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Robins, J.
Appellant and appellee are neighbors, each farming land in the White River bottom in Durham township, Washington county, Arkansas. The running at large of cattle in this township was made unlawful by the provisions of Act 103 of the General Assembly of Arkansas of 1907, as amended by Act 273 of the General Assembly of Arkansas of 1909, put in effect by the voters at an election held in 1921. After his fence was damaged by a flood from the river some of appellant’s cattle strayed from his premises on to the land of appellee where they ate, trampled and otherwise damaged appel lee’s field of oats and Lespedeza. Appellee sued appellant for $150; for damages thus done to his crops, and was awarded $60 by the trial jury. Prom judgment on the verdict comes this appeal.
Appellant does not contend here that his cattle did not damage appellee’s crops, but urges that the lower court erred in not presenting to the jury appellant’s theory of the law as to liability and in improperly instructing the jury on the measure of damages.
Appellant argues that the owner of cattle in a district where the running at large of cattle has been made unlawful by statute is not liable for damage done to the crops of another by his cattle unless their escape from the owner’s enclosure is caused by negligence of the owner; and appellant sought to avoid liability by showing that his fence was damaged by an overflow, and that his cattle escaped from his pasture before he had an opportunity to make the necessary, repairs thereon. The lower court refused to adopt appellant’s theory, but told the jury that if the lands of both parties were in the “fencing district” it was the duty .of appellant to “keep his cattle enclosed, and restrain them from running at large,” and that, if appellee sustained damage by reason of appellant’s cattle entering appellee’s field, appellee should recover.
The lower court properly stated the law. The statute requires all persons in the territory in which it is made operative by vote of the electors to restrain their stock. It does not provide merely that they must use proper diligence to keep their cattle in enclosures. The language of the statute is that (after adoption by the voters) “it shall be unlawful for any hogs, sheep, goats, horses, mules, cattle or any other animal calculated to destroy growing crops to run at large in such townships.”’ Under this law it was the duty of appellant to keep up his cattle, and the [aw contains no provision under which appellant may be relieved of payment for damage done by his trespassing cattle simply because they escaped from his enclosure through no fault or lack of diligence on his part.
This court, in the case of McKenzie v. Newton, 89 Ark. 564, 117 S. W. 553, held (Headnote 2): “Animals are ‘running at large’ within the limits of a city if they are within such limits without being under the control of any one, without regard to whether the owner was at fault in permitting their escape or in making diligent search for them thereafter.” While there is some conflict in the authorities, we conclude that the correct rule as to liability of the owner of livestock which trespass upon and damage crops in a territory where the running at large of such stock is forbidden by law was thus expressed by the Supreme Court of Wisconsin, in the case of Fox v. Koehnig, 190 Wis. 528, 209 N. W. 708, 49 A. L. R. 903: ‘ ‘ The liability of the owner for damage resulting from trespass committed by his livestock upon the land of his neighbor is absolute, and depends in no degree upon the question of negligence. . . . It is a well-known propensity of livestock, such as horses, cattle, sheep and other domestic animals to graze, upon, trample down and destroy grass and other growing crops. For such damage the liability of the owner is absolute.”
The undisputed testimony shows that damage of an amount at least equalling the amount of the jury’s verdict was done to appellee’s crops by appellant’s cattle. This makes it unnecessary for us to determine whether the court’s instructions on measure of damages were proper because, even if incorrect, they could not be held to be prejudicial to appellant.
The judgment of the lower court is affirmed. | [
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Holt, J.
Appellants having acquired a 3/5 interest in a tract of land in Boone county, Arkansas, containing approximately 202 acres, on December 30,1942, filed suit for a partition. In their complaint, they alleged that the property was not susceptible of division in kind and asked that it be sold and the proceeds divided among the interested parties.
Appellee, Lillie Collins Cunningham, answered, asserting that the property was susceptible of division in kind, and prayed that such division be made. Appellee, Pearlie Collins. Pruitt, an incompetent, answered by guardian acl litem, and denied every material allegation in the complaint.
April 21,1943, the court ordered the land partitioned and appointed commissioners for this purpose. June 15, 1943, the commissioners filed an amended and final report in which they divided all of the land in kind, with the exception of approximately two acres lying three quarters of a mile from the main tract, which was not susceptible of division in kind.
On June 18, 1943, appellants filed exceptions to the report of the commissioners. Their prayer was that the "commissioners’ report be set aside for want of equity and that said land be by the court ordered sold and the proceeds divided among the parties herein, according to their respective interests,” etc. On this same date, June 18, 1943, a day of the March term of the Boone chancery court, the cause was submitted to the court upon the report of the commissioners, the exceptions thereto filed by appellants, and the testimony of witnesses on behalf of all the parties, and there was a finding and decree confirming and approving the report of the commissioners and investing and divesting title to the various parcels of land as divided by the commissioners. On June 25th following, the deeds, executed in conformity with the court’s decree of June 18,1943, were submitted, approved and filed.
No further proceedings were had in the cause until December 10, 1943, when appellants filed a motion to be permitted to retake testimony. This motion was overruled December 13, 1943. This appeal was granted December 20, 1943.
At the threshold, we are met with appellee’s contention that this appeal comes too late and should be dismissed. We think appellee’s contention must be sustained.
Section 2746 of Pope’s Digest provides that “an appeal . . . shall not be granted, except within six months next after the rendition of the judgment, order or decree sought to be reviewed,” etc.
The March term of the Boone chancery court began the first Monday in March, 1943, and extended to the ■first Monday in September thereafter. 2798, Pope’s Digest.) This decree of June 18, 1943, was a final decree and was taken during the March term. It is well settled by many" decisions of this court that the time for- appeal runs from the date of rendition of the decree or judgment. In Bradley v. Ashby, 188 Ark. 707, 67 S. W. 2d 739, this court said: “The time for taking an appeal to the Supreme Court is six months after the rendition of the judgment, order or decree sought to be reviewed; and in a proceeding in chancery this time is not extended by reason of the filing of a motion to vacate the decree. See, also, Pearce v. People’s Sav. Bank & Trust Co., 152 Ark. 581, 238 S. W. 1063; Moore v. Henderson, 74 Ark. 181, 85 S. W. 237.” See, also, Chatfield v. Jarratt, 108 Ark. 523, 158 S. W. 146.
In computing the six months period, the time allowed for appeal, the day on which the decree was rendered must be excluded, and the day on which the appeal is filed included, and when this is done, it is apparent that the last day on which appellants’ appeal could be filed was December 18, 1943. Since it was not filed until December 20, 1943, it was two days too late. Clark v. American Exchange Trust Co., 189 Ark. 717, 74 S. W. 2d 974.
In Bank of El Paso v. Neal, 181 Ark. 788, 27 S. W. 2d 1024, we held: (Headnote 1) “An appeal granted on January 16, 1930, from a judgment rendered July 15, 1929, was not -taken within six months as required by Crawford & Moses’ Dig., § 2140,” and in the body of the opinion, it is said: “It is a general rule, not only in jurisdictions where the computation of time is regulated by statute, but in other jurisdictions, where it is not so regulated, that, in computing the time given or allowed by statute or order of court for taking of an appeal or writ of error, and all the proceedings necessary to perfect the same, there should be excluded the date of rendition of the judgment, order, or decree or other day from which the time commences to run, and that the last day, or the day on which the appeal is taken, should be included. 38 Cyc. 326. Early & Co. v. Maxwell & Co., 103 Ark. 569, 148 S. W. 496; Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491; Shinn v. Tucker, 33 Ark. 421; Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Pearce v. Peoples Savings Bank & Trust Co., 152 Ark. 581, 238 S. W. 1063; Feild v. Waters, 148 Ark. 325, 229 S. W. 735; 3 C. J. 1047. . . . On what day, therefore, did six calendar months from November 30,1894, expire? Under all of the authorities, without exceptions, which we have been able to find, the period would.expire on May 30, 1895. . . . The time within which an appeal must be taken being fixed by statute, it must be taken within the time designated. The provision which limits the time is jurisdictional in its nature. Sample v. Manning, 168 Ark. 122, 269 S. W. 55.” See, also, Edgmon v. Edgmon, 193 Ark. 1076, 104 S. W. 2d 452.
Appellants ’ motion to retake testimony filed December 10, 1943, was filed on a day within a new term — the September term — of the Boone chancery court, and after the March term, during which the decree of June 18,1943, was entered, had lapsed.
The court below, with its terms fixed by law, had no power to vacate or modify its decree after the lapse of the term at which it was rendered, except on some one of the statutory grounds provided in §§ 1541 and 8246 of Pope’s Digest. None of these grounds is relied upon by appellants in their motion to retake testimony, and the court, therefore, properly denied their petition. In Feild v. Waters, 148 Ark. 325, 229 S. W. 735, this court said: “A court with teims fixed by law has no power to vacate a judgment after the lapse of the term at which it was rendered, for the court loses control over its own judgments at the end of the term. Walker v. Jefferson, 5 Ark. 23; Mayor v. Bullock, 6 Ark. 282; Rawdon v. Rapley, 14 Ark. 203, 58 Am. Dec. 370; McKnight v. Strong, 25 Ark. 212; Brady v. Hamlett, 33 Ark. 105. After tire lapse of tire term the court can set aside its judgment rendered at a former term only on the grounds specified in the statute. Crawford & Moses ’ Digest, §§ 1316, 6290; Turner v. Vaughan, 33 Ark. 454; Malpas v. Lowenstein, 46 Ark. 552; Johnson v. Campbell, 52 Ark. 316, 12 S. W. 578; Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S. W. 199; Terry v. Logue, 97 Ark. 314, 133 S. W. 1135.” Sections 1316 and 6290, supra, are now 1541 and 8246 of Pope’s Digest, respectively.
. In Edgmon v. Edgmon, supra, a case quite similar to the instant case, this court refused to consider any matter concluded by the decree of partition and considered only appellants’ exceptions to the report of the commissioner, report of the trustee as to the distribution of the assets, and such other matters as arose subsequent to and were not concluded by the final decree in that case. There, this court said: “There are, therefore, no questions for this court to determine now, except the exceptions to the commissioner’s report of sale, and exceptions to the report of the trustee as to his distribution of the assets under the original decree.”
In the instant case, appellants have filed no exceptions subsequent to the court’s final decree of June 18, 1943, and all matters effecting the partition of the land in question were concluded by that decree.
Having reached the conclusion that the appeal wa=! filed too late, it must be dismissed, and it is so ordered. | [
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Robins, J.
Appellee recovered judgment based on verdict of a jury in his favor against appellant, an X-ray specialist, for $2,000 for injury alleged to have been sustained by appellee as a- result of the negligence of appellant. These grounds for reversal of this judgment are urged by appellant: (1) that appellant was not liable for .the negligence of Miss Kathleen Egner, the assistant of appellant, who was making X-ray photographs of appellee’s teeth at the time the injury occurred; (2) that there was no proof of any negligence on the part of appellant or his assistant which caused appellee’s injury; and (3) that the amount of the verdict was excessive.
I.
The undisputed evidence shows that appellee received an electric shock and certain burns while X-ray photographs were being made by Miss Kathleen Egner, a technician employed by appellant.
Appellee testified that he went to appellant’s office and told him he wanted an X-ray picture made of certain teeth and that appellant then conducted appellee to his X-ray room where he was turned over to Miss Egner; that Miss Egner prepared the table and explained to appellee how he was to place himself on it; that he lay at full length on the table and a picture was first taken of an upper tooth, and then the operation of taking a picture of a second tooth was begun; that he was told by Miss Egner to hold a piece of film behind the lower tooth with his thumb and to swing his head and hand to the left; that Miss Egner shifted appellee’s head to the left and moved his thumb so that she could take an X-ray picture through his right cheek; that he was looking at the machine and at her at the time; that “In moving the. machine over she hit me here on the finger— right here on that finger, and when she did the fire and i he shock all occurred just at one timé, . . . ”; that as a result of this shock he went off the table on to the floor and he received burns on the arm and finger and the stomach; that his underclothing caught fire; that Miss Egner ran over toward the door where Dr. Gray was; that he began to feel the burns and smell the odor of burning clothing and burning flesh; that Dr. Gray went out and came back with a tube of lotion; that Dr. Gray said the machine must have come'in contact .with his belt buckle or tie clasp.
It was shown by the testimony that Miss Egner was an experienced X-ray technician, but was not a physician; that appellant was a practicing physician who had been handling X-ray equipment and specializing in X-ray work for about fourteen years; that during the time Miss Egner was taking the X-ray photographs' appellant was in his private office; that his office was so arranged that appellant could see Miss Egner, but could not see the patient; that appellant heard the patient cry .out and immediately went into the part of his office where the X-ray machine was situated.
Appellant urges that under the rule laid down in the case of Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, 13 A. L. R. 1403, appellant is not liable in this case, for the reason that the negligence complained of was the negligence of Miss Egner and not that of appellant. In the Runyan case it-appeared that Drs. Runyan, Kirby and Sheppard were general practitioners and surgeons operating a hospital in which they maintained an X-ray department under the immediate supervision of a physician who was an X-ray specialist, and that this physician had a woman assistant who actually operated the X-ray machine; that the appellee, Miss Goodrum, was burned by the woman assistant and sued Drs. Runyan, Kirby and Sheppard for damages. It was held in that case that an X-ray specialist, or Roentgenologist, was in the same class with a physician and surgeon, and, for that reason-, a general practitioner, not himself an X-ray specialist, should not be liable for injury caused by the negligence of an X-ray technician employed by him. But in the Runyan case the court stressed the fact that Drs. Runyan, Kirby and Sheppard were not K-ray specialists and had had no training in Roentgenology.
Judge Wood, speaking for the court in that case, said: “Buch being our conclusion, it inevitably follows under the doctrine of our own cases that the relation of master and servant cannot exist between physicians and surgeons who are not X-ray specialists themselves and the X-ray specialist, or Roentgenologist, whom thejr employ to assist them in the diagnosis and treatment of diseases.” (Italics supplied.) The language just quoted was used by the editors of Corpus Juris (vol. 39, p. 1269) in stating the rule laid down in the Runyan case, supra,.
In the case at bar it is not disputed that appellant was himself an X-ray specialist, who apparently did no other sort of practice except X-ray work, and was not a general practitioner. The facts in this case do not bring it within the rule announced in the Rimyan case. Doubtless appellee availed himself of the services of appellant because of appellant’s reputation for skill and knowledge as a Roentgenologist. Appellee testified that he did not know Miss Egner, and he naturally relied, not on the knowledge and skill of Miss Egner, but upon that of appellant. While Miss Egner was doing the manual work of operating the X-ray machine, it appeared that the machine was separated from the part of the office in which Dr. Gray- was at the time by a partition that did not entirely cut off Dr. Gray’s view, and that Miss Egiier was in sight of Dr. Gray while she was operating the X-ray machine.
The proof established the relation of master and servant between appellant and Miss Egner, so as to render appellant liable for injury caused by the negligence of the latter. “It is an old and thoroughly established doctrine that, where the relation of master and servant exists, the master is responsible to third persons for injuries resulting from wrongful acts or omissions of a servant within the scope of his employment in the master’s service.” Shearman and Redfield on Negli gence, vol. 1, p. 350. “A physician is responsible for an injury done to a patient through the want of proper skill and care in his assistant, apprentice, agent, or employee. ” 48 C. J. 1137.
In a recent case decided by the Supreme Court of Pennsylvania, Kelly v. Yount, 338 Pa. 190, 12 Atl. 2d 579, a physician, who was an X-ray specialist, was held liable for injury caused by the negligence of his assistant, who was a skilled X-ray technician, and in that case it was conceded that, under the proof, the X-ray technician was the servant of the physician.
II.
Miss Egner testified that she was not standing by the table when appellee received the shock, but that she was standing at a control cabinet about six feet away and that she did not cause appellee to receive the shock by moving the tube, as appellee testified she did. There was also some testimony tending to show that it was improbable that appellee could receive the shock in the manner claimed by him. Appellant’s contention is that appellee himself raised his hand up in some way a distance of about fourteen inches and touched the tube thereby causing the shock. Appellee denied this, and testified that the electric shock was caused by Miss Egner pushing the tube against him. It was within the. province of the jury to settle the conflict in the testimony, and the jury saw fit to accept appellee’s version.
Furthermore, it is not denied that appellee did receive an electric shock strong enough to set fire to his clothing and to burn him in several places, and that he received this shock while he was on the operating table of appellant, and that the shock was caused in some manner by appellant’s X-ray machine. This being true, it did not devolve upon appellee to show the exact cause of the injury. In the case of Kelly v. Yount, supra, the Supreme Court of Pennsylvania, in discussing the rule as to the burden of pr'oof in a case of this kind, said: “When the thing which causes the injury is shown to be under the management of defendants and the acei dent is sucli as in the ordinary course of things' does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by defendants, that the accident arose from a want of care, . . . ”
We conclude that there was substantial evidence to support the finding of the jury that appellee’s injury was caused by the negligent operation of the X-ray machine.
III.
The contention that the amount of the judgment is excessive must be sustained. The testimony of appellee’s physician showed that appellee received one burn on his stomach about “the size of a fair sized wart,” another burn on the chest which was smaller, two very small burns about the size of a grain of wheat on the left arm and a small burn on the finger; and that all these burns were superficial and self-sterilizing. While appellee received treatment for these burns for several weeks he was not disabled therefrom at any time, and continued to carry on his regular work. He made no claim for medical expense. Appellee stated that he suffered from shock, and that the condition of a preexisting hernia was aggravated as a result thereof, but there was no medical testimony as to any injury except the actual burns. We conclude that any judgment in this case for over $1,000 would be excessive. If, therefore, appellee, within fifteen days, will remit all of the judgment herein, above the sum of $1,000, the judgment will be affirmed, otherwise it will be reversed and remanded for new trial. | [
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Smith, J.
No testimony was heard at the trial from which is this appeal, the case having been disposed of on the pleadings. We, therefore, copy so much of the pleadings as is necessary to present the questions involved.
Condemnation proceedings were instituted by the city of Fayetteville, under the authority of Act 135 of the Acts of 1929, Yol. 1, p. 705, to construct an airport. This act appears as §§ 10037-10041, Pope’s Digest. Section 2 of the act reads as follows :
“The real property for such airports or flying fields may be acquired by gift or purchase, or by the exercise of the right of eminent domain which is hereby granted to such cities for such purpose. Provided the general fund of any city shall not be used for such purpose. The procedure for the exercise of the right of emi nent domain shall be that prescribed by law for the exercise of snch power by railroads.”
• The petition for condemnation alleged that Clyde Selle and the other appellant here are the owners of a certain 165-acre tract of land, which the city required for the purpose of constructing the airport, and that the city has been unable to obtain the land by purchase from the owners, wherefore, it was prayed that the court fix an amount to be deposited by the petitioner to authorize the immediate entry upon the land, and that the cause be heard to determine the amount of compensation due the landowners, in the manner prescribed by law.
The petition was presented to the court and on September 20, 1943, an order was entered requiring a deposit of $5,000 by petitioners as a condition precedent to the city’s right to enter upon and to take possession, of the land. This deposit has never been made. Notice of this order was duly served upon the landowners. A trial in the circuit court before a jury was had on November 1, 1943, and a verdict was returned fixing the value of the land at $16,000. A motion was filed by the city to dismiss the proceeding, which recited that on November 23, 1943’, which was within less than 30 days of the judgment rendered November 1, 1943, the city had served notice upon the landowners that it had elected to abandon the condemnation proceeding.
The landowners filed a response to this motion, in which they alleged:
1. That the cause had proceeded to a verdict and judgment and the city was not entitled to dismiss the proceeding.
2. That the cause had been dismissed to clear the way for another suit having the same purpose, and praying that if the cause were dismissed it should be with prejudice against instituting another suit for the same purpose.
3. That before the city should be permitted to dismiss the cause even with prejudice to another suit, the city should he required to pay the expenses and costs to the landowners in defending the suit as follows: attorney fee, $1,700; cost of witness and proper defense, $500; and for placing cloud on title, $500; All of which the city should be required to pay before dismissing the suit. .
4. That if the city were permitted to dismiss, it should be required to restore the landowners to the position they were in before the institution of the proceedings.
5. That the landowners have another suit pending to recover costs and damages which should be consolidated and heard with the motion of the city to the end that all the issues between the parties might be settled.
The suit referred to was brought hy the landowners against the city, and recited the facts hereinbefore stated. It was alleged in this complaint, in addition, that the landowners had incurred expenses in preparation for the trial of the condemnation suit, including the employment of an attorney. It was also alleged that the city was not in good faith in attempting to abandon the condemnation suit, but intended to harass the landowners into accepting a compensation less than that fixed by the verdict of the jury and the judgment of the court.
The lack of good faith on the part of the city was further alleged in that the city did not intend to use all of the land it had condemned, but had arranged to sell 40 acres thereof for private purposes, and at a profit. Whereupon it was prayed that if the city were allowed to dismiss the proceedings, it be required to pay the damages above claimed.
There was a motion to strike the response of the landowners, which was considered along'with the other pleadings, from which it was ordered and adjudged that the city had properly abandoned the condemnation proceedings, and had not entered upon the land, and had made no payment or deposit, and in abandoning the condemnation proceedings had forfeited all rights in the premises, but was not entitled to dismiss the suit.
The motion to strike the response was treated as a demurrer and was sustained as such for the reason that there is no law authorizing the defendant in a condemnation suit to recover expenses as damages in such cases. The landowners refused to plead further and their claim for damages and expenses was dismissed.
The city excepted to the refusal of the court to dismiss the proceedings and the landowners excepted to the holding that they are not entitled to recover expenses and damages and in permitting the city to abandon the proceedings, and both parties have appealed. The city has paid the costs of the original condemnation proceedings.
We consider first the right of the city to abandon the proceedings. We think it has that right and the permission of the court was not necessary to its exercise, but we consider later the consequences of that action under the pleading set out abovev
There is an exhaustive annotation of this question appended to the case of Cunningham v. Memphis R. T. Co., 126 Tenn. 343, 149 S. W. 103, Ann. Cas. 1913E, 1058, and the annotator summarizes the numerous cases there cited and reviewed, with the statement that in the absence of a statute fixing the time within which a discontinuance may be had, the general rule unquestionably is that the proceedings may be dismissed at any time before the rights of the parties have become reciprocally vested,> and that the cases are divided into two groups, the majority of the cases holding that the rights of the parties are not vested until the amount of the award is paid, or the ¿and is taken, while in some jurisdictions the confirmation of the award by the court vests the rights of the parties and precludes discontinuance.
It was there pointed out that the cases cited had construed the statutes of the states in which the decisions were rendered. The annotator then takes up the separate laws of the several states, and as to Arkansas says:
“In Arkansas actual payment of the compensation seems to be prerequisite to the vesting of rights. The taking of possession by the condemnor, without payment, does not preclude a discontinuance. Pine Bluff, etc., R. Co. v. Kelly, 78 Ark. 83, 93 S. W. 562. Nor does the making of the deposit which is required as a condition precedent to interlocutory possession preclude a discontinuance. Reynolds v. Louisiana, etc., Railway Co., 59 Ark. 171, 26 S. W. 1039.”
Under our statute the right of appropriation of the landowner’s land becomes an option to acquire the land upon the rendition of the judgment assessing value, which must be exercised within 30 days, but which expires if not exercised within that time, by the payment of the award. Section 5004, Pope’s Digest, reads as follows: “In all cases where such company shall not pay or deposit the amount of the damages assessed as aforesaid within thirty days after such assessment, they shall forfeit all rights in the premises.”
Now while the authority to dismiss such proceedings exists until the rights of the parties have reciprocally vested, and abates by operation of law if the award is not paid within thirty days, the condemnor is liable for any damages occasioned by the deprivation of any use of the land to which it would prudently have been put, after the option comes into existence, until the notice is given that it will not be exercised.
A well-considered case on the subject of the right to abandon the proceedings is that of S. Carolina State Highway Dept. v. Bobotes, 180 S. C. 183, 185 S. E. 165, 121 A. L. R. 1, in which case the headnote reads as follows:
“In a state in which the Constitution provides that private property may not be taken for public purposes without just compensation first being made therefor, a condemnation proceeding instituted by the State Highway Department may, in the absence of any statutory provision to the contrary, be abandoned, with consequent nonliability for the amount awarded, even after judgment has been entered on a jury’s assessment of the value of the property and an appeal therefrom has been noticed,, where the taking has not been completed by entering into possession or by paying or tendering the amount of tbe final award; and neither a tender of the preliminary award made by a commission, from which an appeal was taken to the court, nor the deposit of the amount with the state treasurer pending the appeal, not accompanied by actual entry, has the effect of complet.ing the taking.”
Cases apparently from all the states of the union are there cited and reviewed in the annotator’s note, the decisions being based upon the respective statutes which they construed and the annotator summarizes his review with the statement that, “While the right to abandon condemnation proceedings may be relinquished by agreement or lost by estoppel, the general rule that in the absence of a statute fixing the time within which a discontinuance may be had, an eminent domain proceeding may be discontinued at any time before the rights of the parties have become reciprocally vested, is unquestioned.” We have no statute fixing the time within which there may be a discontinuance,, but we have on the contrary a statute which abates the proceedings if the award is not paid within 30 days.
Here not only was the deposit fixed by the court in its preliminary order not paid, but the award was not paid, and notice was given that the condemnor had abandoned the proceedings. The court therefore properly held that the city had the right to abandon the attempt to condemn the land for airport purposes. The city insists, however, that the court erred in not dismissing the entire case and this contention presents a more serious and difficult question.
Now the city’s right to condemn is absolute and is unquestioned, and the landowner can ask only in such proceedings that he be paid the value of his property. The airport act, supra, provides that the proceedings for the exercise of the right of eminent domain shall be that prescribed by law for the exercise of such power by railroads, and in the case of St. L., I. M. & S. R. Co. v. Ft. Smith & Van Buren R. Co., 104 Ark. 344, 148 S. W. 531, it was held (to quote the first headnote) that: “The sole object of proceedings to condemn land for railroad pur-. poses is to ascertain tbe compensation to be paid to tbe owner for Ms damages, and no provision is made for an issue on tbe right to condemn; the owner’s remedy, when his land is sought to be taken for purposes other than a public use, being by injunction.”
Here the landowners have alleged in an independent suit filed by them, that they have sustained damages which could not htave been proved and recovered in the condemnation suit, and their action in filing an independent suit to recover these damages conforms to the opinion of Justice Battle in the case of Pine Bluff W. R. Co. v. Kelly, 78 Ark. 83, 93 S. W. 562. There it was said that a suit by a railroad company to condemn land for a right-of-way is a special proceeding whose sole object is to ascertain the compensation that the railroad company shall pay for the right-of-way. In that case the railroad company had made the deposit required by the court, and authorized by statute (§ 5002, Pope’s Digest), which permitted the railroad company to enter upon the land, before the damages had been assessed, but after doing so, it was decided to abandon the condemnation proceedings. It was held that the railroad company had this right even after entry made, and the court defined the damages and the measure thereof under those circumstances, and it was there said that, “For all other damages occasioned by torts committed or wrongs done by the railroad company the owners have remedies in actions to recover the same.”
Here it is alleged that the city has been guilty of the wrongful purpose of attempting to condemn land for airport purposes, which was intended for other purposes, to-wit: that lands be acquired not needed or required for airport purposes, but intended to be sold at a profit above the cost of acquisition. This fact was alleged but was not proved, as the cause was disposed of on the pleadings.
Bad faith on the part of the city is alleged, and, if true, constituted a cause of action, which would have entitled the landowners to recover a reasonable attor ney’s fee and any damages that may have resulted from placing a cloud upon the title during the period of the existence of the option to acquire the land. Section 339, Chap. Eminent Domain, Vol. 30, C. J. S., § 339, p. 15.
It was said in the case of Young v. Gurdon, 169 Ark. 399, 275 S. W. 890, that: “It is a sound principle to apply under the doctrine of eminent domain that no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary. Cooley*on Constitutional Limitations, 7 Ed., p. 779; Mills on Eminent Domain, p. 110, § 23.”
Now the city had the right to determine what land it would condernnfor airport purposes, and the quantity thereof, and if the case were tried at law, no question could have been litigated except the value' of the land which it proposed to take. Had the property owners thought that more land was being condemned than was required, or that land was about to be condemned which would not be devoted to airport purposes, but was being-acquired for sale at a profit, an answer should have been filed raising those questions, with a motion to transfer to equity, a.s stated in the case of St. L., I. M. & S. R. Co. v. Ft. Smith & Van Buren R. Co., supra. (City of Richmond v. Carneal, 129 Va. 388, 166 S. E. 403, 14 A. L. R. 1341.)
Upon the transfer to equity, had that relief been asked, not only could these questions have been determined, but the value of the land could have been adjudged, had the contention of the landowners been sustained, this being upon the theory that the chancery court having obtained jurisdiction for one purpose, would retain jurisdiction for all purposes. This was not done and the right of the landowners to litigate these questions must be deemed to have been waived, and especially so as the city is not now trying to appropriate this excess - of land, or any land whatsoever for that matter. The landowners make no allegations as to the time when they obtained information as to the wrongful purposes of the city, and they apparently elected to take the chance of making an advantageous sale of tlie land to the city, and will not now be permitted to litigate a question which they had the right to have decided in another forum. St. L., I. M. & S. R. Co. v. Faisst, 99, Ark. 61, 137 S. W. 815.
The court made no allowance of an attorney’s fee in computing the costs of the condemnation suit (which the city has paid), and this was correct. There is no authority in the law for the allowance of this fee as costs. Ordinarily a litigant who has successfully defended against the assertion of a demand against him must pay his own attorney and cannot recover a fee for his attorney, absent any statute authorizing this to be done, or an implied contractual obligation, which has been breached, as in the case of a grantee in a warranty deed who has been required to defend his title. Beach v. Nordman, 90 Ark. 59, 117 S. W. 785; Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101; O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533; Ark. Trust Company v. Bates, 187 Ark. 331, 59 S. W. 2d 1025.
Another case which contains an annotation of the right to dismiss a condemnation proceeding is that of McCready v. Rio Grande W. Ry. Co., 30 Utah 1, 83 Pac. 331, 8 Ann. Cas. 734, and appended to this case is the following note by the annotator:
“The holding of the reported case to the effect that, in the absence of statutory authority, a party who voluntarily and in good faith dismisses proceedings brought by him for the condemnation of land is not liable to the landowner for the expenses the latter was put to in employing counsel and hiring expert witnesses, and his own loss of time and expenditures made in the defense of such suit, finds support in the following cases (citing-cases) : These decisions appear to be based upon the ground that, in the absence of conduct on the part of the plaintiff in the condemnation proceedings which would give rise to a cause of action in tort, the condemning party cannot be held guilty of a legal wrong- in bringing an action authorized by law and in bona fide dismissing it at a time and under circumstances warranting it, since he has been within his legal rights; and that if the land owner necessarily incurred expense in preparing Ms defense to the condemnation proceedings, it is a case of damnum absque injuria, for which no recovery can be had. Bergman v. St. Paul, etc., R. Co., 21 Minn. 533.”
We conclude therefore, that the court properly permitted the city to dismiss the condemnation proceedings, but erred in refusing to dismiss the entire proceedings. The cause will, therefore, be remanded with directions to dismiss the suit. | [
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Robins, J.
Appellants, composing three firms of attorneys, by this appeal, seek to have increased the amount of the fee allowed to them by the lower court for services rendered on behalf of Tri-County Drainage District. As attorneys for certain taxpayers of this district appellants filed and prosecuted to a successful conclusion an intervention in á proceeding in the chancery court of Crittenden county, Arkansas, wherein the affairs of said drainage district were being administered under a receivership. The subject-matter and result of this litigation is fully shown in our opinion in the case of Douglas v. Thompson, 206 Ark. 92, 176 S. W. 2d 717, decided April 26, 1943.
Appellants assert that their services brought about a saving to the taxpayers' of approximately $100,000, effected by the cancellation of principal and interest of certain bonds in the hands of L. K. Thompson, the recovery of a judgment against the Bank Commissioner, the recovery of a' judgment against the estate of W. B. Rhodes, and the cancellation of certain bonds carried as assets of the Bank of Marion at the time it ceased to do business. Appellee district concedes that the net saving to it by reason of the litigation handled bj^ appellants amounted to $72,500, which, according to its contention,' includes $43,000 in bonds held by L. K. Thompson which were canceled, $12,000 interest thereon, and a judgment for $17,500 against the Bank of Marion. Appellee contends that the judgment against the estate of W. B. Rhodes for $7,500 was not obtained through the efforts of appellant's, and that an agreement as to the cancellation of $15,000 in bonds held by the Bank of Marion had already been made before appellants filed the intervention.
The testimony established that appellants were employed by a committee appointed at a meeting of landowners of the district, and the agreement entered into between the committee and appellants was that the fee of appellants was to be contingent and was to be based on the amount saved for the taxpayers by the efforts of appellants, and that this fee should be paid by the district. The result of the litigation discloses that the lower court did not abuse its discretion in ratifying this employment, as it impliedly did. Tlie landowners themselves raised approximately $4,000 to pay preliminary expenses, a large amount of which was used for paying an auditor to make an investigation and audit of the financial affairs of the district.
Appellants and several other experienced attorneys testified-as to the nature of the services rendered by appellants and that a fee of $20,000 to appellánts would be a reasonable one. One attorney testified on behalf of appellee that «$10,000 would be a reasonable fee. The lower court ordered that all costs and expenses incurred by interveners be repaid to them by the district and that appellants be allowed a' fee in the sum of $10,000, to be paid by the receivers as an expense of the receivership. The fee thus allowed to appellants is in addition to the amount advanced to them by their clients for retainer or expenses, which appears to be approxi-. mately $1,500.
The district has not cross-appealed, and no question has been raised as to the authority of the lower court to require the district to pay fees of attorneys for the district’s taxpayers.
The record in this case discloses that appellants were competent and outstanding attorne}rs, that they diligently prepared and skillfully conducted their case, and' that their efforts resulted in a net saving of at least $72,500 to the taxpayers of the district.
While appeals from chancery court are tried tie novo in this court, the rule long adhered to by us is that we do not reverse a finding of a chancery court, unless it is against the preponderance of the testimony. England v. Scott, 205 Ark. 47, 166 S. W. 2d 1014; Benton v. Southern Engine & Boiler Works, 101 Ark. 493, 142 S. W. 1138.
Furthermore, the matter of allowance of expenses of a receivership is peculiarly within the sound discretion of the trial court. “Ordinarily the allowance of attorney fees in a matter of this character rests in the sound discretion of the trial judge of the court where the service is performed; Tracy v. Spitzer-Rorick Trust & Savings Bank, (C.C.A.) 12 F. 2d 755. Such court is better able to pass on the question than any other court, it is more familiar with the controversy in all its phases, and there is some presumption to be indulged in favor of the correctness of its finding. ... A judge of a trial or appellate court is not bound by the opinion of experts as to attorney fees. He is an expert himself, and knows as well as a legal expert what are reasonable attorney fees.” Federal Oil Marketing Corporation, et al., v. Cravens, (C.C.A., Eighth Circuit) 46 F. 2d 938.
The rule is thus expressed in the case of Myers v. Mutual Life Insurance Co., 36 Ind. App. 328, 75 N. E. 31: “The allowance of costs, expenses, and attorney’s fees incurred in litigation beneficial to a trust estate is largely discretionary with the lower court, and is upon appeal treated as presumptively correct.”
In the case of Welch v. Renshaw, 14 Colo. App. 526, 59 Pac. 967, the Colorado Court of Appeals said: “It (the fixing of fee of receiver and counsel for receiver) is a matter very largely within the discretion of the court, and, if ... it does not plainly appear that there has been an abuse of discretion, the action of the court will be upheld. ’ ’
The Supreme Court of the United States, in the case of Stuart v. Boulware, 133 U. S. 78, 10 S. Ct. 242, 33 L. Ed. 568, in passing upon the question of amount of fees of counsel of a receiver, said: “Like all questions of costs in courts of equity, allowances of this kind are largely discretionary, and the action of the court below is treated as presumptively correct, ‘ since it has far better means of knowing what is just and reasonable than an appellate court can have,’ as was remarked by Mr. Justice Bradley in Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, where the subject is considered.”
To reverse the decree of the chancery court in this case, we must find not only that it was against the weight of the testimony, but that there was such an abuse of discretion by the lower court as to invoke an exercise of the corrective power of this court. While these appel kilts rendered valuable services, which, justified the allowance of a substantial fee, we are unable to say that the lower court abused its discretion in the matter. It follows that the decree of the lower court must be affirmed.
Smith, J., not participating. | [
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Kirby, J.
Appellee brought this suit to enforce a vendor’s lien for. the balance of the purchase money claimed to be due on a tract of land sold to D. F. Evans, and to cancel a mortgage of said lands by D. F. Evans and - wife to their son, Mack Evans,, as a fraudulent conveyance. '
• The testimony shows that the parties agreed upon a sale and purchase of the lands about the first of September, 1923, for $2,700, the appellee-agreeing to convey the lands free from incumbrances and furnish an abstract of title to date.
A memorandum of the agreement was executed, showing the deed was to be made to Evans and left in escrow with the Nimmons Bank until the first of December, 1923, at which time the purchase money was to be paid and the deed to be delivered, otherwise the deed was to be returned to the grantor.
After the sale was agreed on, Veteto insisted on advancing the date of. payment, as he had need of some money to pay on a ear he had purchased. Evans refused this request, but agreed to pay $450 upon the deed being made and put in éscrow, which he did.
On the first day of December Evans was ready to pay the balance of the purchase money, and demanded the deed: Veteto was not able to make the conveyance on account of mortgages against the land. After several conferences Evans demanded that Veteto pay him interest on his money advanced, if he was not ready to deliver the deed. Upon his refnsal to do this, Evans demanded return of his money, hut was unable to get it. Yeteto said he had not been able to clear the title, there being a mortgage, nor was he able to get the $450. to return to Evans, and kept insisting that he should keep this payment and let Evans take the land ¿nd pay off the claims against it, and also for the abstract of title. Evans, after an examination of the records, again demanded the return of his money, preferring not to complete the purchase. Said that Yeteto wanted him “to take the land, pay what was against it and let him out of it; was very anxious to do this, and deliver the deed.” Evans thén inquired, and found, the land had been rented to Blackburn, and agreed, to take the land, and the deed was delivered to him on April 7, 1924.
.Veteto told him to see Blackburn, and “tell him I am out. of'it; the land belongs to you.” Blackburn paid him the rent for 1924. .He diaV the deed recorded, arranged to pay off the Hurst mortgage, and paid up the taxes and the fee for making the abstract. ■ •
In February, 1925, Yeteto asked witness if he desired to sell the land, and was told that he did not know, but would let him know, and Yeteto came back in about two weeks and wanted to'pay back the $450 and take the land back. Evans told him that be' had run after him all winter, had a good deal of trouble about it, and thát he wouldn’t do it, and beside he had borrowed some money on it. He stated that Yeteto had.never claimed frpm*the time of the delivery of the deed until suit was brought that there was any more purchase money due.
The testimony of appellee tends to show- that there were two. mortgagee against the-land, one to Powell Bros, for $1,000; that he-understood it was to be paid off by Evans in purchasing the land; that he did not know the Powell mortgage was not of.record until after February, 1925. He then claimed to have satisfied the Powell mortgage, and brought this suit for the payment of the amount of it as balance of the purchase money. The chancellor found in his favor, and rendered a decree for $1,000, fixing it as a lien against the land, but declining to cancel the mortgage to Mack Evans as fraudulent, and from this decree this appeal is prosecuted.
The undisputed testimony shows that the contract for the-sale of the land as first made was not performed, and that a new agreement was entered into under which the deed was delivered to Evans, the purchaser. He claims this Avas done upon his agreement to pay the incumbrances against the land as shown by the records, the taxes, and the cost of making the abstract, in addition to the payment of the $450 first made.
The appellee insists that there Avere íavo mortgages against the land; that he understood that they Avere both recorded, and that Evans agreed to pay the amount of these incumbrances, and had not paid the PoAA’-ell mortgage, which Avas not in fact recorded, and that he still owed this amount to him as part of the purchase money, he having paid off the PoAvell mortgage.
If the purchaser agreed only to pay off the incum-brances against the land as shoAvn by the records, he Avas in no wise responsible for the payment of the Powell mortgage, nor could the seller, Yeteto, by paying the Powell mortgage and procuring a release therefor, recover the amount from Evans as part of the purchase money of the land, since it did not constitute a lien or incumbrance against the land, not being-recorded.
The chancellor’s finding, under the new agreement for the purchase of the lands, that Evans was bound to the payment of the amount of the Powell mortg’age as part'of the consideration for the land, is clearly against the preponderance of the testimony, in our opinion. The testimony tends to sIioav, too, that the purchaser paid about all the lands were worth, and it is undisputed that Evans insisted upon rescinding the sale and having his money paid back to him several times after his exami nation of the records and discovery of the amount of the incumbrances against it.
The decree will be reversed accordingly, and remanded with directions to dismiss the complaint for want of equity. It is so ordered. | [
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Smith, J.
Appellee is a traveling salesman, selling oil and gas in the vicinity of Little Rock. He took orders for Ms wares, and in some cases made deliveries, in doing which he drove a Ford roadster. On August 18, 1925, he had been to Carlisle and Lonoke, in which last named town he arrived about 10:30 p. m., "where he remained, eating supper until about midnight, after which he started to Little Rock, his home and headquarters. In doing this if was necessary for him to drive through the city of North Little Rock, where he arrived shortly after 1 a. m. He reached East Third Street in that city, which is shown to be one of the city’s largely used streets, especially at that season of the year, when many persons went to the bathing beach at Willow Beach, and who,, in returning, drove down that street. At the intersection of East Third and Olive Streets, in the city of North Little Rock,, there is a large concrete post, on the top of which a red light was burning, and on the northeast corner of Third Street was an electric -light, set upon an arm which extended over the corner of the streets. There is a conflict in the testimony as to the size of the light and the area it illuminated, but the undisputed testimony shows that it was a part of the city’s lighting system.
About 8. p. m. on August 18, 1925, the driver of a truck belonging to the Coca-Cola Bottling Company found out his truck was disabled so that the truck could not proceed to the garage where it was kept. He called the office of that company, and was hdvised. that the mechanic who attended to such repairs was not at hand, and the driver of the truck was directed to park the car where it was, if he was unable to make the necessary repairs which would enable him to reach his destination. The truck was equipped with a large wooden body, which extended out from the rear wheels about a foot and a-half on each side. The truck was used for transporting the products of appellant from its plant in Little Rock to near-by towns, and had been so used on the day in question, and was filled to its capacity with cases containing empty bottles-, and at the fear end of the truck a large barrel was piled on top of the load. The driver was unable to make the necessary repairs of the truck, so he parked it near the northeast corner of the intersection of Bast Third and Olive streets, headed west, which was the direction appellee was driving on Third Street. The truck was not placed against- the curb, and the rear end extended further into the street than the front. The testimony shows that the truck was so parked as to interfere with the traffic, and this interference was increased hy the presence of the traffic post in the center of the two intersecting streets. There were no lights of any kind on either end of the truck.
Appellee testified that' he had been driving about twenty-five miles an ho'ur, but, as he approached the.intersection of East Third and Olive streets, he slowed down to about twenty miles per hour on account of the approach of another automobile from the opposite direction. This car had bright lights, which blinded appellee to some extent as it. came nearer, and, as the approaching car was about to pass, appellee turned his car slightly to the right, and ran into the truck, which he did not see until he turned. Appellee immediately applied his brakes, but was unable to avoid the collision, and a terrific impact occurred. So great was the force of the collision that the car appellee was driving- was driven under the rear of the truck, and it was necessary to pry them apart. The impact, smashed the radiator, the windshield, and the steering wheel of appellee’s car, and inflicted upon him a very serious injury. The force of the collision was so great that a man sleeping in a house on the opposite corner Avas awakened from his sleep.
Appellee recovered a judgment to compensate his injuries, and this appeal is from that judgment.
Error is assigned in giving and in refusing to give certain instructions; but we find it unnecessary to discuss this assignment of error. The instructions given required the jury to find, before returning a verdict for the plaintiff, that the defendant was negligent. This féature of the case presents but little difficulty, as we think the testimony fully supports that finding. The jury was also instructed that, if plaintiff was guilty of negligence contributing to his injury, he could not recover, and, as there was a verdict in his favor, we assume that the jury found that appellee was not guilty of contributory negligence. The correctness of this finding presents the controlling and the difficult question in the case.
We have concluded, after a careful consideration of the testimony in the case and a review of many authorities applicable thereto, that plaintiff was guilty of contributory negligence, and that -the trial court should have so instructed the jury. Under this view it is unnecessary to determine whether error was committed in giving or in refusing to give instructions as requested.
A leading case on the subject is that of Lauson v. Fond du Lac, 123 N. W. 629, 141 Wis. 57, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, which was decided' by the Supreme Court of Wisconsin in 1909. This case is annotated in 25 L. E. A. (N. S.) 40. The facts there were that a car was being driven at a speed of eight miles per hour on a dark, rainy night, and the driver could not see objects more than ten or twelve feet ahead, and could not bring his car to a stop within less than fifteen or twenty feet. The driver ran into a hole which had been negligently left in the road. The trial court submitted the question of negligence and pf contributory negligence to the jury, and there was a verdict and judgment in plaintiff’s favor. This judgment was reversed and the cause dismissed, for the reason that the driver of the car was guilty of contributory negligence. In so holding it was pointed out that self-propelling machines of great weight and high power had come into general use, which, when driven at a reckless speed, are a con stant menace to their occupants and to the traveling public, which has not and cannot abdicate its right to use the streets and roads of city and country. It was there said that the automobile had created a new peril in the use of the public highways, and one which is greatly enhanced by the recklessness of drivers who propel them with the speed of trains on well-defined tracks, and that some rule consonant with the public .safety and not unduly harsh or restrictive upon the users of motor cars must be evolved to meet conditions which the automobile had created. In declaring such a rule the court said:
“It seems to us, and we decide, that the driver of an automobile, circumstanced as was the driver of the ear in which the plaintiff was riding, and operating it under such conditions as he operated his machine on the-night of the accident, is not exercising ordinary care if he is driving the car at such a rate of speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him. If his light be such that he can see objects for only a distance of 10 feet, then he should so regulate his speed as to be able to stop his machine within that distance; and, if he fails to do so, and an accident results from such failure, no recovery can be had. This, it seems to us, is the minimum degree of care that should be required. Circumstances might arise where it would be reckless to drive at such a rate of speed, or even at a rate approximating it. We do not ground this rule on the fact that we have a statute requiring automobiles to carry reasonably bright lights while being operated during the hours of darkness. Independent of any statute, and considering the character of these -machines, we hold it would be negligent operation to run them without sufficient lights to enable the driver to see objects ahead of him in time to avoid them. Such is substantially the rule adopted by the Supreme Court of Connecticut in a well-considered case in reference to the running of a street car.”
This case has been frequently cited and approved, and, while there are cases which do not state the rule so broadly, it announces what we conceive to be the proper rule. We hold therefore that, if one drives his car at night at a speed so great that he cannot stop within the range of his vision, the lights are of but little value, and if, while so driving, he has a collision, he is negligent. He cannot say that he depended on his lights when the rays thereof do not project a sufficient distance to 5 enable him to stop after discovering- the peril. The excessive speed neutralizes the protection which the lights would otherwise afford where one drives so fast that he cannot stop after the lights have made the obstruction visible. Due care requires one to take into account the distance his lights project and forbids driving at a speed so great that a stop cannot be made within the distance one can discover a peril to.himself or to another. If one drives at a greater speed than this, he is taking a chance which prudence would avoid, and if, while taking this chance, his negligence coincides with the negligence of another and produces an injury, the negligent party cannot recover, because his own negligence contributed to his injury. Nothing is better settled than that one cannot recover for an injury which he would not have sustained, had he himself not been negligent.
A ease in which the facts are strikingly similar to those of the instant case is that of Knoxville Ry. & Light Co. v. Vangilder, 178 S. W. 1117, 132 Tenn. 487, L. R. A. 1916A, 1111, decided by the Supreme Court of Tennessee, the first syllabus of which reads as follows:
“A person who drove an automobile at night in a'dark place on the highway so fast that he could not avoid an obstruction within the distance lighted by his lamps was g'uilty of contributory negligence, barring his recovery, though, just before the accident, the bright lights of an approaching automobile and a curve where his own light did not shine directly in the way the machine was going hindered him from seeing the obstruction. ’ ’
Among the numerous cases which support the view here announced are the following: Shawano County v. Froeming Bros., 202 N. W. 186, 186 Wis. 491; Fannin v. Minneapolis, St. P. & S. S. M. Ry. Co., 200 N. W. 651, 185 Wis. 30; Worden v. Chicago & N. W. Ry. Co., 193 N. W. 356, 180 Wis. 551; Raymond v. Sauk County, 166 N. W. 29, 167 Wis. 125; Pietsch v. McCarty, 150 N. W. 482, 159 Wis. 251; Holsaple v. Superintendents of Poor of Menominee County, 206 N. W. 529, 202 Mich. 603; Gleason v. Lowe, 205 N. W. 199, 232 Mich. 300; Spencer v. Taylor, 188 N. W. 461, 219 Mich. 110; Serfas v. Lehigh & N. R. Co., 113 Atl. 370, 270 Pa. 306, 14 A. L. R. 791; Kelly v. Knobb, 300 Fed. 256; Berry on Automobiles (5th ed.) § 177, p. 341; Huddy on Automobiles (8th eel.), § 396, p. 411.
In the application of this rule to the facts of this case we hold that appellee was guilty of contributory negligence, and cannot recover for that reason. If the street light did not reveal the presence of the truck, 'the light of appellee’s own car would have done so, had he been driving with due care. It is true appellee testified that, upon passing the approaching car, which slightly blinded him, he turned somewhat to the right, but his lights shone in advance of his car and always in the direction in which he drove, and he should have kept his car under such control that he could stop within the range of his vision as aided by the lights of his car.
The judgment is therefore reversed, and, as the cause appears to be fully developed, it will be dismissed. | [
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Kirby, J.,
(.after stating the facts). The undisputed testimony shows, as claimed by appellant, that the Morning Star Mining Company obtained a patent to the lands from the United States' in the year 1893 and that it has paid the taxes thereon since that time. It is also true that the president of the mining company stated that his signature to the deed, purporting to convey the tract of land to LeMarshall, had been forged, and he and other witnesses testified that the minutes and records of the corporation showed no authority given for the execution of the deed to this tract of land to LeMarshall and receipt of no consideration therefor.
LeMarshall testified, however, that Chase, the secretary and general manager of the corporation, induced him to purchase the Pair Play mining claim from Cox and McCray, for which he paid $350, and allow him to use the improvements on the south half thereof in proving up and procuring a patent for the corporation to the whole 80 acres, at the time agreeing that the mining company would, upon procuring the patent, execute a deed to him for the land embraced in the said mining claim, which he purchased at his instance, and stated that this deed, now claimed to be a forgery, was executed by the company and delivered to him by Chase in carrying out said agreement. This testimony is also undisputed.
The deed itself was recorded shortly after its execution, and the description therein was such that the county surveyor could locate the tract upon which Mul-holland, who had succeeded to the title conveyed therein, made his improvements, and upon which the court held the Everett heirs had a lien for the balance of the purchase money due from Mulholland, and quieted the title in appellant company for the whole tract only upon payment of said purchase money within 60 days, and otherwise decreed to the said heirs the ownership thereof.
Appellant seeks equitable relief herein, for the cancellation of a deed alleged to have been forged, which was recorded more than ‘27 years ago, and was met by a plea of laches, limitations, and adverse possession, supported by the testimony.
Mulholland’s answer, pleading laches and adverse possession, was adopted by all the other defendants, and the fact that the appellant company bought his claim or interest during the pendency of the suit was but a recognition of his right under the contract of purchase, and did not operate to enable them to hold the land against the minors for balance of purchase money, in disregard of Mulholland’s contract for the purchase thereof. Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589; Tatum v. Arkansas Lbr. Co., 103 Ark. 251, 146 S. W. 135.
There is no sufficient excuse for such long delay in proceeding for the cancellation of this deed, under the circumstances that appellant company claimed to be unaware of its existence, notwithstanding it had been of record more than 27 years, purported to have been executed for the corporation by its president, and was signed and acknowledged by the secretary and general manager, long since dead, as well as most of the other principal actors in the transactions, or who had knowledge thereof. Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148; Davis v. Harrell, 101 Ark. 230, 142 S. W. 156.
If LeMarshall’s testimony is true — be is also corroborated by other circumstances in tbe record — and bis statement is undisputed, appellant was estopped to deny tbe validity of its deed shown to have been delivered by its secretary and general manager in tbe performance of tbe company’s agreement with him for tbe conveyance of this particular tract of land, for the assistance rendered by him in purchasing tbe claim and allowing the improvements thereon to be used by the company in procuring the patent for the entire tract.
We find no prejudicial error in the record, and the decree is affirmed. | [
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Hart, C. J.,
(after stating the facts). The main reliance of the defendant for a reversal of the .judgment is that there is no substantial evidence to show that its agent procured or furnished the car in which the plaintiff was riding at the time he was injured. It claims that its evidence to the effect that the car did not belong to it is not disputed, and that there is no substantial evidence from which the jury was warranted in finding that the man who procured the car was its agent. We cannot agree with the defendant in this contention. The defendant was a corporation, and could only act through its agents. The evidence shows that, under a city ordinance, it was required to load and unload its passengers at a certain station in Smackover, and that it did so. According to the testimony of Nash, he came from El Dorado to Smackover in one of the defendant’s cars and it unloaded its passengers at its station in Smackover. The driver of the bus said that he had unloaded the passengers there because he had to go back to E,1 Dorado, Nash insisted on being carried to Camden, and refused to take back his fare. The driver of the bus then talked with the man at the station of the defendant in Smackover. He was the same man whom Perry had heard calling out the runs of the defendant. This man finally procured a Ford touring car, and sent Nash on in it to Camden. He also took a fare from Perry from Smack-over to Camden, and told him to get in the car. From this evidence the jury might have legally inferred that the man in charge of the station at Smackover, where the defendant loaded and unloaded its passengers, was the agent of the defendant and had the authority, or at least the apparent authority, to arrange to carry Nash and the plaintiff from Smackover to Camden. He was in charge of the defendant’s business, and had at least the apparent authority to act for it in the premises. Hence we are of the opinion that the jury had a right to find that the plaintiff was riding* in a car of the defendant as a passenger at the time he was injured. He had paid his fare to one who was in charge of the defendant’s business at its Smackover station.
On the. question of negligence, the testimony we have recited in our statement of facts warranted the jury in finding that the defendant was negligent in the operation of its car at the time the plaintiff was injured. It had poor headlights, and the jury might have found that the driver was guilty of negligence in driving in the night time too fast down hill while his lights were in such poor condition. Therefore we find that there was substantial evidence to support the verdict.
It is also claimed that the verdict is excessive. We do not agree with the defendant in this contention. The plaintiff’s arm was broken, and he suffered severe pain for several weeks thereafter. While his arm knit together- properly, his attending physician testified that a man of his age was likely to suffer pain during the remainder of his life, in cloudy or bad weather.
It is next insisted that the court erred in allowing the plaintiff to testify that one of the defendant’s cars had “bonded” or “insurance” on it. There was no error in admitting this testimony. It was not admitted for the purpose of showing that the defendant had its cars insured, but it was admitted on cross-examination, while counsel for the defendant was questioning the plaintiff about the description of one of the defendant’s cars. Under these circumstances it was not error to admit the testimony.
Another assignment of error is that the court erred in permitting Nash to testify to certain matters -which are set out in the defendant’s abstract and brief, but which we do not deem necessary to recite, because we find that no objection was made by the defendant to the introduction of this testimony, and, under our settled rules of practice, no assignment of error can be based upon its admission.
Again, the defendant assigns as error the action of the court in giving one of its instructions to the jury at the request of the plaintiff. We do not deem it necessary to set out this instruction, for the objection made to it is that there is no evidence to warrant a submission of the question of whether or not the plaintiff wías a passenger of the defendant on the day he received his injury. As we have already pointed out, the evidence was sufficient to warrant a finding in favor of the plaintiff on this question, and we hold .that this assignment of error is not well taken.
We find no reversible error in the record, and the judgment will therefore be affirmed.
