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Riddick, J.
The defendant was indicted, tried and convicted of having carnal knowledge of Ruthie Dirks, a female under the age of consent.
The motion in arrest was, we think, properly overruled. It is true that the indictment does not allege that the defendant and prosecuting witness were not man and wife, but alleges that she was under the age of sixteen, and that defendant did unlawfully and feloniously have carnal knowledge of her. This follows the language of the statute, and sufficiently negatives the idea that they .were man and wife. If they had been man and wife, such intercourse would not have been unlawful.
The motion for continuance did not show that the testimony of the absent witness who lived at Arkadelphia was material, for the fact that this witness visited the house of defendant and saw nothing to indicate that there was criminal intimacy between defendant and his stepdaughter did not negative the fact that there had been such intimacy. Defendant was not accused of having committed the crime in the presence of this witness, and we think that the evidence was immaterial.
The defendant asked for a continuance also on the ground of the absence of a witness who lived in Independence County', by whom he stated that he expected to prove that the prosecuting witness was older than she claimed to be. But, as the evidence both on the part of the prosecution and of defendant showed that Ruthie Dirks, the girl assaulted,-was born in the Indian Territory, and came to Sevier County with her parents when she was only a few years old, and had resided there continuously, it was a little strange that defendant was compelled to send such a distance for, a witness to prove her age. If there was anything in the relationship of this witness to Ruthie Dirks, or in his opportunity for ascertaining the facts concerning her age, that would give his testimony special importance and more weight than that of other persons who knew her, that fact should have been stated in the motion for continuance. In the absence of such a showing, we cannot say that the court erred Jn overruling the motion, for there seems to have been no occasion to send such a distance for a witness when others could be had closer at hand. Motions for continuance are largely in the discretion of the trial judge, and we will not undertake to control such discretion unless it be clearly shown to have been abused.
The motion for a new trial on the ground of newly discovered evidence is not supported by affidavits of the persons by whom it is alleged such facts could be established.
On the whole case, finding no error, the judgment is affirmed. | [
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McCulloch, J.,
(after stating the facts.) This controversy grew out of a dispute between the parties as to the character of the contract under which the chickens were shipped, Dante contending that he shipped them under a contract of sale, and appellants contending that the chickens were to be shipped for sale on commission. Appellee introduced testimony tending to show that appellant’s traveling solicitor and authorized agent entered into a contract with Dante at Danville whereby he agreed for appellant to purchase from Dante chickens to be shipped to Eittle Rock to be paid for by appellant at the market prices then prevailing, not less than $2 per dozen, and that at the time the two consignments in question were received in Tittle Rock the market price of the chickens of the kind shipped exceeded $2 per dozen. On the other hand, appellant denied the contract of sale, or that the agent was authorized to make such a contract, and introduced testimony tending to show that no such contract was made, but that the agent only agreed for appellant to receive the chickens for sale on commission, and gave Dante a written statement or list of prices then thought to be prevailing in Tittle Rock showing chickens to be worth from $2 to $3.50 per dozen. The testimony introduced by appellant also tended to show that its agent, Knapp, was not authorized to purchase chickens nor to guaranty prices on consignments to appellant.
The court gave the following instruction at the request of appellee:
“If you find from the evidence that Geo. P. Knapp, agent for the defendant, made a contract with Dante to pay him from $2 to $3.50 per dozen for chickens, and that Knapp had authority to make such a contract, you will find for the plaintiff at a price between $2 and. $3.50 per dozen, as you find the evidence establishes what the chickens were worth.”
And the following at the request of appellant:
“If the chickens were consigned to the defendant to be sold upon commission, and if defendant exercised ordinary care, that is, the care of an ordinary prudent business man, in the sale of the chickens, then it cannot be held liable for any thing more than the price for which chickens were sold to his customers.”
These two instructions put the issue fully and fairly before the jury, and the finding of the jury was to the effect that the agent made a contract of sale with Dante, and that the same was not without the apparent scope of his authority. There was evidence sufficient to sustain the finding on both those questions. Two witnesses testified to a positive contract for sale of the chickens, and that Dante expressly declined to ship the chickens for sale on commission. The testimony of another witness tended strongly to establish the same fact.
Appellant was engaged in the general commission business and wholesale dealer in butter and eggs, and Knapp was its traveling agent and solicitor, with express authority to sell the goods in which appellant dealt, to buy hides and wool, and some times, with appellant’s approval, he bought potatoes in carloads. The proof was such that it became a question of fact to be submitted to the jury to decide whether or not the purchase of chickens was within the apparent scope of his employment. Jacobson v. Poindexter, 42 Ark. 97; Liddell v. Sahline, 55 Ark. 627; Jacoway v. Insurance Co., 49 Ark. 320; Keith v. Herschberg Optical Co., 48 Ark. 138.
It is argued that the contract is within the statute of frauds, and void because not in writing, but appellant accepted and received the property sold, which took the contract out of the operation of the statute.
Judgment affirmed. | [
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McCulloch, J.
This is an action brought by appellee, L. D. Hamilton, against appellant in the circuit court of Pulaski County to recover the amount of two policies of insurance issued to him by appellant, one for $200 upon his stock of merchandise and $600 on frame store building, and the other for $300 on stock of merchandise. The policies were issued on December 1, 1902, and March 21, 1903, respectively, and the property was destroyed by fire on May 27, 1903. The plaintiff alleged in his complaint that he had fully complied with all the requirements of the policy.
The defendant, among other defenses, pleaded that the loss was caused by the wrongful act of the plaintiff in setting fire to his property, or causing it to be done, and mtich testimony, pro and con, was introduced upon this issue. There was sufficient testimony to have warranted a finding either way on that question, and it must be treated as finally settled by the verdict of the jury in favor of the plaintiff.
Learned counsel for appellant contend that the policy on the building was void because, as they now- allege, it was assigned to W. H. Taylor before the fire, without the knowledge or consent of the company. The facts appear to be that appellee was indebted to Taylor for the purchase price of the lot on which the building was situated, and soon after the issuance of the policy one Davis, a soliciting agent for appellant, attached to the policy a clause providing that “any loss that may be ascertained and proved to be due the assured under this policy shall be payable to W. H. Taylor as his interest may appear, to $200.” This was signéd “Thos. H. Davis, Agent.”
The testimony was uncertain as to whether the company actually received notice of this clause having been attached to the policy. Davis testified that he sent notice thereof by a messenger to the home office of the company, and Taylor testified that he called at the office before the fire, and, upon inquiry, á lady in charge of the office informed him that the clause had' been indorsed upon the record of the policy. Appellant introduced no proof on the subject.
If we hold that the proof failed to show notice of this clause to the proper officers or authorized agents of the company, and that it constituted an assignment by the insured (which we do not deem it necessary 'to decide now), still it was not pleaded below, and cannot be insisted upon here. The case cannot be determined here upon issues which were not properly raised and relied upon below. Greenwich Ins. Co. v. State, 74 Ark. 72. It was not set forth as a defense in the answer, and no instructions were asked or given on the subject.
It is alleged in the answer that W. H. Taylor “held a vendor’s lien upon said property in a large sum of money,” which was alleged to be in violation of the following clause of the policy, viz.: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the person be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple.” Learned counsel for appellant do not argue here that the incumbrance of a vendor’s lien works a forfeiture under this clause of the policy. It is well settled that it does not. 1 May on Ins. § 287 C.; Kerr on Ins. § 151; Ostrander on Ins. § § 71, 72.
It is urged that appellee failed to furnish proof of loss within the time required by the policy, and that this prevents recovery. It is sufficient to say that the company denied liability, and refused payment on the alleged ground that appellee burned the property. This was a waiver of proof of loss. “Under such circumstances, the presentation of proof was of no consequence, and practically superfluous.” German Ins. Co. v. Gibson, 53 Ark 494, and cases cited.
It appears, however, from the evidence that appellee fully complied with the terms of the policy in this respect. He furnished proof in twelve days after the loss, and no objection thereto was made by the company until within a day or two before the expiration of the sixty days allowed for furnishing the proof. Under those circumstances, the insured was entitled to further reasonable time after notice of the alleged defects in the proof to complete same. The notice to appellee at that time called for an exhibition of his books and inventory, and he immediately complied by producing the same, whereupon payment was refused by the company for the alleged reason that he had burned the property. This state of facts presents no defense to the action.
Counsel contend that appellee cannot recover on account of failure to comply with the “iron safe clause” of the policy by keeping a set of books sufficiently complete. This defense was not tendered by the answer, and cannot be considered here. No instructions were asked or given on this subject, and this issue was in no way submitted to the jury.
It was earnestly contended in the oral argument that' the court erred in permitting the plaintiff to introduce in evidence the record of a justice of the peace, showing that he was examined by said justice on a charge of arson committed by burning the insured property, and was discharged. This proof was introduced in response to proof introduced by appellant showing the arrest of appellee on that charge. The exceptions taken by the appellant at the trial to the introduction of this evidence were not brought forward in the motion for new trial, and are, therefore, deemed to have been waived.
Upon the whole record, we find no error, and the judgment is affirmed. | [
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McCulloch, J.,
(after stating the facts.) 1. The indictment does not allege the previous chastity of the seduced female, and appellant demurred to the indictment on that ground. This court recently held in the case of Caldwell v. State, 73 Ark. 139, that in a prosecution for this offense it is unnecessary for the State to allege or prove the previous chastity of the female, but that the defendant can show as a defense that she was not previously chaste. We are urged by learned counsel for appellant to overrule that decision and hold to the contrary, but we entertain no doubt of the correctness of. the principles therein announced, and the same are now adhered to.
2. Appellant filed his motion for continuance in the Benton Circuit Court, which was overruled, and a change of venue was then granted upon his petition, thus postponing the trial for about a month. When the case was called for trial in the Washington Circuit Court, he again presented a motion for continuance, so that he could procure the testimony of absent witnesses. .The court overruled the motion, and that ruling is assigned as error. It appears that both of the absent'witnesses were out of the State,- and the circuit judge had previously in vacation, upon application of appellant, made an order allowing him to take the depositions of the witnesses, and one deposition was ¡taken by appellant pursuant to this order. No reason is given why the depositions of other witnesses were not taken. Continuances of cases are matters within" the sound discretion of the trial court, and we see no abuse of the discretion in this case. Puckett v. State, 71 Ark. 62.
Appellant in his motion for continuance stated as further grounds that the prosecuting witness (the seduced female) “had long been subject to some nervous malady causing hysterics or mental delirium, and had recently suffered an attack from same, and was not at the time of calling of this case for trial recovered from such attack; that the importance of the case would necessitate her remaining on the witness stand an indefinitely long time, and undergoing vigorous cross-examination, which would excite the sympathy of the jurors for her and greatly prejudice the defendant's defense; that in fairness to him he ought not to be compelled to p cross-examine the prosecutrix in her present physical condition.” This states no grounds for continuation of the case. The court could not assume in advance that the woman’s physical condition, or the character of the cross-examination of appellant’s counsel, would be such as to excite the sympathy of the jury, and to prejudice them against him. If so, the fear of exciting sympathy for the wronged would forbid the courts from bringing to speedy trial persons accused of almost any crime. Moreover, the determination of that question fell fairly within the sound discretion of the trial court; and, as no abuse of it appears, we will not disturb its exercise.
3. Appellant asked the court to instruct the jury, in substance, that if he made the promise of marriage in good faith, and it was his intention, at the time of the first act of intercourse, to carry out his promise, he would not be guilty of seduction, even though, after the act of intercourse, 'he refused to carry out the promise.' The court declined to so instruct, and properly so. This is not the law. A man who seduces a chaste female under promise of marriage cannot refuse to carry out his promise. Public policy forbids that he should be permitted, after committing the act of intercourse under promise of marriage, to say that he had. intended to carry it out, but changed his mind and concluded not to do so.
4. It is strenuously urged that the prosecuting witness was not sufficiently corroborated, and that the verdict is not supported by the evidence.
The court properly instructed the jury that, before a conviction could be had, the testimony of the prosecuting witness must be corroborated as to the promise of marriage and the sexual intercourse. Appellant admitted the promise of marriage, and the testimony of one other witness tended to show an act of sexual intercourse between appellant and the prosecuting witness. It is contended, however, that the testimony of this witness tended to prove an act of intercourse subsequent to the first of such acts, as shown by the testimony of the prosecuting witness, and is not in corroboration of her testimony. We do not think this contention is sound. It is sufficient if it tends to show acts of sexual intercourse, whether they be the first of such acts with the accused or not, provided they be at the time or subsequent to the time of the promise of marriage.
We think the evidence was sufficient to support the verdict', and the jury were properly instructed as to the law.' So the verdict will not be disturbed.
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment convicting the defendant of selling liquor without license, and we are of the opinion that the judgment must be reversed because of error in giving the instruction set out in the statement of facts. Our statutes provide that in certain cases where a party is charged with selling liquor unlawfully, and is proved to have had a United States license for selling liquor in his house or building, such license “shall be prima facie evidence of the guilt of the party owning or controlling the house.” Sec. 5144, Kirby’s Digest. But if we take this boat as a house, within the meaning of the statute, there was a conflict in the evidence as to whether defendant was the owner or controller of the boat at the time the whisky was sold and the revenue license was found there. He testified positively that he had no interest in the boat, and that he was not the owner or controller thereof at that time. This being so, it was error for -the court to tell the jury that, if defendant had a revenue license at time he was charged with selling liquor, it was prima facie evidence of his guilt, and that they should convict him, unless defendant showed that he did not sell any liquor. The fact that he had the revenue license might be evidence against him for the jury to consider, but it could not be said to be prima facie evidence of his guilt unless it was shown that he was either the owner-or the controller of the boat when the whisky was said to have been sold.
We are of the opinion that the court correctly held that this statute which makes revenue license prima facie evidence against the owner or- controller of the house extends to all cases of unlawful selling of liquor vfliere it is shown that the defendant was at the. time of the sale either the owner or controller of the house where the revenue license was kept or found.
But for the reasons stated we are gf the opinion that the judgment must-be reversed, and the case remanded for a new trial. | [
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Wood, J.,
(after stating the facts.) The naming of the offense “Sabbath breaking,” instead of “selling intoxicating liquor without license,” was inaccurate. But this mistake did not vitiate 'the indictment, since the “particular offense was made distinct and certain by the statement of the facts constituting it.” Johnson v. State, 36 Ark. 242. “The name of the crime is controlled by the specific acts charged.” State v. Culbreath, 71 Ark. 80. That appellant was fully advised of the crime and understood it is shown by his plea of “not guilty to selling liquor without license.”
The evidence was sufficient here to support the verdict. No objection is urged to the charge of the court. The court did not err in overruling the motion for new trial on the ground of “newly discovered evidence.” True, the evidence was important, as tending to corroborate evidence at the trial tending to show that the cider was not intoxicating, and.that appellant did not sell same in November as alleged. Appellant contends that he could not have known of this evidence until the time of the sale was revealed at the trial. But he did not ask for a postponement or a continuance of the case when the time was revealed during the trial. He did not claim to be surprised then.
The whole matter was within the sound discretion of the court, which it has not abused.
Affirm. | [
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McCulloch, C. J.
Appellee was the plaintiff below and sued appellant to recover damages in the sum of $23,532 for alleged breach of a contract between the parties for the manufacture, sale and purchase of wood material for use in making -automobile wheels. There wias a trial of the cause before a jury, which resulted in a verdict in favor of appellee for the recovery of damages in the sum of $6,000, and an appeal has been duly prosecuted.
Appellant is a. foreign corporation, organized under the laws of Michigan, but is doing business in the city of Memphis, Tennessee, and the transactions which form the basis of this litigation were conducted by appellant through its Memphis office.
Appellee was engaged in the manufacture of wood materials at Banks, Arkansas, and the contract involved hérein was for the manufacture by appellee of automobile rim-strips and spoke-billets at his plant at'Banks and the sale thereof to appellant at specified prices.
On July 31, 1920, the parties entered into a written contract whereby appellee agreed to manufacture and sell to appellant, at stipulated prices, twenty-five carloads of rim-strips and spoke-billets. Appellant agreed in the contract to purchase and accept said material subject to its own inspection at Banks when ready to load on railroad oars for shipment. The contract provided that shipment should start during the week beginning August 2, 1920, and be completed by November 1, 1920.
It is shown by the testimony that the first car for shipment under the contract was gotten ready immediately prior to August 18, 1920, and appellant sent its inspector, named Bastían, to Banks for the purpose of inspecting the stock as loaded on cars, as per contract, and on the day just mentioned a controversy arose between appellee and the inspector concerning the accuracy and correctness of the latter’s inspection. This controversy resulted in a suspension of the loading of the car, and Bastían telegraphed appellant at its office in Memphis to the effect that the inspection had been stopped, and that the car was being loaded without inspection. Appellant thereupon sent to appellee a telegraphic message worded as follows:
“Bastían advises stock being loaded without inspection. Order reads our inspection. Wire trouble quick.”
Appellee replied by wire on the same day as follows:
“If you want my stock, send inspector. This man cannot inspect my stock.” .
Still later on. the same day appellant sent the following message to appellee:
“Cancel order and forget it. Our man knows our requirements..” ■
Immediately on receipt of that message appellee sent the-following by wire to appellant:
“No stock being loaded. Trouble no inspector. If this man fair sample of your inspectors, the order is already canceled.”
• This was the-last communication between the parties at that time, but on the next day appellee appeared at appellant’s place of business in Memphis, and they there entered into further negotiations concerning the transactions between them.
It is undisputed that there was an agreement entered into between the parties at the meeting in Memphis to the effect that .appellee should proceed to manufacture rim-strips and spoke-billets and ship the same in carload lots to appellant, ¡and that the latter should accept the same subject to inspection in Memphis, but there is a conflict in the testimony as to the full extent of the agreement made there between the parties. Appellee testified that there was no new contract between the parties except with regard to the inspection, and that the agreement was that appellant should accept performance of the original contract, but that a few cars should be shipped to appellant at Memphis subject to inspection there and that if the inspection at Memphis did not prove satisfactory appellant would send another inspector to appellee’s place of business at Banks for the purpose of inspecting the remainder of the stock to be shipped under the contract.
On the other hand, appellant contends, and the witnesses introduced tend to establish the fact, that the ne gotiations and agreements between the parties at Memphis had no reference to the original contract, which had already been canceled and rescinded, bnt that a new oral contract was entered into whereby appellee agreed to ship carloads of stock to Memphis subject to inspection by appellant there, and that appellant was only to accept such number of oars on those terms as appellee was willing to ship from time to time, and that there was no agreement with respect to the number of cars to be shipped under those terms.-
There is no controversy, however, that the price of the stock was the same as that specified in the original contract.
After this meeting between the parties at Memphis, appellee returned to Banks, and the next day appellant mailed to appellee the following letter:
“Confirming our conversation had with you while at our office today with reference to order for automobile strips and billets which you hold, it is our understanding that you will try out a few cars and ship same subject to inspection at the factory, shipping the hickory and oak rim-strips to Lansing and the spoke-billets to Memphis, you to draw on us at Memphis through the Commercial Trust & Savings Bank for 80 per cent, of the invoice, we to. send you inspection report and balance promptly on receipt of inspection report. It is also understood that we are to take about 25 per cent, red oak in the 54-inch lengths, truck rims only, you making the 45-inch lengths out of hickory only.”
This letter was received by appellee, and it is the only written communication between the parties bearing directly upon the details' of the transactions between the parties at Memphis on the occasion above mentioned.
The contention of appellant is that this letter had reference solely to the new oral agreement made in Memphis. But, on the other hand, the contention of appellee is, and he testified to that effect, that this letter had reference to the original written contract, or “order”— as the witness designated the contract.
Appellee then proceeded to make shipment to appellant, and the car, the shipment of which had been held tip on account of the controversy concerning the inspection, was shipped by appellee to appellant, and the latter accepted and paid for the same on the terms contended for by appellee. There were four carloads shipped, two cars of strips and two cars of billets.
On September 11, 1920, appellee mailed to appellant a letter requesting the latter to send an inspector to load out the stock. That portion of the letter which has bearing upon the present controversy reads as follows:
“Would like for you to send an inspector to load out the stock which I sold you. It takes so long to get a report on car after it is shipped. I have four cars which I shipped to West Chester in June that I have no report on. ****** I do not care to load out any more stock until I get a report on at least one or two cars that I have shipped you. It seems that the first car that I shipped should have been in before this time.
“The last time I was in Memphis, we had an agreement that I was to draw 80 per cent, on the stock. The first draft was returned, but finally paid. You wrote me a letter authorizing me to draw on you for 80 per cent., and to send a draft to a certain bank in Memphis. I did this, with invoice and B/L attached to draft.
“I made a deal with you for this stock, and turned down a deal as fully as good, and with quite a lot less trouble to handle, for this one.
“Let me know when you can have an inspector here, so I can get some oars placed.”
On September 13 appellant wired appellee as follows: “Stop all production for us. Wire amount now cut. Writing. ’ ’ This was followed up by a letter mailed by appellant to appellee confirming the telegram and explaining that the necessity for canceling the business relations between the parties was the decline in the automobile industry, and the letter concluded with the following paragraph:
“It is our intention to take such stock as you have out and cut for us, but cannot take more than what you have cut on receipt of our wire, unless it is necessary to cut just enough to make a minimum ear. Advise amount cut, and we will send inspector. ’ ’
On receipt of this letter, appellee wrote to appellant as follows:
“I have ear rims and car billets. Will wire as soon as I get cars placed, so you can send inspector. You could not use two more cars on the order given me, besides the two I have cut, could you? I have gone to considerable expense to get this order out, and feel that you should take what timber I have out. I have the logs on the road, and would have had them all cut, but the railroad would not furnish me with cars to move them. Let me hear from you by return mail. Also let me know if you can send inspector on short notice.”
The two cars referred to in the above letter were shipped out and were received by appellant at destination.
On September 16 appellee sent a wire to appellant requesting the latter to send an inspector, and appellant replied as follows :
“Impossible send inspector quick. Stack stock on hand. Cut one car each hickory billets strips. Will send best inspector latter part of next week. Load everything cut then.”
There were other telegrams that passed between the parties with respect to the inspection of the cars, but they relate to cars which appellant had expressed a willingness to accept.
On October 25 appellee wired to appellant notifying it that he had a car of rim-strips and about a car of billets, and asked for an inspector. One of appellant’s employees went to Banks on November'1, according to his testimony, for the purpose of making an inspection, but claims to have found no stock ready. This was the last transaction between’ the parties.
Among other instructions, the court gave the following, over the specific objection of appellant:
“If you. find defendant breached its contract of July 31, 1920, with plaintiff, and if you find the plaintiff sustained damages by such breach, and if you do not find that plaintiff acquiesced in the action which he alleges to be a breach of the contracts, you are instructed that plaintiff’s damages is the difference between the contract price of the total amount of strips and billets which defendant contracted for but refused to take and the total cost of the manufacturing and loading them on the cars ready for shipment.”
This instruction was erroneous and prejudicial, for the reason that it submitted to the jury the question whether or not the original contract of July 31, 1920, had been canceled without the consent of appellee, and whether there had been a breach of that contract without the acquiescence or consent of appellee.
We are of the opinion that, according to the undisputed evidence, the original written contract between the parties was rescinded by the communications between them on August 18, 1920, which were in the form of telegraphic messages and about which there is no dispute.
After appellee had unequivocally refused to permit Bastian to inspect the stock, appellant sent the following message: “Cancel order and forget it. Our man knows our requirements.” This was a distinct and unequivocal proposal to cancel or rescind the contract on account of the controversy with regard to the inspection, and appellee made the following answer to that proposal: “No stock being ’ loaded. Trouble no inspector. If this man fair sample of your inspectors, the order is already canceled. ” No other interpretation can be placed upon the language of this message than that it was an acceptance of appellant’s proposal to cancel the contract on account of the controversy with regard to the inspection.
It is true that this message stated the qualification that if Bastian was a fair sample of the inspectors sent out by appellant the order was already canceled, but the parties had already come to the distinct disagreement about the inspection, and the message reads that the contract “is already canceled,” meaning, necessarily, that the cancellation resulted from their failure to agree upon the proper man to do the inspecting.
There was undoubtedly a complete acquiescence on account of the controversy between the parties that they would cancel or rescind the contract and not insist upon a further effort to perform it according to its terms.
The court erred, therefore, in giving this instruction, for it permitted the jury to find that this contract was still in force, and that appellant’s refusal by telegram dated September 13 to accept any more stock further than the carloads already manufactured was a breach of this contract.
If the original contract was in force, the telegram of September 13 was a breach thereof because it constituted a refusal to accept any more carloads other than those already manufactured and ready to ship.
Appellant’s contention is that this telegram was not a breach of its contract, for the reason that the original written contract had been rescinded,' and that, under the terms of the oral contract made in Memphis on August 19, it was not bound to accept any definite number of carloads of stock.
It was a question for the jury to determine what the contract made in Memphis on August 19 was, — whether it amounted, as contended by appellee,' to an agreement of sale according to the terms specified in the original written contract, or whether it was merely a contract, as contended by appellant, for the acceptance of such amount of material as appellee should see fit to ship.
Since we find that the original written contract was canceled by the telegraphic correspondence on August 18, it follows that the contract negotiated in Memphis on the following’ day was an oral one, notwithstanding it had reference to the sale of stock according to prices mentioned in the written contract. Even if it was an agreement to carry out the original contract. according to its terms, it must be tested as ail oral contract, for it depended, for its existence, upon an oral agreement. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433.
The original contract contained mutual obligations of the respective parties, and it was within their province to rescind it by mutual consent, such reciprocal obligations being the consideration for the rescission as well as for the original undertaking. So, after the original contract had been rescinded, the parties could, and, according to the testimony adduced on the part of appellant, did, enter into negotiations for a new contract covering the subject-matter of the old contract.
This new contract was, as before stated, an oral one, even though it adopted the terms of the old contract by reference thereto. The confirmatory letter written by appellant to appellee on the next day was not complete in itself so as to state the terms of the new contract. It was therefore merely evidentiary, in part, of what the contract was and is subject to explanation by either party.
This state of the proof makes it a question for the jury to determine what the extent of the contract was that was entered into between the parties on the occasion named, and the case should have gone to the jury solely on that question and on the question of the alleged breach thereof.
. It is true that appellee in the complaint asserted the right of recovery solely on the original contract, but proof was directed towards the transaction between the parties on the occasion of their meeting in Memphis, and as testimony was introduced without objection, it constituted an election to treat the pleadings as amended so as to conform to the proof.
We cannot sustain the judgment, however, upon a presumed finding of the jury in favor of appellee on that issue, for the jury may have based the verdict upon the finding that the original written contract had not been rescinded,
The court gave, at appellant’s request, an instruction (No. 4) setting forth the correspondence between the parties between the dates of September 15, 1920, and October 25, 1920, and concluded with directions to the jury that if they found that appellant “within a reasonable time sent an inspector to inspect and accept such material as was tendered by plaintiff, and on arrival of inspector at plaintiff’s premises plaintiff had no stock on hand to inspect of the kind embraced in the contract, that there was no refusal of defendant to comply with the terms of the contract.”
This instruction was more favorable to appellant than it was entitled to, for it assumed that appellee had acquiesced in the agreement to insist on the shipment of only such stock as had been manufactured. It was a question for the jury to determine whether or not,, from this correspondence, appellee acquiesced in the terms proposed by appellant in its letter of September 13 confirming the telegram with regard to accepting no more stock except that which had been manufactured.
For the error in giving instruction No. 3 over appellant’s specific objection, the judgment is reversed and the cause remanded for a new trial. | [
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Hart, J.
(after stating the facts). The effect of our opinion on the former appeal was to hold that the use of an uncovered set screw upon the collar on an elevated line shaft was not negligence, as a matter of law, under the conditions set out in the statement of facts, but that the question of negligence in this respect was for 'the jury. Although the use of set screws and projecting bolts upon line shafts is generally held not to be negligence as a matter of law, it does not follow that it would not be negligence to use them without being guarded or covered where, by their proximity to the floor and other places of work, workmen would be subjected to unusual danger. If the accident happened as claimed by counsel for the plaintiff — that is, if in trying to pull out a plank from the cog wheel, or from unclogging the conveyor chain while standing near the uncovered or unprotected set screw, Scott slipped or lost his balance, and. while falling his clothing caught in. the set screw and wound around the line shaft and thereby killed him, the case falls within that line of cases in which it has generally been held that, where an employee is injured by unguarded machinery with which he comes in contact by reason of some such cause as leaning over, slipping or losing his balance, he cannot be held to have assumed the risk as a matter of law. The defective condition of the conveyor trough and the consequent clogging of the conveyor chain is only important as accounting for Scott’s fall. It may be stated in this connection that, notwithstanding Scott was a mill foreman, he was doing the work of another under the command of his su perior at the time he was killed, and his rights were practically the same as those of any other workman who possessed the same knowledge and skill in the premises as he did.
To constitute actionable negligence, there must be negligence and injury resulting as the proximate cause of it. Proximate cause has been defined as a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue.
It is true that, according to the theory of the plaintiff and.the evidence introduced to support it, Scott was injured by falling from the walk-way while engaged in unclogging the conveyor chain which had become clogged on account of the accumulation of particles of wood by reason of the defect in the lining of the conveyor trough, nevertheless it. is conceded, or in any event it may be fairly assumed from the evidence, that the set screw caught his clothes and caused them to be wound around the revolving shaft, and thereby killed him. It does not follow that which caused Scott to fall was the proximate cause of his injury. The set screw would have caused the injury whether or not the defendant had been guilty of negligence with reference to the defective condition of the conveyor trough. This alleged defect was only a condition, and was not the proximate cause of the accident which resulted in Scott’s death. The set screw would have produced the same injury if Scott had fallen 'because of the slippery condition of the walk-way or as the result of his own carelessness while going along the walk-way to see if the conveyor trough had become clogged. Hence it is apparent that if the set screw had been covered Scott might not have been killed, and that if it was left uncovered he would be injured if he fell against it while the line shaft was revolving. Hence the negligence of the defendant in failing to cover the set screw, if the jury should find that it was negligent in this respect, was the direct and proximate cause of the injury, and the clogging of the conveyor chain was only a-condition, and as such was not the efficient cause of the injury.
Of course the opinion on the former appeal is the law of the case and must govern here. We have stated-, however, the effect of that opinion as we understand it from the language used, without quoting at length from it. Therefore, we are of the opinion that the instructions of the court at the instance of the plaintiff are erroneous. The instruction of the court should have only submitted to the jury the negligence of the defendant in leaving an exposed set screw under the surrounding conditions, and should not have left to the jury the question of negligence ‘of the defendant in allowing blocks or particles of wood to have accumulated on the conveyor chain and thereby clogging it by reason of the defective condition of the lining in the conveyor trough. If the alleged defect in this respect was not the direct and proximate cause of the injury, it necessarily follows that the court' erred in submitting it to the jury as a question of negligence on account of which the plaintiff might recover.
In instruction No. 1 as well as other instructions given at the request of the plaintiff, the court submitted to the jury, in general terms, the negligence of the defendant on all the grounds alleged in his complaint. The allegations of negligence with regard to the defective condition of the lining of the conveyor trough was one of the allegations of negligence set out in the complaint. Then, too, in instruction No. 15 this allegation of negligence was expressly submitted to the jury, and the jury was told that, if such negligence -contributed to the decedent’s death, it should take this into consideration in arriving at its verdict.
On the question of negligence, as we have already seen, the trial court could only submit that which was the direct and proximate cause of the accident, and it was error to submit other alleged grounds as a basis for the jury to find for the plaintiff. The instruction should have limited the jury upon the subject of negligence to that which was the direct and proximate cause of the injury, and, not having done so, the trial court committed prejudicial error, which calls for a reversal of the judgment.
It is insisted by counsel for the defendant that the undisputed evidence on the present appeal shows that Scott had helped to repair the collar in which the set screw in question was placed, and that he necessarily knew of its existence. Hence they claim that the case should not be remanded for a new trial, but that the cause of action should be dismissed^ We do not agree with counsel in this contention. As we have already seen, the question of whether the use of the uncovered set screw, under the facts and circumstances in the case, constituted negligence on the part of the defendant was one for the jury, and this would not be changed by the fact that Scott knew that the set screw was there. That fact would be for the jury to consider on the question of the assumption of risks, which should be still left to the jury.
Therefore, we are of the opinion that the judgment must be reversed, and that the cause should be remanded for a new trial. It is so ordered. | [
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Smith, J.
Appelant was convicted of perjury, and bias appealed. For the reversal of the judgment he in sists that the verdict was contrary to the evidence; and that the alleged false testimony was not material.
The indictment alleges that the grand jury was engaged in the examination of a charge against Jess Nichols and Harvey Jane for the larceny of certain meat, and that pending such examination witness testified “that he did not, on the day prior to the examining trial of the case against the said Nichols and Jane, attempt to compromise or settle said case, which was then and there pending in justice court, with Mrs. Bud Biokle, and did not ask her if she would settle the case if she should be paid $75, or any other amount.” The indictment alleges the materiality and the falsity of the testimony.
The foreman of the grand jury testified, and in doing so made use of such expressions as “If I remember right”, and “It is my belief”. These statements were made in repeating the testimony of appellant before the grand jury. The deputy prosecuting attorney also testified in the case, and in doing so he used the expression, “My recollection is”, and “I am of the impression.”
It is insisted that the use of these and other similar expressions of the witnesses shows that the witnesses were not sufficiently certain and definite to meet the requirements of the law. But this was a question of fact for the jury, and the jury’s verdict is conclusive of the question.
The chief insistence is that the alleged false testimony was immaterial. It is said that the testimony could not have been offered at the trial of Nichols and Jane upon the charge of larceny, in the absence of a showing that these persons had authorized appellant to make the proposition to Mrs. Biokle.
It is to be remembered, however, that the false testimony was given before the grand jury, a body having general inquisitorial powers, and the allegation of the indictment is that appellant was interrogated about an incident which had occurred the day before the examining trial of Nichols and Jane before the justice of the peace. The denial by appellant that he had made Mrs. Bickle an offer to settle the case would probably and naturally have tended to close the inquiry about the offer of money to settle the prosecution; whereas a truthful answer to that question and an admission that he had made such an offer would naturally have led to the inquiry, at whose instance the offer was made, and, if it had been made at the instance of Jane or Nichols, that fact would have been developed by the grand jury. The false answer was calculated to suppress the inquiry whether Nichols and Jane had authorized or induced appellant to attempt to suppress the examining trial. False swearing under these circumstances is perjury. In the case of Smith v. State, 91 Ark. 200, a syllabus reads as follows: “In an investigation before a grand jury any testimony is material whose necessary effect is to suspend, if not prevent, further investigation of a subject of inquiry, as where defendant’s false testimony prevented the grand jury from investigating whether liquors in a given instance had been sold illegally. ’ ’
Error is assigned in admitting in evidence a written memorandum of the appellant’s testimony before the grand jury. If there was any error in admitting this writing, it was invited, as objection was made to the testimony of both the foreman of the grand jury and the deputy prosecuting attorney that there was a memorandum which would be the best evidence. This memorandum was identified by the deputy prosecuting attorney as having been made by him; and, while it is not identical with the testimony of that officer at the trial, we think there was no substantial difference between the recitals of the memorandum and the testimony of that officer. At any rate, the difference, if any, was a question going to the credibility of the witness, and that was a question for the jury.
No error appearing, the judgment is affirmed. | [
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Wood, J.
Mrs. Ida L. Foucar died testate at San Francisco, California, on February 1, 1920, having executed her will on the 27th day of February, 1918. The second clause of the will is as follows: “Second: I give and bequeath unto my son Louis LeFlore, of Stigler, Oklahoma, and to his children living at the time of my death, the sum of one hundred ($100) dollars each. I purposely make no further provision for my said son Louis LeFlore, nor for any of his children, because my said son Louis enjoyed a larger share of his father’s estate than either of my other two sons hereinafter mentioned and provided for, and because his present financial condition is materially better than that of either of his said two brothers.” In the third clause the testatrix states the reason for not making any provision for her husband. In the fourth and fifth clauses she bequeaths to her two sons, Frank T. LeFlore and Chester H. LeFlore, the sum of $10,000 each, and provides for the manner of succession in case of their death before her own. In the sixth clause she 'bequeaths to Frank A. Handlin, trustee, all the residue of her estate to be held by him for certain uses and trusts, which we will specify in paragraphs or items numbered from one to nine inclusive.
(1) and (2) confer upon the trustee the power to handle the property bequeathed to him; to invest the income therefrom upon such terms as he thinks advisable, and to pay the taxes, insurance, etc.
(3) In this item the trustee is directed to use the income from the estate bequeathed to him, or such portions • thereof as may be necessary, or even the corpus thereof, if required, for the maintenance and education of her grandson Edouard B. LeFlore, son of Frank T. LeFlore, and Chester Harwood LeFlore, son of Chester H. LeFlore, until they have reached their majority.
(4) This item directs that, five years after the death of the testatrix, the trust shall terminate as to one-half of the trust property and the “same shall go and belong equally to Frank T. LeFlore and Chester H. LeFlore,” her sons.
(5) This item is as follows: “When each of my said grandsons arrives at the age of twenty-one years, my said trustee shall pay to my said grandsons, out of said trust fund, the sum of five thousand ($5,000) dollars, and said trust shall end and terminate as to the sum of five thousand ($5,000) dollars when each of my said grandsons respectively reaches the age of twenty-one (21) years, and I do hereby give and bequeath unto each of my said grandsons, upon his arriving at the age of twenty-one (21) years, the sum of five thousand ($5,000) dollars.”
(6) In this item the testatrix specifies that when her grandson, Chester Harwood LeFlore, reaches twenty-five years of age, the trust terminates as to one-half of the trust property then remaining after deducting therefrom the sum of $5,000 which is to be paid to her grandson, Edouard B. LePlore, and her grandson Chester Harwood LePlore then receives the remainder of the one-half of the trust property.
(7) In this item it is provided that, when her grandson Edouard B. LeFlore reaches the age of twenty-five years, the trust shall terminate as to all the balance of the property, and she bequeaths the same at that time to him,
(8) This item contains advice and suggestions to the trustee.
(9) This item of the sixth clause of the will is substantially as follows: “Upon the death of either of the sons of the testatrix, his share shall be held by the trustee, subject to the trust, and shall be paid to the son of such decedent when said grandson reaches the age of 25 years; provided, if said grandson dies before" reaching 25 years of age, leaving issue, such issue shall take and receive said share when said grandson would havereached twenty-five; provided further that, should Edouard B. LePlore die before he is 25 without issue, his mother, if living, shall succeed to his share, and the trust shall terminate thereto; but if Chester Harwood LePl.ore should die before he is 25 without issue, his share shall be held by the trustee for the benefit of Edouard B. LeFlore and shall be paid and delivered to him subject to the trust. If either of my said grandsons should die before becoming 21 or 25 years respectively, leaving issue him surviving, such issue shall take the share the parent would otherwise be entitled to, subject to the aforesaid trust, and at the time when the parent would have taken hereunder; provided, that if my said grandson Edouard B. LeFlore should die prior to reaching the age of 21 or 25 years, respectively, without issue him surviving, his father, if living, and if his father should have theretofore died, his mother, if living, shall succeed to the share or shares of my said grandson forthwith; and said trust shall terminate and end with respect thereto; provided, further, that if my said grandson Chester Harwood LeFlore should die prior to reaching the age of 21 or 25 respectively, without issue him surviving, his father, if living, shall succeed to the share or shares of my said grandson forthwith, and said trust shall terminate and end with respect thereto; but if his father shall have predeceased him, my said trustee shall succeed to the share or shares of my said grandson, to be held by my said trustee upon the uses -and trusts aforesaid, and for the benefit of my- grandson Edouard B. LeFlore, to be paid and delivered to him at the times and in the manner in said trust provided. ”
In the seventh and eighth clauses of the will the testatrix names Handlin as her executor, and, in the event of his death, she names whoever may be the president of the First National Bank of Fort Smith to succeed him, and directs that he may serve without bond, and confers -upon him the power to handle the estate without obtaining an order of the court.
The concluding clause is a revocation of all other wills.
This action was instituted in the chancery court of Sebastian County by the appellants against the appellee as trustee and executor. The appellants contend, as shown by the allegations of their complaint, that under the mill they are each entitled to the sum of $5,000 when they become twenty-one years of age. They alleged that the trustee does not so construe the will, and they prayed that the will may be construed as they contend, and that the trustee be directed to adopt such construction.
The appellee, in his answer, denied that the will should be construed as contended by the appellants, and admitted that he contends that it was not the intention of the testatrix to bequeath to the appellants any other sum or amount than the sum of $100 mentioned in the second clause of the will.
In addition to the will, the testimony of Louis LeFlore, the father of appellants, was heard. It was stipulated that the estate of the testatrix was of the value of $83,000; that Chester Harwood LeFlore, son of Chester H. LeFlore, was nineteen years of age on July 20, 1921, and that Edouard .B. LeFlore, son of Frank T. LeFlore, was ten years of age on July 28, 1921. The court made findings and rendered a decree adverse to appellants’ contention and dismissing their complaint for want of equity. From that decree is this appeal.
The will created a trust estate and named the appellee as the trustee to administer the same. The court of equity therefore had jurisdiction to construe the trust. In seeking a construction of this will, the practice approved in the case of Williamson v. Grider, 97 Ark. 586, 607 et seq., was followed. See also Booe v. Vinson, 104 Ark. 439-444; Heiseman v. Lowenstein, 113 Ark. 404.
‘ ‘ Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator in view of all the provisions of the will.” Cook v. Worthington, 116 Ark. 332. See also Eagle v. Oldham, 116 Ark. 565-573.
In the case of Eagle v. Oldham, supra, we cited and quoted Smith v. Bell, 31 U. S. 68, where Chief Justice Marshall said: ‘ ‘ The first and great rule in exposition of wills (to which all other rules must bend) is that the intention of the testator expressed in his will shall pre vail, provided it be consistent with the rules of law.” Other cases to the same effect are Heiseman v. Lowenstein, supra; Union, & Mercantile Trust Co. v. Hudson, 143 Ark. 519; Moore v. Avery, 146 Ark. 193; Finch v. Hunter, 148 Ark. 482.
In Taylor v. McClintock, 87 Ark. 243-274, we said: “Every man has the untrammeled right to dispose of his property iby will as he pleases, with only such hmitations as the statute may impose. The ‘English law’, said Lord Chief Justice Cockburn, ‘leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances caprice or passion or the power of new ties may lead to the neglect of claims that ought to be attended to, yet the instincts, affections and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a disposition prescribed by the stereotyped and inflexible rule of general law. ’ (Banks v. Goodfellow, L. R. 5 Q. B. 549).”
In the seoond clause of the will the testatrix bequeathed to her son, Louis LeFlore, and to his children the sum of only $100 each, and assigned as her reason for so doing that her son Louis enjoyed a larger share of his father’s estate than her other two sons, and that his financial condition was materially better than theirs. Louis LeFlore was permitted to testify that he only received from his father’s estate two horses which were worth about $12.50 each. This testimony shows that the testatrix was mistaken in the fact that he enjoyed a larger share of his father’s estate than either of his two brothers. There is no ambiguity in the language of this will when its various provisions are read together. The above testimony therefore was wholly incompetent, because it cannot be proved that the testatrix was mistaken in a fact which she clearly stated in the will for the purpose of showing that her intention was really differ ent from that which her language plainly expresses. Nor is such proof competent for the purpose of showing that, but for the mistake of fact, her intention would have been different and expressed in a different manner. Where the intention is plainly expressed in the will, that intention must prevail and cannot be defeated by testimony aliunde, showing that the testator had in his mind a different intention from that expressed in his will, or that he would have expressed by his language a different intention if he had not been mistaken in some fact, financial or otherwise, connected with the beneficiaries mentioned in his will. Booe v. Vinson, 104 Ark. supra; Webb v. Webb, 111 Ark. 54; Moore v. Avery, supra.
“Equity,” says Mr. Pomeroy, “has a very narrow jurisdiction to correct mistakes in wills, but only when the error appears upon the face of the will itself, so that both the mistake and the correction can be ascertained and supplied by the context, from a plain interpretation of the terms of the instrument as it stands. A resort to extrinsic evidence is never permitted, either to show a mistake or to ascertain the correction.” 2 Pomeroy’s Equity Juris., sec. 871.
The province of courts is to construe and interpret, but not to make or modify wills either to carry out their own ideas of equity and justice or to make a disposition of the property as they imagine the testator would have done if he had not made some mistake of law or fact. Martin v. Thayer, 16 S. E. 489; Jones v. Crogan, 25 S. E. 590; Mosser v. Mosser, 32 Ala. 551; Rood on Wills, sec. 165.
Now, applying the above rules, which are without exception and of universal application, to the will under review, it is impossible to escape the conclusion that by the second clause of the will the testatrix intended to give to the children of her son, Louis LeFlore, the sum of $100 and no more. The language of this clause of the will excludes them from any further participation in her estate. Whether she meant to do so or not, her language is susceptible of no other interpretation. As we have seen, this meaning must prevail unless by the language of some subsequent clause the testatrix as plainly expresses the intention not to exclude them, but to allow them to further share in her estate. If there is a subsequent clause in the will wholly inconsistent with this second clause, then the last provision will overturn the former. Little v. McGuire, 113 Ark. 497; Gist v. Pettus, 115 Ark. 400.
The appellants contend that under the second clause of the will they are definitely included in the will under the language “unto my son, Louis LeFlore, and to his children”; that they are brought in under the designation “children” since they are the children of Louis LeFlore. Counsel is correct in this contention. Sec. 10507, C. & M. Digest; Brown v. Nelms, 86 Ark. 368-383. But, while the appellants are thus included in the will and bequeathed the sum.of $100 each, they are likewise by the same clause excluded from any further provision.
The appellants contend that, having 'been brought into the mil under the designation “the children of Louis LeFlore” in the second clause, they are not excluded by this or any subsequent clause in the will, but on the contrary are included in the 5th item of the sixth clause under the following language:
“ * * * and I do hereby give and bequeath unto each of iny said grandsons upon his arriving at the age of 21 years, the sum of $5,000.” But, when the language thus quoted is taken in connection with all the language of the sixth clause preceding it, as well as with the language following, it is perfectly manifest that the testatrix intended to designate by the words, “said.grandsons,” her grandsons, Edouard B. LeFlore, son of Frank T. LeFlore, and Chester Harwood LeFlore, son of Chester H. LeFlore. In the third item of the sixth clause of the will, the word “grandsons” appears for the first time, and there the testatrix specifically designated her grandsons, Bdonard B. and Chester Harwood LeFlore, making provision for their education and maintenance.
In the second clause of the will the testatrix had bequeathed the sum of $100 to her son Louis, and the same amount to each of his children, and the sum df $10,000 to each of her two sons, Frank T. and Chester H. LeFlore. By the sixth clause, after the above bequests are taken out, the entire corpus of the estate remaining she bequeaths to Handlin, trustee, for the use and benefit of her two sons, Frank T. and Chester H. LeFlore, and their sons, her grandsons, Edouard B. and Chester Harwood LeFlore, and their lineal descendants. Throughout this entire sixth clause many references are made by name specifically to her grandsons, Edouard B. and Chester Harwood LeFlore, but nowhere are the names of appellants specifically mentioned, and no provision in this clause is made for them in the trust estate, unless they were intended to be included by the word “said” in the clause “to each of my said grandsons.”
Appellant’s contention would be more plausible, if they had been “before mentioned” by name in the second clause of the will. But, even if appellants had been designated and brought into the will by name, in the second clause instead of under the generic term “children,” still the word ‘ ‘ said-’ ’ in the connection used in the sixth clause, could not be interpreted to mean, and to include, appelants. In Moore v. Paving Imp. Dist. No. 20, 122 Ark. 326-36 we defined the word “said” as follows: “It means aforesaid: before mentioned. It has also been defined as ‘a word of reference to what has been already spoken of or specified, and if there is a question as to which of the antecedent things or propositions specified is referred to, it is generally held to refer to the last of such antecedent propositions or things.” Citing Hinrichsen v. Hinrichsen, 172 Ill. 462-65; 50 N. E. 35, 34 Cyc. 1825. See also Webster’s New Int. Dict., Funk & Wagnall’s New Stand. ‘‘Said.’’ Church v. Mulford, 8 N. J. L. 182; Carver v. Carver, 97 Ind. 497; Words & Phrases, Vol. 4, Second Series, and Vol. 7, First Series “said.” The term “said” being a relative word is understood as relating to the next antecedent. Ellis v. Horine’s Devisees, 8 Ky. (1 A. K. Marsh) 417. The next “antecedent” of the word “said” in the clause “to each of my said grandsons” is found in the clause wherein the testatrix provides for the maintenance and education of her grandsons Edouard B. and Chester Harwood LeFlore. The word “said” unquestionably refers to them. The word “said” therefore cannot be construed to refer to appellants without ignoring its plain meaning and grammatical construction. We cannot do violence to the natural and logical use and meaning of words in order to iron out the seeming inequalities of Mrs. Foucar’s will. A further analysis of the language of the will would discover still other reasons for the conclusion we have reached. But the above suffices to show that the only possible way to harmonize the second and sixth clauses of the will is to construe the second clause as expressing the intention of the testatrix to exclude the appellants from any further participation in her estate. That such was her intention we have no doubt, since it must be held that she meant what she said.
The decree of the trial court is correct,. and it is therefore affirmed. | [
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McCulloch, C. J.
The parties to this appeal were formerly husband and wife, but were divorced by a decree of the chancery court of Independence County, rendered January 1,1920, on complaint of the husband charging misconduct on the part of the wife.
There were two children, issue of the marriage, a boy and a girl, and the court in the divorce decree awarded the custody of the boy to the father, and awarded the custody of the girl to the mother. The court also awarded the wife alimony in the sum of sixty dollars per month. There was no appeal from that decree.
The present proceeding was instituted by petition of the husband in the chancery court of Independence County to modify the former decree by awarding the custody of the girl to him and to strike out the .allowance of alimony.
It is alleged in the petition, as grounds for modification of the former decree, that the defendant resides in the city of Little Eock, where she had taken the child with her, and that she had been guilty of such misconduct and was so neglectful of the welfare of the child that she was not a fit person to have the child in her custody, and that the probation court at Little Eock had awarded the custody of the child-to the plaintiff.
There was an answer to the petition, in which the defendant denied the charges of misconduct on her part or neglect of the welfare of the child, and she asked that the former decree be modified by increasing the allowance of alimony to the sum of seventy-five dollars per month.
The cause was heard by the court on oral testimony, which has been properly preserved in the record and brought up for our consideration, and the former decree was modified by awarding the custody of the girl to. the plaintiff, but providing that the defendant should have the right of receiving the children for a visit during one month of each year.
The former decree in regard to alimony was also modified so as to reduce the amount of the monthly payments to the sum of forty dollars.
The court also made an additional order requiring the plaintiff to pay the accumulated delinquent installments under the former decree.
Each party has appealed.
The testimony is somewhat voluminous, and the witnesses are numerous, embracing close relatives of the parties, and their friends.
Testimony was adduced tending, with considerable force, to show that the defendant is not a fit person to have the custody of the girl child, and that she is not so situated in her life in Little Rock that she can afford a proper home for the child. This testimony is denied, however, and there are witnesses in Little Rock who testified that defendant’s conduct is above reproach and that she is altogether capable of taking proper care of the child and of properly rearing her. It is unnecessary to state this evidence in detail, for it would serve no useful purpose to do so.
We >are convinced, as the chancellor seems to have been, that the father is so circumstanced as to be able to give a better home and sanctuary to the child than is the mother, and .that it is to the -best interests of the child that she should be with her father.
Defendant is living in the city of Little Rock, where she is engaged as .a professional nurse. She has no home of her own to offer to the child. The plaintiff resides in the city of Batesville, where he has a residence of his own, and his mother keeps house for him. The evidence tends to show that he is able, financially and otherwise, to afford the best advantages to his children, and that he is, under the circumstances, the proper person to have the custody of both of the children.
The fact that the two children can, under these circumstances, reside together is not without considerable force in determining the question of the custody of the girl. In order to support this part of the decree of the chancery court it is not necessary to find that the defendant has been guilty of misconduct which involves her moral character, though there is some testimony tending to show that she has been associating with and receiving attentions from a certain undivorced married man in Little Rock.
The decree awarding the custody of the girl to the plaintiff may well be based solely upon the ground that the defendant is not so situated that she can furnish a home and other advantages to the child, while the plaintiff is abundantly able and is willing to do so.
There was, as before stated, no appeal from the former decree, and we are not called on to review the decision of the chancery court allowing alimony to the defendant, notwithstanding the fact that she was the guilty party and the divorce was granted on account of her misconduct. The court had the power to award alimony, even where the divorce was granted on the complaint of the husband. Pryor v. Pryor, 88 Ark. 302.
We have now only to deal with the question of reduction of the amount of alimony. The proof shows that the amount awarded under the modified decree is not out of proportion to the financial ability of the plaintiff to pay, and that the award is not excessive. The fact that the custody of the daughter has been taken away from the defendant does not necessarily afford ground for holding that the further continuance of the award of alimony was erroneous.
It does not appear that the court originally allowed alimony solely on the ground that the custody of the child was awarded to defendant. The proof shows that the plaintiff was then, as now, financially able to contribute to the support of his wife, and the court, in reducing the amount, may have taken into consideration the fact that the defendant ho longer had to support the child. It was, at least, proper for that to be taken into consideration.
The proof shows that the defendant receives a very small income from her professional activities and earns scarcely enough to live on, whilst the plaintiff is in good circumstances and is drawing a liberal salary.
The defendant does not complain of the reduction made 'by the court, but the complaint as to that p.art of the decree comes from the plaintiff, who contends that the award should have been stricken out altogether.
We cannot say, under the evidence, that it was improper for the court to continue the alimony for the reduced amount.
The decree is therefore affirmed on both appeals. | [
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Smith, J.
On October 5, 1917, appellee entered into a contract with the appellant, under the terms of which appellee agreed to obtain for appellant a loan of $1,750, to be secured by a mortgage on his farm, for .a period of ten years, for which a note bearing interest at six per cent, was to be executed. At the same time, and as part of the same transaction, appellant executed to appellee three notes, each for $116.66, without interest to maturity, and maturing in one, two and three years after date. These three last notes represent a brokerage fee of $350 which appellant agreed to pay for services of appellee in making the loan, and as appellee made the loan itself the notes for this brokerage fee were made payable to its order and were secured by a second mortgage on the land on which the first mortgage was given. The first of these brokerage notes was paid, but default was made in the payment of the second and third, and this suit was brought to foreclose the mortgage securing them.
The defense interposed is that the transaction was usurious and void. The insistence is that the principal note of $1,750 bore interest at 6 per cent., and the three notes maturing in 1, 2, and 3 years are in law interest paid for the principal loan, and that the $105 interest on the principal loan due each year and the $116.66 payable for each of the first three years amount to $221.66 for each of the first three years and is more than 10 per cent, on the principal loan.
It is true that the payments for each of the first, three years amount to $221.66, and that this is more than 10 per cent, on the sum loaned, and if the loan had been made for a period of three years only, the contract would be usurious and void. But the loan was not for three years. It was for ten years, and a calculation has been submitted which appears to be correct — and its correctness is not challenged — which shows that if the pay ments are made as called for by the contract, a sum in excess of 10 per cent, will not have been collected.
This calculation credits the annual payment of $105 to be paid each year, and also credits the annual payments of $116.66 to be made during each of the first three years as partial payments in accordance with the statutes of this State controlling in such cases; and it appears that when this has been done the total sum paid at the end of the ten years will be $220.38 less interest than would. have been collected had a straight charge of 10 per cent, per annum been made, as might lawfully have been done. In other words, appellant borrowed, and received, $1,750 under a contract calling for its repayment in such a way as that at the end of the ten years he will have paid $220.38 less than 10 per cent, for the money borrowed during the time it was borrowed; ¡and the transaction is not, therefore, usurious.
In the case of Ellis v. Terrell, 109 Ark. 69, a note was given for $200, due in 5 years, and bearing interest at 6 per cent, from date; but the borrower received only $160, the sum of $40 being deducted at the time the loan was made. This transaction was held usurious, but not because of the deduction made when the loan was negotiated, which deduction was 20 per cent, of the face of the note. The court treated the amount loaned as being $160, the face of the note less the cash deducted, and ascertained that the amount agreed to be paid exceeded 10 per cent, on the amount actually loaned for the 5-year period covered by the note.
When the same test is applied here it is found that the contract does not require the payment of any sum in excess of 10 per cent, for the use of the money loaned for the period of time for which the loan was made.
This court is committed to the proposition that, in determining whether a contract is usurious or not, we will ascertain the intention of the parties; and if it appears that the parties intended, by their contract, that the borrower should pay any sum in excess of 10 per cent, during the time the borrower is to have the use of the money loaned, then the contract is usurious and void, whatever the method may have been to conceal this intent. If this intent does not exist, and the contract does not contemplate and call for the payment of a sum in excess of 10 per cent, for the use of the money during the time the borrower is to have its use, then the contract is not usurious.
There appears to be no subterfuge here to exact the payment of usury. Upon the contrary, if the payments are made as called for in the contract, a sum less than 10 per cent, will have been paid for the use of the money loaned during the time it was loaned; and the contract is not, therefore, an usurious one.
The decree of the court below accords with the law here announced, and it is therefore affirmed. | [
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Humphreys, J.
This case is before us a second time. On the first appeal the judgment of the trial court, dismissing the petition of the Clear Creek Oil & Gras Company, was reversed and remanded with directions to try the case upon the evidence adduced before the Arkansas Corporation Commission, and to determine therefrom whether the rates fixed 'by said Commission for the sale of natural gas were reasonable. In remanding the cause this court used the following language, pertaining to the directions given to the trial court, to-wit: “The parties are entitled to a finding by the trial court on the issue as to the reasonableness of the rates fixed by the Commission, that is to say, a finding based on the evidence adduced before the Commission. The judgment is therefore reversed, and the cause remanded for further proceedings.” The case on former appeal is reported in 148 Ark. at page 260, under the style of Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., and reference is made to the reported case for a full statement of the facts and issues involved therein.
Upon the remand of the cause the trial court was requested by appellants herein to ascertain whether the rates for the sale of gas fixed by the Corporation Commission were reasonable under the evidence presented to the Commission. The trial court refused the request. .The request and refusal were in the form of declarations of law. Appellant’s requested declaration of law, which was refused by the court, was as follows:
“That, under the opinion of the Supreme Court on a former appeal, which was rendered April 18, 1921, and rehearing denied May 30, 1921, that this court has the right to make a finding and fix a rate at what this court thinks the evidence before the Corporation Commission justifies, and that this court is not required by the former decision of the Supreme • Court in this case to find the rate as fixed by the Corporation Commission.”
The court declared as a matter of law that he was bound to find the rates fixed by the Corporation Commission from the following statement appearing in the opinion of the court: ‘ ‘ The evidence is sufficient to support the finding of the Commission fixing the rate at approximately 9 cents per thousand cubic feet for use by the manufacturing plants.” The court thereupon approved and confirmed the rates fixed by the Corporation Commission, as follows: 15 cents per M cubic feet for the first 300,000 cubic feet; 13 cents per M cubic feet for the next 300,000 cubic feet; 10 cents per M cubic feet for the next 2,400,000 cubic feet; and 9 cents per M cubic feet for all gas used over 3,000,000 cubic feet, to be computed monthly. From the judgment thus approving and confirming the rates of the Corporation Commission an appeal has been duly prosecuted to this court.
Appellants insist upon a reversal of the judgment because it was rendered without a trial upon the record presented to the Corporation Commission. Appellee’s insistence is that the appellants cannot be heard to complain because the declaration of law requested by appellants and refused by the court, as well as the declaration of law given by the court, were not brought into the record by a bill of exceptions. Also because a motion for new trial was not filed. A number of cases are cited by learned counsel for appellee holding that facts proved or admitted on the trial and declarations of law made 'by the court upon them must be brought into the record by a bill of exceptions. Hall v. Bonville, 36 Ark. 491; Bradley v. Harkey, 59 Ark. 178; Dunnington v. Frick Company, 60 Ark. 250. These cases have application where there has been a trial, but none where a trial had been Jrefused or denied, as in the instant case. Declarations of law erroneously refused and given in the absence of a trial are necessarily in the same category as demurrers erroneously sustained or overruled by the .court. Such |errors appear on the face of the record, and consequently do not have to be brought into the record by a bill of exceptions. Following the same line of rea soiling, a motion for new trial was unnecessary, as the court refused to try the case in accordance with the mandate. Until there had been a trial, a motion for a new trial could have no place. As it was unnecessary to file a motion for a new trial or to bring the declarations of law refused and 'given by the court into the record by a bill of exceptions in the instant case, in order to prosecute an appeal to this court, no useful purpose would be served by construing section 28 of act 571 of the Acts of the General Assembly of 1919, providing a remedy by appeal to the Supreme Court of Arkansas from the judgment of the circuit court.
The error of the trial court in denying appellants a trial upon the merits grew out of a misinterpretation of the following language used by the court in the opinion handed down on the former appeal of the case, to-wit: “The testimony adduced by appellant tends to establish the fact that the rates specified in these contracts with the parties mentioned is not remunerative, and the evidence is sufficient to support the finding of the Commission fixing the rate at approximately nine cents per thousand cubic feet for use by the manufacturing plants.” In. using the language quoted the .court had reference to the legal sufficiency of the evidence to support the finding of the Commission, and had no reference whatever to the weight of the evidence. The cause was remanded for the court to determine the reasonableness of the rates fixed by the Commission upon the weight of the evidence. The law of the case, as declared by this court on the former appeal, is that both parties, appellants and appellee, are entitled to a trial by the circuit court on the issue as to the reasonableness of the rates fixed by the Commission upon the' evidence presented to the Commission. This can only be done by hearing the evidence and determining from' the weight thereof whether the rates fixed by the Commission are reasonable. In other words, this court ruled on the former appeal that the rates fixed by the Commission did not bind the circuit court.
For the error indicated, the judgment is reversed and the cause remanded, with directions to the circuit court to determine from the weight of the evidence presented to the Corporation Commission whether the rates fixed by the Commission are reasonable. | [
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Hart, J.
(after stating the facts). The chancellor found the facts tó be that Erganbright owed Rachels $3,840 on account of the land deal and in payment of his legal services; but further found that there was no indebtedness for the $2,500 fee charged by Rachels for his services in a threatened suit against Erganbright to oust him from his position as director on a levee and drainage board.
It will be noted that the settlement between Erganbright and Rachels on the 29th day of May, 1920, was made on the basis that Erganbright owed the $2,500 fee. The face value of the Ladd notes was $6,650, and Rachels considered them good for his indebtedness, which he claimed to be $6,340. One of the Ladd notes was for $3,000 and was due within a few days after the settlement was made.
The chancellor did not allow Rachels any fee for his services in the threatened proceedings against Erganbright relative to his removal as a levee and drainage commissioner, and the correctness of the chancellor’s decision depends largely upon the correctness of his finding in this matter. The reason is that Erganbright and Rachels both considered this fee as being due in making the transfer of the notes. At that time Erganbright was largely indebted to the bank, and he had no right to transfer his assets, except in payment of debts which he actually owed.
Of course, as between Erganbright and Rachels, they had a right to make a contract for the payment of whatever fee they might agree upon. We have no concern about that. But the rights of creditors have intervened, and they may question the reasonableness of the fee. If the fee was unreasonable or not due, this would to that amount deprive them of assets of Erganbright which they might, through the receiver, subject to the payment of their claims.
It will be noted that Erganbright employed Rachels about the drainage matter on the 26th day of April, 1920, and that he disappeared on June 2, 1920. It is true that the record shows that Rachels represented Erganbright in the county court about the matter, but it does not disclose what proceedings were actually taken. The testimony is vague and indefinite about the whole matter. In making his finding the chancellor had a right to consider the relationship between the parties, the' reasonableness of the employment, the amount or importance of the subject-matter1 of the suit, the degree of responsibility involved, and the time and labor bestowed. There is no fixed standard by which such services can be determined, and the court may apply to the testimony its own experience and knowledge of the character of such services. Jacoway v. Hall, 67 Ark. 340, and Sain v. Bogle, 122 Ark. 14, and cases cited.
The value of the plaintiff’s services in the instant case is a matter with which the chancellor must necessarily have been familiar. The whole proceedings regarding the insolvent bank were before him. This included the relationship of Rachels to Erganbright as attorney and also their relationship to the bank. "When the court is informed of the nature and extent of such services, its own experience furnishes it with an important element necessary to fix their value.
The amount fixed by the chancellor was deemed by him as sufficient payment for all the services rendered by the attorney. This was necessarily the result of his finding as a whole. The chancellor found that the attorney had, under all the facts and circumstances of the case, received adequate compensation, and when we consider his knowledge of the extent and character of such services, it can not be said that his finding of fact in this respect is against the preponderance of the evidence.
Therefore, under the settled rules of this court, the finding of fact cannot be disturbed on appeal.
Again it is insisted that the chancellor should only have charged Rachels with the difference between $3,840, the amount of fees allowed him, and $4,500, the amount which Rachels actually received on the Ladd notes. It will be remembered that the court charged him with the difference between $3,840 and the face value of the Ladd notes.
The creditors had nothing to do with Rachels settling with Ladd for $4,500. One of the notes for $3,000 was due at the time. It will be noted that Rachels only received this amount in cash and took a note for the remaining $1,500. The creditors had nothing to do with this transaction. -This settlement between Erganbright and Rachels was on a basis that Erganbright owed Rachels $6,340 and the face value of the notes was $6,650. They bore 8 per cent, interest, and the parties settled on the basis that the notes were about worth their face value. Therefore, we do not think the court erred in charging Rachels with the difference between the amount allowed him and the face value of the notes. He can not escape liability on the ground that he settled with Ladd for the notes for a much less sum than their face value.
It follows that the decree must be affirmed. | [
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Wood, J.
The appellant was convicted on an indictment which charged him as follows:
“The said Crock Warren, in the county and State aforesaid, on the 19th day of October, 1921, on his examination as a witness before the grand jury duly selected, impaneled, sworn and charged to inquire in and for the body of the county of Polk at the October term of the circuit court of said county, of which said grand jury J. E. Williams was duly appointed foreman, and thereby duly authorized and empowered to administer oaths to witnesses before said grand jury; the said Crock Warren was duly sworn to testify the truth, the whole truth and nothing but the truth by the said J. E. Williams as foreman of said grand jury aforesaid, on the examination of a certain matter and charge by the 'State of Arkansas against certain parties whose names were to the grand jury unknown, for violating the liquor law during the year 1921, then pending before the grand jury aforesaid, the said Crock Warren feloniously, wilfully, falsely and corruptly testified that he did not have any intoxicating liquors on his person or in his possession at the time he was arrested in said county on or about the 13th of October, 1921, and that he had not had any whiskey in Polk County in the last twelve months; that the matter so testified was material, and said testimony was wilfully and corruptly false; the truth being that the said Crock Warren did have on his person and in his possession intoxicating liquors at the time he was arrested by Doug Walker as aforesaid, and had on various occasions drunk intoxicating liquors in this county within the last twelve months,” etc.
The appellant demurred to the indictment, and the demurrer was overrruled. Appellant also moved to arrest tlie judgment, which motion was overruled. He duly saved his exceptions to these rulings of the court.
Doug Walker testified that he was deputy sheriff. He arrested Crock Warren and some others for some disturbance. At the time Warren had in his possession a soda-pop bottle of whiskey. Witness could smell whiskey on his breath. This was about the 12th of October, 1921. Witness asked Warren where he got the whiskey and he replied: “I got it from a fellow down here a while ago about like you.” Warren was coming up the road at the time he was arrested.
J. E. Williams testified that he was foreman of the grand jury, and as such administered the oath to Crook Warren, who was called as a witness before the grand jury. The grand jury was investigating certain violations of the liquor law in the settlement where Warren lived. The grand jury had information that Warren had whiskey in his possession when arrested and that he had drunk some whiskey the last year. He was asked where he got the whiskey he had on him, and he stated that he had not had any whiskey in twelve months, and did not ■have any when he was arrested. Warren was informed that he could not be indicted on his own statement. The grand jury was trying to find out from whom Warren bought the whiskey. It had no information that any particular person had pold Warren whiskey. Warren was asked whether he had bought whiskey from anybody within the last three years. They had information at the time that considerable whiskey was being drunk in the settlement where Warren lived, and Warren was the man they were investigating when they had him under oath. They were attempting to learn from whom he had bought the whiskey and where he got it. They were asking him concerning himself and others. Witness was asked this question: “You were not then in fact investigating any certain parties when you had him in the grand jury room with reference to selling whiskey, were you?” and answered, “None but him.”
Warren testified that when Doug Walker arrested him he did not have any whiskey and Walker did not take any whiskey from him.
Amos Musgrove testified that he got in the car about three-quarters of an hour after Warren was arrested and at that time he smelled whiskey on Warren’s breath.
Among other prayers for instructions, the appellant asked the following: “You are instructed that you cannot convict the defendant upon the evidence of the witness Doug Walker, unless you believe his evidence is corroborated by other evidence showing that the defendant had whiskey in his possession at the time he was arrested.” The court refused to grant the prayer as offered, but modified it by striking out the following words, “showing that the defendant had whiskey in his possession at the time he was arrested.” The instruction as thus modified was given. The appellant duly objected and excepted to the ruling of the court. Other prayers of appellant for instructions were refused. These instructions it is unnecessary to set forth. The court also gave certain instructions at the instance of the State which it is unnecessary to set out. The trial resulted in a judgment sentencing the appellant to imprisonment in the State Penitentiary for the period of one year, from which judgment is this appeal.
1. The first ground of appellant’s demurrer to the indictment is “that the indictment on the face of it shows that the defendant was indicted for alleged false swearing before the grand jury upon a matter that the grand jury was investigating with'reference to the defendant, and the indictment fails to allege that the defendant voluntarily appeared and offered his evidence on this question that is alleged to be false. ’ ’ To sustain his contention the appellant relies upon the case of Claborn v. State, 115 Ark. 387-391, where we said: “An indictment, for perjury based upon alleged false swearing in a criminal proceeding pending before the grand jury against the person himself giving the alleged false testimony is fatally defective unless it alleges that the accused voluntarily appeared before the grand jury to give the testimony upon which the indictment for perjury is predicated.” But the above case has no application here, for the reason that the indictment in the present case does not show that appellant was called to testify as a witness before the grand jury on a charge against appellant himself then pending before and under investigation by the grand jury. On the contrary, the allegation is that the appellant was sworn “to testify the truth, the whole truth and nothing but the truth * # * on the examination of a certain matter and charge by the State of Arkansas against certain parties whose names were to the grand jury unknown, for violating the liquor law during the year 1921, then pending before the grand jury,” etc.
The allegations of this indictment show that the grand jury had under consideration the investigation of charges against certain parties whose names were to it unknown, for violating the liquor law during the year 1921. This allegation could not have had reference to the appellant, for he was called as a w;tuass and 'his name was known to the grand jury. State v. Roberts, 148 Ark. 328.
The second ground of the demurrer is “that the indictment contained matter which is a legal defense or bar to the prosecution, in that defendant is indicted for testifying falsely about himself.” The allegations of the indictment show that the grand jury had under investigation, as we have stated, charges against certain persons whose names were to the grand jury unknown for violations of the liquor law during the year 1921. Section 14 of act 13 of the Acts of 1917, commonly known as the “bone dry” statute, provides as follows: “That no person shall be excused from testifying before the grand jury, or on the trial in any prosecution for any violation of this act; but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”
Under the above statute the appellant could not refuse to answer questions concerning the violation of the liquor law during the year 1921, giving as his reason for such refusal that the answers to the questions propounded to him would show that he himself had violated the liquor law during that year. The statute above quoted gives him complete immunity from prosecution for any offenses in violation of the liquor law which his own testimony might disclose.
In State v. Roberts, supra, we said: “Under our statutes the grand jury has general inquisitorial powers without being confined to any particular matters submitted for investigation, and, according to the allegations of the complaint (indictment) in this case, the grand jury was pursuing such investigations in propounding the inquiry to the defendant. The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution'of a charge against himself.” Citing Crawford & Moses’ Digest, § 3122; State v. Bach Liquor Co., 67 Ark. 163; Ex parte Butt, 78 Ark. 262. § 3122, C. & M. Digest, is analogous to § 14 of act 1, Acts 1917, supra.
It follows that the indictment is not defective because it alleged that the appellant “feloniously, wilfully, falsely and corruptly testified that he did not have intoxicating liquor on his person or in his possession at the time he was arrested in said county on or about the 13th of October, 1921, and that he had not had any whiskey in Polk County in the last 12 months,” without alleging further that appellant voluntarily so testified.
The above allegations were sufficiently definite, and if appellant’s testimony was false, as alleged, and truthful answers would have disclosed that he did have liquor in his possession and on his person at the time alleged, then the grand jury by further questions, if truthfully answered by appellant, might have elicited facts showing violation of the liquor law by certain other parties during the year 1921 whose names were unknown to the grand jury. A truthful answer to the question propounded might have led to a disclosure of these names and to facts showing violations by them of the liquor law during the period mentioned.
2. The appellant contends that the verdict is contrary to the evidence and to the law. The testimony, giving it its strongest probative force in favor of the State, only tends to prove that appellant himself was in possession of intoxicating liquor on the highway. Appellant contends that such testimony does not prove that tlie alleged false testimony given by the appellant before the grand jury to the contrary was material, because under the law the alleged false testimony involved only an offense committed by himself, and it is not alleged and proved that such testimony was given voluntarily. In State v. Roberts, supra, the court said: “Of course, on a trial of the case it would devolve on the State to show the materiality; and if it appears from such proof that the accused himself was the sole offender in the transaction under inquiry, then his false testimony would not constitute perjury under the statute, unless it further appears that he waived his privilege by voluntarily giving the testimony. ’ ’ That was an appeal by the State from the judgment of the trial court sustaining a demurrer to the indictment. One of the grounds of the demurrer was that the indictment failed to charge that the accused appeared before the grand jury and voluntarily gave the testimony set forth in the indictment. We held that the indictment was not defective because it failed to contain such allegation. Therefore, what the court said, supra, as to the necessity of proving the materiality, although germane to the discussion, was unnecessary to the decision. Moreover, our attention was not directed in the case of State v. Roberts to § 14 of act 13 of the Acts of 1917, supra.
