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Battle, J.
W. H. Barnes. and Gus Martin were indicted for gambling in cotton futures. The indictment is as follows:
“The grand jury of Independence County, in the name and by the authority of the State of Arkansas, accuse W. H. Barnes, Gus Martin and J. W. Callahan of the crime of gambling, committed as follows, viz.: The said W. H. Barnes and Gus Martin and J. W. Callahan, on the 15th day of September, 1904, in the county and State aforesaid, did unlawfully buy and sell and otherwise deal in what is known as futures in cotton, with a view to profit; said buying ánd selling and otherwise dealing in the aforesaid cotton futures was not then and there a contract entered into in good faith for the future delivery of said cotton with the actual intention of fulfillment, against the peace and dignity of the State of Arkansas.”
They demurred to the indictment. The demurrer was sustained as to Callahan, and overruled as to Barnes and Martin, who were convicted, and each was fined $250; and they appealed.
Appellants contend that the evidence was not sufficient to convict. It tended to prove that they sold to Barton Matheny the futures on fifty bales of cotton. He paid $50 as margin. About four or five hours after the purchase, cotton declining in price, he paid $50 more as margin. He was called on again for another $50 margin, but he refused “to put up,” and forfeited that which was paid. At the time of the sale nothing was said about the delivery of the cotton. Matheny testified that a receipt was given, and that “it just stated that I had bought so many bales of cotton on a margin of one dollar.” From this the jury might' have inferred that they were speculating upon the fluctuations in the market price of cotton, and that no delivery was contemplated. This is evidenced by the fact that they agreed upon the amount to be paid as margins to cover the decline in the price of cotton and the neglect to stipulate as to the delivery of the cotton, an essential part of every bona fide sale. The margins engrossed their attention to the exclusion of any mention of delivery. From this the jury could have inferred that no delivery was contemplated, and that the intention was to settle according to the difference in the market price of cotton, as indicated by the transactions that followed the purchase of cotton futures. If a delivery had been intended, it does seem to us it would have been natural to mention it, and it would not have been forgotten.
We think that the evidence, although unsatisfactory, is sufficient to sustain the conviction in this court. For the law of the case see Fortenbury v. State, 47 Ark. 188, and Johnson v. Miller, 67 Ark. 172.
Judgment affirmed. | [
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McCulloch, J.
After this case was reversed and remanded for a new trial, it was removed on change of venue, to the circuit court of Yell County for the Dardanelle District, where the defendant was put upon trial at the September term, .1905, and was convicted of murder in the first degree.
Before sentence was 'pronounced, the defendant filed and presented a motion in arrest of the judgment on the alleged ground that “the indictment upon which the defendant was tried was and is void.” The statute provides that “the only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” Kirby’s Digest, § 2427. The indictment contains four counts charging the defendant separately with the murder of his wife, Frances Ince, and children, William Ince, Annie Ince and James Ince. It is contended on behalf of appellant that, more than one offense being charged in the indictment, contrary to the terms of the statute, it is void, and does not sustain the conviction. The statute is as follows: “An indictment, except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative.” Kirby’s Dig. § 2230. The next succeeding section provides what offenses may be joined in an indictment, and does not mention any of the degrees of homicide. Improper misjoinder of separate offenses in an indictment is by the statute made grounds of demurrer, and can only be reached in' that way. Kirby’s Dig., § 2286; Pooler v. United States, 127 Fed. 509; Connors v. United States, 158 U. S. 408; 1 Bishop, Crim. Proc. §§ 443, 447; Clark’s Crim. Proc. p. 296; Cornell v. State, 104 Wis. 527; Forrest v. State, 13 Lea (Tenn.), 103; Com. v. Monahan, 170 Mass. 460. The indictment is not void because of the misjoinder, but the objection must be raised before trial and verdict, so that the court may either quash the indictment or com pel the State to elect upon which count it will proceed. Baker v. State, 4 Ark. 56; State v. Jourdan, 32 Ark. 203; Clark, Crim. Proc. p. 296.
It is next contended that the court erred in permitting the prosecuting attorney to propound to the expert witnesses who testified as to the sanity of defendant hypothetical questions which did not recite all the- facts proved. There is not entire accord among the authorities as to the form in which such questions should be put to a witness and the quantum of facts to be recited therein. There seems to be some discord on the point whether a party may single out a particular fact proved, or the testimony of a particular witness, and recite it as basis of the hypothetical question, omitting all other facts which the testimony tends to prove; but the doctrine is, we think, established by the decided weight of authority that the question need not embrace all the facts which the testimony tends to prove. The party offering the testimony of the witness may select the undisputed facts or such facts as he conceives to be established by the evidence, and predicate his hypothetical question upon them. -Professor Wigmore states the rule thus: “The questioner is entitled to the witness’ opinion on any combination of facts that he may choose. It is often convenient, and even necessary, to obtain that opinion upon the state of facts falling short of what he or his opponent expects to prove, because the questioner can not tell how much of the testimony the jury will accept; and if the proof of the whole should fail, still proof of some essential part might be made, and an opinion based on that part is entitled to be provided for the jury. For reasons of principle, then, and to some extent of policy, the rational conclusion would be that the questioner need not cover in his hypothesis the entire body of testimony put forward on that point by him or by the opponent, but may take as limited a selection as he pleases and obtain an opinion on that basis.” 1 Wigmore on Evidence, § 682.
The question is, to some extent, within the discretion of the trial court. It may, on the one hand, prevent a particular fact or the testimony of a particular witness being singled out and emphasized, or, on the other hand, may exclude facts not within the probable range of the evidence. 1 Greenleaf on Ev. § 441; 1 Wigmore on Ev. § 682.
The undisputed facts were recited in the questions propounded by the prosecuting attorney, and he was permitted to embrace a recital of additional facts concerning the defendant which the evidence tended to establish. We find no error in this respect.
Error of the court is also assigned in permitting witness W. E. Tatum to testify concerning alleged statements and confessions of the defendant. The defendant, to establish hereditary insanity, introduced testimony showing that his father was insane, and also that his sister was insane and had committed suicide. Witness Tatum testified that defendant told him, while confined in jail awaiting trial for this offense, “that his father never was crazy, but that his grandfather’s money sent him to the asylum;” and that he didn’t believe his sister was crazy, but “from what he had heard he believed her husband killed her.” The witness was also permitted to testify that the defendant while in jail sent for him (witness), and made a full confession of the alleged crime, and subsequent to the first trial made a further confession, stating as his reason for killing his wife that he had served a term in the penitentiary for burglary, and had been guilty of larceny frequently, all of which was known to his wife; that he and his wife didn’t get along well together, and she had often threatened to inform upon him, and that he killed her on that account. This testimony was not incompetent. The inquiry was as to the guilt or innocence of the defendant of the crime charged, his sanity and, incidentally, his motive in committing the act. All that he said was competent for the jury to consider in determining his mental condition. His statement of the reasons that he had for killing his wife was competent, so that the jury could judge whether the homicidal act was that of a sane mind prompted by a motive, or the act of a man afflicted with the homicidal mania, as is claimed on behalf of the defendant. His admissions as to the sanity of his father and sister were competent, as tending to contradict the testimony introduced of their insanity. The fact that the mental condition of the defendant is being inquired into, in connection with the other material facts constituting the alleged crime, does not render incompetent his admissions concerning such other facts. They may be considered by the jury, with th_e o.ther testimony, in order to determine the mental capacity of the defendant, and whether or not he committed the crime.
Learned counsel urge with much force, both in the oral argument and in their brief, that the verdict is against the weight of the evidence on the question of the defendant’s sanity. As we said in the former opinion in this case, the testimony tending to show that the defendant was afflicted with the homicidal mania when he committed the awful deed is quite persuasive. It is difficult to conceive of a sane mind so depraved as to prompt the act committed by the defendant in brutally slaying his wife and helpless infant children, and the testimony of the expert on diseases of the mind tends, with great force, to convince us that it was not the act of a sane person. But the testimony was conflicting, and the jury found against the theory of insanity in any ■form. It can not be said that the verdict is without evidence to support it, even conceding that it is against the weight of the evidence. For this court in that state of the proof to set aside the verdict would be a clear invasion of the province of the jury. Whatever may be our impressions as to the weight of the evidence, if there is substantial evidence in support of the verdict, it is our plain duty not to disturb it.
Therefore, finding no error in the proceedings, the judgment must be affirmed.
It is so ordered. | [
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McCulloch, J.,
(after stating the facts.) Under a fair construction of the contract, considering the language employed, the' subject-matter thereof, the circumstances surrounding the transaction and the contemporaneous execution of a deed with convenants of warranty of title to the lands about which the parties were contracting, it must be held that appellee undertook thereby to give appellant, within the time specified, a title not necessarily perfect, but such title as he (appellant) should be willing to accept as satisfactory. The law does not favor forfeitures, and will, when a reasonable interpretation of the contract admits of it, adopt such construction as will prevent á forfeiture. Bain v. Parker, ante, p. 168; Little Rock Granite Co. v. Shall, 59 Ark. 408.
Of course, appellee would be liable to appellant, 'upon the covenant of warranty in the' deed, for any damages' sustained by the' latter on account of failure of 'the titlé to ahy of' the lands conveyed; but a different question arises on the construction of the contract under consideration, and we hold that if appellee has furnished appellant a title which the latter agreed to accept as satisfactory, he is entitled to recover the part of the purchase price retained under the contract. Appellant cannot, under those circumstances, insist on a forfeiture because the title is not found to be perfect, but must be held to have elected to waive the forfeiture, and to rely upon the covenants in the deed for reimbursement for any damages which may be sustained in the future by reason of failure of title.
Appellant contends that the title is neither perfect, nor satisfactory to him, for the reason, among others, that, according to the provisions of the act of March 28, 1899, the confirmation decree did not become final until three years after its rendition. Kirby’s Digest, § 657.
Appellee testified, in his own behalf, that when the contract in question was executed he was not advised of the enactment of the act of 1899, and thought that, part of the land being held under tax title, he would be compelled to wait three years longer, and pay taxes three years before he could confirm under the former statute. Kirby’s Digest, § § 661-675. Hence the stipulation in the contract for the time limit of four years; that when the later statute and the fact that none of the land was held by tax title were called to his attention, he informed appellant of his intention to procure a confirmation under that statute. He further testified that appellant then agreed to accept the confirmation as a satisfactory title, and signed and verified the petition for confirmation. He did not say that appellant expressly agreed, in so many words, to accept the confirmation, but, taking his whole testimony together, it is sufficient, if taken as true, to show an agreement to that effect. It is also shown that appellant entered into a contract for the sale of all timber on the land. Appellant denied that he ever agreed to accept the confirmation as satis-^ factorily perfecting the title. He said that he did not either accept or reject it until after the decree was rendered, when he submitted the matter to his attorneys, and upon their advice rejected the title as unsatisfactory.
The fact that appellant signed and verified the petition for confirmation, • without objection to that procedure, may be con sidered as corroborating, in some measure, the testimony of appellee ; but at all events it cannot be said that the testimony preponderates in favor of appellee. The most that can be said in his favor is that the testimony is evenly balanced on this issue. On this condition of the proof we must, according to the repeated decisions of this court, uphold the findings of the chancellor. His findings of fact will not be disturbed by this court unless against the preponderance of -the evidence. Du Hadaway v. Driver, 75 Ark. 9; Sulek v. McWilliams, 72 Ark. 67; Greer v. Fontaine, 71 Ark. 605; Mooney v. Tyler, 68 Ark. 314.
Appellant sets forth alleged defects in the proceedings and decree for confirmation as reasons for his refusal to accept the procurement of the decree as a satisfactory'compliance with the contract, but this, too, falls within the rule announced that, the chancellor having found that he agreed to accept the decree with the knowledge or opportunity of ascertaining what its legal effect would be, we must follow his findings of fact, when not against the preponderance of the testimony. ■
Decree affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment in favor of defendants in an action of ejectment. The evidence showed that the defendants purchased the land at a sale under a valid decree rendered against the land, condemning it to be sold for the payment of levee taxes. The sale was duly confirmed. Afterwards plaintiff attempted to redeem the land by paying the taxes to the commissioner who made the sale, but under the law at'that time she had no right to do so, and this payment to the commissioner did not affect the rights of the defendants. Banks v. Directors of St. Francis Levee District, 56 Ark. 490.
The five-year statute of limitations applicable to judicial sales commenced to run so soon as the sale was confirmed; and, as more than five years elapsed from that time before the action of plaintiff was commenced, her right of action was barred. Kessinger v. Wilson, 53 Ark. 400.
The fact that the deed to defendants was made by one who had no right to make it amounts to nothing here, for defendants had, by virtue of their purchase and confirmation thereof, the equitable title with the right to the legal title, which made a good defense to the action of ejectment. Alexander v. Hardin, 54 Ark. 480.
Judgment affirmed. | [
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McCulloch, C. J.
Appellant instituted this action in the chancery court of Drew County to cancel a lease executed by Harper Green, the owner of a tract of land in that county, to appellee, Saline Oil & Gas Company, permitting the latter to explore the land for oil and gas and to develop same if discovered. The contract was in writing, executed by the parties on January 19, 1.920, and granted to the lessee the right to explore for gas and oil, and, if the mineral was developed, to pay to lessor one-eighth of the price for the commodities developed and sold. The contract contained the following clause:
“If no well is commenced on said land on or before the 19th day of January, 1921, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to Harper Green, who is hereby appointed agent for such purpose, in the manner hereinafter ' provided, the sum of thirty dollars, which shell operate as a rental to recover the privilege of deferring the commencement of a well for twelve months from saicf date.”
The lessor, Green, executed a second lease to appellant on January 24,1921, and the contention of appellant is that at the time of the execution of the lease to him there had been a forfeiture by appellee of its lease from Green.
It is alleged in the complaint that appellee, not having commenced a well on the leased land within a year, as specified in the contract, failed to pay the rental as stipulated in the contract on or before the date mentioned therein and that the lease thereby became forfeited.
The answer contained a denial of all the allegations of the complaint with respect to forfeiture, and also pleaded that there was no forfeiture by reason of the fact that there had been no declaration or notice by the lessor of the termination of the lease.
There was a decree dismissing the bill for want of equity.
It is contended by counsel for appellee that there is neither allegation nor proof that exploration or development work was not commenced on the place within a year from the date of the lease, and that for this reason the question of forfeiture or abandonment by reason of the failure to pay the rental does not arise. We are of the opinion that this contention is not sustained by the record, and that the point is raised here for the first time.
The terms of the lease contract are set forth in the complaint, and there is a statement that the lessee failed to pay the lessor said rental “in accordance with the terms of said contract, and, having failed to in any manner whatever make such payment on or before the 19th of January, 1921, allowed said lease contract to lapse and become null and void. ’ ’ This allegation was denied in the answer. It was equivalent to an allegation, inferentially at least, that work had not been commenced on the land within the time mentioned, for the contract is set forth in the pleadings, and it is shown that according to its terms the failure to pay the rental within the time specified would not operate as a forfeiture unless there had been a failure to commence work within that time.
The allegation was, it is true, imperfect and indefinite, but the remedy was by motion to make the complaint more definite and certain in this respect.
It is the same with regard to the proof in the case. Both sides directed their proof to the question of payment of the rental, and nothing was said by the witnesses about the failure to commence work. It is clear that both sides introduced proof upon the assumption that there had been no work commenced on the land, and both sides treated the issue of fact in the ease to be whether or not there had'been a forfeiture on account of the failure to pay rental.
Appellee’s manager, in his testimony concerning the failure to pay the rental within the stipulated time, spoke of it as a delinquency, and this necessarily implied that no work had been done on the land.
It is too late now to take advantage of defects in the pleadings and proof as to the failure to allege and prove directly the fact that there had been no work done on the leased premises.
There is really no dispute concerning the material facts in the case. Green was living on the land at the time of the execution of the first lease and continued to reside there up to the trial of this cause. The rental under the lease was not paid to Green, and on January 24,1921, appellant drove out to Green’s home and secured another lease from him on substantially the same terms as the one formerly executed and under which appellee claims.
The evidence shows that Green hesitated about executing the lease until he could make a further inquiry at one of the banks at Monticello to ascertain whether or not appellee had paid the rental money within the time specified in the contract, and he finally executed the lease to appellant -with, the distinct understanding that if, upon further inquiry, it was found that appellee had paid the rental within the time specified, the lease to appellant should be canceled. It was found upon, further inquiry that appellee had not paid the amount into the bank, but on January 29, 1921, appellee paid the rental money to Green, who accepted the same and tendered to appellant the sum of twenty dollars, which was paid to him as consideration for the execution of the lease to appellant. This sum was rejected by appellant, and the present suit was immediately instituted.
This brings us to the decisive point of the case— whether or not a declaration of the forfeiture, or notice of the intention on the part of the lessor to declare a forfeiture before the payment of the réntal, is essential to the consummation of the forfeiture.
We have decided that the time specified for performance in a contract similar to the one now under consideration is of the essence of the contract. Epperson v. Helbron, 145 Ark. 566.
It is contended on behalf of appellee that the case just cited also decides, according to his contention, that there must be a declaration of forfeiture before the offer to pay the rental in order to consummate the forfeiture, but we do not find on consideration of the opinion in that case that that was the question presented or decided. It is true that it was contended in that case that there was a waiver of the forfeiture by failure to give notice, before the payment of the rental, of an intention to forfeit. But we decided that the. placing of notice in the mails by the lessor, properly addressed to the lessee, was sufficient notice; we did not go into the question at all of the necessity for notice. We must therefore treat the question as still being an open one, so far as being covered by the decisions of this court.
According to the great weight of authority, notice of forfeiture is not necessary under a contract similar or identical with the one now under consideration in order to terminate the contract. The authorities on the subject. are to the effect.that where the parties state that the contract shall be terminated unless certain acts are performed within a certain time,, the contract comes to an end without further action unless, notice is provided in the contract itself. That rule is stated in Thornton on the Law of Oil and Gas, Yol. 1, Sec. 182, as follows:
“If the lessor be in possession, notice to the lessee of his intention to declare a forfeiture is not necessary, unless the lease provides for it; and if a notice is necessary, the execution of a second lease, to the knowledge of the first lessee, is a sufficient notice to him. ’ ’
It was decided in the following cases that notice was not required: Allegheny Coal Co. v. Bradford Oil Co., 21 Hun (N. W.) 26, affirmed in 86 N. Y. 368; Mitchell v. Probst, 52 Okla. 10, 152 Pac. 597; Jennings-Heywood Oil Synd. v. Houssiere-Latreille Oil Co., 119 La. 794; Brown v. Wilson, 58 Okla. 392, L. R. A. 1917-B, 1184; Gadbury v. Gas Co., 162 Ind. 9, 62 L. R. A. 895.
In some of the cases a distinction is made between contracts which provide for forfeiture in the event of failure to commence work within the stipulated time “unless” rentals be paid within a certain time, and where the contract provides for payment of rental in the alternative. In the Oklahoma case of Brown v. Wilson, supra, it was decided that there was no real distinction between the two forms of contract, but in the Natural Gas Co. v. Wolcott, 98 Atl. 955, the Supreme Court of Pennsylvania decided that, where the contract was in the alternative, notice of forfeiture was essential. In the decisions which hold that notice is not essential it is upon the ground that, time being of the essence of the contract, if the lessor remains in possession, there can be no reentry, and no further act or notice is necessary in order to terminate the contract.
We think the reasoning of these cases is sound, and in the present instance there was a forfeiture or abandonment of the contract by the lessee. Of course, the lessor had no right to reinstate the contract by acceptance of rentals after having leased the land to appellant.
It follows that the decree was erroneous, and the same is therefore reversed, and the cause is remanded, with directions to enter a decree in favor of the appellant in accordance with the prayer- of the complaint. | [
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McCulloch, C. J.
Alpha Smith (then unmarried) and Mrs. Eva Hall, wife of J. W. Hall, were the owners, as equal tenants in common, of ¡certain real estate in the city of Searcy, which they inherited from their father, and which they occupied as their homestead.
J. W. Hall was engaged in the mercantile buiness in Searcy, and borrowed money from one Quattlebaum in the sum of $500, and executed his note for the same. Mrs. Hall and Miss Smith signed the note as joint makers and executed a deed of trust on said real property to appellee Baldock as trustee to secure the payment of the debt to Quattlebaum. J. W. Hall was also indebted to appellant Bank of Searcy on a note in the sum of $1,000, executed to appellant, with certain other parties as sureties.
When the debt to appellant became due, an extension of time was granted in consideration of the execution by Hall and his wife of a mortgage on the latter’s undivided half interest in said real estate to secure the payment of the debt to appellant. This mortgage was executed subsequent to the aforesaid deed of trust executed to secure the Quattlebaum debt.
The Quattlebaum deed of trust was foreclosed by appellee as trustee under the power of sale contained in the deed, and the property was purchased at the sale by T. J. Phillips, with whom Miss Alpha Smith had intermarried, and the price paid by Phillips for the property at the sale was $1,350, which, after paying the Quattlebaum debt, left a surplus of something more than $800.
Mrs. Hall then executed and delivered to appellant a written order, which constituted an assignment, directing appellee, as trustee, to pay over to appellant the sum of $420, which was about half of the surplus proceeds in the hands of appellee after paying off the Quattlebaum debt. Appellee refused to pay the same to appellant, stating that he would hold the proceeds subject to a settlement of the controversy between Mrs. Hall and Mrs. Phillips concerning the right to said surplus.
This action was brought by appellant in the chancery court of White County against appellee to compel the latter to pay over to appellant the amount of surplus funds in the appellee’s hands covered by the order held by appellant from Mrs. Hall.
The contention of appellant is that Mrs. Hall and Mrs. Phillips were co-sureties for Hall on the note executed to Quattlebaum, that the surplus in excess of the amount paid • in satisfaction of the Quattlebaum debt should be equally divided between said co-sureties, and that appellant was entitled to receive, under the order from Mrs. Hall, the latter’s half of said surplus.
On the other hand, the contention of appellee, who defends under the rights and at the instigation of Mrs. Phillips, is that Mrs. Phillips was not a co-surety with Mrs. Hall, but that she was an accommodation surety at the instance of Mrs. Hall herself, and that the Quattlebaum debt should be satisfied out of Mrs. Hall’s share of the proceeds of the foreclosure sale.
Appellant also contends that, even if the contention of appellee is sound with respect to the controversy between Mrs. Phillips and Mrs. Hall with reference to the division of the fund, this has no application as against the rights of appellant, who holds a mortgage on Mrs. Hall’s undivided half interest, subject only to the prior Quattlebaum mortgage, and that appellant is not bound by any equities arising between the two owners of the property with respect to the distribution of the surplus fund.
Our conclusion is that appellant’s contention on both propositions is unsound. Upon the issue of fact in the case, the testimony is with appellee. Mrs. Phillips testified, and she is not contradicted, that she executed the note at the earnest solicitation of both Hall and his wife, and that they both assured her that she would not be called upon to pay any part of the debt.
The evidence was sufficient to warrant the finding that Mrs. Phillips (Miss Smith, as she then was) did not execute the note as a co-surety with Mrs: Hall, but that it was the intention of the parties that she should merely sign the note and execute the mortgage as surety for Mrs. Hall as well as for Hall himself. On the face of the note itself, Mrs. Hall and Miss Smith were joint makers — not indorsers so as to make them liable in succession as between themselves.
We have often held that “Where the relation of suretyship exists between joint promisors upon a bill or note, their relation may be shown as between themselves.” Vestal v. Knight, 54 Ark. 97; Hamiter v. Brown, 88 Ark. 97; Reed v. Rogers, 134 Ark. 528; Colvin v. Glover, 143 Ark. 498.
The principle thus announced is sufficiently broad in its scope to permit co-sureties to prove their relations to each other for the purpose of establishing their relative equities as against each other.
The reciprocal obligations of sureties to contribute' proportionately to the payment of the principal debt does not depend upon an express contract between them, but is founded upon the principles of equity as a liability growing out of the mutual relationship. Weaver-Dowdy Co. v. Brewer, 127 Ark. 462; Reed v. Rogers, supra. The true state of relationship, however, between co-sureties may be proved for the purpose of establishing their equities as between themselves. Within the operation of this principle, it was competent to show that, while Miss Smith and Mrs. Hall both signed the note, not as- joint makers, but as sureties for J. W. Hall, it was not intended between themselves that Miss Smith should be a co-surety with Mrs. Hall, but that she was to be deemed an accommodation surety for both Hall and his wife. The effect of this was to show that, as between the parties themselves, Mrs. Hall was to be treated as a principal debtor and Miss Smith as a surety.
Appellant is in no better attitude in this case than Mrs. Hall would be if she were claiming the fund, for appellant, under its mortgage from Mrs. Hall and the order from her for the payment of the fund, merely stepped into her place, and appellant can claim only such equities as Mrs. Hall could assert.
The mortgage executed by Mrs. Hall to appellant only conveyed what rights she had in the property itself, which was subject to the prior mortgage to Quattlebaum, and appellant, by accepting the mortgage, was not an innocent, purchaser as to the equities which might arise between the two owners in the surplus funds after the foreclosure of the mortgage.
The mortgage, or deed of trust, executed by the two tenants in common to Quattlebaum did not constitute a severable incumbrance upon the moieties owned by the several owners, but was given jointly as security for the whole debt. Therefore, Mrs. Hall’s half interest in the property was bound for the whole debt, and appellant in accepting the subsequent mortgage from Mrs. Hall did so with notice of the fact that the Quattlebaum deed was a superior incumbrance, and it is therefore not an innocent purchaser as against the equities of the owner of the other half of the land. In other words, the equities of Mrs. Phillips were superior in point of time and must prevail over those of appellant.
The decree of the chancery court was therefore correct, and the same is affirmed. | [
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Smith, J.
Appellant was convicted of rape under an indictment, the charging part of which reads as follows: “In the county aforesaid, on the 24th day of November, 1921, the said Basil Brust did unlawfully, feloniously, violently, forcibly, and against her will, assault and carnally know one Irene Bobbitt, a female person under the age of sixteen years.”
The insistence' is that the adverbs, “unlawfully, feloniously, violently and forcibly,” and the phrase, “and against her will,” qualify only the word “assault,” and charge only a misdemeanor, and that there are no adverbs in the indictment which qualify the verb “know” except the adverb “carnally.”
We think this objection is not well taken. The charge is that the defendant did “assault” and “carnally know.” The verbs “assault” and “know” are connected 'by the co-ordinate conjunction “and”, and we think the adverbs employed limit and qualify both verbs.
It is also objected that the indictment charges two separate offenses. And so it does. But the offenses charged are rape and carnal abuse, and it is permissible to charge these offenses in a single count. Powell v. State, 149 Ark. 311, and oases there cited.
During the cross-examination of the girl assaulted she was asked about a number of incidents tending to show that she had a lascivious mind. She denied making the remarks or being guilty of the conduct inquired about. Thereafter the defendant offered to prove the specific instances of misconduct which she had denied committing. An objection to this testimony was sustained, and an exception saved. The defendant was permitted to offer testimony to the effect that the prosecutrix’s reputation for truth and morality was bad.
No error was committed in the ruling just stated. The case of Lockett v. State, 136 Ark. 473, was a prosecution for -an assault with intent to rape, and it was there said: “Now, it was competent, of course, to impeach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her' part, but appellant was bound by her answers on that subject and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.” See also Jackson v. State, 92 Ark. 71; Maxey v. State, 66 Ark. 523; Pleasant v. State, 15 Ark. 624.
At a time when eleven jurors had been selected the State had two peremptory challenges' left and the defendant had five. The defendant asked permission to challenge peremptorily one of the eleven jurors who had been accepted; but the request was denied. No reason was given to the court, and none appears in the record, why defendant desired to challenge the juror after hav ing previously accepted Mm. No error was committed in this ruling. In the case of Allen v. State, 70 Ark. 337, it was said: “Under the statutes of this State persons summoned as jurors, when called to serve in criminal cases, may be examined under oath touching their qualifications. As each one is called, he is first examined by the State, and then by the defendant, and, after such examination is completed, if the juror is found by the court to be competent, the State shall challenge him peremptorily or accept him; if accepted by the State, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Each party must challenge or accept in the order named when the court declares him competent. After he is accepted by both parties, he cannot be challenged peremptorily without permission. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., §§ 2202-2217.”
It was further said in the Allen case, supra, that, as the record failed to show any reason for challenging the juror after he had been selected and accepted, no error was committed in refusing to allow the defendant to challenge the juror. And, as the record now before us is in similar condition, the same rule must be applied. Brown v. State, 134 Ark. 597; Temple v. State, 126 Ark. 290.
The record shows that the court exercised its discretion to keep the jury together in charge of sworn officers from the time the jury was sworn on the 15th of December until it was discharged, as hereinafter stated, on December 17th, and that during the time the jury had been so ordered kept together, it had divided into two groups, and on more than one occasion these groups of jurors 'became widely separated.
It was also shown that George Taylor, a juror, left the group of which he was a member and went across the street to purchase a cigar, and that in doing so Taylor went out of the hearing of his fellow-jurors and that of the officer having the jurors in charge.
Permitting the jury to divide into two groups did not comply with the requirement that the jury should be kept together after, the court had ordered that action taken. The entire jury should have been kept together; and, as this was not done, the burden then devolved on the State to show that the jury had not been subjected to any noxious influences. Holt v. State, 131 Ark. 391; Armstrong v. State, 102 Ark. 356.
We think, however, this burden was fully discharged. Every member of the jury was called and testified, not only as to communications or other improper influences during the time they were kept together, but also during the time they were permitted to separate, as hereinafter stated, and each juror testified that no one had attempted to communicate to him or with him anything concerning the case on trial. The affirmative showing was made that, while the jury did separate into two groups, a sworn officer accompanied each group and kept the members thereof together and suffered no person to speak to or communicate with them on any subject connected with the trial; nor did they do so themselves. Section 3187, C. & M. Digest.
As to the juror Taylor, the affirmative showing was made that he was away from his fellow-jurors only the length of time required to cross the street and buy a cigar, and during that time he was in the view of the officer having him in charge and that of his follow-jurors. He himself testified that no one mentioned the case in his presence or hearing while he was away from the group of jurors of which he was a member.
Error is assigned because of the refusal of the court to grant a new trial on account of alleged false answers given by a juror on his voir dire as to whether he had ever been interested in the trial of any “sex crime.” The juror answered, on his voir dire, that he had not. We do not set out the examination of this juror conducted before the court on the hearing of the motion for a new trial; but we do not think it was made to appear that he had answered either falsely or evasively the questions which, had been asked him touching his qualifications to ' serve as a juror.
Before the taking of the testimony had been completed, the father of one of the jurors was shot and was brought to a hospital in the city of Paragould, where the court was in session. The attending surgeon was of the opinion that the patient would die, and the juror was advised of his father’s condition. Thereupon defendant filed a motion to discharge the jury. This motion was •overruled, but by consent it was agreed that the trial should be suspended and continued over until the 23rd of January, 1922, with the stipulation that during the interval the jury should be allowed to separate under strict instructions about receiving communications concerning the trial. This order of continuance recites that it was entered by consent of all parties, and that in consideration thereof it was agreed that, in the event the defendant was found guilty, the death penalty would be waived and the punishment should be fixed at imprisonment in the penitentiary for life, and the instructions, without reciting this agreement, told the jury the death penalty had been waived. During this suspension of the trial courts were held in other counties in the circuit. Upon the reconvening of the court the defendant filed a motion to discharge the jury. He insists that this should have been done, notwithstanding the fact that he had consented to the postponement of the trial and to the separation of the jury in the meantime. He insists that he should not be bound by his consent, because, to have done otherwise, would have incurred the displeasure of the jury, and especially would this have been the ease had the jury been kept together during the period of adjournment. The further insistence is made that the protracted adjournment destroyed the integrity of the trial.
The holding of the court in the case of McVay v. State, 104 Ark. 629, is against the contention just stated. That case is not substantially different from the instant case, except that in the case now before us the period of adjournment was for a somewhat longer time than was the adjournment in the McYay case. It is also true that the jury in the McYay case was kept together; while the jury in the instant case .was allowed to separate; but in the opinion in the McYay case it was said: “The court could, in the exercise of its discretion, have permitted the jury to separate during the period of adjournment (Kirby’s Digest, § 2390), and the fact that the court ordered the jury to be kept together did not affect its power to retain the jury during the period of adjournment.”
- It does not appear that the adjournment over in the McVay case, supra, was done by the consent of the defendant; while here express consent to that action was given; and we are of opinion no error was committed in so doing, even though the jury was allowed to separate and the adjournment was for a .longer period of time than that in the McVay case. Shinn v. State, 150 Ark. 215.
During the period of adjournment the defendant was by consent admitted to bail; and while thus at liberty he obtained a license to marry a young lady not connected with the trial. The clerk of the county court was called and, over defendant’s objection, was permitted to testify that when defendant applied for the license he made affidavit that he was then twenty-one years old. In admitting this testimony the court said: “It is not in the mat ■ ter of considering whether the defendant did or did not commit perjury in making the affidavit before the clerk, or swear to an age which has formerly been maintained. Don’t consider it from that point at all.” The defendant did not testify, and it is very strenuousty urged that the admission of-this testimony was error calling for the reversal of the judgment.
It appears, however, that defendant’s mother did testify in behalf of her son, and on her direct examination was asked defendant’s age, and she stated that he was then eighteen years of age. This testimony was offered as substantive matter of defense, the theory being, no doubt, that the jury would not likely believe that a youth of that age would be so amorously crazy as to commit the crime of rape; or it may have been offered to excite the sympathy of the jury on account of the youth of the accused; and it was not, therefore,'improper to prove the- affidavit of the. defendant in obtaining the marriag-e license as a -contradiction of the testimony of his mother and an admission by him that he had in fact attained a more advanced age than she had stated. This was not impeaching testimony, strictly speaking. The defendant saw proper to offer testimony that he was only eighteen years old; and the State met this testimony by proving his own admission that he was older. His declarations were, of course, admissible against him. He had stated to the clerk that he was twenty-one years old; at least the clerk so testified; and if it was proper for the jury to consider the age of the accused in making up their verdict, it was not improper to take into account defendant’s own statement on that subject.
The girl assaulted testified unequivocally that .the crime was committed forcibly and against her will; and there appears to be no error in the record, so .the judgment must be affirmed. It is so ordered. | [
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Wood, J.,
(after stating the facts.)
First. Appellant did not except to the giving’ of instruction number three which'it makes the fifth ground of'its assignment of error in the motion for new trial. Appellant therefore can not complain of the giving of this instruction.
But, passing that, instructions numbered three and four declared the law more in appellant’s favor tifian it had the right to ask under the testimony adduced.
• The proof showed that the work contracted for by appellant with its principal contractor, and which was by him sublet to another,' would necessarily result in injury -to appellee. Where such is the case, the company contracting for the work to be done is liable, although the work is to be done by an independent contractor. This court, while announcing -the doctrine that a railway company is not responsible for the negligent or wrongful acts of an independent contractor in the construction of its work, has not failed to note also the qualifications to the rule. See St. Louis, I. M & S. Ry. Co. v. Gillihan, 77, Ark. 553, and cases cited.
In Martin v. Railway, 55 Ark. 510, this court, after announcing the rule, declared also the limitations as follows: “But this rule-of immunity from liability is not withoüt its qualifications. If the thing to be done is in itself unlawful, a nuisance per se', o'r probably can not be done withoút necessarily doing damage, the person causing it tó be' done by another is as much liable for injuries suffered by third persons from the act done as he would be had he done the act in person.” The qualifications are in fact but a part of the rule. See Railway v. Yonley, 53 Ark. 503, where .this court announces the rule in a quotation from Judge Cooley in his work on Torts, at page 646; also 3 Elliott on Railroads, § § 1063, 1064; 1 Jaggard on Torts, 233 et seq.
The instructions given were really moré favorable to appellant than the facts warranted; for it was undisputed that the work could not be done in the ordinary way without injury to appellee, yet the court submitted to the jury the question of whether or not the work was necessarily injurious to appellee, .and as to whether or not the injury was caused by the negligence of the subcontractor or his employees. The appellant, of course, was not liable for any injury caused solely by the negligence of its independent subcontractor or his employees; or for any increased damages which their negligence might have occasioned. But it was liable for injuries which must have resulted from the prosecution of the work, although the negligence of the independent subcontractor may have increased the- injury and enhanced the damages. The instructions were given in the form most favorable to appellant, ignoring undisputed facts in the record in favor of appellee.
Second. The court did not err in refusing to permit appellant to amend its answer as set forth in the statement of facts. Such an amendment was a work of supererogation on the part of appellant, for it had already adduced before the jury without objection all the testimony bearing upon the issue sought to be raised by the amendment. The amendment was unnecessary, and the court did not abuse its discretion in refusing it, for in so doing no possible prejudice to appellant’s cause resulted.
Likewise, the court did not err in refusing appellant’s request for instruction number one. The making of a survey gave appellant no right in the land on which appellee’s telephone was located, even if the telephone was built after the survey. It was not shown when appellant acquired its right of way, and, unless this was acquired prior to the construction of appellee’s telephone, appellant had no exclusive rights in the ground. Moreover, the clearing of appellant’s right of way was done in 1901, prior to the filing of its map and profile in the office of the circuit clerk of Izard County. The appellant was therefore without authority to do the clearing under the statute, Kirby’s Digest, § 6569, and was liable in damages for the injury caused by its wrongful acts. See authorities supra.
Third. It is conceded by appellee here that the work of which complaint was made was that of an independent contractor. But appellee contends that the work was necessarily injurious to the property of appellee, and that appellant at the time its right of way was cleared was engaged in a wrongful act, and •was therefore liable to appellee for the injury done its property. 'As we have shown, that was the theory upon which the cause was submitted to the jury. There was no prejudicial error in instructions, and the verdict was sustained by the evidence. Affirmed. | [
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Hilk, C. J.
White and associates in a zinc mining venture brought suit in the August, 1903, term of the Marion Circuit Court against Ware and associates to recover possession of the SWyi sec. 21, T. 18 S., R. 15 W., asserting possessory right thereto as a mining claim acquired as follows: That, by virtue of making discovery of mineral on the land, then wild and unoccupied Government land, and posting location notice thereon September 27, 1899, and doing the necessary assessment work for 1900, 1901 and 1902, and complying with the mining laws of the United States and the State and the local rules and regulations of the Marion County Mining District, they had acquired possessory right to it, and that Ware had made application for it to the United States Land Office, and they (White and associates) had in proper time filed therein their adverse claim to Ware’s claim, and they prayed that Ware be ejected and posses sion given to them. Ware and associates admitted possession, and denied plaintiffs’ title, and asserted title in themselves, which they set forth fully, and prayed that plaintiffs’ complaint be dismissed, and that their possession and title be quieted and confirmed. On motion of plaintiffs, which was conceded by defendants, the cause was transferred to Marion Chancery Court, and there progressed to decree in favor of plaintiffs, and the defendants prosecuted this appeal.
This was an “adverse suit” authorized by sec. 2326, Rev. Stat. of the United States, to be brought in a court of competent jurisdiction “to determine the question of right of possession” of a mining claim on Government land, in order that the Government officers may patent the claim to the party establishing right thereto in such possessory action. Giberson v. Wilson, 79 Ark. 581. The action is essentially a law action, and contains no elements of equity jurisdiction, and the answer herein presented no equitable defense.
Under the decision in Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81 (to the correctness of which two members of the court do not subscribe), the decree is not reversible for lack of jurisdiction in the chancery court because appellants did not insist oh a trial at law in the lower court. The appellant does not raise the question now, but the court mentions it so that it may be understood how -this law suit is determined as a chancery suit.
. Passing to the merits, or more properly, demerits, of the conflicting claims, it is found:
That the appellees (plaintiffs below) purchased rights to two mining locations, which were located in -1898, situated one on each forty of the eighty-acre tract in controversy. On September 27, 1899, they filed notice of location seeking an original location then, and did some assessment work thereafter, which will be referred to later. The claim or location was not “distinctly marked on the ground, so that its boundaries can be readily traced,” and the location notice filed did not contain a description of the property, tying it to some natural object by which it could be indentified. These are mandatory provisions of sec. 2324, Rev. Stat.' U. S., and must 'be complied with in order to secure a valid location. Worthen v. Sidway, 72 Ark. 215.
Appellees in August, 1893, after their adverse claim'was filed in the land office and after this suit was instituted, hhd a sur^ veyor run out the lines and blaze around the entire, tract and mark its corners with stones. This was the first attempt of either party to mark the location on the ground, so that its boundaries could be readily traced.
On May 2, 1904, appellees filed an amended notice attempting to follow up the marking on the ground of August, 1903, by proper description tying the location to some natural object for identification. On. the 3d of May by supplement to the answer they asserted title by virtue of such marking and amendment having made valid the original location. The court sustained this location.
' Prior to attempting a location on this property, appellants examined the records of the mining district and found only the insufficient notice of appellees against this property and no affidavits of having done the assessment work; and proceeded to make a location upon it on January 1, 1900. Their notice is similarly defective, a'nd they likewise failed to mark the claim on the ground, but they did proceed to do the assessment work for three years.
■On the trial the appellants gave detailed statements of amount of assessment work done, and its value amounting to $106 for 1901, $124.50 for 1902 and $188 for 1903. This was not controverted, and must be taken as established.
On May 10 and September 26, 1904, appellants also attempted by amendments to their notice to cure its defects, and pleaded the same in supplement to their answer.
The appellee White in his testimony claims to have receipts for $400 worth of assessment work, but does not give a definite statement of what was done or its value. Stegall, a witness for appellees, says that in 1901 he and fhreé others did five days’ assessment work, and he was paid'$1.25 per day for his work, and he knows one of the 'other workmen was paid that amount. He also testifies to doing some assessment work each year which appellees claim to have done work, but he does not prove that the reqúisite work - each year, or any year, was done by appellees. Treat, likewise for appellees,- lived near the land, and saw the .assessment work, and said it was worth as much, or more, than assessment work by others. This was all the evidence to sustain appellees’ claim of having done the annual assessment work, and they did not file the affidavits authorized by section 5364, Kirby’s Digest, which makes such affidavits prima facie evidence of the performance of the work.
The appellants showed by one Ott that he was one of the four men employed by appellees to do the assessment work in 1901, and that they were instructed to do five days’ work each — 20 days’ work in all — and that was all the assessment work done by appellees for that year on this claim. There was other evidence showing appellees’ total work for the four years was worth about $100. Very likely appellees were proceeding under a custom or mining regulation providing for twenty days’ work to count as the requisite $100 worth of work required by the Federal statute, which custom and regulation was held to be in contravention of said statute by this court in Woody v. Bernard, 69 Ark. 579. Be that as it may, it must be taken as established that the appellees failed to do the requisite assessment work under their 1899 location. Up to the amended location neither party had a valid location; the appellees failed for defects in notice and in marking the ground and further failed to dó the assessment work, and appellants failed in the same particulars except as to doing thq assessment work.
Concede, without deciding, that plaintiffs could amend their pleadings so as to assert new rights at this time, the complaint alleged appellants to be in possession, the answer admitted it, and three years’ assessment work under a defeotive notice had been performed by them, and they had a right to amend their location notice and mark the claim on the ground, there being no intervening rights. 1 Snyder on Mines, § § 395 425, 429 & 577-
The appellants had something to amend to, while appellees had nothing to tack their amendment to. An amendment can not relate back and cut out intervening rights. The doctrine of relation can not be invoked to exclude rights built up in the interval which is sought to be covered by the relation back. 1 Snyder on Mines, § 429. Therefore it is plain that the amendment of appellees of May 2, 1904, could not relate back to their defective location of 1899 and cure it in order to defeat rights built up by appellants after the 1899 location.
The case then resolves itself into an inquiry whether appellees’ location of May 2, 1904, can be regarded as an original location, or relocation, and valid as such. It did not purport to be such, but purported to be. an amendment s'eeking to make valid the 1899 location, and it was pleaded and relied upon as an amendment, and not as an original location, but, aside from this, it could not be a valid location or relocation. If anything, this would amount to a relocation by the original locators (1 Snyder on Mines, § § 583, 584); and for the relocation, as well as location, the land must be subject to location, and this land was not then subject to . location on account of the rights and possession of appellants’. At this date they had a right, as against the Government and every one else, to perfect their location, and their improvements had given them possession of the land. Possession may be founded on complete compliance with the mining laws and local regulations or by physical marks or distinct marking of the ground evidencing possession. Possession and improvement alone give no value to a mining claim, but raise a prima facie presumption that the possession is rightful. This subject is fully discussed in 1 Snyder on Mines, § § 452, 457.
Whether appellants’ possession was aided by section 5363, Kirby’s Digest, is not important because the prima facie presumption of the rightfulness of appellants’ possession alone prevents the land being subject to original location as wild and unimproved mineral land.
The appellants’ compliance with the law requiring $100 worth of improvements per annum under a defective location notice gave them a possessory right which is presumed rightful, in the absence of a better right being shown.
The appellees failed in every particular to comply with the mining law, and all rights they had, if any, were forfeited by a failure to do the assessment work. When they attempted to amend their location, they were met with these propositions: (r) They can not cut out other rights by relation, hence the former location can not be patched up against appellants; and (2) they can not make a new location, for the appellants are found in possession of the property improving it under the mining laws, and .the validity of the latter location is not the inquiry. Malecek v. Tinsley, 73 Ark. 610.
Reverse and remand with directions to dismiss the complaint.
Mr. Justice Battle
thinks the court should, stop at the jurisdictional question, and remand for want of jurisdiction in the chancery court. | [
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Riddick, J.
• This is an appeal from a judgment convicting the defendant of the crime of bribery and sentencing him to pay a fine of two hundred dollars and to be imprisoned in the State penitentiary for the term of two years. The defendant was a member of the State Senate in 1905 when a bill appropriating eight.hundred thousand dollars for the completion of the State Capitol was pending before the Senate. The conviction was based on a charge that defendant paid Senator Adams one hundred dollars to induce him to vote for this bill. The evidence, so far as necessary to show the questions of law involved, was as follows: _
,It was shown by the testimony of witness Hinkle that, soon after the organization of the Senate in 1905, lie, with a few other senators, including defendant, Butt, was present in the room of Senator Covington-at the hotel, and that in the course of their conversation Covington said that by standing together they could control legislation, and in substance suggested that they organize and make money by demanding and -receiving pay for the passage or defeat of bills. The witness said that he himself did mot agree to this suggestion, though he made no response to it, but sat silent for a few minutes while it was discussed by the others, and 'then left the room'and did not return. He further stated that he did not remember what the defendant Butt said in reply to this proposition of Covington, “more than that he seemed to agree,” .and that Butt thereupon made out a memorandum of the names of those senators that it was believed could be induced- to enter the combination. -
It was shown by .another witness,. Cook, that -two or three months afterwards, towards the latter part of the session, when bill No. 370, to appropriate eight hundred thousand dollars for the completion of the State Capitol building and for other purposes, had been introduced in the Senate, Caldwell & Drake, a firm of contractors who had a contract for erecting the new Capitol, and who were especially interested in the passage of this bill, paid to witness Cook a large sum of money, over twelve thousand dollars, to be used to influence members of the Legislature. A large part of this, some four or five thousand dollars, was paid by Cook, acting for Caldwell & Drake, to Senator Covington, to be used for that purpose.
It was further shown by the testimony of Senator Adams that the defendant Butt paid him one hundred dollars to vote for the bill,- with the promise of four hundred more when the bill became a law. After the Senate adjourned and the grand jury began to investigate these matters, this witness saw the matter in a new light, and says that he returned the money to Butt. Senator Hardy, another witness, testified that while the bill was pending Butt stated to him that there was a rumor that a large amount of money was being used to pass the bill, and that he could get five hundred dollars for voting for the bill. The language of this witness is not quite clear as to whether Butt stated that the wtiness or Butt could get the money. But, let it be taken either way, and it will seen by reference to the testi mony of Adams set out in' the transcript that Butt approached Hardy in much the same way that he did Adams. Another witness, Hinkle, testified that after the bill was passed it was rumored that money had been used, and that, being informed that Butt had paid Adams one hundred dollars to vote for the bill, he questioned Butt about it; that at first Butt denied it, but finally admitted that he had paid Adams money. Still another senator; Holland, testified that after the Senate had adjourned, and when Covington was being tried, he was told that Adams had returned the money, and he asked Butt about it, and Butt admitted that Adams had returned it, but later made a different statement.
Butt and Covington, who testified for him, both denied about all of this incriminating testimony. This testimony need not be set out here, for the question now is whether the evidence introduced by the State was competent and sufficient to sustain the judgment.
Counsel for appellant contends that there was not sufficient evidence of a conspiracy between Covington and the defendant, Butt, to justify the admission of the declarations and acts of Covington as evidence against the defendant. Before discussing that question, we will say that no declaration by Covington made in the absence of Butt was admitted in evidence. The statement of Covington, made in the presence of Butt, suggesting an organization to control legislation and to make money corruptly, to which Butt assented, is competent, whether there was a conspiracy or not. For that is, in effect, only showing the act- of Butt himself. The statement of Covington was admitted as explanatory of this act, and to show to what Butt assented. But, if this evidence be true, it is difficult to believe that no conspiracy existed. When a conspiracy has been shown, then the acts and declarations of one conspirator in furtherance of the common design may be shown as evidence against his associates, and we think the evidence in this case sufficient to show that there was a conspiracy between Covington and Butt and others to pass Bill 370 through the Senate by bribery.
In a recent case decided by this court the following extract from Underhill on Criminal Evidence was quoted with approval: '■ Direct evidence is not essential to prove the conspiracy. It need not be shown that the parties, actually came together and agreed in express terms to enter in and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the jury from proof of facts and circumstances which, taken together, apparently indicate that they are merely part of some complete whole. If it is proved that two or more persons aimed by their acts toward the accomplishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were - in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved.” This is a clear and correct statement of the law. Underhill on Criminal Evidence, § 491; Chapline v. State, 77 Ark. 444.
Nor is it material now whether the evidence showing the conspiracy was introduced before or after the acts of the confederate were received in evidence, it being sufficient if on the whole case a conspiracy is shown. Now, a conspiracy is a combination between two or more persons to do something unlawful or to accomplish something lawful by unlawful means. Commonwealth v. Waterman, 122 Mass. 57; 6 Am. & Eng. Enc. Law, p. 832.
The evidence tends to show that early in the session at a meeting in his room, Covington made the suggestion to the defendant, Butt, and a few other senators present that they organize for the purpose of controlling legislation and making money-out of it. The-defendant, Butt, did not dissent from this bold proposition to combine for the purpose of extorting bribes, in other words, to go into it as a regular business, but, on the'contrary, if the witness told the truth, he showed a ready response to it, and at once began in a practical way to carry out the suggestion by making ar memorandum of the names of those senators who, it was believed, could be induced to join the combination. Later in the session we find these two men doing the very thing that was on that occasion proposed by one of them and assented to by the other. We find that one of them received several thousand dollars which he takes under a promise to use in- '’,c pas=age of this Capitol bill through the Senate, and shortly after we find the other acting as a distributor of money foe the passage of this bill. • Now, it is certain that Butt did not pay out his own money in such liberal sums on this bill. If he paid out money, it was furnished by some one financiall) interested in the passage of the bill. The evidence shows that there were no others thus interested except the firm of Caldwell & Drake. They did pay out a large sum to bribe senators to' vote 'for this bill. It is therefore morally certain that, if Butt paid out money to bribe Adams on this bill, the money he used came from Caldwell & Drake, either directly or through some agent of theirs. As the evidence shows that this money of Caldwell & Drake was paid to Covington, who was to secure the passage of the bill with the money paid him, it seems probable that Butt was acting under Covington. But, whether that be so or not, they were both engaged in the same undertaking to pass this bill by the corrupt use of money, and were acting for the same principal. Taking the whole evidence together, we think it was amply sufficient to show a conspiracy between them.
But, even if we concede that no conspiracy was shown, a majority of us think that this evidence was competent on another ground. For, while you cannot show separate and isolated crimes or facts having no bearing on the crime under investigation, you can always show all the circumstances connected with the particular crime, even if in doing so you have to bring to light other offenses. You can go back to the time when the intention to commit the crime under investigation was first formed and trace it through all the intervening circumstances to the consummation of the criminal act, and thus lay before the jury the whole transaction.' This is necessary in order that they may correctly ■ judge the motives and conduct of the defendant under investigation. “If,” says the author of a recent work, “several crimes are so intermixed or blended with one another or connected so that they form an indivisible criminal transaction, and a complete account of any of them can not be given without showing the other, any or all of them are admissible against a defendant ón trial for any offense which is itself a detail of the whole criminal scheme.” Underhill, Crim. Ev. § 88.
You might as well expect that one should be able to judge correctly the merits of a play, and of the motives and conduct of the actors as displayed therein, by witnessing only the last scene of the last act, as to expect, where the crime under investigation is part of a connected scheme, that the jury should be able to determine the motives of the defendant and judge correctly of his guilt or innocence without any knowledge of the origin of the crime or the circumstances and motives that led up to it. The law does not blindfold courts and juries in that way, and it is always competent to show the beginning as well as the end of the criminal transaction.
Now, as before stated, the evidence tends to show that this crime had its beginning early in the legislative session. The rising curtain discloses defendant and certain other senators, guardians of the State, assembled in the room of Covington, President of the Senate, gravely discussing, not the good of the State, but how to take over the business of Cox and Cook, two noted lobbyists, control legislation, and make money out of the passage of bills. This was the beginning. Later, when the bill appropriating eight hundred thousand dollars of the State’s money was introduced in the Senate, in which bill Caldwell & Drake, contractors of large means and rather lax ideas about the proper use of money, were greatly interested, an opportunity was presented to put into practice the plan agreed to by Covington and defendant at the beginning of the session.
They did not, however, put Cox and Cook out of business, but acted with them. Cook says that Caldwell put up over twelve thousand dollars to pass this bill. Of this Cook gave Covington $7,000, but $2,500 went for another purpose, leaving about $4,500 to be used in the passage of the bill through the Senate, with the promise of more if it became a law. Cook does not state what he did with the remainder, but he no doubt retained a liberal percentage. Cox appears only in the misty background, but he no doubt got his percentage also. So that the amount paid to Covington probably represents the bulk of that expended on the Legislature. With this sum Covington was to pass the bill through the Senate. The evidence does not directly show to whom Covington distributed this money, or how much of it he retained himself, but it shows that very soon after it was placed in his hands the defendant appeared as the distributor of money to secure the passage of this bill.
As the testimony of Hinkle shows that Covington knew that Butt was ready and willing to engage in a venture of that kind, it, as before stated, seems highly probable that, if Butt paid out any money to secure the passage of this bill, he secured it from Covington. These transactions, from the time the money was paid over by Caldwell to Cook until a portion of it was paid to Adams by the defendant, were áll part of the same scheme to', pass this bill by buying the votes of senators. The evidence that money was paid by Caldwell to Cook and by Cook to Covington for the passage of this bill is competent because it tends to show where Butt procured the money which he paid to Adams and explains the motives that lay behind this act of Butt. He had no personal interest in the passage of the bill, and there was no reason why he should squander money in that way. If it could not be shown where this money probably came from, the testimony of Adams that Butt paid him money to vote for the bill would seem unreasonable. But the whole thing is cleared when you trace the crime back to its source and view the whole transaction. You then see that Butt was not acting for himself alone, but that behind him was a party interested and willing to pay out large sums of money bn this bill. Caldwell did not deal directly with these corrupt legislators, but his desire to make money out of the expenditure for which this bill provided was the moving force that led to this crime, and it was competent to show that he paid money and to trace this money through the different agents into whose hands it came in order to show the whole of the criminal transaction and to explain the motives of the different actors therein. A part of the route that the money took is shown by circumstances only. But, assuming that the witnesses spoke the truth, these circumstances are quite convincing, and to repeat again makes it seem very probable that the money used by Butt came throúgh Covington, and that the whole of this evidence relates to the same criminal scheme. But whether he received it from Covington or not, the evidence tends strongly to show that the act of Butt was only a detail in a larger scheme being carried out by Cox, Cook, Covington and others, and the whole can be shown. We think there can be no doubt of its competency. Melton v. State, 43 Ark. 368.
The objection to the. testimony of McNemer, a witness who testified for the State in rebuttal as to the character of this deferdantj on the ground that it was not confined to a time anterior to the commencement of the prosecution, is’based entirely on the form of the question propounded to this witness and his answers thereto. In these the present tense is used, but his testimony shows clearly that he refers to a time previous to the prosecution. No special objection was made at the trial to this testimony on that.ground, and the exception must be overruled.
Coming now to the charge of the court, objection is made to the fourth instruction given for the State on the ground that “it overrules the statute, and tells the jury that an accomplice for the purpose of the trial is to be considered the equal of any other witness.” But this is not so. The instruction says that, in order to determine the truth or falsity of the testimony of an accomplice, it should be weighed by the same rule as the testimony of other witnesses is weighed. This is correct, for the testimony of other witnesses is weighed by considering their connection with the crime and the defendant and their interest in the case, their appearance on the stand, and the reasonableness or unreasonableness of their testimony and its consistency with other facts proved in the case. The testimony of an accomplice should be weighed in the same way.
Instruction number 8 requested by defendant was clearly erroneous, for it declared that the jury should not consider the fact that Cook delivered money to Covington to be used in the passage of bill No. 370, unless they found “beyond a reasonable doubt that such money or some part of it was delivered to defendant for the purpose of use in the passage of the bill.” Leaving out all other objections, this court has several times held that the different items of evidence that go to establish guilt do not have to be shown beyond a reasonable doubt. That doctrine only applies to the guilt or innocence of the defendant on the whole case. As this instruction was properly rejected oh that ground, we need not notice the other objections urged to it.
The contention is made that the question of whether or not the witness Hinkle was an accomplice should have been submitted to the jury. I felt some doubt myself on this point at first, but the definition of an accomplice quoted by appellant from Wharton shows that the evidence in this case falls short of showing that Hinkle was an accomplice. Wharton, Criminal Ev. § 440. Mere silence in the presence of a crime, or the mere failure to inform the officers of the law when one has learned of the commission of a crime, does not make one an accomplice. Hinkle may have been an accomplice, but the evidence in this case does not show it, ánd the - court did not err in refusing to submit the question to the jury. Melton v. State, 43 Ark. 368; Carroll v. State, 45 Ark. 539.
We have carefully considered the other objections - urged to the rulings of the court in giving and refusing instructions, and in our opinion none of these are tenable.
The prosecuting attorney in his closing argument to the jury said that “in his opinion the State had made the strongest case against Butt that it had made in any of the boodle cases.” On objection being made, the court held the remark to be improper, and instructed the jury to disregard it. This ruling of the court was correct, for there was no need to make such a comparison. But, apart from that, the remark was in effect nothing more than the expression of an opinion by the attorney for the State that the case against the defendant was a strong .one, and as such we doubt if it- could under any circumstances be treated as prejudicial.
This brings us to the question as to whether the evidence was sufficient to sustain the verdict. We have already noticed this evidence, and it need not be repeated here. Whether the witnesses whose testimony implicates defendant and others in this crime spoke the truth was a question for the jury, and not for us. In discussing the case we have assumed that those facts were established which the jury had the right to find from the testimony before them, and the same rule must be applied on this point. Now, one senator testified positively and explicitly that the defendant paid him a bribe of one hundred dollars as alleged in the indictment. Three other senators testified to facts which tended to connect defendant with the crime and to show that he was guilty. Opposed to this testimony of the State is the testimony of the defendant and another senator who was accused of a similar crime, and who the. evidence in this case tends to show was implicated in the crime charged against defendant. It was also shown that defendant had a good character previous to this prosecution. This evidence of his character is probably the most potent evidence in his behalf. In view of the fact that the defendant had previously borne an excellent character, and that it seems unnatural that a man of such character would so soon yield to temptation and be guilty of such a shocking disregard of his duty, there may be those who will disbelieve the evidence against him.
But, although a number of witnesses testified to the good character of the defendant, and only one testified to the contrary, yet the testimony of this witness received some confirmation from the lips of the defendant himself. For defendant, while on the witness stand, after saying that he knew that Tom Cox, whom the evidence tends to implicate in this crime, had the reputation of being a “lobbyist and boodler,”. admitted that he had written to Cox and solicited his support in defendant’s race for the presidency of the Senate, and had visited the home of Cox to see him when he was confined to 'his room on account of illness. Defendant gave explanations of these acts consistent with honest intentions on his part. But these admissions and the explanations which the production of this letter to Cox forced him to make may have aroused in the minds of the jury some suspicion that his character was not as good as his reputation. But while character and reputation may in doubtful cases be weighed with the other evidence in deciding whether one is guilty or not, it is no excuse or justification for crime. The jury have considered the evidence of defendant’s character in connection with the other facts, and have found that he is guilty. After a full consideration of the evidence as found in the transcript, it makes the same impression on us, and we are of the opinion that the verdict was right.
Finding no error, the judgment is affirmed. | [
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BatteE, J.
J. W. Guest sued the Jonesboro, Fake City & Eastern Railroad Company for killing two horses, of the value of $300, and his property, and recovered a verdict and judgment for $300. The question is, was the verdict sustained by the evidence ?
The horses were of the value of $300, the property of the plaintiff, and w'ere killed by the defendant’s train on the track of its railroad. There was evidence adduced tending to prove the following facts:
First. The defendant was running its train with a headlight so dim that nothing -could be seen more than fifty yards in ad- . vanee of the train.
Second. The horses ran from one hundred to one hundred and twenty-five yards ahead of the train and between the rails before going into the trestle where the horses were killed.
Third. Between a curve over which the train passed before killing the horses and the trestle is a quarter of a mile of straight track.
Fourth. That there was every opportunity for the engineer to have seen the horses, if his headlight had been in a condition to enable him to see for a quarter of a mile before he struck them.
Fifth. That the train was stopped “in about its length.”
From this evidence the jury might reasonably have concluded that, if the headlight had been in good condition, the engi neer could- have seen the horses in time to avoid killing them, if he had been keeping a lookout. The evidence was sufficient to sustain the verdict.
. Judgment affirmed. | [
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Riddick, J.
One Charles D. Fossett was in September, 1906, elected road overseer of a road district in Greene County of this State. He failed to qualify as such on or before the 1st day of October following, and the county court which convened in regular session on that day declared the office vacant, and appointed P. H. Sams to fill the same. Sams thereupon qualified, and assumed to discharge the duties of the office. Afterwards the State, on relation to the Attorney General, filed a petition in this court, alleging that Sams.was usurping the office of road overseer without right, and to which De Fossett is entitled, and asked that a writ of quo warranto issue against Sams, and that he be compelled to show under what authority he holds such office,
In response to such petition Sams, among other defenses, denied that this court has authority to issue such writ in a case of this kind. We are of the opinion that the objection is well taken. Under the Constitution this court has no original juris-; diction to issue writs of' quo warranto to prevent usurpation of the office of road overseer. Const. 1874, art. 7, § § 4 and 5; Louisiana & N. W. Rd. Co. v. State, 75 Ark. 443; Ex parte Snoddy, 44 Ark. 221.
As the law does, not expressly vest jurisdiction to hear anil determine such an action in any other court, it falls within the general jurisdiction of the circuit court. The remedy for usurpation of office of road overseer is by an action in that court brought either by the State or the person entitled to the office. Whittaker v. Watson, 68 Ark. 555; Payne v. Rittman, 66 Ark. 201; Const. 1874, art. 7, § 11; Kirby’s Digest, § § 7981-7989.
Writ denied and petition dismissed. | [
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Wood, J.
(after stating the 'facts.) Appellee had no right upon appellant’s right of way, and especially to be walking upon a path in such proximity to appellant’s railroad track at a time when one of its trains was passing thereon. I'n so doing he was a trespasser, and appellant owed him no positive duty of care, and only the negative duty to ¡exercise ordinary care not to injure him after his perilous position was discovered. Johnson v. Stewart, 62 Ark. 164; St. Louis S. W. Ry. Co. v. Underwood, 74 Ark. 610; St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10; St. Louis, I. M. & S. Ry. Co. v. Fairbairn, 48 Ark. 491; Penn. Ry. Co. v. Martin, 23 Am. & Eng. R. Cas. (N. S.), 449; McGrath v. Eastern Ry. Co. 13 Am. & Eng. R. Cas. 768; Fletcher v. Baltimore & P. Ry. Co. 9 Am. & Eng. R. Cas. (N. S.), 230; Poling v. Ohio River R. Co. 24 L. R. A. 215.
It was in no sense the duty of Nelson, the foreman of the bridge gang, or his cook, to “keep a lookout” for persons on the track. That duty devolved upon the employees who were operating the train. As the keeping of a lookout was not in the line of the employment of the foreman of .the bridge gang and his cook, their testimony that they did not see appellee at the time of casting the cooler from the car is entirely .consistent and reasonable, and the jury could not arbitrarily disregard it. Kansas City So. Ry. Co. v. Lewis, 80 Ark. 396; St. Louis, I. M. & S. Ry. Co. v. Landers, 67 Ark. 514, and cases cited there, It is not like those cases where the fireman, engineer or other employee, whose duty it is to keep a lookout, swear that they did not, although in the discharge of their duty, see a person in plain view upon the track. In such cases the jury might well conclude that the testimony was inconsistent and unreasonable, and refuse to believe i,t. But here the testimony, uncontradicted, disclosed an unfortunate but nevertheless real accident. The presence of appellee so near the track was not and could not have been reasonably anticipated by the foreman and his cook.
The court should have given appellant’s request for peremptory instruction.
The instructions given were abstract because, as a matter of law, upon the undisputed evidence there was no question of wilful, wanton or intentional injury to be submitted to the jury. Moreover, the casting of the cooler from the car was clearly an act out of the scope of the foreman’s employment. If the cooler belonged to the foreman as proof tends to show, he could do as he pleased with it; and if he negligently cast it from the car, it was his act, and not that of the company. His employment with the company was that of building bridges. So far as the proof discloses, there is nothing to show that it was in the line of the duty of the foreman of the bridge gang to provide appointments for the cars in, which he was. transported from place to place. The burden was upon the appellee to show appellant’s liability. To discharge this burden it was incumbent upon appellee to show that the act of the servant causing the injury was negligent and in the course of his employment. St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579.
For the error indicated the judgment is reversed, and the cause remanded for further proceedings.
McCulloch, J. not participating.' | [
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McCulloch, J.