Kirby, J., disqualified. | [
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Hart, C. J.,
(after stating the facts). Counsel for respective parties say that, after a-diligent search, they have been able only to find two .cases directly bearing on the issues raised by the appeal.
Counsel for the defendants rely upon the case of Rumsey v. Sullivan, 150 N. Y. S. 287, 166 App. Div. 246, to sustain the decree. In that case the court said (quoting from syllabus):
“A wife who did not join in her husband’s conveyance of land could not, during his lifetime, enjoin his grantee from drilling for oil or gas on the land and removing or selling any,oil produced, since she cannot interfere with her husband’s occupancy and use of the land, and whatever right and title he has he may convey to another, as her right of dower is always inchoate and subject to the changes, improvements, dilapidation or depreciation occurring during his lifetime, especially as no wells were dug or opened prior to.the conveyance, and her right, in case she survives'the husband, to operate the wells was therefore acquired by reason of the grantee’s act in opening them.”
There was a dissenting opinion in that case, upon the ground that, while the inchoate right of dower is not an estate in land, it is a substantial interest and highly favored in equity, and, whenever the right has been threatened by destruction or impairment, courts of equity should protect it.
■To reverse the decree, counsel for the plaintiff relies on the case of Brown v. Brown, 94 S. C. 492, 78 S. E. 447. In that case the court held (quoting from syllabus in 78 S. E.):
“An ‘inchoate right of dower,’ while it cannot he 'properly denominated an estate in lands nor a vested interest therein, is a substantial right, possessing the attributes of property to he estimated and. valued as such, a right attaching by implication of law, and which, from the moment that the fact of marriage and of-seisin have concurred, is so fixed on the land as to become a title paramount to that of any other person claiming under the husband by a subsequent act; it is such a right as equity will protect. ’ ’
Counsel for the defendants earnestly insist that the holding in the New York caseds more in- accord with our decisions bearing upon the question. They argue that, inasmuch as this court has held that the inchoate right of dower in lands during the husband’s lifetime is not an estate in lands, she has no interest which is entitled to protection either in a court of law or in a court of equity. In discussing the subject in Smith v. Howell, 53 Ark. 279, 13 S. W. 929, the court said:
“The inchoate right of dower during the lifetime of the husband is not an estate in land — it is not even a vested right, but ‘a mere intangible, inchoate, contingent expectancy.’ The law regards it as in the nature of‘an incumbrance on the husband’s title, ;and the statute cited provides a, means whereby he may convey his title free from the incumbrance. She joins, not to alienate any estate, but to release a future contingent right. The grantee must look alone to the husband’s conveyance for his title.’’
Her interest or right, whatever it may be, is something of value, and is entitled to -protection if it can be done consistently with the principles of equity. It has been well said that “the inchoate rights of the wife are as much entitled to protection as the vested right of the widow.” The public policy of this court on the subject of dower was declared in the early case of Crittenden v. Woodruff, 11 Ark. 82, and it has ever since been recog-' nized that dower is a favorite of the law. • In that case .the court said:
“The old books are full of intimations that dower was a favorite of the common law. In Lilly’s Abr. 666 (Chilton’s Probate Court Law and Prac. 372) it is said that ‘dower is favored in law in a high degree, and is . held sacred only next to life and liberty’.”
After a careful consideration of the whole matter the majority of us are of the opinion that the inchoate right of dower is more nearly like the interest of a contingent remainderman, who may be protected by impounding the funds in cases like this, as was done in the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540. In a case-note to 34 A. L. R., at page 1021, the method of computing the value of an inchoate dower right is stated. As was said in the principal case there, the determination of the value is more difficult when dower is inchoate than when it is consummate. The reason is that it involves the consideration of the ages of two persons instead of one and the consideration of the health, habits and expectancy of life of both. We think the case is quite different where the husband has exchanged the land and his grantees have opened up mines. Where the husband opens up mines on his own land and works them himself, the law would presume that his wife consented to his action and was enjoying'the benefits which he might obtain. In the case at bar, the wife refused to relinquish her dower in the land, and this of necessity affected the price thereof. Her inchoate right of dower, by whatever name called, necessarily affected the price t’o be paid, because it would be consummate upon the death of her husband. Thus it will be seen that, if the husband can convey his land without relinquishment of dower on the part of his wife and his grantees can open up mines and work them to extinction, a valuable right or interest of the wife is destroyed. It is no answer to say that she will be entitled to dower in the land if she outlives her husband. It is easy to imagine cases where the lands would have no value whatever except for the oil, gas or other minerals contained in them. The exhaustion of the minerals from the land would leave them of little or no practical value. It is no answer to say that if the mine had not been opened up before the death of the husband the widow could not then open it up, as held in Cherokee Construction Co. v. Harris, 92 Ark. 260, 123 S. W. 485, 135 Am. St. 177. Here, under the allegations of the complaint, the grantees have drilled oil and gas wells and have thereby opened up the mine. The wife has a contingent interest in it which should be protected just as the remainderman had a right to protect his interest in the case last above cited.
Therefore the decree will be reversed, and the cause will be remanded for further proceedings in accordance with this opinion and not inconsistent with the principles of equity. | [
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Mehaepy, J.
Appellant instituted suit in the justice of the peace court in Washington County for rent amounting to $100 and interest, and alleged, not only the indebtedness, hut that Dan Yount and Mrs. Dan Yount had removed a portion of the crop without the consent of the landlord. Alleged that he had a lien on the crop, and an attachment was issued and served, attaching the prop, and the plaintiff had filed with his complaint a copy of the lease, showing a note for $100 for rent.
The defendants answered, denying indebtedness, denying that they were about to remove any of the crop, and filed cross-complaint, alleging that there were not as many acres as estimated, and that he was to pay a certain price per acre, which made $89.20 instead of the $100 mentioned in the note. Alleged a breach of the contract on the part of the landlord and damages to hay in the amount of $10, and further damage in the sum of $50.50, and claimed damage to the growing crops of $50, and then some other damages alleged, and the defendants further alleged that they had suffered damages in the sum of $120 by the wrongful obtaining and levying of the attachment. Prayed that the attachment be dissolved and that they have judgment against the plaintiff for the sum of $357.20, less $100, the amount of the note.
After trial in the justice court there was an appeal to the circuit court, where there was a judgment rendered in favor of the plaintiff. The plaintiff testified that ■ the defendant was removing the crop from the premises without paying the rent, and a part of the crop had already been removed, and the defendant himself testified that he had moved two loads of corn from the premises before the attachment was levied and before the attachment was issued.
It is unnecessary to set out the testimony in full, because the court found that the defendants were indebted to the plaintiff in a small sum for rent. The undisputed proof shows that they had moved some of the crop before the attachment was issued without paying this rent and without the consent of the landlord.
The statute provides: “Every landlord shall have a lien upon the crop’ grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six months after such rent shall become due and payable.” Crawford & Moses’ Digest, § 6889.
The statute also provides: “Any landlord who has a lien on the crop for rent shall be entitled to bring suit before a justice of the peace, or in the circuit court, as the case may be, and have a writ of attachment for the recovery of the same, whether the rent be due or not, in the following cases: (1) When the tenant is about to remove the crop from the premises without paying the rent. (2) When he has removed it, or any portion thereof, without the consent of the landlord.” Crawford & Moses’ Digest, § 6897.
Since the undisputed proof shows that he had removed a portion-of the crop and the court found that he was indebted in some amount for rent, he was entitled, under the statute, to an attachment, and the court should either have sustained the attachment itself or directed the jury to return a verdict sustaining the attachment. These sections of the statute have been construed many times, but it is unnecessary to cite authorities or to refer to them in this opinion, because the statutes themselves expressly provide that the landlord shall have a lien, and if there is any rent due him and the tenant has removed any portion of the crop, this is ground for attachment, and, as we have already said, the court should have sustained the attachment, and, of course, if the attachment was sustained there could be no damages for its wrongful issue or levy.
The appellees have filed no brief, and we only know what their contention is from the recitals in the record. For the errors above mentioned the case is reversed, and remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). The principal question raised by the appeal involves the right to redeem what is called the Driver home place from the mortgage foreclosure decree, and that question is settled by the provisions of the deed of trust. As will He seen from our statement of facts, the deed of trust contains an express provision that the home place of 320 acres shall not be sold until all the other property is exhausted, and that the mortgagor shall have one year from the date of sale to redeem said 320 acres- known as the home place, upon which he resides. This provision was as much a part of the deed of trust as any other provision contained in it and was just as binding upon the parties. The chancellor recognized the validity and binding force of this provision of the deed of trust in the foreclosure decree. It was there expressly provided that the mortgagor should have the right to redeem the 320 acres known as the home place within one year from the date of sale under the foreclosure decree, in compliance with the provisions of the deed of trust on this point. No appeal was taken by the trustees from the foreclosure decree, and that part of the decree providing that the mortgagor might redeem the 320 acres known as the home place is just as valid and binding upon the parties as the other provisions of the decree. It is well settled that there may he a redemption of a portion of the mortgaged land with the consent of the mortgagee. 2 Jones on Mortgages, 7 ed., § 1072; Kerse v. Miller, 169 Mass. 44, 47 N. E. 504; and Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317. To the same effect see Union Mutual Life Ins. Co. v. Kirschoff, 27 N. E. 91, 133 Ill. 368; Potter v. Brown, 50 Mich. 436, 15 N. W. 540; Heald v. Jarcline (N. J. Ch.), 21 Atl. 586; Cox v. Ratcliffe, 105 Ind. 374, 5 N. E. 5; and Oertel v. Pierce, 116 Minn. 266, Ann. Cas. 1913A, page 854, and case-note,- 133 N. W. 797. The record shows that the right of redemption from the sale in the case at bar was exercised within the period of time stipulated in the deed of trust.
It is next insisted that, even if William Walter Driver, the mortgagor, had the right to redeem, no such right existed in favor of Abner Driver. The record shows that William Walter Driver conveyed the home place, comprising '320 acres, to Abner Driver in consideration of $500, which was paid him. This quitclaim deed gave to Abner Driver the right to redeem said home place, provided he complied with the terms of the mortgage. It does not make any difference whether or not the consideration was actually paid as recited in the quitclaim deed or whether the consideration was an adequate oné. So long as the lien of the mortgage was recognized, it did not concern the mortgagee whether William Walter Driver continued to hold himself the equity of redemption or gave it to Abner Driver. Bradley v. Snyder, 14 Ill. 263, 58 Am. Dec. 564:
•This court has held that one who purchases mortgaged land from the mortgagor succeeds to the latter’s equity of redemption from the mortgage. Scott v. Henry, 13 Ark. 112; Cohn v. Hoffman, 56 Ark. 119, 19 S. W. 233; and Livingston v. New England Mortgage & Security Co., 77 Ark. 379, 91 S. W. 752.
It will be observed that the language of the deed of trust provides that the home place shall not be sold until all other property is exhausted, and, if it must be sold, the mortgagor shall have one year from the date of sale to redeem it. This means that the mortgagor shall have the right to redeem the. home place from the sale under the mortgage and not from the mortgage itself. Therefore, in exercising the right to redeem, Driver was only required to pay into court what the home place sold for if it had been sold separately, as provided in the mortgage. The record, however, shows that the home place was not sold separately after the other property had been sold, as provided in the mortgage, but the whole of the mortgaged land was sold together. Now, the whole of the mortgaged land comprised about 3,390 acres, and the home place consisted of 320 acres. All of this was sold for the sum of $230,000. The court costs in the foreclosure decree amounted to $3,777.55. Abner Driver deposited a certified check in the amount of $21,000, asking the court to apply the whole or so much as was necessary thereof to the redemption of the home place. The chancery court was of the opinion that the proportionate pa,rt of the amount all the lands sold for, including the proportionate part of the cost which should be borne by the home place, amounted to $19,392.62. The balance of the $21,000 was ordered to be returned to Driver. • In arriving at the amount necessary to redeem the home place, the court apportioned the costs of the case, including the cost of sale and the total cost of the foreclosure proceedings.
It is earnestly insisted that the court erred in not charging the whole of the cost of the foreclosure proceedings against Driver and in computing the whole.cost and fixing the amount to be paid by him for the redemption of the home place. We do, not agree with counsel in this contention. Courts of equity will, in awarding costs, take into consideration the circumstances of the particular case before it, the situation or conduct of the parties, and exercise tlieir discretion -with reference to these points. McCauley v. Arkansas Rice Growers’ Co-op. Assn., 171 Ark. 1155, 287 S. W. 419, and Temple v. Lawson, 19 Ark. 148.
Courts of .equity, by virtue of the discretion vested in them, have power in a proper case to apportion the costs between the parties, and their action will not be» disturbed, unless it appears from the facts disclosed by the record that there was a clear abuse of discretion. In the case at bar no such abuse of discretion is shown. The express terms of the mortgage provided that all the other property should be sold before the home place, and the mortgagor was given the right to redeem it from the mortgage sale. Instead of carrying out the provisions of the mortgage, the mortgagee caused all of the land to be sold in bulk, and the sale was confirmed in that way. There would have had to have been a foreclosure of the land in the deed of trust in any event, and all of it should have been sold before the home place was sold. Not having done so, it became necessary for the court to fix the amount at which the home place would likely have been sold had the provisions of the deed of trust been carried out. It would be inequitable to tax the whole cost of the foreclosure against this tract of land. Indeed, it is probable that no foreclosure would have been necessary as to it. The parties might have agreed upon its value. In any event, it is in accordance with the principles of equity .to apportion the costs, and it cannot be said that the chancellor abused his discretion in the amount of cost awarded as the proportionate part necessary to be taxed agiainst the home place in fixing the amount for which it might he redeemed.
Again, it is insisted that Abner . Driver gave a check when he first offered to redeem the home place. We do not deem it necessary to discuss this phase 'of the case at length. Whether he had the money in the bank with which to pay the check at the time he gave it or not, it is certain that he paid into the court the amount necessary to redeem the laud. The record shows that, when he first applied to the mortgagees to redeem the land, they denied this right to redeem. Under these circumstances it made hut little difference whether he had the money . at the time or not. As we have just seen, he did have the amount necessary to redeem the land when it was fixed by the court. Indeed, before that time, he had *paid into the depository of the court the sum of $21,000 to he used in redeeming the land.
We have carefully considered the matter in all its bearings and have given consideration to all the'arguments made by learned counsel in their briefs. The conclusion we have reached on the whole case, after considering all the evidence and law applicable thereto, is that in No. 9708 the decree should be modified so as to allow a redemption of the home place as herein provided; and the decree in No. 10074 allowing the redemption of the home place was correct, and will therefore be affirmed.
It is so ordered. | [
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Meharry, J.
The appellee, plaintiff below, brought this suit in the circuit court of Sebastian County, alleging that the appellant, defendant below, was a fraternal benefit society, organized and carried on solely for the mutual benefit of its members, and had a lodge system and representative form of government, and which made provision for the payment of beneficiaries in accordance with § 6072 of Crawford &'Moses’ Digest; that she was the widow of Will Sanders, who died July 18, 1924. It was alleged that, more than three years prior to his death, Will Sanders was a member of appellant association, and that there was issued to him its endowment policy by whiph it agreed to pay $300 to his widow. It was alleged that Will Sanders, at the time of his death, was in good standing with the grand.and subordinate lodges; that proof of death was furnished, and that defendant lodge refused to pay.
The defendant answered, admitting that Sanders was at one time a member of the lodge and that a certificate was issued and delivered to him, but it denied that he was entitled to recover, because it alleged that he liad not paid liis quarterly premiums of $2.25 for the April period.
The undisputed proof shows that Will Sanders did not pay his dues in April, 1924, and that he died in July, 1924. The policy expressly provides that the beneficiary would not he entitled to recover unless the member was in good standing at the time he died. The undisputed proof, however, also shows that, while his dues were $2.25, the lodge owed him $24 for sick benefits. There is no dispute about this. And the only issue in the case is whether, under the circumstances above set out, the defendant had a right to forfeit his policy.
This court has hold that payment of dues is a condition precedent to recovery. The plaintiff in the case swore positively that Will Sanders, the deceased member, was in good standing at the time of his death, and no member of the local lodge was called to testify with reference to that. This court has held that, where the insurance company had funds in its hands belonging to the member which were equal to, or in excess of, the amount of the dues, it could not declare a forfeiture. After citing many authorities, the court said:
“But, in our opinion, the difference in facts does not destroy the application or lessen the efficacy of the principle. It is true that, in some of them, there was a contract, custom, or course of dealing, but, because insurance 'companies enter upon contracts' or establish a usage in conformity to the doctrine above announced, from which they have not been allowed to deviate, does not prove the unsoundness of the doctrine itself, but rather the contrary. The doctrine does not arise out of the peculiarities of any particular case. It does not depend upon contract, custom or course of dealing for its existence and potency. It has its origin in that fundamental principle of justice -which will compel one who has funds in his hands belonging to another which may be used, to use such funds, if at all, for the benefit dhd not to the injury of the owner. For his consent to the one and dissent to the other will he presumed.” Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S. W. 355.
The court in the above case quoted 'syltla approval the following language from Judge Cooper in Smith v. Ins. Co., 44 Ohio St. 170:
“•I am of the opinion that the company was bound, upon the plainest principle of equity, to apply the dividend first in such manner as to save, the forfeiture. The usage of the company in deducting the dividends from the principal in cases where the insured elects to continue the policy, even if uniform and unvarying, cannot control where the insured ceases to pay and the contract is silent as to what should be done with the dividend. The law, which tempers justice with mercy, makes the proper application. The dividend, as the property of the insured, should be applied to what he is bound to pay— the interest. ’ ’
And we think, in this case, that the law will make the proper application. The amount of funds in the hands of the company at the time Sanders died was very much in excess of his dues. The testimony showed that it was not collected, probably because Sanders.did not need it at the time, and thought the insurance company did.
“.Subject to the exceptions hereinafter noted, the rule may be laid down broadly that an insurance company has no right to declare a policy of insurance forfeited for the nonpayment of the premiums, assessments or dues when, at the time, the company is in any way indebted to the policy-holder, either for dividends declared or other funds which it may have in its hands belonging to the insured.” 14 R. C. L. 966. For other authorities see ease-note in 22 L. R. A. N. S.] 304. See also 32 C. J. 1308.
In this case it would be unjust for the company to declare a forfeiture when it had funds in its hands belonging to him greatly in excess of his dues. The circuit court correctly directed a verdict for the plaintiff, and the judgment is therefore affirmed. | [
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Mehaffy, J.
The appellee brought suit against the appellant in the Pulaski Circuit Court for $314, the value of personal property claimed to have been stolen from appellee’s home during the month of July, 1925. The suit is based upon a policy of burglary insurance, executed by the appellant and delivered to the appellee October 10, 1924, covering household goods, furniture, wearing apparel, jewelry, and other personal property of appellee, situated and contained in the premises at 2107 Broadway, in the city of Little Rock, the place of appel-lee’s home.
The complaint alleged the issuing of the policy for the period of one year against loss by burglary, theft or larceny, for the goods mentioned above, while contained in the premises at 2107 Broadway. Alleged that in July, .1925, the premises were burglarized and property covered by the policy of the value of $314 was stolen. That notice and proofs of loss 'were furnished in compliance with the terms of the policy. Copy of the policy was attached as an exhibit to the complaint.
The defendant, appellant here, answered, denying that the premises were burglarized, and denied that it was indebted in the sum of $314 or any other sum. And, as a further defense, alleged that the policy covered loss by burglary, theft or larceny of the property insured thereunder from within the house occupied by the insured, as -described in the declarations, caused by any other person except one whose property was covered hereby. Defendant alleged that the premises, in July, were not occupied by appellee, but that the house was rented to a stranger named Yon Wetzen, and that Von Wetzen stole the property for which this action was brought. Defendant further alleged that suit was filed within 90 days after the loss, in contravention .of the terms of the policy, and that, if appellee should recover, he would not be entitled to penalty and attorney’s fees. Defendant filed an amendment to its answer, denying that appellee had complied with the terms of the policy with reference to notice and proof of loss.
The case was tried before the court sitting as a jury, by the consent of the parties, and the court rendered judgment for the plaintiff, appellee herein, for $314, together with statutory penalty of 12 per cent, and attorney’s fees of $.75.
Defendant filed motion for new trial, which was over-iuled, exceptions saved, and appeal prayed to the Supreme Court, and granted. The defendant thereafter filed its bill of exceptions within the time allowed by the court, and prosecuted its appeal to this court. ' ,
Appellant’s first contention is that the alleged loss did not occur while the premises were occupied by the appel-lee, and there was therefore no liability against the appellant. Appellant then, bearing directly upon the question involved and as affecting burglary insurance policies, cites the following cases: First, Lee v. Adsit, 37 N. Y. 78, but that case, as stated by the court, ivas not an action against the insurers or on the policies. The com plaint alleged that plaintiffs received lumber in their lumber yard from defendants for sale on commission, etc., and plaintiffs were not to insure the lumber, but defendants took the risk of fire. It was therefore a controversy between these two parties, and has no application to the facts in' this case. ,
The next case relied'on .by appellant is the case of German Fire Insurance Co. v. Home Insurance Co., 144 N. Y. 195, 39 N. E. 77, 26 L. R. A. 591, 43 Am. St. Rep. 749, and the syllabus of that case reads as follows:
“Where a policy of fire insurance insuring the stock of goods contained a provision declaring it void in case of sale, transfer or change of title to or possesion of the property, and the insured, during the life of the policy, took a copartner, transferring to him an interest in the insured property, it held that this transfer rendered the policy void.”
In the above, case the policy expressly provided that it should be void in case of sale, transfer or change of title or possession. There is no contention that the insurance company was notified and consented to the change. It could have done so, and, if it had, the policy would have been binding. The sale made the contract void, as the court said, because it is a well-established principle of common law that every man has the right .to determine with whom he will enter- into contract obligation. And, among other thing's, the court said: “It would be a harsh rule to permit the things mentioned without having an opportunity to examine into the moral and business characters of the two strangers to the original contract.” However, the court expressly stated that, where one partner sold to another partner, this would not avoid the policy. But the Reason the policy was held void in that case was because there was an absolute violation of the provision contained in the policy with reference to sale and transfer without getting the permission of the insurance company to do so and without notifying the insurance company of the intention to do so.
The next case referred to is the case of Liss v. United States Fidelity & Guaranty Co., 103 Misc. Rep., 253, 169 N. Y. S. 1027, and this suit was upon a policy of burglary insurance. The policy in the above case was violated without. permission of the insurance company, the insurance company had no knowledge of the change of possession and conditions, and the court said that it had no power to proceed on the assumption that the insurance company would have assented to the change. If, however, the insurance company had been notified of the change and agreed to it or acquiesced in it, then it could not have declared a forfeiture. It is universally held that, where a condition of ownership or occupancy or change of circumstances prohibited by the terms of the policy is made, this avoids the policy. But it is also universally held that, if it waives its right to forfeit the policy because of any violation, it cannot thereafter defeat a recovery because of the violation of a provision in the policy which it waived.
Attention is called by appellant to Schwartz v. Fidelity & Guaranty Co., 199 N. Y. S. 270, 120 Misc. Rep. 323. A right of recovery was denied in that case because of concealments on the part of the assured, and this concealment was a violation of a warranty clause in the policy. The court said: “In my opinion, it was necessary for the assured to have revealed the fact in their statement or warranties that they occupied only part of the fourth floor and that the rear one-half was under a sub-lease, to another concern conducting an entirely different business.”
The above case also discusses the question of evi- ■ dence to prove burglary or theft.
Attention is also called to the case of Reese v. Fidelity & Deposit Co. of Maryland, 156 N. Y. S. 408, 93 Misc. Rep. 31. In that case allegation and proof was that the policy of insurance was procured by such misrepresentations as to make it void. But the case also held that, where the insurance company repudiated liability under a burglary policy on the. 'ground that it was obtained by fraud and misrepresentation, tlie plaintiff was not bound to abide by the condition in the policy that no action shall be instituted under three months until after the furnishing of the proof of loss.
The plaintiff, T. B. Pox, testified that he rented the house to a man named Von Wetzen, who was recommended to him as a desirable tenant, and that he was to let him occupy it while Pox was away in California. He testified that, at the time, he had a conversation with Mr. Newell, of the W. B. Worthen Company. The W. B. Worthen Company were the general agents, and Mr. Newell attended to that part of the business. He said he went in to see Mr. Newell, and told him that he had his house rented, and that Mr. Newell said that was a good rental, that was all right. Pox said that was the answer Newell gave him, that it was satisfactory, and he had no objections. He stated that he thoug'ht he had previously told Mr. Newell that he was going to rent the house, and that Mr. Newell had no .objections. The record shows that Mr. Newell had authority to issue policies, and that he had issued this policy.
The rule concerning forfeitures in insurance policies was considered by this court in the case of German Insurance Company v. Gibson, 53 Ark. 494, 14 S. W. 672, and is a>s follows:
“Forfeitures are not favored in law, and any agreement, declaration or course of action on the part of an insurance company which leads the insured honestly to believe that, by conforming thereto, a forfeiture of liis policy will not be incurred, followed by conformity on his part, will estop the insurance company from insisting upon the forfeiture. The rule thus announced has been steadily adhered to by this court.” Interstate Business Men’s Accident Assn. v. Green, 132 Ark. 546, 201 S. W. 799.
The above case cites many authorities on the question of forfeiture and cases upholding the rule above announced. But we do not deem it necessary to cite them here or to call attention to any additional cases. We have concluded that, when the insured notified the insurance company’s general agent and the agent made the statement that Pox testified he did make, the insurance company could not thereafter declare a forfeiture or defeat recovery because of the occupancy of the house by the tenant. It will he remembered that the agent does not deny that Mr. Fox told him what Fox testifies that he did, and does not deny that he made the statement which Fox says he made. It may be that the insurance company preferred to have a tenant rather than to have the premises unoccupied. The policy provides for the house to remain unoccupied for a longer period .than Fox intended to be away, and the insurance company may have preferred to have a tenant rather than to have it unoccupied. It may have thought that burglary was more likely to occur if the house was unoccupied than if it were occupied by a tenant. At any rate, the plaintiff swears that he notified the agent, and the agent does not dispute it, and the insurance company could not declare a foreiture under such circumstances.
It is next contended by the appellant that no proof of loss, as required by the policy, was ever filed with the company, and specifically states that the proof of loss shall state a complete inventory of the stolen próp-erty. This, we think, the insured did. At any rate, no objection was made to the proof of loss because of the failure to make a complete inventory, nor was there any objection because the original cost of each article was not stated and the cash value at the time of the loss. These facts, together with the other objections to the proof of loss, were gone into in the trial, when Fox was on the stand, and he testified fully with reference to them.
Appellant’s argument is that all the proof shown was the arbitrary valuation. But any valuation put upon them at all as to their cash value would, of course, have been an arbitrary valuation. We find nothing in the record that would justify or excuse the appellant from paying the loss because of any defect in the proof of loss. It seems, to have got all the information that it desired or that it asked for, and we think this was all it had a right to demand.
Appellant’s next contention is that there is no testimony to show that the alleg*ed loss was occasioned by burglary, theft or larceny, and it is argned that the burden is upon the plaintiff to make this proof. We think the insurance company’s contention that the burden is on the plaintiff is correct, but we do not agree with it in its contention that this burden was not discharged. The testimony shows that, when Fox returned from California, Wetzen, the tenant, was gone, and that he never saw him after that' time. That he notified the police of the loss of the articles stolen, and found that the tenant had stolen some of them and returned them.
Willie McAdoo, colored, testified that, while Fox was away, she went there every other day,- and that, when she went to the house on Wednesday, she found that all the doors were unlocked, the windows unlocked, and the inside doors open. The last time witness saw any of the tenants about the house was on Saturday, and on Wednesday the doors' and windows were all unlocked. Witness did not know when they left. ' Did not know how long the place had been unoccupied and the doors unlocked, but that the last time witness noticed anybody there was on Saturday, and on the following Wednesday the doors and windows were unlocked and the inside doors open.
When Fox returned he found that certain articles were gone. About the only proof that could-be made as to burglary or larceny ordinarily would be that the doors or windows were open and that articles that were in the house before were missing and could not be found. This was sufficient proof that they had been stolen, and we think that the proof that the tenant stole some of them does not warrant the conclusion that he stole the others. And while the burden was on the plaintiff' to show the larceny of 'the articles, he was not required to show who stole them, and was not required to show that the ten ant did not steal them. When the plaintiff shows by evidence that the house was open and that the' goods that were in there prior to the time Fox left were missing, we think this is sufficient evidence to justify the court in finding that the articles were stolen.
There was sufficient proof to justify the finding of the court, and the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). The proof shows that this is not a cáse where the defendant was hired upon the express condition that he would agree, for a limited length of time, not to solicit trade from such customers of the plaintiff as he might have served while in its employ. This is conceded by counsel for the plaintiff,, hut they insist that the facts bring the case within the settled rule that, where the employment of a servant is of a confidential nature, there is an implied contract on the part of the servant not to use, to the detriment of his master, any, trade secret which he might have learned in the course of his employment. See case-note to 17 Ann. Cas. 144. • 1
We do not think the facts bring the case within this well-settled rule or within the principles announced in New Method Laundry Co. v. MacCann, 174 Cal. 26, 161 Pac. 990, Ann. Cas. 1918C, page 1022; to the .effect that, a list of customers along a laundry-route constitutes a trade secret which is the absolute property of the laundry and is the subject of injunctive relief on the ground of irreparable injury. It is true that the record shows that the defendant had access to the printed list of the customers of the plaintiff, but the defendant testified that he became familiar with the names of the customers along the route while serving them during the five months he worked for the plaintiff. His testimony on this point is uncontradicted, and is reasonable. Any person of ordinary intelligence would become familiar with the customers whom he might serve along a laundry route during a period of five months. It is not claimed that the defendant did not have a right to quit the employment of the plaintiff and enter that of the Crow Laundry. Freedom of employment must not be unreasonably abridged, and a contract in restraint of employment, without some reasonable limitation, is like a similar contract in restraint of trade, contrary to public-policy, and unenforceable.
The facts of this case bring it within the rule laid down in Fulton-Grand Laundry Co. v. Johnson, 140 Md. 359, 117 Atl. 753, 23 A. L. R. 420. It was there held that the names of the patrons of a laundry on a particular route did not constitute a trade secret which will he protected by injunction so as to prevent a driver employed on such route from utilizing it and soliciting the patronage of such persons when he leaves the service of his employer and enters business for himself. In a note at the end of the case it is said that, in the majority of the cases which have passed on the question, it is held that, in the absencé of an express contract, on taking a new employment in a competing business an employee may solicit for his new employer the business of his former customers, and will not be enjoined from so doing at the instance of his former employer. We think that, under the principle announced in these cases and under the facts in the present case, the chancellor properly held that the plaintiff was not entitled to the injunctive relief asked, and that his decree dismissing the complaint of the plaintiff for want of equity should be affirmed. It is so ordered. | [
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Hart/C. J.
This is an appeal by L. M. Nash and Mrs. Jessie L. Nash to reverse a decree of the chancery court quieting the title of P. A. Griffin as to them to a certain parcel of land abutting on Mount Holly Street, in the city of El Dorado, Union County, Arkansas, approximately 150 feet in length north and south and approximately 100 feet in width east and west, off of the west side of the east half of the southwest quarter of the southwest quarter of the northeast quarter of section 29, township 17 south, range 15 west.
Both the plaintiffs and the defendants claim title from a common source. Hattie E. Robinson owned the land in controversy, and, on the 27th day of February, 1904, she conveyed by deed to R. A. Hilton a large body of land in Union County, Arkansas, including the parcel of land iix dispute. On the 8th day of December, 1904, R. A. Hilton conveyed certain lands in Union County, Arkansas, to J. M. Whatley. Among the lands described in the deed is the northwest quarter of the southwest quarter of the northeast quarter of said section 29. On the 11th day of January, 1906, J. M. Whatley and wife conveyed said land by the same description to M. G. Murphy, Jr. On the first day of March, 1919, M. G. Murphy, Jr., conveyed said land to Jessie L. Nash. It is described in the deed as follows: “All that part of the southwest quarter of southwest quarter of northeast quarter, section 29, township 17 south, range 15 west, lying north of the El Dorado and Mount Holly public load as now located, and being in the city of El Dorado, Union County, Arkansas, containing 10 acres more or less.”
The record shows that the parcel of land in controversy is now situated in the city of El Dorado and in the western part of the fo'rty acres of land in section 29 3‘eferred to' above. What was formerly known as the Lisbon Road and is now known as Mount Holly Street runs through the southwest corner of said forty acres of land. R, A. Hilton is now dead, but, when he conveyed the land to Whatley, he pointed' out the boundary line to Whatley. There was a fence running north and south on the east side of said parcel of land, and this old fence was pointed out as the east boundary of the land described in the deed. Whatley took possession of the land conveyed to him, and never claimed any land in the quarter section above described east of the old fence. When Whatley sold the land to Murphy, he conveyed it by the same description as conveyed in the deed from Hilton .to himself. He pointed out to Murphy the old fence as the boundary line on the east side of the strip of land, and never claimed any part of the quarter section east of that old fence. None of these parties claimed any of the land south of the old Lisbon Road, or what is known as Mount Holly Street, and east of the old fence. The strip of land contains about eight and one-half acres, and they did not claim to own any more of the quarter section than that part of it north of the old Lisbon Road or Mount Holly Street and west of the old fence running north and south through the west part of said quarter section. Possession of this eight and one-half acres of land under claim of ownership was held by Whatley and Murphy from the time of the purchase by Whatley from Hilton in December, 1904, until the conveyance by M. G. Murphy, Jr., to Jessie L. Nash in January, 1921. The contest over the strip of land arose after oil was discovered in that territory.
Without reviewing and commenting at length upon the evidence, we are satisfied from the testimony of Whatley and Murphy, which is corroborated by that of other witnesses, that it was the intention of Mrs. Hattie E. Robinson to convey to Dr. R. A. Hilton and of Dr. Hilton to convey to Whatley approximately eight and one-half acres of the land north of the old Lisbon Road or Mount Holly Street and west of the old fence in the west part of the quarter section above referred to and described. The evidence clearly shows that a mistake was made in describing the strip of land, and we are of the opinion that the chancellor correctly held, that only eight' and one-half acres, as above indicated, were intended to be embraced in the deed from Mrs. Hattie’E. Robinson tó Dr. Hilton, and that the same mistake which was 'made in her deed to Dr. Hilton was made in the subsequent déeds.
Mrs. Hattie E. Robinson died intestate, leaving her husband and several minor children. An attempt was made by her husband, as guardian for her minor children, to sell said land at probate sale and in that way vest title in persons from whom Mrs. Jessie L. Nash and L. M. Nash have subsequently received quitclaim deeds. But little-need be said on this branch of the case. Mrs. Hattie E. Robinson had already conveyed the land prior to her death. Consequently there was nothing left to be conveyed by the guardian’s sale, and the probate sale by the guardian of Mrs. Robinson’s minor children could not avail appellants anything. The decision of the case depends almost entirely upon the facts, and we are of the opinion that it is established by clear and convincing-testimony that it was only intended by Mrs. Hattie E. Robinson to convey eight and one-half acres to Dr. Hilton, and' this was that part, of the quarter section north of the old Lisbon Road and west of the old fence above referred to. The mistake was made in the original deed and-was continued in the subsequent deeds, and, for that reason, appellants only acquired title to the eight and one-half acres. Conceding this to be true, the paper title to the land in controversy is in P. A. Griffin, and he was entitled to have his title quieted against Mrs. Jessie L. Nash and L. M. Nash. - •:
It follows that the decree of the chancellor was correct, and it will "therefore be affirmed. | [
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Smith, J.
The Western Clay Drainage District was created;]^ special act No. 368 of the 1907 General- Assembly (Acts 1907, page 890). By paragraph (a) of § 8 of the act a general assessment was levied on the real property in the district “for the purpose of payijig the general expenses,” the same to be paid annually. The act further provided that the territory of the district -might be subdivided into subdistricts to construct such ditches and laterals as would afford special benefits to the terri tory in each subdistrict, to be paid for by tlie levy of special assessments against tlie lands therein. Five of such subdistricts were organized and special assessments were levied in each, and bonds were issued against these special assessments, and the plans of the improvement were executed by constructing the various ditches and drains.
Appellee Oliver is the owner of lands in subdistricts numbered 1, 2, 3 and 5, and he filed a petition in behalf of himself and all other landowners, in which he alleged that the commissioners of the district were not keeping the ditches cleared of all obstructions, as the act required, them to do, and he prayed a writ of mandamus requiring them to perform this duty. It was prayed that the commissioners of the district be ordered and directed to levy a special 'assessment upon each item of property in each subdistrict in proportion to the benefits estimated to have accrued'by reason of the construction of the improvement for which each subdistrict was formed.
The commissioners filed an answer, in which they admitted that the act directed them to keep the ditches clear of obstructions, and that willows had grown' up in the ditches and sandbars had formed which obstructed the flow of water; but they alleged their inability to clear the ditches, for the reason that all assessments of benefits against the lands had been pledged to the payment of the bonds of the respective subdistricts, and that all the money arising from the sale of the bonds had been expended in the construction work, and that there was no provision in the law for the assessment of additional benefits throughout the district or the subdistrict^ for. the purpose of clearing out the canals.
It was alleged, and the secretary of the district testified, that in subdistrict No. 1 benefits had been assessed amounting to $124,721 and bonds had been issued in the sum of $10Q,000, of which $55,000 were outstanding and unpaid; that in subdistrict No. 2 benefits amounting to $163,929 had been assessed and bonds amounting to $130,000 had been issued, of which $87,000 were outstand ing and unpaid; that in subdistrict No. 3 benefits amounting to $52,885 had been assessed and bonds amounting to $50,000 had been issued, of which $40,000 were unpaid; that in subdistrict No. 4 benefits amounting to $37,280 were assessed and bonds amounting to $30,000 were issued, the amount of bonds-unpaid not being shown; and in subdistrict No. 5 benefits assessed amounted to $141,-427 and bonds in the sum of $110,000 were issued, of which $100,000 were unpaid. It was further shown that assessments against the benefits were being levied as follows : In subdistricts 1 and 2, nine per cent., and in sub-districts 3, 4. and 5, ten per cent.
There was neither allegation nor proof on the part of the landowners to show what the cost of clearing out the ditches would be, nor was it alleged that the commissioners have funds available for that purpose; on the contrary, the petitioner admits that the commissioners are not in possession of such funds, and he explains the purpose of this proceeding to be to require that these funds, be raised by special assessments levied for that purpose.
The court granted the relief prayed, and directed that the commissioners ascertain the amount necessary to clear the ditches, and to levy special assessments upon each item of property in each subdistrict in proportion to the benefits' that have heretofore been estimated to accrue thereto by reason, of the improvement for which the subdistrict was formed, in a sufficient amount and for the purpose of keeping the drains and levees in each subdistrict clean and in repair, and that the commissioners make such special assessments as frequently and at such times as-shall be necessary to keep such ditches and levees in repair. The- district has: appealed from that judgment.
The first question discussed is the authority of the commissioners to keep the canals clean. Of this there appears to 'be no doubt: The- original act charges the commissioners with this duty, and by § 17'of the'ámenda- tory act No. 278, passed át tbe 1909 session of the General Assembly (Acts 1909, page 820) the duty is reimposed.
The difficulty appears to be that the money is not available'for that purpose. It is pointed, out that subdivision (1) of § 9 of the act of 1907 provides that “this lav? shall be liberally construed to give to said assessment •list and the general assessment 'levied herein the effect of .a bona fide mortgage for a valuable consideration, and a first lien upon the. said property, as against all persons having' any interest therein,” and that the pledge of the assessed benefits under the provisions of the act for the payment of the bonds issued in the several subdistricts is, in effect, in law a pledge and assignment of a mortgage as collateral security for the payment of said bonds, and that the revenues of the district are required for this purpose and must be first so applied.
We think counsel is correct in his construction of the act. ... . .
Paragraph (p) of § 8 of the act of 1907 reads as follows:. “If, after the assessment and levy upon the property in any subdistrict shall have been made and the improvement therefor completed, or partially completed, the board of directors of said corporation shall be of opinion that the improvement-made or designed is insufficient in •size, width, depth, extent, or otherwise, or if the sums levied be insufficient to pay the cost of making the improvement,, a further levy or levies may be made, in all respects as in the case of an original levy, upon the . property situate in the said subdistricts, in order, and of sufficient amount, to make the improvement sufficient, ¡.or to complete the payment therefor; but the'aggregate amount of such special assessments to be paid in any one .year shall not exceed ten per centum of the amount of the .benefits assessed upon sijch property.” ■ ;
It thus appears that there is a positive inhibition against the levy, of an aggregate amount of such special assessments to be paid in any one year in excess of ten per centum of the amount of benefits assessed upon said property, and that subdistricts 1 and 2 are levying nine per centum and subdistricts 3, 4 and 5 ten per centum of this assessment. Districts 3, 4 and 5 cannot therefore increase their levy for any purpose in any one year, and subdistricts 1 and 2 could only increase their levy one per centum, and it is not alleged or shown that this increase would suffice to perform the order of the court.
In this connection it may be said that revenue which is raised in subdistricts 1 and 2 could not be used for the purpose directed by the court in the other subdistricts.
' Appellee insists that this limitation applies only to assessments intended to pay construction costs and does not apply to maintenance costs, and that the act contemplates that the canals be kept in repair, and that the costs of these repairs ma3, and in time probably will, amount to many times the assessed benefits, and of even many times the value of the land, and that there is no limitation on the cost of repairs.
"We think, however, that the act does not confer any such authority, and we concur in appellants’ construction thereof, that no repairs can be made after installments have been collected in an amount equal to the assessed benefits.
In the resolution authorizing the bond issue it was “resolved, ordered and determined” that a total special assessment “equal to the total benefits assessed be and the same is hereby levied and ordered collected from all the lands within the said subdistricts in amounts equal to the benefits assessed to each of the lands therein contained. ’ ’
By paragraph (o) of § 8 of the act of 1907 it was provided that, after the formation of any subdistricts, the district should have power to levy special assessments upon each item of property therein in proportion to the benefits estimated to accrue thereto by reason of the construction of the proposed improvement, and that the assessments may be made payable in annual installments for a period not exceeding twenty-five years, and that these assessments “shall be of sufficient amount in the aggregate to pay the whole cost of the improvement for t]ie making of wliieli the subdistrict was formed, and for maintaining the same, and may he levied annually until all of the expenses incurred in making of said improvement shall have been paid. Such levy may be made once for all or for any stated period of time. ’ ’
We conclude, therefore that the amount of better-ments assessed limits the amount which can be expended for any purpose, even that of maintenance. This is necessarily true as to construction costs, which, under the express inhibition of the Constitution, can never exceed the estimated 'betterments resulting therefrom, and, as appellee does not show that all assessed better-ments will not be consumed in paying the construction costs paid for by the bond issue, which was made a first lien against the betterments, it follows that mandamus should not have been issued.
In the case of Patterson v. Collison, 135 Ark. 105, 204 S. W. 753, it was held that mandamus is not a writ of right and should not be granted against an officer to compel him to pay out money in the absence of proof that he has money in his hands available for the particular purpose.
In the case of Coleman v. Eight Mile Drainage Dist. No. 2, 106 Ark. 22, 152 S. W. 1004, it was said:
‘ ‘ It is nowhere alleged in the complaint that the sum of the benefits originally assessed upon the lands in the district has not been exhausted nor that there remains of said amount of benefits so assessed a sum sufficient to pay and discharge the whole or any part of the warrant issued to the plaintiffs by the county clerk upon the treasurer for the balance due them under their contract, for the construction of the public drain. Such being the case, the allegations of the complaint are not sufficient to show a right upon the part of plaintiff to the relief prayed for. A writ of 'mandamus will not -issue unless there is a clear legal right to same shown and no other remedy provided, nor does it issue to compel any officer or tribunal to do that which the law will not compel him to do without the.mandate.”
It is not shown here what the cost of the repairs would he, nor that the sum of the' benefits originally assessed upon the' lands will not be exhausted in paying the construction costs without ■ making the repairs, nor was it shown that the relief prayed could be granted without violating the provisions of paragraph (p) of § 8 of the act of 1907 quoted above, limiting to ten per centum per annum the amount of benefits which may be collected in any one year.
The relief prayed should have been denied, and the-judgment of the court below is therefore reversed,- and the petition dismissed. | [
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Mehaffy, J.
This suit was instituted by the appellant, a corporation organized under the laws of Arkansas, against the defendants, John L. Nelson and Penguin Oil Company, on a note dated July 2, 1923, for the sum of $2,479.40, due 90 days after date, bearing interest from date until paid at the rate of 8 per cent, per annum, said note being signed.by John L. Nelson and Penguin Oil Company as surety, by P. K, Kelly.
No answer was filed by Nelson, and judgment was taken against him for the amount sued for.
The Penguin Oil Company filed an answer, denying liability under said note, and pleading that neither P. K. Kelly nor J. L. Nelson had any right to sign the name of Penguin Oil Company to said note.
The El Dorado Pipe & Supply. Company then amended its complaint and asked for garnishment against the First National Bank, making proper allegations and bond to entitle it to a writ of garnishment.
Stipulation was entered into by the attorneys, whereby $3,000 was deposited and the garnishment against the bank dismissed.
The Penguin Oil Company, as additional defense, stated that it was beyond the power of the Penguin Oil Company to enter into any contract or obligate itself in any manner whatsoever for surety for any other person, firm or corporation, and the attempt to become surety was ultra vires, and therefore null and void.
Plaintiff amended its complaint, stating that the note sued on was .executed for pipe sold and delivered to the defendant, Penguin Oil Company, and was later by'the said oil company delivered to Nelson, and, at the request of the Penguin Oil Company, plaintiff - accepted a note signed by John L. Nelson, with the Penguin Oil Company as surety.
The oil company filed answer to the amendment of the complaint, denying that the note was executed for pipe sold to it, and denying that it made any representations to plaintiff that it had sold to defendant, Nelson, any oil.
The proof showed that the president of the El Dora-do Pipe & Supply Company handled the transaction and that the note was executed in the manner set out in the complaint, and that Kelly, who signed the note for the: oil company, was the' representative of the oil company and in charge of its business, and the plaintiff offered to prove that he had sold to the Penguin Oil Company the pipe for which the note was given, which was to be paid for by the Penguin Oil Company and to be a cash transaction. It also offered to show that the Penguin Oil Company later diverted the pipe which it had bought to John Nelson;.that Kelly, at the time the contract was made and the note executed, represented to the plaintiff that the oil company had a deal with Nelson whereby they agreed to purchase a large amount of oil from him, and that it was to their interest that they have the pipe for Nelson’s use in producing more oil. That the pipe was primarily for the benefit of-the Penguin Oil Company, and that the El Dorado Pipe & Supply Company had performed its contract in full in good faith. That, after the pipe was purchased, the oil company stated to the plaintiff that it had delivered the pipe to Nelson, but that the oil company would pay the plaintiff, but requested it to accept a note in order that the oil company might collect from Nelson. That the oil company did collect from Nelson the interest on the note in question for the first six months or more.
The court refused to permit plaintiff to make this proof, and refused the request of plaintiff to amend its complaint so as to sue on account and show that the-oil company received and got the benefit of the property sold. The court, after refusing to permit an amendment to the complaint and refusing to admit the proof above mentioned, directed the jury to return a verdict for the defendant, the oil company, which was done under the directions of the court. And thereafter plaintiff filed its motion for a new trial, which the court overruled, and. plaintiff has appealed to this court.
The only questions involved in this appeal are whether the circuit court erred in refusing to permit plaintiff to amend and erred in its refusal to permit plaintiff to introduce testimony showing that defendant oil company received the pipe and got the benefit of it. "We think the court committed error in refusing to permit plaintiff to amend and also committed error in refusing to permit plaintiff to introduce the testimony offered.
The statute provides.:
“No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that' fact must be shown to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.” Crawford & Moses’ Digest, § 1234. •
“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or á mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Crawford & Moses’ Digest, § 1239.
Under these sections of the Digest we think it was clearly the duty of the court to permit the amendments and permit plaintiff to introduce the evidence offered. The authorities construing these sections are cited in Crawford & Moses’ Digest under each section, and it would be useless to repeat them here.' It would be wholly immaterial whether the defendant oil company had authority to make a note or indorse a note, if it purchased the property, got the benefit of it, and used it, because, if it did this, it would be liable for the purchase price of the property, whether it had any authority to execute a note or whether the person who executed it had any authority. In other words, a corporation cannot take one’s property, use it for its benefit, and then escape' liability by pleading ultra vires or want of authority to sign the note. The contract, so far as the plaintiff is concerned, was executed. The evidence offered and rejected by the court was to the effect that the corporation got the benefit of the property, appropriated it to is own use, and, if it did that, it cannot be heard to say that it did not have authority to purchase it or to make the note.
For the errors above mentioned the case is reversed, and remanded with directions to permit plaintiff to amend its complaint and to introduce the evidence offered, and for further proceedings not inconsistent with this opinion. | [
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McHaNey, J.
This suit is an aftermath of the case of Quarles v. Little Cypress Drainage District, 168 Ark. 368. By it appellant seeks to recover $40,000 damages for the alleged breach by appellee of the contract set out in the original opinion in this casé, whereby he was prevented from removing 292,273 cubic yards of earth for the district on which he claims he would have made a profit in said amount. Appellee pleaded the former decision of this court as res judicata, which the court sustained, and gave judgment for appellee.
The court was right in so doing, as the exact question was decided in the former appeal. In the statement of the case this court stated that “ appellant, Hunt, also instituted a separate action against the ■ district and against Quarles to recover the amount of earned compensation under his contract and for damages for breach of the contract. ’ ’ And in that case this court gave judgment here for this appellant against the district in the sum of $4,456.87 with interest, and a judgment for Quarles against the district. This court further said: “It is conceded by both Quarles and Hunt that there are items of account to be settled between them in the litigation, and that, on the remand of the cause, those matters will be either settled or litigated,” but this did not authorize a retrial of the issue litigated and decided in the former appeal, which appellant seeks to do by this action.
We find no error in the record, and the decree is accordingly affirmed.. | [
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Kirby, J.,
(after stating the facts). It is urged for reversal on the cross-appeal that the chancellor’s finding that A. A. Newton was of sound mind land competent to contract at the time of the execution .of the application, notes and mortgages, in ‘borrowing the money, is not supported by the testimony, but we find no merit in the contention.' No useful purpose would be served by setting oiit the testimony or arguing at length about it, and it will suffice to say that, after a careful consideration of it all, we cannot say the finding is not supported by the- preponderance of the evidence.
The chancellor also correctly held the transaction an Oklahoma contract governed by the laws of that State, but erred in the construction and application of its laws. Dupree v. Virgil B. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586, 1119; Virgil R. Coss Mtg. Co. v. Jordan, 167 Ark. 36, 267 S. W. 590, and Smith v. Brokaw, post p. 609.
This case is ruled by the opinion in Smith v. Brokaw of this date. Under the laws of Oklahoma a contract is not usurious where' the whole amount of the interest charged or reserved for the whole term or period of the loan does not exceed the rate of 10 per cent, upon the amount of the loan. The 7 per cent, interest reserved in the principal note for $4,000 amounts to $280 yearly, or $2,800 for the term of the loan, and the three $400 commission notes, amounting to $1,200, which is but 3 per cent, of the amount of the principal note for the term, showing that, although the rate seems excessive computed from the maturity of the commission notes, which is only a part of the time the loan had to run, it is not excessive nor more than 10 per cent., the rate allowed to be charged under the Oklahoma law, when the payments are spread out over the entire time the contract, if performed, had to run.
Moreover, the laws of Oklahoma do not declare a contract void for usury upon the exaction of the payment of more than 10 per cent, interest for a loan of money, but only that double the amount of the interest charged, reserved or paid shall be forfeited and may be recovered upon a separate suit brought, or upon a counter-claim or set-off pleaded in the suit for collection of the money loaned.
Such forfeiture, however, does not extend to a bona fide purchaser before maturity of the note or evidences of debt in which usurious interest is reserved. Section 5100, Okla. Compiled Statutes, 1921; Stockyards State Bank v. Johnston, 152 Pac. 585, 52 Okla. 32; Daniels v. Bunch, 223 Pac. 841, 98 Okla. 47.
In City Nat. Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648, our court said (quoting syllabus): “The right of an innocent purchaser to recover on a negotiable instrument cannot be defeated merely because it is based on an illegal transaction, or one prohibited by law, unless the statute makes such instrument absolutely void.”
It follows that there will be an affirmance on the cross-appeal, but the decree will be reversed for the error in holding the contract usurious; and the cause remanded with directions to enter a decree in favor of the respective parties for the amounts due on the notes and the foreclosure of the mortgages for the payment, with priority payment of the amount due the insurance company out of the proceeds of the sale of the lands, and further proceedings in accordance with the principles of equity and not inconsistent with this opinion. ' It is so ordered. | [
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Smith, J.
At the 1925 session of the General Assembly, áct No. 338 (Acts 1925, page 977) was passed, creating Independence County Bridge District No. ' 1, and providing for the construction of a bridge across "White River on the State highway system at -or near the city of Batesville, in Independence- County, Arkansas, and for other purposes.
The preamble of the act reads as follows:
“Whereas, three main lines of the State system, one passing through the middle of the State from the northeast to the southwest, one passing east and west through the State, and one running in a northwesterly and southeasterly direction across the State through the city of Batesville, in Independence County, Arkansas; and whereas, all of said main lines of road cross White River at a point near the said city of Batesville, making it a public necessity for a bridge to be built across said river at said point for tbe benefit of public travel in tbe State of Arkansas. ” •
Section 1 of this act defined .tbe boundaries of tbe district, and provided for tbe making of by-laws and for. tbe election of tbe necessary officers and employees. Section 2 provides that “said district shall have power to construct and maintain a bridge, with necessary approaches and embankments leading thereto, be used as a public highway across White River, in Independence County, Arkansas, at tbe present location of Ramsey’s Ferry, practically adjacent to the city of Batesville, Arkansas, or as near to said ferry as tbe Federal authorities shall authorize and designate.”
To hasten tbe completion of tbe improvement the commissioners were authorized to borrow' a sum of money, not exceeding one-half of the cost of the improvement, and to issue bonds therefor, and, pursuant to this authority, bonds were issued in the sum of $187,000 by-the improvement district. A portion of these bonds matured in the year 1927, and interest on all' the bonds was payable in that year, and the holders- of these bonds have a valid lien against the real estate situated within the improvement district to secure the payment thereof.
• The purpose of this suit is to determine whether the State Highway Commission can be required to allot out of the State highway funds a sum sufficient to pay the maturing bonds and accrued interest of the said bridge improvement district in the year 1927. The relief prayed was denied, and the property owners have appealed.
The property owners who pray this relief say they are entitled thereto under the provisions of act Ño. 11, passed at the 1927 session of the General Assembly (Acts 1927, page 17). It is recited in § 1 of this act that it- is declared “to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined herein.” ■
■Section '2 of the act repeals certain sections of the highway act commonly referred to as the Harrelson Law.
By § 3 of the act it is provided that “the commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State, the dates of the maturities thereof, and the annual interest due thereon, and it shall be the duty of the circuit clerk of each county to furnish the commission with such information. The commission shall each year, beginning with the year 1927, allot to each road district in the State now having outstanding bond issues an amount equal to its bonds maturing during the year plus a paying charge of one-eighth of one per cent, of bonds to be paid, and one-fourth of one per cent, of interest to be paid, and shall certify to the State Auditor the amount alloted to each road district.”
This section also provides that, in case the annual appropriation of $6,500,000 allotted to the road improvement districts by the act is insufficient to pay in full the maturing bonds and interest for the given year, the commission shall allot to each district its pro rata of such appropriation, and that, on or before the first day of September in each year, the commission shall certify to each road district the amount apportioned to it for the fiscal year, and that the commissioners for each district shall reduce the road taxes against each tract of land in the district pro rata in an aggregate amount equal to the contribution made from the State highway fund.
By § 4 of the act it is made the duty of the highway commission to construct the roads in the State highway system which are not now constructed, and that the work of construction shall be pushed as rapidly as funds are available for that purpose.
After thus specifically providing for the relief of the road improvement districts of the State, § 6 of the act provides that “The commission may let contracts for the construction of necessary bridges on the State highways, to be paid for out of the State highway fund. It may make contributions to other [bridges which it deems necessary on the State highway that may he constructed by bridge districts.”