It follows from what we have already said concerning this statute that it was unnecessary to allege .and prove that the appellant voluntarily appeared before the grand jury and gave his testimony, because it was alleged in the indictment that the grand jury had under investigation charges concerning the violation of the liquor law during the year 1921 by parties whose names were unknown to the grand jury, and under the above statute the appellant could not refuse to testify before the grand jury because the statute gives him complete immunity from prosecution for offenses discovered through his own testimony. Furthermore, as we have seen, the testimony was material because, if the appellant did have in his possession intoxicating liquor at the time of his arrest and had testified to that effect before the grand jury, such testimony would have provoked further questions which doubtless would have discovered the names of those from whom appellant obtained the whiskey, and in what manner, and for what purpose he obtained the same, etc. The testimony was very material to the investigation which the inquisitorial body was making as to the alleged violations of the liquor law during the year 1921 by certain parties whose names to it were unknown and whose names they were endeavoring to ascertain.
The evidence was sufficient to sustain the verdict, and the court did not err in refusing any of appellant’s prayers for instructions. In view of the above discussion, it becomes unnecessary to set out in detail and comment upon the various prayers of appellant for instructions which the court refused to grant. Such of these prayers as were correct were covered by the instructions which the court gave.
3. The court did not err in refusing to grant appellant’s prayer for instruction No. 6, nor in modifying and giving the same as modified. It is a well established doctrine in this State that a conviction on a charge of perjury cannot be had on the evidence of one witness unless the material testimony of such witness tending to prove the crime charged is corroborated by direct testi mony of other witnesses, or by circumstances. Lamb v. State, 135 Ark. 275, and other cases there cited.
The witness Doug Walker testified that the appellant, when arrested, had in his possession a soda-pop bottle of whiskey; that he asked the appellant where he got the whiskey and appellant replied, “I got it from a fellow down here a while ago about like you. ’ ’ Bud Nichols and Joe Reynolds were present at the time. The bottle of whiskey which Walker took from the appellant was identified and exhibited to the jury.
Joe Reynolds testified that he was present when the appellant was arrested about ten feet from the officer. He never saw the officer take any whiskey off of appellant —was not where he could see. He heard the officer say. “What is this?” and heard appellant say, “I got it off of a fellow that looked just like you,” or something like that.
Witness Musgrove testified that in about three-quarters of an hour after appellant was arrested he got in the car and smelled whiskey oh appellant’s breath, and that he did not smell whiskey on any one else’s breath.
The above testimony tended to corroborate the testimony of the witness Walker to the effect that the appellant was in possession of whiskey at the time of his arrest. The appellant’s prayer for instruction No. 6 was therefore abstract because it made an issue as to whether there was any evidence corroborating the testimony of witness Walker. To be sure, the appellant had the right to challenge the weight and sufficiency of the evidence; but if his prayer for instruction No. 6 had been granted, appellant could have argued to the jury that there was no testimony at all tending to corroborate the testimony of Walker, towit: that the appellant at the time of his arrest was in possession of whiskey. Furthermore, the prayer for instruction No. 6 as asked by the appellant was argumentative and calculated' to mislead the jury, because, if the prayer had been granted as asked, the appellant would have been justified in arguing to the jury that some witness besides Walker would have had to testify affirmatively that .appellant had whiskey in his possession at the time of his arrest. Whereas, the corroboration was sufficient if there was any other evidence, direct or circumstantial, tending to prove that appellant had whiskey in his possession when he was arrested. The prayer for instruction as modified and given was more favorable to the appellant than he had the right to ask or expect. If counsel for appellant conceived that the instruction as modified .and given was calculated to mislead the jury by causing them to believe that it was sufficient if the testimony of Walker was corroborated in immaterial matters, such as they here argue in their brief, then it was their duty to direct the attention of the trial court to these immaterial matters by a specific objection, which they did not do. The instruction, while abstract, was not inherently erroneous.
The record presents no reversible errors, and the-judgment is therefore affirmed. | [
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Hart, J.
(after stating the facts). The suit is based upon sec. 5446 of Crawford & Moses’ Digest, which is as follows:
“All contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them with good and sufficient security in an amount to be fixed by the board of commissioners, and said bond shall contain an additional obligation that such contractor, or contractors, shall promptly make payment to all persons, supply him, or them, labor and material in the prosecution of work provided for in such contract. Suit may be brought by and in the name of the district upon the bond given to the board. Any person, individual or corporation supplying labor and material shall have the right of action, and shall be authorized to bring suit in the name of the district for his, their or its use and benefit against said contractor and surety, and to prosecute same to final judgment and execution, but such action and its prosecution shall involve the district in no expense whatsoever.”
The section in question is a part of our general statute relating to road improvement districts. The section provides that all contractors shall be required to give bond for the faithful performance of their contracts with security in an amount to be fixed by the board of road commissioners. The section then provides that the bond shall contain an additional obligation that such contractors shall pay all persons supplying labor and materials in the prosecution of the work. It then provides that suit may be brought by and in the name of the district upon the bond given to the board. It provides further that any person supplying labor and materials shall have a right of action and shall be authorized to bring suit in the name of the district for his use against the contractor and his surety.
Continuing, the section provides that such person may prosecute his suit to final judgment and execution, but that the prosecution shall not involve the district in any expense.
The effect of this is to give the district a right to bring suit against the contractor and his surety for a breach of contract for the construction of the road. This part of the statute is for the benefit of the road district and gives it a right of action for the nonperformance of the contract by the contractor, or for a breach thereof by him.
The second condition of the bond is for the benefit of those furnishing material and labor used in the construction of the improved road. The statute in express terms gives such persons a right of action against the contractor and his surety. It is true that the statute provides that the suit may be brought in the name of the district, but it also expressly provides that such action shall not involve the district in any expe'nse. This shows that the Legislature intended that each person furnishing labor or material, which is used in the construction of the road, shall have the control of the action against thé contractor and his surety, and the various suits are separate and distinct causes of action against the contractor and the surety on his bond. Each person furnishing labor or material to be used in the construction of the road acts independently of the others, and the various contracts are necessarily separate and independent agreements. A person who furnishes material under a contract made with the contractor or one of his subcontractors has no relation whatever to a person furnishing materials under another contract. So, too, different persons performing labor on the road under separate contracts have no relation to each other. Each person who brings himself within the provisions of the statute in making a contract has a right of action thereunder in the name of the district, but such action is for his own benefit and is separate and distinct from all other persons claiming rights under different contracts. Such is the effect of our construction of a similar statute in Oliver Construction Co. v. Williams, 152 Ark. 414, and Arkansas Road Construction Co. v. Evans, ante p. 142.
The action was commenced in the circuit court, and, since each cause of action was a separate one and was for less than the sum of $100, the circuit court had no jurisdiction of the subject-matter of the action. Schaap v. First National Bank of Fort Smith, 137 Ark. 251, and S. A. Robertson & Co. v. Lewis Rich Const. Co., 151 Ark. 557.
According to the allegations of the complaint each party had a separate cause of action, and the circuit court was without jurisdiction of those where the amount sued for was less than $100.
Therefore, the court erred in not sustaining the demurrer to the complaint, and for that error the judgment will be reversed and the cause remanded for further proceedings according to law. | [
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Wood, J.
This action was instituted by the appellee against the appellant, the Missouri Valley Bridge & Iron Company, a Kansas corporation. The appellee alleged that on the 13th day of January, 1921, the corpora tion was constructing a barge on the Arkansas River at the foot of North Commerce Street in the city of Little Rock, Arkansas; that the appellee was an employee of the corporation as foreman in charge of a crew of workmen upon said barge; that while so employed the appellee, on account of the carelessness and negligence of the corporation and one of its employees, a, member of the crew, was struck on the right leg with a sledge-hammer and painfully and permanently injured; that the corporation’s employees were engaged in constructing a deck or floor upon the corporation’s barge out of heavy timbers or planks, which were being fastened down with spikes; that while appellee was directing the work one of the workmen, named Winkler, carelessly and negligently allowed the sledge-hammer to slip and fly from his hand and strike appellee on his right leg with great force. The appellee then alleges the nature of the injury and its effect upon him, and by reason thereof he alleges that he was damaged in the sum of $25,000, for which he prayed judgment.
The corporation answered, denying all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk, and further alleged “that, if the plaintiff was injured at the time and in the manner alleged in his complaint, he was injured while working on the Arkansas River, a navigable stream, and doing work and labor on a barge in said stream, as was also Winkler, and this defendant says that it was in no way liable for an injury resulting as alleged in plaintiff’s complaint.”
The testimony on behalf of the appellee tended to prove that in January, 1921, the appellee was the foreman of a barge crew of six or eight men who were at work on a barge for the corporation in the Arkansas River. The appellee directed Winkler, one of the crew, to drive a plank end-ways in order to make the joint a little tighter. Winkler, while doing this, let the maul slip from his hand, which struck the appellee, and he went off of the barge limping and said he was hurt. In order to drive np the plank, it was necessary for Winkler to strike pretty hard blows. Winkler, at the time, was standing astride the plank striking the end of the same between his legs. The appellee was standing at the other end of the plank right over the joint which he was having dosed.
The appellee himself testified substantially to the same effect as the above. He stated that he was standing over the joint watching that all the time, and his attention for the moment was directed to another man of the crew to whom he had given some directions, and all of a sudden the hammer flew out of Winkler’s hand and struck the appellee. He described where the hammer struck him and the nature of the injuries which it produced, and which it is unnecessary to detail.
Winkler testified on behalf of the appellant to the effect that he was employed by the appellant and working with the barge crew under the direction of the appellee. He hit the end of the plank to drive the same up. It was a cold morning and frosty, and the handle was slick, and witness’ hands were numb. Witness did not have any gloves on, and the hammer slipped out of his hands. He was doing the work in the usual way except he was standing straddle of the maul striking with the same between his legs. Witness had been a carpenter for five years and was exercising the same care that he was in the habit of exercising in that sort of work — was trying to hit the plank, and missed it. He didn’t intend to turn it loose. It was about noon, and the day was cloudy. It was an ordinary hammer in common everyday use — an eight-pound maul.
Among other instructions given at the request of the appellee the court gave the following:
“No. 1. If the plaintiff, L. V. Malone, was in the employ of the Missouri Valley Bridge S¿ Iron Company, at work in the construction of a barge for the defendant, in the performance of his duty, and was using due care for Ms own safety, and had not assumed the risk and was injured by want of ordinary care of the defendant, then the plaintiff is entitled to recover. It is for you to say, from all of the evidence in the case, whether plaintiff was injured by any failure on his part to perform his duty while at work on said barge, and whether he was exercising due care for his own safety or had assumed the risk at the time of the injury, also whether the defendant or its agents and servants failed to exercise ordinary care to protect Mm iron, danger alleged in the complaint while in the performance of his duty, and whether such want of ordinary care, if so shown, was the proximate cause of the injury.”
“No. 2. While the servant assumes all the ordinary risks incident to his employment, yet a duty rests upon the company to commit no act of negligence whereby he may suffer injury and to exercise ordinary care to protect him from danger, and in this case, if you find from a preponderance of the evidence that the plaintiff was engaged in the performance of his duties at work in the construction of a barge for the defendant, and that one of the defendant’s agents and servants, who was at work upon the floor of said barge, while driving a piece of the decking in place with a top maul, let the mául slip- from Ms hand, and that said maul struck the plaintiff and injured him, and that the defendant thereby failed to exercise ordinary care to protect plaintiff from danger alleged-•in the complaint, and that the act of the said agent and servant of the defendant in letting said maul slip from his hand was the proximate cause of the injury, and that plaintiff at the time was exercising ordinary care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff and assess his damages at such a sum as will, from the evidence, fully compensate him for the injuries received. ’ ’
The court gave the above and other instructions at the instance of the appellee, which authorized the appellee to recover if the jury found that the alleged injury was caused by the negligence of a fellow-servant.
At the instance of appellant the court granted, among others, the following prayer for instruction:
“No. 12. You are instructed that the master is not an insurer of the safety of the servant, and the mere fact that there was an accident, and that plaintiff was injured thereby, is not sufficient to justify a recovery, but, before you could find a verdict against the defendant, the plaintiff would have to -show by a fair preponderance of the evidence not only that plaintiff was in the employ of defendant, and that he was injured by the act of another servant of defendant, but he must also show by a fair preponderance of the evidence that the injury was caused by the negligence of the fellow-servant ; and if he fails to show any of these facts by a fair preponderance of the evidence, your verdict must be for the defendant.”
The appellant asked the court to instruct the jury to the effect that if the appellee and Winkler were fellow-servants appellee could not recover for an injury to him causfed by the alleged negligence of Winkler. The jury returned a verdict in favor of the appellee in the sum of $8,000. Judgment was rendered in favor of the appellee for that sum, from which is this appeal.
1. Section 256 of the Federal Judicial Code provides in part as follows: “The jurisdiction vested in the courts of the United States in the eases and proceedings hereinafter mentioned shall be exclusive of the courts of the several States * * * * of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is-competent to give it.”
The appellant contends that under the above section appellee cannot maintain this suit because the injury occurred on a barge in the Arkansas River, a navigable stream, and because, under the rules of the common law, one servant cannot recover damages from the master for injuries done through the negligence of a fellow-servant.This contention cannot be sustained for several reasons. First, the above section has no application. The barge on which the alleged injury occurred is not alleged and proved to be a vessel engaged in commerce and navigation. This was essential to bring the appellee’s cause within the admiralty and maritime jurisdiction. See Peoples v. Steamer America, 34 Cal. 679; 1 C. J. p. 1251, § 16.
In the second place, if the appellant had alleged and proved that the barge, at the time of appellee’s injury, was engaged in commerce and navigation on the waters of the United States, then sec. 8337 (a) of the United States Compiled Statutes, 1916, would apply. That section provides that “in any suit to recover damages for any injury sustained on board vessel or in its service, seamen having command shall not be fellow-servants with those under their authority.”
In the third place, if the Federal court had jurisdiction of appellee’s alleged cause of action under the above section, then under the same section the State court exercising common-law jurisdiction .would also have jurisdiction of the cause, and such court should try the cause according to the rules of the State law applicable to such a tort at the time of its commission. The Judicial Code saves “to suitors in all cases the right of a common-law remedy.” 'Suitors under this statute have a remedy for their rights in a common-law court of the State under the rules of law existing when those rights accrue. Johnson v. Westfield, 135 S. W. (Ky.) 425; Walter v. Kierstead, 74 Ga. 18; Dougan v. Champlin Transportation Co., 56 N. Y. 1; Chase v. Amer. Steamboat Co., 9 R. I. 419, 11 Am. Rep. 274. See also Amer. Steamboat Co. v. Chase, 83 U. S. 522, 21 L. Ed. 369; McDonald v. Mallory, 77 N. Y. 546; 1 C. J. p. 1253. There was no error in the rulings of the court on the above question.
2. The appellant contends that the court erred in giving appellee’s prayers for instructions Nos. 1 and 2 set out above. Taken together, these instructions tell the jury that the duty rested upon the company to commit no act of negligence whereby a servant may be injured and to exercise ordinary care to protect him from danger. No issue of negligence predicated upon the failure of the appellant, its agents or servants, to exercise ordinary care to protect the appellee from dangers incident to his employment, is raised in the pleadings. It is, of course, hornbrook law that the master owes his servants the duty of exercising ordinary care to furnish him a safe place in which to work and safe implements with which to perform his duties, and the further duty of exercising ordinary care in engaging the services of those who are reasonably fit and competent for the performance of their respective duties in the common service. Nowhere is it alleged in the complaint that the appellant was negligent because it had failed to perform any of these duties. The only negligence alleged in the complaint is that “one of the defendant’s employees named Winkler carelessly and negligently allowed the sledge-hammer or top maul which he was using to slip and fly from his hand and strike plaintiff on his right leg with great force,” etc. If the servant was negligent in the manner alleged, to be sure the appellant would be liable for such negligence. Sec. 7137. Ozan Lbr. Co. v. Biddie, 87 Ark. 587; Aluminum Co. v. Ramsey, 89 Ark. 522; Missouri & N. A. R. Co. v. Van Zandt, 100 Ark. 462; Board of Imp. v. Moreland, 94 Ark. 380.
But the instructions broadly tell the jury that it was the duty of the appellant “to commit no act of negligence whereby he (appellee) may suffer injury and to exercise ordinary care to protect him from danger,” and that, if appellant failed to exercise ordinary care to protect the appellee from the danger alleged in the complaint, appellant would be liable. Instruction No. 2 above also tells the jury that if “one of the defendant’s servants * * * * let the maul slip from his hand and that said maul struck the plaintiff and injured him, and that the defendant thereby failed to exercise ordinary care to protect plaintiff from danger, to find for the plaintiff, ’ ’ etc. This part of the instruction permitted the jury to find that the appellant had not exercised ordinary care to protect the appellee from danger if his fellow-servant, Winkler, let the maul slip from his hand, whether Winkler’s act in so doing was a negligent act or not. In other words, under this part of the instruction the jury could return a verdict in favor of the appellee although it may have found that Winkler let the maul slip accidentally and without any negligence whatever. Such is not the law.
The instructions in the manner drawn were abstract, argumentative and misleading. These instructions were inherently erroneous, and a general objection to them was sufficient. However, if a specific objection were necessary, then instruction No. 12, supra, given at the instance of appellant, was tantamount to such objection. Instruction No. 12 is in conflict with instructions Nos. 1 and 2, and the charge as a whole was not consistent.
We find no other errors prejudicial to the appellant in the giving and refusing of prayers for instructions. In view of a new trial we deem it improper to set out and comment upon the testimony bearing upon the assignment that the verdict was excessive. For the error in granting appellee’s prayers for instructions Nos. 1 and 2 the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, J.
(after stating’ the facts). Counsel for the plaintiff seek to reverse the judgment on the authority of Latham v. First National Bank of Ft. Smith, 92 Ark. 315, and Gailey v. Ricketts, 123 Ark. 18. In those cases it wias held that where property is rented at the time it is conveyed, the right to receive the rent subsequently due passes to the grantee, unless the deed reserves the right in the grantor to collect and receive the rents.
The case was tried before the circuit court sitting as a jury, and those oases would have been authority for the plaintiff if the finding’ of fact by the trial court had been in his favor. According to the testimony of the plaintiff himself, while the trade for the land was practically agreed upon in the summer of 1919, it was not closed until the deed was executed and the purchase price paid on the 26th of January, 1920.
According to the testimony of the plaintiff, and of his son, payment of the rent was demanded of the defendants on the 26th day of January, 1920, and E. R. Norton, one of the defendants, told the plaintiff that he could not pay him the rent until he had procured an order to that effect from Wm. B. Schaefer. Norton himself says that he does not recollect definitely about this; but he was accustomed to paying the rent promptly as provided in the lease, in order to avoid a forfeiture of the lease. He paid Schaefer the rent for the year 1920 in order to avoid a forfeiture of the lease.
According to the testimony of Schaefer, he had collected the rent before the deed was executed and the balance of the purchase price was paid by Sachs. The parties understood that the rent was payable in advance on the 15th day of January, 1920, and that Schaefer had collected it as a part of the purchase price before the sale was finally consummated. Some time in February or March, later, he made an assignment of the lease contract to S. & E. Sachs, as directed by Lewis Sachs.
As we have just seen, the testimony for the plaintiff and the defendants as to when Schaefer collected the rent was in direct and irreconcilable conflict. The trial court settled this issue in favor of the defendants, and under1 the settled rules of practice in this State that finding cannot be disturbed on appeal.
If Schaefer collected the rent when due, he did so before he finally consummated the sale of the land to Sachs. The question of parol reservation of the rent is not involved in this appeal, as contended by counsel for the plaintiff. The rent was payable on the 15th day January in advance, and Schaefer had a right to collect the rent when it became due. He testified that he did this before he executed the deed to Sachs. This had the ef feet of severing the rent of the land for the year 1920 from the fee.
It follows that the judgment must be affirmed. | [
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McCulloch, C. J.
Appellees are citizens and taxpayers of Searcy County, and they instituted this action in the chancery court against appellant as the tax collector of that county to restrain him from collecting a road tax, alleging that it was levied by the county court without authority of a majority vote of the electors of the county as provided in the Constitution. The chancery court granted the relief prayed for in the complaint, the facts being made to appear from the records of the county, and an appeal has.been duly prosecuted.
The facts appearing from the county records are that at the preceding general election the question of road tax was submitted to the electors, and there was a majority of those voting upon the question in favor of the road tax, but not a majority of those voting at the election.
The Constitution (Amendment No. 3, adopted at the general election of 1898) provides that the county courts of the State, with a majority of the justices of the peace, may levy a road tax of not exceeding three mills on the dollar “if a majority of the qualified electors of such county shall have voted public road tax at the general election for State and county officers preceding such levy at such election.”
If the levy of the road tax by the county court was not based on the authority of a majority of the electors within the meaning of the constitutional provision, then appellees, as citizens and taxpayers, ¡have the right to restrain the collector from collecting the tax. Merwin v. Fussell, 93 Ark. 336.
The present inquiry, then, is narrowed to an interpretation of the language of Amendment No. 3 to determine what proportion of votes is required to authorize the levying of a road tax.
Counsel for appellees rely upon the case of Rice v. Palmer, 78 Ark. 432, in support of their contention that a majority of the highest number of votes cast at the election is required. The clause of the Constitution which was under consideration by the court in that case provides for the adoption of an amendment by “a majority of the electors voting at such election.” The language of the amendment now under consideration is different, for it contains no express provision that there must be a favoring majority of those who vote at the election.
The language we are now considering is quite similar to that used in the clause of the Constitution (article 13, § 3) in regard to the removal of county seats, which received interpretation by this 'court in the case of Vance v. Austell, 45 Ark. 400. That provision of the Constitution is that a county seat shall not be changed “without the consent of a majority of the qualified voters of the county,” and the language of the present amendment is that a road tax may be levied “if a majority of the qualified electors of such county shall have voted public road tax.” The similarity of the two provisions is obvious.
In Vance v. Austell, supra, the court held that under this provision of the Constitution it was only necessary to have a majority of those voting on the question of removal. In the opinion in that case it was recognized that there was a conflict in the authorities on the proper construction of similar constitutional and statutory provisions, but the following was approved as the accepted doctrine according to the great weight of authority:
“Where a statute requires a question to be decided, or an officer to be chosen by the votes of a majority of the voters of a county, this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, hut only that the result shall be decided by a majority of the votes cast.”
We think that the decision in the present case should be controlled largely by the views expressed in Vance v. Austell, supra, because of the similarity of the language used in the two provisions of the Constitution. There was nothing said in the provision dealt with in that case about the majority being of the votes cast at the election, and the provision of the Constitution now under consideration is the same in that respect. Among other authorities on this subject, the Supreme Court of the United States has given a similar interpretation to the same language as that used in the provision now under consideration. Carroll County v. Smith, 111 U. S. 556.
It has been said by this court that this “is a government of majorities,” and that in elections only a plurality of the votes on a given question are required “unless there is some contrary specification in the organic law.” Hildreth v. Taylor, 117 Ark. 465. There is, as before stated, no contrary specification in the clause of the Constitution now under consideration, and we should interpret the meaning of the language found in this clause in conformity with the rule of government by majority as expressed by those who exercise the elective franchise. In fact, the similarity of the language of that provision of the Constitution which was construed in Vance v. Austell, supra, justifies the inference that the framing and adoption of this amendment was in the light of the interpretation given to that language in the decision of this court cited above.
Our conclusion, therefore, is that Amendment No. 3 requires only a majority of those voting on the question in order to authorize the levy of a road tax, and that a majority of the highest number of votes cast at the election is not required.
The decree is reversed and the cause remanded, with, directions to dismiss the complaint for want of equity. | [
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Smith, J.
Appellee sued the Fort Smith '& Van Burén District, hereinafter referred to as the district, and the Fort Smith Light and Traction Company, hereinafter referred to as the company, to recover damages for false arrest and imprisonment. He recovered judgment in the sum of $1 against both defendants, and both have appealed.
Appellee took passage in Fort Smith for Van Burén on one of the company’s cars, and paid the fare, which is collected before crossing the bridge over the Arkansas River connecting the two cities. A different collector collects the fare over the bridge, and it is the custom for this officer to ride over the bridge on each car crossing it and to collect the fare from the passenger while doing so. This fare, if paid in cash, is five cents; but books are sold containing coupons, each' of which is good for one passage across the bridge, at a cost of one and one-fourth cents for each coupon. These coupons are void if detached, and the collectors are forbidden to accept them for fares if detached. Plaintiff, in crossing the bridge, tendered a detached coupon, which Taylor, the collector, refused to accept, and as plaintiff declined to pay the cash fare he was ejected and arrested when the car reached the Van Burén side of the river.
The plaintiff testified that, upon reaching the opposite side of the river, the car was stopped and Taylor called to one Arnold, a deputy sheriff, who appears to have been stationed on the bridge for the purpose of assisting in the collection of fares. Taylor called Arnold into the car. where plaintiff was arrested by Arnold and carried to the end of the line, and from there Arnold carried plaintiff 'before a justice of the peace, after1 having held him in custody for about two hours, and a charge of disturbing the peace by refusing to pay fare was preferred. No contention is made that plaintiff disturbed the peace or did anything else to be ejected for except to refuse .to pay the bridge fare; and the charge preferred before the justice of the peace was later dismissed. When Arnold took plaintiff into custody, he asked him pleasantly if he was about to make a test case, and plaintiff disclaimed any such purpose.
The bridge over which the company operates its cars was built by an improvement district under an act of the General Assembly, which has been construed by this court in the cases of Shibley v. Ft. Smith & Van Buren District, 96 Ark. 410; Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194; Ft. Smith Light & Traction Co. v. Williams, 149 Ark. 159.
Theie was offered in evidence the contract under which the company acquired the right to use the bridge in crossing the river. The principal provisions of this contract are set out in the case of Ft. Smith Light & Traction Co. v. Williams, supra, and need not be repeated here. In construing the contract in that case we said:
“We shall not undertake to analyze and comment upon the various provisions of the contract. It evidenced an agreement by which the bridge district is to receive a certain sum of money from the traction company for the right granted the latter to run its cars for the transportation of passengers over the bridge. The original act expressly authorized the bridge district to charge the traction company for its right-of-way over the bridge. Nakdimen v. Ft. Smith & Van Buren Bridge District, 115 Ark. 194. By the same token the traction company, having thus acquired the right-of-way over the bridge, could exercise it with' all of its privileges, one of which was to charge passengers who used its facilities. The amount charged the traction company by the district is a definite and fixed sum ascertained and measured by the number of passengers which the traction company transports in its cars over the bridge and the amount which the traction company charges each passenger for such transportation. The traction company is a common carrier, and had a right to charge those whom it transported on its cars across the bridge according to the tariff of rates filed with the Corporation Commission. Act 571 of the Acts of 1919, p. 411, secs. 5, 6 and 7. See Helena Water Co. v. Helena, 140 Ark. 597. The money derived from this source, through the sale and use of tickets, and by the payment and collection of the cash fares in the absence of tickets, was primarily the property of the traction company and not of the bridge district. It became the property of the bridge district only because under the terms of the contract the traction company agreed to let the bridge district collect and use it in payment for the right-of-way privilege granted the traction company by the bridge district, and because the 'bridge district agreed to accept it as such.”
It is true the contract provides that the district shall employ and control and discharge the officers who collect the bridge fares; but this is done for the benefit of both defendants. In fact, the contract requires the traction company to assist in the collection of the bridge fares, and to furnish free transportation to the officers collecting them, and to pay $50 per month when only one collector is employed and to pay $100 per month when two are employed. In other words, the traction company is the carrier which renders the service for which the charge is made, and it makes the charge; but the fare is collected by the district for its use and benefit and as rental for the use of the bridge.
Under these facts we are of opinion that the officers engaged in collecting the fares are the servants of both defendants, and ordinarily each defendant would be liable for the conduct of these agents while acting within the line of their duty and within the scope of their authority. But it appears from the decisions of this court above cited, construing the act creating the bridge district, that the district is one of those agents of the State to which certain powers and duties of a public nature have been delegated and which can exercise only the corporate functions which the State 1ms expressly conferred upon them. Of such district it was said in the case of Board of Improvement Sewer District No. 2 v. Moreland, 94 Ark. 380: “Public quasi corporations are created with’limited statutory powers, and the general rule, as respects the question of liability to individuals for the negligence of their officers or agents, is that no such liability attaches unless expressly provided by statute. 1 Beach on Public Corporations, §§ 4, 262, 263; Mahoney v. Boston, 171 Mass. 427.” Other cases to the same effect are: Jones v. Sewer Imp. Dist., 119 Ark. 166; Harnwell v. White, 115 Ark. 88; Wood v. Drainage Dist., 110 Ark. 416; Eickhoff v. Street Imp. Dist., 120 Ark. 212; Browne v. Bentonville, 94 Ark. 80.
On behalf of the company it is not only insisted that the officers making the arrest were not its employees, but that, even if they were, such action was beyond the scope of their authority.
It may be first said that the defendants had the right to use the coupon books and, in consideration of the reduced rate at which they were sold, to provide that the coupons would not be accepted if detached. 2 Michie on Carriers, § 2224. The opinion in the Williams case, súpra, recognizes that right.
It may also be said that, as an incident to the right to collect fares, the right existed to eject a passenger who refused to pay. The plaintiff had no right to use the detached coupon which he presented in payment of his fare, and as he refused to pay the ¡cash fare the de-" fendants had the right to eject him from the car. But the failure to pay the fare is not made a violation of the law, and there was no authority to arrest plaintiff. In other words, plaintiff’s cause of action must be predicated upon the arrest, and not upon the ejection.
The liability of a carrier for the act of its employee in causing the arrest of the passenger has been several times considered by this court. See Dickinson v. Muse, 135 Ark. 76, and the cases there cited. In both the Muse case, swpra, and the case of St. L. I. M. & S. R. Co. v. Waters, 105 Ark. 619, this court quoted as a correct declaration of the law a syllabus from the case of Little Rock Ry. & Elec. Co. v. Dobbins, 78 Ark. 553, which reads as follows: “A street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding; but not for such conductor’s subseqent acts in prosecuting the passenger for a breach of the peace, such prosecution not 'being within the scope of the conductor’s authority.”
In the Dobbins case, as well as in the later cases which cite and follow it, it is made clear that a carrier is not liable for the action of its employees in authorizing arrests and prosecutions of persons who have been ejected or refused passage. But, if the passenger is ejected by being arrested, then the carrier is liable for that action if the arrest itself is unauthorized. It was so expressly held in the Dobbins case, supra, where it was said: “The evidence, so far as it related to the arrest of the appellee on the car by the policeman at the request and direction of the conductor, was proper, for this was the method adopted by the conductor for the ejectment of appellee from the car, and was therefore an act in the scope of the conductor’s employment.”
Plaintiff in the instant case was ejected by being arrested. It was within the scope of the collector’s authority to eject him, and the company is theref ore liable for the improper method employed in discharging the duty of ejecting the passenger.
The judgment against the district is reversed and dismissed. The judgment against the company is affirmed.
The chief justice dissents as to the order affirming the judgment against the defendant Fort Smith Light and Traction Company. | [
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McCulloch, C. J.
The tract of land in Ouachita County, containing 160 acres, which is the subject-matter . of the present litigation, was originally owned by Beauregard McGe'hee, a colored man, who received a patent from the United States and who occupied the land as a home and cultivated it as a farm.
Appellees assert title to the land under a conveyance from McGehee, and appellants claim title under a mortgage or deed of trust, alleged to have been executed by McGehee and wife in the year 1910, and under a foreclosure deed pursuant to the powers contained in the said deed of trust.
A firm of merchants doing business under the name of Watts & Bro. were the holders of the deed of trust alleged to have been executed by McGehee and wife.
This is an action instituted by appellees to cancel the mortgage to Watts & Bro. and the foreclosure deed pursuant thereto. They allege that the deed was not signed by McGehee’s wife, which rendered the mortgage void, as the land constituted McGehee’s homestead.
The mortgage was dated April 29, 1910, and was to secure a debt in the sum of $425, evidenced by a promissory note. The names of both McGehee and his wife, Amanda, were signed to the note as well as to the mortgage, and the signatures were witnessed by a notary public, R. C. Lockett, before whom the acknowledgment appears to have been taken. The deed was immediately placed of record. P. Lynch Lee was named in the deed as trustee, and power was conferred upon the trustee to sell in default of payment of the debt. The deed also contained a provision authorizing the holders of the debt to substitute and appoint a trustee to act in the place of Lee in the event of the latter’s death, disability or refusal to act.
Lee died in the year 1911, and the foreclosure was made by a substituted trustee, one Walker. The sale was made by Walker on April 7, 1914, and a deed was executed by him to the purchasers on the same day.
There was a written indorsement on the mortgage, dated April 7, 1914, appointing Walker as substituted trustee, and this writing is signed by Watts & Bro., the holders of the, note.
The land was purchased at the sale by Watts & Bro. and subsequently sold to other parties, who were made defendants and are now the appellants in this appeal.
McGehee continued to reside on the place for two years after the sale and paid rent to Watts & Bro. He removed from the land in the latter part of the year 1916 or the early part of 1917, and has not resided on the land since then. He executed a quitclaim deed to A. W. D. Overton on May 11, 1920, reciting a cash consideration of ten dollars paid, and other considerations not disclosed. Overton executed conveyances covering his interest in the land to his co-appellees, and this suit was instituted by them on July 5, 1920.
Appellants, who purchased from Watts & Bro., entered into possession of the land and made valuable improvements thereon between the dates of their respective purchases and the execution of the deed by McGehee to Overton.
There are two issues of fact in the case, one of which relates to the validity of the mortgage, or deed of trust, and the other to the validity of the foreclosure.
It is conceded that the land in controversy was Mc-Gehee’s homestead, and there is an issue of fact whether or not his wife signed the mortgage. If she did not sign it, the instrument was void under the statute which declares that all instruments affecting the homestead are void unless signed by the wife. Crawford & Moses’ Digest, § 5542.
The other issue relates to the question whether or not notice of the foreclosure was given.
A certificate of acknowledgment was appended to the mortgage, and it was duly placed of record, and this made a prima facie case of the proper execution of the deed Crawford & Moses’ Digest, § 1532; Polk v. Brown, 117 Ark. 321; Nevada County Bank v. Gee, 130 Ark. 312.
The burden of proof, therefore, rested upon appellees to prove that the deed was not executed or acknowledged by McGehee’s wife. The court made an express finding on this issue of fact, as recited in the decree, and found that the deed was executed and acknowledged by McGehee’s wife, and that it was a valid mortgage. The question for us to determine is whether or not this finding of the chancellor was against the preponderance of the testimony.
McGehee and his wife both testified that they did not execute this mortgage. They admitted that they had executed a mortgage to Watts & Bro. on a part of this land in the year 1900, and also that they executed another mortgage to Watts & Bro. on all of this land in the year 1903, but,- as before stated, they each denied their signatures to the mortgage now in controversy.
The two mortgages which the witnesses admitted that they executed were acknowledged before an officer other than Lockett, but Beauregard McGehee in his testimony admitted that he had made an acknowledgment before Lockett of a mortgage to Watts & Bro.
Amanda McGehee testified that she could write a little and could write her name, and she stated that she always wrote her own name when signing a deed. It appears from the other deeds exhibited in evidence that her signature was in her own handwriting, but this particular deed was signed by mark. Lockett, the notary public, testified that both McGehee and his wife signed and acknowledged the mortgage. He was called to the witness stand more than once, and in his first statement he said that he was not personally acquainted with Amanda McGehee, and he also said that he had no personal recollection of taking the acknowledgment. But when called to the stand later, he explained his former statement by saying that he meant that he only knew Amanda McGehee and the other McGehee women when he saw them, but was not. personally acquainted with them as he was with the men of the family, with whom he had had frequent business dealings. In the meantime, Amanda Mc-Gehee had been introduced as a witness in Lockett’s presence, and when he was recalled to the stand he stated that he remembered then that she was the woman who signed and acknowledged the execution of the mortgage before him. He stated that he wrote her' name and that she touched the pen, or made her mark.
With the ¡burden of proof on appellees to show that the deed was not properly executed, and with the finding of the chancellor against appellees, on this issue, we should not disturb the findings unless we conclude that it is against the preponderance of the evidence, and we think that the evidence does not preponderate against the finding of the chancellor that the deed was executed.
Counsel for appellees rely on the discussion in Watson v. Billings, 38 Ark. 278, where the relative weight of the testimony of a widow asserting dower and the justice of the peace who took the acknowledgment were discussed, but in that case the deed containing the relinquishment of dower was unrecorded, and the burden was on the other party to prove the execution of the deed. There was a finding also by the chancellor that the relinquishment of dower had not been executed. That case therefore is without any controlling force in the present case, and our conclusion is that appellees have not introduced sufficient proof to overcome the presumption arising from the certificate of the officer and the record of the deed. Counsel also rely on the recent case of Crawley v. Neal, 152 Ark. 232, but that case, too, is inapplicable for it involved the question of admissibility rather than the weight of testimony.
The court, as before stated, upheld the validity of the deed, but declared the foreclosure invalid on the ground that there was no valid appointment of the substituted trustee, for the reason that the appointment in writing was not made on a date before the sale, but after the preliminary steps towards the sale had been taken. There is therefore no finding, either express or implied, on the question whether or not the notice of foreclosure was given.
The trustee’s deed contained a recital to the effect that notice was given in the manner' prescribed in the deed of trust, which was by posting notices.
The statute provides that notices in conformity with mortgages, deeds of trust, etc., shall be published in some newspaper in the county (Crawford & Moses’ Digest, $ 6807), and appellants adduced testimony tending to show that there had 'been publication made in that manner. Walker, the substituted trustee, and Mr. Watts testified on this subject, and each of them stated in his testimony that the notice was published in one of the newspapers at Camden. There was no contradiction of this testimony, but the contention of appellees is that the testimony is too vague and uncertain to base a finding upon. The newspaper was not introduced in evidence, nor was the editor introduced, nor any testimony other than the statements of Walker and Watts. The affidavit provided by statute (Crawford & Moses’ Digest, § 6808)' as evidence of such publication was not introduced, but that was not the exclusive method of proof. Allen v. Allen, 126 Ark. 164.
It is conceded by counsel for appellees that the,testimony of Walker and Watts was competent to prove the- publication of notice of sale, and it was admitted in the trial below without objection, but counsel contend that it is not of sufficient weight to justify a finding on the subject. Our opinion is, however, to the contrary, for this testimony was not contradicted, and while neither of the witnesses could state the language of the notice, they both undertook to give the substance of it, and they stated that it was a notice of the time and place of sale, with a description of the land. When the testimony of each is read as a whole, it shows that they meant to testify positively that the notice contained all of the essential elements to make a valid notice. Counsel comment upon certain language of each of the witnesses as tending to show a vagueness and uncertainty, but the testimony of each must be read as a whole, and we think that their statements, which are not contradicted, are to the effect that they remembered the substance of the notice, and that it contained all the requirements.
We are of the opinion that the evidence was sufficient, and that the sale was valid.
The court erred in holding that the substitution of the trustee had to be in writing, and erred in refusing to permit appellants to show that there was an oral appointment of the trustee before he began to take steps leading up to the foreclosure, even though the indorsement was not made until the day before the sale. It was not essential to the validity of the sale that the appointment of the trustee should be in writing, but written authority was essential in order to confer authority to make the deed. Daniel v. Garner, 71 Ark. 484.
When the deed was executed, there had been authority in writing indorsed upon the mortgage, so the deed was valid and conveyed the legal title — the equitable title having been acquired at the trusteed sale. Daniel v. Garner, supra.
Our conclusion is, therefore, that a valid legal title was acquired under the foreclosure sale and deed.
In addition to that, we think that McGehee was estopped by his own conduct from asserting title to the land, and that appellees, as his grantees, are also bound by his acts. McGehee remained on the land for two years after the foreclosure and paid rent, and then voluntarily removed from the premises and made no assertion of title or claim to the land for more than six years, when he quitclaimed it to Overton, one of the appellants. In the meantime the purchasers at the foreclosure sale and their subsequent grantees occupied the land and made valuable improvements thereon. It is true that McGehee says in one place that he did not know of the foreclosure, but it was publicly conducted, and he remained on the place, paying rent, and then abandoned the land. Counsel for appellees contend that his removal from the land merely amounted to a surrender of possession to Watts & Bro. as mortgagees, but his conduct shows more than that, and it clearly appears that he intended it as a complete abandonment of the land under the foreclosed mortgage. Under these circumstances, he is estopped to assert the invalidity of the foreclosure,for, if there were any defects or irregularities in the fore closure, he should not have abandoned the premises and knowingly permitted the purchasers and their subsequent grantees to enter and make valuable improvements.
Appellees rely on the case of Wood v. Holland, 64 Ark. 104, as holding that there was no estoppel under circumstances of this kind, but in that case the question was not concerning the invalidity of the sale, but related to the right of redemption, and the court held that a voluntary surrender of possession to the purchaser did not work an estoppel against the assertion of the right of redemption. There is a distinction between the two cases, and a very clear reason for it. Assertion of the right of redemption is not inconsistent with admission of the validity of the sale, and therefore a voluntary surrender of possession is not tantamount to a relinquishment of the right of redemption, whereas such a surrender to the purchaser under a foreclosure sale is inconsistent with the claim of invalidity of the foreclosure. This is but an additional ground why the original mortgagee and his grantees, the present appellees, should be denied the right to attack the foreclosure sale.
Therefore, on each of the grounds stated, the decree will be reversed with directions to dismiss the complaint for want of equity. | [
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Wood, J.
This appeal is from a decree of the chancery court of Crawford County dismissing the appellant’s petition for bill of review. The record shows that the appellant filed her petition for bill of review in the chancery court on the 19th day of June, 1921, in which she alleged, among other things, that the decree of divorce granted at a former term of the chancery court was granted without the court being sufficiently advised in the premises. She alleged that she was greatly wronged by the decree and her rights taken away without just cause, the decree of divorce having been granted without sufficient testimony, without granting her any alimony or any relief except an attorney’s fee; that when the suit for divorce was first-called the plaintiff (appellee) and the defendant (appellant) testified. The court then refused to ■ hear further' testimony at that term and continued the cause for the term; that sometime in November the appellant received a notice from her attorney that the court would convene on the 20th of December, and for her to be- on hand. She alleged that she appeared in court and waited all day expecting to be called, but late in the evening was informed by her attorney that she would not be needed, and sometime thereafter she learned that her husband had been granted a divorce. She alleged that no witness testified on behalf of the appellee except himself, and that she in her own behalf controverted all of his testimony with regard to her conduct toward him. She then set up that she had been compelled to leave her husband on account of unmerited abuse. She alleged that, if she be granted a bill of review, she will be able to prove the allegations of her •complaint. She prayed for a bill of review and that the decree be set aside.
On the 20th of June, 1921, the appellee answered denying the allegations of appellant’s petition, and alleged that the action for divorce was tried at the November term, 1920; that the conrt heard the testimony of the parties and one corroborating witness, which witness corroborated the testimony of the appellee; that the court at that term took the cause under advisement, and at the adjourned term December 14, 1920, entered a decree in favor of the appellee granting him a divorce. The court, after hearing the petition of the appellant and the response, dismissed the same for want of equity.
The appellant prayed and was granted an appeal and was given ninety days in which to prepare and file a bill of exceptions. No bill of exceptions was filed, and there is no error appearing on the face of the record. The allegations of the petition for the bill of review were denied by the appellee.
The grounds set up in appellant’s petition for bill of review were not sufficient to entitle her to that relief. It does not allege any newly discovered evidence since that decree was rendered. The original divorce proceedings which the appellant seeks to have reviewed do not show on their face any errors of law. White v. Holman, 32 Ark. 753. The original decree of divorce recites, among other things, the following: “This case was tried upon the complaint and the exhibits thereto and the answer of defendant. After hearing of the oral testimony the court finds the issues in favor of the plaintiff and against the defendant. ’ ’ The appellant alleges in her petition that the cause was heard only upon the testimony of the plaintiff and the defendant, but the appellee denies this allegation and alleges that another witness was introduced in the original action besides the plaintiff and defendant. Another ground alleged is that her attorney informed her that she would not be needed. She left, went home, and afterywards learned that the decree of divorce had been granted. But a bill of review does not lie on the ground that the original decree was rendered through the mistake, carelessness, or unfaithfulness of her solicitor. Price v. Notrebe’s Heir, 17 Ark. 45.
The petition does not set forth facts sufficient to show that the appellant was entitled to a division of property. Sec. 3511, C. & M. Digest. The original decree recites that the court found “that the defendant, without fault on the part of the plaintiff, wilfully abandoned him for a space of more than one year.” The court therefore did not err in entering its decree dismissing the -appellant’s petition for a bill of review. Price v. Notrebe’s Heir, supra; Evans v. Parrott, 26 Ark. 600; White v. Holman, supra, and other cases collated in 2 Crawford’s Digest— “Bill of Review,” p. 1906—1910, inclusive..
The decree is correct, and it is therefore affirmed. | [
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Hart, J.
Antone Logi was indicted for tbe crime of manufacturing alcoholic, vinous,' malt, spirituous or fermented liquors contrary to the provisions of sec. 6160 of Crawford & Moses’ Digest. From the judgment of conviction he has duly prosecuted an appeal to this court.
It is earnestly insisted by counsel for appellant that the evidence is not sufficient to warrant the verdict, and we think that in this contention' counsel are correct.
The chief witness for the State was John T. Tisdale, a prohibition enforcement officer. According to his testimony, he searched the dwelling house of appellant fox-intoxicating liquors in May, 1921. There was a cellar in the yard with a chicken coop over1 the top of it. Two barrels of “choc beer” were found in the cellar or hole in the ground. One of the barrels was nearly full, and the other was about two-thirds full. They had pipes running from them to a cellar under the house. Both barrels were filled with a liquor called “choc beer,” and it is intoxicating. Thel officer also found one carton containing four yeast cakes and a full carton containing six cakes. They were labeled “Yeast Foam” and were such as you buy out of a store. The officer also found two packages of hops and some sugar. He said that “choc beer” would ordinarily ferment in four days unless the weather was very cold. If it is exposed to air it will soon deteriorate, but if kept air-tight it would remain in kegs for fifteen or twenty days or perhaps ninety days. The “choc beer” in question appeared to have been covered up in the hole or cellar for about three weeks. The barrels had sacks over them and boards over the sacks. Then there was a piece of tin roofing over the boards and a chicken coop was set over it.
According to the testimony of appellant, he had bought the “choc beer” from John Loraine for his own use and had placed it in his cellar to preserve it. He had never engaged in the manufacture of any kind of intoxicating liquors and had never been interested therein. John Loraine hung himself a short time after he sold appellant the “choc beer.”
Another witness, who was disinterested, testified that he saw John Loraine bring the two barrels of “choc beer” to the home of appellent and leave them.
The fourteen-year-old daughter of appellant was also a witness for him. According to her testimony the yeast cakes were used to make bread by her mother: There were also two little bunches of hops there, and her mother used them to make yeast.
The court correctly told the jury that the mere pos: session of the “choc beer” by appellant was not sufficient to convict him of manufacturing malt or intoxicating liquor.
It is insisted, however, that the possession of the hops and the yeast was sufficient to warrant the jury in finding him guilty.
Malt liquor is defined as a general term for an alcoholic .'beverage produced merely by the fermentation of malt, as opposed to those obtained by a distillation of malt or mash. Sarlls v. United States, 152 U. S. 570.
It will be noted that only a small amount of hops and yeast calces were found at the home of appellant and these were only in such quantities as would naturally be used by a housewife in cooking. It is true that yeast is used to produce the fermentation of malt, but it was not shown that appellant had on hand any malt, mash or anything of the sort that might have been used in making choc beer.
It was also shown that the officer found some sugar at the house, but the quantity is not stated, and the finding of some sugar there is nothing more than would happen at any home. While the yeast and the hops could be used to ferment malt, nevertheless the yeast could be used for making bread and the hops for making yeast. The quantity found at appellant’s house did not indicate that it was being used to make “choc beer” or other malt liquor.
It is suggested that the reason no quantity of malt, mash or any kind of grain that might have been used in making “choc beer” was not found at appellant’s house was because he had used it up in making the “choc beer.” If appellant had fermented the “choc beer” in the barrels in which it was found, the malt or grain would have settled in the barrels and have been found there. If appellant had manufactured malt liquors in other vessels, such vessels would have likely been found around his place and there would have been the grounds or residue of the grain which had been used in making the malt liquor. A search of the premises was made by the officer and none of these ingredients was found.
As we have already seen the possession of the “choc beer” itself was not sufficient to convict appellant of making it. It was not shown that appellant had purchased or had on hand any quantity of malt, hops, or yeast. To say that he had them on hand and had used them in making ‘ ‘ choc heer ’ ’ would he merely a surmise. Considering the small quantity of yeast and hops found at appellant’s house it is more likely that they were used in cooking than in making “choc beer.” Anyway it would be a matter of conjecture to say that they were used in the manufacture of “choc beer.” The burden of proof was on the State to establish that appellant had manufactured “choc beer,” which is a malt liquor, contrary to the provisions of our statute, and having failed to meet this requirement of the law, a verdict of guilty can not be u-pheld on conjecture merely.
Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Lowry v. State, 135 Ark. 159, and Green v. State, 38 Ark. 304. A conviction resting upon evidence which fails to come up to the standard prescribed by law is contrary to law, and it is the duty of the court to set aside the verdict.
It follows that, the evidence not being legally sufficient to support the verdict, the judgment must be reversed, and the cause will be remanded for a new trial. | [
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McCulloch, C. J.
This is an action instituted by appellee as administrator of the estate of Macey Bailey, deceased, to recover damages sustained by the reason of the death of said decedent, which is alleged to have been caused by the negligent act of appellant. The action was originally instituted against appellant and two other parties — the Commonwealth Public Service Corporation and Light Improvement District No. 2 of Clarksville.
The causes of action against the defendants were set forth in separate paragraphs, and the death of said decedent in each-count is alleged to have occurred in the same manner, but separate acts of negligence charged against each of the defendants.
There was a motion filed by the defendants to require appellee to elect upon which cause of action he would proceed, but this motion was overruled, and in impaneling the jury the defendants each demanded the right to exercise three peremptory challenges, and this demand was overruled by the court.
After the testimony had been adduced, appellee dismissed against the other two defendants, and the issues were submitted to the jury as to the liability of appellant alone. A verdict was rendered in appellee’s favor against appellant for the recovery of the sum of $5,000 as damages.
Macey Bailey was a lineman employed by the Commonwealth Public Service Corporation, which was .engaged in the business of generating electric current and delivering such current for lighting purposes in the town of Alma and in other towns along the line of the Missouri Pacific railroad.
Light Improvement District No. 2 of Clarksville owned an electric light plant at Clarksville, Arkansas, and generated current for lighting purposes, and at times purchased current from the Commonwealth Public Service Corporation.
Appellant, a corporation, which-was engaged, among other things, in generating and selling electric current in Fort Smith, sold current to the Commonwealth Public Service Corporation and delivered same to that compa&y at or near the town of Alma, where it was furnished-no consumers.
On April 25, 1920, deceased was directed by his employer to go upon an electric tower at Alma and make repairs, and early in the morning of that day, in discharge of this duty, he came in contact with a live wire and received injuries from which he suffered great pain, and later died.
It is charged in the complaint against appellant that its servants were guilty of negligence in turning on the current which caused the death of Macey Bailey after the latter had given instructions to appellant’s engineer to turn the current off and not to turn it on again until further notice.
It is alleged that Bailey, about 7 o’clock, went to the telephone at Alma, and that in conversation with appellant’s engineer at the plant in Fort Smith he directed the engineer to turn on the current for the purpose of testing the wires at the tower, and that a few minutes later he notified the engineer at the plant that he was going on the tower to work, and directed the engineer to turn the electricity off and not to turn it on again until notice was given, but that the engineer, in violation of the instructions, turned the current 'back on while Bailey was at work with the wires on the tower, and that in that manner Bailey come in contact with the current and was wounded and killed.
In the other paragraph of the complaint it is alleged that the wires of the other two defendants were connected at Clarksville, and that current generated by the Light Improvement District at Clarksville escaped, through negligence of said defendants, over the wires of the Commonwealth Public Service Corporation to the connecting wires at Alma, and thus was permitted to pass along the wires where Bailey received his injury.
Appellant, in its answer, denied all acts of negligence charged against its servants, and alleged that Bailey’s death was caused by his own negligence in failing to observe the precautions prescribed by his employer for his own safety while engaged in the work of repairing wires.
Appellant adduced proof. tending to show that Bailey’s employer, the Commonwealth Public Service Corporation, issued safety instructions to its employees, which were brought to Bailey’s notice, directing them to use ground chains as a means of protection while at work on. the wires, and that the death of Bailey was caused by his failing to observe these directions; that there were switches which he could have used in turning off the current, and that his death was caused by his own negligence in failing to turn off the current before coming in contact with the wires.
The cause was submitted to the jury on instructions relating to the issue as to directions given by Bailey to the engineer not to turn the current on until further notice, and on the question of Bailey’s own negligence in failing to observe the precautions for his own safety which had been prescribed by his employer. There was evidence to sustain the verdict in appellee’s favor on these issues.
Two witnesses — one of them an employee of the telephone company at Alma, and the other an associate of his who was in the room with him at the time — each testified that about 7 o’clock on the morning in question Bailey came to the telephone office, and after getting connection with some one claiming to be in charge of appellant’s generating plant at Fort Smith, Bailey told the one in charge of the plant that he had been working on the line and was going to test the wires, and directed the person to turn on the current; that after a few moments he then told the person at the plant to cut the power off and leave it off until further notice. The testimony tends to show that a few minutes after this time, while Bailey was on the tower working with the wires, he came in contact with the current which injured him.
Appellant introduced its fireman, who was in charge at the power-house on the morning in question, and testified that the Alma fine ceased to hold the current during the night before, and he was given directions over the telephone by some one in regard to turning .on and off the current, and that he received directions about 2 o’clock that morning to leave the current off until he received directions the next morning; that about 7 o’clock the next morning the same voice called him over the telephone and gave directions to turn the current on, and that he received no further directions to turn the current off.
Appellant also introduced testimony showing the directions given by the Commonwealth Public Service Corporation to Bailey and other employees in regard to safety methods to be adopted, and also in regard to the safe method in which Bailey may have pursued his work by turning off the current.
The evidence was, as before stated, sufficient to sustain a verdict either way as to the cause of Bailey’s death.
It is contended, in the first place, that the court erred in refusing to require appellee to elect upon which causes of action set forth in the complaint he would proceed, and in refusing to allow each of the defendants the statutory number of peremptory challenges, but these questions have already been settled by this court against the contention of appellant.
We have held that since cases of like nature, pending in the same court, may be consolidated for the purpose of trial, there is no error in refusing to require an election where actions have been improperly joined, and that where there is such a consolidation of causes all of the parties arrayed on each side are only entitled jointly to the statutory number of challenges. Mahoney v. Roberts, 86 Ark. 130; Weigel v. McCloskey, 113 Ark. 1; Fidelity-Phoenix Ins. Co. v. Friedman, 117 Ark. 71.
It is next insisted that, according to the undisputed evidence, Bailey violated the instructions of his employer and failed to exercise ordinary care for his own protection, .and that for this reason there should have been a peremptory instruction in favor of appellant.
Bailey was not the employee of appellant, and received no instructions from appellant in regard to the method of carrying on his work. According to the testimony adduced by appellee, Bailey gave instructions to the man in charge of the generating plant to turn the electricity off and not to turn it on again until further no tice, and these directions were acquiesced in by the man in charge of the plant so as to constitute an assurance to Bailey that his directions would be complied with.
Under these circumstances it cannot be said, as a matter of law, that Bailey was guilty of negligence in failing to observe other precautions for his safety. That was a question for the jury to determine under the circumstances, and it was properly submitted to the jury.
Appellant requested the court to give instructions which would have told the jury that if the deceased could have used ground chains for the purpose of preventing the electric current from passing over the wires, he was guilty of negligence and there could be no recovery, but the court properly refused to give the instructions, which was tantamount to telling the jury that Bailey’s failing to do so constituted negligence. This question should, as before stated, have been left to the jury, and not taken away from the jury by a peremptory instruction.
The court gave numerous instructions at the request of appellant, among which was one stating that if Bailey was killed ‘ ‘ on account of an accident, but not on account of the negligence of the defendant, Fort Smith Light & Traction Company,” the verdict should be in the latter’s favor.
Other instructions were asked by appellant, which the court refused, telling the jury that if the death of Bailey was caused by a stroke of lightning or by statio electricity, there could be no recovery, but there was no evidence to justify these instructions, and they were properly refused.
It is believed that the views we have already expressed dispose of all of the other assignments of error with respect to rulings of the court in giving and refusing instructions.
We find that the case was properly submitted to the jury, and that there is no error in the record.
The judgment is therefore affirmed. | [
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Wood, J.
The appellees, plaintiffs below (hereafter called plaintiffs), instituted this action against the appellants, defendants below (hereafter called defendants). The complaint alleged in substance that the plaintiffs and defendants were members of Pat Cleburne -Camp of Confederate Veterans No. 191 of Charleston, Arkansas, (hereafter called camp) and the only members of the camp; that in conferences between representative of the people in the vicinity of Charleston who were interested in Fourth of July celebrations, and representatives of the camp (who, respectively, had been holding their celebrations and annual reunions at different points in the vicinity of Charleston prior to the year 1907], it was decided that the camp and the people generally, not members of the camp, should jointly purchase, for the benefit of the camp and the people, in order to enable them, respectively, to hold their reunions and Fourth of July celebrations, the west half (Wl/2) of the southwest quarter (SW 1/4) of section 8. in township 7 north, range 28 west, in Franklin County, Arkansas, to be used as a public park by the camp and the people generally for the purposes above set forth; that it was agreed and understood that the deed should be executed to certain parties, members of the camp, and their successors in trust for the use and benefit of the camp, in holding their annual reunions, and for the benefit of the public in the vicinity generally in holding their celebrations, it being understood that the dates of the reunions and celebrations should in no manner conflict. It is further alleged that funds were solicited, subscribed, and paid by various persons for the purchase money of the land, upon the representation that the land would be purchased, held and used for the above purposes. It was alleged that the funds raised by such subscriptions, and from the holding of celebrations and reunions, were used in the purchase of the above described land; that it was agreed and understood by all parties in interest that when the members of the camp, because of the infirmities of old agve, or otherwise, were unable to further execute the trust, the Sons of Veterans should be made trustees, and when there were ho longer any Sons of Veterans, or when such Sons were unable from any cause to execute the trust, then the town of Charleston should be named as trustee to hold the land in trust for a public park, in order to effectuate the purposes above designated.
It is further alleged that it was agreed and understood by all parties in interest that when J. P. Falconer, the owner of the land, and his wife executed their deed to the same, the purposes of the trust as above mentioned should be expressly stated in the deed; that through mistake and oversight of the draftsman of the deed the lands above described were conveyed to J. K. P. Holt, Tom McFerran, Webster Flannagan, Geo. W. Hill and W. P. McMath, trustees of the camp,’ and to their successors and assigns, to have and to hold the same to said trustees for said camp and their successors and assigns forever. It is alleged that certain of the trustees originally named in the deed had died, and others had been appointed by the chancery court to succeed them; and since their appointment another one of the original trustees had died and his successor has not been named; that the plaintiffs were now the only trustees of the property.
The complaint further set forth that “there had been a dissension 'among the members of the camp, and that some of the defendants had ignored the rights and privileges of all the beneficiaries in the deed of trust except the members of the camp, and claim that the members of the camp have the exclusive right to the possession of the land;” that they were denying the plaintiffs and the other beneficiaries in the deed of trust the rights thereby secured to them, all to their great and irreparable injury. The complaint concludes with a prayer that the deed be reformed so as to read and state the purposes of the trust and the beneficiaries thereof, as above stated, and that the trust as thus expressed be perpetuated, and for an order restraining the defendants from interfering with the execution of the' trust as thus expressed; and that a trustee be appointed to fill the now existing vacancy, and for all relief.
The defendants, in their answer, after denying all the material allegations of the complaint, set up that the ^amp was duly organized as such and had adopted a con stitution and by-laws for the government of its organization; that the property described in the complaint belonged to the camp; that it is the sole and exclusive owner thereof under a deed executed September 12, 1907, from J. P. Falconer and Fannie T. Falconer, his wife, which was duly recorded on the 21st day of November, 1908. The deed is set out in haee verba in the answer. The defendants then further allege that upon the execution of the deed the camp took charge of the property and made improvements thereon, which they set forth; that the camp had been in the open, notorious, adverse, and continuous possession of the land since the 12th of September, 1907. The defendants therefore pleaded the seven years statute of limitations.
The defendants averred that J. P. Falconer, the grantor in the deed, was dead; that T. P. Winchester, the draftsman of the deed, was dead; that J. K. P. Holt, Confederate Veteran and one of the trustees, who procured the services of T. P. Winchester to write the deed, was dead. The defendants alleged that the plaintiffs had delayed bringing their suit to reform the deed for thirteen years, and that under the circumstances they were barred by laches from maintaining the suit. They alleged that the deed was drawn as directed and was executed as intended by the parties who donated the fund to purchase the lands, and by the vendor who executed the same, to establish a Confederate park for the use and benefit of Confederate Veterans, and not for the public. The answer concluded with a prayer that the complaint be dismissed for want of equity.
The deed in controversy, a copy of which was made an exhibit to the answer, was in evidence before the court, and much testimony taken by the respective parties to sustain the allegations of their pleadings and their respective contentions as set up therein. The court found the facts to be as substantially set forth in the allegations of the complaint, that the words “their successors” were intended by all parties thereto to mean, “said organiza tions of Sons and Daughters of ex-Confederate veterans, and, in default of such organizations, the incorporated town of 'Charleston; * * # and that the term ‘assigns’ was intended to impart a right of sale in the trustees by resolution of the -camp so directing, only, however, in the event and for the purpose of securing a more desirable park by exchange or sale and repurchase. ’ ’
After making its findings, the court refused to enter a decree reforming the deed, for the above reasons, and for the further reason that the widow and heirs of Col. J. P. Falconer were not made parties. The court further found as follows: “Because all members of the said Pat Cleburne Camp being parties, as are also all of the trustees in the said deed, or their successors, duly constituted and appointed; accordingly, under 'the evidence, the equity of all parties hereto is to have decreed a construction of said deed, along with decretal instruction to said trustees by way of declaring the full and true nature of said trust.” The court also found a vacancy existing in the board of trustees, and appointed Captain M. D. Brown, a member of the camp, to fill the vacancy. After finding and declaring the purposes of the trust to be substantially as set forth in the complaint of the plaintiffs, and charging the trustees that certain duties were incumbent upon them as such, and directing them to perform these duties, the court concluded its decree as-' follows: “It is therefore considered, ordered and decreed as hereinbefore recited and found, specifically and generally in nil respects. It is further decreed that the complaint of the plaintiffs, so far as it prays reformation of the -said deed, is dismissed, for the reasons stated in the findings. The defendants and each of -them are enjoined from in any way interfering with the trustees in the discharge of their duties as such and in the collecting of ‘any funds derived from concessions at any time Whatever,” etc.
The defendants objected to all the findings and decree of the court except that which denied to the plaintiffs a reformation of the deed and dismissing their complaint as to this for want of equity. From the decree of the court adverse to their contention the defendants prayed and were granted an appeal.
1. While much phraseology and unusual verbiage is indulged in by the parties in their pleadings as well as by the court in its findings and decree, yet when the pleadings are analyzed, this lawsuit resolves itself into these simple issues, namely: whether or not the appellees are entitled to have a reformation of the deed in controversy, and whether or not the court should appoint a trustee as the successor to D. Rogers, deceased, who had been previously appointed by the .chancery court of Franklin County as a trustee, and who had accepted .such appointment and had been serving in that capacity.
The pleadings and testimony, which are exceedingly voluminous, show that the cause progressed to a hearing upon the above issues. The complaint does not allege the form of the organization of the camp, but the allegations of the answer and the undisputed testimony show that the camp is an unincorporated voluntary association of persons composed exclusively of ex-Confederate veterans, which adopted a constitution and by-laws for its government. The constitution sets forth the name of the camp, designates the officers thereof, prescribes their duties, and the objects of the organization. The testimony shows that the camp was in existence before the purchase of the park. By the terms of the deed the grantor expressly conveys to the parties named therein, designated “trustees of Pat Cleburne Camp United Confederate Veterans No. 191, and unto their successors and assigns forever,” for the consideration named therein, the land in controversy, describing it. The habendum, clause of the deed is as follows: “To have and to hold the same unto the said trustees for said Pat Cleburne Camp United Confederate Veterans No. 191, their successors and assigns, forever.”
The above language of the deed shows clearly that the land conveyed was trust property to be held in trust by the trustees, their successors and assigns, for the use and benefit of the camp. The legal title was thus vested, by the unmistakable language of the deed, in the trustees as individuals, while the equitable title was vested in, and held by, those who then constituted the members of the camp, and who could be readily ascertained according to the constitution and by-laws of the association governing its membership. The deed was thus not obnoxious to the rule against perpetuities which prevents alienation. Old Society v. Crocker, 119 Mass. 1-23; Wrightington on Unincorporated Associations, § 60, p. 240; Devlin on Real Estate, § 190, p. 258, and cases cited.
In the case of Monk v. Little, 122 Ark. 7, we held, quoting syllabus, that ‘ ‘ courts of chancery may properly assume jurisdiction' of a dispute between different factions of a church organization where property rights are involved.” In the case at bar the plaintiffs and the defendants, as the allegations of the complaint and the undisputed testimony show, are members of the camp. The complaint alleged that “there had been an unfortunate’ dissension among the members of the camp. Some of the defendants have ignored the rights and privileges of all the beneficiaries of said deed of trust and claim that the members of said camp have the exclusive right to said land and the exclusive right to possession thereof. ” Inasmuch as some of the members of the camp are suing other members of the camp to have the deed reformed so as to enlarge the trust to include other beneficiaries than members of the camp, it is manifest that property rights are involved. By analogy to the1 doctrine announced in Monk v. Little, supra, it occurs to us that the facts alleged in the complaint clearly state a cause of action giving the chancery court jurisdiction of the subject-matter in controversy between the parties; that is, as to whether or not the deed should be reformed. The trial court ruled correctly that- the widow and heirs of the grantor in the deed were necessary parties to the action for reformation. Having so ruled, the court should have proceeded no further until the necessary parties were brought in. All the further findings and the decree of the court 'based thereon, were beyond the legitimate scope of the pleadings and beyond the jurisdiction of the court. For, if the court had no jurisdiction to reform the deed and declare a resulting trust because the necessary parties were not before it, then obviously it could not retain jurisdiction and enter a decree construing the deed, declaring the trust, and giving directions to the trustees, just as if the necessary parties had been before the court, and as if the deed had been in fact reformed by the plaintiffs. The decree of the court expressly declares “that the complaint of the plaintiffs, so far as it prays reformation of said deed, is dismissed,” yet the decree also recites: “It is therefore considered, ordered, and decreed as hereinbefore recited and found specially and generally in all respects.” The “herein-before” findings and recitals show that the court had as effectually granted the plaintiffs all the relief they prayed as if it had formally and technically declared the reformation of the deed as prayed by them. While ostensibly denying the plaintiffs the relief of reformation sought 'by them, nevertheless the decree, as a whole, in reality does grant them such relief. This the court could not do with the parties then before the court.
Inasmuch as the cause must be reversed and remanded, we will not, in advance of the determination of the issue as to whether the deed shall be reformed, decide whether the chancery court should have appointed a trustee to fill the vacancy caused by the death of trustee Rogers. For the error in proceeding to construe the deed in the manner shown before the issue as to the reformation thereof is determined, the decree is reversed, and the cause will be remanded with directions, if the parties so desire, to make the widow and heirs of Colonel Falconer, and others if necessary, parties, to take proof, and for such other and further proceedings herein as the parties may elect to adopt, according to' law and. not inconsistent with this opinion. | [
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Smith, J.
This cause was heard in the court below on an agreed statement of facts, which may be summarized as follows. Walton is a nonresident of the State and is the owner of 1,573 acres of land in Arkansas County, and when he paid the taxes thereon for the year 1919 there was included in the taxes charged against him a special nonresident land tax of ten cents per acre. Walton paid this tax without knowing that it had been included in his receipt. This acreage tax was levied pursuant to a special act of the 1917 session of the General Assembly (Acts 1917, vol. 2, p. 2173) regulating the working of public roads in Arkansas County and providing a tax therefor. This act was held unconstitutional by this court in the case of White River Lumber Co. v. Elliott, 146 Ark. 551, on December 20,1920. It was stipulated that, while Walton did not know this tax had been charged against his lands and included in his receipt, his lands would have been returned as delinquent and sold by the collector of taxes if this tax had not been paid.
After the decision of this court holding the special act unconstitutional, Walton filed a petition in the county court of Arkansas County asking the refund of this tax. The petition therefor alleged that of the tax so paid $24 had been placed to the credit of Road District No. 7, and $123.30 to the credit of Road District No. 6. These districts were not improvement districts. They were two of the districts into which the county had been divided under the road law for general road working purposes. The petition for the refund of this tax was filed in the office of the clerk of the county clerk on May 3, 1921, and was dis allowed by the county court on the same day. A similar order was made by the circuit court on appeal from the county court.
In the case of White River Lbr. Co. v. Elliott, supra, the lumber company paid its taxes under protest and notified the collector at the time that he would be called upon to refund the acreage tax then paid, and suit was brought against the collector while these taxes were still in his hands. We held in that case that, as the collector could have sold the lands for the non-payment of the taxes, and would have done so if they had not been paid, this would have constituted a cloud on the title, to prevent which the owner had the right to pay the taxes under protest and then sue the collector' to recover them.
This proceeding was not instituted until more than a year had elapsed after the payment of the tax; in fact, it is a proceeding under section 10180 of Crawford & Moses’ Digest, which reads as follows: “In case any person has paid or may hereafter pay taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact, the said court shall make an order refunding to such person the amount of the county tax so erroneously assessed and paid, and, upon production of a certified copy of such order to the Auditor, he shall draw his warrant on the State Treasurer for the amount of "State tax erroneously assessed and paid. Such warrant shall be paid out of the appropriation to pay moneys arising from the erroneous assessment and collection of taxes. But in case there shall be no appropriation, or the appropriation shall have been exhausted, then the Auditor shall issue a certificate of indebtedness therefor.”
It is the insistence of the petitioner, that this section of the statute, as interpreted by this court in the case of Clay County v. Brown Lumber Co., 90 Ark. 413, entitles him to have an order made by the county court directing the refund of the acreage tax which he paid.
We think, however, that the section quoted above does not authorize this proceeding. It is true that, in in terpreting this section (section 7180, Kirby’s Digest) in the case of Clay County v. Brown Lumber Co., supra, the court said: “If the property paid on was exempt from taxation, or if the property was not located in the county, or if the tax was invalid, or if there was any clear excess of power granted, so as to make the assessment beyond the jurisdiction of the assessing officer or board, then the provisions of Kirby’s Digest, § 7180, give the owner a remedy for refunding of such taxes thus erroneously paid.” But this language was used with reference to an “erroneous assessment,” and the case of Lyman v. Howe, 64 Ark. 436, defines what is meant by an assessment of land for taxation, as follows: “The duty to assess devolves upon the assessor. Sand. & H. Dig., § 6485. No one else can perform that duty. Welty, Assessments, sec. 10. ‘An assessment is an official listing of persons and property, with an estimate of the property of each, for the purpose of taxation.’ Cooley, Tax. p. 351; Welty, Assessments, sec. 2.
“ ‘All property subject to taxation shall 'be taxed according to its value. ’ Const. Ark. art. 16, sec. 5. So the fixing of some value upon property is indispensable to its assessment for taxation. Welty, Assessments, sec. 430. When the assessor does this in the first instance, then the board of equalization may equalize this valuation with the average valuation of other .land, by raising or reducing same as the case may require, so as to fix its true value. Sand. & H. Dig., sec. 6530; People v. Hastings, 29 Calif. 451.”
The tax here sought to be recovered was not assessed. It had no relation to and was not dependent upon the value of the land. It was not fixed by the usual assessing agencies. The Legislature itself fixed the tax as an imposition against the lands of that county for road-building purposes, on the arbitrary basis of ten cents for each acre owned by any nonresident of the State. Section 10180, C. & M. Dig., does not apply to such an imposition, and the relief prayed was properly denied. | [
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Smith, J.
Appellant, who was the plaintiff below, filed a complaint containing substantially the following allegations: that on June 10, 1919, defendant Antonio, as lessor, executed to one Peter Brown a lease for the term of four and. one-half years of the ground or first floor of a certain building in the city of Hot Springs. This lease contained a clause reading as follows: “And the said tenant covenants that he will not sell, assign, or underlet or relinquish said premises without the written consent of the lessor, the lessor agreeing not to make any charge for such consent.” That, pursuant to said clause, the lease had been assigned a number of times, a§ shown by the indorsements on the original lease, and the defendant, in each instance, gave his written, consent to the assignment without making charge therefor, and through the last of such- assignments plaintiff became the owner of the lease. That an opportunity offered for plaintiff to sell the lease at a profit; but, before closing the trade, he applied to defendant for his approval, and obtained from him his promise to give his written consent to said assignment, and in reliance upon that promise plaintiff closed the contract for the sale of the lease. Thereafter plaintiff requested defendant to indorse his written consent to the assignment of the lease, but defendant, in violation of his promise, and in violation of the covenant set out above, wrongfully refused to give such consent unless plaintiff would pay him the sum of $300. That plaintiff protested, but, in order to protect his deal, he gave de-' fendant, on June 21, 1921, a check on a local bank for $300, but promptly notified the bank to stop payment, of the check, but the defendant had caused the bank to guarantee the payment of the check, and the check was paid to defendant. After reciting these facts, plaintiff alleged that the money had been extorted from him wrongfully, and he prayed judgment therefor.
A demurrer to the complaint was sustained; and this appeal is prosecuted to review that order and judgment.
We think the demurrer to the complaint was properly sustained. There was no such compulsion as entitled the plaintiff to recover his money back. It appears, from the complaint itself, that plaintiff was endeavoring to obtain the written consent of defendant by pretending to acquiesce in his demand for the payment of the $300 without, in fact, doing so. He may have intended by this conduct to secure what he regarded as a plain legal right; but the fact remains that he voluntarily paid the money.