Appellee was a coal miner, employed by appellant in the coal mine . operated by the latter in Sebastian County, and instituted this action to recover damages sustained by reason of appellant’s negligence while at work in the mine. He was at work in one of the rooms of' the mine when the roof fell in on him, and he was severely injured by a falling rock. Negligence of appellant is alleged in failing to furnish necessary timbers with which to prop the roof. The jury returned a‘verdict in favor of plaintiff, and the defendant appealed.
The defendant denied the allegations of negligence, and pleaded that plaintiff’s injury resulted from his own negligent act, and also that the injury resulted from one of the ordinary risks and dangers incident to his employment which he assumed.
The plaintiff was a coal miner of long experience, and was well acquainted with his duties and the danger incident to the work in which he was engaged. The details of his injury, as related by himself on the witness stand, are as follows: He was at work in the mine digging coal when be was directed by the pit boss to go to work in another room, the room in which he subsequently received the injury. He went to the new room assigned to him and first examined it, sounding the top with his pick, and, finding only one or two props, he returned to the entry and told the pit boss to bring some props for his use. The latter promised but failed to do so. He worked in the room a portion of that' day. This was on Monday, and, as operations in the mine were suspended for a week, he did not resume work until the following Monday. On that day he returned to his work in the room, and again called for props, which were again promised, but none were furnished. He said that the room was just as he left it except that the three shots he had put in on the former day had been fired. He went to work digging down the coal, and, after having worked from about seven o’clock in the morning until some time during the afternoon, when he was on his knees “taking down draw slate” a rock fell down on him from the top and inflicted the injury.
The seam of coal at this place was about four feet thick, and between it and the solid rock above there is a thin stratum of slate, called “draw slate,” which varied in thickness. The draw slate usually falls down of its own weight when the coal is removed, and in case it does not fall the miner picks it down and •removes it before putting in props to hold the roof of solid rock.
Plaintiff states that if he had had the props he could and would have put them in as he took down the draw slate, and could thereby have prevented the falling in of the roof. It-is therefore clear that the plaintiff’s injury resulted from the failure to prop the roof so as to prevent the same from caving in.
A statute of this State provides that “the owner, agent or operator of any mine shall keep a sufficient amount of timber when required to be used as props, so that the workmen can at all times be able to secure the said workings from caving in, and it shall be the duty of the owner, agent or operator to send down all props when required and deliver said props to the place where the cars are delivered.” Kirby’s Digest, § 5352.
It was the duty of the miner to use the props so as to make safe the room where he worked. The plaintiff was an experienced miner, and knew the danger of rock falling from an urn supported roof, and was fully advised of his duty in making the place of his work safe. The fact that he repeatedly called for props shows that he fully realized the necessity for their use and the danger of proceeding with his work without propping the roof. He says he observed that it was insufficiently propped, and he would have put in props as he took down the draw slate if he had had them. The danger was manifestly one that was incident the work in which he was engaged. It' was the duty of the master to furnish the props, but- the duty of the servant to put them in and to exercise his own judgment in determining when they were needed. Was it a risk which he assumed by^proceeding with his work?
The question of risks assumed by an employee as an incident to his work received much attention in the case of Choctaw, Oklahoma & Gulf Rd. Co. v. Jones, 77 Ark. 367, and the subject is treated at length in the opinion of the court. In that case it was held that the servant did not assume the risk because it was not one of the ordinary risks of the employment, but was an unusual one brought on by the negligence of the master; and because the servant'was proceeding in his work under direct command of the foreman and under an implied assurance that it was safe to do so. The court there said: “In 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 ttie 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 de so, he will still be held to have assumed them.”
Now, in the case at bar it was the duty of the plaintiff to discover the danger and guard against it, and it is obvious that he realized the danger, for he called for material to use in guarding against it. The fact that he proceeded with his work without waiting for the props renders it no less certain that he was aware of the risk which to some extent attended the situation, but rather manifests his willingness to assume the risk. While it is true that.the servant is never deemed to have assumed risks brought about by the negligence of the master, yet where the risk is one ordinarily incident to his employment, and he voluntarily proceeds with his work in the face of a danger which he is aware of and fully realizes, he is deemed to have asstimed the risk and can not recover.
In Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, this court said: "It is well settled that when one enters the service of another he takes upon himself the ordinary risks of the work in which he engages. * * * If, having sufficient intelligence and knowledge to enable him to see and appreciate the dangers to which he will be exposed, he knowingly assents to occupy a place set apart for him by the master, and he does so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. It is then no longer a question of whether such place could not with reasonable care and diligence be made safe. Having voluntarily accepted th5e place occupied by him, he can not hold the master liable for injuries received by him because the place was not safe.” St. Louis & S. F. R. Co. v. Marker, 41 Ark. 542; Railway Co. v. Davis, 54 Ark. 389; Southwestern Telephone Co. v. Woughter, 56 Ark. 206; Arkadelphia Lumber Co. v. Bethea, 57 Ark. 76; Brinkley Car Works & Manufacturing Co. v. Lewis, 68 Ark. 316; Paule v. Florence Min. Co., 80 Wis. 350; 1 Labatt on Master & Servant, § § 260, 266, 267.
The case of Kansas & Texas Coal Co. v. Chandler, 71 Ark. 518, presents a state of facts to some extent similar to those in the case at bar, but the court disposed of that case and reversed a judgment rendered against the mine owner for alleged negligence in failing to furnish props, without laying any stress upon the question of assumed risk. There was, however, one important and controlling distinction between that case and this, in that the servant proceeded with his work of digging coal under an unsupported roof at the direct command of the foreman, and upon the implied assurance that it was safe to do so. The attention of the court seems to have been directed entirely to the question of contributory negligence, and the opinion contains no discussion of assumed risk. We find nothing in that opinion in conflict with the views herein expressed.
We are therefore of the opinion that, according to the plaintiff’s own statement of the facts of the case, his injury resulted from one of the ordinary dangers of his employment, the risk of which he voluntarily assumed, and that he is not entitled to recover damages from his employer, notwithstanding the failure of the latter to furnish props for the room.
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Wood, J.,
(after stating the facts.) The correspondence shows that appellant notified appellees promptly on receipt of the first carload of lumber that it did not comply with the contract as to age of lumber. Also, as the other cars were received, and after the last car was received, appellant notified appellees that it was “unable to find a car in the whole lot that came within the terms of the contract,” and that it “would not receive it until it was all sixty days old.” In answer to this letter appellees claimed that the lumber was according to contract except “a small amount.” Before the expiration of sixty days appellant wrote appellees letter of February 1, 1905, calling the attention of appellees to the fact that it was a “very tough lot of lumber” and ■“a good deal of it worthless,” and that “all of it that was rejected on account of mill culls” would be carefully stacked, so that appellees might have it inspected. This letter stated: “If we throw out any'that can be used in manufacture, or that would not be graded as a mill cull, we shall be pleased to receive it as lumber.” In answer to this, appellees, after again conceding that ten or twelve thousand feet of the first shipments did not comply with the contract .as .to age and after declaring again that the balance of the lumber shipped was from sixty days to six months old, continued as follows: “Now, what we want you to do is to make settlement on- this as per invoice, unless you have some lumber that is worthless to you. Let us hear from you along this line with settlement,” etc. Isbell, appellee’s manager, when questioned in regard to this statement, replied: “That is right; we don’t want anybody to pay for anything that is worthless. If it had been properly inspected when it first arrived, it would have graded up to contract.” Concerning the ten or twelve thousand feet that did not comply with the contract as to age, Isbell said appellees had no objection to appellant’s rejection of it if it was not wanted. If appellant had thrown this out and made settlement for the other, it would have been satisfactory to appellees.
i. In view of the above and other evidence set forth in the statement of facts, the court erred in declaring appellant liable for all the lumber shipped if it accepted a material part thereof. This declaration was doubtless grounded upon the idea that the contract was entire, and that appellant, by accepting a part of the lumber, in law accepted all. But this proposition ignored all the evidence which tended to show that the lumber which appellant did accept was after notification to the appellees, and upon the understanding with them that it might accept the portion which conformed to the contract, without making itself liable for that which was not according to the contract, or that which was "worthless” to appellants. The court erred in declaring in effect that under the evidence this was to be treated as an entire contract, when there was evidence from which the jury might have found that the parties to it regarded and treated it as severable. Ordinarily, the contract under consideration would be construed as an entire contract. But, "even if the contract would not ordinarily be deemed severable, the parties may by. their conduct so treat it as to show that they regarded it as sever-able, in fact.” 2 Mechem on Sales, § 1398. The intention of the parties to the contract is paramount; and, even where the contract according to its language is entire in form, its entirety may be broken by the concurrent acts of both parties. 3 Page, Cont, § 1484; Russell v. Lilienthal, 36 Oregon, 105. If the contract was entire, and the parties to it by acts done under it did not elect to treat it as divisible in fact, then the acceptance of a material part of the lumber would be an acceptance of the whole. We are of the opinion that it was a question for the-jury under the evidence to determine whether or not the acceptance of a material portion of the lumber was the acceptance of the whole, so as to render appellant liable for the whole in a sum measured by the contract price.
2. The contract under consideration was an executory contract for the sale of lumber of specified age and grades. What were the duties and rights of the appellant under it? It was the duty of appellant to make proper inspection of the lumber within a reasonable time after same was received. In the absence of contract stipulations, the rules and customs peculiar to the trade in such cases, if shown, would furnish the proper measure of appellant’s duty in the premises. If the contract was entire as to the quantity of lumber designated, it would be the duty of appellant, if all the lumber was according to the contract, to accept and pay for same. But, if the whole or a material portion was not according to the contract, if the contract was entire, appellants should have rejected all or none, and promptly notified appellees of the result of the inspection and the action taken. If the contract was severable as to the quantity of lumber, appellant should have accepted such portion of the lumber as was according to the contract, rejecting any that did not conform thereto. If the appellant failed to make seasonable inspection of the lumber received and to report the result thereof to appellees, it would be deemed in laiw to have accepted same. The contract specifications as to age and grades of lumber were ■not merely warranties, but conditions precedent, which gave appellant these rights: (1) if the lumber was not according to contract in .these-respects, to reject the same, or (2), to accept same and bring cross action for breach of warranty, when sued for the purchase price, or (3), without bringing cross action for breach of warranty, to use the breach by way of reduction or recoupment in the action by„the vendor for the price. Plant v. Condit, 22 Ark. 454; Weed v. Dyer, 53 Ark. 153; Pope v. Allis, 115 U. S. 363; Morse v. Moore, 13 L. R. A. 224.
The requests of appellant for instructions, however, embodied the idea that, in case the jury should find that appellant accepted all the lumber, in that event appellant would have to pay for all the lumber shipped. It is apparent, therefore, that appellant is not in an attitude to complain, because the court did not present the theory that, in case of an acceptance of all the lumber, if there was a breach of warranty or failure to comply with conditions precedent in the contract, on the part of appellees, appellant might recover in a cross action, or by way of recoupment when sued by appellees for the price of the lumber. If appellant desired the benefit of this theory which it has so ably presented here, it should have asked it in the trial court.
3. In the matter of a particular custom or usage of trade, .“all that is required is to show that it is established; that is, that it has existed a sufficient length of time to have become generally known.” 12. Cyc. 1034, cases cited in note. There was nothing in the record to show how long the alleged custotfl had been in vogue. The proof was hardly sufficient to establish a usage among lumber dealers as to the inspection of lumber. The evidence, however, could not have been prejudicial, since the court charged the jury that appellant was required to inspect the lumber within a reasonable time, leaving the jury to say what was a reasonable time under the evidence. The court left the matter of inspection to be determined by the law without reference to the custom, as if no custom had been established. This was correct.
For the error indicated the judgment is reversed, and the cause is remanded for new trial. | [
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Hill, C. J.
This was an action on a fire insurance policy. Appellant presents two matters which it alleges should bar recovery.
1. It is claimed that the Tirón safe clause”' was not complied with in that the book containing the credit sales was lost in the fire. It was shown, however, by appellee that said credit sales were a small part of the business, and they were entered on a day book (the one lost) and transferred or copied into another book which was preserved and presented for inspection.
Appellant refers to the doctrine that there must be a strict compliance with this clause in order for the insured to recover, and cites its statement and the authorities to sustain it in 19 Cyc. p. 761, and its application in Western Assurance Co. v. Altheimer, 58 Ark. 565, and Pelican Ins. Co. v. Wilkerson, 53 Ark. 353.
Undoubtedly this was the law in this State until the passage of the act of 1899 (Kirby’s Digest, § 4375a) which renders substantial compliance with the terms, conditions and warranties in' fire insurance policies on personal 'property sufficient.
Counsel, of course, admit the statute changes the force of the former decisions, but contend that “it excuses technical and nonessential details of performance, but it interprets itself as preserving the substance.” It can not be presumed that the former decisions of this court and the current of authority held a policy void for noncompliance with “technical and nonessential details of performance.” Necessarily, the act was intended to reach beyond such matters, and to establish the rule that a substantial, as contradistinguished from a strict, compliance answered the justice of the requirement. Sec People 's Fire Ins. Co. v. Gorham, 79 Ark. 160; Security Mut. Ins. Co. v. Woodson, 79 Ark. 266.
The court submitted,.under proper instructions, the question of substantial compliance to the jury, and the verdict has sufficient evidence to support it.
2. The application contained these questions thus answered:
“31. Loss. Have you ever suffered loss by fire — when and if then insured, in what company? Yes. Security Mutual’Ins. Co. How did it originate?”
It was developed on the trial, that a former stock of jgoods of appellee insured in appellant company had been destroyed by fire, and also that prior to coming to Arkansas appellee’s residence in Delhi, La., had been _ destroyed by fire. Whether the residence was insured in appellant company, or insured at all, was not shown. The answers to the fourfold interrogatory 31 were incomplete, but so far as they went were not false. The Supreme Court of the United States said in regard to a similar answer: “But where upon the face of the application a question appears to be not answered at all, or to be imperfectly answered, the insurers issue a policy without further inquiry, they waive the want or imperfection in the answer, and render the omission to answer .more fully immaterial.” (Citing many decisions). Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 190. To the same effect is Mut. Reserve Fund Life Assoc. v. Farmer, 65 Ark. 581.
The application of this doctrine to these answers, or want of answers, prevent the recovery being barred on this account.
Judgment affirmed. | [
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Riddick, J.
This is an action by W. P. Cunningham to quiet his title to forty acres of land in Howard County upon which he resides and to cancel a deed executed by the Commissioner of State Lands to the Dierks Lumber & Coal Company conveying this land to that company as land which had been forfeited to the State for non-payment of taxes.
The evidence showed that the plaintiff Cunningham hád been in the actual possession of this land for over seven years. paying taxes on it continuously, claiming it as his own under color of title openly and adversely, and that he was entitled to the relief prayed for if the tax forfeiture on which the deed of the Land Commissioner to defendant was based was. invalid.
Now, the chancery court found that the land was sold for $1.02 in excess of the legal taxes, penalty and costs, and that for that reason the sale was void. Counsel for appellant contend that there is no evidence whatever in the record here to support this finding, and that is true. We find nothing in the transcript bearing on the validity or invalidity of this tax title under which defendant claims, but the decree of the chancery court recites that the cause was submitted to that court and heard on the complaint, answer thereto, depositions, etc., “and the tax for the year of 1884 and the record of delinquent lands sold by the collector of Howard County for taxes for the year 1884 on part of plaintiff and the tax deed of the defendant,” from which the court found that the forfeiture and sale were void as before stated.
. The recitals in the decree therefore show that there was evidence before the chancery court that has not been preserved in the record and copied in the transcript. It is true that the clerk has certified that the transcript is a true, perfect and complete transcript of all the papers, pleadings, exhibits, record entries and evidence in the case, but under our statute the clerk is not required to certify to the fact that the transcript contains all the evidence in the case. His duty is to send up a duly authenticated transcript of the record. Kirby’s Digest, § § 1194, 1195. He may have done that in this case, but it does not follow that the recitals in the decree that other evidence was heard by the court is false, for the parties .may have failed to make this evidence a part of the record by filing it or by obtaining a proper order of the court to that effect. As the recitals of the decree show that other evidence was heard by the court which has not been preserved in the record and copied in the transcript, the presumption must be that such evidence sustains the judgment. Carpenter v. Ellenbrook, 58 Ark. 134; Hershy v. Baer, 45 Ark. 240. For these reasons the judgment is affirmed. | [
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Riddick, J.
This is an action by the widow and children of T. Y. Standifer against the Iron Mountain Railway Company to recover damages for his death. Standifer was employed by the company as a section hand, and while he, with other employees, was on a handcar which was being propelled along the railway track the car was overtaken and struck by the engine of a passenger train, and Standifer was killed.
The circuit court told the jury in substance that, as Standifer was struck and killed by the train of the defendant company, this made out a prima facie case of negligence against the company, and that to escape liability the company must show either that its employees in charge of the train were not guilty of negligence or that Standifer was guilty of contributory negligence. Counsel for defendant contends that this instruction was erroneous for the reason that Standifer was an employee of the company at the time of the accident. It is- true that it has been held by this court that when an employee of a railway company is injured by a defect in the machinery or track of the railway company, the injury under such circumstances does not of itself raise a presumption of negligence on the part of the master. St. Louis & S. F. Rd. Co. v. Hill, 79 Ark. 76; St. Louis, I. M. & S. Ry. Co. v. Harper, 44 Ark. 529; Patton v. T. & P. Ry., 179 U. S. 658, 663.
But the death of Standifer was not caused by a defect in machinery or track. He was not one of those in charge of the train that caused his injury. While riding on a handcar, he was struck by a train and killed. If the accident was due to the negligence of the employees of the company in .charge of the train, it was either negligence in failing to keep a lookout or negligence in failing to stop the train after Standifer and those on the hand-, car were seen on the track.
Now, the statute not only requires that the employees in charge of a running train shall keep a constant lookout for persons and property on the track, but provides • that in case of an injury “the burden of proof shall devolve upon such railroad to establish the,fact that this duty has been performed.” Kirby’s Digest, § 6607.
Another statute provides that railroads in this State “shall be responsible for all damages to persons and property done or. caused by the running of trains in this State.” Kirby’s Digest, §• 6773. The construction given to this latter statute is that where, in an action for damages against the company for causing the death of a person, it 'is shown that the person was killed by being struck by a train, a prima facie case of negligence is made against the company, and it devolves on the company to sh.ow that its employees in charge of the train exercised due care, or that the deceased was guilty of contributory negligence, unless these facts appear from the evidence of plaintiff. The fact that the person struck by the train was in the employ of the company at the time of the accident does not change the rule in this respect,’ though it may bring in the question of assumption of risks or other questions of that kind. We are therefore of the opinion that the objection to this instruction must be overruled. Little Rock & Ft. Smith Railway Co. v. Blewitt, 65 Ark. 235.
It was shown that Standifer was an honest and industrious man, that he was kind to his children, sent them to school as much as his means allowed, and labored for their support. Under these ciroumstanoes it was not improper for the court to tell the jury that if they found for plaintiffs, the minor children of Standifer, they could, in assessing the damages, take into • consideration any damages sustained by them from loss of his parental instruction and training if they believed “from the evidence that he would have been thus beneficial.” St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 559.
The only other contention is that the verdict is not sustained by the evidence. It is said that the train approached the place of accident around the curve, and that it was within three hundred feet of the handcar before it could have been seen, and that it was impossible to stop the train within that distance. But there was also evidence tending to show that a person on the side of the engine where the fireman sat, which was on the inside of the curve, could have seen the handcar and those upon it at a much greater distance than three hundred feet. This evidence to some extent contradicted that of the engineer and fireman, and the question as to whether the train could have been stopped in time to have avoided the injury was therefore one for the jury.
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Battre, J.
On the 23rd day of May, 1902, R. PI. Hickey, in his lifetime, commenced an action against the Choctaw, Oklahoma and Gulf Railroad Company, in the Garland Circuit Court. Plaintiff stated his cause of action as follows:
“On the 9th day of January, 1902, plaintiff was on one of defendant’s trains on a through ticket from Memphis, in the State of Tennessee, to the city of Hot Springs, in Arkansas, and while such a passenger the train upon which he was traveling stopped at Little Rock, Arkansas, for the purpose of allowing the passengers on the train to procure dinner.
“That plaintiff left said train for the purpose of procuring dinner, and upon his return to said train, and while in the act of boarding the same, while upon the first step leading into the coach on said train, the agents, employees and servants of defendants in charge of and operating said train, wrongfully, negligently, unlawfully and carelessly caused said train to move by a sudden jerk, which caused paintiff to fall from said step violent^ to the ground and underneath said train; that plaintiff at the time was in the exercise of due care, and he was thrown or caused to fall from said step, before he was able to get upon said car in the manner and form as aforesaid, by the wrongful, careless, and negligent acts of the agents and employees of defendant in starting said train; that by said fall the plaintiff sustained severe personal injuries to his back and other portions of his body; that in falling he in some way rolled under the edge of the train as it was moving along, in such position that he could not get out from under said car while the same was in • motion; that some bystander halloed at him to lie down close to the ground if he wished to save his life, which injunction he obeyed, and the entire train passed over him in that position; that plaintiff’s position was such that, if he had moved in an effort to get out, some portion of the car would have caught his clothing, which would have evidently dragged him to death; that plaintiff realized this fact and remained in that position under the edge of the cars until the entire train passed over him; that plaintiff, during the time that said train was thus passing over him, expected every minute to be caught b)'’ some portion of the car and to be killed, and during such time he suffered untold mental agony and pain; that, by reason of the wrongful, careless and negligent acts of the defendant as aforesaid, plaintiff has been damaged in the sum of ten thousand dollars.”
The defendant answered and denied the allegations of the complaint. On the 20th day of November, 1903, the issues in the case were tried in the Garland Circuit Court, and a verdict was rendered in favor of the plaintiff, which was set aside on a mo tion for a new trial. Subsequently the plaintiff died, and the action was revived in the name of D. H. Hickey, as administrator of L. H. Hickey, deceased, and he filed an amendment to the complaint as follows:
“That the said L- H. Hickey died in the city of Lexington, and county of Fayette, in the State of Kentucky, on the 7th day of December, 1903, and that this plaintiff, D. H. Hickey, was duly appointed administrator of the estate of the said L. H. Hickey by the county court of said Fayette County, in the State of Kentucky, on the 21st day of December, 1903, a day of the December term, 1903, of said county court, and that he is now the duly appointed, qualified and acting administrator of the estate of the said L. H. Hickey, deceased; that the said L. H. Hickey left surviving him at his death, Ada Hickey, as a widow, and-Hickey, his son and only heir; that the said--Hickey at the time of the death of the said L. H. Hickey, was five years old; that the death of the said L. H. Hickey resulted from-and was caused by the injuries received by him in falling from the train on the 9th day of January, 1902, in the mannqr as set out and stated in the complaint herein, and resulted by reason of the wrongful and negligent acts and conduct of the defendant and its employees, as stated in said complaint; that the death of the said L. FI. Hickey was produced and brought about by the negligent acts and conduct of the defendant and its employees as set out in said complaint; that after receiving said injuries, the said L. H. Hickey continued to suffer excruciating pain, both of body and mind, as stated in said complaint, and the amendment thereto filed on November 19, 1903, until the 7th day of December, 1903, when he died.
“That in the month of May, 1902, soon after said injuries were received by the said L. H. Hickey, he became paralyzed therefrom and totally blind, as stated in his said amended complaint filed November 19, 1903, and remained in that helpless condition, suffering and languishing, until the time of his death; that during the lifetime of the said L. H. Hickey, and prior to the receipt of said injuries, he was an activé, industrious man, a devoted father and husband; that he provided for his family a comfortable home and furnished them with all things necessary for their pleasure and happiness in life; that he was a man of good moral habits, and devoted all of his earnings to the benefit of his said wife and child; that by the death of said L,. H. Hickey the said widow and child have been damaged in the sum of ten thousand dollars.
“Wherefore plaintiff prays judgment against the defendant herein in the sum of ten thousand dollars as damages resulting to the estate of the. said L. H. Hickey, and the further sum of ten thousand dollars as damages for the benefit of the said widow and child.”
The defendant moved to strike the amendment from the files of the court, because it sets up a cause of action which cannot be joined with that in the original complaint. On the 19th day of June, 1905, this action was taken by change of venue, on motion of the defendant, to Saline County. On the 12th of September, 1905, the motion to strike amended complaint from the files was overruled by the Saline Circuit Court, and the defendant saved exceptions. An answer to the amendment to the complaint was thereupon filed by the defendant, specifically denying each allegation thereof.
Evidence was adduced by the plaintiff in the trial in the action, which tended to prove, substantially, the allegations in his complaint; and the defendant adduced evidence to prove the contrary.
The court instructed the jury, over the objections of the defendant, at the request of the plaintiff, in part as follows:
“6. If you find from the evidence that the deceased, Hickey, was a passenger on defendant’s train from Memphis to Hot Springs, and while such passenger he left the train at Rittle Rock for the purpose of getting dinner at the place provided for passengers to get meals, and for changing cars for Hot Springs, then it was the duty of the employees of defendant in charge of its Hot Springs train to exercise reasonable care in holding said train a reasonable time for said Hickey to board said train after announcing that the train was ready to depart; and if you find from the evidence that said employees failed to hold said train a reasonable time for said Hickey to board it after announcing ‘All aboard,’ but negligently started said train while said Hickey was in the act of boarding the same, and was on the first or second step leading to the platform of one of the passenger coaches and in a position likely to be injured, and -that he was thrown or caused to fall from said train by such starting, and was injured thereby, you will find for the plaintiff.
“7. Whether or not the servants of defendant in charge of its train used reasonable care toward the deceased, Hickey, depends on all the circumstances surrounding the parties at the time of the accident. If said Hickey was lame, and hi's motion was retarded on that account, and his condition was known to the servants of the defendant in charge of the train, then that fact should be considered by the jury in determining whether or not they exercised reasonable care towards him.
“8. If you find from the evidence that the deceased, Hickey, fe.ll from defendant’s train by reason of the moving or running of said train, and was injured thereby, then the presumption is that said Hickey received said injury on account of the negligence of defendant.”
And gave the following at the instance of the defendant:
“2. You are instructed that it was the duty of the defendant to announce the departure of its trains a sufficient length of time to enable the deceased in the exercise of reasonable diligence to get aboard same before it started, and it was the duty of the deceased, upon hearing such announcement, to use reasonable diligence to get aboard said train before it started.
“7. If you find from the evidence that deceased was thrown to the ground by the movement of the train, and that defendant was not negligent in starting the train at the time defendant did, then you cannot find for the plaintiff unless you find that said movement by which deceased was thrown to the ground was negligent and unnecessary in the handling of said train.
“10. If you find from the evidence that defendant’s con-ductor announced that defendant’s train was ready to depart by calling ‘All aboard,’ or in any other manner, and that plaintiff, after hearing said announcement, failed to use ordinary diligence to get aboard said train, and was injured by attempting to get on said train after it had started, then he was guilty of contributory negligence, and cannot recover..
“13. If you find from the evidence that deceased was guilty of negligence or want of ordinary care which contributed in any manner to produce his injury, then he cannot recover in this case; and in determining this question you may take into consideration deceased’s physical condition at the time.
“15. Before the plaintiff can recover, he must show by a preponderance of the testimony that the condition and death' of deceased, which he alleges was the result of said accident, was caused thereby; and if he failed to establish this fact by a preponderance of the evidence, he cannot recover.
“17. If you find that Hickey failed to use due diligence to get aboard the train after the announcement of ‘All aboard’ was given, but after the train started attempted to board same, and was injured thereby, then he was guilty of contributory negligence, and plaintiff cannot-recover.”
And gave instructions asked for by defendant, after modifj - ing them by interlining them with the words in brackets, as follows :
“4. If defendant’s conductor announced the departure of. its train a sufficient length of time before starting for deceased to conveniently get aboard the same, and without any fault of defendant’s servants he failed to do so, and the conductor, not knowing [or having no reasonable grounds to suspect] that he was in the act of boarding the train, caused the -train to start while he was so attempting to board it, then the defendant would not be liable.
“5. If the defendant’s conductor announced the intended departure of defendant’s train a sufficient length of time before starting for deceased by the use of ordinary diligence to have got aboard, then it was not incumbent upon him to make separate inquiry of persons about the depot as to whether or not they intended to take passage on the train, but he had the right to start said train unless he knew [or had reasonable grounds to suspect] that the deceased -was endeavoring to board same.
“6. If you find that, before the train started on which deceased intended to take passage, defendant’s agents gave him notice that the -train was about to depart and in time for him to have got on it by the exercise of reasonable diligence, and those in charge of the train did not know [or had no reasonable grounds to suspect] that he had not yet got aboard, then they had a right to presume that he was on the train.”
And refused to give the following instructions which were requested by the defendant:
“9. If you find that defendant’s train was started in a careful and cautious manner, and without any jerk or jar other than that incident to the proper handling of trains, then the defendant will not be liable to plaintiff for injuries caused thereby.
“12. You are instructed that defendant was under no obligation to hold its train for deceased to purchase cigars and attend to other private matters; and if he stopped for such purposes, when by going direct to the train he could have got aboard the same before it started, then he was guilty of negligence, and plaintiff can not recover.
“14. If you believe from the evidence that deceased had got on the first Or second step of defendant’s train, and was injured by the starting thereof, this would not entitle him to recover, if it also appears that the train was started in a careful and prudent manner, and that the injury was caused by the motion usually and ordinarily incident to the movement of passenger trains."
The jury returned a verdict for plaintiff for the estate for $2,000, and for the widow and next of kin for $3,000; and the defendant appealed.
There was no misjoinder of causes of action in the complaint and amendment. The statute provides: “Several causes of action may be united in the same complaint where each affects all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to one of the following classes: * # sjs * * * *
“Sixth. Claims arising from injuries to person and property.” Kirby’s Digest, § 6079. The causes of action in this case affect all the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and are claims arising from injuries to the same person'; and come within the letter and spirit of the statute.
While the second cause of action could not have been brought into this action by an amendment without the consent of the defendant, it (defendant) waived all objections to the same by answering. Thompson v. Brazile, 65 Ark. 495; Holt County v. Cannon, 114 Mo. 514; Witkowski v. Hern, 82 Cal. 604; 1 Enc. Pl. & Pr. 573, and cases .cited. “The filing of the amendment setting up an entirely separate and distinct cause of action, and the answer to it of appellant, were equivalent to, and not distinguishable from, the bringing of a new action.” “In answering” the appellant “entered his appearance, and waived summons. The same result was reached as would have been accomplished had a new and original complaint been filed. In that case the appellant could have entered its appearance, as it did, and waived summons, “and the same end would have been obtained as was reached by the filing of the amendment. The legal effect of the two proceedings is the same.” Wood v. Wood, 59 Ark. 446.
Appellant objects to the instruction given at the request of appellee numbered 6 because it “told the jury that it was the duty of the employees of defendant in charge of its train to exercise reasonable care in holding said train a reasonable time for said Hickey to board,” etc. Instruction numbered 2, given at the request of appellant, told the jury substantially the same thing. It cannot complain on this account.
Appellant’s objection to the instruction numbered 7 given at the request of plaintiff is the last sentence. The court did not tell the jury what effect to give to the facts mentioned therein, but that they should consider them in determining whether or not defendant’s servants exercised reasonable care towards Hickey. Their effect was necessarily controlled and determined by other instructions. The instruction numbered 7 given at the request of the defendant obviates any valid objection to instruction numbered 8 given at the request of the plaintiff.
The modifications of instructions numbered 4, 5 and 6, given at the request of defendant, did not affect their legal effect. “Not knowing,” “or having no reasonable grounds to suspect,” “knew,” or “know,” “or had reasonable grounds to suspect,” are legal equivalents.
The requests of the defendant for instructions numbered 9 and 14 were properly refused by the court. They deny to plaintiff the right to recover under any circumstances, even though the train was started before a reasonable or sufficient time had been allowed to get aboard; and so far as correct or applicable they are covered by other instructions.
The request of the defendant numbered 12 was properly refused. It denied to plaintiff the right to recover if he stopped for certain purposes when by going directly to the train he could have got aboard of it before it started, notwithstanding the jury might have found that the train did not remain still a reasonable time, after the passengers were notified-to get aboard, for all of them to do so, and notwithstanding there was evidence tending to prove that he was thrown to the ground by the train starting suddenly with a jerk while he was on the first or second step leading to the platform of one of the passenger coaches. It makes the right of plaintiff to recover to depend entirely and exclusively upon two facts specified therein.
The evidence, though unsatisfactory, was sufficient to sustain the verdict.
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Riddicic, J.
This is an action brought by John Flint against the Fort Smith Light & Traction Company to recover damages for injuries occasioned from a collision with a street car. Flint was driving a wagon, which was struck by a street car, resulting in severe injuries. He testified on the trial that he was driving, and that, as the wagon got on the street car track, one of the horses hitched to the wagon balked and refused to move forward. That he did all he could to get them across, but was unable to do so, until the wagon was struck by the car, and he was injured. On the other hand, several witnesses testified that the plaintiff deliberately stopped the wagon on the street-car track and remained there until the wagon was struck and knocked over by the car. There seems from the transcript to have been a conflict in the evidence on this point, and, if so, the question whether the plaintiff was guilty of contributory negligence should have been left to the jury. But the trial judge was of the opinion that the evidence clearly showed negligence on- the part of the plaintiff, and he told the jury that under the testimony and conceded facts the plaintiff was guilty of contributory negligence, and that he could not recover unless they believed “from the evidence that defendant’s motorman in charge of its car actually discovered plaintiff’s perilous position in time to have prevented injuring him and negligently failed to do so.” Assuming that the plaintiff was guilty of negligence contributing to his injury, and the evidence tends very strongly to show that he was, this was a correct statement of the law. But counsel for plaintiff in his closing argument made the following statement to the jury:
“The defendant in this action was liable to the plaintiff because the motorman, E. V. Sappington, was inexperienced and did not know how to manage and control the car that injured plaintiff; and that defendant was liable because it had permitted Sappington to operate the car, and that Sappington did not have sufficient experience to exercise proper care in controlling the car.”
The defendant objected to this statement at the time, but the court overruled the objection, and defendant contends that this ruling of the court was erroneous and prejudicial.
There was evidence tending to show that W. T. McMinn was motorman in charge of the car at the time of the accident, and that Sappington was working under him, and was operating the car at that time. Both of these men were on the front of the car, and McMinn, who was an experienced motorman, testified that “Sappington cut the current and applied the brake while he reversed the car, that on account of there being two motormen the car was reversed and brake applied quicker than it would have been possible for one man to have done so.” He further testified that it was getting dark and very dusty, and that, although they were keeping a lookout, they did not see the wagon until too close to avoid striking it. There was other testimony that the wagon could have been seen in time to have avoided the collision. The question submitted to the jury by the instructions was whether the employees in charge of the car exercised due care in trying to stop the car after the wagon was discovered on the track. That was the question on which, under the instructions of the court, the liability of the defendant depended. But the ¿rgument referred to was misleading, for it evaded the question presented by the instructions as to whether due care was • exercised by the employees in charge of the car, and told the jury that the defendant was liable because one of the motormen, E. V. Sappington, was inexperienced and did not know how to manage the car. Now, leaving out the fact that McMinn, an experienced motorman, was in charge of the car with Sappington, suppose that Sappington was inexperienced, still the company could not have been responsible to plaintiff on that account unless Sappington’s inexperience caused the accident by reason of his failure to stop the car after the danger was discovered. The jury may have believed from the evidence that the car could not have been stopped after the employees discovered the wagon on the track. If this was so, the instructions of the court told the jury to find for defendant; while on the other hand the argument of counsel told them that the company was liable in any event because of the inexperience of Sappington. The argument of counsel was in conflict with the law and the instructions of the court, and the objection thereto should have been sustained. Cockburn v. State, 76 Ark. 110.
If does not, of course, necessarily follow that, because an improper argument has been made by' the plaintiff’s attorney, the judgment rendered in favor of plaintiff must be reversed. But the argument in this case affected the pivotal point in the case, and evaded the question submitted by the court, and was calculated to cause the jury to lose sight of that point and decide the case on another point. It is true that the jury, in determining the question as to whether proper efforts were made to stop the car, had the right to consider the testimony bearing on the question of the skillfulness of those in charge of the car. For it was alleged in the pleadings that the car was operated by an inexperienced and unskillful motorman, but this fact, if proved, did not of itself, as counsel asserted, justify a verdict for plaintiff. We are, therefore, of the opinion that this argument was improper and prejudicial, and that the court erred in overruling the objection made to it by counsel for the defendant.
For this reason the judgment is reversed, and the cause remanded for a new trial. | [
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Hiee, C. J.
The principal question in this case is the correctness of this instruction:
You are instructed that if you find from the evidence, that plaintiff’s horse was run into a trestle or culvert by a train on defendant’s road and injured, and if you further find, from all the facts and circumstances in proof in the case, that the trainmen in charge of the train could have foreseen, as a natural or probable consequence of not stopping the train, that the horse would attempt to go on the trestle or culvert and be injured, then it was the duty of the trainmen to stop the train' in order to avert the injury to the horse; and if they failed to do so, they would be guilty of negligence, and plaintiff would be entitled to recover.”
This court said in Railway Company v. Ferguson, 57 Ark. 18: “But appellant did owe the appellee the duty, when it discovered his colt upon its track, to use ordinary or reasonable care to avoid injury to it by running its train against it, or by frightening and driving it by unnecessary alarms against the wire fence.” (Citing authorities.) That principle controls here. Generally speaking, ordinary or reasonable care does not require a train to be stopped in order to avoid injury to stock on the track; but there may be facts which make the stoppage only ordinary care to avoid the injury which would otherwise occur, and there were sufficient facts in this case to send that question to the jury.
The other matters presented hava been considered, but no error is found.
Affirmed. | [
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BatteE, J.
Alfred Carr was indicted for murder in the first degree committed by killing Bill Civil, and was tried and convicted of that offense; and he appealed to this court.
Appellant says that the trial court erred in permitting the State to peremptorily challenge two jurors after they had been examined and accepted as jurors in the case. But this was not error. It was lawful to do so. Allen v. State, 70 Ark. 337.
He next complains of the court for admitting the testimony of a witness named Jim Wallace, in which he testified that appellant, at the time he was arrested, said that he expected to be arrested, and that if he killed Bill Civil he was drunk, and that one Cook advised him to submit to arrest and go with the sheriff, and assured him that he would be protected. The testimony was admissible as tending to show a confession.
Appellant testified in his own behalf. He says that the court erred in permitting the prosecuting attorney to ask him “if' he had not been criminally intimate with one Emma Simms, and if he had not threatened to kill any man in that community that ever went to see her or had anything to say to her.” He answered in the negative. The question was proper on cross-examination, and if it was not it was not prejudicial.
He insists that the court erred in refusing to instruct the jury as follows;
“3. The jury is instructed that in cases depending on circumstantial evidence every circumstance in the chain of circumstances, necessary to convict the defendant, must be established beyond a reasonable doubt and to a moral certainty, and each circumstance must be consistent with all the other facts and circumstances proved, and all, when taken together^ must be consistent with the guilt of the defendant, and inconsistent with any other reasonable hypothesis; and unless you so find, you should acquit the defendant.
“4. The jury is instructed that in cases depending on circumstantial evidence each circumstance in the inculpatory evidence must be consistent with the truth of the fact to be proved— that is, the guilt of the defendant — and consistent with the truth and human probability; and unless you so find you should acquit the defendant.”
In this there was no error. The court properly instructed the jury in that respect, as follows: “The jury are instructed that in cases depending on circumstantial evidence it is necessary that all the circumstances taken together must convince the jury beyond a reasonable doubt of the defendant’s guilt; and if after a mature consideration of all the circumstances the jury has a reasonable doubt, they should acquit.” Lackey v. State, 67 Ark. 416.
The evidence was sufficient to sustain the verdict of the jury.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) Alimony, in general terms, “is the allowance which a husband pays by order of court to his wife while living separate from him.” 2 Bishop, Marriage, Divorce and Separation, § § 1385-6.
A separate suit for alimony, under our statute, may be maintained, and is cognizable, only in a court of equity. Kirby’s Digest, § 2675; Wood v. Wood, 54 Ark. 172.
Mr. Bishop says: “Since parties may validly bargain to do whatever accords with their legal rights and duties, * * * if a husband and wife are living apart, he may * * * validly bind himself to render her a specific maintenance.” 2 Bishop, Marriage, Divorce and Separation, § 1261. In Harshberger v. Alger, 31 Gratt. 52 at page 60, the doctrine is announced that courts will generally uphold and enforce against the husband such conveyances and covenants as he may have made for the maintenance of his wife, provided the separation has actually taken place, or is contemplated as immediate, and the provision for the wife is made through the intervention of a trustee, and the parties have not subsequently come together again. Citing authorities.
The complaint, though not as fully and technically accurate as it should have been, nevertheless stated a cause of action for alimony.
Second. The court did not err in rendering a decree for the amount that had accrued under the contract at the time the decree was rendered, and the amount that should accrue, and in ordering that execution should issue for the separate monthly payments as they became due.
The complaint asked for “such equitable relief as the complainant was entitled to.” The chancery court evidently took jurisdiction of the cause as a suit for alimony, and treated the contract as the basis of the amount which should be allowed. This was correct. Appellant specified that sum in his contract. The statute provides that “the court may enforce the performance of any decree or order for alimony and maintenance by sequestration of the defendant’s property, or that of his securities, or by such other lawful ways and means as are according to the rules and practice of the court.” Kirby’s Digest, § 2682.
Mr. Bishop says: “In some oourts an execution, or series of executions, may be issued for the alimony ordered.” 2 Bishop, Marriage, Divorce and Separation, § 1094.
The court, having taken jurisdiction to enforce the contract between appellant and appellee as for alimony, was .expressly authorized by our statute to proceed in the manner indicated by its decree to enforce its decree. This- was in accord with, well-recognized methods of chancery procedure in other jurisdictions. See cases cited by Mr. Bishop under § 1094, supra. Another well-recognized method is by contempt proceeding. See Casteel v. Casteel, 38 Ark. 477,
Appellee’s demurrer to appellant’s answer was overruled except as to that part which alleged that appellee did not have a cause of action in equity. But appellant did not pretend to adduce proof to support the allegations of his answer. The allegations of the complaint, sufficient to entitle appellee to the relief sought and granted, were not denied, and they were moreover supported by the terms of the contract.
Finding no error, the decree is affirmed. | [
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Battre, J.
The following is the complaint in this action:
“On this day comes the plaintiff, J. C. Yancey, and states that he is a resident of the city of Batesville, Independence County, Arkansas; that the defendants, the Batesville Telephone Company and the Southwestern Telegraph & Telephone Company, are corporations, each organized and created under the laws of the State of Arkansas; that the Batesville Telephone Company is engaged in operating a telephone exchange in the said city of Batesville, in said State, and in furnishing the citizens thereof with telephone connections through the central office of the exchange maintained by said defendants, so as to give the citizens of said city, who are subscribers for telephone instruments connected with said exchange, facilities for communicating with all other parties who are subscribers to said telephone and others; that they also maintain and operate a long-distance telephone exchange from said city of Batesville to divers points at a distance from said city of Batesville. This plaintiff further states that the defendant, the Southwestern Telegraph & Telephone Company, is engaged in operating a long-distance telephone exchange in the State of Arkansas, in Pulaski, Lonoke, White, Jackson, Independence and other counties in said State of Arkansas; that the defendants operated their respective telephone exchanges in connection with each other, that is to say, a long-distance telephone connection is made at divers points by' and between said defendant companies, so that a telephone message and communication may be had from Batesville to divers other parts of the State, and that said defendant kept, maintained and operated an office in the city of Batesville, and had an agent at that place for the purpose of connecting and transmitting telephone messages and communications from the city of Batesville over said long-distance lines to divers other places in the State of Arkansas and other places, so as to give parties in Batesville who are subscribers, and others, telephone connections and exchange facilities for communicating with subscribers and others who desired to communicate with persons living in divers and distant parts of the State and other States, as contemplated by the telephone service. That the plaintiff is a subscriber, and has been a subscriber for more than twelve months, to said telephone at Batesville for one or more instruments connected with said exchange, and, .as a subscriber to the said telephone and exchange operated by the said defendants, Batesville Telephone Company and Southwestern Telegraph & Telephone Company, he is entitled to the same service as any other subscriber to said exchange. That, by provisions of the statutes of this State, it is made the duty of every telephone company doing business in this State to supply all applicants for telephone connections and facilities with such telephone connections and facilities without discrimination or partiality, provided such applicants comply with the reasonable regulations of such telephone company, and upon failure to do so a penalty of $100 for each day of such discrimination and partiality is provided. That said defendants, through their agents and employees, have discriminated and shown partiality against this plaintiff continuously each day for the past twelve months; that such discrimination and partiality consisted in this, towit: That other subscribers to said telephone exchange are permitted to be connected from their respective residences and places of business through said telephone exchange for the purpose of transmitting messages and communications to divers parts of the State and other places over the long-distance lines connecting in said exchange to divers parts of the State and other places, and for such service they are charged at the office of the said exchange, and the bills therefor presented at the end of each month, while with this plaintiff, although he is a subscriber, and has been such continuously for more than .twelve months, for one or more telephones connecting his residence and place of business with said exchange, said defendants refused, and have continued to refuse, and still continue to refuse, to connect his residence or place of business with said telephone exchange for the purpose of transmitting or communicating messages over said long-distance lines to subscribers and others at divers parts of the State, or elsewhere, unless this plaintiff should first come to the central office of said exchange and pay cash in advance for such telephone messages, service and communication. But that with other subscribers to said telephone exchange, who reside in Batesville and bear the same relation to said telephone exchange as this plaintiff, such charges are made at the time the service is rendered, and presented to them respectively at the end of each month. That this plaintiff has complied with and offered to comply with every reasonable rule and regulation made by said defendant companies; that he is a subscriber, and has been continuously for more than twelve months, for two telephone instruments, one at his residence and one at his place of business in the city of Batesville; and for this service he is charged as other subscribers, and his bills are presented to him at the end of each month, as to other subscribers, and he always promptly pays the same in due course of business as other subscribers. That the discrimination above mentioned has continued each and every day for more than twelve months last past, and that such discrimination is illegal, unwarranted and unjust to this plaintiff; that, by reason of said illegal discrimination and partiality shown against this plaintiff, the defendants have subjected themselves to a penalty of $100 for each and every day for the last twelve months, aggregating 365 days and amounting to $36,560.
“Wherefore he prays judgment for the said sum of $36,500, and for such other'and further relief as he may be entitled to.”
The defendants demurred to the complaint, and the court sustained- the demurrer, and the plaintiff appealed.
The action is based upon the following statute:
“Section 7948. Every telephone company doing business within this State, and engaged in a general telephone business, shall supply all applicants for telephone connections and facilities without •discrimination or partiality, provided such applicants -comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that are [is] not imposed impartially upon all persons or companies in like situations; nor shall such company discriminate against any individual or company engaged in lawful business, by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise, under penalty of one hundred dollars for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.” Kirby’s Digest.
Appellees insist that the penalty of $100 is recoverable only on account of a discrimination by the telephone company “against any individual or company engaged in lawful business by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant;” while the appellant insists that it is recoverable on account of any discrimination forbidden by the statute.
The statute may be divided into three clauses as follows:
(1) Every telephone company doing business in this State- and engaged in a general telephone business -shall supply all applicants for telephone connection and facilities without discrimination or partiality, provided, etc.
(2) And no such company shall impose any condition or restriction upon any applicant that is not imposed impartially upon all persons or companies in -like situations. ... .
(3) Nor shall such company discriminate against any individual or company, engaged in lawful business, by requiring, as a condition for furnishing such facilities, that they shall not be used in the business of the applicant, or otherwise, under penalty of one hundred dollars for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations, and time to furnish the same has elapsed; to be recovered by the applicant whose application is so neglected or refused.
The penalty of $100 is not recoverable only on account of a discrimination “by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant,” but as well on account of unlawful discriminations made otherwise. The statute indicates this by adding to the words quoted “or otherwise.” The facilities mentioned in the third clause are evidently the facilities referred to in the first clause, and the penalty is “for each day such company continues such discrimination and refuses such facilities,” etc., that is, the equal facilities required by the first clause to be furnished an applicant “without discrimination or partiality.” The penalty is “to be recovered by the .applicant whose application is so neglected or refused.” This is the applicant “for telephone connection and facilities” mentioned in the first clause, and no other person, and the neglect or refusal referred to is the neglect to furnish such connection and facilities. All these clauses are connected and dependent on each other; and the penalty is recoverable on account of any discrimination forbidden by the statute.
Every company is entitled to compensation for telephone facilities furnished by it. It may require the charges for such services to be paid in advance. Hewlett v. Western Union Tel. Co., 28 Fed. 181; Jones on Telegraph and Telephone Companies, §431, and cases cited; and Creswell on “The Law Relating to Electricity,” § 373, and cases cited. This power is given for its own protection. In the exercise of it, it may extend credit for such charges to persons it may deem deserving. This is a reasonable exercise of the power, and is essential to its success. No rule can be laid down by which the credit to which each person is entitled can be determined. This is dependent upon various circumstances, such as the amount of property he may have over and above his exemptions and liabilities, his promptness in paying his debts, his being contentious, a wrangler, a fault-finder, his honesty, integrity, and other qualities. The credit due each individual depends upon himself. It can not be fixed by any rule, but must be and is left to the company to determine. The statute forbidding discriminations does not deny the right. It does not come within the evils the statute was intended to suppress. All are required to pay the same rates for the same service in like situations, but the time when it should be paid is within the peculiar province of the company to determine. This is a right of creditors, and there is no reason why it should be denied to telephone companies.
Appellant (plaintiff) alleged in his complaint that, “although he is a subscriber, and has been such continuously for more than twelve months for one or more telephones connecting his residence and place of business with said exchange (telephone exchange of defendants), said defendants refused, and have continued to refuse, and still continue to refuse, to connect his residence or place of business with said telephone exchange for the purpose of transmitting or communicating messages over said long-distance lines to subscribers and others at divers parts of the State, or elsewhere, unless this plaintiff should first come to the central office of said exchange and pay cash in advance for such telephone messages, service and communications; but that, with other subscribers to. said telephone exchange, who reside in Batesville and bear the same relation to said telephone exchange as this plaintiff, such charges are made at the time the service is rendered, and presented to them respectively at the end of each month.” The requirement that appellant should first go to the central office of the exchange and pay cash in advance for such-telephone mesages, service and communication, when it was not required of other subscribers, was an unreasonable and unnecessary discrimination, and is forbidden by the statute. The payment of the charge is all that should concern them in that connection. All else is arbitrary and unnecessary.
Reverse and remand with directions to the court tó overrule the demurrer. | [
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McCulloch, J.
This is a suit in equity instituted by J. B. Sturdivant, W. A. J. Sturdivant, J. S. P. Sturdivant, Nancy J. Morphew and Arminnie McCarley, children and heirs at law of J. S. Sturdivant, who died intestate on April 10, 1904, against Katie J. Cook and certain other persons to enforce a lien on lands in which the defendants claim an interest.
The facts set forth in the pleadings and established by the evidence are substantially as follows:.
The lands in controversy were purchased by J. B. and W. A. J. Sturdivant in the year 1891 from one Reed, and were paid for with money borrowed from their father, J. S. Sturdivant. In 1894 j. B. Sturdivant conveyed his undivided half of the lands to his brother, W. A. J. Sturdivant. J. B. Sturdivant was engaged in the mercantile business, became insolvent, and in December, 1894, all his property was taken under attachment and sold in an action brought against him by his father for debt.
In 1896 W. A. J. Sturdivant executed to J. S. Sturdivant a deed conveying said lands. This was in the form of an absolute conveyance, but was intended and agreed to be only a security for a debt of $3,000 owing by W. A. J. to said J. S. Sturdivant, which included the money borrowed for use in paying for the land when purchased from Reed. The deed was never recorded, and has not been produced in this record, but its execution and contents are proved. W. A. J. Sturdivant remained in possession of the land, and J. S. Sturdivant never at any time obtained possession.
The defendant Katie J. Cook obtained a judgment for debt against J. B. Sturdivant, and on April 15, 1899, caused an undivided half of these lands to be sold as the property of J. B. Sturdivant under execution issued upon her judgment, and bought said interest in the land at the execution sale. Mrs. ■Cook then brought suit in equity against W. A. J. Sturdivant to cancel the said deed executed to him by J. B. Sturdivant, alleging that the same was executed for the purpose of defrauding the creditors of J. B. Sturdivant. The chancery court in that case rendered a decree, declaring said deed to be fraudulent and void as against creditors, and canceled it, and quieted Mrs. Cook’s title to the undivided half of the land purchased at the execution sale. The decree was appealed from, and was affirmed by this court on June 25, 1904. After the affirmance of the decree Mrs. Cook conveyed an undivided fourth of the land to her attorneys, D. B. Sain and W. V. Tompkins, in payment for their services rendered in the litigation. Suit was then brought in the chancery court for partition between W. A. J. Sturdivant and appellees, Cook, Sain and Tompkins, and the lands were sold for partition.
The present suit was instituted on March 28, 1905, to enforce the lien claimed on the land by virtue of the conveyances •executed by W. A. J. to J. S. Sturdivant for payment of said debt of $3,000 and interest.
The institution of this suit was the first information Mrs. Cook or her said grantees received of any lien or other clairn upon the land by J. S. Sturdivant, or of the execution of said unrecorded conveyance to him by W. A. J. Sturdivant.
The chancellor dismissed the complaint for want of equity, and the plaintiffs appealed to this, court.
Mrs. Cook purchased at her own execution sale. The amount of her bid was credited on the judgment, and therefore she was not an innocent purchaser fo.r value, but took the title subject to prior equities of other persons. Allen v. McGaughey, 31 Ark. 252; Pickett v. Merchants’ National Bank, 32 Ark. 346; Hill v. Coolidge, 33 Ark. 621; Williams v. McElroy, 34 Ark. 85.
Are appellants, as heirs of J. S. Sturdivant, barred from asserting a lien on the land?
The deed under which the lien is asserted has never been recorded, and appellees had no notice of it. J. S. Sturdivant testified as a witness in the suit of Mrs. Cook against W. A. J. Sturdivant to cancel the J. B. Sturdivant deed, and failed to disclose his alleged interest in or lien upon the land. A period of nine years elapsed from the date of the deed until the lien was asserted under it, and in the meantime Mrs. Cook purchased at the execution sale, prosecuted her .suit to successful termination against W. A. J. Sturdivant to cancel the fraudulent deed executed by her debtor, J. B. Sturdivant, then conveyed an interest in the land to her attorneys, and caused the land to be sold for partition.
The deed to J. S. Sturdivant, though absolute in form, was ■ intended to be in effect a mortgage, and appellants are seeking to enforce it as such. The defendants plead the statute of limitation against its enforcement, and also plead the stale'ness o£ the demand.
We need not determine whether or not the enforcement of this lien is barred by the statute limiting the time within which suits to foreclose mortgages may be instituted. Act March 25, 1889, Kirby’s Digest, § § 5399-5400.
Chief Justice English, in delivering the opinion of this court in Wilson v. Anthony, 19 Ark. 16, said:
“But where the statute is not relied on as a defense, or where there is no statute of limitation, a court of equity will not aid in enforcing stale demands, where the party has been guilty of negligence, or has slept upon his rights. The chancellor refuses to interfere after an unreasonable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have been obscured by time and the evidence may be lost.”
In Ringo v. Woodruff, 43 Ark. 469, the court said: “Courts of equity have never favored stale claims and demands, but, on the contrary, from the commencement of their jurisdiction and before the enactment of any positive statute by any legislative body for the limitation of actions at law, have invariably and decidedly discountenanced laches and neglect. Until Parliament fixed the time in which action at law should be commenced, they maintained no, definite period of limitation, but .refused relief to those who slept on their own rights an unreasonable length of time, and in determining what lapse of time was a bar in each case were governed by the peculiar circumstances of each case.”
Again in Gibson v. Herriott, 55 Ark. 85, this court quoted with approval the language of Lord Camden in Smith v. Clay, 3 Brown, Ch. Rep. 640, note: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his. rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith- and reasonable diligence; where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and therefore, from the' beginning of jurisdiction, there was always a limitation to suits in this court.”
This doctrine has found application in many other decisions of .this court upon varying facts. Patterson v. Fowler, 23 Ark. 459; Thomas v. Sypert, 61 Ark. 575; Buck v. Davis, 64 Ark. 345; Fitzgerald v. Walker, 55 Ark. 148.
For an application of this doctrine, see Godden v. Kimmel, 99 U. S. 201; Abraham v. Ordway, 158 U. S. 416; Walet v. Haskins, 68 Tex. 418; Bauseman v. Kelley, 38 Minn. 197; 1 Beach, Mod. Eq. Juris. § 17.
Mr. Justice Harlan, in delivering the opinion of the Supreme Court of the United State in Abraham v. Ordway, supra, said: “But it is now well settled that, independently of any limitation prescribed for the guidance of courts of law, equity may, in the exercise of its own inherent powers, refuse .relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the relief asked.”
Now in the case at bar there was an unexplained delay of about nine years in asserting the lieu. Mrs. Cook .had the land sold under execution against J. B. Sturdivant, bid it in, and her judgment was satisfied' by credit of the amount bid. She prosecuted, doubtless at great expense and trouble, her suit against W; A. J. Sturdivant to cancel the deed of J. B. Sturdivant, and finally succeeded in the suit. J. S. Sturdivant knew of this suit and the particular controversy involved therein. He testified as a witness for his son, and said not a word about having a lien on the land. He gave no notice to Mrs. Cook that her effort to recover the land would be a fruitless one, even if she won that suit, because of his superior lien, nor did he record his deed. If he were alive now, asserting a lien, we think a court of equity should turn a deaf ear to his prayer for relief, and his heirs are in no better attitude.
■ We think, for other reasons, the plaintiffs were properly denied relief.
Appellant J. B. Sturdivant seeks to enforce a lien on lands sold to satisfy a judgment against himself. Certainly a court of equity will not aid him in depriving his judgment creditor of the fruits of a sale' made to satisfy the judgment, at least not without requiring him to do equity by paying the judgment.
Nor is W. A. J. Sturdivant in any better attitude to ask equitable relief. The lien which he seeks to enforce is for his own debt to his father, J. S. Sturdivant. He created the lien by executing the deed to his father, has bought the interests of the other heirs, and now attempts to collect the debt which he owes himself out of the lands which have been previously adjudged to Mrs. Cook in the suit which she brought against him to cancel the J. B. Sturdivant deed. Should a court of equity aid him in having his own debt paid out of property owned by another? Certainly not.
Learned counsel argue that the adjudication in the former suit between Mrs. Cook and W. A. J. Sturdivant does not bar the rights of the latter acquired by inheritance from his father and by purchase from the other heirs. Concede that to be true, yet he is attempting to coerce the payment of a.debt for which he is primarily liable out of land which, aside from this lien, belongs to Mrs. Cook, and has been adjudged to her. The debt and lien being of his own creation, the effect of his inheritance from his father and purchase from the other heirs was merely to extinguish them. It amounted to a payment of the debt, because he could not be creditor and debtor at the same time.
Taking either view of the case, the chancellor was correct in his decree, and the same is affirmed. | [
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McCulloch, J.
Appellee instituted this suit in equity against appellants, William T. Hardie and Cincinnati Cooperage Company, to quiet its title to a tract of land in Chicot County, to cancel the deeds under which appellants claim title, and to restrain the last-named appellant from cutting and removing timber. Appellants filed their answer and cross-complaint, in which they deny that appellee had any.title to the land, and in which they deraigned title from the United States. They prayed that their title be sustained, and that possession be awarded.
It is expressly admitted that appellants have a complete chain of title from the United States, and appellee asserts title only by adverse possession for the statutory period of limitation under color of title.
The land in controversy was wild and unimproved until about a year before the commencement of this suit, when appellee took actual possession and placed tenants upon it. More than seven years before the commencement of this suit appellee received a deed from one W. D. Hill for several contiguous tracts, containing in the aggregate 3,394 acres, including the tract in controversy, and took actual possession of a portion of said land, claiming title to the whole. As already stated, actual possession of the tract in controversy was not taken until a short time before the commencement of this suit, nor was actual possession taken of any of the lands of appellants.
Appellee claims constructive possession by virtue of actual occupancy of an adjoining tract embraced in the same deed of conveyance. The facts of the case bring it squarely within the doctrine laid down in Haggart v. Ranney, 73 Ark. 344, that “constructive possession follows the title until there has been an invasion of this possession of the rightful owner by an actual occupancy of at least a part of the tract, and an actual occupancy of a part of a contiguous tract owned by another does not oust the constructive possession of the true owner, even though both tracts be described in the same instrument.”
Other questions are argued by appellants as grounds for reversal, but as this is decisive of the case we need not discuss the others.
Reversed and remanded with directions to dismiss the complaint for want of equity, and to enter a decree in favor of appellants, in accordance with the prayer of the cross-complaint, quieting their title to the land in controversy and awarding possession thereof. | [
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Battle, J.
After hearing all the evidence in this cause, the court found the facts to be as follows: “That on the 12th day of December, 1902, the defendant, Joseph Evins, in .consideration of the sum of one hundred dollars, sold to one George Julian lot No. 11, in block 56, Mt. Nebo, Yell County, Arkansas; that in the year 1893, by mutual consent of parties (Julian and the defendant), the said lot 11 in block 56 was exchanged for lot 13 in block 55, Mt. Nebo, and that the said George Julian and his father took possession of and made valuable improvements on the said last-mentioned lot; that at the time no deeds were exchanged, but that the defendant had full knowledge of, and allowed the said George Julian and father to proceed with, the improvements under the said verbal agreement to exchange lots, without objection by the said defendant, Joseph Evins; that on the 17th day of June, 1897, the said lot 13 in block 55 was levied upon as the property of Julian by the sheriff of Yell County under an execution issued by the clerk of the circuit court, and the property was purchased by the said plaintiff, Sandefur-Julian Company; that in August, 1894, the plaintiff, E. C. Hall, having purchased the building upon said lot from Sandefur-Julian Company, proceeded to remove the same, and, the defendant, Joseph Evins, resisting the removal, the present suit was brought, praying for a decree that will remove the cloud from the plaintiff’s title, and for a temporary restraining order, which was made, restraining the said defendant, Joseph Evins, from interfering with or preventing the removal of the said building until further orders of the court, and the court doth further find that the plaintiff and those under whom they claim have held the open, notorious, peaceable and adverse possession of lot 13, block 55, under claim of ownership for more than 7 (seven) years before the commencement of this action.”
The temporary restraining order was made perpetual.
The findings of the court were sustained by the preponderance of the evidence. The two lots, at the time of the exchange, it seems, were vacant. The possession of George Julian and his father of lot 13 in block 55, and improvements made by them on the same, under their contract with Evins, entitled Julian to a specific performance of the contract of exchange. Waterman on Specific Performance of Contracts, § 279, and cases cited. The interest of Julian in the lot acquired by exchange was subject to seizure and sale under execution. Kirby’s Digest, § 3228; Hardy v. Heard, 15 Ark. 184; Young v. Mitchell, 33 Ark. 222. Sandefur-Julian Company acquired such interest at the sale, and plaintiffs were entitled to the relief asked for by them in their complaint.
Decree affirmed. | [
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Hiel, C. J.
The facts of this case which will be found stated by the Reporter, call for a decision as to whether an advertisement is within the meaning of the solicitation denounced by § 5133, Kirby’s Digest, which reads as follows: “It shall be unlawful for any person, firm, partnership or corporation engaged in the sale of alcohol or any spirituous, ardent, vinous, malt or fermented liquors where the same may be. lawful, to solicit orders, either by agent or otherwise, for the sale of alcohol or any spirituous, ardent, vinous, malt or fermented liquors in any place or places in this State where the same is prohibited by law.”
The many uses of the term “advertise,” in its various forms, may be found in the Century Dictionary, from which' this definition — the one most nearly reaching to the facts here — is taken: “The act or practice of bringing anything, as one’s wants or one’s business, into public notice, as by paid announcement in periodicals, or by handbills, placards, etc., as to secure customers by advertising.” “To solicit” is thus defined: “To importune, entreat, implore, ask, attempt, try to obtain.” Anderson’s Law Dictionary. See also Century Die. “Solicit.” None of the uses of this term embrace advertising, although advertising is a method, in a broad sense, of soliciting the public to purchase the wares advertised. But soliciting is a well known and defined action, and advertising is an equally well known and defined action, and they are not identical. It is true that they are intended to reach the same result, the sale o'f the wares, but different routes are traveled in reaching that end; one is legislated against, and the other is not.
If the Legislature intended to make criminal the advertisement in prohibited district of liquor, it would have said so, and not left such an important matter to be implied from the use of a general term. It would be a strained and unnatural use of the term “solicit” to include in it advertisements in newspapers.
Judgment reversed. | [
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Battue, J.
This appeal involves the validity of the organization of “Street Improvement District No. 117,” of the city of Little Rock. On October 23, 1905, the petition of more than ten owners, resident in the district, was presented to the city council of Little Rock, asking for the laying off of “Street Improvement District No. 117,” including therein the real property for 150 feet on each side of Fifteenth Street from Main to Pulaski, Pulaski from Fifteenth to Sixteenth, and Sixteenth from Pulaski Street to Park Avenue.
Fifteenth and Sixteenth streets run about east and west, and Pulaski Street and Park Avenue about north and south. Through the district,'from east to west, a street railway is constructed and operated. The owner of the street railway, in consideration of the franchise granted it by the city, contracted to pave the streets over which its tracks are laid, between the tracks and for -two feet on each side thereof, with the sáme character of material, and in like manner, as the remaining portion of the street is paved, and to change the material used from time to time as that on the other portion of the street may be changed, using the same kind of material.
On the 20th of November, 1905, in response to the petition, the council passed an ordinance establishing the district for paving, except the portion of the street the car company are bound to pave. On the 8th of January, 1906, and in less than three months after the ordinance establishing the district was passed, a majority in value of the owners of real property within the district presented their petition to the city council, which we shall call the second petition, asking that the improvement be made and the costs thereof assessed and charged upon the real property within the district, and asking for the appointment of three persons for a board of improvement. The county-clerk of Pulaski County certified that the total assessed value of real estate within the district was $236,215, and that petitioners on second petition owned real property in the district of the assessed value of $148,900, showing a majority in value of $30,872 in favor of the petition. The council granted the petition, and elected Lewis Rhoton, George C. Naylor and Miles Scull members of the board of improvement; and they qualified as such board.
