with reference to her mental condition at or about the time of the execution of the will and from then on up to the time of her death.
The contest is based on the charge of undue influence and mental incapacity of. the testatrix. The testimony in the case is voluminous, hut it may he said, speaking generallv, that it was conflicting upon both of the issues involved. A number of witnesses, including two of the contestants, a sister and a brother of the testatrix, testified that they were long and intimately acquainted with the testatrix, and that she was of low mentality at the time of the execution of the will. and. in their oninion, not of sufficient mental capacity to execute a will. On the other hand, the witnesses were very numerous on the part- of the contestee. who testified to a long acquaintance with the testatrix, of her successful business career, her strength of mind and' her admirable business qualifica tions, and that she was fully capable of transacting business and of executing any kind of conveyance up to the time of her death. Physicians who attended the testatrix also testified that her mental condition was sound.
We are of the opinion that the evidence was abundantly sufficient to sustain the finding of the jury, both as to the charge of undue influence and lack of mental capacity.
There are numerous assignments of error with respect to the rulings of the court upon the admissibility of testimony.
It appears from the testimony that Mrs. Wells underwent a serious surgical operation in the year 1885, that she jumped from a train in the year 1900 and sustained a fracture of her hip, and that, some time thereafter, she sustained a fracture of one of the bones of her arm. There is also testimony that she was afflicted with cancer and was operated on during the year 1918, or about that time. There is testimony to the effect that all of these various troubles affected her health, and that she suffered a great deal.
The first witness introduced was Mrs. Shelton, who was a sister of Mrs. Wells, and is one of the contestants. She testified that Mrs. Wells was-operated on about the year 1885, and that she had never fully recovered from that operation. She mentioned the fact of Mrs. Wells jumping from the train and breaking her hip in the year 1900, and that she nursed her through that period, but the court, excluded those statements. She also offered to testify that the testatrix had told her about breaking her arm, and that was excluded on the ground that it was hearsay. Those rulings are both assigned as errors. The theory of the court in excluding the testimony about the broken hip was that it was too remote and was not connected up by showing that its effect upon the health and mental condition of the testatrix continued up to the time of the execution of the will. The other statement was excluded for the reason that it was merely the statement of the testatrix and constituted hearsay, and fell within the rules of evidence excluding that kind of testimony. The court subsequently permitted appellant to prove by two other witnesses the fact that Mrs. Wells jumped from the train and broke her hip in the year 1900, and suffered for a long time thereafter from the effects of this accident. This testimony was undisputed, and no prejudice could possibly have resulted in the court’s ruling-in refusing- to permit Mrs. Shelton to testify to that fact. When it was connected up by other testimony tending to show repeated injuries and" illness on the part of the testatrix which might have affected her mental capacity, the court permitted everything- that had happened to her for a long time past, including the operation in 1885 and the fractured hip in 1900, to be proved by the witnesses, and their opinions were given as to the probable effect upon her mental capacity. To say the least of it, the court’s ruling on this subject constituted no more than a change in the rulings of the court in permitting testimony to be introduced, and, if appellants desired to take advantage of that change 'after the court had ruled the testimony to be competent, another offer should have been made to introduce it. The failure to do this precludes appellants from insisting- now that the court erred in excluding the testimony originally.
The other excluded statement as to what the testatrix told the witness concerning the various injuries was mere hearsay, and properly excluded. In Mason v. Bowen, 122 Ark. 407, after full consideration of the questions involved, we made the following statement of the law which is applicable to this as well as other rulings of the court:
. “It seems to be well settled, both by text-writers and the decisions of courts of the various States, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or .substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, state ments or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external fact, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.”
Now, the fact that Mrs. Wells received these various injuries may have had some influence upon her mental state, and proof of those facts was competent as bearing on that question, but the facts could not be established by hearsay testimony, and the statement of the testatrix herself concerning those facts fell within the rule against hearsay testimony.
The contestee introduced as a witness Mrs. Auten, who was a friend of Mrs. Wells, and on cross-examination she was asked about certain statements that she had made to another witness, Mrs. Bracy. She stated that she had talked with Mrs. Bracy about Mrs. Wells and stated that the latter was eccentric; said she did not remember telling Mrs. Bracy about the conduct of Mrs. Wells concerning the preparation of a chicken for food. Her statement was somewhat indefinite as to her recollection of the conversation with Mrs. Bracy, but she admitted that she had talked to Mrs. Bracy and expressed the opinion that Mrs. Wells was somewhat eccentric in her conduct. Appellants introduced Mrs. Bracy for the purpose of contradicting Mrs. Auten, and she testified, without objection, as to what Mrs. Auten said about her opinion of Mrs. Wells’ mental condition and about some eccentricities manifested in the dressing of a chicken. The witness, without being asked on the subject, commenced to tell about what Mrs.'Auten said concerning- the conduct of Mrs. Wells in the placing of a rug on the floor, and the court excluded that. The testimony of Mrs. Aiuten as -abstracted by aunellants does not disclose that anything was asked her about her alleged statement to Mrs. Bracy ooucerninir the rusu Of course, it was not comuetent to ask Mrs. Bracy- about any statement the foundation of which was not laid by asking Mrs. Anton concerning the •matter. However, we do not think there could have been any prejudice, even if the court had erroneously excluded the statement concerning Mrs. Wells’ conduct about the rug. The witness, Mrs. Bracy, was permitted to tell all about her conversation with Mrs. Auten and the latter’s statement concerning eccentricities of the testatrix, and the statement about the rug could have added nothing to the- contradiction of the witness. We cannot see any possible error in the ruling of the court in this regard.
It is disclosed in the testimony that Mrs. Sheldon’s daughter, Elaine, a niece of the testatrix, died in the year 1918, and that, prior to that time, the testatrix had made a'will leaving the bulk of her estate to Elaine. Mrs. Waller, the contestee, testified over objections of appellants that Mrs. Wells made a statement to her complaining about the act of her sister in selecting a burial place for the body of Elaine, and said that if they, meaning her sisters, “didn’t want Elaine’s body, they could have given it to me.” It is insisted that this testimony was not competent. We think it was competent as a declaration of the testatrix tending to show her mental attitude towards her relatives, who would otherwise be the natural objects of her bounty. The testimony comes within the rule stated in Mason v. Bowen, supra.
There are numerous assignments of error with respect to the action of the court in permitting nonexpert witnesses to testify concerning the mental capacity of the testatrix. All of the witnesses in question were acquaintances of long standing and had opportunities for observing the mental condition of the testatrix, but in giving their testimony they first stated their knowledge of and length of acquaintance with the testatrix, where they had known her, what their opportunities were for observing her conduct, and they were then permitted to state their opinions as to her mental capacity. The decisions of this court on the subject are harmonious, and each is to the effect that a nonexpert witness may testify as to his opinion after stating the facts upon which the opinion is based, so that the jury may determine what weight to give to the testimony. Kelly’s Heirs v. McGuire, 15 Ark. 555; Bolling v. State, 54 Ark. 588; Shaeffer v. State, 61 Ark. 241; Green v. State, 64 Ark. 523; Byrd v. State, 76 Ark. 286; Williams v. Fulkes, 103 Ark. 196; Eminent Household Col. Woodmen v. Howle, 124 Ark. 224. The rule on this subject was stated by Judge Battle in the case of Shaeffer v. State, supra, as follows:
“When a person’s mental condition or capacity is in question, the opinions of witnesses who are not experts as to such capacity are only admissible in evidence when taken in connection with the facts upon which such opinions are based. Before such evidence can be admissible, ‘the specific facts upon which the opinions are based must first be stated by the witnesses, or their testimony must show that such intimate and close relations have existed between the party alleged to be.insane and themselves ' as fairly to lead to the conclusion that their opinions will be justified by their opportunities for observing the party. ’■ In other words, the opinion of such a witness is not admissible in evidence until it be first shown by his own testimony that he has information upon which it can reasonably be based. Whether the information is sufficient for that purpose is a question for the court to decide before it can be admitted. After its admission, the weight to be given it is determined by the jury. ’ ’
The decisions in all of the other cases are in harmony with the above statement. In the early case of Kelly’s Heirs v. McGuire, supra, on the subject of the admissibility of testimony of nonexpert witnesses, the court said:
“We found our judgment on facts, circumstances, and acts detailed by the witnesses — holding, at the same time, opinions to be competent in all cases where the object is to prove capacity or incapacity to make a contract, where" the facts or circumstances are disclosed on which the opinion is founded. There are strong reasons for it. Human language is imperfect, and it is often impossible to describe in an intelligible manner the operation of the mind of another. We learn its conditions only by its manifestations, and these are indicated not alone by articulate words, but by signs, gestures, conduct, the expression of the countenance, and the whole action of the man. Nor is there any danger from such opinions, when the reasons for them are disclosed. The value and force of the opinion depends on the general intelligence of the witness, the grounds • on which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias.”
All of the witnesses to whose testimony objection was made were persons who had known Mrs. Wells for many years, had employed her or been associated with her in her employment, and had had opportunities to observe her conduct, and they were competent witnesses to express an opinion as to her mental capacity. It was not essential that they should be able to state facts and circumstances which would demonstrate to the jury the degree of mental capacity of the individual in question, but the bare fact that her conduct under their observation had not been such as to affirmatively demonstrate lack of mental capacity was sufficient to justify them in the expression of an opinion. We are of the opinion that the testimony of each of - the witnesses in question falls within the decision of this court holding such testimony to be competent, and that no error was committed by the court in this regard.
Error of the court is assigned in giving the following instruction at the instance of the contestees:
“The issue to be tried in this case is whether the instrument of writing offered for probate is the last will and testament of Mrs. E. G-. Wells. Under the laws of Arkansas every person of the age of twenty-one years and over, of sound mind and disposing memory, may by last will and testament devise all of his estate, real and personal, as he sees fit. He may discriminate between those equally related to him, or may dispose of his entire estate entirely to strangers, to the exclusion of all relatives, and the motives of partiality, affection, dislike or resentment by which he may be influenced will not invalidate the will if they are not the result of undue influence as defined in these instructions. If he has the mental capacity to make a will, or is not under undue influence as defined in these instructions, it does not matter that he is controlled by motives which are capricious, frivolous or revengeful. You cannot reject this will solely because you may believe it to be unnatural or unjust. The fact that it leaves the estate to a friend outside the family and excludes the relatives does not raise a presumption of lack of capacity. ’ ’
The objection made to this instruction is that the sentence on the subject of undue influence ignores the issue of mental capacity, and that the sentence devoted to the subject of mental capacity ignores the question of undue influence. Answering these objections, which are the only ones made to the whole of the instruction, we are clearly of the opinion that the instruction is not open to these objections. This instruction must be read as a whole for the purpose of determining its meaning, and it clearly dealt with both subjects involved in the attack upon the validity of the will, and neither of the issues were excluded or ignored. 'It would be a very narrow view of the matter to say that a jury composed of intelligent men would construe either of the sentences in the instruction as excluding the issues not mentioned therein. Each sentence dealt with a particular issue and was a complete statement on that subject, but, necessarily, the two sentences embraced in a single instruction must be read together, and it is not conceivable that the jury misunderstood them or treated them as being conflicting or antagonistic.
■Separate objections were made to the following instructions, given at the instance of the eontes'tees:
“3. Old age, physical incapacity and partial eclipse of the mind will not invalidate a will, if the testator has sufficient capacity to remember the extent and condition of -his property without prompting, to comprehend to whom he is giving it, and be capable of appreciating the deserts and relation to him of others whom -he excluded from participating in his estate. He is not required to do all those things, but .should have capacity to do them.
“4. Physical suffering, no matter how intense or how long its duration, will not render one incompetent to make a valid will, so far as mental capacity is concerned, unless it has so affected his mind as to render him incapable of comprehending the act of making the will and of remembering his relatives and their deserts and appreciating the same, and of remembering and disposing of his estate as explained by the other instructions herein.”
The giving of each of these instructions is assigned as error, but we are of the opinion that they are both correct declarations of the law on the subjects mentioned, and there is no good reason shown in the argument why they should not have been given.
Appellant requested the court to give instruction No. 7, which is as follows:
“You are instructed that if you believe from the evidence that Mrs. Wells, at the time she executed the will now in question, was feeble in body and mind from sickness, old age, or otherwise, and, while in this condition, Mrs. Scroggin, the mother of the beneficiary under the purported will, suggested to her that she should leave her property to Mrs. Waller, or if the said Mrs. Scroggin had such influence over her because of her bodily and mental weakness and through this influence induced her to make said will, or if you believe from the evidence that the will was the result of undue influence exerted by the said Mrs. Scroggin, and that at the time of the execution of said will the said Mrs. Wells was not a free agent, but was under the undue influence of said.Mrs. Scroggin, then you should find against the will.”
The court modified the instruction by striking out the words, “and while in this condition Mrs. Scroggin, the mother of the beneficiary under the purported will, suggested to her that she should leave her property to Mrs. Waller.” Exceptions were saved to the ruling of the court in making this modification, and the ruling is assigned as error. The modification by striking out the words was correct, for those words were connected with the succeeding ones by the 'conjunctive word ‘ ‘ or, ” and, if left in, the instruction would, in effect, have told the jury that a mere suggestion of the mother of the beneficiary was sufficient to constitute undue influence, and this would have been an instruction upon the weight of the testimony. The instruction was complete without these words, and fairly 'submitted to the jury the issue of undue influence by Mrs. Scroggin, the mother of Mrs. Waller, the contestee.
There are other assignments of error in regard to the court’s charge which we do not deem of sufficient importance to discuss.
The evidence was sufficient to support the verdict of the jury upholding the will, and the issues were correctly submitted to the jury.
We find no error in the record, and the judgment is therefore affirmed. | [
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Wood, J.
This is an action by the appellee against the appellant, in the Jefferson Chancery Court, to enforce a landlord’s lien. Appellant is an Arkansas corporation with its principal place of business at Pine Bluff, Arkansas. It is engaged in the business of furnishing supplies to farmers, tenants, sharecroppers, etc., and also in the business of buying and selling cotton and corn. Appellant has done a general furnishing business in the southwestern part of Jefferson County for some years. In the year 1922 Dave Drake was a negro tenant, raising a cotton crop on a certain parcel of land in Jefferson County, and the appellant furnished him the supplies for that year, which, with appellant’s account brought forward from the previous year, amounted to the sum of $583.67. On the 11th of October, 1922, Drake delivered to appellant five bales of cotton grown upon the lands mentioned. On January 15, 1923, appellant disposed of the cotton and, at the direction of Drake, applied $583.67 of the proceeds of such sale to the payment of Drake’s account with appellant, and paid to Drake in cash the remainder of such proceeds, amounting to $19.45.
The appellee alleged that he was the owner of the lands on which the cotton mentioned was grown, and that Drake was his tenant under a written contract of lease; that Drake had not paid the rent for the year 1922, and that appellant had converted the proceeds of the cotton mentioned to its own use with notice of appellee’s lien for rents, and prayed that appellant be required to account to him for such proceeds. The appellant denied generally the allegations of the complaint, and specifically that it had taken the cotton produced by Drake on appellee’s land during the year 1922 and converted the same to its own use with notice that appellee was claiming a landlord’s lien thereon for the year 1922.
The testimony for the appellee tended to prove that the appellee entered into a written contract with Drake in' 1919, which contract provided for a cash payment and yearly rentals, and an option to purchase the same upon the payment of these rentals. Notes were given evidencing the amount to be paid for the rent of each year. The rent for the year 1922 was due on November 1, but was not paid. It was the custom of appellee’s agent to furnish to the mercantile firms who supplied tenants on appellee’s farm a list of those tenants. He furnished such a list to the appellant, and collected from the appellant all the rents due from tenants on all the lands except Dave Drake’s. Appellant had paid the rents due appellee from another tenant under a similar contract of that of appellee with Drake. Appellee’s agent did not indicate to the appellant that appellee would not insist upon his right to collect the rent from Drake for the year 1922. But, on the contrary, appellee’s agent had frequent conversations with appellant’s agent concerning the rent, extending from September until the institution of this action, and he notified the appellant’s agent that Drake owed the appellee the- rent for the land for the year 1922.
The testimony on behalf of the appellant tended to show that it was the custom of appellant to indicate on its ledger sheets the printed word “landlord” opposite the name of the owner of the land whose tenants appellant was furnishing, together with the number of acres the tenant had in cultivation and the rent he was to pay. On the ledger sheets of Drake’s account it is shown that he owned 80 acres of land, and that 50 acres were in cultivation in the year 1922, 35 acres being planted in cotton.
Appellant took a chattel mortgage to secure its account for the supplies furnished Drake for the year 1922. In the fall of 1922 Drake delivered to appellant five bales of cotton, for which appellant allowed him twenty-four cents per pound, amounting in the aggregate to $603.12, and deducted from such proceeds Drake’s account, and paid him the balance in cash, the sum of $19.45. At that time, no one representing the appellee had notified -appellant that -appellee claimed a landlord’s lien for the rent for the year 1922. The first knowledge that appellant had that appellee claimed rent on the land cultivated by Drake for the year 1922 was October 11 of that year, the date when Drake delivered the cotton to the appellant, and in all the dealings that appellant had with Drake from February, 1921, until October 1, 1922, appellee’s name was never mentioned, and was not mentioned until this controversy came up. Appellant’s agent didn’t make any investigation of appellee’s ownership of the land, .because Drake told him that he owned the place, and also 'Caldwell informed appellant’s agent that he had sold the place to Drake. Appellant did not sell the five bales of cotton obtained from Drake until January 15, 1923. Before that time the controversy between the appellee’s agent and the appellant’s agent concerning- the five bales of cotton had arisen. Appellee’s agent and appellant’s agent had repeated conversations concerning the same, and appellee’s agent had written appellant’s agent a letter' claiming the proceeds of the cotton in appellant’s hands.
The testimony on behalf of the appellee and appellant is voluminous, but the above sufficiently presents their respective contentions.
The trial court found that the appellant had no actual notice of appellee’s ownership of the land on which the cotton was grown, but it knew the land, and the record of deeds showed that the ownership of that land was in the appellee, and that therefore appellant had constructive notice of appellee’s right to the cotton grown by Drake in the year 1922. The court thereupon rendered a judgment in favor of the appellee in the sum of $603.12, and declared the same a lien upon the proceeds of the cotton in the hands of the appellant, and directed the appellant, as trustee, to account to the appellee for same. From that decree is this appeal.
Under a rent, contract with option to purchase, such as that under review here, the owner of the land has a landlord’s lien upon the crops grown upon said land, which lien is superior to the lien of one who furnishes supplies to the tenant for the making of crops, and can be enforced against one who has furnished such supplies and who has received the crops of the tenant with notice of such lien. Solomon v. Kesee, 156 Ark. 387; Martin v. Allen, 154 Ark. 612; Murphy v. Myar, 95 Ark. 32; Judge v. Curtis, 72 Ark. 132. In the last case we said: “Where the plaintiff has a lien on the property taken and sold by the conversioner, as in the case at bar, his remedy is in equity, not for the value of the property taken, for he is not, in that ease, the owner thereof, but to fix his lien upon the proceeds of the property in the hands of the conversioner, it being an equitable doctrine that a lieu may be fixed upon the proceeds of the property where the lien on the property itself has been destroyed by the wrongdoer.’’ See also Beavis v. Barnes, 36 Ark. 575.
The decree of the court holding the appellant liable for the proceeds of Drake’s cotton in its hands is correct for several reasons. In the first place, according to the undisputed evidence, the appellant had actual notice of appellee’s claim of a landlord’s lien on the cotton before it sold the same. Notwithstanding this notice, appellant sold the cotton and appropriated the entire proceeds, except the sum of $19.45, to the payment of Drake’s account. This it could not do. Pape v. Steward, 69 Ark. 306.
The cotton was grown near Pine Bluff, and delivered by Drake to the appellant, and the appellant accepted the same, as its agent says, believing that Drake was the owner. But the appellant had no right to purchase and receive the cotton without making some inquiry as to a possible landlord’s lien, and could not claim to be an innocent purchaser when, upon such inquiry, it would have necessarily ascertained the fact that there was a landlord’s lien on the cotton. Walker v. Rose, 153 Ark. 599; Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499; Jacobson v. Adkins, 103 Ark. 91; Van Etten v. Lesser-Goldman Cotton Co., 158 Ark. 432.
We cannot concur in the views of learned counsel for the appellant that the preponderance of the evidence shows that the findings and decree of the chancellor are erroneous. The finding of the chancellor that the appellant had no actual notice, we believe, is against the undisputed evidence, but the decree is correct, notwithstanding such erroneous finding. The other findings of the trial court, which are correct, are sufficient in themselves to justify the decree. Finding no error, the decree is affirmed. | [
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Hárt, J.
Henry Griffin brought this suit in equity against Edith M. Griffin to'obtain a divorce on the stat .utory ground that she had offered such indignities to his person as to render his condition in -life intolerable.
The wife filed an answer denying the allegations of the complaint of her husband, and, by way of cr.oss-complaint, asked for a divorce from him on the same statutory ground.
The parties were married in July, 1920, and lived together in Pulaski County as husband and wife until the 6th day of December, 1922. The complaint in this cáse was filed on the 26th day of December, 1922. These parties had been granted a divorce in the same chancery court in 1912, and there had been a settlement of their property rights.
Mrs. H. H. Abanathy, of Houston, Texas, a daughter of the parties, twenty years of age, was a witness in behalf of the plaintiff. According to her testimony, she lived with them for about three months after their second marriage, and visited them two or three weeks at a time twice since that time. Her mother and father had' numerous quarrels during the time she lived with them, as well as the times she visited them, and most of .these quarrels were started by her mother. Her father was as devoted to her mother as the latter would permit him.
William H. Griffin, a son of the parties, twenty-nine years of age, was also a witness for the plaintiff. According to his testimony, he lived with his wife and children in the State of Michigan, and visited his parents for two weeks in July, 1922. He testified that his mother was very fussy, and constantly nagged at him and his father. His father is a man of good disposition, and was always kind to his mother.
Henry Griffin was a witness for himself. According to his testimony, soon after their remarriage. his wife had many imaginary grievances, and found fault with everything. She was continually nagging him, and would keep up a fuss day in and day out. After supper in the evenings his wife and one of her daughters would go to their room and entertain themselves and their company and leave him to himself. They did this reg ularly for months and months. Mrs. Griffin and her daughter occupied one room and he another in his house. His wife quarreled with him every day.
On cross-examination, the plaintiff admitted that he cursed his wife a short time before their separation, but said that he apologized to her for it. He stated that he had cause for using the curse words to her; but he felt ashamed of it, and so stated to her. He also admitted that he had pushed her out of a room to keep her from continually nagging him.
Mrs. Edith M. Griffin was a witness for herself. According to her testimony, she treated her husband kindly, and his ill treatment of her was the cause of their separation.
It was decreed that the cross-complaint of the defendant should be dismissed for want of equity, and that the plaintiff should be granted a decree of divorce.
The case is here on appeal. .
The testimony of the wife was not corroborated, and the chancellor was right in dismissing her cross-complaint for want of equity.
Counsel for the defendant claim that the court, during the progress of the trial, announced that he had granted tlje same parties a divorce once before; that there did not seem to be any chance of them living together in peace and harmony again, and that he might just as well grant them a divorce again. They claim that the chancellor then granted a divorce to the plaintiff before they had finished taking the testimony for the defendant. The record does not show that they objected to the remarks of the chancellor, or that they offered to introduce any further testimony in behalf of the defendant. Hence the case stands as if they had finished their testimony, and thé question here is whether or not the chancellor erred in granting a divorce to the plaintiff.
It is obvious that the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke.' In such cases the parties must, by mutual concessions, make the yoke lighter.
On the other hand, constant .abuse, studied neglect, and humiliating insults and annoyances which indicate contempt and hatred by the offending party, amount to such indignities to the person as to render his or her condition in life intolerable within the meaning of the statute.