Notwithstanding the provisions of the act quoted and referred to, the property owners in the bridge district insist that the act should be so construed as to require the Highway Commission to allot highway funds to the payment of the bonded indebtedness of bridge improvement districts, as well as those of road improvement districts. The argument is made that the bridge is an essential part of the State’s highways and is itself a highway, and that the act declared the policy of the State to take, over, construct, maintain and control all the public roads comprising the States highways, and that no reason exists for relieving the property, owners in road improvement districts that is not equally applicable to bridge improvement districts, and that to relieve one and deny relief to the other is to deny the equal protection of the law to the property owners in bridge improvement districts.
In reply to this argument it may be said that, by special acts passed at various sessions of the General Assembly, a large number of road improvement districts have been created, and a number of bridge improvement districts, the purpose of the first being to improve roads and that of the latter to build bridges.
Many of the acts creating road improvement districts contained authority for the districts to construct bridges, subways, culverts, and all other necessary appurtenances to said roads, but this authority was construed by this court tó mean such bridgns, etc., as were merely incidental to the road or necessary appurtenances thereto, and not bridges of such size and magnitude as would constitute separate improvements.
In the ease of Van Dyke v. Mack, 139 Ark. 524, 214 S. W. 23, a road improvement district undertook to construct a bridge across White River in Jlackson County, and we held that, however essential the bridge might be to the utility of the road, it could not be constructed as a part thereof, because its magnitude constituted it a separate improvement.. See also McAdams v. Henley, 169 Ark. 97, 114, 273 S. W. 355, 41 A. L. R. 629; Mack v. Paragould and Hopkins Bridge & Road Imp. Dist., 168 Ark. 867, 271 S. W. 958; Wimberly v. Road Imp. Dist. No. 7, 161 Ark. 79, 84, 255 S. W. 556; Bulloch v. Dermott-Collins Road Imp. Dist., 155 Ark. 176, 244 S. W. 327.
It has therefore been customary, when a bridge was desired and was essential to supply what would otherwise be a missing link in a highway, which was of such magnitude that its cost would be very considerable, to make it the subject of a separate improvement. It was not held that a district could not be organized to construct both a road and a bridge, but it has been held that an improvement district organized to improve roads could not build .bridges of such size and magnitude as to constitute separate improvements. See cases supra. .
In passing act No. 11 at the 1927 session of the General Assembly it must, of course, be assumed that the General Assembly was aware of the fact that both road improvement districts and bridge improvement districts had been created, and of the differences between them, and therefore to have intended only to relieve road improvement districts, when they were specifically referred to as such in § 3 of the act and no mention was there made of bridge improvement districts.
As we have pointed, out, § 3 of the act provides that “the commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State,’’.and these are the obligations which, the Highway Commission is directed to pay in a sum not exceeding $6,500,000 per annum. No reference is there made to the obligations of bridge improvement districts. That these districts were not intended to be included in § 3 is shown by the concluding paragraph of § 6 quoted above.
In the one case a positive mandate is given to relieve road improvement districts to the extent of $6,500,000 per annum, if necessary, and in the other a mere discretion was imposed, but a clear- distinction between districts of the two kinds was made.
It is argued that no valid reason exists why relief should be extended to road improvement districts and denied to bridge districts, and that-to so construe the act renders it obnoxious -to the Fourteenth Amendment to the Constitution of the United States, in that it denies certain citizens the equal protection of the law.
We need not consider why the- Legislature should grant -relief in one case and withhold it in the other. We need only determine that it has been done, and this fact clearly appears. The right to make such a distinction was clearly recognized in the ciase of Cone v. Hope-Fulton-Emmett Road Imp. Dist., 169 Ark. 1032, 277 S. W. 544. That case involved the construction of act 147 of the Acts of 1925 (.Acts 1925, page 433), amending the Harrelson Road Law as to the allotment of -State highway funds to the various counties of the State, and it was insisted that, if the act were given a certain construction, it would render it unconstitutional as impairing the obligations of a contract, in that the State would not make the contributions which would otherwise be made under former legislation. We disposed of this contention’by saying:
“The Attorney General contends that, if the act be construed, as- above indicated, it would violate article 2, .§ 17, . of the Constitution, which prohibits the Legislature from enacting laws impairing the obligations of contracts. There is no merit in this contention. There is no contract between the bondholders of road improvement .districts and the State and Federal Governments under the Harrelson law by which, the revenue, of these governments must be applied to the payment of bonds. The bonds are secured by levies or improvement taxes levied on the assessment of benefits on the lands, according to the statute's under which the districts are created. If the State and Federal Governments, in aid of the taxpayers of improvement district taxes and the bondholders of the district,. set apart a portion of their revenues to be applied on the’ payment of bonds, such act on the part of the sovereign is a gratuity rather than a contract. ■ The sovereign has complete control over its revenue derived from taxation. ’ ’
So here the contribution which is made to the road improvement districts of the State is a gratuity which the State has the right to mate, and it may, for any reason satisfactory to its General Assembly, through which it acts, give or withhold this gratuity.
We conclude therefore that the court below was correct in holding that act No. 11 did not require the highway commission to make an allotment of the highway funds in payment of the bonded indebtedness of the bridge districts of the State, and the judgment so holding is therefore affirmed. | [
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Wood, J.
In February, 1923, J. W. Raiford et al. filed a petition in the Union Chancery Court against B. R. MeClannahan et al. for the partition of certain lands described in the petition. The action was between the claimants under the will of J. L. Prim and the heirs of his wife, Fannie Primm. Most of the defendants named in the petition were nonresidents, among whom was Charlie'Ingram. Affidavit for warning order against the nonresident defendant was made on April 28, 1923, and warning order was issued by the clerk on May 9, 1923. On June 30, 1924, the attorneys for the defendant, Clan-nahan, and those claiming to be the attorneys for the other defendants, among them R. H. Ingram and Charlie Ingram, filed a motion suggesting the disqualification of the regular chancellor. On the same day the regular judge certified his disqualification, and, as the record recites, “the clerk of said court called an election .for the purpose of electing a special judge to hear said cause, and, said election being duly had.in the manner prescribed 'bjr law, John E. Harris was duly elected as special judge, and took the oath of office and duly qualified as provided by law.” The record further recites: “Thereupon it was mutually agreed by and between the parties litigant that the said John E. Harris should preside as special judge in said cause,” and the record of the decree further recites that the cause was submitted and judgment in partition rendered on that day by John E. Harris, special chancellor. The decree concludes with the recital that the court retains jurisdiction for the purpose. of receiving the reports of the master, the receiver and the commissioners appointed to make partition of the lands. Thereafter, on January 27,1925, the chancery court, through its special chancellor, John E. Harris, entered what is designated “a supplemental decree,” in which it is recited “that all the parties to the cause received due notice of said hearing and were represented by their respective counsel. ’ ’
The court, after finding that all of the defendants, including R. H. Ingram and Charlie Ingram, were tenants in common of an undivided interest in the lands, leases, money and other property, which were the subject of the controversy, and that the respective interests of the defendants were not the subject of litigation in the case, modified its former, decree of June 30, 1924, so as to adjudge that all of the defendants were owners of an undivided one-half interest in the property as tenants in common and were entitled to receive their proportion of the funds, and directed the receiver to pay the same over to their attorneys, Marsh & Marlin. The supplemental decree further recites: “The court finds from the evidence adduced at the trial of said cause and by admission of all the parties hereto in open court, that the lands herein involved and particularly described in the original decree are iiót susceptible of partition in kind among the parties litigant, and that it would be impracticable and inequitable to make such partition; and it is therefore ordered, adjudged and decreed that said lands be sold at public outcry to the highest and best bidder, on a credit of three months, after the same has been advertised for a period of thirty days by four weekly insertions in some paper,” etc. The court then appointed the receiver as commissioner to make the sale.
The following decrees were entered prior to the. decree from which these appeals come, to-wit: Decree of partition in the canse was rendered June 30, 1924, and a supplemental decree at a subsequent term January 27, 1925, and then another decree on May 5,1925. From the last decree an appeal was taken to this court, and by the decision of this court it was adjudicated “that the several interests of all parties in the lands involved were correctly ascertained and determined in the original decree of June 30, 1924.” See Ingrams. Wood, 172 Ark. 226, 288 S. W. 393.
In the meantime the land was sold by the commissioner, and the special chancellor, on October 22, 1925, entered a decree confirming* the sale, but later, on January 9, 1926, that decree was set aside on the ground that court was being held on the same day in another county by the regular chancellor, and the court thereupon entered the following order: “Whereupon the court caused to be called all attorneys representing any parties in interest in this cause who appear of record in this court, and it is agreed in open court by all of ■said attorneys that said sale may and shall be set aside and held for naught, and it appearing that Yerta Rowe, one of the heirs and parties in interest in this, cause, has died since the institution of this suit, and is survived by a minor or infant, to-wit, Yerta Rowe, a minor, it is by the court considered, ordered, adjudged and decreed that Alvin Stevens be and he is hereby appointed guardian ad litem for said Verta Rowe, a minor, and that he be and he is hereby appointed administrator ad hoc of the estate of Yerta Rowe, deceased, and this cause is ordered to proceed as to the interest of the said Yerta Rowe in the name of Alvin Stevens, guardian ad Utem of Yerta Rowe, a minor.” The decree then recites: “And it appearing to the court, from testimony heretofore taken and from the nature of this cause, and the number of parties involved, that it is impossible to partition the property in kind among the parties, in interest without great damage and detriment thereto.” The court'thereupon reappointed E. W. McGrough special commissioner, and directed him to make sale of the property on certain terms therein specified in the decree.
At the March term, 1926, of the First Division of the Union Chancery Court, E. W. McGrOugh, who had been appointed to sell the property, made his report, showing that he had sold the same according to the former orders and decrees of the court, and that the same was purchased by I. Felsentha-1 for the sum of $21,500, he being the highest and best bidder. On the 6th day of March, 1926, certain of the plaintiffs in the original action, among them Elmer Rowe, Jr., as the only surviving heir of Yerdie Raifprd, by his next friend, E. C. Dunn, through their attorneys, J. R. Wilson and E. L. Compere, filed what they designated a petition to set aside sale, which operated as and should have been designated as exceptions to the report of the commissioner. On the same day C. Gr. Taylor, a substitute for the original plaintiff, Gr. A. Dunn, through his attorneys, Joiner & Stevens, adopted the exceptions that had been filed by the other plaintiffs, and, on the same day, Charlie Ingram, through her attorneys, Bailey & Bailey, filed her petition or exceptions to the report of commissioner making sale, asking* that the same be set aside. In her petition she set up that all the proceedings in the cause, after the suggestion of the disqualification of the regular chancellor, and all orders and decrees made by the Hon. J. E. Harris, special chancellor, were void, for the reason that, prior to his election as. special chancellor, he had been, and at that time was, acting as the attorney' ad litem for all nonresident defendants in the case, and was then still so acting for such defendants as had not answered for themselves. She alleged that the commissioner who made the sale had never been by proper order appointed as one of the commissioners to make partition of the property; that the commissioners appointed to make partition were'M. C. Wade, Berry Davis and J. C. Kin-ard. She alleged that she was at all times, up to October 9, 1925, a minor, being under eighteen years of age, and that no guardian of any sort or^ character had ever appeared'for her in this cause, and on the date last above mentioned she became eighteen years of age, and here and now, within the time allowed by law, disaffirmed and rejected all things heretofore done in her behalf in this cause. She prayed the court would refuse to confirm and ratify the sale, that the same be set aside and annulled, and for such other relief as the court might deem just and proper. '
The court, on the same day, overruled all exceptions to the commissioner’s report of sale, ratified and confirmed the report of sale, and directed the commissioner to make a deed to the purchaser, I. Felsenthal, “to which order, findings and judgment of the court the exceptors and each of them saved their separate and several exceptions, and prayed an appeal to the Supreme Court, which is granted.” On the same day the commissioner presented and acknowledged in open court the deed which he ^had executed to Felsenthal, and which the court duly approved.
On June 7, 1926, the plaintiffs, who had previously filed exceptions to the report of sale’ including Elmer Rowe, Jr., a minor, the only surviving heir of Verda Raiford Rowe, by his next friend, E. C. Dunn, filed their motion, praying the court to dismiss with prejudice the further prosecution of their appeal and with • prejudice to any further action on their exceptions to the sale. The court thereupon entered an order in which was contained the following recital, to-wit:
“It appearing that the parties have stipulated that the appeal herein will not be prosecuted, and the court being well and sufficiently advised in the premises, doth grant the motion. It is therefore oi’dered, considered, adjudged and decreed by the court that the petition of E. C.'Dunn, Mrs. Nettie Gantt, Will Raiford, BenRaiford, Mrs. Lulu Dunn Robinson, Yerta Rowe, a minor, the only surviving heir of Yerta Rowe, deceased, by E. C. Dunn, her'next friend, seeking to set aside the sale of the property in the above styled cause, be dismissed with prejudice, and that the prayer for appeal to the Supreme Court be dismissed with, prejudice to the further prosecution of said appeal, and with prejudice to the further prosecution of any further claim on the part of the petitioners in the above styled cause, and with prejudice to any further action on the exceptions to the sale filed by the petitioners herein. It is so ordered.”
Some time during the latter part of the year 1926 or the first part of the year 1927 (the date is nowhere shown in the record) what purported to be a motion was filed in the Union Chancery Court in the case of Raiford et al. v. McClannahan. et al., by Charlie Ingram, through her attorney, Allyn Smith, in which she set up, in. substance, that all the proceedings had in the action between the parties for a partition resulting in a judgment against her were null and void, because she was a minor when the action was begun and the judgment in partition rendered; that she had no notice of the action, and that no guardian ad litem was appointed to defend for her, and that no answer was ever filed setting forth her interest in the lands sought to be partitioned; that the judgment was rendered largely by consent. She set up that she was eighteen years old at the time of the filing of this motion, and prayed the court to set aside and vacate the judgment in partition. The motion was duly verified, and in an addendum thereto Charlie Ingram called' upon'all the parties, plaintiffs and defendants, to take notice that the motion would be presented to the Union Chancery Court at its first sitting.
About this time what purported to be a motion was also filed in the above styled cause by R. H. Ingram, Polk Ingram, Emma Ingram, Pauline Ingram, Ruby Ingram McMullen, Jim McMullen and Mattie J. Ingram, in which it is alleged that the decree in partition in the above styled cause was rendered by John E. Harris as special chancellor, and that said' Harris, at the time of his election. was the attorney ad Utem for nonresident defendants, duly appointed by the clérk of the chancery court on the 9th day of May, 1923, and that, by reason of his being-such attorney for the nonresident defendants, he was disqualified from sitting as special chancellor to try the cause. They prayed for a mmc pro tunc order to be entered of record showing- that the clerk of the chancery court of Union County, First Division, had appointed John E. Harris as attorney for the nonresident defendants.’
A motion purporting to be a motion in the above styled case was also made by Elmer F. Rowe, Sr., guardian of Elmer F. Rowe, Jr., through his attorney, Allyn Smith, to set aside the sale made in the suit for partition, on the alleged ground that the special chancellor, John E. Harris, was disqualified by reason of his being-attorney ad litem for nonresident defendants, and also on the ground that Yerda Rowe, one of the plaintiffs in the action, had died in the month of February, 1925, and that the action had not been properly revived, and that the rights of her minor son, Elmer F. Rowe, Jr., had not been properly .represented and protected; also that the sale under the partition decree was, by a receiver, without appraisement and report of commissioners in partition, as provided by statute. On these motions the chancery court on April 18, 1927, entered an order reviving the cause in the name of Elmer F. Rowe, Jr., by his guardian, Elmer F. Rowe, Sr. The court thereupon found that E. C. Dunn, as the next friend of Elmer F. Rowe, Jr., had, on March 6, 1926, filed a'petition to set aside this sale, which petition had been denied by the chancery court and an appeal taken therefrom, and that the court was without jurisdiction, and therefore dismissed the motion of Elmer F. Rowe, Jr., to set aside the sale, from which Elmer F. Rowe, Jr., by his guardian, Elmer F. Rowe, Sr., prayed and was granted an appeal. The court also found that Polk Ingram, Pauline Ingram, Ruby Ingram McMullen, Jim McMullen, R. H. Ingram and Mattie Ingram could not maintain their motion to set aside the judgment and sale herein, nor their motion to have the clerk enter a nunc pro tunc order showing that he had appointed the Hon. John E. Harris as attorney ad litem for the nonresident defendants. The court thereupon dismissed their motion without prejudice. The court further dismissed the motion of Charlie Ingram to vacate the original judgment and the decree confirming the sale, on the ground that this action was pending likewise in the Supreme Court. From these orders an appeal was prayed and granted.
First. The first question presented by the appellants is that John E. Harris, the special chancellor who tried the original cause in partition, and who made all of the subsequent orders and rendered the subsequent decrees in the cause, was disqualified to sit in the cause for the reason that, prior to his election as special chancellor, he was acting as attorney ad litem for the nonresident defendants. The record shows that the election was held for a special chancellor as prescribed by law, and that John E. Harris was duly elected and duly qualified as provided by law. Conceding, without deciding, that an attorney for nonresident defendants in a cause would be disqualified from' sitting as a judge therein, suffice it to say there is no sufficient competent testimony in this record to show that John E. Harris was duly appointed as the attorney for the nonresident defendants. As to the evidence necessary to establish the disqualification of a judge who is duly elected to preside in a cause, Corpus Juris lays down the following rules:
“Unless it is where the affidavit filed is considered conclusive, there is no presumption that a judge is dis,qualified, the" burden being on the party asserting it to present facts showing such disqualification. The evidence must clearly show that a ground exists. "A prima facie case only is not sufficient.” 33 Corpus Juris 1017, *190.
And in Ruling Case Law it is said: “If the facts alleged are not admitted by the judge, or are denied by the'adverse party, it is the duty of the party objecting to .lay before the judge the proof of their truth for his determination. ’ ’
Many cases are cited in notes to these texts. 15 R. C. L. 539, § 27.
Now the statute provides that an attorney for nonresident defendants- constructively summoned, and who have not appeared, shall he appointed by the clerk of the court in which the action is' brought. C. & M. Dig., § 6261. The only testimony in the record on this issue was adduced on a motion for mmc pro tunc entry to have the clerk of the court make an order on the record showing that he had appointed John E. Harris attorney for the nonresident defendants. The statute does not require the clerk of the court to enter upon the court records the order appointing the attorney for the nonresidents. While such record entry would be satisfactory evidence of his appointment, yet it is not required by the statute, and therefore no such nunc pro tunc entry could be made; and the evidence taken upon such motion would not be competent as primary evidence to prove that John E. Harris was appointed attorney for the nonresident defendants in the action. But, even if the mover who suggested the disqualification of John E. Harris had made the proof on their motion to disqualify, which they adduced on the motion for nunc pro tunc order, still the evidence would hardly be sufficient to meet the requirements of the law as to the burden of proof on the issue of the disqualification of the special chancellor.
On the motion for nunc pro tunc entry the only testimony adduced tending’ to prove that John E. Harris was appointed attorney for the nonresidents were the printed words “John E. Harris, attorney for the nonresident defendants.” These words appeared, at the bottom of a newspaper clipping showing the warning order in the case as published, pasted on the publisher’s affidavit of publication. It is unnecessary to set forth ad of the testimony of the clerk concerning this. He was asked if he had not made the appointment on the same paper that was sent to the publisher, and stated that he did not do that, that the recorder never puts it on the sheet that goes to the publisher, that “I might have put it on a duplicate sheet.” On direct examination he stated that he was sure he had made an appointment of John E. Harris as attorney ad litem for the nonresident defendants, from the paper of proof of publication which was handed him, but, on cross-examination, he stated he did not know of his own knowledge whether he rna.de such appointment or not; he could not tell unless he had his files. All he was basing’ his opinion on was the fact that the name John E. Harris appeared on the proof of publication by the publisher. He had no personal recollection of it. The concluding question asked him on this issue is as follows: “Is it your custom in some instances to indorse the name of the attorney appointed on the paper sent the publisher?” and he answered: “No, not on that paper,”
John E. Harris testified that, as a matter of fact, he did not know whether he was appointed attorney for the nonresident defendants or not; he wrote a letter to the parties named as nonresident defendants in the cause, and slated in the letter that he had been appointed as attorney ad litem for all nonresident defendants. As to whether he was ever appointed or not, he did not know. He got his information that he had been appointed from Tom Campbell, an attorney in Little Rock, who was the attorney for some of the plaintiffs.
The above testimony, even if competent, we regard as too indefinite and uncertain to sustain the contention that John E. Harris was disqualified to sit as the special judge in this cause. This applies to the other appellants as well as to Charlie Ingram, but, as to the other appellants, they are precluded from raising- the issue for still oth< r reasons. Elmer F. Rowe, Jr., through his guardian, Elmer F. Rowe, Sr., cannot raise it because the record shows that he was a party to the decree of March 6,1926, by his. next friend, E. C. Dunn, in which the court refused to set aside the decree in partition, overruled all exceptions to the report of the sale made by the commissioner, and confirmed and approved such sale. After excepting and praying an appeal from that decree, the record shows that afterwards, on June 7, 1926, he, through his next friend, Dunn, prayed the court to dis miss his appeal with prejudice, which was done. Although the trial court erroneously found that that case was in the Supreme Court, nevertheless the court was correct in holding’ that his motion setting up the disqualification of John E. Harris could not avail, hut for a different reason, to-wit, that he had abandoned his appeal in a decree rendered at a former term of the court, in which he might have set up, as an exception to the report of the sale, the disqualification of the judge to sit in the cause. He, as well as the other movers also, are likewise precluded from raising the issutí because none of them had raised this issue in the original action for partition or in any of the former proceedings prior to the filing of exceptions to the report of the sale of the .commissioner appointed to make the sale in partition. It was too late for them to raise it then. The law is well settled in this State that the disqualification of a judge must be raised in limine. Parties cannot wait until a judge acts in a cause and then set up his disqualification.
The true rationale of the doctrine is not that the parties to the action, by failure to suggest the disqualification, have, by consent, conferred' upon him jurisdiction to try the cause, but rather that, by allowing him to proceed to try the cause, they have estopped themselves from raising the question of his disqualification. As we said in Washington Fire Ins. Co. v. Hogan, 139 Ark. 130-135, 213 S. W. 78 (5 A. L. R. 1585), “having taken their chances of a favorable judgment at the hands of a judge who, they knew, was personally disqualified, they cannot, after adverse decision, avail themselves of facts which they knew before the judgment was rendered to get rid of it.’’ See also Pettigrew v. Washington County, 43 Ark. 33; Morrow v. Watts, 80 Ark. 57, 95 S. W. 988.
Second. One of the grounds urged for reversal is “that the chancery court had no jurisdiction to order the sale in partition because the commissioners appointed to make partition in the original decree for partition did not report that the land was so situated that it could not be partitioned, nor were the commissioners ordered to make the sale; that the procedure prescribed by §§ 8111 .to 8119, inclusive, of Crawford & Moses’ Digest, must be followed in order to give the chancery court jurisdiction to make the sale, ’ ’ which was pot done. This court has decided in several eases directly contrary to this contention. Moore v. Wiley, 77 Ark. 317, 91 S. W. 184, 113 Am. St. Rep. 151; Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835; McGehee v. Oxner, 150 Ark. 618, 234 S. W. 989.
In McGehee v. Oxner, supra, we said: “Chancery courts may order a sale of property, if necessary to effect an equitable division thereof among the owners, upon evidence other than, and wholly independent of, a report of commissioners.” The decree in partition recites: “And it appearing to the court, from testimony heretofore taken and from the nature of this cause and the number of parties, involved, that it is impossible to partition the property in kind among the parties in interest without great damage and detriment thereto,” etc. The court, after such finding, proceeded to appoint a commissioner to make the sale. This procedure was authorized under the above decisions. Moreover, the decree directing the sale of the land for partition was entered January 6, 1926, by the First Division of the' Union Chancery Court, which was at the December term of the chancery court. The December term of the First Division of the Union Chancery Court expired according to law February 28, 1926.
It is thoroughly established by our decisions that, after the expiration of the term of court at which a decree is rendered, the court rendering it cannot set it aside or modify it except in the manner and for the causes specified in the statute or by bill of review under the chancery practice. See Turner v. Vaughan, 33 Ark. 454; Johnson v. Campbell, 52 Ark. 316, 12 S. W. 578; Terry v. Logue, 97 Ark. 314, 133 S. W. 1135; Robinson v. Citizens’ Bank, 135 Ark. 308, 204 S. W. 615.
The procedure for vacating or modifying a judgment or final order of a court after the expiration of the term is prescribed by §§ 6290 to 6296, inclusive. The exceptions filed to the report of the commissioner making sale, and the petitions seeking to set aside the sale of the commissioner, which operate as exceptions to such sale, do not follow the procedure set forth in the above statute, nor can any of these motions or' exceptions be converted into á bill of review. It is expressly held in Johnson v. Campbell and Terry v. Logue, above, that a petition to vacate presented by way of objection to the confirmation of report of sale is not the proper practice and that such petitions or exceptions should be rejected.
Third. It is last contended by the appellant, Charlie Ingram, that the decree of June 30, 1924, and the subsequent decrees of January 27,1926, May 5, 1925, January 9,1926, and-March 6,1926, are all void-as to her, because, at the time the original decree of June 30, 1924, was entered, Charlie Ingram was a minor, and that no defense was made for her by guardian, as required by §§ 1113 and 1114 of Crawford & Moses’ Digest. It appears from the record that Charlie Ingram became of legal age on October 1, 1924. This appears from the response and intervention of Charlie Ingram to the petition of I. Felsenthal for a writ of assistance directed against B. H. Ingram to obtain possession of the property, and also from the testimony of her father taken in that cause. In the decrees rendered- after June 30, 1924, she made herself a party and set up her minority through her attorneys, Bailey, Nichols & Bailey. After the decree that finally reached this court on appeal, which was affirmed November 23, 1926, a motion for rehearing and to recall the opinión of this court and permit the record to be amended was filed by her attorneys of record, Bailey & Bailey and Allyn Smith. Attention again was called in this motion to the fact that she was a minor when the decree of June 30, 1924, was rendered. ■ . ■
This court, in Ingram v. Wood, supra, speaking of the decree of June 30,1924j said: “It follows from what has been said that the original decree which fixed the interest of tlie several parties in the lands involved became final and binding upon appellants and appellees herein with the lapse of the term of the court on the first Monday in September,. 1924. The only method by which the decree could have been modified or set aside after the lapse of the term at which same was rendered, except for fraud in the procurement of the same, is the method provided in § 6290 of Crawford & Moses’ Digest. ’ ’ The court in that decision affirmed the decree of the chancery court of May 5,1925, which adjudged that the interest of the parties to the litig-ation, including Charlie Ingram, “had been correctly ascertained and determined in the original decree of date June 30, 1924.” Counsel for Charlie Ingram say of the decree of May 5, 1925, “it is more than possible, and we think, on the face of the record, the court at that time made a proper decree, as there seems to have been no evidence before it ‘other than the bare assertion of counsel in their motion that Charlie Ingram was a minor, and it did not appear that such attorneys were without authority to appear for her.” But now they say: “A different state of facts appears. The demurrer of Charlie Ingram,’ filed in April, 1927, admits that she was a minor at those times and admits that the attorneys who appeared for her on these occasions Avere not her authorized attorneys.”
Now, in her exceptions to the report of the commissioner making the sale, she alleged that at all times up to October 9,1925, she was a minor under eighteen years of age, and that no guardian of any sort or character had eA^er appeared for her in this cause. She set up the same facts in her response or intervention in the action by I. Felsenthal for a writ of assistance. The decree of the trial court, in sustaining the demurrer of Felsenthal to the intervention, among other things recites: “I. Felsenthal, as purchaser, files, his demurrer on the ground that the matters pleaded in said response cannot properly be raised in this suit, but will require a separate action; that, as shown by the records of the court in this cause, the matters pleaded in said response have already been adjudicated against the claim of Charlie Ingram, and that the said Charlie Ingram has appealed to the Supreme Court and the matter is there pending.”
The trial court was clearly correct in holding that the decree of March 6, 1926, was res judicata. The same issues of her minority, and that no defense was made for her in the former decrees by a regular guardian, or a guardian ad litem, were presented in her exceptions to the commissioner’s report of sale, and seeking to set the sale aside. These exceptions were disposed of, finally, in the decree of March 6, 1926. This decree was rendered twelve days before the decree awarding the writ of assistance to I. Felsenthal of March 18, 1926. Therefore the pleadings and evidence in the writ of assistance proceeding could not have been in evidence in the proceedings resulting in the decree of March 6, 1926. The record does not show that Charlie Ingram proved or offered to prove the allegations of her exceptions to the report of the commissioner, alleging her minority at the time of the institution of the original action, and that no defense had been made for her by a guardian ad litem. It devolved upon Charlie Ingram to make good the allegations, of her exceptions by proof of same. The decree of March 6, 1926, as amended (mmc pro time) recites as follows: “All parties announcing ready for trial, this cause is submitted upon the original record in this case, the original decree and order of sale, the report of the commissioner filed herein, and exceptions of E. C. Dunn et al., and the motion of Charlie Ingram, and upon the testimony of ivitnesses taken in open court,” etc. None of this oral testimony is brought into the record as the statute requires, and, under familiar rules often announced by this court, we would have to assume that the court found every fact that might have been found on oral testimony essential to the correctness of the decree. After sustaining the demurrer of Felsenthal to Charlie Ingram’s intervention or response to his petition for writ of assistance, the court by decree correctly awarded him such writ, because he set' up in his petition that lie was the purchaser and had the commissioner 's deed to the land nnder orders, made for a sale of the land by a former decree of the court, which, at the time of the filing of the petition for the writ of assistance, had not been superseded or reversed on appeal. Such showing1 made by the petitioner entitled him to the writ of assistance, since the answer to this petition showed the matter set forth in such answer had been already adjudicated by a former decree of the court.
In Northern Road Imp. Dist. v. Meyerman, 169 Ark. 383, 275 S. W. 762, we held, quoting syllabus: “A purchaser at a judicial sale -becomes a party to the proceedings, and is entitled to such assistance from the court as is necessary to make the orders and decrees of thé court effective.” In Smith v. Murphy, 141 Ark. 410, 216 S. W. 719, we said: “The purchaser at a judicial sale has a clear right to the possession .of the property sold as against all parties to the proceeding in which the sale is made, and this right the court will summarily enforce by writ of assistance or in some other appropriate manner,” quoting from Am. & Eng. Enc. of Law (2d ed.) vol. 17, p. 1014. See also Bright v. Pennywit, 21 Ark. 130.
In answer to the suggestion of the learned counsel for Charlie Ingram that the judgment against her is void, and that this court should so hold, we have to say that we do not feel warranted in so holding from the record now before us. In the caption of her motion, or exceptions to the report of the commissioner asking to have the same set aside, she sets out the numerous plaintiffs and defendants that were parties to the action in which the decree of partition (June 30, 1924) was rendered. At the conclusion of her motion she adds, what she designates as “ a notice to all parties that she has filed suit, ’ ’ etc. By the decree of this c'ourt in the case of Ingram v. Wood, above, it is shown that the interest of all the parties named had been «adjudicated and determined by the decree of the Union Chancery Court, May 25, 1925. That decree was final as to all the pa’rties in the original action, except Charlie Ingram, who, to be sure, under the law, liad a right, if she were an infant when tbe decree was rendered, to bave tbe same set.aside-if no defense was made for ber by natural guardian or a guardian ad litem; but tbe decree so rendered against ber was not void, but only voidable. Martin v. Gwynn, 90 Ark. 44, 117 S. W. 754; Hare v. Ft. S. W. Ry. Co., 104 Ark. 187, 148 S. W. 1038. All tbe parties whom she named in her motion or exceptions to tbe sale are interested, and would be affected if tbe sale were set aside on tbe hearing of ber exceptions. She could not and did not bring these parties into court by simply calling upon them in ber motion to take “notice that she bad filed suit.” These parties, whose rights bad been adjudicated, were then out of court, and, to bring them in, she would have to do so by the notice tbe statute requires. True it is that infants are the special wards of courts of chancery, and, where their minority is disclosed on the face of tbe record, these courts are ever alert to see that all their rights are protected at eveiy step of tbe proceedings; but where, as here, Charlie Ingram was named as ¿ party defendant and was represented by counsel' of record, in all tbe long litigation, through the numerous orders and decrees resulting in the final decree of May 25, 1925, in which, as it appears on its face, her rights and the rights of all other- parties by that litigation were finally adjudicated and determined, then, in order to set aside the decree of the chanceiy court in which such rights were adjudicated and determined, she must follow the method prescribed in C. & M. Dig., § 6292, supra, which calls for a separate action to be instituted by the - aggrieved party. It is so held in many cases. See, in addition to those cited above, Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973. In that case, among other things, speaking of a judgment that was rendered where the infant was not represented by a guardian, we said: “But, if a judgment is rendered against an infant without such defense, it is only voidable under our decisions, and it may be vacated or modified after the expiration of the term of court in which it was rendered, where the condition of such defendant does not appear in the record nor the error in the proceedings. The proceedings to vacate the judgment for this cause must be by complaint, verified by affidavit setting forth the judgment, or order, the ground to vacate or modify it, and it will not be vacated until it is adjudicated that there is a valid defense to the action in which the judgment was rendered, the 'court first deciding upon the grounds to vacate before trying the validity of the defense.”
We are convinced, after a painstaking analysis of this voluminous and complicated record, that none of Charlie Ingram’s exceptions and motions seeking to set aside the original decree in this cause were tantamount to a separate action instituted by her to vacate the original decree in this cause or the subsequent decree of May 5, 1925. On the record she has made we could not grant her the relief she seeks without doing violence to the statutory law, and without also doing injustice to the other parties, whose rights were finally adjudicated by the decrees which she now seeks to set aside. They are equally entitled -to have their rights protected, by insisting that the statutory method for vacating decrees be complied with.
Our conclusion upon the whole case is that the decree of the chancery court is in all things correct, and it is accordingly affirmed. | [
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Smith, J.
Appellants were jointly indicted and tried upon the charge of possessing a still, and at the trial witnesses J. D. and Harold Parker and Braswell, Woodall and Hays gave testimony which fully warranted the jury in finding- that the appellants were in possession of the still and were about to. make whiskey with it when they were arrested.
No testimony was introduced in behalf of appellants, and none of them testified. The prosecuting attorney, in Ms closing argument, stated: ‘ ‘ There is the testimony of Parker, and the testimony of Braswell, and of Wood-all, and of Hays, and of Harold Parker, to this state of facts, and there is no denial that there is any other testimony in the case.”
Appellants objected to this argument, and the objection was overruled, and that ruling is assigned as error, as a comment by the prosecuting attorney upon the failure of appellants to testify.
Section 3123, C. & M. Digest, provides that a person charged with a violation of a law shall, at his own request, but not otherwise,- be a competent witness, and that his failure to make such a request shall not create any presumption against him, and, in the construction of this statute, we have held that it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. .
We think the record now before us is like that of the case of Markham v. State, 149 Ark. 507, 233 S. W. 676, and unlike that of the case of Bridgman v. State, 170 Ark. 709, 280 S. W. 982. In the last cited case the prosecuting witness had testified that, when he met the defendant and the defendant’s brother, the defendant was drunk. The brother of the defendant testified, and denied that the defendant was drunk, and no other person than the prosecuting witness, the defendant and the defendant’s brother were present at the time in question. The prosecuting' attorney, in Ms argument, among other things, stated that defendant’s brother had testified that the defendant had not had any liquor that day, but that the defendant did not say so, and we held that the comment that the defendant did not deny having had liquor that day necessarily referred to the fact that the defendant did not testify in the case, and for this' reference to that failure we reversed the judgment of conviction.
In the Markham case, supra, the earlier cases on the subject were reviewed, and it was held that the statement by the prosecuting attorney that testimony tending to prove the guilt of the accused was undenied and uncon-tradicted, was not necessarily a violation of the statute hereinbefore referred to. Davidson v. State, 108 Ark. 191, 158 S. W. 1103 Ann. Cas. 1915B, 436.
We conclude therefore that the argument of the prosecuting attorney set out above does not constitute a comment upon the failure of appellants to testify, but was an argument merely that the testimony of the witnesses, naming them, should be believed, because that testimony was undisputed.
In 16 O. J. 903 it is said:
“It does not follow, however, that every allusion of the prosecuting attorney to accused’s failure to testify is error, for, although there may be some reference to the matter, it is not error if the allusion is very remote and evidently not intended to call attention to that fact,' as where the comment is on the failure of accused to produce certain evidence or to prove or disprove facts, which he might do by other witnesses, or to account for his whereabouts at the time of the crime.” See also 2 R. C. L. chapter on “Arguments of Counsel,” § 27.
' The indictment alleged that defendants had kept and were in possession of a still without registering the same with the proper United States officer, as is required by law, and appellants requested an instruction to the effect that this was a material allegation which the State was required to prove. We have held, however, that the State was not required to prove this allegation, but that the burden of proving registration was upon the defendant and not upon the State. Ring v. State, 154 Ark. 250, 242 S. W. 561; Clark v. State, 155 Ark. 16, 243 S. W. 865; Rosslot v. State, 162 Ark. 340, 258 S. W. 348.
No other questions are presented in the motion for new trial, and, as no error appears, the judgment of the court below must he affirmed, and it is so ordered. | [
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Smith, J.
Appellants own a large body of land in the White River Levee District, and seek by this suit to restrain the officers of the district .from prosecuting a suit to enforce payment of certain delinquent taxes assessed against their lands. .They, prayed this relief upon the ground that the lands had , received no benefit and-could receive none from the proposed improvement.
In support of the allegations of the complaint, appellants offered testimony to the effect that their lands were situated between White and Cache Rivers, and were overflowed from the waters of both streams, and that the lands would be overflowed by the Cache River even though the lands were protected from the overflow of the White River by the levee along-that stream.
Act No. 97 of the 1911 session of the General Assembly (Special and Private Acts 1911, page 215) created and ■ defined' the boundaries óf the White- River Levee District,'and,'pursuant to the authority of this act, better-ments were -assessed .-to pay the cost of the proposed levee. It appears that .betterments were assessed .against the lands of appellants, but they paid no*,taxes, and no taxes appear to have been extended against their lands until • 1919, when the taxes for that year were assessed against the lands of appellants. They . thereupon brought suit to enjoin the.collection of .the taxes, and alleged that the lands, by reason of their location, had not and could not receive any benefits from levee-ing White River. The depositions of several witnesses were .taken, in support of. the- -allegations of-, the complaint.- This testimony was to the effect :that"a large part of appellants’ lands were low and swampy and unfit for-cultivation as the result of the annual overflows'of both the White .and Cache Rivers, and that-the leveeing of the White River did-not prevent the overflow of the lands by the Cache River, although the depth and duration of the overflow.was lessened by protection from the White River. , \ -. • . .. - . .
• - The suit’to enjoin the collection of -th'eT91-9 tax does not appear to have been -prosecuted to a final' decree, and while it was pending there was passed, at the Extraordinary session of 1920, an act entitled “-An act in aid of the White River Levee -District.’’-’This is one of the unpublished-acts. . ..
; . This act of 1920: authorized the board of -directors of’ the White- River Levee District to- straighten ■ the channel of the Cache River and to construct-such drains, ditches, and levees “as will be- necessary-to protect the lands of the district from overflows from the waters of Cache River, ’ ’' and, to accomplish that end, the. White River Levee-District was authorized - to. issue interest-bearing bonds in a sum not exceeding $400,000. . 5 .
At the-ensuing regular 1921 session .of the -General Assembly an act was passed which provided -for a reassessment of the benefits in. the White River -Levee Distinct,. and § 1 of the act recited that the existing-assessments were-inequitable. Special Acts 1921, page-1133-. .:
The'- act of 1921 provided that the total amount' of benefits theretofore assessed should not be reduced, but that the existing assessments-should be-equalized, and, to that- end, assessors were named in the act, who were directed'“to make a reassessment of the-benefits that will accrue and that have accrued,” and to give notice of the assessment in the-manner-provided-by the act creating the district. Section 5 of; the act creating the district required the president of the hoard of directors to give notice of the original assessment and of the time and maimer in which protests might be made. It was there provided that any person,, firm, company or. corporation aggrieved by said assessment shall have twenty days in which to take action against the same, if such they have, and their failure so. to do shall render said assessment incontestable as to them, either at law or in equity. •
• The reassessment was made, and appears to be ..the assessment here attacked, but it does not clearly appear that this attack was brought within the time and manner provided by the original and 'amendatory acts above referred to, and, unless this was done, the assessments became final and binding. House v. Road Imp. Dist. No. 2, 158 Ark. 330, 251 S. W. 12.
We think, however, that the action of the court below in dismissing the complaint of appellants as being without equity should be affirmed,-' even though the action is not' barred by the failure of appellants to institute proceedings within the time limited by law to attack their assessments.
. , . The affirmative, showing is made that the improyement authorized by the special act of 1920 was never completed. The straightening and deepening of the channel of Caché River- was' begun, but the work stopped about seven of eight miles from appellant’s lands. This appears to have .been due' to the failure of the bank in which the funds of.the district were deposited,.and appel-' lants insist that, inasmuch as the proposed improvement authorized by the' act of 1920' has not been completed, and may not be completed, the proposed improvement cannot be taken into' account iii determining whether the lands will be benefited." The answér to this- contention is that the assessment of benefits was "based upon the assumption that the improvement authorized by the act of 1920 would be' completed, and the assessment cannot be defeated' because this was not doné. Salmon v. Board of Directors, etc., 100 Ark. 306, 140 S. W. 585; Road Imp. Dist. No. 3 v. Norris, 153 Ark. 635, 241 S. W. 380; Hunt v. Road Imp. Dist. No. 12, 168 Ark. 266, 270 S. W. 961.
It is stipulated that' the assessors, in making the last assessment, ^reassessed the benefits “in accordance with the law appointing them, and in strict conformity thereto these assessors made a reassessment of all lands of the district, and, to the best of their ability, rendered a fair and impartial assessment upon all lands in-said district.” It appears also that the present assessment of appellants’ lands was greatly reduced, some of the assessments being not more than a third of the original.
It was also stipulated by counsel that the depositions taken in the first suit brought by ,appellants to enjoin the collection of the taxes agáinst appellants’ lands might be read in evidence; in the present case, and' it is upon these depositions that appellants now ask relief, but it will be remembered that these witnesses did not take into account the improvement of Cache River, as that improvement was not then authorized.
The testimony does appear to establish the fact that, unless Cache River is improved, that stream would overflow appellants ’ lands, even though White River were leveed, but this testimony also shows that the extent and duration of the overflow would be lessened by levee-ing White River, so that some benefit would be conferred even though complete relief was not afforded.
In the case of Memphis Land & Timber Co. v. St. Francis Levee District, 64 Ark. 258, 42 S. W. 763, the landowner resisted the collection of the tax imposed on its land upon the ground that the levee would not afford protection from surface water, and testimony was offered that certain lands would not be benefited by the levee for the reason that they are wet from winter and spring rains from six to nine months in the year, and that certain other lands would not be benefited because they are above overflow. Mr. Justice 'Battle, .speaking for the court, said that this proof was not sufficient to show that such lands would not ho benefited by the levee, as the owner might be enabled to reclaim them by means of drainage, and. the relief prayed was denied the landowner. '
The assessors, no doubt, took all the- facts here stated into account in making the last assessment, including the possible effect of the improvement authorized by the act of 1920.
In reviewing assessments in cases of this kind we must, of necessity, take into account the fact that the assessors are more familiar with the conditions .to be considered in making up their assessments than we can be. In the case of Rogers v. Arkansas-Loudsiana Highway Imp. Dist., 139 Ark. 322, 213 S. W. 749, we said:
“We announced the rule to be followed by this court in the decision of questions of this' character in the case of Mo. Pac. Ry. Co. v. Monroe County Road Imp. Dist., 137 Ark. 568, 209 S. W. 728, where it was said: ‘An estimate of benefits resulting from a local improvement to' a given piece of property is largely a matter of opinion, and generally there is a wide difference of opinion on such questions. Under those circumstances a great amount of deference is due to the judgment of the board of assessors, who are constituted as a special tribunal for the purpose of determining that question, and courts reviewing the procéedings of the assessors should not substitute the judgment of the judges for that of the assessors, unless the evidence clearly shows that the assessments are erroneous.’ ” See also Wilkinson v. St. Francis County Road Imp. Dist. No. 1, 141 Ark. 164, 216 S. W. 304.
There is no contention that the assessors acted arbitrarily in making the assessment. On the contrary it is stipulated that, to the best of their ability, they made a fair and impartial assessment upon all the lands in the district, and their work cannot be set aside by us -because the proposed improvement of Cache River, which they were required to take into account, was not completed.
■ As we are unable to say that the evidence clearly shows that the assessments are erroneous, the decree of the court below must be affirmed, and it is so ordered. | [
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"Wood, J.
This action was instituted by Roberta Hil-dreth, plaintrfty against the. Arkansas Central Power Company,, defendant. The plaintiff alleged, in substance, that the defendant is ah Arkansas Corporation engaged as a common carrier in the operation of a street railway transporting passengers in the city of Little Rock, Arkansas; that, on September 28, 1925, plaintiff was a passenger on one of defendant’s cars, known as the South Main car, which was being operated by- one man, the. conductor-motorman; that she paid her fare and took hex-seat in the car; that the conductor-motorman claimed that she had not placed the proper fare in the box; that, he caused the plaintiff to be unlawfully arrested and falsely imprisoned and to suffer other humiliations and indignities, to her damage in the sum of $5,000, for which she prayed judgment. - ■ ■ ■
The defendant denied all the material allegations of the complaint, and alleged that, if the plaintiff was arrested, it was because of her own misconduct, and that, if tlie conductor-motorman caused the plaintiff tó be arrested, such action on liis part was not within the scope of his authority. .
The plaintiff testified, in substance, that she and her little daughter and one Ruby Corley entered one .'of defendant's cars at 23rd and Main streets; that she:paid ■the fare. She had twenty cents in her hand and offered same to the conductor-motorman, who told her to drop it in the,, box, which she did, and then went, to her seat. The conductor-motorman hollered to,her,“You owe me three pennies,” and she replied,'“Well I dropped twenty .cents in the box.” Ruby Corley said, “Instead-of owing him three pennies, he owes us two;” and she asked him for the two pennies. The conductor-motorman said to her “If you don’t sit down, I will put you off the car.” She insisted, and said, “Well,, I want my two pennies— they are mine; they are not .yours,” and he told her-again “If you don’t sit down I will put you off the car.” When the car got to 5th and Main the conduetor-motor-man would not let us off the car. He held us until he called the policeman, and arrested us and, carried us down to headquarters, where we were held until bond was made for ms. Witness went back to court, the jiewt morning.
Over the objection of appellant, witness was-permitted to testify that she and her little girl were arrested, and that they were turned loose...On crossrexami-nation she stated, among other things, that they were going,to. get off at 5th and Main. When, they got off there,', .the officer told them to come with him, and witness,asked the officer why he had arrested her., and stated that she had. not said anything, and the officer told her to tell Judge Lewis that. The officer held them at the. drug store. until he called the patrol. They walked over to the comer, in front of the drugstore. Plaintiff-, testified that the. officer came on the. car at 5th and Main and took them .off the car. The motorman would not open the -door of the car. They were still there at the door, waiting to get off, when the officer came. He made them get off. The policeman stepped off tlie car in front of them and told them to come and go with him. He did not take witness off. iHe told them, before the car door was opened, that they were under arrest for disturbing the peace. ■Witness talked with him after they were off the car on the ground, because she wanted to know why he had arrested witness, for she had not said anything to the motorman.
G-. C. Self testified, in substance, that he boarded the car at the same time plaintiff did. Witness corroborated the testimony of plaintiff as to the payment of the fare. After the plaintiff took her seat, she stated that she was due two cents in change; that was the only word witness heard pass between plaintiff and the motorman. Plaintiff and her companion got off the car at 5th and Main. They were taken off by the policeman, who- was directed to do so by the motorman and another gentleman who was on the car. Witness stated: “When the car stopped at 5th and Main, a gentleman came from the rear of the car and spoke to the motorman. Just in a minute or two they beckoned to the officer, and the officer came forward while the girls were getting off, and took charge. The motorman did not abuse the plaintiff in any way. The officer came to the front of the ear, and the women were pointed out at the rear as they were getting off. As well as witness remembered, the officer went down on the outside of the car. Witness would not be positive about that. The women were fixing to get off. Witness did not remember whether the officer took charge of them before they got off or after they got off. Witness could not say that he heard the policeman say anything to them in the car. He did not hear the policeman say anything, but knew that the policeman arrested them from the fact that they were pointed out to him and he took charge of them. Witness could not say whether the policeman got on the. car of not, but he heard the motorman calf the policeman, and saw him point out the plaintiff and her companion to the officer, and heard the motorman say, “Take charge of them.” Witness didn’t know whether the motonnan held the door until the policeman came. He thought the door did not open before the policeman got there because they had not got off the car at that time. The car stood there two or three minutes. Witness looked hack, and they were getting off the car, and at the* same time the policeman came forward.
Over the objection of defendant the court permitted the plaintiff to prove that she was acquitted by the municipal court on the charge of disturbing the peace.
D. P. Poole, a witness for the defendant, testified that he was an operator in the employ of the defendant, and was operating the car at the time the plaintiff was arrested. When the plaintiff and her companions boarded the car, théy dropped a dime and a slick nickel in the box, and plaintiff said, “I am paying for three.” Plaintiff got about five or six feet back in the car and witness called her and told her she had only put fifteen cents in the box. Witness thought that she had made an honest mistake. They went back in the car and the young yellow negro girl with plaintiff got to cursing and raising quite a disturbance all the way down town. The passengers complained to witness, and when witness got to 5th and Main he called the policeman and told him that this colored girl was raising quite a disturbance, and asked him to go back there and quiet her down or cool her off, or something like that. At that time plaintiff and her companions were going back towards the back end of the car to get off. Witixess let them off of the car. After the officer came and witness talked with him, he went back through the car to where they, were. Witness didn’t hear the officer say anything to them on the car. Witness did not instruct the officer to arrest them. After the officer went back to the back end of the car, the woman got off the- car. The officer got off too. Witness did not curse or abuse the plaintiff in any way. Witness did not hear the plaintiff say anything. Witness told the policeman to go back and “quiet them down or cool them off” — that they were raising a dis turbance on the car. They were' still fussing when witness called the policeman and told him to go back- and quiet-them down or cool them off. Witness pointed out the other woman who was doing the fussing. The car witness was operating was one of the old cars, and the doors are slow releasing. As soon as witness got to the proper stopping place, he released the door. Witness let the officer on at the proper stopping place at 5th and Main. Witness thinks he let him on first.- The same policeman that witness talked to took charge of the plaintiff, and asked the witness to appear at the city court the next morning. Witness did not put the plaintiff off the car. The policeman did not put her off the car. She got off voluntarily. Witness did not have anything tó do with them getting off. Witness opened the door when he got to the proper stopping point.
Other witnesses who were passengers on the car at the time corroborated the testimony of the conduetor-motorman to the effect that the other woman companion who got on the car with plaintiff created a disturbance and used profanity — ugly words — for several'blocks on the car. One of the witnesses asked the motorman why he did not call the cop oh the car tó do something about" the disturbance, and he beckoned to the policeman to get on. the car. The policeman- gót' on the car at the front door and went straight through the car. Witness did not hear the officer say anything to’ the plaintiff and her companion while they were on the' car. Oiie of the ‘ witnesses stated that the why he saw'it the plaintiff and her companions were getting off the car without any oiie bothering them. They were'waiting for the back door to open when the policeman got back there. Then they all stepped off and went to the curb and started talking, and the car pulled on. ' Witness did not'hear the plaintiff use any profane language whatever. - She could- not say that ' plaintiff used any language that would ordinarily be a breach of the peace. The officer got on the car at the direction of the motorman..
Gr. W. Witt testified tfiat lie was on the police force of the city of Little Rock, and made the arrest of . the plaintiff and another colored woman at 5th and Main. He was directing traffic • at that point at the time the motorman drove np and whistled to witness to, come over to the car, and told witness that some colored women were raising a little disturbance on the car. Witness got on the car at the front door, and the motorman pointed the women out to witness. The motorman opened the hack door of the car, and they went out. Witness did not take the women off the car. They got off at the back, and witness followed"them and told them to wait a minute. The witness was asked , if the operator told him to arrest the plaintiff, and answered, “Well, I believe he told me they needed cooling off, or something to that effect.” Witness arrested both of the women, and sent them down to police headquarters after he got over on the corner. ' They, were off the car when witness got hold of them. If witness said anything to them on the car, he'did not remember it. They started to walk off, and witness said, “Wait a minute — what’s all the trouble?” Witness had no warrant for their arrest, and there was no violation'of the law in witness’ presence. ' Witness did not know anything about what they had done. The defendant proved that the motorman had no authority to arrest or causé the arrest of passengers for law violation.
The court, over the objection of the defendant, instructed the jury to the effect that, if they found from the evidence that' the conductor'-motorman of the car caused the arrest and imprisonment of the plaintiff and the taking of the plaintiff from defendant’s' car by the policeman, the defendant was liable for the acts of its agent or employee in whatever sum the jury found from the evidence she was entitled to by. reason of the false impr'iáónment.' The court further instructed the jury that, to constitute imprisonment, it was not necessary that there'should be actual confinement in a jail or prison; that any exercise of force by which a person is deprived of liberty and is compelled to remain where she does not wish to remain, or go where she does not wish to go, is an imprisonment. The conrt refused to grant defendant’s prayer for instruction No. 1 for a directed verdict in its favor. The conrt also refused defendant’s prayer for instruction No. 2, which, in effect, told the jury that the authority of the motorman to do the acts complained of could not be inferred from- his employment, and that the burden was on plaintiff to prove that the arrest was authorized by the defendant, and, if she failed to establish that fact, their verdict should be in favor of the defendant.
In its prayer for instruction No. 3 the defendant asked the court to instruct the jury that it was the duty of a passenger to refrain from the use of loud and abusive language which disturbed other passengers on the car, and that, if the plaintiff knowingly and willfully failed to perform her duty in this respect, or aided or abetted another in thus disturbing the other passengers, then the operator in charge of the car was authorized to report her conduct to au officer of the city, or to eject her, if necessary, to protect other passengers on the car, and, if such were the fact, the defendant would not be liable therefor.
In its prayer for instruction No. 4 the defendant asked the court to tell the jury that the street-car operator, who has authority.to preserve order on his car, does not also have authority, by virtue of his employment, to cause the arrest of a passenger for disorderly conduct; that, if the operator of the defendant improperly caused the arrest of the plaintiff, the defendant would not be liable.
In instruction No. 5 the defendant asked the court to tell the jury that, if the plaintiff had voluntarily left or was voluntarily leaving the car at 5th and Main at the time she was arrested, the defendant would not be liable. The court modified this instruction by striking the words “or was voluntarily leaving” and gave the instruction as modified.
Tlic defendant’s prayer for instruction No. 6 is as follows: “You are instructed that a street-car operator who has authority to preserve order on his car does not also have the authority, by virtue of his employment or his duty as such operator, to cause the arrest of a passenger for disorderly, conduct, and thereby render the company liable for damages if the arrest was improper, unless such arrest he used as a mode of ejection of the passenger at the time thereof, and, even though you find from the evidence in this case that the operator of the defendant improperly caused the arrest of the plaintiff, yet such conduct on his part would not make the defendant liable unless such arrest was used by the conductor-motorman as a means of ejecting the plaintiff from the car.” The defendant duly excepted to the ruling of the court on these prayers for instructions:
The court gave defendant’s prayer for instruction No. 7, which told the jury that the defendant in no event would he liable for the arrest of the plaintiff after she had alighted from the car, and, if they found that she was placed under arrest after she had alighted, the verdict should be in favor of the defendant.
The court instructed the jury on its own motion, over the objection of the defendant, that, if the jury found for the plaintiff, they would find for her in such sum as would compensate her for any humiliation she may have suffered by reason of her arrest, and also instructed the jury, on its own motion, that the burden of proof was on the plaintiff to show by preponderance of the evidence her right to recover, and that by preponderance was not meant necessarily the greater number of witnesses, but the greater weight of evidence. The court also instructed the jury that they were the sole judges of the credibility of the witnesses and the weight of the evidence, and that they should take into consideration all the instructions and consider all the evidence in the case.