Three lots on the northwest corner of Fifteenth and Pulaski streets, three lots on the southeast corner of Sixteenth and Pulaski streets, and three lots on either side of Sixteenth Street and fronting on the west side of Park Avenue, were not included in the district. But the improvement nowhere runs by or alongside of any of these lots. The value of so much of the street railway as is in the district was not estimated and included in the valuation of the property in the' district in determining the total value of such property and whether a majority in value of the ówners of the .real property in ‘ the district signed the second petition.
The board employed an engineer to form plans for the improvement of the district and to estimate the cost of the' same, and on the 5th day of February, 1906, filed its report to the city council; and on the 16th day of April, 1906, filed an ad ditional report, • stating that the cost of the improvement to be made by the district would be about $40,500, and that it had procured donations of $i8‘,500 from the city of Little Rock and the county of Pulaski.
On the 16th day of April, 1906, nearly five months after the passage- and publication of the ordinance laying off t-he district, a petition was presented to the city council by T. B. Martin and others, protesting against the maintenance of the improvement district, and asking that the ordinance creating same be repealed and the “commissioners be discharged.” A sufficient number of the original signers of the second petition signed the petition of T. B. Martin to reduce the majority to a minority, if their names could be taken off the second petition in this manner after the council had acted upon it. The council refused to consider Martin’s petition,, but referred it to the board of improvement.
On the first day of May, 1906, John Brodie and others brought a suit, in the Pulaski Chancery Court, against W. E. Lenon, mayor, -and the city council, of Little Rock, and the board of improvement, and others, and, among other things, alleged in their complaint “that Mayor W. E. Lenon and others circulated a petition for the formation of an improvement district, and that a" number of citizens in said district who signed the petition for the assessment of benefits were induced to do so after one or two calls for that purpose, and by false and fraudulent statements that it would take an assessment not exceeding one per cent, per annum for eight years, and to some that it would probably not be more than one per cent, for five years; that the statements were made for the purpose of fraudulently inducing the citizens in the district to sign the petition. * ’* * That a large number of the persons who signed the petition for the levying of an assessment signed a protest or objection to any further effort on the part of any one looking to the carrying out of the improvement (giving list of names). * * * That a majority in value of the owners of real property within the district have not petitioned the city council of the city of Little Rock to levy any assessment for said pretended district. * * * That the property in the district prior to March 1, 1906, according to its assessed value, amounted to $243,450, and the certificate of the county clerk shows that persons owning property in the district assessed in the sum of $148,990 had petitioned for the district; that persons owning property in the district who are now petitioning for it represent property valued at $77,420, thus showing that persons owning-property valued at. $166,030 are against the district. That, as a matter of fact, the owners of''property valued at $123,640 have protested against the formation of the district, thus showing the majority in value of property against the district to be $88,-610. * * * That it is the duty of the street car com'pany to pave between the car tracks and two feet on either side thereof. That it is the real contractor, and that the pretended con-, tractor is acting in the interest of the street car company. -1< =[= * That, the. city engineer who laid off the district left o.ut all the street car property in said district, although it will be benefited more than any other property in the district, and that the ordinance of the city of Little Rock granting the charter to the Little Rock Traction & Electric Company seven years. before its old charter had expired, requiring the street-car company to pave within its track and two feet on each side thereof, was nothing more than a part of the consideration for the charter rights and privileges granted, and does not exempt it from taxation or from the payment of its proportionate bene-. fir in any improvement district. * * * That at first persons representing in value $148,980 petitioned for the assessment of their property. That persons owning property valued at $71,-560 on.the first petition, together with persons owning property valued at $52,080, petitioned the city council against levying an assessment. That persons owning property in the district valued at $166,030 under the law are opposed to the levying of an assessment on their property, and that persons owning property valued at $77,420 are petitioning for the assessment.”
And plaintiffs asked that the court declare the ordinance by which the district in question was created illegal; that the board of improvement be perpetually enjoined from acting as such; and that the city council be inhibited from completing the formation of the district, and for other relief.
The board of improvement answered, and the city council demurred, to the complaint.
The court, having heard all the evidence adduced, declared the law to be “that any person signing the second petition had a right to withdraw his name after the same had been filed and board of improvement and of assessors had been appointed, and before the final levy was made by the city council,” and granted the complaint on that ground alone. The defendant appealed.
Appellees insist that “there is nothing in the transcript to show that all of the testimony taken in this case has been embodied” therein. It was agreed by all parties that the evidence in this cause, “though actually taken ore tenus at the bar of the court, should be treated as depositions,” It appears at some time to have been reducjed to writing and indorsed, “Depositions filed in my office July 23, 1906. ■ [Signed] F. A. Garrett, Chancery Clerk.” In the decree, after reciting, in part, upon what the cause was heard, the court, continuing, said: “The depositions of witnesses taken ore tenus at the bar of the court and agreed to be filed and used as depositions in the case.” .The clerk, in his certificate to the transcript, says: “Foregoing 403 pages of above-written matter (which includes the evidence taken ore tenus), contains a true, correct and compared transcript of all the pleadings, papers, files and entries of proceedings in the action named, as hath appeared by comparing the same with the original thereof now on file in my office.” We think that this is sufficient to show the evidence upon which the cause was heard.
Appellees argue that “Street Improvement District No. 117,” in the city of Little Rock, was not legally organized, and that it does not contain the “three lots on the northwest corner of Fifteenth and Pulaski streets, three lots on the southwest corner of Sixteenth and Pulaski streets, and three lots on either side of Sixteenth Street fronting on the west side of Park Avenue,” they being in the locality to be affected and in the same condition as the property included in the district. But this contention is not correct. Section 27 of article 19 of the Constitution provides: “Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the .property holders owning property adjoining the locality -to be affected; but such assessments .shall be ad valorem and uniform.” Sections 5664 and 5665 of Kirby’s Digest provide:. “The council of any city of the first or second class, or any incorporated town, may assess all real property within such city, or within any district thereof, for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature, in the manner hereinafter set forth.” Section 5665. “When any ten resident owners of real property in any such city, or incorporated town, or'any portion thereof, shall petition the city or town council to take steps toward the making of any such local improvement, it shall be the duty of the council to at once ■ lay off the whole city or town, if the whole of the desired improvement be general and local in its nature to said city or town, or the portion thereof mentioned in the petition, if it be limited to a part of said city or town only, into one or more improvement districts, designating the boundaries of such district so that it may be easily distinguished; and each district, if more than one, shall be designated by number and by the object of the proposed improvement.” It appears from these sections ttiat. the Legislature has imposed the duty of forming improvement districts, and defining their boundaries, upon the city councils. This done, the locality to be affected is fixed. The statute then provides that those owning real property in- such locality may give their consent to assessments upon their property to pay for the improvements. Section 5667 says: “If, within three months after the publication of any such ordinance, a majority in value of owners of real property within such district adjoining the locality to be affected shall present to the council a petition praying that such improvements be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within su,ch district or districts, the city council shall at once appoint three persons, owners of real property therein, who shall compose a board of improvement for the district.” Upon taking the oath of office within ten days after their appointment, and electing one of their number chairman, they become organized and qualified for the transaction of business and the performance of all the duties imposed upon them by law; and the district is completely organized for the purpose for which it was created.
Judge Cooley says: “The whole subject of taxing districts belongs to the Legislature; so much is unquestionable. The authority may be exercised directly, or, in the case of local taxes, it may be left to local boards or bodies; but in the latter case the determination will be by a body possessing for the purpose legislative power, and whose action must be conclusive as if taken by the Legislature itself. It has been repeatedly decided that the legislative act of assigning districts for special' taxation on the basis of benefits can not be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying the court that no special and peculiar benefit^ are received. If the legislation has fixed the district, and laid the. tax for the reason that, in the opinion of the legislative body, such district is peculiarly benefited, its action must in general be deemed to be conclusive. No doubt there may be exceptions.” 2 Cooley on Taxation, (3 Ed.), pp. 1207 and 1208. And he then proceeds to mention exceptions.
In Little Rock v. Katzenstein, 52 Ark. 107, it is said: “To’ the General Assembly, then, was delegated the task of providing agencies for the accomplishment of these improvements. The General Assembly, in the exercise of a well recognized constitutional power, imposed the duty of forming improvement districts, and defining their boundaries, upon the various city councils. The city council.is invested with discretion in this behalf, necessary to a just performance of the duty; and when it has acted, the property included by -it in any district is prima facie adjoining the locality to be affected. We conclude, therefore, in answer to the two queries originally propounded. * * :{i 5}» $1 * ;ji * *.* ©}:
“Second. That the action of the city council, in including property in an improvement district, is conclusive of the fact that it is adjoining' the- locality to be áffected,' except when attacked for fraud' or demonstrable mistake.”
The city council is invested with the same discretion in excluding real property from a district as it is in including it, and the same conclusiveness ought to and does attend its action, the reasons for the same being equally as strong or stronger. The property to be included ought to adjoin the locality to be affected. The statute says, “within such district adjoining the locality to be affected.” The lots excluded in this case are not adjoining the district, but entirely disconnected, and they do not appear to have been left out through fraud or mistake.
It is said that the names of the majority of the owners in value of the real property in the district were, not signed to the second petition. The reason given for this contention is that the value of the Winfield Church and the Arkansas Baptist College property, which are in the district, was not included in the valuation of the real property in the district, but the assessed value instead. That was in accordance with the law. The statute provides: “The assessor, at the time of making the assessment of real property subject to taxation, shall enter in a separate list' pertinent descriptions of all * * * public ■schbolhouses, houses used exclusively for public worship, * * * and public buildings and property used exclusively for any public purposes, with the lot or tract of land on which said house or institution or public building is situated, and which are by law exempt from taxation, and the value -thereof.” Kirby’s Digest, § 6987. Another statute provides: “In ascertaining whether the petition for improvement of any kind is signed by a majority of the owners in value of the real property in the district adjoining the property to be affected, the council' shall take and be governed by the valuation placed upon the property as shown by the last county assessment on file in the county clerk’s -office.” Kirby’s Digest, § 57x7. The Winfield Church was assessed at $8,150. The Baptist College and real property were assessed at $5,800. The majority of the assessed value of thé real property in the district belonging to those who signed the second petition amounted to $33,472.50. The assessed value of the property of the church and college and -of-the real property of those persons who were induced to sign the second petition by (misrepresentation, deducted from the $33,472.50, still leaves a majority of $9,092.50 in favor of the signers of the second petition.
The valué of 'the street railway in the district ought not to have been included in the valuation of real property in ascertaining whether the second petition was signed by a majority of the owners in value of the real property in the district. The company owning it has “no easement or freehold interest in the soil, or exclusive control of the Highway in which a location is grantee], to lay tracks and operate the road. The right conferred is to use the way within its location in common with others, and not exclusively for its own benefit. The whole way is as fully open to the lawful use of travelers after the road is built and in operation as before.” Lorain Steel Co. v. Norfolk & Bristol Street Railway Co., 187 Mass. 500. The owners of real property on either side of the street own to the middle of the street subject to the public easement. All its property is required to be assessed for taxation as personalty. Kirby’s Digest, § 6936. And therefore is not real property, within the meaning and signification attached to those words by the statutes governing improvement districts. Kirby’s Digest, § 5673.
Appellees say that there was no competent evidence before the city council to show that the second petition was signed by a majority in value of the owners of the real property of the district. That question is not presented for consideration. If the validity of a tax assessment against the property of the district were attacked, it would be proper to show that the second petition was not signed by such majority; and that could not be shown by evidence that the city council received incompetent evidence, but by evidence that it was not so signed.
Could any of the signers of the second petition withdraw their names therefrom after the appointment of the board of improvement? It was then too late. The petition had answered its purpose, and was no longer subject to the action of the city council. When the members of the board accepted their appointment, and took the oath of office, they became vested with complete control over the construction of the improvement, with the power to make all contracts necessary to be made in respect thereto, with power to borrow money, to institute suits in its name, to enforce the payment of the assessments upon the real property in its district, to disburse the money collected to pay the cost of the improvement, and with the power, except when the cost of the improvement exceeds twenty per centum of the as sesed value of the real property, to compel the city council by mandamus to make further assessments upon the real property to complete the improvement. The city council has no power to abolish the improvement district and prohibit the construction of the improvement unless it be by refusing to make an assessment when the estimated cost of the improvement exceed twenty per cent, of the assessed value of the real property in the district. Morrilton Waterworks Improvement District v. Earl, 71 Ark. 11. It is obvious that the signers of the second petition could not withdraw their names after the appointment of the members of the board of improvement. The power then had passed from them, and can not be recalled by their own acts.
The decree of the chancery court is reversed, and the cause is remanded with directions to the court to dismiss the complaint for want of equity.
Hire, C. J., and McCueeoch, J., concur in the opinion and judgment. Wood and Riddick, JJ., concur .in the judgment, but dissent from the opinion. | [
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Battle, J.
R. 'E. Lee Wilson brought suit against E. L. ' Sawyer in the chancery court of the Chickasawba District of Mississippi County, in this State, to quiet his title to a certain tract of land, described in his complaint, by setting aside a deed executed to the defendant by a county clerk, conveying such' tract to'him on account of his purchase thereof at a sale in the year 1895 of the tract in controversy and other lands returned delinquent and sold for the taxes of 1894. He admits the sale, the purchase by the defendant, and the execution of the deed, but insists that the sale is void for the following reasons:
First. In the record of the list and notice of sale of lands delinquent for the year 1894, in parallel columns, appear the headings, names, pai'ts of section, section, township, range, acres, valuation, total taxes, 25 per cent, penalty, clerk’s fees, advertising', sheriff’s fees, total taxes, penalty and costs, and under these headings respectively are the following: Ozark Land Company, N. E. 9. U, 12, 127, 150, 2.25, .56, .15, .25, .10 and 3.31. He alleges that there is nothing to indicate what the figures 150, 2.25, .56, .15, .25, .10, 3.31 denominate;-that they may be dollars, or cents, or mills; but there is nothing to show that they indicate an amount of money at all.
Second. The taxes are blended, that is, the State, county and other taxes are not kept separate, so that the owner can tell the amount of each tax he -was required to pay.
Third. The collector failed to attach his affidavit to the delinquent list returned by him.
Fourth. The assessor failed to indorse his special oath upon the assessment- books.
Fifth.. The clerk failed to certify on the record of the list of delinquent lands and notice of sale “the length of time the sale was published before the second Monday in June then next ensuing.”
The chancery court found the sale void, and set aside the deed; and the defendant appealed.
First. The following is a copy of the record of the list of so much of the lands delinquent for the year 1894, in Mississippi County, Arkansas, as is involved in this suit, valuations, etc.
Lands in this State are assessed in dollars and cents. Taxes are payable only in money or its representative. “Our denominations of money are dollars, cents and mills — the dollars being stated in figures, in whole numbers, and the cents •and mills decimally, as .05 for five cents, and .005 for five mills.” In the foregoing list, under the heading clerk’s fees, we know that .15 means fifteen cents, under advertising .25 means twenty-five cents, and under sheriff’s fees, .10 ten cents, these being fees of such officers fixed by law and chargeable against lands sold for taxes. From this it appears that .56 under the heading .25 per cent, penalty means fifty-six cents, and 3.31 under total taxes, penalty and cost means three dollars and thirty-one cents, and 150 under the head of valuation is for one hundred and fifty dollars. This is common knowledge; and the delinquent list is sufficient.
Second. There is no law prohibiting the blending of all taxes in a delinquent list of lands as published for sale. This is immaterial, and can not affect the owner. The .taxes and amount of each charged against the land can be readily. ascertained by reference to the tax books. Scott v. Watkins, 22 Ark. 556, 561.
Third. There was no evidence that the collector failed to attach his oath to the list of lands returned by him delinquent, as required by law; and the deed executed by the clerk is prima facie evidence of that fact. Kirby’s Digest, § 7104.
Fourth. The' tax sale was not invalidated by the failure of the assessor to take the special oath prescribed by section 6956 of Kirby’s Digest. Barton v. Lattourette, 55 Ark. 81.
Fifth. The clerk certified on the record the length of time that the lands delinquent on account of the non-payment of the taxes of 1894 was advertised for sale before the second Monday in June, 1895. The sale was on the 10th of June, 1895. The clerk certified that the list of lands delinquent for such taxes was published in the Osceola Times, a newspaper published in the town of Osceola, Mississippi County, Arkansas, for two weeks, weekly, the first publication being on May 25th, the next June 1st, and the last June 8th, 1893, and was also published in the Mississippi County Democrat, a newspaper published in the town of Osceola, Mississippi County, Arkansas, the first publication being May 23d, the second May 30th, and the last June 6, 1895. The certificate shows the length of time for which the list was published for sale.
The sale and deed are valid.
Decree reversed, and the cause remanded with directions to the court to dismiss the complaint for want of equity. | [
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Battle, J.
On November 22, 1904, Carrie Sandidge was a ■ passenger on a train of the St. Louis, Iron Mountain and Southern Railway Company. On that day, near Swifton, Arkansas, the train was wrecked by a collision with a freight train of the company, and the car in which Mrs. Sandidge' was seated was' derailed, and.she was seriously injured. On the same day she received a check of the company for one hundred dollars to compensate her .for her damages, and she executed to it an instrument of writing in which she released and discharged it from all • claims or liability growing out of the accident. On the 25th day of March, 1905, she brought this action against the railroad company to recover damages suffered from the injuries received in the wreck, and the defendant pleaded the release in bar of the same.
In a trial before a jury evidence was adduced tending to prove the following facts:
Prior to the 22d of November, 1904, Mrs. Sandidge was in good health and earned her living. On the day named she was a passenger on a train of the'defendant. On that day the train was wrecked, and she was knocked senseless, and during the day was hardly conscious; suffered great pains in her head and spine, and was compelled to take morphine for relief; took two or three doses. The morphine made her dull; she could not control her thoughts, and talked at random. She was extremely weak, nervous and hysterical, and seemed to be bewildered. While in this condition she signed an instrument of writing in which, for the consideration of a check for one hundred dollars, she released the-railroad-company from all liability for the injuries she received. She did not know what she was doing when she signed it. On the night of the 22d of November, 1904, she arrived at Hot Springs, Arkansas, her former home, and was nearly crazy; did not know her own son; did not know where her grip was, or where she was; grew worse for several days after the wreck; was nervous and dazed. On the 21st day of December, 1904, she consulted a physician. He found her in a very nervous condition, trembling, cold hands, complaining of pains in the head and neck, noises in the ears, fainting spells, and had dilations of the pupils, and suffering from traumatic neurosis of the spine. Every ten days she has severe spells of pain in her head and spine; has to take medicine most all the time; does not sleep well. When frightened or excited, has spasms and fainting spells and falls down. When she has the fainting spells, she is sick in bed for two or three days. She has to have an attendant when she goes out in town, she being afraid that she might have spasms, faint and fall in the street. She collected the check for the one hun dred dollars, but did not know, at the time, the contents of the release, and was not resposible for what she was doing. Soon after the accident she, was forgetful and could not remember as she did before. She has been unable to work since the accident; before, she earned from forty'to fifty dollars a month. Evidence was also adduced tending to prove facts in conflict with the foregoing, which it is not necessary to state, as the question for us to decide is, was,there evidence, if true, sufficient to sustain the verdict ?
Among other instructions the court gave to the jury the following :
“If the plaintiff, while under the influence of opiates to such an extent as to be incapacitated to contract, executed a release of damages for personal injuries, it is not obligatory on her, and is no defense to this action.
“3. If you find from the evidence in this case that plaintiff, while a passenger on one of defendant’s trains, was injured in a wreck of the train on which she was a passenger, and that the wreck was- caused by the negligence of defendant, as explained in other instructions, that she was frightened, injured and shocked to such an extent that opiates were administered to her, and by reason thereof her mental faculties were impaired to the extent of rendering her incapable of entering into a contract, as explained in other instructions, and while in .that condition defendant’s agents procured her signature to the release introduced in evidence, it is no defense in this action.
“2. You are instructed that a settlement and receipt in full of an unliquidated demand, when made with a complete knowledge of all circumstances and the mental capacity to contract, is a bar to a subsequent action upon the demand; therefore, if you believe from the evidence in this case that the plaintiff accepted $100 in satisfaction of all demands against the defendant growing out of the wreck, and that she at the time knew all the circumstances, your verdict must be for the defendant.
“13. Even if you should find from the evidence that plaintiff signed the release at a time when her faculties were so impaired that it would not be binding on her, still if you find from the evidence that, after she got to Hot Springs; and two or three days after she had taken any opiates, and .while she was in pos session of her faculties and capable of understanding what she was doing, she collected the money, and she knew at the time that said amount was in full satisfaction of all claims against the defendant, this is a ratification of the contract, and your verdict must be for the defendant.”
And the court refused to give the following at the request of the defendant:
“4. When a person receives money in consideration of making an agreement, and where the agreement is not obtained by fraud, and afterwards seeks to avoid the agreement and to have it set aside, he must first give back the money received; and if plaintiff has not done this, your verdict must be for the defendant.
“5. You are instructed that the plaintiff in this case had no right of action at law, until she had rescinded the agreement and returned or offered to return the money received from defendant upon such agreement; and if you find from the evidence that the plaintiff has not done this, you must find for the defendant.”
The jury returned a verdict in favor of the plaintiff for $3,000, less $100 which had been paid; and the defendant appealed.
There was evidence adduced at the trial which was sufficient to sustain the verdict of the jury. The remaining question is, did the court.err in refusing to give instructions numbered 4 and 5, asked for by the appellant? In other words, was it the duty of appellee to refund the one hundred dollars received by her from appellant as compensation for injuries, before bringing this action? According to the ruling of this court in St. Louis, Iron Mountain & Southern Railway Company v. Brown, 73 Ark. 42, it was not. See 24 American & English Encyclopedia of Law, 320, and cases cited.
Judgment affirmed. | [
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McCuuuoch, J.
This is an action brought by appellant, W. H. Stewart, against appellee, C. E. Bobo, to recover the amount of certain bills of exchange drawn by the Elgin Jewelry Company on appellee and. accepted by him, the same having been assigned to appellant.
On a trial by jury a verdict was rendered in favor of appellant for a portion only of the amount sued for — the jury finding in favor of the defendant (appellee) as to certain credits claimed' by way of setoff. No objection is made here to the instructions of the court, but it is contended that the verdict is contrary to.the evidence.
Counsel for appellant does not, however, attempt to set out the evidence. He contents himself with an assertion in the brief, by way of argument, that the evidence is undisputed, and that it fails to establish any defense. In order for the judges to determine whether or not his contention is borne out by the record, it is essential for each of them to explore the transcript. The object of Rule 9 of this court is to obviate that. Ruble v. Helm, 57 Ark. 304. There being a palpable failure to comply with the rule, and nothing being shown in the abstract to justify a reversal of the case, we .must affirm the judgment. Shorter University v. Kirby’s Digest, § § 3274, 3275, 3281.
It is so ordered. | [
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Hire, C. J.
In 1859 Oscar Turner, the first of the name in this record, purchased of the State the land in controversy, a tract of nearly two thousand acres of wild and unoccupied lands. It is alleged that the State conveyed it imder the swamp land act, and for the purpose of this case it may be taken that it was properly -selected and listed to -the State as swamp lands under the act of -Congress. Oscar Turner, the first, conveyed to Oscar Turner, Jr., his son, who was-for a time -a member of Congress from Kentucky, and was in Washington during the time the judgment hereinafter referred to was rendered against him. This Oscar Turner died in 1902, and by will left his property to the appellants, his wife and infant son, Oscar. Turner, the third. This was a suit to remove the clouds from the title and to quiet it in appellants, who were plaintiffs in the chancery court, and was brought in 1904. Plaintiffs offered -to pay taxes and interest thereon, and attacked the overdue tax decrees upon which defendant’s titles rested. The bill was dismissed, and the plaintiffs brought the case here. The Turners did not pay any taxes at any time since 1859, and -the land was forfeited-for taxes a few years after the war. Dike most tax sales at that time they were void, but there is no evidence that -the taxes were illegal. All of the lands were sold under overdue tax decrees in 1883. Some of of it was sold to -parties at said sales, and various defendants, claiming several of the tracts in controversy, deraign- -the title directly to the purchase at such sales: Much of the land in controversy was not sold to individuals under the overdue tax decrees, but was struck off to the State, and different tracts wer-e purchased from the State by the various defendants. These purchases ranged from 1891 to 1902. All the tracts passed through the overdue tax decrees of 1883, and the only difference in them is some of the defendants deraign directly through the sales, and others through the State, the State’s title resting on the overdue tax decrees.
About 1897 Oscar Turner, Jr., entered into a contract with S. B. Crowder, of Louisville, Ky., under which Crowder was authorized to represent his interests in these lands and clear the title for him, and'to receive fifty per cent, of the land recovered; Crowder to pay redemption charges and expenses. Crowder came to Phillips County, and investigated the situation, and found out the facts about the titles and the character of the'land, and ascertained the cost of redemption. He employed counsel in these matters, and had him call upon several darkies, who had donated some of. the Turner lands from the State, looking towards a settlement with them. No payment of taxes or redemptions were made. Later Turner himself came and investigated the situation- — -this was in 1898 — and decided that the lands were not worth the cost of redemption. In 1900 Mr Phillips, the attorney employed by Crowder, and with whom Turner had consulted, sued him for a fee, and attached all the land in controversy except a half section.
This suit proceeded to judgment, and most, if not all, the defendants -have procured title from that sale, doubtless intending to fatten the -title based upon the overdue tax decrees.
The evidence shows that up to 1899 the land was of little value, but since that time has rapidly risen in value, and at the institution of this suit was worth about $15 per acre. Just how much they were worth per acre when Oscar Turner, Jr., died in July, 1902, is not shown exactly, but it is shown that the rise was rapid after 1899, which made them worth many hundred per cent, more than when he decided not to redeem them in 1898. He had notice of the attachment suit against him in 1900. He was then a member of Congress, and a copy of the judgment was served upon him in Washington, but he declined to attend to it on account of an error of description of the land as shown in the copy served upon him. The gravamen of this bill is an attack upon the overdue tax decrees and upon the judgment in the attachment suit.
To sustain appellant’s title, the overdue tax decrees must be held void, and as to most of the land also the judgment in the attachment suit must be declared void. The court, however, declines to go into the investigation of the grounds of the attack on' the overdue tax decrees, and it is not necessary to notice the attachment suit, as it is but a second hurdle for appellants to cross, and they have fallen before the first one is reached.
The laches of the Turners, father and son, not including the infant of the third generation, barred these appellants of relief in equity. To escape laches, appellants appeal to Jackson v. Boyd, 75 Ark. 197, Williams v. Bennett, 75 Ark. 312, and Roselle v. Chicago Mill & Lumber Co., 76 Ark. 525. In Jackson v. Boyd there was no evidence of increased value of the land, no change in the status of any one towards the land, no evidence of an abandonment because of insufficient value to assume the burdens, against it; and it was pointed out that the absence of these or any other grounds causing the doctrine of laches to be invoked prevented the application in that case after a lapse of thirteen years. In Williams v. Bennett, supra, the doctrine of Jackson v. Boyd was reiterated, and it was held inapplicable where some of the well-known equitable causes for its invocation were present, and held the parties barred under such circumstances after a lapse of 35 years, during which time papers which were supposed to support a decree were lost. Rozelle v. Chicago Mill & Lumber Company merely decides that on a demurrer a complaint seeking to cancel a deed to wild and unoccupied land is not bad for failing to allege reasons for the delay where it did not appear that the rights of the defendants were prejudiced thereby. Here the defendants are prejudiced because the taxes refunded with interest do not meet the justice of the case, as it did in Jackson v. Boyd. The principles of these cases are against appellants, and Clay v. Bilby, 72 Ark. 101, is directly against them, where the following statement is as applicable to this case as to that: “The appellants failed to show that they had ány mérito rdous defense in the suit instituted under the overdue tax act. They do not allege that the taxes for which the land was sold were illegal or paid. Not a single ground for equitable interposition appears. State v. Hill, 50 Ark. 458. ,Without one palliating excuse, they show themselves guilty of the grossest negligence. They knew their land was subject to taxation, and liable to be sold if -the taxes were not paid, yet they waited thirty-eight years before they offered to pay taxes. There- is nothing in their case “to call forth a court of equity into activity.” Counsel point to the well known condition of civil war prevailing from 1861 to 1865, and say that the troublesome times extending thereafter until 1874 should be also treated as a period when the performance of duties to civil, government should be excused. If both these periods be excluded, it does not help appellants, for there is no excuse offered for omitting duties to the State after 1874, and all of this land could have been redeemed until after the -overdue tax decrees in 1883, and much of i-t thereafter from the State, and this suit could have been brought in X883 as well asl-n 1904. But the Turners have not contributed one mill to sustain the JState and county governments at any time. Oscar Tu-r-ner, Jr., was acquainted with the situation, and from his service in Congress was -doubtless familiar with the general condition and in touch with Representatives from the section where his land was located. He concluded that the lands were not worth their tribute to the State, but the appellees had more faith in their future and discharged the duty of landowners to the State, and whose equity is the stronger? The statement of the case answers it. The appellants are seeking to reap where they have not sown, and to gather where they have not strawed, and this is not the first time such conduct has caused loss. Matt. 25, 15-3°.
Mr. Justice Brewer, speaking for the Supreme Court of the United States in Underwood v. Dugan, 139 U. S. 380, so aptly described the very situation here and the equitable viewpoint thereof that it is adopted as controlling:
“And this doctrine of laches rests on no arbitrary or technical rule.. It is founded on the plainest principles of substantial justice. Ownership of property implies two things: First, attention to it; second, a discharge of all -obligations, of taxation or otherwise, to the State which protects it. When it appears' that one who now asserts a title to property, arising more than the lifetime of a generation ago, has during all these years neglected the property and made no claim of title thereto, a reasonable presumption is that, whatever may be apparent on the face of the instrument supposed to create the title, were the full facts known, facts which can not now be known by reason of the death of the parties to the transaction, it would be disclosed that no title was in fact obtained; or, if that be not true, that he considered the property of such little value that he abandoned it to the State which was protecting it. So, if, the title being beyond challenge, during these years he pays no taxes thereon, makes no effort to improve .or increase its value, and, by the labor and efforts of others, under the protecting powers of the State, large value has been given to to it, the State may properly say to him, as may also the individuals who have thus wrought this change in value: You abandoned this property when it was comparatively valueless; you have taken no share in the burdens of taxation or the support of the State; others have toiled, paid taxes, and made the property valuable; therefore, because of your shirking of the duties and obligations, you shall not, whatever may 'have been the nature of your title in the first instance, be permitted to appropriate the value thus produced by others.”
For these reasons the court declines to investigate the matters urged to avoid the overdue tax decrees of 1883.
Judgment affirmed.
Mr. Justice McCurroch disqualified and not participating. | [
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PER Curiam.
Appellants ask the court for a writ of assistance to restore them to possession which they allege was taken from them under the decree appealed from.
It is the practice,, in cases where real estate is involved, to remand the cause, on reversal, to the trial court, in order that the title may be cleared and any supplementary proceedings had where the land, is situate. It was a clear oversight in this case that the complaint was dismissed here, instead of remanding the cause to the trial court for it to be dismissed there and for other appropriate remedies flowing from the adjudication that there was no equity in the complaint. Had the attention of the court been called to.it during the term, the judgment would have been modified.
This court can not conveniently take up these supplemental matters, and should not do so except where necessary in order to give effect to its judgments.
The effect of the reversal is to vacate the decree for possession, and the chancery court should, after proper notice, make restitution of what was taken under its erroneous decree, if possession was in fact tajeen under it. .
The appellants also have a clear right at law to regain possession taken under a decree now vacated.
Motion for writ here denied. | [
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Wood, J.
First. The correctness of the judgment depends primarily upon whether or not the contract under which appellees claim was a completed bargain and sale or an executory contract of sale. “Both these contracts being equally legal and valid, it is obvious that, whenever a dispute arises as to the true character of an agreement, the. question is one rather of fact than of law. The agreement is just what the parties intended to malee it.”
“It is always a question of intention, gathered from all the circumstances.” Benjamin on Sales, page four and cases cited in American note, also p. 263; Chamblee v. McKenzie, 31 Ark. 162. If the written contract unequivocally manifests the intention of the parties, the court should declare its effect. But -where, as in this case, it is not clear from the instrument, taken as a whole, as to whether the parties intended a present or future sale, the court properly submitted the question to the jury for determination.
It is said in Chamblee v. McKenzie, supra, that if it clearly appears to have been the intention of the jparties that the property should be delivered and the title to have been passed, the mere fact that something remains to be done will not govern such intention.
There was no error in the instructions,' and the verdict and judgment are sustained upon principles recognized in the above and recent cases. See St. Louis, I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., post p. 373; Anderson-Tully Co. v. Rozelle, 68 Ark. 307.
Second. The court did not err in refusing appellant’s request for instructions one and two. These were covered by instructions given. No exceptions .are reserved an the -motion for new trial to the refusal to give requests numbered three, four and five.
Third. The question as to whether appellees were estopped by their conduct from treating the contract as an absolute bill of sale was also properly submitted to the jury in its instructions.
Judgment affirmed. | [
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McCuuuoch, J.
Appellant sued appellee before a justice of the peace to recover an amount alleged to be due , for rent of land, and to enforce, by attachment of the crop on the land, the landlord’s lien. . An appeal was taken from a judgment rendered by the justice of the peace to the circuit court, where the case was tried de novo, and the trial resulted in a verdict and judgment for the defendant. The court gave to the jury a peremptory instruction to return a verdict in favor of the defendant.
The instruction was correct. Appellant failed to prove a contract concerning the occupancy of the land or for payment of rent. There was no proof of facts tending to establish the relation of landlord and tenant between appellant and appellee. On the contrary, appellant’s own testimony shows. affirmatively that there was no such contract.
Appellee had occupied the farm in question for several years as tenant,of Mrs. Bennight, the former owner. Appellant bought it at a sale under execution in 1902 against Mrs. Bennight. The title was in dispute between appellant and Mrs. Bennight, and appellee merely announced his intention of remaining on the land until, the end. of-the anticipated lawsuit concerning the ownership thereof.
The action involved the title to the land and plaintiff’s right to recover for the use and occupation thereof. He does not claim to have had a contract with- appellee for the payment of rent, but bases his right to recover solely upon his ownership of the land by purchase under the execution sale and appellee’s declaration of his intention to remain on the land until the end of the suit about the title. Appellant offered to introduce the sheriff’s deed as evidence of his title; and excepted to the ruling of the court excluding it.
Justices of the peace have no jurisdiction of cases involving the title or right of possession to land. Const. 1874, art. 7, sec. 40. They have no jurisdiction of an action brought under the statute for use and occupation of land, except where the relation of landlord and tenant exists. Fitzgerald v. Beebe, 7 Ark. 305.
The jurisdiction of a justice of the peace in an action brought by a landlord to recover rent due upon contract can not be defeated by the defendant controverting the plaintiff’s title to the land (Matthews v. Morris, 31 Ark. 222; Nolen v. Royston, 36 Ark. 561; Bramble v. Beidler, 38 Ark. 200; Jansen v. Strayhorn, 59 Ark. 330); but when there is no contract for the payment of rent, where the relation of landlord and tenant does not exist, and the plaintiff’s right to recover depends entirely upon his title to the premises occupied by the defendant, then a justice of the peace has no jurisdiction. In the absence of contractual relation between the parties, the title to the land is necessarily involved, and the Constitution of the State expressly forbids that justices of the peace shall take jurisdiction of such a controversy-.
Counsel argue that there is some evidence that appellee agreed to occupy the premises as appellant’s tenant, though the amount of rent was not agreed, upon. We do not think there is a particle of evidence to that effect. Appellant stated in- so many words that appellee never agreed to rent the land from him. Appellee remained in possession as tenant of Mrs. Ben-night, and merely said to appellant that he would remain thereon until the end of-the suit about the title. This is all that can be made out of the evidence, and it was insufficient to sustain a ver diet in favor of the plaintiff. Having failed to prove a contract, he had no case within the jurisdiction of the court, and the trial judge correctly so declared.
Affirmed. | [
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Riddick, J.
This is an appeal from a judgment in favor of S. H. Knight against the defendant railway company. On the 4th day of March, 1902, Knight took passage on the train of defendant from Stuttgart to Ulm, both places being on the line of defendant’s railway. When the train arrived at Ulm, through some oversight the train did not stop, and plaintiff was carried two miles past the station. It was a rainy and disagreeable day for walking, but, as plaintiff had arranged for a buggy to meet him at Ulm, and as the circumstances made it very inconvenient for him not to stop there, he alighted from the train and walked back to Ulm. He had no umbrella, and was wet and muddy when he arrived at the station, and on account of the exposure he contracted a severe cold, became sick and lost several days from work. The jury assessed his damages at seventy-five dollars, and the court allowed an attorney’s fee of fifty dollars.
The first contention is that the amount allowed by the jury was excessive. As plaintiff, according to his own testimony, was only earning forty-five dollars a month, if there was nothing but the fact of the walk back to the station, a distance of two miles, the judgment would be excessive, but plaintiff suffered an attack of sickness as consequence of exposure to rain. It will be conceded that, when this sickness is considered and the loss of time in consequence thereof, this judgment is not excessive. But counsel for defendant contends that this sickness can not be considered, for it was the result of plaintiff’s own negligence in exposing himself to the weather. Now, plaintiff was under the impression that if he did not get off the train he could not get another train back until the next day. He had directed that his horse and buggy be taken to Ulm to meet him at the train, so that he could drive across the country to De-Vall’s Bluff, where he had business to look after. These and other circumstances in proof show that it would have been very inconvenient and annoying to plaintiff to have been compelled to remain on the train. When the train stopped, he was called on suddenly to decide whether he would walk back to .TJlm or remain on the train. The danger of being made sick by exposure to the weather may have seemed to him slight, for it is not often that a man of average health will be made sick by a walk of two miles, even when he is exposed to a shower of rain on the way. The negligence of defendant’s employees put plaintiff suddenly in a situation that he was compelled to decide at once whether he would remain on the train and go away from the station to which he wished to go or walk back to the station, and we can not say under these circumstances that he acted imprudently in deciding to walk, or that he assumed the risk of doing so. Counsel for appellant admit that the jury were properly instructed, and, the jury having passed on these questions under proper instructions, we do not think their verdict should be disturbed.
The other question presented is whether the court erred in taxing the defendant with an attorney’s fee of fifty dollars. The statute under which this fee was allowed is as follows:
“In all actions at law or suits in equity against any railroad company, its assignees, lessees or other person or persons owning or operating any railroad in this State or partly therein, for the violation of any law regulating the transportation of freight or passengers by any such .railroad, if the plaintiff recover in any such action or suit, he shall also recover a reasonable attorney’s fee, to be taxed up as a part of the cost therein and collected as other costs are or may be by law collected.” Kirby’s Digest, § 6621.
In Kansas City So. Ry. Co. v. Marx, 72 Ark. 357, we said that the Legislature could not discriminate against railroad companies and tax them with attorney’s fees when other litigants were not subjected to such liabilities, but that they could authorize them to be faxed with attorney’s fees in judgments against them for violating statutory regulations, the fee in such a case being a part of the penalty for violating the statute. The court held that this statute had reference to such violations, and the question as to whether an attorney’s fee can be taxed against the company in this case for the benefit of the plaintiff depends on whether this is an action for the violation of a statutory regulation. Now, it is not alleged in the complaint that any statute was violated by defendant, nor is there any reference to a statute in the complaint. The charge is that, through the negligence of the employees of the company, the train did not stop at the depot, but ran by and stopped some distance beyond. Defendants were liable for the damages caused by such negligence under general rules of law, without regard to any statute, and we do not think that, under the pleadings in this case, the defendant has been tried or convicted of having violated an express statutory provision such as authorized the court to impose a penalty upon the defendant in the nature of an attorney’s fee.
For these reasons the judgment as to the attorney’s fee will be set aside, and in other respects affirmed. | [
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Riddick, J.
This action was brought against the defendants by the Osceola Band Company to quiet its title to 1,280 acres of wild and unimproved land in Mississippi County in this State.
In this complaint plaintiff alleges that in February, 1879, the State of Arkansas by its patent conveyed the land in controversy to W. A. Jones. The chain of title under whioh plaintiff claims the land commences with this conveyance' from the State to Jones in 1879. This patent from the State to Jones is not set out in the record, but there is an agreement of counsel in the following words: “That the abstract of title to the lands in controversy be and the saíne is hereby agreed to be used in evidence as the evidence of the title under which the lands are claimed in lieu of copies of such records as may pertain to same and which may be mentioned in said abstract of title.”
Counsel for defendant by this agreement seems to have admitted that the State by its patent conveyed this land to W. A. Jones in 1879, yet, if we concede that plaintiff holds by mesne conveyances from W. A. Jones, there is still no allegation and nothing to show the nature of this patent from the State or the recitals therein, nor is there any allegation or evidence to show that the State was the owner of the land at the time it was conveyed to Jones. Defendants in their answer allege that these lands were entered by W. A. Jones about 1858, and that he received a certificate of purchase therefor from the State; that afterwards for a valuable consideration he transferred the certificate of purchase to W. C. Davie; that Davie conveyed the land to Rice Stewart, who paid taxes on the land continuously from 1858 down to the year 1892, when Stewart died. In 1893 the land was sold for the non-payment of the taxes for the year 1892, and purchased by C. E. McAuley, under whom defendants hold.
Taking these two opposing chains of title set up by plaintiff and defendants in connection with the agreement of counsel above referred to, we may assume that the State did own this land, and that W. A. Jones, under whom plaintiff claipis, purchased it from the State sometime about 1858, and that after-wards in 1879 a patent was issued by the State to Jones conveying him the title. But the lands became subject to taxation so soon as they were purchased. The evidence shows that they were on the tax books in 1872, and that one Rice Stewart claimed these lands and paid taxes on them from that date down to 1892, when, as before stated, the lands were forfeited for taxes and purchased by C. E. McAuley. McAuley and those holding under him paid the taxes from the time of his purchase down to 1901. The facts in reference to the discharge of the taxes of 1901 is as follows. The father of defendants died some months after the taxes for that year became due, and on account of his sickness or for some other reason the taxes were not paid before the day of the sale of land for non-payment of taxes. But Hale and Crenshaw, who, as shown hereafter, claimed under McAuley, held a vendor’s lien on the land for half the purchase price which the ancestor of defendant agreed to pay them, and in order to protect their interests M.r. líale of that firm requested Driver and Thomason, from whom they had purchased the land, and who held a vendor’s lien on it for unpaid purchase money, to attend the sale, and, if the taxes were not paid, to pay them. There is record evidence tending to show that the lands were offered for sale, and were struck off to Driver and Thomason for the amount of the taxes, penalty and costs. The money to make this purchase was furnished by Hale and Crenshaw, Driver and Thomason only acting as their agents in the purchase. The testimony of both Driver and Hale shows that the intention was simply to pay the taxes to protect their interests and that of the defendants. Without deciding that this purchase of the land at tax sale was, under the circúmstances, a payment of taxes within.the meaning of the act of 1899, which declares-that those who pay taxes on wild and unimproved land under color of title shall be deemed to be in possession of same, it was, as between the defendants and their vendors who made the purchase, nothing more than a payment of taxes. The defendants and those under whom they claim also paid the taxes for 1902. In July, 1903, the plaintiff made application to redeem these lands from the tax sale of 1902, and in 1904 it paid the taxes for 1903, and in August of that year commenced this action to cancel the title under which defendants claim.
The plaintiff does not claim title under Rice Stewart, and his payment of taxes for twenty years previous to 1892 was made under a claim of title adverse to its claim. From 1892 up to 1903,- as we have shown, the taxes on these lands have been discharged by defendants and those under whom they hold. It thus appears that for thirty years previous to 1903 neither the plaintiff nor those under whom it holds paid any taxes on these lands. The lands remained wild, unimproved, temóte from railway lines and of little value up to about 1896. After that date the evidence shows that there was a, considerable rise in value. Mc-Auley in 1893 purchased this land for the taxes of 1892, being less than one hundred dollars. In 1900 he sold it to John B. Driver, and Driver sold a half interest to Thomason for $1.50 per acre, being nearly two thousand dollars. About a year later these parties sold the land to Hale and Crenshaw for several times that amount, and they in turn sold to the ancestor of defendants for a price amounting to several thousand dollars. At the time these sales were made neither the plaintiff nor those under wrhom it holds had paid any taxes on the land for over a quarter of a century, and apparently had abandoned all claim to the land, either because it doubted the justice of its claim, or, what is more probable, because it thought that the lands were not worth the taxes -that were assessed against them.
But in recent years vast improvements have been made affecting the value of these lands. Levees have been built protecting them from overflow, railways constructed, making the timber upon them accessible to market, and plaintiff and those under whom it holds, after sleeping on their rights for a quarter of a century, have awakened to the fact that these lands are valuable. But the long and continued neglect of the plaintiff to pay taxes upon or assert any claim to the lands was calculated to make those parties who dealt with and purchased these lands from other claimants believe that if those under whom plaintiff claims ever had any title to the land, they had long since abandoned all claims thereto. Under this belief they invested considerable sums of money in purchasing these lands, and we are of the opinion that plaintiff is not in a position to ask a court of equity, which aids the vigilant but discourages the enforcement of stale claims, to aid it in cancelling the title of defendants.
This question was discussed in the case of Turner v. Burke, ante p. 352, where under somewhat similar circumstances this court held that the plaintiffs were barred by laches.
In discussing a question of this kind in a recent case the Supreme Court of the United States said: “One who, having an inchoate right to property, abandons it for fourteen years, permits others to acquire apparent title, and deal with it as theirs, and as though he had no right, does not appeal to the favorable consideration of a court of equity. We need only refer to the many cases decided in this court and elsewhere, that a neglected right, if neglected too long, must be treated as an abandoned right which no court will enforce. *• *. * There always comes a time when the best of rights will, by reason of neglect, pass beyond the protecting reach of the hands of equity, and the present case fully illustrates that proposition.” Moran v. Horsky, 178 U. S. 205. See also Galliher v. Cadwell, 145 U. S. 368; Felix v. Patrick, 145 U. S. 317; Meyer v. Johnson, 60 Ark. 50. It is true that mere delay does not, of itself, bar the plaintiff. “Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has in good faith become so changed that he can not be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as estoppel against the assertion of the right. This disadvantage may come from loss of evidence, change of title, intervention of equities and other causes; for where the court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief.” Chase v. Chase, 20 R. I. 202; 5 Pomeroy, Equity, § § 21-23.
It has become a maxim of the law that “equity aids the vigilant, not those who slumber on their rights.” It was said by a distinguished judge in an old case that “a court of equity * * * has always refused its aid to stale demands, when the party has slept upon his rights and acquiesced for a great length of time.” “Nothing,” said he, “can call' forth this court into activity but conscience, good faith and reasonable diligence.” Lord Camden in Smith v. Clay, 3 Brown, Ch. 638.
There are other defenses set up by defendants, but it is unnecessary to consider them, for the reason that we are of the opinion that the plaintiff and those under whom it holds title have been guilty of such laches that the chancellor was, on that ground alone, justified in refusing the relief prayed and in dismissing the complaint for want of equity.
Judgment affirmed. | [
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MoCuuuoch, J.
The' General Assembly, at the session of 1905, created a levee district covering certain teritory in Lafayette County through which the railroad of appellant runs, and this is a suit instituted in the chancery court by the board of directors of said district to enforce' the payment of levee taxes assessed against the railroad. Acts 1905, pp. 231-255.
■ Appellant makes an' attack upon the validity of the statute, in so far as it attempts to authorize a tax on the railroad, on two grounds, viz: First, that it is an attempt to impose a tax regardless of any benefit derived from the improvement, and, second, that the method authorized by the statute of' assessing railroad property is invalid. We will dispose of 'these two questions in the order in which they are presented by appellant’s counsel.
• We are not confronted now by the question whether the Eegi.slature can authorize an arbitrary assessment upon a class of property for local improvement regardless of benefit, or where it is shown that no benefit can possibly accrue from the improvement to the property sought to be taxed. We are not prepared to say that the Legislature may, without judicial 'hindrance, authorize the taxation of property for local improvement where no benefit can possibly accrue to the property taxed.
In Norwood v. Baker, 172 U. S. 269, Mr Justice Harlan, speaking for the court, after having quoted from a former decision of the court to the effect that the law-making body may generally determine what territory shall belong in a district formed for local improvement and what property shall be considered as benefited by a proposed improvement, said:
“But the power of the Legislature in these matters is not unlimited. There is a point beyond which the legislative department, even when exerting the power of taxation, may not go consistently with the citizen’s right of property. As already indicated, the principle underlying special assessments to meet the cost of public improvement is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired if it were established, as a rule of constitutional law, that the imposition by the Legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvement, could not be questioned by him in the courts of the country.”
The doctrine of Norwood v. Baker has been modified to some extent by later decisions of the Supreme Court of the United States, but the soundness of the principle announced in the quotation just made from the opinion in that case has not been questioned.
This court announced substantially the same principle in the case of State v. Moore, 76 Ark. 197, where, in discussing the power of the Legislature to determine what are necessary expenses of government, it was said: “The court in the Sloan case (66 Ark. 575) did not mean to lay down the doctrine, nor do we now, that the power of the Legislature to determine what is a necessary expense of government is arbitrary, bounded by no limitations, and absolutely beyond control by the judicial department. We can readily call to mind subjects for appropriation so obviously beyond the scope of what may be deemed necessary expenses of government that the courts could, and in duty should, ignore a legislative determination, and declare as a matter of law that the same do not fall within that class.”
But, as already stated, that is not the question which we have before us now. Appellant proved that it had already constructed its railroad through the territory above ordinary overflow before the creation of the levee district and also introduced evidence tending to show that no benefit would accrue to its property from the building of the levee. This, however, was contradicted by evidence introduced by the plaintiff to the effect that the property was greatly benefited by the improvement. It was shown by the testimony of witnesses who professed to know, and who .apparently were well informed on the subject, that, notwithstanding the railroad was on a high dump constructed above overflow before the building of the levee, yet the dump was liable to injury from overflow, and the protection afforded by the levee was a considerable benefit to the railroad. It is well established by the evidence, we think, that the building of the levee was calculated to result and did result in benefit to the property of appellant which was taxed. It is not necessary that it should receive absolute protection from overflow, or that it should have been entirely without protection and subject to inundation before the levee was built. Carson v. Levee District, 59 Ark. 513. Whether it was benefited to an extent equal to that of other property in the district, we do not consider it necessary to determine. That was a matter largely for legislative determination in fixing the boundaries of the district and providing for the method of assessment of taxes. That it was a matter for legislative inquiry and determination, and that the courts must respect such determination, is settled, so far it can be done by a decision of this court, by the case of St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 119, and that decision is in accord with the authorities generally. Matthews v. Kimball, 70 Ark. 451, is substantially to the same effect. Spencer v. Merchant, 125 U. S. 345; Paulsen v. Portland, 149 U. S. 30; Parsons v. District of Columbia, 170 U. S. 45; French v. Barber Asphalt Co., 181 U. S. 324.
If the opinion in Norwood v. Baker can be construed to be in conflict with this rule, it has to that extent been modified or overruled by French v. Barber Asphalt Paving Co., supra. In the last-named case the court in the opinion quoted with approval the following from the opinion of Mr. Justice Peckham in Fallbrook Irrigation District v. Bradley, 164 U. S. 112:
“The Legislature, when it fixes the district itself,' is supposed to have made proper inquiry, and to have finally and conclusively determined the fact of the benefits to the land included in- the district, and the citizen has no constitutional right to any or further hearing upon that question. The right which he thereafter has is to a hearing upon the question of what is termed the apportionment of the tax, i. e., the amount of the tax which he is to pay. * * * Unless the Legislature decide the question of benefits itself, the landowner has the right to be heard upon that question before his property can be taken.”
This court has said in St. Louis S. W. Ry. Co. v. Grayson, supra, that the railway company had its opportunity to be heard upon the ascertainment of the amount it should pay when. the assessment for State and county taxes was made by the State board of railroad commissioners. And the court quoted with approval the following statement of the law from Judge Cooley in his work on taxation: “The whole subject of taxing districts belongs to the Legislature. So much is unquestionable. * * * If the Legislature has fixed the district, and levied the tax, for the reason that in the opinion of the legislative body such district is plenteously benefited, its action must, in general, be deemed conclusive.”
■ Nor can we see any conflict between the case last cited, as counsel seem to think there is-, and Ahern v. Board of Improvement, 69 Ark. 68. On the contrary, that case sustains the method-of assessment according to the value of the property as provided in this instance.
Mr. Justice Riddick,
speaking for the majority of the court In that case, said: “I am therefore of the opinion that, under our Constitution, it is within the discretion of the Legislature to require that these assessments be made according to the whole value of the land in the improvement district, or according to the value of the benefit added by the improvement. For practical purposes, one of these methods of assessment may be as good as the other, and it is for the Legislature to determine which shall be applied.”
This brings us to a consideration of the other question, whether the method of assessment is valid. The .act provides that the board of directors shall annually assess and levy a tax not to exceed four per cent, on the real estate in the district, according to the valuation of lands on the tax books for State and county purposes and upon railroad track of all railroad companies as appraised by the State Board of Railroad Commis-: sioners. In other words, that the assessment shall be according to value as appraised for State and county taxation. This, is the method of assessment for local improvement which was approved by this court in Ahern v. Board of Improvement, supra, and Porter v. Waterman, 77 Ark. 383. In the Grayson case supra, it was also applied especially to railroads. This method was also approved by the court in Kansas City P. & G. Ry. Co. v. Waterworks Improvement Dist., 68 Ark. 376. We can see no reason why it should not apply to railroad tracks as well as to the other property. Nor is it in conflict with any of the decisions of the Supreme Court of the United States. Webster v. Fargo, 181 U. S. 394. The fact that the assessment is made upon the whole value of the property does not imply that it is not also according to the benefits to accrue from the improvement, for it is not an arbitrary or unreasonable method of ascertaining the amount of the benefits to assume that they will accrue in proportion to the actual value of the whole property. The Legislature acted upon this assumption in providing that the assessments should be fixed according to value, and we can not say it is arbitrary or unreasonable.
But it is contended that, in accepting the assessment of railroad track made by the State Board of Railroad Commissioners, it included the ties, angle bars and rails which are personal property, so it is claimed, and should not be assessed for local improvement. The statutes of this State expressly declare that the right of way of a railroad and all tracks, side tracks, turn-outs and other things situated on and appurtenant thereto shall be included within the meaning of the term “railroad track,” and that the same shall be held to be real estate for the purposes of taxation. Kirby’s Digest, § § 6940-6944. This does not include rolling stock and other movable property, which are separately provided for under the scheme of assessments of railroad property for taxation. Kirby’s Digest, § 6946. This court held that stockyards on the right of way óf a railroad must, under the statute, be considered a part of the right of way and assessed as a part of the real estate. St. Louis, I. M. & So. Ry. Co. v. Miller Co., 67 Ark. 498.
We find nothing in the statute creating the levee district, nor in the method of assessing the property liable for the cost of the levee, which renders them invalid.
The decree against appellant for the taxes, penalty and costs, and declaring the same to be a lien on the road, is therefore affirmed. | [
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MoCueeoch, J.
Appellant, Crawford Fogg, was convicted of murder in the first degree, and appeals to this court from the judgment of conviction. He is accused of killing one Monroe Nelson, in Chicot County, on ^unday, August 19, 1906, about eleven o’clock in the forenoon. Appellant and deceased lived in the same neighborhood, and deceased was shot in the woods not far from his home. Deceased left home in the morning of the killing, and was seen riding off to the woods. Shortly after-wards, according to the testimony of one of the witnesses, appellant left the house of his mother, with whom he lived, and went towards the woods with a gun in his hand, and passed out of sight into the woods. In about half hour afterwards a gun shot was heard by-witness, so he testifies, in the direction appellant had gone and also loud hallooing as if some one was in distress. It developed that the hallooing was done by deceased who rode out of the woods and fell from his mule in a short distance from the house where one of the witnesses was staying. He was found to be wounded, and stated that he was going to die, and that appellant had shot him. He stated that, as he rode through the woods, his mule scared at something, and he looked around, and saw appellant, who leveled his gun and immediately fired on him. Fie died the next day from the effects of the wounds. Several witnesses testified to these statements of deceased, and that he had previously declared his belief that he was going to die, and the testimony went to the jury without objection from appellant, but before the case was finally submitted to the jury his counsel asked the court to exclude all the statements of deceased on the ground that the proper foundation had not been laid for their admission as dying declarations. It is now contended that the court erred in refusing to exclude the testimony, and that the case should be reversed on that account. The ¡basis of the contention is that the testimony does not show that the alleged declarations were made in extremis and under the settled belief that the declarant was beyond hope of recovery from his wounds.
Mr. Greenleaf, in discussing this question, says: “It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them in evidence, that they were made under a sense of impending death. But it is not necessary that they should be stated, at the time, to be so made; it is enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind;” .1 Greenleaf, Ev. (16 Ed.), § 158.
The question of admissibility of the declarations as evidence — whether or not the proper foundation has been laid for establishing their competency — is primarily one for the court. The court must first determine whether or not the declarations appear to have been made under circumstances which render them competent as evidence, and then admit them, if found to be competent, for the consideration of the jury, to be given such credit upon the whole evidence as t'he jury may see fit to attach to them. Dunn v. State, 2 Ark. 247; Evans v. State, 58 Ark. 47; 1 Greenleaf, Ev. § 160.
It being the duty of the trial judge to decide the facts upon which the admissibility of the declarations as evidence depend, we must, on appeal, give such effect to his finding as we would to any other finding of fact by the court or jury.
Now, testing the question before us by these rules, we conclude that there was no error in the ruling of the trial court. There is abundant evidence to warrant a conclusion that the alleged declarations were made under such circumstances as to render them competent as evidence of appellant’s guilt. The credit and effect to be given to them was a question for the jury.
When deceased returned from the woods immediately after he was shot, he fell from his mule, and had to be carried, helpless, to the house. He was badly wounded, and died the next day from the effect of the wounds inflicted. He appeared to be suffering great pain, and in this condition he told those present that he expected to die, that appellant shot him in the woods; and he detailed the circumstances. Certainly, the court' was warranted in finding from this testimony that deceased was then in extremis, and realized his condition.
It is argued that, conceding the declarations of deceased to be competent, the evidence is not sufficient to sustain the verdict. Some of the witnesses were kin to deceased, and the testimony tends to show that some of them were prejudiced against appellant. The acting coroner, who held the inquest, testified that, though these witnesses were present at the inquest, nothing was said then about declarations having been made by deceased fixing guilt upon appellant. These things made the testimony of the witnesses somewhat unsatisfactory; but the jury had the witnesses before them, and evidently accepted their statements as the truth. If credit be given to it, the evidence is entirely sufficient. The case went to the jury upon instructions which were not objected to at the time, and which are not objected to here by appellant’s counsel. We see nothing in the record which warrants us in disturbing the verdict. If the witnesses are to be believed at all, appellant is guilty of a shocking murder,, and must suffer the penalty of his crime.
The judgment is therefore affirmed. | [
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McCurloch, J.
This is a suit instituted in the chancery court of Mississippi County by appellee, Claude H. Moore, as contractor, against appellant, James D. Driver, to recover the amount of an assessment levied on the lands of appellant for the expense of a ditch, the construction of which was authorized by an order made by the county court on petition of landowners.
Appellant resists the enforcement of said assessment on the ground that the order of the county court authorizing the improvement was void on account of certain jurisdictional defects in the proceedings, and that appellee had no valid contract to construct the ditch.
It is contended by the appellant, in the first place, that the validity of the order of the county court is not shown because the petition to the court upon which the order was based is not exhibited in this suit, nor its contents proved, so that the court may determine whether or not it sets forth all the essential jurisdictional facts. In the complaint it is alleged that the petition has been lost, and that for that reason neither the original nor a copy thereof can be produced. No proof was made, either as to the loss of the petition or as to its contents, further than the recitals of the order of the county court. This court held in St. Louis, Iron Mountain & Southern Ry. Co. v. Dudgeon, 64 Ark. 109, that the filing of a petition, signed by one or more persons whose property is to be affected by the proposed ditch and setting forth all the jurisdictional facts, is essential to a valid order and judgment of the county court, but it has never been decided by this court that the subsequent loss of the petition would affect the validity of the proceedings. On the contrary, it has been several times decided that in proceedings of this character the judgment of the court containing recitals and findings of jurisdictional facts is presumed to be within the jurisdiction of the court and valid. Stieivel v. Fencing District, 71 Ark. 20; Overstreet v. Levee District, 80 Ark. 462; Coleman v. Coleman, ante p. 7; Ritter v. Drainage District, 78 Ark. 580.
It is also contended that notice of the filing of the report of the viewers was not given in apt time before the order of the county court was made authorizing the construction of the ditch and levying the assessment on lands. The order of the court recites that the notice was properly given in apt time, and this recital must be taken as prima facie true, and it casts upon one attacking the validity of the proceedings the burden of proving that the notice was not given. Kansas City, P. & G. R. Co. v. Waterworks Imp. Dist., 68 Ark. 376; Stiewel v. Fencing District, supra; Overstreet v. Levee District, 80 Ark. 462; Jonesboro, L. C. & E. Rd. Co. v. Board of Directors, etc., 80 Ark. 316.
Appellant introduced some proof tending to show that the notice was not published the length of time prescribed by statute; but the testimony was conflicting, and we think it was insufficient, even if it was competent for that purpose, to overcome the presumption raised by the recitals of the record.
The statute authorizing the proceedings provides that the viewers shall “file their report with the clerk at least two weeks before the next regular meeting of the county court” after their appointment. Sand. & H. Digest, § 1207. In this instance the viewers were appointed at the April term, 1902, of the county court, and did not file their report at the July term, which was the next term, but an order was entered by the court at that term extending the time for filing the report until the October term to enable the viewers to have the necessary surveying done, and the report was filed in time for- the October term. It is argued that this rendered the order of the court void. The provision for filing the report at the next term is not mandatory, but only directory. Notice of the proceedings is not required until the report of the viewers is filed, and up to that time the proceeding is ex parte. Cribbs v. Benedict, 64 Ark. 555. There is, therefore, no reason for holding that the provision in question is mandatory and affects in anywise the jurisdiction of the court to receive and act upon the report of viewers at a subsequent term.
The report of the viewers altered the termini of the proposed ditch by shortening it at one end and lengthening it at the other. This alteration did not, however, change' the route so as to affect the lands of appellant, as it was situated between each of the terminal points. The extension reported by the viewers and adopted by the court was to ditch through Tyronza Lake so as to reach Tyronza River as an outlet, instead of stopping at Tyronza Lake as set forth in the original petition. According to the rule laid down by this court in Cribbs v. Benedict, supra, the alteration did not affect the validity of the final order of the court fixing the limits of the district. In that case the court said: “It was not intended that the petition should give any exact or definite description of the starting point, route or terminus of the ditch that should be constructed. That was the work of the viewers.”
Moreover, the statute expressly provides that “when -there is not sufficient fall in the length of the route described in the petition to drain the lands adjacent thereto, they (the viewers) may extend the ditcli below the outlet named in the petition far enough to obtain a sufficient fall and outlet.” Sand. & H. Digest, § 1206. This clearly gives the viewers the power to extend the length of the ditch without affecting the validity of the original proceedings, and certainly it could not invalidate the proceedings to shorten the ditch at the starting point.
It is true that neither the report of the viewers nor the order of the court recites the reason for the extension of the ditch, but it is not essential to the validity of the proceeding that the reason should be stated. We must presume, in the absence of any showing to the contrary, that it was done for valid reasons.
Appellant next contends that the assessment levied on his land for expense of the improvement is excessive. He undertook to show by .his own testimony, and that of other witnesses in support of this contention, that his lands received no benefit from the construction of the ditch. The report of the viewers fixing the assessments on the land affected by the proposed ditch, and^the judgment of the county court confirming the same, established prima facie the benefit to the land and the regularity, fairness and equality of the assessments. Matthews v. Kimball, 70 Ark. 451; Kansas City P. & G. R. Co. v. Waterworks Imp. Dist., 68 Ark. 380; Ritter v. Drainage District, 78 Ark. 580; Overstreet v. Levee District, 80 Ark. 462; Jonesboro, L. C. & E. Rd. Co. v. Board of Directors, 80 Ark. 316.
The statute requires notice to be given of the filing of the report of the viewers, which report contains the assessments against the lands found to be benefited, and provides that any landowner may appear and object to the assessment and appeal from an order of the court confirming it. Sand. & H. Digest, § § 1208, 1210. The assessment thus made by the viewers and confirmed by the court is conclusive, and can not be questioned collaterally. Stanley v. Supervisors of Albany, 121 U. S. 535.; Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 113: Oliver v. Monona Co., 117 Iowa, 43; Stone v. Drainage District, 118 Wis. 388.
The validity of appellee’s contract for the construction of the ditch is attacked on the ground that the viewers made their final report one day in advance of the time fixed by the court, that there was no notice given of the letting of the contract, and be cause the contract was let en masse, instead of in separate allotments. These are mere irregularities which do not affect the validity of the contract. Stiewel v. Fencing District, supra.
Lastly, it is contended that the time for completion of the contract had expired by limitation before the construction of the work allotted to appellant’s land and the contract became void. The expiration of the time did not avoid the contract. It only afforded grounds for avoiding the contract, but- no steps to do this were taken. .On the contrary, the clerk of the court made an indorsement on the contract, by order of the county court, extending the time for completion of the work. The statute authorizes an extension of the time by the clerk for a period of sixty days, or that the clerk may relet the contract to some other persons. Sand.. & H. Digest, § 1219. Instead of reletting the contract, the clerk extended the time, and appellee completed the work under such extension.
Upon the whole, we find nothing in the record to justify the court in holding that the construction of the improvement was not properly authorized, pr that the assessment on appellant’s land was not legally levied.
So the decree is affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by Henry Bell from a judgment convicting him of murder in the first degree and sentencing him to be hung. The facts, in brief, are that one William Jones, a constable of Crawford County, was waylaid, shot down and killed in that county on the night of the 12th day of July, 1896. The defendant, Henry Bell, and several other negroes were arrested and charged with the crime. Bell was afterwards indicted for murder in the first degree. On his application a change of venue was taken to Franklin County, where he was tried and convicted and sentenced to be hung.