'Tested by this rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence. The plaintiff testified that his wife constantly nagged him and fussed with him every day. As soon as supper was over she retired to her own room with one of her daughters, and refused to see him any more until the next day. She occupied a bedroom with her daughter, instead of her husband;
The testimony of the plaintiff is corroborated by that of the son .and daughter of the parties. Both the son and daughter testified that their mother had a very high temper and continually nagged and fussed at her husband.
This is their second appearance in the divorce court, and the testimony indicates that they can never live together in peace any more. Under the circumstances, the finding of the chancellor that the fault was with the wife is not against the preponderance of the evidence, and the decree will be affirmed. | [
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Hart, J.,
(after stating the facts). The sole ground upon which the judgment is sought to be reversed is that the evidence is not legally sufficient to warrant the verdict.
The evidence for the defendant, as well as for the plaintiff, shows that it is very dangerous to work in oil and gas fields. Indeed, it is a scientific fact of which the court will take judicial notice, that natural gas is so inflammable that, the moment a flame is applied to it, it will immediately ignite with an instant explosion. Holmberg v. Jacobs (Ore.), Ann. Cas. 1917D, p. 496; Jamieson v. Indiana Natural Gas & Oil Co. (Ind.), 12 L. R. A. 652, and Whittemore v. Baxter Laundry Co. (Mich.), Ann. Cas. 1916C, p. 818.
The general rule is that, where a master is engaged in a dangerous business, he must adopt and promulgate such rules for the conduct of his business and the government of his servants, in the discharge of their duties, as will afford reasonable protection to them. He must also adopt such measures as may be reasonably necessary to secure the observance of such rules. Railway Company v. Tripplett, 54 Ark. 289, and Railway Company v. Hammond, 58 Ark. 324.
In the case before us the master adopted a rule prohibiting the servants from smoking while they were working near the pipe lines where gas was likely to escape, and they were especially instructed by their foreman not to strike a light while working in such places. The men were working under the direct supervision of their foreman. He had a g’ang of seven men who were working together under his directions. They were engaged in fitting some pipes together which conducted gas from the main pipe line. Some of the men were doing one thing and some another; but all were engaged in the same work.
According to the testimony of the foreman, who was a witness for the defendant, Sealy was in the discharge of his duty at the time he was 'burned, and the work was being done in the usual and customary way. All of the gang knew that the gas was escaping. He stated further that if a match had been struck by some one standing ten feet away the flame would ignite the gas and the fire would travel like lightning.
Other witnesses testified that Knight smoked cigarettes daily, and that he started the fire which burned Sealy by striking .a match with which to light a cigarette.
The foreman further stated that he did not see what ignited the gas, but it must have.been a match, and that, if any one struck a match, it was negligently done.
Knight denied striking a match at the time Sealy was injured, but admitted that he carried matches and smoked cigarettes. He knew it was against the rules to strike matches while they were doing the work that they were doing when .Sealy was burned. He was gathering up the tools and was carrying a pair of tongs to the wagon at the time Sealy was burned.
Another witness said that Knight had ¡been working just before he struck the match, and knew that the gas was escaping when he struck it. Knight had been helping to put on the pipe, and then stepped back about ten feet when he struck the match.
It is legally and fairly inferable from this evidence that the lighted match caused the gas to explode and to burn Sealy. The evidence also shows that Knight struck the match, and that he was guilty of negligence in doing so. He was engaged in the same work with Sealy, and his negligence in striking the match caused the explosion which resulted in setting fire to the gas, and burned Sealy before he was aware that the match had been struck or could take any precautions to avoid the injury.
It is claimed by counsel for the defendant that the case comes within the exceptions to the rule as laid down in Arkansas Natural Gas Co. v. Lee, 115 Ark. 288, and American Ry. Express Co. v. Davis, 152 Ark. 258. We cannot agree with counsel in this contention. In each of those cases the servant had stepped aside from Ms employment, and was acting solely on his own account in a matter in which the master had no connection. So it was said that the servant was not acting for the master and was not his representative in the act which caused the injury.
In the case first cited the plaintiff was assaulted by another servant pursuant to a plan to drive him out of the defendant’s employment.
In the case last cited the plaintiff was killed by a fellow servant in playing with a pistol intrusted to him by the master. He was not engaged in doing any work for the master at the time, but had stepped aside to play with the pistol, a matter which was in no way connected with his employment.
In the case before us all of the men were working in the same gang. They knew that the gas was escaping and that it was against the rules to strike a match while engaged in such work. Knight, who 'struck the match, had just finished his work on the pipe, according to one witness, and was carrying some tools to the wagon, according to his own testimony. It is true that he denied striking the match, hut the fact that he did so is established by the testimony of other witnesses. The foreman of the defendant admitted that the striking of the match caused the injury, and that it was negligence to strike it at the time and place in question.
All of the servants were working together at the time Sealy was injured, and it constituted actionable negligence for one of them to violate a rule made for their common protection, the doing of which would likely result in injury to some of them. To illustrate: If several men, engaged in working around a place where gas was escaping or likely to- escape, should agree not to strike a light so that they might avoid exploding the gas and injuring each other, all would agree that it was actionable negligence for one of the persons to strike a match and cause an explosion which would burn one of his fellow workers. Now, under our statute, the master is responsible for the negligent act of one servant causing injury to his fellow workers. Therefore, the negligent act of Knight in striking the match which caused the g-as to explode and burn Sealy was also attributable to the master.
No other assignment of error is presented for a reversal of the judgment, and it will therefore be affirmed. | [
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Per Curiam.
The county court of Prairie County on October 11, 1924, entered into a written contract with an accountant to audit the books of all .the county officers, and the contract specified the amount and terms of payments to be made to the accountant as compensation for the services rendered. Appellant is a citizen and taxpayer of that county, and he instituted an action in the chancery court to restrain the county judge and the county clerk from proceeding with the performance of said contract.
It is alleged in the complaint that, at the time the contract was entered into between the county and the accountant, there was no unexpended appropriation for the payment of general county expenses, and that the county had no authority to enter into the contract, but that the accountant had begun work under the contract, and that the county court had made an allowance of $440.51, payable out of the general county funds, to cover the first installment of the payments under the contract. The prayer of the complaint was that the county judge and the county clerk, and also the county treasurer, be enjoined from further proceeding towards the performance of the contract or payment of compensation to .the accountant thereunder.
An answer was filed, and the cause was heard on an agreed statement of facts to the effect that there was no specific appropriation made by the quorum court of Prairie County for the purpose of paying for the auditing of the books of county officers, and that the appropriation for general county purposes for the current fiscal year had been entirely expended. The chancery court rendered a decree dismissing the complaint for want of equity. An appeal has been prosecuted to this court, and appellant applies for a temporary injunction to restrain the officers from proceeding under the contract during the pendency of this appeal.
Appellees have brought into the record here copies of the record of the county court showing that, since the rendition of the decree below, the quorum court of Prairie County, at the regular October term, has made an appropriation for general county purposes, which is unexpended, and that the county court has, at a regular session, made an order ratifying and approving the original contract of October 11, 1924. This additional record is pleaded in bar of appellant’s right to prosecute the appeal on the ground that the question involved has become moot, in that the contract has been ratified, and that there has been an appropriation of funds bv the countv court to pay for the services rendered thereunder by the accountant.
Conceding, without deciding, that the contract was void and unenforceable at the time of its execution because of the fact that there was no unexpended appropriation of funds,.the county court had full power, after the appro priation bad been made by tbe quorum court, to enter into a contract with tbe accountant to audit tbe books of tbe several county officers, and tbe ratification of the original contract was valid for tbe reason that it was tantamount to making a new contract. Leatham & Co. v. Jackson County, 122 Ark. 114.
Tbe statute (Crawford & Moses’ Digest, § 1982) does not require specific appropriations .other than those mentioned, but there is a clause in tbe section of tbe statute referred to above providing for an appropriation for “such other expenses of county government as are allowed by tbe laws of this State,” hence an appropriation under this bead is sufficient to embrace tbe expense of auditing tbe books of tbe county officers. If tbe original contract was void, it was merely because there was no appropriation, and, since there was authority on tbe part of tbe county court at the time of tbe ratification to execute a new contract, such ratification gave validity to the contract and made it enforceable. Tbe fact that a warrant was issued to tbe accountant for compensation earned under tbe original contract does not render the ratification ineffectual. Tbe contract with tbe accountant was an entire one, and, notwithstanding it provided for partial payments as earned, tbe ratification reached to tbe whole contract and validated tbe compensation already earned. To the extent of services already performed and compensation earned, tbe effect is tbe same as if tbe work was performed after ratification.
It follows that tbe question originally presented in tbe case has become moot on account of the- subsequent action of tbe county court and quorum court, and appellees have a right to plead such further proceedings in bar of appellant’s, right to prosecute the appeal. Church v. Gallic, 76 Ark. 423.
Tbe petition for injunction is denied, and the appeal is dismissed. | [
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Humphreys, J.
On March 28, 1923, appellee instituted suit against appellant in the chancery court of Conway County to set aside a settlement of a claim, based on a life insurance policy, upon the alleged ground that said settlement was procured through false and fraudulent misrepresentations, and to recover the face value of the policy, less the amount of $25 paid as a consideration for the settlement.
On the 11th day of April, 1923, appellant filed an answer denying all the material allegations in the bill. On April 25, 1923, in the absence of appellant, the. court heard the cause upon the pleadings and the oral testimony .of appellee, and rendered a judgment against appellant for $175, the balance due on the policy after deduct ing $25 which had been paid as a consideration for the settlement.
At a subsequent term of the court, on January 28, 1923, appellant filed a motion to vacate the decree upon the ground that it had been rendered before trial day under the pleading and practice act.
On October 25, 1923, at an adjourned term, the court overruled the motion to vacate the decree, but failed to make a record thereof, so, at the following January term of court, on application of appellant, the order was rendered nunc pro tunc.
An appeal from the order overruling the motion to vacate the decree has been duly prosecuted to this court.
Appellant contends that the trial court should have set aside the decree, canceling the settlement and adjudging it to be indebted to appellee in the sum of $175, because said decree was rendered before the expiration of ninety days after the pleadings were completed. The premature rendition of the decree was erroneous. Crawford & Moses’ Digest, § 1288; Harnwell v. Miller, 164 Ark. 15. The remedy to correct the error was by appeal and not by motion to vacate the decree after the adjournment of court.
Courts have no jurisdiction to set aside decrees after the expiration of the term at which they are rendered, except upon grounds specified in §§ 6290 to 6296, inclusive, of Crawford & Moses’ Digest. None of the grounds specified in said sections exist in the instant case. It is true that appellant’s motion to vacate the decree contains an allegation that the decree was rendered through a fraud practiced against appellant by the entry of the decree prematurely. The mere entry of the decree could not be characterized as the practicing of fraud upon appellant. The entry thereof was error, but not a fraud. No other facts are alleged as constituting a fraud, and no proof was offered as tending to show that the court rendering the decree was imposed upon. Appellant has not brought himself within the terms of the statutes aforesaid, either by allegations or proof.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a decree of the chancéry court of Woodruff County, Northern District, establishing the will of Mary A. Stamps, which could1 not be found after her death. The will was executed by the testatrix, at her home in Augusta, in October, 1^17, in proper form, and witnessed by E. F. Brewer and A. H. Hamilton, in the manner required by law. I. J. Stacy was designated in the will as administrator. ’ The will provided for the payment of the just debts of the testatrix, $200 to the cemetery fund, and $200 to the Methodist Church, and bequeathed the remainder of the estate, both real and' personal, to appellee, Charles W. Hunnicutt. The will was placed in an envelope,- sealed, and given to A. IT. Hamilton, cashier of the Bank of Augusta &' Trust Company, with directions to place same in the vault of said bank for' safe-keeping.
No testimony was introduced in the case by appellants. They relied upon the' testimony introduced by appellee and their -cross-examination of the witnesses. A few of the witnesses made conflicting statements, but the conflicts were not so sharp and important afe to impair the salient features of their testimony.
The record ‘ reflects, in substánce, that the will was deposited id the vault of the'bank'about the time it'was executed, where it remained until lost or destroyed without the consent or kriowledge of the testatrix:'The'officers and employees of the bank, except I. J. Stacy, who died before the trial, testified that the testatrix had no access to the vault, and had never requested any one of them to give the will to her. The testatrix had informed several of her neighbors, in the summer before her death on October 22, 1919, that the will was in the bank for safe-keeping with her other papers, and that she had willed her property to Charles W. Hunnicutt. The testatrix became ill on Saturday before she died on Thursday. On Friday before she became ill she was at Mrs. Dupree’s home, and Mrs. Dupree, in answer to a question concerning a conversation between them, testified as follows:
“She said she wanted to come down to the bank, and spoke about Mr. Stacy several times, and said that her will was there and all her papers, and her business seemed ¡to bother her considerably, but I didn’t ask her any questions particularly, she would just tell me these things. I never asked her about them, but she always come to me with her trouble. ’ ’
The beneficiary in the will, appellee, called at the bank for the will, after the death of the testatrix, on several occasions, but the officials were unable to find It. A thorough search was made for it by A. H. Hamilton and I. J. Stacy several times, without avail. A. H. Hamilton and other officers of the bank testified that they were certain that the will was not in the bank. The various parties who had private boxes in the vault testified that they had never seen the will of Mary A. Stamps. There was a fire in the bank in March, 1919, and, after the fire, the papers began to mold, and were taken out of' the vault to dry. A. H. Hamilton testified that the only possible way he could account for the loss or destruction of the will was that it was misplaced at the time the papers were taken out of the vault to dry.
Mary A. Stamps had made two wills, which she had destroyed'before making this one. Minor Gregorv was beneficiary in one of them. The beneficiary in this will was taken into the home of the testatrix and her husband when five years old, and reared by them. He was as a son to them. The appellants are distant blood relatives.
Crawford & Moses’ Digest, relating to the establishment of a lost or destroyed will, is as follows: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”
It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intention of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death. This presumption may be overcome by proof. Bradway v. Thompson, 139 Ark. 542; Schultz v. Schultz, 35 N. Y. 653. iWe think it entirely overcome in this case by proof that the will was placed in the Bank of Au,gusta & Trust Company, to which the testatrix had no access, and the testimony of the living officials to the effect that . she never called for the will, and the acts of I. J. 'Stacy indicating that he had never given her the will, together with her statements to her friends, down to the day before she became ill, that the will was in the bank.
We do not think the surmises of learned counsel for appellant, that Hamilton never deposited the will in the bank vault, or that the testatrix called for the will on Friday before she became ill, is warranted by the evidence. Hamilton testified positively that he placed the will in the bank vault for safe-keepiner, and never saw it after that time. The testimony and acts of the bank officials refuted the mere supposition that the testatrix went to the bank on Friday before she became ill and obtained and destroyed the will.
We think the only reasonable conclusion from the testimony accounting’ for the will is that it was lost when the papers were taken out of the vault to dry after the fire. If, lost or destroyed in the lifetime of the testatrix, without her consent or knowledge, it amounted to a fraudulent destruction of the will as to her. Schultz v. Schultz, 35 N. Y. 653.
■ ; No error appearing, the decree is affirmed. | [
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Smith, J.,
(after stating the facts). It is first insisted that the deed was void because the agreement to support, constituting the consideration therefor, was not signed by Julius Goodwin. We think, however, that the deed was not void for the want of mutuality or because Julius Goodwin had not signed it, as appellees insist. The acceptance of the deed was itself an assent to its conditions. Fine v. Lasater, 110 Ark. 425; Wood v. Park, 97 Ark. 13; Whittaker v. Trammell, 86 Ark. 251; Boyd v. Lloyd, 86 Ark. 169.
It is also insisted by appellees- that the provision in regard to support was a condition precedent, and that no title passed until the condition had been fully performed. But we do not agree with this contention. The title to the land passed upon the execution and delivery of the deed, subject to be defeated, however, by a failure to perform the condition imposed — that of support. Skipwith v. Martin, 50 Ark. 141; Cooper v. Green, 28 Ark. 48; Kampman v. Kampman, 98 Ark. 328; Swain v. Beakley, 133 Ark. 406; Terry v. Taylor, 143 Ark. 208; Moore v. Sharpe, 91 Ark. 407.
On behalf of appellants it is insisted that the condition imposed was performed, and further, that, if not, the forfeiture was waived; and it is also insisted that appellees were barred both by laches and limitations from maintaining this suit. We do not consider the questions of waiver or of laches or of limitations, as, in our opinion, the testimony shows that the condition, the nonperformance of which would have defeated the conveyance, was in fact performed.
In Boyd v. Lloyd, supra, Justice Battle said that an agreement to support the grantor during Ms lifetime is everywhere regarded as a sufficient consideration for a deed; and, in Edwards v. Locke, 134 Ark. 80, the court reviewed the authorities dealing with the right of the grantor to set aside such a conveyance, and the right of the grantor in such a deed to sue for rescission, upon condition broken, was there again recognized, as it had been in the earlier cases, and the holding of our earlier cases on the subject was summarized as follows: “The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and, where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, maj be resorted to, regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, 67 Ark. 526; 4 R. C. L., p. 509, § 22; Russell v. Robins, 247 Ill. 510; Stebbins v. Petty, 209 Ill. 291; Spangler v. Warborough, 23 Okla. 806; see also Bruer v. Bruer, 109 Minn. 260; Abbott v. Sanders, 80 Vt. 179; Glocke v. Glocke, 113 Wis. 303. See also case note 43, L. R. A. (N. S.), 918-925.”
There are certain questions raised in the briefs which, as we have said, we find it unnecessary to consider, as we think the conclusion which we have reached from a consideration of the testimony in the case, that the condition was not broken, is decisive of the case, and we dispose of the questions raised by a decision of that question of fact.
The testimony on behalf of appellees, in addition to that already recited, was that Julius was a good-man, but taciturn, and that his wife ran the establishment, her husband included; that she was irritable and exacting, and, on one occasion, threw a stick at one of the girls, and, on another occasion, threw a stick at Mrs. Hardy Goodwin.
A fair interpretation of the deed in question is that the beneficiaries named in the deed were not only to be furnished food and shelter and clothing and other physical necessities, but these were not to be provided under condition which made it impossible for them to use and enjoy those necessities in ease and peace, as was said in Edwards v. Locke, supra, and it would not have been a compliance with the condition of the deed to have furnished these necessities but to have done so under circumstances which rendered the condition of the beneficiaries intolerable.
On behalf of appellants it is denied that Mrs. Julius Goodwin threw a stick at either Mrs. Hardy Goodwin or at one of the daughters, but, even so, this did not drive either of them from the home.
So far as the daughters are concerned, it is clearly established that they were furnished a home as contemplated by Hardy Goodwin upon the execution of the deed. They were furnished a home during infancy and until their marriage. Mrs. Hardy Goodwin was also furnished a home and support until the marriage of her youngest daughter, and, although she was invited to remain as a member of the Julius Goodwin family, she stated that she preferred to live with her baby child.
It does not appear that Mrs. Hardy Goodwin was ever afterwards asked to return and live at the old homestead, and it does appear that no contributions to her support were made by Julius Goodwin’s widow or his children. Neither does it appear that Mrs. Hardy Goodwin ever called upon the widow or children of Julius Goodwin for any contributions, as required by the deed. The testimony shows that Mrs. Hardy Goodwin enjoyed a pension which sufficed to supply her personal wants. She apparently preferred to live with her daughter, rather than her son, or the members of her son’s family after his death, and was never shown to have complained that the provision of the deed in regard to her support was not complied with. On the contrary, it affirmatively appears that no such requests were ever made.
A similar question was presented in the case of Salyers v. Smith, 67 Ark. 526. There a conveyance had been made to a daughter and her husband by the father, on condition that the grantor should be supported as long as he lived. There was a decree against the daughter and her husband, requiring them to make monthly payments, in default of which the land conveyed was ordered sold. This court, in reversing that decree, held that, until the appellants — the daughter and her husband — refused to render the support required by the deed, or had done some act tantamount to a refusal to do so, there was no cause of action.
So here we conclude that, after providing the daughters a home and support for the time and manner required by the deed, and after likewise providing for the grantor’s widow so long as she chose to receive the support provided by the deed, the conveyance is not to be defeated because contributions to Mrs. Hardy Goodwin were not continued when they were never requested or refused.
The decree of the court below, setting aside and canceling the deed, will therefore be reversed, and the cause will be remanded with directions to enter a decree dismissing the complaint as being without equity. | [
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Hart, J.
Appellee brought this suit in equity against appellants to quiet title in himself to the town lots described in the complaint.
The object of the bill is to have a resulting trust declared in the lots which appellee,' as husband, had purchased, and, by fraud or mistake, the title to which had been taken in the name of his wife. The appellants claimed title under a will executed in their favor.
The chancery court granted the relief prayed for in the complaint, and quieted the title of the appellee in said lots, free from any right or title in the lots of appellants. The case is here on appeal.
It appears from the record that the books kept by F. M. Fulk in his lifetime showed a sale made on May 11,1907, to A. Battle and Hattie Battle, of lots 14 and 15, block 317, in the city of Little Rock, for the sum of $1,200. Monthly payments on said lots from May 11, 1907, to January 18, 1910, in the handwriting of F. M. Fulk, are shown on his ledger. After his death a deed was executed to said lots to Hattie Battle on February 18, 1911. The notes given for the purchase price of said lots were signed by A. Battle and Hattie Battle.
Aaron Battle was the principal witness for himself. According to Ms testimony, he was 19 years of age when the Civil War commenced, and can neither read nor write. He boug'ht lot 13, described in the complaint, during the lifetime of his first wife. After his first wife died, he married again, and made an agreement with his second wife (Hattie) that he should buy said lots 14 and 15 from Judge F. M. Fulk, and that.the lots should be taken in the name of his wife and himself. It was agreed between them that the survivor should inherit from the other. The witness had a team, and was principally engaged in hauling lumber. In this way he earned the money to pay for the lots. He gave the money to his wife for that purpose, and she attended to the business of making the payments which were due monthly. His wife did not pay any part of the purchase price of said lots, and he did not know that she had taken the deed in her own name. He placed implicit confidence in his wife, and supposed that she had taken the title in their joint names. He learned that his wife had taken the title to the property in her own name after she died, when he applied to a Little Bock bank for a loan upon the property.
It appears from the record that in February, 1911, Hattie Battle mortgaged said lots to secure a loan of . $1,000 with which she built two houses on the lots. The mortgage was satisfied in 1917. During all of this time Hattie Battle took charge of the lots and collected the rents on the houses which she had built on them. On the 17th day of January, 1918, Hattie Battle executed a will in which she gave said lots to her husband, Aaron Battle, during Ms lifetime, and, after his death, lot 14 was to go to two of her nieces and lot 15 was to go to one of her nieces and to the Mount Pleasant 'Baptist Church of Little Bock, of which she was a member. Hattie Battle died on February 17, 1918.
According to the testimony of the minister of her church, Aaron Battle had done very little work for at least nine or ten years before Hattie’s death. Hattie was a hard-working woman, and earned the money by washing and ironing with which she paid for the two lots in question. After she borrowed the $1,000 with which to build the two houses on the lots she rented them out, and, with the rents and what she made by washing and ironing, she paid off this mortgage. The witness very frequently attended to the business of making these payments for her. After her death the witness discussed the conditions of the will with Aaron Battle, and he knew what disposition his wife had made of the lots. Another person who had rented one of the houses from her for several years testified -that he always paid the rent to her, and that Aaron Battle had done but little work since the year 1908.
One of the nieces of Hattie Battle, who was also a beneficiary in the will, and her husband both testified that Aaron Battle had never made any claim to the lots in question, and that he admitted, after her death, that it wTas the property of his wife. The will of his wife was read in his presence, and he did not make any objections to it. Aaron Battle understood the contents of the will.