The jury returned a verdict in favor of the plaintiff in the sum of $600. Judgment was rendered in favor of the plaintiff for that sum, from which is this appeal.
The appellant contends that the court erred in refusing to grant its prayer directing the jury to return a verdict in its favor; that the' evidence wholly- fails to show that the conductor-motorman caused the arrest of the plaintiff. We have set forth the testimony bearing upon this issue, and deem it unnecessary to comment upon it at length. It suffices to say that it was an issue for the jury, under the evidence, as to whether or not the. conductor-motorman caused the arrest of the plaintiff. The testimony-of the plaintiff and of the witness Self, who testified in her behalf, tended to prove that plaintiff was arrested by the policeman, acting under the direction of the motorman, before she got off the car. Indeed, the testimony of the. appellant’s motorman and of the officer who made the arrest tends to proye that the arrest was made at the suggestion, if not the positive direction, of the motorman-conductor. The conduc-. tor himself said that “this colored girl is raising quite a disturbance,” and he asked the officer to go back there and “quiet her down, dr cool her off, or something like that.” The officer, when asked whether- the motorman told him to arrest the plaintiff, replied, “I believe he told me they needed..cooling off, or.something like that.”
The jury were fully warranted from the above testimony, even of the appellant’s witnesses, in'finding that the arrest of the plaintiff was caused at the suggestion of the appellant’s motorman.
The appellant , next contends that, even if the conduct of its motorman caused the arrest, of the plaintiff, such conduct of the motorman was. beyond the scope of his authority. But we are also convinced that it was an issue for the .jury, under the evidence, to determine whether the conductor-motorman was acting within the scope of his authority, if he caused the appellee to be unlawfully arrested and falsely imprisoned, as she alleged and as her testimony tended to prove. One of the wit nesses for the appellant testified that, at 5th and Main, witness said something to the motorman about the disturbance on the ear, and said, “Why don’t you call that cop on here and ask him to do something about this V ’ and witness further said that the operator said to the policeman, “I have some colored people back there that I want you to cool off.” ‘ The conductor-motorman himself testified that he told Mr. Witt, the officer, that this colored girl was raising quite a disturbance, and asked the officer to go back there and “quiet her down, cool her off, or something like that. ’ ’ He further testified that the young yellow negro girl got to cursing and raising a disturbance on the way down town. She was raising- such; a disturbance that passengers complained about, it to witness,. and witness, at 5th arid Main, called the officer on duty there and asked him to do as above stated. :
The undisputed testimony shows that the motorman of this car was also its conductor. He was in full.control. of the car. If the appellee, had not paid her fare and thus established her relation as a passenger of the appellant, its motorman-conductor had the right to eject her, and was acting within the scope of. his authority if, in ejecting her, he called an officer and asked him'to arrest her and take her from the car. Or, if the conduct of the appellee, at the time she was arrested, was so obstreperous and disorderly as to be offensive to other passengers and to make it necessary to “quiet her down, or cool her off,” as expressed by the motorman, then the motorman had a right to eject her for that reason, and, if he detained the appellee on the car and called the officer and directed him to take charge of the appellee and-her companions, and this method was adopted by the conductor-motorman as the means of ejecting appellee from the car, in so doing he was acting within the scope of his employment. On the other hand, if the appellee had paid her fare, she had established the relation of passenger and carrier, and was entitled, to the protection as a passenger, and was also under the duty to conduct herself so as not to disturb other passengers by conduct calculated!© cause a breach of the peace. If appellant’s conductor-motorman called the officer and asked him to arrest the appellee because he conceived that she was guilty of a breach of the peace by using language and otherwise conducting herself in a manner to disturb the other passengers, and that the services of an officer under the circumstances were necessary to arrest and thereby eject her in order to quell the disturbance she was creating, then the conductor-motorman was acting within the scope of his employment in causing the arrest of the appellee on the car, because, in so doing, he was acting within the line of his duty and the scope of his employment in preserving order and protecting the other passengers from the conduct of a fellow passenger causing annoyance to them and calculated to produce a breach of the peace. Therefore, if the appellant’s conductor-motorman caused the arrest of the appellee while on the car, for the purpose of ejecting her for the nonpayment of fare, or for protecting the other passengers from her offensive and disorderly conduct, in either case he was acting within the scope of his employment; and, if he employed unlawful and improper methods — more force than was necessary — in the discharge of his duties, the appellant is liable to the appellee for the damages caused thereby. But if the conductor-motorman did not detain the appellee and her companions and keep them from voluntarily debarking at 5th and Main,, after the car stopped, and did not cause appellee’s arrest while she Avas on the car, but did direct the officer to arrest her, and the officer arrested her after she left the car, then such conduct on the part of the conductor-motorman Avas beyond the scope of his authority, and the appellant would not be liable for such conduct. It occurs to us therefore that, under the evidence above set forth, the issue as to Avhether the conductor-motorman Avas acting within the scope of his authority was clearly an issue of fact for the jury.
Mr. 'Booih, on the Lrav of Street Railwrays, lays down the law as follows: “Irrespective of the regulations of the company, the conductor has the right, and it is Ms duty, -witMn the scope of his authority, to put off a passenger, even after his fare is paid, if he becomes disorderly or offensive. It is the duty of the carrier’s servants to preserve order and to protect its passengers against the willful conduct of any of their number which is necessarily offensive. A passenger who enters a car and refuses to pay his fare, and, on being requested to leave the ear, uses profane or indecent language, may be forcibly ejected, but the company will be liable for injuries resulting from excessive or unnecessary force. So a passenger who, at least without great provocation, willfully calls the conductor a liar in the presence and hearing of other passengers, is guilty of disorderly conduct which will forfeit his rights as la passenger. The grossly profane and indecent language of a passenger in a railroad coach where there are ladies has been held to be such breach of decorum, although he may have been provoked to it by the conduct of the conductor, as will work a forfeiture of his right to be carried as a passenger, and authorize the conductor to cause him to be expelled from the car, using no more force than is necessary for the purpose; and the exaction of a trifling sum for fare, which had already been paid, is held not to be a sufficient provocation for such conduct. ’ ’ Section 369, page 597.
And Mr. Nellis, on Street Railways, says: “It is the duty of a street railway company to treat its passengers with courtesy and kindness,; and where one of its employees, while engaged in the business of the company, whether willfully and maliciously, or in consequence of what he considered a duty, ill-treats a passenger, so far as to wrongfully cause his arrest, the company is liable for it. And where the evidence shows that a passenger was arrested without any cause, charged with an offense, and forced to undergo a trial, it has been decided that express malice may be found, and that the company is liable.” 2 Nellis, page 703, § 341.
Numerous cases are cited by these authors in notes to their text. In one of the cases, Stewart v. Brooklyn & Crosstown Ry. Co., 90 N. Y. 588, 591, 43 Am. Rep. 185, the New York Court of Appeals announced the general rule as follows:
“A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers, and he- undertakes absolutely to protect them against the misconduct of its own servants engaged in executing the contract. ’ ’
But it is unnecessary to look elsewhere for the law applicable to the various phases of the evidence set forth supra. The law applicable to the facts of this record has been thoroughly settled by the decisions of this court. Similar duties of carriers by steam railroads to their passengers is announced in Mayfield v. Railroad, 97 Ark. 24, 133 S. W. 168, 32 L. R A. (N. S.) 525. The crux of the lawsuit involves more a question of fact than of law. If the arrest and imprisonment of the appellee was after she had voluntarily debarked from appellant’s car, then the appellant is not liable in damages to the appellee for such arrest and imprisonment, because in that case, even though it may have been directed and caused by the appellant’s motorman-conductor, such arrest was beyond the scope of his authority. But, if, on the other hand, the arrest and detention of the appellee was .caused by the conductor-motorman while she was yet a passenger on appellant’s car, and such arrest was wrongful, unnecessary, and therefore unlawful, then the appellant would be liable in damages proximately resulting from such arrest, because the conductor-motorman, in such case, would be acting within the scope of his employment.
In Little Rock Traction & Electric Company v. Walker, 65 Ark. 144, 45 S. W. 57, 40 L. R. A. 473, one who claimed to be a passenger was arrested on the street oar at the direction of the conductor, on the ground that the passenger had not paid his fare. The plaintiff was taken to the police station by the officer and the next day was tried on a charge preferred by the policeman for violating a city ordinance which made it a misdemeanor for any person to ride on a street oar ■without paying his fare. Under those facts we held, quoting syllabus: “A street -railway company is not liable for the1 acts of its conductor in maliciously prosecuting a passénger-for violating a city ordinance making it a misdemeanor for any person to ride on a street car without paying fare, in the absence of authority from the company to the-conductor to institute such prosecution.” - ■
And in Little Rock Ry. & Electric Co. v. Dobbins, 76 Ark. 553, 95 S. W. 788, we held that a street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding, but not for such conductor’s subsequent acts in prosecuting the passenger for a breach of peace, such prosecution not being within the scope of the conductor’s authority.
In St. Louis I. M. & S. Ry. Co. v. Waters, 105 Ark. 619, 152 S. W. 137, we held: “A railway company is no't liable for the wrongful acts of its conductor in swearing out a warrant of arrest against a passenger on the next day after he was ejected from its train.”
These, and other Arkansas cases', are cited and quoted from in Dickinson v. Muse, 335 Ark. 76, 204 S. W. 609, where we held:
“The liability of a railroad company on account of an unlawful arrest and imprisoñmeñt by the prócuremént of its conductor is limited to what is said and done by its conductor at the time the passenger is being ejected by him under his authority, or for only', those things said and done that are so closely associated with the act that they may be regarded as a part of the act.”
The last announcement of our court on the subject is in the case of Fort Smith & Van Buren District v. Kidd, 153 Ark. 489, 241 S. W. 374, where we said: ’
“In the Dobbins case, as well as in the later cases which cite and follow it, it is made clear that a carrier is not liable for'the action of its employees in authorizing' arrests and prosecutions of persons who have been ejected or refused passage. But if the passeriger is ejected, by being arrested then the carrier is liable for the action, if the arrest itself is unauthorized.”
We deem it unnecessary to comment at. length upon each of the instructions that were given by the trial court. Suffice it to say the charge of the court as a whole submitted the issues of fact which the testimony tended to prove in conformity with the law as declared above and as announced in former decisions, of this court. In granting appellant’s prayer for instruction No. 5 as modified, and prayer for instruction No. 7 without modification, the court in effect told the jury that, if the appel-lee was arrested by the officer after she had voluntarily alighted from the car, their verdict should be for the appellant. And, in appellee’s instructions 4 and 5, which were modified and given by the court, the jury were told in effect that, if the appellant’s conductor-motorman caused the arrest and imprisonment of the appellee, that is, deprived the appellee of her liberty by causing her arrest on, and talcing her from, the appellant’s car, the appellant would be liable to the appellee in damages. These instructions correctly submitted the crucial issue in the case.
The court did not err in modifying appellant’s prayer for instruction No. 5 by striking therefrom the words “or was voluntarily leaving,” nor in refusing appellant’s prayer for instruction No. 6,-for the reason that, if appellant’s conductor-motorman caused the appellee to be arrested while she was on appellant’s car, after the same had stopped at 5th and Main, where the appellee intended to debark, this was necessarily tantamount to an ejection of the appellee from appellant’s car, because it prevented her from voluntarily leaving the car. If the conductor-motorman caused her to be arrested while on the car and to leave the car, not of her own free will and accord, but in custody of the officer, this was, in legal effect, nothing more nor less than a method adopted by the conductor-motorman in ejecting; appellee from appellant’s car. Therefore it would have tended to confuse and mislead the jury if they had been allowed to deter- mino whether or not the arrest of appellee while ■on-appellant’s car was a method of ejecting her from the car. As already stated, if she was arrested under the orders of the.condnctor-motorman while on the car, after the car had ¡reached the place where she intended to debark, such arrest was necessarily a method of ejecting her from the car.
The jury found that appellant’s eonductor-motor-man caused the appellee to he arrested while on appellant’s ear, that he was acting within the scope :of his authority in making - the arrest,: and that this was -the method employed by the appellant’s conductor-motorman to .eject appellee from appellant’s car, and that.the method thus employed, under-the facts, was unlawful. The verdict of the jury on the controverted issues of fact is conclusive here.
The court did not err in permitting the appellee to show that she was ■ acquitted by the municipal court of the charge on which she was arrested. This was relevant testimony on the issue as to whether or not the arrest was unlawful and' on the measure of .damages necessarily incident to and proximately resulting from the arrest. See Dickinson v. Muse, supra.
The appellant contends that the verdict was excessive. The undisputed testimony shows that the appellee said nothing whatever that was calculated to cause a disturbance or breach of the peace on the car. The appellee’s companion was the one that used the profane and offensive language calculated to produce a breach of the peace. ■ The undisputed testimony likewise shows that neither the Appellant’s conductor-motorman nor the officer who made the arrest used any offensive or abusive language toward the appellee. The conductor-motorman testified that he.pointed to appellee’s companion as the one who was creating the disturbance. The officer who made the arrest testified that the conductor-motorman told him that the colored people Avere raising a disturbance, and that he pointed them out to witness. Therefore, it is uncontroverted that the only damage to the appellee was the humiliation of being. arrested while oil appellant’s ear, and, as a proximate result thereof, being taken before the municipal court, where she was acquitted. The court only authorized the jury, if they found for the appellee, to return a verdict for such sum as would compensate her for the humiliation she may have suffered by reason of her arrest. The jury were not authorized, under the instruction of the court, to return a verdict for exemplary or punitive damages.
In the case of L. R. Ry. & Elec. Co. v. Dobbins, supra, the verdict was fójr $500 compensatory and $250 exemplary damages, and we held, under the facts of that case, that the verdict was not excessive. In that case the conductor caused the plaintiff-to be arrested, and he was carried to the police station, just as the appellee was in the present case. But, in that case, in addition to tlie arrest, the conductor subjected the plaintiff to other humiliations, insults and indignities in the presence of his family and friends. The insults began at the Rock Island depot and were repeated at Main and Markham Streets. In that case we said: ‘‘In view of the duty of street-car companies, to protect their passengers from insults and injuries, especially at the hands of. its servants and employees, the verdict was not excessive.” So we say here, in view of the duty of street-car companies toward their passengers, as outlined by the authorities cited above, the appellee should'be allowed to rec’over very substantial compensatory damages for the humiliation and insult to her. necessarily involved in her arrest on the street car at 5th and Main, which, as a matter of common knowledge, is one of the busiest and most crowded corners in the entire city of Little Rock. The arrest at such a place and transport by police patrol to the municipal court necessarily subjected the appellee to the observation of many people and called their attention to the fact that she was being placed in the attitude of one arrested as a criminal. The jury have found upon sufficient evidence that the proximate cause of this injury and resultant damage to the appellee was the conduct of appellant’s conductor in having appellee arrested while she was a passenger on appellant’s car.
It occurs to us, under all the facts stated, that the, verdict of the jury is not excessive. The judgment is therefore - affirmed. | [
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McIIaney, J.
Appellee, being the owner of a certain oil lease in Ouachita County, and being desirous of having same drilled for oil, entered into a contract with the Alliance Drilling Company for this purpose, in which the erection of a wooden derrick was called for. He decided that lie preferred to have a steel derrick, and the drilling company agreed that, if he would erect the steel derrick and release it from the erection of the wooden derrick, it would abate $650 from the contract price. Appellee then entered into contract with D. D. Nowlin, a derrick contractor, to erect on his lease a steel derrick, referred to as a No. 881 Marion tubular rotary derrick of 2x2s with four sets of relegs of 4x4-inch drill stem, of first-class material and construction, for the price of $1,900. The contract was dated July 10, , 1925. Appellant, on July 15, 1925, sold to Nowlin the No. 881 Marion tubular rotary derrick for $836, and on'July 20 sold and delivered to him four sets of relegs for $619.20, making a total of $1,455.20, on which Nowlin made a payment of $309.60, leaving a balance due $1,145.60. The Stout Lumber Company, on July 14, sold and delivered to Nowlin certain supplies amounting to $288.10. Nowlin proceeded to the erection of said derrick, and completed same on July 21. The drilling company began to drill a well on said lease, and, after drilling approximately 2,550 feet during a period of about 30 days, the drill-stem got stuck in the hole, and, in an effort to extricate same, on account of the great strain placed on same in pulling the drill-stem, as claimed by appellant, the steel derrick collapsed.. Appellee claims that the collapse and destruction of the derrick were caused by defective material used therein. After the collapse of the steel derrick the appellee caused a wooden derrick to be erected, the material in the steel derrick being so twisted,- bent and distorted that it was useless to him in the further drilling of his well. Thereafter, on October 19, Nowlin, not having been paid by Colcord for the construction of the derrick, brought this suit, in which the material furnishers mentioned joined, for the amount of the contract price, and to have a lien declared and enforced on the lease, etc., as provided by act 615 of the Acts of 1923, and that the materialmen be protected for the amount of their claims. The court, after hearing the evidence, entered a decree in favor of appellant for $495.50, being the difference between $1,145.60, the balance due it by Nowlin, and $650, the cost of the new wooden derrick, and in favor of Stout Lumber Company on its bill of $228.78, and in favor of Nowlin for $525.62. From this decree comes this appeal and a cross-appeal.
Neither the appellant nor the contractor, Nowlin, filed an affidavit for a lien. Appellant furnished its last material on July 20. It brought suit or joined with Nowlin in bringing suit on October 21, more than 90 days thereafter, and therefore was barred on this account. Moreover, appellee was not indebted to appellant. It had no contractual relation with him and could not maintain a separate action against him. The contractor, Nowlin, was its debtor, the material being sold to him, and he was a necessary party defendant, against whom a judgment must have been had before a lien could be declared and enforced against appellee’s leasehold. Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, 172 S. W. 883; Cruce v. Mitchell, 122 Ark. 141, 182 S. W. 530; Hess v. A. L. Ferguson Lbr. Co., 155 Ark. 244, 244 S. W. 5. In these cases it was held that, where goods are sold to the contractor instead of to the owner, the contractor is a necessary party defendant.
However, Nowlin, the contractor, brought suit against appellee in apt time, and he, being the original contractor with the owner, was not required to give the 10 days’ notice and file an affidavit for a lien with the circuit clerk, the bringing of suit within the 90 days being sufficient to entitle him to a lien. Leifer Mfg. Co. v. Gross, 93 Ark. 277, 124 S. W. 1039; Hess v. A. L. Ferguson Lbr. Co., supra. Nowlin sued for the full amount of his contract price of $1,900, stating that he was indebted to appellant in the sum of $1,145.60 and to Stout Lumber Company $228.78, for which he asked that judgment and liens be given, and for himself he asked judgment and a lien for .$525.62, and the court did this, except that appellant’s claim was reduced by $650, the cost of the new derrick, evidently on account of defective material furnished by it for the steel derrick. The effect of this was to decree in Nowlin’s favor the sum of $1,250 and to divide this amount among the plaintiffs according to their respective interests. While this is not the best practice, appellee has no cause to complain on his cross-appeal, for the court should have entered a decree for this amount in favor of Nowlin and fixed a lien in his favor therefor. The evidence as to the defective material in the steel derrick is conflicting, and we cannot say that the court’s finding in this regard is clearly against the preponderance of the evidence. Nowlin appears to be satisfied with the decree, as he has taken no appeal therefrom, and appellant cannot be heard to complain, as we have already shown that he was not entitled to maintain a separate direct action against appellee, for the reasons heretofore stated. Appellant may yet pursue Nowlin on its account against him if it is not satisfied with the recovery herein.
We find no reversible error, and the decree is affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended on the one hand that appellant had no right to bring this suit, the law creating the district having' been repealed, and that appellant had no valid claim in any event, because the money alleged to have been collected and misappropriated by the collector was payable to the judgment creditor, the First National Company, which only had the right to sue; and on the other hand, for the appellant, that the chancery court having assumed jurisdiction by the appointment of a réceivér to ascertain the indebtedness existing against the district and for winding up its-affairs before the repeal of the act creat ing the district, could proceed therewith, under the provisions of the creating acf, notwithstanding its repeal.
Section 9759, C. & M. Digest, provides: “No action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provisions shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provisions had remained in force.”
Nothing was said in the opinion in Meek v. Christian, 168 Ark. 313, 270 S. W. 614, where this court modified the decree of the chancery court allowing the claim of the engineers for making the preliminary survey of the improvement, about the effect of the repeal of the act creating the improvement district, although the fact of the repeal is recited in the statement of the case.
The creating act provided for the extension of the assessment of benefits against the lands of the district and the collection thereof yearly by the tax collector, along with the revenues due the State and county, and also for the continued operation of the district even after the improvements were made and for the collection of all additional assessments for maintenance, etc.
The chancery court, at the instance of the board of commissioners of the district, appointed the receiver, and was proceeding with the winding up of its affairs, as it had the power to do under the terms of the creating act, at the time of its repeal, and this proceeding, having been begun before such repeal, could be continued to completion thereafter, regardless of it, under the terms of said section of the law relating thereto. ■ Bowman Engineering Co. v. Mo. Highway District, 151 Ark. 53, 235 S. W. 399 ; Tri-County Highway Drainage Dist. v. Vincennes Bridge Co., 170 Ark. 32, 278 S. W. 627.
Section 23 of the c r e a ti n g act provides as follows : “In case, for any reason, the improvement contemplated by this district is not made, the prelim inary expense shall be a first lien upon all the lands in the district, and shall be paid by a levy of tax thereon upon the assessed value for county and State taxation, which levy shall be made -by the chancery court of Miller County, Arkansas, aud shall be collected by a receiver to be appointed by the said court. ”
The chancery court proceeding for this, purpose decreed that the improvement had been abandoned and the preliminary expenses were a first lien upon all the lands within the district, “and shall be paid by a levy of tax thereon upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Miller County, Arkansas, and shall be collected, by a receiver to be appointed by the said court. ’ ’
The decree required all, persons having claims against the district to file the same with the clerk within 90 days, and appointed the receiver and continued the cause.
The court next made an order on October 31, 1923, ascertaining the amount of indebtedness due the First National Company of St. Louis, ascertained the amount of the assessed value of the real property in the district, .and that a tax of 10 per cent, would be required to pay the debts of the district, and ordered it levied upon the real estate in the district and collected with the State and county taxes for the year 1923, fixing the rate of taxation for the purpose at 7^4 mills; ordered its clerk to transmit a certified copy of its decree to the county clerk of Miller County, “and that said county clerk extend against the real estate .in the district the taxes herein levied upon the taxbooks, of Miller and Lafayette counties for the year 1923, and that the collector of said counties collect said taxes along with the State and county taxes for the year 1923, and pay said taxes levied hereunder to the receiver of this court when they settle for the county taxes; and that the receiver apply said taxes pro rata as received upon said. decree in favor of the First National Company and allowances * #
Said levy was thereafter regularly extended against the lands by the county clerk and collected by the tax collector of Miller County, along with the revenues of the county during the period for payment of taxes in 1924, under the collector’s bond approved, with appellee’s sureties thereon, on the 2d day of January, 1924.
The bond is in the sum of $500,000, made to the State for its benefit and the use and benefit of Miller County, conditioned: * * * “Now, if the said Fincher Eason shall faithfully perform the duties of collector of revenue for the county aforesaid for the year 1923, and shall well and truly pay over, within the time prescribed'by law, to the proper officer designated by law to receive the same, all moneys collected by him by virtue of his said office, according to law, then this bond shall be void; otherwise, to be and remain in full force and effect.”
This bond was executed by the sureties, after the order of the chancery court fixing the amount of the levy required to be made against the lands of the district necessary to be paid to discharge the indebtedness thereof, and after same had been duly extended in pursuance thereto by the county clerk on the taxbooks against the lands of the district.
The amount claimed was collected by the tax collector, in his official capacity, of course, and, since none but he could collect the said taxes under the clerk’s warrant upon the taxbooks delivered to the collector by the authority of the said order of the chancery court made under the authority of the provisions of the act creating the district, it was moneys collected by the collector by virtue of his office, according to law, and for the accounting for and payment of which to the person entitled by law to receive same his sureties are liable.
In Moose v. Bartlett, 169 Ark. 963, 277 S. W. 340, this court held the sureties on the collector’s bond liable to the payment of road and bridge taxes collected by him under the terms of the law providing for the creating of such districts, saying * * *: ‘ ‘ This bond was executed after the above statutes were enacted, making it the duty of the collector of the county to collect improvement district assessments or taxes. It was within the province of the Legislature to impose- this duty upon the collector’s office, and the collector and his sureties on his bond were bound to take notice of the law, and must be held to have executed' the bond, fully cognizant that it was the duty of the collector under the law to make collection of improvement district taxes as well as the general revenue.” •
So here, the collector and the sureties on his bond were bound to take notice, not only of the law authorizing the collection of assessments in this district by the collector, but also of the decree of the chancery court, under the law, authorizing the extension of the levy by the clerk and the collection by him of the levy or tax for payment of the preliminary expenses of the district, and the collector and his bondsmen are liable, in the opinion of the majority, for his failure to account for and pay over to the person entitled to receive same, the receiver in this instance, the said amount collected from the levy upon the lands of the improvement district.
Justices Wood, Mehaeey and the writer are-of the opinion that the chancery court could only 'authorize the collector, ¿s its receiver, to collect the taxes, after making bond with sureties who would be liable for his default, which was not attempted to be done, and that the accommodation sureties on his collector’s bond are not liable therefor. Moose v. Bartlett, supra.
The receiver could proceed against the estate of the collector and his sureties for the payment of said collections, since the judgment of the First National Company was but a claim against the district, which it was entitled to have paid out of the funds .provided therefor under the terms of the law, by order of the chancery court. -
The facts are undisputed in this case, and the finding of the circuit court is not binding further than it would" be upon the ruling upon a demurrer, it being a question of law as to the effect of the testimony and of the law applicable thereto.
The judgment is reversed, and, judgment will be entered here for the amount and balance due in accordance with the undisputed testimony. It is so ordered.
Justices Wood, Mehaeey and Kirby dissenting. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Hot Spring County for the crime of unlawfully manufacturing and being interested in manufacturing liquor, and, as a-punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this appeal. Two assignments of error are urged in support of a reversal of the judgment. First, that the evidence is insufficient to support the judgment; and, second, that the court erred in giving instructions numbers 1 and 2 requested by appellant.
(1). T. S. Fisher, sheriff of said county, and W. 0. Richardson, his deputy, discovered the still in the northern part of the county. On November 20, 1926, they went to it and found two negroes making whiskey, and arrested them. There were ten gallons of whiskey near the still. They told the sheriff that they had been forced to work there during the day by two white men, who had gone, but would return by night., The sheriff kept the negroes near the still, and directed his deputy to go down to the road about 400 yards away and, if the men came, +o follow them to the still. About sundown a car stopped on the road near the deputy, and Charlie Pinion and appellant got out. Each took a sack of sugar about half-way to the still, where they stopped and talked a few minutes. Appellant laid the sack down that he was carrying and returned to the car for a third sack, which he carried and placed beside the one he had laid down. Charlie Pinion took the sack he was carrying in the direction of the still. Appellant returned to the car and deposited the second sack of sugar, drove up the road a short distance, turned, and started hack, when he was stopped by the deputy. Appellant got out of the car and asked the deputy what he meant, and the deputy asked him what he was going to do with the sugar. Appellant asked him, “What sugar!” About that time shots rang out at the still, and appellant said, “What in hell is that happening up there now!” The deputy said that he did not know, but that they would go up and see. Appellant took the lead, and went directly to the still. As Charlie Pinion approached the still, he observed the sheriff, dropped the sugar, and ran, although the sheriff was trying to halt him by firing upon him. The two negroes stated to the sheriff and his deputy, and testified, that appellant was not one of the two men who forced them to work at the still. The sugar was purchased from Bauckman, and he told the sheriff, and afterwards the deputy, that appellant bought the sugar from him. He testified, however, that Charlie Pinion bought it from him, and that appellant came and hauled it away.
Appellant testified that he called at Bauckman’s for the sugar at the request of Charlie Pinion, who paid him $5 for hauling it out t,o where the deputy arrested him; that, after getting the sugar, he met Charlie Pinion by agreement at an old house by the road and took the sugar to the place where the arrest was made; that he did not know a still < was there, and that he was not interested in the still or the manufacture of the liquor. Appellant had served a term in the penitentiary for ' selling whiskey prior to his arrest.
A legal inference which can be drawn from the purchase of the sugar and the manner in which it was handled is that it was purchased for use in manufacturing liquor at the still where the negroes were arrested. If the jury believed that appellant purchased it, that fact alone is sufficient to support the verdict finding that he was interested in the manufacture of liquor. The jury had additional circumstances, however, from which such an inference might have reasonably been draw7n. The circumstances, for example, of answering the deputy as he did when .asked what lie was doing ' with the sugar; his remark when the shots rang out at the still; his bee-line lead to the still to see what happened up there; his former conviction for selling whiskey; and his flimsy explanation to the effect that he charged and received $5 for hauling three sacks of sugar that distance when on his way home. We,think the evidence sufficient to sustain the verdict.
(2). Instruction number 1, given by the court at the request of the State, was not abstract as contended by appellant. The conflict in the testimony as to who purchased the sugar and the legitimate inferences of guilt which might be drawn from the circumstances detailed above constitute sufficient ground for the instruction.
Instruction number 2, given by the court at the request of the State, is assailed because the court told the jury it was not necessary for the State to show that appellant was present at the time the liquor was manufactured, if they believed, beyond a reasonable doubt, from the evidence that he was interested, either directly or indirectly, in the manufacture of whiskey. This instruction was based upon § 6160 of Crawford & Moses’ Digest, which provides that it shall be unlawful for any person to manufacture or be interested in the manufacture of any intoxicating liquor.
Instruction number 1, requested by appellant, was in conflict with instruction number 2 given by the court, and therefore an incorrect declaration of law. The court did not err in refusing to give the instruction.
Instruction number 2 requested by appellant and refused by the court is as follows:
“It is the duty of the State in this case to show what interest, if any, the defendant had in the manufacturing of liquor as charged,, and, if it has failed to show his interest beyond a reasonable doubt, you will find him not guilty.”
This instruction is not a correct declaration of law. The State is not required to show what interest, but only that the accused has an interest, directly or indirectly, in the manufacture of liquor. The rights of appellant were sufficiently protected by instructions numbered 3 and 5, requested by appellant and given by the court. Number 3 told the jury that the burden of proof was upon the State to prove every material allegation in the indictment, and, if it failed to do so in any particular, then they should acquit him. Number 5 told the jury that they should not convict appellant unless his guilt had been established to the exclusion of every other reasonable hypothesis of his innocence.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
The question here presented for decision is whether the former action of Mrs. C. S. Corey, wife of appellant, against appellee is res judicata of the present action brought by appellant. See Corey v. The Mercantile Ins. Co. of America, 205 Ark. 546, 169 S. W. 2d 655. In that case Mrs. Corey sued appellant in the chaueery court to reform a policy of fire insurance issued in the name of her husband claiming title to the property and-a mutual mistake in its issuance, and for judgment on the policy. Appellee had paid the mortgage on the property, took an assignment thereof from the mortgagee, denied the allegations of the complaint and, by way of cross-complaint against appellant and Mrs. Corey, sought a foreclosure of the mortgage, with a resultant decree in its favor, which was affirmed with a slight modification bAr this Court.
Thereafter appellant, the husband, brought this action to recover on the policy, alleging that he was the owner, and appellee pleaded the defenses of res judicata, among others, in bar of the action. Trial resulted in a decree for appellee which sustained said plea. This appeal followed.
We think the trial court was correct in so holding. Section 1416 of Pope’s Digest, subdivision 4, reads as follows: “Fourth: In addition to the general denial above provided for, the defendant must set out as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligently distinguished. ’ ’
Appellant contends that the word “must” in the first sentence above quoted should be construed to mean “may,” but we do not think so. Act 54 of 1935, p. 124, amended § 1194 of Crawford & Moses’ Digest, relating to the contents of an answer in civil suits. It. provided what should constitute a “general denial” in sub-section 2, and in sub-section 4, it changed the word “may” to the word “must,” and this was the only change in subsection 4. We think the legislature meant something by this change, and that was to require a defendant to “set out in his answer as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall have. ’ ’ Otherwise there would have been no occasion to amend said sub-section, except it did add the words, “In addition to the general denial above provided for.”
Appellant was a party defendant to appellee’s cross-complaint in the former action. lie supported his wife’s right to reform and recover on the same policy here involved. He disputed the amount of the indebtedness due under the note and mortgage assigned to appellee, and attempted to appeal or cross-appeal from. the decree against him,'but without success. He made no claim of ownership of the property or right to recover in that action. We have frequently held that a defendant who fails to set up as many grounds of defense, counterclaim, or set-off as he has loses the right to assert them in a subsequent action between the same parties. Federal Life Ins. Co. v. Gann, 196 Ark. 958, 120 S. W. 2d 563; Morgan v. Rankin, 197 Ark. 119, 122 S. W. 2d 555, 119 A. L. R. 1466; Adams and Rusher v. Henderson, 197 Ark. 907, 125 S. W. 2d 472; Baker v. State, Use of Independence County, 201 Ark. 652, 147 S. W. 2d 17; Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958; Fish v. McLeod, Com. of Rev., 206 Ark. 142, 174 S. W. 2d 236; and Bryant v. Ryburn, 206 Ark. 305, 174 S. W. 2d 938.
Not having set up the rights now alleged in the former action, to which he was a party defendant, appellant must be held to he precluded from doing so now, under the rule above stated.
Affirmed. | [
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Holt, J.
November 17, 1943, appellant sued appellee for divorce, alleging (1) indignities on the part of his wife, such as to render his condition intolerable, (the fifth ground for divorce, under § 4381 of Pope’s Digest); (2) separation for three years without co-habitation,* as provided in subdivision 7, § 2 of Act 20 of the General Assembly of 1939.
Upon a trial, January 22,1944, at which both parties were present in person and represented by counsel, at the close of appellant’s testimony, the court on its own motion dismissed appellant’s complaint for want' of equity. We quote from the decree as follows: “Upon oral testimony adduced in open court on behalf of plaintiff and at the close of plaintiff’s evidence the court announced no further evidence would be heard, and that the complaint of plaintiff would be and was by the court dismissed for want of equity. . . . And it is further ordered by the court that plaintiff pay to defendant the sum of $50 per month for her support, and . . . that plaintiff pay to B. B. Spencér, attorney for defendant the sum of $75 for attorney fees.” This appeal followed.
On the trial, there was no evidence to support appellant’s first allegation as to any indignities offered by appellee, and in fact, appellant does not so contend on this appeal. He does earnestly insist, however, that the court erred in refusing to grant him a divorce on his second ground, separation for' three years without cohabitation.
As will,be observed from the court’s decree, supra, at the close of appellant’s testimony, the court announced that no further evidence would be heard and dismissed appellant’s complaint for want of equity. Appellee was given no opportunity to offer any testimony.
The three-year separation statute, supra, provides: “Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without co-habitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the .parties and the question of alimony.” Under our construction of this section, we said in Bockman v. Bockman, 204 Ark. 891, 165 S. W. 2d 256, “that the living separate and apart without cohabitation for three years, must have, been with the understanding of both parties, or their conscious act.”
In the instant case, the record discloses that appellant came to Arkansas in May, 1939, and acquired a farm in Benton county on which he has since resided. It. is conceded that appellant has been guilty of adultery after he left appellee in Iowa and moved to Arkansas. Appellee remained in Iowa and did not accompany appellant to Arkansas, and appellant testified that he had not seen appellee or written to her since the separation in May, 1939, when he left for Arkansas. Appellant’s son testi fied that he had no knowledge, except by hearsay, as to the time of appellant’s departure from Iowa, where he went, and who accompanied him.
The fact that appellant has been guilty of adultery would not alone be sufficient to preclude his right to divorce under the three-year statute, quoted supra. In the recent case of Young v. Young, ante, p. 36, 178 S. W. 2d 994, in construing the effect of this section of the statute, we said: ‘ ‘ The Legislature has eliminated all consideration of which spouse is the guilty party, except in settling property and alimony rights-. . . . In other words, recrimination is abolished as a defense under this three-year separation statute.” So here, the trial court in settling and determining the property rights of the parties and appellee’s alimony rights, must take into account appellant’s adulterous conduct.
Since the cause appears not to have been fully developed, the decree must he reversed and the cause remanded, with directions to proceed in a manner consistent with this opinion. It is so ordered. | [
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Smith, J.
Appellee consigned to himself at Pine Bluff, from Oskaloosa, Iowa, a car of mixed freight consisting of household goods, a bowling alley outfit, three billiard and three pool tables, and a variety of other personal property. Somewhere in transit, many of these articles were damaged,,, and others demolished. A suit for damages resulted in a judgment of $1,991.93, and from that judgment is this appeal.
It is not insisted that the judgment is excessive, the insistence for the reversal of the judgment is that the damages resulted from the negligent manner in which the goods were packed in the car.
There is but little controversy as to the law of the case, which has been settled by- numerous decisions of this and other courts, and is thus summarized in the case of St. L. I. M. & S. Ry. Co. v. Hudgins Pro. Co., 118 Ark. 398, 177 S. W. 400: “A common carrier is practically an insurer of all goods received by it for shipment against all losses except those relating to, or which arise from, the act of God, of the public enemy, of constituted authority, of the shipper, or from the inherent nature of the goods shipped, and in all cases in which loss occurs, not falling within said recognized exceptions, the carrier is responsible notwithstanding there may be no negligence or fault upon its part.”
This cause was submitted to the court, sitting as a jury, and the court was requested to find the fact to he that, “The plaintiff shipper failed to exercise reasonable care in loading the shipment here involved. ’ ’ Predicated upon this finding of fact, which the court declined to make, the court was asked to make the following declaration of the law:
1. “When the shipper assumes the duty of .packing-freight for shipment by rail it is encumbent upon him to so reasonably and securely pack the same that it will not be injured from the ordinary and usual incidents attendant upon shipment of such freight by rail. ’ ’
2. “Where the shipper assumes the duty of loading freight for shipment the carrier is not liable for damage arising from the shipper’s failure to so load-the freight as to withstand the ordinary and usual incidents attendant on such shipment of freight by rail. ’ ’ The only other declaration of law requested was one to the effect that under the evidence the defendant railroad company was not liable.
The declarations above copied might well have been made, as they correctly declared the law as abstract propositions, hut no error was committed in refusing to make these declarations of law, for the reason that the court found the fact to be that the damages did not result from the ordinary and usual incidents attendant upon shipment of such freight by rail, and did not arise from the shipper’s failure to so load the freight as to withstand the ordinary and usual incidents attendant on such shipment of freight by rail, hut found that the damages had resulted from the rough manner in which the car had been handled while in transit.
The testimony is conflicting as to whether the car had been loaded with proper care, and testimony was offered on behalf of the railroad company as to precautions which should have been taken, but which were omitted. On the other hand, testimony was offered to the effect that the car had been loaded with the greatest care, that the services of seven persons were employed, including two employees of the local transfer company which hauled the goods to the car, and that five days were consumed in loading the car, resulting in demur-rage charges for two days excess time over that permitted for loading a car after it had been turned over to the shipper to be loaded. The initial carrier did not load the car, but the testimony is to the effect that while it was being loaded, the carrier’s representative saw from time to time the manner in which it was being loaded, and no objection was made that the goods were being improperly loaded.
The damage appeared to have been occasioned principally by the movement of the bowling alley equipment, which weighed approximately 25,000 pounds, and had shifted about 15 or 20 feet, and had been thrown a distance of 4 feet from the end of the car in which it had been placed on the floor of the car. The testimony shows that somewhere in transit there had been an impact so great that pieces of 2 x 4 used in securing said bowling alley equipment, which were nailed to the floor of the car with spikes, were broken and smashed into kindling wood; that other pieces of 2 x 4 extended from the ceiling of the car to. the floor and were fastened to the floor with spike nails, and that other pieces of 2x4 were placed in a slanting position and were securely nailed and spiked to hold the bowling alley equipment in place.
There was testimony by persons experienced in loading such commodities that more and larger pieces of timber should have been used, and should have been better placed, but opposed to this was other testimony, to the effect that the bowling alley equipment was loaded just as it had been loaded in the car in which it was shipped by the manufacturer upon its purchase by the plaintiff, and that it had reached its destination without damage.
Appellee testified that the car furnished for this shipment was an old one, and that when it arrived at Pine Bluff, its destination, it leaned at an angle of about ten degrees from the perpendicular, that the doors were all nailed shut with large spikes, and that it required a half a day with crow bars to open the doors and that the doors were not nailed when the car left Oskaloosa.
W. E. Bynum, employed by the appellant railroad company as a car inspector at Pine Bluff, testified that he examined the car after its arrival at Pine Bluff, and that he did not observe that the car was inclined from the perpendicular, and that he saw no evidence that the pieces of 2 x 4 had ,been employed to keep the bowling alley in place. But these were of course questions of fact. This witness did admit that the goods were in a damaged condition, and when asked what caused the condition in which the door was found, answered, “a severe shock would cause it.”
The declarations given and those refused import the finding that the damages were not occasioned by the negligence of the shipper in loading the car, nor from the inherent nature of the goods shipped, but resulted from the rough handling which the car had received in transit, and for this damage the carrier was properly held liable, and the judgment must be affirmed, and it‘is so ordered. | [
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McHaney, J.
Appellant is the lessee of a 20 acre oil and gas lease in which appellee is the lessor, being W% S. E., N. W. 24-15-17, Ouachita county, dated March 11, 1924, on which is located an oil well which has produced oil and gas daily throughout the life of the lease and until December, 1941. The lease is the usual 88 Form and provides that the lessor shall have gas free_ of cost from any wells on the property for domestic purposes, by making his own connection at his own risk and expense. It also provides that the lessee shall have the right at any time to remove the machinery and fixtures placed on the land, including the right to draw and remove casing, and that it shall remain in force as long as oil or gas, or either of them, is produced from the land. Only one well was drilled on this lease and it produced oil until December, 1941, during which month the last oil was produced and run therefrom. The appellee had laid a gas line from the well to his residence and has been, at all times, receiving gas free of cost from the well. The well has been a pumper in order to produce oil, but the gas flows whether oil is being pumped or not. Appellant ceased to operate the well for oil in December, 1941, but left his machinery and equipment located on the property, and not being in immediate need thereof and not desiring to deprive appellee of the use of the gas, which would result if the casing were pulled, left his property there until such time as he needed same for use elsewhere. In December, 1942, he notified appellee that he needed his equipment to use on another location and that the latter should arrange to get gas elsewhere. Shortly thereafter appellee brought this action to enjoin appellant from removing his property off the lease, stating that appellant was preparing to remove said casing, tubing, rods and other personal property from said lease, and that since he was using the gas from said well, it would cause him irreparable loss and damage, for the recovery of which he had no adequate remedy at law. The answer admitted the execution of the lease and denied all other allegations.
A temporary restraining order was granted which on a trial was made permanent, the lease cancelled and this appeal followed.
For a reversal, appellant contends, first, that, since the lease by express terms provided it should remain in force for a term of five years, “and as long thereafter as oil or gas, or either of them, is produced from said lands by the lessee,” and since gas is still being produced therefrom,- the lease is still in force and effect and the court erred in cancelling same. No gas has ever been marketed from said well and we think the clause above quoted has reference to the production of oil or gas, or either of them, in commercial quantities, and not merely a sufficient quantity for domestic use of the lessor. Moreover, it is questionable whether the gas flowing from the well is “produced — by the lessee,” or whether by the lessor who installed his own pipe line from the well. The fact that appellant sought to remove the equipment is evidence of an intent to abandon.
■Second. The real issue in the case is the right of appellee to deprive appellant of his equipment and personal property located on the lease, including the casing, machinery, tanks, etc. We assume for the purpose of this opinion that appellant abandoned the well either in November or December, 1941. The lease provides: ‘ ‘ Lessee — shall have the right at any time to remove the machinery and fixtures placed on said premises, including the right to draw and remove casing.” This clause is exactly the same as that construed in the case of Louisiana Oil Refining Corp. v. Haltom, 188 Ark. 117, 64 S. W. 2d 98, which was a suit in replevin by lessee against lessor to recover the equipment on the lease, involving a period of 14% months from the date of the alleged abandonment of the well to the date of attempted removal. In that case the late Judge Butler, speaking for tlie court, said: “It seems to be the rule, supported by authority and reason, that this clause should be construed so as not to give the lessee an indefinite length of time to remove his equipment after expiration or abandonment of the lease, but that the right reserved to move the equipment must be exercised within a reasonable time, and a failure to do so would result in the forfeiture of the lessee’s right in the property which would thereafter be considered - as a part of the realty and title thereto vested in the lessor,” citing a number of cases from other jurisdictions to support the statement. The rule stated appears to be based on the holding of the cases generally that the delay in removing the equipment worked an injury or detriment to the lessor. In that case, the well was located in the middle- of a cotton field and it was held that something more than the actual ground occupied must be considered, — the right of ingress and egress to and from the well over the cultivated lands of the lessor, and the fact of possibility of drainage by another well nearby. From all of which the court was unable to say as a matter of law that no injury was sustained by the lessor. In Hoing v. River Valley Gas Co., 196, Ark. 1165, 121 S. W. 2d 513, it was held that the -lessee was entitled to recover pipe stored on lessor’s land covered by lease, for seven years, where appellant made no claim to the pipe until appellee sought to remove it.
In the case at bar there is no contention that the delay in removing the equipment, 12 or 13 months, or whatever it was, worked any injury to appellee, but on the contrary worked to his advantage by reason of his continued use of the gas from the well; nor is it contended that appellee ever asserted any right of ownership in the equipment until appellant advised him in December, 1942, he was preparing to remove it. It was undisputed that the pulling of the casing would deprive appellee of the use of the gas, and it appears that appellant’s delay was caused in part at least by his disinclination to deprive appellee of the gas. The well was located, not on appel'lee’s cultivated land, but in the woods, about one-fourth mile from his home. Mere delay without consequent in jury is not sufficient to work a forfeiture, and we think the learned chancellor fell into error in this respect. Just what is a reasonable time in which to remove equipment is dependent on the facts and circumstances in each particular case.
The decree will be reversed and the cause remanded with directions to dissolve the injunction and to dismiss appellee’s complaint for want of equity, in so far as it relates to appellant’s right to remove his equipment. | [
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Knox, J.
This is a proceeding by habeas corpus instituted by appellant, the mother, to recover from a paternal uncle and his wife, custody of two infants, a girl age 10 years, and a boy age 8 years. At all times mentioned herein appellant has resided in Memphis, Tenn. Appellees now reside in Jonesboro, Ark., having formerly lived in Blytheville. The father of the children died in the fall of 1939, but prior thereto, to-wit on July 5, 1938, appellant had obtained a decree of divorce, awarding her the custody of the children. The record discloses that when the little girl was two years old, and at different times thereafter when the father would be out of work, appellees, responding to requests by the parents, kept her for periods extending over several months, and then thé parents with little or no notice would take her away.
• On November 7, 1939, after the decree of divorce, but before the death of the father, appellant wrote appellees explaining in detail the difficulties which confronted her in providing for the children, and said “I just wonder if you all would consider keeping them for me, and if you can’t keep both would you consider keeping him ... I have no relatives here and mother travels so I have no one to fall back to and I had much rather you all had them than have them in the home. I would be willing to buy their clothes and I would come to see them, but I pr.omise you I will not take them away from you on a few hours’ notice like we have, hut should you keep them for me, Tuck is not to take them away from yon because in my divorce I got custody of them and I have kept them for almost three years without his help, but I have come to the place where I can’t go on. So should you consider this, please answer by return mail.”
Yielding to appellant’s intreaties appellees assumed the care and custody of the little boy. Appellant placed the girl in an orphans home in Memphis, where she remained until appellees made a place for her in their home. For two years the little girl, and for nearly four years the little boy, had resided with appellees when this proceeding was commenced.
Appellant testified that at the time she “felt it was better ’ ’ for the children that they be placed with appellees because they could give them a better home than she could on the wages she was then receiving; that she knew they would be given a good home; that while she at no time desired to be separated from the children she decided it was for their best interest that they be placed in the custody of appellees. Asked what change had occurred to make it now better that she take the children she replied, “Because I am making more money and am financially able to take care of them. ’ ’ At the time the children were placed with appellees appellant was employed by True-Tagg Paint 'Co., and was earning $10 or $12 per week. In April of 1942, appellant obtained employment in a war plant as a riveter, where she receives 94 cents per hour for 40 hours per week, and time and one-half for overtime. Ordinarily she works 48 hours per week, so that her gross annual income is approximately $2,500, from which certain deductions are made for social security taxes and bond purchases. Appellant testified that during the fifteen months of increased earnings immediately preceding the filing of this suit she supplied for both children clothing of the value of $134.88, and Christmas and birthday gifts of the value of $58.15, and that other sums necessary for the support of the children were, supplied by appellees.
Appellant’s present employment requires that she work at night, between the hours of 12:06 and 8:06 a. m. Admitting that she would have to continue working in order to support the children, she testified that she had received assurances that in case the children were awarded to her she could and would be transferred to a daytime shift.
Appellant, a Mrs. Reed, and Mrs. Reed’s adult daughter, who is employed as a bookkeeper, share a four-room apartment. Both Mrs. Reed and appellant expressed the hope that larger quarters might be found, but each admitted that Memphis was crowded and suitable living quarters were quite difficult to obtain. Appellant’s mother, who as she expresses it, “does mission--work” in the Pentecostal Church, but denies that she “preaches on the streets,” testified that she might move to Memphis and help look after the children, but declined to give positive assurances until she had first received further directions from the Lord. Mrs. Reed, who is 60 years of age, testified that she would be willing to look after the children in the absence of the mother and grandmother.
The response filed herein alleges two attempts, one by appellant’s mother, and one by appellant herself, to abduct said children, and take them out of the jurisdiction of the court. The evidence relating to these allegations is in sharp conflict and the trial judge made no specific findings, of fact thereon.
The response also contains allegations to the effect that appellant is an unfit person to have the custody of the' children. ' The trial court likewise made no specific finding as to this allegation. There is in the record evidence tending to support an inference that in the selection of and association with certain of her friends, both women and men, appellant failed to exercise that degree of care which doubtless would have been exercised by a woman who was determined that her reputation should be above suspicion. To ber credit, however, many witnesses, who have known her long, give unqualified assurance of her sterling character.
Appellee O. C. Tucker is 39 years of age, employed by Banner Feed & Flour Co. He and Mrs. Tucker were married in 1930, their only child died in infancy.
The record clearly discloses, and appellant admits, that appellees have furnished these children a suitable home, and properly provided for their physical, mental and spiritual growth and welfare. To supply larger living quarters, as well as a yard in which the children could play, appellees at the time the little girl came to them, moved from an apartment to a large house in a good neighborhood, where association with suitable playmates would be assured. The children have been kept in school, and their reports show excellent progress. They attend church and Sunday school. Mrs. Tucker does her own housework and remains at home where she can and does look after the needs of the children. Both appellees testified that they love these children as if they were in fact their own. The children apparently return that love with equal ardor. In fact the little girl testified to her love for appellees and expressed a strong desire to remain in their household.
Appellant testified, and Mrs. Casper Tucker denied, that the latter had admitted that her intentions were to poison the minds of the children against the mother. It is admitted that the little boy was not aware until shortly before the filing of this suit that appellees were not his parents, but appellees testify that this was in accordance with appellant’s desires. Appellant at all times was permitted to see the children and the boy could not have been kept in ignorance of his parentage without her participation in the deception.
Counsel for appellant assert that “The only question to be considered by this court or .any other court, is is Eula Tucker, the mother of the two children, so poor and so incapacitated to work that she cannot' provide the physical comforts essential to the life of her two children, comparable with her situation in life; or is sbe so depraved and immoral that the lives and well-being of her children would be endangered. ’ ’ In support of this argument counsel rely upon the case of Loewe v. Shook, 171 Ark. 475, 284 S. W. 726, where it is said: “There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, ‘unless incompetent or unfit, because of poverty or depravity, to p’rovide the physical comforts and child.’ Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Baker v. Durham, 95 Ark. 355, 129 S. W. 789.” The language set forth in the inner quotation is taken from Baker v. Durham, supra, but in that case the words were preceded by words declaring that as between a parent and a third person “the law prefers the former” and not that the parent “is entitled to the custody.” In the Baker v. Durham case, Mr. Justice Wood pointed out that there are cases where the parent “has voluntarily relinquished these parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the association and environments which his own conduct has produced, and will leave in the statu quo those whom he has thus permitted to stand in loco parentis. Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457.”
Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389, the other case cited in support of the declaration contained in Loewe v. Shook, supra, not only fails to declare that the court’s inquiry is limited to the financial ability and moral fitness of the parent, but on the contrary declared “the child’s welfare is the cardinal point of inquiry,” and the court in that case declined to restore to an admittedly moral and worthy father the custody and control of an infant, who with the father’s consent, had been placed, and for sometime had been allowed to remain, in the home of and as a member of the family of others, where strong ties of affection had grown up.
In the early case of Verser v. Ford, 37 Ark. 27, a father’s petition to have his minor child taken from the custody of the maternal grandmother and restored to him was denied, although the opinion recites that ‘ ‘ The father has shown himself to he a moral man, with the means of discharging his parental obligation.”
Many . decisions (rendered both before and after Loewe v. Shook) are to be found where the court declined to restore the custody of an infant to a pare'nt who was morally fit, and financially able to establish and maintain a suitable home for the child. When the language employed in Loewe v. Shook is read in the light of these cases it is apparent that the court did not by that decision change the rule announced in the earlier cases. Moral fitness and financial ability remained, as before, proper, but not the only, nor even paramount, subjects of inquiry. All doubt, if any existed, must necessarily have been removed when in Massey v. Flinn, 198 Ark. 279, 128 S. W. 2d 1008, a contest between a father and an aunt, it was declared “We do not think that the fitness or competency of the father is the only criterion by which to judge his right to the custody and control of his child. ’ ’
In the case last cited it was said: “We recognize the general rule that ordinarily the parent of the child is its natural guardian and is entitled to its care and custody, however, this is not always true. There are exceptions. Of prime concern and the. controlling factor is the best interest of the child.
“The rule is laid-down in Johnston v. Lowery, 181 Ark. 284, at page 287, 25 S. W. 436, by this court in the following language: ‘The law recognizes the preferential rights of parents to their children over relatives and strangers, and where not detrimental to the welfare of the children, they are paramount, and will be respected, unless special circumstances demand that such rights be ignored. Herbert v. Herbert, 176 Ark. 858, 4 S. W. 2d 513; Loewe v. Shook, 171 Ark. 475, 284 S. W. 726.
“ ‘The courts will not always, however, award the custody of an infant to the father, but, in the exercise of sound discretion, will look into the peculiar circumstances of the case, and act as the welfare of the child appears to require considering primarily three things: (1) Respect for parental affection, (2) Interest of .humanity generally, (3) The infant’s own best interest.’ ”
The court seeks to insure the permanent welfare instead of temporary benefit of the child. Kirk v. Jones, 178 Ark. 583, 12 S. W. 2d 879; Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457; Mantooth v. Hopkins, 106 Ark. 197, 153 S. W. 95. If these children are now taken from them it is unlikely that appellees could be induced to risk a recurrence of the pains of separation and again assume their care if later appellee found herself again-unable to earn enough to provide for them. The trial court doubtless considered this fact, and felt that the period of appellant’s increased earnings did not cover sufficient time, nor reflect economic conditions sufficiently varied to supply a suitable yardstick with which to measure her probable future earning capacity, and for that reason was of the opinion that custody should not be transferred, until and unless a longer and more varied experience should indicate the probability of a sustained substantial earning capacity on'her part.