■ The evidence tended to show that a number of men, most of them negroes, had been engaged in gambling in the neighborhood where the crime was committed, and that Jones went to the neighborhood on the night he was killed for the purpose of arresting some of these men. He was probably waylaid and shot down by one or more of them, for no other motive is shown for the crime.
The evidence points very clearly to the guilt of one of these parties, but he fled the country and escaped. As to who the other participants in this crime were, or whether there was another participant, the evidence as shown in the transcript leaves it to our minds very uncertain. There was evidence connecting defendant with the crime, and, so far as we can see, evidence equally as potent which showed to the contrary. This evidence connecting defendant with the crime consisted of the testimony of negroes, some of whom had been arrested and charged with the sáme crime. None of this evidence is of -much importance except the testimony of one negro who testified to a confession made by the defendant. Quite a number of witnesses testified that this negro was unworthy of belief, while one witness testified that his character was as good or better than that of the average negro. No one can rqad this evidence and not regret that the courts should be compelled to act in a grave matter involving the life of a human being on evidence of such an unsatisfactory character. But, though the nature of this testimony is such that we cannot feel great confidence in its truthfulness, still the weight to be attached to it was a question for the jury, and it is sufficient to sustain their verdict.
A number of questions have been presented by counsel of the defendant to the different rulings of the court in giving and refusing instructions. But most of the instructions given were clearly correct, and the law of the case was, we think, well stated in the original charge of the court to .the jury.
The record recites that, after the jury had been out from eight o’clock Tuesday morning until about ten o’clock Wednesday morning, they came into court and asked for further instructions on certain points, among them the question of reasonable doubt. Now, the term "reasonable doubt” defines itself as a doubt that has some reason to rest on, and as opposed to an unreasonable doubt, or one having no valid reason to support it. As all this is plainly shown by the term itself, many learned judges have expressed the opinion that nothing is gained by attempts to explain a term the meaning of which is so apparent. In commenting on this matter, Judge Thompson says that the term “rea-' sonable doubt” was an expression adopted by the common-law judges “for the very reason that it was capable of being understood and applied by plain men in the jury box,” and that in attempting to explain this expression, which needs no explanation, judges generally lose themselves in mazes of subtlety and casuistry where the mind of the ordinary juror is incapable of following them. Thompson on Trials, § 2463.
Mr. Bishop says of this expression that “there are no words plainer than 'reasonable doubt’, and none so exact to the idea meant. Hence some judges, it would seem wisely, decline attempting to interpret them to the jury.” Then,- after remarking that negative definitions of this phrase may sometimes be helpful, such as that it is not a whimsical, imaginary or vague doubt, but one arising out of the evidence, he proceeds to say that “of affirmative definitions we have not one which can safely be pronounced both helpful and accurate.” i Bishop’s New Crim. Proc. § 1094.
The author of a recent article on this subject has this to say: “There have been many attempts to define and interpret the term ‘reasonable doubt,’ as used in this connection, but it is apprehended that such attempts are futile; that the words are of plain and unmistakable meaning, and that any definition on the part of. the court tends only to confuse the jury and to render uncertain an expression • which, standing alone, is certain and intelligible.” 23 Am. & Eng. Enc. Law (2 Ed.), 955. See also Burt v. State, 72 Miss. 408, s. c. 48 Am. St. Rep. and note, State v. Reed, 62 Me. 129; State v. Rounds, 76 Me. 124; Hamilton v. People, 29 Mich. 193; State v. Sauer, 38 Minn. 438; Miles v. U. S., 103 U. S. 312; People v. Cox, 70 Mich. 247.
On the other hand, many courts hold it to be proper to give an instruction defining the term “reasonable doubt.” And short negative definitions of the kind referred to by Bishop are no doubt harmless, and probably at times helpful. And numerous decisions have approved instructions telling the jury in substance that a reasonable doubt is not a mere imaginary or vague doubt, but a doubt arising out of the evidence or lack of evidence, so that the jury, after a careful consideration of all the evidence, do not feel morally certain' that the defendant is guilty. Benton v. State, 30 Ark. 328; Commonwealth v. Webster, 5 Cush. (Mass.) 295; People v. Finley, 38 Mich. 482; Little v. State, 89 Ala. 99; 1 Blashfield on Instructions, § 295, and cases cited.
But in most cases it would probably do as well for the trial judge to simply follow the statute, and tell the jury that, before convicting the defendant, his guilt must be established beyond a reasonable doubt; that if, after a careful consideration of all the evidence, they have a reasonable doubt of his guilt, they should acquit. On the other hand, if, after such consideration, they are convinced of his guilt beyond a reasonable doubt, they should convict. But, as before stated, according to the decisions of this and most other courts, there is no error in giving instructions defining such term if correctly drawn; whether it is necessary or advisable to give them being a matter generally left to the discretion of the trial judge.
In this case the presiding judge in his original charge said to the jury that “a reasonable doubt is not a mere captious or imaginary doubt, but a doubt voluntarily arising in your minds after a fair and impartial consideration of all the evidence in the case, and which leaves your minds in that condition that you do not feel an abiding conviction to a moral certainty of the truth of the charge.” This was a. very satisfactory explanation of the term, and was all that was needed, and has ample precedent to support it. Com. v. Webster, 5 Cush. 295; Benton v. State, 30 Ark. 328; People v. Finley, 38 Mich. 482; Blashfield on Instructions to Juries, §,293.
And we are of the opinion that, when the j ury came in and asked for further instractions on that point, it would have been as well for the judge to have repeated this instruction, and told the jury that this was a sufficient definition of reasonable doubt, and that he could not assist them further, for the question as to whether they entertained a reasonable doubt of the defendant’s guilt was one addressed to the judgment of each individual juror, which he must solve for himself in the light of the evidence and the law as given by the court, after a full discussion of the matter with his fellow jurors. But, in his desire to aid the jury in the solution of the question before them, the presiding judge gave them another instruction still further defining the term “reasonable doubt,” and which is set out in the statement of facts. Now, this second attempt to do what the Supreme Court of Mississippi in a case cited above says is equivalent to painting a lily or gilding refined gold does not seem to us quite so successful as the first. It is longer than the first instruction, and by the repetition of the same idea over in different words, and by the way in which it is expressed, makes the impression of an effort to convince the jury that there was no obstacle in the way to prevent them from returning a verdict either for or against the defendant. In this instruction, after an extended definition of reasonable doubt, which, it seems to us, rather clouded than cleared the subject, he says: “If you are so satisfied of defendant’s guilt, it ■ is not necessary for you to be able to put you.r finger on or point out the particular evidence that convinces you; and it is also true that if you are not so satisfied -it is not necessary that you should be able to point out the particular matter giving rise to ■ your mental condition in that respect.”
Now, waiving the question as to whether the last clause in this sentence states the law correctly, it seems to us that the statement of the law contained in the first clause is not correct. The substance of it is that a jury would, if convinced of defendant’s guilt beyond a reasonable doubt, be justified in finding him guilty of a capital crime, although they were not able to point out any particular evidence that convinced them of his guilt. This instruction assumes that the jury might be justified in believing that defendant was guilty beyond a reasonable doubt, although at the same time they were not able to put their finger on or point out any evidence that convinced them of that fact. Now, in this case it was conclusively shown that Jones was murdered. But the only evidence to connect the defendant with the crime was the evidence of a negro that defendant confessed to the crime and evidence that shortly before the killing he was engaged with several other negroes in “shooting craps” for money, and the testimony of a negro that he heard him whispering to one Calvin Coggs when Coggs was trying to borrow a gun on the night of the killing. If the jurors believed this evidence, there was no trouble to point out the evidence that convinced them. If they rejected it as unworthy of unbelief, they should have acquitted the defendant; for, though othe.r witnesses testified to circumstances surrounding the killing, their evidence did not connect the defendant with the crime. But, under' this instruction, the jury may have rejected this evidence, which could be readily pointed out, and founded their verdict on a belief which rested on no tangible evidence. A rule of law that permitted either a court or jury to impose the death sentence on one without being able to point out the evidence upon which the conviction rested would be as dangerous as it would be novel. Such a rule would be antagonistic to the fundamental principles of law that there must be some substantial evidence of guilt before conviction and punishment. If it was within the prerogative of a jury to find the defendant guilty without being able to put their finger on or point out the evidence that convinced them, then the same rule would apply to the court, and it might follow that one could be convicted and executed for crime where neither the judge nor the jury were able to name thé evidence that showed his guilt. The mere statement of such a rule seems sufficient to condemn it as unsound.
It may be, and probably is, true that the learned trial judge did not intend .by the language quoted to convey the idea that the jury could convict without being able to say what it was that convinced them of guilt. 'But the trouble with this part of the instruction is that it was calculated to create this impression.Under the facts of this case where there was a mass of circumstances .in proof bearing on the crime but having little or no tendency to connect defendant with it, and where his connection with •it was shown mainly by a purported confession proved by a negro witness of doubtful character, we think that this instruction was both improper and prejudicial.
If this rather diffuse explanation of reasonable doubt had been given as a part of the original charge, there would be less room to complain.
But this jury, called upon to decide a case involving the life or death of the defendant on the testimony of certain witnesses,some of whom had been suspected and arrested for .this very crime, and whose reputations for truth and morality were shown to be more or less bad, had remained undecided, though kept together for over twenty-four hours. This hesitation in .a matter of such importance was fully justified by the contradictory and unsatisfactory nature of the evidence. Coming -before the court for additional instructions under these circumstances, this further charge was given to the jury explanatory of reasonable doubt. Now, whether a juror entertains a reasonable doubt is a matter for him alone to determine. He is, to quotq the language o'f the Supreme Court of Minnesota, “the best judge of his own feelings, and knows for himself whethér he doubts better than any one else can tell him.” State v. Sauer, 38 Minn. 439.
When accurate and full instructions on the whole case have been given, including a concise explanation of reasonable doubt, and when, after considering all the evidence and the instructions, the only question in the minds of the jury is whether the guilt of the defendant is established beyond a reasonable doubt, they have reached a point where little assistance can be afforded by the presiding, judge, for the matter is one which they must decide according to the dictates of their own judgment. For the judge to undertake to assist them by still further elaborating on the nature and character of reasonable doubt is more likely to mystify and confuse than to aid them. And this is another reason why we think that this instruction should not have been given.
In concluding this second charge to the jury, the judge told them that he was very anxious for them to reason together to see if they could not come to a conclusion. “It is not intended,” he said, “to force you to abandon honest convictions, but to give you ample opportunity to exercise the high qualities of manhood becoming jurors in an important case like this.” Counsel for the defendant contends that this language, spoken to the jury after they had remained undecided for over twenty-four hours, was too earnest an appeal to them to decide the case, and was prejudicial to defendant. It was calculated, he says, to impress too strongly upon the jury the idea that it was their duty to exercise the “high qualities of manhood” to which reference is made in the instruction, and to decide the case in some . way, even at the expense of honest convictions. But we can not concur in this view. While the part of the instruction referred to, being probably hastily drawn, is somewhat vague and seems to have more eloquence than lucidity in it, yet, taken as a whole, the meaning of the instruction is clear. It was an attempt on the part of the trial judge to impress upon the jury that it was their duty to consider the case carefully and to decide it if they could do so without violating their judgments and consciences. The idea that the court intended to convey was entirely proper. While we think that, instead of telling the jury that his intention was to give them ample opportunity “to exercise the high qualities of manhood becoming jurors in case like this,” it would have been simpler and perhaps better to have said that the intention was to give them ample opportunity “.to consider the evidence and decide the case,” still, when the instruction is taken as a whole, it is clear that this is in substance what'the court meant, and no error can be based on this instruction.
For the error previously indicated the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.
This appeal questions the constitutionality of the following statute:
“It shall be unlawful for any mine owner, lessee, or operator of coal mines in this State, where ten or more men are employed underground, employing miners at bushel or ton rates or other quantity, to pass the output of coal mined by said miners over any screen or any other device which shall take any part from the value thereof before the same shall have been weighed and duly credited to the employee sending the same to the surface, and accounted for at the legal. rate of weights as fixed by the la¡ws of Arkansas, and no employee, within ithe meaning of this act, shall be deemed to have waived any right accruing to him under this section by any contract he may make contrary to the provisions thereof, and any provisions, contract, or agreement between mine owners, lessees or operators thereof, and the miners employed therein, whereby the provisions of this act are waived, modified or annulled, shall be void and of no effect, -and the coal sent to the surface shall be accepted or rejected; and, if accepted, shall be weighed in accordance with the provisions of this act, and right of action shall not be invalidated by reason of any contract or agreement; and any owner, agent, lessee, or operator of any coal mine in this State, where ten or more men are employed under ground, who shall knowingly violate any of the provisions of this section, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than two hundred dollars nor more than five hundred dollars for each offense, or by imprisonment in the county jail for a period of not less than sixty days nor more than six months, or both such fine and imprisonment; and each day any mine or mines are operated thereafter shall be a separate and distinct offense; proceedings to be instituted in any court having competent jurisdiction.” Acts 1905, c. 219, § 1.
This legislation is clearly within the scope of the police power. The manifest purpose of the statute is to prevent those who operate coal mines from perpetrating fraud upon laborers whom they have employed to mine coal by the quantity. It will be observed that the act does not interfére with the right of the operator to contract with the miners in his employ for the mining of coal by the hour or day, or in any other manner, regardless of quantity, that he deems proper. He is not compelled to have his coal mined' and pay for same according to the quantity produced. But if he elects to employ miners to mine coal and to pay for same according to the quantity produced, then the purpose of this law is to secure the laborer against the use by him of any screen or other device “that shall take any part from the value thereof before the same shall have been weighed and duly, credited to the employee” producing same. Under the provisions of the statute, the operator who has contracted to have his coal mined by the quantity is not required to accept the coal sent to the surface by the miners. The coal “shall be accepted or rejected.” But “if accepted,” then it “shall be weighed in accordance with the provisions of the act.”
The plain purpose of the act therefore is not to prevent the parties from contracting in any manner they deem propér for the production of coal, but rather, after they have contracted for its production according to the quantity produced, to see that such quantity is ascertained by a fixed and definite standard by which neither of the parties can be defrauded. In other words, under this statute, the miner, having contracted-with the mine owner or operator to produce a bushel, ton, or any other quaxitity of coal at a certain price for the quantity produced, is entitled'to have such 'quantity ascertained by the legal rate or system of weights adopted by the State of Arkansas; and that too without having the output or quantity of coal mined passed over any screen or other device which would take any part from the value thereof, i. e., which would reduce, as ascertained by the weight, the quantity of coal which he had actually mined uxxder his contract. It is certainly 'within the police power of the State to adopt a uniform system of weights and measures, and to require that all persons whose business transactions require the use of same conform thereto. Kirby’s Digest, c. 159; Blaker v. Hood, 53 Kan. 509; State v. Wilson, 61 Kan. 34; State v. Peel Splint Coal Co., 36 W. Va. 802; Freund on Police Power, § § 272 to 275. The purpose of these statutes, as applicable to coal mines, is, as said by Mr. Snyder, “to furnish a reliable means upon which to base the miner’s cornpensation and to protect him in the payment for all the coal he mines.” He therefore “not only has the right to have it justly and honestly weighed in the original form in which he loaded it, but he has the right also tq have a true record kept of it.” 2 Snyder on Mines, § 1675.
The operators are prohibited from using screens or other device “which shall take any part from the value thereof.” -The words quoted show the intent of the Legislature to protect the miner from the use of any device by his employer. that will enable such employer to deprive the miner of the value of his labor on the basis of the quantity mined as per contract.
We see nothing in the statute under consideration that contravenes the provisions in our State and Federal -constitutions securing to all persons liberty and equality of rights under the law. State Const., art. 2, § § 2, 3, 8; Fed. Const., Fourteenth Amendment.
That the law applies only to mine owner, lessee, or operator of coal mines where ten or more men are employed underground does not subject it to the interdiction of the aboye provisions. The coal industry of our State, on account of the great number engaged in it and depexident- upon it for a livelihood, and the still greater number who are affected by it, is of vast irnportance. Indeed, it can be truthfully said to be an industry of great interest to the public, if not affected by a public use. It is eminently proper that the Legislature should take supervision over it for the protection and benefit primarily of those who are engaged in it and dependent upon it, and, secondarily, for the welfare of those who are incidentally affected by it. This duty has been recognized and entered upon, as evidenced by laws intended to insure, as far as practicable, the safety, health and comfort of the miner while engaged in his hazardous employment; and also to insure him, if possible, against any fraud or imposition that might or could be practiced upon him by an unscrupulous employer, if there should be one, who would defraud him of the fruits of his toik Kirby’s Digest, § § 5337 to 5358, inclusive. Legislation of the latter class is as much warranted under the police power as the former. As the object of such legislation is to protect those miners who need protection from fraud, broad latitude must be given the Legislature in the matter of the classification of the mines and miners. The principle announced in the case of Consolidated Coal Co. v. Illinois, 185 U. S. 203, is applicable here. “In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mine's which are worked upon so small a scale as to require only five operators would not be likely to need the careful inspection provided for the larger mines, where the workings were carried on upon a large scale, or at a greater depth from the surface, and where a much larger force would be necessary for their successful operation. It is quite evident that a mine which is operated by only five men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be required in such cases. There was clearly reasonable foundation for discrimination here.”
The Supreme Court of West Virginia, in passing upon a similar clause in a similar statute, said: “The distinction drawn in favor of the smaller operators would indicate that the Legislature thought that the evils of fraud and danger of imposition did not extend to the smaller classes of operators^ and hence the remedy was not extended to their employees. It'is impossible to see how this distinction- renders the act amenable to the charge of violating the Fourteenth Amendment of the Federal Constitution;” citing Budd v. New York, 143 U. S. 517. See State v. Peel Splint Co., 36 W. Va. 831. The authorities are quite numerous holding that the Legislature may make classifications and discriminations between different classes of corporations and individuals. Likewise that such laws are not open to impeachment by the courts as violative of the Fourteenth Amendment of the Federal Constitution, and the rights of civil liberty and equality, and of contract, guarantied by State and Federal constitutions, so long as equal protection is .not denied to all persons similarly situated, and where it appears from the face of the act that no unreasonable, arbitrary, or unjust discrimination was intended ,or could be effected. Along this line see the many authorities cited in the able brief of counsel for appellee.
We do not consider the cases decided by the Supreme Court of the United States cited and relied upon in the brief of learned counsel for appellant as applicable to the statute under consideration. We believe the opinion we hold conforms to the decisions of the Supreme Court of the United States. No unjust or unreasonable discrimination against one class of persons or corporations and in favor of others can be found in this statute, as was found in the statutes in the cases cited that fell under the condemnation of the Supreme Court of the United States because repugnant to the Fourteenth Amendment of the Constitution. It must be presumed that the Legislature, through the local members from the districts affected especially by the legislation, or its committees appointed for the purpose, received information of the conditions which made such legislation necessary or expedient, and that it intended to put its enactments in the form to meet the requirements.
The act applies to “coal mines in this State, where ten or more men are employed underground.” It may be fairly inferred from this language that the Legislature considered as mines only those places that had been developed to the extent of requiring the labor of ten or more men underground in the work of mining coal. Those places where the development work had not been carried on to the extent of requiring the labor of ten men underground were evidently regarded by the Legislature as only in the prospective or experimental stage. We have no right to assume, from the act, that the Legislature intended to discriminate against them, but rather that they were not included because they did no't need the protection afforded the class mentioned.
Similar laws have been enacted in several of the coal-producing States and, where tested, have received the sanction of the highest courts of the States, as a valid exercise of police power. Section 8786, Dig. Mo. Stat., 1899; chapter 82, Acts of W. Via., 1891; State v. Peel Splint Coal Co., 36 W. Va. supra; Stat. of Kan., § § 4000-5, 1899; State v. Wilson, 61 Kan. 34; Revised Stat. of Ind., § 7840.
This court, in Woodson v. State, 69 Ark. 521, upheld a similar law as to a corporation, under the State’s constitutional power to amend charter, and to prescribe conditions on which foreign corporations might continue to do business in this State. As the appellant in this case is the agent of a foreign corporation, the act could be sustained under the authority of that decision. For we do not find that the present law’ is so essentially different from that as to require a different ruling, and in the opinion of the court that case announces the correct doctrine.
Finding ho error, the judgment is affirmed. | [
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BatteE, J:
“Ed Salmon, the appellee, hereinafter called the defendant, was indicted in the Woodruff Circuit Court for unlawfully selling five gallons of whisky within three miles of Ebenezer Church, situated in the Southern District of Woodruff County. He was convicted on September 7, 1906, by the court, sitting as a jury, upon the following statement of facts, towit:
“It is agreed that the Cache River Valley Distilling Cpmpany is a corporation which has complied with all the laws of the United- States authorizing it to distill ardent spirits and whisky at Mayberry, Arkansas, in the Southern District of Woodruff County, Arkansas.
“It is further agreed that Ed Salmon is the manager and agent of the Cache River Valley Distilling Company, for the purpose of operating said distillery and of disposing of the output thereof. It is agreed that on the first day of June; 1906, the said Ed Salmon, after having complied with the laws of the United States with reference to the stamping and selling of whisky produced at said distillery by putting same into an original package containing not less than five gallons, sold one of said original packages, containing not less than five gallons, to one W. C. Hogan for the price of $12.50.
“It is also agreed that the place at which said sale of said five-gallon package of whisky was made is within three miles of a church, known as Ebenezer Church, in the said Southern District of Woodruff County, and that at the January term, 1906, of the county court of Woodruff County, an order was made and entered by said county court prohibiting the sale or giving away of any ardent, vinous, malt or intoxicating liquors within three miles of the said Ebenezer Church, as is provided by law, within a period of'two years thereafter, and until the further order of the court, and which said order is in words and figures as follows, towit:
“In the Woodruff County Court, January Term, 1906.
“In the matter of the petition to prohibit the sale of liquors within three miles of Ebenezer Church.
“On this day is presented to the court the petition of Dave Mayo, and other adult inhabitants residing within three miles of Ebenezer Church, situated upon the northwest quarter of section three (3), in township four (4) north, range three (3) west, praying an order of this court prohibiting the sale or giving away of. intoxicating liquors of any kind or native wine within three miles of said Ebenezer Church. And upon examination thereof the court finds that said petition contains the names of a majority of the adult inhabitants residing within three miles of said Ebenezer Church; and it is hereby ordered by the court that the prayer of said petition be granted and the sale or giving away of any intoxicating liquors of any kind or alcohol or native wine, by any name whatever known, is hereby prohibited within three miles of said Ebenezer Church, for the period provided by law.
“He was sentenced to pay a fine of $50, and from this judgment he appealed.”
Did appellant have the right to sell the whisky manufactured by himself in original packages, containing not less than five gallons, within three miles of Ebenezer Church?
Manufacturers of ardent, vinous, malt or fermented liquors were authorized to sell liquors of their, manufacture in original packages containing not less than five gallons, without license, by an act entitled “An act to regulate the sale of vinous, ardent, malt or fermented liquors,” approved March 8, 1879. The act entitled “An act providing for the prohibition of the sale or giving away of vinous, spirituous or intoxicating liquors of any kind within three miles of any academy,- college, university or other institution of learning, or of any church house in this State”' was approved March 21, 1881. The latter act prohibited the sale of all liquors in districts created under it, except wine sold for sacramental purposes, and alcoholic stimulants prescribed and furnished by regular practicing physicians to the sick under their charge. Both of these acts were amended in 1883. The act approved March 8, 1879, was amended by an act approved March 26, 1883, but the provision as to manufacturers of ardent, vinous, malt or fermented liquors was left unchanged. The other act was amended by an act approved February 20, 1883, and that was so amended as to read: “and provided further, that nothing herein contained shall prohibit the sale or giving away by manufacturers of wine made from grapes or berries in quantities 'of one quart or more, or in sealed bottles.”
Both of these acts were passed at the same session of the General Assembly, and must be construed together, and made to stand, if reconcilable. Construed in this manner, all manufacturers of ardent, vinous, malt or fermented liquors were prohibited from selling liquors in three-mile districts created under the act of March 21, 1881, except manufacturers of wine made from grapes or berries, and they could sell only in quantities of one quart or more, or in sealed bottles. The privileges of manufacturers of whisky as to the three-mile districts have not been extended further since then. Appellant was lawfully convicted. Cotton v. State, 62 Ark. 585.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) Section 1455, Kirby’s Digest, provides that it shall be lawful for the county court to allow accounts incurred by any person in preventing the spread of, and in -nursing and caring for persons in their respective counties who have not been afflicted with, smallpox.
Section 1456 provides for the method of stating and presenting the account.
Section 1457 provides, among other things, “that no person shall be allowed a greater sum for services rendered * * * under the provisions of this act than is customary for such services in other cases.” The purpose of the law was to enable county courts to aid in the suppression of smallpox, but at the same time they are prevented, by the last clause quoted supra, from making exorbitant allowances for services rendered during the dread and stress of such contagions. They can not allow greater amounts than customary charges for “such services in other cases,” i. e., other cases than smallpox.
The court correctly declared the law. The appellees made out their -cases by proof that the charges made were reasonable for the service they rendered. The proof that they worked night and day, not only nursing the stricken ones but doing the household work besides, was sufficient to sustain the court’s finding. The criterion for determining' the proper amount is the value of such services, i. e. the service of nursing the sick, doing household duties, etc., made necessary on account of the disease, if such service or similar service were performed in other -cases -than smallpox. The - lawmakers intended that no unusual and extravagant .charge should be allowed on account of the exigencies produced by the dreadful disease. But in the present cases, even if the amount allowed for nursing, under the proof, would have been unreasonable, the fact that appellees performed in addition customary household duties, made necessary by reason of the contagion, amply sustains the court's finding.
There is nothing in the proof to estop appellee Blitter from claiming the amount that was allowed him. He had made no contract with the county, and the question at last was the value of his services as measured by the rule above announced. Judgment affirmed. | [
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McCulloch, J.,
(after stating the facts.) In the trial of this case below the parties ignored some of the issues presented by the pleadings, and introduced proof directed to other issues. There being no objection to this, the court treated the pleadings as amended to conform to the proof.
The plaintiff introduced no testimony tending to establish the allegations of the complaint that the defendant had no funds in bank to pay the check and misrepresented that fact to induce plaintiff to accept the check in payment of the note.
The court, in the instructions given.at the request of plaintiff, based the defendant’s liability upon his alleged promise, when he delivered the check to plaintiff, to pay it in the event of the failure of the bank to pay on presentation, and on the fact that when the check was received by the cashier of the bank and the deposit slip issued to plaintiff the amount was not passed to her credit on the books of the bank. These instructions assumed that defendant’s alleged promise to pay the amount in the event of the failure of the bank to pay on presentation of the check was a waiver of presentation for payment within a reasonable time, and made him liable for the failure of the bank to pav at any time. They also assumed that the check was not paid by the bank by issuance of the deposit slip, because the amount was not credited to plaintiff on the books of the bank. The instructions were erroneous for these reasons. The promise of the defendant to pay the amount in the event of the failure of the bank to pay on presentation of the check added nothing to his obligation, and was not a waiver of his right to have the check promptly presented by the plaintiff. “A check, like a bill of exchange, must be presented for payment within a reasonable time, and what is a reasonable time will depend upon the circumstances of the particular case. In the absence of special circumstances excusing delay, the reasonable time for presenting a check, where the person receiving the same and the .bank on which it is drawn are in the same place, is not later than the next business day after it is received; and where they are in different places, reasonable diligence requires the check to be forwarded to the place of payment not later than the next business day after it is received by the payee, and presented not later' than the day after it is there received. Inexcusable delay will discharge * * * the drawer from liability if he is injured by the delay.” 7 Cyc. pp. 977-979; Same, pp. 531, 532; Tiedeman on. Com. Paper, § 443; Minehart v. Handlin, 37 Ark. 276; Morris v. Eufeula, Nat. Bank, 122 Ala. 580; Kilpatrick v. Home B. & L. Assoc., 119 Pa. St. 30; Hamlin v. Simpson, 105 Iowa, 125, 44 L. R. A. 397; Anderson v. Rodgers, 53 Kansas, 542, 27 L. R. A. 248.
In this case there was a delay of five days (excluding Sunday) in presenting the check for payment, and no excuse for the delay is shown to have existed. This was sufficient to discharge the drawer when presentation within a reasonable time was not waived. An unreasonable delay taken by the drawer for his own convenience in presentation of the check is at his own risk.
The plaintiff’s acceptance of the deposit slip or receipt, which turned out to be worthless, instead of demanding the cash in payment of the check, placed the loss upon the plaintiff as a result of the negligence of her agent in so doing. Loth v. Mothner, 53 Ark. 116; O’Leary v. Abeles, 68 Ark. 259, and cases cited.
It is immaterial that the cashier or other employees of the bank did not place the deposit to the credit of plaintiff on the books of the bank. The surrender of the check and acceptance of the deposit receipt, instead of demanding the cash, was an election to accept payment in that way.
The oral agreement alleged to have been entered into by appellant after the deposit of the check is void under the statute of frauds because not supported by a new consideration. Kurts v. Adams, 12 Ark. 174; Hughes v. Lawson, 31 Ark. 613; Chapline v. Atkinson, 45 Ark. 67; Killough v. Payne, 52 Ark. 174.
The instructions of the court were erroneous, and the verdict is not sustained by the evidence. So the judgment is reversed, and the cause remanded for a new trial. | [
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McCulloch, J.
On March 7, 1901, appellants commenced this suit in chancery court of Chicot County against appellees to quiet title to the north half of the northwest quarter of section 19, township 14 south, range 3 west. They claimed title as follows: Donation deed from State of Arkansas March 18, 1877, to Peter Jones, conveying said northwest quarter; deed from Peter Jones to Joseph Thornton for same land; deed from Thornton to plaintiffs July 28. 18S5, conveying undivided half of said land, and partition deed October 24, 1900, from Thornton’s heirs conveying the north half of said northwest quarter. They alleged that Thornton had continuously held possession from time of his purchase from Jones, and that plaintiffs had continuously held possession since their said acquisition of title.
The defendants answered, denying title in plaintiffs and claiming to have held possession adversely under a deed executed tó them by one Carleton in 1878. They also claimed title under a sale by the collector of taxes in June, 1898, for the taxes of 1897.
No attack is made upon the donation deed to Jones, so that must be accepted as having placed the title in Jones, Jones took possession of the tract, and he and his grantee, Thornton, cleared up and put in cultivation about 20 acres on the east part of the quarter section. One of the appellees brought an action of ejectment against Thornton for these 20 acres, and a trial of the case resulted in a judgment for Thornton, and, on appeal to this court, the judgment was affirmed. Dickinson v. Thornton, 65 Ark. 610.
Appellees claim title to the remainder of the tract by reason of having had actual possession for more than seven years before the commencement of this suit. The chancellor decreed the 20 acres to appellants and the remainder to appellees.
Does the proof sustain appellees’ claim of actual, adverse possession ?
Appellants and their grantors having taken and held possession of 20 acres of the land under a deed describing the whole of the quarter section, their possession is deemed to have extended constructively to the limits of the premises therein described. Pillow v. Roberts, 12 Ark. 829; Elliott v. Pearce, 20 Ark. 508; Sparks v. Farris, 71 Ark. 117.
Constructive possession follows the title, in the absence of actual possession adverse to it. Gates v. Kelsey, 57 Ark. 523; Woolfolk v. Buckner, 67 Ark. 411; Haggart v. Ranney, 73 Ark. 344.
It is necessary, therefore, for appellees to show actual possession — possessio pedis — continuing for the statutory period, in order to make out title by limitation. The proof does not show this. The most that is shown by the evidence is that appellants have for a number of years claimed ownership of the land, paid taxes thereon, occasionally cut timber thereon and caused their agents to maintain a watch so as to prevent other persons from trespassing thereon. These are only “fitful acts of ownership” which this court has held do’ not constitute title by limitation. Brown v. Bocquin, 57 Ark. 97; Driver v. Martin, 68 Ark. 551; Boynton v. Ashabranner, 75 Ark. 415; John Henry Shoe Co. v. Williamson, 64 Ark. 100.
In Driver v. Martin, supra, the court, in speaking of such acts of ownership, said: “They lack the. continuity that is neces sary to constitute the seven years unbroken possession that will bar the recovery of the land by the true owner and vest the title in the adverse occupant. They were disconnected trespasses, and vested title in no one.”
In Boynton v. Ashabranner, supra, we said: “The payment of taxes, the claim of ownership, and the exercise of fitful and disconnected acts of possession are insufficient to create title by adverse possession. The cutting of timber and firewood from this place did not evidence the continuity of possession and hostile and notorious holding which are necessary to give title.”
Appellees introduced testimony to the effect that Mary Jáckson, one of the heirs of Jos. Thornton, cleared and put in cultivation about three acres of the land in controversy, that they caused her arrest in 1896 for criminal trespass, and that she then agreed to attorn to appellees as her landlords, and executed to them her note for $5 as rent of the land she was cultivating. This, however, occurred within seven .years before the commencement of this suit; and "if it be conceded to be an act of adverse possession on the part of appellees commencing when Mary Jackson attorned to them, it is evidence that they were not in possession prior to that time.
It is also shown that a man named Dickey at one time leased a part of the land from appellees, deadened about three acres/ and cleared and fenced a small patch, containing about half an acne. It does hot appear, 'however, when this occurred, and we can not assume that it occurred more than seven years before the commencement of this suit; nor is it shown the length of timé the occupancy of Dickey continued. These matters are considered, even when taken as having transpired within the period of limitation, in passing upon the continuity of appellees’ alleged possession, but, considering together all of the alleged acts of adverse possession, we think they fall short of establishing continuous adverse possession by appellees for a period of seven years.
One of the appellees in his testimony and some of the other witnesses state in general terms that appellees were in possession of the land, and that it was generally understood to be in their possession, yet they do not specify acts which collectively amount to continuous adverse possession. We are clearly of the opinion that the plea of adverse possession is not sustained by the evidence.
Appellees also prove payment of taxes as acts of possession. The whole of the northwest quarter of section 19 was assessed for taxes as an entirety, and the taxes thereon were paid as a whole. Part of 'the tract has been in actual occupancy of appellants and their grantors, so the statute providing that “improved and uninclosed land shall be deemed and held to be in possession -of the person who pays taxes thereon” (Kirby’s Digest, § 5037) has no application. Wheeler v. Foote, 80 Ark. 435.
The sale of the land for taxes in 1898, under which appellees also claim title, is void, and the tax deed conveyed nothing. The final decree below was rendered on November 11, 1904, and an appeal was granted by the clerk of this court on November 11, 1905 . Appellees contend that the time for appeal expired November 10, 1905, and that the appeal was improperly granted. The statute provides that “an appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed.” Kirby’s Digest, § 1199. In computing the time allowed for appeal the day on which the judgment or decree was rendered must be excluded, and a full year after that day given for appeal. The appeal was granted and perfected within the time allowed by law.
The decree of the chancellor is erroneous, and the same is reversed and remanded with directions to enter a decree for appellants quieting their title to lands described in the complaint, and also declaring a lien thereon in favor of appellees for the amount of taxes and penalty paid by them on the land in purchasing the same at tax sale in 1898, and all taxes paid by them since then, together with interest on the whole at ten per cent, per annum from .date of the several payments. | [
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Riddick, J.
This is an appeal from a judgment in favor of Arthur Cotter and others, administrators of the estate of John Riffey., against the Mutual Reserve Fund Life Association for the sum of $1,000 and interest on a policy of insurance issued by -the company on the life of John Riffey.
This is the second appeal by the company. When the case was here before, the judgment against the insurance association was reversed for the reason that the evidence showed that -in his -application for the policy Riffey had made misstatements of material facts. In answer to the question, “Flow long since you consulted or were attended by a physician? Give date,” he answered, “September, 1897,” and in answer to the question, “State name and address of such physician,” he answered, “W. B. Snipes, Spring Creek.” To a further question, “Have you had any disease or medical attendance not stated above?” he answered, “Malarial fever, Dr. D. S. Drake, Marianna.” But the evidence showed that the answers to the first two questions stated above were not true, that -the date of his last sickness before the application was in October, 1897, at which time he was attended by Drs. Foreman and Drake, of Marianna. On the last trial evidence was introduced tending to show that at the time he made the application for insurance Riffey gave correct answers to all-of the questions referred to above, but that in reducing them to writing the examining physician, Dr. Snipes, filled out the answers so as to show that he himself was the last physician who treated Riffey, and that the date of the sickness was in September, 1897, instead of October of that year, and that this was done without the knowledge of Riffey. The physician was ■employed and paid by the company. If he, after being correctly informed of the facts by the applicant, chose to write them down incorrectly, the company would not be allowed to take advantage of this wrong of its own agent or permitted to‘ avoid the policy on that ground. ■ It would be estopped from doing so. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295.
The question as to whether the answers were correctly given by the applicant was submitted to the jury under proper instructions, and their finding has evidence to support it, and is conclusive.
Again to the question, “Had you used, or do you now use, ardent spirits, wine or malt liquor? If so, to what extent, give average quantity each day? State fully,” tire applicant Riffey replied, “Only in sickness.” The evidence showed that Riffey, while not addicted to the habitual use of liquors, did take a drink 'occasionally. It was held in the case of Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, that such questions do not refer to an. occasional or exceptional use of such drinks, but to the habitual or customary use. The question propounded in this case of itself indicated that it did not refer to an occasional use, such as a drink once or twice in a week or two, as is shown here. The question requests a statement as to-the “average quantity each day.”- But the average quantity for each day that Riffey took of such drinks would have been infinitesimally small, for the evidence showed that he did not use intoxicating beverages daily or regularly, but that occasionally when he came to town he took a drink, sometimes two, but not to an extent sufficient to affect him. The answer that he made to this question that he used such liquors “only in sickness” showed that he was not a total abstainer from such drinks, but that he used them when in his opinion they were beneficial to his health. Considering that the question referred as before stated to the habitual, not the occasional, use of such drinks, we are of the opinion that the answer involved no material misrepresentation. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295; Van Valkenburgh v. Am. Ins. Co., 70 N. Y. 605; Chambers v. Northwestern Ins. Co., 64 Minn. 495.
Judgment affirmed.
McCulloch, J., disqualified. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by Heenan Coleman, a brother of D. L. Coleman, deceased, from a judgment of the chancery court of Ploward. County holding that an order of adoption made by the probate court of that county on the petition of D. L. Coleñian was a valid order, and had the effect to make the adopted child the heir of Coleman. The petition upon which this order of adoption was made is not set out in the record, but the recitals in the order itself show all the jurisdictional facts required by the statute.
The language of the statute is that “any person desirous of adopting any child may file his petition therefor in the probate court in the county where suoh child resides.” Kirby's Digest, § 1341-
“Such petition shall specify, first, the name of such petitioner; second, the name of such child, its age, whether it has any property, and, if so, how much; third, whether such child has either father or mother living, and, if so, where they reside.” Id. § 1342.
This court in the case of Morris v. Dooley, 59 Ark. 483, held that, in addition to the facts which are expressly required to be stated in the petition, it must be shown either in the petition or in the order of adoption that the child was a resident of the county where the order was made, for that in the opinion of the court was necessary .to show that the court had jurisdiction.
The only objection made to the order under consideration here is that it does not show that the father was not living; or state that it was shown by two witnesses that the residence of the father was unknown. The statute from which we have quoted above requires that the petition for adoption shall, among other matters, state “whether such child has either father or mother living, and, if so, where they reside.” As before stated, the petition on which this order was made is not set out, but the order recites on this point “that the mother of said boy died soon after his birth, and the residence of the father, if living, is unknown to. petitioner.” We understand from this that it was alleged,. in substance, that the mother was dead, and that the residence of the father was unknown. This was a substantial compliance with the statute. Moreover, the petition not being set out in the record, it will be presumed that it complied with the statute.
Another section of the statute provides that the court “shall not adopt such child if it have a father or mother living, unless such father or mother appear in open court and give consent thereto, provided, that if such petitioner show by two competent witnesses that the residence of such father or mother be unknown, then such court may order the adoption of such child.” Id., § 1345. Appellant contends that the order is void and subject to collateral attack because it does not recite that it was shown by two witness that the residence of the father was unknown. But ■the jurisdiction of the court did not, in our opinion, depend on such evidence, nor was it necessary to make such a recital in the record. Making the order of adoption without such proof would be error, and might'be ground to set such order of adoption aside on petition of the father of the adopted • child, but neither D. L. Coleman, on whose petition the order of adoption was made, nor any one claiming through him, as plaintiff does, would be allowed to object to the judgment on that ground. Nugent v. Powell, 4 Wyoming, 173, 62 Am. St. Rep. 17; Van Matre v. Sankey, 148 Ill. 553, 39 Am. St Rep. 196, and note; In re Williams, 102 Cal. 70; Appeal of Wolf, 13 Atlantic Rep. (Pa.), 760.
For the reasons stated, we are of the opinion that the order of adoption was valid, and that the decree of the chancellor upholding same was right.
Judgment affirmed. | [
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Hide, C. J.
Witherington entered into contract with appellant company to purchase a lot of jewelry; he could not read or write, and called his daughter-in-law, who was assisting him in the store, to sign his name for him. The jewelry was shipped by express to Bearden, Arkansas, a railroad and express station not far from Woodberry, an interior hamlet, where Witherington resided. It was directed to Witherington at Woodberry, care of express agent at Bearden. After staying at Bearden for several weeks, the jewelry was returned to the shipper. The contract contains this provision:
"When we deliver goods to transportation company in good order, they become the property of the purchaser, subject to all the conditions and safeguards contained herein. Purchaser pay all transportation charges. All goods are shipped at our earliest convenience.”
There was evidence tending to prove that the agent of appellant committed a fraud on Witherington in the procurement of the contract in taking advantage of his illiteracy by purporting to read the contract to him when in fact he omitted important and material terms thereof, including the above. That the goods were purchased at the price sued for is admitted, and the fraud only went to certain clauses in the written contract. Concealment or misrepresentation to an illiterate person of matters in writing will avoid such matter. 1 Page on Contracts, § 64; 9 Cyc. p. 390; Jones v. Austin, 17 Ark. 498.
The question of fraud was submitted to the jury under an instruction fairly accurate, which was not excepted to, and the finding, in effect, is that the above clause, and others not important to this discussion, were fraudulently inserted. If the above-quoted clause was in the contract, the goods became Witherington’s on delivery to the carrier. If that clause was not binding, and the verdict takes it out of the contract, then Witherington’s liability rests on whether the delivery to the carrier was delivery .to him. At the bottom of the contract, after Witherington’s signature, was a statement that the jewelry was to be sent by express to Bearden; but this was no part of the signed contract, and there was no evidence of a direction that the goods were to be sent there.
Witherington testified that Camden was his freight station, but that he sometimes received a little at Bearden, and that he did not receive any notice from the express company or any one else that the jewelry was sent to Bearden. The appellant does not show notice was given of the shipment and its destination, and Witherington swears that he received no notice of it.
It is the duty of an express company to make personal delivery of packages, except where the place is so small as not to justify employment of messengers, or where the consignee does not reside within a reasonable distance of the office for personal delivery, when prompt notice must be sent. Hutchinson on Carriers, § § 379, 380; 6 Cyc. p. 466.
Generally, it is the duty of the carrier to give notice of the arrival of goods. Turner v. Huff, 46 Ark. 225; Ry. Company v. Nevill, 60 Ark. 375.
It might be important to determine whether the carrier in this instance was the agent of the consignor or consignee, eliminating the contract as to delivery as the verdict has done, and that subject has received recent consideration. Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Eq. Mfg. Co. 79 Ark. 456.
But, before the carrier can be put in default for failure to giveffhe notice, the package must be properly addressed to the usual shipping place unless some other place is contracted for. Hutchinson on Carriers, § § 216, 349b; 6 Cyc. 467; Gottlieb v. Rinaldo, 78 Ark. 123.
Here the undisputed evidence is that it was sent to a place not the usual shipping point of Witherington, and this placed the shipper in default before the default of the carrier occurred, and disabled appellant from recovering. Hutchinson on Carriers, § 216.
Affirmed. | [
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Hire, C. J.
This was an action on a fire insurance policy issued to B. G. Shaw, by him alleged to have been transferred to George Shaw, and after fire destroyed the property insured, a stock of goods, assigned by George Shaw to appellee. After judgment against the insurance company, it appealed.
1. The insurance company took a premium note, which was past due when the fire occurred, and it contained the usual stipulation .that the insurance should cease if note became overdue. Appellee relied upon waivers of various clauses of the policy and claimed an extension of the note, and these questions went to the jury under proper instructions. It is insisted.that the verdict is without evidence to support it and that question turns on the capacity of the agent, Young, to bind the company by his waivers, knowledge or conduct in the several matters in issue.
There was evidence tending to prove that Young extended time of payment of the note until a date beyond the fire, that he permitted payment of $1.00 per week to be made upon the note before the new due date; and suggested this method of paying it out; that he had knowledge of and consented to B. G. Shaw selling out to George Shaw, and accepted payments from George Shaw with the knowledge of the transfer of ownership. Thirteen receipts were issued by Young for $1.00 each, and three of these were indorsed on the note, and all credited on the books of the company, and all of these payments were after original due date of the note. Young’s name appears on the policy as solicitor. He testifies that he was city collector for appellant, and its agent for the purpose of writing insurance. It was shown that he solicited the insurance, wrote the application, delivered the policy, took the note, extended the time thereof, collected thirteen payments on it after its due date, credited part on note and all on the books of the company, and issued receipts therefor. The court submitted the question to the jury under this instruction:
“It is for the jury to say from all the facts and circumstances m the case whether Young was authorized by the company to waive the provision requiring indorsement of the transfer of the policy. In determining this question, the jury may consider Young’s entire connection with the transaction.”
The court will not disturb a verdict on- this evidence, and under it the company is bound by the acts of its agent in consenting to the transfer and by the waivers alleged. German-Am. Ins. Co. v. Harper, 75 Ark. 98; Fidelity Mut. Life Ins. Co. v. Bussell, 75 Ark. 25; People’s Fire Ins. Co. v. Goyne, 79 Ark. 315.
2. The court submitted to the jury, under a correct instruction given at instance of appellant, that the policy required a substantial compliance with its terms by both parties, and a failure to keep a set of books as contemplated by the policy would not be a substantial compliance and would avoid the policy. The books were submitted to the jury, and Shaw examined fully as to his method of keeping them and what they showed. It was for the jury to say whether they answered substantially the requirements of the iron safe clause, and there is evidence to sustain the finding that they did. The change in the rule on that subject by Kirby’s Digest, § 4375a, has just been recently considered in case of Security Mutual Ins. Co. v. Berry, ante, p. 92.
3. Other questions are presented and have been considered, but no matter of moment is raised which is not included in the discussion of the foregoing questions.
Finding no error, judgment affirmed. | [
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McCueeoci-i, J.
The plaintiff, Nannie E. Johnson, instituted this action against the Supreme Lodge Knights and Ladies of Honor, a fráternal society organized as a corporation under the laws of the States of Kentucky, Missouri and Indiana, to recover the amount of a relief fund certificate or policy therein on the life of her son, Charles Johnson, who is alleged to have been a member of said society at the time of his death. The defendant denied that said Charles Johnson was a member of said order, and ujpon this issue the jury returned a verdict in favor of the plaintiff. It appears from the evidence that in the month of January, 1904, E. R. Settle, deputy grand protector of this order, solicited, and procured applications from various persons at Fort Smith, Arkansas, for membership, preparatory to the organization of a subordinate lodge at that place. He secured the application, dated January 15, 1904, of Charles Johnson, and "the medical examination of said applicant was approved on January 23, 1904, by the supreme medical examiner.
The provision of the constitution and laws of the society, with reference to the institution of subordinate lodges is as follows:
“New lodges, consisting of not less than twenty applicants for relief fund membership, may be instituted and the degree conferred after the examination of the applicants by the subordinate medical examiner, and his recommendation to the supreme medical examiner for his approval of the same; but no relief fund certificate shall be issued, nor shall any liability be incurred by the supreme lodge, nor shall the membership be complete, until the medical examinations of at least twenty of the said applicants shall have been submitted to and approved by the supreme medical examiner and said applicants shall have been duly obligated in lodge session.
“The initial assessment required by relief fund law x to be paid by charter members of lodges instituted on or after the 22nd day of a month shall be accounted for and forwarded as the assessment for the month next following.”
On February 5, the first meeting was held for the purpose of instituting the lodge, and at this meeting, as • shown by .the minutes, the deputy grand protector presided and a representative of the supreme lodge was present and assisted in the organization. At this meeting the applications of 49 (including Charles Johnson) were read, and they were all balloted upon and elected to membership; and nineteen of them were obligated according to the laws of the order. Johnson was not of the number, and was not present at the meeting. Several other persons were elected to membership on cards from other lodges. The election of officers was postponed until a subsequent meeting to be held on February 10; and on that date another meeting was held at which the officers of the lodge were elected and installed, and other business was transacted, including the reception of other applications and election of the applicants to membership. Another meeting was held on February 20, at which business was transacted, including initiation of applicants.
The charter of the lodge was issued dated March 5, 1904, and recited that the lodge had been instituted on February 15, 1904, the law concerning issuance of charters being as follows:
“Charters shall be issued to grand lodges .and subordinate lodges by the supreme secretary within sixty days after satisfactory evidence of their organization has been furnished.”
Charles Johnson died April 24; 1904, He never attended any meeting of the lodge, nor was he ever obligated or initiated. On February 23, he paid the amount of one assessment in the relief fund to Settle, the deputy grand protector, but made no other payment, and was reported to the supreme lodge as suspended for non-payment of assessment, and for failure to take the obligation.
The supreme secretary issued a relief fund certificate for him dated February 15, 1904, and same was forwarded to the secretary of the subordinate lodge, but was never delivered to him.
It is conclusively shown that, for at least two reasons, Charles Johnson was not a member of the order, and that the plaintiff can not recover.
In the first place, he was never obligated or initiated as a member of the order. The law of the order hereinbefore quoted, as well as other sections of the constitution and laws, provide that the membership shall not be complete until the applicant shall have been obligated or initiated. The constitution and laws of the society formed a part of the contract, and must have been complied with before there could be any liability. 1 Bacon on Benefit Societies, § 81; Woodmen of the World v. Jackson, 80 Ark. 419.
It is contended on behalf of appellee that the failure of the applicant to. be obligated or initiated was waived by the action of the subordinate lodge in electing him to an office in the lodge. The minutes of the meeting held on February 10, 1904, show that Johnson was elected to the office of sentinel, but he was never installed and never attended a meeting. If it be conceded that the subordinate lodge had the power, by any action of that body, to waive this positive requirement of the constitution and laws of the supreme lodge, the mere election to office in the lodge of an applicant for membership, where he was never admitted and never attended meetings or performed any of the duties of the office, could not operate as a waiver of any prerequisites to completed membership in the order. Certainly, it could not be considered a waiver until there was an acceptance of the office and an installation therein.
The laws of the order provide that “in all acts performed in complying with the relief fund laws of the order the subordinate lodge and its officers are the agents of the members, and not the agents of the supreme lodge.” It may well be doubted whether the subordinate lodge could waive the provision with reference to obligation or initiation at all, but this we deem it unnecessary to decide now. We do hold, however, that it was not waived in this instance.
In the next place, if Johnson ever became a member, he was suspended from membership on account of his failure to pay the assessment for the month' of March. The lodge was instituted prior to February 22, and the assessment paid on February 23 must have been applied on the February assessment. It is not contended that he ever paid another assessment, and, under the law, he stood suspended at the end of the month of March for the non-payment of the assessment due for that month. It is argued that, because the money of some of the members paid at or about the same time was applied on the March assessment, the payment made by Johnson should have been so applied; but it is shown that the examinations of those persons were not approved by the supreme medical examiner until- March 10, 1904, and that, for this reason, their initial assessments were not due until March. Johnson’s examination was approved in January, and his assessment was due within thirty days from the 'date of such approval.
The instructions of the court were in conflict with the law as herein announced, and were therefore erroneous; and the evidence was not sufficient to sustain a verdict in favor of the plaintiff.
Inasmuch as the case has been fully developed, - and it is obvious that the plaintiff cannot recover, it is useless to remand the case for a new trial.
Reversed and dismissed. | [
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Wood, J.
The answer of appellant Burns to the substituted complaint of appellees set up tax title and possession thereunder, and asked to have same quieted. These allegations gave the chancery .court .exclusive jurisdiction,, even if the substituted complaint failed to state a .cause of action cognizable in equity. The court, having jurisdiction, properly retained the cause and determined the whole controversy. Cockrell v. Warner, 14 Ark. 345; Shell v. Martin, 19 Ark. 139; Walker v. Peay, 22 Ark. 103.; Branch v. Hickman, 24 Ark. 431; Sale v. McLean, 29 Ark. 612; Radcliife v. Scruggs, 46 Ark. 96; Crease v. Lawrence, 48 Ark. 312 ; Goodrum v. Ayers, 56 Ark. 93.
The finding of the court in favor of appellees on the issue of fact as to the statute .of limitations was sustained by the evidence.
Judgment affirmed. | [
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Hill, C. J.
The school district in April employed Ozmer to teach a three-months’ school beginning in June. The directors prevented him opening his school, and he sued for salary, and the court, after a trial, directed a verdict in his favor, and the district appealed.
The contract begins thus: “This agreement, between * : * * (names of the directors of the district) and H. F. Ozmer, a teacher who holds a license of the second grade,” etc. Ozmer’s license would expire in July; he went before the county examiner after his contract was executed, and before his school was to begin, and stood his examination and received license, but of the third grade this time. This fact is urged as cause to justify the district in attempting the rescission of the contract. This third grade license gave Ozmer lawful authority to teach this school, and there is no clause in the contract requiring him to continue to hold a second-grade .license.
The district and Ozmer could have contracted that, should he fail to get a renewal of his second-grade license, the contract should terminate, but they made no such contract; and so long as Ozmer was licensed to teach, and he was ready to do so, he performed his part of the contract, and the district must perform its. The recital of his grade of license can not be construed into a warranty that it would continue such. He was required by law to stand another examination before the life of this contract expired, and he made no warranty what his next license would be; merely described, and truthfully described, his present one.
Judgment affirmed. | [
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McCueeoch, J.
Plaintiff’s house was situated about 70 yards distant from a stave mill operated by defendants, and was destroyed by fire. The testimony was conflicting as to the origin of the fire, the plaintiff’s theory being that it was caused by sparks from, the engine, and defendants’ theory being that it originated from a defect in the chimney of the house. This question was submitted to the jury on evidence sufficient to sustain a finding either way, and the verdict settled'that issue.
The evidence is undisputed that defendants operated the steam engine without the use of a spark arrester or other appliance to prevent the escape of sparks, and the court gave instructions which in effect declared the law to be that they were liable for any damages resulting from fire communicated by the engine on account of such failure to provide a spark arrester or.other appliance. The court, in other words, declared the failure to provide a spark arrester or other appliance to prevent the escape of sparks to be negligence per se. Was that correct, or should it have been submitted to the jury to say whether or not it was negligence? We think the court was correct in its instructions. Ordinarily- in this' class of cases the question is one for the jury to determine whether proper care has been .exercised in providing appliances to prevent the escape of fire; but where, as in this case, no appliances at all have been supplied for that purpose, the court should declare it to be negligence as a matter of law. Fire is a dangerous agency, and a person or corporation using steam power in the operation of a lawful business must exercise care to prevent the escape of sparks from the smokestack of the engine. Planters' Warehouse & Comp. Co. v. Taylor, 64 Ark. 307.
Where any effort has been made in that direction, it is always a question 'of fact for the determination of a trial jury whether or not ordinary care has been exercised, but where no precautions at all have been taken, no safety appliances whatever have been provided, and by reason of proximity there is danger to other buildings, then it follows as a matter of law that propel care has not been exercised, and it is negligence per se. 1 Thompson on Negligence, § 742; Lawton v. Giles, 90 N. C. 374; Hoyt v. Jeffers, 30 Mich. 181; Webster v. Symes, 109 Mich. 1; Hauch v. Hernandez, 41 La. Ann. 992.
It is further contended by appellant that the evidence is insufficient to sustain a verdict for more than $200.
The house was totally destroyed, and several witnesses stated their opinions to be that it was worth about $200. One witness —the only one introduced by the plaintiff on the question of value — testified that .he was a carpenter, was familiar with the house and that, in his opinion it would cost at least $400 to rebuild it. He gave it as his opinion that the house was worth about $200 at the time it was destroyed. Other witnesses testified that the house was in good condition at the time it was destroyed, and they undertook to describe its condition in detail to the jury. Now, the true inquiry was as to the cash market value of the building, or rather the difference between the market value of the property before and after the destruction of the house; and the witnesses who undertook to state the value placed it at $200. It is manifest, however, that the jury disregarded this testimony, and based the amount of the verdict upon the cost of rebuilding the house anew, less the depreciation on account of age and decay. They either did this, or they arbitrarily rejected the opinions of the witnesses as to the value and substituted their own judgment. In either event they exceeded their powers and rendered a verdict inconsistent with the evidence. It was competent for the witnesses to state their several opinions with reference to the cash value of the building, stating the facts upon which they reached their conclusions. Railway Co. v. Lyman, 57 Ark. 512. None of the witnesses who testified on this subject showed any special knowledge of the value of property in that locality, and the testimony, on that account, is far from satisfactory, but the burden was upon the plaintiff to prove the amount of the damages, and the defendant alone reaps'“all the benefit from the weakness of the testimony. There was no evidence at all. that the building was worth $300 — all the evidence showed that it was worth only $200 — and the jury could not substitute their own judgment for the testimony of witnesses on this point.
The verdict is $100 in excess of what it should have been If the plaintiff shall within fifteen days enter a remittitur as to $100, the judgment as to the remainder will be affirmed; otherwise the judgment will be reversed', and the cause remanded for a new trial. | [
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Hill, C. J.
Appellee was engaged to teach school by two school directors at a meeting of which, at best, only verbal notice was given to the other director. A written contract for six months at rate of $40 per month was signed by the teacher, and on part of the district was signed by the two directors, and under it she entered into performance and taught the school for two months, two weeks and two days, and then was barred entrance to the school house by the directors, and she sued upon the contract and recovered, and the district appealed.
Appellant points out error in the instructions given and the refusal to give requested instructions, the latter being in conformity to Burns v. Thompson, 64 Ark. 489.
The errors of the court however were not prejudicial, for the appellant’s own testimony shows the contract was ratified, and this renders unavailing here matters as to its original invalidity.
The evidence most favorable to the district was in substance: That the agreement to employ appellee was made at a meeting attended by only two directors, of which meeting, if the absent director had any notice at all — a disputed matter — it was verbal and informal; the written contract was signed by only two directors, the other declining to sign it. After it was signed by the teacher and the two directors purporting to act for the district, the teacher at once opened school with the knowledge and acquiescence of the other director. This absent director, Browning, was secretary of the board, and drew warrants in favor of the teacher for each of the two completed months she taught, which he would not sign himself but delivered to the other directors to be signed by them and to be cashed by the teacher.
The district patronized the school, and people and directors recognized appellee’s authority as teacher for the district, and the only objection at all was this director, Browning, refusing to sign the contract or warrants, but at the same time he acquiesced in the matter, as he expressed it to her: “If the other two directors hire you, I can’t contrary them, and I did not.”
Judge Dillon says: “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of the corporate powers, but not otherwise.” 1 Dillon, Mun. Corp. § 463. The making of the contract was within the powers of these directors, and the invalidity of the contract only due to failure to comply with the legal requirements of giving written notice of the meeting, and did not go to any want of power of the corporation or its directors to make such a contract. The employment of a teacher was within the scope of their authority, and therefore subject to ratification. This question was before the Supreme Court of Kansas, and Justice Valentine, speaking for the court, said: “It is admitted that the original contract with Eley was, at the time it was made, void for the reason that it was not made by the .entire school board, but only by a portion thereof. ' * * * But it is claimed by the plaintiffs that the evidence introduced in the court below tended to show a ratification of the contract by the entire school board, and also by the entire school district. We think such a contract might be ratified, and might be made binding upon the school district.” [Citing many cases]. Sullivan v. School District, 39 Kan. 347. See, also, Keyser v. School District, 35 N. H. 477; Jordan v. School District, 38 Me. 164; Fisher v. School District, 4 Cush. (Mass.), 494; 1 Beach, Pub. Corp. § § 248, 250.
This contract was indubitably acquiesced in by the district, and by the dissenting director as well, wh^ would not “contrary” his colleagues and the teacher. All parties permitted her to act under the contract for nearly half its life, and all in authority had knowledge of its original infirmity. It was then too late for the board or the district to seek to disaffirm it.
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Battue), J.
Matilda Inman, as administratrix of L- H. In-man, deceased, brought this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages occasioned by the death of her intestate. She alleged in her complaint that L. H. Inman was, on the 12th day of September, 1904, a bridge carpenter, and was in the employment of the defendant, and that one J. A. Woodall was the foreman of a gang of men with which he was working at that time, and on that day, while working under such foreman on a bridge of the defendant across the Ouachita River, near Arkadelphia, another gang, of which Frank Marrs was foreman, wilfully and negligently cut the bolts and supports of an iron beam in the bridge, and thereby caused the same to fall upon and kill Inman; that deceased left plaintiff, Matilda Inman, his widow, and two children, Fred Inman, aged twenty years, and Anna Inman, aged thirteen years, him surviving.
The defendant answered and denied the allegations in the complaint, and alleged that the death of Inman was caused by his own contributory negligence, and was the result of and incident to his employment, and within the risks and hazards assumed by him.
The following facts were shown by the evidence adduced in the trial before a jury in this action: On the nth of September 1904, a freight train of the defendant broke through and wrecked a span of the bridge across the Ouachita River, near Arkadelphia, Immediately all available gangs of workmen in the employment of the defendant, and they were many, were called to remove the wreckage and. repair the broken span, each gang having a foreman. But the superintendence of this work was under S. H. Busby, and all worked as one gang under him. On the 12th day of September, 1904, “while Inman, who was a bridge carpenter and a member of one of the gangs, was engaged in this work, and while he was taking measurements for the purpose of repairing the bridge, other men were cutting rivets and taking away parts of the wreckage of the span as fast as possible. This span, before the wreck, was supported by two large rock piers some distance apart, and when the freight train broke through the span there were portions of the broken span left, so that, while parts of the freight train and of the wrecked span rested against one corner of the pier, there was, as to that part of the pier opposite, a distance in the clear, between the wreckage and the north side of the south rock pier, of from two to five feet— at least such clear space sufficient for a man to ascend or descend a rope between the wreckage and the pier. This pier was about twenty feet high, about eighteen feet wide at the top, about five or six feet thick at the top, and all dimensions increasing towards the base (or “flaring” as termed by the witnesses.) There was a rope fastened to one of the ties at top of the pier and hanging down to the base, so that it could be turned in any manner as to the pier — on the north side between the pier and the wreckage or alongside the shortest diameter of the pier on either side, or on the north side of the pier (its longest diameter), being the opposite side from the wreckage. This rope for a part of the time was suspended on one side, and a part of the time on the other. When Inman descended it the last time, it was hanging between the wreckage and the north side of the south pier. It had been used indiscriminately by persons ascending and descending. Who changed it from one side of the pier to the other, or why the change was made, the evidence does not show. But it does show that it was used by different people, and that some, in descending, came down until the wreckage was reached, and then got on that to work or to go down to the bottom; while others would continue on the rope to the end. The wreckage stood with the distance from two to five feet between it and the pier, as before stated, from some time early in the night of the nth of September, 1904, until about two o’clock in the afternoon of the next day, when the wreckage gave way while Inman was descending the rope between it and the pier, about half way down, and fell against him. The cause of the fall was the cutting of the rivets or bolts which held the wreckage together by -the men engaged in that work. A severe injury was inflicted upon Inman by the fall, from which he died in a few hours.
In the trial plaintiff was allowed to adduce evidence, over the objection of the defendant, tending to prove that the deceased, Inman, was “a cautious, careful and prudent man, who avoided taking danger.”
The jury returned a verdict in favor- of the plaintiff for $5000, and the defendant appealed.
The evidence admitted by the court over the objection of the defendant was incompetent. It did not tend to show that the-deceased pursued any particular course of conduct, at the time he was killed, or that he did or did not any act shown by the evidence. It does not tend to show such invariable regularity of action or conduct by him in the past as to make it probable that he did or failed to do any act at the time he was killed. Unless it had that effect, how could it enable the jury to determine whether he was or was not guilty of contributory negligence at the time he was killed? The statement that he was careful and cautious was merely an expression of an opinion of a witness, and threw no light upon any issue in the case. From the admission of it as evidence the jury might, have inferred it was for the purpose and sufficient to show that deceased was not guilty of negligence. It was misleading and prejudicial, and the court erred in admitting it. Hot Springs Street Railway Company v. Bodeman, 76 Ark. 302; Railway Company v. Harrell, 58 Ark. 454; Chase v. Maine Central Railroad Company, 52 Am. Rep. 744; 6 Thompson on Negligence (2 Ed.), § 7883; 1 Wigmore on Evidence, § 92; Louisville & N. R. Co. v. McClish, 115 Fed. Rep. 268, 277.
Inasmuch as the judgment in this case will be reversed and the cause remanded for a new trial, we deem it necessary to consider what was the duty of the appellant to provide for -the protection of Inman and other persons in its employment and engaged in moving the wreck of the bridge, at the time of the accident which caused the death of Inman, and to make suggestions as to the law regulating the rights of the parties to this action in a case wherein the pleadings are properly drawn, to the end the parties may take advantage of them if they see fit.
There was a large force of men engaged in removing the wreck and repairing the bridge at the time the accident occurred. They were exposed to great danger and injury, as shown by the evidence in this case. What was the duty of appellant to them as to such danger?
As a general rule, it is the duty of the master to provide the servant with suitable instruments and means with which to do his work, and to provide a suitable place in which such person, when exercising due care himself, can perform his duty safely or without exposure to dangers that do not come within the obvious scope of his employment. It would be a breach of his duty to expose a servant, who, by reason of his youth or inexperience, is not aware of or does not appreciate the danger incident to the work he is employed to do or the place be is engaged to occupy, without first giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to enable him to appreciate the dangers and the necessity for the exercise of due care and caution, and to do the work safely, with proper care-on his part. Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232.