Another witness testified that she rented one of the houses from Hattie Battle, and always paid the rent to her. Hattie Battle claimed to own the lots in the presence of Aaron Battle, and he never made any objection to her ownership. Hattie continued to work up to the time of her death. During the latter years of her life, Aaron Battle did but little work, and that was in making a truck patch. Several years before his wife died he lost one of his mules, and then hauled ice for a short time with the other one. Then he gave up all work, except a little about his truck patch.
The general rule is that, when a man buys real estate and takes the deed in the name of another, a trust results by operation of'law to Mm who advances the purchase money. If, however, the title is taken in the name of the wife of the person from whom the money comes, it is presumed to have been an advancement or a gift. This presumption, however, may be rebutted by antecedent or contemporaneous declarations and circumstances which tend to prove the intention of the person who furnished the money to buy the estate that the grantee should hold as a trustee, and not beneficially for himself. A resulting trust may be established by parol evidence, but such evidence must be full, clear, and convincing. Milner v. Freeman, 40 Ark. 62; Wood v. Wood, 100 Ark. 370; Bray v. Timms, 162 Ark. 247; and Mann v. Mann, 164. Ark. 43.
To uphold the decree, reliance is especially placed upon the case last cited. We do not think, however, that the evidence in favor of the husband in the present case is so strong as that in the case last cited. In that case the testimony of the appellee was not contradicted. He testified in detail, and showed clearly that Ms money paid for the land in question, and that it was intended that his wife should take the land as trustee for him and not for her own benefit.
In the present case several witnesses testified that Hattie Battle exercised sole control over the lots during her lifetime. She referred to the lots, in the presence of her husband, as belonging to herself, and he never contradicted her. It is true that he claims that he was not able to read and write, and, on this account, did not know that the title had been taken in the name of his wife. .The fact that he was uneducated, however, would not prevent him from- knowing that his wife was claiming the lots as her own. He never interfered with her in the least in her assertion of ownership. He knew that she . had mortgaged them for the purpose of securing a loan with- which to build two houses upon the lots. Three of the witnesses testified that he had recognized that the title to the lots was in his wife after her death. They said that the will of his wife was read over to him, and that he understood that she had given him a life estate in the lots and the remainder in fee to her nieces and to her church.
It is true that the testimony of these witnesses was weakened to some extent on cross-examination, and that they were beneficiaries under the will. 'Their interest, however., was at least no greater than that of appellee himself.
The amount earned either by the husband or wife is not shown. So far as the record discloses, the wife might have earned as much by washing and ironing as the husband earned by hauling lumber. Then, too, it was the duty of the husband to have supported his wife, and this would have reduced his earnings, so that it was more likely that the wife paid for the lots than that he paid for them.
The facts and circumstances testified to by the witnesses for appellants tended to contradict the testimony given by appellee, and we are of the opinion that the chancellor erred in holding that appellee had established a trust in his favor by clear and convincing testimony. Under the evidence as disclosed by the record the chancellor should have dismissed the complaint of appellee for want of equity.
It follows that the decree will be reversed, and the cause will be remanded with directions ■ to dismiss the complaint of appellee, indicated in the opinion. | [
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Hart, J.,
(after stating the facts). It appears from the record that the note sued on was payable to the order of Bill McDonald, Jr., and it was by him indorsed in blank and delivered to Orville Thompson in exchange for a pair of mules and some money, being the difference between the value of the pair of mules and the face value of the note.
According to the testimony of McDonald, the note was not indorsed by him at the time it was delivered to Thompson, but he indorsed it a few days after the delivery, at the request of Thompson, to enable him, to use it in borrowing some money.
The chancellor was of the opinion that oral testimony was not admissible to change a blank indorsement into a qualified or restricted indorsement. The chancellor was correct in so holding. The decided weight of authority is to the effect that a contract by blank indorsement is fixed by law, and should not be rendered uncertain by parol evidence any more than when written out in full. Case note to 4 A. L. R., at p. 765.
In Martin v. Cole, 104 U. S. 30, the general rule is clearly and fully stated by Mr. Justice Matthews, as follows:
“The contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not in any proper sense a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing,’ some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less on that account perfectly understood. All its terms .are certain, fixed, and definite, and, when necessary, supplied by that common knowledge, based on universal custom, which has made it both safe and convenient to rest the rights and obligations of parties to such instru ments upon an abbreviation. So that tbe mere name of tbe indorser, signed upon tbe back of a negotiable instrument, conveys and expresses bis meaning and intention as fully and completely as if be bad written out the customary obligations of his contract in full.”
This court has recognized the general rule and certain exceptions to it.
In Johnston v. Schnabaum, 86 Ark. 82, it was held that parol evidence was admissible to qualify an unrestricted indorsement on commercial paper by showing that the note was indorsed merely for collection and not for a sale of it.
Again, in First National Bank of Lake Providence, Louisiana, v. Reinman, 93 Ark. 376, it was held that parol evidence was admissible between the immediate parties to show that the indorsement was merely made for the purpose of transferring the title to the indorsee, who was the real owner of the note. In that case the testimony showed that Reinman sold the mules to the bank for a certain price, and then, as agent of the bank, sold the mules to a purchaser for an increased price, and, for convenience, took a note payable to himself, and indorsed it merely to transfer the title to it. This same exception was again recognized in Ellis v. First Nat. Bank of Fordyce, 163 Ark. 471. In that case Ellis owed the bank, and was unable to pay it. The bank insisted on him selling some lumber at a price lower than the usual market price for the purpose of paying its indebtedness, and, at the time, the bank agreed to take the acceptances of the purchaser of the lumber at the stipulated price as payment pro tanto of its indebtedness. We held that parol evidence was admissible to show that Ellis indorsed the acceptance to the bank merely to transfer the title to it. In each of these cases an agreement was made that the bank should take the commercial paper in payment of a debt of its customer, and the indorsement was made merely to transfer the title and thereby carry out the agreement between the parties. In each case the bank agreed to accept the commercial paper as payment of its indebtedness, and the indorsement was merely to transfer tbe title.
In the case before us, according to the testimony of McDonald bimself, he indorsed the note several days after he had given it to Thompson in exchange for a pair of mules. There was no condition attached to the delivery of the note at all. According to his own testimony, this condition was attached to it several days after its delivery. If parol evidence should be allowed to establish such a defense, then every promissory note as between the Immediate parties thereto, and, indeed, every contract in writing, would be open to parol proof that it did not correctly represent the agreement made, and oral evidence would be allowed to contradict, alter, or vary it. This would be contrary to the great weight of decisions of the courts of last resort, including the Supreme Court of the United States.
On .the question of reformation but little need be said. While parol evidence is admissible in an action to reform an instrument on the ground of fraud or mistake, the evidence must be clear and convincing to warrant a reformation of the instrument. Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, and cases cited.
Tested by this rule, the chancellor was right in holding that McDonald was not entitled to a reformation of the note. It is true that McDonald at one time testified that it was understood that he was not to become liable on his indorsement, and another witness testified that Thompson said to him that he had told McDonald, at the time he indorsed the note, that he would see that he was held harmless on it. Thompson, however, denied this in positive terms, and his testimony is corroborated by that of Jeff Bratton.
According to the latter’s testimony, McDonald and Thompson came to his office together with the note, and Thompson requested him to bring suit on it. He noticed that McDonald was an indorser on the note, and thinks that Thompson told him, in substance, that he did not wqpt hiim to pay it if he could make it.out of the others; but, if he could not, then McDonald would have to pay it. McDonald, in detailing what happened on the same occasion, admitted the truth of Bratton’s testimony. He admitted that Thompson had told him in effect that he wanted Richburg and Cazort to pay the-note, and that he did not want McDonald to pay it, although he was good to him for it.
Under these circumstances the chancellor did not err in holding that McDonald had not shown that he was entitled to a reformation of the contract to show a qualified indorsement of the note, for the reason that he had not made out his case by that clear and convincing testimony which is required in such cases.
It follows that the decree will be affirmed. | [
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Hart, J.,
(after stating the facts). The agreed statement of facts shows that E. E. Stone and H. H. Johnson are tenants in common of the 560 acres of land in section 1, and that they executed a deed of trust on it in favor of the Union Bank & Trust Company to secure an indebtedness which E. E. Stone individually owed it. After the land in section 1 had been sold under the mortgage foreclosure decree, H. H. Johnson was allowed to intervene in the suit, on the ground that he was entitled to be subrogated to the rights of the mortgagee, Union Bank & Trust Company, as to one-half of the proceeds arising from the foreclosure sale of these lands.
It is well settled that, when a principal and surety-each mortgages his own property to secure the debt of the principal, the surety is entitled to have the property of the principal sold first, and the proceeds of the sale applied in satisfaction of the debt. Kempner v. Dooley, 60 Ark. 526.
Counsel for appellant admit the equitable rule of placing .the charge upon the property of the principal debtor in exoneration of the estate of the surety, but deny its application under the facts in this case. They contend that the equities of appellant are superior to those of the intervener, H. H. Johnson, and base their claim in this respect on the fact that appellant had a valid mortgage executed in its favor by E. E. Stone on lands owned by him, prior to the execution of the mortgage by-E. E. Stone and H. IT.' Johnson to secure an indebtedness of Stone to the Union Bank & Trust Company. The mortgage executed by Stone to secure his indebtedness to appellant was upon property owned by him individually, and was not upon the property owned by him as tenant in common with H. H. Johnson, which was mortgaged by them to secure an indebtedness due by Stone to the Union Bank & Trust Co. In short, appellant had no mortgage on the property embraced in the mortgage given by E. E.- Stone and H. H. Johnson to the Union Bank & Trust Company. It is true that he acquired a lien on all the lands of Stone when he obtained a judgment against him in this case; but Ms judgment lien did not entitle him to a preference over prior equities. '
. In the case of Watkins v. Wassell, 15 Ark. 73, it was held that the interest of a judgment creditor, under- his lien, in the real estate of his debtor, is limited to the actual interest of the debtor at the time the lien attaches, and that he holds it free from subsequent alienations or incumbrances, but subject to all prior alienations or incumbrances.
The court quoted with approval from Keirsted v. Avery, 4 Paige Ch. N. Y. p. 9, the following: “Whatever doubts may have once existed on this subject, it is now settled that, a judgment being merely a general lien on the land of the debtor, the lien is subject to every equity that existed against the land in the hands of the judgment debtor at the time of the docketing of the judgment, and a court of chancery will protect the equitable ■rights of third persons against the legal lien, and will limit that lien to the actual interest which the judgment debtor has in the estate.”
In short, it was held that a judgment lien amounts to but a security against subsequent purchasers and incumbrancers, and can only operate upon the interest which the debtor had at the time of its rendition. Under this rule, the equitable lien of H. H. Johnson as a surety of E. E. Stone, being prior in point of time to the judgment lien obtained by appellant, is paramount to the lien of appellant as a judgment creditor, because it thereby acquired only a general lien upon the estate of Stone, which, in chancery, is not permitted to prevail as against the prior equity of Johnson as surety of Stone.
As we have already seen, the fact that appellant had a mortgage on other lands of Stone would not give it a prior equitable lien to that existing in favor of Johnson as, a surety of Stone under the mortgage given by them both to the Union Bank & Trust Company. Therefore we are of the opinion that the chancellor correctly decided this issue in favor of the intervener, H. H. Johnson.
It is next insisted that the court erred in allowing H, H. Johnson to intervene, after the sale of the lands under the foreclosure decree, and assert his prior equitable lien as surety on the proceeds of the sale. We do not think that there was any error in this respect, for two. reasons. In the first place, it may be said that, although IT. H. Johnson was made a party defendant to the foreclosure suit, he filed no answer, and his rights were not adjudicated in the foreclosure decree. On the other hand, the court retained control of the cause for such further orders as might be proper to enforce the rights of the parties to the suit and the rights of such others as might thereafter become parties to the action. The right of Jo 1msoil, as surety, to be subrogated to tbe rights of the creditor against his principal, was separate and distinct from the issues raised in the foreclosure proceedings between the mortgagees and the other lien claimants. Therefore it was not adjudicated by that decree, and the court had the power to retain control of and to continue the cause as to his rights as being a distinct and separate issue. Davis v. Cook, 155 Ark. 613.
In the second place, service was had upon H. H. ■ Johnson by publication of a warning order. Under our Code he had two years within which to appear in court and move to have the action retried. Crawford & Moses’ Digest, §§ 6259-6266. It is true that Johnson did not give the bond required by the statute, but the fund on which he sought to obtain a lien was still in the hands of the court, and no prejudice'could have resulted to appellant from his failure to give the bond required by parties constructively-summoned, who seek a retrial of the action within the time prescribed by statute.
It is conceded by counsel for appellant that the court properly directed the payment of taxes upon the different tracts of land, and correctly decided that W. H. Johnson had a paramount lien on the lands purchased from him in section 1 by Stone and H. H. Johnson for the balance of the purchase price.
The result of our views is that the decree of the chancery court was correct, and must be affirmed. | [
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Wood, J.
C. M,. Cruce was a fireman in the employ of the Missouri Pacific Railroad Company. On the 12th of June, 1922, while engaged in the performance of his duties as fireman on one of the company’s locomotives running from Little Rock to McGehee, he was injured by a tool-box falling upon him. The train, at the time of Cruce’s injury, was engaged in interstate commerce. Cruce instituted this action on September 13, 1923, to recover damages for the injury, and alleged that, while he was in a stooping position, putting coal in the furnace, the tool-chest fell from the rack in which it was placed, upon his back with great force and violence, causing him severe injury; that the company, its agents and employees, negligently and carelessly permitted the tool-rack, which was constructed above the place where his duties required him to work, to become out of repair and insecure, in that the same was bent or broken and did not have the proper fastening to hold the tool-box in position; that the company, its agents and employees, in placing the same in said rack had negligently and carelessly failed to see that it was properly adjusted so that it would not be thrown from its position by the movement of the train; that the company, its agents and employees, had negligently and carelessly failed to make the proper inspection of the placing of said tool-box in the rack in order to see that the same was not an element of danger. The action was brought under the Federal Employers ’ Liability Act, approved April 22, 1908.
.The company in its answer denied all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.
The testimony of Cruce was to the effect that, on the morning of June 12, 1922, he was firing an engine that was pulling a freight train from McGehee to Little Rock; that this train was made up in Louisiana.
The testimony on the issues of negligence, contributory negligence and assumed risk, is substantially as follows: The engineer testified that the injury to Cruce occurred at Jefferson Springs, about seventeen miles from Pine Bluff, between Pine Bluff and Little Rock. The groaning of Cruce attracted witness’ attention, and he looked around and saw that the tool-box was lying, one end on the apron and the other on Cruce’s shoulder. Cruce w¡as lying down in the entry, on his side. The toolbox had fallen out of the rack on Cruce, and witness lifted it off of him. They took Cruce off of the engine at Jefferson Springs and put him on a caboose, and brought him to Little Rock to the hospital. "When witness got to Little Rock, he reported the rack on the engine as in bad condition. After lifting the tool-box off of Cruce witness saw one of the fingers was bent on the rack. Wit ness was familiar with the duties of a fireman on freight trains. When witness got on his engine, he had occasion to get the monkeyvwrench out of the tool-box, and, in attempting to lift the box out of the rack, found that he could not move the tool-box with his hands. The rack has a bar of iron something like 3/8 of an inch in thickness and 2% or 3 inches wide, and there are strips running across and riveted to a sheet on the face of the tank. It has fingers that turn up. The tool-box is made of sheet iron about 15" on 16" long and 4%" or 5" wide. The tool-box sits in the rack. The prongs stood up at each end about three inches high, and the .strips of iron forming the rack turn up and make what they call the fingers of the rack. The strips of iron stick up in front of the box about two or three inches high. The 'box is held at the back by the sheet iron of the tank. The two strips were riveted to the tank, and then turned straight out the width of the box and then turned up three inches. The prongs or fingers, two in front and one on each end, held the box in the rack. The left prong or finger on the rack was bent out to an angle of about 45 degrees, and that left one prong straight up on the front. The one front prong and the prong on each end would keep the box from falling out. W¿tnés.s didn’t see how the bent prong had anything to do with the box falling out. The rack was bolted to the top sheet that makes a part of the front part of the coal tender. There is a space in the tank where the coal stays that is surrounded by the tank that holds the water. The bottom of the tool rack is about four and a-half feet from the floor. The box itself was four or four and a-half feet high. Prom the door of the firebox to the gates that hold the coal in the tank running through the center of the engine is something'like 7y2 feet. The coal gates were right under where the tool-box hung. When the fireman .stoops down to take up. a scoop of coal, he stoops under the tool-box. It is something like 4% feet from the place where he takes his coal to the box. The bent prong of the tool-rack would be in plain view of him when he turned each time to get the coal. Witness had never noticed the bent prong until he picked the tool-box off of Cruce. The witness looks forward more than the fireman to see where the engine is running. The box is a portion of the tank equipment. The fireman has charge of the coal of the engine, and loads it. He also takes the water. In order to get over the water tank the fireman goes over the tank wall by the box or around it. It is usual for him to go straight over. The fireman had a better opportunity than witness to observe and inspect the condition of the box, as he worked under it and around it. It was the duty of the fireman to keep a lookout.
The plaintiff, Cruce, testified, in addition to his testimony already set out, that he had been working as a fireman on the Missouri Pacific nearly three years when the injury occurred. He was injured near Jefferson Springs by the tool-box falling out of the rack on to his back. The rack was fastened on the top of the cab just over the coal gates. It was 5% or 6 feet over the top deck. One as tall as witness w'ould have to climb over the coal gate to get tools out of the box, if it was necessary for him to get them. The company had a man at the end of the terminal at the roundhouse to put the tool-box in the rack for the engineer’s use. Witness had nothing to do with that. Witness was in a stooping position, putting in the coal. He had reached ’back for the second or third scoop, and, as he was in the act of opening the firebox, the tool-box fell out of the rack and hit him between the shoulders, in the small of the back. The tool-box would weigh between fifty and seventy pounds. Witness had not noticed the tool-box when he got on the engine, further than looking up to see if the coal gate, the shaker bar, and clinker lever, were in proper place. Witness noticed that the box was in the rack just by glancing at it. He saw nothing wrong about it. When the box fell on witness, it knocked him down. He remembered the engineer stopping the engine and whistling for the crew to come. About the last witness remembered was when they were taking him off of the engine. Some people had got up there about that time, and 'witness beard them ask tbe engineer, Read, if witness was dead or killed. Witness heard a lady’s voice ask Mr. Read if witness was killed. He said he didn’t know. She asked what happened, and' he said the tool-box fell on witness. She asked him how come it to fall, and he said the rack was bent; that was the last witness remembered. Witness then described the nature and effect of his injury, which testimony it is unnecessary to set forth.
Witness further described the tool-box and the tools it contained, and stated that when the box fell the lid came open and the tools scattered all around witness on the deck. Witness was conscious about five minutes from the time he got hurt until they took him off the. engine. The engine should have been inspected at McGehee or Little Rock. They are inspected at each of the terminals and at the roundhouse. The company had two or three shifts of inspectors at McGehee and Little Rock. Cook was the inspector at McGehee. He got off duty soon after witness arrived there — about 3:30 in the morning. He would not have had time to inspect. There are three hours that they have no inspectors. The inspector is supposed to be relieved at 4 o’clock in the morning, and thereafter there is no inspector until 7 o’clock in the morning. The engine witness was on could not have been inspected that morning. There was no inspector there. He was still on duty when witness got there, but would not have had time to inspect the engine, because it takes an hour or an hour and a-half to do that. The engine was turned over to the hostler in the yards, whose duty it is to put them in the roundhouse and bring them from the roundhouse and connect them with the trains. On that morning they "stayed there about three hours, doing what was called ‘doubling the route.’ They seldom did that. This was the second time wdtness doubled on that road in about three years. Witness had no instructions from the engineer about inspecting the tool-box and tools. When witness glanced at the tool-box, he saw nothing wrong— nothing out of the ordinary. Witness was supposed to see that the tools he used in firing were on there — Ms shovel, coal pick, clinker bar and shaker. These do not go in the tool-box. When these tools are not on the engine, he notifies the engineer, and the engineer calls the hostler to have the supply man put them on. Witness didn’t use any of the tools in the tool-box. If there was anything wrong, witness didn’t observe it. Witness was asked what caused the box to fall out of the rack, and answered, “The prong being out of shape, and probably the box was too small.” Witness supposed the rack was in bad order. It could have been both this and the box being too small. As witness climbed up on the engine and noticed the box up in the rack, it was three or four or five feet from witness. Witness saw the box up in the rack when he left Little Rock. He didn’t have any light in the cab on the engine going down to McGehee, except the water glass light. They were supposed to have a light over the coal gates to reflect down on the deck, but witness didn’t remember whether it was up there on that particular night or not. They arrived at McGehee at 3:30 and left at 6:45. It was daylight when witness got on the engine and looked at the box. Witness didn’t see that it was put correctly in the rack — didn’t pay any particular attention. It was not in witness’ line of duty, but he always looked to see if everything was in the proper place. Witness doesn’t have to inspect the engine unless directed to do so by the engineer. Firing is the most that witness had to do. If inspection and cleaning are assigned to witness, he is supposed to do it. Witness was under the engineer’s jurisdiction. It was the duty of witness, as fireman, to inspect everything about the tank that came under his observation, but it was not his place to inspect, because witness didn’t have any time for that. His duty was to run the engine from his seat and get down and oil it around under the cab. Witness’ duties kept him turning towards the tank and back most of the time to get the coal. Witness was asked: “Every time you turn back to get coal, it put this tool-box in your line of vision, didn’t it? A. No sir; if you did, you would have to look up every time. You always look down when you go to get a scoop full of coal.” Witness was asked, “When you go back to get water, you would go back past the tool-box, wouldn’t you, every time? A. I didn’t go over it. I got down to the side of it. I either dropped off — (generally, I dropped off on the ground. * * * 1 dropped off on the ground, and would catch the rear of the tank and go up on the ladder. ’ ’ Witness then described to the jury the position he was in and the movements he had to make when he was putting coal in the firebox. He states, “When I swung back to get the coal, I would swing back under it, stooping, and, with the engine running as fast as we were, I judge it would be 4% feet high.” After describing the position witness would be in in putting the coal in the firebox, he was again asked how high the box was, and answered, “Five feet;” that it was up over witness’ head, probably 5y2 or 6 feet. The coal was back 7% feet from the fire-box. When witness straightened up to get on the fireman’s seat, he would be about four or five feet from the box. Witness was asked if any one on the train connected with the train crew up to the time this box fell was in a better position than witness to tell the condition of the box, and answered, “I think so. I think any member of the crew would have been, for the simple reason that the fireman is the only one that works. Every time the engine whistles at a bunch of cattle or a crossing, the fireman has to go to firing. ’ ’ The fireman could tell if there was any defect in the tool rack if he saw it, but he had no reason to see it. He didn’t get any of the tools. The engineer didn’t tell witness to get any of the tools. Witness stated that the tool-box fell because it was in bad order; that it would not have fallen if it had been in proper condition. If the rack had been in good order, the box would not have fallen out, unless the engine had turned over or hit some rough track. It might have been possible to have thrown it out, but witness didn’t think it would have fallen if the rack liad been in proper condition. Witness didn’t remember whether they hit any rough track.
A witness by the name of Pump testified that it was his duty to make tool-boxes and racks to hold them on the engine. He described the manner in which the rack was made and attached, substantially the same as already set forth in the testimony of the engineer. The toolboxes were 30 inches long and 8 inches square. The box with its equipment of tools would weigh between 50 and 55 pounds. The prongs or fingers come up straight to hold the box in. Witness was asked what effect it would have on the box as to making it safe if one of the prongs or fingers is bent out at an angle of 45 degrees, and answered, “I don’t know much about that — how it would be affected at all. It would jump out if it was bent. The purpose of putting the prongs there at all is to hold the box in.” On cross-examination witness was asked, “If there were just one of those prongs in front, the box would have sufficient prongs to hold it in there, wouldn’t it?” and answered, “No, it would slip out on just one.” He further stated that with one of the front prongs bent and another front prong three inches high holding and one at each end holding, the box would jump out easy, according to witness’ idea.