In 2 Elliott on Contracts, § 1384, it is said: “It is well settled, however, that money extorted or involuntarily paid under duress or unlawful compulsion may be recovered. To enable the party making the compulsory payment to recover it, the compulsion must have been il legal, -unjust or oppressive. To constitute the coercion or duress which will he regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment. As stated by the Court of Appeals of Maryland, the doctrine established by the authorities is, that ‘a payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid’.”
Here plaintiff alleges that he had a legal right which was denied him, and to secure its enforcement he made the payment demanded. The law of that situation is very tersely expressed by Chief Justice Cockrill in the case of Vick v. Shinn, 49 Ark. 70, as follows: “One rcannot be heard to say that he had the law with him, but feared to meet his adversary in court. It is only when he has no chance to be heard that he can pay under protest and afterwards recover.” See also Satchfield v. Laconia Levee Dist., 74 Ark. 270; Odell & Kleiner v. Heinrich, 143 Ark. 435; Craig v. Frauenthal, 145 Ark. 185.
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) The two instructions numbered six and nine, given by the court at the request of appellee, were both incorrect, and should not have been given. In the first place, they improperly put the burden upon appellants of showing by evidence "clear and conclusive” that the decree of the chancery court was intended as a final settlement between the parties. This need only have been established by a fair preponderance of the testimony. The effort of appellants was not an attack upon the decree, but to show that it was agreed upon as a final adjustment of all matters between the parties, and that it operated as a release of the sureties from any further liability.
The instructions were also erroneous in leaving out of account the contention of appellants that appellee, through its agent and attorney, had elected to accept the property where it was then located (on the track of the railway company), instead of requiring a delivery at the place stipulated in the lease contract. The testimony of the two witnesses (Trimble and Wooley) tended to establish the fact that appellee had released its lessee, the railway company, from that part of the contract, and elected to accept the property there on the railroad track, because of advantages then expected to be derived by appellee in the sale of it. The testimony was conflicting on this point, and it should have been submitted to the jury upon proper instructions. These two instructions#ignored that question altogether, and permitted the jury to find against the sureties for expenses thereafter incurred in removal of the property and for rent thereafter accruing, even though they might have found that appellee had agreed to accept a return of the property at that time and place, which was in effect a termination of the lease. If appellee saw fit to waive the requirement of delivery of the rails at the place named in the contract, and agreed with its lessee to accept them at another place, it could not thereafter hold the sureties liable for the expense of taking the rails up and removing them to the original place of delivery named in the contract. Nop could it claim rent after the date of acceptance, because the contract was then at an end.
The agreement to accept the rails where they were then located on the track of the railway company (if such agreement was made as claimed by the witnesses for appellants) put an end to the contract of the railway company which appellants had stood surety for, and they can not be made liable for any expense subsequently incurred in removing the rails, or for rent accruing after that time. O’Neal v. Kelley, 65 Ark. 550, and authorities cited.
We do not mean to say that this alleged agreement was such a change in the original contract as released the sureties from liability for rent payments which had already .accrued. 1 Brandt on Sur. & Guar. § 443. It operated, not as an alteration or .abrogation of the contract, but as a termination of the lease, and as an acquittance of the principal, as well as the sureties, from that part of the contract requiring a delivery of the rails at the place named therein.
The court also gave an instruction, over the objection of appellants, permitting appellee to recover attorney’s fees expended, and the jury included in their verdict the sum of $500 On that account. We do not think that attorney’s fees are recoverable in this case. The language of the contract is not sufficient to indicate that the'parties had that in contemplation as an item of possible expense in recovering possession of the property at the end of the lease, or default in payment of rent when due. The clause of the contract which it is claimed covers attorney’s fees is as follows: “The said lessee .agrees to pay all taxes, license -or charges of any kind whatsoever that may be levied, assessed or become payable on said rails, and to reimburse said lessor, its successors or assigns, for any expense that may be by it incurred, attending the execution, acknowledgment, filing or recording of this agreement, as required by law, or the retaking or recovering possession of said property, leased as aforesaid, at the expiration of this lease, or upon any default of the payments as herein provided.” It cannot be said to have been reasonably within the contemplation of the parties that the lessee should pay the fee of attorneys in case the lessor should be drawn into litigation with third parties concerning the ownership or right of possession of the property. Yet that is precisely the basis of appellee’s claim here for recovery of attorney’s fees. The fee was charged and paid for services in a suit brought by a mortgagee to foreclose a mortgage lien on the property of the lessee, and appellee intervened therein to claim the rails and rent therefor.
Attorney’s fees are not ordinarily held to be an element of damages which may be recovered for breaches of contract. Jacobson v. Poindexter, 42 Ark. 97; 13 Cyc. pp. 80, 81, and cases cited; Haverstick v. Erie Gas Co., 29 Pa. St. 254; Henry v. Davis, 123 Mass. 345.
Nor could the parties have had in mind the repayment of attorney’s fees in a suit by the lessor against the lessee for the recovery of possession of the property at the end of the lease or upon default in payment of rent. This would be a penalty upon the right of the lessee to litigate. Boozer v. Anderson, 42 Ark. 167; Jarvis v. Southern Grocery Co., 63 Ark. 225.
Appellants attack the right of appellee to sue upon the contract because (1) such contract was not within the charter powers of appellee’s assignor, McLeod Lumber Company, and (2) that the charter of that corporation had expired by limitation under the laws of Missouri when it attempted to assign the contract to appellee.
Appellants are not in position to raise either of these questions. Having contracted with the above-named corporation, and received the benefit of such contract, they can not dispute its power to enter into the .contract. Minneapolis F. & M. Ins. Co. v. Norman, 74 Ark. 190.
Appellee being the undisputed holder de facto of the contract and bond under written assignment, regular on its face, from the McLeod Lumber Company, appellants cannot question it. Castle v. Lewis, 78 N. Y. 131; The Prussia, 100 Fed. 484; Blackford v. Westchester Fire Ins. Co., 101 Fed. 90; 4 Cyc. 62, and cases cited.
The liability of appellants, as sureties, for the amount of rent up to time of the alleged acceptances of the property was not discharged by the alleged agreement to make the decree a final settlement between the parties. The rent then due was a fixed liability of the principal and sureties, and the alleged agreement to terminate the contract by acceptance of the property did not release them.
According to the undisputed facts, appellee is entitled to recover the amount of rent agreed upon, $423.42, with interest from June 19, 1901. If it elects to accept a judgment for that amount, and will, within ten days from this date, enter a' remittitur down to that sum, the judgment will be affirmed. Otherwise, it will be reversed, and remanded for a new trial. It is so ordered.
See also 5 Thomp. Corp. § 6021.' — Rep. | [
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McCueeoch, J.
Appellant was convicted, under the “blind tiger statute,” of selling whisky without license, and a fine of $400 was adjudged against him. He was a distiller of ardent spirits in Howard County. The State proved the sale of a quart of whisky by a negro to the witness Bridgman at a house near defendant’s distillery. Another witness introduced by the State testified that he had seen whisky in this house kept in a large white jug holding four or five gallons; that he had also seen the jug empty, and had seen the defendant fill it at his distillery a great many times and carry it across the road to the house in question where the negro made the sale to Bridgman. Bridgman testified that the negro drew the whisky sold to him from a large jug or demijohn holding four or five gallons.
The first ground for reversal assigned by appellant is that the court erred in permitting the State to prove by members of the grand jury that he (appellant) had admitted in his testimony before the grand jury that he had used the house where the whisky was sold to Bridgman as a storage room for boxes, barrels and plunder. It is sufficient to dispose of this contention to say that appellant went upon the witness stand in his own behalf at the trial and testified to the same fact attributed to him in his statement before the grand jury. If it was error to permit members of the grand jury to testify concerning his statements before that body, the error was rendered harmless by the admissions of ' defendant, as to the identical facts testified to, made on the trial of the case. His admission as to the truth of the facts cured any error made by the State in the method of proving those facts.
Appellant also assigns error of the court in refusing to give two instructions asked by him. The substance of the first was fully covered by another instruction given by the court wherein the jury were told that “the burden of proof rests upon the State to prove that the defendant did, in the county of Howard, and State of Arkansas, within twelve months before the finding of the indictment, sell vinous, malt, fermented or intoxicating liquors; and unless this has been done to your satisfaction beyond a reasonable doubt, you will find the defendant not guilty.”
The second instruction asked by appellant was erroneous .in that it told the jury that “the word used in the statute, has reference to the habitual or permanent use of the house for a purpose, and that this purpose must be in the utilization of the said house for the purpose of the illegal sale of whisky.” This is not the law. Under the statute, the use or control of the house need not be “habitual or permanent.” It is sufficient to convict if the proof shows that it was used or controlled by the defendant at the 'time of the illegal sale of liquor therein. That raises a' presumption of the defendant’s guilty participation in the illegal sale. Kirby’s Digest, § § 5140, 5141.
The second instruction was properly refused, for the additional reason that it disregarded the other testimony, aside from the proof of his use of the house, tending to show defendant’s participation in the illegal sale, and told the, jury that they should acquit him if they believed that he “was using said house only for a store room for barrels and other plunder.” There was sufficient evidence to warrant the jury in finding that defendant participated in the illegal sale, even though they did not find that he was using or controlling the house.
We find no error in the proceedings, and the judgment is affirmed. | [
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Wood, J.,
(after stating the facts.) Appellee had the cause dismissed under section 6067, Kirby’s Digest, which provides that “an action, other than those mentioned in sections 6060, 6061, against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides.”
For the purpose of service under this statute, a corporation is situated where it “has its principal office or place of business.” It can be served there, or in the county “in which its chief officer resides,” but not elsewhere. The qualifying term “principal” precludes the idea of there being more than one “office or place of business” where the corporation may be served. If service is had at its office or place of business, to be valid it must be at its “principal” office or place of business, and we cannot construe this to be more than one, without changing the meaning of the word “principal.” The language is plain, and nothing is left for construction. The Legislature evidently had a purpose in using the adjective “principal,” and it is our duty to carry out that purpose by giving it its natural meaning, and its restrictive and qualifying effect.
The admission of record is that “its principal office and place of business is at Stamps.” That being true, the further admission that certain officers “for purposes of convenience” have offices in Texarkana, where the business of said offices is conducted principally,” must necessarily refer to other than the principal office or place of business; otherwise the admission would be contradictory and nonsensical. The trial court must have found as a fact that the “principal office or place of business” was at Stamps, and we cannot say that such finding is erroneous. It follows that there was no service.
Opinion delivered April 23, 1906.
2. Did appellee enter its appearance? It suggested in limine the lack of service, and only appeared for the purpose of moving to dismiss. This question is ruled by Union Guaranty & Trust Co. v. Craddock, 59 Ark. 593, where we held that “under the code of practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment.” There is no doubt but that where a party, who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person, and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest, he can not be said to have waived his objection to the jurisdiction of his person.
Affirm. | [
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Wood, J.
At the January term, 1904, Lucy Covington applied to the county court of St. Francis County, and asked that her license for operating a public ferry across St. Francis River, at Madison, be renewed. This license was granted on the 4th of January, 1904, and a $500 bond required of her, which she gave, and the court fixed the rate of toll to be charged, as follows:
Footman, each way, 2j4 cents.
Man and horse, each way, 5 cents.
1- horse vehicle, each way, 10 cents.
2- horse vehicle, each way, 12R2 cents.
4-horse vehicle, each way, 17^ cents.
4-horse log wagon (riot loaded with logs), each way, 20 cents.
Cattle, 10 head or under, each way, 5 cents.
Cattle, over 10 head, each way, 3 cents.
Stock escaping from the overflow shall be ferried free of charge; and said ferryman shall be allowed double the above rates after 8 p. m.
From the fixing of this schedule of rates, the appellant, Lucy Covington, appealed to the circuit court.
In the circuit court the judgment of the county court was affirmed, with the exception that appellant was allowed to charge for stock escaping from the overflow the same as in other cases.
On the trial in the circuit court, Peter Covington testified that Lucy Covington, his wife, was in possession of the land on the other side of the river, where the ferry crosses, and had been for a number of years; that fair rates for the ferry would be 25 cents round trip for a buggy, footman each way 5 cents; that the river at an average stage is 150 yards wide. That 20 cents a round trip would be right for a man and horse, 25 cents for a one-horse vehicle round trip; that a two-horse vehicle ought to be 30 cents for round trip; that a four-horse wagon ought to be 50 cents round trip-; that cattle ought to be 5 cents in any quantity; that 75 cents would be right for 4-horse log wagon (noc loaded) round trip. That it was not right to have tp move stock in the overflow for nothing, for you have to have four or five men to help you, and the boat is hard to handle in the current, and a man has to wade to handle the business. That for the past year the gross receipts were $980, and expenses $660, and that was at charges, he says, that were about right; that cutting them down to the present rate will make $180 or $200 difference. Witness here corrects his testimony, and says that receipts were $890, instead of $980; that he pays a man $1 a day to run it; that he kept a record of all receipts and expenses; that, besides paying a man $1 a day, he boards him; that he paid for a mule $50 damages.
George Stokes testified for appellant that he was the ferryman, and had kept the books about the ferry; that he had the preceding year by days; that the ferry had taken in $890.05; that the expense account was $313 to him, and $52 for a ferryman to run it on Sundays, and besides Covington boarded him. On Saturdays he would have to pay a man 25 cents an hour to help him; that the total expense during the year was $617, for everything, not including his board, and that his board was worth $10 a month.
The appellee then introduced Ed Berry, who said he was familiar with ferries, and with the Lucy Covington ferry, and the rates fixed by the county court. He was then asked what he thought of the rate fixed by the county court, and he answered: “I think it very reasonable, and propose to take it at that.” Appellant objected to this answer, and, being overruled, saved an exception. The witness then proceeded to say that it was a county road, and had been for several years.
Q. “And you say you propose to take it at that ?”
Objection by appellant overruled, and exception saved.
A. “I will take it right now, and am willing to put in á boat in a week.”
Peter Covington, recalled, said he had been running the ferry since 1887; that he had never run under these rates before, except when the county paid him a bonus of $250 to $300, and that there was not then as much travel as now; that he ran it one year as a free ferry. (Witness was understood to be saying that lie was paid by the county.) That he had never run it at the present rates without some bonus from the county. This was all the testimony.
The appellant asked two declarations of law, as follows: “That the licensee of a ferry privilege, who is also the owner, and in lawful possession of the shore land, cannot be placed in competition with unlicensed parties, as to rates, although the road served by the ferry may be a public county road,” which the court refused to give, and the appellant excepted at the time.
The second declaration was: “The shore owner’s rights are not lessened by the fact that the road served by the ferry is a public county road,” which the court refused to give, and the appellant excepted at the time.
And on the 18th day of March, 1904, a day of said term, appellant filed her motion for a new trial, as follows:
“Comes the plaintiff, Eucy Covington, and moves the court for new trial herein, and for cause says:
“That the court erred in permitting Ed Berry to testify that he would take the ferry and run it at the rates fixed by the county court in this cause.
“That the court erred in refusing the first declaration of law asked by the plaintiff.
“That the court erred in refusing the second declaration of law asked by the plaintiff.
“That the judgment of the court is contrary to law and contrary to the testimony.”
The court did not err in refusing to exclude the evidence, nor in refusing to declare the law as asked by appellant. The only matter before the court was the fixing of the toll. Any evidence that would enlighten the court as to the proper amount was competent. It was proper for the court to hear the testimony of any witness who was familiar with the subject, as witness Berry showed himself to be. After testifying that he was familiar with the ferry and the rates fixed by the county court, it was not improper for him to state that such rates were reasonable. That was the point of inquiry. Whether or not he was willing to take the ferry at the rates fixed was not relevant to the question under consideration, and he should not have been permitted to volunteer the statement that he was willing to take the ferry at the rates fixed. It was not a question of competition between rival applicants for ferry privileges. Appellant had that exclusive privilege under the statute. Chap. 66, § § 3556, 3561, Kirby’s Digest. Still, the statement could not have been prejudicial. The court, we must assume, was familiar with the law, and considered only such evidence as would tend to establish what would be a reasonable and proper toll. The question was one solely for the court. Sec. 3563, Kirby’s Digest.
The declarations of law were not germane to the question under .consideration by the court. There was no other application for license at this ferry. No question of competition in ferry license was before the court, and the declarations proposed were therefore abstract.
Affirm. | [
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Riddick, J.
This is a suit in equity by Bridget Healy against Michael Healy to secure a divorce. She alleged that the defendant had been guilty of such cruel and barbarous treatment towards her, and had offered her such indignities as rendered her condition in life intolerable; that in order to make a support, she was carrying on the business of keeping a hotel, and that the defendant interfered with the management of the hotel by insulting and threatening, not only herself, but the guests of the hotel.
The defendant filed an answer, denying the allegations of the complaint of his wife, and further alleged that for over a year before the commencement of the action she had been addicted to habitual drunkenness, and that while in that condition she was uncontrollable, and continually offered such personal indignities as made his condition in life intolerable.
After hearing the evidence the chancellor granted a divorce to the plaintiff.- He further found that the Alhambra Hotel, together with all the furniture therein, was the property of plaintiff, and entered a decree restraining the defendant from going upon such premises, or in any way interfering with the plaintiff in the use and management of such property. The defendant appealed.
The first question'presented arises on the motion of appellee that the appeal be dismissed for want of prosecution. The divorce decree was rendered on the 19th day of June, 1902. The appeal therefrom was granted by the clerk on the 18th day of June, 1903. The transcript filed with the clerk at that time contained a copy of the decree only. The reason for this was that the pleadings and depositions upon which the cause was heard had been lost or destroyed. Some delay has occurred in restoring such records; but, as the circumstances were unusual, and as the lost record has, by the filing of copies of pleadings and depositions under orders of the chancery court, been completely restored without prejudice to appellee, we are of the opinion that the motion to dismiss should be overruléd.
The testimony of the different witnesses whose depositions were read is voluminous. Without going into a discussion of it, we will say that it shows clearly that each of these parties was guilty of inexcusable conduct towards the other. Defendant Healy possessed a jealous, suspicious, and at times violent disposition; suspected certain guests of the hotel of being in love with his wife, and his wife of encouraging such emotions. On this account, he frequently indulged in violent exhibitions of temper, ordering guests from the hotel, and threatening violence to' all concerned. On the other hand, the evidence shows that Mrs.' Healy indulged habitually in intoxicating drinks to an excess. Frequently, when thus affected, she used violent and abusive language towards'her husband, calling him a liar, speaking of him as crazy, and saying she “would have his head examined'.”' The conduct of Healy might well have justified" such suspicion, but for the fact that it was no doubt caused to some extent by provocation on her part. As one of the witnesses expressed it, “it took mighty little to make a quarrel when they were fixed';” and if the evidence is to be credited, they were generally well fixed. As the result, unhappiness came' to both, and the condition of each of them was no doubt well-nigh intolerable.
But this court has well said that “unhappiness sufficient to render the condition of both parties intolerable may arise from the mutual neglect of the conjugal duties; but when the parties are thus at fault, the remedy must be sought by them, not' in the courts, but in the reformation of their conduct. Until this home remedy has been' tested and failed, the condition' of each may be said to be due to his or her own acts, and one must bear the consequences of his'own misconduct.” There is nothing to show that it is dangerous or unsafe for either of the parties to live with the other, so -the case falls within the rules' laid down by this court. Cate v. Cate, 53 Ark. 484; Womack v. Womack, 73 Ark. 281.
It is contended with much'force that the chancellor erred in his finding that the hotel and the furniture therein was the property of 'Mrs; Healy, but it seems to us that such finding was in accordance with a division of the property made between themselves, and' carried into effect by written conveyance! The furniture was not expressly mentioned, but we think that the evidence shows that it was the intention that plaintiff was ■ to keep and have all of this property in consideration for the money and other property turned over to defendant. This division" was made at his suggestion, and we do not differ from that part of the .decree, for it simply decreed to Mrs. Healy property that already belonged to her. 'As there was a continuous dispute between the' parties, both parties' claiming the ¡ownership and control -of-it, so niuch. of the decree as settled- -the rights of -these partieé.' thereto is affirmed. But, for the reasons stated above, we do not think that either party is entitled to a divorce in this case.' This is the second case of- this kind between these same parties. See Healy v. Healy, 44 Ark. 429. After a divorce had been declared in that case, it seems that they changed their minds, and had the decree annulled. It is possible that if they are made to know that the- courts do not lend too ready an ear to such complaints, and that they will not grant a divorce where both parties are about equally to blame, then one or both may be induced to mend their conduct. ' .
Judgment reversed, and cause' remanded with an order that' the complaint and cross-compláint each be dismissed for' want of equity, so far as the prayer for divorce is concerned. In other respects the decree is affirmed, and cost in the whole case is taxed one-half to each party. | [
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McCulloch, J.
The State appeals from a ruling of the circuit court sustaining a demurrer to an indictment against the defendant, Wesley Ring, charging him with the offense of carrying a pistol.
The indictment, omitting the caption and formal part, is as follows:
“The said Wesley Ring, in the State, county and district aforesaid, on the 10th day of july, 1904, did unlawfully carry a pistol as a weapon, the said pistol not being such a pistol as is commonly used in the army and navy of the United States.”
It will be observed that the indictment does not follow the language of the statute, which excepts “such pistols as are used in the army or navy of the United States” (Kirby’s Digest, § 1609), .and upon this ground the lower court sustained the demurrer.
The exception being in the enacting clause of the statute, it is an essential part of the offense, and must be negatived in the indictment, in order that the description of the offense may correspond with the terms of the statute. It is otherwise where the exception appears in a statute by way of proviso in a separate clause. Bone v. State, 18 Ark. 109; Matthews v. State, 24 Ark. 484; Wilson v. State, 33 Ark. 557.
It must therefore be alleged in the indictment that the pistol is such as is used in neither the army nor navy of the United States, whilst the indictment here in substance alleges that the pistol is not such as is common to both the military and the naval branches of the United States service. In this respect it .is defective, and the court properly sustained the demurrer. There may be a pistol common to both branches of the United States .service, but our statute seems to contemplate that there may be such weapon used in one of the branches and not in the' other, and it is no offense to carry a pistol used in either branch. So the indictment must allege that it is such as is used in neither.
A similar question was disposed of by the court in the case of State v. Railroad Company, 54 Ark. 546, which, we think, is conclusive of the case at bar. The statute requires railroads to cause a bell on its locomotives to be rung or the whistle to be sounded within eighty rods of crossings, and prescribes a penalty for failure to do so. In the case just cited the indictment against a railroad company' charged that the defendant “did unlawfully fail and neglect to ring the bell and sound the whistle on a certain engine,” and this court held the indictment to be insufficient. Mr. Justice MansEieed, speaking for the court, said: “The offence charged here is the failure to perform a duty which under the law may be discharged by doing either of two specific acts. The nonperformance of either of the acts is therefore an affirmative element of the offense, and without its averment the indictment is not valid. The railway company satisfies the law by using either a bell or a whistle at the places and in the manner required. * * * The import of the language thus employed (in the indictment) is to impute to the defendant a nonfeasance arising, not from a failure to do either of the acts, but from a neglect to perform both of them at the same time. And to say, in the form of expression used by the pleader, that the defendant failed to perform the two acts does not exclude the idea that he may have performed one of them.”
This was followed in Railway Co. v. State, 58 Ark. 39, which was a civil action against a railway company to recover the penalty for failing to perform the statutory duty of ringing the bell or sounding the whistle when approaching a crossing.
Affirmed. | [
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McCulloch, J.
This is an action brought by the administrator of the estate of LI. A. Stephenson, deceased, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the alleged negligent killing of said decedent by the train of defendant. Damages were laid in the sum of $25,000, and the jury returned a verdict in favor of the plaintiff for $2,000 to the estate for pain and suffering endured by the decedent after he was struck by the train, and $8,000 for the benefit of the widow and child of decedent.
Stephenson was employed by the railway company as brakeman on a through freight train, his run being between Little Rock, Ark., and Popular Bluff, Mo. As his train came into the terminal yards near Little Rock about midnight, he was struck by a coal car standing on a sidetrack, knocked to the ground, and run over by the cars of his train. From the injuries sustained he suffered great pain, and died a few days thereafter. The coal car had, by other employees of the defendant in the yards, been left so near the end of the sidetrack on which it stood that sufficient space did not intervene between it and cars passing on the adjoining track, and Stephenson was struck by it while he was on the side of a box car of his own train. It is not contended that there was any error in the instructions or verdict as to the question of negligence of defendant’s servants in leaving the coal car in the position named, or that the position of the coal car did not cause the injury complained of. So those questions may be treated as settled. It is only contended that Stephenson, in leaving his post of duty on top of his train and climbing down the side of the box car, was guilty of negligence which contributed to the injury, and that for that reason no recovery can be had. No one saw Stephenson when he was struck. He was the forward or head brakeman on the train, and one of the other brakemen on the train testified that he saw the swinging light from Stephenson’s lantern just before he climbed down the side of the car. Both of the other brakemen testified that they heard his groans as their end of the train passed the spot where he had fallen, that they found him lying on the ground, and that he told them the coal.car had knocked him off the side of the box car. They also testified that they saw the position of the coal car, and that it was close enough to strike a man on the side of a passing box car. There was no proof as to the purpose of Stephenson in climbing down the side of the car, except that it was the uniform custom of the brakemen, when they came into the yards at the end of the run, to get down from the train before it stopped, and wait for the caboose to come up, and then deposit their lanterns therein. The proof shows that the rules of the company required them to deposit their lanterns in the caboose before leaving the j^ards for their respective homes or stopping-places.
Appellant, to- establish contributory negligence on the part of Stephenson, introduced in evidence and-relied solely upon the following rule of the company, viz.:
“On freight trains having two brakemen it will be the duty of these men to ride on the top near the front and rear énd of same, and the conductor in the center of the train approaching all meeting points, down or up grades, through stations and entering yards. On trains having three brakemen, the forward and rear brakemen will, station themselves as above; the swing or middle brakeman will take a position near the middle of the train on top, in order to properly take signals from either end. The object of locating the trainmen as herein stated is in order to control the train when necessary or to assist in stopping or steadying the train when going down or up grade, and to change the brakes as frequently as is necessary to prevent heating wheels or sliding them flat. The use of a stick to set brakes is strictly prohibited. Conductors in charge of trains will instruct their men in regard to the above, and know that they occupy such positions. The conductor, being in charge of the train, will have authority to require brakemen to change positions with each other, when, in his opinion, it is necessary. On entering terminals, trainmen will remain in their assigned positions, and in charge of the train until the train has cleared the switches which they pull in on.”
It is also shown that Stephenson knew of the existence of this rule when he accepted employment from the company, and it is claimed that he was guilty of contributory negligence in violating it.
It cannot be said to be negligence per se for a brakeman on a freight train to climb down the side of a box car. His duties require him to do so frequently, and whether or not it is negligence to do so at a particular time or under given circumstances is a question of fact, for a jury to determine.
The doctrine is well-established that violation by the servant of rules promulgated by the master for the protection, under such circumstances as those attending the injury, of the class of employees to which he belonged is of itself contributory negligence, and should be so declared as a matter of law. 1 Labatt, Master and Servant, § 365; Dresser on Employers’ Liability, § 109.
The rule in question was manifestly adopted, not for pro-' tection of the servants, but to measure the servant’s duty to thé master in the performance of his work. It states, in terms, that the object was to require the brakemen to be in position to handle the train. Whether the violation by the servant of such a rule made solely for the benefit of the master can be held to be negligence per se is another question altogether, and one which it is not necessary to decide in this case. The reason upon which the authorities base the doctrine of contributory negligence in violating rules seems to lead to the conclusion that it would not apply to such a rule as this. 1 Labatt, § 365 a, and cases cited; L. R. & Ft. S. Ry. v. Eubanks, 48 Ark. 460.
Be that as it may, there was proof tending to show that this rule, so far as it required trainmen on entering terminals to remain on top of the train until the switches were cleared, was uniformly, openly and habitually disregarded by the trainmen for a considerable period of time, to the extent that they got off the train and started back to the caboose or waited for it to come up before the train came to a stop.
The court submitted to the jury the question of the abrogation .of the rule in this respect, upon the following instruction, towit:
“7. You are instructed that while Stephenson was presumed to know the rule in evidence, and that it was his duty to obey the' same so long as it was in force, if you find from the evidence that for a number of years this rule had been openly, continuously and habitually disregarded by the employees of defendant for such period and to such an extent as to lead to and justify the belief that the rule had been abrogated by the company, or its nonobservance acquiesced in, then the non-observance of the rule by Stephenson will not, of itself, bar a recovery, provided, that you find that the non-observance of the rule was for so long a period and of so frequent occurrence as to cause you to believe that the railway company must have known of and acquiesced in its nonobservance ; and in determining whether or not the rule had been abrogated, or its non-observance acquiesced in by the company, you may take into consideration the period of time, the extent to which and openness with which the rule had been violated by the employees of defendant, if you find from the evidence that the rule had been violated.”
The court also gave the following at the request of the defendant:
“14. You are instructed that it would make no difference, if you find that the decedent knew the rule (or that the facts in evidence charged him with notice of it), that other employees frequently and customarily disregarded it. To make this reply avail as an excuse for non-observance by the deceased, you must find from the evidence that the defendant railway company knew of the practice of the employees in disregarding the rule and acquiesced in such practice in such a way as to sanction it, or as to be held practically to have abrogated it.”
These instructions correctly stated the law with reference to abrogation of rules by continued disregard of them, acquiesced in by the employer, and there was evidence sufficient to sustain a finding by the jury that they had been abrogated. L. R., M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333.
“A custom in violation of a rule, known and acquiesced in by the employer or his representatives, amounts to an abandonment of the rule, to the extent to which the custom infringes the rule. * * * In other words, evidence that the rule in question was habitually violated to the knowledge of the employer is admissible for the purpose of repelling the inference which would otherwise be drawn, as a matter of law, when the violation is proved.” 1 Labatt, § 232; Dresser, p. 521; Tullis v. Lake Erie & W. R. Co., 105 Fed. 554; Fluhrer v. Lake Shore & Mich. So. Ry. Co., 121 Mich. 212.
But it is contended that there was no proof that the habitual violations of this rule were known to the superior officers of the railroad company or those authorized to bind it by acquiescence in the disregard of the rules. The conductor was, by the rule itself, constituted the representative of the company for its enforcement. It was his duty to enforce the rule or report infractions thereof to his superiors, and, as to his subordinates, acquiescence by him in the violations of the rules was the act of the company. There is abundant proof that the conductors must have known of the habitual violation of this rule by brakemen, and the jury were warranted in so finding. Cleveland, C. C. & St. L. Ry. Co. v. Baker, 91 Fed. 224; Tullis v. Lake Erie & W. Ry. Co., supra; Mason v. Railroad, 111 N. C. 482; Central Railroad v. Debray, 71 Ga. 406; Boatwright v. North Eastern Railroad Co., 25 S. C. 128.
Moreover, knowledge of the company may be inferred from the notoriety of the habitual custom of the employees in disregarding the rule. Lawson, Usages and Customs, § 21; Fluhrer v. Lake Shore & Mich. So. Ry. Co., supra; Lowe v. Ry. Co., 89 Iowa, 420; Cleveland, C. C. & St. L. Ry. Co. v. Baker, supra; Tullis v. Lake Erie & W. Ry. Co., supra; Barry v. Hannibal & St. J. Rd. Co., 98 Mo. 62; McNee v. Coburn Trolley Track Co., 170 Mass. 283.
All the other issues were fairly submitted to the jury upon proper instructions, and we find no error in that respect. ‘The evidence was abundant to establish the liability of appellant.
No complaint is made by the appellant as to the amount of the verdict of $2,000 assessed by the jury to cover the' element of pain endured by the deceased, but it is contended that the verdict of $8,000 on the other branch of the case is excessive. The evidence establishes the earning capacity of deceased at about $75 per month, but it fails to show what amount he contributed to the support of his family. His widow, the only witness who testified upon the subject, was repeatedly asked on direct examination and cross-examination to state the amount of such contribution, but she could give little information on the subject. The only statement she gave concerning the amount of contributions sufficiently definite to rest an estimate of damages upon was that while they lived at Alicia, Arkansas, he paid the grocery bills, house rent and clothing for herself and child $18 per month. She testified, in general terms, that he furnished a support for herself and child, but did not state the amount contributed. It is certain from the proof that he contributed more than $18 per month, but there is no means of ascertaining from the proof what amount he did contribute. The jury were not warranted in supplying the deficiency in the proof from their personal knowledge of the probable cost of supporting the family, especially where it fails to show even the style and circumstance in which they lived.
There was some proof tending to show that his habits and character were such that his care and moral training of his child were of some value, and, under the rule stated in Railway Company v. Sweet, 60 Ark. 550, the jury were warranted in assessing some amount of damage on that score, but the evidence here does not authorize a large amount.
Taking the proof in the record, we have no hesitancy in saying that the verdict is excessive. The liability of appellant being established by the verdict upon instruction free from error and evidence sufficient in support, it remains only for us to fix the minimum amount of recovery which we think the jury should have assessed under the evidence, and require appellee to remit the judgment down to the proper amount or suffer a new trial.
We think that the judgment is excessive to the extent of $3,000; and if appellee will within 15 days remit that amount, the judgment will be affirmed for the remainder; otherwise, it will be reversed, and the cause remanded for a new trial. | [
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McCulloch, J.
Appellant seeks to recover the amount of an account for intoxicating liquors sold in quantities not less than a quart. He was by the county court of Lonoke County granted a license to sell liquor, but on the appeal of certain citizens who remonstrated against granting the license the circuit court canceled his license, and he appealed to this court. The record in the. case at bar does not disclose whether or not the appeal was ever perfected, and, if so, what disposition was finally made of the case. Subsequent to the judgment of the circuit court canceling the license, the liquor in question was sold by appellant. He contends that there is no proof in the record that his license had been canceled, but that the trial court took judicial notice of that fact, the judgment of cancellation being a part of the records of that court. The record does not bear out that contention, for the bill of exceptions does contain a copy of the judgment of the circuit court canceling the license. An appeal to this court from the judgment canceling the license did not supersede the judgment, and any -sale of liquor thereafter made by appellant was unlawful.
A sale of intoxicating liquor without license being a violation of law, a suit to recover the price of the liquor sold can not be maintained. The contract is illegal and void, and can not be enforced. 17 Am. & Eng. Enc. Law, p. 305; Black on Intox. Liq. § 249; Miller v. Ammon, 145 U. S. 421.
Miller v. Ammon, supra, was a suit brought by a dealer in liquor in violation of an ordinance passed by the city council of the city of Chicago, to recover the price of a large quantity of beer sold, and Mr. Justice Brewer, speaking for the court, said: “By the ordinance, a sale without a license is prohibited under penalty. There is in its language nothing which indicates an intent to limit its scope to the exaction of a penalty, or to grant that a sale may be lawful as between the parties, though unlawful as against its prohibition; nor, when we consider the subject-matter of the legislation, is there anything to justify a presumed intent on the part of the lawmakers to relieve the wrong-doer from the ordinary consequences of a forbidden act. By common consent the liquor traffic is freighted with peril to the general welfare, and the necessity of careful regulation is universally conceded. Compliance with those regulations by all engaging in the traffic is imperative; and it cannot be presumed, in the absence of express language, that the lawmakers intended that contracts forbidden by the regulations should be as valid as though there were no such regulations, and that disobedience should be. attended with no other consequence than the liability to the penalty. There is, therefore, nothing in the language of the ordinance or the subject-matter of the regulations which excepts this case from the ordinary rule that an act done in disobedience to the law creates no right of action which a court of justice will enforce.”
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) This case, so far as it applies to Chapman & Dewey Land Company, is controlled by Myers v. Hawkins, 67 Ark. 413. It is neither alleged nor proved that cutting of the timber would result in irreparable injury to the land, or that said defendant was insolvent.
On the other branch of the case, the plaintiffs seek to cancel, as a cloud on their title, a former decree of the chancery court adjudging the land to Mrs. Grider, rendered in a suit between strangers to the title — -a suit in which neither the plaintiffs nor any privy to their title was a party. The land was wild and unoccupied. Did the decree constitute such a cloud upon plaintiff’s title that a court of equity can be called upon to remove ?
Judge Cooley says that “a cloud upon title is something which constitutes an incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole or some interest in it.” 2 Cooley on Taxation, p. 1448.
Judge Field, in Pixley v. Huggins, 15 Cal. 133, said: “The true test, as we conceiVe, by which the question whether a deed would cast a cloud upon the title of the plaintiff may be deter-minded, is this: Would the true owner of the property, in an action of ejectment brought by the adverse party founded upon the deed, be required to offer evidence to defeat recovery? If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight without proof in rebuttal, no occasion would arise for the equitable interposition of the court; as in the case of a deed void^upon its face, or which was the result of proceedings void upon their face, requiring no extrinsic evidence to disclose their illegality.”
This court has held that a tax deed void on its face is no cloud on title. Chaplin v. Holmes, 27 Ark. 414; Crane v. Randolph, 30 Ark. 579; Lawrence v. Zimpleman, 37 Ark. 643; Allen v. Ozark Land Company, 55 Ark. 549.
A conveyance of land executed by a stranger to the title, or the judgment of a court rendered in a suit between strangers to the title can not affect the true owner, and casts no cloud upon title of the true owner. It is not an “apparent title,” nor does it prima facie create a right which the true owner, or even an occupant without title, of land must bring forward evidence to rebut. Rea v. Longstreet, 54 Ala. 291; Thompson v. Etowah Iron Co., 91 Ga. 538; Dunklin County v. Clark, 51 Mo. 60; Ward v. Dewey, 16 N. Y. 519.
“If an entire stranger assumes to convey the premises to which he has no shadow of a title, and- of which another is in possession, no real cloud is thereby created. There is nothing to give such a deed even the semblance of force. It can never be used to the serious annoyance or injury of the owner.” Ward v. Dewey, supra.
The same can be said of a decree rendered in a suit between strangers to'the title. At most, such a decree serves only to adjudicate the title between these two, or to pass whatever title one may have to the other. It does not cloud the title of the true owner.
The chancellor was therefore correct in dismissing the complaint, and the decree is affirmed» | [
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McCulloch, J.,
(after stating the facts.) 1. Appellants contend that their demurrer should have been sustained because a cause of action is not stated calling for equitable interference, and that the several sets of bondsmen can not be joined in one action. They rely upon the case of State v. Turner, 49 Ark. 311, as sustaining their contention. That case was a suit against a county collector and six sets of sureties on his several official bonds to set aside erroneous settlements with the county court. A demurrer to the complaint was sustained, and this court affirmed the decision of the circuit court. The decision is placed upon the ground that the allegations of the complaint lack precision, and do not point out specifically the errors and fraudulent credits complained of; and that no cause is stated for uniting the sureties on the several bonds in one suit. It is pointed out in the opinion that the collector is not required by law to keep books and accounts from which the condition of his account with the county can be ascertained, but that his account is kept by the clerk, and in this way the court distinguishes the case of State v. Churchill, 48 Ark. 426, where, upon similar allegations, a suit of this kind was maintained against the State Treasurer and the separate sets of sureties on his several official bonds.
; We think that the facts of this case bring it within the doctrine established in the Churchill case, and that the suit properly lies in equity, and that all the sureties may be joined in one suit. In this way only can the ends of justice be met.
Mr. Justice SomervieeE, in delivering the opinion of the court in Lott v. Mobile County, 79 Ala. 69, said: “The questionof multifariousness is often one of policy and convenience, and therefore rests largely within the discretion of the court. It is sufficient to sustain a bill against such a charge that each defendant has an interest in some of one matter common to all the parties. The objection is discouraged when sustaining it might lead to inconvenience or defeat the ends of justice. Piling separate bills against each set of sureties in this case, it seems to us, might lead to great inconvenience, in view of the peculiar interests each surety has in the taking of the account, and the correction of alleged errors of credits and payments.”
The county clerk is the custodian of the books of the county and the keeper of the various accounts of the county with himself, as well as with all others who have dealings with the county. It is here alleged that the clerk presented and procured the allowance of improper and fictitious accounts, fraudulently issued scrip to himself upon fictitious allowances and upon judgments or allowances which he had fraudulently raised in amount, and that the accounts kept by him are so complicated that it is impossible to point out and designate the various items, or ascertain the liability of the respective bondsmen without the aid of a court of equity and the reference to a master.
We think these allegations are sufficient to give a court of equity jurisdiction, and justify a joinder of the several sureties in one suit.
2. It is next contended that the decree was erroneous because the proof failed to show that 'the fraudulent warrants have ever been paid by the county.
It is too plain, upon principle, to need citation of authority in support of it that sureties on official bonds, as well as upon other undertakings, are liable thereon for only such breaches as result in injury to the obligee, and only to the extent of such injury. Appellants say that, notwithstanding the misconduct of the principal, which amounted to a breach of his bond, the county suffered no injury because the warrants have not been paid, and that, being void because of the fraud, the county is in no wise liable for payment thereof. State v. Hinkle, 37 Ark. 532, was an action brought at law by the State for the use of Izard County to recover from a sheriff illegal fees allowed to him, and for which warrants had been issued but not paid. This court held that no recovery could be had in that suit, without showing that the warrants had been paid. The case at bar is, however, altogether different. This is a suit in equity to surcharge the account of the clerk as well as to recover from him and the sureties on his^ official bonds the amounts. for which warrants have been fraudulently issued to him in excess of .the proper amount due. The primary object of the suit is to correct his accounts, and to ascertain upon which of his bonds rests the liability for his official misconduct. When this was done, the court of equity, which should not grant relief by piecemeal, went further and properly granted such relief as afforded adequate protection to the county from injury. If the county was not liable for the outstanding illegal warrants, and could not be required to pay them, and should refuse to pay them, then appellants would be liable to the holders of the warrants. Since the county elects to treat the warrants as outstanding liabilities, and to take a decree for the amount thereof, giving appellants the right to satisfy the decree by production and surrender of the warrants, no harm is done to appellants by thus transferring their liability from the holders of the warrants to the county. The court in this way protected the county from the danger of having the warrants pass without notice of illegality into the hands of the collector of taxes or treasurer. It is just such remedy as a court of equity should afford. The warrants in question embraced both legal and fictitious allowances, and, if the warrants had been before the court, as in the case of Shirk v. Pulaski County, 4 Dillon, 209, the court might have inspected them, and, as was done in that case, cut them down to the proper and legal amounts. But in that case the plaintiff brought the warrants before the court, asserting their validity, whereas in the case at bar the- warrants were not before the court. It was not shown who the owners were, nor whether the warants had ever been paid. If the warrants are in the hands of third parties, and the county refuses to pay them, appellants are liable on their bonds to such holders for the fraudulent misconduct of the clerk in issuing them; if they have been paid by the county, appellants are liable; and if the warrants are in the hands of appellants, or either of them, the decree can be satisfied by production and surrender thereof. So in no event are appellants injured by the peculiar remedy allowed by the court. If the warrants have never passed out of the hands of appellant Place, appellants should have shown that fact by way of defense.
We find no error in the decree, and it is in all things affirmed. | [
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McCulloch, J.
The appellant was indicted, under section 6882, Kirby’s Digest, for the offense of engaging in the business of selling spirituous, vinous and malt liquors without having paid the'tax required by law, and was convicted and adjudged to pay a fine of $1,600.
The facts are undisputed. On January 7, 1902, the county court of Hot Springs County, upon petition of a majority of adult inhabitants residing within three miles of a schoolhouse in Malvern, made an order, as provided by law, prohibiting the sale of intoxicating liquors within that radius. On January 14, 1904, the county court, upon petition of adult inhabitants of that radius, made an order revoking the former prohibition order, and on the same day issued a license to appellant for the sale of liquor in the town of Malvern. Certain remonstrants took an appeal to the circuit court from the order of revocation, and, upon trial- anew in that court, the prayer of the petition for revocation was denied, the revocation order made by the county court was set aside, and the original prohibition order declared to be in full force. This judgment of the circuit court was certified down to the county court and. there entered. Subsequently, another petition for revocation was filed in the county court, and on April 14, 1904, that court made another order revoking the prohibition order.
Thereupon, appellant presented his' petition to the county court for license, reciting the foregoing proceedings, the payment by him of the license tax in January preceding, the subsequent revocation of his license by the judgment of the circuit court, and prayed that the collector be ordered to issue to him a receipt showing the previous payment of said license tax, and that, upon the filing of such receipt with the county clerk, a license be issued to him in lieu of the former license, without requiring another payment of the tax. The court granted the prayer of this petition, and ordered the issuance of license. The collector executed to appellant a duplicate receipt, which was filed with the ■clerk, who issued to appellant a liquor license in regular form. It is admitted that appellant, under this license, engaged in the business of selling liquors. Was he protected by the license?
The judgment of the circuit court denying the prayer of the petition for revocation of the prohibition order operated as a revocation of the license issued to appellant. Bordwell v. State, ante, p. 161; State v. Doss, 70 Ark. 312; Black on Intoxicating Liquors, § 129.
Upon revocation of the license, appellant was not entitled to return of the money paid for the license, and could not have recovered it. Peyton v. Hot Spring Co., 53 Ark. 236; Black on Intoxicating Liquors, § 188; Lydick v. Konner, 15 Neb. 500; Board of Commissioners of Monroe County v. Kreuger, 88 Ind. 231.
The second order of the county court revoking the prohibition order did not operate as a reinstatement of appellant’s license, which had been revoked by the judgment of the circuit court. It was completely annulled, and no life could be infused into it. The county court then attempted to credit appellant with the amount which he had paid for the annulled license, and to issue a new license to him without further payment of the tax prescribed by law. This the court had no power to do, as the statute requires that, before the court can grant the license and order the clerk to issue the same, the appellant must first “pay to the collector, and produce his receipt therefor, the amount of money and fees specified,” etc. Kirby’s Digest, § 5122; Hencke v. Standiford, 66 Ark. 535; Zielke v. State, 42 Neb. 750; Fry v. Kaessner, 48 Neb. 133; Doran v. Phillips, 47 Mich. 228.
It is undoubtedly true, as contended by counsel for appellant, that determinations of county courts are, until reversed by superior tribunals, conclusive as to all matters within their jurisdiction; and adjudged cases are not lacking which hold that irregularities in judgments of such courts granting liquor licenses cannot be taken advantage of collaterally, so as to avoid licenses issued pursuant thereto. Black on Int. Liq., § 178; Goff v. Fowler, 3 Pick. 300; Hornaday v. State, 43 Ind 306; Com. v. Graves, 18 B. Mon. 33.
But, under our statute, payment of the tax to the collector and production of his receipt therefor are essential to the jurisdiction-of the court to grant the license. The judgment of the court affirmatively shows that the tax was not paid, and it was therefore void for want of jurisdiction, and the license issued pursuant thereto was also void, and afforded no protection to appellant.
The statute under which appellant was indicted reads as follows:
“Sec. 6881. Every person wishing to engage in the business of hawking or peddling, peddling clocks, or as agent for the sale of sewing machines, lightning rods, stove ranges, or wishing to engage in the sale of spirituous, vinous or malt liquors in this State, shall first pay for and take out a license for the privilege of engaging in any business specified by law.
“Sec. 6882. Any person who shall engage * * * in the sale of spirituous, vinous, or malt liquors in this State, without having paid the tax as provided in this act for said privilege, shall be guilty of a misdemeanor, and upon conviction shall be fined in double the amount of license he would be by the provisions of this act chargeable with.” (Kirby’s Digest.)
This statute was enacted as a part of the general revenue act of March 31, 1883, and has been held by this court not to have repealed any other statute regulating the liquor traffic, but, as said in Blackwell v. State, 45 Ark. 90, it “is pointed at those who undertake to carry on the business of selling liquors without the payment of the proper tax. The essence of the offense is the defrauding of the State and county of their legitimate revenues.” Chamberlain v. State, 50 Ark. 132; Mazzia v. State, 51 Ark. 177.
It is contended that, though the license was void, and appellant criminally liable under another statute for an unlawful sale of liquor without license, yet he is not guilty of violation of the statute under consideration because he once paid the tax for the privilege of selling during the year ending December 31, 1904. It is argued that this statute only prescribes a penalty for engaging in the business without having paid the tax, and that appel lant paid the tax, though his license was annulled. We do not think the argument is sound. The payment referred to in the statute manifestly means a payment for the procurement of a valid license, and a payment of the tax without procurement of a license from the county court would not protect. Neither would a payment p’rotect from the penalty of this statute, after the license issued therefor had been annulled.
There is rio escape from the conclusion that neither the issuance of the second license without payment of the tax, nor the payment of the tax upon the issuance of the first license, protected appellant from the penalty of the statute which he is charged in the indictment with having violated.
It is manifest from the evidence that the license was issued to and accepted by appellant in good faith and without any intention to defraud the State and county. In making his application for license he was represented by counsel and set forth all the facts. The judge of the county court, as well as the collector and clerk, seem to have'treated as valid the order of the court authorizing the issuance of the license without payment of the tax. Under these circumstances the penalty of this statute is a harsh one for what appears to be an unintentional violation of the law. These facts would doubtless appeal with much force for executive clemency, but afford no ground for relief in the courts, where the law must be enforced as it is written.
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Wood, J.,
(after stating the facts.) The judgment of the circuit court in the case of Ayres v. Roy, in which Ayres recovered judgment against Roy for the logs, is conclusive here as to the title and right of possession of the appellee to the logs which the sheriff took possession of under the order of delivery in that suit. Appellants allege that the judgment was void for want of jurisdiction of the person of Roy, but they fail to show it. The judgment recites that “the defendant had been duly summoned to appear and answer, but made default.” This was sufficient to show jurisdiction. It was the province and first duty of the court to determine- whether it had-jurisdiction of the person of-the defendant, against whom it -was about to render judgment. The record affirmatively recites: “It appearing to the court that defendant had been duly summoned.” We- must presume, in the absence of evidence-to the contrary, on collateral attack, that the . court had evidence before it upon which to base a finding in favor of its jurisdiction. “When the jurisdiction of a court of general jurisdiction, depends upon facts not appearing in the record, they will be presumed in a collateral proceeding.” McConnell v. Day, 61 Ark. 464, and cases cited.
When the sheriff executed the order of delivery by taking possession of the property named therein, from that moment such property was in custodia le gis. Cobbey on Replevin, § 706; Hagan v. Lucas, 10 Pet. (U. S.) 400.
Having seized the property by virtue of legal process in the replevin suit, he was on that account privy to the prosecution of that suit. Prentiss v. Holbrook, 2 Mich. 372. See Gelston v. Hoyt, 13 Johns (N. Y.), 580. And he could only exempt himself from liability for loss of the property which had come into his possession in that proceeding by showing that he had made such disposition of it as the law directs, or that its loss was not on account of his negligence. It was not his province then, nor can he now question the right and title of the plaintiff in that suit. Cobbey on Rep., § § 1168-1178. As custodian of the property, at the termination of that litigation, he held the fruits of it subject to the lawful orders of the tribunal whose duty it was to adjudicate the rights of the parties, unless after seizing it he had disposed of it as the statute directs. Kirby’s Digest, § 6863. In contemplation of law the property, after seizure by the sheriff, remains in his possession (the defendant failing to give bond) until it is turned over to the plaintiff in replevin. As to whether he made legal disposition of it was submitted to the jury upon proper instruction, and there was evidence to support the verdict.
This view eliminates every question presented at the trial and so exhaustively treated in briefs of counsel, except the following :
1. The sheriff’s return was not conclusive. The seventh paragraph of the complaint set out in the statement of facts shows that this was a suit, in legal effect, against the estate of 'the sheriff and the sureties on his bond for false return. The return of the officer was directly questioned. This being true, the court did not err in refusing the request of appellants for instruction telling the jury that the return of the officer on the order of delivery in the replevin suit was conclusive, nor did it err in granting the request of the appellee for an instruction to the effect that such a return of the sheriff “was only prima facie evidence of the fact that the possession of the logs had been turned over to the appellee.” State v. Lawson, 8 Ark. 380; Craven v. Higginbotham, 83 Ala. 429; Thorn v. Kemp, 98 Ala. 417; Murfree on Sheriffs, p. 429, § 866.
The question whether or not the logs in the replevin suit, after being levied on by the sheriff, were lost through his negligence was properly submitted to the jury, and there was a conflict in the evidence with ample evidence to sustain the jury’s verdict. We therefore will not disturb it.
The jury was properly directed in instruction No. 5B as to what would constitute a delivery of the logs to the plaintiff in the replevin suit, and there was evidence to sustain the verdict that no such delivery had been made to appellee.
2. The measure of damages in the case is the value of the logs at the time they should have been delivered by the sheriff to the plaintiff in the replevin suit. The sheriff was simply their legal custodian, and if, through his negligence, they were lost, as the jury has determined, he was liable for their value as they were when he, in the absence of a retaining bond, should have turned them over to appellee, the plaintiff in the replevin suit. The jury was properly directed as to this. It follows that the court was correct in refusing the following request of appellants for instruction: “The original order of delivery, affidavit and complaint in the replevin suit of Ayres v. Roy state the value of the logs to be $750. Your verdict, therefore, can not in any event exceed said sum.” The allegation of value in the complaint in replevin is a matter of form in pleading. The plaintiff must prove the value, even if not denied, and he may prove a greater value than that alleged, if he can. Bailey v. Ellis, 21 Ark. 489; Cobbey on Replevin, § § 539, 540.
3. Appellants waived any objection they might have had to the jurisdiction by answering without making or insisting on a motion to abate for want of .service.
4. The penalty of $50 “for false return” was not authorized by the statute. This was not a suit under section 4487, sub-div. 6, for failing to execute process, as contended by counsel for appellee, but, as we construe the complaint, it is a suit against the officer for false return.
In the respect indicated the verdict was erroneous. The judgment will be modified by reducing it here in the sum of $50; and, as thus modified, it will be affirmed.
“No. 5 B. If the sheriff delivered the logs to Ayres, he was not responsible for their loss. His return states that he did deliver them to Ayres, and his return is prima facie evidence of that fact. Delivery of logs to Ayres does not consist in making a return stating that he delivered them to him, neither does it consist in merely telling Ayres that he placed him in possession of them, if Roy or any one else was in possession of them. But the only way he could have delivered the logs to Ayres so as to relieve himself of responsibility would have been by placing Ayres in the actual exclusive control of the logs.”
“No. 6. If you find that the plaintiff is entitled to recoved under at the actual cash value of the logs that were levied upon; and, if you see proper to do so, you may allow interest at the rate of six per cent, per annum on the value of the logs from the time they were levied unon to the present time.” | [
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Battle, J.
On the 15th of October, 1891, John C. Connerly purchased from the heirs of Plorace F. Walworth, deceased, a tract of land, containing 542 acres; agreeing to pay therefor $2,710. The land was conveyed by the heirs to Connerly. The money to pay for it was advanced by W. W. Rose under a contract that the title to the lands should remain in Connerly in trust for the following purposes and uses: “That the said John C. Connerly should sell said lands, .or any portion thereof, upon the terms and conditions as to him (may) seem best, and for that purpose to make a deed or deeds to any purchaser or purchasers of said lands or any part thereof, and pay over the proceeds of such sales to said William W. Rose, until the original purchase money, together with 10 per cent, per annum interest thereon, had been fully repaid to the said William W. Rose; and that the proceeds arising from the sale, lease or rental of said lands, after the repayment of the purchase money aforesaid, shall be distributed between the said William W. Rose and the said John C. Connerly in the proportion of one-third to the former and two-thirds to the latter.
“The said John C. Connerly shall account for and pay over to the said William W. Rose the moneys received from said lands, as fast as the same are received, until the original purchase money, with interest, is repaid, when a settlement shall be made on the first day of each October of the profits arising from the venture.”
The contract was signed and acknowledged by both parties, and recorded.
Connerly sold the lands to many persons, and took from them notes for the purchase money. There is no contention or effort to show that any of the lands remained unsold, and we infer from the whole case that all of them were sold. After these sales were made, the lands were overflowed by high water, and many of the purchasers were unable to pay for lands; and only $500 were collected by Connerly.
Rose died in 1892; and Abner Gaines was appointed administrator of his estate, and qualified as such. The interest of the estate in the notes given for the lands was appraised at $2,710.
On the second day of November, 1897, five years after the death of Rose, Abner Gaines, as administrator, filed a petition to the Chicot Probate Court, which is as follows:
“Comes Abner Gaines, as administrator of estate of W. W. Rose, deceased, and states that among the assets of said estate there is a claim against J. C. Connerly, as trustee for said intestate, inventoried and appraised at $2,710; that said claim consists of an interest in the proceeds to be derived from the sale of certain lands, conveyed to the said Connerly by the heirs of Horace R. Walworth, all of which appears by reference to the agreement made on the 12th day of December, 1891, and filed in the recorder’s office of Chicot County, on the 19th day of same month, and recorded in record book N-I, page 194, and the power therein given the said Connerly by. said intestate, which agreement containing said power is filed herewith marked “Exhibit A,” and made a part of this petition, with the conveyance to said Connerly from said heirs of Horace E. Walworth, to which the said agreement refers. Your petitioner further states that the said Connerly has not received the proceeds from said lands as contemplated by himself and the said intestate, at the time of making said agreement, except the sum of five hundred dollars, which petitioner believes he can collect; but for the remaining interest he says that, by the existing laws of this State, either in money or property, he is unable to realize, except [that] through a long and expensive suit in chancery he might subject the lands'mentioned in said agreement to the claim, but that he is not authorized to take such steps without orders from this court. That upon the whole he believes it to be the best interest of all parties and to said estate, particularly, that said claim be sold under the order of this court; wherefore, your petitioner prays an order of sale of said claim, credited with the amount of $500, collected and held by the said Connerly, and which your petitioner believes he can collect from him.”
The court,- being sufficiently advised in the premises, and finding that the claim “can not be realized in money or property under existing laws, and that it will be for the benefit of said estate to sell the said claim,” ordered that it be sold, and it was sold at public sale to Katie K. Connerly, wife of John C. Connerly, for the sum of $3,000, she being the highest bidder. She paid the $3,000 with her own money, and the sale was approved by the court.
Thereafter, in December, 1899, John C. Connerly died, and in March, 1900, the heirs of William W. Rose, deceased, instituted this suit against Mrs. Connerly to vacate the sale of the claim to her and to enforce the trust according to its terms. The defendant answered. The court heard the cause upon the evidence adduced, and dismissed the complaint for want of equity.
The $2,710 advanced to John C. Connerly to pay for lands was a loan, for the payment of which Connerly did not bind himself personally, but agreed to hold the land in trust. The lands were to be sold. The loan and ten per cent, interest per annum thereon were first to be paid out of the proceeds. Rose was to receive one-third of the remainder. This was evidently compensation for the loan. Connerly sold the lands on a credit, and took notes for the purchase money. Rose’s portion of these notes constituted his claim against Connerly, as trustee. The Chicot Probate Court found that this claim could not be realized in money or property. We infer from this finding that all of the lands were sold on time. Why the court found that the claim in this form against the trustee cannot be realized in money or property under existing laws doth not appear. But the court, having jurisdiction to do so, had so found, and, such being the fact, had jurisdiction to order the sale of the claim; and, no evidence of fraud in the procurement of the order of sale or in the sale being adduced in the hearing of the case, the chancery 'court committed no error in dismissing the complaint of plaintiffs for want of equity.
Decree affirmed. | [
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Wood, J.
Appellant was indicted in the Sebastian Circuit Court for the larceny of a bank check valued at $15. The indict ment was good. The stealing of the check as alleged would consti tute grand larceny under sections 1821 to 1824 inclusive, of Kirby’s Digest.
The court erred in excluding from the jury testimony concerning the prior transactions with Emmet Erizzell as to th¿ giving by him of money and checks to appellant. This testimony tended to explain the appellant’s possession of the alleged check, and to throw light upon his intent in the transaction. It corroborated appellant’s version, and was proper for the consideration of the jury. The court erred in overruling appellant’s second, fourth and fifth grounds of the motion for new trial. Attorney General’s confession of error is sustained.
The judgment is reversed, and the cause is remanded for a new trial. | [
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McCulloch, J.
The county court of Ashley County made an order for the construction of a new courthouse, a contract was made for the construction of the building, and the same has been completed. This, order was made at the October term, 1903, of the levying court, and that court, after making the appropriations for the various items of ordinary expenses of the county for the current year, and levying a tax of three mills to cover the same, made the following order with reference to the new courthouse :
“It is ordered by the court that the sum of $40,000 be and the same is hereby appropriated and set apart to build a new courthouse. It is further considered and ordered by the court that a special levy of two mills tax on the dollar be and the same is hereby levied on al„l the taxable property of Ashley County to build a new courthouse, and that said tax be receivable only in currency or proper warrants drawn by proper order on the courthouse fund.”
The contract for the construction of the building stipulated that the contract price should be paid in “warrants drawn on the courthouse fund, as provided for in the order of the Ashley County Levying Court, at its October term, 1903.” A similar levy of taxes for the year 1904 was made by the court at the October term, 1904. Appellee, Jackson, being a taxpayer of the county and the holder of a warrant issued by the county court in his favor on the treasurer of the county to be paid out of the funds appropriated for ordinary county purposes, tendered the warrant to the tax collector in payment of that part of his taxes levied for all county purposes, including the so-called special levy for erection of courthouse. Upon the refusal of that officer to accept the warrant, he brought this suit to compel its acceptance.
The sole question presented is, whether or not a tax levied for this purpose can be paid in county warrants drawn upon funds appropriated for ordinary county purposes.
The various statutes of this State which, it is claimed, authorize the payment of county taxes in county warrants, as found in Kirby’s Digest, are as follows:
“Sec. 1466. All warrants drawn on the. treasury shall be paid out of any money in the treasury not otherwise appropriated, or out of the particular fund expressed therein, and shall be received, -irrespective of their date and number, in payment of all taxes and debts accruing to the county.”
“Sec. 1174. All county warrants and county scrip shall be receivable for any taxes for county purposes except for interest on the public debt and for sinking fund, and for all debts due the county by whose authority the same were issued. * * * Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.” Act December 14, 1875.
“Sec. 7056. The collector shall receive county warrants in payment of county taxes. * * * Provided, this section shall not be so construed as to compel the acceptance of any order or warrant that by the laws of this State was required to be funded.” Act of March 31, 1883, § 112.
It is plain, from the language of these several statutes, that the Legislature meant to provide that all county warrants shall be received in payment of any county taxes, except for taxes levied to pay indebtedness of the county which existed prior to the adoption of the Constitution of 1874: The reason for the exception is obvious, and is found in the language of the Constitution marking a distinction between the limit of taxation for the two purposes. This intention is clearly recognized by a line of decisions of this court beginning with a decision rendered at an early day in the history of the State, construing a- statute in force to this day. State v. Rives, 12 Ark. 721; Wallis v. Smith, 29 Ark. 354; Worthen v. Roots, 34 Ark. 356; Parham v. Izard, 30 Ark. 558.
From these statutes may be gathered an intention on the part of the lawmakers to give first care, so far as not in conflict with the organic law of the State, to the interest of the taxpayer, who is also a creditor of a county or municipality, by allowing him to pay his taxes due to those governmental entities with their respective warrants. That view seems to have appealed to the legislative sense of natural justice. As said by Mr. Justice Eaicin in Worthen v. Roots, supra: “It is a very remarkable thing that the right to use county warrants in payment of taxes should be crystalized into a constitutional provision, and indicates a strong sense in the convention of the evil and danger to the very framework of our government (which is built upon counties) of allowing the county debt to become utterly valueless to the citizen, as well as the hardship to the citizen of compelling services which would be, to all practical intents, gratuitous.”
The only discordant view expressed in any of the decisions of this court is a dictum in the case of Wells v. Cole, 27 Ark. 603, which has been overruled by subsequent decisions. English v. Oliver, 28 Ark. 317; Parham v. Izard, supra. There is language in the opinion in that case expressing a contrary view, but the point raised and decided was altogether different from the question now being discussed.
It is urged by learned counsel for appellant that the tax levied for erecting a courthouse is a special tax, in the meaning of the Constitution; that the statutes were not meant to allow a county tax levied for a special purpose to be paid in warrants issued on a different county fund; and that, if they were so meant, they are in conflict with the Constitution, and to that extent are void.
The several sections of the Constitution of 1874 bearing on the subject are found in article 16, and are as follows:
“Sec. 9. No county shall levy a tax to exceed one-half of one per cent, for all purposes, but may levy an additional one-half of one cent, to pay indebtedness existing at the time of the ratification of this Constitution.
“Sec. 10. The taxes of counties, towns and cities shall only be payable in lawful currency of the United States, or the orders or warrants of said counties, towns and cities, respectively.
“Sec. 11. 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.”
It will be observed that the Constitution first provides that taxes of counties shall only be payable in United States currency or in county warrants, and then provides that “no money arising from a tax levied for one purpose shall be used for any other' purpose.” No positive prohibition is found in that instrument against the payment of county taxes with county warrants. On the contrary, reading the above sections together, we think it is clear that the framers of the Constitution intended to make a provision for the payment of county taxes with warrants of the county, and that it is not forbidden by the subsequent section, even though the effect might be to divert some of the funds appropriated for one county purpose to that of another. For, instance, outstanding warrants drawn on funds appropriated to defray expenses of the several courts of the county might be used in payment of taxes levied for county purposes to such an extent that the amount of money received by the collector would not be sufficient to meet the appropriation to defray the expense of keeping the paupers of the county, yet it can not be seriously contended, under the statutes and previous decisions, that this would be in violation of the Constitution. The same can not be said of funds appropriated a’nd levied, in excess of five mills levied for county purposes, to pay the indebtedness existing prior to the adoption of the Constitution, for the Constitution itself and the statutes make a difference in funds levied for that purpose. No such distinction can be found, however, in funds appropriated and levied for the purpose of erecting a courthouse, or for any other extraordinary or unusual purpose.
County taxes may be appropriated and levied for ordinary county expenses which arise in the usual course of the administration of county affairs from year to year, and also for extraordinary purposes which may arise one time or at rare intervals in the history of the county, but they both fall within the general classification of “county purposes.” The fact that the appropriation and levy is for an extraordinary and unusual purpose does not alter the classification. The effect of a special levy of taxes for the extraordinary purpose of erecting a courthouse amounts to no more than an appropriation to that particular purpose of the fund arising from that levy, and is, by the Constitution, hedged about with no other or greater restriction than funds appropriated and levied for other county purposes.
The case of Durrett v. Buxton, 63 Ark. 397, and the cases of Hilliard v. Bunker, 68 Ark. 340 and Bowman v. Frith, 73 Ark. 523, following it, are pressed upon our attention as conclusive of the case at bar. They are not, however, decisive of the question now presented. The question decided in those cases is that a tax levied to build a courthouse becomes an appropriation of the funds arising therefrom to that purpose, and that the county court may make a contract for the erection of the building without any other appropriation having been made by the levying court. The question of the right of a taxpayer to pay his part of the tax so levied with county warrants drawn on another county fund did not arise in either of those cases. If is true that the court in Durrett v. Buxton, supra, said that “the tax levied to build a courthouse by the Pike County Court was a special tax levied for a specific purpose, and can not be lawfully used for any other;” but the court was then dealing with the question of the power of the county court to contract for the building of a courthouse where no appropriation had been previously made by the levying court, and said further that “the money arising from the collection of it became an appropriation by law for the purpose for which it was levied.” Citing Worthen v. Roots, 34 Ark. 360.
The decision in the last mentioned case (Worthen v. Roots) was rendered only a few years after the adoption of the Constitution of 1874, and the learned Justice who delivered the opinion was a member of the convention which framed that instrument and submitted it to the people for adoption. In discussing the statute now under consideration (Act Dec. 14, 1875, Kirby’s Digest, § 1174) he treats it in the broadest sense as “declaring and enforcing the constitutional policy of making warrants receivable for taxes.” He says, “A review of all this legislation anterior and subsequent to the Constitution of 1874, together with that Constitution itself, reveals a settled policy, almost in terms enjoined by the Constitution itself, * * * of supporting the credit of the counties, and encouraging the citizens to render their services with alacrity, by making claims against the county a setoff for taxes.”
We think that the Legislature has, in the plainest terms, declared that all county warrants shall.be receivable for all county taxes, except those levied to pay indebtedness existing at the time of the adoption of the Constitution and interest thereon, and we cannot say that the statute is in conflict with the provisions of the Constitution. The statute seems rather to be in direct line with the policy declared in the Constitution. It is our duty to uphold and enforce the statute, rather than declare it void, unless it be found to be clearly in conflict with the Constitution. Cooley, Const. Lim. (7 Ed.), p. 255; State v. Moore, 76 Ark. 197; Waterman v. Hawkins, 75 Ark. 120; State v. Sloan, 66 Ark. 575.
Much can be said on both sides concerning the propriety and expediency of adopting the policy of allowing the taxpayer to pay all of his county taxes with county warrants. It may be said, on the one side, as argued here, that, where a county is considerably in debt, and has a large amount of outstanding warrants, to allow all the taxes to be paid with warrants results in preventing the making of an economical contract for the erection of public buildings, and retards the payment for same; on the other hand, it may be said that, by allowing such payment of taxes with county warrants, a more enlarged use is given to them, without restriction or ^ discrimination, thereby enhancing the market value thereof, and that this results in a corresponding benefit alike to the county and to those who perform services for it and receive warrants in payment for their services. With the policy or expediency of the law we have nothing to do. It is simply our duty to declare and enforce it as found.
Certain it is, however, that it has become the fixed policy of our law, by the terms of the Constitution and the statutes, to allow the taxpayer this privilege, and the circuit court was correct in so declaring in this case.
Judgment affirmed.
Battue, J., dissenting. | [
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McCulloch, J.,
(after stating the facts.) This is an action between the respective owners of the two co-terminous tracts of land. Both sides claim that the strip in controversy, about 30 rods wide, is within the boundaries of their respective tracts of land, to which they have undisputed title. The defendants also claim title to the disputed strip by adverse possession for more than seven years.
It appears from the evidence that in the year 1889 the boundary line between the two tracts was surveyed by the county surveyor „of Mississippi County, and the line was established by him according to the present claim of the defendants, and that their grantor, who then owned the lands now held by them, moved his fence out to that line, and that he and they have continuously occupied it up to that line. Defendant’s grantor testified that he moved his fence out to this line, believing it to be the correct boundary, and occupied up to it with intention of holding the land as his own.
The testimony is conflicting as to the correct location of the boundary, and the jury found in favor of the plaintiff upon that issue.
The court gave the following instructions over the objection of defendants:
“No. 4. The jury are instructed that if they find from the evidence that the defendants, or the grantor under whom they claim, took possession of the disputed land under the belief that the line contended for them or him was the true line, and with no intention to claim any land except the land up to the true line, then in that event he would only be entitled to hold the land up to the true line, wherever that may be, and you will so find.
“No. 6. You are instructed that no right or title can be gained against the owner of land by mere possession; and before you can find for the defendant you must find from a preponderance of the evidence that when defendant’s grantors entered upon the land herein claimed by plaintiff and took possession thereof, it was with the intent to deprive the owner, and that same was not by reason of a mistake in the boundary line, and without the intent to go beyond the true line.” ‘
Both of these instructions were incorrect, and should not have been given. From them the jury might have understood, and doubtless did understand, that if defendant’s grantor, at the time he took possession of the disputed strip of land, labored under a mistake as to the true boundary, and had no intention of taking that which was not his own, the plea of adverse possession could not be sustained, even though he intended to hold the strip as his own. This is not the law. The question of the good or bad faith of the transaction, or the intention of the party taking possession of land, is not material, provided the intention is to take and hold possession adversely. If the intention is to hold adversely, the statute runs, regardless of any mistake as to boundary or title. If the holding be not hostile, but in subordination to the rights of the true owner whenever asserted, recognizing the possibility of a mistake, then the statute does not run, because the holding under those circumstances is not adverse. This is the doctrine established by the decisions of this court. Wilson v. Hunter, 59 Ark. 626; Murdock v. Stillman, 72 Ark. 498.
It is true that the court gave other instructions correctly announcing the law in this respect, but the ones quoted above are in contradiction of thém, and must be held to be prejudicial. Fletcher v. Eagle, 74 Ark. 585, 86 S. W. 810; St. L. & N. Ark. Ry. Co. v. Midkiff, 75 Ark. 263, 87 S. W. 446; St. L., I. M. & So. Ry. Co. v. Luther Hitt, 76 Ark. 227.
Instruction number six is also erroneous in that it ignores the defense tendered by the pleadings arid testimony that the survey under which the defendants held was correct, and assumed that defendants have no title to the disputed strip of land.
Reversed and remanded for a new trial. | [
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McCulloch, J.
This is a suit in equity brought by appel* lants against the appellee to cancel a mortgage on land executed by their parents to appellee and a sale made pursuant to the power contained in the mortgage. They allege that the debt secured by the mortgage is barred by the statute of limitations, and that appellee had fraudulently entered on the record certain credits claimed by him in order to keep the debt alive.
The defendant denied the allegations of the complaint, and by cross-complaint set forth the fact that there had been a valid foreclosure of the mortgage, and prayed that his title be quieted. The decree of the court, copied in the transcript, recites that the cause was heard upon the pleadings and exhibits, no testimony being adduced by either party, and the complaint was dismissed for want of equity, and the title to the land decreed to be in the defendant. The plaintiffs prayed an appeal from the clerk of this court, which was granted.
The only grounds urged for reversal is that the cause was heard by the chancellor, and the decree was rendered in vacation.
The condition of the record is strikingly similar to that in the recent case of Lyon v. Bass, 76 Ark. 534, and is controlled by the decision in that case. The decree in this case, as in the case just cited, purports to have been rendered at the July term of the court on July 27, 1903, but a preceding record entry on the same day recites that the cause was to be submitted to the chancellor at chambers upon completion of the depositions in the case. The decree immediately follows this entry, and recites that the cause came on for hearing “on complaint and answer and cross-bill of the defendant duly verified and the exhibits to said answer and cross-bill, there being no evidence submitted by either party, and the court being fully advised,” etc. The record entry of the decree bears the signature of the chancellor, and the indorsement, “Recorded October 21, 1903,” signed by the clerk, and it is urged that this indorsement negatives the fact that the decree was pronounced and entered at the July term on July 27, 1903. Following the decision in Lyon v. Bass, supra, we hold that the certificate of the clerk to the effect that the decree was rendered on a certain day at the July term must prevail against the above-named indorsement. The fact that the clerk failed to enter the decree upon the records of the court until a subsequent day, even beyond the term, did not affect its validity. This; indorsement shows no more than that the clerk entered the decree on the day named. '
Moreover, even if the decree was rendered on October 21, 1903, it is not shown that the court was not in session on that day by adjournment over from a former day of the term. In the face of a certificate of the clerk that it is the decree of the court, we-must presume in favor of the regularity of its rendition and entry. Lyon v. Bass, supra; Arkadelphia Lumber Co. v. Asman, 72 Ark. 320.