In Railway Company v. Triplett, 54 Ark. 289, where a car repairer was engaged in work under a car upon a railroad track, and so situated that he could not protect himself and chat a jar from an approaching car would cause it to fall and crush him, it was held that it was the duty of the railway company, “by the exercise of ordinary care, to provide the car repairer with a safe place in which to work, and that it might do so by adopting such rules and regulations as would be sufficient for that purpose, when faithfully observed by its employees, and when the circumstances were such that a reasonably prudent person might have relied upon rules and regulations to afford protection; and that, if he saw proper to rely upon such methods of protection, and the occasion demanded it, he should also have adopted such measures as would have reasonably been necessary to secure the observance of such rules.” Fordyce v. Briney, 58 Ark. 206; Kenefick-Hammond Company v. Rohr, 77 Ark. 290.
In Kenefick-Harnmond Co. v. Rohr, 77 Ark., 290, the defendant was engaged in constructing a railway. Plaintiff was in its employment. At the particular time and place when and where the plaintiff was injured construction work was being done on the line of the road, which ran along the side of a mountain, about 250 yards from the valley below. Laborers in the employment of the defendant were engaged in making a cut. Two sets of men were drilling holes in the earth and rock for the re ception of powder for blasting. A portable 'boiler was used to-furnish steam to operate the drills; and plaintiff and an assistant operated the same. On account of the character of the ground, trees and underbrush intervening, plaintiff at the boiler and the men at the drills could not see each other. When a hole was finished, it was charged with powder, and the same was discharged. This court held that it was the duty of the defendant to provide reasonable means and precautions for the protection of plaintiff against the blasts.
It follows, then, that it was the duty of appellant to have adopted and used reasonable means and precautions to provide for the safety of Inman at the time of the accident, which were such as a reasonable and prudent man would have considered sufficient for his own safety under the same circumstances, i Labatt on Master and Servant, § § 14-17.
For the error indicated the judgment of the circuit court is reversed, and the cause is remanded for a new trial. | [
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Battre, J.
Henrietta Bernstein and the heirs of Moritz Elle, deceased, brought suit in the Miller Chancery Court against Charles E. Bramble, as administrator of Minna Elle, deceased, and the heirs of Minna Elle, deceased, to secure construction of will and to recover certain real estate in Texarkana, in this State, and personal property, claiming the same under so much of the last will and testament of Gustav Elle, deceased, as is in the following words:
“All the rest, residue and remainder of my estate, real as well as personal, and wheresoever situated, I hereby devise, give and bequeath to my beloved wife, Minna Elle, to have and to hold the same in fee simple forever. But in the case of the death of my beloved wife it is my will that all the estate then ' remaining and not disposed of by her by a last will or other writing shall pass to my said brother, Moritz Elle, and my sister, Henrietta Bernstein, or their heirs in equal parts.”
Plaintiffs allege that Henrietta Bernstein is the sister mentioned in the will, and the other plaintiffs are the heirs of Moritz Elle, the brother mentioned in the will, now deceased: that Minna Elle died without a will, leaving the property sued for undisposed of by will or otherwise, and without ancestors or descendants; and that the defendants are her heirs. They demurred to the complaint, and the court sustained the demurrer, and plaintiffs appealed.
Appellees insist that Gustav Elle dévised the property sued for to his wife in fee simple, and that the following clause in the will is void: “But in case of death of my beloved wife it is my will that all the estate then remaining and not disposed of by her by a last will or other writing shall pass to my brother, Moritz EMe, and my sister, Henrietta Bernstein, or their heirs in equal parts.”
In Moody v. Walker, 3 Ark. 187, the court said:
“It is essential to the validity of an executory • devise that it can not be defeated by the first taker. If the absolute right of property is given to the first taker, the limitation over is void. Eor if a legatee possesses the absolute right of property, he certainly has the power of disposing of it in any way he may think proper, and therefore he might defeat the devise or limitation over. If a testator gives property absolutely, in the first instance, to a legatee, he can not afterwards subject it to any limitation or provision whatever, as for example that he shall hold it for a life, or that he shall not spend it in a particular manner. The absolute right of ownership carries with it full power of disposing of the property.”
In Howard v. Carusi, 109 U. S. 730, the court said: ' “This will gives, first, an estate in fee simple to Samuel Carusi; it contains, second, the expression of a hope and trust that he will not unnecessarily diminish the estate; and, third, it gives to the nieces of the testator so much of his estate as Samuel Carusi shall not at his death have disposed of by sale or devise. We have, then, devised to Samuel Carusi an estate in fee simple, with an absolute power of disposition either by sale or devise clearly and. unmistakably implied. Therefore, according to the adjudged cases, the limitation over to the nieces of the testator is void.”
In Rona v. Meier, 29 Am. Rep. (Ia.) 495, the court said:
“It is fully settled by authority that if the first taker has the power, by the terms of the will, to dispose of the property, he must be considered the absolute owner, and any limitation over is void for repugnancy.”
In the case of Stowell v. Hastings, 59 Am. Rep. 748, 59 Vt. 494, it was held that: “Where a will gave to the testator’s wife the residuum for her benefit and support, to use and dispose of as she may think proper, and then provided that if any of the estate should be left in her possession at her death it should be equally divided between the brothers and sisters of the testator, the wife took an absolute estate, and that the remainder over was void for repugnancy.”
In the case of Roth v. Rauschenbusch, (Mo.) 73 S. W. 664, it appeared that: “A testator by the second paragraph of his will, gave his whole estate to his wife ‘absolutely and forever.’ In the following paragraph he provided that it was his will that if any of the property remained undisposed of after her death, it should go to his blood relations. Held, that the wife took a fee simple, and that hence the attempted disposition over was void, and the blood relations took nothing thereby.”
Chancellor Kent in his commentaries says: “If there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee, and if he dies! possessed of the property without lawful issue, the remainder over, or remainder .over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void because of the preceding fee; and it- is void by way of executory devise, because the limitation is inconsistent with the absolute estate expressly given qr necessarily implied by the will.” 4 Kent’s Com. (13 Ed.), marginal page 270.
In the 3d Edition of Redfield on the Law of Wills, Vol. 2, page 278, it is said: “It is a settled rule of American as well as English law that where the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift. Thus a devise to the testator’s son P of certain real and personal estate, and to his héirs and assigns forever, adding, that if P should die, and leave no lawful heirs, what estate he should leave to be equally divided between another son and a grandson of the testator, naming them, it was held the devise over was void, as being inconsistent with the absolute interest in the first devise.. This exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property.” ; .
In the second volume of Underhill on the Law of Wills it is said: “It is the rule that where property is given in clear language sufficient to convey an absohite fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. This rule is applied where a fee is given either expressly by words of limitation, as to a person and his heirs, or by implication by a devise in general language through the operation of the modern statutes. If it is clearly the intention of the testator that the devisee shall own the fee simple, his subsequent language, directing that what remains of the property at the death of that devisee shall devolve upon a particular person or class of persons, will not cut down the fee to a life estate. The fee, being vested by express and appropriate words, will not be diminished by subsequent words of a vague and general character which are absolutely repugnant to the estate granted. Thus, a gift absolutely to A ‘with all the power and rights that the testator enjoyed,’ with a direction that he should make a will leaving what remains of the property at his death to certain persons named, or a direction that certain legacies are to be paid, after the death of the devisee, out of the proceeds of the land, which is devised absolutely-; that certain property absolutely bequeathed should on the death of the devisee go to his children, or a gift to A with full power to alienate, convert or-dispose of and upon his death as much of it as remains to his children, does not diminish the estate given to a life estate.” Vol. 2, § 689.
In Page on Wills, § 684, it is said: “It not infrequently happens that a testator disposes of property in fee, and then attempts to provide for the disposition of the property after the death o'f the devisee in fee simple. A provision of this sort is to be carefully distinguished from the cases where a fee simple is cut down to a life estate by a devise over after the death of the first taker. The distinction between the two classs of cases, though not strongly marked, is well recognized by the courts. If the devise over upon the death of A is intended to pass.the entire property, it is evident that the testator contemplated that A should take only a life estate, without any power .of disposing of his property for a longer term than his own life. But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have such an estate, but to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate and void. * * * A condition that if devisee does not dispose of his property in any way during his lifetime it shall pass to certain named persons is held to be void.” See Gardner on'Wills, 466.
The property in controversy was devised to Minna Elle in fee simple, “with an absolute power of disposition either by sale or devise clearly and unmistakably implied.” According to the autorities cited, the limitation over to Moritz Ebe and Henrietta Bernstein is void.
Judgment affirmed. | [
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Per Curiam.
Appellee moves to strike out the bill of exceptions and to affirm the case. This is the authentication of the bill of exceptions: “Wherefore the defendant tenders this his bill of exceptions, together with the stenographer’s official report of the case at the time, which is signed and sealed by the court, and ordered to be made a part of the record. This bill of exceptions presented on the 18th day of November, 1905, and the time _ for filing expires on tomorrow, the same is signed with the distinct understanding that any and all valid objections which may or can be urged by counsel for plaintiff may be done, and any and all corrections which should be made shall be made.”
(Signed) “Styles T. Rowe, Judge.”
“The object of the statute in requiring the circuit judge to sign a bill of exceptions is tó furnish a certain test of its accuracy.” Kansas City, S. & M. Rd. Co. v. Oyler, 51 Ark. 280. This bill of exceptions is not signed in token of the accuracy of the proceedings therein contained, but in order that it may be filed before the expiration of the time limit, and the judicial power is not exercised, but reserved to be exercised thereafter. It expressly negatives that it contains a true memorial of the proceedings, and shows that the judge did not intend it to be accepted as importing absolute verity, but treated the signing and filing as purely formal. In Kansas City, S. & M. Rd. Co. v. Oyler, supra, the judge’s statement showed more confidence in the bill of exceptions than this statement does, but like this one it lacked the essential element — a certification to its verity as the judicial act of the presiding judge — and the court, through Chief Justice Cockriee, said: “But, as he was unwilling to accept the bill as a true narrative of the proceedings and sign it for the purpose of evidencing that fact, it did not serve the office of bringing the exceptions upon the record.” The same is true of this bill, and there are no questions raised which are presented by the record proper, wherefore the judgment is affirmed. | [
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McCueeoch, J.
Appellant, John E. Wood, purchased a jack from one H. N. Bell for the price of $500, which was paid. At the time of the sale a written instrument in the following form was executed to appellant, the signature thereto of appellee, S. W. Stewart, appearing as shown below, viz.:
“Van Burén, Arkansas, 12-8-02.
“I hereby guaranty the jack, ‘Cas Miles,’ now at Van Burén, Arkansas, to be good server of mares and a good foal-getter. I further guaranty that he will sire as good crop of mules as any jack now in Arkansas. If he fails to do so, or fails on any of the above guaranty, I agree to refund the purchase money paid for said jack, and take him back and pay purchaser, John F. Wood, a reasonable compensation for care and keep of said jack, said amount to be $100. It is understood that said jack is to be properly handled and kept. I guaranty said jack at this time sound and healthy. I guaranty said jack to be free from climate fever. Jack to be delivered at Dyer, Ark., in good condition.
“Harry N. Beel.*
“Reference: Taylor National Bank of Taylor, Texas; State Bank of Texarkana, Ark.
“In case said jack fails to come up to written guaranty I agree to pay said J. F. Wood $100 as a forfeit over and above care and keeping.
Witness:
“Harry N. Beer.
“S. W. Stewart,
“W. N. Boatright,
“O. N. Gray/’
Appellant and appellee both resided in Crawford County, Arkansas, and Bell in Miller County.
Appellant instituted an action in the circuit court of Crawford County against Bell and Stewart, in which he alleged that they had executed to him a written agreement whereby they guarantied said jack and agreed to refund the purchase price and pay appellant a forfeit of $100 and the expense of keeping the jack in the event of a breach of the guaranty. He also alleged that the jack had not come up to the guaranty, and prayed judgment against them for $500, the price paid for the jack with interest, $100 for expenses of keeping it and $100 forfeit. Before the commencement of the action appellant and one of his attorneys had several times mentioned the transaction to Stewart,' and claimed that he was liable on the instrument of waiting in question, but the latter always asserted that he had only signed it as a witness to Bell’s signature, and that he was not liable thereon for any sum.
A short while before commencement of the action appellant’s attorney informed appellee, who still insisted that he had signed the writing in question only as witness, that appellant wanted to sue on the writing and join appellee and Bell both in the suit as defendants, so as to give the circuit court of Crawford County jurisdiction of the person of Bell upon service of summons in Miller County .where he resided; and said attorney proposed to appellee that if he (appellee) would offer no defense to said •action,-and judgment should go against hint, appellant would not enforce the judgment against him. Appellee accepted this offer, the action was commenced and summons was served on Bell in Miller County, and on appellee in Crawford County. Bell employed an attorney, who filed an answer for appellee denying any liability upon the writing in question, and alleging that he signed same only as a witness to Bell’s signature. He also filed for Bell a plea questioning the jurisdiction of the court on the ground that he had been summoned in another , county. On a trial of the same before the circuit judge, sitting as a jury, he found that Bell and Stewart were both liable on the written guaranty, and rendered judgment against both for said sum of $500, the price of the jack, with interest, and the further sum of $100 for the expense of keeping the jack. The judgment expressly provided that execution should not be issued against Stewart until the plaintiff’s remedy against Bell should be exhausted. This judgment was not appealed from.
Appellant caused execution to be issued against Bell to the sheriff of Miller County, which was returned unsatisfied, and he then sought to enforce the judgment against Stewart by issuance of execution against him.
Appellee, Stewart, then instituted this suit in equity against appellant to restrain the latter from attempting to enforce said judgment. His complaint, after setting forth -the transaction concerning the sale of the jack and the rendition of the judgment and issuance of execution, proceeds as follows:
“Plaintiff now alleges that he did not sign said written guaranty as guarantor, but as witness, and that he was not, at the time said judgment was rendered, and is not now, legally or morally bound by said written guaranty. That he has never seen said writing since he signed the same as witness, but is informed and believes, and charges upon information and belief, that said writing is now in the hands of the said defendant, John F. Wood, or of his attorney of record in said suit. That the said Harry N. Bell, at the Jtime suit was brought upon said written guaranty as aforesaid, was a resident of Miller County, Arkansas, and this plaintiff then and now a resident of Crawford County, Arkansas. That before said suit was instituted the said attorney of record in said suit for the said John-F. Wood came to this plaintiff and told him he was going to sue on said written guaranty; that he was going to sue said Bell and this plaintiff; that, if this plaintiff would not defend said suit, he should never be called upon to pay any judgment that might be rendered against him in the suit; that he wanted to try the suit in Crawford County, and if he would make this agreement with him he would give him a written guaranty signed by himself and his cli'ent, the said John F. Wood, that he should never be called to pay anything upon any judgment that might be rendered against him in the case; that this plaintiff told him that his word was good to him, and that he would not defend the suit upon that agreement. •
“That afterwards he was sued jointly with the said Bell to the June, 1904, term of the Crawford Circuit Court; that he employed no attorney, and did not defend said suit; that he was summoned as. a witness for the said Bell, and testified in the case; that judgment was rendered against him as hereinbefore set out; that he took no steps to have said judgment set aside; did not ask for a new trial; that no bill of exceptions was filed; that he did not know what character of judgment was rendered against him, nor the amount of it; that he was absolutely quiescent in the whole matter, resting implicitly upon the agreement made by him with and at the solicitation of the attorney of record of the said John F. Wood in said case.”
The prayer of the complaint is that appellant be perpetually enjoined from attempting to enforce said judgment against appellee.
Appellant filed his answer, alleging that appellee signed the writing as guarantor and was equally bound with Bell; admitted that agreement had been made, as alleged in the complaint, between appellant’s attorney and appellee to the effect that appellee should make no defense, and that the judgment should not be enforced against him, but alleged that appellee had violated the agreement by. employing counsel, filing an answer and defending the action brought by appellant against him and Bell, and that the agreement was rescinded by mutual consent before the judgment was rendered. Appellant also alleged in his answer that the question of appellee’s liability as guarantor was expressly put-in issue and adjudicated in the action in the circuit court, and the judgment of that court in said action was pleaded in bar of appellee’s right to have it again adjudicated.
The depositions óf all the parties to the controversy were taken and read at the hearing of this cause — the depositions of appellant and appellee, appellant’s attorney who entered into the agreement with appellee concerning the judgment to" be obtained in the circuit court, Bell and the attorney who appeared for him in the circuit court and the circuit judge before whom the action was trited.
Under our view of the law applicable to this case, it would serve no useful purpose to discuss the evidence in detail, or to determine where the weight of it lies. It is sufficient to say that there is'no material conflict between the testimony of appellant’s attorney and appellee concerning the agreement they entered into, but'they disagree as to what occurred between them after an answer had been filed for appellee in the action. The attorney testified that when the answer was filed, and after appellee failed to have it withdrawn and appeared in court by attorney contesting the suit, he expressly repudiated the agreement, and so notified appellee. On the other hand, appellee testified that he neither employed an attorney nor authorized the filing of the 'answer, that he did not appear in the action except as witness summoned b'y Bell, and that appellant’s attorney did not notify him of any repudiation of the agreement. He testified that he had no information that he was expected to pay the judgment until long after its rendition and the adjournment of the circuit court. Upon this point the testimony is conflicting, and it is unnecessary for us to reconcile or settle the conflict. The difference lies either in the recollections of the two witnesses as to the substance of a conversation which occurred between them during the progress of the trial ¡in the circuit court, or in a misinterpretation on the part of one of them of the statements made by the other.
As already stated, it is unnecessary for us to attempt to reconcile this conflict, for, according to appellee’s own version, he is not entitled to the relief he seeks and which the chancellor granted.
This suit is no more nor less than an effort to require specific performance of appellant’s agreement not to enforce the judgment obtained in the circuit court. He sets forth an agreement entered into with appellant for the rendition of a judgment against himself in order that Bell might also be brought into the jurisdiction of the Crawford Circuit Court, and asks a court of equity to enforce appellant’s agreement with him not to attempt to collect the judgment. Should a-court of equity grant such relief?
The agreement' between these parties was one plainly in violation of the rights of Bell, and operated as a fraud upon the jurisdiction of the circuit court. The statute provides that in an action upon a transitory cause of action instituted against several ■defendants “the plaintiff shall not be entitled to judgment against any of them on the service of summons in any other co’unty than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, df any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them or judgment therein is rendered in their favor,. unless the defendant summoned in another county, having appeared in the action, failed to object before judgment to its proceeding against him.” Kirby’s Digest, § 6074.
In the action against Bell and Stewart in the circuit court Bell did appear and object to the proceeding against him, but the judgment against his co-defendant who resided .in the county barred him absolutely from objecting to the exercise of the court’s jurisdiction. He was bound to submit to that jurisdiction unless the action had been discontinued or dismissed as to Stewart or judgment rendered in his (Stewart’s) favor. It is true, an answer was filed, and the case was defended in the name of appellee; but he contends now that he neither employed the attorney who filed it nor authorized him to file it, and that he appeared at the trial only as witness for Bell. This contention is the basis of appellee’s claim for equitable relief against the judgment, and in order to get such relief he shows that he entered into an agreement to deprive Bell of his right to object to the jurisdiction of the court and to impose upon the court the exercise of a jurisdiction which did not rightfully belong to it. In other words, appellee, in order to get relief preventing the enforcement of this judgment against him, must plead and establish an agreement of his own which was a legal fraud upon his co-defendant and upon the court. He asks for the enforcement of an agreement which he shows was entered into for the sole purpose of wrongfully compelling Bell to submit himself to the jurisdiction of the Crawford Circuit Court, and of compelling the court to exercise that jurisdiction wrongfully. He now says he was not liable at all in the action, but that he agreed not to' appear, and consented to judgment for the purpose of wrongfully holding Bell within the jurisdiction of the court. The judgment was rendered by a court having jurisdiction of the subject-matter and of the person of appellee, and, in order to set it aside or prevent its enforcement, he sets up his own wrongful agreement.
It is a familiar principle that a court of equity will not lend its aid to enforce an illegal contract or one based upon an illegal or immoral consideration. 2 Pom. Eq. Jur. § 929 et seq.
The doctrine is most frequently applied in cases where a grantor seeks to regain property which he has conveyed to another for the fraudulent purpose of cheating his creditor. In such cases courts of equity refuse relief and leave the parties where they found them, but the application of the principle is not limited to that particular class of cases.
Whenever a plaintiff comes into a court of equity and must rely, as the foundation of his relief, upon a contract which is illegal, he proves himself out of court, for the court will not lend its aid to enforce such a contract. The bare statement of his grounds for relief bears on its face the death-wound to his cause of action.
It is not essential that the contract should concern an act criminal in its nature before the court will refuse to enforce it. If it is a contract for the doing of an illegal or immoral thing, or one contrary to statute or public policy, whether it be criminal or not, a court of equity will.not enforce the contract. Story’s Eq. Jur. § § 296, 296a; Pom. Eq. Jur. § § 929-939; Mendel v. Davies, 46 Ark. 420; Woodruff v. Berry, 40 Ark. 251; McMullen v. Hoffman, 174 U. S. 639; Atcheson v. Mallon, 43 N. Y. 147.
Mr. Justice Peckham, in delivering the opinion of the Supreme Court of the United States in McMullen v. Hoffman, supra, said: “The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights springing from such contract. In cases of this kind' the maxim is, Potior est conditio defendentis.”
Within this rule fall contracts interfering with judicial pro ceedings or wrongfully imposing • upon the jurisdiction of the courts.
“All agreements directly or indirectly preventing or controlling the due administration of justice are opposed to the universal and most elementary principles of public policy, whatever be their form and immediate purpose; and, however innocent may be the motives of the parties, they are invalid.” 2 Pom. Eq. Jur. § 935; 1 Story's Eq. Jur. § 295; Goble v. O’Connor, 43 Neb. 49; Camp v. Bruce, 96 Va. 521.
The effect of this agreement, however free the minds of the parties may have been from any actual intention to perpetrate a culpable wrong, was a fraud not only upon Bell but upon the court. If appellee was not in fact liable on the contract, and Bell only was liable, then Bell was deprived of his right to be sued in the county of his residence, or in the county where summons should be served on him. And it w.as as well a fraud on the jurisdiction of the court for these parties, in order to apparently give the court jurisdiction, to make an agreement permitting the court to render a judgment against appellee which was fictitious and unen forcible, and was to be considered no judgment at all.
But it is only where both parties to such a contract are in pari delicto that courts will refuse to enforce it. Where the party-suing is guilty but not equally in wrong, a court should not refuse relief. “Such an inequality of condition,” says Mr. Pomeroy, “exists so that relief may be given to the more innocent party, in two distinct classes of cases: 1. It exists where the contract is intrinsically illegal, and is of such a nature that the undertakings or stipulations of each, if considered by themselves alone, would show the parties equally in fault, but are collateral and incidental circumstances attending the transaction, and affecting the relation of the two parties, which makes one of them comparatively fjee from fault. Such circumstances- are imposition, oppression, duress, threats, undue influence, taking advantage of necessities or of weakness and the like, as a means of inducing the party to enter into the agreement or of procuring him to execute and perform it after it had been voluntarily entered into. 2. The condition also exists where, in the absence of any incidental and collateral circumstances, the contract is illegal, but is intrinsically unequal; is of such a nature that one party is necessarily innocent as compared with the other; the stipulations, undertakings and position of one are essentially less illegal and blameworthy than those of the others.” Pom. Eq. Jur. § 942; Story’s Eq. Jur. § 291.
The first of the foregoing .classifications of those who are participants in the wrong contemplated by a contract, but who do not stand equal in the wrong, is recognized by this court in the case of Hutchinson v. Park, 72 Ark. 509, where fit was shown that one party of superior intelligence, who stood in a relation of confidence with another, took advantage of his position to induce the other to execute to him a conveyance in fraud of the rights of creditors. The court held that thé parties were not in pari delicto. In the case at bar there is not, however, any of 'the elements falling within the- classifications laid down by Pomeroy or within the distinction made by this court in Hutchinson v. Park, supra. There was no confidential relation existing between appellant or his attorney and appellee, nor was there any sort of advantage taken in making the agreement. It is true, appellant’s attorney had a superior knowledge of the law, but his proposition to appellee carried with it full information that the thing sought to be accomplished by the agreement was contrary to law. He said, in effect, to appellee: “The only way I can legally get Bell into the court of this county'is to sue you jointly with him and recover judgment against you. If yon will agree to make no defense and permit me to take judgment against you, I will not enforce the judgment.” Doubtless, both parties were innocent of any actual intention to commit a legal or moral wrong, but they both knew precisely what was to be accomplished, and knew the effect of their agreement upon the rights of Bell; and if either party was caught in the trap, the door of relief is closed equally against them both. Appellee, having agreed to a judgment against himself, can not be heard, either in a court of law or equit}'-, to ask that it be set aside.
It does not appear from the pleadings and evidence, however, that appellee agreed to a judgment against himself for the full amount for which the judgment -was rendered. If appellant, while the alleged agreement .was in force, procured judgment against appellee for more than the latter had agreed to, or for more than it was agreed that appellant should ask for, then the judgment should be, to. that extent, set aside. ■ It .is plain to us that, on-the face of the contract set forth in the pleadings, if the appellee signed it as a party and not as a witness, he was not liable for more than $100 forfeit and the expenses of keeping the jack. He was not liable for the return of the price of the jack, as his name is not subscribed to that part of the contract.'
When appellee entered into the agreement to make no defense to the action, the only point of difference between him and appellant, so far as the evidence in the record discloses, was as to whether appellee signed the written guaranty as a party or as a witness. No dispute is shown to have existed as to the amount of his liability — the amount was confined to the terms of the written instrument, which it was claimed he had signed as a party, and which shows on its face that he is liable, if at all, only for $100 and the expenses of keeping the jack. In the absence of any evidence that appellee agreed to a judgment for the full amount named in Bell’s contract, as well as the part thereof to which his signature is appended, it should be presumed that he agreed to a judgment only for the amount for which, according to the terms of the writing, he would be liable if he signed it as a party and not as a witness. Inasmuch as the question will perhaps be passed upon in a court of law, we will not undertake to decide what the agreement was between the parties as to the amount of the judgment, deeming It sufficient to state the law to be that if the court shall find on another hearing that the agreement as to the judgment remained in force between the parties up to the time of its rendition, and was not rescinded, appellant should only have taken judgment for such amount as they had agreed upon, and that appellee would be entitled to have any part of the judgment in excess of the agreed amount set aside.
Appellee’s remedy to ’ vacate or modify t'he judgment for fraud or mistake in its procurement is complete at law by proceeding instituted for that purpose in the court in which it was rendered. Kirby’s Digest, § § 3224, 4431; Shaul v. Duprey, 48 Ark. 331; Gorman v. Bonner, 80 Ark. 339.
■ The failure of appellee to proceed in the proper court is no ground for dismissal of his complaint, but the same should be transferred to the proper court. Kirby’s Digest, § 5991; Daniel v. Garner, 71 Ark. 484.
The decree is reversed, and the cause remanded with leave to the plaintiff to amend 'his complaint, if so advised, and with directions to transfer the cause to the circuit court of Crawford County for further proceedings consistent with this opinion. | [
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McCueeoch, J.
On April 6, 1903, Frank F. Savage purchased .at a sale under decree of the chancery court an irregularly shaped tract of land, containing 18 acres, in Pulaski County near the city of Tittle Rock, the purchase price being $13,500, which was paid in cash. About the time the purchase was made Savage and Charles T. Abeles, acting for appellee company, entered into negotiations for purchase of a portion of said tract by said company, and on April 15, 1903, Savage conveyed to said company the north part of the tract, describing it by metes and bounds, for the sum of $5,250 cash paid. Soon afterwards he sold and conveyed the remainder of the tract to appellant, Marquette Timber Company, a corporation in which he was a stockholder. The part conveyed to appellee was not quite half of the tract purchased by Savage at the judicial sale. If the description in appellee’s deed had placed the south line of the tract conveyed 15 feet further south, the deed would have embraced one-half of the whole tract purchased by Savage — the north half.
Appellee instituted this suit in equity for reformation of the deed,- alleging that Savage sold and agreed to convey to appellee one half of the land he had purchased, but that, on account of mistake in measurement, the deed failed to properly describe the tract intended to be conveyed. The suit was originally •brought against Savage and the Marquette Timber Company and a mortgagee of the latter. Savage died after the suit was brought, and before any testimony was taken.
The defendant answered, denying that any mistake was made in describing the land intended to be conveyed, and alleging that appellant, Marquette Timber Company, had purchased the remainder of the tract and paid for same without any knowledge or information concerning any claim of appellee thereto.
The controversy is over the strip 13 feet wide running through the center of the original tract. Appellee says it was intended to be embraced in its deed, and that the deed should be reformed so as to include it.
The evidence concerning the transactions between the parties is furnished principally by Charles T. Abeles, the president of appellee company, and S. M. Savage, one of the officers of appellant company. The latter was a brother of Frank F. Savage, and claims to have been present when the transactions between his brother and Abeles occurred. These witnesses agree upon the point that Abeles wanted half of the tract, but they differ as to the agreement. Abeles says that Frank F. Savage agreed to sell to him for his' company the north half of the tract, and to convey it to him as soon as they could measure it and ascertain the correct description. Savage denies this. He says that it had ben previously understood that the Marquette Timber Company should have the whole tract for a mill plant, and that his brother Frank would not agree for Abeles to have the north half of it until they could have 'it measured and the boundary line ascertained, so as to determine whether the sale of that much of it would interfere with the plans of the timber company.
They agreed upon a surveyor to run the lines dividing the north half from the south half, and to furnish a description of the north half. The surveyor did the work, but made a mistake in fixing the dividing line between the two halves — placing the line 15 feet too far north. He marked off the line, but told both parties at the time (Savage and Abeles) that he was doubtful whether or not it was correct. Notwithstanding this admonition, the conveyance from Savage to appellee company was made according to that description, and Abeles accepted it and paid the price. The witnesses again disagree -radically as to what then transpired between them. Abeles says that Savage agreed, when he executed the deed, to correct any mistake in the description that might be subsequently ascertained. S. M. Savage says that nothing of the kind occurred; that the deed correctly described all the land intended to be conveyed; that no more was agreed to be conveyed than the part described 'in the 'deed; and that the delivery of the deed and .payment of the price finally closed the transactions between them. He testifies further that his brother did not definitely agree to let Abeles have the land until the surveyor ran the line and established the boundary, and that then, after it was seen that the part to be conveyed to Abeles would not interfere with the plant of the Marquette Timber Company, and would leave the quantity of land desired by that company for its mill plant, he agreed to make the conveyance. About a week later the surveyor discovered his mistake in the measurement and reported it to Mr. Abeles, and the latter subsequently reported it to Savage and' demanded a correction of the description in the deed.
This is substantially all the testimony, and upon it the chancellor decreed a reformation of the deed.
The testimony of the surveyor, whose description was taken, sheds little light upon the point in controversy, as he only testified to the effect that he was instructed to divide the tract equally, the north -half from the south half, and establish the line, and that he made the mistake of 15 feet in fixing the division line. Neither party disputes the truth of his testimony. Appellee’s right of reformation depends entirely upon the unsupported testimony of Mr. Abeles, its president; and upon every material point his testimony was contradicted by that of Mr. Savage, who is equally interested on the side of appellants. Upon this state of the proof ought a court of equity to reform a deed of conveyance executed, delivered and accepted by the respective parties thereto? If so, the written engagements of contracting parties would have little sanctity. The most that can be urged in favor of appellee’s side of the controversy is that the testimony, at the crucial points, is evenly balanced. Nor can that much be claimed for it when it is noted in connection with the conflict between the testimony of Abeles and Savage, that the former accepted a conveyance containing a description which, according to his claim, was then, of doubtful correctness, paid the purchase price and filed the instrument for record without waiting to ascertain definitely whether the description was correct or not.
The fact that the deed was immediately executed, delivered and recorded as soon as the surveyor established the line, after telling them it was doubtful whether the description was correct, strongly 'corroborates the claim of Savage that the deed correctly described all the land intended to be conveyed, and that the parties agreed upon the land described as that to be conveyed, whether it turned out to be half of the original tract or not.
This court has often held that even a mere preponderance of parol evidence is not sufficient to overturn the terms of a written instrument and warrant its reformation, and that, in order to accomplish that, the evidence “must be clear, unequivocal and decisive.” McGuigan v. Gaines, 71 Ark. 614; Goerke v. Rodgers, 75 Ark. 72. The case of Goerke v. Rodgers was similar to this. There the testimony was evenly balanced, two witnesses of equal credit testifying on each side, and the chancellor decreed a reformation, but this court held that the evidence was insufficient to overturn the written instrument, and reversed the case. The application of that principle is fatal to appellee’s right to reformation. It has not established the right, even by preponderance of the evidence; much less by evidence “clear, unequivocal and decisive.”
We think the learned chancellor was wrong in the conclusion he reached, and his decree must be reversed.
Appellee questions the validity of the conveyance from Savage to appellant company on the alleged ground that the corporation had not then been organized; ibut appellee,.being denied the right to a reformation as against its grantor Savage, is in no position to question his subsequent conveyance to appellant.
The decree is therefore reversed, and the cause remanded with directions to dismiss the complaint for want of equity. | [
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Per Curiam.
On April 6, 2001, attorney Gene E. McKissic moved this court to be relieved as of record. On April 24, 2001, the appellant tendered a pro se motion to the clerk of this court in which he asserted that he had paid Mr. McKissic $1,500 to represent him at trial and on appeal. The appellant requested that Mr. McKissic refund the money or assist in the expenses of the appeal. Alternatively, he asked to be declared indigent. On May 10, 2001, we issued a per curiam opinion in which we remanded the matter to the circuit court for a determination as to whether Mr. McKissic had been retained by the appellant to represent him in the appeal as well as the trial and whether he was paid accordingly. We further directed the circuit court to file findings of fact and conclusions of law on this issue.
On July 24, 2001, a record of a hearing held before the circuit court on July 17, 2001, was filed with the Clerk of the Supreme Court. At that hearing, the circuit court found that Mr. McKissic had not been paid anything by the appellant for his representation. That finding resolves the issue that concerned this court.
We deny Mr. McKissic’s motion to be relieved as attorney of record. For purposes of his appeal, we declare the appellant to be indigent, and we appoint Mr. McKissic to represent him in this appeal. | [
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Annabelle Clinton Imber, Justice.
[1] Appellant, James Edens, appeals an adverse decision of the Arkansas Workers’ Compensation Commission. This case is before us on petition for review from the Arkansas Court of Appeals; therefore, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001); Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000).
Mr. Edens filed a claim with the Commission alleging that he sustained a compensable injury to his back on January 19 or 20, 1999, while he was in the employ of Superior Marble & Glass. Specifically, he alleged that he was entitled to temporary total disability benefits for the period beginning January 20, 1999, and ending July 12, 1999. Superior contested Mr. Edens’s claim in its entirety, arguing that he did not sustain an injury in the course and scope of his employment on January 19 or January 20, 1999, and, furthermore, that Mr. Edens could not establish by a preponderance of the evidence that he sustained a compensable injury on January 19 or January 20, 1999.
A hearing took place on November 5, 1999, before an administrative law judge. In an opinion filed on December 8, 1999, the law judge denied Mr. Edens’s workers’ compensation claim based upon the following findings:
1. The claimant does not meet his burden of proving by a preponderance of the credible evidence of record that he sustained an injury arising out of and during the course and scope of his employment on January 17, 18, 19, or 20, 1999.
2. The Claimant is not specific about which dates he may have injured himself, nor are there any objective findings in the medical evidence presented as required by Ark. Code Ann. § 11-9-102(16).
Mr. Edens appealed the law judge’s decision to the full Commission. In an opinion filed on April 20, 2000, the Commission affirmed and adopted the law judge’s decision. Mr. Edens then appealed the Commission’s decision to the Arkansas Court of Appeals. In an unpublished opinion, the court of appeals reversed and remanded the Commission’s denial of the claim “insofar as it was based on Edens’s failure to provide an exact date of injury,” and directed the Commission “to make specific findings regarding the compensability of Edens’s claim consistent with our interpretation of section 11-9-102(5)(A)(i).” Edens v. Superior Marble & Glass, CA00-689, slip op. (Ark. App. Feb. 2001). The court of appeals also concluded that the Commission arbitrarily disregarded a physical therapist’s notation regarding muscle spasms in its finding that there are no objective findings in the medical evidence, as required by Ark. Code Ann. § 11-9-102(5)(D) and (16) (Supp. 1997), now codified at Ark. Code Ann. § 11-9-102(4)(D) and (16) (Supp. 2001). Id.
Superior petitioned this court to review the decision of the court of appeals. In its petition, Superior argues that the court of appeals did not strictly construe the statutory requirement for a compensable specific-injury incident as defined in Ark. Code Ann. § 11-9-102(4)(A)(i). We conclude that the Commission expressly relied on an erroneous statutory interpretation and an erroneous factual finding in reaching its decision. Accordingly, we must reverse the Commission’s decision and remand for findings consistent with our interpretation of sections 11-9-102(4) (A) (i) and 4(D).
The evidence presented to the law judge consisted of the testimony of Mr. Edens, his wife, and the secretary and owner of Superior, Susan Johnson and Joe Hobbs, Mr. Edens’s medical records, and the deposition testimony of orthopaedist, Dr. Michael Young. The parties stipulated that an employee/employer relationship existed and that, if the injury was deemed compensable, Mr. Edens would be entided to a compensation rate of $271 per week.
On direct examination, Mr. Edens testified that he had been working for Superior for eleven years, with eight years as shop foreman. Mr. Edens stated that on January 19, 1999, he injured his back when he and his wife, also a Superior employee, lifted a mixing pot. The pot filled with marble resin used to make marble vanity tops and showers weighed about 125 pounds. Initially, Mr. Edens testified that he first sought medical care for the injury on January 20 or 21, 1999. When his attorney pointed out that his medical records reflected a visit to Dr. Kyle Roper on the 19th, Mr. Edens suggested January 18th as a possible date of injury. Mr. Edens explained that Dr. Roper prescribed physical therapy and referred him to an orthopaedist, Dr. Michael Young, as well as the Hot Springs Mercy Pain Clinic.
On cross-examination, Mr. Edens said he did not .know the specific date of his injury, but that it occurred on January 18, 19, or 20, 1999. On redirect, he testified that during his eleven years of “slinging marble,” he had experienced pulled muscles but this pain was different because it hurt more and was still hurting. He also stated that his injury could have occurred on January 17, 1999.
Mr. Edens’s wife, testified she remembered that somewhere around January 17, 18, or 19, her husband told her he hurt his back lifting the pot of marble resin. Susan Johnson, the secretary for Superior, explained that the claim report filed by Mr. Edens on February 22, 1999, indicated the accident occurred on January 20, 1999. Ms. Johnson also testified that she had never known Mr. Edens to be dishonest with her, and she had no reason to believe he would falsify a workers’ compensation claim. Joe Hobbs, the owner of Superior, said that he had been told about Mr. Edens’s back injury, but did not recall being told that Mr. Edens sustained the injury while lifting marble. Mr. Hobbs also testified that over the years Mr. Edens has mentioned a sore back or pulled muscles, but there was no reason to believe that Mr. Edens would falsify his workers’ compensation claim.
Also introduced into evidence were the following medical records: notes of Dr. Kyle Roper, an MRI report, the deposition and office notes of orthopaedist Dr. Michael Young, physical therapy records, including a report by physical therapist Martin Milner, and notes from the Hot Springs Mercy Pain Clinic.
I. Statutory Interpretation
The first issue in this appeal is whether Mr. Edens was required to identify the exact date of the occurrence of the injury. The requirements for a compensable injury are defined in Ark. Code Ann. § 11-9-102(4) (A) (i) as follows:
(4)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence. . . .
Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001). (Emphasis added.) The Commission argues that a strict construction of this statute requires Mr. Edens to identify a specific date the injury occurred. Mr. Edens responds that by requiring a claimant to pinpoint a specific date, the Commission replaces the word “identifiable” with the word “identified” in the statute.
[2-4] We construe this statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Lawhon Farm Seros, v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). The doctrine of strict construction directs us to use the plain meaning of the language used. Lawhon Farm Seros, o. Brown, supra. The interpretation of section 11-9-102(4)(A)(i), as it applies in the instant case, turns on the ordinary and usually accepted meaning of the word “identifiable.” Webster’s Dictionary defines the word “identifiable” as “subject to identification: capable of being identified.” Webster’s Third New International Dictionary 1123 (1993). A strict construction of the statute does not require, as a prerequisite to compensabifity, that the claimant identify the precise time and numerical date upon which an accidental injury occurred. Instead, the statute only requires that the claimant prove that the occurrence of the injury is capable of being identified. The inability of the claimant to specify the date might be considered by the Commission in weighing the credibility the evidence, but the statute does not require that the exact date be identified. Therefore, we reverse the Commission’s decision to the extent that it was based on Mr. Edens’s inability to provide an exact date of the injury, and remand for the Commission to consider the compensabifity of Mr. Edens’s claim in a manner consistent with our interpretation of section 11-9-102(4)(A)(i).
II. Objective Findings
Section 11-9-102(4)(D) requires that “[a] compensable injury must be established by medical evidence supported by ‘objective findings’ as defined in subdivision (16) of this section.” Section 11-9-102(16) defines objective findings as “those findings which cannot come under the voluntary control of the patient.”
In one of its findings, the Commission states: “[N]or are there any objective findings in the medical evidence presented as required by Ark. Code Ann. § 11-9-102(16).” (Emphasis added.) This finding by the Commission ignores the April 5, 1999 notation in the medical record by physical therapist Milner that Mr. Edens exhibited “tight musculature and spasm activity in the lower back.” We have held that muscle spasms reported by a physician or physical therapist constitute objective findings under section 11-9-102(16). Continental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999). The Commission may not arbitrarily disregard the testimony of any witness nor may the Commission arbitrarily disregard other evidence submitted in support of a claim. Freeman v. Con-Agra Frozen Foods, supra. Because the Commission has arbitrarily disregarded the physical therapist’s notation referencing muscle spasms, we must reverse on this point as well.
The dissent incorrectly states that the Commission found that Mr. Edens failed to bear his burden of proof in establishing that he suffered “a compensable injury at any time in January, 1999.” The Commission actually adopted the administrative law judge’s finding that Mr. Edens did not prove that “he sustained an injury ... on January 17, 18, 19, or 20, 1999.” This finding could be interpreted to mean that Mr. Edens failed to prove that his injury occurred on a specific date in January, or it could be interpreted to mean, as the dissent concludes, that Mr. Edens did not sustain a compensable injury at all. Considering the fact that the dissent agrees that the Commission relied upon an erroneous statutory interpretation and an erroneous factual finding in reaching its decision, the ambiguity in the Commission’s finding is best resolved by the Commission itself upon remand, not by this court on appeal.
The dissent’s conclusion that there is a substantial basis for the Commission’s denial of relief is speculation. While the Commission is free to accept or reject medical evidence and assign weight to evidence as it deems appropriate, it is not free to arbitrarily ignore objective medical findings nor is it free to reach a conclusion based on an erroneous statutory interpretation. The fact that the dissent has reached a conclusion that may be similar to the one originally reached by the Commission does not necessarily mean that the Commission would have issued the same findings had it applied a correct interpretation of the statute and had it considered all of the objective medical findings. Because we refuse to speculate on how the Commission would have ruled under a correct statutory interpretation and considering all objective findings, the only appropriate remedy is to remand.
We reverse and remand for findings consistent with our interpretation of sections 11-9-102(4)(A)(i) and 4(D).
CORBIN, J., concurring in part; dissenting in part.
Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997) is now codified at Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2001).
Other jurisdictions have also noted the difference between “identifiable” and “identified.” For example, the Superior Court of New Jersey, Appellate Division, faced this issue in relation to disability benefits under the Public Employees’ Retirement System and concluded that “identifiable” does not mean “identified.” The requirement that “a traumatic event in order to qualify must be ‘identifiable as to the time and place in which it occurred’ ... is meant only to distinguish a single, discrete event from an ongoing process. . . .” Ambrusio v. Board of Trustees, 489 A.2d 1223, 1224 (N.J. Super. 1985). | [
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Paul E. Danielson, Justice.
Petitioner Dennis Thompson petitions this court for a writ of mandamus or a writ of prohibition directed to respondent Judge David Guthrie. In it, Thompson asks this court to compel the circuit court to “either record chambers conferences and bench conferences or not hold any unrecorded chambers conferences or bench conferences” without his written waiver. We deny the petitions without prejudice.
On September 18, 2007, Thompson filed a motion for summary disposition on issue of temporary relief and motion in limine. Within the motion, Thompson requested “that all in chambers conferences be on the record.” Attached to the motion and incorporated by reference was a letter of the same date, in which Thompson stated “if the Court decides to have an in chambers conference, I request that, in accordance with Ark. Sup. Ct. Admin. Order No. 4, that it be fully and completely made part of the record, with the court reporter present.” A hearing was held that day, and, three days later, Judge Guthrie entered an order in the matter, finding that Thompson’s motions were “untimely, unnecessary and now moot.” In addition, the circuit court made the following finding:
7. Plaintiffs request that in-chambers conferences be on the record is denied. The Court has a long established administrative practice of conferring in chambers, when necessary, informally and jointly with counsel prior to court proceedings. The suggested procedure would unduly burden the court reporter, delay the proceedings, and impugn the integrity of opposing counsel and the Court. Existing procedures are sufficient to protect and develop the record should such conferences generate a need to do so.
As a result of the circuit court’s order, Thompson filed the instant petition with this court. The State, on behalf of Judge Guthrie, responded, and Thompson subsequently replied, moving to strike Judge Guthrie’s response. We ordered the petition to be submitted as a case and passed on Thompson’s motion to strike until the case was submitted.
Briefing was commenced and during that time, Judge Guthrie moved to supplement the record with an amended order he entered on December 13, 2007, and we granted the motion. In the circuit court’s order, Judge Guthrie observed that Thompson’s petition to this court caused the court to recognize the need to amend its order. The circuit court did so and found, in pertinent part:
2. This Court will comply with all orders of the Supreme Court, including Administrative Order No. 4. Certainty of compliance can be assured simply because there will be no conference with Mr. Plouffe [Thompson’s counsel] in chambers. In the case of Ray v. Ray, Union County Circuit Court No. CV-2005-61-6, and Court of Appeals No. CA06-1424, decided December 5, 2007, counsel initiated a conference in chambers without notice on a non-court day when the court reporter was in Texas. Mr. Plouffe subsequently misrepresented the substance and circumstances of that conference in appellate pleadings, alleging in part “... the trial court’s failure to record the chambers conference...” (Statement of Case 5, Appellant’s Brief). The Court has not had since, and will not have in the future, a conference in chambers with Mr. Plouffe. Furthermore, Mr. Plouffe has not ever requested and been denied a recorded conference in chambers and the issue was not discussed at the September 18 hearing. Plaintiffs request is theoretical and his efforts to compel are merely an academic exercise.
3. The Court hereby amends its order of September 21,2007, by not ruling on counsel’s request to record conferences in chambers as such a ruling without facts in controversy would amount to an advisory opinion.
As an initial matter, we hold that Thompson’s motion to strike the response is moot, as briefs were timely filed by both parties. We turn, then, to the instant petition.
At issue is whether the circuit court’s actions require a writ of mandamus or prohibition from this court. Thompson asks this court to either order Judge Guthrie to record all chambers and bench conferences by way of a writ of mandamus or to prohibit Judge Guthrie, by way of a writ of prohibition, from holding any bench or chambers conferences unless they are recorded. He contends that he has no other adequate remedy and that, pursuant to Administrative Order No. 4 of the Arkansas Supreme Court, Judge Guthrie has a mandatory duty to record all conferences. Judge Guthrie responds that because he amended the original order that served as the basis for Thompson’s request for extraordinary relief, and because the amended order makes no ruling on the recording of chambers conferences, Thompson’s petitions are moot. In the alternative, Judge Guthrie states that neither requested writ is warranted as a matter of law.
The problem in the instant case is that Thompson has failed to point to any specific proceeding held by the circuit court of which the circuit court denied recording. Administrative Order No. 4 of the Arkansas Supreme Court provides:
Unless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.
Ark. Sup. Ct. Admin. Order No. 4 (2007). We have held that we will strictly construe and apply Admin. Order No. 4. See Williams v. State, 362 Ark. 416, 208 S.W.3d 761 (2005). For that reason, the Order is mandatory and is not discretionary; indeed, we have remanded matters in which a contested issue was not recorded, directed that certain motions must be recorded, and reminded the bench and bar of the requirement of Admin. Order No. 4. See, e.g., Dickinson v. State, 367 Ark. 102, 238 S.W.3d 125 (2006) (underscoring the provisions of Admin. Order No. 4); Williams v. State, supra (holding that it was the circuit court’s duty to require that a verbatim record be made of defense counsel’s particular challenge to a videotape and of the circuit court’s review of it); George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004) (remanding for a hearing recorded verbatim on defendant’s pretrial suppression motion); Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003) (requiring that all motions for directed verdict be conducted on the record at the times such motions are mandated); Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003) (emphasizing once more that Admin. Order No. 4 requires that a verbatim record of all proceedings pertaining to any contested matter be made); Allen v. Burton, 311 Ark. 253, 843 S.W.2d 821 (1992) (observing, where a verbatim record of appellant’s objection to a jury instruction was not made, that this court is put at a considerable disadvantage in reviewing points pertaining to unrecorded hearings, when a verbatim record is not before us).
In the instant matter, Thompson’s request of the circuit court was made regarding any future in-chambers conference to be held. For this reason, neither extraordinary writ requested will lie. First, a writ of mandamus is issued by this court only to compel an official or judge to take some action. See Weaver v. Simes, 365 Ark. 289, 229 S.W.3d 15 (2006). When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. See id. Mandamus is never granted in anticipation of an omission of a duty, but only after actual default. See Ex parte Cutting, 94 U.S. 14 (1876); see also 52 Am. Jur. 2d Mandamus § 60 (2008).
Here, Thompson has not shown a clear and certain right to the relief he seeks where there has been no actual default by the circuit court. While the circuit court did “deny” Thompson’s request in its original order, the record does not reveal that any in-chambers conference was held without being recorded. Thus, we cannot say that the circuit court’s denial was ever put into effect or that there was an actual default by the circuit court. Moreover, the circuit court entered an amended order in which it specifically stated that it was “not ruling on counsel’s request to record conferences in chambers.” Accordingly, no actual default has been made by the circuit court that would permit mandamus relief, and Thompson has made no showing of a clear and certain right to relief. We, therefore, deny the petition for writ of mandamus without prejudice.
In addition, we hold that a writ of prohibition is also inappropriate, as the writ will only lie when a circuit court is wholly without jurisdiction. See Smith v. Fox, 358 Ark. 388, 193 S.W.3d 238 (2004). Here, the circuit court clearly had jurisdiction to hear the matter before it.
In sum, no action has been taken by the circuit court, which could be resolved by the issuance of an extraordinary writ. Were we, at this juncture, to issue one of the writs requested, it would be premature, and we will not issue anticipatory writs. For these reasons, we deny the writs requested without prejudice.
Writs denied without prejudice.
Glaze, Brown, and Imber, JJ., dissent.
A writ of prohibition lies against the circuit court and not against an individual judge. See Arkansas Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). We will treat the prohibition petition as if it were filed against the Union County Circuit Court.
We note that Admin. Order No. 4, on which Thompson relies for his argument to this court, does not require a written waiver, but a waiver “on the record.” Admin. Order No. 4.
We note that neither Thompson’s requests by motion and letter to the circuit court, nor either of the circuit court’s orders, refers to bench conferences.
Because no action has been taken by the circuit court requiring the issuance of an extraordinary writ, we render no opinion as to whether in-chambers conferences fall within the requirement of Admin. Order No. 4. We do, however, wish to emphasize the need for a complete and accurate record and take this opportunity to again remind the bench and bar of the language in Admin. Order No. 4, which requires “a verbatim record be made of all proceedings pertaining to any contested matter before it!’ (Emphasis added.) | [
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Per Curiam.
Appellant Bernard Marks, by and through his attorney, has filed a motion for rule on clerk. His attorney,
Robert F. Morehead, states in the motion that the record was tendered late due to a mistake on his part.
Because Morehead admits there is no excusable reason for the delay and it is plain from the Motion for Rule on Clerk that delay was caused by attorney error, this motion is granted pursuant to McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Tom Glaze, Justice.
The court accepted certification of a single question of Arkansas law submitted by the United States District Court for the Eastern District of Arkansas under Ark. Sup. Ct. R. 6-8, asking this court to address the following question: after the federal court granted an insurer a declaratory judgment that the insurer owed the insured no duty to defend or pay any judgment that resulted from claims asserted in a lawsuit against the insured, may the insurer rely on its reservation of rights letter to recoup its attorney’s fees and costs it expended in defense of the lawsuit?
The relevant facts of this case are as follows. Norma Ferrell was a resident of the Crestpark Inn nursing home in Forrest City before she died at Baptist Memorial Hospital in 2004. The administrator of her estate filed suit against the company that owned Crestpark Inn — Evergreene Properties of North Carolina (Evergreene) ■ — ■ seeking damages based on six causes of action: (1) ordinary negligence; (2) wrongful death based on negligence; (3) negligence as defined by the Arkansas Medical Malpractice Act; (4) wrongful death based on the Arkansas Medical Malpractice Act; (5) violations of the Arkansas Long-Term Care Resident’s Rights Statute, Ark. Code Ann. § 20-10-1201 et seq.; and (6) civil liability for conduct constituting felony neglect of an endangered or impaired adult.
Evergreene was insured under two policies issued by Fireman’s Fund Insurance Company of Ohio; in turn the policies were assigned to Medical Liability Mutual Insurance Company (MLMIC). These policies were “occurrence” based policies that only provided coverage during the period from January 15, 2000 until January 15, 2001. Evergreene notified MLMIC of the lawsuit filed by Ferrell’s estate and MLMIC retained defense counsel. However, MLMIC sent a letter to Evergreene on March 2, 2006, outlining its position that it believed that coverage was lacking for various reasons and that it was providing “a defense, under protest, for all claims within the policy limits of the policies.” MLMIC’s letter further stated that if it was determined that MLMIC had no duty to defend or indemnify Evergreene in the lawsuit, it reserved the right to “recoup and seek reimbursement for any and all costs and expenses” incurred in providing a defense to Evergreene.
MLMIC filed an action in federal court on March 8, 2006, seeking a declaratory judgment that it owed Evergreene no duty to defend or indemnify it under the policies. The federal court granted MLMIC’s motion for summary judgment, holding that there was no possibility that Ferrell’s lawsuit could result in recovery of damages under MLMIC’s policies based on the applicable limitations periods of the policies. The federal court then granted MLMIC a declaratory judgment stating that it owed no duty to defend or indemnity Evergreene or the management services company at Crestpark Inn. However, the federal court declined to answer one issue — whether MLMIC should be permitted to seek recoupment of the defense costs it had expended on behalf of Evergreene for Ferrell’s lawsuit.
It appears that the majority of courts that have addressed this question have applied the following general approach to a reservation of rights such as the one at issue here: in the absence of an express agreement in an insurance contract, an insurer who defends a claim for which coverage did not exist is entitled to reimbursement costs for both the settlement amount and litigation expenses if the insurer: (1) timely and explicitly reserved its right to recoup the costs; and (2) provided specific and adequate notice of the possibility of reimbursement. See, e.g., United Nat’l Ins. Co. v. SST Fitness Corp., 309 F.3d 914 (6th Cir. 2002); Cincinnati Ins. Co. v. Grand Pointe, LLC, 501 F. Supp.2d 1145 (D. Tenn. 2007); Buss v. Superior Court, 16 Cal.4th 35, 65 Cal. Rptr.2d 366, 939 P.2d 766 (1997). It also appears that courts that have followed this approach have employed the legal fictions of implied contract and quasi-contract and the equitable theory of unjust enrichment to allow recovery of attorney’s fees. MLMIC similarly urges this court to allow it to recoup attorney’s fees under a quasi-contract theory, but this has never been allowed in Arkansas.
Other courts, applying what appears to be the minority approach, hold that unless there is an express agreement in the policy language authorizing reimbursement, a unilateral reservation of rights letter cannot create rights not contained within the insurance policy — namely reimbursement of costs and expenses prior to a declaratory judgment that determines there is no duty to defend or indemnify. See, e.g., Westchester Fire Ins. Co. v. Wallerich, 527 F. Supp.2d 896 (2007); Shoshone First Bank v. Pac. Employers Ins. Co., 2 P.3d 510 (Wyo. 2000); Tex. Ass’n of Counties County Government Risk Mgmt. Pool v. Matagorda County, 52 S.W.3d 128 (2000). The question of which of these two approaches this court will adopt is irrelevant, however, because we have stated on numerous occasions that attorneys’ fees are not allowed in Arkansas except where expressly provided for by statute. See, e.g., Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). Arkansas has followed this common law rule or “American rule” since before the Civil War. See Temple v. Lawson, 19 Ark. 148 (1857).
There appear to be only two possible Arkansas statutes that could remotely entitle MLMIC to recoup attorneys fees under the scenario presented: Ark. Code Ann. § 23-79-209 (Repl. 2004) or Ark. Code Ann. § 16-22-308 (Repl. 1999). Section 23-79-209, entitled “Allowance of attorney fees in suits to terminate, modify, or reinstate policy,” provides in pertinent part:
(a) In all suits in which the judgment or decree of a court is against a life, property, health and accident, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be.
In Newcourt Financial, Inc. v. Canal Ins. Co., 341 Ark. 181, 186, 15 S.W.3d 328, 331 (2000), the court noted that:
[f]rom its plain language section 23-79-209 applies to actions where judgment is ultimately rendered against certain insurance companies in suits initiated by the companies. It specifically includes a declaratory-judgment action. It also applies to suits filed by holders [insureds] of policies seeking to reinstate a canceled policy.
However, there is no provision for the award of attorneys fees to the insurer under this section. The General Assembly made specific allowance only for the holder (the insured) of the policy.
Our decisions in Village Market, Inc. v. State Farm General Insurance Co., 333 Ark 552, 970 S.W.2d 243 (1998) (Village Market I) and Village Market, Inc. v. State Farm General Insurance Co., 334 Ark 227, 975 S.W.2d 86 (1998) (Village Market II) (per curiam) are instructive here. In Village Market I, the court held that where an insurance company is the prevailing party in a breach-of-contract action with an insured, it may be awarded an attorney’s fee under § 16-22-308. However, in Village Market II, we granted the insured’s petition for rehearing and held that there was no statutory authorization for an insurer to recover attorney’s fees as the prevailing party in an action where the insured sought recovery for a claim under his or her policy. The court admitted that it had not fully considered “the fundamental principle that attorney’s fees are not awarded unless expressly provided for by statute or rule” and reversed itself on this point, stating as follows:
In considering and applying the foregoing statutory principles, we first read the plain language of § 23-79-208, which provides for attorney’s fees in actions between policyholders and insurance companies. That statute allows attorney’s fees to insureds under prescribed circumstances, but omits any reference for such fee awards to insurers. Next, in reading § 16-22-308, that statute never mentions insurance policies and never expressly provides attorney’s fees for either insureds or insurers. Because attorney’s fees are awarded only when expressly allowed by statute or rule, the silence of such fee awards to insurers in§§ 16-22-308 and 23-19-208 can only be interpreted to mean that the General Assembly never intended that attorney’s fees be awarded to insurers when an insured has filed an action seeking recovery for a claim under his or her policy.
Id. at 229-30, 975 S.W.2d at 86-87 (internal citations omitted)(additional emphasis added). While Village Market II involved two insurance statutes that are not directly applicable here, it is significant that the court held that the General Assembly’s silence reflected an intent to disallow the award of attorney’s fees to insurers.
In the present case, § 23-79-209 only provides an attorney’s fee to the insured in a declaratory judgment action. The only other possible statutory provision that could possibly allow MLMIC to recoup attorney’s fees is under § 16-22-308, which states:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
Here, there is no breach of contract at issue or other applicable provision within the plain language of § 16-22-308 that would allow for an insurer to recoup attorney’s fees.
We have often stated that Arkansas public policy is best evidenced by its statutes. See, e.g., State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 342, 150 S.W.3d 276, 280 (2004). It is a fundamental principle of Arkansas law that attorney’s fees are awarded only when expressly allowed by statute or rule, and the General Assembly’s silence on the award of attorneys fees reflects our state’s public policy on the subject. As we have often pointed out, it is for the General Assembly, not the courts, to establish public policy. See, e.g., Carmody v. Raymond James Fin. Servs., Inc., 373 Ark. 79, 281 S.W.3d 721 (2008). Accordingly, we hold that without statutory or rule authority allowing for such, an insurer may not recoup attorney’s fees under a unilateral reservation of rights.
Certified question answered.
Hannah, C.J., and Brown, J., dissent.
Imber, J., not participating. | [
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DONALD L. CORBIN, Justice.
Appellee Nathan Ashwood
was charged with two counts of felony theft of property arising from his alleged improper acceptance of money designated as salary or bonus payments related to his service as a member of the West Helena City Council. As with the other six companion cases, see State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008); State v. Holden, 373 Ark. 5, 280 S.W.3d 23 (2008); State v. Joshaway, 373 Ark. 9, 280 S.W.3d 26 (2008); State v. Weaver, 373 Ark. 10, 280 S.W.3d 27 (2008); State v. Lee, 373 Ark. 12, 280 S.W.3d 28 (2008); State v. Whitfield, 373 Ark. 36, 280 S.W.3d 29 (2008), the State appeals from the circuit court’s dismissal of the charges.
On November 10, 2005, Nathan Ashwood, and four other members of the West Helena City Council, Clarence Richardson, Calvin Holden, Edward Joshaway, and Eddie Lee, upon learning that they were not going to be elected to serve on the newly consolidated Helena-West Helena City Council, voted to pay elected West Helena city officials a full salary for the year 2006, a year in which the city officials would no longer be in office. Checks were issued to and negotiated by the five councilmen named above as well as the City Clerk, Renee Whitfield, and Mayor Johnny Weaver. An additional check was later issued to each of the five councilmen. The. State charged Ashwood, Holden, Joshaway, Lee, and Richardson each with two counts of felony theft of property and Whitfield and Weaver each with one count of felony theft of property. The circuit court dismissed the charges against all seven defendants after ruling that the arrest warrants issued for the defendants were defective because they were signed by a deputy clerk without authority from a judicial officer. The State appealed from all seven dismissal orders.
The State’s sole argument on appeal is that the circuit court erred by dismissing the charges against Ashwood for an allegedly defective arrest warrant. We agree with the State for the reasons set out in this court’s opinion in State v. Richardson, 373 Ark. 1, 280 S.W.3d 20, handed down this same date. We reverse and remand this’ matter for further proceedings. | [
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Per Curiam.
Appellants, by and through their attorney, Robert L. Jones, III, have filed this petition for writ of certiorari to complete the record in this appeal. On September 2, 2004, Appellees filed a class-action complaint against Appellants in the Washington County Circuit Court. On June 13, 2007, the circuit court entered findings of fact and conclusions oflaw that Subclass A met the requirements of Ark. R. Civ. P. 23 and should be certified for class action and that Subclass C did not meet the requirements of Rule 23 and should not be certified. Following a motion to amend by Appellees, the circuit court entered an order amending the findings of fact and conclusions of law on September 5, 2007. The order certifying the class was also entered on this date.
On October 3, 2007, Appellants filed a notice of appeal from the class-certification order, the June 13, 2007 findings of fact and conclusion oflaw, and the September 5, 2007 amended findings of fact and conclusions oflaw. On October 12, 2007, Appellees filed a notice of cross-appeal of the circuit court’s decision to deny certification of Subclass C.
On December 21, 2007, the circuit court granted a motion for an extension of time for filing the record on appeal until March 31, 2008. On March 24, 2008, Appellants filed a partial record and a petition for writ of certiorari to complete the record, pursuant to Ark. Sup. Ct. R. 3-5 and Ark. R. App. P.-Civ 5(b)(3). Appellants’ attorney stated in the petition that the court reporter, Ms. Vickie Hassell, notified counsel that she could not complete the transcript within the statutory time allowed.
Pursuant to Ark. R. App. P.-Civ. 5(b)(2), the circuit court may grant an extension of the time for filing a record on appeal, provided that the order granting the extension is entered before expiration of the time period for filing the record on appeal pursuant to Ark. R. App. P.-Civ. 5(a). In no event shall the time be extended more than seven months from the date of the entry of the judgment or order, or from the date on which a timely postjudgment motion is deemed to have been disposed of under Rule 4(b)(1), whichever is later. Ark. R. App. P.-Civ. 5(b)(2).
This court has consistently stated that we do not view the granting of an extension as a mere formality, and to be valid, an extension order must strictly comply with the requirements of Rule 5(b). See Byrer v. Colvard, 372 Ark. 460, 277 S.W.3d 209 (2008) (per curiam); Harrison v. State, 369 Ark. 518, 256 S.W.3d 482 (2007) (per curiam). Rule 5(b)(1) provides:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
Upon remand for compliance with Rule 5(b)(1), the circuit court shall determine whether the rule was complied with at the time the original motion for extension of time was filed and granted. See Lancaster v. Carter, 372 Ark. 181, 271 S.W.3d 522 (2008) (per curiam). Moreover, the circuit court should not permit the parties the opportunity to correct any deficiencies, but instead should make the findings required by the rule as if they were being made at the time of the original motion. Id. Should the requirements not have been met at the time of the initial motion for extension and order, the circuit court’s order upon remand should so reflect and be returned to this court. Id.
In the present case, the circuit court entered the order extending the time to file the record on appeal within the time period prescribed by Rule 5(a). However, that order failed to comply with Ark. R. App. P.-Civ. 5(b)(1)(B) and (D). Therefore, we remand this matter to the circuit judge for strict compliance with Rule 5(b)(1).
Remanded; petition for writ of certiorari dismissed without prejudice. | [
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Paul E. Danielson, Justice.