Another witness testified for the plaintiff to the effect that he was working for the defendant company at McGrehee in June, 1922, as inspector. He went on at eight p. m. and off at 4 a. m. The next inspector came on at 7 a. m. Witness didn’t inspect the engine on which Cruce was injured. It came in at 3:45 in the morning. It is the duty of the inspector to inspect the engine all around for defects in any of the running equipment or safety appliances. It was a part of witness’ duty to inspect the tool-box, tool-rack, etc.
A rule of the company was introduced which specified,' among other things, that firemen must “assist in the inspection and 'cleaning of the engine on the road and do the cleaning assigned to them.”
At the conclusion of the testimony the court instructed the jury to return a verdict in favor of the defendant- 'company, which was done. Judgment was rendered in favor of the defendant, from which is this appeal.
In Jones v. Lewis, 89 Ark. 372, it is said: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” Williams v. St. Louis-San Francisco Ry. Co., 103 Ark. 401, and many cited in the above.
Under the above rule, we are convinced that reasonable minds, giving the evidence its strongest probative force in favor of the appellant, might reach a different conclusion from that reached by. the trial judge. There was testimony to warrant a jury in finding that the company was negligent in not exercising ordinary care to have the tool-rack properly inspected and repaired; that the tool-rack was in a defective condition, and that such defect was the proximate cause of the injury to appellant; that appellant did not know and appreciate the danger of the defective condition of the toolrack; that the defect was not so obvious that appellant was bound, in the exercise of ordinary care for his own protection in the discharge of his duties, to have discovered the same; that the danger from the defective rack was not one of the ordinary risks incident to appellant’s employment.
These were issues of fact under the testimony on which reasonable minds might reach different conclusions. The court therefore erred in not submitting these issues to the jury under appropriate instructions. For the error in directing the verdict the judgment is reversed, and the cause is remanded for a new trial. | [
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Wood, J.
This is an action by the appellee against the appellant to recover damages for the loss of thirty logs, which appellee alleges he delivered to the Gould Southwestern Railway Company and the appellant, its successor, for shipment to the MeLean-Arkansas Lumber Company at Little Rock, Arkansas. Appellee alleges that the logs' were damaged by fire at Gould, Arkansas, in the sum of $211.48, for which he prayed judgment.
The appellant answered, denying the allegations of the complaint, and set up that the appellee delivered to the appellant two cars of logs consigned to himself at Gould, in care of the Missouri Pacific Railway tracks; that the appellant transported the cars and delivered same in good order on the Missouri Pacific tracks at Gould, and the appellee accepted the delivery and paid the freight to the appellant. Appellant alleged that, if the oars were damaged by fire, such damage occurred after the delivery had been effected as alleged, and that its liability to the appellee had therefore ceased.
The testimony of the appellee was to the effect that he shipped the logs over appellant’s line to Gould. They were billed to appellee at Gould, in care of the Iron Mountain Railroad. The appellee had been making shipments before the one in controversy, and the agents of the appellant had always delivered to the appellee bills of lading from the Missouri Pacific for these shipments. The appellee understood that the appellant was to deliver the cars to the Missouri Pacific Railroad and receive a bill of lading, and return the same to the appellee. The logs were burned on the night of the day the appellee shipped them — the 24th of February, 1922.
On cross-examination appellee identified a bill of lading that was given to him by the appellant, which shows the point from which the cars were shipped and the .point of, destination, and that they were consigned to appellee in care of the Missouri Pacific Railroad; that represented the only written contract between the appellee and the appellant. Appellee had told the agent of the Missouri Pacific at Gould to issue bills of lading, and Forbes, the agent of the appellant, would bring the bill of lading from the Missouri Pacific back to the appellee, after Forbes had delivered the logs to the Missouri Pacific. Appellee had told the Missouri Pacific agent at Gould where he wanted the logs to go, and had given him shipping instructions — had been doing that for some time. There was no instruction in writing. Forbes had done this on other shipments for the appellee before. There was nothing said about these particular cars. Witness signed the bill of lading, and thought that Forbes understood. The appellant had nothing to do in connection with the cars, except to deliver them to the Missouri Pacific. On the day the logs were delivered to the appellant, when Forbes returned that afternoon he told the witness that the Missouri Pacific had said they could not accept the logs; that they were not wired properly; that, later, the agent told him (Forbes) that the Missouri Pacific would accept the shipment. The agent of the appellant notified the appellee at the time that the cars had been placed on the Missouri Pacific tracks and what the Missouri Pacific agent said about them. Forbes told the appellee that the Missouri Pacific agent had accepted the cars for shipment, but the agent denied it.
On redirect examination appellee testified that the bill of lading which he received from the appellant did not have on it “in care of Missouri Pacific tracks.” Appellee stated that it was the custom of the appellee, in hauling and shipping logs over the Missouri Pacific, •for the appellant to put the logs across to the Missouri Pacific tracts when they arrived at Gould. The appellant used the tracks on the north side of the main tracks of the Missouri Pacific, whether it was taking the consignment in or out. The cars which were burned were over at this track. Appellee stated that, on the particular occasion when the logs were burned, the appellant had not carried out appellee’s instructions to get a bill of lading from the Missouri Pacific and deliver it to the appellee. Appellee was never notified by the appellant that the Missouri Pacific would not receive the logs. The logs went over to Gould on Friday, and appellee heard they were burned on Monday. Appellee was trying to ship the logs to Little Rock. Appellee was selling the logs f. o. b. at Gould, and the log's had to be rebilled from Gould. The Missouri Pacific had been doing that for appellee. Appellee had told the Missouri Pacific agent at Gould how he wanted the logs to go. It was no part of the duty of Forbes, the agent of appellant, to give instructions for the reshipment of the logs. Appellee concluded his testimony by stating that, in shipping the logs over appellant’s line, he did so with the understanding that the appellant would ship the logs to Gould and turn them over to the Missouri Pacific, and get the bill of .lading from the Missouri Pacific and deliver the same to the appellee.
Forbes testified that he was the general manager of the appellant. He issued a bill of lading for the cars in controversy. The bill of lading in this case did not have “Care of Missouri Pacific” on it at the time he delivered the same to the appellee. The only instruction that witness had, under the contract and bill of lading, was to deliver to the appellee at Gould the logs in controversy. The appellee did not furnish the appellant with any shipping directions from Gould. The cars were at Gould on the day they were shipped, in good order. When witness delivered the cars to the Missouri Pacific, the agent of that company first said that he would not receive them because they were not properly wired'. Before witness left Gould, however, the agent stated that he would try to get the cars through, but told witness in the future to put five wires on the oars. Witness stated that appellee asked him to get bills of lading from the Missouri Pacific, and witness had done that before, but it was no part of his duty. Appellee gave witness no instructions except those contained in the bill of lading. Witness delivered the cars in question -to the Missouri Pacific in good order at 2:10 o’clock in the afternoon of the day they were shipped. Witness brought back to the appellee from the agent of the Missouri Pacific complaint about the manner in which the oars were wired, and delivered to appellee a letter from the Missouri Pacific agent to that effect. Witness never furnished any shipping directions to the Missouri Pacific, because he had none. The reshipping was done for the appellee by the Missouri Pacific. The contract of appellant was fulfilled when witness delivered the cars on the Missouri Pacific tracks. Witness didn’t offer the ears to the Missouri Pacific with directions for reshipment, because he had no such directions. He put the cars in the yard, and notified the appellee that they were there and in good order.
On cross-examination witness stated that, a time or two in previous shipments, appellee had made out a bill of lading at Firth and .witness took it to Gould, had it signed by the Missouri Pacific, and returned it to appellee. As to these particular logs, witness delivered them on Friday to the Missouri Pacific. He didn’t say anything to the Missouri Pacific about rebilling them at all. He put them there, and the agent said that he could not accept them. Appellee had given instructions to the Missouri Pacific agent in regard to the reshipping, and if the agent issued a bill of lading for the reshipment, witness would carry it back to the appellee, but witness didn’t have a thing in the world to do with the reshipment. If the witness received a carload of logs for delivery at Gould, with no further instructions, witness would determine to whom, they were billed, and, if billed to the shipper, witness would put them on the Missouri Pacific tracks, if he were asked to do that. Before witness left the cars on the Missouri Pacific tracks, the Missouri Pacific agent told witness that he would get these oars out on the local, and witness further explained that the appellant had shipped thirty-one cars for the appellee consigned to appellee at Gould. Witness supposed-that the cars in controversy were to be reconsigned or reshipped beyond Gould, and hence he placed the same on the Missouri Pacific tracks at 2:10 in the afternoon, as before stated, and the same were burned the next morning at 2:35. There was no- rule between the Arkansas Railroad and the Missouri Pacific as to the time the cars should be put on the Missouri Pacific tracks in order for the Missouri Pacific to receive them. Witness delivered them when he got there. Witness had a daily schedule, running first to Gould in the morning and back in the afternoon, which appellee knew; that was the schedule he had been shipping logs'on before, and the same on which these logs were shipped. Witness understood a shipping order on which the original bill of lading was issued, made out by the appellee in the same manner as the other bills on which the other logs were delivered, and he delivered these in the same way that those were delivered. Witness had shipped thirty-one cars before.the one in controversy, and they had all gone to a certain place. The only instructions witness had was to deliver the car of logs to Gould, which witness did in the manner already indicated. Witness never had any instructions under the contract with the appellee to deliver the logs on the Missouri Pacific railroad track next to the house that was burned, but witness took it for granted that they were for reconsignment, like all the others, and witness expected the Missouri Pacific to issue a bill of lading and take them, and, if they had not burned, witness supposed the Missouri Pacific would have done so. The Missouri Pacific agent told witness he would get the logs out on the local the next morning.'
The bill of lading issued by the appellant, introduced in evidence, among others contained the following provisions: “In issuing this bill of lading, this company agrees to transport only over its own line, and, except as otherwise provided1 by law, acts only as agent with respect to the portion of the route beyond its line. ’ ’ Also, “the carrier shall not be liable for cars, damage or delay occurring while the property is stopped or held in transit upon request of shipper,” etc.
There was still a further provision: “No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this 'bill of lading shall-be deemed to exempt the initial carrier from any such liability so imposed.”
The jury returned a verdict in favor of the appellee in the sum of $136.48. The court rendered a judgment in favor of the appellee in that sum, from which appellant duly prosecutes this appeal.
The instructions of the court are not set fdrth in appellant’s abstract, and the only question presented for our decision is whether -the verdict is sustained by legally sufficient evidence. The substance of the testimony is set forth above, and the essential facts are undisputed. It therefore becomes a question of law as to whether the appellant is liable. In Arkadelphia Milling Company v. Smoker Mdse. Co., 100 Ark. 37, among other! things, we said: “The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination. This delivery may be actual, or it may be constructive; and, in either case, the liability of the carrier terminates with such delivery. An actual delivery of goods' is made when the nossession is turned over to the consignee or his duly authorized agent and a reasonable time has been given him' in which to remove tlie goods. When such delivery is thus made, the carrier is fully discharged from further liability.” See also Southern Grocery Co. v. Bush, 131 Ark. 153, 163.
The undisputed evidence shows that appellee delivered the logs in controversy to the appellant at Firth to be transported by the appellant to Gould, Arkansas. The cars were consigned to the appellee. They were to be delivered at Gould to the Missouri Pacific Bailroad, to be by it transported to such consignee as the appellee directed. The logs were shipped to Gould for reeonsignment and' shipment over the Missouri Pacific railroad. The appellee testified that he had made arrangements with the Missouri Pacific agent where he wanted the logs to go, and instructed him as to shipping directions ; that he had been doing this for some time. Just previous to this, thirty-one cars had been transported by appellant and delivered to the Missouri Pacific, to be reconsigned as the appellee directed. The agent of appellant received the cars in controversy and delivered same to the Missouri Pacific railroad, as he had done for the appellee before. Appellant’s agent having charge of the shipment testified that he delivered the cars in good order on the Missouri Pacific tracks, and, while he states that the Missouri Pacific agent at first refused to receive the cars, he afterwards did take them for shipment, and sent a message to appellee, through Forbes, and also by letter, that the Missouri Pacific would not accept future shipments unless they were wired with five wires instead of three.
This testimony is undisputed, and the only conclusion that any reasonable mind could draw from it is that the appellant delivered the cars on the Missouri Pacific tracks, and that the Missouri Pacific accepted and agreed to transport the same for the appellee. Such being’ the.case, under the above authorities there was no longer any liability on the part of the appellant for damage to the logs. Since there was no evidence to “■nstain the verdict, the jnd.vmeTit is erroneous, and is therefore reversed, and, since the testimony has been fully developed, the cause is dismissed. | [
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Humphreys, J.
This is a companion suit with the case of B.F. Dupree v. Virgil R. Coss Mortgage Company, ante p. 18, in so far as the issues are concerned. The instant suit was commenced by the lender instead of the borrower, as in the Dupree case, but there was a cross-bill filed by the borrowers, Marcus Jordan and Melvina Jordan, seeking to cancel all the notes and two mortgages executed by appellees to appellants on May 23, 1918. The notes and mortgages were executed contemporaneously, and consisted of a $600 note, payable in ten years, with interest at the rate of 6 per cent, per annum from date until paid, secured by a first mortgage on certain real estate in Drew County, Arkansas, the interest on the note being evidenced by eleven interest coupon notes attached, the first being for $19.36, due 12-1-1918, nine others being for $36 each, due December 1 for the next nine years, and the last for $18, due 6-1-1928; also four commission notes for $60 each, due respectively. on December 1, 1918, 1919, 1920, and 1921, secured by a second mortgage on the same real estate. All of the notes and both mortgages were made payable directly to appellant, but the understanding between appellant and the American Farm Mortgage Company was that the commission notes should be divided equally between them. The first commission note was paid by appellees, but default was made in the payment of the second and third, and, under a clause in the mortgage that all should become due upon failure to pay either, appellant brought this suit to foreclose the second mortgage for the three unpaid commission notes. The defense of usury was interposed to all the notes, and a cancellation of the notes and both mortgages was sought. This and the Dupree case were pending in different counties at the same time, and, by agree ment, the testimony taken was to be used in each case.
The statement of facts in the Dupree case is therefore adopted as the statement of facts herein, as far as same is applicable.
On December 12, 1921, a decree was rendered in favor of appellant for $180 with interest, and the mortgaged lands were condemned to sale to satisfy the indebtedness. On an adjourned day of the same term of court the decree was set aside on motion of appellees, over the objection of appellant, and appellees were permitted to interpose the defense of usury and try out the issue. Appellant contends that the court committed reversible error in setting aside the decree. Not so, for courts of record have complete power over their judgments during the term at which same are rendered.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding that the contrast was usurious, and a decree canceling the notes and mortgages. From that decree an appeal has been duly prosecuted to this court.
The first question arising for determination on the appeal is whether the contract is usurious under the law of Arkansas. Treating the American Farm and Mortgage Company as the agent of appellant, as decided in the Dupree case, we think so. The principal note bore interest at the rate of 6 per cent, per annum for ten years, and the commission or bonus notes were a part of the same transaction, and amounted to 4 per cent, per annum additional interest on the principal notes for ten years. The bonus was made payable in one, two, three and four years after date. The effect of this arrangement was to collect 4 per cent. per annum in one, two, three and four years instead of distributing it over the ten-year period. This method of collecting the interest brings the contract within the rule of partial payments provided by § 7358 of Crawford & Moses’ Digest. This was the method of calculation applied to a contract similar to this, to ascertain whether same was usurious, in the case of Green v. Conservative Loan Company, 153 Ark. 222. When calculated by this method, the interest contracted for was greatly in excess of 10 per cent, per annum. This court, however, ruled in the Dupree case that the parties therein contracted with reference to the Oklahoma law, and, as the facts in the two cases are alike, this case is ruled by the Dupree case. Under the Oklahoma law, of which the courts of this State take judicial knowledge, the penalty imposed upon usurious contracts is a forfeiture of the interest contracted for and twice the amount of any interest paid. The decree of the court was correct in so far as it canceled the commission notes and mortgages securing’ same, but was incorrect in canceling the principal note and mortgage. Instead of canceling the principal note and mortgage, a credit should have been given thereon for $120, double the amount of the bonus note which appellees paid.
On account of the error indicated the decree is reversed, in so far, as it canceled the original $600 note and mortgage, and the cause is remanded with directions to enter a credit of $120 on said note and mortgage. In other respects the decree is affirmed. | [
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McCulloch, C. J.
The plaintiff, E. N. McClure, received personal injuries while he was at work as a carpenter in the service of the defendant, Moline Timber Company, and he instituted this action to recover damages. An eight-penny nail which plaintiff was attempting to drive through, a piece of lumber flew out when struck by the hammer and pierced one of plaintiff’s eyes, and the injury was so severe that the eye had to be entirely removed. The plaintiff not only lost his eyesight, in one eye, but the sight of the other eye was greatly impaired and he suffered great pain. The jury awarded damages for an amount which is not claimed to be excessive.
Plaintiff claims that he is not an experienced carpenter, and had been working for defendant in another capacity, but was called on to do this kind of work in assisting one of the foremen in partitioning off a section of defendant’s dry-shed; that he and the foreman were engaged in boarding up the gable end of the section partitioned off, which was at an elevation of about six feet above the floor of the shed, and in doing the work he was required to stand on a piece of timber two by six in size, to which the bottom end of the plank was to be nailed; that he requested the foreman to build a scaffold to stand on instead of standing on the narrow piece of timber, but that the foreman declined to permit the scaffold to be built, and directed plaintiff to stand, on the narrow piece of timber and nail the plank thereto. Plaintiff testified in support of his claim, and explained to the" jury how the injury occurred. He stated that a scaffold could have been built out of three pieces of timber in a very short time, and that he could safely have stood on the scaffold to nail on the plank, but that, in standing on the narrow piece of timber, as required by his foreman, he could not get a fair lick at the nail being driven, and had to swing his body out as far as possible and lay his head against the rafter, and, while nailing, put one hand through the crack between rafter and the roof in order to hold the nail, and that on this account he hit the nail a slanting lick, which caused it to fly out of place and strike him in the eye. He testified also that the foreman handed up a timber that had a knot in it at the place where the nail was to be put through, and that he could not see the knot plainly where he was standing.
Negligence of the defendant is charged in failing, through its foreman, to provide a safe place to work— a scaffold — and also in furnishing a defective hammer with a worn face. Plaintiff also testified at the trial with reference to the condition of the hammer and pleaded that the worn face was partly the cause of his failure to strike the nail a direct blow so as to drive it in.
The principal contention for reversal is that the testimony is not sufficient to sustain the verdict.
There is a sharp conflict in the testimony on the question whether or not plaintiff was working under the immediate direction and supervision of the foreman or whether he was merely working in conjunction with a fellow-servant. Plaintiff testified that he was working-under the immediate supervision and direction of Joe Mason, who was a foreman over him, but defendant introduced testimony to the effect that Mason was not a foreman, and that the two men were assigned to this work as fellow-servants engaged in the same service.
Learned counsel for defendant invoke the rule, established by decisions of this court and by other authorities, that, where the conditions under which a servant is put to work are constantly changing so as to increase or diminish his safety, it is the servant’s duty to make the working place safe and that no duty in that regard rests upon the master. That rule is well established by decisions of this court. Grayson-McLeod Lbr. Co. v. Carter, 76 Ark. 69; Murch Bros. Cons. Co. v. Hays, 88 Ark. 292; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; Fordyce Lbr. Co. v. Lynn, 108 Ark. 377; Sheldon Handle Co. v. Williams, 122 Ark. 552. That doctrine is an exception to the general rule that the master owes his servant the duty to exercise ordinary care to make the working-place and appliances with which to work reasonably safe. Of course, where the duty is delegated to the servant himself to make his own working place and appliances safe or to determine the sufficiency of the appliances, there is no duty on the part of the master, and the servant assumes the risk of any danger arising from the' use of tbe working place and the appliances and material. Sheldon Handle Co. v. Williams, supra. According to the testimony adduced by the defendant, the present case fell within the exception to the general rule, and. there was no liability to the injured servant; but, on the other hand, according to the testimony adduced by the plaintiff, the general rule as to the master’s duty was applicable; for, according' to that testimony, the plaintiff was working under the immediate supervision of the foreman, whose orders he was bound to obey. According to his testimony he had no control or choice in the selection of the working place or the appliances with which to work, and, if the foreman failed to exercise ordinary care in providing a working place and tools with which to work, the defendant is liable under the doctrine of respondeat superior. There being a conflict in the testimony upon the crucial point as to whether Joe Mason was plaintiff’s foreman or his fellow-servant, there was evidence sufficient to warrant a submission of the issue of actionable negligence on account of the failure of the foreman to exercise reasonable care to provide a reasonably safe working place. The evidence was sufficient to warrant the jury in finding that, cn account of this omission, the plaintiff was put in a strained position, where he could not see how to do the work properly, and that the injury was caused by plaintiff’s inability in that position to properly strike the nail which flew out from the piece of timber and struck him in the eye.
It is also insisted that, according to the undisputed evidence, plaintiff assumed the risk of the danger, but we cannot say that, under this evidence, there was an assumption of the risk as a matter of law. That was a question for submission to the jury. Plaintiff testified that he was not an experienced carpenter, and that he did the work in the manner indicated under the immediate direction of his foreman. It was not impossible to do the work in that-manner with safety, and it cannot be said as a matter of law that the danger was so obvious that plaintiff must be deemed to have assumed the risk. On the other hand, the jury was warranted in drawing the conclusion that it was negligence to require plaintiff to stand on the narrow piece of timber instead of providing a scaffold.
Error of the court is assigned in giving plaintiff’s instruction No. 1, which submitted the question of the duty of the defendant to exercise ordinary care to furnish plaintiff, its servant, a reasonably safe place in which to work. The only contention on this assignment is that the instruction was abstract and out of place in the trial of this case, because the evidence does not show a state of facts upon which there could be predicated the duty of defendant to provide a safe place in which the servant was to work. No other objection to the instruction is suggested, and we must assume that that was the only objection made to it in the court below. We think this objection is unfounded, for, as we have already seen, there was affirmative evidence to the effect that plaintiff was working under the immediate direction of the foreman, and it was the duty of the master, through its foreman, to exercise ordinary care to furnish a reasonably safe working place. Under those circumstances there was no delegation to the plaintiff, as the servant, to himself make the working place safe.
Error of the court is also assigned in giving plaintiff’s instruction No. 4, which reads as follows:
“You are instructed that, if you find from the evidence in this case that the defendant is a corporation, that the plaintiff was, at the time of the injury complained of, in its employ and working in the performance of his duty, and you find from the evidence that the plaintiff’s injury resulted, in whole or in part, from .the negligence of the defendant company, then you are told that the fact that the plaintiff may himself have been guilty of contributory negligence will not bar or prevent his recovery on account of his contributory negligence, but it will be your duty, if you find for the plaintiff, to diminish any damages which, in your opinion, he might be entitled to recover in. proportion to the amount of negligence found, by you to be attributable to the plaintiff, if any.”
The contention is that this instruction ignores the defense of assumed risk. We are of the opinion that the instruction does not ignore that defense, which was correctly submitted in other instructions given by the court at the request of defendant’s counsel. This instruction related solely to the question of contributory negligence. It does not require the jury to return a verdict in plaintiff’s favor regardless of the assumption of the risk, and merely tells the jury, in substance, that contributory negligence is not a bar to recovery, but calls for a diminution of the damages.
These are the only assignments of error, and, as • before stated, we are of the opinion that they are not well founded.
The judgment is therefore affirmed. | [
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McCulloch, C. J.