■But for her increased earnings there is little difference in conditions existing now and those which existed at the time appellant so eagerly sought a place for these children in appellee’s home. Appellant admittedly would have to work, and, therefore, could not give these children the amount of personal care and attention that they now receive from Mrs. Casper Tucker. There is no certainty that appellant’s mother would move to Memphis — so during the hours appellant was working, or resting, the children’s activities would be superintended by one not related by blood or marriage. Both children, and especially the little boy, need the attention of one who stands in the relation of a father — this need would go entirely unsupplied. For the present, at least, five, and possibly six, persons would have to accustom themselves to the crowded quarters of a four-room apartment, where the children with only the memory of a large house, surrounded by a big yard, where they and their friends played, would have to set about acquiring new friends, and making a new life for themselves. As was pointed out in French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108, it is proper in these cases for the trial court to take “into consideration the harm that might be wrought to a child . . . by taking it from surroundings to which it had become accustomed and transferring it in a strange and unfamiliar atmosphere.” Even more emphasis should be placed upon this circumstance, where, as here, the children not only by their conduct display an emotion bordering on fear at the suggested change, but the older child, when consulted as to her preference in the matter, unqualifiedly expressed her desire to remain with appellees. Because of her age and discretion such inquiry was properly made. Coulter v. Sypert, supra; Jackson v. Clay, 89 Ark. 501, 117 S. W. 546; Mantooth v. Hopkins, 106 Ark. 197, 153 S. W. 95; Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49.
No censure attaches to appellant for having placed these children in the care and custody of appellees. Doubtless the self-imposed separation from her children was no easy task, and she endured it only because she knew the welfare of the children was being thereby better protected and promoted. Her desire to now regain these children is both understandable and commendable. After a full hearing, however, the trial judge, in the exercise of the discretion vested in him, and acting as to him appeared the welfare of the children required, and giving consideration to the three cardinal tests above outlined, found that it was for the best interest of the children tlial their custody be retained by appellees. We cannot say that the judge abused the discretion, or erred in so awarding1 custody to appellees. Appellant’s petition is, therefore, denied. | [
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Robins, J.
To be determined in this case is the loca: tion of the line dividing residential lots in the city of Fayetteville, Arkansas, owned respectively by appellant, Mrs. Beulah Lawson, and by appellees, W. G-. Chamblee and his wife. The lower court sustained the contention of appellees and by its decree, which we are asked by appellant to reverse, enjoined the building and maintaining by appellant of a certain concrete wall or curb, which appellees asserted, and the lower .court found, was constructed on land owned by appellees.
Appellant acquired the south half of lot 4 in block 2 (Van Hoose-Van Winkle Addition), except the east 50 feet thereof, on April 8, 1916, and she acquired on July 3, 1922, the north half of said lot 4, except the east 50 feet thereof. On March 21,1942, appellees purchased and obtained deed for the east 50 feet of said lot 4. No dispute as to the dividing line between these two parcels of land had ever arisen between the respective owners thereof, until appellant began, on April 3, 1944, to build the concrete curb or wall complained of, at which time appellees demanded that the work be stopped, claiming that the curb or wall was located on appellees ’. part of lot 4.
Although dwelling houses have been located for many years on the respective parts of lot 4 owned by appellant and appellees, their yards have not at any time been entirely separated by any- wall, fence or other dividing structure. In the year 1923, appellánt, after having the line surveyed, built a low rock wall about eighteen inches wide running south from appellant’s northeast corner a distance of about nine feet along and immediately west of what was apparently conceived to be the line dividing the two yards. Some time later appellees’ predecessor in title planted a box hedge running south from the south end of said wall for a short distance, the west line of the hedge corresponding with the east line of the rock wall built by appellant. From the south end of this box hedge to the south line of lot 4 there was; up until the building of the curb or wall complained of herein, nothing to mark the line between the premises of appellant and the premises of appellees. There is some testimony as to a rose trellis which formerly stood on or near the dividing line between the south portions of the properties, but the location of this rose trellis was not definitely proved nor was it shown by the evidence that the interested parties treated it as a monument marking the dividing line.
The curb complained of in this suit begins near the south line of the lot, at the southeast corner of appellant’s parcel, and runs north for some distance, but does not extend to the south end of the hedge or the wall. Appellees built a concrete wall on what they thought was the east line of their property, and a measurement of their lot disclosed that, assuming the nine-foot north and south rock wall to be on appellant’s land, appellees’ lot, when measured to the east line of the concrete wall built by appellees, was only about 48 feet and 9 inches in width.
When the dispute between appellees and appellant arose, appellees employed W. R. Spencer, a civil engineer and surveyor and professor in the University of Arkansas, to make a survey in order to determine the location of the line between the two properties. His survey disclosed that the rock wall was within the limits of appellant’s property and that the shortage in width of the front of appellees ’ lot between the two walls grew out of the fact that appellees had built the wall on the east of their property about 15 to 17 inches west of their east line. Appellees were not satisfied with this survey. Mr. Doerres, the county surveyor, was asked to survey the property and his survey coincided with that made by Professor Spencer. Photographs made in connection with the county surveyor’s work, showing him holding a pole at the disputed corners, were introduced in evidence, and, when taken in connection with his testimony and that of Professor Spencer, these photographs show beyond any doubt that the curb complained of is located not on the property that was conveyed to appellees, but that it is located on land for which appellant holds deed. A careful'review of the record fails to disclose any testimony showing -the establishment by acquiescence or agreement between the adjoining owners of a dividing line between their respective lots different from the true dividing line as fixed by the two surveyors. On the contrary, the rock wall built by appellant extending nine feet from her northeast corner, and the hedge running south from this wall planted by appellees’ predecessor in title, bear'mute witness to the fact that, as far as the front parts of these yards are concerned, the respective owners at the time had observed the true line between the properties in making these improvements; and an extension due south of the true line would pass along the east face of the new concrete wall or curb, construction of which brought on this suit.
Appellant offered to prove that Mrs. Cener Hight, appellees’ predecessor in title, while she owned the east 50 feet of lot 4, made certain statements indicating a recognition of the dividing line as shown by the surveys and as claimed by appellant; but the lower court refused to admit this testimony. Such testimony, being as to statements against interest by the predecessor in title of the party against whom it was offered, was competent. In England v. Scott, 205 Ark. 47, 166 S. W. 2d 1014, we said: “Any statements of the owner against his interest, made in reference to the boundary lines of his land, are admissible in evidence and would be binding on such owner, his heirs and assigns.” The same rule is enunciated in the case of Norden v. Martin, 202 Ark. 180, 149 S. W. 2d 550.
Appellee, Mrs. Chamblee, testified that on one occasion appellant told her that “she thought” the dividing line between the two properties was about 25 inches from the east end of appellant’s garage. (The concrete curb or wall, which is the subject of this controversy, is in fact about 48 inches east of appellant’s garage.) Appellant testified in regard to this: “That was just my idea. I had never measured it. I told her it was about that far. ’ ’ This conversation took place long after appellees purchased this property, and it is not shown that any such action was taken by appellees in reliance on this statement of appellant as would estop appellant from insisting upon the true line as the dividing line between these two properties. In disposing of a somewhat similar contention in the case of Tebbs v. Wiseman, 112 S. W. 196, 87 Ark. 641, Chief Justice Hill said: “Appellant complains of the refusal to give an instruction which sought to invoke the doctrine of estoppel against Wise-man, based upon an alleged conversation between Wise-man and Tebbs wherein Tebbs said that Wiseman, after he (Tebbs) had purchased lot 4, pointed out the line thereof different from what he now claims. But no action was taken on account of this conversation, which was had after Tebbs’ purchase, and the doctrine of estoppel cannot be invoked,”
Since it was shown by the undisputed testimony that tbe wall or curb complained of, according to surveys, made by disinterested and competent surveyors, of all tbe premises involved in tbe dispute, was located on tbe property of appellant, and there was no testimony to establish by adverse possession, agreement, ácquiescence or estoppel tbe existence of a dividing line different from tbe line indicated by tbe surveys, it follows that tbe lower court erred in enjoining tbe construction and maintenance of this wall or curb. Tbe decree of tbe lower court is accordingly reversed, and this cause is remanded with directions to tbe lower court to dismiss tbe complaint for want of equity. | [
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Robins, J.
This appeal involves ownership of block 11 of M. A. Russell’s Addition to the city of Russellville, Arkansas. Appellee claims title by virtue of a deed executed by the original owner, Margaret Hill, to him on July 22, 1939. Appellant bases her claim of title on a forfeiture and sale of the lot for nonpayment of taxes of 1932, a confirmation of the state’s title by decree of chancery court rendered on July 27, 1939, and a deed executed July 1, 1941, by the. state land commissioner conveying the property in dispute to appellant.
Appellee in the lower court assailed the validity of the tax sale on the ground that provisions of law as to assessment of the land for taxes, advertising same for sale and certifying thereof were not carried out by the officials.
The chancery court found that the sale of the land for the taxes of 1932 was void for the reason that the amount of the taxes, penalty and costs for which this land was sold was incorrect; that the collector was without power to sell the land and that the confirmation decree did not cure this invalidity of the sale to the state. Prom the decree of the lower court cancelling the deed of the land commissioner to appellant and quieting the title of appellee appellant has appealed.
We held in the case of Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, 147 A. L. R. 1132, that where, because of inclusion of improper charges in the amount of taxes, penalty and costs, there is a want of power to sell lands for nonpayment of taxes, the sale is void and is not made valid by a- confirmation decree subsequently rendered in the statutory proceeding instituted by the state to confirm its title.
Appellant challenges the correctness of the finding of the lower court that essential requirements of law were not observed as to the assessment and levy of the taxes on the land involved herein for the year 1932; and urges that, if a certain “report on regularity of tax sale” is excluded from the record, there is nothing therein to support the lower court’s finding.
■ It is true that no failure to comply with the law in the proceedings prior to the tax sale is shown other than by this ‘ ‘ report, ’ ’ and appellant is correct in her contention that this “report” does not appear to be properly a part of the record in this case. But it is recited in the decree appealed from herein that the cause was submitted “upon the bill of the plaintiff and exhibits thereto, the answer and cross-bill of the defendant and exhibits thereto, the depositions of witnesses taken and filed in said cause, and by agreement of parties, the records of assessment, levy of taxes, return by the collector of lands on which taxes had not been paid for the year 1932, the record of the sale, certificate of the county' clerk to the state of Arkansas, deed from the state land commissioner to the defendant, confirmation decree of the chancery court and other evidence produced, being the clerk’s record of extension of taxes, penalty and costs . . . ”
Under our long established rule we must presume that the evidence referred to in the decree and not shown in the record was sufficient to authorize the decree rendered by the lower court, since the decree was not without the issues raised by the pleadings.
In the .case of Dierks Lumber & Coal Company v. Cunningham, 81 Ark. 427, 99 S. W. 693, suit had been brought by Cunningham to cancel a deed executed by the commissioner of state lands to the Dierks Lumber & Coal Company conveying the land in controversy as land which had been forfeited to the state for nonpayment of taxes. The chancery court found that the land was sold for an excessive amount of taxes and costs and that the sale was void for that reason. This court, affirming the decree of the lower court, said: “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, 23 S. W. 792; Hershy v. Baer. 45 Ark. 240.”
Other, cases in which this rule has been applied are Brown v. Nelms, 86 Ark. 368, 112 S. W. 373; Stuckey v. Lockard, 87 Ark. 232, 112 S. W. 747; Barringer v. Bratcher, 90 Ark. 214, 118 S. W. 1015; Bloomer v. Cone & Co., 92 Ark. 622, 124 S. W. 254; Young v. Vincent, 94 Ark. 115, 125 S. W. 658; Hicks v. Hicks, 122 Ark. 612, 184 S. W. 416; Dumas v. Crowder, 178 Ark. 143, 10 S. W. 2d 43; Wm. R. Moore Dry Goods Co. v. Lammers, 181 Ark. 334, 25 S. W. 2d 754; Sisk v. Becker Roofing Co., 183 Ark. 101, 34 S. W. 2d 1078; Southern Grocery Co. v. Merchants’ & Planters’ Title & Investment Co., 186 Ark. 615, 54 S. W. 2d 980; Jesseph v. Leveridge, 205 Ark. 665, 170 S. W. 2d 71.
No error being sliown by the record, the decree of the lower court is affirmed. | [
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Smith, J.
Suit was instituted in the Eastern District of the Lawrence Chancery Court by certain heirs of Isaac Less, deceased, and Gussie Less, the divorced wife of the said Less, ag’ainst Ida Less Kory, the widow of the said Less, and her attorney in fact, and one of the children and heirs at law of the said Less. The Lawrence Chancery Court is situated in the Eighth Chancery District. The complaint is long and involved, and its allegations need not be recited.
A petition and bond for removal of the caiise was filed bjr Ida Less Kory, upon which no order was made by the regular chancellor presiding in that district. This motion was considered and overruled by the Hon. F. H. Dodge, chancellor of the First District, on the third day of the term, to which order an exception was duly saved.
It appears that the chancellor of the Eighth District and the chancellor of the First District had made a contract for the exchange of courts, which provided that the said Dodge would preside over and hold the Lawrence Chancery Court in the Eastern District “for the date of Thursday, September 22, 1927,” and on that day the motion to remove was heard and overruled. A demurrer to the complaint was also overruled, to which rulings exceptions were saved. The defendant, Ida Less Kory, filed an answer and cross-complaint, the allegations of which need not be stated, and the court proceeded to the hearing of the cause.
The decree of the court contains the following-recital :
“And after the defendants had introduced a number of witnesses the hour of six o ’clock p. m. approached, and the defendants asked time within which to complete their proof by the taking- of depositions. Whereupon the parties hereto, by their solicitors of record, agreed in open fsourt that tlie- ^defe.^dajlts i^ig;ht^a^e(all;&,a^iiQ^^'iiday', tih.e>2>3d,dayof ^pptenjibpr, J927,,^i,tMn ydiich ;t© complete the taking of depositions upon said motion nqyqfpiicler consicleration, and\ that.^thereafter^the^plaipti^s^^hould haye($jJ day of Satjia?jáayy. ^eptepaber, 1927,, in which to take such .proof as they mj.ght desire in rebuttal, .and 'that the tájtíng, oij sai^’’ (Ipppsi't^png, ás ^o bo.th, parties should close on,’ Saturday," '’September, 24, 1927,-,land that, as soon as said..depositions; ^ypre^ transcribed they should be-presentad|q,ithp.chanQpllpp.hearlng .this, matter, the.Honorable Frank.jíf,. I}odgea¡^§igiflejftOT of.the First Chancery Circuit of.the ^afe.pf;, Akk^s.a-S;, at Little Rock, Arkansas, and that; said.iehapcejJj'qr mighj; thereupon make such orders and-.dp,cr.ees.,.thepein. .and upon.said motion,'at Little Rock, Arkansas,; in.vacation, ,as hp might deem proper; which orders aij-cLidecrees ,sq pqade ip, ¡vacation should be entered and'repqrded'Qmtlie records-.ofsthis court in the Eastern District,of Lajypppée Hpupty,: Arkansas, where said matter is; p,ending,, yd,th the -same force and effect as if made,, entered. ¡and rqqorpechin term time.” ...... . ¡ ;
■ Before'a*ny'further hearing was had before the Hon. Ft¡ B/ Dbd'ge-,• pursuant to the above order, application ■was made to this court for a writ of prohibition-restraining tlie said Dodge from the further hearing-of the-cause and the motions, made therein to remove. A temporary stay was granted by a member of this court,- which has been continued in force until the final submission of the -petition for-prohibition to the full court, which motion has now-been'submitted upon briefs of respective counsel.
" ” Numerous questions are discussed in these briefs, which we have found unnecessary to decide, for the reason that the authority of the said Dodge to further hear the cause has expired, and for this reason the petition for prohibition will be granted and the writ awarded.
- ■ By § 2204, C. & M. Digest, it is ¡provided that the several chancellors of the State may exchange and hold courts for each other, as in the case of circuit judges.
Sections 2224 and 2225, C. & M, Digest, read as follows: ’
“Section 2224. Tie judges of the circuit courts may, by agreement, temporarily exchange circuits or hold courts for each other for such length of time as may seem practicable and to the best interest of their respective circuits and courts. Such agreement shall be signed, by the judges so agreeing, and entered on the record of the court or courts so to be held.
“Section 2225. The judges exchanging as aforesaid shall have the same powers and authority, while holding court for each other, as the judge for the circuit in which such term or terms shall be held.”
It thus appears that the chancellors of the respective: districts were authorized by law to make the exchange of circuits, and it also appears that they limited this exchange by the express terms of their agreement to Thursday, September 22, a day of the term.
In the case of Evans v. State, 58 Ark. 47, 22 S. W. 1026, Mr. Justice Battle said:
“The Constitution authorizes them (circuit judges) to temporarily exchange circuits or hold courts for each other under the regulations'prescribed by law,, and the statute empowered them to exchange circuits and hold courts for .each other for such length of time as seemed fo" them practicable and to the best interest of .their respective .circuits ' and counts. * * # In éxchanging courts ’fibey' had 'Die right jb fix the time according "tp what, in that respect, ‘sehm'ed'to them practicable and to the be’stfin'tsfe'S'ti'of their respective courts and circuits.”
■' !'During 'the day llámed of; thé term of the Lawrence' ©hhiidety’Otíúrt''for; the'Eastern District 'thereof, the chhhcéllór df ;thfe 'First District had full authority to' preside ahd !tó" hlake any order or decree on- that day which the regular chancellor might have made, but his authority to preside and hold court was limited to that day of the term by the agreement for the exchange, and on 'that day, and that day only, could the chancellor of the 'First District preside; and he had no right thereafter to'fur-' tlier liear any cause pending in the Lawrence Chancery Court.
In the. early case of Auditor v. Davies, 2 Ark. 494, it was held (to quote a syllabus), that: “The power and authority of each circuit judge in this State are restricted and limited to the prescribed and ascertained boundaries of his circuit.”
■Respondent insists that the right to proceed with the further hearing of this cause is conferred by § '2190, C. & M. Digest, which reads as follows:
“Section 2190. A chancellor may deliver opinions and make and sign decrees in vacation in cause taken under advisement by him at a term of the court; and, by consent of parties,-or of their solicitors of record, he nmy try causes and deliver opinions, and make and sign decrees in vacation. Such decrees and all other orders and decrees which a chancellor may make in vacation shall be entered and recorded on the records of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases. ’ ’
We think, however, that, if this section confers authority upon the chancellor holding court in another district upon exchange, it could not operate to extend the time in which he might do so beyond the time limited by the agreement for the exchange.
Respondent also calls attention to the fact that the order for the further hearing of the cause, after Thursday, was made b}r consent of parties oh the motion of petitioner here, and such is the recital of the order, but the fact remains that this cause is pending in the Lawrence Chancer}7' Court, and the right of the chancellor of the First District to'preside there has expired, and courts cannot be created by consent of parties. Price v. Madison Co., 90 Ark. 195, 118 S. W. 706; Frank v. Frank, 88 Ark. 1, 113 S. W. 640, 19 L. R. A. (N. S.) 176, 129 Am. St. Rep. 73; Hyllis v. State, 45 Ark. 478; Gaither v. Wasson, 42 Ark. 126; Dansby v. Beard, 39 Ark. 254; Feild v. Dortch, 34 Ark. 399; Jacks v. Moore, 33 Ark. 31.
It follows therefore that the chancellor of the First District is without jurisdiction to proceed further, as he admits in his response he is about to do, and the writ as prayed will therefore be awarded. | [
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Smith, J.
This appeal involves the construction of the will of W. R. Strickland, which reads as follows:
“That I, W-. R. Strickland, of West Point, in the county of White and State of Arkansas, of sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking’ all former wills by me at any time heretofore made.
“1. I hereby constitute and appoint my wife, M. T. Strickland, to be the sole executrix of my last will, direct- • ing my said executrix to pay all my debts and funeral expenses and the-legacies. hereinafter given out of my estate. •
‘ ‘ 2. After the payment of my said debts.and funeral expenses I give to each of my children, namely, R. C. Strickland, one dollar; Tom Strickland, one dollar; W. A. Strickland, one dollar; Laura Maloy, one dollar; Levi Strickland, one dollar; E. Strickland, one dollar; J. R. Strickland, one dollar; and Nancy Y. Nunn, one dollar, and Clemmy Hughes, one dollar, to be paid to each one of them as soon after my decease, but within one year, as convenient may be done.
“3. And for the payment of the legacies aforesaid I give and devise to my said executrix all the personal estate, money and notes owned by me at my decease, and the southwest quarter of the southeast quarter of section 26, township 7 north, range 6 west, and the south half of the south half of the northwest quarter of the southeast quarter of section 26, township 7 north, range 6 west, containing 50 acres, more or less.
“4. I give to my said executrix all my household furniture and wearing apparel for her sole use.
“5. I devise to my said executrix all the residue of my estate as long as she shall live, with the remainder, at her decease, to go to my children, respectively, share and share alike.
“6. In testimony whereof I hereto set my hand and publish and declare this to be my last will and testament m the presence of the witnesses named below, this the sixth day of April,”1921. ”
Strickland died in 1922, and his will was duly probated, and on the 22d of May, 1925, Mrs. M. T. Strickland, his widow, deeded the land above - described to her son Levi, one of the beneficiaries named in the will. Mrs. Strickland died intestate in November, 1925.
The other children insist that Mrs. Strickland took only a life estate in the property of the testator, and they pray that the will be so construed and the property ■ordered divided accordingly. The court denied the relief prayed, and held that Mrs. Strickland took a fee simple title to the property devised, subject only to the legacies of $1 to each of the children, and this appeal is from that decree.
We do not concur in the view of the court below in the construction of this will. It is our opinion that a life estate was devised, with a remainder over to the testator’s children, share and share alike.
In the case of King v. Stevens, 146 Ark. 443, 225 S. W. 656, it was held that an estate for life might be created in personal property of a durable nature, with a remainder over, and, in such cases, the property remaining at the life tenant’s death is to be distributed to the remaindermen. The record before us does not present the question as to what personal property owned by the testator was of that durable mature that a life estate therein might he created.
To sustain the construction of the will given it by the court below, the case of Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A. (N. S.) 1028, 11 Ann. Cas. 343, is relied upon. The will in that case provided: “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.”
It was there held that the property referred to was devised to the wife of the testator in fee simple “with an absolute power of disposition, either by sale or devise, clearly and unmistakably implied,” and that the limitation over to the heirs of the testator was void. Mr. Justice Battle there quoted with approval from Underhill on Wills, vol. 2, § 869, as follows:
“ ‘It is. the rule that, where property is given in clear language sufficient to convey an absolute 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 or 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.’ ”
The opinion in that case contains quotations of similar purport from Redfield on ' Wills and from Page on Wills.
Appellees also quote a syllabus from the case of Fies v. Feist, 145 Ark. 351, 224 S. W. 633, which reads as follows: “A testator, after devising an estate in fee in land, may not, in a subsequent clause, impose limitations inconsistent therewith, as by authorizing the executor to dispose of such land.”
We think, as has been said, that a fee was not devised, and we réach this conclusion from a consideration of the will in its entirety. It will be • remembered that paragraph 1 of the will directs the executrix “to pay all my debts and funeral expenses and the legacies hereinafter given out of my estate,” and the third para-, graph provides that, “for the payment of the legacies aforesaid I give and devise to my said executrix all the personal estate, money and notes owned by me at my decease, ’ ’ and the land there described.
The devise contained in paragraph 3 is.not to the wife as such, but “to my said executrix,” and if the intention of the testator had been to give to the wife the absolute title to all the property described in that paragraph, the paragraph next following is entirely meaningless. By the paragraph numbered 4 the testator gives to his executrix all his “household furniture and wearing apparel for her sole use.” The devise in paragraph 3 does not recite that it was in fee or for the sole use of the executrix. On the contrary, the recital is that it was for the payment of the legacies.
Of course, it was not essential that the testator recite that the property was for the sole use of his wife to give her a fee simple title, if the language employed indicated that purpose. But the presence of this language in one paragTaph, and its absence in the other, is a circumstance to be taken into account in arriving át the intention of the testator, and the purpose of all rules of construction is to arrive at this intent.
The second syllabus in the case of Fies v. Feist, supra, reads as follows: “In construing* a will, the various clauses should be harmonized, and each given force,, if possible, as it is only where there is irreconcilable conflict between the clauses that one must give way to the other.”
The fifth paragraph of the will reenforces the conclusion we have announced,' for by it the testator devises to his wife “all the residue of my estate as long as she shall live, with the remainder, at her decease, to go to my children respectively, share and share alike.”
In the case of Bernstein v. Bramble, supra, Mr. Justice Battle said that the rule that, where property is given in clear language sufficient to convey an absolute fee, it shall'hot he taken away, cut down or diminished by subsequent vague’ and general expressions, is to be applied when the 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 modern statutes. 'But we _ think there was no express devise of the fee by paragraph 3 of the will, and we 'are also of the opinion that the intention of the testator cannot be determined without reading paragraphs 4 and 5 in connection with paragraph 3. When all these paragraphs are read together it does not appear that paragraphs 4 and 5 cut down, take away or diminish an estate in fee given by paragraph 3, but the last paragraphs must be read in connection with paragraph 3 to arrive at the testator’s intent.
Appellees insist that, by paragraph 5 of the will, the testator merely intended to suggest that the “remainder” at .the death of the wife should go to the-children share and share alike. The language employed, however, does not admit of the interpretation that a mere suggestion or recommendation was being made. The testator expressly devised to his-executrix the “residue” of his estate as long as she shall live, with the “remainder” at her decease to his children. We think it was clearly the intention of the testator to give his children something more than the dollar each mentioned in paragraph 2, and that something was the “residue” of his estate after the same had been enjoyed by his wife until her death.
In the case of Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655, it was held that, generally, the use of a thing does not mean the thing itself, hut that the user is to enjoy, hold, occupy or have in some manner the benefit thereof.
Appellees quote § 290 of the chapter on wills in 28 R. C. L., page 307, which reads as follows:
‘ ‘ The charging of a legacy on a devise may in itself be an indication as to whether the devisee was intended to receive a fee or a life estate. Where a devisee whose estate is undefined is directed to pay the testator’s debts or legacies or a specific sum in gross, such devisee presumably takes an estate in fee, and the rule that devises of land without words of limitation or description pass nothing but a life estate will not be applied. In other words, a devise which would otherwise give only a life estate may confer an estate of inheritance if the testator imposes a personal ‘charge on the devisee. A distinction has been drawn between cases where the payment of the testator’s debts is charged upon the estate, and where the charge is on the person of the devisee, in respect of the estate in his hands, and it has been held that, in the latter case alone, the devisee takes a fee.”
The insistence is that the charge of the legacies against the devise to the wife under the rule just quoted is an indication that the testator intended that the fee should pass. The origin and reason of this rule is considered by the Supreme Court of the United States in the case of McCaffrey v. Manogue, 196 U. S. 563, 25 S. Ct. 319, 49 L. ed. 600. In that case the legatees were children and a grandchild of the testator, and each was given real property in Washington City. A daughter was given several pieces of real estate and certain personal property, and the will provided that the daughter should “pay funeral expenses and any other legal debts I may owe, also to care for my lot in Mount Olivet cemetery.” -
Mr. Justice McKenna there said:
“ ‘The rule of law which, gives a fee where the devisee is charged with a sum of money is a technical dominant rule, and intended to defeat the effect’ of the artificial rule established in favor of the heir at law, that an indefinite devise of land passes nothing hut' a life estate.”
Speaking further of these conflicting rules of construction, the learned Justice said:
“It is altogether a strange tangle of technicalities. Apply either of them or both of them, and we defeat the intention of the testator. Are we reduced to this dilemma? We think not; nor need we dispute the full strength of the rule in favor of the heir at law. It cannot be applied when the' intention of the testator is made plain. It cannot be applied when the purpose of the testator, as seen in the will, cannot be carried out by a devise of a less estate than the fee. Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. The policy of the law in favor of the heir yields, we repeat, to the intention of a testator, if clearly expressed or manifested. That policy, the reason for it and the elements of it, is expressed strongly by Mr. Justice Story in Wright v. Denn, 10 Wheat. 204, 227, 228, 6 L. ed. 303, 309: ‘Where there are no words of limitation to a devise, the general rule of law is that the devisee takes an estate for life only, unless, from the language there used or from other parts of the will, there is a plain intention; because, if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favored by its policy; and, though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape.”
The will there construed was held to devise to each legatee an estate in fee, but this was done because, as the learned Justice said, the testator had “put in a clear and unambiguous shape” that intention. The testator had devised all his property and had attempted to make an equal division thereof among his children and grandchild, and there was no residuary clause disposing of a remainder if only life estates were devised.
In volume 2 (6th ed.) Schouler on Wills, §§ 1177 and 1178, the author says that the old common-law rule of construction, that a devise of lands to A simply conferred an estate for life only, unless an intention was disclosed in the will to the ■ contrary, has, by legislation and interpretation,- been modified, and that “this modern rule treats a devise of lands, though without words of limitation, as passing the fee simple to the devisee, unless an intention appear to the contrary. The-natural scope of the will, as gathered from all its parts, .thus settles in fine the question whether or not a devise in fee or such other complete interest as the testator had power to dispose of shall pass, or instead a mere usufruct and temporary enjoyment.” .
The hazard of defeating a testator’s manifest intention by the application of rigid rules of construction is pointed out by the learned Justice in the case of McCaffrey v. Manogue, supra, where he said:
“In the construction of wills we are not required to adhere rigidly to precedents. We said, in Abbott v. Essex Co., 18 How. 202, 213, 15 L. ed. 352, 355: “If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But in a country where, from necessity or choice, every man acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant.’ ”
In this connection we may say that the purpose of all rules of construction is to enable the courts to arrive at the intention of the testator, and are to be invoked only when that intention is in donbt. ••
In the will which we are hére called upon to construe the intention of the testator to practically disinherit his children is not stated clearly and in unambiguous language. On the contrary, the residuary elapse manifests the intention that the wife shall use and enjoy the property of the testator for her life, and that, after her death, the “residue” shall “g-o :to” the testator’s children, share and share alike.
. The decree of the court below will therefore be reversed,’and’the cause.remanded with directions to enter a decree conforming to this opinion. •" • | [
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McHaNey, J.
This is an action by appellant for an accounting of certain partnership transactions between himself and appellee, and involves various deals and enterprises in different localities, regarding the purchase and sale of fruit, melons and vegetables, beginning in the latter part of 1919 and running through the year 1920. A disagreement arose between them in the latter part of 1920 or in 1921 as to the profits and losses on their transactions, and, not being able to settle their difficulties and wind up their partnership transactions, appellant brought this action in the Washington Chancery Court for an accounting, claiming that appellee was indebted to him in a large Sum of money, for which he prayed judgment, or for whatever amount the accounting might disclose to be due him, in which he asked for the appointment of a master to state the account. Appellee answered, denying any indebtedness to appellant, and claimed that appellant was very largely indebted to him. He made his answer a cross-complaint, and joined in the prayer for an accounting, and for .judgment against appellant on his cross-complaint for the amount shown to be due him by such an accounting. Thereafter the court appointed a master to take evidence and' state an account between them, and to report his actions to the court for its action thereon. The master proceeded to the discharge of his duties, took a great mass of testimony, running through a number of volumes of record, and resigned. The .parties then agreed that J. W. Grabiel be appointed as master to succeed him, as master in succession, and the court made an order appointing him to state the account between the parties. The master made a detailed finding under separate'paragraphs, relating to the different deals, designating them by the names given the different deals by the parties, and found that appellant was indebted to appellee for different transactions handled by him in the sum of $3 0,713.42, and that appellee was indebted to appellant for different transactions handled by him in the sum of $3,970.44, the difference between these items being $6,742.98, which is the amount the master found to be due appellee by appellant in settlement of'their partnership differences. Both parties filed exceptions to the master’s report, and, upon a hearing before the court, the master was permitted to amend his report in one particular, which did not change the result. The court thereupon entered a decree for the amount found to be due appellee by the master, and from this decree comes this appeal.
Appellant bases his action very largely, if not almost entirely, upon an audit made by Gilbertson & Company, Oklahoma certified public accountants. This audit was made at the instance of appellant, and without the knowledge or consent of appellee, and the result of this audit would therefore not be binding on him unless it is otherwise established to be correct by competent .proof. Mr. Gilbertson testified that the detailed check of the books was made by James Cumberford, assisted by D. A. Augustus, and that Mr. Cumberford, the last time he knew about him, lived in Chicago, and that Mr. Augustus is dead; that his report as auditor was made up from the work sheets furnished him by these gentlemen, and that he bases his belief in the correctness of the account on his-confidence in the work of Cumberford and Augustus. Appellant’s testimony therefore with reference to the correctness of the audit and as to what the books showed is entirely hearsay, as Gilbertson made no examination of the records himself, and could only testify as to what the work sheets of Cumberford and Augustus reflected after summarizing these work sheets, in the form of a statement of the different accounts. This rendered the testimony and the different statements as reflected by the audit incompetent and valueless in the hearing before the master and the court. To have made same competent testimony, Cumberford and Augustus should have testified to the correctness of the'work sheets. In the case of Johnson v. Berg, 147 Ark. 323, 227 S. W. 413, the first syllabus reads as follows:
“Testimony by the owner of a set of abstract books as to the date of a certain deed as shown by the abstract books is hearsay where witness did not keep the Nooks himself and could not testify that the entries therein were correct.”
The other evidence in the record is quite unsatisfactory, We have examined same carefully, and are unable to say that the decree of the chancellor is against the clear preponderance of the evidence. In Leach v. Smith, 130 Ark. 465, on page 469, [197 S. W. 1160-1162], this court said:
“In law cases the jury, in the first instance, are triers of fact, and the trial judge, on a motion for a new trial, may review the evidence to determine whether the verdict is against the preponderance thereof. This court, on appeal, in law cases leaves the jury and the presiding judge to weigh the evidence and decide as to its preponderance. This is peculiarly their function, and we do not set aside the results thus attained where there is any evidence at all of a substantial character, that is, legally sufficient to sustain the finding bn the issues of fact. In other words, in law cases this court, on appeal for review for errors, is not a trier of facts. ■ But ' in chancery causes the procedure is entirely different. When chancery causes reach this court on appeal, they are taken up for trial de novo on the record made up in the lower court, that is, on the same record, but the law and the facts are examined the same as if there had been no decision at nisi prius. In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court, unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. But the issues of fact, as well as law, are tried by this court anew.
‘ ‘ The rule was early announced, and has been consistently adhered to, that the findings of the chancellor will not be set aside by this court unless they are clearly against the preponderance of the evidence. This simply means that, on a trial anew of the issues of fact in a chancery cause on the record as presented to this court oh appeal, unless it is clear to- our minds, that is, unless we are fully convinced as to which of the parties litigant is entitled to the decision, we accept and adopt the findings of the chancellor as our own, and treat them as conclusive. The meaning of the rule may he shown by; this simple illustration: When chancery causes are taken up for determination by this court, the judicial balance, so to speak, stands at perfect equipoise. One side of the scales is labeled ‘appellant,’ the other ‘appellee.’ The testimony in the record is examined, and all that is incompetent is discarded. That which remains for appellant is put on his side, and that for the appellee oh his side, 'and if the scales are evenly balanced, or so nearly so as to leave the judges in doubt.as to where lies the greater weight, then the decision of the court below is persuasive, and is allowed to stand as the correct result.”
The evidence, as above stated, is so unsatisfactory and So conflicting that wé cannot say as a matter of law, under the settled practice in this court, that the decree of the court is clearly against the preponderance of the evidence. For this reason the decree must be affirmed. It is so ordered. | [
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Smith, J.
Appellee brought this suit to recover damages to compensate an injury sustained by him while employed as a sawyer by the appellant company at itsmill in West Helena, Phillips County. The suit was filed in Prairie County, and the summons was directed to the sheriff of that county, but was sent to and served by the sheriff of Phillips County on appellant’s designated agent for service in Phillips County, where the said agent was actually found and served by the sheriff of Phillips County. A motion to quash the summons was filed upon the ground that it was not directed to the officer who served it, and that the sheriff of Phillips County had no authority to serve a summons directed to the sheriff of Prairie County. It is not contended that the proper person was not served, but only that the sheriff of Phillips County had no authority to serve the summons.
Upon hearing the motion to quash, the court made an order in which it was recited that it was intended that the summons should be directed to the sheriff of Phillips County, and that it was a clerical error on the part of the clerk in not so directing it, and it was ordered that the summons be amended to read “To the sheriff of Phillips County,” instead of “To the sheriff of Prairie County.” An exception was saved to this order of the court.
We think no error was committed in this ruling. Section 1239, C. & M. Digest, provides, that:
“The court may, at any time, in furtherance of jus-lice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”
By section 1242, C. & M. Digest, it is provided that:
“The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”
In the case of Campbell v. Stiles, 9 Mass. 216, a writ directed to the sheriff of Franklin County was served and returned by the sheriff of Hampden County, and it was held that this was a mere clerical error, which could be corrected on motion. See also Alderson on Judicial Writs and Process, p. 43.
Moreover it appears that, after the motion to quash was overruled, appellant filed an answer containing a general denial of all the allegations of the complaint, but which did not preserve the point that its motion to quash had been improperly overruled. This being true, it must be held that, if there was a defect in the process, it was waived by the answer, which did not preserve the point. Barry v. Armstrong, 161 Ark. 314, 256 S. W. 65.
It is next insisted that the verdict of the jury, which was in plaintiff’s favor, is contrary to the evidence.
The testimony on behalf of plaintiff was to the effect that he was employed to operate a ripsaw, and that he was so engaged at the time of his injury. That, to dispose of the waste wood or offal from the various machines operated in the mill, the defendant operated a machine known as a hog, which is a piece of machinery used in grinding or cutting up the waste wood, which is carried from the hog by a conveyor, where it is destroyed by fire. A number of rubber bands are suspended from the top opening of the hog io ilie floor on which it rests, to prevent particles of wood from being thrown from inside, the hog, but which bands had become worn and some of them had been knocked off, and those remaining 'Were in a defective condition to snch an extent that they wonld not prevent, and did not prevent, pieces of “wood from being thrown from inside the hog, as the belts wonld have done had they not been in a defective condition, and, because of this defect, a piece of wood was thrown from the hog a distance of twenty-five or thirty feet, which struck plaintiff in the eye.
There was testimony to the effect that other pieces of wood had been thrown Lorn the hog, one of which struck and injured another employee, and that the attention of the foreman of the mill had been called to this defect, and he had promised to repair it.
The testimony on the part of the defendant was to the effect that the piece of wood which struck plaintiff did not come from the hog, but from another machine, and that his injury was due to an accident which ordinary care would not have avoided. This conflict in the testimony is concluded by the verdict of the jury.
The case appears to have been submitted to the jury under correct instructions, and the testimony is sufficient to support the finding that defendant was negligent in failing to use ordinary care in furnishing plaintiff and other employees a reasonably safe place in which to work.
It is finally insisted that the verdict of the jury, which was for the sum of $3,000, is excessive. Appellee’s testimony was to the effect that the piece of wood struck his eye with such force as to burst the ball, and that he suffered continuously for a year after his injury, and still suffered at frequent intervals from severe aches and pains in his head and eye. An eye specialist testified that plaintiff had recovered and that his eye was well, although he admitted there was a fifty per cent, reduction in the vision, and that plaintiff was unable to read with that eye.
Plaintiff testified that, after he was able to resirme work, he was frequently forced to lay off from work, as ids eye hurt him so badly that he could not work, and that he was finally discharged by defendant company. Plain tiff admitted that he was later re-employed by another sawmill company at a larger salary,' notwithstanding his impaired vision.
We have stated the testimony in'the light most favorable to plaintiff, as we are required to do in testing its legal sufficiency to support the verdict, and, as thus viewed, we are unable to say that the verdict is excessive.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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Wood, J.
J. A. Christian was indicted by the grand jury of Yell County for the crime of bigamy. He was tried, convicted, and sentenced by judgment of the court to three years’ imprisonment in the State Penitentiary, from which judgment he prosecutes this appeal.
The indictment followed substantially the language of the statute, and was valid. The testimony was sufficient to sustain the verdict. During the progress of the trial the prosecuting attorney, over the objection of the appellant, testified that he sent a telegram to one Essie J. Christian, at 216 South Topeka Avenue, apartment No. 9, telephone 6331, Wichita, Kansas, on February 18, 1927, and received an answer on the same date, signed by Mrs. Christian. The prosecuting attorney was asked if Mrs. Essie J. Christian was still living, and answered, “Yes sir; I introduced those for the purpose of showing that she is living.” He repeated that he sent the telegram to the above address and received a telegram in reply signed “Mrs. Christian.”
The introduction of the above testimony was made one of the grounds of the motion for a new trial. The court erred in admitting this testimony. It was pure hearsay. The court permitted the above testimony of the prosecuting attorney to be introduced for the purpose of showing that Mrs. Essie J. Christian, the alleged wife of the defendant, was living at the time of his alleged last marriage to one Yerna Duke Higgerson. If the prosecuting attorney'had testified that Mrs. Essie J. Christian was living on the' 18th day of February, 1927, and stopped there, the' testimony would have be'en relevant, and the prosecuting attorney was a competent witness to testify to that fact, if it was a fact within his knowledge. But the fact that he sent a telegram to Mrs. Essie J. Christian at the address mentioned and received a telegram in,reply signed “Mrs. Christian” did not tend to prove that Essie J. Christian, the alleged wife of the appellant, signed the telegram. It will be observed that the prosecuting attorney did not- testify that Mrs. Christian, the wife of the defendant, signéd the telegram. He did not testify that he- sent the telegram to Mrs. Essie J. Christian, the wife'of the defendant, nor did he testify that the telegram he received was signed by Mrs. Essie J. Christian, the wife of the defendant. His testimony only shows that he sent a telegram to Mrs. Essie J. Christian at a certain address in Wichita, Kansas, and received in answer a telegram signed by “Mrs. Christian.” That is very far from showing that the telegram was sent to Essie J. Christian, the alleged wife of the defendant, and that the telegram in reply to the oñé sent by the district attorney was signed by Essie J. Christian, the alleged wife of the defendant. In other words, the telegram was not sufficiently identified to be admitted as the telegram • of Essie- J. Christian, the alleged wife of the defendant.'.
The court correctly instructed the jury that “the material allegations in the indictment are that the defendant, Dr. J. A. Christian, having heretofore been married to Essie Christian, who, the State contends, is still living, and while their marriage relations existed, that he, in violation of law, married Mrs. Yerna Duke Hi'ggerson, in Yell County, Arkansas. That is, the last marriage must be proven in the Dardanelle District of Yell'County, and it must have been within'three years before the returning of the indictment.” The court further correctly instructed, the jury that the burden was . on the State to prove these material allegations. Russell v. State, 66 Ark. 185-188, 49 S. W. 821; 74 Am. St. Rep. 78; 3 Greenleaf on Evidence, § 207; Underhill’s Criminal Evidence, § 59.9; 4“Elliott on Evidence, % .2866. , ...
Our statute defines bigamy as follows: “Every person having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.” Section 2606, C. &. M. Digest.
Mr. Elliott states the law "as follows:
“In order to establish the offense under .such statutes it must be proved beyond a reasonable doubt that the former husband, or wife is living,, or was alive at the date of the alleged second marriage.. Such proof is essential to a conviction; but it is not necessary that the evidence on this subject be direct and positive; the fact may be shown by circumstantial evidence.” 4 Elliott, §• 2866. But, where the State depends on circumstantial evidence, the circumstances must be such as to establish the fact that the first spouse is living at the time of the. second marriage' beyond a reasonable doubt. The fact that the first wife is living must not depend upon .presumption merely but must be established by proof. For, as was further said by Mr. Elliott, “the presumption of innocence, supplemented by the presumption of the validity of the second marriage, must prevail over the presumption that the first husband or wife is still living.” 4 Elliott, § 2867. See Hallbrook v. State, 34 Ark. 511; 36 Am. Rep. 17; Russell v. State, supra.
In E. C. L. it is said:
“Proof that the first wife was living at the time of the second marriage is essential to conviction; bnt direct and positive evidence of this is not indispensable; and the fact may be shown by circumstantial evidence. * '* * There are many circumstances where proof that the first wife was alive only a short time before the second marriage may be insufficient for conviction, and the whole question depends on the circumstances of each case, bearing in mind, of-course, that the burden is on the prosecution to show that the first wife is still alive at the date of the second marriage.” 3 E. C. L., § 24, page 810.
In Squire v. State, 46 Ind. 459, it is held, quoting syllabus :
“In a prosecution for bigamy the State must prove beyond a reasonable doubt that the first wife was liying at the time of the second marriage. Where there is no direct evidence on this point, and the only evidence is that the first wife was alive two years previous to the second marriage, the presumption of the continuance of her life is neutralized by the presumption of the innocence of the defendant, and in such case there can be no conviction. ’ ’
If the prosecuting attorney had testified as a fact that he knew Mrs. Essie J. Christian, the wife of the appellant, was living on February 18, 1927, or if he had introduced any witness to testify to that fact, that would have been sufficient evidence- of the fact that she was living at the time of the appellant’s alleged second marriage on January' 3,' 1927, or if the prosecuting attorney, or any other witness, had testified as. a fact that Mrs. Essie J. Christian, the wife of the appellant, .sent, the telegram which was received by the prosecuting attorney on February 18,-1927, that would have been competent and relevant testimony tending to'prove that Mrs. Essie J. Christian, the wife of the appellant, was alive on January 3, 1927, the date of appellant’s alleged second marriage. The testimony of the.prosecuting.attorney only showed that he sent a telegram to a person named Mrs. Essie J. Christian at a- certain address in Wichita,-Kan sas, and that he received an answer thereto from “Mrs. Christian” on February 18, 1927, that is, a message that was signed by “Mrs. Christian.” But the testimony of the prosecuting attorney to which the appellant objected falls short of proving that Mrs. Essie J. Christian, the wife of the appellant, sent the telegram of February 18, 1927, and of tending to prove that Mrs. Essie J. Christian, the alleged wife of the appellant, was living on the day of the alleged second marriage.
The court erred in permitting the State to prove this material fact in the case by purely hearsay- testimony, and it follows that the ruling of the court in admitting such testimony was highly prejudicial to the appellant.
There are many assignments of error in the motion for a new trial, all of which we have carefully examined and find that none of them are well taken except the above, and it could serve no useful purpose to set them out and comment upon them. For the error indicated the judgment is reversed, and the cause will he remanded for a new trial. . | [
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Hart, C. J.
Buhe Dunn prosecutes this appeal to reverse a decree of the chancery court refusing to confirm the settlement of the property rights of himself and Cora Dunn.
It appears from the record that Cora Dunn brought an action for divorce against her husband, Rube Dunn, and for a division of property under § 3511 of Crawford & Moses’ Digest. The court granted a decree of divorce against the defendant from bed and board, and granted her the custody of the girl children and her husband the custody of the boy children. It was further decreed that she should have one-third of his personal property absolutely and one-third of his real estate for her life, and a commissioner was appointed for the purpose of making a division of the property. By agreement Mrs. Cora Dunn accepted $1,200 in lieu of her property rights under the decree. This sum of money was paid to her by her husband, and a receipt was given in accordance with the terms of the settlement.
Subsequently Mrs. Cora Dunn filed objections to the report of the commissioner and asked for a division of the. property in accordance with the terms of the. original decree. • The property was dnly appraised at a total value of $4,274. The fee of the land in the appraisement was valued at $3,200. Thus it will he seen that Mrs. Cora Dunn, if she had been entitled to receive one-third of the value of the fee in the land, would not have received more than $1,424. There is no showing that she was induced by false representations or coerced into • accepting the: sum of $1,200 in lieu of her property rights under tha decree. She accepted the sum of $1,200 of her own free will, and there is no proof in the record tending to show that she was in any wise deceived.
The parties were- capable of contracting with reference to their property rights, and no proof is shown which warranted the chancellor in refusing to confirm their- settlement, which had ¡been voluntarily agreed to and which had been executed by payment of the amount agreed upon by the husband to the wife.- Therefore.the chancellor erred in refusing to* confirm .the settlement and in ordering a division of the property between the parties in accordance with the terms of the original decree.
: The result of our views is that the decree of the chancellor will be reversed, and, inasmuch as the case seems to have: been fully developed, the chancery court will be directed to enter a decree approving and confirming the settlement of the parties as to their property rights and vesting the title to the real estate in Rube Dunn, free from any interest or claim of Mrs. Cora Dunn. It is so ordered. | [
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Hart, C. J.
Yol Freeman was convicted before a jury of the crime of manslaughter, and bis punishment was fixed at five 3mars in the penitentiary. The case is here on 'appeal. The only assignment of error relied upon for the reversal .of the judgment is that the evidence is not legally sufficient to support the verdict.
The record shows that Frank Pompey was killed while working in a mine at Jenny Lind, in the Greenwood District of Sebastian County, Arkansas, and Yol Freeman took-charge of his home and locked it up. On the next night, which was February 17, 1927, the defendant went with Frank Petty and his wife .to the residence of the deceased for the purpose of allowing Mrs. Petty to rest awhile. While the3r were in the house, Abe Alexander came in, and Freeman asked him what he was doing there. Alexander replied that he had as much right there ias Freeman. Pett-3^ and his wife went out in another room, and in a few minutes heard a pistol shot. They went back in the room, and found Alexander lying on the floor with a bullet wound over his heart. Freeman admitted that he had shot and killed him with a pistol, hut said that Alexander was trying to shoot when he shot and killed Alexander. Freeman said that he was down on his knees when he fired the shot. Alexander died in a few minutes. The killing occurred between half past ten and eleven o’clock, and the sheriff of the counter was called, and found Alexander Wing on the floor, dead. There was a stream of blood from his mouth extending about five or six feet down the floor frojn where the body lay. He found a blackjack with the letter “F” on it lying about four or five feet from Alexander’s head. There -was a small automatic pistol with one unexploded shell in it under Alexander’s hips. Alexander was dressed in his underwear, a pair of overalls and house-slippers. The undertaker who took charge of the body said that the wound just clipped the heart and ranged down. He found the bullet under the skin in the right shoulder.
According to the testimony of Frank Petty, he first saw Alexander when he opened the door and came into the house. Freeman asked him who had broken into the house. It seemed that the house had been entered since Freeman had locked it up, after the death of Pompey. Alexander replied that he had. Freeman said, “You’ve got no business breaking into this house.” Alexander replied, “I got as much right in here as you have.” Alexander then stepped back and ran his hand in his bosom. Petty grabbed his wife, and went into the kitchen. He heard some scrambling around, and then a pistol shot. “I did not see Freeman fumble around a trunk or get a pistol after we went in the house. ’ ’ Witness saw a blackjack in the room where Alexander was killed. He did not see it before the killing. Freeman said that Alexander was trying to shoot him when he shot Alexander. Freeman said that he was down on his knees in the corner of the room when he fired, the shot.
Another witness for the State testified that Alexander was lying on his back, with his right thumb hooked over the bib of his overalls, and his other hand down at his side. There was nothing in either band.
According to the testimony of the defendant, he had known Abe Alexander for twelve or fourteen years, and they were friends. Alexander, the defendant and another person carried Pompey out of the mine when he was killed. Pompey lived by himself, and had told the defendant that, if he was killed while -working in the mine, he wanted him to take charge of his house. After the death of Pompey, the defendant fastened up his house and, on the next night, went there with Frank Petty and liis wife. He saw that the house had been broken into and entered during his absence. He s;aw that a trunk had been broken into and some papers scattered over the floor. When the defendant saw that the house was torn up, he got a pistol which had belonged to Pompey and put it in his pocket. While walking around the room, he heard somebody step on the front porch. He came right in to the defendant and said, i£What in the hell are you doing here?” The defendant said, “Looking around. Somebody has burglarized the house — do you know who it was?” Alexander said, “Yes, it was me and Butch.” The defendant replied, “ Nobody had any business burglarizing the house.” Alexander then went for his bosom with his hand, and the defendant stepped back. Alexander commenced striking at him, and the defendant threw up his hands. Alexander hit him with something that deadened his hand. Alexander then struck the defendant on the shoulder, and got him backed up in the corner of the room. Alexander hit him' over the head with something that knocked him down. Alexander was right over him, and drew back as if to strike the defendant again. The defendant shot him. Alexander scrambled around a little, and fell over on the floor and died.
Another witness for the defendant identified the blackjack found in the room where the body of the deceased was lying as one that belonged to Alexander.
Mrs. Frank Petty was a witness for the defendant, and substantially corroborated the testimony of her husband.
The killing being done with a deadly weapon, the law implies malice where no circumstances of mitigation, justification or excuse appear at the time of the killing.
The killing was the result of a sudden quarrel between the defendant and Alexander. While the jury might have found from the evidence that Alexander attacked the defendant with the blackjack and that the defendant shot him after Alexander had knocked him down, and that the killing was therefore done in self-defense. still it cannot be said that the testimony of the defendant and Ms witnesses was undisputed. Testimony can only be said to be undisputed when reasonable minds can draw but one conclusion from it. The jury may have accepted a portion of this evidence as true and rejected the other portions of it as untrue. Tliey may have concluded that the defendant shot the deceased under the belief that he was about to be assaulted with, a deadly weapon, but that he acted too hastily, and was therefore not justified in taking life under the circumstances. Where the killing is done because the slayer believes he is in great danger, but the facts do not warrant such belief, it may be murder or manslaughter according to the circumstances, even though the killing is not done in a fit of passion. When the slayer, though acting in self-defense, was not himself free from blame, the crime may be only manslaughter. Allison v. State, 74 Ark. 444, 86 S. W. 409.
According to the evidence for the State, Alexander was shot over the heart, and the bullet ranged downward. The jury might have found that the defendant was not telling the truth when he said that Alexander had knocked him down before he shot him. One of the witnesses for the State testified that Alexander was found lying with his right thumb hooked over his overalls bib and the other hand at his side. There was nothing in either hand. The jury might have found that the defendant shot Alexander while he was reaching his hands in his overalls, as testified to by Frank Petty, but that he shot too hastily. It might also have found that the defendant shot Alexander while they were scuffling around, and that Alexander was merely striking the defendant with the little pistol which was found under his hips, and was not attempting to kill him or do him serious bodily harm. In any event, it cannot be said that reasonable minds could only come to the conclusion that the defendant shot and killed the deceased in order to save his own life or to prevent great bodily harm to himself. It might have found that the parties became angered at each other and entered into a voluntary fight. It is true that the defendant was injured to some extent in the fight, but he was not seriously liurt. When all tlie attendant circumstances are considered in tlie light of each other, it cannot be said that the testimony of the defendant is undisputed that he shot the deceased after he had been knocked down on the floor and before he had gotten up. It will be remembered that the defendant testified that he got the pistol after he had entered the house because he saw that the house had been burglarized. On the other hand, Frank Petty testified that he did not see the defendant get the pistol after they entered the house. The jury might have found that he already had it in his pocket,, and, as above stated, that he either became angry at Alexander and voluntarily entered into a fight with him or that he drew his pistol and shot Alexander too hastily, and was not therefore justified in the eyes of the law.
The evidence was legally sufficient to .support the verdict, and the judgment will therefore be affirmed. | [
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Mehaeey, J.
This is a suit upon a promissory note for $750 and interest. The complaint alleg’ed that on the 15th day of January, 1919; the appellant executed to appellee his promissory note for $750, due 90 days after date and hearing interest from maturity at the rate of 7 per cent, per annum. That on the 17th day of April, 1919, the appellant paid the sum of $13.31 to the appellee for the purpose of paying the interest on said note to July 15, 1919, which payment was accordingly credited on said note, as -shown on reverse side of same. Judgment was asked for $1,128.07. The following is a copy of the note:
“$750 Little Bock, Ark., Jan. 15,1919.
“Ninety days after date we promise to pay to the order of the Farmers ’ Bank of Hardy seven hundred and fifty- and no/100 dollars at the office of the Union Trust Company, Little Bock, Ark., for value received, with interest maturity at the rate of seven per cent, per annum and thereafter until paid at seven per cent, per annum.
“The makers and. indorsers of this note hereby severally waive- presentment for payment, notice of nonpayment and protest.
‘ ‘ Geo. M. Heard,
“S. P. Turner.”
“Due 4-15-19, Little Rock. Due No. 5747.”
On the reverse side of the note is the following:
“April 17,1919 int. pd. to July 15,1919.”
Defendant filed answer, admitting execution of the note, but denying that he had ever made a payment o*f interest to July 15, 1919; denied that there was anything due on the note, and alleged that the cause of action was barred by the five-year statute of limitations. An amendment was thereafter filed to the complaint, stating that on the 17th day of April, 1919, the appellant paid to the appellee the sum of $13.31 for the purpose of paying interest on said note and extending the maturity thereof to July 15,1919, which payment was .duly credited on said note, as shown on reverse side of same.