This appeal stems from a proceeding for judicial dissolution of the law firm of JeweU, Moser, Fletcher & HoUeman, P.A. (JMFH). AppeUants Micheál Dewayne Sims, Bob Bomar, Geraldine Reshel, Kenneth Way, Nathan Hutson Way, and Humnoke Farms, Inc., filed claims in the dissolution proceedings as aUeged creditors ofappeUees JMFH, Keith Moser, Scott Fletcher, Barry JeweU, JMF Enterprises, Inc., and intervenors John T. HoUeman and HoUeman & Associates, P.A. AppeUants raise issues on appeal both coUectively and individuaUy. Several appeUants argue on appeal that the circuit court (1) deprived them of due process by summarily denying their claims as creditors without notice or a hearing; (2) exceeded its jurisdiction by denying their claims after they had been approved by the court-appointed receiver; (3) erred in failing to issue specific findings of fact and conclusions of law as requested by appeUants pursuant to Ark. R. Civ. P. 52(a); and (4) erred in denying appeUants’ motions to intervene because they were entitled to intervention as a matter of right pursuant to Ark. R. Civ. P. 24(a). AppeUants Sims and Reshel each present additional arguments on appeal regarding their individual claims. Cross-appeUant Scott Fletcher argues on appeal that the circuit court (1) erred in refusing to award him prejudgment interest on his counterclaim judgment against JeweU, and (2) should have treated him as a creditor of JMFH by virtue of the stock redemption agreement as opposed to a shareholder. Cross-appeUant Barry JeweU argues that the circuit court erred by denying his motion to stay the counterclaim against him after he notified the court that he intended to invoke his Fifth Amendment right against self-incrimination. We affirm in part and reverse and remand in part on direct appeal. We affirm on cross-appeal.
The record reveals the following facts. On June 19, 2003, JeweU, a shareholder in JMFH, filed an action in the Pulaski County Circuit Court seeking judicial dissolution and accounting to dissolve JMFH. Jewell alleged that the members of the firm stopped practicing law together on or about August 31, 2002, but continued to collect receivables owed to the firm. Fletcher, also a shareholder of JMFH at one time, responded by filing a counterclaim against Jewell, asserting causes of action for breach of contract, unjust enrichment, breach of fiduciary duty, defamation, intentional destruction of property, fraud, and negligence. Moser, a third shareholder of JMFH, responded by filing a motion to dismiss Jewell’s complaint pursuant to Ark. R. Civ. P. 12(b)(6). Jewell amended his complaint on September 5, 2003, requesting the circuit court to appoint a receiver and, in response to Fletcher’s counterclaim and Moser’s motion to dismiss, subsequently filed a motion for summary judgment asserting that Moser had lost his license to practice law and was no longer a shareholder in JMFH, that Fletcher was also no longer a shareholder, and, thus, neither party had standing to challenge the dissolution.
After a hearing, the circuit court granted summary judgment on September 22, 2004, as to the dissolution of JMFH. In a separate hearing, the court appointed Milas “Butch” Hale to serve as the receiver for JMFH pursuant to Ark. Code Ann. § 4-27-1432 (Repl. 2001). The fourth shareholder of JMFH, Holleman, also argued that he should be allowed to intervene because he held certain funds that JMFH had an equitable interest in and also held a creditor’s claim as an employee of JMFH for salaries and benefits owed to him. The circuit court delayed its ruling, but eventually granted Holleman’s motion to intervene on November 5, 2004. Holleman then filed his complaint in intervention. While several of the appellants also sought to intervene to assert claims against JMFH, the circuit court determined the appellants’ interests would be adequately protected and that it was not appropriate for creditors to intervene in a judicial-dissolution proceeding.
On May 27, 2005, the circuit court held a hearing at which the receiver advised the court that he had established a claims procedure as requested and that the time for filing claims would expire in June of 2005. The court stated that there would be a full day set for any claim contests that might arise so that testimony and evidence could be admitted. As the dissolution proceedings continued, the circuit court held another hearing on November 8, 2005, to begin adjudicating claims and taking testimony on what assets belonged to the firm, as opposed to individual shareholders.
At the November 8 hearing, the receiver presented the court with a list of claims filed to date and recommended that the claims be paid. The circuit court announced that as long as claims had been filed within the time period established by the receiver, it would allow creditors to amend or supplement their claims if needed. The court then proceeded to hear testimony and take evidence with regard to what assets belonged to JMFH and what assets belonged to certain individuals, including whether certain fees collected by Holleman after the dissolution proceeding began were fees that belonged to JMFH or to Holleman and Holleman & Associates. Additionally, the circuit court ordered Holleman to turn over trust records to the receiver regarding the fees in the case of Betty Hoyt.
At the conclusion of the hearing, the court instructed the parties, including the creditors, to submit simultaneous briefs within two weeks on the issues of what assets belong to JMFH and whether, under the receivership statutes, the shareholders had any standing to object to the receiver’s recommendation regarding what claims should be accepted. With regard to the creditors, the circuit court stated:
Well, let me just say this: What we’re going to do, since this is a little bit of an unusual proceeding, is I am going to make sure to the best of my abihty that each of your respective cbents feels like they had their day in court fully and completely and try my best to make an informed decision on that.
Following questions about possible objections to individual creditor’s claims, the circuit court further stated:
Well, we’re not done with the claimants yet because you all haven’t had a chance, either in the venues that you’re in or here, so all issues are on the table with respect to your individual claims. I haven’t made any decisions and didn’t take any testimony or evidence with respect to that, so that’s being passed.
The circuit court then entered an order on December 29, 2005, without further proceedings, in which it found that the effective date of the dissolution of JMFH was July 25, 2002. The order also instructed Jewell, Moser, Fletcher, and Holleman to each pay certain monies into the court registry that had been recovered on behalf of JMFH, and to file with the court an itemized accounting of all JMFH fees and costs since July 26, 2002. Monies in the registries of Faulkner County and White County were found to be assets of JMFH. The order further denied the request to prioritize claims.
In addition, the circuit court ruled that appellant Sims’s claims were only supported by the final judgment of the Lonoke County Circuit Court which was void ab initio with respect to JMFH because while normally circuit courts of the State of Arkansas are courts of concurrent jurisdiction, the Arkansas Legislature had specifically provided that a court conducting a judicial dissolution and appointing a receiver had exclusive jurisdiction over a corporation. Accordingly, the circuit court found that the Lonoke County Circuit Court was divested of jurisdiction over JMFH upon the filing of the complaint for judicial dissolution. Sims was given thirty days from the date of the order to file and tender to the appointed receiver any and all documents he believed supported his claim against JMFH. All other individual claimants were also given thirty days to file documentary evidence in support of their claims.
The circuit court also allowed Holleman several claims and, finally, declared Jewell, Fletcher, Moser, and Holleman to each be a twenty-five percent stockholder in JMFH. Pursuant to that finding, each stockholder was entitled to one-fourth of any of the firm’s remaining property.
Following the submission of several motions and amended claims, the circuit court entered an order allowing certain claims sought by Jewell, Fletcher, and Holleman, as well as a claim by creditor Betty Hoyt. All other appellants’ claims were summarily denied.
On February 14, 2006, the appellants collectively filed a motion for reconsideration or new trial, or, alternatively, for a stay of the circuit court’s order requiring payment of the other claims. They further requested the court to issue findings of fact and conclusions oflaw. The appellants raised two arguments in support of their motion: (1) the circuit court erred because it was up to the receiver, not the court, to determine whether claims against JMFH should have been allowed, and (2) the circuit court deprived claimants of their due-process rights because, at a minimum, they were entitled to a hearing to present testimony supporting their claims and to cross-examine any adverse witnesses. The circuit court never ruled on the motion and, therefore, it was subsequently deemed to be denied. Appellants all filed timely notices of appeal.
While the issues were previously presented to this court in Sims v. Fletcher, 368 Ark. 178, 243 S.W.3d 863 (2006), the appeal was dismissed because the order was not a final, appealable order due to Fletcher’s outstanding counterclaim. The circuit court then held a hearing on August 1, 2007, regarding Fletcher’s counterclaim against Jewell and subsequently entered an order finding the following: (1) Fletcher’s claim against Jewell for one-third of the attorney’s fees in the amount of seventy-five thousand dollars paid by Jewell, Moser, Fletcher & Holleman, P.A. to the Perroni Law Firm was dismissed with prejudice; (2) Fletcher’s claim against Jewell for one-third of the personal expenditures of Jewell on a Jewell, Moser, Fletcher & Holleman, P.A. business credit card was dismissed with prejudice; (3) Fletcher was awarded judgment against Jewell for office expenses incurred pursuant to an oral agreement between Fletcher and Jewell, in the principal amount of $49,095.15; and (4) Barry Jewell was instruced to file with the clerk of the court, within forty-five (45) days of the entry of the judgment, a schedule, verified by affidavit, of all of Jewell’s property, both real and personal, including monies, bank accounts, rights, credits, and choses in action held by Jewell or others for Jewell and specify the particular property which Jewell claimed as exempt under the provisions of the law. The court instructed that the failure to file said schedule within the time specified would result in Jewell being found in contempt of court.
Now that the circuit court has made its order final and appealable, we are once again presented with the merits of the appeal. We begin by addressing the issues on appeal common to all or several of the appellants and will conclude by addressing arguments raised by individual appellants and cross-appellants.
I. Common Issues on Appeal
A. Due Process
Appellants Sims, Bomar, the Ways, and Humnoke Farms argue that the circuit court violated their due-process rights by summarily denying their claims against JMFH without any type of notice or hearing. According to these appellants, due process requires at a minimum that they should have been given notice and a reasonable opportunity for a hearing before being deprived of their property interests. Appellees and Holleman argue that the creditors were given the opportunity to participate in the November 8 hearing and, because all but one of the creditors declined to do so, there was no violation of due process. Holleman additionally argues that the appellants never raised this “newly alleged constitutional deprivation” at the circuit court level and, therefore, are precluded from raising it now.
We first address Holleman’s argument that the due-process argument was not preserved for this court’s review. After appellants’ claims were summarily denied, they filed ajoint motion on February 14, 2006, for reconsideration or new trial, or, alternatively, for a stay of the circuit court’s order requiring payment of the other claims. In their motion, appellants did argue that the circuit court deprived them of their due-process rights. While the circuit court did not specifically rule on the motion, it was subsequently deemed denied. Therefore, this issue was presented to the circuit court and is preserved for our review.
Turning to the merits of this issue, this court has previously discussed the fundamental principles of due process with regard to property interests in Tsann Kuen Enterprises Co. v. Campbell, 355 Ark. 110, 129 S.W.3d 822 (2003), and stated:
Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he is deprived of property by state action. Owings v. Economic & Med. Servs., 302 Ark. 475, 790 S.W.2d 438 (1990). In that regard, the concept of due process requires neither an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. See South Central Dist., Pentecostal Church v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980). Instead, what process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id.
The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319 (1976). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer great loss.” See Goldberg v. Kelly, 397 U.S. 254 (1970). It depends upon whether the interest in avoiding that loss outweighs the governmental interest in summary adjudication. Id. Thus, determining what process is due involves the consideration of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the addi tional or substitute procedural requirements would entail. Mathews v. Eldridge, supra, at pp. 334-335, 96 S.Ct. 893; McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
Id. at 119-20, 129 S.W.3d at 828-29 (quoting Washington v. Thompson, 339 Ark. 417, 425-26, 6 S.W.3d 82, 87 (1999)). The opportunity to submit evidence to rebut charges or adverse claims and testimony is an essential requirement of a full and fair hearing to satisfy the Due Process Clause of the Constitution. See Arkansas Pub. Serv. Comm’n v. Continental Tel. Co. of Ark., 262 Ark. 821, 561 S.W.2d 645 (1978).
In examining the due-process factors, it is initially clear that appellants have a private interest in their personal property, here, their money. What is of specific interest here is the risk of an erroneous deprivation of the claimants’ interests because they were not given the opportunity to be heard regarding their individual claims. Additionally, there are not additional or substitute procedural safeguards in this kind of a case because it involves the dissolution of JMFH. Once JMFH is completely dissolved and its assets are distributed, the creditors will no longer have a method to recoup JMFH’s assets to pay their claims. Finally, there is no government interest present here that outweighed the importance of giving the individual claimants an opportunity to support their claims against JMFH before a final judgment was issued.
While the appellees and Holleman argue that several hearings were held and that the creditors were given the opportunity to be heard, specifically in the November 8 hearing, the record reveals otherwise. The circuit court specifically observed near the conclusion of the November 8 hearing that the claimants had not had a chance to be heard with respect to their individual claims. The court ruled that it was passing on announcing any decisions as to the individual claimants because it had not taken any testimony or evidence with respect to their claims at that time. The record further reveals that a hearing was never conducted with respect to the individual claims. The individual claimants were allowed to amend their claims if needed; however, after those amendments were made and some additional motions were filed, the court issued an order that simply allowed certain claims sought by Jewell, Fletcher, Holleman, and creditor Betty Hoyt, but summarily denied the appellants’ claims without further explanation or opportunity to be heard.
Because the record reveals that the appellants were given no opportunity to support their claims before they were summarily denied, we find that the circuit court failed to provide the appellants a hearing and that such failure deprived them of their due-process rights. Therefore, we reverse and remand on this point.
B. Receiver Authority
For their second point on appeal, appellants collectively argue that the circuit court erred in denying their claims after the receiver had initially accepted them. Appellees and Holleman aver that the circuit court never appointed the receiver for the purpose of making the final decision about claims, nor could it do so because, pursuant to Ark. Code Ann. § 4-27-1432(a), the court had exclusive jurisdiction overJMFH. Holleman again argues that the appellants never raised this argument below.
First, this issue was preserved for our review because, on February 14, 2006, after the circuit court denied their claims, the appellants filed a joint motion for reconsideration or new trial, or, alternatively, for a stay of the circuit court’s order requiring payment of the other claims. In their motion, appellants did argue that the circuit court erred because the receiver, not the court, had the authority to determine whether claims against JMFH should have been allowed. Therefore, the appellants’ argument is preserved.
The circuit court appointed the receiver in this case in its September 27, 2004 order, pursuant to Ark. Code Ann. § 4-27-1432. Section 4-27-1432 provides the following regarding the appointment of a receiver:
(a) A court in a judicial proceeding brought to dissolve a corporation may appoint one (1) or more receivers to wind up and liquidate, or one (1) or more custodians to manage, the business and affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.
(b) The court may appoint an individual or a domestic or foreign corporation (authorized to transact business in this state) as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.
(c) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time. Among other powers:
(1) the receiver (i) may dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; and (ii) may sue and defend in his own name as receiver of the corporation in all courts of this state;
(2) the custodian may exercise all of the powers of the corporation, through or in place of its board of directors or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its shareholders and creditors.
(d) The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interests of the corporation, its shareholders, and creditors.
(e) The court from time to time during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and his counsel from the assets of the corporation or proceeds from the sale of the assets.
Ark. Code Ann. § 4-27-1432 (Repl. 2001).
We must turn to the statute in order to determine what authority is awarded to an appointed receiver in a dissolution case. The basic rule of statutory interpretation is to give effect to the intent of the General Assembly. See Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007). The first rule in determining the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id. This court will construe a statute so that no word is left void, superfluous or insignificant, with meaning and effect given to every word in the statute if possible. See id. When the language of the statute is plain and unambiguous, conveying a clear and definite meaning, we need not resort to the rules of statutory construction. See id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. See id.
The statute clearly does not give jurisdiction of the claims to the receiver. Rather, the receiver acts only with the authorization of the court. Here, the circuit court, in accordance with the statute, did describe the powers and duties of the receiver in its appointing order and stated that the receiver’s duties would:
include, but not be limited to (i) notifying the claimants ofJMFH of this dissolution pursuant to Ark. Code Ann. 4-27-1406; (ii) publishing notice to unknown claimants ofJMFH of this dissolution pursuant to Ark. Code Ann. 4-27-1406; (iii) reviewing the receivables ofJMFH and taking such actions as he deems prudent to collect those receivables; and (iv) making provision for payment of the creditors ofJMFH from its assets.
While appellants argue that their claims had been “accepted” by the receiver, it is clear from the receiver’s November 8, 2005 letter to the circuit court, the receiver simply informed the court of what claims had been filed in the case, which appellant had an actual judgment, and his recommendation. Section 4-27-1432 clearly gives the circuit court the option to appoint a receiver to aid in the process of winding up the affairs of a corporation; however, the circuit court retains exclusive jurisdiction. See Ark. Code Ann. § 4-27-1432(a). Therefore, the circuit court did not err by making the final judgment on the claims over the receiver; it erred only by failing to give claimants the proper opportunity to support their claims before such a judgment was issued.
C. Findings of Fact & Conclusions of Law
Appellants Sims and Bomar additionally argue that the circuit court erred by not issuing findings of fact and conclusions of law after they requested it do so pursuant to Ark. R. Civ. P. 52(a). Holleman argues that the rules of civil procedure are inapplicable to this dissolution case because dissolution is a statutory procedure. Appellees collectively argue that, even if the rules of civil proce dure apply, the appellants’ request was untimely because they did not make the request prior to the entry of the judgment, and appellants were not “parties” to the proceeding.
While Holleman argues that the rules of civil procedure are inapplicable to this dissolution case because dissolution is a statutory procedure, that argument is an overly broad application of a civil procedure concept. Where a statute “creates a right, remedy or proceeding [that] specifically provides a different procedure . . . the procedure so specified shall apply.” Ark. R. Civ. P. 81(a) (2007) (emphasis added). While the process of dissolution is governed by statute, nothing prohibits the application of civil procedure rules that do not govern the actual process by which dissolution takes place.
Rule 52(a) of the Arkansas Rules of Civil Procedure states:
(a) Effect. If requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules.
Ark. R. Civ. P. 52(a) (2007). Appellees argue that a request pursuant to Rule 52(a) should have been presented to the circuit court prior to the entry of judgment. The appellants made their request pursuant to Rule 52(a) on February 14, 2006, after the circuit court’s order was issued on February 3, 2006. The circuit court did not respond. However, because we are remanding the case to give claimants the proper opportunity to support their claims, there is no need to reach this issue.
D. Intervention
Appellants Bomar, the Ways, and Humnoke Farms argue that the claimants met all the conditions set forth in Rule 24(a) of the Arkansas Rules of Civil Procedure and, therefore, were entitled to intervention as a matter of right. Appellees argue that the appellants were simply claimants in a judicial dissolution proceeding and did not have the right to intervene.
To intervene as a matter of right under Ark. R. Civ. P. 24(a)(2) (2007), an applicant must show three things: (1) that he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately represented by existing parties. See DeJulius v. Sumner, 373 Ark. 156, 282 S.W.3d 753 (2008); Medical Park Hosp. v. Bancorp South Bank of Hope, 357 Ark. 316, 166 S.W.3d 19 (2004); Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). We have not set forth a standard of review for the denial of a motion to intervene by right filed pursuant to Ark. R. Civ. P. 24(a)(2), when that denial is based on a failure by the appellant to meet the requirements of Rule 24(a)(2) rather than on untimeliness of the motion. See id. As we indicated in both DeJulius and Medical Park, we are hesitant to articulate a standard of review when the parties have not addressed the issue. See id.
Here, the claimants’ interests should have been protected by a proper claims process and the appointment of the receiver to handle that process. See Ark. Code Ann. § 4-27-1432 and § 4-27-1406 (Repl. 2001). Had the instant claims process provided the claimants with the proper opportunity to be heard, there would have been no need for the claimants to intervene. Because we are remanding this case back to the circuit court to give the claimants an opportunity to be heard on their individual claims in accordance with the dissolution statutes, it is unnecessary to address the circuit court’s denial of the motions to intervene.
II. Claims Raised by Individual Appellants
The circuit court concluded that a default judgment in favor of Sims and against JMFH from the Lonoke County Circuit Court was void because the Arkansas Legislature had specifically provided that the court conducting a judicial dissolution and appointing a receiver had exclusive jurisdiction over a corporation. The statute upon which the circuit court relied, and upon which the appellees now rely, is Arkansas Code Annotated section 4-27-1432(a), which provides that “[t]he court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.” However, Sims argues on appeal that, when the dissolution statutes are read as a whole, other courts in the state were not precluded from exercising in personam jurisdiction over JMFH.
The two statutes we must consider in conjunction with section 4-27-1432(a) are Ark. Code Ann. § 4-27-1405(b) and § 4-27-1432(c) (Repl. 2001), which provide in pertinent part:
(b) Dissolution of a corporation does not:
(5) prevent commencement of a proceeding by or against the corporation in its corporate name;
(6) abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution . . .
Ark. Code Ann. § 4-27-1405(b)(5)-(6) (Repl. 2001).
(c) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time. Among other powers:
(1) the receiver (i) may dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; and (ii) may sue and defend in his own name as receiver of the corporation in all courts of this state;
Ark. Code Ann. § 4-27-1432(c)(l) (Repl. 2001) (emphasis added).
In addition to the rules of statutory construction previously laid out in this opinion, this court also seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. See Sykes v. Williams, 373 Ark. 236, 283 S.W.3d 209 (2008). When the above two statutory sections are read together, the mere fact that Pulaski County Circuit Court had a pending judicial dissolution and receivership before it regarding JMFH did not prohibit other “courts of this state” from having concurrent in personam jurisdiction over JMFH on issues not directly involved in the process of dissolution. The circuit court misapplied the law and erred by finding the Lonoke County Circuit Court’s judgment against JMFH was void; therefore, we reverse and remand on this point.
Appellant Reshel individually argues that the circuit court erred in denying her claim against JMFH because she had a valid judgment against Jewell & Moser, P.A., and Jewell & Moser, A Professional Association, which Reshel alleged were one and the same with JMFH, and because she fully satisfied the evidentiary burden required by the court to support the claim.
On February 20, 2007, the circuit court entered a judgment in favor of Reshel in the amount of $418,833.69 against Keith Moser, Jewell & Moser, P.A., Jewell & Moser, A Professional Association, and Moser & Associates under a different case number. However, in that order, the circuit court also concluded that it did not have jurisdiction over JMFH because of the pending judicial dissolution. Therefore, the judgment was limited to Keith Moser, Jewell & Moser, P.A., Jewell & Moser, A Professional Association, and Moser & Associates. Reshel attempted to amend the proof of her claim against JMFH in the dissolution proceedings on February 23, 2007, with the judgment rendered in her favor against Keith Moser, Jewell & Moser, P.A., Jewell & Moser, A Professional Association, and Moser & Associates.
The circuit court held a hearing on May 30, 2007, to consider Reshel’s claim, and accepted three exhibits on behalf of Reshel: (1) the judgment against Keith Moser, Jewell & Moser, P.A., Jewell & Moser, Professional Association, and Moser & Associates; (2) a certificate of fact from the Secretary of State stating what previous legal names were on record for the entity of Jewell, Moser, Fletcher, & Holleman, A Professional Association; and (3) a portion of Keith Moser’s deposition. The circuit court requested to proceed and decide the matter on the pleadings, to which Reshel’s counsel agreed. The circuit court then denied Reshel’s amended proof of claim on June 5, 2007.
Here, the circuit court’s hearing on Reshel’s claim was the equivalent of a bench trial. The standard of review on appeal for bench trials is not whether there is substantial evidence to support the finding of the circuit court, but whether the judge’s findings were clearly erroneous or clearly against the preponder anee of the evidence. See Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. See id. Facts in dispute and determinations of credibility are within the province of the fact-finder. See id.
A change in a corporation’s name does not establish a new corporation when the evidence shows that the name change did not alter the identity of the corporate entity. See, e.g., Bass v. Service Supply Co., 25 Ark. App. 273, 757 S.W.2d 189 (1988). In the instant case, there was a dispute over whether the various name changes of JMFH were also accompanied by changes in the corporate status. The record reveals that the circuit court considered Reshel’s claim after a full hearing. Based upon our review of the evidence submitted on this claim, we cannot say that the circuit court’s order denying the claim was clearly erroneous.
III. Cross-Appeals
Cross-appellant Scott Fletcher began doing business as the Fletcher Law Firm on or around August 1, 2002. Because he was only using the first floor of the building, Barry Jewell and Fletcher discussed Jewell’s use of the second floor and sharing expenses. As the year 2002 came to an end, Fletcher and Jewell disagreed on the amount of the expenses, leading to Fletcher’s counterclaim against Jewell for $49,095.15. A hearing was held on the matter on August 1, 2007. The evidence presented to the circuit court on Fletcher’s counterclaim was limited to Fletcher’s testimony, an expense list typed by Barry Jewell titled “Jewell Law Firm’s Share of Expenses,” which Fletcher amended by hand in an attempt to come to an agreement with Jewell, a financial spreadsheet prepared by Fletcher detailing the profits and losses of the Fletcher Law Firm, and a handwritten note from Fletcher to Jewell attempting to finalize an agreement. Jewell chose to exercise his Fifth Amendment privilege as a result of the pending criminal proceedings against him and did not testify at the hearing.
After considering the evidence, the circuit court awarded a judgment in favor of Fletcher in the amount of $49,095.15 for expenses owed by Jewell. On August 14, 2007, Fletcher moved for attorney’s fees and prejudgment interest resulting from the award received against Jewell. The circuit court awarded attorney’s fees, but denied prejudgment interest on September 21, 2007.
Fletcher now contends that the circuit court erred in denying his request for prejudgment interest on his award in the amount of $49,095.15 resulting from his counterclaim against Jewell. Fletcher argues that because the evidence established that an agreement between him and Jewell regarding a specific dollar amount was entered into on November 8, 2002, he was entitled to prejudgment interest as a matter of law. Jewell did not respond.
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. See Reynolds Health Care Servs., Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005); Ozarks Unlimited Res. Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998). Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that makes it possible to compute the amount without reliance on opinion or discretion. See id. This standard is met if a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action. See Reynolds, 364 Ark. 168, 217 S.W.3d 797. Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. See id.; Ozarks, 333 Ark. 214, 969 S.W.2d 169. Nevertheless, prejudgment interest is always dependent upon the initial measure of damages being determinable immediately after the loss and with reasonable certainty. See Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).
It is irrefutable that the key factor in determining the appropriateness of prejudgment interest is whether the exact value of the damages at the time of the occurrence of the event which gives rise to the cause of action is definitely ascertainable, without reliance upon opinion or discretion. See Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008). Here, the circuit court had to use its discretion in determining which expenses Jewell was responsible in reimbursing Fletcher for, and whether Fletcher’s documents and testimony reflected reliable and fair dollar amounts. In addition, there was not a specific occurrence or date of an occurrence that gave rise to this cause of action against Jewell. While Fletcher argues the date should be November 8, 2002, the date he claims that he and Jewell made the agreement to share expenses, the agreement itself is not what led to the counterclaim.
By Fletcher’s own testimony, he agreed to pay the expenses until Jewell had the opportunity to build up cash. Fletcher testified, “I said that would be fine and we could settle up at the end of the year.” The problem did not arise until the two tried to come to an agreement on the “settle up” amount at the end of the year. The amount awarded to Fletcher against Jewell required the circuit court to exercise discretion in determining what amounts each party was responsible for, especially considering Jewell did not present testimony on his own behalf. For all these reasons, we affirm the circuit court’s denial of prejudgment interest.
For his second point on cross-appeal, Fletcher contends that he is actually a creditor ofJMFH by virtue of the stock redemption agreement and, if this court should reverse the circuit court’s rulings denying the appellants’ claims and hold those claims have priority over any residual shareholder interests, then his claim as a creditor should likewise be paid. However, Fletcher’s argument is conditional and this court has not held appellants’ claims have priority over any residual shareholder interest. Therefore, we do not reach this point on appeal.
The final issue before us is the cross-appeal of Barry Jewell. Jewell argues that the circuit court erred by not staying the trial on the counterclaim against him because, as a result ofjewell invoking his Fifth Amendment rights against self-incrimination, it cost him nearly $50,000. Fletcher argues that the circuit court clearly attempted to balance Jewell’s circumstances with the interests of all the other parties involved in this litigation and did not abuse its discretion in denying the motion to stay. We agree.
We review the denial of a motion for continuance or stay under an abuse-of-discretion standard. See Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). An appellant must not only demonstrate that the circuit court abused its discretion by denying the motion but also must show prejudice that amounts to a denial of justice. See id.
At the time the circuit court made its ruling on the motion, it stated:
Okay. I have a motion to stay proceedings that was filed on July 16th that has been responded to. I’m denying the motion to stay proceedings. There has been •— this case has been pending since 2003. There’s quite a number of folks that are dissatisfied I’m sure with the rulings that I have made. There are folks that have gotten monies that may or may not be expending the monies. There are people that wish that they had gotten monies that are seeing their monies go far, far away from them.
So, if I utilize a balancing test, Mr. Fink [Jewell’s counsel], then I hope that I’ve taken everything into consideration that’s in this file that’s now several large boxes full, and I’m not doing it without much thought. But I understand the legitimate reasons for the filing of the motion, and I’m denying the motion.
Here, the circuit court attempted to balance the interests of all parties, and we cannot say that it abused its discretion in allowing the proceedings on the counterclaim against Jewell to continue. While Jewell did not testify, he was not precluded from introducing any documentary evidence he felt necessary, calling witnesses other than himself, or cross-examining Fletcher. For these reasons, we affirm the circuit court on this issue.
Affirmed in part; reversed and remanded in part on direct appeal; affirmed on cross-appeal.
Our holding on due process does not extend to appellant Reshel. Not only did Reshel fail to make this argument on appeal, the circuit court did provide Reshel the specific opportunity to be heard. | [
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Wood, J.,
(after stating the facts.) The court’s fourth instruction was as follows:
“If therefore you believe from the evidence that the assured was killed by falling from the top of a moving freight train upon which he had been riding in a standing position, without light or lantern on a dark and rainy night, and that he was not there as an employee of the railroad company in the discharge of his duty, you are instructed as a matter of law that assured was guilty of negligence and of unnecessarily exposing himself to danger, and that plaintiff can recover only the sum of $129.70.”
Under this instruction the verdict should have been for $129.70. The court erred in not declaring as matter of law that appellee upon the undisputed facts could not recover in excess of $129.70, as requested in appellant’s first prayer for instruction. The facts, as established by the uncontroverted evidence, show -that Herman E. Brittner was killed by the freight train which left Et. Smith crossing bound west at about 9:3o o’clock March 5, 1904. Brittner was on the ground about the time for the departure of that train, asking its engineer and fireman for permission to go on that train by exhibiting his brotherhood pass. He was referred by the fireman, who positively identified him, to the conductor of the train, who was supposed to be at the depot. Brittner was last seen alive by the fireman going towards the depot. This was a few minutes before the train pulled out. The direction Brittner took after leaving the fireman was in the course the train would take as it moved out for Et. Smith. A man was seen by the brakeman, after the train started, on top of the cars, and was seen to disappear therefrom at about the place where Brittner’s dead body was found that night. When the train reached Conway, the first stop, the train crew received information which led them to examine the train to see if they had run over some one. Blood and brains were discovered on the brake shoes) brake beams and on the wheels of the twelfth car from the caboose, but nowhere else on the train. There was no blood on the wheels of the engine or any other car of the train. It would have been impossible for Brittner to have reached the place where his body was found, during the interval between the time when he was last seen by the fireman and the time his train reached the place where his body was found, except by going upon the train. He could not therefore have been in front of the engine upon the tracks, or walking beside it, and have been killed and found lying between the tracks as he was. The train was moving slowly enough for Brittner to have climbed upon the top of it as it passed out of the “Y” or left the switch. The twelfth car on which the blood and brains were found occupied the posi tion in the train about where the brakeman said he saw the man when he disappeared from the top, and -this car was about at the place where Brittner’s dead body was afterwards found. Brittner could not have been in front of this train. The time was too short for him to have reached there walking. The engine could not have knocked him down and it and seventeen cars have passed over him without mangling him. That “would have been a miracle,” as one of the witnesses expressed it, and the days of miracles have passed. Yet it is reasonably certain that Brittner was killed by this train. Then 'how was it done? The only explanation compatible with the physical and other facts is that it was done by Brittner’s climbing upon the train as it started out. from the yards, and by falling from the twelfth car, as indicated by the brakeman, between the cars, and by having his head severed by the wheels of that car. Appellant thus sustained the burden of proving that Brittner was killed in the manner set up in its answer. There was no rebuttal of this. It was not shown that any other train killed him, or could have done so. The place where Brittner’s body was found, the manner in which he was killed, the blood and brains on the wheels of the twelfth car, and not on the wheels of the engine and others cars, the fact that he wanted to go on this train, and that a man was seen to disappear from the top of a car about where the twelfth car would have been in the train and about where Brittner’s dead body was found as shown by actual measurements- — these facts should cause unbiased minds -to come to the conclusion that Brittner was killed in the manner indicated, and no other conclusion can reasonably be reached. It is not a question of disputed evidence, the weight of evidence, or the credibility of witnesses. But the question is, the facts being undisputed, what should be the conclusion? There is no room for a difference of opinion, and the court should have declared it as asked in appellant’s first prayer, and the jury should have found it under the court’s fourth declaration. The judgment is reversed, and the cause is remanded for new trial. | [
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McCulloch, J.
The question involved in this appeal is whether a person who raises grapes or berries in this State may make wine thereof and lawfully sell the same in quantities of not ■less than one-fifth of a gallon in any county, township and ward where the vote at the preceding general election was “against the sale of wine.” We hold that such sale is lawful except in localities where such sales have been' prohibited by- an order of the county court entered upon' petition of a majority of the adult inhabitants of such locality as now provided by law.
Section one of the act of March 29, 1899 (Kirby’s Digest, sec. 5100), which is the latest legislation on the subject, reads as follows:
“Any person who grows dr raises grapes or berries may make wine thereof and sell the same in quantities not less than one-fifth of a gallon, or in sealed bottles, anywhere in the State without license when the same has been properly labeled as provided for in section 51 ox; provided, that the people shall have the right to petition the county court to prohibit the sale' of native wine as now provided by law, but native wine shall not be included under section 5129, unless by special petition against wine; provided, further, that the growers of wine as above mentioned shall have the right to sell the same in original packages of not less than five gallons, as is now granted to manufacturers and distillers of whisky and brandy, under section 5093.”
According to this statute, the last expression of the legislative will, a grower of grapes or berries in the State may sell wine made therefrom anywhere except where expressly prohibited in three-mile districts by order of the county court. This statute relates solely to the sale of native wine by growers of the grapes or berries from which it is made; and the same may be sold by the growers in such quantities and manner as is provided in the act, regardless of the vote on the question in the county, township or ward. State v. Mullins, 67 Ark. 422.
The only method of prohibiting the sale thereof by the grower in quantities not less than one-fifth of a gallon is by an order of the county court made upon a petition of a majority of the adult inhabitants praying specially for prohibition against the sale of native wine.
The Attorney General files a confession of error, and the same is sustained.
Reversed and remanded. | [
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McCulloch, J.,
(after stating the facts.) The determination of this case turns mainly upon the question of fact whether the contract for the construction of the improvement apportioned the cost thereof to each district separately, or whether the board of improvement contracted for the work as a whole, and after its completion undertook to apportion the cost to the several districts. The preponderance of the evidence seems to sustain the contention of appellees that the apportionment of cost made by the board of improvement was more favorable to District No. 4 than the facts warranted (though this is not altogether clear, for the reason that the cost of the improvement under thé contract with Brownell was less than the original estimates prepared under direction of the board and submitted to the city council when the assessments on property were levied) ; and if this was erroneously done by the board after the letting of the contract and the completion of the work, we- can not say that the taxpayers of District No. 3 would be without remedy for correction of the mistake. On the other hand, if the board made a contract for construction of the improvement, apportioning- the cost thereof separately to each district for the amount of work done in each, as it was their legal duty to do, then one of the districts can not be made to share an unjust burden imposed upon another district by a harsh, contract entered into either through fraud or mistake of the board of improvement. The spirit of the Constitution, as well as the express letter of the statute, forbids that “money raised by assessment in one district shall be expended in another district,” or that improvements contracted for in one district shall be paid for with money raised by assessments in another. The contract entered into by the board of improvement must be looked to in ascertaining whether or not the money about to be expended is for improvements made in this district; and if the board have wrongfully by fraud or culpable negligence imposed an unjust burden upon the district by a contract for excessive cost of the improvement, the remedy is against them, and not against the taxpayers of another district who have been fortunate in securing a more favorable contract for the construction of improvements in their district.
Learned counsel for appellees have brought to our attention' numerous authorities, including many decisions of this court, to the effect that a citizen and taxpayer should find ready relief against unlawful and oppressive taxation; but none of them would sustain a contention that the taxpayers of one locality can be called upon to share the burden of oppressive taxation in another, nor that one improvement district, which has secured a favorable contract for the construction of its improvement, can be required to share the burdens of its less fortunate neighbor, even though both districts be controlled by the same board, and the contracts made in the same way, at the same time and with the same contractor.
The statute in force at the ■ time of organization of these districts provided that “where there is more than one district in the city for the same general purpose, the same member may be on two or more boards, or the boards of different districts may combine so as to form only one board for the whole territory to be thus improved, so as to make the whole improvement uniform; but no money raised by assessment in one district shall be expended in another district.” Mansf. Digest, § 832.
Under this statute.the separate identity of each district was intended to be preserved, so that “no money raised by assessment in one district shall be expended in another district;” and in order to accomplish the same end it was essential that separate contracts for the work in each district should be entered into. Not necessarily separate instruments or forms of contract, but contracts whereby the improvement and cost thereof in each district could be separated. Uniformity in the character of the improvement to be constructed, without destroying in any degree the separate identity of the several districts, was the sole object to be accomplished by the combination provided for in the statute.
This brings us to a consideration of the controlling question of fact, whether or not the contract was let upon separate estimates of the cost of the improvement in each district. We think that the evidence fully establishes the fact that it was let upon separate estimates, and that, though the contract was a joint one for the work in the three districts, it was separate as to the work in each district. The original’ written proposal submitted to the board by the contractor was to do the whole of the work in all of the districts for a gross sum, but the contractor and three members of the board testify that separate estimates were made of the work in each district before the letting of the contract. The plans and specifications upon which the contract was based have been lost, and were not introduced in evidence. The contract recites a gross sum to be paid for the work, $10,000 of it payable in cash, and the remainder in bonds'of the districts. The contract does not specify the proportion in which the cash was to be paid by the three districts, but it does specify the amount of bonds to be issued by each district to the contractor in payment for the improvement.
The witnesses state how much cash was to be paid, and was paid, by each of the districts.
There is very little conflict in the testimony upon this point. The only conflict grows out of a contradictory statement made by the contractor Brownell in a public speech wherein .he said that, in apportioning the cost of the improvement, he could not figure it out, and that he had “arbitrarily” apportioned it. Now, if we should disregard the license usually accorded to political speakers in dealing with facts in a' heated campaign, and hold this man literally to his words spoken under such circumstances, they do not tend to make out a case for the plaintiffs. If the contract for the improvement was let upon estimates apportioning the cost to the districts separately, and if the several districts entered into a contract for construction of the work according to the separate estimates, the fact that the estimated cost was “arbitrarily” apportioned affords no reason why District No. 4 should be .required to pay more than it contracted to pay for its part of the improvement.
We conclude that the plaintiffs have shown no right to recover from District No. 4, and the decree was erroneous.
The decree is therefore reversed, and the cause remanded with directions to dismiss the bill for want of equity. | [
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PIiEE, G. J.
The Attorney General of Arkansas, the Prosecuting Attorney of the Sixth Judicial Circuit, and the Mayor and Citsy Attorney of Rittle Rock brought a bill in chancery against Vaughan, Furth, Faucette and others, in the name of the State of Arkansas and the City of Rittle Rock, seeking to enjoin Furth from operating a pool room at a place in the city of Argenta near the Free Bridge which connects Argenta and Rittle Rock, and that the other defendants be enjoined from permitting or assisting, in the several ways alleged, said Furth in conducting said pool room. The defendants answered, denying man);- allegations of the bill, and to this answer the State and city demurred, and the case was determined on the demurrer, the court sustaining it, and the State and city rested upon it and appealed. The review here is limited to the admissions and allegations in the answer arid the undenied allegations of the complaint, as all other allegations were eliminated by trying the case on the sufficiency of the1 an swer. The material parts of the answer, aside from its denial of the allegations of the complaint, are as follows:
“It is true that the defendant, Bob Furth, operated what is known as a turf exchange or pool room, where money is received, won and lost on horse races, and where tickets for pools on horse races run, or to be run, at various and divers racecourses in the State of Arkansas and throughout the United States, are bought, sold and cashed.” “That in point of fact there are not more than fifteen or thirty people who visit said turf exchange daily, and that neither women nor children are permitted in said pool room or turf exchange. And they state that said pool room or turf exchange is conducted as a quiet, orderly business, and that no persons visit the same except those who desire to do so, and that disorderly or dissolute characters are not allowed or permitted to visit there, and are not in the habit of doing so. It is true that he has caused the said turf exchange to be advertised by a short notice in one of the Little Rock papers, and that he has at times operated a carriage from said city of Little Rock to said pool room. That the business only attracts such as desire to purchase tickets or pools on horse races, and that disorderly or lewd women or the lawbreaking class are not in the habit of attending said pool room or turf exchange. And that no one is disturbed by the gathering of the people in or about said premises. They further state that the city of Little Rock has no corporate property whatever that is in any way affected by the alleged public nuisance as described in said complaint. They further state that the State of Arkansas has no property interest in the matters complained of, and that, if the said defendants are violating any law, the criminal courts of the State have ample power and authority to prosecute the defendants for such offenses, and that the charter of the city of Argenta authorizes said city to punish or abate a nuisance carried on as alleged in fhe complaint.”
The first question under inquiry is whether betting on horse-racing is gambling within the meaning of the statutes against gaming.
The general statute, the only one of them under which it could fall, defines the act therein made criminal to be “betting any money or any valuable thing on any game of hazard or skill.” Kirby’s Digest, § 1740. It contemplates that the game be “played,” for the next section provides that it shall not be necessary for the indictment to allege with whom the game was played. Sec. 1741. In construing these statutes in 1861 Chief Justice English for this court said: “But we do not think the Legislature intended to embrace horse-racing by the words ‘any game of hazard or skill’ ‘played,’ etc., -however vicious such sports may be.” State v. Rorie, 23 Ark. 726. In 1893 this court had before it betting on a game of baseball, and it was held to be criminal because on a game of skill, and the distinction that horse-racing wás not a game but a sport was approved. Mace v. State, 58 Ark. 79. Some States sustain this distinction, and hold horse-racing to be a sport and not a game, within the gaming statutes, but the weight of authority is to the contrary. 20 Cyc. 884; 14 Am. & Eng. Enc. Law, p. 682. It will not do to overule State v. Rorie merely because against the weight of authority; there is good reason to sustain the distinction therein made, and it has been acquiesced in by the State for 45 years, when at any time it could have been changed by legislation. Therefore it must be taken in this case that betting on horse-racing is not a crime of itself.
The quoted parts of the answer admit the maintenance by Furth of a turf exchange or pool room, wherein money is received, wón and lost on horse races, where tickets for pools on horse races run or to be run in Arkansas and elsewhere are bought, sold and cashed; that fifteen to thirty persons daily visit the pool room for the purpose of betting on the races or buying, selling or cashing pools on the races; that said business is advertised, and at times a vehicle to bring patrons to it has been furnished.
What is the status of such a house, notwithstanding.it is conducted in á quiet and orderly manner without unusual noise or disorderly conduct? At common law there were no statutes against gaming, yet the maintenance of a gaming house was a criminal nuisance, indictable and punishable as such. Mr. Justice Scott for this court said: “Independent of any statute, the keeping of a common gaming house is indictable at common law -on account of its tendency to bring together disorderly persons, promote immorality and lead to breaches of the peace. Such an establishment is thus a common nuisance.” Vandeworker v. State, 13 Ark. 700. Chief Justice Watkins for this court said:
“At common law, gaming houses were indictable. as a public •nuisance (Vandeworker v. State, 13 Ark. 700), but unless restrained by express statute ordinary wagers or betting were tolerated as being for amusement or recreation.” Norton v. State, 15 Ark. 71.
In Thatcher v. State, 48 Ark. 60, the court went into the subject of gaming, bawdy and disorderly houses being common-law nuisances, and held that they were such, not from the noise or disorder, but on account of the evil tendency of the business there conducted. Mr. Wharton says: “It is at common law not indictable for persons to engage in gaming in private, or to conduct a single game of chance in public. But when gaming is there publicly known to be carried on, however secluded the place may be, and when unwary and inexperienced persons are there enticed and fleeced, then the parties concerned are indictable for nuisance, irrespective of any particular statutes.” 2 Wharton, Crim. Law, § 1465.
Mr. Bishop' says a common gaming house is a nuisance because those attracted to it, especially youths, are there lured to vice, and youths may be as- effectually lured by a noiseless process as by any other. 1 Bishop, Crim. Law § § 1135, 1136. ■Therefore it follows that the fact that betting on horse-racing is not within the gaming statutes does not prevent a house maintained for such betting being a criminal nuisance. As seen, the evil character of the business, and - not the violation of express statutes, is what stamps it as a nuisance.
Turning more directly to the case in hand, do pool rooms fall within the definition of common-law nuisances, whether the games or sports bet upon are contrary to statute or not ?
Judge Cooley, speaking for the Michigan court, drew a vivid picture of the evils of betting, and showed that, even where individual wagers, were tolerated by law, a house maintained to carry on a betting business was unlawful. People v. Weithoif, 51 Mich. 203. The case of State v. Nease, 80 Pac. (Ore.), 897, is much in point, as these excerpts will show: “The evidence shows that he (the defendant) was the keeper and proprieter.of what is called a ‘turf exchange’ or poolroom on one of the principal thoroughfares of the city, at which persons daily congregate, for the purpose of betting upon horse races run in other States and repeated to him by telegraph. '* * * That such a house is a gaming or gambling house, and punishable as a nuisance at common law, whether betting on a horse race is a crime or not, has so often and uniformly been held by the courts that it is no longer open to discussion. There is no dissent in the adjudged cases, and it is unnecessary to do more than cite the authorities.” (Citing many cases.) See, also, 20 Cyc. p. 893, 894, notes. The foregoing question must be answered .affirmatively.
The common law is put in force in this State, and the punishment for common-law offenses not covered by statute is fixed as a fine not exceeding $100 and imprisonment not to exceed three months. Kirby’s Digest, § § 623 and 624.
These statutes have been held applicable to a gaming house as a common-law misdemeanor. Vandewoker v. State, 13 Ark. 700; Norton v. State, 15 Ark. 71; Thatcher v. State, 48 Ark. 60; 1 Bishop, Crim. Law, § 1137. Each period in which a nuisance continues is a separate offense. Wharton, Crim. Law. § 1419-
In addition to proceeding by' fine and imprisonment, the State may have a judgment abating the nuisance and execution therefor. Wharton, Crim. Law, § 1426; Bishop, Crim. Law, § 1179; Kirby’s Digest, § 2464,
The court has gone fully into the question of the criminality of maintaining a poolroom and the remedies therefor, in order to ascertain whether a chancery court by injunction can restrain a person or persons from carrying on such business.
There are some courts of'learning and ability holding that common-law nuisances, such as illegal tippling houses, disorderly houses, bawdy houses and gaming houses, may be restrained by injunction. These cases go back to State v. Crawford, 28 Kan. 726, s. c. 42 Am. Rep. 182, in which it was held that an illegal drinking saloon (one run counter to a prohibition law of the State) could be closed by injunction, although in that particular case it was not done, on account of the sufficiency of a statutory remedy reaching the evil. Mr. Justice Valentine thus stated and commented upon the case: “This action was originally in stituted in the district court of Shawnee County by the county attorney of such county, in the name of the State, for the purpose of perpetually enjoining the further continuance of an illegal liquor saloon, in which intoxicating liquors were illegally, continuously and persistently sold to be drunk on the premises as a beverage. * * * It must be admitted that this is a rare proceeding — so much so as to startle old and experienced practitioners, and yet, if it were ascertained, after a careful examination of all its elements, to be founded in reason and justice, and to come within the principles of long established equity jurisprudence, it should not be dismissed unceremoniously, or denied a respectful hearing, simply because of its unquestioned and admitted novelty.” Then the learned Justice plausibly contends that such an use of the injunction accords with the principle of equity jurisprudence. See State ex rel. Rhodes v. Saunders (N. H.), 18 L. R. A. 646, and Weakley v. Page (Tend.), 46 L. R. A. 552, where cases supporting this view are reviewed, and other cases along the same line may be found in appellant’s brief. The same question came before the St. Rouis Court of Appeals when Seymour D. Thompson was a member of that court, and that able jurist delivered an opinion completely answering the contention of the Kansas court in the Crawford case. He showed by authority and reason that the jurisdiction in courts of equity to restrain public nuisances was limited to these three classes:
1. To restrain purpresture of public highways or navigation.
2. To restrain threatened nuisances dangerous to the health of a community.
3. To restrain ultra vires acts of corporations injurious to public right.
The court proceeds: “Unquestionably, the exercise of equity jurisprudence in these three classes of cases is an exception to a very general, well-understood, and important rule. That rule is, that a court of equity has no jurisdiction in matters of crime. In these three 'classes of cases jurisdiction is, however, exercised for special reasons, although unquestionably the nuisance complained of is a misdemeanor and subject to prosecution by indictment.” State v. Uhrig, 14 Mo. App. 413. Chancellor Kent said: “If the charge be of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, it ought not to be brought within the direct jurisdiction of this court (a chancery court), which was intended to deal only in matters of civil right resting in equity, or where the remedy at law was not sufficiently adequate. * * * I know that the court is in the practice of restraining private nuisances to property, and of quieting persons in the enjoyment of private rights; but it is an extremely rare case, and may be considered, if it ever happened, as an anomaly, for a court of equity to interfere at all, and much less preliminarily by injunction, to put down a nuisance which did not violate the rights of property, but only contravened the general policy.” Atty. Genl. v. Utica Ins. Co., 2 Johns. Ch. 371.
The Illinois court said: “It is elementary law that the subject-matter of the jurisdiction of the court of chancery is civil property. * * * The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property.” Sheridan v. Colvin, 78 Ill. 237. Again it is well said: “It is no part of the mission of equity to administer the criminal law of the State or to enforce the principles of religion or morality, except so far as the same may be incidental to the enforcement of property rights, and perhaps other matters of equitable cognizance.” Cope v. Fair Assn., 99 Ill. 489. In People v. Condon, 102 Ill. App. 449, the subject of equity jurisdiction to enjoin a pooling and betting business was gone into fully and the authorities reviewed, and the result thus summed up: “1. That a court of equity has no jurisdiction over matters merely criminal or merely immoral. 2. That a court of equity will sometimes enjoin a public nuisance. 3. That this will be done in no case where the State is the complainant, unless it be clearly shown that such nuisance affects public property or public civil rights.” A learned text writer, whose works are standard authorities, says: “Nuisances that arise from the acts of men that, for the time being, make the property devoted to their purposes a nuisance, but which cease to be so when the use is stopped: such as disorderly houses, gaming houses and cockpits, that are malum in se and common nuisances purely, and only punishable by indictment.” 1 Wood on Nuisances, § 14.
The Supreme Court of the United States considered the use of the injunction to restrain public nuisances and preserving rights of the public in highways when the Government secured an injunction against strikers interfering with interstate mail and traffic at Chicago in the railroad strike of 1894, and Mr. Justice Brewer, speaking for an undivided court, said: “The difference •between a public nuisance and a private nuisance is that one affects the public at large and the other only the individual. The quality of the wrong is the same, and the jurisdiction of the courts over them rests upon the same principles and goes to the same extent. * * * .Again; it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature; but when such interferences appear, the jurisdiction of a court of equity arises, and is not destroyed by the fact that they were accompanied by, or are themselves, violations of the criminal law." In re Debs, 158 U. S. 564, 592, 593.
It is demonstrably true that it is a sound principle of equity jurisprudence that an injunction will not lie at the instance .of the State to restrain a public nuisance where the nuisance is one arising from the illegal, immoral or pernicious acts of men which for the time being make the property devoted to such use a nuisance, where such nuisance is indictable and punishable under the criminal law. On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime. The criminality of the act will neither give nor oust jurisdiction in chancery. Applying these principles here, it is seen that the admissions of the answer prove Furth to have been daily violating the criminal laws, but there is an absence of any showing that the acts constituting the crime reached to any of the grounds of equity jurisdiction. In some cases where the jurisdiction of equity is sought to restrain a criminal nuisance, there are allegations that the criminal .processes are inadequate to afford relief from connivance of the officers or other reasons. Happily, that unfortunate situation is not presented here; the •prosecuting attorney joins in this complaint, and allegations involving the officers of Argenta in the, maintenance of this poolroom were denied in the answer, and the State elected to treat the answer as true. It is not. only the right, but the sworn duty, of every prosecuting attorney to proceed by information in justice’s or circuit court to close these illegal places when they have information of them; it is not only the right but the duty of every grand jury to find the existence of such places if they exist and to indict the keepers thereof. It is also the privilege of any citizen to proceed against them at any time, by affidavit before a justice of the peace.
There is no possible excuse under the law for a poolroom — a place maintained for carrying on or facilitating betting on horse races or any other sport or game or contest or other event upon which wagers are laid — to exist in Arkansas for one minute. Its maintenance is a crime, nothing more, nothing less.
Persons charged with crime are entitled to a jury, trial, and this right must not be taken from them under guise of an injunction against a nuisance.
The chancellor was right in refusing to entertain jurisdiction, and the judgment is affirmed. | [
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Hii.u, C. J.-
McVeigh and Bodkin purchased of the Board of Directors of the St. Francis Levee District a tract of land at its graded price, and paid one-fourth of the purchase price thereof in cash, and executed promissory notes for the balance payable in one and two years, respectively, bearing interest from date until paid.
The president of the board executed a deed to said purchasers, reciting such purchase, payment and notes for balance, and in consideration of such payment and notes conveyed said land to them. Subsequently the board sold the same land at the same price to others, and this suit is a contest between parties claiming under said sales from the levee board, and turns on the validity of the deed to McVeigh and -Bodkin.
The act creating the levee district (act of March 29, 1893) in the first section confers this power of sale on the board: “The said levee district may sell said lands for the minimum prices of $2.50, $1.50 and 50 cents per acre as to grade, or may issue the bonds of said levee district secured by a mortgage on said lands or any part thereof, and payable as the board of directors may determine, and the treasurer of the ■ levee board of said district, upon receipt of payment for any part or parcel of said lands, shall certify the same to the president of said board, who shall execute a deed in the name of said corporation to the purchaser of said lands, the money arising from such sales or issuance of bonds to be applied solely to the construction and maintenance of the levee of said district.”
It is argued that only a power to sell for cash is conferred, and that this deed shows on its face that it was partly for cash and partly on credit, and is therefore void. Myers v. Hawkins, 67 Ark. 413, is principally relied upon by appellant to sustain his position. The opinion in that case was modified, but inadvertently the original and not the modified opinion was published. See correct opinion 56 S. W- Rep. 640. But there is nothing in said opinion, even as originally drawn, which sustains appellant. The point decided was that under the express terms of the act there was power to sell the land, but not the timber separate and apart from the land; and the action was to prevent the execution of the contract by enjoining the cutting and removal of the timber. Here there is an undoubted power to. sell and at the- price sold, and the only departure from the statute alleged is in making deed before all the purchase price was paid.
A municipal or other corporation may be estopped to avail itself of ultra vires contracts where the contracts are executed and the contracts themselves are over a matter within the corporate power to contract. Searcy v. Yarnell, 47 Ark. 269; Newport v Railway Co., 58 Ark. 270; Prick v. Brinkley, 61 Ark. 402; 1 Beach, Pub. Corp. § § 223, 227; 1 Dillon, Municipal Corp. § § 223, 227; 1 Dillon, Municipal Corp. § § 457, 458; School District v. Goodwin, ante p. 143.
The case of Hitchcock v. Galveston, 96 U. S. 341, is much in point. Payment for work under a contract was made in negotiable bonds, the issue of which, it was contended, was beyond the power of the corporation. The court said: “The promise to give bonds to the plaintiffs in payment of what they undertook to do was, therefore, at farthest, only ultra vires; and in such a case, though specific performance of an engagement to do a thing transgressive of its corporate powers may not be enforced, the corporation can be held liable on its contract. Having received benefits at the expense of the other contracting party, it can not object that it was not empowered to perform what it promised in return, in the mode in which it promised to perform.” Here the district received the benefits of the sale in cash and notes. The purchaser was as effectually bound by his notes as by his cash, and, having received the benefit, it does not lie in the mouth of the district, or those claiming under it, to deny the validity of the mode of performance on its part.
Judgment affirmed.
Mr. Justice McCuixoci-i disqualified and not participating.
The paragraph on page 415, 67 Ark. (Myers v. Hawkins) beginning, “Moreover, it is clear,” etc., and the following paragraph, were stricken out of the opinion after the Clerk certified to the Reporter the original opinion for publication. The remainder of the opinion was unchanged. The attention of the Reporter was never called to the modification until now. (Reporter.) | [
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McGurroch, J.
The plaintiff is a boy about thirteen years of age, and sues the railway company for damages alleged to have been sustained on account of having been wrongfully ejected from the train. He boarded a southbound, passenger train at Rison, Arkansas, a station on appellant’s road in Cleveland County, on Sunday afternoon, July 31, 1904, and presented to the conductor a ticket reading from Clio, a station about four miles north of Rison, to Camden, Arkansas. The conductor refused to honor the ticket, caused the tran to stop within about thirty yards below the station, and ejected the boy. The plaintiff alleged in his complaint that, “by reason of being ejected from said train, he was greatly distressed and humiliated, besides being prevented wrongfully by defendant from proceeding on his journey, causing plaintiff, in addition to being humiliated and wounded, the actual loss of the money paid for said ticket, to his damage in'the. sum of one thousand dollars.” The jury returned verdict in his favor, and assessed the damage at the sum of two hundred and fifty dollars. The first question for our consideration is the decision of the trial court in denying the defendant’s petition for a change of venue. The petition of defendant, in addition to the statutory grounds for change of venue, alleged that the plaintiff did not reside in the county where the action was instituted; and it is insisted by learned counsel for appellant that because of that allegation the prayer of the petition should have been granted as of course. The court heard testimony as to the existence of the statutory grounds for change of venue, and denied the prayer.
The statute regulating the practice upon petitions for change of venue in civil cases is as follows:
“Upon presenting the petition, which may be resisted, and notice to such judge, he may make an order for the change of the-venue in such action, if in his judgment it be necessary to a fair and impartial trial, to a county to which there is no valid objection which he concludes is most convenient to the parties and their witnesses; provided, that in case where the plaintiff shall have instituted suit in a county other than that of his residence, or of the county where the occurrence of which he complains took place, unless compelled to do so in order to get service on the defendant, the defendant shall have the right to a change of venue upon presentation of his petition duly verified.” Act April 13, 1899; Kirby’s Digest, § 7998.
Prior to the passage of that statute the order for change of venue was granted as a matter of course upon the filing of a petition duly verified and supported by the affidavit of two credible persons. There was no authority for an issue to be made be granted as a matter of course upon presentation of the petition, upon the truth of the allegations of the petition or for the court to inquire into the truth thereof. The power of the court was limited to an ascertainment whether or not the petition was in proper form, contained the necessary averments, and was supported by the affidavit of two credible persons. The first paragraph of the statute just quoted worked a material change in that respect. It plainly authorized the court to inquire into the truth of the alleged grounds for change of venue, and to ascertain, before granting the prayer of the petition, whether or not the alleged grounds therefor exist.
The contention of appellant’s counsel is that where the' plaintiff shall have instituted an action in-a county other than that of his residence, unless compelled to do so in order to get service on the defendant, the order for change of venue should be granted as a matter of course upon presentation of the petition, and that, if the plaintiff instituted an action in a county other than that where the occurrence of which he complains took place, it forms a distinct ground for change of venue. We do not agree with them.
The statute plainly means that if the plaintiff commences an action in a county other than that of his residence, or other than that of the county in which this occurrence of which he complains took place, unless he is compelled to do so in order to get service on the defendant, the latter shall have the right to a change of venue upon presentation of his petition in proper form, duly verified, containing allegations of the statutory grounds of prejudice or undue influence and supported by the affidavits of two credible witnesses. Upon the presentation of such a petition, the sole issue of fact for the determination of the court is whether or not the action has been instituted in the county where the plaintiff resides or in the county where the occurrence of which he complains took place, and, if not, whether the plaintiff was compelled to institute the action in some other county in order to get service on the defendant. But if the action is commenced either in the county of the plaintiff’s residence, or where the injury complained of occurred, or if necessarily brought in some other county in order to get service on the defendant, then the change of venue is not ordered as a matter of course on presentation of the petition, and the court, before granting the prayer, where the petition is resisted, should first ascertain whether or not the alie gations of undue influence or local prejudice are true..
There was no error in overruling appellant’s petition for change of venue.
At the time of the occurrence complained of the plaintiff and his father lived at Clio. There were two passenger trains per day going south at that time, train number one passing Clio about 3:3o p. M. and train number three passing that place about 3:2o a. m. A new time oard went into effect at midnight on June 30, and according to. it train number three did not stop at Clio, though it had been stopping at that place under the schedule in force up to that time. Plaintiff’s father on July 30, about nightfall, and after train number one had passed, purchased a ticket for plaintiff from Clio to Camden and return, and the ticket was stamped of that date, and bore the usual stipulation thereon to the effect that it was good for passage on the date of sale. Plaintiff and his father both testified that the ticket was bought expecting that he would take train number three at Clio, and that the agent did not inform them that it would not stop there, but the agent testified that he did tell them that that train would not stop at Clio, and that they would have to walk to Rison to catch the train. The testimony is conflicting on this point, and must be treated as settled by the jury in favor of plaintiff’s contention. It is undisputed, however, that the agent did sell a ticket for plaintiff’s use' at an hour when the only train which he could have taken on that day at that place or at Rison had passed. In other words, the ticket, according to the stipulations on its face, was void when the agent sold it, because there was not another train on that day which stopped there. The next train was due at 3:20 the next morning, and did not stop there. The plaintiff did not go to Rison that night to take the early morning train, number three, but waited for it at Clio, and it did not stop there. Pie walked to Rison the next day, Sunday July 31, and boarded train number one at 3:3b in the afternoon. When he boarded the train, the limit of his ticket had, according to the letter of its stipulation, expired, but under the rules of the company the conductor was not bound to reject it. One of the rules read in evidence from the book of instructions provides that “any transportation on which the limit has expired before presentation must not be honored unless the circumstances are such that in the conductor’s opinion the holder is ’entitled to use it, in which case he may accept it.” This rule gave the conductor discretion to inquire into the facts and to honor a ticket apparently out of date if the circumstances warranted it. Moreover, the conductor testified that if he had been on train number three he would have honored the ticket, notwithstanding that train passed after midnight and the- limit of the ticket had then expired. Now, the conductor knew that train number three did not stop at Clio, and as the ticket was, according to his own statement, good from Clio on train number one, he had no right to reject it because the plaintiff boarded the train at Rison. If it was valid from Clio, it was valid from Rison, an intermediate point, as the plaintiff did not forfeit his right to use-the ticket because hé walked down to Rison and boarded the train there, instead of embarking at Clio. Nor could the conductor rightfully assume that, because plaintiff boarded the train at Rison, he was at that place when train number three passed, so as to have had an opportunity to take passage on it. The fact that the ticket read from Clio, and was sold at that place, notified the conductor that plaintiff was seeking passage from Clio to Camden. Neither the plaintiff nor his father give any explanation why they walked down to Rison, instead of boarding train number one at Clio; but it is not necessary to sustain the cause of action that this circumstance should be explained. They were ignorant negroes, and the fact that the change in the time card which prevented plaintiff from getting on the early morning train at Clio, as he expected to do, may have brought about a confusion which induced them to go on to Rison on Sunday, where both trains were known to stop.
In Little Rock & Ft. S. Ry. Co. v. Dean, 43 Ark. 529, a case involving a similar point, Chief Justice Cocicriee, after holding that a passenger was bound-by the time limit fixed in the contract, said: “The obligation bears upon the carrier with equal force.
He must afford the purchaser of such ticket the necessary facilities for accomplishing his journey within the stipulated time, and upon his failure to do so he is not in position to treat the contract of carriage as forfeited, and demand a re-payment of fare for .the same passage at least if the ticket holder avail himself, as in this instance, of the first opportunity to complete his journey aftei the expiration of the time limited.”
Now, to sustain the contention of appellant in this case would be to do violence to the just rule expressed in the above quotation. The plaintiff took passage on the first train he could get after the ticket was purchased, and to refuse transportation on that train was to deny him the privilege of using the ticket at all. When the company through its agent did this, it violated its contract, and the expulsion from the train was wrongful.
Our attention is directed by learned counsel to authorities holding that the ticket presented by the passenger must, so far as the duty of the conductor is concerned, be treated as exclusive evidence of the right to passage, and that the passenger can not insist on riding on a ticket which is invalid on its face by reason of some mistake or omission of the selling agent. There seems to be conflict in the authorities on this question; but if it be conceded that the weight is with appellant’s contention, yet that principle does not apply to the facts of this case where it is shown that the conductor had authority, under the rules prescribed by the company for his guidance to accept after the expiration of the time limit a ticket that the company was bound to honor. Besides, this court has decided that even where the conductor has acted strictly within his prescribed duties in rejecting a ticket apparently invalid, yet the company is liable for the expulsion on account of the mistake of the selling agent in making out the ticket. Hot Springs R. Co. v. Deloney, 65 Ark. 177.
It is next insisted that the verdict for $250 was excessive.' The plaintiff, as we have already pointed out, was a boy thirteen years of age, and was put on board the train to go to Camden. He was carried only about thirty yards from the station, and was there put off the train. He testified that the conductor, after refusing to accept his ticket, took hold of him with the train.porter and put him off; that his feelings were hurt; and that he walked back to his father crying. He said that the conductor took hold of him roughly, and talked roughly to him. Other witnesses testified that the boy was crying when he was put off, and another witness of acknowledged truthfulness testified that he was standing near by and saw one of the trainmen push the boy off the train, and that the boy was crying, and seemed to be distressed. The boy and his father had to walk back to Clio, and the agent refused to refund the price of the ticket.
While the verdict is in excess of what, it appears to us, the jury should have allowed, still we do not feel that it is so unjust or unreasonable that we should disturb it.