Cross County Boad Improvement District No. 4 was created by an act of the Greneral Assembly of 1919 (Road Acts of 1919, vol. 2, p. 2362), authorizing the improvement of a certain public road in Cross County, running south from the city of Wynne. The statute was in the customary form, describing the boundaries of the district and the road to be improved, naming the commissioners, and authorizing the formation of plans, the improvement of the highway, borrowing money and issuing bonds, the assessment of benefits to adjacent property situated in the district, and the levying of taxes to pay for the improvement and to pay off the bonds as they became due. The improvement authorized by the statute was completed, and bonds were issued and sold to raise funds in advance to construct the improvement. Before this was done, however, there was another statute, enacted at the extraordinary session of the General Assembly in February, 1920, confirming the assessments made by the commissioners. No question is raised in the present litigation concerning the validity of the original statute, or the statute confirming the assessments or any proceedings thereunder. However, the General Assembly of 1921 enacted a statute prohibiting the commissioners of the aforementioned district from issuing any additional bonds or other obligations. Special Acts 1921, p. 1353. The title of this act provides for the repeal of act No. 44 of the special session of 1919, confirming the assessment of benefits in Road Improvement District No. 4 of Cross County, and also recites the repeal of the act of 1919 creating said district. Section 1 of the statute provides that the commissioners of said district “are hereby prohibited from issuing any additional bonds or obligations for or on behalf of said district from and after the passage of this act.” That section reads, further, that the commissioners “are hereby authorized and empowered to spend the balance of the funds on hand for the purpose of constructing the road heretofore laid out in said district, and, when said funds have been expended, it shall be the duty of the board of commissioners for said district to file a true and complete report of expenditures with the clerk of Cross County, Arkansas.” Section 2 of the statute provides that the commissioners “are hereby empowered and directed to continue to serve as a board of commissioners for said district for the purpose of paying all bonds, certificates of indebtedness or other outstanding indebtedness of the district, and that it shall be the duty of the board of commissioners for that district, from time to time, to levy such annual taxes for collection as shall be necessary for the maintenance and operation of the district, which have heretofore been entered into by said board.” This section also provides that the board “shall have full authority and power to take any and all necessary proceedings under the terms of act 625 of the Acts of the General Assembly of the State of Arkansas of the year 1919, approved on April 2, 1919, and as amended by. act 44 of the extraordinary session of the General Assembly of the State of Arkansas for the year 1919, approved February 4, 1920, but said board shall not have authority to issue any additional bonds or obligations from and after the passage of this act.”
The General Assembly of 1923 enacted still another statute in regard to this district (Special Acts 1923, p. 354) purporting to amend the original statute creating the district hereinbefore mentioned. It amends the first section of the original statute only by including certain other real property in the district. This is the only extent to which the amendment operates, and the additional property thus included constitutes that portion of the city of Wynne lying south of the Memphis-Bald Knob branch of the Missouri Pacific Railroad.
Appellees are the owners of some of the lots of real property added to the territory of the district by the act of 1923, supra, and they instituted this action in the chancery court of Cross County to restrain the board of commissioners and the assessors of the district and also the tax collector of the county from assessing benefits and levying and collecting taxes on any of the property added to the boundaries of the district by the act of 1923, supra. The benefits had already been assessed, and the chancery court held that there were jurisdictional defects which invalidated the assessments, and, as this feature of the case is not in controversy, it may be dis carded from any further discussion. The chancery court went further, however, and decided that the act of 1923, supra, was void, and that the commissioners had no authority to levy taxes on the property added to the district by that statute.
The contention of learned counsel for appellees in support of the decree of the chancery court is that the original statute creating the district was repealed by the act of 1921, supra, and that the Legislature could not thereafter authorize the assessment of other lands. We are of the opinion that the contention of counsel is unsound, and that the original statute creating the district was not, in fact, entirely repealed. It is true that, in the caption of the statute, there is a recital of the repeal of the original statute, but this recital is not in conformity with the language of the body of the statute. We look to the whole of the statute for the purpose of determining the real intention of the lawmakers. State v. Trulock, 109 Ark. 566. On the contrary, instead of taking away from the board of commissioners all of the. authority conferred by the original statute, § 1 expressly authorizes the board to use the balance of the funds on hand “for the purpose of constructing the road heretofore laid out in said district,” and § 2 contains a provision expressly authorizing and empowering the board to “take any and .all necessary proceedings under the terms” of said original statute. The effect of the act of 1923 is merely to add additional territory, and this constitutes a legislative determination that the added lands will be benefited from the original improvement. The Legislature had the power to add benefited territory to the district, even after the completion of the improvement. The fact that the improvement had already been constructed does not prevent the Legislature from adding benefited property to the territory which is to be taxed for the payment of the improvement. Hiter v. Harahan, Viaduct Imp. Dist., 165 Ark. 351; Wagner v. Lesser, 239 U. S. 207; Valley Farms Co. v. County of Westchester, 261 U. S. 155.
It is also contended that the statute adding new terrltory-'is void because the effect is discriminatory and arbitrary in not including the whole of the city of Wynne. It is argued that, if a part of the city is benefited, all of it is necessarily benefited, and that the statute is discriminatory in omitting any part. This argument is unsound, for there are no facts pleaded which show that there is an obvious and demonstrable discrimination. The mere fact that part of the city is omitted does not show that benefited property is omitted. Van Dyke v. Mack, 139 Ark. 524; Hill v. Echols, 140 Ark. 474; Tatum v. Wallis, 146 Ark. 287; Sanders v. Wilmans, 160 Ark. 133.
The chancery court erred in deciding that the act of 1923, supra, was void, and that the commissioners had no authority to tax the lands added to the district.
The decree is therefore reversed, and the cause remanded with directions to enter a decree dismissing the complaint of appellees for want of equity, so far. as it seeks to restrain the commissioners of the district from proceeding with the work of assessing benefits and levying taxes. | [
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McCulloch, C. J.
Appellees are merchant tailors, doing business in the city of St. Louis, and this is an action instituted by them against appellant to recover the sum of $150, the alleged price of a suit of clothes made by them for appellant, who resides in Jonesboro, Arkansas.
It is the contention of appellees that the contract between them and appellant was that they would make and furnish a suit of clothes, consisting of a' coat, vest and trousers, and would, if they could secure enough of’the material, furnish an extra pair of trousers, and- that the price would be $150. They contend that they made and delivered the suit to appellant,- but were unable to secure enough of the material to furnish the extra pair of trousers.
Appellant contends that appellees made an absolute contract with him to furnish a suit of clothes and an extra pair of trousers, and also undertook to make the suit to fit to his satisfaction, and that they have not furnished the extra trousers and that the fit is not to his satisfaction. The trial jury returned a verdict in favor of appellees for the sum of $100.
The testimony introduced by the parties supported their respective contentions, and there was- a conflict as to the particular contract between them as to whether or not the garments constituted a suitable fit. Appellees testified that the suit was returned to them for alterations, and showed considerable wear. Appellant admitted that he had worn the suit several times in order to try it, and that there were perspiration marks under' the sleeves of the coat. The suit was exhibited to the jury.
The court gave, over appellant’s objection, the following instruction:
“1. If you find from the. evidence that the defendant Berger, on the receipt of the suit of clothes, wore same longer than was reasonably necessary to determine whether they fitted him properly, such act of the defendant operated as an acceptance of the said suit, and you will find for the plaintiff in the sum of $150, unless you find that plaintiff agreed to furnish two pairs of trousers for a consideration of $150, in which event you will find for the plaintiff for the sum of $150 less the value of the extra pair of trousers.”
The objection to this instruction is based principally upon the contention that the contract, according to appellant’s own testimony, was indivisible, and that he was not bound to accept the suit without the extra pair of trousers being furnished also. Counsel invoke the principle of law that, where a contract is indivisible, the delivery of all the installments is a condition precedent to the obligation to pay, and that acceptance of an early installment does not bind the purchaser to pay the full price. 3 Williston on Contracts, § 1474. Conceding this to be a correct principle of the law, it is not applicable to the sale of an article such as a suit of clothes, which deteriorates in value' on partial use, for, under these circumstances, the acceptance and use of the article constitutes an election to treat the contract as divisible. The evidence in the case is sufficient to warrant the finding that appellant did accept the suit of clothes and wore it sufficiently to materially diminish its market value. This being true, he is liable for the price. Our conclusion therefore is that there was no error in giving this instruction.
Error is also assigned in the court’s giving the following instruction of its own motion:
“1. The word ‘fit’ as used in the agreement of purchase means the same fit that an ordinary man of careful dress would require in buying a suit of like kind and character.”
This instruction was given in connection with others requested by appellant to the effect that, if the suit did not fit appellant, and appellees were given an opportunity to make alterations so as to constitute a fit, and they did not properly make the alterations, they could not recover the price.
The court gave still another instruction, at appellant’s request, on another phase of the case, which his testimony tended to support, namely, that the contract was that the suit should be made to fit appellant “to his entire satisfaction,” and the two instructions were not in conflict. They were given to meet different phases of the case, according to the facts the jury might find.
We think there is no prejudicial error in the record, and that the verdict was supported by sufficient testimony.
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Humphreys, J.
Appellee brought suit against appellant in the circuit court of Union County to recover $1,200, averring that, on the 30th day of April, 1921, he and his wife executed and delivered to E. F. Gathright an oil and gas lease covering certain lands in said county; that the consideration of said lease was $1,200, for which Gathright gave appellee his check drawn, on appellant bank; that said check was indorsed, “To be paid when J. A. West delivered an abstract of title to said land to the bank;” that on May 24, 1921, appellee delivered said bank an abstract of title to said land for Gathright, and presented said cheek to said bank for payment; that said bank accepted said abstract, honored said check, and gave appellee a deposit receipt for same; that, about three weeks after accepting said check and receipting for same, appellant notified appellee that it would not. honor its check if drawn against said bank for said sum; that appellee has demanded payment of said sum from said bank, and that appellee refuses to pay it to him.
Appellant filed .an answer to the complaint denying the material allegations therein, and, by way of further defense, alleged that on the 30th day of April, 1921, E. F. Gathright, as trustee, drew his check on said bank, payable to appellee and his wife, in the sum of $1,200; that said check bore the following indorsement: “To be paid on the delivery of abstract of title and an attorney’s opinion;” that said check was delivered by appellee to appellant on May 24, 1921, on condition that it would be honored by appellant when appellee delivered to appellant an abstract of title covering said land, together with a reputable attorney’s opinion approving title to said land, if Gathright approved the payment of said check; that, subsequient. to delivery of said check to appellant by appellee, the Title Guaranty & Abstract Company of El Dorado, Arkansas, prepared an abstract of title covering said land and forwarded same to appellant, with a draft attached for the cost of preparing abstract; that, upon receipt of said abstract and draft, appellant notified appellee; that appellant .refused to pay the charges for said abstract; that, after allowing appellee a reasonable time in which to pay for said abstract, appellant returned it and the draft to the Title Guaranty & Abstract Company; that appellee has at no time since the delivery of the check to appellant delivered to dt an attorney’s opinion on the title to the land described in the complaint; that ¡appellee violated and breached his contract with Gathright; that said Gathright has at no time authorized appellant to pay said check to the appellee, and that appellee is without authority to pay same.
The cause was submitted to a jury upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and judgment against appellant in favor of appellee for $1,200, from which is this appeal.
Appellant’s main contention for a reversal of the judgment is the alleged insufficiency of the evidence to support the verdict. In testing the legal sufficiency of the evidence to support the verdict, the court must view the evidence in the strongest light favorable to the findings of the jury, or, in other words, the strongest probative force should be given to evidence in support of the verdict; and, when so treated, the verdict must stand if there is any substantial evidence to support it. St. L. I. M. & S. R. Co. v. Coleman, 97 Ark, 438; Same v. Evans, 99 Ark. 69; St. L. & S. F. R. Co. v. Wells, 82 Ark. 372.
The testimony in the record most favorable to the verdict is that of appellee himself, which is to the effect that he sold E. F. Gathright outright an oil and gas lease for $1,200 on April 30, 1921, for which amount he received a check from Gathright, drawn upon appellant, upon which was indorsed, “To ¡be paid when J. A. West delivers an abstract of title to said land to the bank;” that he had the abstract sent to the bank; that, on the......... day of...........19......, he presented the check to L. G. Tucker, assistant cashier of the bank, who was working at the cashier’s window, and asked if the abstract was there; that he said it was, and that the check was O. K.; that he gave him a deposit slip for $1,200, without condition or contingency; that the abstract was not held up on account of a failure to pay the balance due on it, as he had told Mr. Murphy to send him the bill for it and he would pay it off at any time; that he afterwards requested the hank to pay the $1,200, but it refused to let him have it; that the deposit slip given him had no notation upon it showing that the check was accepted for Collection only, and same was introduced as an exhibit to his testimony; that the check for $1,200 given him by Gathright had no notation upon it, at the time he received and deposited it, with reference to an ¡attorney’s opinion being furnished as to the sufficiency of the title; that, at the time he deposited it, the cashier said to him that Gathright had' told him to pay the check.
While the testimony introduced by appellant was in conflict with the testimony detailed above, yet, according to the tests for determining the legal sufficiency thereof to support the verdict, appellee’s testimony must be treated as true on appeal. It is not within the province of the court on appeal to pass upon the weight of the evidence and the credibility of the witnesses. The jury was the sole judges of those matters, and appellant was and is concluded by the verdict.
The issues of fact with reference to the abstract, the attorney’s opinion, and whether Gathright acted as a broker for appellee in the sale of the lease, or whether he purchased it outright, were left in dispute by the conflicting testimony of the several witnesses, and cannot be treated on appeal as settled one way or the other by the undisputed evidence.
Appellant next contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 1, which is as follows: “1. Yon are instructed that, if you believe from the evidence in this case that the plaintiff presented the check of E. F. Gathright to the cashier of the defendant bank for payment in the regular course of business, and the said cashier, without any qualifications or contingencies limiting the liability of said bank, accepted said check ¡and issued to the plaintiff its usual and regular deposit .slip, covering the amount of said check, in lieu of payment thereof in cash, said bank could not escape liability to the plaintiff on the ground that the cashier or other employee of the said bank had not placed the deposit to the credit of the plaintiff, on the books of the bank.”
The objection to the instruction is that it was abstract. We think there was evidence in the record which justified the instruction. L. G. Tucker testified that he accepted and receipted for the check merely as an item for collection. Appellee testified that it was received and accepted as a deposit. It is true that it was immaterial whether the officers of the bank gave West credit for the check, if it was received as a deposit, as he would not be bound by the manner or method of treating the check, without his knowledge or in his absence, yet we are unable to see how the last clause in the instruction could have misled the jury. The instruction submitted the main issue in the case, and, while the last clause therein was surplusage, it resulted in no prejudice to the appellant’s rights.
Appellant’s next contention for a reversal of the judgment is because the court gave appellee’s requested instruction No. 2, which, in effect, told the jury that the burden of showing that the issuance of the deposit slip was contingent, and not in payment of said check, was upon appellant. The deposit slip purported on its face to be a deposit of $1,200, and not a deposit o'f a check for collection, hence the burden rested upon the bank to show that the deposit slip was not given in payment of the check. Arkansas Bank & Trust Co. v. Bishop, 119 Ark. 375.
Appellant’s next and last contention for a reversal of the judgment is that the trial court refused to permit M. L. Summers to testify that the bank handled the check as an escrow agreement. The real issue was, not how the bank handled the check, but whether it received the check as a deposit or for collection. As before stated, West could not be bound by the method in which the check was treated, in his absence and without his knowledge. The testimony was therefore immaterial, and the court did not err in excluding it.
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Hart, J.,
(after stating the facts). The chancellor found that the quitclaim deed from Maria Hughes, Charlie Hughes, and Ada Bell to Jim Hughes, executed on the 9th day of January, 1919, was for'the purpose of enabling him to pay off a mortgage which his father had given on the lands to secure an indebtedness which he owed to Lester & Haltom, in the sum of $1,286.41. After Sam A. Hughes died, in August, 1918, Lester & Haltom began to press his heirs for the payment of their mortgage indebtedness. In order to discharge this indebtedness, Jim Hughes was requested by his mother, brothers and sisters to take charge of his father’s affairs. He did so, and induced P. C. Grayson to take up the mortgage of Lester & Haltom. On the 9th day of January, 1919, the quitclaim deed from his mother and brother and sister was executed to him, and it recites that it is in considera tion of the -balance due on the mortgage. All three of the grantors named in the deed testified that it was given by them to enable Jim Hughes to raise money with which to pay off the mortgage indebtedness. The husband of another sister testified that Jim Hughes told him that he had sold some mineral rights on the lands for $2,000, and had paid off the mortgage. Jim Hughes himself testified that he procured Grayson to sell the lands under the power of sale contained in the deed of trust, and became the purchaser at the sale in order to get the title in himself. This sale was after the quitclaim deed had been executed to him. Thus it will be seen that his own testimony shows that there was no intention to give him an absolute title to the lands when the quitclaim deed was executed to lfim by his mother, brother and sister.
Mrs. Bell testified that he gave her a contract to convey the lands back to her after the mortgage indebtedness had been paid. The mother and brother testified that Jim Hughes promised them that they should have back their interest in the lands after the mortgage indebtedness was satisfied.
It is true that Jim Hughes purchased the lands at the mortgage foreclosure sale, and received a deed to the lands from the trustee making the sale; but this was in violation of the terms of the trust, and conferred no greater title than he already possessed by virtue of the quitclaim deed. Under the evidence just recited, the chancellor was right in holding that Jim Hughes’ mother, brother and sister still retained their beneficial interest in the lands, and that he merely became a trustee for them under their agreement at the time the quitclaim deed was executed.
Jim Hughes became the purchaser at the mortgage foreclosure sale on May 17,1919, for $1,500. He gave P. C. Grayson a mortgage on the lands to secure this sum. Before the period of redemption had expired he had sold some oil and gas rights in the lands for $2,000 and paid back the $1,500 which he had borrowed from Grayson. Thus it will be seen that, having carried out the terms of the trust by paying the mortgage indebtedness, Jim Hughes held the legal title to the interest of Maria Hughes, Charlie Hughes and Ada Bell in trust for them. Therefore he had no right to convey their interest in the lands to P. C. Grayson, and the latter should not acquire any greater rights under the deeds given to him by Jim Hughes, unless he is an innocent purchaser for value without notice of their equities.
This brings us to a consideration of that question. It is strongly urged by counsel for Grayson that he is an innocent purchaser for value in all of said lands, both as to the oil and gas rights in all the lands, and 120 acres of the lands in question purchased by him from Jim Hughes.
Both Mrs. Maria, Hughes and Jim Hughes lived on the lands' in question at the time of the execution of the quitclaim deed, and Maria Hughes has continued to live there since that time.
To sustain the decree, counsel for appellees invoke the rule that one who purchases land in another’s possession takes with notice of the latter’s rights and equities, as held in Sproull v. Miles, 82 Ark. 455; Crawley v. Neal, 152 Ark. 323, and other decisions of this court.
It will be noted that Mrs. Hughes, one of the grantors in the quitclaim deed, and Jim Hughes, ' the grantee therein, both lived on the lands at the time of the execution of the said deed. We do not deem it necessary to decide whether, under these circumstances, her continued possession of the lands would be notice of her equities to Grayson, who purchased from her son, Jim Hughes. We deem it sufficient to say on this point that her continued possession, under the circumstances, was a fact to be considered in determining whether or not Grayson was an innocent purchaser for value of the lands.
Grayson admitted that he lived within two or three miles of the lands. He knew Sam A. Hughes in his lifetime, and he knew that Hughes had executed a mortgage on the lands to secure an indebtedness of $1,286.41 which he owed Lester & Haltom. He admits that he paid off the Lester & Haltom mortgage on February 1, 1919, and it appears from other testimony that the mortgage was transferred to him. Grayson also admitted that Jim Hughes asked him to pay off the Sam Hughes mortgage until he could see the heirs and get them to take the matter up. He testified further that he took up the Lester & Haltom mortgage, and that they (referring to the heirs of Sam Hughes, deceased) failed to raise the money with which to satisfy the mortgage.
The fact that Jim Hughes asked him to pay the mortgage off until he could see the heirs tends to show that he recognized their interest in the lands as still existing. A short time after this Jim Hughes asked Grayson to foreclose the mortgage, so that he could buy the lands in at the sale and thereby get title to them. Grayson lived only two or three miles from the lands, and it is inferable that he knew that Mrs. Hughes continued to reside on the lands after the execution of the quitclaim deed. She and Jim Hughes lived in separate houses, and this tended to show that she was living there in her own right.
To overcome Grayson’s plea of innocent purchaser, it was only necessary for appellees to show by a preponderance of the evidence that he had actual knowledge of their equities, or that he had notice of such facts and circumstances as would lead to knowledge by inquiries made by a man of ordinary intelligence. Krow & Neumann v. Bernard, 152 Ark. 99.
It is next insisted that, in any event, the interest of Charlie Hughes and Ada Bell should be charged with their part of the value of the improvements made on the place by Jim Hughes, which amounted to $1,800.
In the first place, it may be said that Jim Hughes makes no claim, in his answer, for the value of the improvements; and the testimony on this point was brought out in an incidental way. Jim Hughes was asked if he had not told Charlie Hughes and Ada Bell that they were to have back their interests in the lands, and answered, “Whenever I have made enough to pay off the debts of the estate. ’ ’ He was then asked if he did not get enough to pay the money back he had borrowed, and was further asked what expenses he was out. He answered that he built four houses and cleared forty or fifty acres. Further along in his testimony he stated, in a general way, that the cost of these improvements amounted to $1,800. He did not enter into any particular statement as to his reasons for building the houses and the cost of each one. He does hot state what value they would add to .the lands. In this connection it may be stated that he admitted that he was to let his brother and sister have their interests in the lands back when he paid off the debts. According to his own admission, he did not have the right to make these improvements under his agreement with them. His only right to the possession of the lands was to mortgage or otherwise incumber them for the purpose of paying off the mortgage indebtedness of his father. In this connection it may also be stated that he received $500 in excess of the amount borrowed to pay off the mortgage debt.
Therefore we hold that no issue was made as to his recovery of the value of his improvements, and no error can be predicated upon the failure or refusal of the chancellor to allow them.
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Mehaffy, J.
The appellant, on the 29th day of July, 1924, issued a life insurance policy to Howell D. Wilson in the sum of $1,000 if he died from natural causes, and $2,000 if he died from violent or accidental means, payable to his mother, Marie E. Wilson. The policy contained the following clause:
“In case of self-destruction within two years from date of this policy, whether the insured be sane or insane, or if the insured shall die within two years from date hereof as a result, directly or indirectly, of participating in aeronautics or submarine expeditions or operations, then the insurance under this policy shall be a sum equal to premiums herein which have been paid to and received by the -company, and no more.”
The insured died from a pistol-shot wound in the m-outh, in the city of Washington, D. C., on the 21st day of June, 1925, while a guest in the Burlington Hotel. The insurance company defended on the ground that he committed suicide. The plaintiff maintained that he came to his death either accidentally or by a shot from some person unknown.
There w-as a jury trial, and a verdict returned in favor of the appellee against the appellant for $2,000, and 6 per cent, interest from December 12, 1925, and a judgment for siaid amount, and, in addition thereto, a judgment for $200 as attorney’s fees, and $240 damages and costs.
Motion for -a new trial was filed and overruled, and appeal taken to this -court. And, as stated by appellee, the sole question now is, is the verdict of the jury so wholly unsupported by evidence that this court can say that the jury were not warranted in declining* to draw the inference that Wilson’s death was intentionally self-inflicted?! Or, in other words, whether Wilson committed suicide, or whether he was shot accidentally, or shot by some person unknown.