Decree affirmed. | [
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McCulloch, C. J.
Appellee is engaged in the business of buying and selling hides and furs, the business being operated in its own building situated near the center of the business district in the city of Fort Smith. Appellee has been operating the business at that place for the past ten years.
This is an action in chancery, instituted by the city of Fort Smith against appellee, to restrain the further operation of said business at the place mentioned on the ground, as alleged in the complaint, that the method in which the business is operated constitutes a public nui sanee.
It is alleged in the complaint that appellee’s place of business is situated in a thickly populated section of the city and is a great annoyance to the people in that neighborhood and to passers-by, for the reason that the storage of hides in the house gives off offensive odors and attracts flies, and affects the comfort and endangers the health of the people of the city living near that locality. The complaint, in other words, states facts relative to the manner in which the business is conducted sufficient to constitute the maintenance of a public nuisance.
Appellee, in the answer, denied the allegation of the •complaint with respect to the method in which the business was operated, and denied that offensive odors arose from the place of business, or that flies were attracted there any more than is the case at other places of business during warm weather.
There was a trial of the issues before the court upon oral testimony, reduced to writing and made a part of the record, and the decree dismissed the complaint for want of equity.
The distinction between a public and private nuisance lies merely in the extent of the injury or annoyance which results therefrom. If injury results only to a few, on account of the peculiar circumstances, the nui sauce is private,' and the remedy is confined to those who suffer from the effects of the nuisance. If, on the other hand, the injury or annoyance is sufficient in extent to become common to all persons who may come within its influence, it is of a public nature, and the remedy is by action on the part of the municipality to abate the nuisance, either by police interference under an ordinance, or by suit in equity to restrain the maintenance of the nuisance. Harvey v. Dewoody, 18 Ark. 252; Lonoke v. C., R. I. & P. Ry. Co., 92 Ark. 546; Gus Blass D. G. Co. v. Reinman, 102 Ark. 287.
In the absence of an ordinance authorizing the abatement of the nuisance by police interference, the remedy must be, on the part of the municipality, by a suit in equity. Lonoke v. C. R. I. & P. Ry. Co., supra.
In the case of Durfey v. Thalheimer, 85 Ark. 544, there was involved the question of nuisance in the maintenance of a livery stable, and Judge Battle, speaking for the court, after declaring that, while a livery stable operated in a city or town is not necessarily or prima facie a nuisance, it may become so by the manner in which it is constructed or conducted, and, in defining what may constitute a nuisance, he said:
“It is the duty of every one to so use his property as not to injure that of another; and it matters not how well constructed or conducted a livery stable may be, it is nevertheless a nuisance if it is so built or used as to destroy the comfort of persons owning and occupying adjoining premises, creating an annoyance which renders life uncomfortable; and it may be abated as a nuisance.”
In Lonoke v. C. R. I. & P. Ry. Co., supra, we adopted the following as an appropriate definition of a public nuisance:
“A common or public nuisance has been defined to be ‘that which affects the people and is a violation of a public right, either by a direct encroachment upon public property or by doing some act which tends to a common injury, or by the omitting of that which it is the duty of a person to do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrantable or unlawful use of property, or from improper, indecent or unlawful conduct, working 'an obstruction or injury to the public and producing material annoyance, inconvenience, and discomfort founded upon a wrong.’ ”
It is unnecessary to give any further definition of a public or private nuisance.
There were numerous witnesses in the case for the city and for appellee. The city introduced eight witnesses, all of whom gave testimony which tended to show that the operation of the business by appellee was a nuisance, that noxious odors arose from the building, particularly that part where hides were stored, and that in warm weather there was an accumulation of flies about the place. Most of these witnesses were people who lived in the immediate neighborhood and were engaged in business of various kinds.
One of the witnesses operated a baker shop and lunch room, and he testified that the odors from appellee’s place of business were so offensive that it seriously interfered with his business.
Another one of the witnesses was interested in the operation of a barber shop and pool hall, and he testified that the odors were so offensive inside of the shop that waiting customers would not remain in the room, but would stand on the outside so that they could get relief from the odors.
One of the witnesses — Mr. Miller — was a commissioner of the city and a member of the district board of health, and he testified that he visited appellee’s place of business several times and found that the odors from the place were very offensive. He testified that he visited the place for the purpose of making an investigation and that he could detect the odors a considerable distance from the house.
Appellee introduced ten or twelve witnesses in addition to the manager and owner, whose testimony tended to some extent to overcome the charge that offensive odors constantly arose from the building, at least to the extent claimed by witnesses for the city. These witnesses were more or less definite in their statements, but none of them disputed the fact that there were peculiar odors arising more or less from the place of business. Many of the witnesses said that these odors were noticeable but were not offensive. Some of the witnesses stated that the odors arose on account of the disinfectants used and that these were, not offensive odors, at least not so to them.
Mr. Davidson, the manager of the business, stated that there were odors going out from the hides, but that such an odor as that was not offensive. He admitted, however, that sometime hides were bought which were partially decomposed and that it was necessary to put them down in salt in order to stop decomposition. He testified that all the fresh hides purchased were salted to prevent decomposition.
A careful consideration of the testimony leaves no escape from the conclusion that the place of business maintained by appellee was' offensive to those who came into the immediate neighborhood. There were bad odors which were easily detected, and which were sufficient to constantly annoy those who were engaged in business in the locality or who came there for any purpose.
It is conceded that the operation of a hide and fur business is not a nuisance per se, but the contention is that the operation in the manner in which it is carried on in the locality where the place of business is situated constitutes a nuisance, and we are of the opinion that the preponderance of the evidence sustains this contention.
The case affords, perhaps, an example where a business established at a place remote from population is gradually surrounded and becomes part of a populous center, so that a business which formerly was not an interference with the rights of others has become so by the encroachment of the population. Under these circumstances, private rights must yield to the public good, and a court of equity will afford relief, even where a thing, originally harmless under certain circumstances, has become a nuisance under changed conditions.
Appellee pleads a license from the city in bar of the right to abate the nuisance, but the fact that the city granted a license to operate a hide and fur business does not imply that it could be operated in a manner so as to constitute a public nuisance, or to bar the city from suppressing the nuisance. Durfey v. Thalheimer, supra; Wilder v. Little Rock, 150 Ark. 439.
The decree is therefore reversed, and the cause remanded, with directions to enter a decree in favor of the city of Fort Smith, according to the prayer of the complaint, restraining appellee from maintaining a nuisance. | [
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Wood, J.
The Red Bud Realty Company, hereinafter called corporation, is a domestic corporation having a capital stock of $50,000 divided into 2,000 shares, of the par value of $25 each. The corporation was organized in 1903 for the purpose of transacting a general real estate business. The assets of the corporation consisted originally of a tract of 202 acres of land situated along the White River branch of the St. Louis, Iron Mountain & Southern Railway Company in Baxter County, Arkansas. A townsite was established on this tract of land called Cotter, and the town was laid out into lots and blocks. The situs of the corporation was the town of Cotter, and its principal business was the sale and disposition of lots in that town. At the organization of the 'corporation W. Y. Powell was elected president, J. C. South, secretary, and Thomas Combs, treasurer. In 1907 J. C. South, who was a minor stockholder, instituted an action against the cornoration and the majority stockholders to require the president to account for large sums of money which it was alleged he had misappropriated. The litigation resulted in placing the corporation in the hands of a receiv er. At the end of this litigation in 1910 (see Red Bud Realty Co. v. South, 96 Ark. 281) the receivers made settlement of the affairs of the corporation and turned the assets in their hands over to the corporation.
On April 11,1911, there was a regular meeting of the stockholders at Cotter. At this time Powell controlled three-fifths of the capital stock of the corporation, less one share; South owned one-fifth plus one share, and Judge J. B. Baker owned the balance. All of the stockholders were present at this meeting in person or by proxy. J. C. South was represented at the meeting by Z. M. Horton. At this meeting Powell was again elected president and John M. Rose, to whom Powell had given four shares of stock, was elected secretary and treasurer. At this meeting of the stockholders John M. Rose moved that the offices of the corporation be moved from Cotter to Little Rock, which motion was carried. At the April term, 1917, of the chancery court of Baxter County, South filed a complaint in which he named the corporation, W. V. Powell, the Missouri State Life Insurance Company (hereafter called insurance company), and the Dixie Power Company (hereafter called power company) as defendants. Among other things he alleged that Powell since the 10th of June, 1911, had fraudulently sold and appropriated to his own use more than $10,000 of the property of the corporation and had refused to account to the corporation or its minority stockholders, of whom plaintiff was the principal one; that he had without any consideration fraudulently sold lots to his wife, Kate Y. Powell, of the value of $1,800; that he had fraudulently conveyed various tracts and lots, the property of the corporation, to other parties, without consideration and for secret consideration; that he had failed to pay the taxes on the property of the corporation for the year 1914, although he had ample funds in his hands belonging to the corporation, and allowed the lands to be forfeited and sold for taxes, costing the corporation the sum of $1,000 to redeem the lands from the tax sale; that, pretending to act as president of the corporation, he had borrowed from W. F. Eatman in the year 1913 the sum of $1,250 and had fraudulently executed a promissory note for same, signed hy the corporation; that he had fraudulently converted the money to his own use; that, as president of the corporation, he had borrowed the sum of $3,000 from the insurance company, and had fraudulently, and without authority from the corporation, executed a mortgage on the lands of the corporation to cover same, and had converted the proceeds to his own use; that he had fraudulently and without authority of the corporation attempted to convey to the power company ten acres of its lands.
He further alleged that the corporation, by reason of the above acts of its president, had ceased to transact the business for which it was chartered. He asked that Mrs. Kate Y. Powell be made a party, and prayed that a receiver be appointed to take charge of the assets of the corporation; that an accounting be had between Powell and the corporation and its stockholders; that a lien be declared upon Powell’s stock for the amount found to ¡be due by him to the corporation; that the mortgage and various alleged fraudulent conveyances be set aside and title vested in the corporation; that the corporation be dissolved, its debts liquidated and its assets distributed to the stockholders according to their respective interests.
W. y. Powell and the corporation joined in an answer, in which they specifically denied all the material allegations of the complaint, and set up, among other things, that the suit was brought in Baxter 'County, where the corporation had no office and where none of its officers resided; that the principal office or place of business of the corporation was in Little Bock, Pulaski County, where process was served upon its officers; that therefore the Baxter Chancery Court had no jurisdiction. The 'answer detailed at length the transactions of the corporation and Powell, its president, and alleged that everything had been done regularly and according to the rules and by-laws of the corporation, and in good faith. It set up that South, the plaintiff, from the organization of the corporation to 1915, had been a stockholder and member of the board of directors of the corporation, and had been notified to attend all of the meetings, both of the stockholders and directors; that he had persistently refused to attend the meetings except the one mentioned above, where he attended by proxy; that the membership of the board of directors was then reduced from five to three by proper amendment to the by-laws ;that South had never protested to the directors or stockholders as to the policy of the corporation, and had never applied to them for relief from-any of the wrongs of which he now complains. The answer further1 set up, among other things, that the by-laws of'the corporation from the time of its organization provided for the payment of a secretary, and that after John M. Rose was elected secretary in 1911 the sum of $50 per month was paid him up to the time of his death, and that he had drawn a salary in excess of the sum of $3,000. The answer set up that the corporation, with the express consent of South, had purchased and ’had become a subscriber in the sum of $1,100 for the stock of the power company, which was paid out of the proceeds of the sale of the lots; that the corporation, for the purpose of aiding the power company to build a dam across White River at Cotter, entered into a contract to.convey to it certain riparian rights.
The insurance company answered, and by way of cross-complaint set up its notes and deed of trust, and asked for judgment and foreclosure. This cross-action was answered by South. ,By agreement of the parties a master was appointed to take depositions and state an account, which he did, and made his report. Before the answer was filed, motions attacking the jurisdiction of the court were made, and these were reserved also in the answer.
The cause was heard upon the pleadings, the statements of the accounts of the master, the oral evidence of the parties, their witnesses, admissions, agreements and exhibits. The court rendered judgment finding that Powell fraudulently managed the affair^ of the corpora* tion, substantially as alleged in the complaint, and that he was indebted to the corporation in the sum of $11,262.02; that the deed to the power company was fraudulent; that the deed to Mrs. Powell was fraudulent, and that Powell should be charged with the value of the lots deeded to her, which had passed into the hands of innocent purchasers; that the attempted removal of the situs of the corporation from Cotter to Little Rock was fraudulent and void; that the insurance company was entitled to judgment in the sum of $4,409.80 on its mortgage with ten per cent, interest from date thereof, which was a first lien on the property described therein, and directed that the property be sold to satisfy the same and execution had against the corporation to satisfy any residue. The court also rendered a decree in favor of 'South in the sum of $2,257.63 —his distributive share of the amount of the judgment against Powell and the corporation. The court, in its decree, directed that Powell’s stock be sold to satisfy his debt to the corporation; that out of the proceeds the decree in favor of South should first be satisfied and the balance, if any, retained by the receivers and special master, subject to the further orders of the court. The court also entered a decree canceling the deeds from the corporation to the power company and dissolving the corporation, and directing that any assets remaining after the judgments mentioned were satisfied as ordered, be sold and the proceeds distributed among the stockholders according to their respective interests. Prom that judgment is this appeal. Other facts will be stated as we proceed.
1. Learned counsel for the appellants contend that the^situs of the corporation was moved from Cotter to Little Rock by a resolution of its stockholders passed dime 10, 1911, and that therefore the chancery court of Baxter County did not have jurisdiction of the corpora* tion. He concedes that the alleged removal was not in compliance with our statute (sec. 1737, C. & M. Digest). See also Home Fire Ins. Co. v. Benton, 106 Ark. 552. But, notwithstanding this fact, counsel insists that the resolution constituted a de facto removal binding upon the corporation, its stockholders, and all others except the State. This interesting question, which is so elaborately argued in the brief, pro and con, it is unnecessary to decide, and we do not decide, for the reason that, even though the domicile of the corporation was removed from Cotter to Little Rock, nevertheless the chancery court of Baxter County had jurisdiction in this action of the corporation. Under our statute, sec. 1176, C. & M. Digest, actions of this character “may be brought in any county in which Che defendant or one of several defendants resides or is summoned.” The 'Corporation, Walker V.' Powell, the insurance company, and the power company were named as the original defendants in the complaint filed by J. C. South in the chancery court of Baxter County. It was alleged in the complaint that Powell had fraudulently conveyed to the power company ten acres of the land which was the property of the corporation. South prayed that the deed be canceled. The power company is a domestic corporation having its situs at Cotter. Summons was issued and duly served upon it at Cotter. Therefore, if it be conceded that the domicile of the. corporation was at Little Rock in Pulaski County, it was duly served with process in that county, which service gave the chancery court of Baxter County jurisdiction of the action against the corporation; because, as we have seen, the action had been properly instituted and service had upon one of its co-defendants, the power company, in the county of the latter’s domicile. Sallee v. Bank of Corning, 122 Ark. 502.
2. The original complaint contained fifteen paragraphs. The first and second paragraphs, with the amendments thereto, allege the organization of the corporation, describe its assets, declare its purpose to be the selling of lots and blocks in the town of Cotter, and allege that Powell owned four-fifths of its capital stock and is its president.
The third, fourth, fifth'and sixth paragraphs-contain allegations charging Powell with fraudulently conducting the business of the corporation contrary to the laws of the State and the 'by-laws of the corporation in attempting to remove the situs of the corporation from Cotter to Little Rock; in removing South from the board of directors and denying him participation in the dividends; and in selling more than $10,000 worth of the property of the corporation and appropriating the proceeds to his own use without accounting therefor.
The seventh paragraph charges Powell with fraudulently conveying lots of the corporation of the value of $1,800 to his wife, Kate V. Powell.
The eighth paragraph charges that Powell fraudulently conveyed various lots of the corporation to other parties without consideration and for secret consideration.
The ninth paragraph charges him with.failure to pay the taxes and allowing the property to be forfeited and sold for taxes, greatly to the damage of the corporation.
The tenth paragraph alleges that Powell fraudulently borrowed from one W. F. Eatman the sum of $1,250 and converted the. same to his own use, and allowed judgment to go against the corporation and its property sold, to the damage of the corporation and plaintiff.
The eleventh paragraph charges that Powell fraudulently executed a mortgage to the insurance company for the sum of $3,000, and appropriated the proceeds to his own use, to the damage of the corporation and plaintiff.
The twelfth paragraph alleges that Powell fraudulently conveyed to the power company ten acres of the land of the corporation without consideration, to the damage of the corporation and its minority stockholders.
The thirteenth paragraph charges that the corporation had ceased to transact the business for which it was chartered.
The fourteenth paragraph states that Powell was indebted to the corporation in a large sum, for which the corporation had a lien on his shares of the capital stock. The complaint concludes with prayer for an accounting and judgment against Powell, for sale of his shares of stock, and that he be restrained from further borrowing money in the name of the corporation and mortgaging or conveying its property; that a receiver be appointed to take charge of the assets; that all the alleged fraudulent conveyances mentioned be canceled, and, finally, that the corporation be dissolved, its debts liquidated, and its assets distributed to its stockholders.
Motions in apt time were made by the corporation and the power company to dismiss on the ground that the complaint was multifarious, in that it stated separate and independent causes of action in which they had no interest. Powell likewise in apt time moved to require the plaintiff to elect which cause of action he would prosecute and to strike out the causes of action improperly joined in the action against him. These motions were overruled.
The ruling of the court was correct. It will readily be seen from the above resume of the complaint that its predominant thought is that Powell, the president and majority stockholder of the corporation, had, without right and without authority, and illegally and fraudulently, sold real estate of the corporation and appropriated the proceeds of such sales to his own use, in fraud of the rights of the plaintiff, South, and other stockholders; that this alleged fraudulent conduct of Powell, in causing the property of the corporation to be conveyed and appropriating the proceeds to his own use without accounting to the other stockholders, had perverted the purpose for which the corporation was Chartered. -When the complaint is read as a whole, it will be observed that its primary purpose -was to call Powell to an account for his .alleged fraudulent conduct in the management of the affairs of the corporation, in the particulars specifically set forth therein, by setting aside as far as possible the alleged fraudulent conveyances, and, where such could not be done; to cause him to account for the proceeds of such conveyances; and, in order to prevent and restrain him in the further alleged fraudulent use of the corporate entity to serve his own private gain in disregard of the rights of other stockholders, that the debts of the corporation be liquidated, the corporation dissolved, and its assets distributed to its stockholders. ■ -
Such being the main purpose of the action, the plaintiff had the right to ask that the corporation and all those who had acquired its property, or any interests therein, through the alleged fraudulent misconduct of its majority stockholder and managing officer, he brought in and their rights determined, even though they were not all affected alike, or in the same degree. If Powell “fraudulently, illegally, and without right, contrary to the laws of the State and the rules and by-laws of the corporation,” as is charged, made the various conveyances set forth in the complaint, then all to whom these conveyances were made are affected in like manner, though in a different degree, and though their interests may be separate and independent of each other. The plaintiff set up these various conveyances, and alleged that they were fraudulent and asked for a cancellation only as incidents to the main purpose of his cause of action against Powell and the corporation for an accounting. It must be remembered that it is impossible to lay down an absolute rule that is of universal application in determining whether or not a complaint is multifarious. Each case must be governed by its own particular facts, and the question is always one largely within the discretion of the court. Here the plaintiff is proceeding upon the theory, whether right or wrong, that the conveyances of Powell to the parties mentioned were fraudulent and void, and that the property sought to be conveyed was the property of the corporation. To prevent a multiplicity of suits is of itself a distinct ground of equity jurisdiction. It follows, from what we have said, that the issues involved in this action can be, and it is most convenient and appropriate that they should be, disposed of together, thereby avoiding a multiplicity of actions. We therefore conclude that the complaint is not multifarious. 21 C. J. 416, 434 et seq. to 440 inclusive; Stewart v. Smith, 91 Pa. 667; Brown v. Guaranty & Trust Co., 128 U. S. 403; Horner-Gaylord Co. v. Miller & Bennett, 147 Fed. 295; Venner v. Great Northern Ry. Co., 136 N. W. 271; State ex rel. Lumber Co. v. Knife Falls Boom Corporation, 104 N. W. 817; North v. Broadway, 9 Minn. 183; Gartland v. Dunn, 11 Ark. 720; Winter v. Smith, 45 Ark. 549; Hill v. Dade, 68 Ark. 409.
3. The complaint does not allege that South, before instituting this action, applied to the corporation for a redress of his wrongs. For this reason appellants contend that the complaint does not state a cause of action, and should have been dismissed. As a rule, a stockholder cannot maintain an action in his own name to enforce the rights of a corporation. Such an action cannot ordinarily be maintained except by the corporation itself in an action authorized by its board of directors. Holmes v. Jewett, 134 Pac. 665; Dumpfel v. O. & M. R. Co., 110 U. S. 209; Smith v. Okla. Supply Co., 149 Pac. 879. But, where a majority of the managing board of a corporation have betrayed their trust and are guilty of acts ultra vires, or fraudulent acts, and are thus perverting the purposes of the corporation; or where a majority of the stockholders and directors are diverting the assets of the corporation to their own personal use and benefit to the injury of the corporation and in fraud of the rights of the other stockholders, then any stockholder may maintain an action in a court of chancery in his own name against the delinquent officers and majority stockholders for his own and the benefit of other injured stockholders.
In such an evil case, the majority directors and stockholders, as between the corporation and its stockholders, no longer in reality represent the corporate entity. They are acting for only themselves, although using the corporate name. Under such circumstances, when an innocent stockholder enters a court of chancery seeking relief, that court does not treat him as some schoolmaster invoking its aid to enable him to rebuke faithless trustees for past delinquencies or to teach them sound morals and to reform their future conduct. Not at all. Because of the exigency of such situation, the minor stockholder who brings the action in-his own name is treated, for the time being, and for the purposes of the litigation, as the trustee and real representative of the corporation, instead of its offending directorate and majority stockholders. Through -him, and against them, the corporation itself is granted genuine reparation by way of damages, restitution, or, if need be, dissolution of the corporation ; in fact, all the relief to which the corporation would be' entitled under the circumstances, were the action brought in its name. The -corporation is a necessary party to such an action, and is named and brought in, that appropriate orders may be m-ade not only to protect all the corporate rights, but also that through it the rights and equities of individual shareholders may be worked out and preserved.
The law does not require a futile ceremony. Therefore, where a majority of the directors are under the control of a majority of the stockholders, and an action is brought against them by an innocent shareholder in his own name, charging wrongdoing on their part in the manner above indicated, it is not necessary for him to allege and prove, as a condition precedent to the main-' tenance of the action, that, before instituting the same, he protested to the -board of directors against their own mismanagement and appealed to them for redress. 'Such protest would fall upon deaf ears, because a majority of the directors could not be expected to authorize, or to institute, an action against themselves charging themselves with fraud. If they should do such an anomalous thing, in the language of the Supreme 'Court of Missouri, “the bad faith of their action would be so apparent that no court would entertain the suit.” Hingston v. Montgomery, 97 S. W. 202. We conclude, therefore, that the complaint should not be dismissed because it fails to allege that the plaintiff, before instituting the action, applied to the board of directors for redress of the alleged injuries of which he complained. Red Bud Realty Co. v. South, 96 Ark. 281- 292. In addition to the authorities there cited, see also Kingston v. Montgomery, supra; Hannity v. Theatre Co. 19 S. W. 82; 3 Cook on Corporations, sec. 741; Hawes v. Oakland, 104 U. S. 450-460; North v. Union Savings Association, 59 Oregon, 483; Von Arnim v. Amer. Tube Works, 188 Mass. 515; Virginia etc. Co. v. Fisher, 104 Vt. 121; Williams v. Erie Mt. Consol. Mining Co., 91 Pa. 1091; Chicago Cab Co. v. Yerkes, 141 Ill. 320; Rothwell v. Robinson, 39 Minn. 1; Nathan v. Tompkins, 82 Ala. 437.
4. The insurance company was named as a defendant in the original complaint, and it was alleged in paragraph 11 that the mortgage executed to it in the sum of $3,000 was fraudulent and void, and it was prayed that the mortgage be canceled. An answer and cross-complaint asking for foreclosure of the mortgage was filed by the insurance company signed by attorneys, Pettit & Pettit and Allyn Smith. During the progress of the trial Smith announced that he was the 'attorney of record for the insurance company ; that its interest had ceased, and he desired to dismiss the cross-complaint and withdraw its answer. Whereupon, the attorney for the plaintiff announced that the insurance company had loaned the money in good faith to the corporation, and that on a former day plaintiff had agreed with an attorney from St. Louis, who claimed authority to represent the insurance company, that judgment might be rendered in favor of the insurance company and its mortgage foreclosed, and that the plaintiff desired to stand by that agreement, and challenged the right of Smith to dismiss the answer and cross-complaint of the insurance company.
To sustain his contention, the plaintiff filed an affidavit to the effect that he had sent a telegram to the insurance company to ascertain if any one had authority to dismiss its answer and cross-complaint and received in reply a telegram as follows: “Nobody has authority to withdraw our answer and cross-complaint against Red Bud Realty Company.” (Signed) by the insurance company and by Jordan, Rasser & Pierce, counsel. The at torney Smith thereupon insisted that he was the attorney of record, that the record did not show he had ever been discharged, and that he had the right therefore to dismiss the answer and cross-complaint of the insurance company, and offered to make oath that he was still its attorney. Smith did not offer to testify himself or to prove that the telegram introduced was not genuine. The pourt thereupon found that the insurance company had indicated by its telegram that it did not want its answer and cross-complaint withdrawn, and ruled that it had the right to control its own case, and therefore overruled the motion of attorney Smith.
This ruling of the court was correct. Says Mr. Thorn ton: “The power of an attorney is not coequal with, coextensive with, or equivalent to that of the client. He is a special agent, limited in duty and authority to the vigilant prosecution or defense of his client’s rights.*** An attorney certainly cannot bind his client by any unauthorized act which amounts to a total or partial surrender of a substantial right.” Thornton on Attorneys at Law, p. 382, sec. 215.
As early as Pennington v. Yell, 11 Ark. 212-229, we said: “When an attorney undertakes the collection of a debt, it becomes his duty to sue out all process, both mesne and final, necessary to effect that object; and consequently that he must not only sue out-the first process of execution, but also all such that may become necessary.” The interest of his client is the polar star on which an attorney should and must keep his eye while directing a lawsuit from its inception to its close. 2 Greenleaf on Evidence, p. 128, § 145; Crocker v. Hutchinson, 2 D. Chipman (Vt. Rep.) 114-122. The nature of the relation is such that within this limitation the attorney is vested with a large and liberal share of discretion in conducting litigation. In the absence of a specific direction to the contrary from his client, an attorney, as stated in Pennington v. Yell, supra, “will always be justified in ceasing to proceed with his client’s cause (unless especially instructed to go on) whenever he shall be bona fide influenced to this course by a prudent regard for the interest of his client.” A client, however, and not his attorney has the absolute control over the litigation instituted by bi-m. Where an attorney is employed by a party to institute a cause of action, if the right of the attorney to dismiss the action is called in question by the client, then the law undoubtedly is that the attorney has no authority to dismiss the cause of action contrary to the wishes and over the objection of his client. See St. L. I. M. & S. R. Co. v. Blaylock, 117 Ark. 504-14; Johnson v. Mo. Pac. Ry. Co., 140 Ark. 587; see also Davis v. Webber, 66 Ark. 190. Other authorities are collated in 6 C. J. 643, sec. 147.
It is quite unusual, to say the least, for an attorney of record to propose to withdraw his 'client’s cause of action after there has been virtually a confession of judgment in his client’s favor. Without any explanation by attorney Smith of the reason prompting him to move to dismiss the answer and cross-complaint of the insurance company at that juncture, the trial court, without questioning his motives, was nevertheless justified in treating the telegram from the insurance company as an expression of its wish not to have its cause dismissed, and as tantamount to a direction to its attorney of record not to pursue that course. There was at least a prima facie showing that the proposed action of the counsel, instead of being to the interest of the insurance company, was directly to the contrary.
5. The notes executed by the corporation to the insurance company bore interest on the principal sum at the rate of 7 per cent, per annum, and contained a provision that, if not paid at maturity, they were to bear interest at the rate of 10 per cent, per anum payable annually until paid. The coupon interest notes also contained a similar provision. Judgment was rendered in favor of the insurance company against the corporation for the principal sum with interest calculated as stipulated in tbe notes, the judgment to bear interest at the rate of 10 per cent, per annum from the date thereof. Parties may contract for the payment of interest in this State “not exceeding 10 per cent, per annum on money due or to become due.” Art. 19, § 13, Constitution. Sec. 7353, Crawford & Moses. So long :as the parties contract for a rate of interest that does not exceed the maximum rate allowed by the law, their contracts will be enforced as written.
The contract under review plainly provides for a rate of interest after the maturity of the principal sum not in excess of ten per cent, per annum, the maximum sum permitted by our Constitution and statute. The parties, having stipulated that the loan should bear a higher rate of interest after maturity than before maturity, are bound by their written contract, and the courts must enforce the same so long as the higher rate does not exceed the maximum limit prescribed by the Constitution and the statute. The great weight of authority is to the effect that such contractual increased rate after maturity is regarded as a liquidation of damages for failure to promptly pay, and not as a penalty. 22 Cyc., sec. 1526.
Our own court as early as Miller v. Kempner, 32 Ark. 573, announced the law in harmony with this view, from which it has not since departed. Portis v. Merrill, 33 Ark. 416. See also National Life Ins. Co. v. Hale, 154 Pac. 536, where our own cases above and many others are quoted, and among them Linton v. Vermont National Life Ins. Co., 104 Fed. 584, where Judge Sanborn, speaking for the Circuit Court of Appeals on precisely a similar state of facts, said: “A contract for a lawful rate of interest before the maturity of a promissory note, but for a higher, but lawful, rate after maturity, is valid and enforceable, and it entitled the holder of the note to the higher rate, before and after the judgment or decree thereon and until the debt is paid. ’ ’ The decree in favor of the insurance company was correct.
6. In April, 1918, by agreement of the parties, H. J. Denton was appointed master to state an account between them. Upon due notice to the parties the master began the taking of testimony on July 1, 1918. The parties appeared by their respective attorneys, and the tak ing of testimony on behalf of the plaintiff began on that day, and the hearing was continued until the 30th of July, 1918, when the taking of testimony for the plaintiff was completed, and the testimony on behalf of the defendants commenced. The hearings were continued from time to time on the application of the defendants until October 14, 1918, at which time the record recites that, “both the plaintiff and the defendant announcing that they had no further testimony to offer, the taking of evidence herein is by the master closed, subject, however, to the further orders of the court.”
The defendants, upon notice, took further depositions of various witnesses on the 3rd of February, 1921, and the deposition of E. J. Loop on March 31, 1921. The court sustained a motion to suppress the depositions taken on the 3rd of February and the 31st of March 1921, on the ground that there was no showing that the “depositions could not have been taken within the time fixed for taking testimony of the witnesses in this case.” From October 14,1918, until January 1,1919, there was a regular chancellor to whom the defendants could have applied for an order permitting them to take further testimony, but from the first of January, 1919, until the selection of the special chancellor who tried the cause, there was no regular chancellor' to whom the defendants could apply for such an order. In 1908 the. chancery court of Baxter County adopted á rule that in causes of action in which the proceedings were or should have been completed ninety days before the commencement of the term, depositions on behalf of the plaintiff must be taken and filed at least thirty days before the commencement of the term, and depositions on behalf of the defendant taken and filed at least ten days before the commencement of the term.
The. master stated the account and filed his report on April 15, 1919. It will be observed that the master did not close the taking of testimony until the parties declared that they had no other testimony to introduce. Six months intervened before the master filed his report. During this time no request was made of the master by the defendants to reopen the cause for the taking of further testimony. More than two years elapsed between the date when the master declared that the talcing of testimony was closed and the taking of the suppressed depositions. No reason is given for the failure of the defendants to apply to the master to reopen the cause for the taking of further testimony before the filing of his report, other than .that they, defendants, thought they had a right to rely on the rules of the court. But manifestly these rules could have no application where the parties by consent agree to submit the case to a master to take testimony and state an account. The announcement by the parties that they had no further testimony to offer on the 14th of October, 1918, was tantamount to an agreement that the talcing of the testimony before the master should close on that day, but, notwithstanding such announcement or agreement, it was within the discretion of the master to reopen the case for further evidence at any time before drafting his report. If the defendants desired to take further testimony, it was their duty to apply to the master to reopen the cause for that purpose and give him an opportunity to exercise his discretion. 21 Cor. Jur. 613, § 772, and cases cited in notes. Sands v. Greeley & Co., 83 Fed. 772.
The fact that there was no chancellor to whom the parties could apply for an order to reopen the case for taking of further testimony before the master could not excuse the defendants from applying to the master himself for permission to take further testimony. The master had discretion to grant such an order, and, for aught that appears to the contrary, might have done so, had the defendants applied therefor before the filing of his report.' The taking of testimony before the master had to come to a close some time. The master certainly had given the defendants a reasonable time to produce their testimony, for he had continued the hearings eight different times at their instance, and only closed the taking of testimony after they had announced that they had no further proof to offer. The defendants are in no attitude to complain that the testimony offered by them through the suppressed depositions would show that certain findings of .fact by the master were erroneous. Sec Gilliam v. Baldwin, 96 Ill. App. 323. The defendants have wholly failed to show that they exercised any diligence whatever to discover and to produce before the master the testimony which they now assert would prove palpable errors in his report. It was within the sound discretion of the trial court to suppress the depositions taken after the filing of the master’s report, and, under the circumstances, we do not find that there has been any abuse of that discretion. 18. C. J. 727, § 331; Hall & Farley v. Ala. Terminal Imp. Co., 56 So. 235; Little Bros. v. Brock, 91 S. C. 549; Gibson v. Atlantic Coast Lines Rd. Co., 88 S. C. 360; Anderson v. Long, 56 Pa. (Sup. Ct.) 183.
7. In stating the account between PoWell and the corporation upon the theory that the mortgage to the insurance company was valid (which is correct), the master found that Powell was indebted to the corporation in the sum of $12,377.12. The trial court reduced the amount, by giving Powell certain credits, to the amount of $11,262.02. It would unduly extend this opinion to discuss in detail the various items that entered into the account as stated by the master and as restated by the trial court. It is only necessary for us to determine whether Powell is entitled to have the judgment against him reduced by further credits which he claims. Among these items are $600 paid out of the funds of the corporation for capital stock in the power company; $400 for lots deeded to Kate V. Powell; $500 for lots deeded to Q-. B. Ortman; $90 on lots deeded to Clarence Hopkins; $40 on lots deeded to Clara Sharpe; $125 on lots deeded to Routzong; $300 on lots deeded to J. B. Baker; $250 on lots deeded to the power company; rents received from property of the corporation in the sum of $1,319.31; interest, penalities and costs arising from tax sale in the sum of $535.95.
Powell contends that the above amounts were erroneously included in the judgment against him. He further claims that he should have credit on account of expenses paid in attempting to sell lots in the sum of $1,700; the sum of- $656.22 paid out of the funds of the corporation as shown by the cheeks of John M. Rose, secretary and treasurer of the corporation, for various items of expense; the sum of $2,750 for the salary of John M. Rose as secretary and treasurer of the corporation.
Since Powell owned a large majority of the stock of the corporation, was a director, and its president, and the management of the affairs of the corporation was thus under his control, he was a trustee for the funds of the corporation, and in handling and accounting for these funds the utmost good faith was required of him, and the burden was upon him to prove how these funds were expended. Considering briefly the above items, the purchase of the stock of the power company was ultra vires, and Powell was not entitled to credit for that. The testimony of Powell, corroborated by that of Horton and Baker, shows that the lots deeded to Mrs. Kate V. Powell were as a donation to put the stockholders on an equality as to lots that had been given to South. The same is true as to the lots deeded to Baker.
As to the Ortman lots the testimony of Powell shows that by an ordinance cf the town of Cotter the corporation was assessed the sum of $500 for the purpose of laying concrete sidewalks; that Ortman laid these walks for the corporation, and that the directors at the meeting in April, 1911, directed deeds to be made to Ortman to the lots in payment of this sum of $500. There is no testimony in the record to the contrary. This did not involve a transaction which was peculiarly within the knowledge of Powell, and, if not. true, its falsity could have been shown. The explanation was reasonable and meets the burden of proof.
As to the items in the deed to Hopkins and Sharpe, the amounts mentioned, in the absence of any other evi dence to the contrary, must be taken as correct. Powell’s own testimony does not meet the burden of proof as to the items.
As to the Routzong lots the testimony of Powell shows that these lots were deeded to Routzong in payment of a printer’s bill against the corporation. This testimony was not peculiarly within the knowledge of Powell, and, if untrue, could have been rebutted by the appellees. Powell therefore should not be charged with the value of these lots.
Concerning the lots deeded to the power company, the trial court canceled this deed as a fraudulent conveyance. Therefore Powell should not be charged with the value of these lots.
Powell was charged with an estimated amount of rents in the -sum of $1,800. There is no definite proof in the record as to the amount actually received. It is certain that in making the estimate the master included rents on what is designated as the “Johnson lots,” which the trial court found had been sold on the day of the first meeting of the board of directors in April, 1911. The annual rental of this property was $120. The rental on this property for the six years amounted to $720. After the sale of this property the corporation, of course, did not receive the rental, and Powell should at least be credited with that amount.
The amount of the interest, penalties, and costs arising from the tax sale accrued through the negligence of Powell in failing to pay the taxes when due. Hence he is not entitled to credit for this amount.
As to the item of expense in the attempted sale of lots no vouchers are produced by Powell to show how this expense was incurred — for what, and to whom, the amounts were paid. The testimony given by him as to this item was peculiarly within his own knowledge, and the testimony was entirely too indefinite to meet the burden of proof.
As to the salary of John M. Rose, Powell testified that after the death of Rose in 1915 the books and papers in his possession concerning the business of the corporation were lost. He further testified that when Bose was elected secretary and treasurer of the corporation the directors voted to allow him a salary of $50 per month, but there are no vouchers to show that Rose was ever paid this salary. In the absence of vouchers or other testimony in the record tending to show that Rose was actually paid a salary of $50 a month out of the funds of the corporation, Powell’s testimony does not meet the requirement of the burden of proof as to this item.
As to the items of expense paid out of the funds of the corporation as evidenced by the vouchers of Rose, the testimony is sufficient to show that Powell should be credited with the amount of these vouchers.
Summing up, therefore, the items as above indicated which should be deducted from the judgment in favor of the corporation against Powell, they are as follows:
1. Lots deeded to Kate V. Powell .................................... $400.00
2. Lots deeded to G. B. Ortman.......................................... 500.00
3. Lots deeded to Routzong ................................................ 125.00
4. Lots deeded to J. B. Baker................................................ 300.00
5. Lots deeded to Dixie Power Co..................................... 250.00
6. Rents on property of corporation............................. 720.00
7. Various items of expense shown by checks of John M. Rose, secretary and treasurer............ 656.22
Total ......................................................................................................$2,951.22
The decree in favor of the corporation against Powell will therefore be modified by deducting therefrom the aggregate sum of the above amounts, towit, $2,951.22, and the judgment as thus modified will be affirmed. The judgment in favor of South against Powell and the corporation will likewise be modified so as to allow him his proportionate share of the amount due him under the above judgment against Powell, as modified and affirmed, and the decree in his favor as thus modified will be affirmed.
8. The trial court adjudged that ‘£ the affairs of the corporation under the management of the majority stock holders as now constituted, on account of the long misuser of its corporate powers and because of continued fraudulent mismanagement and its denial of the minority stockholders’ right to participate in the benefits and profits of said corporation, should be dissolved, its affairs be wound up, and its property and assets be distributed to its stockholders.”
The complaint does not allege that the corporation is insolvent, but it does allege fraud and mismanagement on the part of the majority stockholder and the directorate for the personal benefit of the majority stockholders in fraud of the rights of the plaintiff and other stockholders, to the great injury and damage of the corporation; that because of such mismanagement and fraud the corporation had ceased to transact the business for which it was chartered, and the charter of the corporation should be canceled and declared void.
Our statute gives the chancery court jurisdiction to dissolve the corporation “in all cases where it shall be made to appear that the corporation has ceased to transact business,” meaning of course the business for which the corporation was chartered. 0. & M. Digest, § 1820. If this had been an action to dissolve the corporation under the above statute, the allegations of the complaint were sufficient to give the chancery court jurisdiction for that purpose. However, the primary purpose of this action was not the dissolution of the corporation, and the procedure prescribed in § 1821 of Crawford & Moses’ Digest was not followed. Nevertheless, the allegations of the complaint stated a cause of action in favor of the minority stockholders against Powell and the corporation-for relief against the alleged fraud and mismanagement of the affairs of the corporation on the part of Powell to the injury of the corporation and its minority stockholders, which, as we have seen, as one of the incidents to the relief sought, drew to it the right to have the corporation dissolved. The proof in this case justifies the conclusion reached by the trial court that Powell was no longer managing the 'affairs of the corporation for the benefit of the corporate entity and all its stockholders, but was merely using the corporation for his own private purposes and entirely ignoring the rights of the minority stockholders. The testimony shows that Powell owned practically all the stock in the corporation except what was owned by South. Although having considerable sums of money in 'his hands at different times, no dividends were declared, and South was completely ignored, all of the funds of the corporation being indiscriminately used by Powell for his own personal benefit; If the minority stockholder has no right to resort to a court of chancery for relief under such circumstances, then he is indeed without any adequate remedy to protect his rights. An appeal to the authors of his injury to redress his wrongs would be unavailing, for the majority stockholder and the directorate under his control would have it in their power to continue forever to ignore his appeal, and thus to perpetuate their fraudulent conduct. Such is not the law. On the contrary, where there is an abuse of trust by reason of the fraudulent mismanagement of those controlling the corporation which has resulted in substantial injury to the corporate entity and its minority stockholders, a court of equity, in the language of the Supreme 'Court of Minnesota, “may, without statutory authority and in the absence of corporate insolvency, intervene by way of receivership, require an accounting from the delinquent officers, order a sale of the corporate assets and a dissolution of the corporation.” Green v. National Adjustment Co., 162 N. W. 1056; Warner v. Bonds, 111 Ark. 238-47; Miner v. Belle Isle Ice Co., 53 N. W. 218; 4 Pomeroy on Equity Jurisprudence, § 1540; Helliwell on Stock and Stockholders, 792; Brent v. Brister Saw Mill Co., 60 So. 1018; Dill v. Johnson, 179 Pa. 608. We are aware that there is a conflict of authority on this issue. See eases cited in appellant’s brief. But we adopt the above as the correct rule. Indeed, it is the only rule that will give the minority stockholders effectual protection against the recurrence and perpetua tion indefinitely of such wrongs and injuries by majority stockholders as are alleged and proved by the facts of this record.
The decree in favor of the insurance company is correct, and it is affirmed. The decree in favor of the corporation against Powell, and the decree in favor of South against Powell and the corporation, except in the particulars above mentioned, are likewise correct, and, after being modified as above indicated, they are affirmed. | [
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McCulloch, C. J.
Appellant is a road improvement district which was created by special statute. Road acts, 1919, vol. 1, p. 613. The territory covered is that part of Desha County lying south of the Arkansas River and situated within five miles of either of the respective roads to be improved. It is shown in the present litigation that the territory comprises about ninety-eight per centum of the whole of the county. The roads to be improved are described, and the district is divided into six sections, numbered, respectively, 1 to 6, inclusive, and the lands within five miles of each road are to be assessed for the improvement in that section.
The statute provides for one organization of commissioners of the district, but it is tantamount to the formation of sis. separate districts with distinct assessments of benefits and levy of taxes to pay for the several improvements. The statute contains the customary pro visions for the assessment of benefits and reporting the same to the county court. It provides that the commissioners, after completing the assessments, shall give notice to the property owners by publication in a newspaper for two weeks, and on the day named the complaints of the property owners shall be heard, and the assessments shall be equalized by increasing or diminishing, according to the proof adduced. It further provides that after completing the equalization of the assessments the list shall be filed with the county clerk as the completed assessment.
The following provision is found in the statute with reference to further remedy of the property owners:
“Any person not beginning legal proceedings to contest any of said assessments of benefits within thirty days after the completion of said assessments, and the filing of the copies thereof with the county clerk, shall be deemed to have waived any objection he may have thereto, and shall not thereafter be heard in any court of law or equity to question any of said assessments, the plans on which they were made, or any other action of the commissioners. The term ‘persons’ wherever used in this act shall include corporations, associations and partnerships.” Road Acts, 1919, vol. 1, p. 624.
The commissioners of this district completed the assessment of benefits by filing a list with the county clerk as provided by statute, and within thirty days thereafter the present action was instituted by some of the appellees — Gr. W. Stroud, Gr. K. Morley, D. Morley and Will Roan — who are the owners of land in the district.
In the complaint filed there is an attack upon the validity of the statute creating the district, and also an attack upon the validity of the assessments.
It is alleged that the assessments were not made' bv the commissioners in accordance with the statute, but were arbitrarily made on the wrong basis and without regard to the proper elements to be considered in determining the benefits.
After the expiration of thirty days from the completion of the assessments, numerous other landowners were made parties plaintiff in the action and joined in the prayer for relief in the original complaint. The commissioners of the district appeared and answered, and the cause was heard by the chancery court on depositions of witnesses, oral testimony and documentary evidence, and a decree was rendered holding that the statute creating the district is unconstitutional and void, and that the assessments are invalid, and the commissioners were enjoined from all further proceedings toward the enforcement of the assessments or from issuing- bonds or constructing the improvement.
We are of the opinion that the decree was erroneous to the extent that it declared the statute creating the district to be void and enjoined the commissioners of the district from further proceedings. The questions involved fall clearly within repeated decisions of this court. Bennett v. Johnson, 130 Ark. 507; Cumnock v. Alexander, 139 Ark. 153; Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168; Hamby v. Pittman, 139 Ark. 341; Johns v. Road Imp. Dist. of Bradley Co., 142 Ark. 73; Van Hook v. Wallace, 143 Ark. 203; Road Imp. Dist. of Dallas County v. Crary, 151 Ark. 484.
The case of Reitzammer v. Desha Road Improvement District, supra, involved the validity of this identical organization, and we held that the statute was valid. Further discussion of this part of the case is unnecessary.
This suit constitutes a direct attack upon the validity of the assessments of benefits so far as concerns the original complaint filed within thirty days after the completion of the assessments. The plaintiffs who subsequently joined in the action came in too late to join in the direct attack, and so far as they are concerned thn case is controlled by the recent decision of this conr*in Road Improvement District of Dallas County v. Crary. supra.
The statute giving the owners of property a specified time after the completion of the assessments of benefits to commence an action challenging the correctness of the assessment is primarily for the benefit of the individual property owners in the correction of their own assessments; but where the whole assessment is on the wrong basis, each property owner has his remedy to have it canceled if the complaint is filed within apt time. In other words, the remedy of the property owner is not confined necessarily to the correction of his own assessment, if the assessments as a whole have been made on the wrong basis, for in a direct attack upon the validity of assessments, one made on the wrong basis is tantamount to no assessment at all. Kirst v. Street Imp. Dist. 86 Ark. 1; Lee Wilson Co. v. Road Imp. Dist., 127 Ark. 310.
If the assessments as a whole are made on a correct basis, individual assessments may be corrected without declaring the whole assessment void.
The' present case was heard partly on oral testimony, which has not been properly brought into the record. It was not reduced to writing and filed during the term by a stenographer previously designated by the court. It is essential that oral testimony be reduced to writing and filed during the term, unless further time is given by consent. McGraw v. Berry, 152 Ark. 452.
The testimony which appears in the record by deposition of witnesses, duly taken and filed, is conflicting; some of it tends to sustain the allegation that the assessment was made principally by ’one of the commissioners without participation by the others, and that the zone system was arbitrarily adopted without due consideration bv all of the commissioners and in total disregard of all the elements which go to make up the benefits from a local improvement.
We have often decided that the zone system is not an improper method, if it is determined upon by the commissioners in the exercise of judgment, after con sidering all of the elements affecting the benefits. Board of Improvement v. S. W. Gas & Elec. Co., 121 Ark. 105; Missouri Pacific R. R. Co. v. Conway County Bridge Dist., 134 Ark. 292.
In the absence, however, of a substantial portion of the testimony, which has not been properly brought into the record, we must indulge the presumption that the finding of the court with respect to the method in which the assessments were made is sustained by the evidence.
That portion of the decree which declares the assessments void and restrains the commissioners from enforcing the collection of the same is affirmed, but that portion of the decree which declares the statute creating the district to be void and restraining the commissioners from further proceeding is reversed, and the cause is remanded, with directions to enter a decree dismissing the complaint to that extent. | [
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Hart, J.
(after stating facts). The Legislature of 1919, by act 234, approved March 11,1919, creates county boards of education, and section four of the act gives to said boards the direction and supervision of the public schools of their respective counties, and also provides that said board, among other powers granted, shall have the power to change the boundary lines between school districts. Section 4 of said act is § 8876 of Crawford & Moses’ Digest.
Prior to the passage of the act of 1919 conferring jurisdiction upon the county board of education to change the boundary line between school districts, that power was granted to the county court. Section 7544 of Kirby’s Digest. Section 8823 of Crawford & Moses’ Digest simply substitutes the county board of education for the county court, in conformity with the transfer of the jurisdiction from the county court to the board of education in forming new school districts and changing the boundaries of the old ones.
It is suggested that the Legislature was without power to make this change. This proposition has already been decided adversely to that contention by this court. This court has expressly held that the Legislature has the power to establish new school districts and to change the boundaries of those established for any reason that may be satisfactory to it. The court expressly said that whatever power the Legislature has. lawfully conferred upon county courts in these respects, it may take away and confer upon other agencies or tribunals. School District of Hartford v. W. Hartford Sp. Dist. 102 Ark. 261; Common School District No. 13 v. Oak Grove Special School District, 102 Ark. 411, and Norton v. Lakeside Special School District, 97 Ark. 71.
It is true that in none of these cases did the court discuss in its opinion the effect of article 7, § 28, of the Constitution of 1874, providing, among other things, that county courts shall have exclusive original jurisdiction over the internal improvements and local concerns of their respective counties. The effect of all our previous decisions, however, bearing on the subject, show that the court did not consider the jurisdiction to form school districts or to change the boundaries was conferred upon county courts under the provisions of the Constitution referred to, but that it has always been considered a purely statutory power.
In each of the cases cited above the court expressly held that a school district is a creature of the Legislature or some governmental agency named in the Legislature, and that the Legislature may create, alter, or abolish school districts at will. Under the statute single school districts may be formed by incorporated towns in the manner provided by the statute without the intervention of the county court. Beavers v. State, 60 Ark. 124. This could not be done if the section of the Constitution above referred to placed exclusive jurisdiction in the county court.
Therefore, we are of the opinion that the act of the Legislature of 1919 conferring upon county boards of education the power to form new school districts or to alter the boundary lines of existing ones is valid and constitutional.
It is the contention of counsel for appellants that the action of the county board in transferring the four sections of land from school district No. 6 to school district No. 15 is invalid because the notice required by § 8821 of Crawford & Moses’ Digest was not given. That section provides, in substance, that notice of the proposed change shall be given in the form provided by the statute by posting the same thirty days before the convening of the court at which the petition shall be presented.
In Lewis v. Young, 116 Ark. 291, this court held that the giving notice of change as prescribed by the statute was a prerequisite to the exercise of jurisdiction in the premises by the county court. Other courts have held that similar statutory requirements are jurisdictional, and that a failure to comply with them invalidates the organization of the school district and all taxation resulting therefrom. Perryman v. Bethune, (Mo.) 1 S. W. 231; Noble v. White, (Ky.) 77 S. W. 678; Gentle v. Board of School Inspectors, (Mich.) 40 N. W. 928; Fractional School Dist. No. 3, etc. v. Board of Inspectors, etc. (Mich.) 30 N. W. 198; State v. Supervisors of Town of Clifton, (Wis.) 88 N. W. 1019.
But it is contended by counsel for appellee that § 8821 of Crawford & Moses’ Digest is no longer in force. They contend that the court took np the whole subject anew in the act of 1919 above referred to, and that this had the effect of repealing the section requiring notice of the change before the petition therefor was presented-to the county court.
We do not agree with counsel for appellees in this contention. The act of 1919 only had the effect to transfer the power to make the change from the county court to the county board of education, and it in no wise affected the mode of procedure.
Section 8877 of Crawford & Moses’ Digest provides that the county board of education shall meet at least four times each year and prescribes the time of holding the regular meetings of said board and that three members thereof shall constitute a quorum. The object of the notice required by the statute was to enable parties whose interests might be affected to be heard before any action is taken, and there would be just as much need for requiring the notice in a proceeding before the county board of education as in a proceeding before the county court. It is evident from reading the act of 1919 that its purpose was merely to change the tribunal which had power to act and not to change the method of procedure in the premises.
As we have already seen, the notice required by the statute is jurisdictional, and there is nothing in the act of 1919 which shows that the Legislature intended to dispense with this requirement.
Again, it is sought to uphold the judgment of the circuit court on the ground that, under the statute, the action of the county board of education is purely administrative, and that a writ of certiorari will not lie-to review its proceedings.
As we have already seen, the statute merely changes the power1 to act in the premises from one tribunal to another. We have held in several casés that the county court exercised discretion with respect to the power conferred upon it in the change of boundaries of common school districts. Hale v. Brown, 70 Ark. 471; Stephens v. School District No. 85, 104 Ark. 145; Carpenter v. Leatherman, 117 Ark. 531; School Dist. No. 45 v. School District No. 8, 119 Ark. 149, and Rural Special School District 17 v. Special School District No. 56, 123 Ark. 571. The same reason would apply for holding that the county board of education has discretion under the statute. As we have just seen, the statute only changes the jurisdiction to act from one tribunal to another, and we are of the opinion that the county board of education acts in a quasi judicial manner in the premises. No appeal from the order of the board of education is given by the statute. .It follows that a writ of certiorari will lie to review the proceedings of the hoard. Hall v. Bledsoe, 126 Ark. 125.
As we have already seen, the petition of appellants show that the statutory requirement as to notice was not given, and the circuit court should have issued the writ of certiorari and granted the prayer of appellants’ petition.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to overrule the demurrer to appellants’ petition and for further proceedings according to law. | [
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Woon, J.
This action was instituted by the appellees against the appellant in the circuit court to recover damages. The appellees alleged that they were the owners of certain tracts of land in sections 22 and 34 in township 10 north, range 3 west, in Jackson County, Arkansas, and that appellant wilfully trespassed upon these lands by cutting and removing therefrom elm timber to the amount of 290,000 feet, which appellant converted into 870,000 staves of the value of $17,400, for which appellees prayed judgment.
The appellant answered denying all the material allegations of the complaint and set up that it had purchased of the appellees all the elm timber on the sections mentioned, and that, in a deed executed by the appellees to the appellant, conveying the different kinds of timber the appellant had purchased from the appellees, through mutual mistake the elm timber was omitted. That the appellant, knowing that it had purchased the elm timber and believing that it was included in the deed, proceeded to cut and remove, along with the other timber, 123,000 feet of elm timber from section 22. Appellant denied that it cut and removed any elm timber from section 34. The appellant also alleged that all of the elm timber cut except 33,000 feet was cut more than three years before the commencement of the action and pleaded the statute of limitations to all except 33,000 feet. The appellant made its answer a cross-action against the appellees, and asked that the cause be transferred to equity and that the timber deed be reformed so as to include the elm timber in section 22. The appellees answered denying the allegations of the cross-complaint. The appellant’s motion to transfer to equity was granted.
The allegations of appellant’s cross-complaint stated a cause of action which entitled appellant to have the cause transferred to the chancery court. The appellant sought reformation of the deed under which it claimed the right to cut the timber in controversy. This gave the chancery court jurisdiction, and, having entertained jurisdiction for that purpose, the court ruled correctly in retaining the cause and in disposing of all the issues involved.
1. The primary question in the case is whether or not the appellees sold to the appellant the elm timber as alleged in appellant’s cross-complaint. The appellant contends that the elm timber growing on the tracts mentioned in sections 22 and 34 was sold by the appellees and purchased by the appellant, and this timber should have been mentioned specifically, along with the other timber, in the deed evidencing the transaction; that it was the intention of the parties that this should be done, and that, through mutual mistake of parties in not calling the attention of the draftsman of the deed to this fact, the elm timber was not included therein.
On this issue, a witness who was appellant’s superintendent at the time of the alleged sale of timber, testified that he made a survey of the timber before the purchase, and that it.was his understanding that appellant was to purchase the gum timber on section 34 and all the soft woods on section 22 suitable for cooperage stock, which included gum, elm, maple, hackberry and sycamore.
Another witness (Massey) for the appellant testified that when he looked over the timber with a view to purchase same J. H. Keel, one of the appellees (who was representing the other appellees), said that appellant would only get the gum species from section 34, but on section 22 appellant would get everything except the oak and hickory. In other words, appellant was to get the soft wood species including gum, elm, maple, hackberry, sycamore, cottonwood, ash and cypress. This witness stated that he was present at Newport when the contract was made for the timber and heard the conversation relative to the contract betw'een the parties, that is, between Lyons and Keel representing the appellees, and Heckart and Diamant representing the appellant. Concerning this conversation the witness said: “Mr. Diamant made the remark, ‘I suppose you all know or understand the purpose of this meeting.’ Mr. Lyons said, ‘Yes.’ Mr. Diamant said, ‘I understand that Bloch, Lyons and Keel want to sell the gum on No. 34,’ having a list there he had prepared, with the gum and elm and different species, and went over the ash, hackberry, maple, etc., on 22, and said, ‘Is that right?’ ” He went ahead with his conversation with Mr. Lyons and he said, “Have you a price?” and Mr. Lyons said, “Yes.” Witness “did not go with them when they went to draw the contract. ’ ’
Mr. Lyons testified concerning the transaction substantially as follows: Diamant, Heckart, Keel and witness met at the hotel, and Diamant told witness that he would like to buy the gum timber on section 34 and section 22 which was owned by Bloch, Lyons, and Keel. He wanted to know what I wanted for it, and I told him I wanted $13,000 cash. They agreed upon the consideration and terms of payment and went over to Joe Stay-ton’s office, an attorney, and gave the details to Mr. Stay-ton. After Mr. Stayton had started writing the contract for the gum on the two sections, something came up about the hackberry, sycamore and tnpelo gum. Tupelo gum was not mentioned at first — just the main gum. As there was very little of this timber on these tracts, we decided that we would include those in this price, for it didn’t amount to anything from the amount of timber that was standing. The written contract exhibited with the pleadings is absolutely the contract made between the Augusta Cooperage Company and Bloch, Lyons and Kjeel. It specifies each class of timber specifically as to what they were to get. The witness was asked the following question: “Was there at any time any agreement, understanding or intention to convey to them the elm and ash?” Ans. “No sir, we were under the impression at that time that we had a contract out upon the ash and elm, and that we could not sell it if we wanted to.”
J. H. Keel, one of the appellees, testified substantially corroborating the testimony of Lyons. He stated that while Mr. Stayton was drawing the contract the question was asked whether the appellees could put in the ash and the elm with the other varieties of soft wood mentioned, and witness stated, “We couldn’t sell the ash and elm. We couldn’t let those two go. We could put in the other timber.” The reason the witness so stated was because his recollection was “that they had a contract out for both the ash and the elm with other people, which contract had not expired.”
Wé need not pursue this issue further, for it will be observed that there was a sharp conflict in the testimony as to whether or not the appellees sold to the appellant the elm timber, and as to whether or not such timber was omitted from the deed evidencing the transaction through mutual mistake. In view of such conflict in the testimony,, it is apparent that the appellant has not proved by a preponderance of the evidence that the elm timber was sold and that it was not included in the deed through mutual mistake of the parties. The appellant therefore falls far short of establishing a cause of action for a reformation of the deed. In one of our recent cases upon this subject we said: “Equity will not reform a deed on account of mistake in description unless the proof of such mistake be clear, unequivocal and convincing, nor unless the mistake is clearly shown to have been common to both parties. While there must be something more than a mere preponderance of evidence to show a mutual mistake, the rule does not require that the proof be undisputed. The requirements of law are fully met when the testimony tending to show a mutual mistake is unequivocal and clear, that is, such as to satisfy and convince the court that the mistake was made and that the instrument was so drawn as not to express what the parties to the contract intended.” Beneaux v. Sparks, 144 Ark. 23. Other cases are Greenhaw v. Cohn, 74 Ark. 336; Varner v. Turner, 83 Ark. 131; Cherry v. Brizzolara, 89 Ark. 668; McKnight v. Wilmington, 94 Ark. 621; Wales-Riggs Plantation v. Banks, 101 Ark. 461; Tedford Auto Co. v. Thomas, 108 Ark. 503; Eureka Stone Co. v. Roach, 120 Ark. 326; Hoffman v. Rice-Stix Dry Goods Co., 111 Ark. 205; Welch v. Welch, 132 Ark. 227; Waddell v. Bowdre, 151 Ark. 474.
2. The trial court found that the trespass was wilful, but refused to award treble damages, citing Cooley v. Lovell, 95 Ark. 567; Hendricks v. Black, 132 Ark. 473. These were cases originating in courts of chancery to enforce penalties, and we held that ‘ ‘ courts of equity will not aid in the enforcement of penalties.” But, where one goes into a court of law to recover treble damages awarded by the statute (§ 10320, C. & M.) and the defendant in the action asks and succeeds in having the cause transferred to equity, the chancery court, having acquired jurisdiction and having determined on trial of the issues that the plaintiff is entitled to treble damages under the statute,.may follow the law and award such damages without sending the cause back to the law court.
But while the appellant’s alleged cause of action for reformation of the deed breaks down under the above rule, it does not follow from the above facts that the trespass was wilful, and that the. appellees are entitled to treble damages. On the- contrary, while the above testimony does not prove clearly and unequivocally that it was the intention of the parties to- sell the elm timber and to have the same included in the deed, it occurs to us that it was sufficient, taken in connection with other testimony in the record, to show that the agents and servants of appellant in cutting the elm timber' were not wilful trespassers. The testimony of appellant’s agent, Massey, who was in charge of appellant’s logging operations during the period covered by these alleged trespasses, shows that he believed that-the appellant had purchased the elm timber and had the right to cut and remove the same. Although he was mistaken in this belief, nevertheless, the circumstances detailed by him were such as to warrant the conclusion that he honestly entertained such belief, and therefore was acting in good faith in cutting the elm timber, believing that he had a right to do so.
In U. S. v. Flint Lumber Co., 87 Ark. 80, we held, quoting from Pine River Lbr. Co. v. U. S., 186 U. S. 279, and Woodenware Co. v. U. S., 106 U. S. 432, as follows: “Where the trespass is the result of inadvertence or mistake and the wrong was not intentional, the value of the property when first taken must govern.” Also citing U. S. v. Anthony Ry. Co., 192 U. S. 524. Therefore, the court ruled correctly in refusing to allow appellees treble damages, although its ruling was grounded upon an erroneous reason.
3. The next question is, what was the quantity and value of the elm timber cut by the appellant? The trial court found that the appellant, during the years 1917, 1918 and 1919, had cut 128,218 feet of elm timber from the land of the appellees and found that the value of this timber was $2,412.07, which was about $19 per thousand feet. This issue as to the quantity and value of the elm timber cut is purely one of fact. The testimony bearing upon this issue is quite voluminous, and it could serve no useful purpose as a precedent to set it out and discuss it in detail.
After a careful consideration of it we have reached the conclusion that the preponderance of the evidence shows that the stumpage value of the elm-timber would amount to the sum at least of $2,412.07, the amount of the decree of the trial court. Even though the trial court gave erroneous reasons for its findings and decree, nevertheless, we find that the amount of the decree based on the stumpage value of the timber was justified by a preponderance of the evidence in the record.
There is no error which should cause a reversal of the decree of the trial court, and the same is therefore affirmed. | [
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Wood, J.
This action was brought by the appellant against James C. Davis, agent of the United States Government, and the Missouri Pacific Railroad Company to recover damages in connection with the shipment of certain household goods. It was alleged that James C. Davis as the agent of the United States government was in control and was operating the Missouri Pacific Railroad Company and the Yazoo & Mississippi Railroad Company, railroad corporations, and that, through the negligence of the defendants’ agents and employees in a manner which is specifically set forth in the complaint, the damage was caused for which appellant seeks to recover.
Summons was issued only against the Missouri Pacific Railroad'Company and was served, as shown by the return of the sheriff, as follows: “I have this third day of October, 1921, duly served the within by delivering a true copy of the same to the within named Missouri Pacific Railroad Company through its agent, E. J. Wyeth, as herein commanded.”
The following motion was filed: “Comes the Missouri Pacific Railroad Company and moves the court to dismiss this cause of action as to it, and shows the court that the cause of action set out in plaintiff’s complaint occurred and accrued on the 12th day of December, 1919, at which time the Missouri Pacific Railroad Company was under the control of and was being operated by the Federal Government, and therefore plaintiff’s cause of action, if any he has, is against the agent of the United States, as provided in the act of 1920, known as the Tiller Transportation Act.”
The record contains the following order: “Now on this day comes the defendant by attorney C. E. Daggett, Esq., and by leave of the court files motion to dismiss the cause, which said motion coming on to be heard and the court, being well and sufficiently advised, doth grant said motion, to which ruling of the court in dismissing said cause the plaintiff at the time excepted and asked that his exceptions be noted of record, which was done.”
The appellant prosecutes his appeal from this order.
It will be observed that there is no final judgment dismissing the cause of action either against the Missouri Pacific Railroad Company or against the Director General, James C. Davis. The record entry of the final order from which the appeal is taken only shows that the motion to dismiss was granted. The motion itself shows that it was a motion made by the Missouri Pacific Railroad Company “to dismiss this cause of action as to it.” So, if the order of dismissal could be treated as a final judgment, it at most would be but a final judgment dismissing the cause as to the Missouri Pacific Railroad Company. That was all that was asked. in the motion and all that could be granted within the pleading.
It is not contended that the court erred in dismissing the complaint as to the Missouri Pacific Railroad Company. There is no other issue before us in any possible view of the record. The judgment therefore is correct, and it is affirmed. | [
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Hart, J.
(after stating the facts). The court erred in instructing a verdict for the plaintiff. The plaintiff purchased the land for $40,000 and sold it to the defendant for $50,000. The defendant paid $500 at the time the written contract fox' the sale of the land was executed. There was about $1,600 or $1,700 of personal property that was to go with the land. By deducting the $500 paid when the contract was'executed and the value of the personal property in the sum of $1,700 from $10,000, the estimated profits of Echols, the court arrived at the sum of $7,800, for which the jury was directed to return a verdict in favor of the plaintiff.
The court did not adopt the proper measure of damages. It is true that McGregor committed a breach of the contract by failing to accept the deed tendered by Echols and to carry out his part of the contract, but this left Echols in possession of the land and of the personal property. In such cases the rule as announced by this court, which is in accord with the weight of authority on the question, is to the effect that, upon the breach by the vendee of an executory contract for the sale of land, the vendor may have an action at law for damages, and his measure of damages is the difference between the contract price of the land and its market value at the time of the breach, less the portion of the purchase price already paid. Fears v. Merrill, 9 Ark. 559; Old Colony Railroad Corporation v. Evans, 6 Gray (Mass.) 25; Porter v. Travis, 40 Ind. 556; Hodges v. Kowing, 58 Conn. 12; Pritchard v. Mulhall (Iowa) 4 Ann. Cas. 789; Muenchow v. Roberts, 77 Wis. 520, and Hogan v. Kyle, (Wash.) 35 Pac. 399.
In an action by the purchaser of land for a breach of the contract to convey, this court has also laid down the rule that the measure of damages is the difference between the contract price and the value of the land when the breach occurred, with interest on such difference. Kempner v. Cohn, 47 Ark. 519.
In Old Colony Railroad Corp. v. Evans, (Mass.) 6 Gray, 25, 56 Am. Dec. 394, the rule of damages is clearly stated as follows: “In actions against a vendee on a contract for the purchase of real estate, we had supposed it to be a well settled rule that when a party agreed to purchase real estate at a certain stipulated price, and subsequently refuses to perform his contract, the loss in the bargain constitutes the measure of damages, and that is the difference between the price fixed in the contract and the salable value of the land at the time the contract was to be executed.’’
It follows that the court erred in excluding the testimony offered by the defendant 'as to the market or salable value of the land at the time he breached the contract and in directing a verdict for the plaintiff.
It is also insisted by counsel for the defendant that the plaintiff is not entitled to recover, because Dr. James had a lien on the land for $30,000. The record showed that Dr. James executed an instrument in writing releasing his vendor’s lien for the unpaid purchase money upon the delivery to him of the notes to McGregor for a like sum. The general rule is that where a contract is entered into in good faith, it is not necessary that the vendor be actually in the situation to perform it at the time it is entered into, provided he be able at the proper time to place himself in that situation. Incumbrances on the land when the contract is made will form no ground of objection thereto if removed before the time of completing the purchase. 39 Cyc. 1931-1932; Townsend v. Goodfellow, (Minn.) 41 N. W. 1056.
The record shows in the present case that the incumbrance was removed by the date that Echols was required to execute a deed to the land to McGregor. Therefore, the contention of the defendant on this point is not well taken.
For the error in directing a verdict for the plaintiff, as indicated in the opinion, the judgment must be reversed and the cause remanded for a new trial. | [
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Humphreys, J.
Appellee instituted suit against appellant, a lumber corporation, in the Pike Circuit Court to recover damages in the sum of $8,000 on account of an alleged injury sustained to his hand while assisting other employees in unloading a long pole which was on one of its flat cars where it had served as a support for a house which appellant was moving. Two grounds of negligence were alleged in the amended complaint as a basis for recovery, the first being that appellant, its agents and servant, negligently furnished appellee with a crooked skid pole,' which was slick and unsafe; and the second being that the pole was moved or shoved without notice or warning to appellee when he was assisting in moving the same, which caused it to fall upon and break two bones in his hand and otherwise injure it. Appellant filed an answer, denying the allegations of negligence and injury, and, by way of further defense, pleading assumed risk and contributory negligence on the part of appellee. The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellee in the sum of $2,500, from which an appeal has been duly prosecuted to this court.
The evidence, in substance, reflected that appellant was engaged in moving a house from one point to another on a flat car; that the house being wider than the car, was supported by two skid poles about 16 feet long and 8 or 10 inches in diameter at the butt end, lying across the car; that the skid poles were pine; that after the house was unloaded appellant’s foreman directed appellee and others to unload the poles; that the skid pole which appellee testified fell upon and injured his hand was crooked, partially disbarked and slick, due to a rain which fell during the afternoon; that appellee’s hand had been twice injured before, once in 1914 when a cross-tie fell upon it, breaking one bone and leaving a knot on the báek part of the hand, and again in 1920, when a large rock fell upon it, causing him to cease work for a time. Appellant testified that in removing the pole he was standing against the car on the left side, and that the man on top gave the pole a sudden j erk, which turned it over and mashed his hand between the pole and the ódge of the car; that two of his fingers were broken, which stiffened and rendered them useless; that the injury caused him great pain and suffering; that the injuries received to his hand theretofore did not seriously injure his hand; that the injury received to his hand by the falling pole rendered it useless for purposes of labor.
In the progress of the trial T. F. Alford, a practicing physician, over the objection of appellant, testified that the injury was permanent on account of lack of elasticity in the muscles and tension in the ligaments that supply the broken fingers. Appellant objected to the evidence of the physician concerning the permanency of the injury to the hand, because it might have been produced by the injuries received in 1914 and 1920.
The evidence adduced by appellant tended to show that appellee’s hand was not crushed by the pole, but that the condition of his hand was due to the injuries received in 1914 and. 1920. Some of appellee’s co-employees testified that appellee assisted in removing the pole without making any complaint of injury or exclamation during the time it was being removed; that he continued to work that day and part of the next day without making complaint. Nat Lawrence testified that he assisted in moving the crooked pole, and was standing against the car; that appellee was on his right side, away from the ear. At this point appellant offered to prove that, owing to the position of Nat Lawrence, appellee could not have reached the arm of witness and gotten hold of the pole so that it could fall on or mash his hand. This evidence was- excluded, over the objection and exception of appellant.
The court sent the cause to the jury on the theory that appellee might recover if the evidence supported either or both allegations of negligence set forth in the complaint. In other words, the court authorized a recovery by appellee if the evidence showed that the pole was crooked and slick. This was error. The slick and crooked condition of the pole was necessarily patent to any one, and appellee therefore assumed the risk incident to handling a slick, crooked pole. This court said, in' the case of Chicago R. I. & P. R. Co. v. Grubbs, 97 Ark. 486: ‘£ The plaintiff knew that the effect of creosote upon cross-ties was to make them slick and therefore liable to slip. * * * * Their condition was patent to him. ***** It was obvious, therefore, that these ties were liable to slip whenever any force or weight was applied to them. The risk or injury which might result by reason of the ties slipping or moving was obvious, and when plaintiff undertook the service of straightening them out he assumed the risk. * # * * A master is not bound to warn the servant as to dangers which are obvious and patent to him.”
There is a dispute in the evidence as to whether appellee was injured through the negligent and careless handling of the pole by appellee’s co-employees. The cause, therefore, should have been submitted to the jury, upon the sole question of whether the injury resulted' to appellee on account of the negligent and careless handling of the pole by appellee’s co-employees, without notice that the co-employees were about to move or shove the pole.