In the Dean cáse supra, where the injury seems to have been less than in this case, the court sustained a verdict for two hundred dollars. The court said concerning the amount of damages: “No harsh or unnecessary means appear to have been resorted to in this instance to expel the appellee from the train, though he, himself, testified that the conductor threatened to throw him off. The elements of damage the jury were directed to consider in case they found for appellee were the extra fare paid by him, the humiliation of being put off the train, and the inconvenience of being compelled to reach his destination' by other means. The jury might well consider all of this, and we can not say that the amount was excessive.”
The amount of damages for an injury involving humiliation and distress of mind resulting from a wrongful expulsion from a train,' accompanied by harsh treatment, is indeterminate, and must be left, to some extent, to the sound discretion of the jury; and unless the assessment is palpably excessive, or so flagrantly unjust as to indicate passion, prejudice or a failure to appreciate the law and facts presented, this court will not disturb it. Fordyce v. Nix, 58 Ark. 136; Railway Company v. Maddry, 57 Ark. 306; Railway Company v. Robbins, 57 Ark. 384. There was no element of contumacy in the plaintiff’s conduct after his ticket was rejected. He had no money to pay his fare with, so as to prevent his ejection from the train, nor did he augment his damage by refusing to get off after his ticket was rejected. The evidence shows that when the ticket was rejected, and the plaintiff stated that he had no money to pay his fare, he was roughly and rudely expelled from the train — pushed off, as one of the witnesses expressed it.
The jury had the witnesses before them and exercised their discretion, from all the facts adduced in evidence, in determining what would be fair compensation for the injury inflicted. We see no reason for disturbing the verdict.
Judgment affirmed. | [
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Riddick, J.
(after stating the facts.) There are only one or two points that need to be considered on this appeal.
The first question is whether a creditor who has recovered judgment against his debtor and has levied upon and sold land •fraudulently conveyed by the debtor previous to the judgment can recover possession of the land in an action of ejectment based on the deed acquired at the execution sale, without first going into a court of equity to set aside the fraudulent conveyance? We are of the opinion that this question must be answered in the affirmative. It is the language of our statute, and it has been often said by this and other courts that a conveyance made for the purpose of defrauding a creditor is void as to the creditor. Chancellor Kent said that “a fradulent conveyance is no conveyance against the interest intended to be defrauded.” Sands v. Codwise, 4 Johns. Ch. (N. Y.), 536, 4 Am. Dec. 305. Such expressions are found in numerous cases. Ringgold v. Waggoner, 14 Ark. 69; Rudy v. Austin, 56 Ark. 73-80; May v. State National Bank, 59 Ark. 614; Johnston v. Harvey, 21 Am. Dec. 426.
But in the recent case of Doster v. Manistee National Bank, 67 Ark. 325, is was pointed out that, although such conveyances were often spoken of as void as to creditors, they were in fact only voidable, and will stand unless some legal steps are taken to avoid them. In other words, “where it is said that a fraudulent conveyance is void as to the creditors of the grantor; what is meant is that it is ineffectual against legal process instituted by the creditor against the property of the debtor and exercised through regular and valid proceedings.” 14 Am. & Eng. Encr Daw (2 Ed.), 310. In the Doster case the court held that a judgment was npt a lien upon land which the judgment debtor has previously conveyed to defraud his creditors. ' I did not concur in that decision for the reason that it seemed to me to be in conflict with former decisions of this court. Ringgold v. Waggoner 14 Ark. 69; Hershy v. Latham, 46 Ark. 542; Stix v. Chaytor, 55 Ark. 116.
But the case was carefully considered, and we have no inclination to overrule it. One reason for holding that a judgment was not a lien in such cases is that where a creditor has obtained judgment, but taken no steps to attack the fraudulent conveyance or to subject the property conveyed to his judgment, innocent parties might be misled into dealing with such property as the property of the fraudulent grantee, and might be exposed to injury if a judgment was held to be an absolute lien in such cases. But that reason does not apply where the creditor not only recovers a judgment but levies an execution upon the property and sells it as the property of the fraudulent grantor. For that conclusively shows that the creditor has elected to treat the convejrance as void, and to subject the property to his debt. For this reason we see nothing in the decision in the Doster case that conflicts with our conclusion in this case.
While the- usual practice for the creditor seeking to reach property fraudulently conveyed by the debtor is to go into court of equity, and while this court in the Doster as well as other cases has said that the better practice was to do so, still the creditor has the right to - choose his remedy, for fraud may be shown at. law as well as in equity. Although, as said in the Dosier case, a fraudulent deed is not strictly speaking void until attacked by one having the right to do so, yet it is of no effect against the process of a creditor seeking to subject the property to his debt. While such a deed is good between the parties, a creditor may elect to treat it as a nullity; and when he recovers judgment against the fraudulent grantor, he may levy his execution on the property, and subject it to sale for the satisfaction of his debt. The purchaser at such sale can recover possession from the fraudulent grantee by an action of ejectment, upon showing the nature of the conveyance, and we are of the opinion that the circuit court erred in holding to the contrary. Ringgold v. Waggoner, 14 Ark. 69; Apperson v. Ford, 23 Ark. 746; Hershy v. Latham, 46 Ark. 542; Scott v. Scott, 85 Ky. 385; Pratt v. Wheeler, 6 Gray (Mass.), 520; Sherman v. Davis, 137 Mass. 132; Smith v. Reid, 134 N. Y. 568; 14 Am. & Eng. Enc. Law, (2 Ed.) 310, 312, 20 Cyc. 655, 656, and cases cited.
In this case the plaintiff did not ask for any equitable relief. She asked judgment for the possession of land held by defendant; and as the circuit court had jurisdiction to try and determine the case, the court did not err in overruling the motion of plaintiff to transfer to the chancery court. The paragraph of the complaint alleging the fraudulent nature of the conveyance under which defendant holds was stricken out on motion of defendant. Plaintiff did not except to this ruling of the court, and that is not before us for review. But the answer of the defendant set out the deed from his brother, the debtor, to him, and expressly denied that it was made to hinder and delay creditors. The plaintiff thereupon filed exceptions to this deed on the ground that it was made to defraud the plaintiff of her debt. Strictly speaking, this was not a proper exception to the deed, for the deed was good on its face, and an exception goes only to defects apparent on the face of the deed; .but if a reply was necessary to raise the issue as to whether this deed was fraudulent or not, this exception may be treated as a reply, for it set out the facts fully, and gave notice to the defendant of the grounds on which his deed would be attacked. But the corjrt refused to permit plaintiff to introduce evidence to sustain the allegation of fraud. This ruling, as we have said, was in our opinion erroneous.
Judgment reversed, and cause remanded for a new trial.' | [
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McCulloch, J.
This is an action against the railway company by the owner of a horse to recover damages for its alleged negligent killing by servants of the company in the operation of a train, and it is the second appearance here of the case. Arkansas & Louisana Ry. Co. v. Sanders, 69 Ark. 619. The facts are stated in the former opinion. The second trial resulted in a verdict in favor of the plaintiff for the value of the horse, and the defendant again appealed. It is contended that the evidence does not sustain the verdict.
Proof of the killing of the animal made a prima facie case of negligence against the company, and cast upon it the burden of proving that its servants were not guilty of negligence. It was admitted by the engineer that no alarm, was given, either by ringing the bell or sounding the whistle. He stated, however, that in his judgment the chances of avoiding the injury'were, under the circumstances, better by omitting these alarms. • This left a question for the jury to determine whether he exercised ordinary care'to avoid injuring the animal. The jury were not bound to ' accept his opinion as to the best means of avoiding the injury. They had the right to exercise their own judgment in determin ing that question, as it was not a question calling for especial knowledge or experience on the subject. The evidence shows that the horse was running toward the track in front of the approaching engine, and it is very probable that an unusual alarm, such as a blast of the whistle, would have frightened the animal and diverted its course from the direction of the danger. Fordyce v. Edwards, 65 Ark. 98.
Appellant complains of the court’s refusal to give the following instruction: “No. 9: If the jury find from the evidence that the engineer and fireman did all they reasonably could have done to avert an injury to the animal in controversy, and in good faith exercised the best judgment they could under the circumstances and in the time they had to consider, they will find for the defendant, though they further find that, had they acted otherwise, the accident would not dr might not have happened.’' The instruction was properly refused. It made the question of negligence or due care depend upon whether or not the engineer and fireman “in good- faith exercised the best judgment they could under the circumstances.” This is not the correct test of negligence, which is the omission to do something which a reasonably prudent and careful person would, or the doing something which such a person would not, do under like circumstances. 1 Thompson on Negligence, § § 1, 2; Hot Springs Railway Co. v. Newman, 76 Ark. 607. The engineer and fireman may have in perfect good faith done what they honestly believed to be the best in order to avoid the injury, and yet have been guilty of negligence.
No error was committed by the court in permitting witnesses to testify, from having the plaintiff point out the place where the animal was killed, as to the distance the engineer and fireman could have seen it after the engine passed out of the cut.- Their testimony was, of course, founded upon the truth of plaintiff’s statement pointing out the place to them, and the jury considered this in testing the weight of their testimony. It was not hearsay, because the plaintiff testified that he went with them and assisted in measuring the distance.
Nor was there any error in instructing the jury upon the duty of defendant’s servants to keep a lookout. There was evidence to base the instruction upon, as the engineer testified that he saw the horse only 70 or 100 yards in front of the engine, and the testimony of the. other witnesses tended to show that the horse could have been seen about 156 yards. If it could have been seen that distance, and the engineer did not see it until he got within a distance of 100 yards, the jury were warranted in finding that no lookout was kept.
Judgment affirmed. | [
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Riddick, J.
This is an action brought by Willie Sparks, a minor, by his next friend to recover damages for an’injury caused by one of the cars of the defendant railway company. At the time of the accident Willie Sparks, a boy between nine and ten years of age, was returning from the place where he attended school to his home. He and.a number of other school children walked along the side of the railway track, and then attempted to cross the track. The employees of the company had left a caboose with three freight cars attached standing on the track near where the boy attempted to cross. Just before the boy attempted to cross the track another car was pushed or kicked against these cars and caboose which were standing on the track, and caused them to' back down the track. While thus moving, the caboose struck the plaintiff, Willie Sparks, and the result was that his foot was crushed to such an extent that it was necessary to amputate it.
The jury returned a verdict in favor of plaintiff, and assessed his damages at $10,000. Judgment was rendered against the company for that amount, and it appealed.
It is' said that the plaintiff, Willie Sparks, was guilty of contributory negligence, but that question was submitted to the jury under proper instructions, and, considering that plaintiff was at the time of the accident under ten years of age, we think that the circumstances are sufficient to support the finding of the jury.* It has been frequently held that a child is not required to exercise the same capacity for self-preservation and the same prudence that an adult should exercise under like circumstances. You can reasonably expect of a boy between nine and ten years of age only that degree of care and prudence that a boy of that age or of his degree of intelligence should exercise. What would be ordinary care for such a boy might be culpable negligence in an adult. Dowling v. Allen, 88 Mo. 293; Ridenhour v. Kansas City Ry. Co., 102 Mo. 283; Railroad Company v. Gladmon, 15 Wall. (U. S.) 401; Lynch v. Smith, 104 Mass. 52; 7 Am. & Eng. Enc. Law (2 Ed.), 405.
The evidence tends to show that the defendant company was guilty of negligence in allowing these cars to be pushed or kicked along its track through a populous town without any lookout on them to guard against accidents to persons and property, and we think the question as to whether the plaintiff was guilty of contributory negligence, in failing to look - up and down the track as he walked upon it was a question for the jury.
An instruction of the court told the jury that contributory negligence was an affirmative defense, and that the burden of proof was on defendants to establish it “by a preponderance of the testimony to the satisfaction of the jury.” Counsel for de-É fendant contends that this instruction was erroneous, for the reason that, while usually the burden is on the defendant to .show contributory negligence, yet it is sufficient if shown by the evidence introduced by plaintiff; and further that the use "of the word “satisfactory” was improper, and rendered the instruction erroneous and prejudicial. But it is evident, when the whole charge is considered, that the court did not intend by this instruction to convey the idea that the defendant must introduce evidence to show contributory negligence, even though it was shown by the evidence of plaintiff. It is equally plain, we think, that the court did not, by saying that contributory negligence must be “established by a preponderance of the testimony to the satisfaction of the jury,” intend to require more than preponderance of the evidence. In fact, the instruction says that such defense must be shown “by a preponderance of testimony.” The use of the word satisfy or satisfaction in such connection has been criticised as inaccurate, and there was no need to use it to express the idea intended. But no special objection was made to this instruction on the grounds mentioned, and it is too late to raise such formal objections on appeal. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325; Thomas v. State, 74 Ark. 436; St. Louis, I. M. & Sou. Ry. Co. v. Norton, 71 Ark. 317; Aetna Ins. Co. v. Ward, 140 U. S. 76; Wells v. Higgins, 132 N. J. 459.
There was no evidence in this case that the plaintiff attempted to jump upon or ride this car, and the evidence offered by defendant that he had previously been in the habit of. riding cars was properly rejected.
It was proper to show that this railway track was in a populous town, and that pedestrians, both young and old, frequently used it as a passway, to show the necessity for increased vigilance in keeping a lookout when cars were to be pushed or backed along the track at that place.
The damages allowed were liberal, but, considering the fact that plaintiff, a young and bright boy, lost his foot, that he suffered greatly, We are not able to say that the damages assessed were excessive.
Finding no error, judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) The only question in this case is whether it is against public policy to permit a bank of which the mayor of a city is a stockholder and president to take an assignment of the claim of a contractor against the city for the price of work which he has performed for the city, and which work must be inspected and accepted for the city by a board of which the mayor is chairman? The bank, acting through its president and other officers, in good faith advanced the contractor certain sums of money to enable him to carry out his contract with the city, and to secure the loan took from him an assignment of his claim against the city. At the time this was done the work had not been completed, and therefore had not been inspected or accepted by the city. It would ■ certainly be against public policy to permit the majmr of a city to take an assignment of such a claim to himself and to become personally interested in this way in a contract against the city of which he was the chief officer and a member of a board whose duty it was to inspect the work and pass upon the question as to whether it had been performed in accordance with the contract. In such a case the law will not permit him to put himself in a position where his own interests may conflict with those of the city which it is his duty to guard and protect. But the same rule which prevents him from doing that as an individual will prevent him from doing so as the president of a corporation in which he is also a stockholder. His interests as a stockholder and president of the corporation might conflict with the interests of the city of which he is mayor and chairman of the board of public affairs charged with the duty of inspecting the work in question. If a question should arise before the board of public affairs as to whether or not the contractor had properly performed his work and was entitled to be paid the contract price, the "duty of the mayor, as an officer representing the city, might require the rejection of the work, which would be opposed to his interests as president and stockholder in the bank. The law aims to shield officers against such temptations by forbidding them from entering into contracts which might bring their private interests into antagonism with those of the city and by declaring that all such contracts are void. West v. Camden, 135 U. S. 507; Holcomb v. Weaver, 136 Mass. 265; Edwards v. Randle, 63 Ark. 320; 9 Cyc. 481; 15 Am. & Eng. Enc. Law (2 Ed.), 934-976.
There is nothing in our statute that changes this rule of law. On the contrary, it goes further, and forbids the board of public affairs to make any contract with any person associated in business with or related within the sixth degree of consanguinity or affinity under the civil law to any member of the board or member of the city council except upon advertisement and to the lowest bidder. It provides that “every contract in which any such forbidden person shall have.an interest, direct or indirect, shall be utterly null and void.” And requires that an affidavit be filed before payment showing that no person forbidden by the act has an interest in the contract. Kirby’s Digest, § § 5644, 5647-
There is nothing in this language to justify a member of the board in becoming interested in a contract, even after it has been made to the lowest bidder, when his duty requires that he shall inspect and determine whether the work due under the contract shall be accepted by the city or not. In this case the original contract with Torbert was valid, for no member of the board or council was interested therein, but the subsequent contract by which Torbert, before his work had been completed and accepted, assigned his claim against the city under the contract to the bank of which the mayor was president and stockholder came within the rule that contracts which place the individual interests of public officers -in conflict with their duty to the public and put them under an inducement tp act in violation of such duty are ' illegal. By this assignment the mayor, as president and stockholder of the bank, became interested in a contract, the work done under which he, as member of the board of public affairs, had to approve and accept for the city. The statute declares that all such contracts “shall be utterly null and void,” and this is only a restatement of the rule of the common law. Such contracts being illegal, no court can enforce them, for to do so would be for “the law to aid in its own undoing.” Berka v. Woodward, 125 Cal. 119, 45 L. R. A. 420; Melliss v. Shirley Local Board, 16 Q. B. Div. 446; Brown v. Tarkington, 3 Wall. (U. S.), 377; Oscanyan v. Winchester Arms Co., 103 U. S. 261; 15 Am. & Eng. Enc. Law (2 Ed.), 971.
While we are well satisfied that in this particular instance both the mayor and the bank officials acted in entire good faith, and really intended what they did for the benefit of'the city and its contractor, yet the law looks not alone at this particular instance, but to what a rule that recognized the validity of such contracts would lead. And, while these men acted from honest motives, yet, when they contracted for the assignment of this claim against the city, they entered into a contract which the law as a matter of public policy will not enforce. The judgment of the chancellor was therefore in our opinion right, and his decree is affirmed.
McCulloch, J., dissenting. | [
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McCueeoch, J.
The only question involved in this appeal is whether a person of unsound mind, whose lands have' been sold to the State under decree enforcing the payment of overdue taxes pursuant to the act of March 12, 1881, and which have been subsequently sold by the State to an individual, can redeem said lands from sale.
It was decided by this court in Railway v. Burke, 53 Ark. 430, that the right of an infant, whose lands had been sold to an individual under such decree, was limited to two years from date of sale, the same period allowed to adults in making such redemption. Section 11 of the act of March 12, 1881, provided that lands sold under such decrees might'be redeemed from the purchaser “at any time within the period fixed by law for the redemption of lands sold for taxes,” and the court construed this provision, in connection with another section of the act directing the commissioner of the court to execute to the purchaser a deed “conveying the land bought by him in fee simple” as soon as the period of redemption prescribed in the act should expire, to limit the right of redemption of persons under disability to the same period.
Section 13 of the act provides that‘in case of a sale to the State the owner might redeem within the time prescribed in section 11 of the act, by making payment, etc., to the State Treasurer.
It follows that,„ so far as the act of March 12, 1881, is concerned, the time for redemption provided therein from sale to the State under decrees is the same as from sales to individuals, and that the right of redemption of persons under disability at the time of the sale is limited to two years, the time allowed to adults not under disability.
By the terms of another statute then in force persons under disability were allowed to redeem lands forfeited to the State for nonpayment of taxes, but the right expired by express language of the statute when the State disposed of the lands. Act March 14, 1879.
It is contended that the sale under the decree was never confirmed by the court, but this question was not raised by the pleadings, and can not be.raised here for the first time. The complaint attacked the validity of the decree in the overdue tax suit on other grounds; but the attack was abandoned, and the plaintiff relied entirely on the right to redeem from the sale.
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Wood, J.,
(after stating the facts.) The complaint and response to the motion to make more definite and certain, which was treated .as an amendment to the complaint, stated a cause of action. The complaints which failed to state a cause of action for failing to furnish cars iin the case of St. Louis, I. M. & S. Ry. Co. v. Carl-Lee, 69 Ark. 584, and St. Louis, I. M. & S. Ry. Co. v. Moss, 75 Ark. 66, differ in essential respects from the original complaint-in this case. Here the allegations is that “the plaintiff had placed a lot of elm sawlogs along defendant’s track for shipment, and had made often and repeated demands of defendant for cars upon which to load and ship out logs.” In the cases supra, while substantially the same allegations were made as to the demand for cars for shipment, it is specifically alleged that the demand was made upon certain agents of the company, naming them, and there was no allegation that these agents had authority to furnish cars, or that it was within the scope of their employment to furnish cars, or to receive notice of the demand for cars on the company. In such cases we held that there was no allegation of a tender for shipment or a demand for cars upon an agent authorized to furnish same. But here the allegation is not only that the logs were placed for shipment along the tracks, but that demand was made for cars upon the defendant. The pleader did not undertake to. specify the particular agents upon whom demand was made. If he had done so, it would nave been incumbent upon him to have also alleged that receiving the notice for or furnishing the cars was within the scope of their employment. But here the general allegation that demand was made of the defendant, coupled with the allegation that the logs were placed along the tracks of the defendant at Crawfordsville for shipment, was sufficient to show a tender for shipment and á demand upon the appellant, whose duty it was to furnish cars. An allegation that plaintiff made demand of defendant was sufficient to admit proof as to the agent on whom demand was made, and that such agent had authority to furnish cars. But the case at bar differs essentially also from the cases named supra in that in both those cases the railway company stood on its demurrer to the complaint. Here the appellant answered over and went to trial on the merits. Even if the complaint as amended was still defective, the appellant’s answer, taken in connection with the allegations of the complaint, tendered an issue before the jury as to whether or not appellant negligently failed to furnish cars which resulted in appellee’s injury and damage as set forth in the complaint. Having gone to trial on the merits of this issue upon proofs introduced without objection, which supplied any defects in the complaint, the error, if any, in the court’s ruling was cured after verdict. Sevier v. Holliday, 2 Ark. 512; Davis v. Goodman, 62 Ark. 262, and other cases collated in 2 Crawford’s Digest, p. 714, “k.”
The whole case having been developed on the proof, the only questions here are those presented by the assignments of error in the rulings of the court relating to the admission of testimony, the declarations of law, and the sufficiency of the evidence to support the verdict.
Second. The complaint, after alleging that appellee placed logs along appellant’s track ,for shipment, and its repeated demands upon appellant for cars on which to “load and ship same,” and that the appellant neglected and carelessly refused to furnish a sufficient number of cars, etc., proceeds to charge: “That by reason of defendant’s refusal to furnish said cars said logs and timber deteriorated in value, from exposure to the weather and from rot, to the amount of ninety per cent, of its value, or a total sum of $6,377.60; that, by reason of the negligent refusal of the defendant company to so furnish cars as aforesaid, this plaintiff is damaged, etc.” These allegations were sufficient to charge that the negligence of the company in failing to furnish cars was the proximate cause of appellee’s injury. The testimony also was sufficient to warrant the jury in finding that the delay of appellant to furnish cars was the direct cause of the damage sustained by the appellee. Appellant contends that these allegations of the complaint show that “exposure to the weather” was the proximate cause of the injury, and that the complaint therefore fails to state a cause of action. The case of Railway Company v. Neel, 50 Ark. 279, is cited and quoted from to support this contention. ■ But the facts in that case differentiate it from this. That was a suit for. damages from alleged breach of contract to ship cotton. But the proof showed in that case, and the court held, that the damage to the cotton unshipped was not caused by a breach of contract to ship, but was caused by “exposure of the cotton to mud and rain.” The court said: “If the cotton had been properly cared for, the delay would not have caused any deterioration in quality, and the market price is shown to have advanced pending the delay. The only injury in . proof came from the failure to properly care for the property.” But in this case the injury in proof did not come from the failure of appellee to properly care-for the property. On the contrary, the jury were warranted in finding that the logs were properly placed and properly handled, that appellee tendered the logs to appellant for shipment, and took such care for their -preservation during the delay of the railway company to furnish transportation as ordinary prudence in the handling of such property in the usual course of -business demanded. It must be taken as a matter of common knowledge that cotton and sawlogs differ in their inherent qualities. Cotton can be stored and thus protected from the elements, and a short delay in its transportation would not cause decay and a consequent depreciation in value. It was shown here that the only value of the elm timber consisted in its use for hoops, and to be valuable it had to be manufactured into these before the logs decayed. After the elm logs had been cut for a' period of three months they would begin to turn sour at the ends, become brittle, worms would infest them, the bark would peel off, and the process of decay go on. Hence any delay in shipment which prevented their manufacture into hoops before this process of decay began would -directly contribute to -and be the proximate cause -of any deterioration in value of the timber. If shipped promptly, it could be manufactured into hoops before the decay produced by delay took place. The logs in this suit were cut during the months of September, October, November and December, 1903. The logs cu-t during this period would keep for a period of three months. Decay in the logs unshipped began to be noticed about the first of March, 1904, and on May 1, 1904, there were about 312,000 feet of elm logs left on the ground at the station of Crawfordsville for -injury .to which on -account of delay in -shipment, caused by the alleged failure of appellant to furnish cars, this suit was/brought.
This court in recent -cases has declared the duty of common carriers, by the common law and by statute, to furnish transportation facilities for such goods as they undertake to carry to all who may apply for same in the regular and expected course of business. Where there is an unprecedented and unexpected press of business, such as the carrier could not by ordinary prudence in the usual course of the traffic have contemplated, he is excused for not having' anticipated and provided against such extraordinary conditions. St. Louis S. W. Ry. Co. v. Clay County Gin Co., 77 Ark. 357; Choctaw, Oklahoma & Gulf R. Co. v. State, 73 Ark. 373. See also Little Rock & Pt. S. Ry. Co. v. Oppenheimer, 64 Ark. 271; Little Rock & Pt. S. Ry. Co. v. Conatser, 61 Ark. 562. See also Hutch, on Car. § 292; 4 Elliott, Railroads, § 1470; 6 Cyc. 372, and cases cited in note.
The court declared the law bearing, on these questions in instructions numbered four., five and six given at appellant’s request. There was evidence to sustain the verdict, and the verdict was not excessive. The evidence tends to show that ¿here'was on the ground at Crawfordsville, May I, 1904, 312,000 feet of elm logs. At this time decay had already commenced. As we understand the pleadings and proof, appellee contends that it was the failure of appellant to furnish cars for this 312.000 feet before the decay set in .that caused its damage. It would have taken 78 more cars than appellee received up to May 1, 1904, to have shipped these logs, for a carload was 4.000 feet. The proof showed that the logs at Crawfordsville, undamaged, were worth $10 per thousand feet or $3,120. The jury might have found from the .evidence that the logs were damaged on account of the delay in shipment to the extent of .80 per -cent, of their value, or $2,496, the amount of the verdict.
Third. There was no prejudicial error in submitting to the jury the question as to when the title of.the logs in controversy passed under the contract between appellee, and Smith and Thomas. The verdict of the jury was in accord with the proper construction of the contract. The purpose of the contract, as shown by the proof, was to enable appellee to control the entire output of elm logs cut by Thomas and Smith or controlled by them. Under the written agreement the court should have told the jury that the title to the elm logs that should be got out by Smith and Thomas passed to .appellee on the day the written agreement was executed, September 21, 1903. It was a present sale of the timber with an agreement for future services concerning same. Lynch v. Daggett, 62 Ark. 592; Anderson-Tulley Co. v. Rozelle, 68 Ark. 308. Wherever the logs were cut within fifty-miles of Wynne by Thomas and Smith, they belonged to appellee. But Smith and Thomas were to haul and load them on the cars. But the writing was no more than a memorandum, as shown by the evidence aliunde. It did not contain all the terms of the contract -between the parties. The evidence showed that there was an agreement as to the dimensions of the logs, that they were to be scaled weekly, stamped, and when this was done $7 per thous- and feet was to be advanced on them. The contract is silent as to these things, yet they were essential features of the contract as a whole, and show that the writing did not purport to be, and was not, the whole contract. The court therefore did not err in permitting oral evidence, of what the entire contract was. Nothing in the oral proof contravened the terms of the writing, but only showed that it did not contain all the provisions of the contract between the parties. If it was error to prove the custom of the trade as to when the title to logs passed, it was not an error of which appellant can complain; for, as we view the writing, the jury construed it as the court must have done, had it not submitted the question to them.
Fourth. We find no prejudicial error in the refusal of the court to give appellant’s eighth and ninth prayers as asked, and in giving them as modified. The substitution of the words “logs less liable to damage” for the words “newer and fresher logs and timber” in the eighth prayer conveyed the same idea intended by the words in the prayer as asked, but in more appropriate terms. The addition of the words, “but such method and order of loading, if it occurred, would not bar a recovery unless plaintiff had reason to believe that defendant would not furnish a sufficient number of cars to remove all the logs before damage thereto would occur,” was not prejudicial.
Witness Coleman testified that the people at Crawfordsville had a number of logs “piled along at a certain skidway, and when they were loading they would take up the logs that were handy right next to the skidway and then haul again and bring the logs next to the skidway and load these, and in that way cause the fresh logs to be hauled out first.” But tire witness, although asked, does not identify appellee’s agents as the- people who were loading in that way. The positive proof on the part of appellee was to the effect that the logs were loaded in the order in which they were hauled, or in such manner as to ship out first the logs most liable to injury. Moreover, there was abundant evidence from which the jury might have found that appellant, by its oft-repeated promise to furnish cars, gave appellee reason to believe that no injury to his timber was to be apprehended frdm a delay in its shipment. Substituting the words “for the timber so dam aged” for the word “therefor” in the ninth prayer did.not change its meaning. There was no error in the court’s charge. It fully presented the law applicable to the facts proved.
Fifth. While the evidence tended to show that appellant had a rule requiring demands for cars to be in writing, and that appellee did not observe this rule, the testimony also tends to show that the observance of this rule on the part of appellee was waived by appellant. No written demands were insisted upon by appellant. Moreover, there is no assignment of error in the motion for new trial for failure of .appellee to observe the rules of appellant requiring written demand for cars.
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Battle, J.
On the 25th of August, 1902, Mary C. Culver instituted this suit against the Culver Lumber & Manufacturing Company in the Lawrence Circuit Court, on the equity side, which was afterwards transferred to the Lawrence Chancery Court, it having been created after the institution of this suit.
Plaintiff alleged in her complaint, substantially, as follows: She is a married woman and a resident of the State of Missouri. The defendant is a corporation, organized under the laws of the State of Missouri. Its capital stock amounts to $300,000, divided into shares of $100 each, of which she owns and holds as her separate estate 1725 shares, which is much more than one-half of the stock. It has been engaged in the business of sawing and manufacturing lumber and the selling of the same, and at the commencement of this suit was so engaged, with its mills at or near Sedgwick, in Lawrence County, in this State. It established, in 1902, in the State of Arkansas a'planing mill with expensive machinery and facilities for making and furnishing the trade with all kinds of dressed lumber, sash, doors, mill and finishing work; and in the course of its business acquired considerable property, both real and personal; exceeding in value $500,000, and contracted an indebtedness in about the sum of $250,000. At a meeting of the board of directors, held in January, 1902, H. A. Culver was selected and appointed general manager of the business of the defendant, Elias W. Culver was elected president, Edgar W. Culver, treasurer, and Joe E. Culver, secretary. In March, 1902, the president, secretary and treasurer, without authority from the board of direc tors, purchased real estate, and recklessly, extravagantly and unnecessarily expended about $5,000 in building offices, and Edgar W. and Joe E. Culver, respectively, secretary and treasurer, have so extravagantly and recklessly conducted the business of the company that it became largely involved, and by such recklessness and extravagance alarmed the large creditors of the company, and caused them to induce the president to make an agreement in writing in and by which J. H. Jarrett and Frank I. Buckingham, of moderate means, -were to be placed without bond, in the absolute charge and control of the entire business of the defendant yielding about $40,000 to $60,000 a month. Such managers are inexperienced in the management of similar business, and, if allowed to control, will in a short time cause great loss to defendant, if it does not render it bankrupt, and will imperil and wreck it financially. They have already taken possession of all the property at Kansas City, Missouri, and Kansas City, Kansas, “and refuse to act or conduct the business of the defendant under the directions or proper orders of its officers and managers, but that, instead, they are arbitrarily refusing to permit its officers, directors and legal managers to have any voice or control in the management of its business, and when its manager has drawn checks to pay for material used in the conduct of its business, they have refused to pay or permit the payment thereof, and are threatening, under and in pursuance of the alleged contract, to take charge of the business and property in the State of Arkansas, and hold and operate the same to the exclusion of the defendant or its board of directors or managing officers.” Plaintiff “has requested the board of directors and officers of the defendant to bring suit to set aside said contract and take management of such business again, but they have refused and neglected to do so.”
Plaintiff further stated that at the mills of defendant in this State, and elsewhere, “are employed about four hundred persons, and that there is now due to them in small sums, respectively, about $5,000, and that there is due on pay days, twice each month, to said hands about $2,000 or $3,000 each pay day, and that, being a foreign corporation, said sundry individual employees can attach the property of defendant to satisfy their claims and costs incident thereto, and that said proceedings would entail a large amount of costs and would wreck said property; that the employees and creditors are threatening to attach, and such attachment would cause a large amount of defendant’s pi-operty to be sacrificed and lost, and that, for the protection of all creditors and the rights of the plaintiff and other stockholders, it is necessary that said property in this State be held intact as a manufacturing plant, at least until the product belonging to the defendant can be manufactured and disposed of;” and that if this is done its debts can be paid in a short time.
Plaintiff asked the court, first, to “issue an order restraining and enjoining all óf the officers in this State of the defendant, or any one acting for them in the State of Arkansas, from removing, selling, mortgaging or otherwise disposing of the property, real or personal, in this State, and also restraining them and enjoining all persons from interfering in this State with the business, assets, property or affairs of the defendant; second, that the court appoint a suitable person as receiver to take charge and control of all the property of defendant within the State of Arkansas, with the power to manage, control and operate it, if necessary, under the orders of this court, as may from time to time be made in the premises; and that the cause be referred to a master in chancery, who shall by appropriate orders be authorized to hear, determine and report to the court all indebtedness due by defendant, and that out of the proceeds arising from the receivership the receiver be directed by appropriate orders from this court to pay the costs and^ expenses of this receivership, next all debts that may be adjudged and found due to the creditors of the defendant, and that the remainder, if any, to the several stockholders as their rights may appear.” 1
On the 25th day of August, 1902, in the vacation of court, a receiver was appointed, and a temporary injunction was granted according to the prayer of the complaint. H. L. Ponder was the receiver, and as such he took charge and control of the assets of the defendant in this State.
No answer to the complaint was ever filed by the defendant
On the 5th day of March, 1904, the National Bank of Comr merce of Kansas City, Mo., Traders’ Bank of Kansas City and Holland Bank of Springfield, Missouri, filed a petition in this suit, and represented that the defendant was indebted to each of them in a large sum of money; that the intention of the plaintiff, acting in collusion with other stockholders and officers of the defendant, was to prevent its creditors from taking judgment against it; that Ponder, the receiver, had no experience in the lumber business; that the business of the company, under his management, has been conducted at a loss; that the expenses incurred under his management have been enormous and exceed the profits of the business; and that nothing had been paid under his management on théir claims; and they asked that the property be sold to pay the debts.
Within a few days after the filing of the petition of the creditors, fifty-four other creditors joined them in asking for the sale of the property.
On the 31st day of May, 1904, the plaintiff and defendant answered and denied the allegations in the petition of creditors, and asked that their motion be overruled, and the administration of the receiver be continued under the orders of the court.
On the 13th day of July, 1904, upon the final hearing of the cause, after hearing the evidence adduced, the court found the defendant insolvent, and its assets trust funds due to its creditors, and appointed Ponder master to audit their claims, and directed them to present the same to him for allowance, and gave directions to'the master as to his mode of procedure; and ordered that the property of the defendant in this State' be sold, and appointed Ponder commissioner for that purpose, and gave him directions as to the time, place and manner of the sale, and ordered how the proceeds of the sale should be disposed of.
On the 9th day of September, 1904, the commissioner reported that he caused the property, of defendant to be advertised for sale, arid also a notice that bids would be received for the property as a whole, prior to September 1, 1904, and that in pursuance of the last mentioned notice he had received those bids, the highest of which was the bid of the Lesser-Goldman Cotton Company, the sum of $85.000; and on the 23d of September, 1904, the master reported the claims, amounting to $185,253.90, which had been heard, examined, investigated, and allowed by him against the defendant, and the court approved the report, and allowed the claims, and ordered and decreed that, upon final distribution, the assets in the hands of the receiver shall be paid upon such claims, and on the same day rejected the bid, and ordered that the commissioner sell all the property of the defendant as in the former decree provided, “except that, after having offered the property as provided in the decree, he then shall offer the whole of it for sale in bulk, and if the same shall bring the sum of $2,500 in excess of the total aggregate of bids made for the property as provided by the decree, then the property shall be sold to the highest bidder for the property in bulk;” the sale to take place on the 31st day of October, 1904, between the hours prescribed by law for judicial sales. On the first day of December, 1904, the commissioner reported that the property was offered for sale on that day, and purchased by Lesser-Goldman Cotton Company at the price of $100,uuo, it being the highest and best bidder, and its bid being more than $2,500 m excess of the aggregate amount of the bids made for the property in parcels, and it having complied with the terms of the sale.
On the 24th day of March, 1905, the 'defendant, and Ed. W. Culver and Newton Mills, stockholders of defendant, moved the court to discharge the receiver and require him to deliver to defendant all money, choses in action and other property now m his hands, or under his control, or which had been received by him at any time since his appointment, because the appointment of the receiver is void, it not being shown by the complaint or other pleading, or by any evidence, that the court had any jurisdiction of the subject-matter of this suit, or any right or power to appoint a receiver in this cause. And at the same time filed exceptions to the commissioner’s report of sale, in part, as follows: (1) Because the sale was not made within the hours prescribed for judicial sales. . (2) < Because of the circulation of a report on the day and at the place of sale that the title to the property sold was defective. (3) Because the price for which the property sold was grossly inadequate.
On June 3, 1905, the plaintiff moved the court to permit her to take a nonsuit in this suit without prejudice.
Evidence was adduced and heard upon the motion to discharge the receiver and the exceptions to the report of sale by the commissioner, filed by the defendant, and by Ed. W. Culver and Newton Mills. Certified copies' of the proceedings of the circuit court of Jackson County, in the State of Missouri, in Mary C. Culver against Culver Lumber & Manufacturing Company, and of the proceeding of the district court of Wyandotte County, in the State of ’Kansas, in Mary C. Culver and H. A. Culver against the Culver Lumber & Manufacturing Company were a part of the evidence. From these transcripts the following appears : In the two suits complaints similar to the one in this case were filed on the 25th day of August, 1902. In the first suit, brought in the circuit court of Jackson County, in the State of Missouri, the plaintiff asked that the corporation, the Culver Lumber & Manufacturing Company, be dissolved, and in both suits the plaintiffs asked that a receiver be appointed to take possession of all the defendant’s property in the State in which he was appointed; that its assets be converted into cash,"and, after the payment of the expenses and costs, the debts of the corporation be paid, and the remainder be distributed among the stockholders. In both cases a receiver was appointed, and he qualified and entered upon the discharge of his duties. In the case brought in the circuit court of Jackson County, Missouri, the creditors of the corporation proved their claims, which were allowed by the court; the property of the corporation in the State of Missouri was converted into money and paid pro rata upon the claims of creditors; and the receiver was discharged. In the other case the creditors proved their claims, which the court allowed, and the receiver was ordered to convert the property into money for distribution among them, which does not appear from the transcript to have been done.
So far as appears from the record in this case, M. C. Culver, Elias W. Culver, her husband, Ed. W. Culver, H. A. Culver, and J. E. Culver, her sons, and Newton Mills v ere the stockholders of the defendant corporation. Elias W. Culver was its president, Ed. W. Culver, treasurer and H. A. Culver, manager. For twelve or sixteen months after the appointment of Ponder receiver, H. A. Culver was the receiver’s manager of the property in his hands, and after that Elias W. Culver filled that place. H. A. Culver operated a mill under a lease from the receiver after he ceased to be a manager. M. C. Culver, Elias W. Culver, H. A. Culver and Newton Mills proved claims against the defendant in this suit; and Mills offered a bid for the property at the sale which was rejected by the court. The commissioner commenced selling the property at ten o’clock á. in., and continued selling, with the exception of an hour at noon, until it was disposed of, which was after five o’clock in the evening.
The value of the property was variously estimated by witnesses. M. La Fore, who bid at the sale for the property $97,000, and bid rio more because he heard that the title was defective, says it was worth $250,000; H. L. Ponder, the receiver, says it sold at a fair price; T. J. Shannon, $200,000, but did not believe it would sell for that; H. A. Culver says it was worth $300,000, but he consented to the sale at $85,000, and sought to have the chancellor approve it at chambers; E. J. Mason and S. C. Dowell thought it was worth $100,000.
On the'3d day of June, 1905, the court overruled the motion of the defendants, Ed. W. Culver, and Newton Mills to discharge the receiver-and the exceptions to' the commissioner's report of ■sale, and the motion of the-plaintiff for permission to take a non-suit.
The object of this suit and the two suits in the States of Missouri and Kansas was to wind up the business of the defendant company — t-o ascertain its indebtedness, convert its assets into money and pay its debts with the same so far as it will extend. This relief was asked in all three of the suits. It had property in three States, and for that reason brought the three suits.
; Mrs. M. C. Culver was the plaintiff in the three suits. She ' owned the majority of the shares of the capital stock. No answer was filed in any of the cases. Forty-three of the principal creditors, intervening, asked- that the' assets of the company be sold, and-the discharge of the receiver. Plaintiff and defendant answered their complaint or petition, and insisted on the continuance of the- administration of the -receiver. For about two years and seven months'there was no opposition to the suit. Four of the six stockholders proved claims against the defendant in this suit, and they owned in the aggregate 2979 shares of the 3,000 shares of -the capital stock. The president and general manager of the company aided the'receiver and participated in his administration of its assets.. In fact, the record in this court indicates that all 'the stockholders and creditors consented to and approved the complaint and -the proceedings of the court until after the creditors had proved their claims and the final decrees had been made and the property sold thereunder, and the commissioner had reported the sale. Under such circumstances, had the court the right to wind up the affairs of the defendant and close its business? Mr. Justice Bigelow, speaking for the court in Treadwell v. Salisbury Manufacturing Co., 7 Gray, 393, said: “We entertain no doubt of the right of a corporation, established solely for trading and manufacturing purposes, by a vote of the majority of their stockholders, to wind up their affairs and close their business, if in the exercise of a sound discretion they deem it expedient so to do. At common law, the right of corporations, acting by a majority of their stockholders, to sell their property is absolute, and is not limited as to objects, circumstances, or quantity. Angell & Ames on Corp. § 127 et seq.; 2 Kent’s Com. 6th Ed. 280; Mayor, etc., of Colchester v. Lowton, 1 Ves. & B. 226, 240, 244; Binney’s Case, 2 Bland, 142. To this general rule there are many exceptions, arising from the nature of particular corporations, the purposes for which they were created, and the duties and liabilities imposed upon them by their charters. Corporations established for objects quasi public, such as railway, canal, and turnpike corporations, to which the right of eminent domain and other large privileges are granted in order to enable them to accomodate the public, may fall within the exception; as also charitable and religious bodies, in the administration of w;hose affairs the community, or some portion of it, has an interest to see that their corporate duties are properly discharged. Such corporations may, perhaps, be restrained from alienating their property, and compelled to appropriate it to specific uses, by mandamus or other proper process. But it is not so with corporations of a private character, established solely for trading and manufacturing purposes. Neither the public nor the Legislature have any direct interest in their business or management. These are committed solely to .the stockholders, who have a pecuniary stake in the proper conduct of their affairs. By accepting a charter they do not undertake to carry on the business for which they are incorporated indefinitely, and without any regard to the condition of their corporate property. Public policy does not require them to go on at a loss. On the contrary, it would, seem very clearly for the public welfare, as well as for the interest of the stockholders, that they should cease to transact business as soon as, in the exercise of a sound judgment, it is found that it can not be prudently continued. If this be not so, we do not see that any limit could be put to the business of a trading corporation, short of the entire loss or destruction of the corporate property. The stockholders could be compelled to carry it on until it came to actual insolvency. Such a doctrine is without any support in reason or authority.” See to the same effect Price v. Holcomb, 89 Iowa, 135, 136; Merchants & Planters Line v. Waganer, 71 Ala. 581, 587; Berry v. Broach, 65 Miss. 450; Miner v. Belle Isle Ice Co., 93 Mich. 97; 2 Cook on Corporations, § 629; 1 Morawetz on Corporations, § § 413, 284, 285; 2 Beach on Private Corporations, § 781; Taylor on Private Corporations, § 431; Clark on Corporations, p. 445; 5 Thompson on Corporations. § 6685.
The allegations of the complaint are admitted by the failure of the defendant to answer the same. Among other things plaintiff alleges therein that the president, secretary, and treasurer of the company, without the authority of the board of directors, have purchased real estate, and recklessly and extravagently and unnecessarily expended about $5,000 in buildings thereon, and the secretary and treasurer have so carelessly, recklessly and extravagently operated the business of the defendant at Kansas City, Kansas, as to involve the defendant in the indebtedness of $30,000, and have applied a large amount of money and property belonging to the corporation to their own personal use and benefit; that such recklessness and extravagance alarmed the large creditors, and caused them to become so urgent in their demands as to induce the president to enter into an agreement in writing -in and by which J. H. Jarrett and Frank I. Buckingham, both of whom are inexperienced in the lumber business, were to be placed in the absolute charge and control of the entire business of the defendant, including the collection of money, drawing- checks, the sale of defendant’s output or product, and everything else that could be done by the defendant through its duly authorized officers; that under this agreement they have taken possession of all the property of the defendant in Kansas and Missouri and are arbitrarily refusing to permit the officers, directors, and legal managers of the corporation to have any control in the management of its business, which by tlieir management, wil-1 be greatly imperilled and entirely wrecked; that she has requested its ' directors and officers to bring suit to set aside the contract and take the management of its business, and they refused so to do; that the defendant •is a foreign corporation, and its employees and creditors are threatening to attach its property in this State, and thereby to sacrifice a large amount of its property; and that its indebtedness amounts to about $250,000. From all of which it appears that the corporation is seriously threatened with insolvency by the frauds and mismanagement of its officers; and the evidence in this case tends strongly to corroborate this conclusion, if it does not prove it. Under such circumstance, it seems, it would be the exercise of sound judgment to wind up the affairs • and close the business of the corporation.
Plaintiff owns a majority of the shares of the stock, and is entitled to control the business of the corporation. Pratt v. Jewett, 9 Gray, 34; Von Schmidt v. Huntington, 1 Cal. 55, 73; Miner v. Belle Isle Ice Co., 93 Mich. 97. There is no reason why she should not be entitled to protect her interest in the same manner as a majority in number of the stockholders could do if they owned it. The corporation consented to her doing so, and the stockholders acquiesced, until it was too late to withdraw consent. Forty-three creditors, representing at least $125,206.73 of the $185,253.90 proved against the corporation, join her in asking, for the relief. In doing so, they asked a court of equity to grant equitable relief over a subject-matter coming within its jurisdiction. Creditors do not, and stockholders have no right to, complain.
At the time of the institution of this suit the property of the corporation was in a precarious condition. It was threatened with attachment by creditors, which begun, it being a foreign corporation and considerably in debt, the probability is all the creditors, for their own protection would have been forced to attach. In that event the probable result would have been the sacrifice of its property and hopeless insolvency. Its officers were recklessly and extravagantly managing its business affairs, involving it in debt, and converting its property to their own use. Its board of directors, although requested to do so, refused to interfere. The interposition of a court of equity and the appointment of a re ceiver were necessary and demanded for the protection of stockholders and creditors. Sage v. Memphis & Little Rock Railroad Company, 125 U. S. pp. 361, 375; Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. 434, 458; Receivers of Corporations (2 Ed.) by Gluck and Becker, § 9, and cases cited; Beale on. Foreign Corporations, § 791; Alderson on Receivers, § 362; High on Receivers, § 306, and note.
Courts of equity have no right or authority to dissolve a foreign corporation, or wind up its business, but they may, in cases like this, take charge of its property within the jurisdiction of the court, and enforce the rights of creditors and stockholders in respect to the same, where it can be done by the exercise of equity jurisdiction. As the affairs and business of the corporation in the State of Missouri, its domicil, have been wound up, and, the receiver appointed for that purpose discharged, and creditors have proved their claims here, it will not be necessary to remit any part of the assets in this State to that State, but the same may be fully disposed of here according to the respective rights of creditors and stockholders therein.
The trial court did not err in refusing to allow the plaintiff to take a nonsuit. At the time she asked for the privilege to do so, creditors had intervened, a final decree had been rendered, and under it the property involved had been sold; and creditors had proved their claims against the corporation. Other parties had acquired rights, and she no longer had power to control the suit. 1 Daniell’s Chancery Pleading & Practice (6 Ed.), marginal pages, 793, 794, and cases cited. Cromwell v. MacLean, 123 N. Y. 474.
The motion to discharge . the receiver was properly overruled; and. the court committed no reversible error in overruling the exceptions to the commissioner’s report of sale. The sale commenced within the hours prescribed by the decree of the court. Every one present had the opportunity to bid, and there is no evidence that any one lost a bid by continuing the sale beyond the time prescribed. There is no evidence that the reports that the title to some of the lands sold was defective were false and therefore affected the sale. There was a contrariety of opinion as to the value of the land. Three witnesses testified that it sold for its value; and three valued it from $200,000 to $300,000, and facts proved weakened their evidence. The chancellor was the judge of the weight of the evidence and the credibility of witnesses, and -the evidence does- not show -that he erred in hjs judgment. The court did not abuse its discretion in approving the sale. See George v. Norwood, 77 Ark. 216; Johnson v. Campbell, 52 Ark. 316; Farnsworth v. Hoover, 66 Ark. 375, 376; Waldo v. Thweatt, 64 Ark. 126; Colonial & United States Mortgage Co. v. Sweet, 65 Ark. 152.
Decree affirmed. | [
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McCueeoch, J.
Appellees, Driver and McVeigh, instituted an action of replevin in the circuit court of Mississippi County against appellants Woodburn and Pope to recover possession of a lot of personal property (sawmill machinery) claimed under a chattel mortgage executed by the latter to the Bensack Dumber Company, and by that company transferred to appellees. An order of delivery was duly issued and served, and the defendants executed a retaining bond 'in statutory form with their co-appellants, Stewart, King, Crawford, Davis and Simpson, as sureties.
The defendants filed their answer and cross-complaint, denying any indebtedness under the mortgage, and alleging that the Bensack Dumber Company was indebted to them in a large sum in excess of the mortgage debt, and that the transfer of the mortgage to Driver & McVeigh was fraudulent. On their motion the Bensack Dumber Company was brought in as a party, and the cause was transferred to the chancery court. That court, upon the pleadings and proof, rendered a final decree in favor of Driver & McVeigh and the Bensack Dumber Company against said defendants and their said sureties on retaining bond for $1,851.59, the amount of the note and interest secured by said mortgage, together with costs of suit, and declared the same to be a lien on the property described in the mortgage. The commissioner of the court was ordered to sell said property for the satisfaction of the decree.
At the next term said sureties presented -to the court their petition to have the decree against them set aside, and the prayer of the petition was by the court denied. An appeal was granted by the clerk of this court within a year from the date of the original decree, and this appeal brings up the whole record.
The question presented by the appeal is whether or not the chancellor erred in rendering a decree against the sureties on the retaining bond of the defendants for the amount of the debt due to the plaintiffs by the defendants.
The action was instituted at law for the recovery of personal property, and the statute provides that in all such actions “where the defendant has given a delivery bond, * * * the court or jury trying the cause may not only render judgment against the defendant for the recovery of the property, or its value, together with all damages sustained by the detention thereof, but also, upon motion of the plaintiff, render judgment against the sureties upon said delivery bond for the value of the property and also all damages as aforesaid, as the same may be found and determined by the court or jury trying said cause.” Kirby’s Digest, § 6870.
The liability of the sureties was not enlarged by the transfer of the case to the chancery court. They were not parties to the action except for the purposes of rendering the summary judgment against them as provided by the statute, and their rights were not affected by the transfer of the case. The chancery court could render against them only such a j udgment as the statute authorizes, which is for the return of the property, or its value, and damages for detention thereof.
It has been held by this court in the case of Cathey v. Bowen, 70 Ark. 348,. that a judgment against the defendant in replevin need not be in the alternative for the property or its value, but may be for its value, where the record shows that a judgment for delivery could not be executed. It does not appear, however, from the record in this case that the delivery of the property could not have been had. On the contrary, the decreé declared á lien on the property, and directed the commissioner to sell it for satisfaction of the debt. It was delivered to the commissioner, and by him sold. The court made no finding as to the value of the property, nor of any damages for detention thereof, but rendered a decree against the sureties for the amount of the indebtedness secured by the chattel mortgage. This was error.
' The transcript does not contain the evidence upon which the decree was based, and counsel for appellees invoke the rule that this court must indulge the presumption that the evidence was sufficient to warrant the decree. Carpenter v. Ellenbrook, 58 Ark. 134; Simpson v. Talbot, 72 Ark. 185.
The decree in this case is inconsistent and erroneous on its face, and it is not aided by any presumption as to the sufficiency of the evidence. It appears from the face of the decree that the property could be returned, and other parts of the record show that it was delivered to the commissioner and sold by him. No damages for detention were assessed by the court nor value of the property.
The decree against the sureties on the bond for the amount of defendant’s debt to plaintiffs is reversed, and the cause is remanded with directions to enter a decree against them in accordance with this opinion. | [
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Battue, J.
I. J. Bagley, as administrator of M. B. Rhea, deceased, recovered a judgment against W. F. Plennessee, sued out an execution thereon, and caused the sheriff, to whom it was directed, to levy the same upon certain lands of the defendant. The lands were sold to satisfy the execution on the 12th day of December, 1900. W. E. Beloate caused the sheriff to convey the lands to him. Mose Hennessee brought this suit against Beloate, alleging that he, plaintiff, purchased the lands at such sale, and that the defendant by false misrepresentations and statements caused the sheriff to convey the same to him, and asked that the defendant be declared holding the title to the lands in trust for the plaintiff, and for other proper relief.
The evidence adduced at the hearing of this cause shows that the defendant purchased the lands at the sale under execution for another. He does not claim to have purchased for himself, or to have paid the purchase price with his own money, but he says he purchased for Mrs. Hennessee, the wife of W. F. Hennessee, and paid for the same with money furnished by her husband. Other witnesses testify that he purchased for Mose Hennessee, the son of W. F. Hennessee. The court found from the evidence adduced at the hearing of the cause that he purchased for plaintiff pursuant to an agreement with him, and paid the amount bid with money furnished by Mose for that purpose, and decreed that Beloate, the defendant, be divested of the title to the lands, and that the same be vested in the plaintiff; and the defendant appealed.
The preponderance of the evidence heard by the court clearly and satisfactorily sustains its findings. The lands were purchased for the appellee; and he paid the purchase money; and upon every principle of equity governing such cases he is entitled to the lands. Grayson v. Bowlin, 70 Ark. 145; Camden v. Bennett, 64 Ark. 155; Humphreys v. Butler, 51 Ark. 351; Ferguson v. Williamson, 20 Ark. 272; Underhill v. Howard, 20 Ark. 663; Watson v. Murray, 54 Ark. 499.
Decree affirmed. | [
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Wood, J.
(after stating the facts.) It is the duty of railroads as common carriers of passengers to exercise ordinary care to provide their stations and cars with reasonable appointments for the safety and essential comfort of their passengers. St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, and authorities cited.
The particulars of alleged negligence to which the complaint directs inquiry are: “in not causing to be kept down in its place the trap door over the steps leading into the said car, and in not keeping closed the upright door for the entrance from the ground into said car by means of steps attached thereto, and in keeping said trap door open and said upright door open, and in failing to provide lights on or about the front platform of said car and steps.”
All these allegations of negligence, in the opinion of the majority of the judges, are without evidence to sustain them. The uncontradicted proof that the trap doors to the vestibule coaches were raised in order to enable the brakeman to discharge their duties in the switching of the cars, and that it was customary to raise them in cities the size of Eort Scott should have elicited a verdict in its favor upon all the allegations of negligence except the failure to provide lights on or about the front platform of the car and steps. The proof showed that in cities the size of Fort Scott it was customary to lock the water closets to the coaches. That being true, it was absolutely essential to the comfort of the passengers that they should not be deprived of egress and ingress from and into the cars. The lifting of the trap doors and opening the upright doors to the vestibules, which are alleged as negligent acts, not'only show the absence of any negligence, but the exercise of proper care for the safety and comfort of passengers. For otherwise the passengers, during the time the coach was detained for transfer, would be imprisoned with no opportunity to answer just such a call as appellee had in this case, or any other emergency that the necessities of the situation might demand. This, aside from the requirements of the switching service, shows that these allegations of negligence were groundless.
The majority of the court are also of the opinion that the verdict should have been in favor of appellant upon the undisputed facts on the alleged negligence “in failing to provide lights on or about the front platform of the said car and steps.”
The -testimony of appellee himself, as bearing on this point, is as follows: The reason he came there to the door, he was hunting the water closet; thought he might have got to the wrong door when he tried the one that was locked, and as he come to the door and stopped and looked out, it was so dark that he could not see out there; the dark part is on the side the water closet was on, on the left side. He says on the other side near the depot there was a big light. “I guess it was an arc light, but it did not shine in there.” Says when he came to the door he hammered on the door; thought perhaps the man was still out there. He knocked on the door, and did not hear anything, and he looked and did not see anything out there, and he took a step on the platform and fell to the ground. He was asked if he saw the lights shining in there between the top and the floor of the car on the steps on that side, and answered “No.” He says he did not see any lights; just what little light that comes through the car door.’ He also said that he did not remember to have seen any light on the steps.
The testimony on behalf of appellant shows that the platform was well lighted by electric arc lights on both sides of the track on which the coach was standing when appellee was injured. The whole testimony, taken together, causes the majority to conclude that the appellant had exercised all the care that the law required to light its car platform, that under the circumstances the law did not require that the company have lights in the vestibule of the car. That the lights in the car and from the depot building, and especially the arc lights on •both sides of the track on which the car was located, met every requirement of ordinary care to provide the passengers a reasonaibly safe exit and entrance upon the car, should they desire, for any reason, to debark therefrom while the car was in waiting.
The court is therefore of the opinion that the verdict is contrary to the undisputed evidence, that the trial court erred in refusing appellant’s first prayer for instruction declaring "that the proof has failed to show any act of negligence of the defendant company.”
The court deems it unnecessary to discuss other questions. While voicing the opinion of the majority, I do not concur in the conclusion that the court erred in refusing the first prayer of appellant for instruction. I am of the opinion that Ithe questions of negligence and contributor)'' negligence, upon the whole, were for the jury.
I concur in the judgment of reversal, however, upon the ground that the court erred in admitting the testimony of Ola Larsen. It related to a subsequent trip, by appellee’s son, necessarily under different circumstances, and was therefore clearly incompetent and prejudicial. I am also of the opinion that the court erred in its rulings in granting, refusing and modifying certain prayers for instructions. But my individual views upon these could serve no purpose.
Judge Battue concurs in the judgment of reversal for the reason that in his opinion the undisputed evidence shows that appellee was guilty of contributory negligence. He is of the opinion that the question of negligence -was for the jury.
The judgment is reversed, and the cause is remanded for further proceedings. | [
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Wood, J.
The only questions presented for our consideration are:
First. Whether or not there was a breach of contract by appellants ?
This question was properly submitted to the jury, and, while the evidence tending to show a breach is not very satisfactory to us, we are of the opinion that there was legally sufficient evidence to sustain the verdict.
Second. Appellants contend that, if there was a breach of contract 'by the appellants, such breach was waived by appellee. And on this theory of the case they presented prayer for instruction number 2, and urge that, the refusal of the court to give it was error for which the judgment should be reversed.
The court did not err in refusing this prayer for instruction. Under the pleadings and proof there was no question of a waiver of a breach of the contract, by appellee in the case. The only issue presented was whether or not there had been a breach of the contract. No objection is made here to the charge of the court as given. But if the question of waiver was an issue in the case, still the prayer asked was erroneous under the proof, because, if there was a breach of contract by appellants in refusing to receive the potatoes from appellee, then the fact that appellee after such breach continued to deliver, and appellants to receive, potatoes until appellee refused further to deliver was not a waiver. It was the duty of appellee, if there was a breach of the contract by appellants, to dispose of the potatoes he had on hand after and by reason of such breach for the best price obtainable and in the most ¡expeditious. manner possible in the exercise of reasonable care, and it was no waiver because, in the disposition of the potatoes he had on hand, he continued to let appellants have potatoes without objecting to the size of the amount that appellants' were receiving.
If appellants had breached the contract, they had no right to suppose that appellee, by thereafter delivering them potatoes, was waiving any of his rights under the contract. Such conduct would, rather than otherwise, tend to show an ¡intention on the part of the appellee to insist on his rights under the contract.
If the question of waiver were applicable, the doctrine of this court in Arkansas & Texas Grain Co. v. Young & Fresch Grain Co., 79 Ark. 603, would show the unsoundness of the rejected prayer.
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McCulloch, J.
This is an action against appellant railroad company to recover the value of a jack, alleged to be of the value of $240, shipped over defendant’s line from Fayetteville to Van Burén, Arkansas, there to be delivered to a connecting carrier. It is alleged in the complaint that by reason of negligence of defendant’s employee in the operation of the train the jack was killed while in transit and before arrival at Van Burén. The action was commenced more than a year after the shipment and death of the jack.
The defendant filed an answer denying that its servants were guilty of any negligence or that the jack was injured while in transit.
As a further defense the written contract for shipment entered into between plaintiff and defendant limiting the liability of the carrier in consideration of reduced rates for transportation was set forth and pleaded; and it was alleged that by the terms of said contract it was stipulated, among other things, that in the event the jack should be damaged or killed the liability of the carrier for the damage should not exceed the value stated in the contract, $100, and that no action against the defendant to recover damages should be maintained unless commenced within six months next before the cause of action should have accrued. The contract was introduced in evidence, and it contained the stipulations named above, as well as further recitals to the effect that the company offered the shipper two rates on shipments of live stock, and that the shipper elected to accept the- reduced or lower rate under a contract limiting the liability of the carrier.
The plaintiff testified that before he signed or accepted the contract he asked the agent of the company if he had any other contract, and the latter replied in the negative, and that he accepted the contract because he could secure no other. This was contradicted by the agent, who testified that the higher rates on all shipments of live stock, according to value, under bills of lading or contracts containing no limitation of the carrier’s liability, were allowed by the company; that he had no other printed form of contract prepared for shipments of live stock, but that he could by interlineation, etc., alter an ordinary bill of lading containing no limitations of liability so as to provide another form of live-stock contract, whenever a shipper elected to accept a higher rate under such contract.
The jury returned a verdict in favor of the plaintiff, assessing the damage at the sum of $267.08, and the defendant appealed.
It is contended on behalf of appellant that appellee was bound by the contract limiting the liability of the .carrier, even if he was denied the benefit of any other contract of rate, and that the recitals of the contract to the effect that he had elected to accept it in consideration of the reduced rate precluded him from proving that the company’s agent had refused to give him any other contract or rate. This court held in Railway Co. v. Cravens, 57 Ark. 112, that (quoting the syllabus) “a carrier can not by special contract limit its common-law liability for losses not occasioned by its own negligence where it does not afford the shipper an opportunity to contract for the service required without such restriction; and it is immaterial that the shipper knowingly accepted a bill of lading containing such restriction, without demanding a different contract, if he knew that the carrier’s agent had no authority to make any other contract with him.” In the case at bar the undisputed evidence is that the carrier had another rate to offer the shipper, and the contract recited that fact, but there is evidence tending to show that the local agent refused to give the shipper the opportunity to make any other contract than one restricting the liability of the carrier. Now, it matters not how many different rates or forms of contract the carrier is willing to give ,to the shipper; if the local agent, with whom the latter deals denies him the opportunity to take advantage of the more favorable contract on a higher fi eight rate, or, w'hat amounts to the same thing, informs him that there are no other terms or conditions upon which he can have his property transported, then there is in fact no opportunity afforded to contract for shipment on unrestricted terms, and the restrictions are void.
The contract for a limited liability of the carrier must be based upon the consent of the shipper upon a valid consideration, and, no matter what the contract contains by way of recitals or stipulations, if no opportunity for unrestricted service is afforded, then it is imposing the restricted contract upon the shipper without his consent. If no opportunity for shipment on other terms was in fact given, then the recitals of the contract were false in stating that such opportunity had been given, and that the shipper had elected to accept a restrictive contract upon a lower rate. If the contract was in fact extorted from the shipper by a refusal to transport his property upon any other terms, he was not bound by false recitals which it may have contained. No rule of evidence was violated in permitting him to show the falsity of such recitals.
Mr. Justice Hemingway,
in delivering the opinion of the court in the Cravens case, said: “But it is said that if the party knowingly consents to a special contract, no one else can object, and that he can not be heard to say that it was unfair, or that an advantage was taken of him, since he acted freely and intelligently. This, as we have seen, is a mistake, for such contracts affect the interests of the public, and are subject to public regulation ; and, besides, the circumstances do not warrant - the assumption of fact that the party consented freely, but rather show that he submitted to terms that he was bound to accept, when the other party deprived him of the opportunity to choose between them and the contract which the law entitled him to demand. For he was, as we have seen, as much entitled to be indemnified against loss in transit as to the service demanded. The law imposes no necessity for an election between thé two nights, and the carrier can impose none. But the .carrier’s refusal to perform .the service without a release of his liability takes away the right to choose, which the law gives, and forces an election between rights which are not inconsistent.”
It may be said that, inasmuch as a railway company can generally deal with the shipper only through its local agents,- and when it has prescribed .different rates for shipments upon different terms, the application of this rule would deprive the company of the power to enforce its contracts, and make the validity of its contracts for shipment depend upon oral proof in each case as to what transpired between the shipper and the local agent. So it may; but, on the contrary, any other rule would allow the company to extort from the shipper a contract without his consent, by reciting in the written instrument that he had been offered other terms, and had exercised his choice.
When the special contract was found to be invalid, all question as to limitation as to value of the property and the time for bringing the action passed out of the case. St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112; St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597.
It is also contended that the evidence was insufficient to warrant the jury in finding that the plaintiff applied to the agent for the privilege of shipping upon different terms, and was denied the opportunity. The plaintiff testified that, to the best of his recollection, he asked the agent or employee with whom he dealt, and who prepared and signed the contract, for another contract, and that he received a negative reply — that he had no other alternative but to accept this contract. This was denied by the agent or employee in question, and, as already stated, it was conclusively shown that another rate had been prescribed for shipments on unrestricted terms, but that question was submitted to the jury, and we think there was sufficient evidence to sustain the finding.
The court, over the defendant’s objection, gave the following instruction,, which is assigned as error, viz:
“1. If the jury find that the defendant received the jack for shipment, and the same was killed while in the defendant’s car, the presumption is that such killing resulted from the negligence of the defendant, or its servants, in the operation of its locomotive or cars.”