The facts are substantially as follows: Howell D. Wilson was, on the 25th day of May, 1925, confined in the Gallinger Memorial Hospital in Washington, D. C., and remained there under treatment until June 19, 1925, when he was discharged. On the same day that he was discharged from the hospital he went to the Burlington Hotel, in Washington, D‘. C., and procured a room, and remained there until the '21st day of June, 1925. A telegram came for him,.and the bell-boy tried to deliver it, and discovered that his door was locked, and he did not answer the. telephone nor the knocks on the door. The bell-boy notified the hotel manager, and the door to the room he occupied was opened, the outer door opened with a latchkey, and the other door was shoved open, one of the beds having been placed against this door. When they entered the room occupied by Wilson he was found on the bed, dead, with a wound in his head. He had been shot through the mouth, and the ball came out on the back part of his head. There was blood on the bed and pillows, but nothing in the room was disarranged, except the bed being against the door. The pistol was on the bed, about three inches from deceased’s right hand.
The room occupied by Wilson could be entered from the hall, or from the balcony if the windows or doors were open. Nothing unusual was noticed about Wilson’s appearance when he registered at the hotel.- On the outside of his door was a card with the words, “Do not Disturb.” There were no powder-burns on his face or lips, and no wounds.
There was considerable testimony by experts about powder-burns and wounds when the gun was held close to' the person, who was shot, but no one seemed to have liad any experience or to.know anything about the effect when shot in the mouth. That is, as to whether you could see powder-burns or wounds if one was shot in the mouth, and whether the blood would prevent seeing them. However, no one examined to see what the condition of the mouth was. They only knew that the bullet entered the mouth land came out at the back of the head.
Wilson formerly lived at Arkadelphia, and a number of persons testified about his habits and character while he lived there, and the substance of this evidence was that there was nothing unusual about his character, and that he was not depressed or of a gloomy or morose disposition, but, on the other hand, had a sunny disposition, and there was nothing to indicate that, he might commit suicide.
A number of witnesses who examined the body in Washington, D. C.,- testified that he had been drinking, that he had delirium tremens, and was confined in the hospital from the 25th day of May to the 19th day of June, 1925, land that he was very much concerned about whether or not his mother would find out that he had been confined in this institution, and stated that he was afraid that it would kill her if she did find it out.
There was some conflict in the testimony as to whether he was dressed or undressed when found, and about where the bullet came out of his head. There was no dispute, however, about the pistol having been fired in his mouth.
Wilson had demanded his release, although the doctor suggested that he remain in the institution until some of the representatives of the firm that he was with in New York should come.
As we have stated, he was shot in the mouth, and there were no wounds or powder-burns on his face or lips.
Appellee says in her brief: “The sole question now is, is the verdict of the jury so wholly unsupported by evidence that this court can say that the jury were not warranted in declining to draw the inference that Wilson’s death was intentionally self-inflicted?”
Appellee is correct in this- statement. The only question is whether Howell D. Wilson committed suicide, and, as stated by appellee, there is a presumption against suicide. If the circumstances under which one came to his death are such that it may have resulted from suicide, and the insurer alleges that fact as a defense, the burden is on it to establish that fact, for the law presumes the insured did not intentionally take his own life.
“And, while in an action on an accident policy the burden is on the plaintiff to show that death was caused by lan accident, yet, where it is doubtful from the evidence whether death was caused by accident or bjr suicide, a presumption arises that am accident and not suicide was the cause of the death. * * * The presumption against suicide will stand and be decisive of the case until overcome by testimony which shall outweigh the presumption.” 14 R. C. L. 1236-7.
Among the most important things to be considered in determining whether the death of the insured was caused by suicide are the presence or absence of a motive, physical facts surrounding death, as the place where the body is found, its position, the presence or absence of powder-marks where death was caused by a pistol, the habits and temperament of the insured, and his environment.
Appellee contends, and correctly, that there is a presumption against suicide, and that such presumption stands until overthrown by evidence in favor of the insurer, and calls attention to the case of Grand Lodge of A. O. U. W. v. Bannister, 80 Ark. 190, 96 S. W. 742, and the court in that case said, after speaking of the presumption against suicide -and stating that the rule was founded- upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being, states:
“This presumption is greatly strengthened in this case by proof as to the habits and character of deceased. He was sober, industrious, and religiously inclined. He was married, and lived happily with his wife, and had never, so far las the proof shows, said or done anything indicating a suicidal tendency, but, on the contrary, almost his last utterance expressed his plans to pursue the even tenor of his life. He went to bed, after preparing himself as usual for a night’s rest, and apparently fell asleep. * * * It is not impossible, nor even improbable, that the shooting wias accidental. He had a self-acting revolver ■ under his pillow, which he always' kept there. He was very nervous and excitable, wakeful, and easily alarmed at night. He may have been suddenly aroused by some noise, grasped the pistol, and, in a half-awakened state, pulled the trigger as he drew the pistol from beneath the pillow. This is neither impossible nor improbable, though, as already stated, it may be more probable that the shooting occurred from design, and we do not, under those circumstances, feel justified in setting aside the conclusion reached by the jury and substituting our own as to the cause of death.”
Wilson, as shown by the evidence, was not only not sober, but had been drinking to such an extent that he had delirium tremens. He was confined in the hospital for nearly a month. He was depressed, and very much concerned whether his mother should hear of his confinement in this institution, stating that, if she did learn of it, it might kill her. He had just been discharged 'from the hospital, but was still nervous and depressed, according to the testimony of one of the doctors who saw him after he had been discharged. He went to his room' at the hotel and locked one ctf the doors, or, at any rate, it was found locked, and the bed was found placed up against the other door. The wound was in his mouth. It must have been made by placing the barrel of the pistol in his mouth, because there is no showing of any blood or powder-burn on his face or lips. We think it impossible that the wound could have been by accident or have been by any person other than Wilson himself.
The appellee next calls attention to the case of Ætna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S. W. 540, Ann. Cas. 1918B 1122. In that case the insured was found dead as the result of a gunshot wound through his head, but the bullet went into his head about an inch in front and about the right eye and came out about an inch and one-half above and behind the left ear. There were no powder-marks or burns of any nature on his body. His flesh was not charred or his hair singed. The pistol had been firéd twice.
The court in the last case mentioned states the general rule with reference to presumptions against suicide, and cites the case of Grand Lodge A. O. U. W. v. Bannister, and simply holds that the verdict of the jury in that case was proper; that is, that the court did not commit reversible error in giving the instructions, one of which told them they would find for the plaintiff if the evidence showed that death resulted from a shot fired by some person other than the plaintiff. The jury could very well have found this in that case. He was shot in the head, the bullet entering about ian inch in front and above the right eye, and there were no powder-burns and nothing to indicate that the gun was held by himself close enough so as to show marks or powder-burns on his face. It was a question of fact for the jury to determine whether he committed suicide or whether he was killed by some other person.
But, in the present case, the facts are wholly different. The facts are such that we think fair-minded men, after an examination of all the testimony, could not reach any conclusion other than that the deceased, Wilson, put the pistol in his mouth and fired the shot. This is shown not only by the fact that there were no powder-burns on his face nor wounds on his face, that the pistol was fired in his mouth, but 'also by the fact that he had been suffering from delirium tremens, was wounded in Ms month, that he had been in the hospital, and was depressed, the doors of his room were locked, and we think these things show conclusively that deceased committed suicide. To be sure, there is a possibility that some one could have got into his room, but there is no probability that any person got into his room and got a pistol in his mouth and fired without making any wounds on his face or leaving any powder-burns. In fact, from the evidence in this case, we think no conclusion can be reached other than that he committed suicide.
The appellee calls attention also to the case of Columbian Woodmen v. Matlock, 144 Ark. 126, 221 S. W. 858. In that case, however, the company resisted payment of the policy on the ground that the insured had made false representations in regard to the use of intoxicating liquors when he obtained the policy sued on, and had become intemperate in the use of intoxicating liquors, when he had agreed that, in case of suicide, sane or insane, there should be due and payable only one-fifth of the value of the covenant. The court submitted to the jury in that case only the question of suicide. The insured had got a double-barrel shotgun and shot his wife in the face, but she - afterwards recovered. And the deceased walked to a nearby door, and in a few seconds another shot was heard. And the deceased was shot in such a manner as to blow his chin and face away, and that the shot entered underneath his chin and ranged upward, slightly outward. This shot, even if fired by the deceased, could have been accidental. It was the same gun with which he had shot his wife. And the court, among other things, said, after announcing the rule as to presumption as to suicide:
“We are unable to -say, as a matter of law, that the fatal shot was not fired as the result of some iaet, such as violently striking the gun against the floor, or striking it against some object; and, while it must be confessed that the theory of suicide does not appear more probable than any other theory, the question of probabilities is one addressed to the jury, and not to us.”
We think the jury could well have f ound in that case that the company had not shown 'by a preponderance of the evidence that the deceased committed suicide. He may have struck the gun, as suggested by the court, and accidentally have killed himself. He may have stumbled or fallen. At any rate, there was sufficient evidence to submit the question to the jury as to whether he committed suicide or shot himself accidentally, and, since the jury found that he did not commit suicide, their verdict was permitted to stand, although the court said that the theory of suicide appeared more probable than any other theory.
The difference between that case and the one at bar is that Wilson was not shot accidentally. Nobody, we think, could reach the conclusion that he had accidentally put the gun in his mouth and pulled the trigger, and there is no evidence upon which a verdict could be based that he either killed himself accidentally or was shot by some other person.
The next case referred to by appellee is Watkins v. Reliance Life Ins. Co., 152 Ark. 12, 238 S. W. 10. This case was reversed because the court admitted improper testimony.
Appellee argues that the jury could have found from the testimony of appellant’s witnesses that Wilson had no desire to take his own life. But, even if this is true, the jury could not have found from the testimony of all the witnesses that he was either killed by some other person or that he accidentally killed himself. Appellee also says that the jury may have declined to adopt the opinion of some of the witnesses. That may be answered by saying if they refused to adopt the opinion of any witnesses they could not have returned the verdict against the insurance company in this case, unless they declined to adopt not only the opinion of the witnesses but declined to consider the testimony that was undisputed and the physical facts which, as we have already said, show conclusively that he committed suicide.
It is next contended by the appellee that Wilson could have been murdered. There is no testimony in the case upon which such a finding could be based, and, if the jury had found that he had been murdered, the finding would not only have been without testimony to sustain it, but it would have been against all the testimony tending to show how he was killed.
This court has said: ‘‘ Hence we say that, if reasonable men, viewing the facts which are undisputed, might come to different conclusions as to whether the deceased committed suicide, then the facts, although undisputed, were properly submitted to the jury.” New York Life Ins. Co. v. Waters, 154 Ark. 569, 243 S. W. 831.
The undisputed facts in the Matlock case were submitted to the jury because, after he shot his wife, he walked to a door, and there was no possible way of knowing just how he came to shoot himself, whether it was accidental or whether he committed suicide, and it was proper to submit the facts to the jury. But, in the case of N. Y. Life Ins. Co. v. Waters, it was also said:
“ Reasoning upon the undisputed physical facts in the case, we are unable to evolve any reasonable theory by which the insured could have been accidentally shot. He was standing when the pistol fired. The course of the ball was approximately straight through the head from temple to temple. Had the pistol accidentally dropped, and fired either before or after it hit the ground, and if the ball had taken an upward course, it could not have passed on a level through a standing man’s head, and have left powder-burns on the place of entry. * * * The physical facts are not consistent with any reasonable theory of an accidental killing of which we can conceive. We are unable to reconcile them with any manner of killing except- suicide. ’ ’
And we think that in this case the-physical facts are not consistent with any reasonable theory either of accidental killing or of being killed by some third person. We are unable to reconcile them with any manner of killing except suicide.
This court, on November 21, 1927, decided the case of Ætna Life Ins. Co. v. Alsobrook, ante p. 523, in which the defense interposed by the insurance company was suicide. In that case the deceased was shot in the mouth with a shotgun. The shot ranged through the roof of the mouth toward the back of the head without any visible powder-burns on his face anywhere. The skull was torn to pieces by the shot, and one of his front teeth was missing. On examination it was found that he was shot by a gun that he had borrowed, the barrel of the gun being about 28 inches in length. It could not be told whether the roof of the mouth showed powder-burns, on account of the excessive amount of blood. But in that case it was shown that Alsobrook was a man of happy disposition, and the witnesses who saw him on that morning agreed that he showed no signs of worry or trouble. Testimony showed that powder from a gun like the one he was shot with would make powder-burns anywhere from six to eight feet from the muzzle of the gain, and there were no powder-burns, found on his face.
The court there said:
“We think the undisputed evidence, in fact, all the evidence, clearly establishes the fact that the insured committed suicide, and that it overcame the presumption of law against suicide and the presumption that he was killed accidentally rather than by suicide. ’ ’
The policy sued on here was issued on the 29th day of July, 1924, and provided for the payment of $1,000 if he died from natural causes and $2,000 if he died from violent and accidental means, payable to his mother, Miarie E. Wilson. The policy also contained the following clause:
“In case.of self-destruction, within two years from the date of this policy, whether the insured be sane or insane, or if the insured shall die within two years from the date hereof as a result, directly or indirectly, of participating in aeronautics or submarine expeditions or operations, then the insurance under this policy shall be' a sum equal to premiums herein which have heen paid to and received by the company, and no more. ’ ’
It follows from what we have s'aid that the insurance company is only liable under this policy for a sum equal to the premiums which have been paid to and received by the company.
The briefs of appellant and appellee contain a long list of 'authorities on the question involved in this case, but it is unnecessary to comment on them or cite them here further than we have.
This court has in recent cases followed the rule announced in the cases we have cited, and, under the facts in this case, there can be no liability except as set out above.
The case is therefore reversed, and remanded with directions to enter a judgment against the insurance company in a sum equal to the premiums which have been paid to and received by the company. | [
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Hart, J.,
(after stating the facts). The main reliance of the defendant for a reversal of the judgment is that the court erred in telling the jury as a matter of law that the defendant was guilty of negligence because Horace Allen was not sixteen years of age at the time he received his injury, and that the employment certificate required by the statute had not been obtained and filed by the defendant.
On the other hand, counsel for the plaintiff contend that the defendant was guilty of negligence as a matter of law under the rule laid down in Terry Dairy Co. v. Nalley, 146 Ark. 448, and Fort Smith Rim & Bow Co. v. Qualls, 146 Ark. 475.
Child labor laws are the result of an enlightened public policy as declared by the lawmaking branches of the various States. In construing statutes of this sort, which are referable to the police power, and which are enacted to promote the common welfare, not only by fostering education and preventing immorality in young children, but preventing the injury and maiming of them in hazardous occupations, regard should be had to the end to be accomplished. To carry out the beneficent purposes of the Legislature, child labor acts should be given such broad and liberal meaning as can be read therefrom as to mitigate the evils or prevent the mischiefs which they are intended to obviate. In pursuance of its plan in the matter, the Legislature provided that no child under the age of fourteen shall be employed in any remunerative occupation, except that, during school vacation, they may be employed by their parents or guardians in occupations owned by them. Crawford & Moses’ Digest, § 7086. Thus it will be seen that the Legislature peremptorily prohibited the employment of children for hire under fourteen years of age, except by their parents or guardians during the school vacation.
In Terry Dairy Co. v. Nalley, 146 Ark. 448, we held that, if a child under the prohibited age should be employed and should be injured as the result of such employment, the person employing him would be guilty of negligence per se, and liable in damages. The rule is founded upon the principle that, when the Legislature definitely establishes an age limit under which children should not be employed, its intention was to declare that a child so employed did not have the discretion or judgment necessary to engage in work for hire, and that the hiring of him would tend to prevent him from going to school, and might subject the child to immoral influences or might retard his mental and bodily growth. In such cases the better reasoning is that the doing of the act prohibited is negligence as a matter of law. Hence we have adopted the view that the unlawful employment in such cases is negligence per se.
Section 7087 of Crawford & Moses’ Digest provides that no child under sixteen years of age shall be employed or permitted to work in certain designated occupations, which were thought to be dangerous to the life or limbs of children under that age, no matter what their physical or mental development might be.
Therefore in Fort Smith Rim & Bow Co. v. Qualls, 146 Ark. 475, we again held that the employment in the proscribed occupations of children under the age of sixteen, being absolutely prohibited, if such child should be injured while working at one of the prohibited occupations, his employer should be deemed guilty of negligence as a matter of law.
In both of these cases the employment was absolutely prohibited, and could not legally be done under any circumstances. Therefore we thought that the purposes of the statute would be best carried out by declaring that the employer in such oases should be deemed guilty of negligence as a matter of law, where the child within the prohibited age was injured while in his employment, in violation of the mandatory provisions of the statute. On account of the absolute prohibition against their employment, in neither of these cases could the defendant invoke the doctrine of contributory negligence or assumption of risk, and in such eases it is in accord with the better reasoning to hold that the employer is guilty of negligence as a matter of law where the employment could not by any manner be made lawful and the injury results from doing some act while engaged in the illegal employment.
' Section 7092 of Crawford & Moses’ Digest provides that no person shall employ any child under sixteen to work in any establishment or occupation unless such person employing such child procures and keeps on file an employment certificate as provided in the statute.
The evidence shows that Horace Allen was between the ages of fourteen and sixteen years at the time he was injured, and that his employment as a delivery boy for a grocery store was not one of the occupations from which he was absolutely prohibited in working. The record also shows that his employer did not have the employment certificate required by § 7092 of the Digest. The requirement of the employment certificate served several purposes. For example: it might be that a child between fourteen and sixteen years of age was not far enough advanced in school to warrant the superintendent in giving a certificate to allow him to work. Again, his mental or physical development might be such that it would be imprudent to allow him to work. Then, too, his morals might be such that it would be better to keep him in school and not to allow him in an occupation where he could run around the streets.
In the case before us, the occupation at which the minor was engaged when he was injured was not forbidden. It cannot be said that the failure to observe the statutory requirements as to the employment certificate as a matter of law brought about the accident complained of. The accident would have been as likely to occur had the emnloyment 'Certificate been obtained as' it did without obtaining it. Therefore the disregard of the statute is not conclusive evidence of negligence or negligence per se; but it is evidence for the consideration of the jurv. In other words, the court should not have told the jury that the defendant was guiltv of negligence as a matter of law under the circumstances of the case, but should have told the jury that the failure to obtain the employment certificate as required by law was evidence of negligence to be considered by the jury, along with the other testimony in the case, to determine whether or not the defendant was guilty of negligence in the premises.
The authorities on both sides of the question are found cited in a case note to 48 L. R. A. (N. S.) 664, and to 14 A. L. R. 825. The present action is one under the common law for negligence. Workmen’s compensation acts have no bearing on the present case. They usually provide some form of insurance, and are specific and definite as to the manner of procedure. In some of them illegal employment cannot be made the basis of a suit under the act. In other States the rule is dif ferent, and, although the employment may he illegal, yet the employee may proceed under the act. In some of the acts the parties submit to arbitration before an industrial commission, and, as above stated, in all of them the statutory mode of procedure must be followed, and the general rules of law applicable to common-law negligence do not control.
Some of the cases cited by counsel for appellee are cases where the employer sued a liability insurance company after the minor had obtained judgment against him. These cases do not apply. It has been well said that it is the common expression of insurance law that the policy is the measure of the rights of everybody under it. Therefore where the minor has obtained judgment against his employer, no matter what the rule of evidence as to negligence might be in the action, this would not control in a suit by the employer against the insurance company. The terms of the policy would be the measure of liability, no matter whether the court had held that, in a suit by a minor against the employer, the latter was guilty of negligence as a matter of law when he did not obtain the employment certificate, or whether the court should instruct the jury that such failure was evidence of negligence merely.
Other assignments of error are urged upon us for a reversal of the judgment, but the views we have expressed renders it unnecessary to decide them.
For the error in instructing the jury that the defendant was guilty of negligence as a matter of law the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Hart, J.,
(after stating the facts). As stated, this is an action to recover a balance of freight charges which, through the carrier’s mistake, had not been collected at the time of the delivery of the goods. The -shipment was an interstate one, and the undercharge resulted from a mistake made by the agent of the carrier in putting a less rate in the bill of lading than that established'by the Interstate Commerce Commission and promulgated by the railroad company on its tariff or rate sheets. St. L. I. M. & S. R. Co. v. Faulkner, 111 Ark. 430; K. C. & Memphis Ry. Co. v. Oakley, 115 Ark. 20; and St. L. I. M. & S. R. Co. v. Starbird, 243 U. S. 592.
These cases and many others hold that the Carmack Amendment requires the receiving carrier to issue a through bill of lading, and makes that bill of lading the contract of shipment.
In the case before us, the Missouri Pacific Railroad Company, as a common carrier, entered into a contract with the Pfeiffer Stone Company whereby it agreed to transport a oar of stone from Pfeiffer, Arkansas, to Alexandria, Louisiana. In such cases the carrier had the right to look to the consignor or owner of the goods for the payment of the freight, and it may waive its lien upon the goods by delivering them to the consignee and still hold the consignor liable upon the contract of shipment. St. L. S. W. R. Co. v. Gramling, 97 Ark. 353.
In the case note to 24 A. L. R. 1163, the general rule is declared to be that stipulations in a bill of lading that the goods are to be delivered to the consignee, “he paying freight,” or any similar provision, are for the benefit of the carrier, so that delivery to the consignee without collection of the freight will not release the consignor from liability therefor, in the absence of a special stipulation to the contrary. Many decisions of various courts of last resort of the different States are cited in support of the rule. The rule is well established that, on interstate shipments, a carrier can compel the shipper to pay the difference between the legally established interstate rate and a lower rate quoted or collected by mistake or otherwise. Louisville & N. R. Co. v. Allen (Ky.), 153 S. W. 198; New York, N. H. & H. R. Co. v. York & Whitney Co. (Mass.), 102 N. E. 366; and Central R. Co. v. Mauser (Penn.), 49 L. R. A. (N. S.) 92, and case note.
The reason given is that the aim of the Interstate Commerce Act is to secure for each and every shipper of goods in interstate commerce absolute equality of reasonable rates, without discrimination or preference. No excuse which operates as an evasion of the rates established by the Interstate Commerce Commission and promulgated by the carrier, has any standing as a matter of law in defense of a proved violation of such rate. It is now the established rule that a carrier cannot depart to any .extent from its published schedule of rates for interstate transportation on file without incurring the penalties of the act of Congress. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467. The schedule of rates, when established by the Interstate Commerce Commission and promulgated by the carrier, becomes a rate established by law, and cannot be varied by the act of the parties.
The tariff on file necessarily entered into and formed a part of the contract of shipment by the mere operation of law. Texas & Pacific Ry. v. Mugg, 202 U. S. 242. Hence it is immaterial that the bill of lading had a less rate, than the tariff rate on cut stone. It was beyond the power of the parties to make a valid contract for a less rate than the published schedule filed with the Interstate Commerce Commission, and, notwithstanding a contract of this kind, the shipper is liable for the undercharge. If the rate did not prevail, the act of Congress would be ineffectual to secure uniformity in the treatment of all shippers and to prevent special and secret agreements Avith respect to rates for interstate transportation.
It is sought to uphold the judgment upon the authority of Louisville & Nashville Railroad Co. v. Central Iron & Coal Co., 265 U. S. 59. In that case it was held that, in the ■ absence 'of a governing tariff provision, delivery of the goods for shipment does not necessarily import an obligation of the shipper to pay the freight charges, and the carrier and shipper are free to contract as to when and by whom payment shall be made, subject to the rule against discriminations. The ruling of the court and the facts upon which it is based are stated in the third syllabus as follows:
“Where bills of lading, acknowledged receipt of goods from the shipper but proAdded for delivery to the "order of another as consignee, were not signed by the shipper, and contained no express agreement on his part to pay or guarantee payment of the freight charges, and there was evidence that the goods were sold and shipped by the shipper to the consignee upon agreement between them that the latter should pay those charges, and were transferred by the consignee with the bills of lading to a third party, who received delivery from the carrier, held, that a finding that the shipper did not assume the primary obligation to pay the freight charges was justified.”