Appellant next insists that the court erred in permitting Dr. Alford to testify that the injury to plaintiff’s hand was permanent. The appellant’s insistence is that the effect of this testimony was to allow appellee to recover for the condition of the hand resulting from the fall of the cross-tie in 1914 and the rock in 1920 upon his hand, as well as the injury inflicted by the pole falling upon it in 1921. We do not think so. There was evidence tending to show that the first two injuries received were slight and left the hand unimpaired. There was evidence, however, to the contrary. It therefore became a disputed question of fact for the jury to determine which injury stiffened and deformed appellee’s hand. The court specifically instructed the jury that the burden was upon the appellee to show the nature and extent of the injury he received on June 23, 1921, and that he could not recover for conditions produced by prior injuries. It was not necessary for Dr. Alford himself to know or testify which injury stiffened and deformed appellee’s hand before testifying concerning its condition at the time of the trial. It was perfectly proper to show the stiffened and deformed condition of appellee’s hand at the time of the trial by a physician, and to show by other witnesses the cause that produced the condition thereof. The physician himself may not have known the immediate cause of the injury to the hand, but, on account of his expert knowledge, was peculiarly qualified to explain the nature and extent of the injury.
Appellant’s last insistence for reversal is that the court erred in refusing to allow Nat Lawrence to testify that appellee did not reach, and could not have reached, under his (Lawrence’s) arm and gotten his hand in position to be crushed between the pole and the edge of the car. We do not think any prejudice resulted to appellant on account of the exclusion of this evidence, as Lawrence was permitted to testify concerning the position of appellee and himself with reference to the car and the pole in such way that the jury itself could draw a correct conclusion as to whether appellee was near enough to reach the pole and receive the injury in the manner alleged. It would not perhaps have been error to admit the evidence upon the theory that it was a conclusion of fact drawn from appearances which could not otherwise be clearly produced to the jury. Fort v. State, 52 Ark. 180.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Wood, J.
Brown & Froley (hereinafter called appellants) are partners engaged in the business of constructing roads in the State of Arkansas. On the 12th of February, 1919, they entered into a contract with the Monroe County Road Improvement District, through its commissioners, to construct a certain road in Monroe County. They alleged that the district is indebted to them in the sum of $14,805.35 for grading; that under the contract the district was to supply appellants with sufficient gravel to keep appellants’ employees'steadily employed in hauling and placing the same upon the road; that the district breached its contract in this respect, to the damage of the appellants in the sum of $4,872.64; that it was the duty of the district to set grade stakes and at all times to have sufficient work laid out to keep the grading force of the appellant steadily employed; that the district failed to comply with its contract in this respect, to appellants’ damage in the sum of $5,056.
The above allegations were contained in the com-, plaint and amended complaint of appellants, and judgment is prayed for the above amounts.
The district, through its commissioners, answered, denying that the appellees were indebted to the appellants in the above amounts, and set up by way of cross-complaint that under the contract the appellants should have completed the work before May 1, 1920; that on account of their failure to comply with the contract in this respect they were indebted to the appellees in the sum of $4,695, liquidated damages, for which they prayed judgment. The appellees further set up that in June, 1919, the appellants became dissatisfied with the estimates of the quantities of grading allowed appellants by the engineers of the district; that thereupon the appellants and appellees agreed to submit the matter to arbitration, which was done; that the appellants agreed with the appellees that the finding of this board should be binding, and that the board of arbitration found that there had been no error in the estimate of the engineers of the district in quantities of grading allowed appellants, and that appellants were bound by such finding.
The trial court, after hearing the testimony adduced on the above issues, dismissed the complaint and also the cross-complaint for want of equity. From the decree against them the appellants prosecute this appeal, and appellees cross-appeal.
1. The decree of the court is correct. Under the terms of the contract the appellants agreed to construct the improvement “in exact accord with the plans and specifications, copies of which were attached to and made a part of the contract. ’ ’ Among other provisions in these specifications, is the following: ‘ ‘ The engineer shall furnish monthly estimates of the work done upon which partial payments to the contractor shall be based, and,"in the absence of fraud or error, his decision as to the value and quantity of work or material shall be final and conclusive. ’ ’ It will be observed that it is not alleged in the complaint that the engineer was guilty of any fraud. The undisputed testimony shows that, after the controversy arose between the appellants and the engineers of the district in regard to the estimate of grading quantities allowed by the engineers to the appellants, the appellants agreed with the engineers of the district that the controversy should he submitted to a board of arbitration, the appellants selecting one, the engineers selecting one, and the State Highway Department selecting the third member of the board. The report of this board in part is as follows: “We visited the work in person and examined both the field and office work, making numerous measurements of the completed work in order to check the cross-sections. The engineer’s notes were gone over carefully and the calculations checked in the office. Our investigation has disclosed no error in the engineer’s work. ’ ’ This report was signed 'by all the members of the board of arbitration.
In regard to the estimate of the engineer of the district of the quantity of grading of which the appellants complain, the trial court found as follow®:
“A number of witnesses testified on behalf of the plaintiffs as to the number of yards of earth removed, but the testimony of these witnesses is not specific enough to overturn the estimate >of the engineers of the district on which the commissioners made settlement. Witness Conley, for the plaintiff, merely gives an estimate of the yardage moved. He does not state he made any measurements of the number of yards, and does not claim to be competent to make a measurement. Witness- Dickinson, it seems, made an estimate, but the value of his testimony is considerably diminished by reason of the fact that he, together with two other gentlemen, all claiming to be engineers, signed a written statement in which they said, among other -things: ‘The investigation has disclosed no error in the engineer’s work.’ In this statement they also state that they visited the work in person, and examined both field and office work, making numerous measurements, etc. They also state that they went over the engineer’® notes carefully,” etc.
The above findings of the court we approve. The issue is purely one of fact. The testimony bearing on the issue is voluminous, and it could serve no useful purpose to set it out and discuss it in detail. After a careful examination of the record, we have reached the conclusion that the decided preponderance of the evidence shows that the board of arbitration found and reported correctly that there was no error in the engineer’s work. The testimony of the engineer who made the estimates of the work as it progressed and who made a monthly report, and the testimony of three other competent engineers, tended to prove that the estimates of the grading made by the engineer who did the work were correct. The testimony tending to prove otherwise, as the trial court found, was not sufficient to overcome the findings of the engineer who made the estimates and the board of arbitration. True, the testimony of Dickinson, one of tbe engineers, who was a member of the board of arbitration, tended to show that the report of the board of arbitration was not really correct, but was made only for the purpose of giving the engineers a “clean bill of health,” and that he made a supplementary or second report at the same time in which he stated as follows: “As engineers familiar with this class of work, we are unanimous in the opinion that the circumstances surrounding this work are such that the contractor has necessarily moved more material than is shown by the cross-sections, and that he has not been sufficiently compensated for the actual labor performed.” This witness further testified that at the suggestion of Bennett, one of the arbitrators for the engineering firm, the report was divided into two parts; one part wholly clearing the engineering company from any mistakes, and the other1 a recommendation to the board for relief to the contractors. He further testified there was no doubt in the minds of the arbitrators that the work would cost the contractors approximately twice as much as the estimates amounted to. “There was no doubt in our minds,” says the witness, “that the contractors had moved more yardage than was given by the engineering company.” This witness, 'by testifying to matter's directly contradicting matters set forth in the report signed by him in connection with the arbitration, places himself in the unenviable attitude of challenging his own report as a member of the board of arbitration. His testimony is not entitled to as much consideration as the testimony of other arbitrators who did not sign his individual report and who flatly contradicted him as to the correctness of such report.
Bennett, one of the other arbitrators, who was selected by the engineering firm, categorically denied that he had requested Dickinson to divide the report into two sections in order to give the engineers of the district a “clean bill of health.” He testified that the arbitrators were appointed because of a difference as to quantities al lowed by the engineer of the district, and the board was selected to determine whether the engineer’s estimates were correct, and in witness’ opinion the estimates were correct.
Major Parkes, of the engineering firm, also positively denied that he requested Bennett to sign a report giving his company “a clean bill of health.”
The other arbitrator testified that he signed the report. He saw Dickinson’s statement. The report was intended to cover all the work done to date. The arbitrators were of the opinion that the contractors had not been sufficiently compensated, and therefore they made a rec-. 'ommendation to the board of commissioners that they should be allowed additional compensation.
The decided preponderance of the evidence shows, however, that the arbitrators were willing to make this recommendation, not because there was any error in the estimates of the grading, but because appellants were victims of weather conditions and other unfortunate circumstances which caused them to lose money in performing their contract. It occurs to us that the trial court was correct, in the conflict between the testimony of Dickinson and his own report and the testimony of another commissioner and other witnesses, in finding that the value of Dickinson’s testimony was “considerably diminished.” After a careful review of the entire testimony, we conclude that there was no error in the estimates of the quantities of grading given by the engineer of the district to the appellants. Although this arbitration was not binding upon the appellees, nevertheless we are convinced that a decided preponderance of the evidence shows that the finding of the board of arbitration was correct. The decision of the engineer as to the quantity of this work under the terms of the contract was therefore final and conclusive and binding on the appellants. The court ruled correctly in so holding.
2. As to the item of $4,872.64, growing out of the alleged failure of the appellees to supply appellants with a sufficient quantity of gravel to keep appellants’ employees steadily employed, let it suffice to say that the contract does not provide that the appellees shall furnish gravel to the appellants to keep appellants’ forces steadily employed, and that a failure upon the part of the appellees, to furnish gravel so as to keep appellants’ forces from being idle would render the appellees liable in damages for such failure. It must be presumed that the parties were contracting with reference to all the conditions confronting them at the time, such as weather conditions and the difficulties to be encountered in obtaining gravel in sufficient quantities to keep appellants’ forces steadily employed. Since the contract does not contain any such provision, liability of appellees predicated upon breach of such provision cannot be maintained. If the appellants contemplated that such a duty and obligation should rest upon the appellees, then they should have seen to it that the contract contained such a provision. In the absence of such contractual duty and obligation, no damages can be recovered by the appellants as for as a breach of contract in this respect. Furthermore, even if the contract had contained such provision, the court found as follows: “Not only is the evidence sufficient to sustain the plaintiffs’ contention, but there is testimony tending to show that there was gravel on the siding at Keevil and Overholt.” On this issue of fact we are convinced that a preponderance of the evidence sustains the finding of the trial court.
3. In regard to the claim of appellants for damages on account of the loss of time caused by reason of the failure of the appellees’ engineers to set-grade stakes, the court found “that the plaintiffs’ proof going to sustain the same was positively disputed by the defendants and by the engineers who had charge of the work. Furthermore, this item does not seem to have been considered seriously at the time the original complaint was filed.”
The original complaint was filed January 15, 1920, and the appellants at that time sought to re-cover only for alleged damages growing out of the failure of the ap pellees’ engineers to give appellants correct grading estimates and the failure of the appellees to furnish gravel in sufficient quantities to keep appellants ’ forces steadily employed. About eighteen months thereafter an amended complaint was filed alleging damages on account of the failure of appellees’ engineers to set grade stakes. It occurs to us that if the appellees’ engineers failed to set grade stakes, appellants would have been fully advised of this fact when they instituted their action to recover damages on account of erroneous grading estimates. Be this as it may, the testimony on behalf of the appellants tending to prove that their forces were idle because of the failure of the appellees ’ engineers to set grade stakes was overcome by the testimony of the local engineer in charge of the work to the effect that grade stakes were set. We are convinced that the finding of the chancellor on this item is correct.
4. The trial court refused to award the appellees damages on their cross-complaint. The contract provides that the appellants agreed to begin work on the 25th of February, 1919, and to complete the same before the 1st of May, 1920, and upon failure to complete the work in time it was specified that the appellants should pay to the appellees the sum qf $15 for each day delayed as liquidated damages. The appellees, in their cross-complaint, prayed for damages in the sum of $4,695, damages for delaying to complete the work for the period of one year. On account of unfavorable weather conditions and the obstacles because thereof, which appellants had to overcome in the performance of their contract, it was not the intention of the appellees to enforce the above provision of the contract as to liquidated damages. No claim was made for such damages in the original answer of the appellants to the appellees’ complaint, and not until the appellant had filed an amended complaint asking for damagfes on account of the alleged failure of appellees’ engineers to set grade stakes did the appellees set up any claim for liquidated damages. It does not appear that the commissioners at any time previous to this had notified the appellants that they were going to insist on snch damages. On the contrary, the testimony tends to prove that the appellees have waived the above provision of the contract as to liquidated damages. One of the appellants testified that they suspended work in November, and that the engineers released their outfit, over there until appellants were notified by them to return, and that appellants had not been so notified.
The appellants introduced in evidence a letter from the supervising engineer of the appellees, which it is unnecessary to set forth, but this letter clearly indicates that the appellees through this conduct of the supervising engineer had acquiesced in the suspension of the work by appellants on account of unfavorable weather conditions. This letter shows that the appellees were not going to insist on appellants continuing their full force on the work during the winter, but consented to the use of “two teams and a man to run the grader and haul gravel and keep the road perfect during the winter, or until such time as the engineer shall direct their return of their full force to the work.” Under all the circumstances the appellees must be held to have waived the provision of the contract as to liquidated damages.
. We find no error in the decree, and the same is therefore affirmed. | [
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Humphreys, J.
Appellant instituted suit against appellee in the Johnson Circuit Court for damages to his land and improvements south and east of appellee’s depot in Hartman in the years 1917, 1918 and 1919, caused by overflow of his land alleged to have occurred on account of the failure of appellee to provide suitable culverts and openings in constructing its roadbed near Hartman, in said county, to carry off water which had been diverted from its natural course and thrown into a ditch across appellant’s land which had theretofore been adequate to carry off the natural drainage. Appellee filed an answer denying that the culverts were inadequate to carry off the natural drainage and the additional waters diverted from the Logan branch into the branch across appellant’s land. The cause was submitted to a jury upon the pleadings, evidence and instructions, which resulted in a verdict and judgment against appellant, from which is this appeal.
The record reveals that the roadbed and culverts were constructed in 1902. The road ran east and west by the depot. Two culverts were constructed across the roadbed near the depot, one just west and the other about 250 yards east of it. Prior to the construction of the roadbed the lands north and west, as well as south and. east, of the depot were drained by a branch over which the two culverts were constructed. The lands as far north as the Logan branch drained into the branch over which the culverts were constructed. The Logan branch itself flowed south through the Gray farm, and did not connect with the first branch. Lands further north were drained by the Logan branch. Both branches were dry-weather branches, forming the route of drainage when it rained, and were ample, prior to the construction of the roadbed, to carry off the water during hard rains. In constructing the roadbed appellee formed a dam across Logan branch, no culvert being placed at that point, and turned or diverted the water during rains down the north side of the track until it entered the first branch. The first branch, or the one over which the two culverts were constructed, ran across the roadbed toward the south and through appellant’s land to a point about 250 yards east of the depot, where it turned and crossed the roadbed again, over which the culvert on the east side was also constructed. The culvert on the east side of the depot was smaller than the one on the west side.
The testimony adduced on the part of the appellant tended to show that the culverts, especially the one on the east side of the depot, were too small to carry the water diverted from Logan branch, in addition to the natural flow, during hard rains or freshets; that the ditch across appellant’s land had 'been partially filled by sediment deposited by the excess flow of water, and this, in connection with the insufficiency of the culvert east of the depot to carry the excess volume of water, caused the water to back over the banks and flood appellant’s land in the years mentioned, to his damage in the several sums alleged.
The testimony introduced on behalf of appellee tended to show that, if the ditch or branch across appellant’s land was not obstructed by sediment, or otherwise, the culverts were large enough to carry off the natural drainage, as well as the water diverted from the Logan branch into the first branch.
Appellant’s first contention for reversal is that the only reliable evidence in the case disclosed that the east culvert was insufficient in size to carry off the natural drainage and the additional water diverted from Logan branch into the branch across his land during hard rains. It is argued that the witnesses introduced by him were eye-witnesses to the fact that the east culvert did not furnish sufficient outlet during hard rains in the years 1917, 1918 and 1919, and that on this account his land was overflowed and damaged as alleged. It is true that the witnesses introduced by appellant actually observed the conditions in those years and testified that appellant’s land overflowed because the waters entering the branch or ditch were not carried off through the east culvert as rapidly as they entered it. It is also true the testimony shows that the land never overflowed at any time before appellee constructed its roadbed and culverts. It does not follow, however, as a matter of course, that the overflow was due to the insufficient size of the culvert east of the depot. There was evidence tending to show that sediment and dirt had been washed down from the lands west and north of the depot and deposited in the branch running across appellant’s land, thereby partially filling the ditch and obstructing the free flow of the water. The obstruction caused by this sediment may have caused the overflow. The inference from the testimony is that no overflow occurred between 1902 and 1917, or until the ditch had been partially filled up on account of the sediment. Appellee had no right- to. enter upon the land of appellant and clean out the branch or ditch running through it. Appellant could not sit idly by and permit this sediment to accumulate, even though it was deposited from surplus water thrown through this branch or ditch by appellee, and then recover damages from appellee on account of an overflow occasioned by this deposit. If the sediment was deposited on account of the unnatural flow of water, diverted from its natural course into the branch in question by appellee, it was appellant’s duty to remove same, being upon his own land, and thereby prevent the water from flooding his land, if possible. In addition to the proof tending to show that the sediment caused the overflow of appellant’s land, appellee introduced an engineer who testified that he figured the rainfall, the area to be drained, and the size of the culverts, and from these measurements was of the opinion that the culverts were ample in size to carry off all the water when the branch above appellant’s land was in its normal condition. We think the testimony presented a disputed fact determinable solely by the jury.
Appellant also insists that the court erred in giving instructions 4 and 5, which are as follows:
“4. Now there has been some contention that the openings there' were not the proximate result of the damages that was done to plaintiff, but that it was a ditch that filled up; so I will give you that theory of it.
“5. You are instructed that, if you believe from the evidence in the case that the ditch which heretofore carried off the water south of Mr. Oberste’s gin became filled up by natural wash from nearby land into said ditch, then no duty rested upon the railway company to open said ditch, and it became Mr. Oberste’s duty to open said ditch, and for the filling of said ditch the railway company is not liable, and your verdict will he for the defendant. ”
It is argued that there is no evidence in the record to sustain these instructions.. We think the instructions objected to were responsive to the evidence tending to show that the overflow was occasioned by sediment deposited in and partially filling the 'branch running across appellant’s land. Even if this were occasioned by surplus water diverted from its natural course and turned into the branch by appellee, it was appellant’s duty to keep the branch cleaned on his own land, as appellee had no right to enter upon appellant’s premises and clean the branch.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a decree of the Phillips Chancery Court refusing to set aside an injunction against appellant prohibiting it from enforcing an execution and levy upon the property of the Thale Mill & Box Company, obtained by appellant against said company in the circuit court of said county on the 25th day of October, 1921. O. C. Brewer, the appellee herein, was appointed receiver of the said Thale Mill & Box Company on November 28, 1921, upon the application of C. S. Fitzpatrick, one of the stockholders in said Thale Mill & Box Company, in a receivership proceeding under sections 1798 to 1801, inclusive, of Crawford & Moses’ Digest. The petition for the receivership alleged, in substance, that the Thale Mill & Box Company was unable to pay its indebtedness and has ceased to function; that its stockholders and directors had adopted a resolution directing that the affairs of the corporation be placed in the hands of a receiver; that in October, 1921, appellant had obtained a judgment against the insolvent corporation and procured an execution and levied the same upon its property. The prayer of the petition was that all the property of the defunct concern be placed in the hands of a receiver and converted into money for the payment of its creditors, that all creditors be required to file their claims within the time provided by the statute, and that appellant be restrained from enforcing its execution and levy against the property of the insolvent corporation.
The Thale Mill & Box Company, through its president and secretary, filed an- answer admitting its insolvency, and joined in the prayer of the petition of C. S. Patrick for a distribution of the assets of said company among its creditors. Thereupon the court appointed O. C. Brewer receiver of said insolvent corporation and directed him to take charge of its assets, and to distribute the proceeds thereof among the creditors who filed their claims with the receiver within ninety days, as provided by the insolvency act aforesaid. The court also enjoined appellant from enforcing its execution and levy against the property of the insolvent corporation. On the following day appellant filed a motion praying that the injunction against it be dissolved and that it be permitted to pro ceed to enforce its execution and levy against the property of said corporation. The court entered a decree refusing to dissolve the injunction, from -which is this appeal.
Appellee has filed a motion in this court to dismiss the appeal upon the ground that the decree refusing to dissolve the injunction was interlocutory and not final. The decree of injunction, which the court refused to set aside, in effect finally decided the title and right to the possession of the property which had been levied upon under appellant’s execution as between the receiver of the defunct corporation and appellant. It is true the proceeding in insolvency had not been finally adjudicated, but the title and the right to the possession of the property in question was a separate branch of the case. The appellant claimed it under an execution lien, and the receiver 'by virtue of the proceeding’s in insolvency. Appellant intervened in the suit for it, and the issue joined upon the intervention was adjudicated against him. The decree upon this distinct and several branch of the case was final and appealable. Davie v. Davie, 52 Ark. 224; Seitz v. Meriwether, 114 Ark. 289.
Appellant’s contention for reversal is that its judgment was obtained and execution issued thereon before the Thale Mill & Box Company was declared an insolvent corporation and was not acquired in contemplation of the insolvency of said corporation, and for that reason its lien is prior and paramount to the claim of the other creditors of said corporation. While there is nothing in the evidence to indicate that appellant acquired its judgment and execution lien in contemplation of the insolvency of said corporation, yet the judgment was obtained and the execu+ion thereon issued and levied -within ninety days before the proceeding in insolvency was instituted. Appellant bases its contention upon section 1800 of Crawford & Moses’ Digest, which it interprets to mean that only r>references obtained bv judgment, execution and lew -acquired in contemplation of insolvency shall be set aside at the instance of proper parties within ninety days after same were obtained. This is not the correct construction of section 1800. It was otherwise interpreted by this court in the case of Miners’ & Citizens’ Bank v. Maxine Mining Co., 150 Ark. 653. The court said in that case: “Section 1800 (referring to Crawford & Moses’ Digest) provides that every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachment, confession of judgment, or otherwise, shall be set aside by the chancery court, and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets of such corporation, provided that no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained.”
The decree is therefore affirmed. | [
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Hart, J.
Louis Mayo brought this suit in equity against W. A. Maywood to cancel as a cloud on his title a clerk’s tax deed to certain land in the western district of Craighead County, Ark.
Maywood relied on the validity of the tax sale and adverse possession for two years under his tax deed.
The chancery court found the issues in favor of the plaintiff, and a decree was entered accordingly. To reverse that decree the defendant Maywood has duly prosecuted tMs appeal.
At the trial it was shown that the title to the land in question was in Louis Mayo, and that he had regularly paid the taxes on the land up to and including the year 1916. His tax receipt for the year 1916 is exhibited in the record. The land was sold by the collector of taxes for the nonpayment of taxes for the year 1916, and W. A. Maywood became the purchaser at the tax sale. At the expiration of two years a clerk’s tax deed was executed to Maywood, and he entered into possession of the land under it. He claimed to have been in possession of the land under his tax deed for two years before the present suit was brought, but the testimony as to the continuity of his possession is in dispute and will be discussed later.
Counsel for the plaintiff first seek to uphold the decree on the theory that a short statute of limitations like 6947 of Crawford & Moses’ Digest applies only to tax sales invalid because of defects and irregularities in the proceedings, and that possession under such a statute will not sustain a deed that is valid on its face, if there were jurisdictional or fundamental defects in the sale, or where the taxes for the nonpayment of which the land was sold had in fact been paid. '
This is what is called the majority rule in 26 R. C. L. par. 399, and, amongst other cases, reliance is placed upon the case of Redfield v. Parks, 132 U. S. 239, where the Supreme Court of the United States in construing the statute now under consideration held that a deed of land sold for the nonpayment of taxes, which recites that the sale was made on a day which was not the day authorized by law, is void on its face, and is not admissible in evidence to support an adverse possession under a statute of limitations.
Subsequent to the rendition of that decision this court took up the precise question in Ross v. Royal, 77 Ark. 324, and the court held that a tax sale on a day not appointed by law is' void, but that actual possession of land taken and held continuously for the period of two years under a clerk’s deed bars an action for recovery, whether the sale be merely irregular or void on account of jurisdictional defects. The court said that the statute in question is a statute of limitations, and as such prevents the impeachment of the title even on grounds of fundamental and jurisdictional defects where possession has been held for the requisite length of time under it.
In the application of the rule in Dickinson v. Hardie, 79 Ark. 364, the court held that continuous adverse possession for more than two years under a clerk’s tax deed confers a valid title, although the owner of the land had paid the taxes before the day of sale. The court said that the statute in question is purely a statute of limitations and runs against void sales as well as voidable sales. These opinions have become rules of property in this State, and it is now too late to question their soundness or to overrule them.
Counsel for the plaintiff also seek to uphold the decree on the ground that the defendant did not have two years continuous unbroken possession of the land in question under his tax deed before this suit was brought, and in this contention we think counsel are correct.
The land in question was cut-over land. 'A railroad runs through one corner of the land. A sawmill company which had purchased the timber on the land had erected a small box storehouse on the railroad right-of-way on the land in question and another small box dwelling house on the land. After Maywood received his collector’s tax deed, he purchased the small box storehouse on the right-of-way from the person who owned it and placed a tenant in the box dwelling house on the land'in question. None of the land was in cultivation, and no rent was paid by the tenant, except that he agreed to look after the land for Maywood. This tenant remained upon the land for about eight months and then left. Another tenant immediately took possession of the house for Maywood. After remaining on the land for some months he left it, and the house was vacant for about a month before Maywood got another tenant to move into, the house. During all of this time no land was placed in cultivation and no improvements were made upon the land, except that a fence was placed around a garden spot which had been cleared. There was also a small amount of firewood cut from the land by the tenant for his own use.
In order to acquire title to woodland there must be actual use of the land of such unequivocal character as to reasonably indicate to the owner visiting the premises during the statutory period, that such use and occupation indicate an appropriation of ownership in another. Earle Imp. Co. v. Chatfield, 81 Ark. 296, and Connerly v. Dickinson, 81 Ark. 258. We quote from the earlier case of Scott v. Mills, 49 Ark. 266, the following:
“The adverse possession necessary to vest title in the holder must be continuous and unbroken for the full period prescribed by the statute. ‘Adverse possession,’ says Mr. Justice Gibson, in Stephens v. Leach, 7 Harris 262, ‘professing as it does to be founded not on title but on trespass, is essentially aggressive, and the stamp of its character must always be preserved by acts on the premises. A man does not discontinue his possession by .locking up his house in town, or suspending his cultivation in the country, provided he does not suffer the buildings in the one .case, or the fields in the other, to be thrown open; but he is bound to continue a positive appearance of ownership by treating the property as his own, and holding it within his exclusive control. An intention to resume suspended intrusion of which the owner of the title may know nothing, is short of the requirements of the statute. The question is not, what did the outgoing occupant intend? but, what did he do? Did he keep his flag flying and present a hostile front to adverse pretensions ? An adverse possession ought to be such as to challenge the right of all the world; but when an occupant has evacuated the place and suffered it to go to wreck, he hauls down his colors and his challenge is withdrawn.’ In other words, when one leaves the ground personally, during the period of limitation prescribed by the statute, he must leave it under circumstances indicating that he has not left the possession, but still 'holds it. He must so leave it that the condition and appearance of the premises themselves show to the world that there is still a person in actual control and exercise of dominion. If he should leave the premises, personally, but not in the condition or manner indicated, before the expiration of the time prescribed by the statute of limitations, he acquires no title by adverse possession.”
In the application of this principle to the present case it may be said that during the month of the two years in question when the land was vacant there was nothing to indicate to the owner, had he visited the place, that any one was in possession of it claiming it exclusively as his own.
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Smith J.
Appellant was convicted of selling intoxicating liquor," and lias .appealed.
It is. first insisted that the evidence is not sufficient to sustain the verdict. But we do not agree with counsel in this contention. The State’s case was made by a young man named T. E. McCullough,who testified substantially as followsj He and his father, W. E. McCullough, owned together a small mercantile business in the city of Blythe-ville, and on one occasion a salesman who sold and installed gum machines came into witness ’ place of business and went to work on some of his machines. The salesman was in an intoxicated condition. Appellant brought into the store a quart of moonshine whiskey, in a fruit jar, and set it over behind an ice box; he then went over to the salesman, who gave him $5, after which appellant left the store. Later the salesman was seen with some whiskey in a fruit jar similar to the one seen by witness McCullough. This witness had seen appellant on othei occasions bring whiskey into the store.
It was admitted by appellant that he had on more than one occasion brought whiskey into the store, but he stated that in each instance he had 'brought the whiskey to W. E. McCullough, to whom-it belonged and for whom he had been keeping it; and W. E. McCullough corroborated appellant in this statement. The transaction in which $5 changed hands was admitted, and the following explanation thereof offered. Appellant had bought one of the gum machines to be placed in a rooming-house owned by his wife and had made a deposit of $2.50 to cover his purchase. Appellant’s wife decided not to buy the machine, and appellant so advised the salesman, who returned the deposit and in doing so gave appellant a five-dollar bill and received in change from appellant two dollars and fifty cents.
T. E. McCullough, testified that he observed the parties closely, and no change was given by appellant to the salesman when he received the five-dollar bill.
Appellant sought, by the cross-examination of the State’s witness, to secure the admission that the witness did not know the contents of the jar and was not certain that it contained whiskey. Without setting out the testimony as developed on cross-examination, we state our conclusion that the jury was fully warranted in finding that the jar contained whiskey and was delivered to the salesman, who paid appellant $5 therefor.
On direct examination of the State’s witness, he was asked if he had seen appellant deliver any whiskey at any other time or place, and in overruling an objection to this question the court said the testimony was admissible “as a circumstance to show that he was probably engaged in the business of selling liquor at the time this occurred, if it did occur; it goes to the jury in that way and that way alone, and of the weight and effect thereof the jury is the sole and exclusive judge.”
We think this remark of the court did not constitute a comment on the weight of the testimony. The testimony was in fact competent. Casteel v. State, 151 Ark. 69. We think, however, the better practice would have been for the court to have overruled appellant’s objection without comment or explanation of the ruling.
Over appellant’s objection the court gave an instruction numbered 2 reading as follows: “If you find that any witness has wilfully sworn falsely as to any material fact in issue in the case, then you may disregard all the testimony of such witness, or you may give regard to that portion which you believe to be true, and disregard that portion which you believe to be false. ’ ’
We have here a record identical with that of the case of Murchison v. State, ante p. 300, where the same instruction was given. We there said a specific objection should have been made; and the general objection here made must be disposed of in the same manner.
On the hearing of the motion for new trial, counsel for appellant stated that he desired to introduce some evidence in support of his motion. The judge said: “If it isn’t in the record, you have no right to prove it.” Counsel then said: “The stenographer was not here at the time, your Honor, is the reason it wasn’t taken. It was while the jury was deliberating, and I want now to offer proof that the court stated to the jury when they returned into open court, after several hours of consideration of their verdict in this case, and told the court that they were hopelessly hung and stood 10 to 2, and then the court stated to them that they had not considered the case long enough; that it was early in the week and that he was going to keep them together for the rest of the week and along toward the end of the week he would put them on bread and water.” Thereupon the judge said: “All right, you don’t have to put on your proof. I said that. Is there anything else?”
It is very earnestly insisted that this remark of the judge was improper and calls for the reversal of the judgment. But the majority of the court do not think so, for the reason that no objection was interposed when the remark was made. We are all of the opinion that the remark was highly improper and should not have been made; but the majority are of the opinion that the error was waived when appellant failed to object. In their opinion the attention of the court should have been called to the possible effect of the remark on the jury, thereby giving the judge an opportunity to withdraw it or to explain that it was not to be taken literally. It is the practice of this court to require an objection to be made in the trial below, and unless made there the error will be treated as waived; and this rule has been applied to remarks of the court as well as to other proceedings at the trial. 2 R. C. L. p. 92; Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254.
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Hart, J.,
(after staling the facts). Sec. 1994 of Crawford & Moses’ Digest provides that whenever the county court may deem it expedient to call in the outstanding warrants of Ms county, in order to redeem, cancel, reissue or classify them, or for any lawful purpose whatever, it shall be the duty of said court to make an order for that purpose, fixing the time for presentation, etc.
Section 1995 provides for the giving of notice in such cases. It is conceded that the statute was complied with in maMng the order and giving the notice. The sole ground of reversal is that road warrants do not come within the provisions of the statute.
We cannot agree with counsel in this contention. As said in Parsel v. Barnes & Bro., 25 Ark. 265, there can be no question but that the Legislature intended to give the county courts such control over the warrants of the county as would enable them to take such action as would be most advantageous to the public, and fully intended that all .county scrip issued thereafter should he subject to such conditions and restrictions.
The county road warrants come as clearly within the language used in the statute as any other county warrants. The language of the statute does not restrict the warrants to those payable out of the general revenue fund.
It is true that the statute providing for the calling in of the warrants by the county court was passed before the amendment of the Constitution providing for a road tax,-if voted by a majority of the qualified electors of a county; but the language of the statute is broad enough to include county warrants which might come within its provisions any time in the future.
This construction has already been placed upon the statute by the court in Monroe County v. Brown, 118 Ark. 425, and Izard County v. Vincennes Bridge Co., 122 Ark. 557. In each of these cases road warrants were recognized as coming within the provisions of the statute and as being subject to reissuance and cancellation under it.
Again, it is contended that the judgment of the circuit court is wrong because the warrants were not due at the time the order for calling in outstanding county warrants for cancellation and reissuance was made. The record shows that the “calling in” order of the county court was made on the 17th day of October, 1917, and the warrant provides on its face that it is to be redeemed July 10, 1918, but not before.
In Gould v. Davis, 133 Ark. 90, the court held unconstitutional a statute providing that Garland County might issue warrants payable in the future. The court said that county warrants are orders on the county treasurer to pay certain moneys on account of the county. The object of the statute in that case was to pay certain holders of county warrants a sum equal to a stipulated rate of interest for their forbearance in presenting the warrants for payment. The court held that this could not be done, and that the county court exceeds its power when it undertakes to issue warrants payable in the future as a substitute for interest.
It does not appear whether or not the warrant in question was for a greater amount than the county owed and was made payable in the future so as to include interest, but this does not make any difference. The warrant in question was issued for supplies that had already been furnished, and indeed the warrant, being an order on the treasury to pay money on account of the county, could not be issued until the county owed the debt, and it was payable on demand.
It follows that the judgment should be affirmed. | [
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Hart, J.
(after stating the facts). In Oliver Construction Co. v. Williams, 152 Ark. 414, it was held that our statute providing that a contractor’s bond given thereunder for the faithful performance of public work shall inure to the benefit of those furnishing labor and materials, and that an action may be maintained by one of such persons to recover for labor' performed or materials furnished in the fulfillment of the contract. To the same effect see United States Gypsum Co. v. Gleason (Wis.) 17 L. R. A. (N. S.) p. 906; Knight & Jillson Co. v. Castle (Ind.) 27 L. R. A. (N. S.) p. 573 and case note, and National Surety Co. v. Hall-Miller Decorating Co. (Miss.) 46 L. R. A. (N. S.) p. 325.
In the last mentioned case, in discussing the reason for the statute providing for the execution of such a bond by the contractor, in the case of public works, the court said: “Taking it as a cold-blooded business proposition, this clause in the bond would naturally encourage subcontractors of the best sort to take contracts to do certain parts of the work; it would tend to prevent the abandonment of the work by mechanics not promptly paid their wages by the contractors, who might be suspected to be of doubtful financial solvency; it would procure the best work and material and the prompt services of all workers and subcontractors; and all of this would redound to the benefit of the public. It must be borne in mind that the mechanics, materialmen, and laborers could have no lien upon the building, and that the trustees, representing the State, would not be bound to reserve money with which to pay their claims; but they would have to depend upon the contractor alone. Taking these things into consideration, the bond, in a way, supplied the place of the mechanics’ lien law, and thus gave an additional security to all persons working upon this building and supplying material therefor; and this alone was, in our opinion, of the highest importance to the State.”
These principles of law control the present case, and under our statute the Arkansas Road Construction Company, the principal contractor, would be liable to laborers who performed work on the road for subcontractors.
It is next insisted by counsel for appellants that the judgment must be reversed because the laborers to whom the subcontractors issued the certificates of - indebtedness were not made parties to the action.
While the statute referred to above makes the principal contractor liable for all labor performed and materials furnished on a public improvement, the subcontractor’s certificate of the amount due by him to a laborer cannot be said to be an account stated in favor of the laborer against the principal contractor. St. L. I. M. & S. R. Co. v. Camden Bank, 47 Ark. 541. The certificates of indebtedness do not bind the principal contractor and are therefore not assignable so as to permit the assignee to bring action upon them without the assignor being a party.
It is well settled, however, in this State that a defect of parties is waived unless objection to the complaint on that account is raised in the court below, either hy answer or by special demurrer for that purpose. It can not, therefore, be raised for the first time in this court. Murphy v. Myar, 95 Ark. 32; Crawford County Bank v. Baker, 95 Ark. 438; Love v. Cahn, 93 Ark. 215; and Spear Mining Co. v. Shinn, 93 Ark. 346, and cases cited.
It is true that the answer in the present case alleges as a defense that the claims were not assignable. But no objection was made that there was a defect of parties, or that the complaint should be dismissed because the assignors of the claims were not joined as plaintiffs.
The case was tried below on the merits and the principal ground of defense was that the principal contractor was not liable under the statute for labor done on the road by the servants of the subcontractor. Therefore the objection that there was a defect of parties comes too late here.
It follows that the judgment must be affirmed. | [
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Smith, J.
Appellee brought this suit against the collector of Sebastian County to restrain that officer from collecting the road tax of $4 assessed against appellee and all other male persons between the ages of 21 and 45 living in the Fort Smith District of Sebastian county pursuant to a special act of the General Assembly approved February 25, 1920, entitled “An act to fix the road tax in Fort Smith District of Sebastian County, Arkansas, and for other purposes.” (Special Act No. 328, Special Session 1920). Appellee alleged in his complaint that the act was unconstitutional and void; and it was so declared by the court below on hearing a demurrer thereto, and the collection of the tax was enjoined, and this appeal is prosecuted to review that action.
The act is as follows: ‘ ‘ Section 1. Free labor on the public highways as now provided by law, whereby all male persons between the ages of twenty-one and forty-five years are required to work four days per annum, with alternative of paying four dollars ($4), shall be and the same is hereby abolished. And all male persons between the ages of twenty-one and forty-five, in the Fort Smith District of Sebastian County, of Arkansas, shall hereafter annually pay an individual road tax of $4. Provided, that seventy-five per cent, of the fund's collected under this act in the city of Fort Smith, Sebastian County, Arkansas, shall go to said city of Fort Smith.” Section 2 provides for the extension of the tax by the county clerk and its collection by the collector, and contains the proviso that the act shall apply to the Fort Smith District of Sebastian County only.
It does not appear from the record before us upon what ground the act was declared unconstitutional; but it is alleged to be unconstitutional for the following reasons : That it violates the Fourteenth Amendment to the Constitution of the United States, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That it violates section 5 of article 16 of the Constitution of this State, which provides that the 'basis of taxation in this State shall be equal and uniform throughout the State.- That it is violative of section 21 of article 2 of the Constitution, which provides that “no person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment óf his peers or ■the law of the land. ’ ’ That it violates section 25 of article 5, which provides that “in all cases where a general law can be made applicable no special law shall be enacted.” That it is void because it contravenes a general statute of the State which permits citizens between the ages of 21 and 45 years to either work upon the public highways or to pay, in lieu thereof, the sum of $1 for each day’s labor; whereas the act in question deprives the citizens of the Fort Smith District of Sebastian County of the option to work, and requires them to pay money instead. It is also alleged that the act violates section 18 of article 2 of the Constitution of the State, which provides that ‘ ‘ the Geperal Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” And it is finally alleged that the act is violative of Amendment No. 3 to the Constitution of the State, in that said amendment limits to three mills the taxes which may be levied for1 road purposes, and the $4 is an imposition in excess of that allowed by this amendment to the Constitution.
We think the act under review does not offend against any of the provisions of the Constitution of this State or of the United States.
This court has consistently and repeatedly held that the provision of section 25 of article 5 of the Constitution, providing that no special act shall be passed where a general law can be made applicable, is addressed to the General Assembly, and that the determination of that fact is legislative, and not judicial. ,
We think the act does not confer any privileges or immunities upon any citizen or class of citizens which do not, upon the same terms, equally apply to all citizens. All persons affected 'by the act at all are affected by it in like manner. Caraway v. State, 143 Ark. 48.
The act does not violate the third amendment to the Constitution; nor does it violate the provisions of the Constitution requiring uniformity in levying taxes. In a strict sense it is not a tax, although it is popularly spoken of as such. It is rather an exercise of the State’s police power.
It has always been the policy of this State to exercise its police power in the matter of working public roads. Indeed, such legislation goes back to the earliest territorial days. Territorial legislation required all free male inhabitants between the ages of 16 and 45, and all'male slaves of the same age, to work on public roads; and there appears to have been no provision for the payment of money, except by way of penalty for failure to work, and this penalty was recovered, by action of debt brought in the name of the overseer. Section 4 of the act approved November 16, 1833, Acts 1833, page 62. But this was not the earliest legislation on the subject. The General Assembly of 1836, which was the first to convene after the admission of the State into the Union, enacted what was then probably regarded as a comprehensive act on the subject of roads and highways. Acts 1836, page 186. This act made all free white male inhabitants between the ages of 16 and 45, except such persons as were exempt from militia duty, and all male slaves of the same age, subject to work on public roads; and the act appears to have contemplated that all persons subject to its provisions would discharge the burden imposed by it by working; and the provisions in regard to payment of money relate only to those who failed to work, against all of whom a forfeit of $2 for each day they failed to work was imposed, to be recovered in an faction of debt in the name of the overseer, who was made a sufficient witness to establish such delinquency.
The only provision of this act which appears to provide for the commutation of labor is section 8, which provides that the overseer of every road district is authorized to commute personal labor for wagons, teams or any necessary implements which may be required on the roads.
There has been much legislation in regard to working and improving public roads, but it is unnecessary here to trace the history of our legislation on the subject. It suffices to say that at the present time the general statute on the subject makes all male persons between the ages of 18 and 45 subject to work on any public high ways within the respective townships in which they reside. Section 5314 C. & M. Digest.
Section 5315, C. & M. Digest, provides that, when a road tax shall have been voted by the electors of any county, in addition thereto male persons between the ages of 21 and 45 shall be required to work not exceeding four days, with the option of paying $1 for each day he is lawfully warned to work.
As has been said, this and similar legislation is older than the State itself, and our attention has not oeen called to any decision in which the validity of the legislation has heretofore been questioned.
Such legislation finds its origin, so far as we are concerned, in the earliest history of the common law. Blaekstone says: “Every parish is bound of common right to keep the highroads that go through it in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy; this being part of the trinoda necessitous, to which every man’s estate was subject; viz: eocpeditio contro hostem, orciwm constructio, ei pontiwm, reparatio.” Book 1, Blaekstone’s Commentaries, page 357.
It thus appears that the threefold obligation — from which no man was exempt by the ancient laws of England — were expedition against the enemy; the construction of arsenals; and the repairing of bridges; the necessities therefor being such that all men were required to discharge these three imperative duties.
The same great expounder of the common law also says: “In case the personal labor of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate on the parish, in aid of the personal duty, not exceeding, in any one year, together with the other highway rates, the sum of 9d. in the pound; for the due application of which they are to account upon ',i’th.” Book 1, Blackstone’s Commentaries, page 359.
It thus appears that, while it was permissible at the common law both to require labor and to impose a tax, the tax was imposed in the event only that the personal labor of the parish was found not sufficient to maintain the roads.
In 1 Elliott on Roads and Streets (3rd Ed.) sec. 480, it is said: “Requiring persons to work on highways, even where they are partly kept up by taxation, is not double taxation, and statutes requiring such work are not unconstitutional. The theory is that requiring such labor is not taxation at all, but is the exaction of a public duty. The authorities are almost unanimous in upholding such statutes.”
In 13 R. C. L., section 141 of the article on Highways, it is said: “Statutes requiring male citizens or inhabitants of a specified age to labor without compensation on the public roads for a certain number of days each year, or pay a certain sum in money for each day’s labor thus required, and making it an indictable offense or a misdemeanor to refuse or fail after notice to comply with the requirements of the statute, are generally held to be constitutional and valid. Municipalities or quasi-municipalities have no power to require such labor in thp absence of legislative authority, but may do so when authorized by their charters or by general laws. According to the weight of authority, such a requirement is not a tax, but rather a police regulation or a duty similar to jury service and the like, and hence is not affected by constitutional requirements of prescribed equation between poll and property taxes, or other constitutional provisions respecting taxation. There is some authority to the contrary, however.”
Numerous cases are cited in the. notes to the text in support thereof from Elliott on Roads and Streets and from 13 R. C. L. See also, 4 Dillon on Municipal Corporations (5th Ed.), page 2459; 37 Cyc. page 332; 74 Am. St. Reps. 633.
If the power inheres in the State, in the exercise of its police power, to compel her citizens to work the public roads or, in lieu thereof, to pay money, we perceive no reason why, in the exercise of the same power, the State may not elect which of the two burdens shall be imposed.
The Legislature has evidently determined that between the ages prescribed the average citizen enjoys his greatest capacity to earn money or to perform labor: and it is not a discrimination against any citizen to fix these ages as the time during which this burden shall be imposed.
In the development of the State the Legislature long found it sufficient and expedient to give the citizen the option to work or to pay; and, if the right existed to impose those duties with the option to the citizen to choose between them, we perceive no reason why, with the advancing development of the State, it might not become expedient and proper to give the option to the State of saying which service should be required of the citizen. The act treats a dollar as the equivalent of a day’s work, and we see nothing arbitrary in the Legislature finding that a day’s labor, by a man able to work the roads, is worth that sum, and in requiring the payment of the dollar rather than the performance of a day’s work.
The decree of the court below is therefore reversed, and the bill seeking to enjoin the collection of the tax -is dismissed. | [
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Humphreys, J.
This is an appeal from a judgment in favor of appellee C. A. Bell, as constable, and appellees Lockesburg Hardware Company and Planters’ Bank of Lockesburg, as interpleaders, in a replevin suit which had been brought by appellant to recover certain personal property seized by said appellee Bell as constable under a writ of attachment obtained by appellee Lockesburg Hardware Company in a suit between it and the Federal Lumber Company, and an execution obtained by the Planters’ Bank of Lockesburg upon a Judgment procured by it against the Federal Lumber Company. Appellant claimed the title and right of possession of the property under a bill of sale executed to it by the Federal Lumber Company on May 5, 1921. The interpleaders, creditors of the Federal Lumber Company, claimed the right of possession of the property under attachment and execution liens acquired by levy of writs upon the property in question on the 6th day of May, 1921. The cause was submitted to the trial court, sitting as ¡a jury, upon the pleadings and evidence, which resulted in a finding, and judgment accordingly, that the purported sale of said property by the Federal Lumber Company on the 5th day of May, 1921, to appellant as trustee for the State National Bank of Texarkana was incomplete at the time the writs of attachment and execution were issued and levied, because there had been no delivery sufficient in law to pass the title of said property from the Federal Lumber Company to appellant in his capacity as trustee.
The undisputed facts tending to establish a delivery of the property in question to appellant on the 5th day of May, 1921, prior to the issuance and levy of the writs of attachment and execution, are as follows: The Federal Lumber Company, a corporation domiciled at Texarkana, Miller County, executed a mortgage upon the property in question, together with other property, to the State National Bank of Texarkana to secure a large indebtedness. The mortgage was never filed or recorded in Miller County, the mortgagor’s domicile. A part of the property mortgaged was located at or near Loekesburg, in Sevier County. About the 1st of April, 1921, M. B. Armstrong was employed by the Federal Lumber Company and placed in possession of the property belonging to it in Sevier County. He operated a mill for it at Lockesburg. A part of the property was placed in a pasture belonging to Robbie Jacques, near Lockesburg, and part of it in a corral at the residence of Walter Lowery in Lockesburg. On the 5th day of May, 1921, the Federal Lumber Company executed a bill of sale to the State National Bank of Texarkana on the property in Sevier County, as well as other property covered by the mortgage, in part payment of the mortgage indebtedness. The bill of sale was delivered on the day it was executed to appellant as trustee for said bank, and George Hicks, president of the Federal Lumber Company, telephoned M. B. Armstrong, who was in control of the property as its employee, to hold same in the future as the property of the State National Bank aforesaid, informing him that the Federal Lumber Company had that day sold same to said bank. At the same time the bank, through Stuart Wilson, its vice-president, notified Armstrong by letter of the transaction, accepting him as its custodian of the property. Immediately after receiving the information, Armstrong notified the men working at the mill of the transaction and that he had assumed charge of the property for said bank, and that they would receive their wages in the future from the bank. He also employed a night watchman to watch the mill property for the State National Bank, who went to work on the night of the 5th of May. On the following morning, May 6th, the Lockesburg Hardware Company had an attachment issued and placed in the hands of C. A. Bell, constable of Red Colony township, who levied the same on the property in the corral at the residence of Walter Lowery, and on the same day the Planters’ Bank of Lockesburg had an execution issued on a judgment which it had theretofore obtained against the Federal Lumber Company, and placed same in the hands of said constable, who, on the same day, levied it upon the property in the pasture of Robbie Jacques.
Under the record thus stated, the sole question presented on this appeal for determination is whether the direction given by the Federal Lumber Company to its employee, M. B. Armstrong, who was in control of the property, to hold the same as employee or agent of the State National Bank in the future, and the acceptance by said bank of M. B. Armstrong as its employee or agent, was an overt act effecting the delivery of the property within the meaning of the law. This court ruled, in the case of Hodges Bros. v. Bank of Cove, 119 Ark. 215, that (quoting syllabus): “In a sale of chattels, delivery is a question of intention of the parties, as manifested by overt acts, and a sale will be treated as completedwhere any act has been done which was intended by the parties as a delivery.” The transfer of the employee, agent or custodian who had control of the property in the instant case, and the acceptance of him by the bank as its employee, agent or custodian for the purpose of holding the property in the future for it, was clearly an overt act manifesting an intention on the part of the parties to deliver the property. In Russell v. Haltom, 76 Ark. 506, a case quite similar to the instant case, this court said: “Counsel for appellant contends that there was no delivery of the property under the bill of sale, and that the title did not pass against creditors. On this issue, too, the verdict of the jury settled the question against appellant’s contention. It was shown that the delivery of the property was made at the time of the execution of the bill of sale, and that the same was left in the possession of one Grayson, an employee of appellant, to hold for appellees. Counsel contends that this was equivalent to retention of possession by appellant, and that no title passed. This contention is not, however, sound, for the reason that Grayson, though an employee of appellant, could have been constituted the agent of appellee for the purpose of holding the property, and the evidence shows that such was a fact. This constituted not only a constructive delivery, but an actual change of possession. Either is sufficient to complete a sale fr.ee from fraud. Shaul v. Harrington, 54 Ark. 305; Lynch v. Daggett, 62 Ark. 592; White v. McCracken, 60 Ark. 613.”
In the instant case, Armstrong, an employee of the Federal Lumber Company, who had control of the property in question, was constituted the agent of the State National Bank for the purpose of holding the property for said bank, and this is shown by the undisputed evidence. The proof by the undisputed evidence of this overt act was a symbolical delivery effecting the change of the possession of said property. The court therefore erroneously found that the liens under the writs of attachment and execution were prior and paramount to the title acquired under the sale by appellant for said bank.
The judgment is reversed, and judgment rendered here in favor of appellant. | [
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Wood, J.
This action was instituted by the appellees (hereafter called plaintiffs) against the appellants (hereafter called defendants) to cancel the assignment by M. Gr. Wade, trustee, to the Stewart Oil Company, of .a lease to forty acres of land in the oil and gas region near El Dorado, in Union County, Arkansas, and to cancel a certain drilling contract entered into with one J. W. Clark, and for an accounting, etc.
On the 31st day of January, 1921, W. J. Ward, party of the first part, representing himself and other owners of the lease of the land in controversy, entered into an escrow agreement with'John A. Cobb, H. F. Stewart and B. A. Hancock, parties of the second part. The agreement specified that the sum of $8,000 was to be placed in the bank together with the lease of the land in controversy and the assignment thereof. M. G. Wade was named as trustee in the lease. When the title to the lease was approved by the attorney of the parties of the second part, the escrow agent was to deliver to the party of .the first part the $8,000, and to the parties of the second part the lease and assignment.
Gill Bros, and A. G. Griffin, real estate' brokers at El Dorado, had an option on the lease. The Stewart Oil Company, a domestic corporation, (hereafter called corporation) was incorporated on the 7th of February, 1921, for the purpose of acquiring leases and royalties and drilling and maintaining wells for the production of oil and gas, etc. On the 10th of February, 1921, the owners of the land in controversy, for the consideration of $9,000, executed an oil and gas lease thereof to M. G. Wade, trustee. On the 21st of March, 1921, M. G. Wade, trustee, for the consideration of $1 executed an assignment of the lease to the corporation. On the 23rd of March, 1921, the corporation entered into a drilling contract with J. W. Clark, by which it conveyed to him a two-thirds interest in the lease in consideration that he drill at his own expense all wells necessary to properly develop the land for oil and gas production, and in case of production from any wells in excess of one hundred barrels he was to deliver one-third thereof to the corporation, and if the production was less than one hundred barrels then the corporation was to bear its proportion of the expense of operating the wells.
In their complaint against the corporation and Wade and Clark, the plaintiffs challenged the assignment of the lease from Wade to the corporation. They alleged that as trustee he had no authority to assign the lease, and that the corporation had no authority to execute the drilling contract with Clark; that the corporation and Clark knew at the time of the execution and delivery of the assignment and the drilling contract that Wade held the legal title for the benefit of the plaintiffs and others who were sub scribers to a fund in tbe sum of $11,000 to be raised for the purpose of purchasing the lease and defraying such expenses as might be necessary in developing the same.
They alleged, among other things, that Stewart, who promoted the project for purchasing the lease, solicited their subscription to a fund of $11,000, which he represented would be the amount necessary to purchase the lease and pay the commission of the brokers of $1,000, and defraying such other expenses as might be necessary to take over and develop the property; that the plaintiffs subscribed to this fund with the understanding that they should have an undivided interest in the lease in proportion that the amounts subscribed by them respectively bore to the sum of $11,000, and that Wade held legal title as trustee for them. They alleged that Stewart and others who were promoting the project organized a corporation with a capitalization of $50,000; that Stewart persuaded Wade, the trustee, in fraud of the rights of plaintiffs, to execute an assignment of the lease to the corporation, and the corporation in turn executed the drilling contract to Clark, 'both of which instruments were clouds on their title.
The corporation and M. Gr. Wade in a joint answer admitted that Wade, acting as trustee for plaintiffs and other parties, procured the oil and gas lease, and assigned the same to the corporation; that Stewart and others organized the corporation as alleged, and admitted the execution and delivery of the drilling contract to Clark on March 23, as alleged. They denied all the other allegations of the complaint, and set up that the funds were necessary to purchase the lease, and were subscribed with the understanding that the title should be taken in the name of the trustee, and that as soon as the title was obtained a corporation or syndicate was to be organized based upon the acreage contained in the lease; that certificates of shares of stock in the corporation were to be sold for the purpose of developing the property; that, pursuant to this plan, Stewart and his associates approached the plaintiffs and others and explained to them fully the purpose of the promoters as above outlined in procuring the lease, and that the plaintiffs made their subscriptions with the understanding that the corporation or syndicate would be organized in which the shares of stock or certificates would be sold for the purpose of raising funds with which to develop the property for oil and gas and to defray the expense incident thereto; that, after sufficient subscriptions had been obtained to purchase the property and notice to all subscribers given, the corporation was organized pursuant to the above plan; that a majority in value of the subscribers to the original fund of $11,000 were present and took part in the organization of the corporation; that there were issued to the original subscribers to the stock of the corporation the number of shares of stock corresponding at par value to the amount of money they had actually subscribed to the original $11,000, which they 'accepted with full knowledge of all the facts and circumstances concerning the issuance thereof, and kept and retained the same; that they permitted Clark, under the contract, to expend large sums of money in developing the property, and never complained until Clark had proceeded with his drilling to a depth where he had reached pay sand and at about the time two other wells on adjoining property had been brought in as large producers. Not until then did the plaintiffs attempt to return the stock to the 'corporation and repudiate its right to hold the lease .and to make the drilling contract with Clark. The defendants alleged that this conduct on the part of the plaintiffs should estop them from obtaining the relief for which they prayed.
Clark, in a separate answer, adopted the allegations of the .answer of the corporation and Wade, and set up his drilling contract with the corporation and alleged that the same-was made in good faith, believing at the time that the corporation had the title to the lease in controversy and without any information or knowledge of an adverse claim to the property. He set up that he had, in good faith, entered into the performance of his contract and had expended large sums of money in drilling the well before he had any notice of the plaintiffs’ claims; that by reason of these facts he was an innocent purchaser for value of a two-thirds interest in the lease under his drilling contract with the corporation. He also alleged that the plaintiffs knew that he was expending large sums of money in drilling the well, and that they stood by until the well was practically completed and had reached the pay sand before asserting any claim adverse to his claim and the claim of the corporation; that by such conduct they were estopped, and therefore not entitled to the relief prayed.
1. The first question is whether or not the money furnished by the plaintiffs was subscribed and paid by them for the purpose of contributing, pro tanto, to the common fund of $11,000 which was to be used in purchasing the lease in controversy, the title to which was to be taken in Wade, the trustee, to be held for the benefit of the plaintiffs and others, the equitable owners, who cqntributed to the fund in the proportion as the respective amounts paid by them bore to the $11,000? This is purely a question of fact, and it could serve no useful purpose to set out in detail the testimony bearing on this issue.
The testimony of the plaintiffs, in substance, was to the effect that the parties who solicited their subscriptions represented to them that the purchase price of the lease would be $11,000; that they had no knowledge at the time that a corporation was to be organized to take over the lease; that none of them .at the time of making their subscriptions contemplated that they were subscribing to the capital stock of a corporation in the sum of $50,000, to be afterwards organized to take over the lease and develop the property. None of them had any notice of any meeting of the subscribers to the $11,000 fund of the promoters of the enterprise, for the purpose of organizing a corporation. Some of the plaintiffs testified that, after they had ascertained that a corporation had been formed and that it was the purpose of the trustee to convey the lease to the corporation, they objected to his doing so, and he promised that he would not do so, but afterwards changed his mind and conveyed the lease to the corporation without the knowledge and consent of any of the plaintiffs, and when some of them were out of town.
All of the plaintiffs testified that it was their understanding that they each would acquire an interest in the lease in the proportion that the amounts of their subscriptions respectively bore to the sum of $11,000; that is, those subscribing $1,000 would acquire a one-eleventh interest, those subscribing $500 a one-twentyseeond interest, and so on. The testimony of Stewart, who solicited the subscriptions on behalf of the defendants, was in substance to the effect that he represented to the subscribers that he was raising a fund for the purpose of purchasing the lease and developing the same. He represented to the subscribers that they were contributing to a fund which would be used by a syndicate or corporation, whichever plan was deemed best, for the purpose of taking over and developing the property. He did not represent to any of the subscribers that they were buying an interest in the lease itself. His plan from the beginning was to syndicate or incorporate as it might be deemed best; that it was ascertained that in order to sell the stock it was necessary to organize a corporation because the State bank examiner was against syndicates.
Two other parties, who were associated with Stewart in the enterprise, testified corroborating the testimony of Stewart to the effect that their first plan was to form a syndicate, but they afterwards changed to a corporation. It was understood that they were to sell shares in the syndicate or corporation as the case might be. One of these witnesses, however, after testifying as above, also testified that the promoters valued the lease for the purposes of the syndicate at the sum of $11,000.
M. G-. Wade, who is named as the trustee in the lease, testified that it' was'his understanding that a company or syndicate was to be formed, and they changed it to a corporation because it would be more difficult to pass the blue-sky law. He understood that the money paid him by the subscribers was to buy stock in the Stewart syndicate. This was evidenced by the receipt he issued, and no objection was made to the receipt by any of them. He further testified that he didn’t .assign the lease bo the corporation until he was informed that all of the plaintiffs except Center were satisfied for him to do so, and did not assign the lease until two of the promoters assured him that it would be satisfactory with Center.
The chancellor found “that the plaintiffs herein and each of them furnished a part of the money with which the lease was purchased, and that as a result thereof the equitable title in and to said lease and all rights therein, thereto, and thereunder, vested in said plaintiffs to the extent of their respective interests;” that is, in proportion as the amounts subscribed and paid by them respectively bore to the purchase price of the lease, which was the sum of $11,000.
While there is a sharp conflict in the evidence, we are convinced that a preponderance of the evidence sustains the finding of the trial court that the several amounts subscribed and paid by the plaintiffs were to purchase the lease in controversy in which they would acquire an interest in proportion as the amount subscribed and paid by them bore to the sum of $11,000. The undisputed testimony shows that the purchase price of the lease was $8,000, and that the promoters and real estate brokers who had an option on the property, agreed among themselves that an additional sum of $3,000 would be added to cover their services, and that, for the purpose of ownership to those who wished to subscribe, the lease would be valued at the sum of $11,000. While the testimony of Stewart and other witnesses on behalf of the defendants tends to show that the subscriptions were taken for shares in a syndicate or corporation that was afterwards to be organized to buy the property and develop the same, yet it occurs to us that a clear preponderance of the evidence shows that Stewart, in soliciting the subscriptions of the plaintiffs to a fund to purchase the property, gave them to understand that they would own an interest in proportion as the amount subscribed and paid by them bore to the sum of $11,000, the agreed value of the lease. In other words, whether the lease was to be purchased, owned and developed by a syndicate or corporation, the plaintiffs and others who contributed money for the purpose of purchasing the lease were to be owners in the syndicate or corporation in the proportion that their respective subscriptions bore to the purchase price of the lease, to-wit: $11,000. "We are convinced that it was not contemplated by the plaintiffs, or Stewart, who solicited their subscriptions, that they were then subscribing to shares of capital stock of a corporation which was afterwards to be organized and capitalized at the sum of $50,000, and that the amounts subscribed by them would entitle them to shares in the corporation in proportion as the amount subscribed bore to the capital stock of $50,000. As we view it, the evidence does not at all justify such conclusion of fact. When, therefore, the trustee paid over the money subscribed by the plaintiffs and others to purchase the lease and a deed was executed and delivered to him, he thereby became a trustee for them, and they in equity became the owners of the lease — the plaintiffs in proportion as their respective subscriptions bore to the entire purchase price of the lease. The court did not err in its finding of fact and conclusion of law as above set forth. See Camden v. Bennett, 64 Ark. 155; Miller v. Freeman, 40 Ark. 62; McNamara v. Garrity, 106 Ill. 384; Skeehill v. Abbott, 184 Mass. 154; Leary v. Corvin, 2 A. & E. Ann. Cas. p. 664, and note 667, and authorities of other jurisdictions cited in appellee’s brief.
2. The only other question necessary for our consideration is whether or not the plaintiffs are estopped by their conduct from challenging the deed of the trustee to the corporation and the contract of the corporation with J. W. Clark. The assignment of the lease by Wade to the corporation was executed on March 21,1921, and on the 23rd of March, 1921, the corporation executed the drilling contract to J. W. Clark by which, for the consideration therein named, the corporation transferred to Clark a two-thirds interest in the lease. The consideration for the transfer of the two-thirds interest to Clark was that he should properly develop the property and maintain the lease for oil production. He was to begin preparing for the drilling immediately and to begin actual drilling as quickly as- possible. He was to assume all liability for the expense of drilling the first well and was to drill same to a depth of 2300 feet, unless oil and gas were found at a lesser depth. The deed and drilling contract were recorded on the days respectively of their execution.
The 'corporation was organized on the 7th of February, 1921, its articles of incorporation being filed at the office of the clerk of Union County on that day. The declared purpose of the corporation, among other things, was to drill, operate, and maintain wells for the purpose of producing oil and gas and to acquire leases in real estate. A circular was issued by the corporation showing that it was capitalized at $50,000 and offering to the investing public 1,000 shares of the par value of $50 each and specifying that it was “ organized to drill on the Jeff Ward tract” — the land in controversy. It further stated: ££ The derrick is up and the well is to be drilled by H. -F. Stewart, the man who drilled the Mitchell-Busey well;” that “operations would be -started at once,” and further requesting subscribers to make all checks payable to M. G. Wade, cashier of the First National Bank and the secretary and treasurer of the corporation. The above circular -appeared in the papers at El Dorado February 14, 15, 16, 19, and 23rd. It is in evidence that the corporation sold from twenty to twenty-five thousand dollars worth of stock to about -eighty stockholders in El Dorado, Hot 'Springs, Little Rock 'and other places from the time of its organization to March 17,1921, after which time no stock was 'sold.
All of the plaintiffs testified that they had no notice that a corporation was to be organized; but all of them lived in El Dorado except Center and the Gills, and they saw the -advertisement above set forth in the newspapers. What is designated in the record as the “Keen-Wolf” well, located about three-quarters of a mile from the land in controversy, was brought in about the middle of March. Clark began drilling operations under his contract about the 25th of March and proceeded to drill the well down to the pay sand, reaching the same about the 25th of April. When pa.y sand is reached, the well is then only within a day or so of completion. During this time no complaints were made by any of the plantiffs to Stewart, the president of the corporation. Clark brought in an oil well on the 5th of May, 1921, which produced four or five thousand barrels of oil daily, worth 75 eta per barrel.
The stock was issued and delivered to the plaintiffs, Bryant, the Pyes, and Johnson, about the 2nd of March, 1921, and to the Grills about the 21st of March, 1921. According to the testimony of the secretary and treasurer of the corporation, after the Keen-Wolf well came in, J. L. Center inquired of him to know if he could obtain $500 additional stock to the $500 he had already subscribed, and witness informed Center that he could. They discussed the drilling contract, .and Center stated that he would let the witness know in a day or two whether he wanted the additional stock. Center went away and never came back. He refused to accept the tender of the stock or a tender of the money which he had subscribed and paid.
None of the stock that was issued and delivered to the plaintiffs was returned to the corporation until about the 10th or 11th of May. At the time of entering into the drilling contract with the corporation, Clark had no knowledge that any other parties were claiming to own the lease. He had not fully complied with the contract with the corporation, but h'ad gone as far as he could.
It was shown on behalf of the defendants that, before the stock book was received, E. W. Bryant, one of the plaintiffs, was in the office of the secretary and treasurer of the corporation from February 25th, at different times until the stock was issued to him on the 2nd of March, 1921, wanting to know when he could get his stock. It was shown by three witnesses who testified on behalf of the defendants that after the organization of the corporation there was a meeting of the stockholders in the office of the secretary and treasurer of the corporation at which M. B. Grill, one of the plaintiffs, proposed to sell'stock for.the corporation on a commisssion of 30%. M. B. Grill, in explanation of this conversation, stated that he said at this meeting if they wanted to give 30% he knew of two parties who could sell the stock. He was asked if he knew whom they could get to sell tiffs stock. He did not know at the time what his interest would he — did not know at that time, if they increased the capital stock, whether his interest would he increased or not. He understood they were trying to sell stock to drill a well.
Bryant and Center both testified in rebuttal that when they were making inquiries about the stock they thought they were to have stock issued in the proportion that the amount paid by them bore to $11,000. Center stated that he never agreed to accept any stock from the secretary and treasurer except the stock representing a one-twentysecond interest. They proposed to give him $500 stock in a $50,000 corporation, and he refused to accept it.
This suit was instituted by the plaintiffs on the 22nd day of April, 1921.
We have reached the conclusion that under the facts as above set forth the plaintiffs are estopped by their conduct from maintaining this action. Stewart, who was an experienced driller of oil wells, was the leading promoter in the enterprise to acquire the lease in controversy and to develop the same. Plaintiffs and others who subscribed to the common fund to purchase the' lease looked to him as the moving spirit in the project. It was shown that the circular above mentioned was widely distributed, and the plaintiffs at le'ast certainly had notice as early as February 14th, when this circular was published in the papers at El Dorado, that the corporation had been organized, with Stewart as its president, to drill on the lease in controversy, and that the corooration was offering to sell 1,000 shares of stock for that purpose. The corporate entity in this litigation stands for all of its eighty or more shareholders who purchased stock in the corporation. These shareholders had no knowledge of plaintiffs’ adverse claim to the lease. The assignment of the lease to the land in controversy showing title in the corporation was duly recorded on March 21,1921. Clark entered into a drilling contract with the corporation on March 23rd, 1921, and on that day had his contract recorded. He had no knowledge, as the proof shows, of any adverse claim of the plaintiffs to the lease. The plaintiffs were notified by the circular that “the rig was up on the ground,” and that drilling would proceed. Clark entered upon the performance of his contract two days after the same was executed and continued drilling operations until he had reached the pay sand and was about to bring in his well when the plaintiffs instituted this action. In the meantime other wells in proximity to the land in controversy were being brought in. Stock in the corporation was issued and delivered to some of the plaintiffs as early as March 2,1921, and to others by March 21,1921, and would have been delivered to Center if, according to the secretary and treasurer of the corporation, he had not asked that the issuance and delivery be postponed for further investigation on his part. All of the plaintiffs received and retained the stock that had been delivered to them until after the well had been brought in.
Now, it occurs to us that, in justice to the corporation, the promoters and other shareholders, and in justice to Clark, who was necessarily expending large sums of money in the perf ormance of his contract, the plaintiffs, if they intended to challenge the title of Clark and the corporation, could have acted more promptly. With a knowledge that others were buying stock up to March 17th, and that Clark, after March 23d, was expending large sums of money in the belief that the title to the lease was in the corporation, plaintiffs could not stand by in silence until their interest in the lease by these expenditures had been largely enhanced in value. The plaintiffs are not estopped by what they actually did. but rather by what they failed to do, in view of the situation confronting them. Cognizant of the circumstances under which the stock was being sold, and that Clark was spending his money, the plaintiffs speculated on the chance of having the corporation, through its contract with Clark, greatly enhance the value of plaintiffs’ interests before they elected to choose whether they would remain as stockholders in the corporation or would assert their rights as adverse claimants of the lease. The plaintiffs made no protests to the president or any officers or promoters of the corporation. We are convinced that a preponderance of the evidence shows that the trustee, Wade, acted in good faith in assigning the lease to the corporation. Certain it is that the plaintiffs knew that Stewart and those associated with him in the organization of the corporation and the furtherance of the enterprise, were acting upon the assumption that the corporation owned the lease. The plaintiffs, knowing that they and others were the owners, and that Clark, who had entered into a drilling contract with the corporation, would necessarily have to expend large sums of money in the performance of the contract, should have proceeded, at least, in a reasonable time to assert their adverse claim. What is a reasonable time must be determined by all the facts and circumstances surrounding the parties.
It is a matter of common 'knowledge that fortunes are made and lost in oil fields over night, so to speak. A month’s delay on the part of the plaintiffs to institute their action may have meant financial disaster to Clark, who was making large investments under his contract, should he fail to discover oil. While on the other hand, the plaintiffs, without any further investment on their part, had the chance of having their fortunes increased by the expenditures made by Clark. The plaintiffs waited an unreasonable length of time. Under the circumstances they were called upon to speak, and by their silence and non-action they must be held to have acquiesced in what was done by Wade, Stewart, the corporation, and Clark. The plaintiffs had no title' of record. When Wade, the trustee, assigned the lease to the corporation and this assignment was recorded, the corporation had the record title. Inquiry by prospective purchasers of stock and 'by one entering into a drilling contract with the corporation would have discovered that the corporation had the record title. Therefore, the plaintiffs, after they had knowledge that the corporation had been formed, and certainly after they knew that Wade, the trustee, had transferred the lease to the corporation and that the corporation had entered into a drilling contract with Clark, were called upon to act, and prompt action upon their part was imperative. Because, while they were hesitating as to what course -they would pursue with reference to the corporation, people were purchasing stock and Clark, after he had entered into the drilling contract, was consuming his substance in drilling on the property. If he failed, plaintiffs could not lose anything, but if he succeeded plaintiffs would be made much richer at his expense. The plaintiffs were on the ground, and had full knowledge of what was being done. They had an unrecorded title in the lands of which purchasers of stock and those dealing with the corporation could not know until they had asserted the same. See Gregg v. Von Pheel, 1 Wall. 274, 17 L. E. 536; also Veile v. Hudson, 82 N. Y. 32, 40, cited in Wiser v. Lawler, 189 U. S. 260.
-The facts of this case differentiate it from all those cases in which it is held that “mere silence or inactivity” does not constitute an estoppel. See Bramble v. Kingsbury, 39 Ark. 131; Fox v. Drewry, 62 Ark. 316; Simpson v. Biffle, 63 Ark. 289; Waits v. Moore, 89 Ark. 19; Davis v. Neal, 100 Ark. 399. It would have been a simple matter for the plaintiffs, after they found the corporation had been organized, at once to have notified its officers and also Clark after he entered upon the contract. They could have instituted just such an action as they did institute within a few days after they discovered that Wade had assigned the lease to the corporation and that Clark was drilling on their property. Their failure to do these things constitutes a “misleading retí cence, and an apparent acquiescence” in, and ratification of, what the corporation, Wade and Clark had done. Their conduct places them in the attitude of saying, “We will wait and see whether the oil comes in before we disturb Clark and the corporation in their drilling operations.”
This court, in the case of Ford v. Abbott, 35 Ark. 365-77, in commenting upon the doctrine of equitable estoppel, after giving certain examples of that doctrine, said: “These are but illustrations of an all-prevailing principle, extending through every branch of equity jurisprudence, which holds it fraudulent in any one to mislead another by acts, words, or silence when good faith and fair dealing require him to speak, to do acts, or invest money, and then assert rights with regard to the subject-matter which would be injurious to the person misled and leave him in a worse position than if he had never acted.” And, in the case of Brownfield v. Bookout, 147 Ark. 555, speaking of estoppel by conduct, we said: ‘ ‘ This doctrine rests upon the principle 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.” See other authorities cited in the above cases, and Baker-McGrew Co. v. Union S. & F. Co., 125 Ark. 146, 150. See also 10 R. C. L. p. 694, par. 22, and Wiser v. Lawler, supra.