A. M. Metcalf, cashier of the Farmers’ Bank of Hardy, testified in substance as follows: That the loan to appéllant was made through the Farmers’ Bank at. Hardy. That the note had not been altered nor changed in any manner; that the proceeds of the loan at the time that it was made were credited upon the books to the credit of George M. Heard; that he should judge that the money remained there something like a. week or ten days; that the appellant checked the money out in a lump sum; and that the note had not been paid; that there had been one interest payment;That the note matured on the 15th day of April, 1919, and that he notified the appellant and told him that the note would mature on such and such a date, and, if he desired an extension, the amount that would be necessary for a ninety-day extension, if lie wanted it, that the amount, including sixteen cents for revenue stamiDS, was $13.31. That he thought that the $13.31 was the interest payment from April 15 to July 15, and that he credited that interest payment on the note.
Here the attorney asked the following question: “Then you tell the jury, in response to that letter or notice that you sent- to Mr. Heard stating that the note would mature April 15, and that, if he wanted to extend the maturity date, it would be $13.15 interest plus sixteen cents revenue stamps, and in response to that he sent you $33:31?” The witness answered, “He did.”
On cross-examination Mr. Metcalf said that the loan was made on the very day of the date of the note. That the note was brought into the bank by Turner and Mr. Heard together. He notified appellant that there was three months’ interest due, by letter, but he did not have a copy of the letter. He just used a regular printed pad. He went out of the bank, December 1, 1919, and went back in 1923. S.. P. Turner died Christmas week, 1922. There had been no administration of the estate of S. P. Turner, but the estate is solvent, and the appellee could have collected the note from the estate of S. P. Turner if it had tried.
H. W. Trigg testified that he was assistant cashier of the People’s Savings Bank, and that the appellant had an account in his bank in January, 1919. He had in his possession the ledger sheet for the business of 1918 and 1919. Appearing thereon, under date of April 21, is a debit transaction of $13.31 to appellant’s account, and the record showed that the check was paid on April 21, 1919.
George M. Heard, the appellant, testified that S. P. Turner came to Little Bock on Monday, the 13th, and was in Little Bock, stopping at appellant’s house for several days; that on the 14th appellant took up the question of the advance to appellant, and it was agreed that they would give this note, and they went to the People’s Bank, and the check was passed to appellant’s credit.Appellant asked Mr. Turner for $750; Mr. Turner owed him more than that. Mr. Turner nwed him money. The note was made in Little Bock, on a blank of the Union Trust Company. Appellant and Turner went to the People’s Bank on tlae 15th, and that money was deposited to appellant’s credit, the amount being- $736.85. He asked Mr. Turner to advance bim $750 on wbat be pwed bim, and Mr. Turner told bim that be did not bave the money, and they agreed to give their note to the bank. The court interrupted here and said,That is not evidence at all — wbat Mr. Turner told him.” He does not know whether Mr. Turner carried the note away or whether it went through the bank here, but the proceeds of it were deposited to his credit at the People’s Savings Bank on that occasion; that he did not pay for the stamps. The amount of the interest shows that the stamps were paid for'by somebody else. Mr, Metcalf was mistaken about appellant being in his bank on the 15th of the month. He was -not there on the 15th of the- month; he was here (in Little Bock); the 15th of the month was the day Brough was inaugurated. The transaction was had on the 14th. It was unusually late, and was after banking hours; that the bank gave him a deposit slip dated the 14th, and held the money and it went to his credit the next morning, the 15th, and the next day the note was given for that amount. He was not at Hardy on the 15th. If anything was placed to his credit, somebody else did it. If the money was placed to his credit in the Bank of Hardy, he never did draw it out. He did not do any business with that bank. He thought that he was paying back interest. He never paid any interest on the note. Turner returned the money to him. His idea was that the note drew interest from date. He got $750. He was asked if he did not tell one of his attorneys, two or three weeks before the case was tried, that the note bore interest from date. The court sustained an objection to this question, and appellant excepted. Turner paid him the difference out of his own pocket; he got $750. Mr. Turner asked him to send the interest, and Turner paid it back to him. He didn’t know that there was ever a stamp put on the note. He sent a check for the interest to the Farmers’ Bank at Hardy. At the time that he sent the check for the interest, he had no thought of renewing the note. He was asked to send tlie money up there, and he did it. He did not ask Mr. Metcalf to make that indorsement on the note.' There was no agreement between him and any of the hank officials for the note to he extended.
W. E. Lenon, president of the People’s Savings Bank of Little Bock, produced the ledger sheet of the account of the appellant- with that hank from November, 1918, to March, 1919. That record showed that a deposit of $736.85 was made by the appellant in the People’s Savings Bank on the 15th of January, 1919. This ledger sheet also showed that checks drawn by the appellant were paid on the 15th of January in sums as follows: $15, $58, $120, $5.60, and $20. Witness did not know where this deposit of $736.85 came from, but the deposit slip showed that it was a check. The People’s Savings Bank had always let appellant have money whenever he asked; he could not recall a time when he had not let appellant have money when he asked for it.
S. S. Crawford stated that he was sheriff of Franklin County from 1918 to 1920. S. P. Turner was at Ozark in summer of 1919 or 1920, and while there he handed witness a note for $750 to the Bank of Hardy, and signed by the appellant and S. P. Turner. Witness had the note in his hands, and looked at it.
June P. Clayton, a lawyer, who lives at Ozark, testified that, some time about the time that this note was given, appellant and S. P. Turner were in Ozark negotiating with a client of the witness for- the purchase of about forty-five thousand dollars’ worth of property. They were introduced to the witness by his client, and after that appellant and Mr. Turner made several trips up there, and would often go to Mr. Clayton’s office. On one occasion Mr. Turner was getting some papers out of his pocket, and threw out this note. He commenced to state what Mr. Turner said at the time, but, without any objection being made by the appellee, the court told him that he could not testify to what Mr. Turner said. Witness said: “Not being able to testify as to what he said, I got the impression that the note was paid from the conversation.” The court sustained an objection to this testimony.
Mr. Heard, upon being recalled, said that the check for $120 which was paid by the People’s Savings Bank on the 15th of January, 1919, was for six months’ interest on a note for $3,000 which he owed the bank.
Here the appellant asked permission of the court to read § 704 of Crawford & Moses’ Digest as evidence to the jury, but permission of the court was refused.
Aubrey Turner, a witness for plaintiff, testified in rebuttal, in substance, as follows: That the note had not been out of the bank since he had it until it was brought to Little Rock to be filed in this suit; that the note was the property of the bank at the time that Mr. Metcalf retired, and that witness succeeded him, and that the note was there all the time after that up to September, 1924. That the note had not been paid. He knew that it had not been paid because no record in the bank showed that it had been paid. It had been an asset of the bank ever since witness had been, connected with it. Pie knew that there was a great deal of private dealings between his father and the appellant. He was asked if the appellant had not performed some expensive and valuable services for his father, and the court sustained an objection to the question.
The witness said that he was one of the children and heirs-at-law of S. P. Turner, and that, if the note was not collected from the appellant, it would have to be paid by the witness, as the note was signed by S. P. Turner and George M. Heard.
When asked why he had not brought suit upon the note before, he' said that appellant had brought suit against his father relative to fees which appellant claimed that his father owed him for some trades in land and property, that suit was pending, and appellant apparently was unwilling to have it tried. He did not push it. That the idea that he had in allowing the note to go unsued on was to get rid of this suit that appellant had made against his father. He brought this suit after the other suit had ended. This suit of the appellant against his father was brought a short time before his father’s death.
A. M. Metcalf, being’ recalled, testified in substance ■as follows: Mr. Metcalf introduced a deposit slip made out by himself, which showed’that $736.85 was deposited in the appellee’s bank to the credit of the appellant on the 16th of January, 1919. That money was drawn out of the bank on the 21st day of January, 1919, five days after the deposit was made.
The appellant moved to exclude this deposit slip as evidence, but the court overruled the motion. He did •not have this check upon which the money was drawn out of the bank. It was sent back to Mr. Heard. Witness testified from his knowledge of a custom and not from his remembrance of the transaction. He said that he would not remember making out any particular slip.
. There was a verdict for the plaintiff. Defendant filed a motion for a new trial, which was overruled, and defendant has appealed to this court. Appellee was the plaintiff below, and the appellant was the defendant below. There seems to have been three trials in the circuit court. The circuit court at one time directed a verdict for the defendant. Plaintiff filed a motion for a new trial, which was afterwards granted, and the case was again tried, submitted to the jury, and the jury failed to agree. It was finally tried before a jury, and it found a verdict for the plaintiff.
This note was given to the Bank of Hardy on January 15, 1919, and matured 90 days after date. About the time of maturity plaintiff contends that it sent a notice to the defendant, in which was stated the amount of interest or the amount necessary to pay to extend the note for 90 days. This this notice was sent,, and that the defendant, mailed a check to the Bank of Hardy for an amount sufficient to pay the interest and revenue stamps. If the note was extended at that time, as con tended by the plaintiff, it became dne on July 15, 1919, and it appears that from July 15, 1919, up to about the time this snit was brought there was no effort to collect, no communication between the parties with reference to the note," and the only explanation of this delay on the part of the plaintiff to try to collect the note is the statement that there was a suit brought by the defendant against S. P. Turner, the president of the bank, and that plaintiff wanted to wait until that suit was disposed of before making an effort to collect the note. This, of course, may be true. Whether it is true or not was a question of fact for the jury, and, if submitted to the jury under proper instructions, the jury’s verdict is conclusive.
The testimony is conflicting as to whether the transaction took place in Little Bock or in Hardy. It is unimportant, however, whether the parties were in Little Bock or in Hardy when the note was made, and the testimony as to that is of no importance except as it might throw some light on the question whether, at the time defendant sent the check in April, 1919, there was an extension of the note for 90 days. If there was such an extension, this extension operated as a postponement of the right to bring suit for 90 days, and, if such agreement was made, the cause of action was not barred when suit was begun. If the agreement to extend the note was not made, the cause of action was barred by the statute of limitations. The defendant believes that the note bore interest from date instead of maturity, and testifies that he did not intend to pay interest except what was due up to that time, believing, as he did, that it bore interest from date, and that he did not intend that the note should be extended.
The cashier of the Bank of Hardy testified that he wrote the defendant, stating to him that the note would mature April 15, and that, if he wanted to extend the maturity date, it would require $13.15 interest plus 16e revenue stamps, and in response to this letter the defendant sent a check for $13.31. It also appears from the evi dence that, while the note was for $750, the deposit made in the People's Savings Bank on the date the note was made was for $736.85, indicating that the 90 days’ interest was deducted from the note at the time it was made, and that it therefore bore interest from maturity instead of from date. Whether the note bore interest from maturity or from date, and also whether there was an agreement to extend the note, were questions of fact to be determined by the jury.
It is earnestly contended by the appellant thát there is no evidence that the defendant paid the interest for the purpose of extending the maturity of the note to the 15th of July, and he argues that the nearest approach to evidence on this question is an improper question by attorney for the plaintiff and the witness’ answer to said question. It appears, however, from an examination of the transcript, that the defendant did not object to the question, and the question was asked and the witness answered it without objection on the part of the defendant. Therefore, whether asked in the proper form or not, it went to the jury in the form in which it was asked, without objection. And, while the evidence appears to be very slight, and while there are a number of circumstances that tend to corroborate the defendant, yet, as we have said, these were questions for the jury.
The defendant testifies that the transaction was in Little Bock. The plaintiff’s witnesses testify that it took place in Hardy, and yet the note was on a blank form of the Union Trust Company of Little Bock, and also, on the very day the note was given, the amount was deposited to defendant’s-credit in the People’s Savings Bank in Little Bock. It is also contended by the appellant that the court erred in not permitting the defendant’s attorney, in his opening statement, to state the contents'of part of § 704 of Crawford & Moses’ Digest, and erred in not permitting defendant to, prove this statute or part of this statute to the jury. The circuit court was correct, in holding that this was not proper to be proved in evi- deuce, but that that was a question of law to be given to the jury as an instruction from the court.
It is also contended by tlie appellant that the court erred in not permitting him to prove that he had stated to his attorney, some time before the trial, that he thought the note bore interest from date. And, as a reason for urging this as proper evidence, he states that, as to whether there was an extension of the note, was a question of intention on the part of the defendant. The defendant had a right to prove his intention, but he would have to prove it by competent testimony. The testimony offered was not competent. It was a declaration made by the defendant out of court, and it has been said:
‘ ‘A witness is not allowed to testify as to an unsworn statement made by himself on a former occasion, and declarations of a witness out of court, inconsistent with his testimony, are not admissible to prove the truth op facts stated but only for purposes of impeachment.” 22 C. J. 206.
Again it has been said:
“It is a well established general rule that a statement of a party, whether oral or written, which is of a self-serving nature, is not admissible in evidence in his favor. While such statements are usually made because the declarant is for some reason interested, at the time, in having the fact supposed or believed to be as stated by him, the element of present interest is”not essential, for it has been considered that the rule applies with full force, notwithstanding the fact that the declarant was disinterested at the time when the statement was made. Such declarations are not rendered admissible by having been part of a conversation or correspondence with the declarant’s witness, or with a person sent by the opposite party, or with the adverse party himself, or his agent; by having been brought to the attention of the other party or his agent and commented upon by him; by having been entered up.on a bóok of account or other record; or by being brought out on cross-examination. Such declarations are equally inadmissible when offered by the declarant’s representatives, and the rule of exclusion also applies when such declarations are offered in evidence by third persons on their own behalf.” 22 O. J. 220.
The appellant contends that the court erred in permitting- the indorsement on the note to be read, over his objection, but whether that was proper or improper is immaterial, because the defendant himself testified that he made the payment of interest at the time it was credited on the note. There was no effort to show that there was any indication on the note that this credit had been made on a later date, or that any erasures or changes in the note hadheen made at a later date, or that there was anything suspicious about the manner or appearance of any of these things. The defendant himself testified that he sent the check about the time the note matured, that he got the amount of it from the record he had, but whether he got it from that or whether the cashier wrote to him, as a matter of fact, he did pay the interest at that time.
Turner and the defendant were joint makers of the note, and the holder of the note would have a right to sue both or either, and the fact that one of them got the money or that one of them was surety would not be a defense when sued by the holder of the note. As between Turner and Heard, the evidence offered as to the agreement between them would be proper. It is true that the contention of appellant was that Turner had paid the note, but even the offer to prove that Turner had agreed to pay it would not be a defense, and if he could prove that Turner had agreed to pay the note it would not be a defense when the defendant was sued. Nor would this proof, if made, have shown Turner had actually paid the note. Defendant was permitted to prove, and did prove, that Turner had the note in. his possession some time in the summer of 1919 or 3920, but this evidence was before the jury, and the jury evidently considered it.
The defendant offered to prove by witnesses the statements of the president of the bank that the note had been paid. We think, under the circumstances and evidence in this case, that this evidence should have been admitted. The only disputed points in the case that are material are, first, whether the note was extended, and second, whether it was paid. The plaintiff proved that the bank had sent Heard a notice which stated, in effect, if he wanted to extend the time of payment for 90 days, to send $13.31, and that Heard sent that amount of money. This testimony was admitted without objection, but, if objection had been made to it, it could not have been introduced unless the plaintiff had served notice on the defendant to produce the letter. And this is the only testimony introduced tending to show that there was an agreement to extend the note 90 days, and the defendant swears positively that he never made any such agreement.
It has been said: “Bjit to exclude relevant evidence by any positive and arbitrary rule must be not only absurd in a scientific view, but, what is worse, frequently productive of absolute injustice. It may safely be laid down that the less the process of inquiry is fettered by rules and restraints, founded on supposed considerations of policy and convenience, the more certain and efficacious will it be in its operation. Formerly the very means devised for the discovery of truth and advancement of justice were not unfrequently perverted to- the purposes of injustice, and made the instruments of the most grievous and cruel oppression. * * * The admission of every light which reason and experience can supply for the discovery of truth, and the rejection of that only which serves not to guide but to bewilder and mislead, is the great principle that ought to be the foundation of every system of evidence. Common experience rather than technical rules should be adopted as the test. Mercantile and industrial life, producing, as they do, nearly all the transactions of men that come before the courts of law and equity, are essentially practical. * * * The courts need not discredit what the common experience of mankind relies upon. Judge Cooley once said that ‘courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon.’ Lastly, whenever there is any serious doubt in the law as to whether certain proof is or is not permissible, a safe rule to pursue is to permit the testimony to go to the jury.” 10 R. C. L. 861.
The proof shows that the bank, the plaintiff in the case, was a domestic corporation, that Turner was its president, and that all the dealings had with reference to the note or with the bank by the defendant were made through the president. He loaned the-money to Heard for the bank, and his declaration that the bank had received payment should have been admitted.
This court has said: “Wooten, who was the president when the note and mortgage were executed by Kirby to Maynor, testified that he heard Maynor tell Kirby that he would give .him credits later on in the fall in settlement of what was owed to him (Kirby), and directing Kirby to make up a list. This was competent testimony, and tended to show that, at the time the note and mortgage were executed, Maynor acknowledged that Kirby had an unsettled account against him for which Kirby was entitled to credit.” Kirby v. Wooten, 132 Ark. 441, 201 S. W. 115. See also Yarbrough v. Arnold, 20 Ark. 597.
Where á president of a corporation is authorized to manage a particular business matter, his statements in reference thereto are admissible. See Lowe v. Yolo County Consolidated Water Co., 108 Pac. 297, 157 Cal. 503; Holmes v. Turner-Falls Co., 6 L. R. A. 283, 150 Mass. 535, 23 N. E. 305.
It must be remembered that Turner was not only the president of the bank, but that he personally attended to this matter. And it was about this particular transaction that defendant asked permission to prove his declarations. In addition to that, he had the note in his possession. Speaking of declarations of officers of corporations, the Minnesota court has said: ,
“Such statements are admissible as against the corporation only when made in the course of the perform- anee of their authorized duties as agents. So that the statements constitute a part of their conduct as agents — ■ a part of the res gestae.” Longman v. Anderson, 160 Minn 15, 199 N. W. 732.
The Texas court has said: “According to the greater weight of authorities ’ the same rule is applied to the competency of the declarations of executive officers, managers and general agents of a corporation, when such declarations are shown to be used against the corporations they represent. The apparent scope of their authority is broader than in cases of special or ordinary agents, but their declarations, to be competent as evidence against the corporation represented by them, must, nevertheless, be made while' acting within the scope of such apparent authority and with the connection of the performance of some duty to which said declarations are pertinent.” Jones on Evidence, vol. 2, 1800. Southern Surety Co. v. Nalle & Co. (Tex. Conn. App.), 242 S. W. 197.
Of course the declaration must be made in the agent’s official capacity. This feature of it was not sufficiently developed to know whether he would make it in his official capacity or not. One witness stated that he was acting individually, but we think the defendant should have the right to show that he was the president of the corporation, that he attended to this particular, transaction, and be permitted to show whether or not the declaration was made as president of the corporation. Turner, after the time when it was alleged he made the declaration, died, and of course could not be had as a -witness. It is said by many authorities that testimony as to the declaration of deceased persons is the weakest kind of testimony. But its weight would be for the jury, and, in view of the facts that the note was in Turner’s possession, that the bank held this note all these years without making any effort to collect, and the undisputed proof that the money was gotten by Turner to pay Heard a debt or a portion of a debt that he owed him, we think that this testimony should have been admitted, and, for the error in excluding the above testimony, the case is reversed, and remanded for a new trial. | [
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Kibby, J.
The only question presented by this appeal is whether or not the indemnity insurance company is liable on the policy for the payment of damages incurred by the insured in the operation of his automobile truck being driven, at the time of the injury, by a boy eleven years of age.
The material parts of the policy are:
“The Ætna Casualty & Surety Company does hereby insure the assured, subject to all special provisions contained herein and the general provisions indorsed herein, which are hereby referred to and made a part of this policy. G-eneral provisions: 9. Limitation of use: Unless otherwise provided by an agreement in writing contained herein, or added hereto, the company shall not be liable under this policy for any loss or damage: *' * * (c) while being’ operated in any race or speed contest, or while being- operated by any person in violation of law as to age, or by any person under the age of- sixteen years.”
It appears from the testimony' that the truck was being operated on the day of the injury by Harry Smith, appellee’s regular driver, who was an experienced driver of full age; that he had some duty to perform inside of the Cleburne Hotel, and left Zack Williams, an eleven-year-old boy, in charge of the truck, to guard the contents and keep any one from getting anything out of it. Some one came along and ordered the boy to move the truck, and he undertook to do it,- and drove or backed it into a store and broke the plate glass front thereof. The boy had not been employeed by appellee and had no authority from him or the driver to move the truck.
In reporting the accident to the insurance company, appellee stated * * * “Person operating it, Zack Williams, age 11. * * * Describe fully place and cause of accident or loss: Truck had been parked on Porter Street next to postoffice, by Harry Smith, driver, and left boy in truck while he went in barbershop. The boy was- told by some one passing to move the truck, and when he started it he couldn’t stop it, and ran into plate-glass window in building owned by B. L.-Lyford, at No. 212 Porter Street.” * * *
The owner of • the building recovered judgment against appellee for the damage for breaking the glass, $119- and costs, and appellee in this suit recovered judgement against the insurance company for the amount of the said damages and costs, $131.20, from which this appeal is prosecuted.
It is earnestly urged by the insurance company'that it is not liable in any event under its policy to indemnify appellee for damages caused by his truck while being operated by a person under 16 years of age. The policy does expressly provide that the- company shall not be liable under it for any loss or damage while the automo bile truck described therein is operated by any person under the age of 16 years.
It will not be questioned that the parties can make any contract of insurance not prohibited by law, and there appears to be good reason why an indemnity company would not be willing to assume the risk for damages resulting from cars being driven or operated by persons under 16 years of age.
The testimony shows that, although the truck was being operated on the day of the injury by appellee’s employee, an experienced driver of full age, it was left by him in charge of the boy, who attempted to move it, at the suggestion of some other person, and who did start the truck and drive or back -it into the store, causing the damage thereto. Such action was necessarily operating the truck at the time of the injury, within the apparent and obvious meaning of the policy exempting or excusing the company from liability for damages caused while the truck was being operated by any person under 16 years of age, in the opinion of the writer, concurred in by Justices Wood and Smith Brock v. Travelers’ Ins. Co., 91 Atl. 279, 35 A. & E. Ann. Cas. 635, 88 Conn. 308, and Hoosley v. Union Indermnty Co., 102 So. 561, 137 Miss. 561. The majority of the court is of the opinion, however, that, since the insured had employed a skilled and experienced driver of full age to operate the truck, and had no information that he had left it in care of the eleven-year-old boy while in the discharge of his regular duties, he should not be held responsible for any damag'es resulting from the moving of the truck by the boy, who had no authority from him to either watch the truck or move it.
The purpose in taking out the insurance was to provide indemnity against damages caused by the operation of the truck, of course, and, since it was left standing temporarily by the regular driver, while he went into the hotel or barber shop to attend to some duties there, and since the boy who was requested to watch the truck had no authority whatever from him or his employer to move it, the owner of the truck is no more liable to the payment of damages caused by its unauthorized movement, nor the insurance company any less liable to the payment of indemnity therefor, than if the truck had been accidentally started by some other car bumping against it and the damage thereby caused; in other words, that, within the meaning of the provisions of the policy, the truck, while standing at the curb until the driver could discharge the necessary duties inside the building, was being operated by him within the meaning of that clause in the policy. Commonwealth v. Henry, 118 N. E. 224, L. R. A. 1918B, 827, 229 Mass. 19.
The judgment is accordingly ¡affirmed. | [
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Mehaeey, J.
This is an appeal from an order of the chancery court confirming a sale of - lands under decree of -foreclosure. The attorney who broug'ht the Suit to-foreclose the mortgage lived at Séarcy, Arkansas, and learned from the clerk of the chancery court in Saline County that no answer had been filed, and that the court would meet on December 18, 1925. He prepared a decree and mailed it to the clerk, and wrote to the chancellor that he would not be present when the chancery court met at Benton, but that he had prepared and sent a decree to the clerk, and, if no answer had been-filed on the 18th, to let the decree be entered.
The decree prepared by the appellant’s attorney provided for the sale of the land if the amount due was not paid within ten days. The attorney stated in his letter to the chancellor that he expected to leave for California about the 15th of December, and therefore would not be present when court met on the 18th. When court met on the 18th of December a decree was rendered, and the court appointed the clerk commissioner to make the sale, and, among- other things, the decree provided that, unless the amount was paid within ten days, the property should be advertised and sold, and, following the directions in the ■ decree, which, as we have ■ said, was prepared by the attorney for the plaintiff, the commissioner advertised and sold the land, and it was purchased by appellee for $200.
Tlie undisputed testimony sliows that the attorney had had other foreclosure suits an Saline County, and, when he did not attend the sale himself, he communicated with the clerk to hid -the property in for' his client, the plaintiff. But in this instance nóthing was said to the clerk about it, and all he knew about the wishes of the attorney for the plaintiff was what.he learned from the decree prepared by plaintiff’s attorney.
There was some testimony that the land was worth $5 an acre. There were 71 acres, and, at $5 an acre,' it would have brought $355. The testimony, however,- also showed that the witnesses, did not know of any sales of lands like this, and the undisputed testimony showed that farms in that section of the county had depreciated in value and many of them had been abandoned.
Plaintiff’s attorney was not only out of the State, but the plaintiff. was a nonresident • and knew nothing about the sale. In the attorney’s letter to the chancellor he did hot make any request to postpone the sale and did not make any to the clerk, nor did he make any suggestion that his client wanted to buy or that the clerk should bid it in for his client. In fact he made no request or suggestion either to the chancellor or to the clerk about a postponement of the sale or a purchase or bid by his-client. He had asked in the same letter for' the postponement of several other cases, but made no suggestion about this ease.
The court, of course, had a right to assume that, when he had prepared the decree, providing* for a sale within ten days, had suggested the postponement of his other cases, and had' given no direction at all about this sale, except' what was in the decree prepáred by him, he desired the sale made' if the payment was not made within ten days. If there hád been any misfortune or any unforeseen thing* that prevented him from being present, or if there was any evidence of fraud on the part of the defendant or the purchaser, the chancellor would have been justified in setting aside the sale, but there was nothing* of this sort. The .chancellor heard the testimony and confirmed the sale, although the testimony shows that. the. price was probably somewhat smaller than the actual value. The land was advertised and exposed .to. .sale by the commissioner in accordance with the decree of the court. .■ ...
This court has said:
“When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged'against it, the faith of the court is pledged to ratify and perfect it. • * *■ * There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well-known practice is in accord, with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry, to' the highest bidder. It is. of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to discourage and prevent bidding than a' judicial' determination that such a bidder may be deprived of the advantage of his accepted bid whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial. ” George v. Norwood, 77 Ark. 216, 91 S. W. 557, 113 Am. St. Rep. 143, 7 Ann. Cas. 171.
It has been repeatedly held by this court:
“That, where due and legal notice of the time, terms and place of a judicial sale of land has been given and there is no fraud and unfairness in the conduct of the sale, confirmation of it will not be refused on account of its being at a grossly inadequate price.” Frye v. Street, 44 Ark. 502; Wells v. Lenox, 108 Ark. 366, 159 S. W. 1099, Ann. Cas. 1914D, 11; Hershy v. Duvall, 47 Ark. 93, 14 S. W. 469.
Again it has been held by this court:
“Mere inadequacy of price is not ground for setting aside a judicial sale, unless it is so gross as to raise a presumption of fraud or unfairness.” Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093.
The attorney for the plaintiff very probably intended to communicate with either the chancellor or the clerk, and either request that a bid be put in for his client or that the sale be postponed, but he neglected to do this. He says it was his usual practice, but does not give any reason why he failed to let the chancellor or clerk know what his wishes were in this case. He says that he thought the sale would not be made until he returned, and, although he did not say so, he probably overlooked the fact that he himself had provided in the decree he prepared for a sale within ten days from the date of the decree. If there had been any fraud or any unfairness proved it would have justified a refusal on the part of the court to confirm the sale. But, as there was none, the chancery court was correct in refusing to set aside the sale, and the decree is therefore affirmed. | [
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Wood, J.
The prosecuting attorney of the Ninth Judicial Circuit of Arkansas, through his deputy of the county of Pike, filed an information with the mayor of the towii of Delight, accusing Jesse Hill- of the crime of an aggravated assault, alleged to have been committed as follows: “The said Jesse Hill, in the county and State aforesaid, on the 21st day of January, 1927, did unlawfully strike and hit the person of H. D. Dean with a deadly weapon, with the intent to inflict upon his person great bodily injury, no considerable provocation appearing, against the peace and dignity of the State of Arkansas.”
The mayor issued the warrant, the defendant was arrested and tried in the mayor’s court, by a jury, which returned the following verdict: “We, the jury, find the defendant guilty of assault, and assess his fine at $1000 and costs.”
• The defendant appealed to the circuit court. In that court he demurred to the information on the ground that the mayor was without jurisdiction, that the mayor and marshal of the town and all of the jurors were interested in the conviction, and that his conviction before the mayor was therefore without due process of law and in violation of the 14th Amendment to the Constitution of the United States as well as article 2 of the Constitution of the State. The demurrer was overruled by the circuit court, and the defendant was tried by the jury in that court, and the following verdict was returned: “We, the jury, find the defendant guilty of assault and .battery, and assess a fine of $100.”
In the circuit court the defendant presented prayer for instruction No. 7, which, in effect, told the jury that the defendant had a right, under the law, to protect his person against the attacks of the prosecuting witness; and, if he only did enough to protect his person or only what any prudent person would have done for the protection of his person under the circumstances, it was the duty of the jury to acquit him. The defendant also presented prayer for instruction No. 8, which, in effect, told the jury that the defendant had the right to go before a justice of the peace of his township and offer to submit, and that the law favors pleas of guilty in small offenses, and, if the jury found that the defendant did submit or surrender himself in the proper court and offered to submit, and that there was no collusion between him and the justice, and that the irregularity, if any, was the fault of the justice and not that of the defendant, he had a right to go before the justice, and, unless the jury found him guilty of a greater offense than he offered to submit to, the jury should acquit him. The defendant’s prayer for instruction No. 9 would have told the jury that, under the charge, it could only consider, the guilt or innocence of the defendant for assault and battery.
The court, over the general objection of the appellant, refused the above prayers for instructions and gave instructions which, in effect, defined in the language of the statute the offenses of simple, assault, assault and battery, and aggravated assault, and the punishment for each, and also instructed the jury that no words, however opprobrious, would justify an assault, and that a per son was justified in using snch force as was necessary to protect himself against an assault made upon him.
The court also gave the usual instructions, to which the defendant offered no objection, giving the defendant the benefit of the presumption of innocence and reasonable doubt.
There is a bill of exceptions in the record in which the above prayers for instructions were set forth, but it does not set out any testimony that was adduced at the trial. It must be presumed therefore, in the absence of a bill of exceptions setting forth the evidence, that there was testimony to justify the court in its rulings upon the prayers for instructions. Moreover, since the jury found the appellant guilty only of assault and battery and thus acquitted him of the charge of aggravated assault, the appellant could not have been prejudiced by the instructions submitting such charge. There is no testimony in the record upon which to bottom appellant’s prayer for instruction No. 8. The court therefore did not err in refusing such prayer.
The appellant contends that the mayor had no jurisdiction on the ground that he and the jury and the officers had a pecuniary interest in convicting the defendant. To sustain this contention appellant relies upon the decision of the United States Supreme Court in the case of Tumey v. Ohio, 273 U. S. 510, 47 S. Ct. 437, 71 L. ed. p. 749. This case has no application to the facts of this record, for the reason that the statutes of Ohio, which were reviewed by the Supreme Court of the United States, are entirely different from the statutes of our State. The statutes of Ohio under consideration by the Supreme Court of the United States did not grant the defendant convicted before, the mayor’s court the right of appeal to a higher court, where a trial de novo was to be had in the higher court. But the appeal under the Ohio statutes was merely for the purpose of review, whereas, on appeal from a judgment of conviction for misdemeanor in óur State, from the lower court to the circuit court, the trial is de novo, that is, as if no judgment had been rendered, and the accused is to be tried for the same offense. Section 3387, C. & M. Digest.
Without entering upon a discussion of the decision of the Supreme Court of the United States, supra, the following language of Chief Justice Taft shows clearly that that case has no application to the case at bar:
“The trial is to be had before a mayor without a jury, without opportunity for retrial, and with a review confined to questions of law presented by a bill of exceptions, with no opportunity by the reviewing court to set aside the judgment on the weighing of evidence, unless it should appear to be so manifestly against the evidence as to indicate mistake, bias or willful disregard of duty by the trial court.” Under our law the mayor of a corporation is given the same power and jurisdiction of a justice of the peace, in all matters,. civil and criminal, arising under the laws of the State, to all intents and purposes whatever, and for crimes and offenses committed within the limits of the corporation his jurisdiction is coextensive with the county, and appeals may be taken in the same manner as from a decision of -the justice of the peace. Section 7676, C. & M. Digest, as amended by act 368 of the General Acts of 1921, page 407.
In Marianna v. Vincent, 68 Ark. 244-248, 58 S. W. 251, we said: “The mayor, having once obtained jurisdiction, the case should not have been subsequently dismissed for want of jurisdiction by the circuit court, merely on mistake of law made by the mayor, or for any other irregularity, but it should have proceeded to try the case de novo and rendered such judgment as was proper therein.” See also Laur v. State, 94 Ark. 178, 126 S. W. 840; Drifoos v. City of Jonesboro, 107 Ark. 99, 154 S. W. 196.
In 16 R. C. L., p. 209, par. 26, it is said: “It is a general rule that the right to trial by jury is not impaired where, though no jury be allowed in the court in which the action was originally tried, an appeal lies to a court in which a jnry trial may he had, if no conditions are imposed.”
Under our law neither the presiding judge at the trial in the circuit court nor the trial jury are interested financially in the result of a criminal trial, for the reason that they receive their compensation regardless of whether the accused he acquitted or convicted. It follows that the defendant was not deprived of any of his rights under the Constitution of the United States or of this State.
The judgment is in all things correct, and it is therefore affirmed. | [
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Mehaffy, J.
The plaintiff, who is the appellee here, is 'successor as State Bank Commissioner to Charles McKee, who, on the 5th day of September, 1925, filed in the Jefferson Circuit Court the following complaint:
‘ ‘ The plaintiff, Charles McKee, State Bank Commissioner in charge of the affairs of the Citizens’ Bank of Pine Bluff, Arkansas, for cause of action against the defendant states:
“That the said State Bank Commissioner, on the 5th day of January, 1925, took charge of the affairs of the Citizens’ Bank of Pine Bluff, Arkansas, under and as provided by the-laws of said State of Arkansas; and, as provided by the laws of said State, he, on the 7th day of January, 1925, made an assessment against the stockholders of said bank to the amount of one hundred per cent, of their respective holdings of the capital stock therein; that the defendant, Dave Berlin, as executor of the will of Meyer Berlin, deceased, at said times owned and held capital stock of said bank to the amount of $550; that said stock to the amount of $550 was owned and held bv Meyer Berlin’, who died on January 5, 1924; that the defendant, Dave Berlin, was by the probate court of Jefferson County, Arkansas, on the 24th day of Janu ary, 1924, duly appointed executor of the will of said Meyer Berlin, deceased, and is now the duly qualifíéd and acting executor of such estate; that said' amount of $550 has been demanded of him on account of the indebtedness herein stated, but he has failed to pay same.
“Wherefore plaintiff prays judgment against said Dave Berlin, as executor of the will of Meyer Berlin, deceased, in the sum of $550, with interest from January 7,1925, until paid, and all costs herein expended, and for all other relief. ’ ’
The appellant, defendant below, filed the following answer: “Comes the defendant, Dave Berlin, as executor of the will of Meyer Berlin, deceased, and for answer to the complaint of plaintiff herein, admits that he is the executor of the will of Meyer Berlin, deceased, as alleged in plaintiff’s complaint, but he denied flat, as such executor, he holds capital stock of the Citizens’ Bank of Pine Bluff to the amount of $550, ■ad denies that the said Meyer Berlin held such stock at the time of his death. He denies that any demand has been made upon him as such executor, by the plaintiff, as State Bank Commissioner, to pay said assessment, and denies that the said Bank Commissioner is entitled to collect from the estate of the said Meyer Berlin any sum whatever by reason of any stock so alleged to have been owned or held by the said Meyer Berlin at the time of his death. Having fully answered, defendant prays to be dismissed with his reasonable costs.”
The defendant also filed the following motion to non-suit plaintiff: “Comes Dave Berlin, as executor of the will of Meyer Berlin, deceased, and moves the court to dismiss the complaint, of plaintiff, Loid Rainwater, filed against him as executor of the will of Meyer Berlin, and for cause states that said demand has not been verified as required by §§ 101,102,103 and 104 of Crawford & Moses ’ Digest of the Statutes of Arkansas. And this defendant moves to dismiss said complaint because of such failure, as provided by § 104 of said Crawford & Moses’ Digest of the Statutes'of Arkansas; that defendant have his costs herein expended, and all other and further relief.”
There was a judgment for the plaintiff. Defendant filed motion for new trial, which was overruled, and appeal was prayed to the Supreme Court. The defendant was given time to file hill of exceptions, which he filed within the time.
The plaintiff introduced the assessment, showing that the capital stock was assessed $300,000, or, rather, an assessment of that amount was made against the shareholders. The assessment was made on January 5, 1925. Notice of said assessment was also introduced. Said assessment was to he paid on or before January 8, 1925.
It was agreed by counsel that Dave Berlin is the executor of Meyer Berlin, deceased, and is duly qualified as the executor of the will of Meyer Berlin, deceased, qualified January 24, 1924, and has continuously been and acted as such executor, since that time.
R. L. Byrd testified, in substance, that on the 5th day of January, 1925, and prior thereto, he was in the employ of the Citizens’ Bank of Pine Bluff, in the note department, and assistant cashier, and he was familiar with the stock books in the bank, and that he would recognize them. He stated that the books he held in his hand were the stock records of the Citizens ’ Bank of Pine Bluff as regularly kept at the close of business. That it showed certificate No. 351, issued to Meyer Berlin November 17,192.1, and his receipt, November 17,1921, signed by Meyer Berlin. That there were 22 shares of the stock, of the par value of $25 per share; showed that, after the stock had been delivered to Meyer. Berlin, it had not been transferred; that, so far as the record showed, there had never been any transfer made. The Meyer Berlin to whom this stock was issued and who signed the receipt died about January, 1924; was familiar with Meyer Berlin’s signature, and stated that the signature on the receipt for the stock on the record' book was that of Meyer Berlin. It is the same Meyer Berlin of whose estate Dave Berlin is executor. The date of the certificate is November 17, 1921, and receipt was issued the same day. The record of transfers of stock was kept by Mr. H. B. Strange, cashier. Witness said he did not keep them; that they might have 'been transferred upon the record of the county court in the county clerk’s office, so far as witness knew; that all he knew was the record which he had before him, and which he did not keep; that the book was kept by Mr. Strange, and the record was in Mr. Strange’s handwriting, as far as he could tell; that the record which he had in his hands is simply the stock certificate book, and that they also keep a record or stock ledger, which shows any transfer of stocks. Mr. Strange had charge of it, and kept all records about which he had been testifying, and that they were in his custody until the failure of the bank. Since that time it has been in the hands of the Bank Commissioner. It was turned over about the 8th of January. The record passed into the hands of the present Bank Commissioner August 8,1925. The bank failed in January, 1925.
Witness testified that he had been in the Bank Commissioner’s employ since January 5, 1925; that he was employed by Mr. Majors a few days after the bank failed.That he was pretty familiar with the records of the Citizens’ Bank, and there are no other records relative to keeping and transferring stocks except the one he has. Immediately after the closing of the bank, while he was still in the employ of the bank, he became in the employ of the State Bank Commissioner, and had.access to the books by virtue of his employment. Books had been kept in charge of the deputy bank commissioner, who had charge of the Citizens’ Bank. He has had access to them all that time. There are no other records in the hands of the State Bank Commissioner or his deputies relative to the stock. That his duties in the office of the Bank Commissioner were keeping the books.
Mr. H. F. Grigsby testified in substance as follows: That he was deputy bank commissioner in charge of the affairs of the Citizens’ Bank, and that he became snch August 8, 1925; that he had charge of the records and affairs of the bank since. He has stock certificate ledger and ledger of the issuance of stock certificates' kept by the bank, as continuously shown from transfer to transfer. The record shows whom these stocks were with at the time of the failure. Meyer Berlin was a stockholder at that time, the holder of certificate No. 351, which was 22 shares of the stock at the par value of $25 each. There is no record of any transfer since this transfer was issued. An assessment was made on it, but' no portion of it has been paid. There is an assessment against, the stock of the par value of $550, and it remains unpaid.
Witness stated that he had been testifying from the stock certificate ledger of the Citizens’ Bank of Pine Bluff. The stub of the actual transaction, certificate 351, 22 shares of stock issued in the name of Meyer Berlin, November 17, 1921, signed on the line, Meyer Berlin, canceled certificate 335, the new one issued, 351. No. 335 is the certificate from which 351 was issued. That he has read the stub. Record shows certificate 335 is canceled, which was drawn in the name of H. B. Byrd for 270 shares. Out of this 270 shares, 22 shares were transferred to Meyer Berlin. He said that he was just testifying what the record shows. The date of the certificate to Byrd was April 7, 1921. Witness stated that he became deputy bank commissioner August 8, 1925. The transaction that he had testified about occurred a considerable time before he became deputy bank commissioner; that none of them was in his handwriting; that he knew nothing about them at all except as they appeared in the records of tfie Citizens’ Bank as it came into his hands. .He has stock-book in his possession as deputy bank commissioner. This record shows the stock belongs to Méyer Berlin.
R. L. Byrd, being recalled, testified in substance that the book he had in his hand was the stock ledger of the Citizens ’ Bank. That it was regularly kept to the close of the business while the Citizens’ Bank was in business. That it was in the hands of H. B. Strange, who was the cashier. He is now someAvhere in Florida. This is the same Meyer Berlin that witness testified about, who died in January, 1924, and Dave Berlin was appointed executor. Witness stated that the records he has testified about are the only ones kept by the bank relative to stock issued and transferred. Witness did not keep those records.
Dave Berlin testified in substance that he was the executor of the estate of Meyer Berlin, who was the owner of considerable real estate in ' Pine Bluff. He doesn’t remember how much personal property; doesn’t remember what the valuation was when he paid the inheritance tax. Whatever the record shows, that is it. He had more than $10,000 at the time of his death, above his liabilities. There was more than $2,000 in Dave Berlin’s hands January 7, 1925. Witness does not remember how much property or money he got out of the estate. He gave it to his sister, and did not get anything; gave everything’ to the sister. It was admitted that the deed from Dolly Adelburg and Dave Berlin to Bessie Berlin was after September 5, after the summons was served in this case. The property that was conveyed after the service of the summons was worth more than $2,500.
At the close of the evidence the court rendered judgment for the amount sued for.
Appellant’s' first contention is that the court erred in admitting testimony which, in the form presented, was claimed to be secondary, not the best evidence.
We cannot agree with counsel in this contention. The witness .sufficiently identifies the books of the bank, and these are not only required to be kept, but the statute provides that the stock of every bank shall be deemed personal property, and, in case of sale, shall be transferred only on the books of such corporations in such form as the Commissioner shall prescribe. The act of 1923 amended some sections and repealed others, but it did not repeal the above section, which is § 686 of Craw ford & Moses’ Digest. But in act 627 of the Acts of 1923 it is expressly provided: ’“The stock of every such 'corporation shall be deemed personal property and be transferred only on the books of such corporations in such form as the directors-may prescribe.”
Where a record of the acts and proceedings of a private corporation is required by law to be kept, and even where such a record is actually kept, although not required- by law, such record constitutes the best evidence of its contents, and parol evidence is not admissible if the record is accessible.
“Dyke Brothers, a partnership composed of two brothers of that name, were recorded as being owners of 11 shares of stock. Their contention is that certificates had never been issued to them, and that they were not in fact stockholders. We are of the opinion, however, that there is enough evidence-to establish the fact that they were stockholders, and, that being true, there is no effort to show that that relation was severed prior to the default of the bank in regard to the public funds. The list of stockholders certified by the secretary of the corporation,- on file in the. clerk’s office, is competent evidence to show who were the stockholders and is prima facie evidence of that fact.. * * * Mr. Weir was certified on the list heretofore referred to as the holder of 3 shares of stock. He testified that he subscribed to the shares of stock and gave a check in payment of the amount, but the shares were never actually delivered to him. The evidence was, we think, sufficient to establish’ the fact that he was in fact a stockholder.” Bank of Midland v. Harris, 114 Ark. 344, 170 S. W. 67, Ann. Cas. 1916B, 1255.
“No transfer of such stock will secure it from attachment until it is entered upon the books of the corporation, showing the names of the parties, the number of shares, and the date of the transfer. * * * The plaintiffs undertook to show that the transfer to the defendant was so entered upon the books of the People’s Bank. For this purpose they offered the deposition of Sumner Percival, tlie cashier, not taken upon written interrogatories, in which he testified that he made the transfer on the hooks of the hank. The defendant objected to the admission of this portion of the deposition, contending that the only- proper evidence would be the books. But the presiding judge' admitted it, and ruled that it was legal evidence of transfer without the production of the books, sufficient for the consideration of the jury. The record of the transfer could not thus be properly proved by parol testimony. The verbal statement of the cashier was inadmissible, and, if it was incumbent on the plaintiffs to prove that the transfer was recorded on the books of the bank in order to maim tain their action, a new trial must be granted. * * * A transfer of bank stock is not thus valid until recorded. Until that is done, a creditor may attach it without alleging or proving fraud.” Scowhegan Bank v. Cutler, 49 Maine 315.
In speaking of books and records of private corporations as evidence, it is said:
“Again, such records are received in. evidence generally to prove corporate acts of the corporation,' such as the list of its stockholders, its by-laws, the formal proceedings of its board of directors, and its financial conditions when its solvency comes in question.” 10 R. C. L. 1169. '
R. L. Byrd testified that he was assistant cashier of the bank, familiar with its stock-books so that he would recognize the books, and the book he had in his hand* was a stock record of the Citizens’ Bank of Pine Bluff, as regularly kept at the close of the business, and then testified about the record showing Meyer Berlin to be a stockholder. Also stated that he had seen the book time and again, and he knew it to be the stock certificate book. He not only testified that the record showed that this stock was issued to Mr. Berlin and Mr. Berlin had given his receipt for it, but there was no record that it had ever been transferred.
There is no controversy in this ease about the books being properly kept, and Mr. Byrd testified that they were regularly kept, and that they showed Berlin to be a stockholder, and did not show any transfer of any such stock, and, in addition to that, the undisputed proof showed that Berlin himself signed a receipt for the stock. The certified copy of the assessment was properly introduced. Crawford & Moses’ Digest, § 667.
. The next contention of appellant is that the complaint should have been dismissed because there had been no compliance with § 100 of Crawford & Moses ’ Digest, providing how a claim or demand should be exhibited against an estate, and § 101, which provides that the claimant shall also append to his demand an affidavit, etc. Section 100 provides any person may exhibit his claim against any estate as follows: “If the demand.be founded upon judgment, note or written contract by delivering to the executor or administrator a copy of such instrument with the assignment and credits thereon, if any, exhibiting the original, and, if the demand be founded on an account, by delivering a copy thereof, setting1 forth each item distinctly and the credits thereon.”
It has been said by this court that “the term ‘demand’ is comprehensive, and includes all claims capable of assertion against the estates of deceased persons, whether arising out of contract or tort, and whether the suit to establish the same is begun by ordinary action or in the probate court.” Haden v. Haden, 105 Ark. 95, 150 S. W. 415.
The cause of action in this case, however, does not arise out of contract or tort, but the cause of action is purely statutory. Moreover, this is not a claim against the estate of Meyer Berlin, deceased, in the sense of the statute providing for filing claims against the estates of deceased persons. The statute creating this liábility provides: “That persons holding stock as executor, administrator, guardian or trustee shall not be personally liable as stockholders, but the estates and funds in their hands shall he liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust fund would he if living and competent tp. act and hold the estate in his own name.”
It will be observed that the above statute provides or creates a cause of action against administrators, and they may be required to pay out of the estates or funds in their hands. It might happen many times that a person owning stock in banks would die, administration be had on their estates, and the time for filing claims expire before the bank failed and before any cause of action accrued. If the filing of the'claim, as provided by § 100 of Crawford & Moses’ Digest, should be held applicable in a case like this, then § 97 of Crawford & Moses’ Digest would also be applicable. And a portion of one paragraph of that section provides: “and all demands not exhibited to the executor or administrator as required by this act before the end of one-.year from granting of letters shall be forever barred.”
Evidently the Legislature, in passing the act under which this suit was brought, had all those things in mind, and it therefore provided that suits might be brought against administrators for the purpose of reaching estates or funds in their hands. This claim did not arise during 'the lifetime of the owner of the stock. There was no claim whatever against him nor against his estate at the time he died. The liability arises when the assessment is made, and in this case it was practically a year after the death of Mr. Berlin. ■ If the administrator, under the directions of the probate court, liad sold property or compromised a debt, or in any other way had come in possession of bank stock and held it as administrator, he would be liable under the statute, although the deceased had never owned the stock. It ivas therefore not a debt of the testator. He never owed it. There was never a time during his life when he was liable.
In a case tried in the Federal Circuit Court of South Dakota it was said:
“While it is insisted that the claim is barred, it is as earnestly insisted that proper practice requires that.the' question whether the claim is barred or not should be left to the county court of Minnehaha County to determine, following the practice in Wickham v. Hull, 60 Fed. 326. If this court was of the opinion that the decision of this case required the court to construe a State statute, it would do so; but, it being of the opinion that it is not necessary so to do, it will proceed to dispose of the case upon the only grounds that to it seem tenable. Any theory upon which it is sought to maintain that the claim here attempted to be enforced is an ordinary claim against the estate of Charles C. Carpenter, deceased, to be presented and allowed in the manner required by the laws of the State of South Dakota, and, if not so presented and allowed, to be forever barred by the statute of nonclaim of said State, involves a total misconception of the object, meaning, and effect of §§ 5151, 5152, Bev. St. U. S'.
“Section 5151 proyides: ‘The shareholders of" every national banking association shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.’
“Section 5152 provides: ‘Persons holding stock as executors, administrators, guardians or trustees, shall not be personally subject *to any liabilities as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name.’
“Now, it was not necessary for Congress to provide by law that the estates of decedents should be liable for the debts of deceased persons. That result would fol-Ioav, irrespective of § 5152'. But Congress intended to, and did, provide that the estate of the testator or intestate in the hands of an executor 01' administrator should he liable in like manner, and to the same extent, as the testator or intestate would be if living, and competent to act, and held the stock. By the language of the section last referred to, the death of the testator or intestate does not in any way affect the liability of the estate of the testator or intestate, except, if no liability on the stock arises until after the estate is fully distributed, then there would be no estate to be charged.' On the 23rd day of November, 1896, when the Dakota National Bank failed, Prances G-. Carpenter, as the executrix of the estate of Charles C. Carpenter, deceased, under the laws of the United States and of South Dakota, was a shareholder therein. To the extent of 100 per cent, of the par value of the stock held by her, the estate of Charles C. Carpenter in her hands on that day was liable; not as if Carpenter was dead, but in the same manner, and to the same extent, as if he was living; the clear object of the statute being to make the estate liable for a debt arising after the death of a testator or intestate, as well as those arising before.” Zimmerman v. Carpenter, 84 Fed. 747. See also Brown v. Ellis, 86 Fed. 357; Rankin v. Miller, 207 Fed. 602.
There are numerous authorities supporting the views that are herein expressed, but we deem it unnecessary to call attention to more of them.. It will be observed that the statute quoted in the last case, § 5152 of Revised Statutes U. S., is very similar to the latter part of § 702 of Crawford & Moses’ Digest, which reads' as follows: “Provided, that persons holding stock as executors, administrators, guardians or trustees shall not be personally liable as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or persons interested in such trust fund would be if living, and competent to act and hold the estate in his own name,”
The administrator would not he liable unless he had the estate or funds in his hands with which to pay - any judgment that might be had against him. If a person dies, leaving stock in a bank, and his estate is fully administered and the bank stock disposed of, whether by sale or transferring it to the heirs or the person to whom it might be given by will, there would then be no liability against the administrator. The administrator and executor are liable under this statute only when they have property or funds in their hands, as such administrator or executor, with which to pay the judgment. And if they have no such funds, they are not liable. The statute expressly provides that-the estates and funds in their hands shall be .liable.
We find no error, and the’judgment is affirmed. | [
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Smith, J.
Appellant filed in the chancery court a complaint containing the following allegations: Plaintiff owns two lots, upon which she resides, in the city of Little Eock, having a total value of $5,100. That, on or about September 20, 1924, the servants, agents and employees of Improvement District No. 364 of the city of Little Eock caused a sewer pipe about three feet in diameter to be laid across plaintiff’s lots, extending through and across the front yard of her home. That in laying the pipe the district destroyed the sodded lawn, cracked the concrete walk, and disfigured the yard, to the great depreciation of the value of the property, and to the jeopardy and injury of the health, comfort and happiness of plaintiff herself. That the laying of said pipe resulted in the accumulation of surface water on said lots, which plaintiff has been forced, at great expense, to drain. That the earth has caved in around the pipe, and noxious vapors and odors are emitted therefrom, all of which constitute a nuisance. That, in the absence of plaintiff, and without her consent, the improvement district entered upon the lots and used the residence thereon as a shelter for the workmen engaged in laying the pipe, and these workmen damaged the plastering of the house and did other damage amounting to a thousand dollars, for which plaintiff has been paid no compensation. Wherefore plaintiff prayed that a mandatory injunction be issued requiring the improvement district to remove the pipe from the premises and to restore the premises to its former condition, and that- she have judgment for a thousand dollars to compensate her for the damages sustained to the lots and the house.
The answer filed by the improvement district denied each and all of the allegations of the complaint, and also denied that any surface water had been diverted on the plaintiff’s property, but alleged, on the contrary, that the district had greatly benefited her property “by carrying underground the large volume of water which theretofore ran across the surface of said lots,” thereby greatly benefiting plaintiff’s property.
The decree of the chancery court recites that, when the cause came on for hearing, it appeared from the pleadings that plaintiff was not entitled to an injunction, and the cause was transferred to the circuit court for the adjudication of the question of damages. Plaintiff excepted to this action of the chancery court, and in the circuit court moved to remand the cause to the chancery court, which motion was denied, and plaintiff excepted to that ruling. Thereafter a trial was had in the circuit court before a jury, and a verdict was returned' in. favor of the defendant, and from the judgment pronounced on this verdict is this appeal.
There is no bill of exceptions in the case, and we have before us none of the testimony heard at the trial in the circuit court. Plaintiff insists, however, that there is error appearing upon the face of the record which renders a bill of exceptions unnecessary, the error being the action of the chancery court in transferring the cause to the circuit court and the refusal of that court to remand the cause to the chancery court.
Appellant insists that the improvement district, without authority of law, entered upon her property and constructed the sewer pipe complained of. It does not appear, however, from the record before us that such is the case. We do not know the boundaries of the district, nor the plans of the improvement. There has been a trial of this action in a court of law, and a verdict and judgment against plaintiff there. So far as we know to the contrary, the district may have had the right to enter upon the lots of appellant, or may, in some manner, have acquired that right from her, and may have done her no damage in the exercise thereof.
Plaintiff did not elect to stand upon the issues joined by the pleadings in the chancery court, as she might have done. It is true she moved to remand, but she did not stand upon that motion. Upon the contrary, she went to trial in the circuit court, and, in the absence of any showing as to what proceedings were had at that trial, it must be conclusively presumed that the defendant did not wrongfully enter upon plaintiff’s property, or, if so, that she was in some manner compensated for any injury occasioned thereby.
The judgment of the circuit court must therefore be affirmed, and it is so ordered. | [
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Wood, J.