This instruction was erroneous, for the reason that it left entirely out of consideration the contract between the parties for the shipment of the stock. By the terms of the contract, the shipper was required to accompany the shipment of live stock and be in sole charge of it for the purpose of attention and care to it. It further provided that the carrier should not be responsible for attention to and care of the stock, but should only be liable for actual negligence of its employees in the transportation of the freight. If the contract was in force, which was a disputed question, then the defendant was not liable unless its employees were guilty of negligence; and where the shipper accompanied the car and had charge of the live stock, there was no presumption of negligence arising merely from the death of the animal. St. Louis, I. M. & S. Ry. Co. v. Weakly, 50 Ark. 397. In that case the court said: “Having the care of the stock, the liability of a common carrier, which makes it his duty to account for the loss of freight, did not devolve on appellant. Being in charge, they (the shippers) were presumed to know the cause of the loss of the jack found dead, if either party to the contract does; and the burden of proof is upon them to show that the default or negligence of appellant was the cause, before they can be entitled to recover.”
Counsel for appellee contends that the rule announced in that case is changed by the act of March 26, 1895 (Kirby’s Digest, § 6700) requiring railroad companies, when they receive shipments of poultry or live stock by the carload, to furnish to the shipper or his employee free transportation to and from the point of destination. We do not think that this statute changes the rule at all. It only makes it compulsory upon the carrier to furnish free transportation to the shipper for himself or employee when the shipment is in carload lots. The statute does not undertake to change the liability of the carrier in any other particular or to alter the rules of evidence respecting the establishment of its liability.
Whilst the instruction just quoted is an erroneous statement ’ of the law, it was not prejudicial in this case. The jury, in arriving at a verdict in favor of the plaintiff for the sum named, necessarily found against the validity of the contract; for the court instructed them, at the request of the defendant, that, if they found the shipper had notice of the two rates fixed by the company and chose the lower rate, then the contract was binding on him, the cause of action was barred by limitation, and he could not recover. The jury could not, under the instructions given by the court, have found for • the plaintiff for a sum in excess of $100, without first finding that the contract was not in force. So, treating this question as eliminated by the verdict of the jury, the instruction now under consideration was harmless. It told the jury, in substance, that if they found that the jack was killed in the car while being transported by defendant, a presumption of negligence on the part of the defendant arose. This is not a correct statement, as we have already seen. But, with the special contract out of consideration, the carrier was liable as an insurer of the safe transportation and delivery of the freight — it was responsible for all losses except those oc casioned by the act of God or the public enemy; and when it appeared that the animal was killed while in transit, it devolved upon the carrier, in order to exonerate itself from liability, to show that the loss resulted from one of those causes. St. Louis, I. M. & S. Ry. Co. v. Weakly, supra.
In the absence of a special contract limiting the liability of the carrier, it is responsible as an insurer, and the burden is not upon the plaintiff, in an action to recover for loss or damage, to show that the same did not result from the act of God or the public enemy.
We find no prejudicial error in the record, and the judgment is affirmed.
BaTTrE, J., dissenting. | [
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Hill, C. J.
The Reporter will state the facts, and it will be seen therefrom that this suit is an effort by one hackman to prevent by injunction a rival hackman from alleged preferential stational facilities. The contention of appellee is that the law as thus stated controls the rights of this hackman, towit: “By the weight of authority in this country, a railroad company can not legally give to one hack and omnibus company the right to the use and occupancy of a portion of its depot grounds, to the exclusion of, others engaged in the like business of the carriage of freight .and passengers from its depot.” 1 Fetter on Carriers of Passengers, § 245.
Concede that this is a sound principle and applicable to the facts, oand it is at once apparent that an injunction will not lie. The gravámen of the complaint and the evidence under it is that the railroad company has given Cooper a preference which he was not entitled to under the law as thus stated, and that it unlawfully discriminated in favor of Cooper and against him, DeVall, to his damage, for which judgment was prayed as well as injunctive relief to prevent further damage. If Devall had a case under the law and facts, it was a plain and simple suit at law for damages against a public carrier for denying him equal privilege with a rival hackman.
The common law and the statutes cover such actions completely, and there was 'no allegation of the insolvency of the railroad company preventing the adequacy of his legal remedy or any other showing of cause for equitable jurisdiction, or relief.
If appellee’s facts entitled him to anything, it was to a judgment for damages; and as this was not brought in a law court, and is not an appeal therefrom, it would be obiter to discuss whether -he has a suit at law. Certainly he has no cause for an injunction.
Reversed and dismissed. | [
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Battle, J.
This is an action on a note executed by W. A. Griffin to R. M. Carter, or order, for the sum of $78.96, on the second day of September, 1903, and due on the first day of December, 1903, and transferred by Carter to RI. L. Remmel. The action was brought by Remmel against Griffin.
The defendant, answering, admitted the execution of the note, but alleged that it was given in payment of the-first year’s premium on a policy of insurance, and that the policy delivered was not such as that for which he contracted.
In the trial before a jury the defendant testified as follows: “About the first of September, 1903, R. M. Carter, an agent of the insurance company, sold me a policy of insurance. It was to be a ten-pay policy for $2,000. I executed the note sued on, * * * gave this note in payment of the first premium on the policy I was to receive. Relying upon the agent to give me the policy promised, I signed the application without reading it to see what kind of a policy it called for, further than to see that it was a ten-payment polic3r. I did not examine the policy when it came to see if it was the kind promised, but signed the receipt attached to the deposition of Mr. Rewis without reading or examining the policy. I did not examine the policy until a month or so after I received it, and then for the first time noticed that it was not a ten-pay policy, as I had expected, but instead it was a twenty-pay twenty-year distribution policy. I returned the policy in a few days, but Mr. Carter returned it to me, advising me that it could not now be canceled, as it was in force for one year, and that the note, which was then due, would have to be paid. I am 40 3rears old, a tie contractor by occupation, and can both read and write with ease.”
The court, instructed the jury over the objection of the plain-, tiff as follows:
“Gentlemen of the Jury: This is an action on a note given by the defendant for the first year’s premium on a policy of insurance. There is no controversy as to the execution of the note, but it is contended by the defendant that the policy that was delivered to him was not such a policy as he contracted for, and which the agent promised him. If you believe from the evidence that the policy delivered to the defendant was not the class of policy promised him by the agent, and that he returned the policy to the agent within a reasonable time after he discovered that it was not the kind promised him, then you will find for the defendant. Upon the other hand, if you find' by a preponderance of the evidence that the defendant did not return' the policy within a reasonable time after he discovered that the policy delivered was not what he contracted for, then in that event you will find for the plaintiff the amount of the note sued on with interest as stipulated therein.”
The jury returned a verdict in favor of the defendant; and the plaintiff appealed.
About the first day of September, 1903, appellee contracted with “The Mutual Life Insurance Company of New York” for a policy of insurance. He executed his note to Carter, the agent of the insurance company, for the first year’s premium on the policy, due on the first day of December following. On the 31st day of October, 1903, he received from the insurance company a- policy. It was his duty to examine the policy in a reasonable time after he received it, that is in such a time as he could have done so, and if he rejected it to so inform the insurance company or its agent; and, failing to do so, he is deemed to have accepted it and is liable upon his note. After such acceptance he can not avoid the payment of his note on the ground that he did not read the policy, unless he was induced by the insurance company, or its agent, not to do so. New York Life Ins. Co. v. McMaster, 87 Fed. Reporter, 63. The instruction of the court was erroneous and prejudicial.
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Battle, J.
W. L. Caststeel brought this action against the St. Louis, -Iron Mountain and Southern Railway Company to recover damages caused by alleged trespasses. He states his case substantially as follows: During the year 1903 he was in possession of a part of a certain farm on White River, known as the “Mississippi Bend Farm,” in Baxter County, Arkansas. He held and cultivated the upper end of it under a lease. During the year 1903 he had a crop upon it, consisting of eight acres of cotton and twenty acres of corn, being in the months of June, July and August and the first of September of the year 1903 an average crop of the value of $410. The defendant, about the first of June, 1903, entered upon his premises, tearing down the fences or a portion of the same which enclosed the farm and trespassed thereon, damaging the plaintiff in the sum of $330, for which he asks judgment. The defendant answered, and denied these allegations.
The defendant recovered judgment, and plaintiff appealed.
The facts in the case are as follows: The defendant laid out and graded its railroad track over and through the farm culti- * vated by the plaintiff with the consent and under the direction of H. H. Riley, the duly authorized agent and representative of the owners of one undivided half thereof. It entered the farm in the “first part” of the year 1902 and graded through the same in that year. In the latter part .of 1902 the plaintiff rented of Riley the interest of the owners represented by him for the year 1903. J. B. Lock rented the other half interest in the farm for the same year; and plaintiff and Lock divided the farm between themselves, plaintiff taking the “upper ¡end” and Lock the lower. About the first of March, 1903, the defendant finished the grading of its roadbed through the farm, plaintiff built a fence across the defendant’s right of way at the upper and lower ends of the farm. About the latter part of May or first of June, 1903, the employees of the defendant “came- along, laying ties and rails, making the track on the roadbed, and tore the fences out.They left them down. Stock got in and damaged his crop.” He drove the stock out and rebuilt the fence, but every time he rebuilt his fences they would .tear them out and run its engine through ; and stock continued to get in his field and injure his crops until they destroyed his corn crop and one-half of his cotton, damaging him in the sum of $332.
The damages sued for were caused by injuries to crops in 1903. Ape-llee acquired a right of way for its railroad over the farm cultivated by the appellant before he leased it for 1903. Its title to such right of way for and during the year 1903 and subsequent years was prior to his lease for 1903, and consequently was superior; and it (appellee) was entitled to an open right of way, and was under no obligation to fence it, unless it had contracted to do so. St. Louis, Iron Mountain & Southern Railway Company v. Walbrink, 47 Ark. 330; Railway Company v. Knott, 54 Ark. 424; White River Ry. Co. v. Hamilton, 76 Ark. 333. The fact that he and Lock, who leased the other half of the farm, had divided the farm, gave him no greater right to the half set apart to him. He held such half by virtue of the lease by the owners represented by Riley. It was set apart to him as the part he should cultivate under such lease. Mr. Lock’s lessor was not a party to such division. Each held the part set apart to him under ,his lessor, and no other person.
Defendant was not liable to appellant for damages.
Judgment affirmed. | [
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Riddick, J.
The defendant, Govan Beard, a negro, was indicted in the Phillips Circuit Court for the crime of rape committed upon the person tf one Annie McAbles, a white woman. The defendant entered a plea of not guilty, but on the trial he was convicted and sentenced to be hung. The conviction rested almost entirely upon the testimony of the prosecuting witness, Annie McAbles. ' The case was afterwards brought to this court by writ of error, and the judgment affirmed.
After the judgment had been affirmed the defendant by his counsel presented a petition to the circuit court where the conviction was obtained, asking for a writ of error coram nobis. He alleged that the prosecuting witness, Annie McAbles, had committed perjury on the trial, and further showed that since the trial in the circuit court she had admitted that her testimony on the trial that the defendant had ravished her was false, and in her desire to repair the wrong that she had committed she had voluntarily made affidavit to that fact, and confessed her wrong in the presence of a number of reputable citizens. He further alleged that at the time of the trial the community where the trial was had was in a state of frenzy in ignorance of the true facts, and under the belief that he, a negro, had committed rape on a white woman; that he was tried at a special term of the court called for that purpose, and because of the threats of the mob against him and through fear of violence he was afraid to apply for a continuance of the trial;. that he on that account was compelled to submit to a trial without the opportunity of summoning witnesses ánd presenting evidence that would have contradicted the. prosecuting witness and exonerated him. He therefore asked for a writ of error coram nobis to try whether the petitioner was denied a legal trial by reason of mob violence being threatened at the time, and whether the prosecuting witness committed perjury in testifying that she was ravished by defendant, and whether the other facts alleged in the petition are true or not.
Affidavits were attached to the petition, tending to show that the facts alleged therein were true.
After hearing the petition, the circuit court overruled the petition and refused to issue the writ, and the defendant appealed.
The only question in this case is whether the facts stated in the petition were sufficient to justify the circuit court in issuing the writ of error coram nobis to review a judgment rendered by that court at a former term. »
In the case of Bronson v. Schulten, the Supreme Court of the United States discussed the question as to the proper functions of the writ of coram nobis. After stating that the writ was allowed to bring before the same court in which the error was committed some matter of fact which had escaped attention, and which was material in the proceedings, and that these were generally limited to the facts that one of the parties to the judgment had died before it was rendered, or was an infant, and that no guardian had appeared, or been appointed, or was a feme covert, and the like, or error in the process through default of the clerk, the court said further: “It is quite clear, upon the examination of many cases of the exercise of this writ of error coram nobis found in the reported cases in this country and in England, that if does not reach to facts submitted to a jury, or found by a referee, or by the court sitting to try the issues; and therefore it does not include the present case.” Bronson v. Schulten, 104 U. S. 410.
In a case involving this question decided by this court it was said that the writ “will not lie to contradict or put in issue any fact that has been already adjudicated in the action. An issue of fact wrongly decided is not error in that technical sense to which the writ refers. If the error lie in the judgment itself, it must be corrected by appeal or writ to a superior court.” Howard v. State, 58 Ark. 229.
Now the defendant in this case was not, under fear of violence from a mob, compelled to enter a plea of guilty, as was the case in the case of State v. Calhoun, 50 Kan. 523, where judgment was rendered against the defendant on his plea of guilty without the formality of a trialj In this case he entered a plea of not guilty, and he was tried on that plea and convicted. The defendant now says that he is innocent, that the prosecuting witness committed perjury on the trial, and that he through fear of mob violence was prevented from producing evidence to contradict her. But the question of whether the prosecuting witness told the truth on the trial, and whether the defendant was guilty or innocent, has already been submitted to a jury and decided in that trial. As we have shown by the decisions both of this and the Supreme Court of the United States, the writ of coram nobis will not lie to review a fact already submitted to and .determined by the court or jury.
The fact that the defendant was prevented from obtaining his witnesses does not in our opinion alter the case, for that is a matter that should have been set up by a motion for new trial at the term at which he was convicted.
We have come to this conclusion with some reluctance, for the affidavit of the prosecuting witness filed with the petition of defendant and the other evidence convince us that the testimony of this witness is utterly unreliable, and that there are grave doubts of the guilt of the defendant. But our statute does not provide for.new trials in criminal cases on the ground of newly discovered evidence, and for the reasons stated above we are of the opinion that the writ of error coram nobis does not lie in this case. The case has therefore passed beyond the jurisdiction of this court, and we are powerless to modify the judgment. The judgment of the circuit court refusing the writ must be affirmed, and it is so ordered. | [
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Wood, J.,
(after stating the facts.) The court did not err in refusing a peremptory instruction for appellant. It was a question for the jury, under the evidence, as to whether or not the premium had been paid. The court correctly 'instructed the jury on that question. But the court erred in permitting counsel for the appellee in his argument “to call attention to the fact that the defendant (appellant) had not produced Nicholson and to insist that its failure to produce him would warrant the jury, under the circumstances, in drawing an unfavorable inference against the defendant (appellant) that the premium had been paid, as Nicholson was perhaps the only living person who knew certainly the facts about the payment of the premium,” and erred in refusing to instruct that no presumption unfavorable to appellant could be indulged on account of the absence of Nicholson. The uncontradicted proof showed that Nicholson was not in the employ of appellant at the time of the trial, and that appellant knew nothing of his whereabouts. The witness under such circumstances is as accessible to one party as the other. Therefore no unfavorable presumption can be indulged against either for a failure to produce the witness. Reynolds v. Ry. Co., 85 S. W. 323; See, also, Daggett v. Champlain Mfg. Co., 47 Atl. Rep. 1081; Scovill v. Baldwin, 27 Conn. 316; Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.
Reversed and remanded for a new trial. | [
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Hire, C. J.
Montgomery sued Mrs. Dane for a tract of land. She airswered, claiming ownership by a purchase from one Hamil, to whom she and her husband had conveyed, and asserting and claiming a homestead right in the property, and alleging that it was her husband’s homestead at time of its sale under execution under which Montgomery purchased; thar the sale was for a debt, not a lien on a homestead, and that Montgomery had acquired no title from his sale, and the same was a cloud on her title, and alleged a redemption from the sale to Hamil, and she asked a cancellation of Montgomery’s title and the quieting of her title. The cause was, after this answer and cross-complaint, transferred to equity, and prayer of cross-complaint granted, and Montgomery appealed.
The transaction with Hamil proved to be no more than a redemption of the property from a mortgage executed by herself and husband.
The case turns on whether or not the land was a homestead at the time of sale. If it was not, Montgomery’s title would prevail, possibly subject to subrogation of Mrs. Dane to the Hamil mortgage; and if the property was a homestead, the deed of Montgomery, based on an execution sale under a judgment obtained on a note given for a fine and costs, should be canceled. The facts were that Dane and wife lived upon the land for many years as a home, and he had no other property, and in 1896 they separated. Both left the place, but not the county >at that time. There were no children in the family, and Mrs. Dane went lo a married daughter’s house when they separated. One Douglass lived on the land in 1897. Whether he paid rent to Dane is not clear, but Dane went back to the land in 1898, and lived there till he mortgaged it to Hamil, and he then left the State. Mrs. Dane then took charge of the land, and rented it, and collected rents from different tenants, who occupied it until 1900, when she returned to it with her grandchildren and great grandchildren, and has since occupied it with them.
The judgment was obtained against Dane on 24th April, 1899, and execution sale took place June 15, 1901. A deed to Hamil, which was in fact a mortgage, was executed on the day before the execution sale, and subsequently, on Mrs. Dane paying the debt, Hamil conveyed to her. This was the second mortgage given Hamil. The first was when Dane left and Mrs. Dane refused to sign it, but this deed she signed on promise of Hamil that on repaying the debt he would convey to her. Dane was in Missouri when he signed this instrument, and when the sale occurred. Mrs. Dane was looking after the sale. Whether she forbade it and then asserted her homestead rights is a matter in conflict, but certainly she was on the ground, asserting her right to its occupancy as a homestead. Mr. and Mrs. Dane were not divorced; they simply separated. In 1900 Mrs. Dane purchased a 40-acre tract, but she never made it her home.
She testified that her only reason for leaving the home place • when she and her husband separated was that she could not live there alone, and had no one to stay there with her. She went to live with her married children, and lived with them temporarily till she could return to the home place. She retained control of it through tenants from the time her husband left it until she personally returned to. it. She did not want to leave the place, and only left from necessity, and never intended to abandon it, is her testimony, and it is found true by the chancellor.
■ Under many decisions of this court, recently reviewed in Newton v. Russian, 74 Ark. 88, the temporary absence from the home with intention to return was not an abandonment by Mrs. Dane. The abandonment by Dane is a different matter, and the question is whether his abandonment of the homestead and his family will let in claims of his creditors when the wife is not joining him in the abandonment and desires to continue to reside upon it and to preserve it as the family homestead. The constitutional provisions are: “The homestead * * * owned and occupied as a residence.” * * * to be selected by the owner.” Const., art. 14, § § 3-5; Kirby’s Digest, 3898-3900. The act of 1887 renders void any conveyance affecting the homestead with a few exceptions, unless the wife joins in the execution of it and acknowledges it, and further provides that the debtor’s right to it shall not be lost by omission to select and claim it before sale, but he may select and claim it after as well as before sale and set up the homestead right as a defense when suit is brought for possession; and if he neglects or refuses to make such claim, his wife may intervene and set it up. Kirby’s Digest, § § 3902, 3903. It has often been said that the protection of the family from dependence and want is the object of the homestead law; that apart from the family the debtor is entitled to no consideration. Harbison v. Vaughan, 42 Ark. 541; Hollis v. State, 59 Ark. 211. This being the controlling thought in the homestead provisions, it naturally followed that the courts have held that the abandonment or desertion of the family and homestead by the husband did not forfeit the homestead right of the family, so long as he was acting independently and the family were seeking the shelter of the homestead.
Thompson says: “But it has been frequently decided that what amounts to an act of desertion by the husband can'not have the effect of changing the home of either the husband or his deserted family. * * * The homestead character was held to remain as long as the wife manifested an intention to remain and not abandon the home. And even where the husband’s removal of the furniture compelled her to live at another place, and her intention to remain was only evinced by giving her personal attention to the house, still there was no abandonment.” Thompson on Homestead and Exemptions, § 277.
If written of this case, the statement above quoted could not have been more in point, and this text does not come as a new doctrine, for it was expressly approved in Hall v. Roulston, 70 Ark. 343, and Newton v. Russian, 74 Ark. 88, and approved in principle in Hollis v. State, 59 Ark. 211. See, also, Moore v. Dunning, 29 Ill. 130, s. c. 81 Am. Dec. 301, and note, which case was approved in the Hollis, Roulston and Russian cases.
The principles of these decisions control here. Whether the act of the husband be a separation mutually agreed to or an abandonment, the controlling factor remains — he is not acting for the family but for himself in derogation of the family rights, and the whole object of the homestead law would he defeated if the homestead impressment was swept away by the act of the husband. Indirectly the husband could convey his homestead by simply quitting his family and letting in the sheriff when the policy of the law and the express statute of 1887 is to prevent that very situation. Where the wife or family refuse to obey the husband and father in leaving the homestead when he, in pursuance of his privilege as head of the family, seeks to take his family elsewhere, another question is presented, and one not before this court in this case.
It has been argued that Pipkins v. Williams, 57 Ark. 243, Sidway v. Lawson, 58 Ark. 117, and Farmers’ B. & L. Assn. v. Jones, 68 Ark. 76, conflict with this conclusion; but far from it. In Pipkins v. Williams, Mr. Justice Hemingway, for the court, said: “When the homesteader, with his family, abandoned the land as a homestead, it became liable to attachment for his debts.” The parenthetical qualification of the homesteader’s right to abandon “with his family” showed that the learned justice, in applying the law to the facts of that case, had in mind that where there was an abandonment by the homesteader without his family joining in the abandonment a different question would be presented. In Sidway v. Lawson the rule above quoted was stated, but not stated fully and without the qualification of “with his family.” It was not intended to change the rule in the WilliamsPipkins case, but it. was merely stated in shorter form,, and only so much as was pertinent to the case in hand. Farmers’ B. & L. Assn. v. Jones, supra, held that the act of 1887 is a limitation upon the right of the husband to convey his homestead, but not a limitation upon his marital and parental authority to select or abandon the homestead. This is manifestly true, but it is dealing with the rights of the husband and father as head of the family to select the home, abandon and select another or select none but to live in rented houses if he sees fit. These are considerations touching the right of a head of a family to control it, and relate to him when acting for the family, not when in derogation of the rights of the family and not when he deserts or abandons his family or voluntarily separates from them. When he deserts, abandons or separates from his family, he is then no longer its head, and is no longer acting for the family, but for himself, and against the family, and then it is that the law presumes he is a wanderer without home until he returns to his duty and his family. Moore v. Dunning, supra; Hall v. Roulston, supra; Newton v. Russian, supra. In Sidway v. Lawson, supra, there is the further holding that the Legislature intended to create no new estate by°the act of 1887, but prescribed the manner of executing instruments affecting the homestead, and recognized the homestead as the husband’s, not the wife’s, nor their joint property. This is manifestly the correct construction, and does not trench on the principle which the court is following in its conclusions herein.
The homestead being created for the benefit of the family, when the husband selects it and impresses it with the homestead character as the dwelling place of his family, then the law frees it from his debts, and he can not let in his debts against it when he separates from his family or deserts them and does not attempt to provide them another home or dwelling place or shelter, and does not seek to take his family with him, so long as they seek to continue to reside in the only home he has provided for them.’ It is within the letter, and most positively within the spirit, of the homestead law to extend its beneficence to the family under these circumstances.
Judgment affirmed.
Mr. Justice McCulloch dissents. | [
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Wood, J.
There was no evidence to support the verdict against appellant. Powell was not its agent, and had no authority to represent it. There is no evidence to warrant the conclusion that appellant “held him out” as its agent. Special agents must act strictly within the limits of their powers. Amer. Ins. Co. v. Hampton, 54 Ark. 75, 78; Burlington Ins. Co. v. Kennerly, 60 Ark. 532; German-American Ins. Co. v. Humphrey, 62 Ark. 348; Mutual Life Ins. Co. v. Abbey, 76 Ark. 328.
Carter had no authority to appoint Powell agent for appellant. That was exclusively, the province of H. L. Remmei.
Appellee .should have ascertained the scope of Powell’s authority before paying him the premium. Danley v. Crawl, 28 Ark. 98; City Electric Ry. Co. v. First National Bank, 62 Ark. 33.
Powell alone, under the proof, was liable to .appellee for the unauthorized premium which he had collected.
Reversed and remanded for new trial. | [
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R,iddick, -J.
The facts in this case are that Pearl Caple brought an action for divorce against her husband, John Caple, and afterwards filed a petition for maintenance, temporary alimony and allowance of attorney’s fees.
On the hearing of this petition the following order was made: “Come the parties, and, the petition for temporary alimony being heard upon evidence, the court orders the defendant to pay to the clerk for the benefit of the plaintiff $20 per month, beginning with the 15th day of December, 1906, and to pay $25, her attorney’s fee, within 60 days, and $5 for her cost, and the defendant is required to give bond in the sum of $250, with security to the approval of the sheriff, conditioned to pay said sum, and the sheriff is ordered to take into custody the said defendant, and, in default of his making said bond, commit to jail until the further orders of the court.”
The defendant failed to give bond, and was committed to jail. He afterwards filed a petition, and obtained a writ of habeas corpus from the judge of the circuit court. The sheriff who had custody of the defendant made a response to the writ by bringing the defendant before the circuit judge, and by stating in writing that he held the defendant in obedience to the order of the chancery court above referred to, that “upon the rendering- of said decree or order he immediately took petitioner into custody, and still detains him, and his sole authority for so doing is the said decree or order. That petitioner has so far been unable to furnish said bond, although he has been given all opportunity requested by petitioner, and has allowed him to go in custody to see friends and relatives in different parts of this county.” After hearing the matter the judge held that the petition for a discharge should be denied, and he remanded the prisoner. This judgment of the circuit court is brought before us by writ of certiorari for review.
We have before us in this case nothing but the petition for the writ of habeas corpus, the judgment of the chancery court ordering the defendant in the custody of the sheriff, with leave to give bond in the sum of $250 conditioned to perform the judgment of the. court, and the return of the sheriff to the writ of habeas corpus stating that defendant has been allowed every opportunity to give bond, but has failed to do so, and that he holds him in custody by virtue of the order of the chancery court.
As neither the complaint in the action for divorce, nor the petition of Mrs. Caple for temporary maintenance and attorney's fees, nor the evidence produced before the court on the hearing of the petition, are before us, we must presume that the pleadings and the evidence were sufficient to sustain the judgment rendered by the chancery court, if it can be sustained on that theory. Now, when this order was made, the action for divorce had been commenced, and the defendant had been summoned. He had notice of the petition for temporary alimony, and appeared and was present in court when the case was heard. The court had jurisdiction to try the case, and to make such orders as were authorized by the pleadings and evidence.
The petition for temporary alimony may have alleged that the defendant was able to pay the sums demanded, but had declared his intention not to do so, and that, unless he was compelled to give some security for the payments of the sums ordered to be paid by the court, he would at once leave the State and refuse to perform the judgment of the court. The evidence may have shown that these allegations of the petition were true, and that the only way to protect the rights of the plaintiff was to order the defendant into the custody of the sheriff until he had given bond for the performance of the judgment. In a case of the kind supposed we are of the opinion that the court would have the power to protect the rights of the plaintiff and to make the order it made. Potts v. Potts, 68 Mich. 492; Davis v. Davis, 83 Hun (N. Y.), 500; Ex parte Robinson, 71 Cal. 608; Harper v. Rooker, 52 Ill. 370.
It was formerly the common practice in cases of that kind for the courts of chancery to issue writs of ne exeat in order to protect the wife’s interest and to secure the payment of alimony. When the writ was issued, the practice was to fix the amount of security which the husband must give, and upon failure to give it the husband was held in custody subject to the orders of the court. Nelson on Divorce, § 940.
These writs have been' abolished by statute in this State (Kirby’s Digest, § 5970), and have fallen into disuse in other States for the reason that in most of the States the courts may on a proper showing require the husband to give security for the payment of the alimony. Bishop on Marriage, Divorce and Separation, § 1102.
Our statute expressly provides that the court in actions for divorce “may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and in proceedings as in cases for contempt.” Kirby’s Digest, § 2679. It further provides in another section that such orders may be enforced by sequestration and such other lawful ways and means as are in accordance to the rules and practice of the court. Kirby’s Digest, § 2682. Imprisonment in such a case is only justified on the ground of wilful disobedience to the orders of the court; and, so soon as it is made .to appear that the defendant is unable to comply with the orders of the court,'he should be discharged. The proper practice would be to make application to the chancellor for a modification of his order, but, conceding that the matter may be inquired into on a writ of habeas corpus issued by the circuit judge, there is nothing here to show that the petitioner was unable to perform the judgment of the chancery court. For, though that was alleged in the petition for the writ of habeas corpus, no evidence was introduced to support the allegation, and the circuit judge was justified in refusing to act on the allegations in the petition alone.
Counsel who oppose the discharge of the petitioner assert in their brief that petitioner on his examination before the chancery court stated that he earned four dollars a day at work as a miner, but that he did not intend to pay anything towards the support of his wife and infant child. We have no means of knowing whether this is so or not from the record, for the evidence is not in the record. But the presumptions are all in favor of the validity of this judgment, and from the record before us we are not able to say that it is void. We are therefore of the opinion that the circuit judge was right in refusing to discharge, and in remanding the prisoner to the custody of the sheriff. .The writ of certiorari will therefore be quashed, and the judgment affirmed. | [
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McCulloch, J.
Appellee, T. E. Jones, sued appellant, Roberts & Schaeffer Company, a corporation, to recover damages for personal injuries alleged to have been sustained while working for appellant, and upon trial of the cause before jury he was awarded damages, and judgment was rendered accordingly. Appellant filed its motion for a new trial, assigning various errors; the same was overruled by the court on January 18, 1906, and time was allowed within which to present and file a bill of exceptions. The bill of exceptions was not filed within the time allowed, but the record filed here shows that on a subsequent day of the term the court extended the time, and that the bill of exceptions was filed within that time.
Appellee contends that the term of the court lapsed on January 23, 1906, and that the order subsequently entered ex-teading the time for filing the bill of exceptions is a nullity. The transcript certified by the clerk contains orders of the court adjourning over from January 23, 1906, to March 12, and from that day to May 1, the day on which the order was entered extending- the time for filing the bill of exceptions. Appellee filed his motion on a later day of the same term" to correct the record and to set aside the record entry of the order extending the time, and introduced testimony tending to show that there was no adjournment over from January 23, but that the presiding judge vacated the bench, without ordering an adjourn ment. This motion was overruled, and he brings up the additional record on the hearing of the motion.
We must, until the record entries are corrected by proper orders of the court, accept the certificate of the clerk as being absolutely true, and the. frailty of appellee’s position is that he sought to have the trial court, on a subsequent day of the same term, to make a finding that the term had previously lapsed and set aside a former record entry on that account. If the term had in fact lapsed, then the court was not, on a subsequent day of the same term, legally in session, and could not adjudicate the validity of the former record entries. The court only, and not the trial judge, can order the amendment of the record.
Appellee further contends that the court, even if legally in session, was powerless to extend the time for filing the bill of exceptions after the expiration of the time first fixed. We will not pass upon that question until it is determined whether or not the court was in fact in session when the order of extension was made.
The consideration of appellee’s motion to strike out the bill of exceptions is therefore postponed until the date set for the submission of the cause so as to allow him, if he is so advised, to apply to the lower court in term time to correct the alleged erroneous record entries of the Orders of adjournment. | [
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McCudloci-i, J.
Appellants, J. R. Davies and wife, Clara E. Davies, executed to the Carroll County Bank, to secure payment of an indebtedness of the former to said bank, a mortgage on lands owned by him which constituted his homestead. After the debt fell due, appellee, D. B. Pugh, at the request of appellant J. R. Davies, paid the debt, and the mortgage and note were delivered to him (appellee) by the bank. Subsequently J. R. Davies executed to appellee his promissory note for the amount of said debt, and, as security for payment of said 'note, also delivered to him a mortgage which he executed and acknowledged on the same land, and which purported to be executed and acknowledged by his wife. Upon delivery of the last note and mortgage to appellee he surrendered the old ones. After-wards appellee brought suit in equity to foreclose his mortgage, a decree of foreclosure was rendered, and the land was sold by commissioner of the court and purchased by appelleé.'
The present suit was instituted by appellants later to vacate and set aside the decree of foreclosure and sale of the land on the alleged ground that the land constituted the homestead, that Clara U. Davies did not sign or acknowledge the mortgage to appellee, and that she was not served with summons in said foreclosure suit. Appellee filed his answer and cross complaint, denying the allegations of the complaint, and praying that, in the event the court should find that Clara L. Davies did not sign the mortgage, he be decreed a lien on the land by way of subrogation to the rights of the Carroll County Bank under the mortgage executed to it.
Appellants filed separate answers to the cross complaint, denying appellee’s right of subrogation under the old mortgage, and pleading the statute of limitation against the debt originally secured by same.
The court rendered a. decree vacating and setting aside the foreclosure decree and sale, but decreed a lien on the land in favor of appellee for the amount of the debt paid by him to the Carroll County Bank, and the taxes, etc., subsequently paid on the land.
It is fully proved that Mrs. Davies did not sign the mortgage to appellee, and the chancellor so found, but he also found that appellee did.not know this when he accepted it as security for the debt and surrendered the mortgage executed to the Carroll County Bank, which he then held, and which was a valid and subsisting lien on the land. He accepted the new mortgage with the name of the wife signed to it and with a proper certificate of acknowledgment appended, and was justified in assuming that it was. signed and acknowledged by her. Having surrendered a valid security for another which proved invalid because of the failure of the wife to join in the conveyance, appellee was entitled to bé subrogated to the rights under the former. Cliaffe v. Oliver, 39 Ark. 531; Wyman v. Johnson, 68 Ark. 369.
But it is said that appellee is riot entitled to subrogation because the mortgage was not assigned to him when he paid the debt to the bank, and' he has not proved an express agreement with Davies at that time that he should hold the mortgage as security for the debt, or that the latter would execute another valid mortgage to secure the debt. It is shown, however,’ that appellee took up the note and mortgage when he paid the money to the bank and held them until the new mortgage was executed. He does not show an agreement at the time that he should hold the mortgage as security, but he did in fact hold it, and under the circumstances such an agreement may fairly be inferred. It is not essential that the agreement should have been expressed in so many words. Rodman v. Sanders, 44 Ark. 504; 6 Pom. Eq. Jur. § 921; Sheldon on Subrogation, § 247; Denton v. Cole, 30 N. J. Eq. 244; Dillon v. Kauffman, 58 Tex. 696; Gans v. Thieme, 93 N. Y. 225; Warford v. Hankins, 150 Ind. 489.
This court, in Rodman v. Sanders, supra, said: “The mere lender of money, which the borrower applies in part payment of the purchase money on land, is not substituted to the rights and remedies of the vendor. But one who pays a debt at the instance of the debtor is not a volunteer; and if, when he made the payment, he manifested an intention to keep the prior lien alive for his protection, he will be deemed in equity a purchaser of the incumbrance.”
The transaction between appellee and Davies was not a mere loan of money which whs used in paying off a ’ debt due to another. It was more than that. Appellee paid the debt for Davies, took up the note and mortgage, and held them until new security was executed, which afterwards proved invalid. His taking up of the mortgage and retention of it in his possession was the clearest sort of manifestation of his intention to keep the security alive until he was induced to part with it’ in exchange for the new security. It is clear to us that an agreement for the holding of the security by appellee must be implied from these circumstances, and that he is entitled to subrogation to the old security since the new has proved invalid.
Appellants insist that the note secured by the old mortgage is barred by the statute of limitation, and that the right of subrogation is also barred. It is sufficient, in answer to this contention, to say that the debt was kept alive by the new note executed by Davies, the debtor. If it be held that the statute of limitation against suits to foreclose mortgages (Kirby’s Digest, § 5399) applies to a suit to enforce the right of subrogation upon a state of facts shown in this case, still the cause of action set forth in the cross-complaint is not barred, as the debt itself has been kept alive, and is not barred.
Decree affirmed. | [
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Per Curiam.
Appellant Joseph Sherman, by and through his attorney, has filed a motion for rule on clerk and affidavit. His attorney, Daniel Ritchey, states in the motion that the record was tendered late due to an error on his part because he calculated the maximum seven-month extension from the date of filing his notice of appeal and not from the judgment or order as required by Arkansas Rules of Appellate Procedure — Civil 5 (b) (E) (2).
This court clarified its treatment of motions for rule on clerk and motions for belated appeals in McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). There we said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is “good reason.” McDonald v. State, 356 Ark. at 116, 146 S.W.3d at 891. We explained:
Where an appeal is not timely perfected, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perfected. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself. There is no advantage in declining to admit fault where fault exists. Second, where the party or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.
Id., 146 S.W.3d at 891 (footnote omitted). While this court no longer requires an affidavit admitting fault before we will consider the motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. See id.
In accordance with McDonald v. State, supra, Mr. Ritchey has candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted. | [
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Annabelle Clinton Imber, Justice.
Appellant Mark Brown appeals from an order of the Union County Circuit Court, which divided marital property and set child support. He cites the following four points where the circuit court erred: 1) in determining the amount of child support when it considered the income attributable to Mark in a limited partnership; 2) in considering Mark’s interest in the limited partnership to justify an unequal division of marital property; 3) in finding that the increase in value of the limited partnership’s stock brokerage accounts was marital property; and 4) in finding that two residences were marital property. Because this appeal presents issues of first impression and of significant public interest, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l) & (4) (2007). We find no error and affirm.
Mark and Laura Brown were married in September of 1986 and separated in July of 2005. Laura sought a divorce from Mark on the grounds that they had been living separate and apart for eighteen continuous months. Following a trial, the circuit court entered a decree of divorce, granting temporary custody of the two minor children to Laura, setting temporary child support at $250 per week, and taking all issues of property division under advisement until such time as posttrial briefs were submitted. A letter opinion confirmed by final decree granted custody of the children to Laura and ordered Mark to pay child support in the amount of $384 per week, based on his two-year average income. The circuit court determined that the increase in value of Mark’s inheritance from his father, which was maintained in a limited partnership with Mark’s mother, was marital property. The court also found that the marital residence and another piece of real estate, both of which his mother had helped to purchase with funds from the limited partnership, were marital property. Because Mark’s non-marital estate was valued at $3,032,703, while Laura’s was valued at only $306,780, the court found an unequal division of the marital property to be appropriate. Mark filed a timely notice of appeal.
The limited partnership at issue in this appeal was formed in 1995 under the laws of the State of Louisiana. Mark’s father, George A. Brown, had earned considerable income as the owner of cocktail lounges, liquor stores, and commercial real estate. He died in 1990 and had bequeathed to Mark, his only child, all property owned at his death, with the exception of the marital home and certain furnishings within it and his wife’s one-half share of their community property estate. George A. Brown’s will noted that Mark’s inheritance was “subject to the usufruct heretofore granted to my wife, Billie Jean Brown.” Mark and his mother, Billie Brown, created the G.A. Brown Properties Limited Partnership after George A. Brown’s death, for the purpose of managing the estate.
Billie Brown was the sole general partner and was also a Class A limited partner; Mark was a Class B limited partner. Each owned a fifty percent partnership interest. Mark contributed to the partnership the property he had inherited from his father, and Billie Brown contributed her one-half share of the community property estate. The partnership agreement contained the following provision:
Mark S. Brown specifically acknowledges that pursuant to the Judgment of Possession rendered by the First Judicial District Court, Caddo Parish, Louisiana in the Succession of George A. Brown on August 25,1993, as amended by said Court on November 12,1993, the property which he contributes to this Partnership is subject to a usufruct in favor of his mother Billie J. Brown and that such usufruct attaches to and continues over the Class B Limited Partnership interest which he receives in exchange for such property on the same terms and conditions as the usufruct over the contributed property itselfj.]
According to the agreement, the partnership’s profits and losses were to be allocated proportionately between the partners, according to their partnership interests. Mark testified that his mother had discretion as to whether to share the partnership’s income with him. He stated that his mother had gifted certain amounts of money to him from the partnership’s assets, but that he had not received income from the partnership. An accountant testified, however, that Mark’s mother had the option to “yield” the usufruct with respect to properties in the partnership that had been changed from their original form. If the property was no longer part of the original corpus, Billie Brown could allocate a portion of its income to her son, provided that he was willing to accept the income and to pay taxes on it. According to the accountant’s testimony, Billie Brown had in the past chosen to allocate certain income to Mark, and he had accepted the income.
The marital residence was purchased with funds provided by Mark’s mother from the G.A. Brown Properties Limited Partnership. Testimony by the parties and by Mark’s mother indicated that the home was intended to be a gift. Mark and Laura later acquired a mortgage on the house to pay for an addition. Payments on the note were made by Mark and Laura.
The other property at issue, known as the West Oak Street property, was purchased as a home for Mark’s mother, who at one point intended to relocate to El Dorado from her former home in Shreveport, Louisiana. The funds for the down payment on the property and for some, if not all, of the mortgage payments came from the G.A. Brown Properties Limited Partnership. For estate- tax purposes, however, the property was titled jointly in the names of Mark and Laura. At the time of trial, Mark’s mother had not yet moved into the home, and Mark was residing there. While Laura agreed that the purpose of purchasing the property was to provide a home for Mark’s mother, she contended that she had an interest in the property, as it was titled in her name along with Mark’s.
I. Child Support
For his first point on appeal, Mark argues that it was error for the circuit court to consider his income from the limited partnership in determining the appropriate amount of child support, because that income was not available for his use. Fie contends that the usufruct in favor of his mother prevented him from realizing any income from the partnership and that the only distributions made to him were provided so that he could pay taxes on the income attributed to him.
Our standard of review for an appeal from a child-support order is de novo, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Hardy v. Wilhourne, 370 Ark. 359, 259 S.W.3d 405 (2007). In reviewing a circuit court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id. However, a circuit court’s conclusion of law is given no deference on appeal. Id.
In determining an appropriate amount of child support, courts are to refer to the family support chart contained in our Administrative Order Number 10. See Ark. Code Ann. § 9-12-312(a)(2) (Repl. 2008). The family support chart provides a means of calculating child support based on the payor’s net income. Administrative Order Number 10 defines income as “any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions.” Ark. Sup. Ct. Administrative Order No. 10(11). It is well established that this definition of income is broadly construed, intended to encompass the widest range ofpotential income sources. Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000); White v. White, 95 Ark. App. 274, 236 S.W.3d 540 (2006). The administrative order also states that for self-employed payors, support is to be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year. Ark. Sup. Ct. Administrative Order No. 10(III)(c).
The circuit court in the instant case calculated Mark’s child-support obligation based upon the income reported on his 2004 and 2005 tax returns. Thus, pursuant to the administrative order and its broad definition of income, the calculation was correct. We are unconvinced by Mark’s argument that his income from the partnership should not have been considered because it was not realized. The administrative order does not distinguish between realized and recognized income. While our court of appeals has cautioned that income for child-support purposes may differ from income for tax purposes, the cases articulating a difference have done so only when the circuit court disallowed depreciation deductions or recognized gain as income upon the sale or disposition of property. See White v. White, supra; Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002); Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997).
Moreover, the administrative order instructs that the court should also consider “the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.” Ark. Sup. Ct. Administrative Order No. 10(III)(c). We affirmed the use of the net-worth approach for child-support determinations in Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). It is clear that Mark’s ownership interest in the G.A. Brown Properties Limited Partnership is a significant portion of his net worth; thus, that ownership interest would be a proper consideration. In the instant case, we cannot say that the circuit court clearly erred in finding that Mark’s income for child-support purposes was that reflected on his tax returns.
II. Unequal Division of Marital Property
For his second point on appeal, Mark contends that it was error for the circuit court to consider his interest in the limited partnership in determining that an unequal division of the marital property was appropriate. He argues that, due to the usufruct in favor of his mother, the property in the partnership has no present value, and perhaps even no future value, to him.
With respect to the division of property in a divorce case, we review the chancellor’s findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007). The division of property itself is also reviewed, and the same standard applies. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In order to demonstrate that the chancellor’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Id. We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Id.
A circuit court has discretion to consider the parties’ potential opportunities for further acquisition of property when determining the appropriate division of marital assets. At the time a divorce decree is entered, all marital property is to be distributed one-half to each party, unless the court finds such a division to be inequitable. Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2008). In that event, the court is to make some other division that the court deems equitable, taking into consideration several factors: the length of the marriage; age, health, and station in life of the parties; occupation of the parties; amount and sources of income; vocational skills; employability; estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and the federal income tax consequences of the court’s division of property. Id. Clearly, in reaching a determination as to the equitable division of marital property under this statute, the circuit court was free to consider Mark’s interest in the G.A. Brown Properties Limited Partnership, and his opportunity to double the size of his estate upon the death of his mother. The limitation on Mark’s interest in the partnership, in the form of the usufruct, is of no relevance, as the opportunity to add to his estate is a proper consideration.
In addition, Mark has received some present value from the partnership. He testified to routine distributions from the partnership since its inception, noting specifically two pieces of real estate; a boat, motor, and trailer; vacations; gas for his vehicle; and cellular telephone service. Therefore, his contention that his interest in the partnership should have been ignored by the court because it had no present value to him is unavailing.
Likewise, his claim that the partnership may have no future value to him is without merit. Under Louisiana law, Mark will receive the value of his contribution to the partnership at the termination of the usufruct, which will occur at the time of his mother’s remarriage or death. The Louisiana Civil Code defines consumable things as things “that cannot be used without being expended or consumed, or without their substance being changed, such as money, harvested agricultural products, stocks of merchandise, foodstuffs, and beverages.” La. Civ. Code Ann. art. 536. With respect to consumables subject to a usufruct, the usufructuary becomes the owner of them. La. Civ. Code Ann. art. 538. Thus, Mark’s mother “may consume, alienate, or encumber them as [s]he sees fit.” Id. However, at the termination of the usufruct, she is “bound to pay to the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality.” Id.
Conversely, nonconsumable things are defined as things “that may be enjoyed without alteration of their substance, although their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, such as lands, houses, shares of stock, animals, furniture, and vehicles.” La. Civ. Code Ann. art. 537. With respect to nonconsumable things subject to a usufruct, “the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce, under the obligation of preserving their substance.” La. Civ. Code Ann. art. 539. However, as the usufructuary, Mark’s mother is “bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct.” Id.
Mark will receive value from his interest in the limited partnership at the time of his mother’s remarriage or death. He has already been the recipient of distributions from the partnership. Therefore, the circuit court did not err in considering his partnership interest in determining that an unequal division of the marital property was appropriate.
III. Increase in Value of Partnership Interest
For his third point on appeal, Mark contends that the increase in value of the limited partnership’s stock brokerage accounts is his separate property. He also argues that the circuit court erred in failing to set forth its reasons for awarding the increase in value of those accounts to him in the division of the marital assets.
The definition of marital property excludes property “acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement.” Ark. Code Ann. § 9-12-315(b)(l). Under this exclusion, Mark’s interest in the G.A. Brown Properties Limited Partnership, which he received by inheritance, was properly deemed nonmarital property. The definition of marital property also excludes the “increase in value of property acquired prior to marriage or by gift or by reason of the death of another.” Ark. Code Ann. § 9-12-315(b)(5).
Our case law has articulated an exception to this rule for the active appreciation of nonmarital assets. In Layman v. Layman, 292 Ark. 539, 543, 731 S.W.2d 771, 774 (1987), we held that “when one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmarital property . . . the presumption arises that such increase belongs to the marital estate.” We affirmed this rule under the current version of the statute in Farrell v. Farrell, 365 Ark. 465, 476, 231 S.W.3d 619, 627 (2006), wherein we stated that “we follow an ‘active appreciation’ analysis in determining if one spouse’s efforts significantly contributed to the increase in value of nonmarital assets.” In accordance with these decisions, the circuit court in the instant case did not err in determining that the increase in value of the nonmarital accounts was marital property. By Mark’s own admission, he expended considerable time and effort during the marriage managing and investing the assets of the partnership.
Mark nonetheless contends that the Farrell decision is inapplicable here because the Farrell court did not decide whether the increase in value of the stocks at issue was marital or nonmarital property. We disagree. This court, in addressing the issues on cross-appeal, held that the trial court “correctly concluded that the increase in value of the nonmarital stock was due in large part to Ms. Farrell’s efforts. As we follow an ‘active appreciation’ analysis ... we cannot say that the trial court erred in finding that the increase in value was a marital asset.” Id. at 476, 231 S.W.3d at 627. In short, the Farrell decision supports the circuit court’s conclusion in the instant case that Mark’s efforts, which resulted in the increase in value of the accounts, caused the increase to be classified as marital property.
We also fail to see any merit in Mark’s argument that the circuit court failed to set forth its reasons for awarding him the increase in value of the accounts. It is true that the circuit court is required to state its basis and reasons for not dividing the marital property equally between the parties, and that the basis and reasons should be recited in the order. Ark. Code Ann. § 9-12-315(a)(1)(B). The circuit court is not required to list each factor in the order or to weigh all factors equally. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007). Furthermore, the specific enumeration of the factors within the statute does not preclude a circuit court from considering other relevant factors, where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property. Id.
The statute does not require that the circuit court list its basis and reasons regarding each individual piece of marital property. Instead, it “must state its basis and reasons for not dividing the marital property equally between the parties.” Ark. Code Ann. § 9-12-315(a)(l)(B). We have never required the circuit court to state individual reasons for each piece of property. Moreover, the circuit court in the instant case sufficiently set forth its reasons for determining that an equal division of the marital property was inappropriate:
A.C.A. § 9-12-315 sets forth the factors to consider in an unequal division of property. In this case the parties have been married 20 years, are in the 40s (Plaintiff, 43; Defendant, 45); in good health and have an affluent lifestyle. Plaintiff is the corporate credit manager for Murphy Oil Corporation with a salary and bonuses of approximately $90,000. Defendant is a lab analyst for El Dorado Chemical Company with a salary of $41,598. In addition, Defendant manages his investments which produced $70,322 in earnings and capital gains for 2005. Each party has above average vocational skills as a result of their education and work experience and should maintain stable employment at the present or a higher level. The factor which weighs most heavily in the decision for an unequal division of the marital property is the size of the estate and the opportunity of each party to increase their estate. The value of Plaintiffs nonmarital estate is $306,780 while Defendant’s is $3,032,703. Defendant’s estate could double in value with an inheritance from his mother. There was no evidence of any possibility of a similar inheritance by Plaintiff. Plaintiffs retirement plans will have to arise from her continued employment. Defendant’s retirement plans can be satisfied from his present estate. From the consideration of the statutory factors, I find that an unequal division of marital property is appropriate.
IV Real Estate
For his final point on appeal, Mark argues that the circuit court erred in its disposition of both the marital residence and the West Oak Street property. With respect to the marital residence, he contends that the circuit court should have either divided it equally or set forth its reasons for refusing to do so. With respect to the West Oak Street property, he argues that a purchase-money resulting trust was established in favor of Billie Brown and that the property therefore should not have been considered in the division of marital property.
1. Marital Residence
Mark relies on Ark. Code Ann. § 9-12-317 (Repl. 2008) for the proposition that “entirety property” is not marital property and that it is to be divided equally between the parties unless the court finds that an equal division would be inequitable, in which case the court must use the criteria set forth in Ark. Code Ann. § 9-12-315 to distribute the property. He contends that the marital residence was entirety property that should have been divided equally, rather than granted to his wife in the court’s unequal division of the marital assets. However, section 9-12-317 actually says that estates by the entirety or by survivorship held by parties to a divorce are automatically dissolved upon divorce, unless a court order specifically provides otherwise. Ark. Code Ann. § 9-12-317(a). The parties are to be treated thereafter as tenants in common. Id. The statute also provides that when a court “dissolves estates by the entirety or survivorship in real or personal property under this section, the court may distribute the property as provided in § 9-12-315. The court shall set forth its reasons in writing in the decree for making an other than equal distribution to each party, when all the property is considered together, taking into account the factors enumerated in § 9-12-315(a)(l).” Ark. Code Ann. § 9-12-317(c).
The marital residence was owned by Mark and Laura as tenants by the entirety. Thus, the circuit court had the option of disposing of the property in the manner required for the distribution of marital property, that is, one-half to each party unless such a division would be inequitable. The circuit court adequately set forth its reasons for the unequal division of the property, as outlined earlier in this opinion. The court was not required to provide reasons specific to the marital residence, but rather to provide reasons for the unequal division “when all the property is considered together.” Ark. Code Ann. § 9-12-317(c). Thus, the court fulfilled its obligation to supply its reasoning.
2. West Oak Street Property
Mark relies on this court’s opinion in Edwards v. Edwards, 311 Ark. 339, 843 S.W.2d 846 (1992), in support of his argument that Billie Brown owned a purchase-money resulting trust in the West Oak Street property. As we stated in Edwards, a resulting trust arises where one disposes of property under circumstances that raise an inference that he or she does not intend that the putative grantee should have the beneficial interest in the property. Id. Instead, the inference is that the transferor intends to transfer only bare legal title. Id. A resulting trust arises in favor of the person who transfers the property or causes it to be transferred. Id. More specifically, a purchase-money resulting trust “arises where property is purchased and the purchase price is paid by one person and at his/her direction the vendor converts the property to another person.” Id. at 343, 843 S.W.2d at 849.
We stated in Edwards that when a grantor directs that the property be conveyed to a third party who is a stranger, there is a presumption that there has been no gift to the third party but a conveyance of the property to be held in trust for the grantor. Id. “If, however, the third party stands in such relationship to the party furnishing the purchase money as to be the natural object of his/her bounty, things get more complicated, as a gift may have been intended.” Id. at 344, 843 S.W.2d at 849 (citing G.G. Bogert & G.T. Bogert, The Law of Trusts and Trustees § 459 (2d ed. 1991)). Generally, a resulting trust must be proven by clear and convincing evidence. Id. In situations involving third parties who are the natural objects of the grantor’s bounty, the presumption of a gift must be overcome by clear and convincing proof that no such gift was intended. Id. We stated the following in Edwards:
Where a motheris the payor and a child is made the grantee, with the mother’s consent, the courts have not been entirely unanimous in their application of a presumption. Most decisions, however, treat the case in the same way as where the father pays the price, and presume a gift, whether the child be an adult or an infant... . Gifts from her to her children, out of mere generosity or for the purpose of distributing her estate at the end of her life, are quite natural and common.
Id. at 345, 843 S.W.2d at 849 (quoting Bogert, supra, § 460, at 360-65) (emphasis in original).
In the instant case, the testimony indicated that the West Oak Street property was titled in Mark’s and Laura’s names in order to avoid estate taxes. As contemplated in the Bogert treatise, Mark’s mother made a gift to her child “for the purpose of distributing her estate at the end of her life.” Id. Moreover, Mark testified that the property was placed in his and his wife’s names “just so it wouldn’t be an estate. If mother passes away, we wouldn’t have that as a tax consequence. It would already be ours.” This testimony suggests that Billie Brown intended for her son and his wife to have a beneficial interest in the property, subject only to her use of it during her lifetime. In addition, Mark was residing in the West Oak Street house at the time of trial, and his mother was not, indicating a beneficial interest in Mark’s favor. Finally, Billie Brown testified as follows, when asked about her intentions with respect to the West Oak Street property: “[I]nstead of paying cash for it like I usually do everything else I decided I was going to get some interest, you know, and I thought it might as well go to him so I went ahead and just put it in his name, but I’m paying for it.” Again, the evidence suggests an intention on the part of Billie Brown to grant her son a beneficial interest in the property. Thus, the presumption of a gift has not been overcome by clear and convincing proof, and no purchase-money resulting trust arose. The property was correctly deemed marital property.
Affirmed.
Laura filed a notice of cross-appeal but has since abandoned her arguments.
The parties do not dispute the contention that Mark is a self-employed payor. He was employed at the time of trial as an analyst with El Dorado Chemical, where he earned approximately $40,000 per year. However, the occupation listed on his 2004 and 2005 tax returns was “manager-investment.” His testimony at trial confirmed that he considered himself to be a manager-investor, with that being his primary occupation throughout the marriage. | [
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PAUL E. DANIELSON, Justice.
Appellant Talideen Tramal Davenport appeals from his convictions for capital murder and three counts of unlawful discharge of a firearm from a vehicle and his sentence to life imprisonment without parole plus fifteen years. His sole point on appeal is that the circuit court erred in denying his motions for directed verdict. We affirm Davenport’s convictions and sentence.
A review of the record reveals that on October 2, 2005, four teenagers, T.N., L.R.J.R., andJ.S., stopped for gas at a gas station in Little Rock. While the driver, T.N., was pumping gas, a blue Jeep Cherokee pulled next to the teens’ car. Comments were exchanged between the occupants of the two vehicles, and a gun was fired, killing L.R. Davenport was arrested and, ultimately, was convicted of capital murder and three counts of unlawful discharge of a firearm from a vehicle and was sentenced as already set forth.
Davenport argues that the circuit court erred in denying his motions for directed verdict because the State did not provide substantial evidence that Davenport himself discharged a firearm from a vehicle and committed murder. He asserts that the only evidence presented at trial that he was the shooter was the testimony ofT.N., J.R., andJ.S. He contends that their in-court identifications of him were so unreliable and clearly unbelievable that this court should ignore them and overturn his conviction.
The State responds that substantial evidence supported Davenport’s identity as the shooter. It contends that viewing the evidence in the light most favorable to it, the facts were of sufficient force and character to compel a conclusion beyond suspicion or conjecture that Davenport was the shooter. It further submits that to the extent that Davenport challenges the reliability of the identifications, that was for the jury to decide, as Davenport did not argue to the circuit court that the in-court identifications were constitutionally infirm, nor did he object or move to suppress the identifications, waiving any issue relating to any alleged defects.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See id.
Here, Davenport does not challenge the State’s proof on any of the elements of the offenses charged against him, but instead urges that his motions for directed verdict should have been granted due to the fact that the witnesses’ in-court identifications of him were so unreliable and unbelievable. We have held that the credibility of witnesses is a matter for the jury’s consideration. See Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. See Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).
Here, T.N. identified Davenport, at trial, as being the one that he saw with the gun on the evening in question. He stated that he was positive that Davenport was the one and that, at the time, Davenport was partially in the Jeep Cherokee:
Prosecutor: How certain are you of that?
T.N.: Positive, because I seen him, he opened the door, he stepped on — he was inside the door [of the Jeep Cherokee], he stepped on a little ledge right there. He was pointing the gun over on the Jeep.
Prosecutor: Let me ask you this, was he — was his body all still in the car?
T.N.: Like half. His legs — his leg was in the car.
Prosecutor: His legs were in the car?
T.N.: Upper body was above.
Prosecutor: How did he get out and shoot?
T.N.: He got up, stepped up over there, leaned over the car like this and shot.
T.N. testified that as he drove off, J.S. jumped out of the car and ran the other way. T.N. testified that the other vehicle chased after J.S., shooting at him. He testified that L.R. had fallen into his lap and that he thought she had been shot.
T.N. testified that while he made an identification from a photo spread shown to him by police, he “wasn’t sure it was the person.” He then confirmed that, when he saw Davenport in the courtroom that day, he knew Davenport was “the guy” “because I felt and I seen his face and I remember his face because I had — when she told me it was a gun, he had a gun, I had looked up and looked him dead in his eyes and I seen him.” T.N. further stated that Davenport looked as if he had lost a “little weight” since the night in question, that his face was “still the same,” and that he had a “lot more hair on his head.” On cross-examination, T.N. testified that he recognized Davenport “when I walked in the door [of the courtroom]” and that he was “positive” that it was him. On redirect, he testified that it was not possible that he could be mistaken as to Davenport being the shooter because he remembered his face and was never going to forget it.
J.R. also testified that the shooter stood on a “little rail or something” of the Jeep Cherokee “up in the truck” and pointed his gun. She testified that when he started shooting, they “all held our head down.” She admitted that two weeks after going to the police station, she could not pick anyone out of a photo spread presented to her by the police. She then stated that she recognized the shooter when she came to court on that day:
Prosecutor: You thought you were just — let me back up. You thought you were going to introduce yourself to the ladies and gentlemen of the jury. You didn’t think anyone was going to be in here at that time?
J.R.: No, ma’am, I didn’t think so.
Prosecutor: Okay. All right.
J.R.: And so when I came in, and then I — and then I looked that way and I saw when he bit his lip and that made me think about when he was shooting the gun, he was biting his Up.
Prosecutor: Okay.
J.R.: And so that made me think about it and it flashed back.
Prosecutor: Who are you talking about?
J.R.: The shooter.
Prosecutor: Who is that? Who is it?
J.R.: Him right there.
Prosecutor: Where is he sitting?
J.R.: (Witness pointing.)
Prosecutor: Okay. All right. Let me ask you something. Are you pointing to him just because he’s black?
J.R.: No.
Prosecutor: Are you sure?
J.R.: Yes.Yes, ma’am.
Prosecutor: Are you pointing to him because you feel Uke you’re under pressure? And I want you to be honest with these people.
J.R.: No. I actually, I just I remember [sic] this part right here. I remember Uke his nose and from him biting his Up. And when he bit his Up as I walked in[to the courtroom], that made me think about it.
Prosecutor: And you say he was biting his lip as he was shooting?
J.R.: And it flashed back. Yes, ma’am.
Prosecutor: You remember?
J.R.: Yes, ma’am, he was biting his lip when he was shooting.
On cross-examination, J.R. confirmed that she told police that as soon as she saw the gun, she “ducked [her] head.”
Finally, J.S. testified that the shooter “hung out of the car and started shooting.” He testified that he had “peeped” at the shooter’s face, seen him, and took off running. He testified that a few weeks after the shooting, he returned to the police station to look at some pictures, but could not pick the shooter out of them. He testified that the next time he saw the shooter, other than the night of the shooting, was when he came for a hearing with L.R.’s mother, his godmother. He stated that a “whole bunch of inmates” were on one row with people on both sides and that when he walked in, “it just hit [him] all over again like he was right there shooting[.]” J.S. testified that after he left the courtroom that day, he did not see the shooter again. He then identified Davenport as the shooter. He stated that he was “a hundred percent” certain that Davenport was the person who shot at the teens’ car. He then testified that he was never going to forget the face that was shooting at him and killed his godsister.
In addition to the three teens’ testimony set forth above, further evidence was presented that pointed to Davenport as the shooter. A.H. testified that she was at the gas station at the time of the shooting, having arrived in a separate car from that of the teens’ or Davenport. She testified that while walking toward the gas station to use the restroom, she overheard “words,” then saw the gun, and began running back towards her car. She admitted knowing Davenport as “Fat Boy.” She further admitted that in her statement to police, she acknowledged that “Fat Boy” also went by the name of “Todd.” She admitted that she picked him out of a photo spread presented to her by the police. At the time of trial, however, she said that she did not know if Davenport was the shooter and that she did not see his face. She did, nonetheless, admit that she told the police that he was the person shooting at the car:
Prosecutor: Is he the person that was shooting at that car?
A.H.: I don’t — I don’t know.
Prosecutor: I don’t- know.
A.H.: I didn’t see his face.
Prosecutor: Okay. Did you — would you agree with me that you told the police that he was?
A.H.: Yes.
Prosecutor: You did tell the police —
A.H.: Yes, I did.
Prosecutor: — that he was the person?
A.H.: I told them that, yes, that day.
A.H. then testified that she lied to police because she felt pressured to do so.
Joseph Ramey also testified. He testified that he was currently incarcerated in the Arkansas Department of Correction (ADC) for a sentence of sixty years. He acknowledged that he approached the prosecutor about Davenport and that, in exchange for Ramey’s testimony, the prosecutor would send a letter to the parole board or the judge informing them about his cooperation in the case and would send a letter to ADC asking it to keep him housed at a certain unit. He testified that, while housed with Davenport at the county jail, Davenport told Ramey that he needed to lose weight so he would not “look like Fat Boy.” He further testified that Davenport gave his food away every day and that Davenport showed him the police files in his case, which Davenport had acquired through discovery.
Ramey testified that Davenport showed him in the police files where A.H. initially told police that she thought Davenport was the shooter and where she later stated that “it was definitely him.” He stated that Davenport told him that “[h]e was trying to come up with a way to get her to change her story to say that she was drunk when she made the statement.” He further stated that Davenport told him that “he had sent an affidavit to his brother and for her to fill out and send back, telling her what to say on the affidavit, changing her mind.” Finally, Detective Eric Knowles testified that, when he arrested Davenport in connection with L.R.’s murder, “he was heavier-set at the time that he was arrested[.]”
Based on the foregoing, we hold that there was substantial evidence to support the jury’s verdicts, as the jury clearly found the witnesses and their identifications of Davenport credible. As the State points out, Davenport did not challenge or object to the witnesses’ in-court identifications when they were made, but instead attempted to discredit their testimony on cross-examination, as he was permitted to do by the circuit court. Moreover, he merely challenges the witnesses’ in-court identifications in the context of his challenge to the sufficiency of the evidence. Flere, there were three eyewitnesses who testified, identifying Davenport as the shooter, as well as another eyewitness’s testimony that she initially identified him as the shooter and later changed her story. We have held that the testimony of one eyewitness alone is sufficient to sustain a conviction. See Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). Furthermore, the jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. See White v. State, 370 Ark. 284, 259 S.W.3d 410 (2007). For these reasons, we affirm.
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Davenport, and no prejudicial error has been found.
Affirmed.
Pretrial, defense counsel made a comment to the circuit court regarding the possibility of in-court identifications; however, no specific objection was made, and the circuit court stated that it would allow the defense to “take care of that on your cross-examination.” A review of the record reveals that no objection was made during any of the witnesses’ testimony challenging their in-court identifications.
in his brief, Davenport cites to factors he asserts are used by this court to determine the reliability of an in-court identification. However, that analysis is used where a challenge has been made to the admissibility of a pretrial identification as unduly suggestive. See, e.g. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). There was no pretrial identification challenged in the instant case. | [
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