Applying this doctrine to the facts above stated, we have reached the conclusion that the plaintiffs are not entitled to the relief for which they prayed. But, of course, it follows from what we have said that they must be treated as 'stockholders in the corporation, and have their rights protected as such. The decree is therefore reversed, and the cause is remanded, with directions to dismiss the complaint for want of equity. | [
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Smith, J.
Lola McClain, Joe T. Porter and Eugene Porter brought separate suits against Horatio Barnett and Oscar Barnett for damages for libel. The causes were consolidated and tried together, and each of the plaintiffs recovered judgment against both defendants for damages.
The litigation arose out of the publication, in August, 1918, in the Meteor, a newspaper published in Malvern, in which or near which city all of the parties lived, of the following advertisement:
“notice to bidders.
“Notice Is Hereby Given, that any and all parties who may bid upon the above described property with view of securing title thereto are trespassers and will make themselves parties criminally thereto and will become a party to the conspirators now composed of E. H. Vance, Jr., and A. W. Jernigan as attorneys, and Joe T. Porter, Eugene Porter and Lola Porter, as witnesses, because the judgment from which the above described execution issued was secured by fraud practiced by said attorneys upon the court and upon the defendants, E. 0. Barnett Bros., and by perjured evidence given by Joe T. Porter, Eugene Porter and Lola Porter as witnesses, all of which as facts appear upon the recoxds of the circuit court.records of Hot Springs County, Arkansas; as evidenced by transcript of case in E. O. Barnett Bros. v. Joe T. Porter and various affidavits now on file.
“(Signed) E. 0. Barnett Bros.
‘ ‘ By Horatio Barnett. ’ ’
Horatio Barnett and Oscar Barnett are father and son, and for some years had been in business as partners under the firm name and style of E. 0. Barnett Bros. This copartnership did a mercantile and brokerage business, and while thus engaged bought a mortgage which J. T. Porter had given to one Sligh on a mare and a crop of cotton and corn which Porter was growing on Sligh’s farm, and the original litigation grew out of the proceeding brought- to foreclose this mortgage.
The publisher of the paper testified that the article was a paid advertisement, authorized and paid for by Horatio Barnett. He further testified that he had done other printing for E. 0. Barnett Bros., consisting principally of briefs in the Supreme Court, and that Oscar Barnett had paid for that work.
The above notice had reference to a sale about to occur under an execution which had issued in the case of E. O. Barnett Bros. v. Joe T. Porter. This litigation was long drawn but, and came before this court in the following appeals: E. O. Barnett Bros. v. Porter, 134 Ark. 268; same, 138 Ark. 65; same, 138 Ark. 613.
The defendants first filed a motion to dismiss the complaints on the ground that the firm had been dissolved in May, 1919, and that there existed no partnership assets. This motion was overruled; and the same fact was alleged in the separate answers filed in each of the cases. The-answers further pleaded privilege, as relating to a pending suit in court; denied malice; and also pleaded the statute of limitations, and the truth of the publication. In addition, Oscar Barnett alleged in his answers that the publication was the individual act of Horatio Barnett and was unauthorized by him, and was not within the scope of the partnership agreement.
For the reversal of the judgment in the case of Lola McClain, it is insisted that she lacked capacity to sue, in that she was a minor. This question is, however, raised here for the first time; and the failure to raise it in the court below is sought to be excused on the ground that the infancy of the plaintiff did not appear in any pleading filed in the cause and the fact was first made known by the testimony offered at the trial. But no objection to her right to sue was made when this fact was developed in the testimony; and this question is disposed of in the case of Davie v. Padgett, 117 Ark. 544, where it was said: “It is insisted that under our statute, which provides that the action of an infant ‘must be brought by a guardian or next friend’ (Kirby’s Digest, sec. 6021), that incapacity of an infant to sue in his own name is jurisdictional, and that the question of jurisdiction may be raised at any stage of the proceedings, even on appeal to this court. The contention is, we think, unsound. The code of civil practice provides, as one of the grounds for demurrer, that the plaintiff has not legal capacity to sue, and that when such matter does not appear upon the face of the complaint, the objection may be made by answer (Kirby’s Digest, secs. 6093-6096). The last section just cited provides that ‘if no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.’ It thus appears that the statute itself provides that the incapacity of the plaintiff to sue may be waived by the defendant, and is waived by failing to take advantage of the defense at the time and in the manner pointed out by the statute. The judgment is not void because of the plaintiff’s incapacity to sue, but that defect only • constitutes error which calls for a reversal of the judgment, if taken advantage of in apt time.”
It will be observed that the notice charges the plaintiffs with having given perjured testimony in the case of Barnett Bros. v. Porter; and it was shown that both father and son were instrumental in prosecuting Joe T. Porter and Eugene Porter for perjury, alleged to have been committed by them in that case. They were indicted for that offense, and upon their trial were acquitted.
Three members of the grand jury were permitted to testify that Oscar Barnett appeared before them in connection with the finding of this indictment.
No error was committed in admitting this testimony. In the first place, Oscar Barnett admitted his connection with this prosecution. He is a practicing attorney, and in that capacity consulted with his father and advised him that the parties were guilty of perjury. .He admits doing this. Moreover, it was competent, aside from Oscar Barnett’s admissions as a witness on the stand, to show his attitude and relation to this lawsuit and its management as circumstances from which the jury might determine what, if anything, he had to do with the publication of the alleged libelous article. 12 R. C. L. p. 1039.
Defendants undertook to show that the article published was true, in that the plaintiffs in this suit had given perjured testimony in the original suit; and this defense was submitted under instructions against which no objections are urged; and the verdict of the jury is conclusive of that issue of fact. •'
The court refused to give, at the request of the defendants, instruction numbered 7, reading as follows: “You are instructed that you cannot find any damage beyond nominal damages unless the plaintiff proves such damages, and the court tells you that you cannot base your verdict on speculative damages, but it must be based on actual damages; and if the proof fails to show such actual damages your verdict must be for nominal damages only if you find from the evidence the plaintiff is entitled to recover against the defendant.”
No error was committed in refusing this instruction. The article set out above charged the plaintiffs with the crime of perjury, and was therefore actionable perse. The law is that “where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to-introduce evidence of actual damages to entitle him to recover substantial damages. In such case the plaintiff need mot prove special damages in order to recover substantial damages. Murray v. Galbraith, 95 Ark. 199; 25 Cyc. 490.” Taylor v. Gumpert, 96 Ark 354.
It is finally insisted that error was committed in giving, over the objection of Oscar Barnett, an instruction numbered 8, reading as follows: “You are instructed in this case that, if you believe from the evidence. that Horatio Barnett and Oscar Barnett were acting together, or that Horatio Barnett was acting for them in a matter in which the partnership was inter ested, and in which he had a right to represent the partnership,, then, although Oscar Barnett may not have published the libelous publi cation, then, if Horatio Barnett is liable, Oscar Barnett would be liable also. ’ ’
This instruction appears to make the liability of Oscar Barnett depend upon that of Horatio Barnett, if there was a copartnership, and if Horatio Barnett was liable. But such is not the law. Oscar Barnett testified that he knew nothing about the publication of this article until he read it in the paper. Horatio Barnett was asked if Oscar Barnett knew of this article or had ratified it, and he answered, “No; it produced a little friction between us. He said I had done wrong; it was liable to get us in trouble; that I had better be careful about it. ’ ’
Now, a partner may be civilly liable for the tort of his copartner; and he is liable if such tort is committed in the course of the.partnership business; or if there is a ratification of such act with a knowledge of the circumstances of its commission. McClure v. Hill, 36 Ark. 268.
In 17 R. C. L. page 383, it is said: “According to the weight of authority, a civil action for the publication of a libel can be maintained against a partnership as such, where the wrong was participated in by all the partners, or was done by one of them in the prosecution of the firm’s business.”
The principle upon which a copartner may be held responsible for a libel is similar in principle to that upon which a corporation may be held liable. In the case of Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, a corporation was held liable for slander, and we there said: “There is some conflict of authority in respect to the liability of a corporation for slander; but, inasmuch as a corporation must transact its business and perform its duties through natural persons, it is now well settled that a corporation is liable in damages for slander as it is for other torts. To establish its liability, the utterance of the slander must be shown to have been made by its authority or ratified by it, or to have been made by one of its servants or agents in the scope of his employment and in the course of the business in which he is employed. (Citing cases).”
Each partner is the agent of the copartnership while acting within the scope of the copartnership. “If a partner in conducting the business of a firm causes a libel to be published, the firm will be liable as well as the individual partner. So if any agent or servant of the firm defames any one by the express direction of the firm or in accordance with the general orders given by the firm for the conduct of their business. To hold either of the members of a partnership, it is not necessary that the partner should publish the libel himself. It is sufficient if he authorized, incited or encouraged any other person to do it; or if, having authority to forbid it, he permitted it, the act was his.” Newell, Slander and Libel, (3rd. Ed.), § 472, p. 455.
See, also, Parsons on Partnership, § 100; Burdick on Partnership, p. 219; 1 Bowley, Modern Law of Partnership, § 513; Gilmore’s Cases on Partnership, p. 396; 1 Bates on Partnership, § 315; Gilmore on Partnership, 75; Duquesne Distributing Co. v. Greenbaum, 21 A. & E. Cas. 481.
If it was a part of the partnership purpose to deter bidding at the sale with reference to which the alleged libelous article was published, then both Horatio Barnett and Oscar Barnett are liable; or if Oscar Barnett authorized its publication, then he is liable. On the other hand, if the article was published by Horatio Barnett without authority of Oscar Barnett, and not in furtherance of any partnership plan or purpose, 'but only because of the individual volition of Horatio Barnett, then Horatio Barnett is alone liable.
For the error in giving instruction numbered 8 the judgment as to Oscar Barnett is reversed, and the cause remanded for a new trial. The judgment as to Horatio Barnett is affirmed. | [
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Smith, J.
Plaintiff sued the Missouri Pacific Eailroad Company and "Walker D. Hines, Director General of Eailroads, alleging that on the 14th day of December, 1918, he had received certain injuries while a passenger between Hartman and Clarksville, Arkansas, as a result of an assault made upon him by the brakeman on the train. A separate answer was filed by the railroad company, in which it denied that it was operating passenger trains at the time alleged in the complaint; and an answer was filed by the Director General- denying specifically the allegations of the complaint in regard to the assault.
There was a trial before a jury on May 6, 1921, and at the conclusion of all the testimony each of the defendants asked the court for a directed verdict, -but the ground therefor is not stated in the record. This request was overruled, and the case proceeded to the jury, and a verdict was returned against the defendants jointly in the sum of $250. Judgment was entered on the verdict, and thereafter separate motions for a new trial were filed. Upon the. argument of the motion for a new trial the court entered an order substituting the names of John Barton Payne and James M. Davis, as agents of the government, in place of the name of Walker D. Hines, and overruled both motions for a new trial. There appears to be a judgment against the railroad company, Hines, Payne and Davis, and each of these defendants has appealed.
It is first insisted that judgment was improperly rendered against the railroad company; and this insistence appears to be well taken. Missouri Pac. R. Co. v. Ault, 256 U. S. 554.
It is next insisted that error was committed in substituting the names of the successors in office of Walker D. ITines after the rendition of the judgment, the contention being that a retrial should have been ordered after the substitution of parties, and that the name of Payne should not, in any event, have been substituted, as at the time of the substitution he had himself been succeeded in office by Davis; and this appears to be a fact. It appears, therefore, to have been unnecessary and improper to substitute the name of Payne, as Davis was the substituted agent then acting for the Federal Government under the designation of the President of the United States, as ■ required by the Transportation Act of Congress approved February 28, 1920. But should a retrial have been ordered after the substitution of the name of Davis?
A similar question was presented in the case of Payne v. Stockton, 147 Ark. 598. In that case the name of Payne was substituted for that of Hines, and, while the substitution in that case was made before the trial of the cause, the objection was made in that case, as in this, that no service had been had against the person substituted, which is, of course, the point in the case, for, if service is required, the substitution could not be made either before or after the trial without service being first had. In the case just cited we said: “We do not think, however, that any new service was necessary. The object of the suit was to bring an action against the United States. The United States employed the same attorneys to act for John Barton Payne as had acted for Walker D. Hines as Director General. When these attorneys entered the appearance of Walker D. Hines, as Director General of Bailroads and Special Agent, they entered the appearance of the United States to the suit, and the substitution of John Barton Payne, Agent, instead of Walker D. Hines, Director General of Bailroads, was merely to correct an error in the name of the representative of the United States.”
In the instant ease an answer was filed in the name of Hines as Director General, alleging misconduct on the part of the passenger, which, if established by the testimony, would have defeated a recovery. The cause was tried on the issues there joined. The answer entered the appearance of the alleged agent of the United States, and there' is no contention that any other or different defense could or would have been made had the substitution of names been made before the trial, as was done in the case of Payne v. Stockton, supra, instead of after the trial, as was done in the instant case; and we conclude here, as we did there, that no error was committed in correcting an error in the name of the representative of the United States.”
Error is also assigned in the refusal of the court to give certain instructions. It is the theory of appellant that plaintiff, who is a boy fifteen years old, got on the rear end of the train, with a number of other boys who were not passengers, but that plaintiff acted in unison and in conspiracy with these other boys on the back of the train to turn on the emergency air, and an instruction was asked to the effect that, if this was true, the brakeman would have been justified in using reasonable force in preventing the boys from turning on the air in the emergency brake, but the instruction was not given.
Plaintiff admitted that he went to the rear end of the last coach, but he says he did so for the purpose of watching the boys, who had climbed on to the steps of the rear car, jump off as the train passed a railroad crossing; that he knew nothing about the air whistle on the rear of the train, and had nothing to do with turning it on, and when it was turned on by one of the boys he became frightened and started into the coach to deliver up his ticket, but as he started into the coach the brakeman grabbed him around the throat and choked and otherwise assaulted him.
It is true, of course, that the brakeman had the right, and. was under the duty, of protecting the appliances of the train, and especially those as important as the air-brakes, from officious meddlers; and for the protection of these appliances and the consequent safety of other passengers he had the right to use such force as was reasonably necessary for that purpose. This right and duty was covered, however, by an instruction numbered 3, which was given at appellant’s request, reading as follows : “You are instructed that the law imposes a duty upon a railroad company, as a carrier of passengers, to exercise the highest degree of care in the operation of its passenger trains for the safety -and protection of passenger's thereon, and to use all reasonable means within its power to keep its equipment in a reasonable safe condition and to prevent interference therewith, or annoyance to the passengers, and, \in ¡doing so, and through its agent and employees, may use such reasonable force as may seemingly be necessary under the peculiar facts and circumstances to prevent interference with its trains or jeopardizing the safety of its passengers and employees thereon, and, in doing so, would not be liable in damages therefor.”
The case presents a sharp issue of fact between the plaintiff and two of the other boys who were on the back of the train, on the one hand, and the brakeman, on the other, and, however much we may be disposed to accept as true the version of the brakeman as to what occurred when the air was applied and the train suddenly stopped, the verdict of the jury concludes that question in plaintiff’s favor.
The judgment against the railroad and that against Hines and Payne will be dismissed. The judgment against Davis will be affirmed. | [
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Smith, J.
Appellant Hodge was the plaintiff below, and sued to recover damages for the alleged alienation of the affections of his wife by appellee Brooks, defendant below. The testimony made a case which would have supported the verdict had it been in Hodge’s favor, although no attempt was made to show that any immoral relation ever existed between Brooks and Mrs. Hodge, nor was there any testimony that these two had ever been seen in a compromising position, the nearest approach thereto being that it was testified that on one occasion Brooks showed Mrs. Hodge how to drive an automobile and during the lesson had his arm resting on the seat back of his pupil. This occurred, however1, in the day-time and on one of the principal streets of the town of Mineral Springs.
Hodge and his wife resided in a house with Brooks, the house being one Brooks had rented in the town of Mineral Springs. The testimony shows that Brooks became dissatisfied with this arrangement and ordered Hodge to vacate. This order was given and obeyed in February, 1921. In April thereafter Mrs. Hodge left her husband and returned to her people, who lived in an adjoining county, where she has since resided, and in September thereafter Hodge brought this suit.
The conduct of Brooks complained of consisted principally of assistance to Mrs. Hodge in the discharge of her domestic duties and little personal services about the house; of carrying her from her home in Mineral Springs in an automobile owned by ¡Brooks to Sara-toga, ten miles away, where she taught school; and in lending her money on two occasions, first to buy a knitting machine which cost about $75, and afterwards to buy a suit costing about $40. In explanation of this testimony, it was shown that Hodge and his wife were comparatively a young couple; that Brooks was sixty-four years old, and badly crippled with rheumatism, using two canes when he walked; that Brooks was physically unable to work, but his financial condition permitted him to live without working; that he drove Mrs. Hodge to her school at her husband’s request and upon his promise to pay for the service; that, as Brooks had no regular employment, he assisted in the discharge of many of the little duties around the house as a matter of occupation and courtesy; and that the money loaned was lent with the knowledge and at the request of Hodge; and that Brooks had done nothing to induce Mrs. Hodge to leave her husband.
Over Hodge’s objection the court admitted testimony to the effect that Hodge did not pay his bills and that his credit was not good. The error of this action was mitigated somewhat by an instruction numbered 8, given at Hodge’s request, reading as follows: “You cannot take into consideration the poverty or want of ability of the plaintiff to pay his debts; nor the fact that the defendant, Brooks, may think that he does not give his wife the pleasures and luxuries that he, Brooks, thinks she ought to have in this case, since such matters do not justify the alienation of the affections of the plaintiff’s wife from him, if they have been alienated. ’ ’
If it be true that this instruction did not remove the prejudice arising out of the admission of the incompetent testimony, then it may be said that the error Was an invited one. Hodge first testified in his own behalf, and then called as a witness Dr. Toland. It was stated at the time that Dr. Toland was being called out of time, as he had to leave town to visit a patient, and that the testimony was being offered in rebuttal. However,' at that time there was nothing to rebut, as Hodge alone had testified. Dr. Toland was the owner of the house which Brooks had rented at the time Hodge and his wife were living with him. Dr. Toland testified that Hodge’s-credit was good, and that he had never hesitated to attend either Hodge or his wife professionally, whether they had the cash money to pay for his services or not.
Numerous objections are urged to the instructions given in the case; but we think those which require discussion are disposed of by what we shall say in regard to instructions numbered 1 and 17 and another numbered 3 given at the request of Brooks and over Hodge’s objection. Instruction numbered 1 reads as follows: “You are instructed that, in order for-the plaintiff to maintain this action against the defendant, the burden devolves upon the plaintiff to show by a preponderance of the testimony that the defendant in this case wrongfully and wilfully .attempted to alienate the affections of the plaintiff’s wife, and that he wrongfully and wilfully attempted to deprive the plaintiff of his wife’s society, and that such attempt was successful, and that this plaintiff was not a consenting party to such acts or conduct of the defendant by which plaintiff claims that the defendant alienated his wife’s affections with.” Hodge objected to this instruction generally and specifically “because the use of the word ‘wilfully’ and the words ‘wrongfully and wilfully’ would or might be misleading to the jury, and because the law gives relief in cases of this kind if the affections are alienated culpably, though not wilfuly and wrongfully.”
Instruction numbered 17 reads as follows: “You are instructed that, before the plaintiff can recover in this cause, he is required to establish all the allegations of his case by a preponderance or greater weight of the evidence. Your verdict in this case must be based upon legal evidence submitted to you and not upon guesswork or conjecture. And if, after hearing .all the evidence in the case, you are not satisfied by the preponderance or greater weight of the evidence that the acts of the defendant as alleged in the complaint are true, or that the defend ant wilfully and in bad faith to the plaintiff alienated plaintiff’s wife’s affections, your verdict should be for the defendant.” Hodge objected to this instruction generally and specifically “because it justifies a recovery notwithstanding the defendant may have alienated the affections of plaintiff’s wife, providing he did not do so in bad faith, even though the jury might find that he did so wilfully and wrongfully. Also because the words ‘wilfully’ and ‘wrongfully’ as used in the instruction require a more flagrant case- of alienation than the law calls for; also for the reasons stated in plaintiff’s objections to instruction No. 1 given for the defendant.”
We think no error was committed in giving the instructions set out above. No specific objection was made to the use of the words “bad faith,” and we think they were used in the instruction in the same sense as were the words wilfully and wrongfully. Hodge was not'required to show, to sustain his cause of action, that Brooks entertained any personal ill-will or malice towards him; but we do not think- the instructions imposed that requirement. They did require that Brooks’ conduct towards Mrs. Hodge should have been prompted by the conscious purpose of winning away from Hodge the consortium of his wife.
In the case of Boland v. Stanley, 88 Ark. 562, this court said: “The loss of what is termed in law ‘consortium,’ that is, the society, -companionship, conjugal affections, fellowship, and assistance of the wife, is the principal basis for actions of this kind,” that is, actions for alienating the affections of one’s wife. In the same ease it was also said: “Whoever invades the hallowed precincts of a home, and, without justifiable cause, by any means whatsoever severs the sacred tie that binds husband and wife, alienating her affections from him, and depriving him of the aid, comfort and happiness of a loyal union between them, is liable in civil damages for his wrongful conduct. Rogers, Dom. Rel., § 177; Schouler’s Dom. Rel., § 41; Tiffany, Per. & Dom. Rel. 74; 15 Am. & Eng. Enc. Law, 862. In such cases whether or not there were malevolent or improper motives is always a material consideration.”
Without so intending, one might acquire or lose another’s affections. The defense here interposed was that, by his own neglect, Hodge had lost the consortium of his wife, and several members of her family so testified. It was also denied that Brooks had won the affections of Mrs. Hodge; and it was further asserted that, if such was the case, there had been no conscious purpose so to do.
The thing forbidden and made actionable is the entry of a home by a wrongdoer and the consequent loss of consortium by the injured spouse; and it does not matter whether this entry is by physical violence or subtle influence; but it is essential that there should be a conscious purpose to do a wrongful act. One who does this has acted wilfully and wrongfully and in bad faith to the injured spouse, and is liable to respond in damages therefor.
What we understand to be a correct statement of the rule in such cases is found at section 515 of the article on Husband and Wife in 13 R. C. L. p. 1466, where it is said: “As a general rule an intentional alienation or enticing away must be shown, and it may be laid down as a general rule, where there is no element of seduction or adultery, that a defendant in an action for alienation of affections is not liable unless he acted maliciously or from improper motives implying malice in law,whether he is a parent of or a stranger to the plaintiff’s spouse. While it is true that, as is hereinafter shown, it requires more evidence to establish malice on the part of a parent than is necessary in the case of a stranger, this difference is an evidential one merely.”
Among the annotated cases cited in the note to this section is our case of Boland v. Stanley, supra, which is annotated in 129 Am. St. Rep. 114.
Other instructions objected to, including No. 3, mentioned above, declared the law to be that if the affections of Mrs. Hodge “were alienated either by Hodge him self, or Ms conduct, or by any other act, except the wrongful acts of the defendant,” the defendant was not liable. One is, of course, responsible only for the effects of his own conduct, and the instructions are not questioned as correct declarations of the law, but they are said to be abstract. We tMnk it appears, from the very general statement we have made of the issues of the case, that instruction numbered three and others of similar purport are not abstract.
Upon a consideration of the whole case, we find no prejudicial error, and the judgment is affirmed. | [
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Hart, J.
(after stating the facts). Counsel for the plaintiff seeks to reverse the judgment upon the doctrine laid down in Roberts v. Bodman-Pettit Lumber Co., 84 Ark. 227; McClintock v. Skinner Co., 126 Ark. 591, and Talley v. Davis, 136 Ark. 604. In those cases, as well as other cases, this court has held that where a married woman permits her husband to hold her personal property out as his own and to use it as an apparent basis of credit, she will be estopped as against her husband’s creditors to claim it as her own.
On the other hand, counsel for the defendants seek to uphold the decree on the doctrine of Sharp v. Fitzhugh, 75 Ark. 562. In that case it was held that the wife’s property is not liable to her husband’s creditors for its increase or enhancement in value on account of any reasonable contribution of his time, labor, or skill in the management of it. The reason is that creditors cannot compel the husband to work for them, and cannot command Ms skill or labor. The wife has the right to control the profits of her own property, and her husband may manage it for her. There is a marked distinction, however, between the wife’s entrusting the entire management and control of her separate property or business to her husband when the business is openly conducted as her own, and in suffering her own money to be .used in a business by her husband, and blended with his earnings so that it cannot be separated. Equity looks to the substance of a transaction and not its form. It disregards all matters of form and is governed by the facts. The substance of the present transaction is that the wife permitted her money to be used by her husband in carrying on a business under the name of Hale & Co. Her money and the business skill and industry of her husband cannot be separated. He used her money in building up the business and gained credit on the faith ■ of it. A preponderance of the evidence shows that the husband devoted his whole time, energy and skill to the management and conduct of the mercantile business. The bills were sent out in the name of Hale & Co. The wife never gave any attention whatever to the business. Her husband obtained credit on the faith of its being his own business. Husband and wife occupy the most confidential relation in life, and it is well settled that the wife cannot give her money to her husband and permit him to use it for a long series of years in obtaining credit and then claim that the profit derived from the use by her husband is exempt from the claims of his creditors.
We are of the opinion that the course of conduct of Mr s. Hale in permitting her husband to use her money and property as an apparent basis of credit estops her from claiming the property against.the plaintiff, who extended credit to her husband on the faith thereof.
Therefore the chancery court erred in dismissing the complaint of the plaintiff for want of equity, and for that error the decree will he reversed and the cause remanded, with directions to grant the prayer of the plaintiff’s complaint, and for further proceedings in accordance with the principles of equity. | [
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Humphreys, J.
Appellant was indicted for the crime of murder in the first degree in the Ashley Circuit Court at the October term, 1921, for killing Thomas N. Mann in said county on or about the 25th day of December, 1918. At the January, 1922, term of staid court appellant was tried upon the indictment and convicted of involuntary manslaughter, his punishment being fixed at imprisonment in the State Penitentiary for a period of one year. From the judgment of conviction an appeal has been duly prosecuted to this court.
Omitting formal parts, the indictment is as follows: “The said B.E.L.Franklin, in the county and State aforesaid, on or about the 25th day of December, 1918, did unlawfully, wilfully, feloniously and of his malice aforethought, and after deliberation and premeditation, kill and murder one Thomas N. Mann, then and there being, by striking him, the said Thomas N. Mann, on the head with a certain blunt instrument, a more particular de scription of which, is to the grand jury unknown, the said blunt instrument being then and there had and held in the hands of him, the said R. E. L. Franklin, and by shooting him, the said Thomas N. Mann, with a certain gun which the said R. E. L. Frankin then and there had and held in his hands, the said gun being then and there loaded with gunpowder and leaden bullets, contrary to the statutes in such oases made and provided,” etc.
Appellant contends for a reversal of the judgment upon the ground embraced in his demurrer, filed below, to the effect that the crime of murder in the first degree was not sufficiently charged in the indictment. Under our law murder is a single crime and must be so charged, but if committed in different modes or by different means it is permissible to allege the different modes or means in the alternative. Crawford & Moses’ Digest, § 3015. This statute, in so far as it relates to the method of killing, has reference to modes or means inconsistent with each other. For example, it means that the modes and means by which a single murder was committed may be charged in the alternative in the same indictment. In other words, the same murder may be charged in the same indictment either by poisoning or by force in the alternative, the means or modes being inconsistent. There is nothing in the statute indicating that this could not be done in one count, nor is there anything in the statute indicating that if the modes or methods by which the murder was accomplished were consistent they could not be alleged in the conjunctive. The trend of appellant’s argument is that, because the modes or methods appear to have been charged in the indictment in the conjunctive, two offenses are charged. The indictment only charges one offense, committed in two different modes, one by-striking, the other by shooting. It is true the methods are charged in the conjunctive, but there is nothing in our statutes prohibiting them being charged in the conjunctive if consistent. In other words, if the murder resulted from several acts consistent with each other, all the acts might be charged in the conjunctive and embraced in one count. Mr. Bishop, in his work on New Criminal Procedure, vol. 1, sec. 434, enunciates the doctrine in the following language: ‘ ‘ Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them. ’ ’ The same rule of procedure is announced in Joyce on Indictments, § 401, and in the Standard Enc. of Procedure, vol. 12, p. 516. The trial court did not err in overruling the demurrer to the indictment.
Appellant’s next insistence for reversal is that the court erred in overruling his motion to require the State to elect which mode or method of killing it would rely upon for a conviction. The proof on the part of the State tended to show that the murder was committed both by shooting and striking the deceased. When found, the top of deceased’s head was crushed in as if a blow from a bludgeon, and there was a gunshot wound from a bullet which entered above and back of his right ear and lodged in the skull on the opposite side of the head. The evidence also showed that either wound would have produced instantaneous death. The authorities cited above are to the effect that proof of any one of the alleged methods of committing an offense, when not repugnant, is sufficient to sustain the charge. Directly upon this point, Mr. Wharton, in his work on Homicide, at page 563, uses the following language: “Where the means by which the murder was committed are uncertain, its commission by different means may be charged in a count of the information, and proof of any one will sustain the allegation, but the means so charged in the same count must not be repugnant. And an allegation of killing by shooting, and by cutting, bruising, and striking, charges that the accused inflicted two mortal wounds upon the deceased, one by shooting, and one by striking, and is not bad for repugnancy.’’’ The court did not err in overruling; armellant’s motion to require the State to elect whether it would prosecute appellant for the murder in shooting or whether by striking the deceased.
Appellant’s next insistence for reversal is that the court erred in overruling his motion for a continuance on account of the absence of Henry Bay Croswell, who, if present, would testify that he appeared on the scene of the tragedy soon after the killing and s;aw the sheriff, Dr. W. M. Chavis, extract the shells from deceased ’a pistol, which was picked up near the body; that one of the shells was empty and thrown on the ground by the sheriff; that witness picked up and saved the' empty shell, and may have it yet; that the shell was a .32 Winchester. The sheriff had testified that the gun belonging to the deceased would fire a .32 caliber Winchester, although a .38 caliber 'Smith •& Wesson pistol; and another witness had testified that the deceased usually ‘Carried a pistol loaded partly with .32 caliber Winchester cartridges. Appellant’s theory was that the deceased, in a drunken frenzy, while playing with his own gun, accidentally killed himself, and that the crashing of the bullet through the head fractured the skull on top. Based upon this theory, there could be no question but what the evidence of the absent witness would have been material, as tending to support the theory of an accidental killing. It appears from the record, however, that the cause was continued from the August, 1921, term of the court until the following January term thereof; that at the time of the continuance it was known that the witness was in the military service in the Canal Zone, and that, in the interim, no effort was made to procure the.deposition of the witness, and no effort to obtain the presence of the witness except to mail a subpoena for him to the Adjutant General of the United States army at Washington, D. C. Appellant failed to show that he used diligence to obtain the testimony or presence of the witness. The witness was out of the jurisdiction of the court and not amenable to its processes, and no showing was made that he would return to the State within a reasonable time. The court did not abuse its discretion in refusing to continue the case for the attendance of the witness. Puckett v. State, 71 Ark. 62; Turner v. State, 135 Ark. 381; Metropolitan Cas. Ins. Co. v. Chambers, 136 Ark. 84.
Appellant’s next insistence for reversal is that the court erred in admonishing the jury, after several days’ deliberation, concerning the importance of coming to an agreement. The admonition complained of is as follows: “I would not ask any man on this jury to violate his conscience, and yet it has been my observation and experience that, although men partly disagree and don’t agree for a time, some taking one question one way and others taking it the other,yet, after taking into consideration all the circumstances, they are finally able to agree. I don’t have to tell you that you are men of common-sense, and I don’t have to tell you that this is a case that has consumed a great lot of time and energy. You saw the great number of witnesses that were brought here, and you heard the testimony of those witnesses, and you know the importance of deciding this ease, that this case be decided. It would be a bad thing if a verdict were not reached now; some jury will have to try this cause and settle it. There is no wmy that I know of, and there is no other way known to law, by which it can be decided. Considering all those things, gentlemen, I will have to ask you to go back into your jury room and consider of your verdict further.”
We find nothing in the admonition indicating the court’s opinion upon any disputed fact in the ease, or upon the guilt or innocence of appellant, nor anything indicating that jurors should yield their honest convictions in order to reach a verdict. The admonition did not transcend the license accorded trial judges in Johnson v. State, 60 Ark. 45; St. L. I. M. & S. R. Co. v. Carter, 111 Ark. 272; Reed v. Rogers, 134 Ark. 528.
Appellant’s next insistence for reversal is that the court erred in permitting the hat of deceased and the bullets found in deceased’s pistol and in his head to be introduced in evidence. The objection made to the introduction of the hat was that it had remained in possession of the family of the deceased and had been tampered with after the killing. Appellant himself called for the hat, and it was introduced at his instance. After being introduced, it was discovered that it not only had a bullet hole in it, but was tom in several places. After having introduced the hat, appellant was in no position to have it excluded. It was his privilege to prove that it had been tom after the death of deceased and while in the possession of the family of the deceased, if he chose to do so, but not his privilege .to have it excluded over the objection of the State after requesting and obtaining its introduction himself. The objection made to the introduction of the bullets is that they were not properly identified. There was a post mortem, examination of the deceased, and the bullet, which entered his head on the right side and lodged in the left side, was extracted. This bullet, as well as some Smith & "Wesson .38 caliber bullets, were weighed by Dr. George, and the weights taken down, which weights, together with the bullets, were sealed in an envelope and placed in charge of the circuit clerk, Where they remained until introduced and identified by Dr. George. We think the identification of the bullets sufficiently definite to justify their introduction.
The next insistence of appellant is that the court erred in giving and refusing certain instructions to the jury. None of the objections and exceptions to the instructions were preserved in appellant’s motion for a new trial, except to appellee’s requested instruction No. 1, which was a correct definition of murder. It was as follows: “Murder is the unlawful killing of a human being in the peace of the State with malice aforethought, either expressed or implied.” Under the repeated rulings of this court, assignments of error not appearing on the face of the record will not be considered unless the alleged errors are preserved in the motion for a new trial. Thielman v. Reinsch, 103 Ark. 307; Thomas v. Jackson. 105 Ark. 353; Railway Ice Co. v. Howell, 117 Ark. 198; Sublett v. Sublett, 133 Ark. 196. Under the record presented we are not called upon to determine whether the court erred in giving or refusing instructions.
Appellant’s last insistence for reversal is that the evidence is insufficient to support the verdict of the jury and judgment of the court. Deceased was killed in the afternoon of December 25, 1918, on the front walk between appellant’s house and gate. The testimony introduced on the part of the State tended to show that deceased had been invited to take dinner with appellant, who stated that he had plenty of eggnog, but that he took dinner with his sister, Mrs. J. Q. Pilgrim, and remained there until about 3 o’clock, when he started home in the direction of Hamburg. • In going toward Hamburg he had to pass appellant’s house. The sheriff was called between 4 and 5 o’clock by appellant’s wife, who requested him to ask the deceased’s father to come and get him, as he was in a bad fix. In a short time thereafter the sheriff was notified to come himself, and when he arrived he found the dead body of the deceased on the walk with a bullet hole in his head; his pistol was near his side, and his hat on the ground near by. His pistol was a .38 caliber Smith & Wesson, and one chamber had been fired. Appellant’s statement concerning the killing to different parties was somewhat conflicting. After' the burial of deceased, suspicion was aroused against appellant, and the body was disinterred and a post mortem examination made. It was discovered that a bullet had entered on the right side of the head a little above and back of the right ear and lodged on-the opposite side in front of the left ear'. The bullet was about the same weight of a .32 caliber Winchester bullet. It was also discovered that the top part of his head, towards the back, had been fractured as if done with a blunt instrument. Appellant owned a .32 caliber Winchester rifle. Deceased’s coat sleeve was torn, and when his hat was introduced in evidence there were several torn places in it. Later the grand jury investigated the killing and returned an indict ment against appellant. At the time the grand jury was conducting the investigation appellant was serving on the petit jury. When a warrant was issued upon the indictment, appellant could not be found, having disappeared. He went to Greenwood, S. C., where he lived until he was found and arrested, under the name of Robert E. Lee. The State’s theory, based upon the facts just detailed, was that appellant killed the deceased in a drunken brawl by first shooting him with a .32 caliber Winchester rifle and then striking him in the top of the head with some blunt instrument. Appellant’s theory was that the deceased shot himself with his own pistol while playing with it, and that the shattering of the skull in the top of the head was done by the bullet as it ranged upward through the head. It is unnecessary to set out the facts and circumstances introduced by appellant in support of this theory, as the judgment must be -affirmed if there is any substantial evidence in the record to support the verdict of the jury. It was next to impossible for the two wounds, as discovered in the deceased’s head, to have been self-inflicted. We think the most reasonable inference to be drawn from the character of the two wounds is that they were not self-inflicted, but were inflicted by another. After drawing this inference, there is ample testimony in the record to connect appellant with the crime. The fact that he possessed a .32 caliber Winchester rifle tends strongly to connect him with the crime, as the bullet extracted from the deceased’s head was about the same weight of a .32 Winchester bullet. Appellant’s conflicting statements, and the fact that lie fled -and lived under an assumed name until arrested, are circumstances tending to connect him with the crime. The evidence was legally sufficient to sustain the verdict and judgment.
No error appearing, the judgment is affirmed. | [
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Wood,'J.
On the 26th of February, 1920, the probate court for the Southern District of Arkansas County, on the application of C. P. Chaney and Miss Myrtle Moon, admitted to probate -a written instrument as the last will andPtestament of Mrs. P. D. Porter, deceased. Certain parts"of the will are written in pencil, and other portions are written with ink. The will disposes of a large estate consisting of real and personal property. Several different parties are named as devisees and legatees in the will. The bulk of the estate was bequeathed to C. P. Chaney. The last clause of the will, as originally written in pencil, is as follows: “I appoint J. I. Porter and Earl Holt my executors of this, my last will and testament, without bond. Consideration $1,000 dollars. (Signed) P. D: 'Porter.” Pencil marks were run through the words “Consideration $1,000 dollars” and after tbe signature was written the following: “They to receive $1,000 in full for .their services.”
. William N. Musgrove, James L. Musgrove, Gilbert Musgrove and Lula Talbot objected to the probate of the will and were granted an appeal to the circuit court. In -the circuit court they were named as parties contestants and filed their petition setting1 forth their grounds of contest, which are as follows: “(1). That the entire body of the will and the signature thereto are not writ ten in the proper handwriting of the testatrix. (2). That the said will is not subscribed to by the testatrix at the end thereof.”
At the trial Myrtle Moon, Vida Hamilton and Mrs, Vida Hamilton, as guardian, were made parties proponents as beneficiaries under the will. The issue as to whether the instrument presented for probate was the will of Mrs. P. D. Porter was by consent of parties tried by the court.
The testimony tended to prove substantially the following: Three witnesses made affidavits in the probate court that for several years they had been familiar with the handwriting of Mrs. Porter; that the entire body of the proposed will’and the signature thereto were in the proper handwriting of Mrs. P. D. Porter; that at the time of the execution of the alleged will she was more than twenty-one years of age and of sound and disposing mind and memory. Several other witnesses testified to the same effect. Oné of them stated that he had known Mrs. Porter all of his life and had made a study of handwriting for eight or ten years. This witness stated that the entire body of the will and the signature were written in the handwriting of Mrs. Porter. The words following the signature to-wit, “They to receive $1,000 in full for their services” were in the-handwriting of Earl Holt. ■
' The testimony of the county and probate clerk was to the same effect, and likewise that of J. L. Porter and E. F. Holt. Indeed, the testimony is undisputed that the entire body of the will and the signature were in the handwriting of Mrs. Porter, and that the -words following her signature quoted above were written by Earl Holt.
Witnesses Porter and Holt testified concerning the erasure of the words, ‘ ‘ Consideration $1,000 dollars ’ ’ and the words written by Holt following her signature, substantially as follows: The pencil marks were run through the words, “consideration $1,000 dollars,” after Mrs. Porter had signed and executed the will. This erasure was made and the words ‘‘They to receive $1,000 in full for their services” were written by Holt in lien thereof, or to explain the words through which the pencil marks had been drawn. This erasure was made and these words written after Mrs. Port,er had left. J., I. Porter, a nephew by marriage of Mrs. Porter, had discussed with Mrs. Porter the making of her will. She wrote the same when she Was on a visit to Hot Springs, and on her way from Hot Springs she stopped over in Stuttgart and talked with Porter about it. He read the will and sent word for Holt to come. Holt, who was a lawyer and a confidential friend of Mrs. Porter, took the will away to look it over carefully to see if any changes were needed. The next day or so he brought the will back to Porter’s office, and they read it over carefully, and Holt stated that he thought the three words, “Consideration $1,000 dollars,” should be a little clearer so that there would be no question among the heirs about it. Then at Porter’s request Holt drew those lines through the words and added the words after the signature above indicated. This was all done after Mrs. Porter had gone home, and she had absolutely nothing to do with it. The matter came about, as explained, because Porter was a close kinsman of Mrs. Porter. The will, in this form, was sent to Mrs. Porter, and was not seen any more until it was taken out of the desk drawer in her office after her death.
It was shown that Mrs. Porter had some property in California and a one hundred dollar Liberty bond not included in the will.
Upon the above facts, the court found that the instrument proposed and admitted to probate by the probate court was the last will and testament of Mrs. P. D. Porter, and that the same had been properly proved and admitted to probate, and entered a judgment so declaring and dismissing the petition of the contestants, and for costs, from which judgment is this appeal.
1. The appellants contend, first, that, inasmuch as parts of the will were written with pencil and part with ink, the presumption is that those parts written in pencil were written after Mrs. Porter had executed the will. They further contend that the parts written in pencil when read alone do not make sense, and that there were long blank spaces between paragraphs in the will, which show that the instrument on its face was merely “deliberative memoranda.” It is impractical to set out the will in this opinion as it appears in the record. We have examined the same, however, and cannot sustain learned counsel in their above contentions. The undisputed testimony, as we have stated, shows that the entire body of the instrument and the signature thereto, as originally written, were in the proper handwriting of Mrs. Porter, and that the parts appearing in ink and in pencil were all written by her and were in the instrument when the will was left with Holt to see if it was in proper form and whether or not he had any changes to suggest.
The will, when read as a whole, is not unintelligible. The names of the devisees and legatees are specifically mentioned and the several bequests to them are set forth with sufficient dearness of description to identify the property which the. testatrix intended the beneficiaries should receive. The fact that long spaces intervened between paragraphs or sentences of the will can make no difference where the testator by the language written makes a disposition of his property and the instrument is signed at the end thereof.
As was said by Judge Riddick in Arendt v. Arendt, 80 Ark. 204, quoting from Jarman on Wills: ‘ ‘ The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, disdoses the intention of the maker respecting the posthumous destination of his property; and, if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.” The above was said concerning a document that took the form of a letter which the court held to be a valid holographic will. See also Murphy v. Murphy, 144 Ark. 429.
The fact that there were blank spaces, some of them more or less lengthy, between paragraphs of the will or between the last writing and the signature can make no difference when it is clearly shown, as it is here, that nothing was inserted in the body of the will after the signature of the testatrix had been attached thereto. In other words, the body of this will, even if written at different times, was all written and signed by Mrs. Porter as her last will and testament and left with her kinsman and attorney as the instrument by which she intended to make the testamentary disposition of her property. It is not alleged and proved that there were any fraudulent insertions or interlineations in the instrument under review after the same had been signed by Mrs. Porter. Indeed, there is no pretense that the entire instrument, except the words, added after her signature and the erasure of the words preceding, was not the handiwork of Mrs. Porter. There is no room for the conclusion that this instrument was only intended by Mrs. Porter as merely “deliberative memoranda” as contended by the appellant, and not as her completed will. The instrument itself, as well as the evidence aliunde, proved clearly that same was her will. Sec. 10494, Crawford & Moses’ Digest, provides as follows:
“Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: First. It must be subscribed by ■the' testator at the end of the will, or by some person for him, at his request. ****** Fifth. When the entire'body of the will and the signature thereto shall be writtén in the proper handwriting of the testator or testatrix,' 'such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrixj notwithstanding there may be no attesting witnesses to such will ........
In Owens v. Douglas, 121 Ark. 448, the court said: ‘ ‘ The purpose of our statute in requiring wills to bn signed at the end thereof is to provide against fraud, and this statutory requirement must not be frittered away by loose interpretation. ’’ When this will is scanned as a whole, there is no such intervening space between its provisions as to suggest that the will was not signed at the end of the testamentary dispositions and therefore at the end of the will. In the case of Re Estate of Blake, 136 Cal. 306, 68 Pa. 827, 89 Amer. St. Rep, 135-140, the will was written on a blank form, and after the end of the testamentary provisions there was a blank space with lines of more than half a page on which there was xio writing or printing. On the following page under the heading, “Lastly,” the provisions as to the appointment of the executrix is made; then follows the clause.“In witness whereof,” etc; and the name “Thomas M. Blake.” The court said: “We think the will was signed at the end thereof within the meaning of the statute. There is ho provision as to the disposition of property, or provision of any other kind, after the name of the testator. The name was signed at the end, but not immediately 'at the end of the testamentary provisions. It was not necessary for the signature'to have been on the first or second line below the testamentary clauses.” There is no testamentary disposition after the signature of Mrs. Porter. Mader v. Apple, 80 Ohio State 691, 89 N. E. 37, 131 Amer. St. Rep. 719; see also, In re Moro, 10 A. L. R. 422; Estate of Seaman, 146 Cal. 455; 80 Pa. 700, 106 Amer. St. Rep. 53, and authorities collated in case note to Sears v. Sears, 17 L. R. A. (N. S.) 353. The will under review- was signed at the end thereof, was duly established, and meets every requirement of the above statute to constitute a valid holographic will.
2. The erasure made by Holt of the words, -‘‘pop: sideration $1,000 dollars” and the addition by him- after the signature of the testatrix, were made after Mrs. Porter had signed the will, in her absence, and without her knowledge. This erasure and this addition did not purport to affect any testamentary disposition. They Were mere spoliations of the will by Holt, a stranger, and could have no effect whatever on the validity and probate of the will. Even if they had been made by Mrs. Porter herself, they would not have amounted to a revocation or cancellation of her will. They added nothing to it and took nothing from. it. They were intended merely to clarify what appeared to Holt to be not clearly expressed; •but, as they were made after Mrs. Porter had signed the will and Without her knowledge, they 'did not affect the validity of the will. Monrow v. Huddard, 14 L. R. A. (N. S.) 259, 28 R. C. L. sec. 142, p. 183-186; Hesterburg v. Clark, 57 Amer. St. Rep. 135; Re Kapen’s Will, 98 Amer. St. Rep. 808; Howard v. Hunter, 90 Amer. St. Rep. 121.
3. The statute does not require that a will shall be written in ink or pencil, or that it may not be written in both. Since the undisputed testimony shows that this entire will was written by Mrs. Porter herself, it was Wholly immaterial whether pen and ink exclusively, or pencil, or both, were used. 28 R. C. L. sec. 62, p. 110. See, In Re Estate of Tomlinson, 19 Amer. St. Rep. 637; Meyers v. Vanderbilt, 24 Amer. St. Rep. 227; 40 Cyc. 1194; LaRue v. Lee, 14 L. R. A. (N. S.) 968. There is nothing either in the form of this will, the manner in which it was written (being partly with ink and partly with pencil) to indicate that the testatrix intended the same as mere deliberative memoranda. On the contrary, it occurs to us that the will itself and the evidence aliunde show that it was the intention of the testatrix to execute this instrument as her last will and testament. The decree of the trial court so holding, and directing that the judgment of the probate court admitting the will to probate be sustained, is in all things correct and is therefore affirmed. | [
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Humphreys, J.
This is an appeal from a decree of the Pulaski Chancery Court, reforming a rental contract for a steam shovel, entered into between appellant and appellee on the 8th day of May, 1920, so as to provide for the termination thereof when appellee ceased to need the shovel in the construction of the Nineteenth -Street pike, in said county, and adjudging $240, with costs, against appellee, in favor of appellant. ¡Suit was originally instituted by appellant against appellee in the circuit court of said county for $5,305.05 for the rental of the -steam shovel and repairs on same upon the written contract sought to be reformed, which provided for the rental of the steam shovel at $40 per day for every working day during a period lasting as long as the Nineteenth Street pike was in course of construction. It was alleged in the complaint that appellee paid the rental until October 1, 1920, but failed to pay it after that time; that appellee did not complete the construction of the Nineteenth Street pike until the 24th day of February, 1921; that the rental for the use of the steam shovel during that time amounted, under the contract, to the sum of $5,240; that under the provisions of the contract appellee was to keep the shovel in repair, which it failed to do, to appellant’s damage in the sum of $65.65. To this complaint appellee filed an answer, cross-complaint and a motion to transfer the case to the chancery court. In addition to denying the material allegations in the complaint, appellee alleged that the written contract made the basis of the suit did not express the intention of the parties, or, if it expressed the intention of appellant, appellee’s signature thereto was procured upon the fraudulent representations that the clause in the contract relating to the termination thereof meant that rent should be paid on the steam shovel only as long as it was needed by appellee in the construction of the Nineteenth Street pike.
Over the objection of appellant, the cause was transferred to and tried in the chancery court upon the pleadings and testimony of witnesses taken in open court at the April, 1921, term thereof. The official stenographer, Gardner K. Oliphint, took the testimony of the witnesses in shorthand and filed his notes with the clerk of the Pulaski Chancery Court. W. W. Shepherd transcribed the stenographic notes, and, at a subsequent term, was ordered by the court to file his transcription as depositions in the case. This was done without appellee’s consent . No other method was adopted to preserve the testimony taken ore terms at the bar of the court. Appellee moves an affirmance of the decree of the lower court on the ground that the evidence was not preserved in the manner required by special act No. 81 of the Acts of 1917, applying to the Pulaski Chancery Court, and for that reason has been improperly included in the transcript as a part of the record in the case. We find no provision in the special act authorizing the court, at a subsequent term, to adopt the transcription by another stenographer of the notes of the official stenographer and to order the same filed as depositions in a case tried at a former term. For this reason the oral testimony preserved and brought into the record in this manner cannot be regarded as a record of the evidence in the ease. Holding this view, the only errors which this court could consider on appeal would be errors appearing on the face of the record, without reference to the evidence improperly incorporated in the transcript.
Appellant insists that the court committed reversible error in transferring the cause to the chancery court. We think not. A reformation of the contract was sought on allegations which, if true, authorized a reformation thereof. It was alleged in the cross-complaint that the written contract did not express the intention of the parties, or if it did express the intention of appellant, she procured the execution thereof through fraudulent representations as to the meaning of the termination clause of the contract. Reformation of a contract for fraud or mistake is a proper matter for equitable jurisdiction, and may be set up by way of cross-bill in a suit at law based upon the contract sought to be reformed, and when so pleaded entitles the pleader to transfer the cause from a law court to a chancery court. Augusta Cooperage Co. v. Bloch, ante p. 133. The court did not, therefore, commit error in transferring the cause from the law to the chancery court.
The judgment rendered in this cause recites that it was heard upon oral evidence taken before the court. The evidence was not preserved in the manner required by law, and in the absence of the evidence this court must indulge the presumption that there-was ample evidence to sustain the decree of the lower court, as the. decree rendered was within the issues joined in the pleadings. Rowe v. Allison, 87 Ark. 206; Fletcher v. Simpson, 144 Ark. 436.
No error appearing, the decree is affirmed. | [
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Hart, J.
(after stating the facts). The theory of the court ¡below, and that upon which it is sought to uphold the judgment, is that a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. The general rule and numerous cases bearing on the question are collected and reviewed in Ann. Cas. 1915-C, at p. 367; 40 L. R. A. (N. S.) 201, and 3 A. L. R. pp. 1604 and 1608.
The general rule is that the claims and liabilities are fixed at the time of the death. With regard to these suits they must be brought by and against the personal representatives in their character as such. With regard to contracts made by the personal representatives themselves, in the course of administration, they are personal, although for the benefit of the estate. The reason is that the executor or administrator' has no right to make a contract for a dead man. Hence the representative becomes the contracting party and is individually liable. Bomford v. Grimes, 17 Ark. 567; Yarbrough v. Ward, 34 Ark. 204; Tucker v. Grace, 61 Ark. 410; and Bryan v. Craig, 64 Ark. 438.
In the application of the general rule in Altheimer v. Hunter, 56 Ark. 159, it was said that, it was not within the ordinary authority of a probate court to empower an administrator to continue the mercantile business of the deceased, and that an administrator is not empowered to bind the estate of á dead man by making a contract for him. The reason is that the death of a trader puts an end to his business and his executor or administrator has no authority to continue the business unless such authority is conferred by statute or by the terms of a will. The assets pass to the executor or administrator to be collected and applied to the payment of' debts, and the remainder to be distributed to the heirs or devisees.
Again in Altheimer v. Hunter, supra, the court said that an executor may continue the business of his testator when empowered to do so by will, but that he becomes personally liable for all tbe debts he contracts in the prosecution of his trust. This language was not necessary for a decision of the issue presented by the appeal in that case, but it is in accord with the general rule on the question as shown by the decisions cited in the .case notes above referred to.
A leading case on that phase of the question is Willis v. Sharp, 113 N. Y. 586, 4 L. R. A. 493. In that case it was recognized that a testator may authorize or direct his executor to continue a trade or to employ his assets in trade or business; and that such authority will protect the executor from responsibility to those claiming under the will in case of loss without his fault or negligence, and also entitle him to indemnity out of the estate for any liability lawfully incurred within the scope of the power.
The court said, however, that it is the settled doctrine of the courts of common law that a debt contracted by an executor after the death of his testator, although contracted by him as executor,binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. The principle upon which the case was decided was that an executor may disburse and use the funds of the estate for the purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. Austin v. Munro, 47 N. Y. 360.
Again in Exchange Nat. Bank v. Bettes, (Kan.) 3 A. L. R. p. 1604, it was held that the doctrine that the only effect of contracts made by an executor or administrator is to bind himself individually applies to a contract made' by the personal representative, in attempting to carry on and complete a building contract entered into by the decedent in his lifetime.
It was contended in that ease that an exception to the general rule would arise in case-of building contracts entered into by the decedent during his lifetime, which remained incomplete at the time of his death, and which the executor or administrator elected to complete. In that case the executor1 was not directed by the will of the testator to carry out his contract and the case falls within the general rule that the executor can not make a contract for a dead man without ¡being authorized to do so by will or by statute expressly conferring such power. The testator may not have had in milid any one in whom he might have placed confidence sufficient to authorize him to carry out his contract. He might have deemed it more prudent to risk the loss which his estate might suffer in damages by reason of his death preventing his completion of his own contract. In any event, his will did not give his executor power to complete his contract and for that reason he could only administer the estate in due course of law and distribute the assets to the devisees after paying the claims probated against the estate. As we have already seen, he could not make a contract for his decedent without some authority to do so.
The cases where the testator has directed his executor to carry on his business come nearer being like the present case than any to which our minds have been directed ; but such cases do not, in the opinion of the court, quite reach to the point here involved. In such cases the primary object of carrying on the business is for the profit to be made from continuing it. It is necessarily a new adventure and must be conducted by the executor independently of any direction or obligation on the part of his decedent. The executor would create new liabilities not expressly authorized by his decedent nor dependent upon any obligations incurred by him. Existing creditors and devisees under the will are not required to have the payment of their debts postponed to await the result of future adventures; and in such cases the executor cannot jeopardize the assets of the estate by making new and independent contracts, although they may be made for the benefit of the estate.
We think there is a marked distinction between a testator appointing a personal trustee in his will to carry on his business generally and directing his executor to carry out a contract, the obligations of which he had assumed in his lifetime and which would become a charge upon his estate. In the one case, the executor is directed to carry on a new business for profit and in the other to wind up an old one for the purpose of distributing the assets of the estate to those entitled to them.
There are material facts in the present case which did not enter into the discussion or decisions of any of the cases collected above. We recognize the general rule to be that the powers, duties and obligations of the executor or administrator with respect to the estate are defined and limited by the will or statute. He has no interest in the assets, and therefore cannot charge them by any independent and new contract unless authorized by statute or the will.
Hahn made his will while lying sick in the hospital and died four days later. At the timé, he was stricken, he had various drainage ditches in the course of construction under contracts which were binding upon him and which would become charges against his estate. There had been a material rise in the prices of labor and materials since he had executed the contracts. He had the necessary machinery on hand with which to carry out his contracts. He had on hand a large amount of supplies and materials and was actively engaged in carrying out his contracts when he became sick. Doubtless he recognized the serious loss to his estate if no provision was made by him for completing his contracts. In the fifteenth clause of his will, in explicit and comprehensive language, Hahn conferred authority upon his executors to complete his unfinished contracts after his death. His evident purpose was to put his executors in his place with like authority as himself in the premises. The trust sought to be accomplished was not primarily to make a profit for the estate out of his business, but to dispose of and realize upon the assets to the best advantage. The language used is very broad and comprehensive. The testator directed his executors to do all things necessary for the proper settlement of his estate, the payment of his debts, and the transaction of any old or new business which seemed advisable to them. They were empowered to execute, as in their discretion seemed proper, all deeds, leases or contracts, conveying either real or personal property in fee or as security or otherwise. The testator further directed that the acts of his executors in the premises should not be questioned and that neither of them be required to give bond.
Thus it will be seen that the testator had unlimited confidence in the honesty and business ability of his executors.
The language of the will is'even broader than that in Ferguson v. Ferguson, 148 Ark. 290, which we construed to authorize the executor to mortgage the land of his testator for the purpose of borrowing money to enable him to cultivate the land for the current year. The executors in the case at bar were made the personal trustees of the testator for the purpose of carrying out his contracts and thus preventing great loss to his estate. Evidently there was no intention of continuing the business for the mere purpose of profit. The grant of the power and the imposition of the duties upon the executors were inconsistent with their personal liability in the premises. Such a trust could not be carried on without the expenditure of large sums of money, and the idea that the executor was expected to assume the burden thereof and the estate not be liable is utterly inconsistent with the terms of the will and the relation of the executors to the estate. They were given absolute power to sell or mortgage the estate, and the will further directed that their acts in so doing should not be questioned. The idea that the executors should be personally liable for expenditures made by them in carrying out the trust is inconsistent with the’express power conferred upon them to make such contracts as they deemed necessary and to sell or mortgage the estate for that purpose.
The record shows that the plaintiff had been supplying. Hahn with coal to be used in carrying out his drainage contracts, and that it supplied the coal to his estate for the purpose of completing them. The plaintiff charged the estate with the coal sold, and the court is of the opinion that the peculiar circumstances of this case bring it within an exception to the general rule, and that the language of the will was sufficiently broad and comprehensive to empower the executors to make the contract sued on for the benefit of the estate. In short, the contract sued upon was made pursuant to express authority conferred by the will upon the executors to enable them to carry out contracts, the obligations of which had been incurred by the testator in his lifetime.
It follows that the court erred in finding for the plaintiff, and the judgment will be reversed and the cause remanded for further proceedings according to law. | [
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Wood, J.
The Constitution provides that: “Private property shall not be taken, appropriated or damaged for public use without just compensation therefor.” Const. 1874, art. 2, § 22. In Hot Springs R. Co. v. Williamson, 45 Ark. 429, it was contended that “where the fee of the streets is in the city, and it grants a right of way to a railroad company to construct its road along a street, pursuant to an act of the Legislature authorizing such use of the street, arid the track is laid in a proper and skillful manner,” the railroad company is not liable to abutting lot owners for consequential damages. In disposing of that question this court held (quoting syllabus) : “The owner of premises abutting upon a street in a city or town may recover from a railroad company the damages resulting to his premises by the construction of its roadbed or other structures on its right of way along the street in such manner as to obstruct access to the premises, though he have no interest in the fee of the street, and no .part of his premises be taken and the road or other structure be skillfully built.” That case rules this, and the learned and exhaustive opinion of Chief Justice Cockrill has left nothing more for us to say upon the question. But counsel for appellant, while conceding that the doctrine of that case “is perfectly sound,” yet says: “It can have no application to the facts in this case,” for, says he, “in the case at bar the railway company is not occupying a public highway. The public highway yet remains intact. In the case at bar-the plaintiff owns no fee in any part of the ground occupied by the dump of the railway, nor has he any property interest whatever in any portion of the company’s right of way; and in the case at bar it must be clearly understood, and all the time remembered, that the railway company not only had acquired its right of way, but had constructed its line of road upon that right of way twenty-five years before the plaintiff had acquired title to the property for which he now seeks to recover damages.”
A glance at the facts of the two cases will show that in the essential particulars upon which the doctrine in the Williamson case was announced there is no difference between that case and this. Reamed counsel for appellant mistakes the facts and the law when he says that in the Williamson case Williamson was the owner in fee of the soil to the center of the street upon which he owned lots abutting. The Act of Congress of March 3, 1877, only gave to the claimants of the lands of the United States government at Hot Springs a pre-emption right to the land occupied by them. The fee in the streets never passed to individual claimants. It was expressly reserved in the Government for the use of the public at Hot Springs. See Williamspn case, supra.
The decision in Hot Springs R. Co. v. Williamson, supra, upon the question now under consideration was bottomed upon the fact that Williamson was not the owner of the fee in the soil when the railroad company secured its right of way and built its road over it. Judge Cockrir'i, says: “Now, the fundamental law is, 'private property shall not be taken, appropriated or damaged for public use without just compensation.’ Under this enlarged provision, our inquiry is no longer limited to the question, has private property been taken for public use? and it is useless to recur to cases which are confined to the -interpretation of a clause containing that limitation only. A provision similar to that in our Constitution is found in the constitutions of Illinois, Colorado, Georgia, Nebraska, California, West Virginia and Pennsylvania, and in each of these States it has been held by the courts of last resort that this addition to the old provision against taking private property without compensation was intended to' afford redress where none could be had before;” citing many cases. And continuing: “An examination of the cases will show’ that it may now be taken as settled that where this provision prevails it is no longer necessary that there should be a physical invasion or spoliation of one’s land in order to give a right of recovery.” Had Williamson been the owner of the fee in the land taken, this language would have been inappropriate. Moreover, the cases cited in the opinion show clearly that the ruling was based upon the idea that Williamson was not the owner of the land taken, yet, as he was the owner, at the time the railroad was built, of land that had been injured by its construction, he was allowed to recover. Some of the strongest cases cited were those where the land damaged was not even situated on the street or highway taken for railroad purposes.
Counsel for appellant invokes the well-settled doctrine “that where a railroad company, having the power of eminent domain,has entered into actual possession of land necessary for its cor-, porate purposes, whether with or without the consent of the owner of such land, a subsequent vendee of the latter takes the land subject to the burden of the railroad; and the right of payment from the railroad company if it entered by virtue of an agreement to pay, or to damages if the entry was unauthorized, belongs to the owner at the time the railroad company took possession;” and he cites Roberts v. Railroad Co., 158 U. S. 1; McFadden v. Johnson, 72 Penn. St. 335; Schuylkill & S. Navigation Co. v. Decker, 2 Watts, 343; 2 Wood, Railroads, 994; McLendon v. Atlanta & W. P. R. Co., 54 Ga. 293; Allen v. Railroad Co., 107 Ga. 838; Toledo Ry. Co. v. Morgan, 72 Ill 155; Ill. Central R. Co. v. Allen, 39 Ill. 205; Indianapolis, Bloomington & Western Ry. Co. v. McLaughlin, 77 Ill. 275.
We have examined these authorities, and find that the doctrine is applied only in cases where there has been a taking of the property — where the corpus of the property was invaded and suffered some physical injury.
It is a well-established rule of law that the owner of land taken for railroad purposes is entitled, before or at the time of the taking, to compensation for all damages', present and prospective, which he sustains by reason of. the construction of the railroad. Const. art. 2, § 22; Kirby’s Digest, § 2899. Such damages include the value of that part of the land which is taken, as well as the damages consequent upon such taking to the residue. The doctrine invoked by appellant has its rationale in the presumption that, in the absence of proof to the contrary, the owner who is entitled to such compensation received same before or at the time his land was charged with the servitude; that this was considered and settled when the owner conveyed the land to the railroad or when the railroad acquired its title by condemnation; or that the' . owner was barred from claiming such compensation where the railroad had acquired title by prescription. 23 Am. & Eng. Enc. Law, 714.
For obvious reasons the doctrine urged could not apply to one whose property had never been taken, and who was not therefore entitled to set up a claim for damages as one whose property had been taken. By limiting the right to recover for damages to those whose property had been taken under the old rule prior to the adoption of the Constitution of 1874, great injustice and inequality often arose. As is shown by Judge Cockrill in Hot Springs R. Co. v. Williamson, supra, it was to obviate this that the constitutional provision was broadened so as to give compensation to the one whose property was damaged (although not taken) for public use, as well as to the one whose property was taken. It is under this provision, as construed by this court in Hot Springs R. Co. v. Williamson, supra, that appellee seeks and is entitled to recover. Under this provision the cause of action accrues when the damage is done, and accrues to the one who is the owner of the land at the time of the construction which causes the injury or damage.
As shown in one of the citations from Hot Springs R. Co. v. Williamson, to warrant a recovery in all cases where the property is damaged, but not taken, by the obstruction in a street, it must appear that there is some “physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.” Rigney v. Chicago, 102 Ill. 64.
This doctrine was recognized in Little Rock & H. S. W. Rd. Co. v. Newman, 73 Ark. 1, but in that case the complainant and appellant could not recover for the reason that he had not sustained any special damage. In this case the facts show that appellee sustained damage that was special and peculiar to him, not shared in by the general public.
Opinion delivered July 9, 1906.
Oscar L. Miles, for appellant.
1. The Williamson case differs essentially from this. Williamson owned a right of passage along, and across the street which was interrupted and destroyed by the construction of the road placed there after he bought his property. Greer bought, his property after the railway company had acquired its right of way, and had constructed its line of road; and when it modified its line of road, it remained on its right of way, and did not .invade the street in front of Greer’s house. In the Williamson case there was a new taking of land from which damage resulted ; in the Greer case there was none.
2. When Greer bought, and built his house upon the land, he was charged with notice (1) that a railroad was in operation on the right of way which it owned immediately in front of his premises; and (2) that a statute existed which authorized the railway company to change either its alignment or its grade line whenever, in the judgment of its board of directors, it saw fit to do so.
3. In the Williamson case there was a physical disturbance of a right, whereby he “sustained a special damage with respect to his property in excess of that sustained by the public generally.” In Greer’s case, the street and sidewalk remain intact. There was no obstruction placed in the street — no physical disturbance of a right.
Reid & Strait, for appellee.
The building of the embankment along the street ex adverso appellee’s premises produced special injury to him, as shown by the proof, which gave him a cause of action. Hot Springs Rd. Co. v. Williamson, supra; Abendroth v. Manhattan R. Co., 11 L. R. A. 634, notes.
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Battle, J.
Fannie Dooley brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages suffered by her from a fall through steps erected by the defendant over and across a fence constructed by it along its right of way; the injury being occasioned by the negligent failure of the defendant to keep the steps in repair. The defendant answered, disclaiming any right to or interest in the steps, and denying that it ever built the steps, or invited the public to use them, or that it ever undertook to keep them in repair, or that it was its duty to do so. The plaintiff recovered a verdict and judgment for $1,500. The defendant appealed to this court, and the judgment was reversed, and the cause was remanded for a- new trial. St. Louis, Iron Mountain & Southern Railway Company v. Dooley, 70 Ark. 389. On a second trial plaintiff recovered a judgment for $750, and the defendant appealed to this court the second time.
The evidence adduced in the trial of the cause tended to prove the following facts:
The steps were built in the year 1891. The appellee was injured in 1897. In 1890 the railroad company built a fence along its right of way and across a dirt road that had for many years been used as a public highway, and until the fence was built. Bars were at first placed in the fence across the public road, and remained there for some time, and were finally removed, and a wire fence constructed instead. The wires were frequently cut and removed, and this continued until the steps were built across the fence where it closed what had been the public road. 'After this the public continued to use it, as it had before, as a public way for pedestrians, and to use the steps as a part of the way. The steps and footway were near to and in the vicinity of the town of Arkadelphia, in this State, and were of frequent use, and conduced much to the public convenience. The steps were repaired by appellant one, one and a half, two and three years, and as late as six months, before the accident. They were torn down and removed a short time after appellee was injured.
The court instructed the jury in the case, at.the request of the plaintiff, as follows:
1. “If the jury believes from the evidence that the defendant built a fence along the side of its tracks, and that there said fence crossed a road not a highway, the defendant built and maintained steps over said fence, and permitted the public to use the same in crossing said fence, then they are instructed that the building of said steps was an implied invitation to the public to use the same as a highway, and in that event it became the duty of the defendant to use reasonable skill and diligence in building and maintaining the same; and if you further find that the defendant failed to use such skill and diligence in the building and maintaining, and that by reason of such failure, and without fault on her part, plaintiff was, while passing over the said steps, thrown down and injured, you will find in her favor.
2. “The jury are instructed, as a matter of law, that if a railroad company builds and undertakes to keep in repair, for the accommodation of the public, an approach to a private crossing,, it is liable for an injury resulting from a defect negligently permitted to exist in said approach, though the crossing is not one that they were bound by statute to keep in condition; and although they may find that the defendant was under no obligation .to build and maintain the steps in question, still if you find that' it voluntarily undertook to do so, knowing that it was a crossing in common use by the public, it in effect invited the use of said steps by the public, and is responsible to persons so using the same for any injuries received by them, which result from a negligent construction and failure to keep in repair.”
3. “If the jury believe from the evidence that the defendant built a fence along its track and across a road not a highway, that defendant erected or caused steps to be erected at the crossing of the fence and road, and by its continued course of conduct invited the public to cross its steps, then they are instructed that it was the duty of the defendant to erect and maintain the steps in a passable condition; and if it failed to do this, and plaintiff was injured by reason of such failure, and while she was in the exercise of due caution on her part, then you will find in her favor.”
And instructed them at defendant’s request, in part, as follows :
“The court instructs the jury that if they find from the testimony in this case that the steps on which plaintiff claims to have received her injury, over defendant’s fence, were not at a public crossing, but that the same was a mere private way which defendant had suffered to be used, then the plaintiff was a mere licensee on the defendant’s premises, and the defendant owed her no duty to keep its steps and fences, or anything pertaining to said way, in repair, or in a safe condition, to prevent plaintiff or others using them being injured.”
“The court instructs the jury that the fact that persons, for their own convenience, use a crossing in going to or returning from certain places, with the passive acquiescence of the railroad company, does not make the, crossing a public one, or create any new duty on the part of the railroad company. In such cases, the company’s only duty is to use ordinary care to avoid inflicting injuries upon the person using such crossing, and [it] is not liable for the mere negligent omission to keep such crossing in repair.”
“The court instructs the jury'that the occasional repairs of said steps, unless the same were kept up continuously and in such a way as to hold out to the public the invitation to use the same, and the implied agreement upon the part of the railroad that it was maintaining and keeping the same in repair, would not throw upon the company the obligation to keep them in repair, nor make them responsible for injuries resulting from their being out of repair; but in such case the plaintiff or others using them would do so at their own risk.”
“The court instructs the jury that if they find from the testimony that the defendant did not construct the steps over the fence, and if it has not, by its conduct in continuously repairing the same, and keeping them in fix, assumed the obligation or held them out to the public as being for public use, then defendant is not responsible for the use of them on the part of the plaintiff.
“The court instructs the jury that the burden of proof is upon the plaintiff to establish the fact that the railroad company constructed said crossing, and assumed the obligation to the public to keep the same in repair; and unless the proof shows this by a fair preponderance of all the evidence, your verdict should be for defendant.”
The bare permission of the owner of private grounds to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces or leads them to come upon his premises, he is liable in damages to them— they using due care — for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it, and he failed to give timely notice thereof to them or the public. This principle is applicable to the case before us. If the appellant constructed the steps, and expressly or impliedly invited, induced or led persons to cross the same, it is liable in damages to them for injuries occasioned by the, unsafe condition thereof, if it was the result of its failure to use ordinary care to keep the same in safe condition. If it was unwilling to incur this liability, it could have avoided it by removing the steps or giving timely notice of the condition to such persons or the public. Bennett v. Railroad Co., 102 U. S. 577; Sweeny v. Old Colony &c. Rd. Co., 87 Am. Dec. 644; Stewart v. Penn. Ry. Co., 14 Am. & Eng. Rd. Cases, 679, 681; Murphy v. Boston & A. Rd. Co., 133 Mass. 121; 18 Am. & Eng. Enc. Law, 1136, 1137, 1138, and cases cited.
The instructions of the court to the jury, construed together and with reference to the facts of the case, are substantially correct.
The court instructed the jury, in part, as follows:
“The court instructs the jury that the defendant railroad company was under no obligation at any time to build or maintain steps over the fence where plaintiff claims to have received her injuries. Nor were they under any obligation to keep the same'in a state of repair, even if they originally built the same. You are, therefore, instructed that the defendant is not responsible for any injuries plaintiff may have received by reason of the defective condition of such steps, even if the same was due to the defendant’s lack of attention to keep the same in repair.”
Appellant objected to the giving of this instruction, and saved its exceptions. The objection should have been sustained.. The instruction should not have been given. But, as it is obvious the jury did not follow it, and it was too favorable to appellant, it was not prejudicial; and as it should not have been .given, the failure of the jury to follow it was also not prejudicial. Ward v. Blackwood, 48 Ark. 396.
Affirmed. | [
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Riddick, J.
This is an appeal -from a judgment convicting the defendant, John Dow, of murder in the first degree, for killing his wife, Ella Dow, by shooting her.
The facts in brief are that John Dow and his wife, Ella Dow, who were negroes, lived at -or near Batesville. The parents of Ella Dow lived near Sulphur Rock, in the same county. Some short while before the killing, Ella Dow had abandoned her husband and returned to the home of her parents.
The witnesses for the State say that on the 4th day of April, Dave Peel, his wife, Priscilla Peel, his young daughter, Viola Peel, a son-in-law, Owen Kennedy, and Ella Dow,, his daughter, the wife of defendant, left their home and started toward the depot. They had gone but a short distance when they met the defendant, John Dow. He had with him a shotgun and a Winchester rifle. He asked them where they were going, and they told him. He then said to his wife: “Ella, get your clothes and let’s go home.” She declined to do so. Some few. more words passed when his father-in-law, Dave Peel, said to him: “John, you were here yesterday,'drawing your knife and making your threats; and if you do it again today, I will have you arrested.” The defendant made no reply to this, but said to his wife, “You are not going to live with me any more?” and she said “No.” Defendant then threw up his shotgun, and fired at her. He then shot his father-in-law. Both shots took effect, but neither of the parties were killed. His wife, in company with her young sister, ran up the railroad track. Defendant followed them, and his wife, seeing that she could not escape by flight, turned and came towards him with her hands up. He then shot her through the breast with the Winchester rifle, and when she fell to the ground fired another bullet through her head, producing instant death. He then shot at the fifteen-year-old sister. Afterwards he shot himself two or three times, but the wounds were not fatal. He and the other parties, except his wife, recovered.