This is an action by Blanche L. Judd against H. P. Rieff to cancel a material furnisher’s lien which Rieff filed on February 17, 1925, on lots 2 and 3, block 4, Heisman’s Addition to the city of Little Rock, in the sum of $42.50. The plaintiff alleged that the defendant had no right to a lien for' any sum; that plaintiff was the owner of these lots, and that the lien filed by the defendant was a cloud upon her title. The defendant, in his answer, admitted that he had filed a lien as alleged in plaintiff’s complaint, and set up that he was entitled to the lien, and prayed by way of cross-complaint that be have a judgment for $42.50' and that same'be declared a lien on the lots in controversy, and that the property be sold to satisfy the judgment. In her answer to the cross-complaint the plaintiff denied that defendant had any right to the lien and judgment in the sum prayed.
The facts are substantially as. follows: The plaintiff was the owner of lot 3, block-4, Heisman’s Addition to the city of Little Bock, and; on October 2, 1924, she entered into a contract with N. F. Wicker and wife by which she agreed to sell to them the lot in controversy for the sum of $1,900, $50 in cash and monthly payments thereafter in the sum of $20: until the purchase money was paid. [There was a provision in the contract making time the essence-thereof and specifying that, if the-buyer fails- to pay any monthly installment when due, • and allows the same to become delinquent for mole than thirty days, the seller had the option to declare the entire balance of the purchase money due. and collectable or to rescind the contract; and further, that the- payments already made should be retained-by-the seller,- not as a penalty, but'as rent for the land;--and there was anágreement that, upon demand of possessioh. by the -seller, the purchaser • would immediately surrender the possessioh of the property.
Wicker went into possession of the-property under the contract. While the contract was in- force, the defendant furnished lumber to Wicker which was used by him in building a. garage on lot 3, the purchase price of which was $42.50; $15 . had been paid, leaving .a balance due of $27.50. .
On February 17, 1925, the defendant hied, a lien on the lot in controversy for.the sum of $42.50. The garage was first built at the side of the house as a part of the house. It was afterwards moved to the back part of .the lot. After the garage was moved from the side of the house, Wicker evidently bought more lumber, because, as built at the back of the lot, it had four sides to it and had a regular gabled roof on it. Wicker kept getting behind with his payments, so the plaintiff took the place back after the defendant had filed his liefi. The plaintiff never had any notice that the defendant had furnished any material to Wicker for the building of the garage until a few days before she filed her shit. Plaintiff did not give Wicker or his wife any authority, directly or indirectly, to buy any material and place it upon-the property.
The trial court found that there was due the defendant' the sum of $28.50 for material furnished that went into and became a part of the garage situated on the lot in controversy; that the defendant had a lien on the, garage, and was entitled to have the same sold to satisfy the claim. The court directed that, unless the amount of the decree be'paid, .the garage be sold to satisfy the decree. The court also directed that the purchaser of the garage should have the right to remove the same within thirty days after confirmation .of the sale. Prom the decree is this appeal.
Our statute gives a lien to any person who shall furnish any material for any building upon land “under or by virtue of any contract with the owner or proprietor thereof,” to secure the payment for such material. The statute gives the lien on the land only to the extent of the title or interest owned therein by the owner or proprietor of such building. The lien attaches to the building' or other improvements in preference to any prior lien or incumbrance or mortgage existing upon the lands before the improvements were made, and the person entitled to and enforcing such lien may have: the building, erection, or improvement sold under execution, and the purchaser has a.right to remove the improvement purchased within a reasonable "time.. See X 6906, 6908, 6909, C. & M; Digest.
The effect of the sales and purchase contract under review, in equity, was to create'á mortgage in favor of the vendor, Mrs. Judd, ’to secure the purchásé monéy. Wicker, in effect; became.the vendee and eqúitabló owner and mortgagor and Mrs. Judd the mortgagee. Fairbairn v. Pofahl, 144 Ark. 313, 222 S. W. 16; Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348, Section ■ 6933 of C. & M.. Digest provides that every person for whose immediate use, enjoyment or- benefit a building, erection or other improvement shall be made shall be concluded’ by the words'“owner or proprietor thereof.” The above language-is sufficiently comprehensive to include1 and-does include the vendee in possession under a contract of purchase such -as that under review. Wicker was the equitable owner or-proprietor, and in possession-of the lot in-controversy at the -time he purchased the materials: from Rieff-which-were used in the building of. the garage; The purchase and use by Wicker, of the-materials in the building of a garage on-the lot-in controversy gave to Rieff the right to perfect a- lien under the- statute on the lot to the extent of. Wicker’s interest therein. See Gunter v. Ludlam, supra; 27 Cyc. 29, 18 R. C. L. 885.
The statute (§ 6909, C. & M. Digest) provides that the lien shall attach to the buildings, erection or other improvements- for which they were furnished in prefer-,ence to any prior -lien or-incumbrance or mortgage existing upon the lands before the buildings were erected-or. put thereon, and also confers upon the person enforcing the lien the right to sell the improvements under execution, and confers upon ■ the purchaser at the sale the-right to remove the same within a reasonable-time, etc. There is no provision in the sales contract- to the effect that, upon the failure of the vendee to make any of-the monthly payments, the contract, from that time, should be1 considered as establishing the relation of' landlord and tenant.- On the contrary,- the effect of the contract is that the relation--of landlord and- tenant between the vendor and the vendee does not begin' until the vendor has exercised the option to declare-the entire purchase money -due and- to treat the' contract as rescinded-. The appellant did -not- seek to rescind the contract until after the garage was first attached to the building -on the lot, nor indeed until the garage thereafter had been detached, removed and rebuilt on " another part of -the'lot. ■ The appellant, as we have seen, under the sales contract as the vendor had a lien for the unpaid purchase money which was superior to appellee’s lien on the lot, because it existed before the appellee’s lien, was filed; but, under this statute, the appellee’s lien for materials furnished and used in the garage, which was first attached to the original building and which was afterwards moved and built into a garage on the back of the lot, was superior to the appellant’s lien under the sale contract:
In Imboden v. Citizens’ Bank, 163 Ark. 615, 260 S. W. 734, we held that, under § 6909, supra, a mechanic’s or ■materialman’s lien is superior to a prior mortgage only on a separate building constructed with the labor and material furnished or such addition as is separable from the original building without injury .thereto. And in Gunter v. Ludlam, supra, we held that § 6911 of C. & M. Digest “gives priority to liens for labor or material only against other incumbrances created after the commencement of the .improvement, and in effect subordinates the lien to prior incumbrances by way of mortgage or otherwise.” In Chauncey v. Dyke, Bros., 119 Fed. 1-7, the Circuit Court of Appeals, construing.this statute, among other things said:
“ The lien law in question is a remedial statute.- It was enacted to secure to laborers, artisans-and others who perform labor or furnish materials for the erection of buildings on the 'land of others, payment for such services and materials by giving them a lien,on the structure which .they have helped to create, instead of compelling them to rely merely on the personal security of the' debtor. That sueh laws are fair and just, and that they also tend to encourage the erection of buildings by insuring payment for the' labor and materials that are expended in their erection; has been generally recognized. As such laws are remedial in their nature and are prompted-by a wise policy, they should be liberally construed in favor of the class of persons for whose benefit they were intended. ”
If tlie appellee bad perfected. his lien by filing the same in time under the statute, it follows that the trial court was correct in holding that the garage was subject to sale for the payment of the balance due appellee for material furnished in the building of such garage and in directing that same be sold unless the sum due was paid. It follows that the trial' court ruled correctly in dismissing the appellee’s cross-complaint so far as the same sought to have a lien declared on lot 3.
The appellant contends here that, even if appel-lee be entitled to a lien, he did not perfect the same by complying with the requirements of § 6922 of C. &> M. Digest:. That section requires the person who wishes to ávail himself of the act to file with the clerk of the circuit court of. the county in which the building, erection, or other improvement to be charged with the lien is situated, a just and .true account of his demand, within ninety .days after the things, shall have been furnished. The. complaint, the cross-complaint and the reply to the cross-complaint do not raise this issue. The trial court’s attention was not .directed to it as an issue in the cause. On the contrary the record shows that the cause was heard in the trial court on the theory only that Wicker had no such interest in the property as would enable him to create a lien in favor of the appellee. Besides, there is nothing in the nature of the claim filed by the appellee to indicate that the last item of the materials was furnished more than ninety days before the filing of the claim. The burden of proof was upon the appellant, who was seeldng to-cancel the lien, to prove that the -last item- of the materials constituting appellee’s account against appellant was furnished more than ninety days before the appellee filed his account under § 6922, supra. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353, and Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999.
The appellant did not discharge the burden of proof by merely showing that appellee had presented an account to Wicker containing items for $36.60, which items had been furnished more than ninety days before the filing of appellee’s claim. Appellee’s claim was for $42.50. For aught shown to the contrary, some of the items making up this account were furnished ninety days' before the filing thereof.
The decree is affirmed. | [
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Mehaffy, J.
The appellants, who are citizens of Rogers, filed this suit in the chancery court, attacking the validity of an ordinance of said city imposing a tax on occupations. The ordinance is quite lengthy, and it would serve no useful purpose to copy it at length. But we will call attention to and discuss the provisions referred to by appellants and relied on by them as making the ordinance void.
The appellants did not contend that the city did not have authority to pass an ordinance taxing occupations. This - question and the validity of § 7618 of Crawford & Moses’ Digest was settled in the ease of Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769, in which case the court, speaking of the power of the legislative 'branch of the State Government to pass laws authorizing municipal corporations to provide by ordinance for the enforcement of a tax on occupations, said: ‘ ‘ This court has expressly decided that, under the Constitution now in force, that power exists.”
A nnmber of authorities are cited, and the court also said in that case: “The only restriction which the law imposes on the exercise of the power is that there shall not be a discrimination between persons in like situations and pursuing the same class of occupation.”
But the appellant states: “What we contend for in the case at bar is that there is gross inequality and unreasonable discrimination. ’ ’ And it is then contended that the ordinance does not provide for the payment of any tax where the amount of the investment exceeds $50,000. We do not think that a proper construction of the ordinance justifies this conclusion. Section 1 provides as follows:
“That it shall be unlawful for any person, firm, individual or corporation within the city limits of said city of Rogers, Arkansas, to engage in, carry on, or follow any of the trades, businesses, vocations, professions or callings without having first procured from the city collector of the said city of Rogers, Arkansas, and having paid therefor the amount of license hereinafter mentioned, and provided in this ordinance, for the privilege of engaging in, carrying on or following such trade, business, profession, vocation or calling in said city of Rogers, Arkansas.”
It is the evident intention and purpose of the .ordinance to require every person engaged in the business named to procure from the city collector a license, and the license fee is fixed at $50 where the investment represented is as much as $25,000 and less than $50,000. It would be unreasonable to construe the ordinance to mean that, where the business represented an investment of $50,000 or more, no tax would be required, and, since $50 per annum is named as the highest fee paid, and it is to be paid where the investment is $25,000 and less than $50,000, that for any amount in excess of $25,000 it is evident that the fee would be $50 per annum.
We think a proper construction of the ordinance justifies the' conclusion that the maximum tax is $50 per annum. In the case of Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A. (N. S.) 1035, the ordinance provided for a tax or license of $50 for each coal-oil wagon or wagon used for the purpose of delivering coal-oil of gasoline or other similar commodities, irrespective of size, weight or capacity. And then there was a provision in the ordinance for each wagon drawn by one or inore horses, used for hauling ice, $25 each for the first two owned by any individual, firm or corporation. The maximum amount on other vehicles was fixed at $10, and some were as low as $1.50. The court said in discussing'this ordinance :
“But, if we should treat the ordinance as one ‘to regulate the transportation of articles through the' streets,’ such as is authorized by statute, it is void on account of the unreasonable fee charged for the license. The only justification for charging a license fee at all is that a fund may be raised to defray the expenses of issuing’ the license and ‘the enforcement of such police inspection or superintendence as may be lawfully exercised oyer the business.’ * * # It is difficult to see, if a system of inspection and superintendence had been provided in either instance, how a larger amount should be required for inspecting and superintending the transportation of articles through the streets than for regular inspection of fresh meats being sold by dealers and the superintendence of that business. * * * Now, if we treat the ordinance as one to tax vehicles, there appears to be a distinct discrimination against the owners of coal-oil wagons or wagons used for the purpose of delivering coal-oil, gasoline or other similar commodities. A tax of $50 is levied on each wagon used for that purpose, $25 each for ice-wagons and $10 or less on all kinds of vehicles. Can any reason be found for this discrimination except an arbitrary use of the power? We see none.” Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S. W. 293, 16 L. R. A. (N. S.) 1035.
In the above case there is a thorough discussion of the power to license or tax, and also a discussion of the question of discrimination. It can readily be seen that, to tax a wagon used for certain commodities, without any regard to its size or capacity, twice as much as a wagon used for carrying other commodities through the streets, is a discrimination. But there is no such discrimination in the ordinance taxing occupations in the city of Rogers. The ordinance here seems to affect alike all persons similarly situated.
The appellant next contends that the provision authorizing the city council to reduce or remit the whole or any part of the license imposed by the ordinance makes it void. There is a provision in the ordinance, however, to the effect that, if any section or provision is held to be void or invalid,' it shall not affect any other section or provision Avbich is not in itself void or invalid. Therefore if the provision objected to is void it would not afféct any other provision in the ordinance and would, not affect any of the appellants in this case, as there is no contention that the city council had reduced or remitted any part of any license imposed by the ordinance. The complaint, however, alleges that this provision was being enforced, but the allegation is general, does not name any particular instance, and we do not think that the arbitrary or wrongful action of the council would affect the validity of the whole ordinance or the validity of any other provision of the ordinance, and that, in order to determine the question as to the validity of the provision complained of or the action of the council under' said provision, plaintiffs would have to make specific allegations as to what was being done, and that the general allegation that the defendants are enforcing the provisions of said ordinance and will continue to do so if not-enjoined, largely under the power conferred under § 6, by remitting such portions of licenses in any business or occupation, etc., is not a sufficient allegation, for the reason that it does not state any facts, but is a mere conclusion of law.
If certain persons that are within the class are exempt, and others are required to pay the tax, this would make the ordinance void, or, at least, that section of the ordinance. If a few, or any number of persons less than all, who follow a designated trade or occupation, be exempt, while others are taxed, the law imposing the tax would not be general, and would therefore be void. But it is, of course, impossible-, in the very nature of things, to devise a tax law that shall operate with perfect equality on all. And it has therefore been held that the only limitation on license taxation seems to be that it must not be so unreasonable as to show a purpose to prohibit a business which is not in itself injurious to public health- or morals, and the constitutional equality and uniformity of occupation taxes is violated by an ordinance, although it may be fair on its face, imposing a tax on all of a class, but which is collected only from those, for instance, who sell in their own shops, while there is a persistent failure to collect it from those who rent from the city.
It therefore follows that any effort to enforce a section of the ordinance by remitting- or failure to collect the license fee from some would be a discrimination and would he illegal. In other words, the ordinance and its enforcement must apply and he enforced equally to all of a particular class. It is contended that, if this section is to be eliminated entirely, it can only be compelled by an injunction, and this is probably correct. But, before a court would enjoin the officers, it would be necessary for the plaintiff to make the allegations specific, showing facts which amounted to a discrimination or an. effort to enforce this section of the ordinance.
The complaint in this case does not contain such allegations as to justify an injunction with reference to § 12 of the act. There is no fact stated tending to show that there is any attempt to arbitrarily favor or prefer any individuals.
There might be cases of charity, and cases where the public good required it, that would justify the council in acting under and in accordance with % 12 of the ordinance. However, if the authorities undertook to arbitrarily enforce this section, or undertook to enforce said section so that it would be a discrimination, they would be enjoined from so doing; but, as we have said, the allegations in the complaint in this case are insufficient, and the decree of the chancery court is affirmed. | [
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Hart, C. J.,
(after stating the facts). We are of the opinion that the decree of the chancellor was correct. ■ .
In the first place, the evidence in the record shows that Gordon Ingalls and his associates, who organized the Commonwealth Brokerage Company and who owned all of its stock, were the managers of that corporation and also of the Oil Fields Corporation. Gordon Ingalls was the president of both corporations and managed the affairs of both of them. He was assisted by his associates, who owned the remaining stock in the Commonwealth Brokerage Company. No authority was ever given Gordon Ingalls or his associates by the Oil Fields Corporation to employ brokers to sell the interests of the common-law trust who composed that corporation, and there was no necessity for them to do so. Gordon Ingalls was president and manager of the Oil Fields Corporation, and it was his duty to sell the interests in the oil and gas leases held by the corporation. His pretended employment of the Commonwealth Brokerage Company for that purpose resulted merely in hiring himself and his associates to do what it was their- duty to do under the positions held by them in the Oil Fields Corporation.
In the second place, the claim of the Commonwealth Brokerage Company was properly disallowed for another reason. As we have already seen, the board of directors of the Oil Fields Corporation did not authorize the Commonwealth Brokerage Company to act as its agent in selling oil leases or any interests therein, nor did it authorize the Commonwealth Brokerage Company to advance any money for it to be used in satisfying its payroll or for any other purpose. Hence the action of Gordon Ingalls in paying out of its funds sums of money to be used in paying the debts of the Oil Fields Corporation was a voluntary payment merely, and the Oil Fields Corporation cannot be held liable for such payment. The rule is well settled that, when a person or corporation, without mistake of fact or fraud, pays money on a demand which is not enforceable against him, the payment is deemed voluntary, and cannot be recovered. Donaghey v. Williams, 123 Ark. 411, 185 S. W. 778; and Tancred v. First National Bank of Fort Smith, 130 Ark. 520, 197 S. W. 1178.
A cross-appeal was granted tbe Oil Fields Corporation on tbe theory that tbe chancellor bad erred in not giving it judgment against tbe Commonwealth Brokerage Company for certain funds belonging to tbe common-law trusts above mentioned and which bad been secretly appropriated by Cordon Ingalls and bis associates. An examination of the record shows that no such judgment appears in tbe transcript. Hence there is nothing for review on the cross-appeal.
It follows that the decree of the chancellor will be affirmed. | [
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Smith, J.
Appellee brought suit in the court of a justice of the peace in Lincoln County against M. and Dan Silbernagel, who were partners doing business as Silbernagel & Company, and against Ambrose Mayhue, their traveling salesman, to recover the sum paid Silber-nagel & Company for fifty sacks of oats. Service of summons was had on Mayhue in Lincoln County, but the members of the firm of Silbernagel & Company were served with process in Jefferson County, in which county they reside and have their place of business.
The Silbernagels filed a motion to quash the service on the ground that they lived in and were served with process in Jefferson County, commanding them to appear and answer a cause of action pending in another county. This motion was overruled, and judgment was rendered by the justice, of the peace in plaintiff’s favor, and an appeal was duly prosecuted to the circuit court, where the motion to quash was renewed and again overruled, and exceptions saved.
Testimony was offered in the circuit court by the plaintiff to the effect that he bought from Mayhue 50 sacks of white oats, whereas there was sold and delivered a lot of oats.which had been bleached and which, when thus treated, were white oats, but were sold as “sulphurized bleached,” that name being stamped upon the sacks containing.them. The testimony was also to the effect that the oats were dark and moldy, and that the stock would not eat them. It was admitted by plaintiff, however, that he knew, when he bought the oats, that Mayhue was merely the agent and was acting for Sil-bernagel & Company, his principals.
Upon this testimony being- offered, the motion to quash the service upon the' ground that plaintiff had contracted with an agent whose principal was disclosed, and the agent was therefore not liable for the damages sued for and was not a proper party thereto, and this being the case there was no authority to maintain the suit against the Silbernagels, who were served in an adjoining county. The motion to quash was again overruled.
The case was submitted to the jury under instructions which required a finding, before returning a verdict for the plaintiff, that Mayhue had intentionally misrepresented to plaintiff the kind and quality of oats sold and that Matthews had relied upon these false representations.
The testimony was sufficient to warrant the submission of this issue, and the verdict returned in plaintiff’s favor reflects the essential finding’ that Mayhue had fraudulently procured the contract, of sale, and, this being true, he was liable, although he had acted only as agent and had disclosed the name of his principal. Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432.
Mayhue was properly sned and served with process in Lincoln County, and, this being true, the right existed to sue the Silbernagels there also, although they were served with process in another county. Hoyt v. Ross, 144 Ark. 473, 222 S. W. 705.
Under the allegations of the complaint, plaintiff was entitled to judgment against both the agent and his principals, and the testimony sufficiently supports these allegations to sustain the verdict of the jury.
The testimony on behalf of plaintiff tends to show that the oats delivered were not the oats purchased, and were valueless, as the stock would not eat them, and there was an offer to return them as soon as their character was discovered, which was within a few days after their delivery, and that this offer was declined.
There appears to be no error, so the judgment is affirmed. • | [
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Humphreys, J.
This suit was brought by Ira Pickle, a minor sixteen years of age, through his father and next friend, against appellant, in the circuit court of the Fort Smith District of Sebastian County, to recover damages in the sum of $20,000 for personal injuries received to his left hand while operating a molding machine in the furniture factory of appellant, through the alleged negligence of appellant in failing to warn him of the dangers incident to the operation thereof.
Appellant filed an answer, denying that it employed the hoy, Ira, to operate a molding machine, but stated that it employed him as an off-hearer for molding machines, and interposed the defenses that he was not engaged in the line of his duty when injured, that he assumed the risk, and that the injury was due to his own negligence.
The cause was submitted to a jury upon the pleadings, testimony adduced by the respective parties, and instructions of the court, resulting in a verdict and consequent judgment for $7,500 in favor of appellee, from which is this appeal.
The following facts and disputed testimony are reflected by the record in so far as nécessary to determine the questions involved on this appeal.
At the time of his employment appellee was sixteen years of age, a country boy, inexperienced in'the use and operation of manufacturing machinery. He was first employed as an off-bearer for molding machines by the foreman, Frank Goebel, and placed under the control and supervision of the head molderman, C. F. Hoffman, who had charge. The foreman informed him of his duties as off-bearer, which consisted in taking timber off the table after it came out of the molding machine and placing it on a truck, which he assisted the molder-man in moving to another machine when it was loaded. The foreman testified that he told him not to touch the molding machine while performing the duties of off-bearer, explaining if he did that he would get his hand cut off in the knife heads, which he showed him. On the third day of his employment he was directed by the molderman, C. F. Hoffman, to off-bear from two machines. He performed these duties for about two weeks, or until Friday before lie was injured on Saturday. On Thursday before the injury occurred C. F. Hoffman was succeeded by Joe Adkins, and, not knowing whether appellee had been off-bearing- or feeding- the machine, he directed him to run the molding- machine. The machine he was directed to run had. several knife heading’s. .The last knife heading was 4 inches square and 10 inches high, carrying a blade on the front which operated beneath’ the table. There were four blades- on the head,- which cut three-fourths inch stock. The blades were four .inches long, and were clamped to the head, which was propelled by a belt on the shaft making- about 3,600 revolutions a minute. The machine would clog when a wedg-e-shaped piece of material was run through, and it was the molderman’s duty .to unclog the machine. The -molderman used his discretion in stopping the machine to unclog- it — he used his own judgment. Sometimes the molderman unclogged the machine while: it was running, and . at other times he stopped the machine to unclog it. A. molding machine is stopped by using a shift handle fastened- to the machine. The molderman had a feeder to .each machine and an off-bearer to every two .machines, who. took their orders, from him. Five molding machines were being operated on the floor under the direction of the molderman, -and it was a common thing for the feeders, instead of the- molderman,- to remove the obstructions when -the machines clogged -up, either while the machines were • running • or after they stopped them. -The method of removing-.the obstruction, either after the machines had -been- stopped or while they were running, was to unfasten some screws and to place a file on the wedge-shaped piece of material and drive it out with a hammer or wrench. It required instructions and experience -in order to operate a molding machine. The only knowledge of the-machine apoellee had, prior to operating it, was in observing the other boys operate their respective machines during the two weeks of his employment as off-bearer. Appellee testified that, when Joe Adkins told him, about 3 o ’clock Friday afternoon, to operate tlie molding- machine, he gave him no instructions, but simply said to him “to run the machine,” and walked off; that he did not warn him of the dangers incident to operating the same, and did not tell him whether feeding the machine included the duty of unstopping-it when it clogged up; that, after operating it á few minutes, the machine clogged, and the molderman unclogged it without stopping the same; that, in doing this, he unfastened some screws and used a file and hammer; that the machine ran all right the rest of the afternoon; that, Saturday morning, he was unable to étart the machine, and the molderman started it for him, and, after running awhile, the machine clogged, ahd appellee proceeded to unclog it just as the molderman had-done; that her could not start the machine after he had unclogged it, and asked the molderman to start it for him; that the molderman told him he did not have time to fool with the machine, whereupon appellee assisted other off-bearers and waited for the molderman to- start it; that, after the molderman started the machine, he told appellee not to stop' it any more; that the machine again clogged; and, thinking it his duty to unclog it, he proceeded to - do so just as the molderman had done while running it, during which time the molderman passed by and observed his effort to unclog it, and did not tell him to quit or offer to unclog it for him; that the file slipped, and the weight of the file and the blow of the hammer carried his hand into the knife, which cut and mangled his hand so badly that all of the fingers, except the index finger and thumb, as well as a part of the palm of the hand down to the wrist, had to be amputated.
Joe- Adkins testified that he complied with every request appellee made for him to unclog and start the machine; that he never directed appellee to unclog it, and never told him not to shut it down; that he never saw appellee trying to unclog it.
On account of the injury and amputation the usé of his hand was impaired one-half and the usefulness of the arm to a large extent. A part of the grip of the hand, and his ability to lift heavy articles, was lost. He returned to the farm after the injury, where he was able to do some work, but was unable to hoe and plow as he formerly had. Prior to the injury he had left the farm with the purpose of becoming a mechanic. At the time of the injury he was earning $1.53 per day, and was ambitious to advance and increase his earning capacity. He was in good health, of husky build and good weight. His expectancy was 44.9 years, and during that time he would have earned $21,433.33 if his earning capacity had not increased. '
His pain and suffering after the injury and amputation of his fingers and part of the hand was intense for about three weeks, so intense that he was unable to sleep until about 3 or 4 o’clock in the mornings. At the time of the trial he still suffered from the injury, as if pins were sticking in his hand if he received a little jar or if there was any pressure upon it.
At the conclusion of the testimony appellant requested an instructed verdict, for the alleged reason that, according to the undisputed evidence, appellee was not engaged in the line of his duty at the time of th.e injury; that he assumed the risk, and that no warning was required; that the injury was the result of his own carelessness.
(1) It is true that the record fails to show by positive testimony that it was the duty of appellee to unclog the machine as a part of his duty in running same, and that the molderman testified that it was their duty to perform this task, yet the record reflects testimony tending to show that, during the two weeks appellee was engaged in the duty of off-bearing, the feeders of the machines frequently unclogged them in the manner, he was attempting to do at the time he received his injury. When told to run the machine, appellee’s duties were not outlined to him. He had not been informed that it was the exclusive duty of the molderman to remove obstructions when the machine clogged. During the two weeks he had been employed as off-bearer, he had observed other feeders of machines, as well as the molder-men, removing obstructions •when the machine clogged. According1 to the testimony of appellee, just before he received his injury he was observed by the molderman in the act of unclogging' the machine while in motion, and was not told by the molderman to quit, but was allowed to continue.
The test as to whether an employee was acting within or without the scope of his employment when injured, or within or without the line of his duty at the time, is to inquire whether the employer should have anticipated that he might attempt the act. Ambrozia v. Austin (N. H.), 124 Atl. 551. We think, under this .test, the record presented an issue for determination by the jury as to whether appellant should have anticipated that appellee might attempt to remove the obstruction from the machine while in motion if it should clog up. The issue was submitted to the jury under proper instructions, and was determined adversely to appellant. Appellant is bound by the finding, as the testimony' relating to the issue was conflicting.
(2) It cannot be said as a matter of law, under the undisputed facts in this case, that appellee assumed the risk of operating the molding machine when told to run it. It was a complicated machine, the operation of which required knowledge, skill and experience. The danger involved in unclogging the machine was not open" and obvious, and there is nothing in the record to indicate that appellee was aware of the situation and appreciated the danger. He had received no instructions with reference to feeding and operating the machine, and was inexperienced in the use of it. He was only sixteen years of age, and such information as he had concerning the machine and the operation thereof was 'obtained by observation only while engaged in the performance of his duties as off-bearer for the short period of two weeks. The governing rule of law announced by this court is: “Where a servant is young and inexperienced it is at least a question for the jury to determine whether it was the duty of the master to instruct him in the performance of his duty and dangers connected therewith, even though the danger would be obvious to an adult and experienced servant.” St. Louis Stave & Lumber Co. v. Sawyer, 90 Ark. 473, 119 S. W. 830; St. Louis-San Francisco Ry. Co. v. Conly, 160 Ark. 592, 255 S. W. 308; Brackett v. Queen, 162 Ark. 525, 258 S. W. 635; Mo. Pac. Rd. Co. v. Kinslow, 168 Ark. 487, 270 S. W. 603; Hogue v. Bundy, 168 Ark. 879, 271 S. W. 979.
The issues of whether appellee assumed the risk and whether entitled to be warned of the dangers incident to .the operation of the machine were submitted to the jury under proper instructions, and the adverse finding to appellant is supported by sufficient evidence.
(3) Appellant is a domestic corporation, not engaged in interstate commerce, so it was not entitled to an instructed verdict, even if appellee had negligently contributed to his injury. Contributory negligence was not a bar to the action. Section 7145, Crawford & Moses ’ Digest; Athletic Mining & Smelting Co. v. Sharp, 135 Ark. 330, 205 S. W. 695.
Appellant contends that the verdict should be reduced in a substantial amount because excessive. We think the injury received justified the amount awarded to appellee. His expectancy covered a long period of time, and he was a husky young lad, able and willing to work, and the way was open for increasing his earning capacity, with every opportunity before him to do so, at the time he was injured, which injury destroyed one-half his hand power and a large part of his arm power. In addition, he must endure humiliation throughout life from the disfigurement, and has endured much pain and suffering, and with more to endure whenever he receives a jar to or a pressure upon the arm.
Appellant’s last contention,for a reversal of the-judgment is that the court submitted the issues joined upon erroneous instructions. We have examined the instructions assailed by appellant in his argument and brief and are unable to discover any inherent defects or preju- dieial error in. any of them: When all the instructions given are re.ad together they fairly and comprehensively declare the law applicable to the respective theories of the parties, based upon the testimony adduced by each.
The instruction assailed most earnestly by appellant is as follows:
“You are instructed that, when the plaintiff was changed from the position of off-hearer to the position occupied and duties he was performing when injured, then he was entitled to instruction as to the duties he was.then to perform, unless the original instructionsj if any, covered them, and the risks and dangers, if any, incident thereto, even though, you may find or -believe from the evidence he had received instructions on the first day he was employed as an off-bearer, and, if you find from the evidence that the defendant failed to so instruct the plaintiff and to so. warn, him, then defendant was guilty of negligence in this case.”
The main assault upon the instruction is that it assumes that appellee’s position was changed from that of- off-bearer to. that of feeder. This assumption was warranted by the undisputed facts in the case. All of the witnesses'testified that appellee was .first employed as an off-bearer, which position was not in anywise., connected with .the operation of the machine, and that, when •the new-foreman was appointed,,he directed him- to run the machine:' This necessarily required him to. feed the machine." We think there is' ho dispute in the record at all that appellee was changed from the position of off-béárer tó that of feeder. ‘ This change in position required that appellant instruct and warn appellee concerning additional attendant perils, if any. Michigan-Arkansas Lumber Co., v. Bullington, 106 Ark. 25, 152 S. W. 999.
Appellee further contends that' the instruction assumes that there were additional dangers and perils which necessarily required further instructions. We do not so interpret the instruction. It simply told the ■jury that, if the original instructions given -the plaintiff covered the dangers incident to feeding the machine, then no further instructions were necessary.
Appellant also contends that the instruction is fatally defective because it ignores the defense of assumed risk. Appellant requested and secured other instructions which adequately covered this phase of the case. If appellant felt that any prejudice would result to it on account of the omission, it should have specifically objected to the instruction on that ground. St. Louis, I. M. & S. R. Co. v. Blaylock, 117 Ark. 504, 175 S. W. 1170, Ann. Cas. 1917A, 563; Mo. Pac. Rd. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.
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Mei-iappy, J.
Mrs. Fannie Skipper, administratrix of the estate of TP. A. Skipper, deceased, began this action against the Missouri Pacific Railroad Company, a corporation, to recover damages for the injury and death of TP. A. Skipper, and the suit is for the benefit of the widow and children of deceased.
The plaintiff alleged, in substance, that she is a resident and citizen of North Little Rock-, Arkansas, and that she is the duly qualified and acting administratrix of the estate of TP. A. Skipper, deceased, having been appointed such administratrix by the probate court of Pulaski County, Arkansas. That the defendant, Missouri Pacific Railroad Company, is a corporation organized under and by virtue of the laws of the State of Missouri, and is engaged in operating a line of railroad, transporting passengers and freight for hire, in the states of Missouri, Arkansas, Louisiana, and other states in the United States.
She alleges that the suit is for damages- for personal injuries sustained by TP. A. Skipper on the 14th day of January, 1926, that resulted in his death, the "said TP. A. Skipper being in the employ of the defendant, Missouri Pacific Railroad Company, at the time in the capacity of a conductor operating a-freight train, and that this su'd is brought under the Federal Employers’ Liability Act. That, at the time said injury occurred, TP. A. Skipper was engaged in interstate commerce, and that the cars that were being handled and other cars in the train were carrying interstate commerce, carrying freight to the State of Louisiana from points without the State of Louisiana, and also carrying freight passing through the State of Louisiana that originated in a State outside of Louisiana. Plaintiff alleges that- deceased was in the employ of the company in the capacity of a conductor, and at work in the assisting of running a freight train from Collinston, Louisiana, to Ferriday, Louisiana, and that, while on the house-track at Ray-ville, Louisiana, engaged at work upon a coupling on a car standing on said track, in front of the freight depot, a car was kicked in upon him without warning, and caught him between the platform and the car, and crushed him in such ¡a manner that, after living about thirty-six hours, he died. That the injuries were caused by the negligence and carelessness of the defendant. That, while deceased was trying to adjust a coupler on the end of a car standing on the house-track in front of the freight depot, with his back toward the switch, W. J. Rogers, one of the brakemen upon the train, carelessly, negligently and recklessly, and after discovering the peril of the deceased, and without warning to the deceased, threw the switch and ran a freight car in and onto said house-track and upon and against the deceased, thereby injuring him, resulting in his death. That deceased was a strong, robust and healthy man, 45 years of age, and was earning $3,600 a year, ¡all of which, except his personal expenses, he contributed to the support of his family; that there are now surviving him his widow and three children, his sole heirs at law and next of kin, and that the widow and children were dependent upon him for support, and constituted his family, to whom he contributed the amount aforesaid for support ¡and maintenance; and that, from the time the said W. A. Skipper received the injuries aforesaid until the time of his death, a period of about thirty-six hours, he was conscious, and suffered great and excruciating pain of body and anguish of mind, which said injuries •were caused through the negligence and carelessness of the defendant aforesaid.
Tlie answer of the defendant was a specific denial of each allegation of the complaint, with a plea of assiimed risk and contributory negligence.
The trial resulted in a verdict and judgment for $20,000, from -which is this appeal.
The appellant’s first contention is that the court erred in not directing a verdict for the defendant, and, in this connection, argnes that instruction No. 1, requested by the plaintiff, should not have been given, because it contends that the evidence was not sufficient to warrant the court in submitting such an issue to the jury.
Instruction No. 2, complained about, reads as follows :
“The court instructs the jury that plaintiff relies' for a recovery in this case alone upon the doctrine of discovered peril, and, if you find from a preponderance of the evidence that the deceased, W. A. Skipper, was in the employ of the defendant, Missouri Pacific Railroad Company, as a conductor on a freight train, and, before the injury, in a place of peril on or near the house-track of the defendant, at the freight depot in the town of Ray-villo, Louisiana, and that "W. J. Rogers was a brakeman on said train and in the employ of the defendant, and that the said W. J. Rogers, after, discovering the peril of the deceased, W. A. Skipper, failed to exercise ordinary care and diligence in the use of the means at his command to avoid injuring the deceased, but carelessly and negligently threw the switch and turned a freight-car onto the house-track, after he knew of the peril of the deceased, without any warning to the deceased, and that, deceased was struck and injured by said car, and, as a result of said injuries, the deceased thereafter died, and that the act of the brakeman in turning the car onto the house-track, after discovering the peril of the deceased (if yon find these facts to be true from a preponderance of the evidence), was the proximate cause of the injury, and that the deceased was not guilty of contributory negligence and had not assumed the risk, then you will find "for the plaintiff, and assess such damages as you may find should be awarded under the evidence and other instructions given in the case.”
The facts are substantially as follows: A plat or blue-print was introduced, showing’ the location of the freight depot, the public road, the road that runs back of the depot, the house-track, -the main line, and where the caboose was left. Also the switch which was thrown and the.place where the truck was standing.
The deceased, W. A. Skipper, was 45 years old at the time of his death, and he and the plaintiff had been married 21 years. She lived in North Little Rock, and was appointed by the probate court of Pulaski County as administratrix of the estate of W. A. Skipper, the deceased. There were three children born of their marriage, Lucile, Walter Jr., and Charles,, the last two being 12 and 8 years, respectively. That, when the plaintiff, after receiving a telephone message, reached Monroe, Louisiana, at 10:15 at night, she found her husband in a sanitarium, very sick. He told her that he had suffered bodily and mentally since morning. He was hurt in the chest. She stayed in the hospital all the time. During the next day he was partly conscious, and unconscious during the afternoon and night. After one o’clock he asked what time it -was, and he said that he thought it was- seven o’clock. He would seem to be conscious for a few minutes, and then he would go right off. During the last few minutes of his life he was very restless. He was a very large man, and the girl said he was suffering so that nothing she would give him would ease him. He was practically delirious all that night. He died at 9:20 Friday night. When witness got to Monroe, deceased asked her about the children. His salary varied, but he worked steadily. His salary was usually around $350 a month, but during busy seasons it was a good deal more than that. He was not an extravagant man. All the money he used was what it took to live on, and the rest of it was used at home. He would come home every Sunday, but he could not stay long on account of the why the trains ran. He did not drink or gamble, and had no wasteful habits, and lived an economical, frugal life. His personal expenses were between fifty and sixty dollars per month, and the rest of it was used on the family.
Gus Roberts testified that he was 20 years old; lived in Rayville, Louisiana, and was at work on the 14th day of January, the morning that Mr. Skipper was injured; was delivering a truck for Mr. Fortenberry, for whom he worked. Was with Edwin Pea on the truck, and was at the depot at the time Mr. Skipper got hurt. Was at the railroad crossing at the time of the accident, at the place where the public road crosses the railroad track. Was waiting for the train to get from over the crossing. Was five or six feet from the switch at the road crossing where the brakeman was doing the switching. Saw Mr. Skipper before the accident. There was a car on the switch, and he passed this car, and happened to notice that there was something wrong with the knuckle, and he straightened it, and when this car came in there they coupled together, and they pulled the train on up ¡above the crossing to the switch, and he was in there, and had his back to the switch. They kicked the car in on him. Witness said he was 40 or 50 yards from there, in plain view of him, right near Rogers, who threw the switch and turned the car in on the house-track. ‘ * There was nothing between Skipper and me to keep me from seeing him plainly. There was not anything between Rogers and Skipper. It was plain and open.” Witness ran down to where Skipper was injured, and Skipper told him to get him where he could lie down. He seemed' to be suffering. Rogers could see Skipper, and did see him before he turned the car in on him. They pulled the car up above and gave it a swift kick, and the south end of the switch was kind o ’ down grade. When the car got there, it picked up and went faster. He thinks there were two cars standing on the house-track. The car was kicked with so much force that two stationary cars went on down beyond the freight-house and depot platform. He saw where the cars were knocked at that time. Witness then explained the map or blue-print. Mr. Skipper had his back turned to the brakeman and from the direction where the switch was the ear was thrown in on him, and he remained there until it hit him. He was fixing a knuckle, and later, about the time the car struck him, he looked back, and fell in between the platform and the track as it struck. He saw the darkey standing up there looking* at him, and did not holler because he thought they knew what they were doing. It was a white man that threw the switch. Witness cannot read nor write, and has never attended school. Was at the public crossing, sitting on the truck. He knew what deceased was doing. The brakeman was standing at the switch, and witness saw him throw the switch. Brakeman could see Skipper down there where he was at the oar. Saw the brakeman looking towards Skipper.
Edwin Pea, another witness for the plaintiff, testified that he lived at Baskin, Louisiana; was working at Rayville, Louisiana, working for Mr. Fortner, and was with Gus Roberts, who was driving a truck. He saw Skipper about the time the car hit him. He was about 50 yards of the depot. While witness and Gus Roberts were up there, the train pulled past the crossing and kicked the car up on the sidetrack. Skipper was standing at the end of the car, with his back turned to witness. There were some more cars standing back towards the platform, and Skipper apparently looked back about the time it hit him. A white brakeman threw the switch. He was about 55 or 56 steps from deceased. The car was coming pretty fast when it passed the switch, and the car was coming at & rapid speed when it came in on the track between where the switch was and the end of the platform. There was nothing between the man at the switch and -Skipper. It was just open. There was nothing to have kept him from seeing it. The switch was between witness and Mr. Skipper. Deceased, when they got there, said: “Boys, take me somewhere where I can lie down; don’t let me suffer like this.” They carried him into the depot office. Witness was on a truck with Gus Roberts. He was in a position where he could see. It was about 150 feet from where witness was to where Skipper was, and the brakeman was up there at the switch. Brakeman threw the switch before the car reached the switch point. After he threw the switch he had no control of the car. When witness first saw Mr. Skipper he was on the track, with his hack in the direction of the switch, and he saw him look around, and he was trying to get out of there and got caught.
R. 0. Benton, another witness, testified that he lived at Lonoke, and made some measurements. It is 162 feet from the switch-stand to the corner of the platform at the depot — the freight depot. The platform is 68 feet long. ' Prom main track to the switch is 8 feet between the two tracks. Prom the -switch down to the corner of the platform is 162 feet. There is nothing between the switch and the corner of the platform. The house-track is not on the level. It is a natural incline right down that way.
Jack Wright, another witness, testified that he lived at Lonoke, and went with 0. Benton, looked over the place where Mr. Skipper was killed, and took some measurements, and testified in substance the same as Benton.
Dave Holman testified that he lived at Dermott, but was working in Louisiana for Mr. Parnell. He knew Skipper, and was on the train the day that he got killed. Skipper gave the orders to the trainmen to spot the car in there. Rogers threw the switch, and they kicked the car down. Skipper was fooling with a knuckle, and witness hollered at him to look out. He jumped to get around the corner of the platform. Witness helped to carry him in. When this witness was asked if he remembered what Mr. Skipper said to those people, if anything, about setting that car in there, he answered, “He told them to spot that ear at the freight-house, so it could be unloaded.” He had seen cars carried in with the engine many times. That is what they mean by spotting a car. Had seen them carry cars in and spot them before. He testified that they left the caboose on the main line. Then they kicked this car in there, and then went back on the main line after that, and picked np the caboose. Rogers was looking down there in that direction. He was looking at witness and Skipper. .
The following- agreement or stipulation was signed by attorneys and introduced in evidence:
“It is agreed between attorneys for plaintiff and attorneys for defendant that W. A. Skipper was the conductor upon the train that was running between Ferri-day and Collinston, Louisiana, on the 14th day of January, 1926; that it was a freight train, and reached Ray-ville, Louisiana, around 8:30 o’clock on the morning of said day; that in said train were cars that were carrying interstate freight, being freight that had originated in St. Louis, Missouri, and consigned to merchants in various towns in Louisiana; that, when they reached Rayville, it became necessary to set one of the cars in on the house-track in order that some freight in that car might be unloaded at Rayville; that this car was an interstate car, containing merchandise that was being shipped from St. Louis, Missouri, to merchants at Ray-ville, Louisiana; that it was the purpose of the crew to unload the freight from this car that was consigned to Rayville and to put the oar back in the train to continue the trip; that this car was the one that injured Mr. Skipper.
“And it is further agreed that this statement may be used in evidence in the case and made a part of the record of the case.”
Mortality tables were introduced, showing deceased’s expectancy to be 24.5 years.
Defendant introduced Jay Tower, an engineer, who testified about knowing the deceased, when they arrived at Rayville, the cutting off of the caboose, and then said they were going to put one car on the house-track, shove back to .the main line, and put another car on the house-track, pull up over the switch, kick one car back, then pull out back to the main line. This was the usual and ordinary movement. Had been doing this every day, and are still doing it this way. You couldn’t e:o in every time you go to spot a car. He said when they had more cars to go they kick what car they want in there, and when they go back at the last they spot the cars at the house. That is the time they go down with the engine and spot them, after they get all the oars in that belong in there. This witness testified also that deceased said it was his own fault, and he further testified that Skipper told the boys to put this car to the house. Further testifying, witness said: “If we had been going to put only one car in there we would have gone down with the train and spotted it. By spotting a car, we mean — well, say there is a platform, and we are going to work a car of merchandise into the freight-house. A man that is standing there gives you a signal to back up like this. When the car gets even with that door, he will flag you down. That spots it. You uncouple, go on off, and leave. In other -words, that is placing the ear by the platform so it can be unloaded. When you spot a car you hold to it until you get it to the place where you want to leave- it. Then you uncouple from it and go away. There was another car to be spotted in there, a car we had in the train. ’ ’
Rogers, the brakeman, testified that Skipper told him to cut off the caboose and cut the air out ahead of the A. R. T. car, kick it in on the -house and shove four cars to the main line back to the caboose, and that deceased said, “Put the fifth car on the house, and you will work the merchandise while the boys up the train in the clear for the passenger train.” He testified that this switching movement was made every day. That it was about 8:40 in the morning, and a clear day.
B. F. Newton, another witness and an employee of the railroad company, testified that they stopped there, and cut the caboose off on the main line, took the train up, kicked one car to the house-track. That he cut the car that was kicked in there. He also said that this switching movement, kicking this car onto the house-track. was an ordinary and usual movement of the train at that place. That they had done it quite often while Mr. Skipper was conductor. That they would go in for a week at a time, making the same movement. That deceased told him to pnt this car on the house-track.
Jerry Hogg, the brakeman in the employ of the Missouri Pacific,, testified that, if the merchandise of Rayville and Collinston were not together, you could not spot but two cars at a time. That they had to make the switch and spot them so that they could go in and do their switching and leave the hind man to do the working of the freight. He also testified about what Mr. Skipper said about his injury, stating that Skipper said the car caught him before he could get out of the way. That the movement of the ear at this time was like it had been made ever since he had been on that run. Testified further that they generally do it all the time; the car is kicked in without an engine. That they certainly put in two cars that day and took two out. They did not kick but one car in, shoved the other in.
Chatterton, an agent of the railroad company, testified that he is familiar with the usual movements of the switching- cars to the house-track. That they ordinarily set the merchandise cars out there, and the rear brakeman and witness’ porter or yard clerk helps work the merchandise while the head brakeman takes the balance of them on down in the yards and does the switching. That they practically always kick the cars in there when there is more than one car. That his record shows two cars. That one of these cars that were in there was cut out with the train. Does not know how far the car went after it was kicked, whether below the depot or not, but it went past the office door. That the platform only accommodated two cars.
A physician then testified as to the injury and suffering of deceased, and other witnesses testified in rebuttal as to the place where the injury occurred, and that the deceased was out in the open where he could be easily seen.
As we have said, the appellant’s first contention is that the evidence was insufficient to support the verdict, and that plaintiff’s first instruction, heretofore set out, should not have been given.
The undisputed proof is that deceased was standing down by a car in plain view of the switch, and that the switchman who threw the switch and let the car that injured and killed Skipper in on the house-track, was looking towards Skipper, and that there was nothing to prevent his seeing him. The undisputed proof also is that Skipper gave them some directions about putting a car or cars in there. Some of appellant’s witnesses testify that there were two cars, other witnesses testify that there was only one, and that the deceased, who was the conductor, directed them to spot the car, and, when that was done, some of them would unload the merchandise while the others did switching elsewhere.
There is some conflict in the testimony as to whether there was one car or two cars. This, however, was a question of fact properly submitted to the jury, and there is substantial evidence to support the jury’s finding.
There is no dispute about what constitutes spotting a car. Spotting the car, as all the witnesses said, is placing it either to be loaded or unloaded. Spotted, or put at the place where it is to be loaded or unloaded. The witnesses all agree, too, that if there is but one car to be spotted, the train puts this car in, spots it, or gets it to the place where it is intended to be loaded or unloaded, and then uncouples and pulls out, and leaves the car there where it is needed. This is not only the undisputed proof, but it would be foolish, if there was but one car to spot, to uncouple from this car, kick it in and then go in with the train and couple on to it again and put it to the proper place, spot it, and then uncouple and pull out. No one claims. they do this. They do not spot cars this way when there is but one. They shove the car in, attached or coupled to the train, and, when they get the signal that the car is at the proper place, they stop them, uncouple, pull out, and leave the car there.
A blue-print is introduced, showing the location and situation of the points testified about, and, in addition to that, all the witnesses testify that deceased was standing at the end of the car, and, as some witnesses say, fix ing the coupling, and was in plain view of Rogers, the switchman, when he threw the switch, and before the ear that was kicked in there had got to the switch; and, -while Rogers swears'that he did not see him, some of the witnesses swear that he was looking at him, and all testify that there was nothing to obstruct the view. That deceased was in plain view.
This suit is brought under the Federal Employers’ Act, and, since this act does not define negligence, the question of whether the acts complained of amount to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between .the decisions of the Federal court and of this court as to what constitutes negligence.
The appellant contends that the Federal act does not embrace actions based upon the doctrine of discovered peril. It is contended that the discovered peril doctrine only embraces acts that are willful or intentional, and does not embrace negligent acts, and many decisions'of this court are cited in support of that contention. However, some of those decisions are based on the original lookout statute and on the theory that no one owed a trespasser any duty until his peril was discovered, and that there was no liability unless he was wantonly and willfully injured after the discovery of his peril. Moreover, under the law of this State at the time of those decisions, contributory negligence was a bar to recovery, and a trespasser on the track could not recover unless his peril was discovered and he was thereafter wantonly and recklessly injured. The more recent opinions, however, are that the railroad company is liable to a trespasser if it could, by the exercise of ordinary care, avoid the injury after it discovered the peril. This case involves the doctrine of negligence pure and simple, and not intentional wrong.
This court has repeatedly held that, when the perilous position even of a trespasser is discovered, the rail road company is liable if it could, by the exercise of ordinary care after it discovered the peril, avoid the injury, and failedoto exercise that care. In fact, the doctrine of discovered peril simply means that, when one person sees another in a place of danger or peril, he must exercise ordinary care to avoid injuring him, and, if he fails to do that, he is liable. It is a question of negligence or failure to exercise proper care.
It was said by the Texas court: “By the doctrine of discovered peril is meant that, where the danger of inflicting an injury is discovered by the person inflicting it in time to have prevented the injury by the exercise of proper care, he will be liable for injury proximately resulting from his own negligence, though the injury would not have occurred but for the previous negligence of the person injured.” Furst-Edwards & Co. v. St. Louis S. W. Ry. Co. (Tex.), 146 S. W. 1024, 1026.
The Virginia court has said: ‘ ‘ The doctrine of discovered peril is a qualification of the rule that contributory negligence bars a recovery, and involves the principle that, though plaintiff was guilty of negligence in exposing himself to peril, he may recover where defendant, after knowing of the danger, could have avoided the injury by the exercise of ordinary care, but failed to do so.” Chesapeake & O. Ry. Co. v. Corbin’s Admr., 110 Va. 700, 67 S. E. 179.
The doctrine of discovered peril means, where one person discovers that another is in peril- and negligently fails to use the means at his command to avoid the injury, when he could, by exercising reasonable care, have avoided the injury, he will be liable. To be sure, if one’s peril were discovered, and thereafter the wrongdoer willfully, and intentionally injured him, he would be liable. But there is no contention in this case that there was any willful or intentional injury, but the complaint alleges and the proof tends to show that, after the perilous position of deceased was discovered, the defendant’s servants negligently and carelessly injured’him.
The Federal act provides for a recovery for injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, etc. That is, if the negligence of the carrier or its servants or agents or employees causes the injury or the death, such carrier is liable, although the employee injured or killed was also guilty of negligence. It would indeed be a strange doctrine if a recovery could be had for negligence where the negligent servant did not happen to see the injured party at the time, and that no recovery could be had where he did see him.
The Congress, in passing the statute, evidently used the word negligence in the sense that it was generally used, or rather as it was defined, by the common law. And, so far as the liability is concerned, it is wholly immaterial whether the negligence that caused the injury was after the peril was discovered or before. The act makes the carrier liable whenever the injury or death results, in whole or in part, from the negligence of any officers, agents or employees of such carrier. It is therefore a question of negligence, and the negligence relied on in this case is negligence alleged to have occurred after the peril of deceased was discovered.
Lord Campbell’s Act, referred to by appellant, provides for recovery for death by the wrongful act, neglect or default. This, however, is a State statute, and has no application here, because the Federal statute alone must be looked tó in cases where injury results to an employee of an .interstate carrier while engaged in commerce between the several States. The carrier must he engaged in interstate commerce, and the injured employee must be employed by such carrier in such commerce. And when an injury occurs to such employee while so engaged, the State statutes have no application, Lord Campbell’s Act has no application, but whether or not there is liability must be determined by the Federal act alone.
We think there was ample proof to submit the question as to whether the appellant was guilty of negligence after the peril of deceased was discovered. .
Grus Roberts was asked to tell tlie jury, after Rogers came to the switch and after witness came on the road there, whether or not he saw Rogers look down towards Mr. Skipper. He said, “Yes sir, he was looking in that view all right, that is true enough.” If he was looking in that direction, all of the witnesses agree that there was nothing to prevent his seeing.
■Witness Dave Holman was asked this question: “I will ask you to tell the jury whether or not, before the car passed the switch, you saw Mr. Rogers looking down in the direction where Mr. Skipper was?” .And he answered: “He had his face turned in that direction, and was looking at him.” And again this witness said he was looking towards him and Mr. Skipper. We therefore think it is sufficiently clear that he saw the deceased before the car came on to the house-track and before he threw the switch.
Appellant’s next contention is that, under the Federal Employers’ Liability Act, no duty devolves upon a railroad company or its agents to maintain a lookout for employees. It is true that no statute requires the railroad company to keep a lookout. What the Federal statute does is to make the carrier liable for its negligence or the negligence of its agents or employees, if such negligence, in whole or in part, causes the injury or death of an employee. The lookout statute is not involved in any way. It is unnecessary to decide whether, under the Federal statute, failure to keep a lookout might or might not constitute actionable negligence. Certainly, if it was negligence and caused an injury, and the injured party did not assume the risk, the carrier would be liable. But that question is not involved in this case, and it is an necessary to discuss further the question of a lookout.
It is next contended that the evidence is undisputed that the switching was being done under orders of the deceased conductor. We do not agree with counsel in this contention. That is, in the contention that the conductor instructed any onevto kick the cars in there. The evidence is conflicting on'this question, but the preponder- anee seems to be that the conductor instructed them to spot the car, and the testimony is undisputed that that means to put it at the place where it is to be loaded or unloaded.
The testimony is in conflict as to whether there was one or two cars, but the preponderance of the evidence, we think, shows that there was but one car to be spotted. At any rate, there is a conflict in the testimony on this question^ and all of the evidence shows that, if there is but one car to be spotted, it is not kicked in, but is shoved in while still coupled to the train, and, when they get it to the place they desire to leave it, they uncouple, pull out, and leave it there.
Dave Holman testified, when asked to tell whether he heard Mr. Skipper give orders to .the trainmen: “Well, to spot that car.” This witness also testified, when again asked if he remembered what Mr. Skipper said to those people: “He told them to spot that oar at the freight-house so it could be unloaded.” He was then asked: “Was there only one car to be put on the house-track?” He answered: “That was all. That was Mr. Skipper’s orders.”
This witness further said he did" not know which car it was, but he told them to spot the car there at the house. He understood what he meant by that — to set it in so that it could be unloaded. Said he had seen them many times carried in there with the engine. That that is what is meant by spotting a oar.
As we have said, there is some testimony indicating that there were two cars to be put in, but whether there was one or- two was a question for the jury.