The facts in the case before us are essentially different. The bill of lading recites that the freight is received at Batesville, Arkansas, at the Pfeiffer quarry from the Pfeiffer Stone Company. It is consigned to Hudson Construction Company, at Alexandria, La. The Pfeiffer Stone Company is named as shipper. The bill of lading purports to be a contract between the consignor and the railroad company, and recites that every service to be performed by the railroad company shall be subject to all the conditions on the back of the bill of lading. It recites that these conditions are agreed to by the shipper and accepted for himself and his assignees.
Section 8 of the conditions on the back contains the following’:
“The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and, if required, shall pay the same before delivery.”
If it be conceded that the words “owner’’’ and “consignee” are synonymous, it was not the purpose of § 8 to relieve the consignor from liability on his contract. The clause was inserted for the carrier’s benefit and is intended as notice of the carrier’s legal rights. Without that clause the consignee, if owner, is bound, by accepting the goods, to do all that § 8 requires him to do. The carrier’s right to collect the freight charges from the consignee does not release the consignor in the absence of a special contract to that effect. The carrier may collect the freight from- either. The consignor is bound on its express contract when it signs the bill of lading, and the consignee is bound on its promise implied by its ownership and acceptance of the stone-
We are therefore of the opinion that the Pfeiffer Stone Company, the shipper and consignor of the stone shipped, is liable to pay the undercharge in freight, and that there is nothing in the record upon which to base a finding by the circuit court that the consignor made a special contract with the railroad company exonerating it from the payment of the freight.
It is next contended that the cause of action is barred by the statute of limitations, and reliance is- placed upon C. R. I. & P. Ry. Co. v. Lena Lumber Co., 99 Ark. 105, to sustain this contention. In that case the suit was brought by the shipper against the carrier to recover an overcharge in freight. There the contract was at an end, and the shipper brought an action for money had and. received to recover the excess charge. The action was founded upon an implied contract, not in writing, to return the overcharge which had been paid by mistake, and we held that § 5064. of Kirby’s Digest (6950 of Crawford & Moses’ Digest), applied.
In the case before us the carrier sued the shipper for a balance due on freight, and relied upon the con- ' tract to recover. As we have already seen, the bill of lading was the contract of shipment between the parties, and the tariff or -rates on file became as much a part of the contract as if written in it. Therefore the bill of lading was a contract in writing, and the five-year statute of limitations governs. This holding is in accordance ■with the decision in C. R. I. & P. R. Co. v. Cunningham Commission Co., 127 Ark. 246. In that -case it was held that a shipper of freight may recover damages for the delay in the transportation and delivery of freight in an action founded on contract, and that the five-year statute of limitations applied.
In the case before us, the undisputed evidence shows that the suit was brought within five years, that the shipment was an interstate one, and that the undercharge sought to be recovered amounts to $98.34.
The result of our views is that the judgment must be reversed, and, because the facts are undisputed, judgment will be entered here in favor of appellant against appellee in the sum of $98.34, with six per cent, interest from November 2, 1923, -the date of the judgment in the circuit court.
It is so ordered. | [
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Mehaffy, J.
This suit was brought to collect from the Arkansas Power & Light Company a franchise tax. It is alleged that, during the year 1917, the Arkansas Public Service Company was organized and owned and operated utility properties in the territory of Stuttgart, Arkansas. On June, 1917, it filed the annual franchise tax return, and on the 8th day of August, 1917, paid its annual franchise tax in the sum of $1,200, at which time the said company was issued a certificate stating that it had páid the franchise tax for the year 1917, and it was authorized to do business in the State for a period of five years from August 8,1917, upon condition that it pay annually the franchise tax prescribed for such corporation. In May, 1918, the corporation filed its franchise tax return, and on August 15, 1918, paid its franchise tax of $1,200. On the 26th day of June, 1919, the Arkansas Public Service Company, after having sold all of its property to the appellant, surrendered its charter and ceased to transact business. This suit is for the purpose of collecting a tax that it is alleged the Arkansas Public Service Company owed, on the theory that the tax was a lien on the property purchased by the Arkansas Power & Light Company, and that the Arkansas Power & Light Company purchased all of the property of the Arkansas Public Service Company.
Appellee’s first contention is that the appeal should be dismissed because it alleges that, under § 10213 of Cravdord & Moses ’ Digest, the appeal should have been taken within 30 days, and, since it was not taken within that time, it should be dismissed.
Section 10213 of Crawford & Moses’ Digest reads as follows:
‘ ‘ Suits brought under this act shall have precedence of all other suits in the courts in which they may be pending, and shall be disposed of without unnecessary delay, and no appeal from any decree rendered in any suit brought under this act shall be taken after thirty dayis from the date of such decree.”
That section is a part of the act passed by the Legislature for collecting back taxes from corporations, and is a property tax, and has no application in suits brought to recover franchise tax. The appeal was taken within the time allowed by law.
The important question, however, in this case is whether the Arkansas Public Service Company owed a franchise tax at the time it surrendered its charter. As to whether it owed a tax at the time depends upon the construction of the law providing for taxing corporations, or what is called the State privilege taxes of corporations.
Section 9799 of Crawford & Moses’ Digest is as follows:
“Each corporation organized and doing business under the laws of this State, for profit, shall make a report in writing to the Arkansas Tax Commission, annually, on or before June 1, on such forms as the Commission may prescribe. The report shall be signed and sworn to before an officer authorized to administer oaths by the president, vice president, secretary or general manager of the corporation.”
The statute then provides the form of the report and what it shall contain.
Section 9801 of Crawford & Moses’ Digest provides that, after the report is made, the Commission shall, on or before July 1, report to the Auditor of State, who shall charge and certify to the Treasurer of State for collection, as herein provided for, from such corporation, a tax of one-tenth of one per cent, upon that part of its subscribed and issued and outstanding capital stock employed in this State, except as hereinafter provided.
It will be observed that the Commission must report to the Auditor on or before July 1, and that thereafter the Auditor shall charge and certify the fax for collection to the Treasurer.
Section 9810 of Crawford & Moses’ Digest, among other things, provides that the taxes shall be due and payable on or before August 10 of each year. And it is provided in § 9812 that the taxes and penalties shall be a first lien on the property of the corporation.
Section 9818 provides as follows:
“When any corporation shall have paid the franchise tax prescribed by this act, the State Tax Commission shall issue to it ¡a certificate authorizing it to do business in this State for the term of five years from the date thereof, upon condition that it pay annually the franchise tax prescribed by law, and such certificate shall be evidence in all the courts of this State of the right- of such corporation to do business in this State during the term o>f isuch certificate. ’ ’
Any corporation doing’ business in Arkansas at the time this act was passed, March 23,1911, was required to make' the report and to pay the tax as above provided. And when a corporation paid the tax, it received the certificate authorizing it to do business in Arkansas for a period of five'years after the date of the certificate, which was -in August.
Section 9821 provides that “all foreign and domestic corporations qualifying under the laws of this State or organizing under the laws of this State, as the case may be, prior to August 1 of each year, shall be liable for the franchise tax by this act prescribed for the year in which said corporation qualified or organized, and each such corporation so qualifying or organizingbe.tweenMay 1 and August 1 shall make and file with the Tax Commission the proper form at the same time it qualifies or organizes.”
Under the provisions of the sections above quoted the corporation paying the tax was authorized to do business during that year, and that year meant the year beginning with the date of the certificate or the date mentioned in the certificate.
The Arkansas Public Service Company was organized in 1917, and its tax became due and payable on or before August 10, 1917, and, the payment of that tax authorized such corporation to do business in Arkansais until August 10, 1918.
In May, 1918, the Arkansas Public Service Company filed its report, and on August 15, 1918, paid its franchise tax o<f $1,200. The certificate that it held entitled the company to transact business until the franchise tax became due in 1919, but in June, 1919, the Arkansas Public Service Company was dissolved and ceased to do business, and this was before the time expired for which it had paid its tax. It therefore did not owe any franchise tax a.t the time it surrendered its charter and ceased to do business.
It has been generally held that a tax like the one for which this suit is; brought is in the nature of a license fee, and payable in advance. And it is uniformly held that an act -of this kind, providing for a tax, operates in the future only, unless the Legislature passing the act manifests an intention that it shall operate in the past. In passing the law in Arkansas with reference to franchise tax it appears plain that the intention of -the Legislature was that the tax should be paid for the future. In fact, the act expressly states that, upon payment of the tax, the corporation shall be given a certificate authorizing it to do business in the State thereafter for a period of five years, on the condition that it pay the tax annually. We think it clear that the Legislature intended that the tax should he for the privilege of doing business in the State after the payment of the tax.
It is said in Cooley on Taxation, vol. '2, § 154:
“In caise of doubt, statutes will be construed as prospective only. This applies to tax statutes and ordinances precisely the same as to other statutes and ordinances. The courts, it is said, always construe statutes as prospective and not retrospective, unless constrained to the contrary course by the rigor of the phraseology. There is commonly a presumption that any new tax law was not intended to rendí back and take for its standard of apportionment a state of things that may no longer be in existence.- ‘New burdens,’ it is very justly said, ‘ought always to be prospective.’ And it is reasonable to suppose that the Legislature has intended that they should be. This rule applies also to constitutional provisions, and it 'obtains not only as a construction of the grant of power, but also as to all the incidents, though a remedial provision may well be presumed to have been intended to reach back for the purposes of justice.”
■ In Arkansas many corporations were doing business lawfully when the act was passed, and they are still doing business lawfully until the time mentioned in the act for filing their reports. And if they complied with the act -and paid the tax, they were permitted to thereafter do business In the State for one year from the date of the payment of the tax.
It was said by the New Jersey court:
“The year for which the- annual tax was thereby for the first time imposed could not begin until the tax was imposed by the approval of the act in April, and the tax wais made payable in June; that is, as soon as the necessary returns could be had and the calculations made. The Court of Errors and Appeals did not question this view in the case cited. It results that the year for which the tax is to be paid cannot be the calendar year beginning ■January 1. The act imposing this tax on corporations like the prosecutor was passed February 19, 1901. If the annual license fee or franchise tax, ais the act calls it, were imposed for a calendar year, that year could not have begun until January 1, 1902, unless the act were expressly made retroactive. * * * If we held that the license fee or franchise tax is for a calendar year, we should either have the absurdity that the first annual tax under the act became payable six months before the year for which it was levied had begun, or we should have the injustice of construing a tax to be retroactive when the Legislature had not made it so.!’ Old Dominion Copper Mining & Smelting Co. v. State Board of Taxes and Assessments, 90 N. J. Law 361, 103 Atlantic 690.
"We do not deem it necessary to call attention to numerous authorities, for the reason that the Legislature has made it perfectly plain that the authority to do business extends from the time of the certificate granted to the corporation until the date named for it to expire. We have reached the conclusion that, under the statutes providing for franchise tax, a corporation, after the payment of the tax, may lawfully do business within the State for one year thereafter, and that, since the Arkansas Public Service Company paid its taxes in August, 1918, it had the right to do business in Arkansas until August, 1919. It surrendered its charter and ceased to do business and sold all of its property before that time, and therefore did not owe any franchise tax.
Since we hold that the Arkansas Public Service Company did not owe any franchise tax at the time it ceased to do business, it becomes unnecessary to decide the other questions discussed by counsel. Of course, if the Arkansas Public Service Company did not owe any tax, then the Arkansas Power & Light Company did not owe any because of having purchased the property of the Arkansas Public Service Company. Having reached the conclusion that there was no tax due from the Arkansas Power ■& Light Company because of having purchased the property of the Arkansas Public Service Company, this case is reversed and dismissed. | [
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McCulloch, C. J.
Appellants are the keepers of the county convict farm of Lonoke County, under assignment of a contract made between their assignors and the county for the working of convicts of the county. Appellee was convicted of misdemeanor in three cases on pleas of guilty, and, on failure to pay the fines and costs, was duly committed to the custody of the contractors, to work out the amounts for which he was liable. He instituted proceedings before the circuit court of Lonoke County on habeas corpus to test the legality of his confinement, after he had remained in the custody of the contractors for a period of 118 days. On the hearing of the cause, which was heard by the trial judge on the pleadings and documentary evidence, consisting- of the original judgments of conviction against appellee before a justice of the peace, and the warrants of commitment, etc., a judgment was rendered discharging appellee from custody. The contractors have appealed.
The court decided that appellee was entitled to his discharge on several grounds, all of which we need not discuss if any ground at all can be found upon which the judgment can he sustained.
The documentary evidence shows the amount of fines and costs adjudged against appellee and the items thereof and the length of time which has elapsed since his commitment. It shows that the fines and costs in all three of the cases aggregated the sum of $83, which included three fees of $10 each in favor of the prosecuting attorney, and that 118 days have elapsed since appellee was committed to the custody of the contractors. The record of convictions before the justice of the peace also shows that appellee entered a plea of guilty in each case.
The first question presented is whether or not the prosecuting attorney is entitled to a fee. The court has no right on habeas corpus to discharge from custody on account of any irregularity in the judgments of conviction, if the court acted within its jurisdiction. Ex parte Byles, 93 Ark. 612; State v. Martineau, 149 Ark. 246. The statute provides that, if the time during which a party may be legally detained has expired,, he may be discharged on habeas corpus. Crawford & Moses’ Digest, § 5076. The statute regulating the fees of prosecuting attorneys in cases pending in justice of the peace courts (Crawford & Moses’ Digest, § 8310) provides that, where the defendant “shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of the justice of the peace to cause the prosecuting attorney, or deputy, for such county to be notified of the nature of the charge, and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and, in case of conviction, shall be allowed the same fee as is now allowed for similar cases in the circuit court.” In the case of State v. Staples, 158 Ark. 502, we construed that statute as meaning that the prosecuting attorney “is only entitled to a fee in a criminal case pending in said court, on affidavit or otherwise, when the defendant pleads not guilty, and employs an attorney to make a defense, and is convicted.”
The case of Brown v. Welch, 151 Ark. 142, has no bearing, for the reason that it involved the claim of a deputy prosecuting attorney under a different statute. C. & M. Dig., § 8309. The opinion in State v. Staples, supra, holds that the right of a prosecuting attorney to fees in cases before justices of the peace depends on C. & M. Dig., § 8310, and § 4571 does not allow fees otherwise than under the conditions stated in § 8310, supra. It is true that the Staples case, supra, differed from the present one in that the prosecuting attorney did not, in that ease, file information, but that difference in the facts does not alter the application of § 8310, for, as before stated, we held that § 8310 prescribed the only conditions under which a prosecuting attorney can claim fees in cases pending before justices of the peace.
In determining whether or not the time during which an accused may be legally detained has expired, the court may determine from the face of the proceedings the amount of the fine and costs chargeable against the convict. In so doing it is found that the fees of the prosecuting attorney should be deducted, which leaves only the amount of $53.50 chargeable against appellee. It also appears from the commitment that the accused has been in custody 118 days, which, at seventy-five cents a day, as allowed by statute (Crawford & Moses’ Digest, § 2071), is more than sufficient to extinguish the fines and costs.. The statute cited above, as originally enacted, fixed the amount allowed convicts at the rate of fifty cents per day, but the act of 1899, amending certain sections of the original statute, provides, in one of the sections, that “the convict defendant shall receive seventy-five cents per day, including Sunday, for which he is so hired out to such contractor, in excess of any liability for care or sickness.” There was originally some doubt as to whether this change in the amount of credit to he allowed a convict applied to those hired out as well as those working on the roads, but that doubt has been resolved by the decision of this court in the case of Ex parte Brady, 70 Ark. 376, and, since that time, the digesters have changed the section with reference to hiring out convicts so as to allow a credit of seventy-five cents per day. There was no proof in the record as to what length of time appellee actually worked, but it is shown from the face of the commitment' that he had been in the custody of the contractors for a period of 118 days, and it devolved on the contractors to show by proof any deductions to which they would have been entitled, if any. No proof was offered on that subject.
We do not deem it necessary to discuss the other grounds upon which the court held that .appellee should be discharged.
The judgment is therefore affirmed, for the reasons herein stared. | [
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Smith, J.
On May 8, 1922, appellee Tlirailkill sold a small sawmill to P. L. Merritt, and took three notes for tbe purchase money, due November 1, 1922, March 1, 1923, and November 15, 1923, respectively. Tbe notes were for $375 each, and, together, represent tbe total net purchase price, as no cash was paid. The notes are identical except as to date payable, and the note first maturing reads as follows:
“Title Note.
“$375. May 8, 1922.
“Nov. 1, 1922, after date, we promise to pay to the order of S. I). Thrailkill three hundred seventy-five dollars, at Waldo, Arkansas, for value received, with interest at the rate of 10 per cent, per annum from February 1, 1922, until paid.
“The machinery, boiler and engine, sawmill and edger and plaher, together with accessories, for the use of which, to the maturity hereof, this note is given, is and shall remain the property and under the control of S. D. Thrailkill or assign, and for default of payment, or, if the said S. D. Thrailkill deems the said property in unsafety by removal or otherwise, it shall, on demand, be returned to S. D. Thrailkill or assign, in good order, and with pro rata pay for its use, which shall be a reasonable rent per month. It is now understood and agreed that B. D. Thrailkill owns this property absolutely, and the title remains in him until the notes are paid in full.
“(Signed) P. L. Merritt.
“Witness: (Signed) J. D. Churchwell.”
After so purchasing the mill, Merritt, without ever having ■ operated it, leased it to H. C. Brigham for a month and a half for a second-hand Ford truck delivered to Merritt as rental. Thrailkill was advised that Merritt had sold the mill, and he went to the premises where it was located, and found Brigham in possession, and was informed by Brigham that he had purchased it. Thrailkill advised Brigham that he himself was the owner, and that, if Brigham wished to keep the mill, he would have to pay at once the notes given him bv Merritt. This conversation occurred on October 1, at which time the first of the notes to mature was not then. due. Brigham promised to adjust the matter at once, but did not do so. On the 10th of October Thrailkill again demanded payment of the notes as the condition upon which Brigham might use the’ mill, aud, after waiting until the 16th of that month for payment, which was not made, he brought this suit, making both Merritt and Brigham parties defendant.
Thrailkill alleged in his complaint that the mill had been damaged 'by improper use, and he prayed judgment for this damage and for the rental value of the mill during the period of. Brigham’s possession, and caused the mill to be attached, together with the lumber on the mill yard which Brigham had sawed on the mill. There was testimony that Brigham had sold part of this lumber and had contracted to sell the remainder, and, upon a verdict being returned in favor of the plaintiff against the defendant Brigham, the court sustained the attachment.
It will be observed that the notes for the purchase money not only retained the title, but gave Thrailkill the right to retake the property if he deemed it in unsafety, by removal or otherwise, on demand, in which event the sale was to be annulled, and Merritt was to pay a reasonable rent per month for its use; and we think the jury was warranted in finding that the circumstances of the case authorized and justified Thrailkill in exercising this right.
Merritt made no defense to the suit, and judgment was rendered against him for the want of an answer, and the case went to the jury as a suit against Brigham.
Thrailkill testified as to the rental value of the property and the damage done to it by its improper use, and there was a verdict in his favor for $50, and judgment accordingly.
The instructions given at the request of Thrailkill permitted the jury to find the rental value of the mill during the time Brigham had been in possession of it, together with any damage caused by the negligent operation of the mill, if there was a finding in his favor. The testimony is conflicting both as to the rental value and the damages. Brigham also denied that any damage liad been done to the mill.
The testimony on behalf of Thrailkill is ample to support the verdict returned, and we would affirm the judgment in his favor except for the fact that the instruction permitted the jury to find the rental value of the bill from the time that Brigham took possession of it; whereas the jury should only have been permitted to find the rental value against Brigham from the time demand was made on him for the surrender of the property. The sale by Thrailkill was a conditional one, which gave him the right, under certain. conditions, to retake the property; but, until he had exercised this right, he had no authority to charge Merritt’s lessee with the rent. Merritt had the right to dispose of the property subject to Thrailkill’s right to retake; but, until Thrailkill had exercised this option, he had no right to charge Merritt’s lessee with the rent. No recovery on account of rent should therefore have been permitted prior to October 1, the date on which demand for the surrender of possession was made.
For.the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Mkhaki-'y, J.
The appellees, plaintiffs below, who are husband and wife, filed suit in the Pulaski Circuit Court against the appellant, Bulman Furniture Company, and alleged that they were the owners of lots 13 and 14, block 14, Pfeifer’s Addition to the city of Little Rock, Pulaski County, Arkansas, and also owned a dwelling house.
They purchased certain furniture and household goods from the appellant, among which was a gas stove. Defendant installed the stove in the kitchen of said dwelling, and it is alleged that the employee's of the Bulman Company negligently and .carelessly placed the stove and the pipe used in connection therewith too near to the Avail of said kitchen; that plaintiffs objected, when the servant Avas placing the pipe, but the employee insisted that same Avas not too close, and that it Avould be entirely safe. Plaintiffs thereafter called Mr. Bulman, complained to him, and he advised that he Avould give the matter prompt attention by a competent servant and employee, and, the next day, sent one of its servant's to said residence, and this servant stated also that the pipe was not too close, but that he would move it further from the Avail, but Avouid not do so until the day following, and that, in the meantime, it would be perfectly safe for plaintiffs to use said stove. That thereafter the walls became ignited on account of the negligence and carelessness of appellant’s employees in placing the pipe too close to the Avails, and said dwelling, furniture and clothing were destroyed by fire. It is alleged that the value of the building- Avas $1,500 and the furniture and clothing Avere worth $1,700. They asked 'judgment therefore for $3,200.
In response to a motion to make the complaint more definite and certain, appellees filed an amendment to their complaint, stating that appellees Avere husband and wife and that they owned the house and personal property jointly. That an itemized statement of the furniture was attached. That they Avere unable to itemize their clothing, and attached a list showing other furniture Avhich had been purchased from the appellant, a part of the purchase price of which had not been paid.
Defendants thereafter filed an answer, denying all the material allegations of the complaint.
There AA7as a trial on October 25, 1926, and a verdict against, the appellant for $1,733. Motion for new trial w-as filed, which Avas by the court overruled, exceptions Avere saved, and an appeal taken to this court.
Mrs. Schmuck, one of the appellees, testified that she was the AAdfe of A. O. Schmuck; that she and her husband Avere living together in the house at 5314 A Street at the time of the fire; that her brother-in-law bought the property from Thomas, and theAr bought it from him: that she put about $400, which she received from her father’s estate, into the property; that she and her husband together owned the furniture and clothing, some of which furniture was purchased from the defendant; that they oAve a balance on this; that they had bought a gas stove from the appellant for $55; that the stove was set up by appellant’s representatives; that the stove Avas placed in the kitchen; it was set so near the wall that you could barely get your hand betAveen the oven part of the stove and the wall; that there was no vent-pipe on the stove; there was no fine in the kitchen; there Avas an opening on the stoAm back of the OAren, which was placed so near the aauJI you could just put your hand 'between it and tile wall. A Mr. Matthews set up the stove; Avitness asked him if he did not think the stove was too near the Avail, and he said n o, it AArould give her more room in the kitchen. He said it Avould be safe. Witness had had no experience in setting up gas stoves, and relied on liis judgment as to whether it was too close or not. Witness afterwards went to see Mr. Bulman, and reported the stove being too close to the wall, and told him, in her opinion, it was too close, and he said he would send a man out to see about it. The man came next day, but said he didn’t have time to change it that day. He told witness he would come back later and change it. The house finally caught fire from back of the oven. The representative of appellant had told her it was all right, and she had to cook.