The defendant testified in his own behalf that he went to Sulphur Rock to go hunting with one Fred Waugh; that Waugh had no gun, and he'took the extra gun along for Waugh’s use. He met his wife and the other parties. We quote his own words as to what followed: “I said, ‘Good morning, wife; do you want to go home this morning?’ and before she could say anything Mr. Peel said ‘No, by God; she isn’t going a step. I am going to take your God damn scalp!’ and I said, ‘Mr. Peel, I didn’t come for any trouble, and don’t mean to have any.’ He started toward me with his hand in his pocket like he was going to bring out a revolver or some other deadly weapon, and Owen Kennedy caught him, and said, “You are wrong. Suppose some one would take your wife, and keep her. You know white folks would string you up.’ And he turned around to me, and said, T mean every word I say.’ I started back to Sulphur Rock down the road I first came, and he followed behind a short distance. He was very close to me, and I started go around the fence, and the road led up the lane, and I started to turn, and he started to fire. The bullet did not break the hide. That deafened me, and I fell to my knees. I proceeded to try to get up again, and I got a blow on this shoulder. I fell back and caught on my hands, and the next lick I got was a blow right here, and that is all I know about it. ° I never knew any more after I got that lick.”
But this statement of the defendant that Dave Peel, his father-in-law, had made an assault upon him was contradicted by every witness on the part of the State at that time. All of these witnesses testified that the defendant met them armed with a shotgun and rifle, and that Dave Peel had no weapon and made no assault.
The motion for new trial sets out the errors relied on for reversal. Those exceptions, not brought forward in the motion for new trial, are waived, and will not be noticed.
The first ground set out in the motion for new trial is that the court erred in refusing to give three instructions asked by the defendant. The instructions relate to the offense of manslaughter ; but, even if they were correct, it is not error to refuse them under the evidence in this case, for there is no evidence in the case that would reduce the offense to manslaughter. It is well settled that mere words are not sufficient provocation to reduce a willful homicide to manslaughter, and no witness in the case testified that the wife of defendant did anything except refuse to go home with him. The court correctly instructed that no provocation on the part of his father-in-law would justify him in taking the life of his wife; and, even if defendant’s testimony was true, there was no other legal provocation.
There was some evidence that the defendant, at the time he shot his wife, was laboring under temporary insanity, but counsel for defendant did not ask for any instruction on that point, and the evidence convinces us fully that he was not insane, further than any one who is laboring under great passion may be said to be insane ; but passion of that kind, brought on without legal provocation, is no defense at law against the crime of homicide, and the court properly so held. Vance v. State, 70 Ark. 272.
If he was not insane, and the evidence, we think, shows that he was not, he was certainly guilty of willful and deliberate murder. While the charge of the court, taken as a whole, is not quite as clear as as it might have been,, we see nothing in it that could have prejudiced the rights of the defendant.
The defendant testified in his own behalf that he had ne^er mistreated his wife, that he worked for her, and was devoted to her. The State was allowed to prove by the witness Yancey that the defendant and his wife had lived on his place, and to ask him if defendant beat his wife. Yancey replied that he could not say of his own knowledge; that he heard a noise where defendant and his wife were; that witness went there, and defendant’s wife complained in his presence that he had abused her, and defendant said nothing. In view of the evidence introduced by defendant as to his relations with his wife, and that the separation between them was caused by her parents, we think this evidence was proper. If testimony relating to his prior treatment of his wife was improper, defendant can not complain, for he raised the issue by introducing testimony to the effect that he had never mistreated his wife, and that her parents were the cause of the separation. If there was error in such testimony, it was invited by the defendant. '
Counsel for appellant has in his brief argued this case with much earnestness and force, but we can not agree with him-that the evidence does not support the verdict. On the contrary, we are clearly of the opinion that the verdict was right. The evidence is very convincing to us, and we see nothing that would justify us in disturbing the judgment. It is therefore affirmed- | [
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Wood, J.,
(after stating the facts.) This was an «action under section 6804 of the Digest (Kirby’s) for failing to furnish cars. That section among other things provides: “It shall be unlawful for any person or corporation engaged alone or associated with others in the transportation of passengers or property by railroad' in this State, as freight or express, * * * to make any preference in furnishing cars or motive power. And all persons or corporations engaged as aforesaid shall furnish, without discrimination or delay, equal and sufficient facilities for the transportation of passengers, the receiving, loading and unloading, storing, carriage and delivery of all property of a like character carried by him, them or it; and shall perform with equal expedition, and at uniform rates, the same kind of services connected with the contemporaneous transportation thereof as aforesaid,” etc. Section 6808 provides the penalty for a violation of the act.
• The 'statute did not intend to make the duty of carriers to furnish transportation facilities an absolute one, for it would be unreasonable to conclude that the Legislature intended to impose upon them duties that under certain conditions could not be anticipated by them, and which it would be impossible to perform, and yet for such nonperformance to exact of them heavy penalties. The statute under consideration is but declarative of the requirements of the common law as to the duty of furnishing transportation facilities. After declaring what that duty is, it prescribes the penalty for its nonperformance.
“A common carrier for such goods as he undertakes to carry, is bound to provide reasonable facilities of transportation to all 'shippers at every station who, in the regular and expected course of business offer their goods for transportation. The carrier is not required to provide in advance for any unprecedented and unexpected rush of business, and therefore will be excused for delay in shipping, or even in receiving goods for shipment, until such emergency can in the regular and usual course of business be removed.” Little Rock & Ft. Smith R. Co. v. Oppenheimer, 64 Ark. 271, 279; 4 Elliott, Railroads, § 1470; Hutch. Car. § 292; 6 Cyc. 372, note 2.
To be sure, the carrier is liable where he fails entirely to furnish transportation. But the liability of the carrier under the act? of March 11, 1899 (Kirby’s Digest, § 6804), is founded, not so much- on the inadequacy of the facilities at his command to supply the demands of shippers, as on his refusal or failure to make the facilities, which he has, available to all who are similiarly situated, without discrimination or delay. For the act makes it the duty to furnish without discrimination or delay. So, if the carrier, by reason of some unforeseen and unusual or unprecedented condition in the traffic, is unable to furnish cars for the accommodation of all shippers, he must, in order to escape liability, under this statute, furnish such- as he has to all shippers without discrimination or delay.
It is conceded that appellant failed to furnish to the shippers of cotton seed at Rector all the transportation needed, but its failure to do this is accounted for in a way to exempt it from liability according to the doctrine above mentioned. So the question at last is, did appellant discriminate against the appellee in furnishing what cars it could procure ? In Little Rock & F. S. R. Co. v. Oppenheimer, supra, and Choctaw, O. & G. Rd. Co. v. State, 73 Ark. 373, it is shown that, to constitute actionable discrimination in the matter of failing to furnish transportation facilities, there must, be some undue or unjust preference, something in the facts tending to show that the conduct of the carrier was superinduced by a desire to favor one shipper over another, to give an unjust preference to one over the other, and thereby to attempt to create a monopoly — to “pull down one man’s business while building up another’s.” But if the facts show that “those who are in substantially the same situation with reference to the carrier are treated with the same consideration and accorded the same privileges, there can be no actionable discrimination.”
Now, here the shippers were in substantially the same situation, and, it seems to us, the uncontradicted facts show that they were given substantially the same facilities for transportation during the cotton season. In September appellee was given five cars, and the Rector Gin Company, a rival shipper, was given six; but in November the appellee received ten cars, while the Rector Gin Company received only seven, and in the month of October, appellee and its rival each received seventeen cars. True, the proof shows that from the 3d to the loth'of October appellee received only three cars while its rival received six, but during that entire month they each received the same number. Had appellee received cars from the 3d to the 10th of October to make it equal to the Rector Gin Company, it would have been entitled to only one car more, as there could not he fractional cars. It is in the very nature of the business impossible for mathematical precision to be observed in the manner of the distribution of cars to the various shippers at any given station. This necessarily results from the difference in the demands that will be made by different shippers, although they may be in substantially the same situation with reference to the carrier and the commodity to be shipped. The undisputed facts here convince us that there was no such difference as to constitute a discrimination, within the purview of the above statute.
Reversed and remanded for a new trial. | [
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Hart, J.
Elliott Tallman prosecutes this appeal to reverse a judgment of conviction against him of malicious mischief charged to have been committed by killing a dog belonging to Roger Crowe.
This is the second appeal of this case, and the opinion on the former appeal is reported in 151 Ark. 438, under the style of Tallman v. State.
Upon the remand of the case for a new trial, Tail-man filed a petition for a change of venue, supported by the affidavits of two witnesses in the manner prescribed by .the statute. Both of the witnesses testified that they were well acquainted with the inhabitants in all parts of the northern district of Arkansas County, and had heard a great many of them talk about the case. Each of the affiants testified that the minds of the inhabitants of said district and county were so prejudiced against Tail-man that he could not obtain a fair and impartial trial therein.
On cross-examination each of the affiants stated that, while he had talked with a good many of the inhabitants of said district and county, he did not pay any-attention, to the township or.townships that such inhabitants came from, -and did not remember where they resided. It may have been that the persons with whom the affiants talked lived in one part of the district and that the affiants did not know whether or not the minds of the inhabitants of the remaining part of the district were so prejudiced against Tallman that he could not get a fair and impartial trial therein.
The court found this issue against the defendant, and made an order denying his motion for a change of venue. There was no error in this respect. The trial court has a large discretion in a matter of this kind, and its judgment refusing a change of vénue will not be disturbed unless there is an abuse of the court’s discretion. The court'might have found from the examination of the supporting witnesses that they did not have sufficient knowledge of the state of mind of the inhabitants throughout the whole northern district of Arkansas County to know whether the defendant could obtain a fair and impartial trial therein and were not credible persons within the meaning of the statute. Dewein v. State, 120 Ark. 302, and Jordan v. State, 141 Ark. 504.
But it is insisted that the judgment of the court denying the defendant a change of venue is reversible error because he asked the supporting witnesses if they believed that it would be impossible to find twelve men in the northern district of Arkansas County who would not deliberately perjure themselves in order to sit on a jury to try this defendant.
The court should not have asked this question. This was not the test. The question was whether or not the minds of the inhabitants of the northern district of Arkansas County were so prejudiced against the defendant that he could not obtain a fair and impartial trial therein before a jury selected in the usual way.
It does not follow, however, that the action of the court constitutes reversible error. It is well established in this court that error cannot be assigned upon mere reasons given by the trial judge for the judgment rendered. The judgment may be right and the reasoning wrong. The reasons of the trial judge are no part of the judgment, and consequently are not open to attack by assigning them as error. The only reversible action of the court in deciding the motion for a change of venue is the judgment which the court rendered.
The record of the proceedings • in the trial court showed that the judgment denying the defendant’s motion for a change of venue was based upon legal testimony, and it is therefore not subject to reversal. Merritt v. Hinton, 55 Ark. 12; Wilmans v. Bordwell, 73 Ark. 418, and Polk v. Stephens, 126 Ark. 159.
It is also insisted that the evidence is not sufficient to warrant a conviction. We cannot agree with counsel in this contention. On the former appeal it was held that, under our statute, in order to constitute malicious mischief by killing a dog, it need not be shown that the act was done with malice against its owner, but that it was sufficient to constitute the offense to show malice against the animal itself. The court said that the gist of the offense in this State is the killing of the animal wilfully, maliciously or wantonly.
The testimony on the part of the State shows that the defendant was afflicted with insomnia and got up before' daylight to take a walk near his home in the city of Stuttgart. Crowe was his neighbor and owned several dogs. The dogs came out and barked at the defendant. .The defendant went back into his house and came back with his shotgun. The-dogs barked at him again, and he shot and killed one of them. This evidence warranted the jury in finding a verdict of guilty.
It is true that the defendant himself testified that the dogs came toward him in a threatening manner, and. that he believed that they were going to bite him. He went back and got his shotgun so that he might be prepared to defend himself in case they renewed their attack, and shot into the bunch and killed one of them, when they again attacked him.
The testimony of the defendant, however, did not as a matter of law overcome the evidence for the State. The jury might not have accepted his testimony as altogether true. The dog killed was a bird-dog belonging to his neighbor, and the jury might have found that the defendant in his nervous condition was irritated at the d.ogs barking at him, and that he went back and got his shotgun for the purpose of shooting them if they barked at him again. Hence the jury might have inferred malice towards the dog from the circumstances of the killing.
The next assignment of error is that the court refused to give the defendant’s instruction No. 3, which is as follows:
“You are instructed that, while a negligent or careless killing of the dog would be unlawful, no inference or presumption in law can be indulged that such careless or negligent killing was either wilful, malicious or wanton, even though the killing was done with a deadly weapon, but that the State must prove, beyond a reasonable doubt, that appellant killed the dog- either wilfully, maliciously or wantonly.”
There was no' error in refusing to give this instruction. The court read to the jury the statute on malicious mischief. He then told the jury that before it could convict the defendant the State must prove beyond a reasonable doubt that the killing was malicious, that is, that it was done needlessly, wantonly and in a spirit of malice, which denotes an act done cruelly, wickedly, or one prompted by a wicked and corrupt motive and indicates a mind fatally bent on mischief. It is well settled in this State that a court need not multiply instructions on the same point, and the matters embraced in the refused instruction were covered by the instruction given as indicated above.
Error is also assigned upon the refusal of the court to give other instructions asked by the defendant. We do not deem it necessary to set out these instructions. We have carefully examined them and find them completely covered by the instructions given by the court. The instructions given by the court were full and complete, and were in accordance with the construction of the. statute by this court in the opinion on the former appeal.
The court, in express terms, told the jury that the defendant is presumed to be innocent, and that, before it oould find him guilty, the State must prove beyond a reasonable doubt that the defendant shot the dog wilfully, maliciously and wantonly. In addition the court told the jury that these words meant that the act was committed not merely voluntarily, but with a bad purpose and an evil intent, recklessly and unnecessarily.
The court further instructed the jury that the defendant had a right to pass ovér his own premises and the streets and sidewalks adjacent thereto at all times, freely and without molestation, and that if the defendant had reasonable grounds to apprehend an attack from the dog he had a right to protect himself 'and kill the dog if necessary to prevent the attack. Thus it -will be seen that the instructions were as fair to the defendant as he could ask, and the court was not required to repeat the substance of instructions given in varying forms.
Finally, it is insisted that the court erred in refusing to read the entire section of the statute with regard to the malicious killing of a domestic animal.
Sec. 2511 of Crawford & Moses’ Digest, after defining malicious mischief and the punishment therefor in a criminal prosecution, provides that the accused so convicted shall be liable in damages for the animal so killed or wounded as in the preceding section.
Sec. 2509 provides that the jury trying the ease shall assess 'the amount of damages, if any actuad damage has occurred, and that the court shall render judgment in favor of the party injured for threefold of the amount so assessed by the jury.
The court instructed the jury that if it should find the defendant guilty it must also find the value of the dog he was charged with killing. The error complained of is that the court refused to tell the jury that treble damages would be assessed under the' statute.
There was no error in this respect. This is' a statutory offense, and it provides a statutory remedy, and that when a defendant is found guilty the court shall render judgment for treble damages. Under the provisions of the .statute the jury has nothing to do with the penalty. Its duty is .confined by the statute to the finding of the damages actually suffered by the owner of the animal, and it is made the duty of the court to render judgment in favor of the party injured for threefold the amount so assessed by the jury.
We find no prejudicial error in the record, and the judgment must be affirmed.' | [
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Hart, J.
The State of Arkansas, upon the relation of the prosecuting attorney for Jefferson County, charged S. B. Adams with maintaining a public nuisance in said county by selling intoxicating liquors in a storehouse occupied by him in Pine Bluff, Ark.
Upon the evidence introduced, the circuit court found that Adams was maintaining his house as a public nuisance as aforesaid, and he was enjoined from keeping or selling intoxicating liquors therein. Subsequently it was shown to the circuit court that Adams had violated the judgment of the court by continuing to keep and sell intoxicating liquors in his said house. Thereupon Adams was adjudged guilty of contempt, and to reverse that judgment he has duly prosecuted this appeal.
Appellant’s sole ground for reversing the judgment is that the circuit court had no jurisdiction to .enjoin him from selling intoxicating liquors in his storehouse in Pine Bluff, Arkansas, and that consequently he could not be guilty of contempt of court in disobeying said order.- The judgment of the circuit court was based upon our statute defining certain public nuisances and providing for the abatement thereof.
Sec. 6196 of Crawford & Moses’ Digest provides in substance that engaging in the sale of intoxicating liquors in violation of the laws of the State in any building in the State is declared to be a public nuisance and may be abated under the provisions of- the act.
Sec. 6197 confers concurrent jurisdiction upon the chancery and circuit courts of the State to abate such nuisance.
Section 6201 provides that if the existence of the nuisance be established an order of abatement shall be entered as a part of the judgment or decree of the court, and that the judgment or decree shall perpetually enjoin the defendant from maintaining such nuisance.
We have already had occasion to construe this statute in the cases of Hickey v. State, 123 Ark. 180, and Marvel v. State, 127 Ark. 595.
In the former case the proceedings to abate the nuisance were in the circuit courtand, although the case turned upon other issues, the jurisdiction of the circuit court was recognized.
In the latter case it was held that chancery courts at the time of the adoption of our present Constitution had jurisdiction to abate a public nuisance by injunction, and that the act in question did not confer upon the chancery courts of this State any additional jurisdiction.
The correct method of ascertaining what jurisdiction the circuit courts have in civil and criminal cases is to see what cases or class of cases are confided by the Constitution exclusively to the jurisdiction of other tribunals, and the great residuum belongs concurrently or exclusively to the circuit courts. State v. Devers, 34 Ark. 188, and Whitesides v. Kershaw, 44 Ark. 377, and Payne v. Rittman, 66 Ark. 201.
It will be noted that the case of Marvel v. State, 127 Ark. 595, does not hold that chancery courts have exclusive jurisdiction to abate public nuisances.
It follows from the authorities cited above that the circuit court would have concurrent jurisdiction to abate such public nuisance, and restraining the defendant from continuing to use his house for the illegal sale of intoxicating liquors would be the most effectual means to abate the nuisance.
There are many instances of the circuit and other courts having concurrent jurisdiction. For instance, our statute gives the circuit court jurisdiction in cases of partition, and the court has held that this remedy is cumulative only, and that the statute does not take away the original jurisdiction of chancery courts. Moore v. Willey, 77 Ark. 317.
Again it is held that chancery courts have concurrent jurisdiction with that given by statute to the circuit courts in the enforcement of the mechanics lien laws of the State. Carr v. Hahn, 126 Ark. 609.
So too in Gans v. State, 132 Ark. 481, the court held that concurrent jurisdiction is not inconsistent; and therefore that jurisdiction conferred upon one court does not operate to oust other courts otherwise possessing it.
In Eilenbecker v. Plymouth County, 134 U. S. 31, it was held that the district court of a county in Iowa is empowered to restrain a person from selling intoxicating liquors in the county and that disobedience of the order subjects the guilty party to proceedings for contempt and punishment thereunder.
In discussing the question Mr. Justice Miller, who delivered the opinion of the court, said: “If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether1 at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil, as to punish the offense as a crime after it has been committed. ’ ’
As we have already seen, the Legislature had the power to make a house where intoxicating liquors are kept and sold a public nuisance and to confer concurrent jurisdiction upon the circuit court to abate such public nuisance. The remedy by injunction would in many cases be the most effectual method of abating such public nuisance, and we are of the opinion that the Legislature might confer upon the circuit court the power to abate the nuisance by that method.
If the circuit court had the power to abate the nuisance by injunction in the first place, it is certain that it would have power to punish the appellant for contempt for a disobedience of its order.
Therefore the judgment will be affirmed. | [
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Humphreys, J.
On the 13th day of September, 1920, appellant instituted suit against her husband, appellee, in the Pulaski Chancery Court to dissolve the bonds of matrimony existing between them upon statutory grounds and for a part of his property, both real and personal, in lieu of her dower interest therein. Appellee filed an answer denying the alleged causes for divorcement, and a cross-bill seeking cancellation of deeds executed to him in the years 1910 and 1916 conveying certain real estate to appellant, alleging that it was conveyed to herein trust, and for an accounting of the proceeds of other lands likewise conveyed to her in the year 1916, but sold by her to innocent purchasers. Appellant filed an an.swer to the cross-bill, admitting that deeds were executed by appellee in the years 1910 and 1916, conveying certain real estate to her, but denying that it was conveyed to her in trust. The cause was submitted to the court upon • the pleadings and evidence, which resulted in-a decree granting appellant a divorce and vesting in her, in lieu of dower in appellee’s property, the furniture and jewelry left in her possession when the abandonment occurred, and the real estate, and proceeds of that part sold by her, which appellee had conveyed to her in the years 1910 and 1916. An appeal has been prosecuted to this court from that part of the decree refusing to endow appellant of an interest in the personal and real property held by appellee in his own name at the time the suit was instituted. As no appeal has been taken from the decree annulling the marriage contract, it is unnecessary to incorporate in this opinion the marital infelicities inducing the separation.
Appellant and appellee lived together for more than twenty years, during which time a large estate was accumulated through their joint efforts. In addition to performing her household duties, appellant assisted appellee in the conduct of his business. In the year 1910 appellee conveyed to appellant by warranty deed their home place, the same being lot 6, block 46, in the city of Little Rock. In October, 1915, appellee brought a suit against appellant for divorce, 'but it was dismissed in November, a reconciliation having been effected. In June and August, 1916, while appellant and appellee were living together, lot 5, block 46, city of Little Eock, lots 11 and 12, block 5, Eatterree’s Addition, lot 10, block 20, Kimball’s South Park Addition, and lot 4, block 12, DuVall’s Addition, all being additions to Little Eock, were conveyed by appellee to appellant by warranty deeds. All the deeds were absolute upon their fa&a, containing no provision of trust. Subsequently appellant sold the property in Kimball’s South Park Addition and DuVall’s Addition for a little less than $10,000 net to her. Appellee testified that he made each of the conveyances to his wife for the purpose of protecting himself against his creditors should he fail in business, and that on each occasion she promised to convey the property back to him when he wanted it or should request her to do so. Other witnesses corroborated his testimony in this regard. Their evidence was contradicted by appellant, who testified that the home place was conveyed to her as a birthday present, and the property conveyed to her in 1916 was conveyed in fulfillment of a peace offering made when her husband obtained a reconciliation and dismissal of the divorce suit instituted 'in the fall 'of 1915. The decree of the court awarded appellant certain furniture retained by her at the time of the separation and the real estate conveyed to her in the years 1910 and 1916, and the proceeds therefrom, in lieu of her dower interest in the rest of her husband’s property. The effect of this decree was to graft an express trust upon the several deeds by parol evidence. This was error. Harbour v. Harbour, 103 Ark. 273; Carpenter v. Gibson, 104 Ark. 32.
There was no allegation or proof tending to show that appellant, through fraud or duress, or' under circumstances which rendered it inequitable for her • to hold the les’al title and enjoy the beneficial interest therein, obtained the deeds. So equity should not impress a constructive trust upon the property in favor of appel lee. There is not a hint in the pleadings or evidence that appellant procured the deeds through wrongdoing on her part or that the conveyances were made to her in contemplation of a separation. On the contrary, the record reflects that the conveyances were made in contemplation of a continued happy and harmonious marital relationship. Under the allegations and the evidence the conveyances should have been treated as gifts. Section 3511 of Crawford & Moses’ Digest, making provision for a division of property where a divorce has been awarded, does not apply to gifts made by the husband to the wife for love and affection. The decree deprived appellant of her dower interest in the property, both real and personal, on account of gifts theretofore made to her by him, and for that reason was erroneous. The decree of the court should not have taken into consideration these gifts in assigning property in lieu of appellant’s dower interest in the estate of her husband. The decree is therefore reversed and the cause remanded, with directions to award appellant property in lieu of dower in the estate owned by appellee, not including the property conveyed prior to the separation by appellee to her. | [
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Wood, J.
The appellants were jointly indicted for the crime of grand larceny, which it is alleged was committed as follows: ' “The said George Kellogg and John Oliver on the 24th day of October, 1919, in the county and district aforesaid, unlawfully and feloniously did take, steal and carry away six hundred and seventy-one pounds of seed cotton of the value of one hundred dollars, the personal property of A. C. Core.”
The appellants were placed on trial on this indictment, and the jury returned the following verdict: “We, the jury, find the defendant not guilty of stealing A. C. Core’s cotton.” The court' thereupon (directed that “the defendants’ case be returned to the grand jury for investigation.” The grand jury on the following day returned into court an indictment charging Cleve Hickson, John Oliver and George Kellogg of the crime of grand larceny committed as follows: (Here the indictment, after adding the name of Cleve Hickson, is in precisely the same language as that set forth above except it names the property as that of A. E. Core.) To the last indict ment the appellant entered a plea of former jeopardy, which in due form set out that the appellants herein had been tried and acquitted “of the identical offense for which they were here charged.”
The court overruled their plea, and they were put upon trial upon the last indictment.
It could serve no useful purpose to set out in detail the testimony which was adduced to establish the charge on the part of the ¡State. It consisted of circumstantial evidence. The testimony tended to show that on Friday night, October 24, 1919, A. E. Core left some seed cotton in a wagon on a road which led from Paris to Fort Smith. During the night 671 pounds of the cotton were stolen of the value of $100. The theft occurred in Logan County, Arkansas. The following morning Core and others made an investigation and found where a car had stopped about fifty feet east of where the wagon stood which contained the cotton. The cotton was scattered from the wagon to the place where the car had been, and there were tracks of three persons at the place where the cotton was taken from the wagon to the oar. The tracks of the car indicated that the back casings were “Diamond” tread, the right front casing a “Horseshoe” tread, and the left front casing a ‘ ‘ Goodrich’ ’ tread. These car tracks were traced into the town of Paris and where they turned north at the Catholic church going in the direction of Cleve Hick-son’s. Some time after midnight, October 24th, a car was driven to the home of Cleve Hickson and stopped. The next morning a Dodge car was seen standing at the home of the appellant Oliver having on its wheels casings making tlie same kind of tracks made by the car in which the stolen cotton is supposed to have been carried away. The appellants were seen in a Dodge car belonging to Cleve Hickson in the immediate neighborhood where the cotton was stolen between midnight and four o’clock in the morning on the nigijit of October 24, 1919. The stolen cotton had a peculiar small brown seed. The seed of cotton found at Hickson’s place was the same
The appellants admitted that they were in possession of Cleve Hickson’s car from Thursday morning until Saturday morning covering the time when the cotton was stolen. The testimony on behalf of the appellants tended to establish an alibi. On its own motion the court instructed the jury as follows: ‘ ‘Circumstantial evidence is legal evidence, and is to be considered by you in determining whether or not the defendants are guilty of this offense. When circumstances are so thoroughly connected as to form a chain that convinces you beyond a reasonable doubt, it will be your duty to convict upon circumstantial evidence the same as regular proof.” The jury retired to consider its verdict, and afterwards returned into court and asked the court if it could convict the defendants for grand larceny for stealing the cotton at any other time than the night they were seen on the road — the night when the cotton was taken. Thereupon the court instructed the jury as follows: “That is a question that you gentlemen must determine, and not me. I said to you that if you believed beyond a reasonable doubt that the defendants took, stole or carried away the cotton, the property of A. E. Core, of greater value than $10, then it would be your duty to convict the defendants of grand larceny and fix their punishment in the State Penitentiary for some period of time not less than one year or more than five years, if they took, stole and carried away any cotton belonging to A.E. 'Core within three years next before the finding of the indictment.” The appellants duly objected and reserved their exceptions to the rulings of the court and in overruling their plea of former jeopardy. The jury returned a verdict finding the appellants guilty and fixing their punishment at one year in the State Penitentiary. Judgment of sentence was pronounced against them according to the verdict, from which is this appeal.
1. The court did not err in refusing to sustain appellants’ plea of former jeopardy. This court has repeatedly ruled that “in indictments for larceny allegation of ownership is material and must be proved as al leged.” Mooney v. State, 137 Ark. 410, and cases there cited. Fletcher v. State, 97 Ark. 1; Wells v. State, 102 Ark. 627; McLemore v. State, 111 Ark. 457; see also McIntosh v. State, 108 Ark. 418, where we said: ‘ ‘Correctly naming the owner is essential' to identify the stolen property”.
In the first indictment on which appellants were tried the property was described as the personal property of A. C. Core, and the jury returned a verdict specifically finding that the appellants did not steal A. C. Core’s cotton. Under the first indictment, therefore, the appellants could not have been convicted on proof that they had stolen the property of A. E. Core. Upon such proof there would have been a material and fatal variance between the allegations and the proof. “A conviction or acquittal under a charge of larceny from one person will not operate as a bar to a subsequent prosecution of larceny from another person, unless the larceny, although from different owners, was but a single act or transaction, or the persons named in the two indictments are in fact one and the same.” 14 Stand. Ency. Proc. p. 603.
The appellants, in their plea of former jeopardy, set up that under the former indictment they had been tried and acquitted on the same offense as that contained in the second indictment upon which they were about to be tried, but there was nothing in their plea to show that A. C. Core and A. E. Core are one and the same person, and we do not discover any evidence to that effect in the record. Since the allegation of ownership was material and essential to the identification of the stolen property, in the absence of any proof that the initial “C” in the first indictment was but a misnomer and that it should have been “E” and was intended to be and should have been “E” in order to describe A. E. Core instead of A. G. Core, we are unable to conclude that the trial court erred in finding, as he must have found, that A. E. Core and A. C. Core were not one and the same person. It is stated in Fincher v. Hanegan, 59 Ark. 151: “The law knows but one Christian name. Entire omission of a middle letter is not a misnomer or a variance. The middle letter is immaterial, and a wrong letter may be stricken out or disregarded.” See also State v. Smith, 12 Ark. 622. But this is only true, as the cases show, when the mistake in the middle name is made in designating the same person. When the middle name is used to designate and distinguish different persons, then it becomes very material. This distinction was noted by Judge Battle in Fincher v. Hanegan, supra, when he said: “But this (the middle name) was immaterial unless there •were more than one person of the same name, and the middle name or the initial thereof was unnecessary to identify the Henry Ward who had executed it.”
Here we take it that the court must have found on the trial of the first indictment that A. G. Core was a different person from A. E. Core. At least it must have been proved that the cotton belonged to A. E. Core instead of to A. C. Core, for the eourt.found it necessary to order that “the defendants’ case be returned to the grand jury for investigation” and the insertion of the true name of the owner of the property. See Blankenship v. State, 55 Ark. 244; Andrews v. State, 100 Ark. 184.
It does not affirmatively appear that the prosecution in this case is for the same offense as that for which the defendants have already been acquitted. Therefore, the court did not err in overruling appellant’s plea. Turner v. State, 130 Ark. 48.
2. There was no error in the instruction which the court gave the jury in response to the inquiry when they returned into court while considering their verdict. There was no election upon the part of the State to narrow the investigation of the offense charged in the indictment to the particular day named in the indictment, and there was no effort on the part of the State to prove that the appellant had stolen any other seed cotton of A. E. Core than the particular 671 pounds alleged in the indictment. That was the kind of cotton specifically described in the indictment. Under this indictment, if the court had instructed the jury that they could consider the theft of any other kind of cotton than that specifically described, it would have been error. But such was not the inquiry of the jury, and such was not the instruction of the court. The jury inquired if they could convict the appellants of stealing the cotton at another time than the night they were seen on the road — the night the cotton was taken. The court, in response, told the jury that the offense charged in the indictment covered a period of three years next before the finding of the indictment. In McLemore v. State, supra, the accused was charged with larceny of a cow belonging to one Murphy, with no specific description. The evidence on the part of the State was directed to the larceny of a cow with a “crumpled horn”, and the State elected to prosecute on the charge of stealing this particular cow. But in that case the court instructed the jury that in arriving at their verdict they were not to confine themselves to the cow with the “crumpled horn,” but that they should find the defendant guilty if they found that within three years before the finding of the indictment he did steal and carry away any cow, the property of Murphy, etc. "We held that the giving of the instruction, under the indictment and proof, was erroneous.
But the facts of the case at bar, as we have seen, differentiate it from the above case, and the court did not err in instructing the jury in this case that if the appellants took, stole and carried away the cotton of A. E. Core within three years before the finding of the indictment it would be their duty to convict. The jury may have been convinced, and their inquiry and finding indicates that they were convinced, that the appellants stole the cotton, but they may or may not have found that the theft occurred on the particular night they were seen on the road, as testified by the witnesses. In other words, the jury may have concluded that the witnesses were mistaken as to the particular day-or hour when the theft occurred, but that the particular cotton was stolen as charged within three years of the finding of the in dictment. These were matters within the province of the jury, as the court properly informed them.
3. Instruction number 3 was not happily phrased, but there was no specific objection to it. There was no inherent vice in the instruction. On the contrary, the law was substantially declared in conformity with the decisions of this court in Carr v. State, 81 Ark. 589, and Lackey v. State, 67 Ark. 416. See also Gill v. State, 59 Ark. 422.
4. It cannot be said as a matter of law that there was no evidence to sustain the verdict. On the contrary, the issue of the guilt or innocence of the appellants was one of fact for the jury, and their verdict on this issue is conclusive here. There is no reversible error.
The judgment is therefore affirmed. | [
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Hart, J.
(after stating the facts). We are of the opinion that the chancellor was right in holding that the conveyance of the Arkansas lands hy William English and C. 0. Fairbank and Mary Edna Bock to Isaac Greenizen, although absolute on its face, was intended as a deed of trust to secure the Fairbank estate in the amount owed it by English, and that the title was placed in Greenizen to enable him to sell the lands and. to account to the parties for their respective interests after the mortgage indebtedness was taken out of the share of the lands owned by William English. This was the construction put upon the instrument by the parties themselves. Greenizen was allowed to take charge of the lands and to begin to sell the same, and to account to the parties for the proceeds according to their respective interests, and to apply the proceeds from the sale of the interest of English towards the satisfaction of his mortgage indebtedness to the Fairbank estate. There is no dispute between the parties as to their respective interests in the lands, or to the principal of the mortgage indebtedness of English to the Fairbank estate.
Counsel for appellant, however, contend that there is an error against English in a large amount on account of interest charges. In other words, it is claimed that the court erred in allowing interest in favor of the Fair-bank estate against English calculated at the rate of 6% per annum on monthly or quarterly balances.
According to the testimony of English, J. H. Fair-bank, in his life time, promised to adjust the interest account between them on an equitable basis.
A. M. McQueen, under power of attorney from the executor, was in full control of the estate of J. H. Fair-bank, deceased, until May, 1916. He had also been in charge of the Fairbank estate from 1892 to the time of the death of J. H. Fairbank. According to his testimony, accounts were rendered by the 'bank to English at stated intervals. These accounts showed that 6 per cent, per annum was charged English. This was the lowest and the customary bank rate. It was the general banking custom in Ontario to compound interest monthly on overdrafts, but, where notes were given to cover overdrafts, the custom was to compound the interest quarterly. English’s bank pass book and the statement of his accounts was submitted to him periodically, perhaps monthly, and the accounts so submitted to English included the interest charges; and at no time while McQueen was bank manager did English in person, or through another, make any complaint about the interest charges.
Grreenizen testified that English never made1 any complaint to him that the interest charged on his accounts was excessive, but, on the contrary, admitted the correctness of his accounts on more than one occasion.
C. 0. Fairbanks testified that he made no agreement with English relative to any matter in the case. It was shown that these bank statements were regularly submitted to English’s agent in Canada while English was in Arkansas.
It also appears from the record that English made periodical trips back to Ontario. It does not appear that McQueen has any interest whatever in this case. If bis statement about the submission of the accounts to English’s agent in Ontario is not correct, that fact could have been easily established by such agent. It was the duty of English to have examined his accounts when they were delivered to him by the bank and to have notified the bank in a reasonable time that the charges were improper, if he deemed them to be so. It will be remembered that the bank belonged to J. H. Fairbank, and the account it rendered to the agent of English of the state of the accounts between English and-J. H. Fairbank became a stated account when English failed to object to the same within a reasonable time after they were delivered to him. Citizens’ B. & T. Co. v. Hinkle, 126 Ark. 266.
Appellant could have no greater rights in the premises than English. Therefore, the chancery court did not err in holding against appellant on the item of interest charges.
In connection with the interest charge, the contention is made that it was unlawful to charge compound interest. Isaac Greenizen was a practicing barrister and solicitor of Petrolea, Ontario, and as such has been engaged in the practice of the law there for’ many years. He had represented J. H. Fairbank as attorney for many years prior to his death in 1914, and since that time has' represented the estate. Greenizen stated further that he had been familiar with banking transactions in that country for over thirty years, and knew that it was the custom of banks in Ontario to charge interest at the rate of 6 per cent, on loans of money and to compound the interest quarterly, and that such compounding of interest was legal in Ontario.
As we have already seen, McQueen, who had charge of the bank until in 1916, testified to the same fact. Hence the transaction was not an illegal one, and, as above stated, the accounts became accounts stated after the lapse of a reasonable time after their delivery to English.
It may also be stated that counsel for appellant claim that the court erred in not allowing English for the amounts expended by him in clearing some of the lands. We do not agree with counsel in this contention. It will be observed that Fairbank and English were tenants in common in the lands, and that English owned a three-fourths interest therein. The lands were principally timber lands, and it was expected that their chief profit would be derived from the sale of the timber. Fairbank furnished English with money with which to cut and remove the timber. English, after cutting the timber off of the lands and disposing of it, cleared and cultivated a part of them. The lands were situated in Arkansas, and English acted for' his own benefit in clearing and cultivating them. Fairbank remained in Ontario, and it does not appear that he knew anything about English clearing the lands and cultivating the same. English collected the rents and used them. Under these circumstances Fairbank would not be required to contribute to the permanent improvement of the lands made without his knowledge or consent. Dunavant v. Fields, 68 Ark. 534, and Lemly v. Works, 138 Ark. 426.
It is next contended that Greenizen committed a breach of trust in his disposition of the lands. It will be remembered that when the deed to Greenizen to the lands was executed by William English and C. 0. Fair-bank, and Mary Edna Rock, on November 22,1916, it was contemplated that Greenizen should sell the lands and distribute the proceeds between the parties according to their respective interests, after satisfying the mortgage indebtedness of English out of his interest. English had a three-fourths interest in the lands, and the Fair-bank estate a fourth interest in the lands. Greenizen had sold all of the lands except two tracts and had applied English’s share towards the satisfaction of the mortgage indebtedness before the present controversy. It is not contended by counsel for appellant that Greenizen was guilty of any breach of trust with regard to these sales, but it is contended that .Greenizen was guilty of a breach of trust with regard to the remaining tracts which he had made an executory contract to sell at the time the present controversy arose.
' It is contended by counsel for appellant that Greenizen had contracted to sell these lands .for $40 per acre and less, when in fact they were worth and he could have sold them for $60 to $65 per acre. Witnesses for appellant testified that the lands in question were worth $65 per acre and upwards and that Greenizen sold them for $40 per acre, and that he had sold one of the tracts to his own agent for something less than $40 per acre.
On the other hand, witnesses for appellees stated that Greenizen acted in perfect good faith in the matter and sold the lands for all that he could get for them. He employed local agents to sell the lands with diree tions to sell them for the best price obtainable. The local agents bargained to sell both of these tracts for the best price obtainable, but the sale was prevented on account of the present controversy. Subsequently one of the local agents told Greenizen that he would take the lands at the price he had sold them for, if Greenizen would deduct his commission from the purchase price. Greenizen agreed to do this. This act resulted in no loss to the estate. For, if the sale to the third party by the agent had been carried out, the local agent making the sale would have been entitled to his commission and the purchase price would have been reduced by that amount. The local agent and other witnesses for appellees testified that the lands were sold for1 the best price obtainable and that the price which they sold for was a fair one.
One of the witnesses for appellees testified that other lands had been sold in the same neighborhood for a somewhat less price. Three witnesses on each side testified with regard to the price for which the lands were sold. Those for appellant maintained that the lands were sold too low, and those for appellees being equally positive that the lands sold for all they could have been sold for, and for all they were worth.
■ Greenizen rendered a full account of all his acts as trustee, and there is nothing in the record which tends to reflect upon his conduct. At any rate, the chancellor found the issues with regard to his alleged breach of faith in the sale of the lands in his favor, and it cannot be said that his finding is against the weight of the evidence and on that account should be reversed.
It may be here noted that, under the settled and familiar -rules of practice, the findings of fact made by a chancellor will not be disturbed on appeal unless they are against the preponderance of the evidence.
Complaint is made against the trustee with regard to ether items of his account. But the chancellor found the issues in his favor, and we cannot say that his finding is against the preponderance of the evidence. We do not deem it necessary to discuss these matters in detail, for the reason that, even if it should be said that the finding of the chancellor as to them is against the weight of the evidence, no error prejudicial to the rights of appellant would be committed. The reason is that the aggregate amount of these omitted items would not total by a good deal the amount of the balance of the mortgage indebtedness of English to the Fairbank estate. English has not appealed..
It follows that the decree will be affirmed. | [
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Smith, J.
This is a suit on a fire insurance policy covering an automobile and containing the following recital: “In consideration of the reduction in premium granted under this policy, it is made a condition thereof that the insured will at all times during the life of this policy carry on the automobile insured, in a readily accessible place, at least one fire extinquisher known as Pyrene, approved by the Underwriters’ Laboratories of (he National Board of Fire Underwriters, and bearing their label; and that the insured will use due diligence to maintain the said fire extinguisher in full and complete working order during the life of this policy.”
The owner of the car equipped it with an extinguisher, which he exhausted in extinguishing a fire in his car on or about December 21st. Later, on the 1st or the 4th of January, the car again caught fire, and on this occasion was destroyed. At that time there was no extinguisher in the car, which failure the owner explained by saying that he had tried to have the extinguisher recharged at his home (Lonoke), but there was no one there to do the work. Someone told him to bring or send the oar to Little Rock and have the extinguisher recharged, but he had no way to bring or send it to Little Rock after his first fire. He also testified that the fire was of such a character that it could not have been extinguished, even if he had had an extinguisher.
An instruction was given which told the jury that if the extinguisher had been provided and exhausted in extinguishing a fire, and that the owner had thereafter 4 4 exhausted every effort to have it refilled and could not by said efforts have said extinguisher ready to use at the time of the fire,” to find for the owner, although there was no extinguisher on the car when the fire occurred.
Another instruction told the jury that if 4 4 the fire which” destroyed the car was beyond control of the party when it was' discovered, and that the fire extinguisher could not have extinguished the flame had it been attached to the car at the time the fire was discovered, and that the fire could not have been put out and the oar saved by the use of the extinguisher, had it been attached to the car,” to find for the plaintiff,.if the jury also found that every effort had been made to have the extinguisher refilled.
There was a verdict and judgment for the plaintiff, and the insurance company has appealed.
It is insisted that there was a substantial compliance with the provision of the policy set out above requiring that a fire extinguisher be carried on the car, and that the instructions set out above properly submitted to the jury the question of substantial compliance. We do not think so. In our opinion no case was made for the jury, and the verdict should have been directed in favor of the insurance company.
It does not appear what' use the owner had made of the car between the date of the first fire and that of the second. He had completed the journey during which the first fire occurred. He had taken the car home, and an interval of from ten days to two weeks intervened after he had exhausted his extinguisher by use in extinguishing a fire before the second fire occurred. His use of the car after the first fire was purely voluntary and in violation of the requirement that it should be equipped with an extinguisher.
In the case of Mechanics’ Insurance Co. v. Thompson, 57 Ark. 279, the policy sued on made the application for insurance a part thereof and a warranty, and the following question and answer appear in the application: “Will you agree as a condition of this insurance to keep in the same room, and within ten feet of the gin-stand, one barrel full of water and two buckets?” Answer: “Yes.” Construing this question and answer, Judge Battle, for the court, there said: “The object of the second agreement or warranty is apparent. The barrel of water and two buckets were evidently required to be kept within ten feet of the gin-stand for the purpose of being promptly used in extinguishing any fire that might originate in or at the gin-stand. The terms of the agreement necessarily imply that the water and buckets should have been at all time readily accessible. Its purpose could not have been subserved in any other manner. The barrel within ten feet of the gin-stand was not readily accessible. It was not known where the buckets were on the night of the fire. The assured therefore failed to perform the second agreement.” For the failure to keep this promissory warranty the judgment against the insurance company was reversed.
At section 316 of the article on Fire Insurance in 26 C. J., p. 248, it is said: “In the absence of a stipula tion in the policy the fact that there was not a constant and ever ready water supply and appliances for the ex-tinguishment of fires will not relieve insurer from liability; and a stipulation to maintain such equipment during the life of the policy cannot be implied from the fact that it is described as a part of the property insured. But if it is provided that the premises shall be so equipped, a failure to comply with the provision will avoid the policy. Such provisions, if inserted in the policy or properly referred to therein, are generally regarded as promissory warranties. But a statement as to fire appliances not clearly made a warranty is a representation only, and is governed by the principles relating to representations generally.” See cases cited in note to the text quoted; and see, also, 2 Clement on Fire Ins. p. 62; 3 Joyce on Fire Ins., sec. 1970; 1 May on Fire Ins., sec. 157; Southern Ins. Co. v. White, 58 Ark. 277.
It having been agreed, in consideration of a reduced premium, that a fire extinguisher should be carried on the car, this agreement became a promissory warranty, and it was breached when a voluntary use of the car was made without that equipment.
Nor is it important that the fire might not have been extinguished had the extinguisher been provided. There is no question in this ease of the sufficiency of the extinguisher, as there was no extinguisher of any kind on the car when it burned. The insurance company had contracted for a certain protection, to which it was entitled, whether efficacious under all conditions or not. The failure to furnish this protection was a breach of the warranty and avoided the contract.
The judgment will therefore be reversed, and the cause dismissed. | [
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Hart, J.
(after stating the facts). The only ground urged for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. In this contention we think counsel 'are correct. The statutory presumption of negligence arising from the killing of the hull by the operation of the train was overcome by the evidence of the fireman and the conductor. It may be stated in this connection that the engineer was dead at the time of the trial.
According’ to the testimony of the fireman, the bull was killed by the front steps of the third coach striking him after the engine had passed by. The fireman was looking back to see if any signals should be given him to stop at the station. It appears that the bull had his head chained to his front foot. The fireman saw the bull struck by the steps of the coach and killed. He could not have stopped the train after lie first saw it. His testimony is consistent in itself and not contradicted by any other testimony in the case. In fact, it is corroborated by that of the conductor, who testified that he discovered that the coach in question was broken and had blood and hair on it after the train had passed the station.
The public interest requires that trains be run on time and that railroads dispatch their business promptly. Under the circumstances it was not necessary to stop the train or to slacken its speed.
The case falls within the rule announced in St. L. I. M. & So. Ry. Co. v. Landers, 67 Ark. 514, and Lane v. Kansas City Sou. Ry. Co., 78 Ark. 234.
It follows that the court erred in not directing a verdict for appellant, and for that error the judgment will be reversed, and the cause remanded for a new trial. | [
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Battle, J.
On the 10th day of March, 1903, the State of Arkansas and J. E. Wilmans and eleven other inhabitants of certain districts in the county of Jackson, wherein the sale of liquor was prohibited by an order of a county court, instituted a proceeding in the Jackson Circuit Court against John M. Jones, county judge of said county, E. L. Boyce, county clerk, Henry Bordwell and four other liquor dealers, to quash the licenses granted to such dealers to sell liquor in said districts and in the city of Newport in the year 1903, and to prohibit the sale of liquor therein. The circuit court rendered judgment quashing the licenses, prohibiting the county court of Jackson County from granting liquor license in the first ward of the city of Newport until after the general election to be held in the year 1904, and the operating of saloons within three miles of a certain Methodist church in the town of Jacksonport; and the defendants appealed.
On the 22d day of January, 1901, the county court of Jackson County made an order prohibiting the sale of liquor within three miles of a certain church in the town of Jacksonport, on petition of the majority of the adult inhabitants of that district. The order was to continue in force for two years, “and until, upon a petition of a majority of the adult inhabitants of such territory,” the county court shall make an order nullifying and revoking the same. The county court attempted to revoke it on the 21st day of February, 1903, but, on appeal to the circuit court, the county court was reversed, and the prohibitory order was left in force. This was on the third day of July, 1903. On the tenth day of July, 1903, the county court, on the petition of what it found to be a majority of the adult inhabitants of the district, revoked the prohibitory order the second time. An appeal from the last order was taken to the circuit court, but the order was not superseded or suspended, and the appeal is still pending.
The board of election commissioners of Jackson County divided Union Township in that county into two election precincts. One of these was the second ward of the city of Newport, amd the other was the first ward of that city and the remainder of that township. The place fixed for voting in the first mentioned precinct was Stephen’s, livery stable in the second ward, and in the other precinct the hose house in the first ward. The courthouse of Jackson County and Stephen’s livery stable are in the second ward, in the same block, on the same street, and on the same side of it, and within a short distance of each other. The general election of the first Monday of September, 1902, for the precinct composed of the second ward was held at the courthouse. There was a crowd assembled in front of the courthouse while the election was being held. Previous elections in the second ward were held at the courthouse, and there was a general expectation that the election of 1902 would be held at the same place. There is no reason to believe that any one lost his vote by it being so held. The general election of 1902, for the other precinct, was held at the hose house, The electors of the first ward and of that part of Union Township not included in Newport voted at that place. Territorially, Newport is a small part of Union Township.
On the 15th of September, 1902, the county board of election commissioners filed with the clerk of the county court of Jackson County a- report of the result of the general election of 1902, including the vote for license and against license, from which it appears that a majority of the votes cast in the county and in the city of Newport, and in each ward, and in Union Township, were for license, but in the certificate appended to the report nothing is said about the vote for license or against license. On the 3d day of September, 1903, the coupty court of Jackson County, by a nunc pro tunc order, noted the filing of such report.
On the 21st day of February, 1903, the county court of Jackson County, immediately after the first revocation of the prohibitory order made on the 22d day of January, 1901, and before any appeal or supersedeas was allowed, granted licenses to the five liquor dealers, who were made defendants to this proceeding, to sell liquor in the city of Newport and within three miles of the Methodist church in the town of Jacksonport, and ordered that the licenses continue until the 31st of December, 1903. Three of them (five liquor dealers) were thereby licensed to sell liquor in the first ward of that city, and the other were licensed to sell in the second ward. In each of the orders granting license the court found that the majority of the votes cast in Jackson County, in Union Township, in Newport, and each ward thereof, at the general election of 1902 were for license.
The record shows that the county court of Jackson County had jurisdiction to grant the licenses to the five liquor dealers, and fails to show any reversible error in the exercise of the jurisdicción. It is true that the first order of the county court revoking the prohibitory order, upon appeal to the circuit court, was reversed. But the effect of the reversal was to set aside the license. The licensees then stood in the attitude of persons without license. State v. Doss, 70 Ark. 312; Viefhaus v. State, 71 Ark. 419. Certiorari or any other proceeding did not lie to quash their licenses, because they had already been set aside, and they (licensees) were amenable to the laws prohibiting the sale of liquor without license.
Appellees contend that the county court of Jackson County was without jurisdiction to grant license to sell liquor in the year 1903 because the county board of election commissioners of Jackson County failed to lay before it the returns of the general election of 1902 in that county at its next term held thereafter. But the jurisdiction did not depend upon that fact, but upon the actual result of the election. The statute upon this subject says: “If, at such election (general election), the majority of the votes cast in any county upon the question be not ‘for license,’ then it shall be unlawful for the county court of such county to grant license for the purposes mentioned in the preceding section at any place within such county until after the next general election. But if a majority of the votes cast in any county upon the question be ‘for license,’ then it shall be lawful for the county court of such county to grant licenses for the purposes aforesaid to persons of good moral character over the age of twenty-one years within any township, town or ward of a city in such county where the majority of the votes cast upon the question was ‘for license,’ but in no other, and the same is not otherwise prohibited, subject to the conditions and restrictions of this chapter.” Kirby’s Digest, § 5120. The county board of election commissioners was obviously required to lay the returns of the election before the county court for its information. It would be' unreasonable to make the jurisdiction of the court dependent upon that act.
It is said that there was no lawful election held in the second ward of Newport, and that the county court had no authority to' grant license to sell liquor in that ward in the year 1903, because the general election of 1902 for that ward was held at the courthouse, instead of Stephen’s livery stable, the place lawfully fixed for that purpose. But that was not fatal. The two places were near each other. The general expectation was that it would be held at the courthouse, where previous elections had been held; and the crowd of persons assembled before the courthouse and attending the election could be readily seen by any one going tO' the livery stable for the purpose of voting; and it does not appear that any one was misled. McCrary on Elections (4 Ed.), § § 158-160.
Electors residing in Union Township and outside of Newport voted at the general election of 1902 held in the first ward. It is argued that this vitiated the election held in that ward, and made it unlawful to grant license to sell liquor therein in the year 1903. But this is not correct. The law does not require that the election as to the licensing the sale of liquor shall be held in eath ward for such ward and no other territory, but provides that “such elections shall be held at the same time and place in the same manner as other elections.” Kirby’s Digest, § 5119. In submitting the question in this manner it evidently intended that a majority of those voting at any particular place prescribed by law for that purpose shall decide the question as to the territory for which it is the place of .voting, and, the majority of votes cast in such precinct and the county being in favor of license, that it shall be lawful to grant license to sell liquor in any part of such territory upon the terms prescribed by the statutes; otherwise such an election would be held to decide a question it could not decide. But no such folly can reasonably be imputed to the Legislature. Kirby’s Digest, § § 5118-5120; Doss v. Moore, 69 Ark. 258; Wallace v. Cubanola, 70 Ark. 395.
The appeal taken from the second order of the county court of Jackson County revoking the order prohibiting the sale and giving away of liquors within three miles of the church in Jackson-port did not suspend such order. It is self-executing, and remains in force until set aside or superseded. Reese v. Steel, 73 Ark. 66. This was not done. It was therefore erroneous to inhibit the operating of saloons in such three-mile district on account of the prohibitory order.
Judgment of circuit court is reversed, and the proceeding instituted by appellees is dismissed. | [
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Wood, J.,
(after stating the facts.) Appellant challenges the jurisdiction. In McLeod v. Griffis, 45 Ark. 505, it is said: “An omission to account for moneys or other assets actually received by the administrator has been by this court held to be a legal fraud which the chancery court will correct, whether the omission was intended or by mistake.”
In Campbell V. Clark, 63 Ark. 450, we held (quoting syllabus) that “for a guardian to obtain credits in his final settlement with the probate court for sums not expended by him for the benefit of the ward is such a fraud as will justify a court of equity in restating and correcting the settlement.”
The appellant did not demur to the complaint, nor move to make more specific. He answered, and treated the complaint as charging him with a failure to account in his settlements for money which he, as guardian, had received as rent for the land of his ward. He took proof on this issue.- Appellee, and cross-appellant, evidently intended that his complaint should charge appellant with a failure to account for rent money which he had received as guardian. While the allegations are inartistic and indefinite, they are sufficient, according to the principles of the above and other cases, to state a cause of action within the jurisdiction of a court of chancery. The facts showing that appellant failed to account for rent during the years he collected same are stated with enough precision to constitute a cause of action. From these allegations fraud follows as a legal conclusion. Had appellant desired a more definite statement as to the years and the amounts for each year, a motion to make more specific was his remedy. Choctaw, O. & G. R. Co. v. Doughty, ante p. 1, and the authorities cited. But the complaint is good only in so far as it may be considered as charging appellant with a failure to pay over the money which he had actually collected. That part of the complaint which seeks to charge appellant with rents which “he could have collected by ordinary prudence and loyalty to his ward” states no facts which constitute a fraud. Conway v. Ellison, 14 Ark. 360; Ringgold v. Stone, 20 Ark. 526; Reinhardt v. Gartrell, 33 Ark. 727; Mock v. Pleasants, 34 Ark. 63.
Under art. 7, § 34, Const., and § 4002, Kirby’s Digest, probate courts have exclusive original jurisdiction of the estates of insane persons and of the settlements of the accounts of the guardians of such persons. When these “settlements have been duly confirmed, the orders of confirmation have the force and effect of judgments, which, if erroneous, may be corrected by appeal. * * * Courts of chancery, however, may interfere to correct fraud, or relieve against accident, or upon some other ground of acknowledged equity jurisdiction, to prevent irremediable mischief.” Trimble v. James, 40 Ark. 393; McLeod v. Griffis, 45 Ark. 505, and authorities cited; also McLeod v. Griffis, 51 Ark. 1.
Where fraud is the ground for impeaching such settlements, actual or constructive fraud will suffice. But the acts constituting it must be specifically alleged and proved. McLeod v. Griffis, 51 Ark. supra; Id. 45 Ark. 505; Dyer v. Jacoway, 42 Ark. 186; Mock v. Pleasants, 34 Ark. supra; Reinhardt v. Gartrell, 33 Ark. supra.
The fact that appellant may not have exercised that care in renting the lands of his ward that “ordinary prudence and loyalty to her interest” required would afford no ground for a court of chancery to set aside and restate settlements which had been duly confirmed by the probate court. Authorities, supra. Yet a careful scrutiny of the testimony touching only the matter of rents in each settlement discovers at most only a negligent failure to rent the land for certain years, and in other years a negligent failure to rent the land for as much as it was worth. For instance, the failure to rent the land for the years 1892 and 3 and the renting of same for the improvements put on it in 1894. And the renting of the land in other years for a less sum than appellant could, with ordinary prudence, have got for it — these were matters for, and were considered by, the probate court. - An exhibit in the record shows that exceptions were filed to the tenth settlement of the guardian, in which all the matters here complained of were specifically called to the attention of that court. If the court ruled erroneously in confirming the settlements in the particulars named, they were such errors as should have been corrected on appeal. Authorities, supra.
The burden of proof was upon appellee and cross-appellant to make good the charges of fraud, and we are of the opinion that there is no direct proof to show it, and no facts and circumstances shown from which the law would raise the presumption of fraud. The conduct of appellant, as shown by the proof, even though it may have been negligent, was nevertheless consistent with honest purpose.
Taking up the items separately, the testimony of Walden shows that he paid in cash for rent of the land for the year 1888 $135, and that he also paid $15 in work. The guardian charged himself with only $124, making a difference of $11. Bur appellant says that he paid $25 or $30 for improvements that year, which would account for the difference. For the years 1889 and 1890 the appellant charged himself with rent received $265, while two witnesses testify that they 'paid $300 for the rent of those years. But these witnesses were subtenants of Joe Cowling, Sr., and paid the rents to him. The appellant explains this by saying that while the place was rented to Joe Cowling, Sr., for $300 for the years 1889 and 1890, yet he had to make allowances to Cowling for improvements, and that the record of his settlement in the, probate court showed what he received. The chancellor erred in setting aside the settlement for $265 and restating the account, and in charging appellant $300 for the rent of those years. The evidence was not sufficient to show fraud in this settlement. For the year 1891 the guardian charges himself with rent $73. The chancellor set it aside, and charged him $100. Nelson says of this that, while he was to get $150 rent for the place during that year, he also made allowances for improvements, and that the record of the accounts would show what he received; that he accounted for everything. There is no other evidence than his to show just what was received for the year 1891, and certainly fraud could not be predicated upon his testimony as to this settlement.
The testimony shows that for the years 1892 and 1893, the place was not rented, and for the year 1894 it was rented for the repairs. For these years and the years succeeding down to 1901, inclusive, the chancellor set aside the settlements and charged the guardian, not what he actually received, but according to what, in the judgment of the chancellor under the proof, he should have received. This was error, as we have already shown. There was no fraud in the mere mismanagement or negligent management of appellant as to renting the land.
The allowances for interest and for services and for improvements made by appellant were likewise matters for the probate court, subject to correction, if erroneous, on appeal.
There was nothing in any of thes.e upon which to base a charge of fraud, and the chancery court erred in taking original jurisdiction over them. For the errors indicated, the decree will be reversed, and decree will be entered here, dismissing the complaint for want of equity. | [
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McCulloch, J.
This is an action in ejectment brought by appellants against appellees to recover possession of a tract of land in Chicot County. Appellees claim title under a donation deed, regular -on its face, executed by the Commissioner of State Lands, and actual possession thereunder for more than two years before the commencement of the suit. They plead the two years statute of limitation, and their .possession for the requisite statutory period is admitted.
The State’s claim of title, under which the donation was made, is based upon a sale made on June xx, 1883, by the collector for the payment of taxes for the year 1882. The alleged sale was made on a day not appointed by law, and is void. Taylor v. Van Meter, 53 Ark. 204; Allen v. Ozark Land Co., 55 Ark. 549: McConnell v. Day, 61 Ark. 464.
Appellants contend that the statute does not apply to a tax deed or donation deed based upon a void tax sale, but this court has held to the contrary. Cofer v. Brooks, 20 Ark. 543; Elliott v. Pearce, 20 Ark. 508; Woolfork v. Buckner, 60 Ark. 163; Finley v. Hogan, 60 Ark. 499.
Prior to January 10, 1857, the date of the statute in question, the act of March 3, 1838 (Kirby’s Digest, § 5060), fixing the period of limitations for suits to recover lands held- under judicial sales, also embraced sales of land for nonpayment' of taxes, and this court in Cofer v. Brooks, and Elliott v. Pearce, supra, Chief Justice English delivering the opinion of the court in both cases, held that the statute applied to lands occupied under a tax deed void on its face. Those cases are cited with approval in Woolf ork v. Buckner, supra. In Finley v. Hogan, supra, the deed was regular on its face, but the sale was void for the reason that the owner of the land had previously paid the taxes for which it was sold, and the court held that the statute applied.
The United States Court of Appeals for the Eighth Circuit, in the case of Alexander v. Gordon, 101 Fed. 91, held that this statute is not applicable to deeds made pursuant to void tax sales; that to so apply it would put it in conflict with the Constitution of the United States, as permitting the taking of property without due process of law. The conclusion appears to have been reached on the ground that the requisite period of occupancy under the statute is so short as to be unreasonable, and to amount, in effect, to the taking of the owner’s property without due process of law. That decision is in obvious conflict with several decisions of the .Supreme Court of the United States, and cannot be regarded as an authority on the question. Upon the facts involved in 'that' case the decision was undoubtedly correct, because no deed had been executed pursuant to the tax sale, and therefore the statute did not begin to run. Haggart v. Ranney, 73 Ark. 44. The Supreme Court of the United States, which is the final arbiter of the question whether statutes are in conflict with the Constitution of the United States, has upheld statutes prescribing much shorter periods of limitation than the statute now under consideration. Terry v. Anderson, 95 U. S. 628; Turner v. New York, 168 U. S. 90; Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318; Wilson v. Iseminger, 185 U. S. 55.
The opinion in Alexander v. Gordon, supra, seems to proceed upon a misconception of the statutes of this State and their proper relation to each other.
We have one statute (Kirby’s Digest, § 7114) which provides that “all actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this chapter, in the assessment, appraisement, levying of taxes or in the sale of lands or lots delinquent for taxes, or proceedings whereby it is sought to avoid any sale under the provisions of this chapter, or irregularity or .neglect of any kind by any officer having any duty or thing to perform under the provisions of this chapter, shall be commenced within two years from the date of sale, and not afterward.” It has been held that this -statute begins to run from the date of sale, and applies only to mere irregularities 'in and technical objections to tax sales, and not to jurisdictional or fundamental defects in the sale which render it absolutely void. Radcliffe v. Scruggs, 46 Ark. 96; Taylor v. Van Meter, 53 Ark. 204; Townsend v. Martin, 55 Ark. 192.
The statute under consideration is plainly a statute of limitation, and begins to run, not from the date of the sale, but from the date actual possession is taken under the deed. Haggart v. Ranney, 73 Ark. supra; McCann v. Smith, 65 Ark. 305. Actual possession of land taken and held continuously for the statutory period of two years under a clerk’s tax deed or donation deed issued by the Commissioner of State Rands bars an action for recovery, whether the sale be merely irregular, or void on account of jurisdictional defects.
In Turner v. New York, supra, the Supreme Court of the United States held that the statute of New York “providing that deeds from the Comptroller of the State of lands in the forest preserve sold for nonpayment of taxes shall, after having been recorded for two years, and in any action brought more than six months after the act takes effect, be conclusive evidence that there was no irregularity in the assessment of the taxes, is a statute of limitation, and does not deprive the former owner of such lands of his property without due process of law.” In Saranac Land & Timber Co. v. Comptroller, supra, Mr. Justice McKenna, delivering the opinion of the court, in summing up the effect of the decision in Turner v. New York, supra, says: “The decision establishes the following propositions:
“1. That statutes of limitation are within the constitutional power of the legislature of a State to enact.
“2. That the limitation of six months is not unreasonable.”
The New York Court of Appeals in Meigs v. Roberts, 162 N. Y. 371, had the same statute under consideration, the question being whether it applied to mere irregularities or jurisdictional defects, and in discussing the difference between the effect of curative statutes and statutes of limitations said: “But
there may be in legal proceedings defects which are not mere informalities or irregularities, but so vital in their character as to be beyond the help of. retrospective legislation; such defects are called jurisdictional. This principle does not apply to a statute of limitation, for such a statute will bar any right, however high the source from which it may be deduced, provided that a reasonable time is given a party to enforce his right.”
We do not think that it can be said that the period of two years fixed by the statute is unreasonable. Under it no action can be barred in less time than four years after the tax sale, because two years time is given for redemption before a deed can be executed completing the sale, and there must be actual adverse occupancy for the full period of two years under the deed.
In the case at bar the donation deed issued by the Commissioner of State Rands is regular on its face, and we have no hesitancy in holding that proof showing the tax sale upon which it is based to be void, because made on a day not-appointed by law* does not prevent the operation of the statute.
Judgment affirmed. | [
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Battle, J.
Carroll and Due Price Terry,- by their next friend, brought an action against A. B. Clark and others, and alleged in their complaint that they are minors, having no guardian; that on 16th day of June, 1903, they were the owners of certain household furniture, of the aggregate value of $97; and that A. B. Clark, claiming that D. P. Terry was indebted to him, sued out an attachment against him before the mayor of Hope and ex-ofhcio justice of the peace, and caused Augustus Kyle, marshal of the town of Hope, to levy the' same on the furniture of plaintiffs, to their damage in the sum of $97.
They asked for judgment for $97 against the defendants.
The defendants answered, and denied that the plaintiffs were the owners of the property; and alleged that D. P. Terry was indebted to the defendant, Clark; that Clark sued out an order of attachment against D. P. Terry before the mayor of Plope and ex-ofhcio justice of the peace, and caused the same to be levied upon the property claimed by’ the plaintiffs; and that it was the property of D. P. Terry.
Evidence was adduced by the plaintiffs in the trial of this action tending to show that the furniture in question belonged to Gertrude Terry in her lifetime, and that she died about seven years before the trial, and that she was their mother, and they inherited the property from her. They are minors under the 'age of sixteen years. D. P. Terry is their father. He married the second wife after the death of their mother.
The defendants were allowed to introduce evidence, over the objections of the plaintiffs, to prove that D. P. Terry used and controlled the property in question after the death of their mother, as other married people use and control their property.
The court gave the following instruction to the jury, over the objections of the plaintiffs:
“You are instructed that if D. P. Terry gave this property to Carroll and Due Price after he was indebted to Clark, you will find for Clark in this case. If you believe Carroll and Due Price were the owners of this property before his indebtedness to Clark, you will find for Carroll and Due Price Terry.”
The defendants recovered judgment.
The evidence objected to by the plaintiffs was incompetent, and should not have been admitted. The jury might have inferred from the admission of it that it was admitted for the purpose of-showing that D. P. Terry was the owner of the property. ’ No possession and control of the property by him was evidence of his ownership. He was the father of plaintiffs, and they were minors, and it was his duty to possess and control their property for their benefit. The evidence was prejudicial.
The instruction objected to by plaintiffs should not have been given. There was no evidence that D. P. Terry was indebted .to Clark at or before the property was acquired by their mother or by them. Instructions are not intended to settle abstract questions of law, but for the guidance of juries with reference to the evidence in the case. Shinn v. Tucker, 37 Ark. 580. Neither should instructions foreign to the issue in the case, or inapplicable to the evidence, be given. State Bank v. McGuire, 14 Ark. 530; Lawrence County v. Coffman, 36 Ark. 641; Beavers v. State, 54 Ark. 336.
Reverse and remand for a new trial. | [
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Wood, J.,
(after stating the facts.) Was appellant liable?'
The decision in Gage v. Harvey, 66 Ark. 68, shows that there is no statutory liability. The sale of liquor at appellant’s place of business was not the proximate cause of the injury. Nor was appellant liable according to any of the rules of the common law. Black on Intox. Liq. § 281; Cruse v. Aden, 127 Ill. 231; Struble v. Nodwift, 11 Ind. 64.
The cruel act of its agent, Arthur Anderson, was clearly beyond the line of his employinent. The master is not liable for the acts of his servant that are beyond the scope of his employment. Cooley on Torts, p. 627. “Where a servant quits sight of the object for which he was employed, and, without having in view his master’s orders, pursues that which his own malice suggests,” the master will not be liable for his acts. McManus v. Crickett, 1 East, 106. The “test,” says the Supreme Court of Nebraska, of the master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was committed in the prosecution of ’ the master’s business. Davis v. Houghtellen, 33 Neb. 582.
Appellee mistakes the law in saying “that there is no distinction between the duty that the proprietors of a saloon owe their patrons,” and that which a common carrier owes its passengers, or an innkeeper his guests. There is a difference as wide as the poles. The saloonkeeper does not hold himself out to the public as the protector of those who may be patrons of his saloon. His business the rather advertises him the other way. But the common carrier and the innkeeper hold themselves forth as providing for the comfort and safety of all who may seek their services — • a “refuge through their portals.” It is strictly their duty and their business to exercise the proper care to look after and to protect their passengers and guests from insult and injury. Britton v. Atlanta & C. Ry. Co., 88 N. C. 536, 43 Am. Rep. 248. Not so with the saloonkeeper.
The doctrine announced above is supported by the cases cited in appellant’s brief and by the following: Story v. Ashton, L. R. 4 Q. B. 476; Stone v. Hills, 45 Conn. 47; Wood, Master & Servant, 546; Whittaker’s Smith on Neg. p. 199; Wharton’s Law of Neg. § 168; and numerous cases cited in notes to these.
The judgment is reversed, and the cause is dismissed. | [
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McCulloch, J.
The appellant was convicted under an indictment charging him with having sold intoxicating liquor without license. The testimony is undisputed, and the court instructed the jury to return a verdict of guilty, which was done, the lowest punishment provided by the statute being inflicted.
Appellant sold to one Kelly an intoxicating compound called “Peruna,” which was used as a beverage. He contends that the evidence did not warrant the instruction of the court and conviction because it failed to show that the alleged offense was committed within one year next before the finding of the indictment, or that he sold the liquor to be drunk as a beverage.
The statute provides that “no person shall be tried, prosecuted and punished for any offense less than a felony unless the indictment be found within one year after the commission of the offense” (Kirby’s Digest, § 2106), and in all prosecutions for misdemeanors it devolves upon the State to prove the commission of the offense within that time. Dixon v. State, 67 Ark. 495.
The indictment in this case was returned by the grand jury of Pike County on February 18, 1904, and the trial was had on September 20, 1905.
The only evidence as to time of sale of the liquor is the testimony of witness Kelly as follows:
“Q. Mr. Kelly, have you bought any Peruna from Mr. Stelle at any time within twelve months before the 18th day of February, 1904? If so, tell the jury how much you bought, and what you paid for it.
“A. Why, I bought a bottle of Peruna from Capt. Stelle, and gave him a dollar for it.
“Q. About when was that?
“A. I couldn’t tell you exactly what time it was. It has been two years ago and over.”
Two years prior to the date of the trial would carry it back to September, 1903, five months before the finding of the indictment. The answer elicited from the witness by the first question quoted above fixes the time of the commission of the offense on a date within one year before the finding of the indictment. The answer to the next question leaves the precise date in uncertainty, but does not contradict the first answer. It fixes a date more than two years before the trial, but not necessarily more than a year before the indictment was returned. The two answers are not in conflict, and, reading them together, it fixes the commission of the cffense some time between February 18, and September 29, 1903. This was undisputed, and warranted a peremptory instruction so far as that question was concerned. Appellant testified in his own béhalf, and detailed the circumstances attending the sale of the liquor to Kelly, but was not asked about the time of the sale, and gave no testimony on that point.
Appellant next contends that he committed no offense, because he sold the liquor as a medicine, and not as a beverage. Or, rather, that there was a conflict in the testimony upon that question, and it should have been submitted to the jury. It is, however, established by the testimony in the record beyond dispute that Peruna is intoxicating, that it was used as a beverage, and that appellant sold it without having previously obtained a license. This is sufficient to warrant a conviction. If the liquor is intoxicating, it is, under the statute, unlawful to sell it for any purpose. It is no defense to say that, notwithstanding the fact .that the liquor is intoxicating, it is sold for use as a medicine. If such were held to be the effect of the statute, whisky could be sold with out a license as a medicine. This court has, however, repeatedly held to the contrary. Woods v. State, 36 Ark. 36; Flower v. State, 39 Ark. 209; Chew v. State, 43 Ark. 361; Battle v. State, 51 Ark. 97.
“In this State no one can lawfully sell intoxicating liquor! without first procuring a license from the county court of his county. A druggist cannot sell them without license as medicine upon the prescription of a physician.” Chew v. State, supra.
The statute, in plain terms, forbids the sale for any purpose without license of any intoxicating liquor which may be used as a beverage. Crawford v. State, 69 Ark. 360; Bradshaw v. State, 75 Ark. 562.
The seller must acquaint himself with the contents of the liquid preparation he is selling; and if it is one of the liquors under the ban of law, “or contains the elements necessary to constitute an intoxicating liquid in such form as it may be used as a beverage,” it is unlawful to sell the same, even though the seller do so thinking in good faith that it is to be used as a medicine.
Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) There can be no doubt that the chancellor was right in rendering a personal decree against appellant W. H. Lowe for the amount of appellee’s claim. According to his own testimony, appellee advanced him the money as an independent loan to pay off the mortgage debt to Mrs. Rice. Appellee was not affected by usury in the contract between Lowe and Mrs. Rice. Conceding that the debt was tainted with usury, Lowe elected to pay it, and procured its payment by appellee. He cannot defeat his liability to appellee for the money because the original debt to Mrs. Rice which it extinguished was tainted with usury.
Nor can W. H. Lowe complain at the decree declaring the debt to be a lien on the land. His own conduct estops him. Rogers v. Galloway College, 64 Ark. 639; Harrison v. Luce, 64 Ark. 583. It is true that, as the original debt and mortgage to Mrs. Rice were void on account of usury, no vitality could be infused into that contract. ' Nor does the fact that it has passed into the hands of an innocent purchaser for value give life to it. German Bank v. Deshon, 41 Ark. 331. But this mortgage must, under the facts of this case, be regarded the same as a new one executed to appellee at the time of the assignment to him. The effect of the assignment to him, was, under the circumstances, equivalent in equity to the execution of a new mortgage to secure the loan made by appellee, following the maxim that “equity, regards substance rather than form.” Martin v. Schichtl, 60 Ark. 595. “By force of this principle,” it is said, “equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law because formally defective, or to impose a liability as against an evasion by a formal concealment of its true character.” 16 Cyc. p. 134. It is conceded that appellee paid the money to Mrs. Rice, and took an assignment of the note and mortgage at the request of appellant W. H. Rowe as a temporary security until the. new mortgage could be executed by Rowe and wife. Appellee testified that he had no notice of the usury, and, notwithstanding Rowe’s testimony to the contrary, the chancellor found this to be true, and, as the finding is not against the preponderance of the evidence, we cannot disturb it.
The decree against W. H. Rowe declaring a lien on the land must be sustained upon still another ground. He promised to execute a new mortgage as soon as his wife could come to town, and appellee paid Mrs. Rice’s debt on the faith of this promise. “Equity regards as done that which ought to be done,” and a court of equity will, under those circumstances, require a performance of the agreement. Richardson v. Hamlett, 33 Ark. 237; Sims v. Thompson, 39 Ark. 304; Turner v. Davis, 41 Ark. 282; Beck v. Bridgman, 40 Ark. 382.
It is urged here that the land in question is the homestead of appellants, and that the lien cannot be enforced thereon for the reason that the wife was not a party to the agreement with appellee, and did not join in a mortgage to him, the old mortgage to Mrs. Rice which she signed being void. It is not shown in the pleading or proof that the land is the homestead, and the lien is enforcible against W. H. Rowe.
What we have said applies only to appellant W. H. Lowe; and it. follows that the decree must be affirmed as to him. The fact that his wife may not be barred of her inchoate dower right does not render the mortgage .lien invalid as to him. The lien is enforcible except as against the dower right. The wife, Roxie Lowe, also appeals from the decree, and thereby' challenges its correctness as against her. As the original mortgáge to Mrs. Rice was void on account of usury, the rights of Roxie Lowe were not affected by the subsequent conduct pf her husband and his agreement with appellee Walker. She could relinquish her dower only in the manner provided by the statute, and, not having done so, she is not barred of her inchoate dower right. Appellee’s lien can therefore be enforced, subject only .to that right.
It is true that she did not file an answer to the cross-complaint of appellee, but the plea of usury made by her husband and co-defendant in the cross-complaint inured to her benefit, notwithstanding her failure to plead, as it was a defense common to them both. Fletcher v. Bank of Lonoke, 71 Ark. 1.
The decree is therefore in all things affirmed as to appellant W. H. Lowe, but reversed and remanded as to appellant Roxie Lowe, with directions to dismiss the cross-complaint as to her. | [
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McCulloch, J.,
(after stating the facts.) In sales of goods where the purchaser has had no opportunity to inspect them, there is an implied warranty that they are reasonably fit for the purposes for which they are ordinarily used; and when they are, under such circumstances, purchased for a particular purpose known to the seller, there is an implied warranty that they are fit for that purpose. Bunch v. Weil, 72 Ark. 343; Curtis & Co. Mfg. Co. v. Williams, 48 Ark. 330; Benjamin on Sales, § § 645, 656; 2 Mechem on Sales, § 1358.
The facts of this case fall squarely within the rule stated. The grapes were purchased for resale in Fort Smith, and this purpose was known to the seller. Therefore, the seller impliedly warranted that the grapes were in proper condition to stand shipment to Fort Smith by the means of transportation afforded, and remain in a merchantable condition, so that the purchaser could have an opportunity to resell them. It could not have been in contemplation of the parties that fruit should be shipped which would be worthless when it reached Fort Smith, and, "the seller only having had an opportunity of inspection and selection, he must be deemed to have warranted the fruit to be such as would, under the means of transportation afforded, reach Fort Smith in a salable condition.
The instruction asked by the defendant embodied this view of the law, and should have been given.
It is insisted by counsel for appellee that the instruction by. the court of its own motion conveys the same idea, and that there is no substantial difference in meaning between that and the instruction asked by appellant. We do not think so. The court' in this instruction said that, in determining whether the grapes were in merchantable condition when loaded into the car at Portland, the jury might consider the condition of the grapes at that time, the length of time grapes in such condition will keep when properly loaded, etc., but the court did not say that the grapes must have been in condition to stand shipment, and then be fit for sale at Fort Smith. The instruction, it is true, permitted the jury to consider the condition of the grapes when loaded on cars at Portland, the length of timé grapes will under ordinary means of transit keep, the manner in which they were loaded, etc.; but only for the purpose of determining whether the grapes were in merchantable condition when loaded. The court should have gone further, and told the jury, as asked by defendant, that the test of merchantability in Portland was whether the condition of the grapes was such as to stand shipment to Fort Smith and reach the latter place in condition for sale. The instruction of the court, without the further definition contained in the refused instruction, was uncertain and misleading. The jury might well have understood from it that their sole duty was to determine whether the. grapes were in salable condition when delivered to the carrier at Portland, and that the other matters recited in the instruction were to be considered only for the purpose of reaching a conclusion on that point.
It is contended that the refusal to give the instruction was not prejudicial, for the alleged reason that under the evidence the verdict must have been for the plaintiff any way. It is true that a witness for plaintiff testified that the grapes when loaded at Portland were in proper condition to stand shipment to Fort Smith and reach there in salable condition, if the car was kept thoroughly iced, and no accident occurred in transit. This was not contradicted by direct evidence, and there was no direct testimony as to whether the car was iced after it left Portland. But it was shown that the car was iced at Portland, and instructions given to ice it again at Bellevue, O., and to keep it heavily iced en route; that the car in due time reached Fort Smith at a proper temperature and with ice in the bunkers; and that the grapes were in such poor condition that they could not, if the car was kept iced, have been in proper condition when loaded at Portland. At least, a witness of experience in handling fruit testified to that effect, and gave it as his opinion that, from the condition he found it in after arrival at Fort Smith, it could not, if the car was kept iced, have been in proper condition when loaded. The jury might have inferred from these facts that the fruit was not in proper condition to stand shipment, and that there was a breach of the warranty in that regard. Notwithstanding there was no direct proof that the ice bunkers of the car were filled en route, the jury might have inferred, from the fact that they were filled at the start, and that instructions were given to the carrier to refill them and keep them full, and that the car reached Fort Smith in due time at proper temperature and with ice in the bunkers, that the worthless condition of the grapes was due to the fact that they were not in good condition when shipped, rather than to some accident or failure to keep the car properly iced en route. Appellant was, therefore, entitled to have the question submitted to the jury upon proper instructions.
Reversed and remanded for new trial. | [
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McCulloch, J.
Appellant, T. E. Clingan, was indicted by the grand jury of- Sevier County for the crime of murder in the second degree by shooting and killing one W. S. Keith. On trial he was convicted of involuntary manslaughter, and his punishment fixed at confinement for one year in the penitentiary.
Appellant is a physician residing at Walnut Springs, Sevier County, and W. S. Keith lived in that neighborhood. On the day of the killing the two men met in the village, when Keith accosted the defendant, complaining that defendant had made certain uncomplimentary remarks concerning members of his (Keith’s) family, and he said that if defendant did so again he would whip him. Some of the witnesses stated that deceased said to defendant that, if defendant repeated the remarks about his family, “he would take him by the heels, and slam his brains out.” To this the defendant replied, “Very well,” and the men separated, deceased resuming his seat in front of a shop with a small party of neighbors, and defendant walked into a drug store near by, and wrote a prescription for a patient. In a few minutes defendant came out upon the steps of the drug store, and called to deceased to come over there. Deceased arose, and walked toward defendant, and, when within a short distance from him, defendant drew his pistol, and snapped it at deceased, and the latter grappled with defendant, and both men fell inside the drug store, deceased falling upon defendant, and while in this position defendant fired the fatal shot. The witnesses introduced by the State testified that Keith had his pocket knife in his hand whittling, and that when defendant called him he arose and put the knife in his pocket, and took his hand out of his pocket before starting in the direction of defendant, and that his hands were swinging naturally by his side.
Defendant’s version is substantially as follows: “After being in the drug store for a few minutes, I returned to the front, and said, ‘Mr. Keith, step this way a minute.’ He got up very rapidly, put. his hands in his pockets, and came very rapidly toward me with an'expression on his face that indicated excitement and anger. He seemed to be shoving up his sleeves. I called to him to stop, but he seemed to come faster. I drew my pistol, threw it on him, and it snapped. By this time he was almost on me, and as I turned to run into the drug store he caught me, and I fell on my back, and in that position fired the shot. We had been the best of friends, and my object'in calling him was to ascertain why he had approached me in the manner he had. I did not anticipate trouble. I thought he put his hands in his pocket for a knife.”
The instructions given by the court are too numerous to discuss in detail, but, after careful consideration of them all, we find no error in either giving or refusing instructions.
The only instruction given over the objection of the defendant which gives us any serious concern as to its correctness is as follows:
“If the jury believe from the evidence beyond a reasonable doubt that the defendant snapped the pistol at the deceased at a time when deceased was making no demonstration of violence towards defendant, he cannot justify or excuse himself for killing deceased because deceased had sprung upon him after he had so snapped the 'pistol at him.”
This instruction, in the abstract, would seem to cut off the right of the defendant to defend himself by killing Keith, even after he had sought in good faith to retire from the conflict; but when it is considered with several others given by the court, telling the jury plainly and explicitly that defendant would not be guilty if he in good faith believed that deceased was about to do him great bodily harm, and if he honestly sought to avoid killing deceased, we think that the meaning of the" court could not have been misunderstood.
Moreover, we think that, viewing the testimony in any light, the jury could not properly have rendered a verdict of acquittal. According to the testimony of the defendant himself, he was guilty of voluntary manslaughter, so there could have been no prejudice in the instructions of the court. Darden v. State, 73 Ark. 315.
He called deceased, and, according to his own evidence, drew his pistol, and snapped it at deceased, without any effort whatever' to avoid a difficulty. A plea of self-defense cannot be’ sustained under those circumstances.
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Riddick, J.
This is an appeal from a judgment against the railway company for $280 as damages for killing two horses owned by the plaintiff, Mrs. E. E. Courtney.
We think there is evidence to support the verdict. It was shown that the horses of the plaintiff were struck by the train and killed. This under the statute made out a prima facie case in favor of plaintiff. The defendant put on the stand only one witness, and this witness was the engineer in charge of the train at the time of the accident. He said that the stock came on the track “about 100 feet ahead of the engine and right at the trestle.” The horses were struck and killed on the trestle. This witness also stated that it was at night and raining, and that the headlight only enabled him to see about 50 or 60 feet ahead of the train, and that when he saw the horses they were probably 40 or 50 feet away. The evidence of other witnesses shows that these horses had been running ahead of the train 150 yards or more. If the headlight enabled the engineer to see 50 or 60 feet ahead of the train, he should have discovered the horses before he was within forty or fifty feet of them. Besides, his testimony that the horses came suddenly on the track from the side is contradicted by witnesses who testified that the tracks of the horses came straight down the track. His statement that they came, on the track “about a hundred feet ahead of the engine right at the trestle” is not entitled to much credit, if we.believe his other statement that when he first saw them they were within 40 or 50 feet of the engine. If he did not see them until he was within 40 or 50 feet of them, how could he tell what they were doing when he was 100 feet from them? The fireman did not testify, and the company relies on the testimony of' the engineer only; and, as his statements are to a certain extent contradictory, we think the question of his credibility was for the jury.
The only other question presented relates to competency of the testimony of J. S. Courtney, who testified for the plaintiff.. The defendant objected to his testimony on the ground that he was the husband of the plaintiff. Counsel for plaintiff then asked the. following question: “Are you Mrs. Courtney’s general agent for the transaction of all her business?” To which the witness responded, “Yes, sir.” The court thereupon overruled the objection of defendant. This witness was not present at the time the horses were killed. He did not go to the place where they were killed until a day or two afterwards. The facts in reference to the accident to which he testified were fully established by other witnesses, and are not controverted. The only material part of his testimony related to the value of the horses killed.
Our statute provides that husband and wife shall be incompetent to testify for or against each other, with the exception that “either shall be allowed to testify for the other in regard to any business transacted by the one for the other in the capacity of agent.” Kirby’s Digest, § 3095. It will be noticed that under the statute a husband is incompetent to testify for his wife except in regard to some business transacted by him for by him for her as her agent. Now, the testimony of the husband in this case was not, we think, testimony in reference to a business transaction done by him as her agent. It was therefore not competent testimony. But the only material part of his testimony relates, as we have said, to the value of the horses killed. He stated that their aggregate value was $280. The two other witnesses who testified on that point differed, one saying their value was $280, and the other $260. Counsel for plaintiff say that, if the testimony, of the husband was incompetent, we can not say which of these witnesses the jury would have believed, and that therefore we should not disturb the verdict. But the rule, when incompetent evidence is introduced, is that prejudice is presumed, and the burden is on the party introducing it to show that no prejudice resulted. That cannot be done in this case, and .the judgment must be reversed unless plaintiff will remit $20, that being the excess in value found by the jury over that estimated by the witness who gave the lowest value.
Plaintiff is allowed two weeks to elect whether to enter a remittitur or submit to a new trial. If remittitur is entered, judgment for remainder will be affirmed; otherwise the judgment will be reversed, and new trial ordered. | [
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McCulloch, J.,
(after stating the facts.) The proof sustains the finding of the chancellor that Mary J. Kelly agreed with •appellee in writing for a valuable consideration, i.-e., the payment -of $50 commission and the extinguishment of her alleged liability to him for the difference in value between the interest she owned and that which her deed purported to convey, to purchase for him the interest of S. Thomas Miller. This was a valid and enforcible contract, founded on good consideration, and a court of equity should require the specific performance of same. This is but the application of a familiar equitable doctrine, and needs no citation of ‘authority to sustain it. McMurry v. Mobley, 39 Ark. 309; 1 Am. & Eng. Enc. Law, p. 1082, and cases cited.- It is not important to inquire whether Mrs. Kelly was in fact indebted to appellee upon the warranty in her deed conveying the one-seventh interest, or whether the- same was barred by limitation. Whether it was a valid and subsisting liability or not, its assertion by appellee and the agreement to extinguish the same was sufficient to constitute a valid consideration for Mrs. Kelly’s undertaking to purchase the remaining interest in the land for appellee. Richardson v. Comstock, 21 Ark. 69; Sykes v. Lafferry, 27 Ark. 407; Burton v. Baird, 44 Ark. 556; Mason v. Wilson, 43 Ark. 177.
Appellant says further that appellee cannot claim the benefit of the purchase because he refused to pay the price asked by Miller for his interest. It is true that appellee did decline to pay $500 for the interest, but Mrs. Kelly purchased it for $350, and the correspondence does not show that $300 was the maximum price which appellee authorized her to pay. She agreed to purchase the land for him, and both fixed $300 as a fair price for it, and she assured him thfit she could purchase it from her brother at that price. When she ascertained that she could not buy it for less than $350, she should, before purchasing for herself at that price, have notified appellee, and given him an opportunity to either accept or reject that offer. Having failed to do so, she must, at his election, be held to have purchased for him in performance of her agreement.
Appellant also complains that the chancellor erred in holding that appellee should not be required to pay the $50 commission in addition to the $350 purchase price paid by Mrs. Kelly to Miller. She is in no position to complain at this ruling, as the $50 were to be paid to Mrs. Mary J. Kelly as compensation for her services, and appellant was not subrogated to her right to secure it. Mary J. Kelly is the only party who can complain, and she has not appealed from the decree.
We find no error in the proceedings and conclusion of the chancellor, and his decree is affirmed. | [
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McCulloh, J.,
(after stating the facts.) The primary question presented for our consideration is whether Summers, the original owner, dedicated to the public use all the land on the lake front east of the platted lots and blocks; for in no other way does the plaintiff claim any right to prevent the defendant from occupying the land on which he is about to build.
An owner of land, by laying- out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. 13 Cyc. pp. 455, 456, 457 and cases cited; Elliott on Roads and Streets, § 117. He will also be held to have thereby dedicated to the public use squares, parks and other public places marked as such on the plat. Archer v. Salinas City, 93 Cal. 43; Mayor of Bayonne v. Ford, 43 N. J. L. 292; Rhodes v. Brightwood, 145 Ind. 21; Pierce v. Roberts, 57 Conn. 31.
The fact depends upon the intention of the owner to dedicate to the public, as clearly and unequivocally manifested. It is held, however, that “the intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts.” 13 Cyc. p. 452, and cases cited; Elliott on Roads and Streets, § § 124, 156.
It becomes, therefore, a question of fact in this case to determine whether the owner dedicated the land in controversy.
We think it is clear from an examination of the plat filed by Summers that he intended to dedicate to the public use all the land between the front tier of lots and the bank of the lake. The plat .shows no intervening space between Front Street and the lake. The lake was then and is now a navigable body of water, and, manifestly, he did not intend to cut the town off from access to the water. Yet, unless the conclusion is reached that he dedi cated this strip, the effect will be to entirely cut off access to the water, as there are no streets or ways laid off on the plat from Front Street to the water’s edge. It is inconceivable that the owner intended to lay out a town on the banks of navigable water, and parallel the bank with a street, and at the same time entirely cut it off from access by the public. This is contrary to reason, and to the obvious intention of the owner in selecting the site for the town. Under such circumstances a presumption necessarily arises of a dedication that will give the public access to the water.
In the case of the Village of Wayzata v. Great Northern Ry. Co., 50 Minn. 441, the court said: “When the grant or dedication to the public is for the purpose of passage, and goes to the water, the conclusion — there being no indication of a contrary intention — is inevitable that the grant or dedication was intended to enable the public to get to the Water for the better enjoyment of the public right of navigation.” See also Mayor, etc., v. Morris Canal & Banking Co., 12 N. J. Eq. 547; Barclay v. Howell, 6 Pet. (U. S.), 498; Webb v. Demopolis, 95 Ala. 116; Yates v. Judd, 18 Wis. 126; Rowan’s Heirs v. Portland, 8 B. Mon, (Ky.), 232; Parish v. Stephens, 1 Or. 59; Alves v. Henderson, 16 B. Mon. (Ky.), 131.
In Rowan’s Heirs v. Portland, supra, the Kentucky court said:
“That the town extended to the Ohio River, leaving no space between the town and the water, is a position which, in our opinion, does not admit of question. There is no line dividing or separating the town from the river. And, if there were, it should rather be presumed that the space between such line and the river was thus discriminated for the purpose of showing that it was intended for some use of the town different from that of the ordinary streets and public grounds (or that the cross streets, at least, were intended to be extended to the river at some future day) than that a town located upon the bank of such a river, and at point selected for its commercial advantages, should be wholly shut out from free and common access to the river. The unreasonableness of this latter presumption has been more than once declared by this court, and the fact that a town is laid off upon the bank of a navigable river has been held to be sufficient evidence of its extending to the water, unless a contrary intention is manifestly indicated.”
The Supreme Court of Alabama, in the case of Webb v. Demopolis, supra, in discussing a state of facts quite similar to that presented in this case said:
“The river thus being a leading inducement to the location of the town and to the purchase of lots therein, it would have been singular indeed if the proprietors of the site had not made provision looking to the utilization of this waterway by those who had been induced in great part to settle there because of the facilities for transportation offered by it, and the public at large, by so laying out the town as to afford easy access to the river from the town, and vice versa. They did not fail to make such provision, but left the whole river front of the city open, unobstructed and free of access. * * * As to the extent of this dedication, or rather as to the limits of the street as dedicated, with reference to the river, there cannot, we think, be two opinions, so far as the question depends upon the intention of the proprietors of the soil. In view of the considerations which led to the establishment of a town at that point, the advantages expected to accrue to the inhabitants thereof from the facilities for transportation and commerce which the juxtaposition of this waterway offered, and the necessity to utilize and conserve these advantages by affording the public ready and unobstructed access to the river — considerations to which we have before adverted — and in view of the fact that, as appears from all the maps, no disposition of any part of the river front to private uses was contemplated by the founders of Demopolis and the dedicators of this street, the conclusion cannot be resisted that they intended that this street should embrace all that part of the site of the town which lay between the numbered lots and the water’s edge at all stages of the river. In no other way could their manifest purpose of providing a common highway, not only along, but to and on the river, be effectuated.”
It has been held that “one who records a plat, and marks upon it spaces that appear to form no part of any platted lots, dedicates, the land represented by the spaces thus excluded to a public use.” Elliott on Roads and Streets, § 119; Porter v. Carpenter, 39 Fla. 14; London & S. F. Bank v. Oakland, 90 Fed. 691; Hanson v. Eastman, 21 Minn. 509; Sanborn v. Chicago & N. W. Ry. Co., 16 Wis. 20; Arnold v. Weiker, 55 Kan. 510; Yates v. Judd, supra.
In addition to this, we have the testimony of one witness as to a positive declaration by the owner, several years after the alleged dedication but whilst he was yet owner of the land, that he had dedicated the water front to the public use. This was competent as a declaration against interest. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244, Allen v. McGaughey, 31 Ark. 252; Eaton v. Sims, 59 Ark. 611.
The only fact proved tending to negative an intention on the part of the owner to dedicate to the water front is that in a conveyance of a lot described according to the number on the plat, executed less than a year after .the filing of the plat for record, the owner inserted a recital declaring the margin of the lake to be the front line of the lot so conveyed. We do not think this is sufficient to overcome the presumption of an intention to dedicate arising from other facts and circumstances proved. Mayor, etc., v. Morris Canal & Banking Co., supra. This is not inconsistent with the dedication, as he may have intended to convey the fee, subject to the public use, so as to give his grantee special authority to prevent invasion by strangers of the front at that point. Indeed if the recital of this deed be given literal effect, it would negative any intention to dedicate Front Street, because, if he conveyed to the margin of the lake, he necessarily included the street in the grant. This he could not do,' for the reason that his previous dedication was irrevocable.
Upon the whole proof, we entertain no doubt that a dedication of water front to the public use was intended by the owner, and his subsequent grantees must be held to an observance of it.
Nor do we think that appellant has sustained his claim to title by adverse possession. The occupancy by his grantors was not of such a character, nor of such continuous duration in point of time,' as to warrant a finding of continuous adverse possession for a period of seven years under a claim of ownership.
The only remaining question is whether appellee has shown such a special and peculiar injury on account of the obstruction, not suffered in common with the. public affected by it, as to give him the right to maintain a suit for injunction against its continuance and for its abatement. We think that, under the established principles of equity on the subject, he has done so. Draper v. Mackey, 35 Ark. 497; Packet Co. v. Sorrels, 50 Ark. 466; Wellborn v. Davies, 40 Ark. 83; Texarkana v. Leach, 66 Ark. 40. It is proved that the convenient use of appellee’s property will be materially impaired by the obstruction about to be erected in front of it, and that the market value of his property will be- depreciated thereby. This unquestionably gives him the right to prevent the obstruction.
The decree is therefore affirmed. | [
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Battle, J.
This action was brought by Nettie Wallis, as administratrix of J. C. Wallis, deceased, against St. Louis, Iron Mountain & Southern Railway Company to recover damages on account of the killing of plaintiff’s intestate, while he was in the employment of the defendant as a switchman in its yards at Coal Hill, Arkansas. She alleged in her complaint that her “intestate came to his death in defendant’s said yards at Coal Hill by and through the carelessness and negligence of the defendant,” and charges negligence against it because it “negligently managed, kept and maintained its railway tracks in said yard over which th,e plaintiff’s intestate was bound to pass in the discharge of his duty as such switchman so as to allow and permit the outside rail in said track at a curve' in said yard to become too high and out of line,” and “permitted the flanges on the wheels or tracks of said car to become too sharp and worn.” These allegations were denied by the defendant in its answer.
When plaintiff had completed the introduction of her evidence in-the trial of this action, the court, on motion-of the defendant, instructed the jury to return a verdict in its favor, which they did, and the plaintiff appealed.
In Catlett v. Railway Company, 57 Ark. 461, this court said: “When the whole case appears to have been developed — that is, the plaintiff has adduced evidence tending to prove all the facts obtainable to sustain his complaint' — and the undisputed evidence is so conclusive that this court .would be compelled to reverse the judgment based upon a verdict in its favor, the court should withdraw the case from the jury, and direct a verdict for the defendant.”
It was proved that J. C. Wallis was at the time of his death in the employment of the appellee, and was foreman of the switch engine at Coal Hill in this State. He was killed, while he was on a train of appellee in the discharge of his duties, by the cars running off the track at Coal Hill. The cars left the rails at a point where there was a considerable curve in the track.
J. F. Hill and A. N. Stanfield, section foremen of appellee, whose business it was to look after and keep in repair certain parts of the track of appellee’s railway, testified in the trial of this action. Hill testified as follows:
“I live at Coal Hill; have lived there a year. I am section foreman for St. Louis, Iron Mountain & Southern Railway. I was acquainted with Mr. J. C. Wallis. He was foreman of the switch engine. I was section foreman over three miles east of Coal Hill, two miles west of Coal Hill, and the yards. Mr. Wallis was killed six feet off the yards — six or seven. Mr. Stanfield had charge of that part of the track over which the train was passing that caused his death. I did not make an examination of the track that morning; I went and worked on it some.
“Q. Did you know the exact spot where the train left the rails ?
“A. Six or seven feet from the head-block; I saw a scar that indicated that the wheel had been on top of the-rail.
“Q. Which side of the track did the wheel leave the rail first?
“A. On the outside of the curve, the north rail.
“Q. Did you make any examination of the track at that place?
“A. Yes, sir.
“Q. What examination did you give the track to find out the cause of the wreck?
“A. Now, sir, I could not tell you; I raised the track about two or three inches; I don’t know whether I raised it three inches or not; I raised it two or three inches. .
“Q. Which rail did you raise ?
“A. Inside of the curve.
“Q. Why?
“A. Because it was a little lower than it should have been.
“Q. How came you to discover it?
“A. A man that is engaged in that department ought to know, and it was a little out of line.
“Q. How much out of line?
“A. Two or three inches out of line; away from where the wheel left the track a little ways, and right where it left the rail, it was out of line a little, and I raised it on down three or four rails.
“Q. Now, Mr. Hill, what do you mean by raising the track? Do you mean to tell the court and jury that you raised the complete track, or both rails ?
“A. The inside rail; that is the only rail I raised.
“Q. How much did you raise it right on the spot where this injury occurred?
“A. My best knowledge is about two inches.
“Q. Would that be the north rail?
“A. No, sir, the south rail.
“Q. Now, you have also testified about the track being partially or slightly out of line; how far west of that did you find the track out of line?
“A. It was out of line about two or three rails.
“Q. How far was the track out of line next to the head-block ?
“A. About an inch and a half. Here was the head-block; about six feet from the head-block the wheels left the rails on this side, and there it jumped the track, and the cars behind this ran on down. I commenced down here, and raised the south side about three or four rails, and I threw this in line here, I reckon, an inch and a half. * * *
“Q. Tell the court and jury how you discovered that track being out of line.
“A. By looking at it.
“Q. I will ask you if you have an instrument you call a gauge to level the track up?
“A. We have, but it does not .show but three inches; the gauge is on the level board, and if you go over three inches it don’t show it.
“Q. Did you put the level board on that track?
“'A. Yes, sir.
“Q. What did you find?
“A. Found about five inches elevation.
“Q. When you first got there, you found one of the rails was elevated about five inches ?
“A. About three or four rails were elevated.
“Q. Was the track in a proper condition at that time?
“A. No, sir; it was some out of shape.
“Q. And the track being out of line could have been discovered by a man that was familiar with that work?
“A. Yes, sir. But us fellows on the road can’t pay attention to all these places out of line. If we have any knowledge about track, we can look at a piece of track and tell whether it is out of line or not.
“Q. If he was capable of keeping up track, could he look at it and tell it was out of line?
“A. Of course, he could.
“Q. What degree of curve is that?
“A. I don’t know that it was ever measured, but in my statement it is 8 or io degree curve. I have been railroading about nine or ten years in the track department; have been section foreman since the latter part of 1895. The track in the condition it was at that time would not have been safe to run twenty-five 'or thirty miles an hour. * * * I don’t know how long this track has been in that condition; it was not on my work; I think I noticed it before that time; it is a wet place; I think it is low now. I don’t know how long before the day Mr. Wallis was killed that I observed the track in that condition; I think I had observed it in that condition before; that was on Mr. Stanfield’s work; I did not tell Mr. Stanfield of its condition, or any one else. I knew that it was in that condition two or three days before the accident.”
Stanfield testified as follows:
“Q. Tell the jury whether or not, where this car went off, whether the track was in line.
“A. I guess it was not exactly.
“Q. How much out of line was it?
“A. I suppose probably about half an inch.
“Q. What should be the difference between the height of the rails?
“A. Three, inches — my instructions from the roadmaster.
“Q. Which side?
“A. The outside.
“Q. Did you put a level on it that morning?
“A. No, sir; about a week before.
“Q. You say possibly it was half an inch or an inch out of line?
“A. Half an inch or an inch.
“Q. How far did that condition out of line extend?
“A. About sixty feet, I believe.
“Q. Which way?
“A. To the north.
“Q. That is, you would call back towards the switch-stand north ?
“A. I noticed the track being out of line the day before the accident occurred.”
The only defects in the track where the cars were derailed were, it was out of line two or three inches, and the north rail was too high, which is shown by the fact that it was necessary to raise the south rail two or three inches. But it is difficult to understand how the latter defect could have caused the derailment of the cars, as they left the track on the north side. It is also difficult to understand why a train running eight or ten miles an hour, or at a reasonable speed, on rails in line and at a proper relative height with no obstruction in its way, could leave the track. An examination of the track showed no cause for its leaving except the defects. The jury might have reasonably inferred that one or both of these defects were the cause.
Two of appellee’s section foremen discovered, before the accident, that its track in the sharp curve was out of line. This was evidence for the jury to consider in determining whether appellee was guilty of negligence in failing to maintain its track in a safe condition.
• The burden of proving that Wallis was guilty of contributory negligence rested upon appellee; and there was no evidence that he knew, or ought to have known, of the defects in the track of the railway, and assumed or ought to have avoided the risks incident thereto.
The court erred in directing the jury to return a verdict in favor of the defendant.
Reversed and remanded for a new trial. | [
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McCulloch, J.
Appellant was indicted, tried and convicted of a misdemeanor in violating the statute against unlawful fishing ; the indictment, omitting the caption and formal parts, being as follows:
“The said Ruke Richardson, in the county and State aforesaid, Chiclcasawba District, on the 14th day of May, 1904, did unlawfully place and erect, and cause to be placed and erected and maintained, in Pemiscot Bayou a sein net and set net, against the peace and dignity of the State,” etc.
The sufficiency of the indictment is challenged on the ground that it is not charged therein that the net was placed in the waters of this State.
The indictment does, however, allege that the offense was committed by placing a net in Pemiscot Bayou. The definition of the word “bayou” is definitely understood, and its use conveys the meaning that a body of water is described as well as if it were charged that the net had been placed in a lake, river or creek. Webster gives the following definition of the word Bayou: “An offshoot of a river; an outlet of a lake; a small river or creek.” “Bayou: In the Southern United States, the outlet of a lake, or one of the several, outlets of a river through its delta; a sluggish watercourse.” Century Dictionary. So the use of the words “waters of the State” would have added nothing to the description of the offense charged in the indictment. The precise word of the statute need not be used; it is sufficient if all the facts which constitute the offense are stated. Wood v. State, 47 Ark. 488; State v. Booe, 62 Ark. 512.
It is contended that the evidence is not sufficient to sustain the conviction. It is admitted that appellant placed the net in the waters of the' bayou, as charged, and took fish therefrom, but he claims that in so doing he was within the exception contained in the statute which provides that “it shall not be unlaw.ful for any person to use a seine or net not exceeding sixty feet in length in any unnavigable stream or lake in this State to catch fish for family use or for picnics and not for sale.” Kirby’s Digest, § 3600. The exception being contained in a proviso, and not in the enacting clause of the statute, it was unnecessary for the State to negative the exception in the indictment and proof. Facts bringing appellant within the exception of the statute are matters of defense, which he must prove; but if, upon the testimony introduced by him tending to establish this defense, taken together with all the other testimony in the case, the jury entertained a reasonable doubt of his guilt, he was entitled to a verdict of acquittal. Cleary v. State, 56 Ark. 124; 12 Cyc. 382, and cases cited; Rayburn v. State, 69 Ark. 177. The court so instructed the jury. Appellant undertook to show that he placed the net to catch fish for family use, and not for sale. He so testified in his own behalf, and introduced other witnesses whose testimony tended to establish that fact. He testified that he visited the net three times, and on each occasion found only one fish in the net, which he took and used, giving a portion to neighbors, and that he did not sell any nor catch them for sale. Fie admitted, however, that he had by other means been catching fish for market. A witness introduced by the State testified that he saw appellant visit the net on two occasions, that he came in a wagon with two tubs to put the fish in, and on one of the occasions he took out of the net about fifteen pounds of fish, and carried them away. The jury evidently did not believe the statement of appellant and his witnesses when they said that he caught the fish for family use and. not for sale. Considering all the facts and circumstances proved in the case, we cannot say that the jury were not warranted in rejecting as untrue the defense offered by appellant.
Affirmed. | [
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Wood, J.,
(after stating the facts.) The proof was not sufficient to show a sale of the land in controversy by the father of appellants. At the time of his death he was the owner, and the land was' contiguous to that upon which he resided and made his home. Clements v. Crawford County Bank, 64 Ark. 7. He had the right, at the time of his death, to claim enough of the land in controversy, contiguous to that upon which his dwelling was located, to make in all 160 acres, provided the number of acres thus selected did not exceed in value $2,500.
When he died, not having made the selection, the right, by the Constitution, was cast upon his minor children. Cowley v. Spradlin, post, p. 190. This case is ruled by that.
The court erred in not permitting appellants to redeem the entire estate in a portion of the lands in controversy under the homestead right. The court also erred in the decree as to rents, improvements and taxes.
Inasmuch as the cause must be reversed and remanded for further proceedings, it is proper to say that the record in the case of Cowley v. Spradlin, post, p. 190, and this record, taken together, disclose the fact that appellants are seeking to redeem in each case from separate owners sixty acres of land as homestead, which, if they should recover, would give them more than the Constitution allows. It appears that the two separate suits were brought on the same day, and service was had on the two several defendants on the same day and at the same time, for aught the record shows to the contrary. It does not appear that the -cases were ever consolidated in the court below, but they were doubtless considered by the court together, and they have been so presented and considered here. The court below should have required appellants to elect as to which one of the two contiguous tracts they- would seek to redeem by virtue of their homestead right, as it was Obvious from the records which the court had before it that they were not entitled to redeem both the tracts at the same time. Either this, or the court should have ordered the defendant in one case to be made a party defendant in the other, for each of the defendants was interested in the suit against the other in the matter of the selection of the sixty acres to be redeemed under the right of homestead. Counsel for appellants in each case has suggested in his brief that it will be immaterial to appellants whether the right to redeem be confined to the 64 acres owned by Spradlin, or that owned by Thompson, or whether the 64 acres for redemption be selected by taking 32 acres from each of them.
We agree with counsel for appellants that the latter course seems more equitable.
For the .errors indicated, the decree will be reversed, and the cause remanded for further proceedings according to the principles and rules of equity, and not inconsistent with this opinion. | [
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McCulloch, J.
This is an action against the railway company to recover damages caused by destruction by fire of plaintiff’s property, a lot of seed-cotton stored in a house near the railroad track.
It is contended that the verdict is not sustained by the evidence. The facts are similar to those in St. Louis, I. M. & S. Ry. Co. v. Coombs, 76 Ark. 132, and the principles of law announced in that case are controlling in this. The plaintiff introduced testimony tending to show that the house containing the cotton was discovered to be on fire a few minutes after the engine passed, and there was no other evidence to explain the origin of the fire. The jury were justified, therefore, in finding that the fire was caused by sparks from the engine, which raised a presumption of negligence and placed upon the defendant the onus, of exonerating itself. St. Louis, I. M. & S. Ry. Co. v. Coombs, supra.
It is not required that the evidence should exclude all possibility of another origin, or that it be undisputed. It is sufficient if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause. Crist v. Erie Ry. Co., 58 N. Y. 638.
The testimon)*- was conflicting as to whether defendant was guilty of negligence in failing to provide proper appliances to prevent the escape of sparks, or in failing to operate the engine with due care. We can not say that the proof was insufficient to warrant a finding of negligence on the part of appellant.
It is claimed that the court erred in .permitting a witness introduced by the plaintiff to state his opinion as to the duty of a railroad engineer in the exercise of due care in handling an engine when passing combustible matter. The witness was shown to have been a practical engineer, who was qualified by experience to testify on the subject. This was not erroneous. The inquiry was as to whether the engineer was guilty of negligence in the operation of this engine, which is alleged to have caused the fire, and it was competent to show by opinions of men experienced in the operation of railroad locomotives the manner in which the same should be properly operated in order to prevent the omission of sparks when passing combustible matter. The court removed all possible prejudice improperly resulting from this evidence by giving the following instructions asked by the defendant: “The court instructs the jury that, unless it is shown from the evidence that the engineer in' charge of said train knew, or in the exercise of ordinary care should have known, that there was stored in the said cotton house loose cotton or other highly inflammable material, it was not his duty to shut off his steam in approaching or passing that part of the track along which said house was situated, and he was guilty of no negligence in failing so to do.”
The court gave the following instruction over the objection of the defendant, and the giving of the same is assigned as error, viz.:
“The court instructs the jury that railway companies, being authorized by law to use steam in the operation of their trains, are bound to use locomotive engines which are of the safest construction for protection against the communication of fire therefrom to property along the lines of their roads, and to supply them with the best approved appliances and contrivances used to prevent the escape of sparks and coals therefrom to the endangering of the property of others, and to use them upon the road with such care and diligence as would be exercised by skillful, prudent and discreet persons having the control and management of them, and a proper desire to avoid injury to the property along the road. The failure to use such locomotive appliances and contrivances, and such care and diligence, on the part of the companies will be negligence, and will subject them to recovery for damages occasioned thereby, provided they occur without the contributory negligence of the owner of the property injured or destroyed.”
The objection urged against this instruction is that it imposes upon the railroad company the absolute duty of supplying its locomotives with the best-approved appliances in use to prevent the escape of sparks, instead of only exercising reasonable care in providing such appliances. The objection is well-founded.
A railway company is, by its charter, vested with a right to operate its railroad, and is not an insurer of property along or near the line of its road, nor of the safety and perfection of the appliances adopted to prevent the escape of fire from its engines. Its duty is merely to exercise reasonable care to provide the best and safest approved contrivances in use to prevent the escape of fire, and it is only liable for a negligent failure in this .respect. There may be several different kinds of such contrivances in use by railway companies, and there may be an honest difference of opinion, among those competent to judge of the matter, as to which is the best and safest. It is conceded by all that none of such appliances will absolutely prevent the escape of sparks under all circumstances. The railway company is only bound to exercise reasonable care in the selection of such approved appliances from those in use, and is not necessarily guilty of negligence because the kind selected proves in the end not to be the best. Of course, it is competent to show what is the best, in order to establish the fact whether or not there has been negligence in making the selection, but it does not necessarily follow as a matter of law that the failure to select the best establishes negligence. St. Louis, I. M. & S. Ry. Co. v. Coombs, supra; Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 Fed. 133; Rosen v. Railroad Co., 83 Fed. 300; Hagan v. Railroad Co., 86 Mich. 615; Flinn v. N. Y., etc., Ry. Co., 142 N. Y. 11; 3 Elliott on Railroads, p.1898
We are therefore of the opinion that the giving of this instruction was erroneous. It is true that the instruction follows the language used by this court in Railway Company v. Fire Association, 55 Ark. 163; but in that case an instruction-of the trial court was not under discussion, and the effect of the evidence in support of the charge of negligence was being discussed. The language used therein was a statement in general terms of the duty of the company to exercise care in the construction and operation of its trains, it being shown by the undisputed evidence in that case that the locomotive from which the fire escaped was in bad condition, and was provided with no contrivances for the prevention of the escape of sparks. The question now presented in the case at bar was not before the court in that case, and was not discussed in tlv opinion. The language used in that case with reference to the undisputed facts therein was not applicable in this case as an instruction to the jury upon the conflicting testimony introduced. It was in conflict with the instructions on the subject given at the instance of the defendant, and was calculated to mislead the jury. St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 155; Fordyce v. Edwards, 65 Ark. 101; Goodell v. Bluff City Lumber Co., 57 Ark. 203; Fletcher v. Eagle, 74 Ark. 585; St. L. & N. Ark. Ry. Co. v. Midkiff, 75 Ark. 263.
For the error in giving this instruction the judgment is reversed, and the cause remanded for a new trial. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by a railroad company from a judgment against it for damages for an injury to one of its employees while he was acting under the orders of a foreman in charge of the work upon which plaintiff was engaged at the time of his injury. The plaintiff and three or four other workmen were on the top of a wooden structure erected as a support for an iron rock crusher. The heavy iron part of the rock crusher was lifted into position by means of a “traveler” with a crane attached, worked by a steam engine. In placing the top of the rock crusher in position the workmen had also to use a “bent.” This bent consisted of two upright pieces and a cross piece some ten or fifteen feet long, connecting these two uprights, all of heavy timbers securely nailed and fastened together. The bottom of these two uprights or legs of the bent were fastened to the top of the wooden structure, on which the rock crusher rested. After the bent had served its purpose, the foreman ordered it removed. When this order was given, some one suggested that a rope be used, so that it could be lowered gradually. But the foreman said that it was unnecessary to use a rope, and ordered the bent to be pushed over and thrown down. As it was pushed over, the top of the upright or leg of the bent next to where the plaintiff was at work caught on a bolt projecting from the “traveler.” As the other side of the bent had nothing to stop or control it, it was pushed or fell forward. The side next to plaintiff, catching on the projecting bolt, caused the bottom of the leg on that side to kick or fly back. It struck plaintiff, knocked him to the ground, and caused him serious injury, on account of which he recovered judgment for damages, and the main question is whether the facts support the judgment.
The liability of the master for injuries to servants rests primarily on the broad principle of law that where there is fault there is liability, but where there is no fault there is no liability. 1 Bevens on Negligence, 734.
In this .case we may say that the 'foreman, having charge of the work for the defendant, stood in its place as its representative, if he by negligence, while acting as foreman, caused the injury, the plaintiff can recover compensation therefor-from the defendant, unless the plaintiff was guilty of contributory negligence, or unless the injury resulted from a risk assumed by plaintiff.
The defendant not only denies that it was guilty of negligence, but it set up both contributory negligence and assumption of the risk by plaintiff as defenses to the action m this case.
There is, of course, a distinction between the defense of assumed risk and that of contributory negligence. The defense of contributory negligence rests on some fault or omission of duty on the part of the plaintiff, and is maintainable when, though the defendant has been guilty of negligence, yet the direct or proximate cause of the injury is the negligence of the plaintiff but for which the injury would not have happened. It applies when the plaintiff is asking damages for an injury which would not have happened but for his own carelessness. On the other hand, the defense of assumed risk is said to rest on contract, which is generally implied from the circumstances of the case; it being a term which the law imports into the contract, when nothing is said to the contrary, that the servant will assume the ordinary risks of the service for which he is paid. The defense of assumed risk comes within the principle expressed by the maxim, Volenti non ht injuria. This defense does not impliedly admit negligence on the part of the defendant and defeat the right of action therefor, as the defense of contributory negligence does, for where the injury was the result of a risk assumed by the servant, no right of action arises in his favor at all, as the master owes no legal duty to the servant to protect him against dangers the risk of which he assumed as a part of his contract of service. Narramore v. Cleveland R. Co., 96 Fed. Rep. 298.
In other words, the defense of assumed risk rests on the fact that the servant voluntarily, or at least without physical coercion, exposed himself to the danger, and thus assumed the risk thereof. Having done this of his own accord, he has no right, if an injury results, to call on another to compensate him therefor, whether he was guilty of carelessness or not. Smith v. Baker (1891), Appeal Cases, 325; opinion of Lord Bowen in Thomas v. Quartermaine, 18 Q. B. Div. 685.
But, though the defenses of contributory negligence and assumed risk are separate and distinct, yet it frequently happens that they are both available in the same case and under the same state of facts. For instance, 3.s we have stated, a servant assumes all the risks ordinarily incident to the service in which he is employed, and it is also true that he cannot recover for an injury caused by his own negligence. Now, it may turn out that the injury of which the servant complains was not only due to one of the ordinary risks which the servant assumed, but that it was also caused in part by his own negligence. In dealing with such a case it is, so far as results are concerned, immaterial whether it be disposed of by the courts on the ground of assumed risk or contributory negligence, for either of them make out a good defense. For this reason, the distinction between these two defenses is not always brought out in the reported cases, it being often .unnecessary to do so. We have thought it well to point out the distinction between them in this case, to avoid any confusion of the law in its application to the facts of this case.
I'n the application of the doctrine of assumption of risks a distinction must be also made between those cases where the injury is due to one of the ordinary risks of the service, and where it is due to some altered condition of the service, caused by the negligence of the master. The servant is presumed to know the ordinary risks. It is his duty to inform himself of them; and if he negligently fails to do so, he will still be held to have assumed them. The decision in the recent case of Grayson-McLeod Co. v. Carter, 76 Ark. 69, rests on that ground, as do many other cases found in the reports. But- the servant is not presumed to know of risks and dangers caused by the negligence of the master, after he enters the service, which changes the conditions of the service. If he is injured by such negligence, he can not be said to have assumed the risk, in the absence of knowledge on his part ‘that there was such a danger; for, as we have before stated, the doctrine of assumed risk rests on consent; but if the injury was caused in part by his own negligence, he may be guilty of contributory negligence. On the other hand, if he realizes the danger, and still elects to go ahead and expose himself to it, then, although he acts with the greatest care, he may, if injured, be held to have assumed the risk. Mahoney v. Dore, 155 Mass. 513; Lloyd v. Hanes, 126 N. C. 357; Smith v. Baker (1891), Appeal Cases, 325.
Now, the injury in this case did not result from one of the ordinary risks of the employment which a servant of full age and experience must be presumed to have known, whether he did so or not. But, as the jury found, it was brought about during the course of his service by the negligence of the foreman who had charge of the work, and in that respect represented the defendant. Where the condition of the service is thus altered, and the servant is brought face to face with a danger of that kind not ordinarily incident to the work, then, as before stated, new questions are presented. The plea of the master that the servant assumed the risk is met in such a case by the answer that the danger arose from the master’s own negligence, which is not one of the risks assumed by the servant. This being so, the master, to make good his defense of assumed risk, must go further, and show that the servant voluntarily subjected himself to the new danger with full knowledge and appreciation thereof, for such risk constitutes an addition to those ordinarily incident to the service, and there is no presumption that he had knowledge of or assumed it.
This question was thoroughly considered and discussed by the judges "’of the Tlouse of Lords of England in the case of Smith v. Baker (1891), Appeal Cases 325. In that case the plaintiff was, with other workmen of defendant, engaged in drilling holes in rock for the purpose of blasting. Another set of workmen were, by means of a movable crane operated by a steam engine, moving the stones that had been blasted. These stones were often without notice swung over the heads of plaintiff and those working with him. He was aware of the danger, but continued at work without protest, and was afterwards injured by a stone dropping upon him. In discussing the question as to whether the plaintiff assumed the risk by continuing at work under those circumstances, the judges called attention to the fact that the maxim upon which the rule of assumption of risks was based was not Scienti non ñt injuria but Volenti non ñt injuria. In other words, is is not the mere knowledge of danger, but consent to be exposed thereto, that prevents a recovery for a resulting injury. A majority of them therefore concluded that the mere fact that the servant remained at work after discovering the danger to which he was exposed did not authorize the court to say as a matter of law that he consented to assume the risk. They held that whether he did so or not was under the facts of that case a question for the jury. The justness of this decision has been recognized by some of the American courts. Mahoney v. Dore, 155 Mass. 513; Lloyd v. Hanes, 126 N. C. 359.
But, though this decision of the highest English court seems to be logically sound, yet the law in this country, as settled by numerous decisions, is to some extent different. The rule here seems to be that one who, knowing and appreciating the danger, enters upon a perilous work, even though he does so by order of his superior, must bear the risk. In other words, even though he may perform the work unwillingly under orders from his superior, yet, if there was no physical compulsion, and if he knew and appreciated the danger thereof, he will in law be treated as having elected to bear the risk, and cannot hold the employer liable if injury results. Southwestern Telephone Co. v. Woughter, 56 Ark. 206; Ferren v. Old Colony Railroad, 143 Mass. 197; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71; Stiller v. Bohn Mfg. Co., 80 Minn. 1; Mundle v. Hill Mfg. Co., 86 Me. 400; Fickett v. Fibre Co., 91 Me. 268; Texas & Pacific R. Co. v. Swearingen, 196 U. S. 57; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64; Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665.
But plaintiff in this case exposed himself to the danger in obedience, to an order of the foreman. As the danger was brought about by the negligence of the foreman, before it can be said, as a matter of law', that plaintiff assumed the risk thereof by the mere fact that he went ahead with his work, it must be shown that when he did so he knew and appreciated the danger to which he exposed himself by doing the work. But, as plaintiff was busily engaged in work which required his attention, we think it was open for the jury to say that he did not know of or fully appreciate the danger, and that therefore he did not, by continuing at work, assume the risk of injury to which he was exposed by the carelessness of the foreman. Taking into consideration the fact that it would probably have been safe to have pushed the bent over without the use of a rope to control it, but for the fact that there was a nut projecting from the traveler which was liable to catch one side of the bent, that this danger escaped the attention of the foreman whose duty it was to guard against it, that plaintiff’s attention was distracted more or less by his work,-we think it exceedingly probable that he not only did not assume the risk caused by the act of the foreman in ordering the bent pushed over without a rope attached to control it, but that he was not even aware of the danger until too late to escape. He knew, of course, that the order had been given to push the bent over without the use of a rope, but we think it was open for the jury to find that he did not know and appreciate the danger to him that this order involved, and that therefore he did not by remaining at work assume the risk. Southwestern Telephone Co. v. Woughter, 56 Ark. 211; Lloyd v. Hanes, 126 N. C. 359; Mahoney v. Dore, 155 Mass. 513; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71; Mundle v. Hill Mfg. Co., 86 Me. 400; Stiller v. Bohn Mfg. Co., 80 Minn. 1; Nofsinger v. Goldman, 122 Cal. 609; Fickett v. Fibre Co., 91 Me. 268; Shearman & Redfield on Neg., § 214.
The next question is whether or not plaintiff was guilty of contributory negligence. Now, in this case, as we have before stated, the plaintiff when injured was acting in obedience to an order of the foreman in charge of the work who represented the defendant company. The order of the foreman to push the bent over carried with it an implied assurance that the act could be done with reasonable safety, for it is the duty of the master or his representative to use due care, and not to order the servant to perform an act that he knew to be unnecessarily dangerous. The servant has the right to rely upon the judgment of the master unless the danger is so obvious that no prudent man would incur it under like circumstances. For this reason we do not think that, because the plaintiff and the foreman under whom he was working were both in a position to have discovered the danger that caused this injury, it necessarily follows that if one was negligent both were negligent. It is true that they were both held to the exercise of ordinary care only; but what is ordinary care may vary with the circumstances and with the duty required, and the duty required of these men and the circumstances under which they acted were different. The plaintiff was actually engaged in work under the direction of the foreman. When the bent was ordered pushed over, it became necessary for him to unfasten the brace by which it was held in position, and to draw the nails by which the end of the leg of the brace was fastened to the structure on which it rested. This required him to look down, instead of upwards. He completed this work just as the bent began to fall. Up to that time his attention was necessarily directed to his work. But the foreman was doing no labor himself. He was directing the labor of the plaintiff and others. In order to do this, he was standing on the side of the hill a few yards away from the structure where he could overlook and direct the work. It was his duty, before ordering the bent thrown down, to ascer tain that the execution of his order involved no unnecessary danger to the men engaged in the work. When we consider that the plaintiff had the right to rely upon the performance of this duty by the foreman, that plaintiff’s attention was more or less required by the work he was doing, it seems very clear, under the facts of this case, that the jury were justified in finding that the foreman was guilty of negligence, but that the plaintiff was not.
The objection to the fourth instruction or paragraph of the charge on the ground that it permitted the jury to make such a finding must therefore be overruled. '
The question of whether plaintiff was guilty of contributory negligence was, we think, properly submitted, and the finding of the jury must stand, for it cannot be said, under the facts of this case, that the danger was so obvious that no prudent man would have incurred.it. Southwestern Telephone Co. v. Woughter, 56 Ark. 206; Sneda v. Libera, 63 Minn. 337.
Counsel for defendant raise several objections to the charge, of the court. The first instruction is objected to on the ground that it told the jury that a servant does not assume the risk of the negligence of the master or. of one acting for him. This is clearly the law. The modification of this instruction asked by defendant was not correct, for the mere fact that the servant knows of the master’s negligence, or could have known of it by the use of reasonable care, and continued his work without objection, does not necessarily show that the servant assumed the risk. As before stated, to have this effect it must be shown, npt only that the servant was aware of the negligence, but that he also realized the danger to which he was thereby exposed.
The refusal to give instructions five, six and seven requested by defendant was not error. To quote from the brief of counsel for appellant, these instructions were based on the theory that “if plaintiff was of sufficient experience to enable him to see and understand the dangers connected with the work, and if he knew, or by the exercise of ordinary care and observation could have known, that a rope was not to be used, and continued ‘at his work without objection, then he assumed the risk.” These instructions make the fact of knowledge on the part of the plaintiff that a rope was not to be used equivalent to knowledge of the increased danger to which he was thereby subjected. The servant may have known that a rope was not to be used, and yet not realized the danger to which he was thereby exposed. Without such realization, there was no reason to hold that he assumed the risk of obeying the order of his foreman.
It would serve no useful purpose to take up each of the instructions given and refused by the court. Sufficient to say that we have given the objections presented by counsel thereto careful consideration, and are of the opinion that no error was committed. The evidence is sufficient to sustain the judgment, and it is therefore affirmed. | [
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Battle, J.
The German National Bank brought an action against the Arkansas Southern Railway Company, to recover the value of cotton on bills of lading issued by the company for the cotton and assigned to the bank; the cotton never having been delivered.
The facts in the case are substantially as follows: Alphin & Lake Cotton Company were dealers in cotton at Little Rock, Arkansas, and were the principal owners of a compress at El Dorado. They purchased cotton at Bernice, La., and at Junction City, Ark., and at other places along the road of the railroad company. At Bernice the cotton purchased was paid for by the Bank of Bernice and shipped in its name over the railroad of the defendant to El Dorado, a terminus of the railroad, about thirty miles from Bernice. Bills of lading were issued to the shipper in which it undertook to deliver the cotton to shipper’s order at its destination. They were forwarded to the Bank of Little Rock with drafts on Alphin & Lake Cotton Company attached for collection. Nine hundred and fifty-one bales of cotton were purchased by Alphin & Lake, and shipped in the name of the Bank of Bernice over defendant’s road from Bernice to El Dorado. Bills of lading were issued for all of them, and forwarded to the Bank of Little Rock with drafts attached in the manner indicated.
“Cotton at Junction City was handled very much in the same way, except that the bills of lading showed Alphin & Lake Cotton Company as consignor, and the bills of lading, with drafts for price attached, were forwarded to the Bank of Little Rock.
“When the drafts and bills of lading arrived at Little Rock, Alphin & Lake Cotton Company would draw drafts for the amount on the Bank of Little Rock, which would pay the same by taking up the- original drafts for the price of the cotton, and would retain the bills of lading as security for the amounts and all other indebtedness Alphin & Lake Cotton Company owed that bank.
“The bills of lading were all to shipper’s order, care of compress, El Dorado, Ark., notify Alphin & Lake Cotton Company. The cotton was usually loaded on the cars before the bills of lading were signed, and usually left the shipping station the same or next day after the bills of lading were signed up, and reached El Dorado within twenty-four hours after it left Bernice, and was delivered to the compress company for account of Alphin & Lake Cotton Company.
“The railroad had no warehouse or place for delivery or storage at El Dorado. It only had a joint track with the St. Louis, Iron Mountain & Southern Railroad Company, and the two roads maintained a joint agent, Hutchinson, at that place. The Arkansas Southern Railroad Company delivered all cotton which came in over its road at the compress. It had no cotton platform, and the compress was the only place it had for the de livery of cotton. Before the cotton was delivered to the compress a memorandum was made of it in a little book by the railroad, showing the initial and number of the car, the number of bales in the car, and the place of shipment. The cotton was checked up by Mr. Wright, assistant manager of the compress company, and, if found correct, he wrote ‘O. K.,’ and signed his name on it with the date of his O. K.
“In delivering cotton to the compress company no other directions were given to it than that contained in this little book. Nothing was said about it in any other way. It was just delivered by that little book, and that was all that passed between the parties. It was always supposed to belong to Alphin & Lake Cotton Company by the compress and railroad, and was unloaded at once. All the compress company did was to count the cotton and O. K. the book as to the number of bales. Neither ‘S. O.,’ meaning shipper’s order, nor ‘Care of the compress company’ was on this little book. ‘S. O.’ appears to be upon the book now, but was placed there after the cotton was delivered. It was not on the waybill from which the book was made up.”
The cotton was treated as belonging to Alphin & Lake Cotton Compress Company, and was delivered without taking up the bills of lading.
“On December 6, 1902, Lake applied to the German National Bank, which advanced $17,806 on bills of lading for 558 bales of cotton, and on December 11 the bank advanced $19,200 on bills of lading for 441 bales, with the understanding that the bills of lading first delivered should also stand for the last advancement. At the time Lake applied for the first advancement, the bills of lading were in the hands of the Bank of Little Rock. He stated that the Bank of Little Rock had required Alphin & Lake Cotton Company to reduce its account, and a draft was drawn by the company upon the bank in favor of the Bank of Little Rock, with the bills of lading attached, which was presented by and paid to the Bank of Little Rock. At the time the advancement for $19,200 was made the bills of lading were the property of the Bank of Little Rock, and Lake was permitted to take them from the Bank of Little Rock to the German National Bank with the understanding that they or the money for them should be returned to the Bank of Little Rock. The German National Bank issued $10,000 in New York exchange in favor of the Bank of Little Rock, and paid $9,200 in cash, which Lake and Perrie. handed to the Bank of Little Rock in lieu of the bills of lading, and the account of Alphin & Lake Cotton Company was credited, with $19,200 by the Bank of Little Rock.”
The German National Bank lost the cotton. It was delivered to other parties. The bank recovered judgment in this action; and the defendant appealed.
Is appellant responsible for the loss of the cotton?
At common law a bill of lading is a muniment of title to the goods or property therein specified; is a symbol or representative of the goods; “when properly indorsed and delivered, with the intention of passing the title to them, is a symbolic or constructive delivery of the goods themselves;” and, when assigned, the carrier, having notice of the assignment, becomes bound to deliver the goods to the assignee. If the goods, by the terms of the bill of lading, are deliverable to the order of the shipper, the carrier should not deliver except upon production of the bill of lading properly indorsed by the shipper; “for this notice is to the carrier that the shipper intends to retain in his power the ultimate disposition of the goods.” North Pennsylvania Railroad Company v. Commercial Bank of Ohio, 123 U. S. 727, 734, 736; The Thames, 14 Wall. 98; Hutchinson on Carriers (2 Ed.), § § 129, 130; Daniel on Negotiable Instruments, § § 1728, 1731.
The responsiblity of the carrier for the goods continues after their arrival at the place of destination, until they are ready to be delivered and the owner or consignee has had a reasonable time and opportunity to examine them and take them away. If they are not called for by the party entitled to them within that time,' it is the duty of the carrier to retain them until they are claimed or store them prudently for and on account of their owner. When his responsibility as a carrier ceases, he becomes liable for the goods as a warehouseman. He is responsible, either as carrier or warehouseman, until the goods are properly delivered.. The bill of lading is evidence of that obligation. North Pennsylvania Railroad v. Commercial Bank, 123 U. S. 727, 734, 736; The Thames, 14 Wall. 98; The Titania, 124 Fed. Rep. 975; Blumenthal v. Brainerd, 38 Vt. 402.
For the enforcement of these duties and the protection of the parties in interest, the statutes of this State provide: “Ware-house receipts given by any warehouseman, wharfinger or other person or firm for any goods, wares, merchandise,- cotton, grain, flour or other produce or commodity, stored or deposited, and all bills of lading and transportation receipts of every kind given by any carrier * * * may be transferred by indorsement in writing thereon, and the delivery thereof so indorsed, and any and all persons to whom the same may be transferred shall be deemed and held to be the owner of such goods, wares, merchandise, cotton, grain, flour or other produce or commodity, so far as to give validity to any pledge, lien or transfer given, made or created thereby, as on the faith thereof, and no property so stored or depósitedj as specified in such bills of lading or receipts, shall be delivered except on surrender and cancellation of such receipts and bills of lading; provided, that all such receipts and bills of lading which shall have the words, 'Not negotiable,’ plainly written or stamped on the face thereof shall be exempt from the provisions of this act.” Kirby’s Digest, § 530.
And the act further provides: “Any warehouseman, wharfinger, forwarder or other person who shall violate any of the provisions of this act shall be deemed guilty of a criminal offense, and upon indictment and conviction shall be fined in any sum not exceeding five thousand dollars, or imprisonment in the penitentiary of this State not exceeding five years, or both; and all and every person or persons aggrieved by the violation of any of the provisions of this act may maintain an action at law against the person or persons, corporation or corporations, violating any of the provisions of this act, to recover all damages which he or they may have sustained by reason of any such violation as aforesaid, before any court of competent jurisdiction, whether such person or persons shall have been convicted of fraud as .aforesaid under this act or not.” Kirby’s Digest, § 531.
Appellant does not claim that it has delivered the cotton in question in compliance with these statutes, -but contends that the statutes are in conflict with the clause of the Constitution of the United States which vests Congress with power to regulate commerce among the States. But they are not. in conflict. It is the duty of the carrier to deliver property specified in a bill of lading to the legal holder thereof. The object of the stat utes, and the effect, if obeyed, is to enforce this duty and protect the rights of the holder. In the absence of Congressional legislation upon the subject, the State can do so.
In Western Union Telegraph Company v. James, 162 U. S. 650, the court held that a statute of the State of Georgia, “requiring every telegraph company with a .line wholly or partly within that State to receive dispatches on payment of the usual charges and transmit and deliver them with due diligence, under a penalty of $100, is a valid exercise of the power of the State in relation to messages by telegraph from points outside of and' directed to some point within the State.” The court in construing that statute says: “The statute in question is of a nature that is in aid of the performance of duty of the company that would exist in the.absence of any such statute, and it is in no wise obstructive of its duty as a telegraph company. It imposes a penalty for the purpose of enforcing this general duty of the company. The direction that the delivery of the message shall be made with impartiality and in good faith and with due diligence is not an addition to the duty which it would owe in the absence of such a statute. Can it be said that the imposition of a penalty for the violation of a duty which the company owed by the general law of the land is a regulation of or an obstruction to interstate commerce within the meaning of that clause of the Federal Constitution under discussion? We think not.”
In Chicago, Milwaukee & St. Paul Railway Company v. Solan, 169 U. S. 133, it was held that “a statute of a State providing that no contract shall exempt any railroad corporation from the liability of a common carrier, or carrier of passengers, which would have existed if no contract had been, made does not, as applied to a claim for an injury happening within the State under a contract for interstate transportation, contravene the provisions of the Constitution of the United States empowering Congress to regulate interstate commerce.” The court said: “Railroad corporations, like all other corporations and persons doing business within the territorial jurisdiction of a State, are subject to its laws. It is in the law of the State that provisions are to be found concerning the rights and duties of common carriers of persons or of goods, and the measures by which injuries resulting from their failure to perform their obligation may be prevented or redressed. Persons traveling on interstate trains are .as much entitled, while within a State, to the protection of that State as those who travel on domestic trains. A carrier exercising his calling within a particular State, although engaged in- the business of interstate commerce, is answerable, according to the law of the State, for acts of nonfeasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place; or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law. It is equally within the power of the State to prescribe the safeguards and precautions foreseen to be necessary and proper to prevent by anticipation those wrongs and injuries which, after they have been inflicted, the State has the power to redress and to punish. The rules prescribed for the construction of railroads, and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the scope of the local law. They are not, in themselves, regulations of interstate commerce, although they control, in some degree, the conduct and liability of those engaged in such commerce. So long as Congress has not legislated upon the particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of the police power of the State to regulate rights and duties of all persons and corporations within its limits.”
We have made investigation for, and have not found, statutes of Congress upon the subject-matter of sections 530 and 531 of Kirby’s Digest. These statutes do not impose any burdens upon interstate commerce, but are in aid of it, to the extent that they provide for the enforcement of duties and protection of rights already existing; and are useful and necessary legislation, and are valid, in the absence of, Congressional legislation inconsistent with them. Railroad Company v. Fuller, 17 Wall. 560; Gulf, Colorado, etc., Railway Co. v. Heff ley, 158 U. S. 103; Nashville, C. & St. L. Railway Co. v. Alabama, 128 U. S. 96.
In Central of Georgia Railway Company v. Murphy, 196 U. S. 194, cited by appellant, the State statute in question imposed upon the initial or any connecting carrier the duty of tracing freight which had been lost, damaged or destroyed on its or connecting carrier’s line, and of informing the shipper, in writing, when, where, how and by which carrier it was lost, damaged or destroyed, and of giving the names of the parties and their official position, if any, by. whom the truth of the facts set out in the information can be established; and provided, that “if the carrier to which application is made shall fail to trace said freight and give said information, in writing within the time prescribed, it shall be liable for the value of the freight lost, damaged or destroyed, in the same manner and to the same amount as if said loss, damage or destruction occurred on its line.” The court held that statute was a violation of the interstate commerce clause of the Federal Constitution and void. The court, in considering this statute, said: “Without the 'provisions of the statute in question, the plaintiff in error would not be liable to the shippers in this case, if, without negligence, they delivered the consignment in good condition to the succeeding carrier. This they offered to prove was the case. But, if this statute be valid, this limitation of liability can only be availed of by the railroad company by complying with the provisions. In other words, before it can avail itself of the exemption from liability beyond its own line, provided by its valid contract, the initial or any connecting carrier must comply with the terms of the statute, and must, within thirty days after notification, obtain and give to the shipper the information provided for therein. ■> This is certainly a direct burden upon interstate commerce, for it affects most vitally the law in relation to that commerce, and prevents the exemption provided by a legal contract between the parties from taking effect, except upon terms which we hold to be a regulation of interstate commerce. * * * The effect of such a statute is direct and immediate upon interstate commerce. It directly affects the liability of the carrier of freight destined to points outside the State, with regard to the transportation 'of articles of com merce; it prevents a valid contract of exemption from taking effect, except upon a very onerous condition, and it is not of that class of State legislation which has been held to be rather an aid to than a burden upon such commerce. The • statute in question prevents the carrier from availing itself of a valid contract, unless such carrier comply with the provisions of the statute by obtaining information which it has no means of compelling another carrier to give, and yet, if the information is not obtained, the carrier is to be held liable for the negligence of another carrier over whose conduct it has no control. This is not a reasonable regulation in aid of interstate commerce, but a direct and immediate burden upon it.” No such objections can be urged against sections 530 and 531 of Kirby’s Digest. The statutes in the two cases are wholly unlike.
Appellant failed to deliver the cotton on the surrender and cancellation of the bills of lading issued therefor, and under the statutes of this State is liable to appellee for damages. But appellant insists that, according to the bills of lading, it was to transport the cotton to El Dorado and deliver it to the care of the compress company, and that when it did so it discharged its whole duty, and was thereby relieved of further responsibility. If this contention be correct, the stipulation in the bills of lading by which appellant undertook to deliver the cotton to the order of the shipper was meaningless. According to the stipulation, it could not have delivered the cotton except upon the production of the bills of lading properly indorsed; for this was notice to the carrier that the shipper intended to retain in his power the ultimate disposition of the goods (cotton). The failure of the legal holder of the bills of lading to appear for the purpose of receiving the cotton when it reached its destination did not relieve appellant of "further responsibility. But under the contract and the law it had the right to store the cotton with the compress company with authority and directions to deliver it to the person entitled to it upon the production of the bills of lading properly indorsed. Under the contract as shown by the bills of lading, it was relieved of liability on account of the storage, but not of the failure to deliver according to law. See Midland National Bank v. Mo. Pac. R. Co. (Mo.), 33 S. W. 521, 525.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) 1. There is no dispute here as to the debt, or that the letters in evidence referred to the note in controversy. Appellant simply contends that none of these letters, when taken in connection with the facts and circumstances as understood by appellant at the time they were written, contains a promise to pay the debt, or an acknowledgment from which the law would raise a promise to pay it, and that therefore the bar of the statute applies. It appears that, before the debt was barred, appellee wrote appellant asking whether he desired to pay off the note or use the money another year. Appellant answered, “I will use the money another year.” In response to a similar inquiry in another letter, he replied, “I will retain the money for another year,” and added a postscript, not signed, “When will my interest become due, and how much is it?” In answer to another letter concerning this note, he writes October 20, 1902, “Your letter to hand. I understand you need $125. Send your note to the Bank of Siloam to be fixed.” In response to another letter of appellee’s, in which he had evidently inclosed the note “to be fixed,” appellant wrote him the following letter:
“Siloam Springs, Ark., October 27, 1902.
“Mr. T. G. Carr,
“New Sharon, Iowa.
“Your letter with my note, dated October 15, 1896, and payable bn or before twelve months after date to T. G. Carr or order, for $500, with ten per cent, interest, received. Were there no payments made on this note? It must have been an oversight of me. Please let me hear from you.
. “R. S. Morris.”
The court was correct in its findings of fact and conclusions of law. The Supreme Court of the United States in Shepard v. Thompson, 122 U. S. 231, uses this language: “The statute of limitations is to be upheld and enforced, not as resting only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But, in order to continue or revive the cause of action after it would otherwise have been, barred by the statute, there must be either an express promise of the debtor to pay the debt, or else an express acknowledgment of the debt, from which his promise to pay may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as -still subsisting as a personal obligation of the debtor.”
In Arnold v. Dexter, 4 Mason (U. S.), 122, a party, on his promissory note being produced to him, said: “It is as good as money.” Judge Story, in speaking of this, said: “I think the evidence sufficient to establish a new promise, and to take the case out of the statute of limitations. The defendant did not deny the validity of the note, but, on the contrary, admitted it to be as good as money. How could this be unless he meant that the money was still due on it, and he was responsible to pay it ?” The correct doctrine is stated in 19 Am. & Eng. Enc. Law (2 Ed.), 303, as follows: “An acknowledgment of the claim as an exist ing obligation is such an admission as the law will imply therefrom a new promise to pay, which will start the statute anew, when it is not accompanied by anything negativing the presumption of an intention to pay the debt.”
In Ringo v. Brooks, 26 Ark. 541, where it was held that the acknowledgment was not sufficient because it did not point out the debt, and was made to a stranger, Judge Searle, in discussing the facts of that case, said: “Like all other acknowledgments and promises having legal force and sanction, they must be made to a party in interest; to the person to whom the debt is due, or one authorized to act for him, and with the intent at the time to pay it.” The court in that case did not say, nor did the court mean, nor was it necessary to hold, that such intention to pay must be expressed in the acknowledgment. All that case meant to hold was that the acknowledgment should be made to the party in interest, and be of such unequivocal character as to recognize the indebtedness as a subsisting obligation, and that there should be nothing in the face of the writing or written evidence of acknowledgment to repel the presumption of an intention to pay which the law raises by such acknowledgments.
Applying these principles to the facts, we are of the opinion that when appellant, in response to inquiries of appellee asking whether he desired to pay the note or use the money another year, answered that “he would retain the money,” he clearly acknowledged the debt as a subsisting obligation. The necessary and natural import of the language, when taken in connection with the inquiry which elicited it, was that appellant already owed appellee money on the note, and that, instead of taking the money which the note called for to pay it, he would further use the money, and let the note which contained his promise to pay run on and be binding from that date. The language of these letters, and of the letters which the appellant wrote after the bar of the statute ha'd otherwise attached, was tantamount to a distinct and unmistakable acknowledgment of the debt represented by the note in controversy as a subsisting obligation.
The trial judge found that the letters referred to supra “were not accompanied by anything-negativing the presumption of an intention to pay the debt.” There is nothing in the proof to warrant this court in overturning this finding.
2. The judgment consists of $500 for the principal,, and $347.90 of accrued interest, at the date of the judgment. Inasmuch as the note sued on did not stipulate that the interest, if not paid, should become a part of the principal, and bear the same, rate of interest, appellant contends that the interest on the judgment should not bear ten per cent. Section 5388 of Kirby’s Digest provides: “Judgment or decrees upon contracts bearing more than six per cent, interest shall bear the same interest as may be specified in such contracts, and the rate of interest shall be expressed in such judgments and decrees.”
The interest due at the time of the rendition of the judgment becomes a part of the amount of the judgment, and by the express terms of the statute the amount of the judgment bears interest at the rate specified in the contract. Badgett v. Jordan, 32 Ark. 154.
Affirm. | [
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