The lire 'occurred about seven or seven-thirty in the morning; the fire was right at the back of the oven. When witness first discovered it, it -was just a little blaze, and she first went to get a bucket from the garage to put it out, and the whole roof was on fire. The kitchen roof was of tar paper. The fire department was called, and there was nothing saved. Everything* was ruined. Plaintiffs’ clothing was destroyed, except what they had on. The value of the house was between $1,500 and $1,800. The value of the furniture was $312. The value of the furniture purchased from the Bulman Furniture Company was around $200, and she had a statement from defendant showing a balance of $133. She talked to Mr. Bulman, and he said he did not figure he had anything to do with it. Witness told him he ought to compromise with her, as she lost all her furniture she had gotten from her father and that her husband had worked for. This was a couple of days after the house burned.
Witness and her husband bought the property jointly; they got no deed to it; it wasn’t paid for; they had a contract; witness thinks the contract was not made to her and her husband, but in his name; it was just a contract between her husband and his brother, W. P. Schmuek; that they had no title to the real estate. They had an agreement that, when they paid so much, the title would be conveyed to her husband. Witness had an interest in it because she put money in it that she had got from her father. Title was supposed to be in both names, but the contract was just made to the husband. Witness does not know how much had been paid on the place.
Witness asked the representative if the stove was not too close to the wall, and he said it was not. . She still thought it was. Witness had had experience using gas stoves and knew how to use them. She was in the bedroom on the morning of the fire, and her husband had lighted the fire, and they were both dressing when the house caught fire. The stove was lighted about 6:30 or 7 o ’clock. Witness and her husband used the kitchen as a dining-room and kitchen combined, so that it was necessary to warm up the kitchen before serving breakfast. It was a cold morning, and witness had lighted the kitchen stove ahead of time in order to warm up the kitchen. The first witness knew of the fire was when she smelled the smoke. The stove had been used hardly a month. It had been used quite a little while, and used in the condition in which it was installed. It looked too close to the wall to witness, and she thought it was dangerous. The stove was right against the wall. You could put your hand between it and the beaver-board wall; witness left the stove burning in that condition. The man told her it -was safe, and she did not know anything about it. Her husband was in the house when it burned. There was no vent-pipe on the stove, and, when witness got out of the house, she noticed the whole top of the roof was on fire. She does not know how long it took her to get from the kitchen to the garage, but doesn’t suppose it was very long. The garage was right on the back of the lot; the whole top of the roof was on fire before witness went out there. The items of furniture listed in Exhibit A total $312; witness bought that furniture herself; witness ’ husband assisted in paying for it; witness and her husband were married nine years; everything in the house was ruined by the fire. There was in the house the clothing of witness and her husband, and the bed-clothing, quilts and mattresses. "Witness had another gas stove, listed at $25, which was not connected. Witness and her husband just lived in the two rooms, and used the kitchen range for heating as well as cooking; witness had no servant, but did her own cooking; witness used the stove from the time it was bought until the house burned. Witness had been married nine years, and has used gas stoves most of the time.
Mrs. Mabel Beadle was present when the gas stove was set up, and corroborates the statements of Mrs. Schmuek as to what the man who put it up said, and as to how close the stove was to the wall. Mrs.-.Mabel Enabman was at the home of plaintiffs when the man came to see about the stove, and he said he did not have time to disconnect it and connect it again, but that he would come back. Witness did not know why the stove was to be disconnected.
A. C. Schmuek, one of the appellees, testified that he had helped his brother build a part of the house; his brother bought the house and built three rooms to it; witness assisted him, and afterwards contracted to buy the house; wife of the witness paid a part of the purchase price. She paid $350 and then some monthly installments; she obtained this money from the estate of her father. The value of the house was $1,800. There were four rooms, a sleeping porch and bathroom; it was a frame house of good material; the inside of the kitchen walls were beaver-board; bea-ver-board is a kind of cardboard composition. Witness saw the stove after it was connected; it was nearly up against the wall; the opening for the vent-pipe came out of the back of the stove, with a short elbow; that elbow had an offset for .the pipe, and set back about half an inch, and that elbow was placed right against the wall; witness supposes the collar was about three-quarters of an inch from the wall. If vent-pipe had been placed on stove it would sit straight up from this elbow; vent-pipe would have extended up and not out towards the wall; this opening or elbow was against the wall and behind the oven; the fire was on the 1st day of December or the 30th day of November. Witness lighted the stove about seven o ’clock in the morning, and went straight back to the bedroom to put on his clothes; he noticed the smoke before he got his clothes on. When he got out there, there was a little blaze behind the stove; witness was trying to put the fire out, and told his wife to get a bucket, and when she got outside she hollered about it being on fire outside on the roof; witness told her there was no use then to get a bucket; witness ran out, and fire was all over the roof; witness lost two suits of clothes; thinks' clothes he lost were worth $1.60; doesn’t know the value of his wife’s clothes.
Witness is a sheet metal worker, and has had experience in connecting up vent-pipes on gas stoves; has been using gas stoves ever since there has been gas in Little Rock.
In the wall there was tar paper. Composition wall was of inflammable material. • The stove was so set that elbow was right against the beaver-board. Witness thought it was dangerous, but was told by one of the representatives that it was perfectly safe; that he connected them that way, and they used the stove. He went ahead and used it, although he thought it was dangerous. The wall began to look a little sooty back there where the pipe was. It looked charred back there, and his wife stopped using the stove for'two or three days; the man said he would come back, and didn’t, and then it got cold and they used the stove. Witness thought it was too close to the wall, and he noticed the scorching of the wall. What the .man said did not necessarily satisfy witness. He said he was coming back and change it.
Mrs. Sarah E. Schmuck, being recalled, testified that her clothing alone was worth $150 and the bedclothing $50.
C. L. Harlan, a building contractor, testified that the value of the house was $1,768.50.
There was some conflict between the testimony as given by the plaintiffs and the testimony of the witnesses for defendants, but we deem it unnecessary to set out the testimony at length. The testimony of the plaintiffs shows that the stove was verv close to the wall, and that, after using it, they noticed that the wail ■was scorched, and that appellant’s representatives said that it was safe, and also said that they would fix it.
Tlie appellant coni end's that the court erred in giving and refusing instructions.
Instruction No. 2, requested by the plaintiff, and which the court gave, reads as follows:
“You are instructed that, although you find from the evidence in this cause that plaintiffs at first believed the stove was so near to the wall as to be dangerous if used, yet, if you find that plaintiffs relied upon the statements, if any, of the defendant, or its servants, that it was safe to use the stove in its position,' then plaintiffs would not be guilty of contributory negligence by using it. ’ ’
We do .not think this instruction correctly states the law. If plaintiffs believed the stove was so near the wall as to be dangerous, the}’- would certainly have no right to rely on the statement of defendant, or its servants, unless they believed the statements to be true, This instruction tells them that, if they believed it was dangerous and yet relied on the statements of the defendant’s servants, they would not be guilty of contributory negligence. If the plaintiffs believed it to be unsafe-, but relied -on the statements of defendant’¡s servants, it would be a question for the jury to -determine whether that was contributory negligence. The court could not tell them as a matter of law that, they would not be guilty of contributory negligence.
Contributory negligence is the doing of something that a person of ordinary prudence would not do or the failure to do something that a person of ordinary prudence would do under the circumstances. Whether a person of ordinary prudence would' continue to use a stove, when he believed it unsafe, because the representative of the appellant told him it was safe, we think, would be a question of fact for the jury. If plaintiffs continued to use the stove, believing it to be unsáfe, because they had been assured by the person' that instálled the stove that it was safe, whether this would be contributory negligence on his part would be a question for the jury, and the court could not as a matter of law state to the jury that, under those circumstances, they would not be guilty of contributory negligence.
Instruction No. 5, requested by the appellant, reads as follows:
"Although you may find from the evidence in this case that the defendant was negligent in putting the stove too close to the wall, yet, if you further find from the evidence that plaintiffs or either of them knew, or, in the exercise of ordinary care, should have known and appreciated the danger of using the stove while it was so placed, and used or continued to use it, then they cannot recover in this case, and your verdict will be for the defendant.”
The court refused to give the above instruction as requested, but added to it the following: "Unless you find that they were assured of its safety by defendant or its agent, and plaintiffs relied on such assurance.”
The instruction was correct as requested, and it was error to modify it as above. If the plaintiffs knew, or, by the exercise of care, should have known -and appreciated the danger, then they could not recover. The fact that they were assured of its safety by the defendant and relied on such assurance would not entitle them to recover if they knew of and appreciated the danger. Certainly the most that the plaintiff could have been entitled to, if the instruction had not been given as requested, would have been for the court to tell the jury that, if plaintiffs knew and appreciated the danger,- and were assured by the defendant of its safety, and relied on this, that as to whether or not this conduct on their part would be contributory negligence was a question of fact for the jury to determine. The court should not have told them that this reliance on the statement of the defendant was not contributory negligence. Whether it was-or was not contributory negligence, under •the circumstances, was a question for the jury. The instructions to which we have called attention, we think, are in conflict with the instruction given at the request, of the defendant, instruction number 9. It reads as follows:
“If you find from the evidence that the danger; if any, in the use of the stove as installed, was known or should have been known • to the plaintiffs, you are instructed that they had no right to rely on the advice of the defendant that it was safe, if you find that they were so advised, and to continue to use the stove to .their damage.” See Western Union Tel. Co. v. Baltz, ante p. 167.
And in instruction number 5, as modified by the court, the court tells the jury that they cannot recover under the state of facts set out, “unless you find that they were assured of its safety by defendants or its agents, and plaintiffs relied on such assurance.” Whereas, in instruction number 9, just quoted, the court tells them they had no right to rely on the advice of the defendant.
The undisputed proof in the case shows that the plaintiffs believed that it was dangerous to use the stove as it was installed. They believed it was too close to the wall. Not only this, but, after they had used it a while, they noticed that the wall was charred or scorched. Although the appellant might have assured them that it was safe after the wall became scorched, they did not rely on this assurance entirely, because they themselves say that they quit using it for a while because of this condition. That is, because they concluded that it was unsafe, although the appellants’ agents had told them that it was safe. When the appellees concluded that it was unsafe to use it, notwithstanding the statements of the representatives of appellant, then the most that the plaintiff could be -entitled to in the way of instructions would be for the court to instruct the jury that it was a question of fact for them to decide from the evidence whether the plaintiffs were guilty of contributory negligence, and not tell them as matter of law that, if they relied on, the statements of appellant’s representatives, they would not be guilty of contributory negligence.
Appellees themselves contend that instruction No. 6, given at the request of the defendant, fairly submitted to the jury the question of fact, that is, the question of negligence and contributory negligence. That i's true. This was a correct instruction. And the appellees quoted as follows: ■ “The rule is that, when the facts admitted to be true are clearly proven and not denied, are such that reasonable men might draw different conclusions from them, the question of negligence is one for the jury.” And, as supporting* this rule, appellees cite Dawler v. Citizens’ Gas, etc., Co., 71 W. Va. 417, 76 S. E. 845, Ann. Cas. 1914C 343, and other cases, and also say the same rule is recognized and has been applied by this court, citing a number of recent Arkansas oases.
The appellee is entirely correct. Wherever a question is such that fair-minded men might draw different conclusions, then it becomes the duty of the court to submit the question to the jury.
We therefore hold that it Avas improper to tell the jury as a matter of law that, if the appellees first believed the stove Avas so near the Avail as to be dangerous if used, but that, if the plaintiffs relied on the statements of the defendant’s servants, they were not guilty of contributory negligence. This was a question about which fair-minded men might differ, and it was therefore the court’s duty to submit this question to the jury — the question of contributory negligence. If plaintiffs thought it was dangerous, and defendant’s servants stated that it-was safe, this raised a question of fact for the jury. And it Avas the duty of the court to let them determine from the eAddence whether the plaintiffs Avere guilty of contributory negligence.
If the jury 'should find that the representatives of the defendant were experienced in the -installing and use of sto\7es of this character, and the plaintiffs did not appreciate the danger, and should find that a person of ordinary prudence would have acted as plaintiffs did under the circumstances, then they Avould find, of course, that the plaintiffs Avere not guilty of contributory negligence.
For the errors indicated the cause is reArersed, and remanded for ucav trial. | [
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McCulloch, C. J.
Appellee is a corporation operating an industrial plant at Seattle, Washington, engaged in canning fruit, and this is an action instituted in the circuit court of Sebastian County (Fort Smith District) to recover the price of a quantity of fruit juice sold to appellants under written contract. Appellants are engaged in making, and selling vingar at Paris Texas, and Rogers, Arkansas, and the contract between the parties for the sale of the fruit juice is, omitting the caption, as follows:
“The following goods are hereinafter provided:
“Material: Apple juice as pressed from the cores, peelings and waste from the apples used by the National Fruit Canning Company.
“Quantity: Estimated 50,000 gallons, with the understanding that it shall be more or less, depending upon the quantity, if any, that may be pressed by the seller in addition to the contract which the seller has already made with Bergonst Davies Co.
“Purpose: Not for beverage purposes, for vingar making.
“Price: Eight cents (8c) per gallon net f. o. b. Seattle, loaded in cars 60,000 lbs. each or more.
“Period: ,As soon as buyer can provide barrels for filling not later than November 2-5', 1921, and shipments to start not later than December 1. Expense of delivering barrels for filling shall be borne by the buyer, who is also to pay for the dunnage.
“Terms: Net cash. Sight draft against bill of lading. ’ ’
Appellee shipped to the Ozark Cider & Vinegar Company, at Rogers, Arkansas, on the order of appellants, under this contract, four carloads of apple juice, containing about 27,000 gallons, and this suit is to recover the price specified in the contract. The shipment was received at Rogers, but it was found on examination, according to the claim of appellants, that the juice' contained salt solution in quantities sufficient to interfere with the manufacture of vinegar, and appellants refused to pay for ¡same, and stored it in tanks at Rogers, to be held for appellee.
Appellants’ defense in the action is that the fruit juice tendered and delivered was not in accordance with the specifications of the contract, and that there was a breach of the contract in failing to furnish juice suitable for the manufacture of vinegar. Appellants tendered a counterclaim for damages on account of the price of barrels furnished to appellee and converted, also for the amount of freight paid on the four carloads shipped, and also for the loss of profits on the contract alleged to have been broken by appellee.
The amount sued for was $3,003.34 but, on the trial of the issue, the jury returned a verdict for $1,740.84, being the amount claimed in the complaint after deducting the value of 505 barrels furnished by appellants to appellee in addition to those used in the shipment of the four carloads.
The evidence discloses in detail the method used by appellee and other fruit-canners in preparing apples for canning and for extracting the juice to be used for other manufacturing purposes. According to the evidence adduced by appellee, the apples were first peeled and cored and then dropped into barrels of water containing a small percentage of salt for the purpose of preventing the. apples from turning brown; the apples were allowed to remain in the water about fifteen minutes, and were then taken out and cut into halves or quarters, and then “trimmed” by removing’bruised spots and particles of skin left on the apples in process of peeling. The particles trimmed in the manner and for the purposes indicated go into what is termed the waste, and, together with the peelings and cores, are used in obtaining juice for other manufacturing purposes. The juice is usually sold for use in making vinegar, and it will be noticed that the contract involved in this controversy expressly provided that the juice sold under the contract was for vinegar-maldng and not for beverage purposes.
There is a sharp conflict in the testimony as to the extent of the salt permeation in the juice sold and delivered to appellants. The testimony of witnesses introduced by appellee tends to show that there was a very low percentage of salt in the solution, which did not interfere with the making of vinegar, whilst, on the other hand, the testimony adduced by appellants tended to show that the extent of the salt solution was 48 per cent, of the whole. One of the witnesses for appellant put the percentage at .376, and testified that this percentage prohibited the use of the juice for making vinegar. Witnesses testified that the juice shipped to appellants was not normal, either in taste or color, and that the taste of salt was so strong that it could not be used in making vinegar.
The testimony shows that the contract was entered into after Mr. Maury Robinson, one of the appellants, had visited appellee’s plant at Seattle. There is a conflict as to the extent of Robinson’s inspection of appellee’s plant and method of operation. A witness introduced by appellee testified that Robinson inspected the whole plant, and knew the precise process under which the fruit juice was extracted, as well as the substances from which it was extracted. Robinson ttstified that, on his visit to the plant, he did not inspect the particular method of extracting the juice and did not know that any' portion of the substances from which the juice was extracted had been immersed in salt water.
The court gave many instructions, at the instance of both parties, and gave the following, among others, at the request of appellee, over the objection of appellants :
“5. The contract provided for the sale of apple juice pressed from cores, peelings and waste from the apples used by the National Fruit Canning Company. If you believe from the evidence in this case that the apple juice tendered by the plaintiff to the defendant, vinegar company was juice as pressed from the cores, peelings and waste from the apples used by the plaintiff company, then you should find for the plaintiff, although you may believe from the evidence that said juice contained salt or other substances.
“6. If you believe from the evidence in this case that plaintiff adopted the usual and ordinary method generally prevailing in that part of the country in extracting juice from the cores, peelings and waste of its apples, and that it was usual and ordinary in that part of the country to drop the apples in a brine solution after they had been peeled and cored, and then to trim the waste parts of such apples and extract the juice from such cores, peelings and waste, and that such usual and ordinary method was adopted by the plaintiff with reference to this juice, and that the juice tendered was extracted in such usual and ordinary method, then your verdict should he for the plaintiff fruit company, although you may further believe from the evidence that such juice contained an excessive amount of salt.”
We are of the opinion that instruction No. 5, copied above, was an incorrect statement of the law as applied to the issues in the case, and was, in fact, of a peremptory nature. It was prejudicial to appellants, and calls for a reversal of the judgment.
It is the contention of learned counsel for appellee that the contract between the parties was, in effect, one for the purchase of a certain commodity, the quality and price of which was agreed upon, and which the purchaser had an opportunity to inspect, and did inspect. We do not so interpret the contract, and our conclusion is that it was a contract for the sale of a commodity for a particular purpose. At any rate, instruction No. 5, quoted above, ignores the issue in the case as to whether or not the juice actually furnished by appellee was fit for use in making vinegar. The instruction ignored all questions as the character of the juice, and told the jury that, if it was apple juice that was pressed from the cores, peelings and waste from the apples used by appellee, then the latter was entitltd to recover, ‘‘ although you may believe from the evidence that said juice contained salt or other substancs.” It is undisputed that the juice shipped by appellee was pressed from the cores, peelings and waste” used in appellee’s cannery, but there was a conflict in the testimony as to the extent to which the liquid was permeated by solution of salt and the extent to which the salt interfered with the making of vinegar. Testimony adduced by appellants tended to show that the juice was 48 per centum salt solution, and that it could not be used for making commercial vinegar, and yet this instruction told the jury that, regardless of the fact that the juice contained salt or other substances, appellee was entitled to recover if the juice in question was extracted from the “cores, peelings and waste” used by appellee in its cannery. The instruction was obviously erroneous and was, of course, prejudicial.
Instruction No. 6 was also erroneous in ignoring the other issues in the case and in telling the jury that, if it was customary to drop the apples into a brine solution after being peeled and cored and the .juice involved in this case was extracted in that manner, appellee would be entitled to recover, even though the juice contained 'an excessive amount of salt.
It is true that the court gave numerous instructions at the request of appellants, but these two instructions were in direct conflict with those given at the request of appellants. For instance, the court gave instruction No. 3, at the request of appellants, as follows:
“If the jury find from the evidence that the plaintiff shipped and tendered on said contract apple juice which contained salt or brine in such a per cent, as would interfere with the making of vinegar, then the plaintiff did not tender the products agreed to be sold, and if the juice tendered contained too much salt solution and was not the juice described in the contract, then the plaintiff-broke the contract, and would not be entitled to recover. ’ ’
The court also gave instruction No. 5, as follows:
“The contract expressly provides that the juice is to come from cores, peelings and waste ‘from apples used by the National Fruit Canning Company.’ That provision does not authorize the National Fruit Canning Company to place salt water or brine in said juice, if they did so.”
It will readily be seen that the other instructions were directly in conflict with these.
Objection was also made to the following instruction given at the request of appellee:
“10. If you believe from the evidence that the defendant Maury Bobinson, at or before the time the juice was purchased, inspected, or had -an opportunity to inspect, the apple juice that was being made by the plaintiff and was shipped to the defendants, then you are instructed that there was no warranty by the plaintiff that the apple juice was suitable or fit for vinegar, and your verdict should be for the plaintiff.
“11. If you find from the evidence that Mr. Robinson, representing the defendants, visited the plant of the plaintiff at or before the time of his maldng the contract in question, and observed, or had an opportunity to observe, the process employed in making the apple juice in question, the defendants cannot be heard to say that they were deceived or misled as to the character of apple juice produced by the plaintiff, and if you further find from the evidence that the apple juice shipped the defendants by the plaintiff was apple juice pressed from the peels, cores and waste of apples canned by the plaintiff in the usual and ordinary course of its business at Seattle, Washington, then your verdict should be for the plaintiff.”
The contention of appellee, as before stated, is that this was a contract for the sale of a particular commodity, which appellants had an opportunity to inspect and did inspect, and that there was no implied warranty as to quality. We do not agree with counsel as to the effect of the contract, but, as before stated, we think that it was one to furnish a commodity for a particular use, and that there was an implied warranty that it was suitable for the particular use for which it was purchased, unless the purchaser actually inspected the method by which the commodity was to be produced, or was advised as to such method and what the contents of the juice would be. The rule has often been announced by this court that, where a manufacturer undertakes to supply goods manufactured 'by himself, to be used for a particular purpose, and the vendee has not had an opportunity to inspect the goods, there is an implied warranty that the article to be furnished is reasonably fit for the purposes for which it is intended. Western Cabinet & Fix. Mfg. Co. v. Davis, 121 Ark. 370, and cases cited. The reference in tins rule to the opportunity of the purchaser to inspect refers to the inspection of the particular article to he furnished, and not to opportunity to inspect the method by which the manufacturer produces the article. The purchaser of an article to be manufactured is not denied the benefit of an implied warranty merely because he may have had an opportunity to inspect the process of manufacture, but, if the purchaser does in fact' inspect and knows at the time he makes the contract what the article is to be, there is no implied warranty. The purchaser has the right to assume, when he has had no opportunity to inspect the article itself, that it will be manufactured so as to be fit for the use for which it is intended.
There is, as before stated, a conflict in the testimony as to the extent of the inspection made by Maury Robinson, one of the appellants. According to the testimony introduced by appellee, Robinson in fact inspected the method of producing the juice, and knew at the time he entered into the contract that the juice was to be pressed out of apples which had been subjected to a solution of salt. On the other hand, Robinson testified that he did not inspect the process and did not know that the juice would be contaminated by a solution of salt.
There are many other assignments of error which we do not deem it necessary to discuss, for it is believed that what has been said in this opinion will be sufficient guide in a retrial of the cause.
For the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, J.,
(after stating the facts). If it be conceded that the representations made by Braden as to the park and the hard road should .be considered as sufficient to entitle Pylant to have the contract for the purchase of the lot rescinded, and that the preponderance of the evi-c dence establishes the falsity- of the representations, still Pylant is not entitled t-o rescind the contract, because he did not promptly avail himself of this right as soon as it was discovered. He could not wait to experiment and see whether the transaction mig*ht not, after all, turn out well. Pylant purchased the property at the auction sale on the 27-th day -of January, 1920. He admitted that he found out that the park was abandoned, and that the street was not to be paved, during the latter part of the summer of 1920. He continued to hold the property until the present suit was commenced on the 14th day of December, 1922. Indeed, he did not file his answer setting up this defense until January 15, 1923. During all of this time he was silent and continued to treat the property as his own. Under the circumstances he will be held to have waived the objection, and will be conclusively bound by the contract as if the alleged fraud had not occurred. He cannot play fast and loose with reg’ard to the matter. Fitzhugh v. Davis, 46 Ark. 337, and Fleming v. Harris, 142 Ark. 553.
It is true that Pylant offered to rescind the contract and to give Braden a mule if he would permit him to do so. Braden refused this offer, however, and at no time did Pylant rescind the contract on the ground that it had been procured by the false representations of Braden with regard to the park and hard road.
It follows that the decree must be affirmed. | [
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