Jay Tower, one of the witnesses of defendant, testified that, when they had more cars to go on, they would kick the car in and go back at the last and spot the cars. This witness also says: “If we had been going to put only one car in there, we would have gone down with the train and spotted it. By spotting a car we mean— well, say there is a platform, and we are going to work a car of merchandise into the freight-house. A man that is standing here gives you a signal to back up like this. When the car gets even with the door, he will flag yon down. That spots it. Ton nnconple, go on off, and Leave. In other words, that is placing a car by the platform so it can be unloaded. • When yon spot a car, yon hold to it till yon get it to the place where yon want to leave it, then yon uncouple from it and go on out."
Will Rogers, the employee who threw the switch and let the car down there, said: “Mr. Skipper told me, he says, ‘Walter, yon cut off the caboose here and cut the air out ahead of this A.R.T. car, kick it in on the house and shove four cars on the main line back to the caboose,” and he says, “Put the fifth car on the house, and yon will work the merchandise while the boys put the train in the clear for the passeng’er train.”
Witness Newton testified that Skipper told him to put this car on the house-track. “We had to make the switch and spot them so that we could go in and do our switching and leave the hind man to do the working of the freight.”
Another of defendant’s witnesses, Chatterton, testified that they practically always kicked the cars in'when there was more than one car.
It therefore appears that the evidence is conflicting as to whether there was one or two cars to be spotted, and also there is some conflict about the instructions which the conductor gave.
There was a great deal of testimony about deceased’s injury and suffering, about what he said, about the defendant’s witness swearing that he said it was his own fault, and considerable testimony about what deceased was doing at the time, but we think it is unnecessary to set out any more of the testimony, sificé the only contentions made are those to which we have already called attention, and,- in addition to that, the contention of appellant as to instructions.
The antoellant complains of the .court’s giving instruction No. 5, requested by the plaintiff, which is an instruction on assumed risk, and the reason urged by appellant why said instruction should not have been given is that it contends that there was no negligence on the part of the defendant, and that the instruction was not applicable to the facts shown by the evidence and to plaintiff ’s cause of action based upon alleged discovered peril of deceased.
We have already shown that, while both parties talk about discovered peril, yet the suit is based on negligence —negligence alleged to have been committed after his peril was discovered, but it is none the less negligence because the plaintiff alleged when and how it occurred.
Appellant also complains of instructions Nos. 6 and 7. It argues that neither of these instructions were applicable to the cause of action alleged in plaintiff’s complaint under the Federal Employers’ Liability Act. What we have already said disposes of this contention.
It is next contended that the court erred in giving instruction No. 8 on the measure of damages. This instruction folloAved the Federal act by telling the jury that, if the deceased was guilty of negligence, it would be their duty to diminish the damages.
Appellant then contends that instructions requested by the defendant should have been given. We think the instructions given fully and fairly submitted - the questions to the jury, and that there was no error either in giving or refusing to give instructions.
It is next contended that the court erred in permitting counsel for plaintiff to argue that the brakeman, Rogers, saw the deceased and was conscious of his perilous position. But, when appellant’s attorney objected and asked how the car could have been diverted after it had been kicked over the switch, appellee’s attorney said, “Why, of course it could not.” What appellee’s attorney was contending was that he saw the peril of deceased before the car reached the switch point and before Rogers had thrown .the switch. And appellee’s attorney stated that, after the car had been kicked, it was running at a rapid rate of speed, and Rogers saw deceased in a perilous position and appreciated his danger, and should not have shunted the car on the house-track. That is, if he saw the danger of deceased after the car was kicked and before it reached the point of the switch, he should not have thrown the switch and thereby permitted the car to run down on deceased.
Appellant says that Congress has enacted no law, so far as it knows, providing for giving warning. This is not a question of giving warning. It is a question of whether the appellant was guilty of negligence in opening the switch and letting the car run down on deceased, who had his back turned to the switch, and doing this after he had discovered the peril -of deceased.
The question of whether the appellant was guilty of negligence and whether deceased was guilty of negligence was a question of fact for the jury. And where a verdict is based on substantial evidence, this court will not disturb it.. There must, however, be substantial evidence, evidence about which fair-minded men might differ, and not a mere scintilla.
There was substantial evidence to support the verdict of the jury, and the court’s charge as a whole correctly stated the law, and the judgment is therefore affirmed. | [
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McIíaN'ey, J.
Dick and Jack Huckabee, two boys aged 21 and 15 years, respectively, were indicted, tried and convicted in the Hempstead Circuit Court of the crime of possessing a still, and Dick was sentenced to one year in the pentitentiary and Jack to one year in the industrial school. This appeal is prosecuted to reverse these judgments on the ground that the evidence against them was not sufficient to justify the .jury in finding them guilty, especially so in view of the newly discovered evidence set up in a supplemental motion for a new trial, which will be hereafter referred to.
Appellants’ home is between a quarter and a half mile from where the three officers who testified on behalf of the State found a still and found two men working at the still. When the officers got within 75 or 100 yards of the still, the men who were working there ran away. These officers testified positively that these boys were the ones they saw working there. One of them left his coat, hat and rubber boots near the still, and ran up the road bareheaded, barefooted, and in his shirtsleeves, and in jumping a branch one of them fell into the water. The two boys who ran away from the still went in the direction of the Huckabee home, and the officers followed some few minutes later and arrested appellants, both of them denying their guilt. When the officers arrived at the Hucka-bee home, these two boys were not there, but very shortly came in from the field to the house, and were arrested. Neither of them was barefooted, bareheaded, or in his shirtsleeves, and neither was wet from falling in the creek. At the time the parties working at the still ran away, the officers fired some shots, and several witnesses ’in and about tbe Huckabee home testified that they heard these shots, and a short time thereafter saw two men, Sam Hansford and Wallace Bazemore, running from the direction of the shooting up the road, passing directly in front of the Huckabee home, and that Hansford was barefooted, bareheaded, and in his shirtsleeves. Appellants proved by a large number of witnesses that they were not at the still, but, on the contrary, were in their father’s field, repairing a fence, all the morning. Some of the witnesses who testified stated that they were there with them. The pair of boots found at the still did not fit either of the appellants, and the clothes and hat found there were not identified as belonging to either of these two boys.
Appellants were tried and convicted on April 18, 1927, and on the same day filed their motion for a new trial, which was overruled, and an appeal was prayed and granted to this court. On April 19, by permission of the court, they filed a supplemental motion for a new trial, setting up that, since their conviction, they had discovered that Sam Hansford would testify that he and Wallace Bazemore were the parties at the still at the time the officers testified that appellants were there, and that they were the parties who ran away from said still, instead of these appellants, and that appellants' had nothing whatsoever to do with it; that, in running away from the still, they ran by the Huckabee home, and that the hat, coat and rubber boots exhibited in court belonged to him, Sam Hansford. His affidavit to this effect was attached to the supplemental motion for a new trial, and he appeared in open court and testified to the same effect. The court overruled the supplemental motion, and appellants excepted.
We think the court erred in not granting appellants a new trial on hearing this evidence. The Attorney General contends that appellánts showed no diligence in obtaining or discovering this evidence and in producing it on the trial of their cases, and that therefore the judgment ought to be affirmed. It is undoubtedly true, as contended by the Attorney General, that -motions for a new trial are addressed to the sound discretion of the presiding* jjidge, and that it is only in cases of apparent abuse of that discretion or injustice that this court interferes. Armstrong v. State, 54 Ark., 364, 15 S. W. 1036. And'it is also true that this court’has held in numerous cases that a motion for* a new trial for newly discovered evidence should show diligence in getting such evidence on the trial of the case, and must ordinarily show an excuse why such evidence was not produced' at the trial. Ary v. State, 104 Ark. 212, 148 S. W. 1032; White v. State, 145 Ark. 170, 224 S. W. 435; Morris v. State, 150 Ark. 1, 233 S. W. 801. And no doubt it was under these well-settled rules that the learned trial judge refused to set aside the verdict in this case. We think there was a manifest abuse of the discretion of the trial judge in this case. The court was still in session. The trial had taken place on the 18th, and the motion for a new trial had been filed and overruled on the same day, and the supplemental motion was presented to the court on the next day, while the court was still in session, and, so far as the record discloses, the jurors were still present and an immediate trial could have been had. While appellants undoubtedly had just grounds to believe that Hansford and Bazemore were the guilty parties, yet it was not within their power to. comp el either to admit his guilt. The rules above announced do not apply to situations of this kind — situations where the guilty party comes into court after conviction of the innocent and announces that he is the guilty party, and that the- persons convicted are innocent. It is the object of the court, in the trial of all criminal-cases,-to bring about the conviction of the guilty and the protection and acquittal of the innocent. Had the newly discovered evidence been merely cumulative to that already before the court, the rules above announced would have been controlling. But -it is such an unusual and extraordinary thing for a person not charged with a crime to come into court and assume all the responsibility for- the crime charged against another that we do not think the diligence rule is applicable. Had appellants been acquitted, Hansford undoubtedly would never have admitted bis guilt, but, after appellants bad been convicted, be no doubt realized the. great wrong and irreparable injury that had been done them, and be therefore felt impelled to do what be = could to prevent the execution of a judgment upon innocent parties.
We do not think appellants should be held responsible for failure to produce Hansford at the trial and compel him to testify. For the error indicated the judgment will be reversed, and the cause remanded for a new trial. | [
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McFaddin, J.
This case involves the ownership of forty acres of land in Lawrence county, Arkansas. Appellant, Fritz Lewis, claims under a state deed and two years’ possession thereunder, and relies on § 8925 of Pope’s Digest. Appellee is the mortgagee of Harry Lewis (father of Fritz Lewis) and claims that the state deed held by Fritz Lewis was, in effect, a redemption by Harry Lewis, and that § 8925 of Pope’s Digest does not apply. 'Before considering these respective contentions we give an account of the events leading up to the present controversy.
Sometime prior to 1934 the said Harry Lewis, for value received, executed a note to the New England Securities Company for $800, and, as security, executed a first mortgage on the land here involved. The indebtedness and mortgage were duly assigned to the appellee before maturity; and when the indebtedness became past due the appellee (Fidelity Savings & Trust Company) filed a foreclosure suit against Harry Lewis in the chancery court of the Eastern District of Lawrence county. The foreclosure was filed December 20, 1934; and the sale by the Commissioner was on December 20, 1935; and the land was bought by the Fidelity Savings & Trust Company (the plaintiff in the foreclosure) for its debt of $800.
Before the sale was confirmed, Harry Lewis filed composition proceedings (on January 9, 1936)' in the United States District Court for the Eastern District of Arkansas under that section of the Bankruptcy Act, commonly designated as the Frazier-Lemke Act. This caused a stay of all proceedings in the said foreclosure suit; and this stay continued until January 23, 1940, as will be mentioned hereinafter. (The present Frazier-Lemke Act may be found in U.S.C.A., Title 11, § 203 ff, where the history of the first Frazier-Lemke Act may be found.) In his schedules in the said composition proceedings in the United States District Court, Harry Lewis listed the mortgage to the appellee on the land, and also listed unpaid taxes due the state and county on the land, but there does not appear in the record, here, any order made in the composition proceedings concerning these taxes.
At any rate, the 1933 state and county taxes were unpaid, and the land forfeited to the state in 1934 and was certified to the state in December, 1936.' Thereafter —on March 8, 1937 — John L. Fry obtained a deed from tlie State Land Commissioner for the said land for $41; and, five days later Joím L. Fry and wife conveyed the said land to Fritz Lewis for a consideration of $41. Harry Lewis, the mortgagor, lived on the land at all times until after 1941. In 1938, in the Frazier-Lemke proceedings, he still claimed the lands. He paid the taxes on the land for the years 1938 to 1941, inclusive. On June 10, 1937, he filed claim with the proper county authority claiming the land as a. homestead and therefore exempt from state taxes under Act 247 of 1937; and again on March 20,1942, he filed a similar affidavit. When there arose some necessity to secure the reinstatement of the Frazier-Lemke proceedings, Harry Lewis told the County Conciliation Commissioner-: “I think I will go ahead and reinstate the petition, but it is not a matter of any great importance; because I have already taken care of it. The land has gone back to the state, and I have arranged with John L. Fry to buy the land from the state, and after he buys it then to convey it to Fritz Lewis.”
The Frazier-Lemke proceedings were not finally dismissed until January 23, 1940. Immediately thereafter the Fidelity Savings & Trust Company completed its foreclosure suit by having the sale approved and the deed delivered on February 19, 1940. This present suit was filed by the appellee against Harry Lewis and Fritz Lewis, on December 16,1940, alleging in substance, inter alia, that the forfeiture to the state, and the deed to Fry, and from him to Fritz Lewis, were all a scheme to defeat the Fidelity Savings & Trust Company; and that the said deeds should be held a redemption by Harry Lewis; and that the said deeds should be canceled aiid title vested in appellee; and for all other proper equitable relief. A tender of $41 to Fritz Lewis for tax money was alleged. Fritz Lewis and Harry Lewis made joint answer and defense all through the trial, except that Fritz Lewis pleaded two years’ adverse possession under the state deed. Questions concerning rents and improvements were also in the pleadings and the evidence. •
Tlie chancery court entered a decree on September 28, 1943, finding that the Fidelity Savings & Trust Company was the owner of the land, and cancelling the state deed to Fry and Fry’s deed to Fritz Lewis as clouds on the title, and ordering possession to be delivered to the Fidelity Savings & Trust Company. The court found that the rents equaled the taxes and repairs; and gave neither side any money judgment. Fritz Lewis and Harry' Lewis have prosecuted this appeal; and, as previously stated, Fritz Lewis claims under the state deed and two years’ possession thereunder and relies on § 8925 of Pope’s Digest. The appellee claims that Fritz Lewis, in effect, redeemed for Harry Lewis and that, therefore, the statute-does not apply.
•Section 8925 of Pope’s Digest states expressly that it does not apply if: “the plaintiff, his ancestors, predecessors, or grantors was, (were) seized or possessed of the lands in question within two years next before the commencement of such suit or action.” Any possession of Fritz Lewis was by his father, Harry Lewis, who claimed that he remained on "the land as tenant of his son, Fritz Lewis. But Harry Lewis occupied a prior relationship to the Fidelity Savings & Trust Company, in that he was the original mortgagor, aúd his relationship as mortgagor to the Fidelity Savings & Trust Company was antecedent to the alleged tenant relationship to his son. Until he openly disavowed the antecedent relationship, he could not claim to be adverse to the mortgagor relationship; and no such disavowal was made.
We have repeatedly held that when the mortgagor permits the mortgaged premises to sell for taxes and to be purchased by a member of his family, or other confederate, then equity may treat the tax purchase as a redemption by the mortgagor. Cases directly in point are Adams v. Sims, 177 Ark. 652, 9 S. W. 2d 329; and Williams v. Maners, 179 Ark 110, 14 S. W. 2d 1104. See, also, Zimmerman v. Franklin County Savings Bank, 194 Ark. 554, 108 S. W. 2d 1074; Humphreys v. McKnight, 202 Ark. 715, 152 S. W. 2d 567; and Renn v. Renn, ante, p. 147, 179 S. W. 2d 657, decided April 17, 1944. In the last cited case we said: “Where property is allowed to forfeit for taxes, and then some member of the family (or other confederate) acquires a deed from the state or taxing agency, equity will examine the transaction to see if it was a fraudulent conveyance; and upon ascertaining such to be the fact, then the purchaser will be held a trustee, or the entire transaction will be held a redemption by the original owner. Regardless of. the form of relief, equity will pierce the sham of the fraudulent conveyance. ’ ’ The above quotation applies to the case at bar. Harry Lewis was all the time living on the land, and claiming it as his own, and receiving tax exemption because of it being his homestead. Fritz Lewis redeemed for his father, Harry Lewis, and therefore there was no adverse possession under § 8925 of Pope’s Digest. The equities are all with the appellee.
It follows that the decree of the chancery court was correct and is in all things affirmed. | [
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Griffin Smith, Chief Justice.
December 31, 1941, Victor S. Johnson paid Reafus Williams and Mattie Wyatt $600 for an oil and gas lease on eighty acres in Hempstead County.
It was stipulated that Cornelius Epps was the owner of 144 acres, of which the 80 acres leased to Johnson were a part. Epps died “between 1890 and 1900.” His heirs were named in the agreed statement. John, Frank, Bob, and Miranda (the latter having married Williams) were children of Cornelius. Frank .predeceased his father. His children were William, Thomas, and Fannie. Fannie died without descending heirs. Bob died intestate, survived by one child, Sylvester.
As one of the attorneys has expressed it, “for the purpose of this trial” it may be said that following the death of Cornelius, John and Miranda each owned^ an undivided third interest in 144 acres, while William and Thomas (sons of Frank) each owned an undivided sixth' interest. Certain descendants of Cornelius (some of whom were children of John, while other were children of Miranda) will be referred to later.
Following her father’s death — which probably occurred in 1899 — Miranda and her husband; who had been living on another farm, separated. Miranda moved into the house formerly occupied by Cornelius. When Cornelius died there were two houses on a part of the land designated as the 64-acre tract. Cornelius occupied one of these houses, while John (who died in 1928) lived in the other. Miranda subsequently moved to the 80-acre .tract. At the time of trial John’s heirs occupied or claimed the 64 acres, and Miranda’s heirs occupied or claimed the eighty. Until her death in 1919 Miranda occupied the 80 acres. Albert Williams (son of Miranda) moved away in 1921. He was followed by John Moore, who as tenant occupied the premises for three or four years. Three of Miranda’s heirs now live on the 80 acres — Reafns Williams, Mattie Wyatt., and Lizzie Wyatt.
In 1907 the entire tract left by Cornelius forfeited for taxes. Miranda and John — in separate accounts— were indebted to Briant and Company and to Beed and Company. Briant and Company, in the name of S. H. Briant, redeemed in 1911, as evidence by clerk’s deed. The 80 acres were sold to L. D. Reed, and Reed in turn made bond for title to Miranda and later conveyed. Briant conveyed the 64 acres to John Epps. There is evidence that John, as tó the 64 acres, and Miranda, as to the 80 acres, or their heirs, claimed the properties. The Chancellor found that John and Miranda had agreed upon the division, hut recognized that each of Frank’s heirs was a sixth owner. Briant’s purchase at the tax sale was treated as a redemption. It was further found that at all times subsequent to the death if Miranda and J olm, their children had acquiesced in the division made by the parents, and that 'there was an arrangement whereby those who occupied the land should pay taxes, make improvements, and retain the proceeds. This “family settlement,” it was held, was binding upon such heirs.
In 1930 Miranda’s children mortgaged the 80 acres to Doctors Don Smith and L. M. Lile, who subsequently undertook to foreclose.
In June, 1911, brothers and sisters of Reafus Williams and Mattie Wyatt quitclaimed to them. There is testimony that these parties, as claimants of the 80 acres, sought to delay the proceedings instituted by Smith and Lile. The plan was that if ownership were shown in Reafus and Mattie, who actually occupied the premises, recourse might be had to benefits of the Frazier-Lempke Act. Whether purchasers of the oil lease were charged with knowledge that the prima facie title thus shown in Reafus and Mattie was subject to the outstanding interests óf Frank’s heirs was a matter as to which testimony was heard.
There were numerous transactions, some unimportant, which it is contended shed light upon conduct and intentions of the plaintiffs below, dating from the time Miranda returned to her father’s home. Frank’s heirs had been gone forty-two years. It is argued that their acts constituted abandonment, but if actual intent to abandon should not be implied, then they were guilty of laches.
Briefly stated, effect of the decree is that the partition agreed upon by John and Miranda, while binding upon their heirs, did not affect the interests of William and.Thomas, who'-were Frank’s children; hence, it was held that Frank’s heirs still retained ownership of an undivided third of 144 acres. Inasmuch as the 80-acr'e tract only is included in the, Johnson lease, no further reference to the 64 acres is necessary if it be held that the Chancellor’s findings against abandonment, laches, etc., were not contrary to a preponderance of the evidence.
An inference might be drawn from the fact that Frank’s heirs, who for more than forty, years had not exercised acts of dominion over the land, intended that it should go to their aunt and uncle, or their children. They did not pay taxes. When Johnson’s agent — Harry B. Barnhart, a Texas attorney — made preliminary investigations leading to the lease, he did not ascertain that William and Thomas were interested parties; neither did he have information that Miranda’s children, in executing to Reafus and Mattie the deed of June 3, 1941, in effect made trustees of the grantees in that the purpose was to facilitate the plan to clear the land of debt, after which it was to be reconveyed. Barn-hart met an attorney of Hope — G. P. Casey — who represented Reafus. Casey mentioned the bankruptcy (Frazier-Lempke) matter. The Williams-Wyatt -lease had been brought to Barnhart’s attention by Vincent W. Foster, a Hope dealer.
Substance of Barnhart’s testimony is that he took the precautions ordinarily followed in such matters: examined records,, procured a list of creditors, had an abstract brought down to date, and deposited money in escrow to be paid the grantors when the mortgage should be satisfied.
Our view is, as the Chancellor found, that Johnson was an innocent purchaser in respect of the interests Lizzie, Ola, Ezell, Albert, Julie, and Sam quitclaimed to Reafus and Mattie, but that all of these parties jointly held a third of the eighty subordinate to Frank’s heirs.
Action of Reafus and Mattie, as reflected by this reóord, was not such as to divest William and Thomas of the interest left by their grandfather. The Court did not err in so holding.
When it is determined that William and Thomas did not lose their inheritances, and that as to them the so-called family settlement was not binding, but that it did bind the lineal heirs of John and Miranda, other issues become unimportant.
Affirmed.
McF addin, J., not participating.
A resident of Chicago, Illinois.
Reafus and Mattie are brother and sister.
After the appeal was lodged here, the death of Victor S. Johnson was suggested and his cause of action revived in the name of Alex Thompson, Administrator. It was shown that Johnson was survived by his widow, Minnie F. Johnson, and three children, Mildred E. Wolcott, Victor S. Johnson, Jr., and Robert E. Johnson, the children being the sole heirs and of age.
Sylvester died intestate while a young unmarried man and, therefore, without issue.
Sam Williams, Ola Wyatt, Reafus Williams, Julia Boyd, Albert Williams, Lizzie Wyatt, Mattie Wyatt, and Ezell Williams. | [
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Griffin Smith, Chief Justice.
An appropriation in Act 311 of 1943 made $200',000 available “. . . for repairs to existing buildings at the Benton site of the State Hospital.”
Necessity for substantial expenditures to recondition most of thirteen buildings comprising what is termed the original unit was predicated upon personal observations by members of the 'Board of Control, and upon detailed reports by Donald Leveck, a contractor whose ability was stipulated in the instant suit.
The buildings were begun in 1931 and completed a year later, but were not put into general use until the winter of 1936-1937. William Peterson was contractor. Lack of funds prevented installation of a central heating plant, but this facility was supplied subsequent to 1935, when an additional unit embracing thirteen buildings was added. Following completion of the first unit heavy damage occurred, much of which was due to non-use.
With Leveck’s written report as a basis the Board successfully appealed to the Legislature for funds. A condition of the appropriation is that ‘ ‘ Contracts let under the provisions of this Act shall be let to the lowest responsible bidder.”
In response to advertisements eight bids were submitted, the highest being $189,012.51. Lowest was that of William Peterson and D. J. MaeFadyen (partners)— $161,923.21. Second lowest bid was by Gr. W. May Construction Company — $162,745.54. The Board rejected Peterson & MaeFadyen’s offer and accepted the May proposal to do the work for $822.23 more than the Peterson & MaeFadyen bid. The latter successfully applied to Chancery Court for an injunction, alleging that the Board was about to proceed illegally.
The question is, Was it mandatory that the Board look only to the face of the bids and to financial responsibility of the bidders, or is the term “responsible” broad enough to confer discretion?
American and English Annotated Cases, 1913A, p. 497, emphasizes the opinion in Williams v. City of Topeka et al., 85 Kas. 857, 118 Pac. 864, 38 L. R. A., N. S., 672, where it is said that the phrase “lowest responsible bidder in a statute providing for competitive bids before awarding contracts for certain public improvements im plies skill, judgment and integrity necessary to a faithful performance of the contract, as well as sufficient financial resources and ability. ’ ’
A scope note (page 500) is to the effect that the Williams case is in harmony with authorities, “. . . the rule being well settled that where a statute requires municipal contracts to be let to the ‘lowest responsible bidder’ the duty of the officer letting the contract is not merely ministerial, but partakes of a judicial character, requiring the exercise of discretion. ’ ’
In People ex rel. Assyrian Asphalt Co. v. Kent, 160 Ill. 655, 43 N. E. 760, it is said that provisions for a.bond, with securities financially able and bound to respond in damages for failure on the part of a contractor was not, alone, necessarily sufficient, for “. . . a recovery of damages, aside from the expense incident to the suit, is never full compensation for the incidental damages, the injuries ánd annoyances resulting from incompetency or inefficiency. ’ ’ It was then said: “. . . the added requirement that the bidder shall be- responsible has a broader meaning than the mere financial ability to respond in damages.”
The Supreme Court of Maryland (Madison v. Board of Baltimore City, 76 Md. 395, 25 Atl. 337) went so far as to say that discretion of commissioners would not be reviewed “. . . unless it can be shown that such public officers have been guilty of fraud in the exercise of their discretion. ’ ’
In Street Improvement District v. Crockett, 181 Ark. 869, 28 S. W. 2d 331, it was said: “Everything else being equal, . . . the spirit, if not the latter, of the law, would require that the Board let the contract to the lowest bidder. But when, as here, everything else is not equal — when there are other important elements to be considered in connection with the amount of the bid— we think the statute vests in the Board the power as well as the duty of determining which of the bidders will best accommodate the purposes of the District. This necessity involves judgment and discretion, and the courts will not substitute their judgment for that of the Board when a mere matter of discretion is involved. ’ ’
It is not necessary to cite other authorities in support of the rule that a public board, operating under a statute such as Act 311, has discretion. The point is admitted by appellees; but, it is insisted, the Board abused its discretion and therefore should be coerced by the courts. ' .
Facts do not sustain this assertion. On the contrary, we do not hesitate to say that if the Board, acting reasonably, sincerely believed the low bidders would discharge the new contract as indifferently as it was thought William Peterson acted in 1931 and 1932, employment of the firm might have been an abuse of discretion.
Frank J. Ginocchio, architect, in a letter, addressed to the Board July 27, 1943, said: “We found that most of the trouble has been caused by leaks coming from the stone coping’, leaks coming from exterior walls, and in a good many places leaks coming from defective flashings.” Testifying in the case at bar he asserted:
“We noticed a lot of separation cracks we call fissures. That permits the passage of water between the brick and the wall, and into the wall. . . . Ordinarily I would say that the condition I found at Benton was not indicative of skillful and good workmanship; ... I found on the exterior masonry walls ‘worlds’ of hollow joints. ... I found them in all the original thirteen buildings. . . . The second unit of thirteen buildings was built by Wohlfeld of Dallas. . . . There was very little trouble with hollow joints in the buildings which were constructed by Wohlfeld.”
Other witnesses testified to similar observations.
Dr. George B. Fletcher, Chairman of the Board, said: “Frankly, we thought that, due to the small difference between the low and the next low bidder, that we would prefer to have some one else do the job, rather than the man who [erected the structures] in the first place. In onr opinion they had not stood np. That was the way we arrived at our decision. ... We went all over the tops of the buildings. They were well designed. We did not have the specifications. . . . We saw the holes in the walls and found there were plenty of defects. Results were all that we were interested in.”
Dr. A. C. Kolb, Superintendent, testified to facts that in his opinion justified the course taken. Substance was that the Board was endeavoring to secure the best results possible.
Against this is the fact that MacFadyen was not associated with Peterson when'the construction was done; that the work was carefully inspected from day to day— almost from hour to hour — under scrutiny of a competent Board; that two severe windstorms and perhaps mild éarthtremors had affected the walls; that Peterson and MacFadyen now have contracts amounting to millions of dollars and are able to execute bonds with reputable fidelity companies as sureties; that reputation of each member of the partnership is good, and that Peterson, in building the unit at Benton, followed plans and specifications.
We do not determine whether a preponderance of the evidence discloses that the contractors are or are not responsible; nor do we pass upon the weight of evidence offered upon the one hand to prove, and upon the other hand to disprove, that the work done by Peterson in 1931 and 1932 was defective. Repairs costing more than thirty thousand dollars have been made since the buildings were completed. It would be extremely difficult to say with assurance what the situation was when • Peterson completed his task.
What we are convinced of is that the Board acted in good faith when it concluded that for a difference of slightly more than eight hundred dollars it should reject the Peterson & MacFadyen bid and assign the work to another, as to whom there was no imputation of carelessness, indifference, or studied avoidance as to quality of workmanship.
As*trustees of the public fund, members of the Board were charged with a high degree of responsibility; and when they honestly believed, without carelessness or undue suspicion upon their part, that inferior results might characterize work done by an association which included one whose record was not satisfactory, it became the duty of these trustees to avoid what to them was an unnecessary risk.
Reversed, with directions to dissolve the injunction. Because of the public interest involved, the Clerk of this Court is directed to issue an immediate mandate. | [
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McFaddin, J.
This appeal mnst be decided on matters of procedure.
Appellant has sought to appeal from a decree of the chancery court concerning, monthly payments of maintenance. The record contains only the pleadings and decree.
I. Absence of the Evidence. At the threshold, appellant is met with a motion to affirm because of the absence of evidence; and appellant does not deny that the chancery court heard oral evidence before rendering the decree. Since none of the evidence is in the transcript, and the decree does not purport to incorporate the evidence upon which the case was heard, we must, under the long-established rule, indulge the presumption that the testimony heard by the chancery court sustained the decree. Jones v. Mitchell, 83 Ark. 77, 102 S. W. 710; Beecher v. Beecher, 83 Ark. 424, 104 S. W. 156; Murphy v. Citizens’ Bank of Junction City, 84 Ark. 100, 104 S. W. 187 and 934; Whatley v. Whatley, 205 Ark. 748, 170 S. W. 2d 600; also, other cases in West’s Ark. Digest, “Appeal and Error,” § 907 (4). We then examine the record to see if any reversible error appears on the face of the decree.
II. Exhausting Relief in the Lower Court. That portion of the decree, of which appellant here complains, reads:
“The defendant, C. J. Beard, is released from all further monthly payments, and the rent to be paid plaintiff fixed at $72 per year, and the same is due December first of each succeeding year. ’ ’
Appellant says in her brief:
“This appeal seeks an interpretation of an order of the Phillips chancery court.”
Thus, appellant is asking this court to interpret the decree of the chancery court and establish what it means. If the order means that Charles J. Beard is relieved only from future payments (i.e., due after the order), then appellant is not complaining. If the order means that Charles J. Beard is relieved from all past-due payments, as well as future payments, then appellant is aggrieved.
This request to the Supreme Court for an interpretation of an order of the chancery court is not an appeal. In 30 Am. Jur. 834, in discussing the interpretation of judgments, the rule is stated:
‘ ‘ The mere interpretation of a judgment involves no challenge of its validity.”
It is only when a person is definitely aggrieved that there can be an appeal. Appellant should have moved the chancery court to make clear the order, and then, if aggrieved, the appellant might have appealed. A party who conceives himself aggrieved must move the court to correct the same before he has any standing in this court.
Section 2783 of Pope’s Digest is § 2174 of C. & M. Digest, and § 1233 of Kirby’s Digest, and § 886 of the Civil Code, and reads:
“A judgment or final order is not to be reversed for an error which can be corrected on motion in the inferior courts until such motion has been made and there overruled.”
Some of the cases construing this section are: Miners’ Bank of Joplin v. Churchill, 141 Ark. 211, 216 S. W. 965; Boone County Bank v. Byrum, 68 Ark. 71, 56 S. W. 532; Long v. De Bevois, 31 Ark. 480. These cases point out that the lower court must be given an opportunity to correct a supposed error before the Supreme Court will entertain jurisdiction. Appellant by timely motion to the chancery court should have pointed out the alleged ambiguity in the order, and given the chancery court an opportunity to clarify the order. Then if the appellant be still aggrieved, there would be the right of appeal.
Since the remedy in the chancery court has not been exhausted, this appeal must be dismissed. | [
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Knox, J.
Prom a judgment entered in conformity with a verdict finding him guilty of embezzlement appellant prosecutes this appeal.
The evidence, when we view it, as we must, in the light most favorable to the state, discloses that the prosecuting witness, Jim Powell, and his wife, reside, and at all times mentioned have resided, in Lafayette, county, about eight miles north of Lewisville. In January, 1942, appellant came to their home, and-represented himself to be a wealthy oil man from Texas, who owned interests in several wells, a refinery and, also, owned a large place on the Gulf Coast. Declaring that he was attempting to secure oil and gas leases covering lands in the vicinity for the purpose of drilling a well in search of .oil and gas, he urged -Mr,. and Mrs. Powell to rent him a room so lie would be situated near the scene of his activities. They at first refused, but after much persuasion finally admitted appellant to their home. The prosecut-, ing witness and his wife are devout Christians. Appellant by his words and conduct assumed the role of a devout Christian also. Mr. Powell testified that appellant’s attitude ami protestations of faith were such as to induce him to believe that appellant “was as good a man as (he Powell) was ever around,’’ and that he thereby fully gained Powell’s confidence.
Appellant and his wife lived in the Powell home -nearly two months. Almost every week end appellant would make a trip to Texas. Appellant advised Powell that he had received advance confidential information indicating that certain wells then being drilled in Texas would likely be producers of oil. Appellant explained to Powell that such information made it possible for him to, and that in repayment of favors shown him by Powell he would, if Powell so desired, take some of Powell’s money to Texas and purchase in Powell’s name and for his account royalty interests in land located near these wells, and that later when the probability of production in these wells had become generally known he would assist Powell to sell this royalty at a substantial profit. After talking the matter over with his wife, Powell decided to avail himself of the services, knowledge and experience of his newfound friend, and take a flier in Texas royalty to the extent of $2,000. He tendered appellant a check in this amount, but appellant insisted upon cash, thereupon, Mr. and Mrs. Powell drove into Lewisville and appellant followed in his car. Both cars were parked in front of the bank. Mr. Powell went in alone and withdrew $2,000 from his account, came outside and delivered it to appellant in Mrs. Powell’s presence. Thereupon, appellant made and signed a promissory note on a printed form which he had with him in the principal sum of $2,000, bearing interest at 8%, due 60 days from date, and delivered the same to Powell. Powell says that he had requested no such instrument, but that appellant “just volunteered to write out a paper, claiming there were so many accidents, and a fellow never knew what would happen, and he fixed the paper so if anything happened while he w;as gone, we could take it into the bank and collect the money, if he got killed or anything happened.” Both Powell and his wife deny that the transaction was a loan, appellant on the other hand insists that he borrowed the money and that all parties understood that it was a loan of money — and that the relation between him and Powell-was that of debtor and creditor.
Appellant went to Texas. When he returned he told Mr. and Mrs. Powell that he had procured the royalty, and that as soon as he got everything straight he would take them to Texas where they would sell enough to get their money back and hold the rest. Prom time to time thereafter, upon returning from various trips to Texas, appellant explained that the royalty deals had been held up because of delay in getting the abstracts of title.
Appellant admits that he obtained $2,000 from Powell, but he insists that the transaction was a loan.; he testified that he agreed to pay Powell interest at the rate of 8% per annum, and also give him a $100 bonus for the loan of the money for a period of sixty days. He testified that at the time he obtained the money he intended to invest it in Texas royalty — not for Powell but for himself — that he had previously told Powell that such was his intention; that upon obtaining the money he went to Texas, but did not buy royalty, because the well being drilled by Shell Petroleum Company, in the vicinity in which he had expected to buy royalty had begun to look unfavorable as a potential producer of oil; that he invested $700 in oil leases, and paid, personal debts with the remaining $1,300.
At the close of the state’s case, appellant moved for a directed verdict of not guilty because (1) “the state has failed to prove venue in Lafayette county”; (2) “the state has failed to prove that the defendant took the property with the intention to embezzle same” and (3) “Jesse Powell accepted from the defendant a promissory note for $2,000, the money involved herein. ” ■
The motion was overruled and exceptions saved. At the close of the whole case the motion was renewed, again overruled and exceptions saved. The action of the court in overruling the motion for a verdict of acquittal is the sole ground relied on for reversal here.
We prefer to discuss the three reasons urged in support of the motion for a directed verdict in inverse order to the way they are set out m the motion.
The third reason presented in the motion, is that “Powell accepted from the defendant a promissory note for $2,000, for the money involved herein.”
As was said in Morgan v. State, 169 Ark. 579, 275 S. W. 918: “A charge of embezzlement could not be predicated upon the mere failure.to repay loans” — so if the transaction between Powell and appellant amounted merely to a loan of money, and created between them a relation of debtor and creditor, the appellant could not be guilty of embezzlement. The fact that appellant executed and delivered a note, and Powell accepted the same, is evidence that the transaction was in fact a loan — ‘but it is not conclusive evidence of that fact. Evidence was offered by the state relative to the circumstances surrounding the making and delivery of such instrument, from which the jury could have found that no loan was made by Powell to appellant. The issue, therefore, was, and properly should have been, submitted to the jury, and the court did not err in denying appellant’s motion for a directed verdict on this ground.
The second reason assigned by appellant in support of his motion for a directed verdict is “that the state has failed to prove that the defendant took the property with the intention to embezzle same.”
It is essential to the prime of embezzlement that there be a fraudulent intent on the part of a fiduciary to convert the property of another to his own use. Kent v. State, 143 Ark. 439, 220 S. W. 814; but where there has been a wrongful conversion of a fund criminal intent to embezzle may be inferred from the act itself. Gurley v. State, 157 Ark. 413, 248 S. W. 902.
Although the second ground relied on to support the motion for a directed verdict is specifically defined therein by the language above quoted, appellant now on appeal undertakes to change, vary, or add to this ground of objection by contending that a verdict should have been directed because the state failed to prove that appellant conceived the intention to convert the money after he came into the lawful possession thereof.
Counsel for appellant argue that even where other necessary elements of the crime of embezzlement are preséut, yet if at the time the money is received there is already fixed in the mind of the fiduciary the intention to convert the same to his own use, he is guilty of larceny and not embezzlement, and cite as authority Ark. Nat’l Bank v. Johnson, 122 Ark. 1, 182 S. W. 533; Hall v. State, 161 Ark. 453, 257 S. W. 61; Morgan v. State, 169 Ark. 579, 275 S. W. 918.
As previously pointed out, this specific question was not presented to the trial court. Appellant’s motion was based upon the general ground that no intention to embezzle was shown — and not upon the ground that the evidence failed to show that such intention was conceived after possession of the money was obtained.
It is well settled that this court will not pass upon a question which was not presented to' the trial court. In the case of Larman v. State, 171 Ark. 1188, 286 S. W. 933, the trial court admitted certain evidence over an objection based on. the sole ground that it was incompetent because it was proof of a different offense. On appeal it developed that the testimony was subject to the objection that it violated the rule against hearsay. Because this latter "objection had not been presented to the trial court this court declined to consider it.
Appellant here having founded his motion in the trial court upon the ground that the state had failed to prove intention to convert, will not now be heard to say that the motion should have been granted because the state had failed to show that the intention to convert came to him after he came into possession of the money.
In the case of Compton v. State, 102 Ark. 213, 143 S. W. 897, a school director drew and cashed a warrant for a sum in excess of a fee due an attorney for the district, paid the attorney his* fee and converted the remainder to his own use. The director was indicted, tried, and convicted of embezzlement. One of the defenses offered was that he could not be held guilty of embezzlement since he had not come into possession- of the money rightfully. In disposing of this argument, Mr. Justice Hart, speaking for the court, said: “They strongly insist, however, that because the defendant acquired possession of the excess, which he converted to his own use contrary to his duties in the matter, he did not receive it Iona fide and is not guilty of embezzlement. As said by Mr. Bishop, why should not the rule of estoppel, known throughout the entire civil department of our jurisprudence, apply equally in the criminal? If it is applied here, then it settles the question; for by it when a man has received a thing of another by virtue of his fiduciary relation to him he can not turn around and deny that he received it in that capacity. 1 Bishop’s New Criminal Law (8 ed.), § 364. The defendant here received the money of the school district by virtue of his relation of trust and confidence to .the members of the school board, and the money was received wholly and exclusively for the benefit of the school district. That is to say, it was received by him for the sole and express purpose of paying a debt of the school district, and lie can not take advantage of his own wrong to escape the penalties of the statute by saying that he was not a bailee of the excess for the reason that he received it by virtue of his own wrongful act.”'
By the same process of reasoning it may well be said in the case at bar that appellant, having obtained possession of this money by means of representations made by him to Powell that he intended to invest it in Powell’s name and for Ms account and benefit, will not now be heard to say that he had no such intention, but on the contrary had already formed the intention to convert it to his own use. In any event the jury were entitled'to consider the statements made by Mm at and before the time he obtained possession of the money as evidence of his intentions, and he cannot complain if from those statements they reached the conclusion that he conceived the intention to steal only after he came into possession of a sum of money so large that it created a temptation beyond Ms power to resist. Even if the motion had assigned as a reason or ground’in support thereof the lack of evidence to show that the intent to convert followed obtaining possession of the money, the motion would have been without merit in such regard.
The remaining ground offered by appellant in support of his motion is that the state failed to prove venue in Lafayette county. The argument is that there is no evidence that appellant formed the intention to convert, or that he actually converted this money in Lafayette county, Arkansas.
Yenue may be established by circumstantial evidence, and the proof is sufficient if from all the circumstances it may be fairly inferred that the crime was committed in the county charged in the indictment. Walker v. State, 182 Ark. 45, 30 S. W. 2d 819; Harris v. State, 186 Ark. 6, 52 S. W. 2d 632; Farr v. State, 99 Ark. 134, 137 S. W. 563. ’
In the early case of Wallis v. State, 54 Ark. 611, 16 S. W. 821, it was held that locality of the crime of embezzlement was sufficiently proved by evidence that defendant resided and collected the money in the county of the venue, and that when last seen it was in his custody in that county. •
Under the provisions of § 26 of Initiated Act No. 3 of 1936 there is a presumption that the offense was committed within the jurisdiction of the court, “unless the evidence affirmatively shows otherwise.” 1937 Acts, p. 1395.
Whether the crime was committed in Lafayette county was under the facts and circumstances disclosed by this record a jury question — especially so because of the provisions of Initiated Act No. 3 aforesaid. The court did not err, therefore, in refusing to direct a verdict because of lack of sufficient proof to establish venue.
Finding no error, the judgment is affirmed.
McFaddin, J., disqualified and not participating. | [
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Robins, J.
The State of Arkansas, on January 26, 1938, proceeding under Act No. 119 of the General Assembly of Arkansas, approved March 19, 1935, brought suit in the lower court to confirm its title, arising from forfeiture for nonpayment of taxes, to the northeast quarter of the southeast quarter of section 21, to'wnship 1 south, range 12, west, and other lands in Pulaski county, Arkansas. Decree of confirmation as prayed was rendered by the court on November 10, 1942.
On July 19,1943, appellant, Percy Jaedecke, filed an intervention in the confirmation suit, alleging that he was the owner of said tract, and that the sale of the land to the state for nonpayment of taxes was void on account of lack of proper notice of said sale and failure of the collector to file the delinquent list with the clerk within the time fixed by law, and appellant prayed that appellee, William Rummell, who was said to claim some interest in the land, be made a party, and that the sale of the land to the state for nonpayment of taxes be declared void and the title to the land be quieted in appellant.
Summons issued on appellant’s intervention was served on appellee and he filed answer alleging that the land forfeited to the state for nonpayment of taxes of 1934; that the state sold and conveyed the land to Jack Scruggs on August 8, 1988; that Jack Scruggs sold and conveyed the land to appellee, and that appellee and his predecessor in title had been in actual possession of said land for more than two years, claiming same under said deed from the state; and appellee alleged that all right of appellant as to the land was barred by the statute of limitations of two years under the provisions of § 8925 of Pope’s Digest of the laws of Arkansas.
The cause was tried in the lower court on an agreed statement of facts in which it was stipulated that appellant, a resident of Wisconsin, acquired the land in 1925, and paid taxes thereon for that and subsequent yeans up to and including 1933, but that the taxes for 1934 not being paid the land was forfeited and sold to the state on November 4, 1935; that the collector did not, in the time required by law, file the list of lands delinquent for taxes of 1934 with the clerk and that the clerk failed to publish notice of the sale as required by law; that the state brought suit to confirm its title on January 26, 1938, arid decree confirming the state’s title was entered on November 10,1942; that on August 8,1938, during the pend-ency of the confirmation proceeding, the State Land Commissioner sold and conveyed the land to Jack Scruggs, who soon thereafter took actual possession of it, built a building thereon, and occupied -the land until September 5, 1939, when he sold it to appellee, who immediately took possession of the land and built a home thereon; that appellee has, since September 5, 1939, occupied and farmed the land, completing his payments to Scruggs and obtaining Scruggs’ deed for the land on July 20, 1942; that Scruggs paid the taxes on the land for 1938, and appellee had paid them for the years 1939 to 1942, inclusive; that when appellant filed his intervention he paid over to the clerk $78.67, which lacked $1.09 of being equal to the amount of the taxes, penalty and costs for .which the land sold, plus taxes that would have accrued had the land remained on the tax books at the same valuation, and at the hearing of the case intervenor deposited the additional sum of $1.09 with the clerk.
The chancery court found the issues in favor of appellee and entered decree dismissing appellant’s intervention for want of equity.
For reversal of the lower court’s decree appellant urges: (1) that the state could not sell the land during the pendency of the confirmation suit; (2) that the effect of § 6 and § 9 of Act 119 of 1935 was to give appellant new and additional right to redeem his land from the forfeiture up and until the expiration of one year from the date of the confirmation decree provided for by this act; and (3) that appellee was not entitled to the benefit of the two-year statute of limitations provided by § 8925 of Pope’s Digest. .
I.
To sustain his contention that the state’s sale of the land to appellee was void because it was made during the pendency of the confirmation suit, appellant relies on the decision of this court in the case of St. Louis Refrigerator & Wooden Gutter Company v. Langley, 66 Ark. 48, 51 S. W. 68. In that case it was held by a divided court that the state could not, after the filing of an'“overdue tax” suit, dispose of lands included in such suit until the termination thereof.
The “overdue tax” suit involved in that case was brought under the authority of Act No. 39 of the G-eneral Assembly of Arkansas, approved March 12,1881, entitled “An Act to Enforce the Payment of Overdue Taxes.” This act authorized the institution of a suit in equity by any citizen, who might give security for costs, not only to enforce the lien of the state on any lands on which taxes assessed had not been paid, but also to compel the assessment and foreclose the tax lien on lands which had not been assessed. The act directed that, where any of the lands mentioned in the complaint had been sold to the state for nonpa3ment of taxes, that fact, should be set up in the complaint and a summons issued against the state auditor, commanding him to appear and show cause why the sale to the state should not be declared void and the land taxed as if no such forfeiture had oc curred; and it was provided that in such case the court should inquire whether the sale to the state was void, and if it was found to be void the court should proceed to enforce the lien against the land as if no sale to the state had occurred. By § 11 of the act, the owner of any lands sold under the “overdue tax” proceeding was given the right to redeem same within two years after the sale, whether the land was sold to the state or to an. individual.
The difference between the proceeding authorized by the Act of 1881 providing for the “overdue tax” suits and the proceeding authorized by Act 119 of 1935 providing for a suit to confirm the state’s title is apparent. The first was a proceeding which might be instituted b3^ a citizen to foreclose the tax lien against lands on which taxes had been assessed but not paid, and against lands which had escaped assessment. The latter proceeding is a suit to be instituted by the state in order to quiet and confirm its title to lands already sold to it'for nonpayment of taxes. The two acts are utterly dissimilar in purpose and in method of execution.
Furthermore, in its opinion in that case, the court expressly stated that “There is nothing in the record, either in the pleadings or proof, that would justify us in passing upon the question of limitations, either of two or seven years.” So it clearly appears that the court in the cited case reserved from its decision the question of the rights of one depending on the two-year statute of limitation. In the case at bar the defense of appellee was based on his plea of limitation, under § 8925 of Pope’s Digest. The decision in the case of St. Louis Refrigerator & Wooden Gutter Company v. Langley, supra, does not control here.
There is nothing in the act'providing for the confirmation suit under review in this case that deprives the state land commissioner of the right to sell lands of the state which have been included in a confirmation suit during the pendency thereof. These confirmation suits frequently remain on the docket of the chancery courts for many years. In the instant case the complaint was filed on January 26, 1938, and tlie decree was- not rendered until November 10, 1942. Tlie legislature did not intend that by the filing of the confirmation suit the power, of the state to dispose of the lands embraced therein was suspended until the termination of the suit. This would place it within the power of the attorneys representing the state and the lower courts to delay indefinitely the alienation by the state of these forfeited lands, thereby preventing the state from-collecting revenue therefrom, and preventing the acquisition of these lands by citizens who might cultivate, improve and make good use of them. Certainly there is no express language in the act justifying such a construction nor can any such interpretation be reasonably implied. This court has frequently sustained the title of an owner' who had purchased from the state, pending a confirmation proceeding, land included in such suit. Bluford v. Parsons, 194 Ark. 253, 106 S. W. 2d 578; Beloate v. Taylor, 202 Ark. 229, 150 S. W. 2d 730; Farrell v. Sanders, 204 Ark. 1068, 166 S. W. 2d 889; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
II.
Appellant bases his argument that he had the absolute right to redeem his land upon the following ^ of Act 119 of 1935:
“Section 6. Any person, firm,-corporation, or improvement district claiming any interest in any tract or parcel of land adverse to the state shall have the right to be made a party to the suit, and-, if made a party, the claims of any such person, firm, corporation, or improvement district shall be adjudicated. If any person, firm, corporatioiror improvement district séts up the defense that the sale to the state was void for any cause, such person, firm, corporation or improvement district shall tender to the clerk of the court the amount of taxes, penalty and costs for which the land was forfeited to the state, plus the amount which would have accrued as taxes thereon had the land remained on the tax books at the valuation at which it was assessed immediately prior to tlie forfeiture; provided, that there shall be credited on the amount due, any taxes that may have been paid on the land after it was forfeited to the state. In case any person, firm,' corporation or improvement district so made a party defendant to the proceeding as hereinabove provided shall establish a valid defense, a decree of the court shall be rendered in favor of such defendant, with respect to the tract .so affected and shall quiet the title thereto in such defendant, free from any claim of the state therein, upon payment by said defendant of the total amount of taxes, penalty and costs as hereinabove mentioned. ’ ’
“Section 9. The decree of the chancery court confirming the sale to the state of such real property, as aforesaid, shall operate as a complete bar against any and all persons, firms, corporations, ¿ptusi-corporations, associations, and trustees who may thereafter claim said property except as hereinafter provided; and the title to said property shall be considered as confirmed and complete in the state forever; saving, however, to infants, persons of unsound mind, imprisoned beyond the seas, or out of the jurisdiction of the United States, the right to appear and contest the state’s title to said land within one year after the disabilities are removed. The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside insofar as it relates to the land of the petitioner by filing a verified motion in the chancery court that such person had no knowledge of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. The chancellor shall hear such defense according to the provisions of this act as though it had been presented at the term in which it was originally set for trial.”
It will be noted that nowhere in the two quoted sections of the act, which are solely relied on by appellant, is the word “redeem,” or any word of similar meaning, used. The right therein extended to the landowner is not a right to redeem his land, but a right to show that it was improperly sold for taxes, and, as a prerequisite to the exercise of this right, the landowner is required to de posit with, the clerk the amount due for taxes, penalty, and costs. Under a strict definition of the terms, a right to redeem from a tax sale is essentially different from a right to contest a tax'sale. The right of redemption is an act of grace extended by the sovereign and it exists not only as to void but also as to valid sales; while a right to make a defense against such a sale can be appropriately exercised only when the sale is void. In. the case of Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945, Chief Justice Bunn, speaking for the court, said: “Nor can one consistently petition to be allowed to redeem, and at the same time call in question the tax title of the purchaser; for, in the very nature of things, one who applies to redeem must admit the regularity of the forfeiture and tax sale, or at least must waive any right to call the same in question, . . .” We conclude that the act (Act 119 of 1935) does not create any such a new right of redemption as would enable appellant to effect a redemption of the land here involved.
III.
It is finally urged by appellant that, since this is a proceeding on the' part of appellant to redeem, rather than a possessory action for the land, appellbe may not plead the two-year statute of limitations (provided by § 8925 of Pope’s Digest) in bar of appellant’s right.
In his intervention appellant alleged the invalidity of the sale of his land for taxes and asked that the tax sale be held invalid and vacated. These allegations were sufficient to stamp the proceeding thenceforth a contest of the validity of the tax sale. The statute relied on did not give appellant any right to redeem in addition to that conferred by the general law, and there is nothing in the language of the act (Act 119 of 1935) authorizing the filing of the confirmation suit by the state that indicates that the legislature intended that the provisions of § 8925 of Pope’s Digest should be inoperative as to lands that might be included in such suit and disposed of by the state after the filing of the confirmation suit. To give the act the construction contended for by appellant would violate the spirit and intention of the. act, which was to provide a method of strengthening and validating the title of the state, and its grantees as to lands forfeited for nonpayment of taxes and not to extend a new right of redemption, capable of being exercised over an indefinite length of time, by the landowner who had neglected to pay his taxes.
The agreed statement of facts shows that appellee and his predecessor in title had been in the actual possession of this land for more than four 3rears before appellant instituted the proceeding here involved. Although appellant had the title to the land he paid no taxes thereon after 1934 and did no act evidencing any claim of ownership during a period of nine years thereafter. Before appellant filed his intervention in 1943 the actual occupancy by appellee and his grantor, under the deed from the state, for a period of almost five years, had vested a good title in appellee, as against any claim of ownership on the part .of appellant. Carpenter v. Smith, 76 Ark. 447, 88 S. W. 976; Ross v. Royal, 77 Ark. 324, 91 S. W. 178; Dickinson v. Hardie, 79 Ark. 364, 96 S. W. 355; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390, 11 L. R. A. N. S. 772; Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610; Terry v. Drainage District No. 6, Miller County, 206 Ark. 940, 178 S. W. 2d 857; Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016.
The decree of the lower court is accordingly affirmed. | [
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Robins, J.-
Carrie Marshall, of Piggott, Arkansas, being unmarried, on May 31, 1938, executed her last will and testament, by which she devised and bequeathed her property to her sister, Lee Ola Sowell (now Housman), the appellee. It is asserted by appellants that Mrs. Marshall subsequently married J. D. Mitchell. She died on April 22,1943, leaving no children, but leaving surviving her two brothers, J. M. Sowell and George A. Sowell, and Mrs. Alice Dale Sowell Grant, Mrs. Katie Belle Sowell Scogin, Edgar Allen Sowell and Zelma Marie Sowell, who are children of E. A. Sowell, a deceased 'brother of the testatrix; and these heirs at law of the testatrix are appellants herein.
The said will was offered for probate by Mrs. Lee Sowell Housman on April 29, 1943, and'on May 22, 1943, the probate- court made an order admitting the will to probate and directing the clerk to issue letters testamentary to appellee, who was named therein as executrix.
On October 23, 1943, appellants filed in the probate court what they denominated as a “ Motion to Have Will Declared Revoked and to Vacate Order Granting Letters Testamentary.” In this “motion” it was set forth that subsequent to the execution of the will involved herein Mrs. Marshall married J. D. Mitchell and that by reason of this marriage her will was revoked. Notice of’the-filing of the “motion” was duly given to appellee. Appellants, on January 11,1944, filed an amendment to their “motion” in which they set up that the filing of the will and securing letters testamentary thereon constituted a fraud on the court and on their rights. Appellee filed a response, pointing out that the term of court at which the order probating the will had been made had lapsed, and that therefore the court had no power to grant the “motion,” and further that the attorney representing appellants had represented two other collateral heirs (M. U. Sowell and Sarah Julia Stephens),- who had appeared in the proceedings wherein the 'will had been admitted to probate, and that this attorney “at all times had knowledge of what has been done in .this matter.” On January 11, 1944, the probate court made an order overruling appellants’ “motion”; and to reverse that order this appeal is prosecuted.
By Act No. 401 of the General Assembly of Arkansas, approved March 27, 1941, it is provided: “That in any case where a will has been admitted to probate without notice having previously been given to the heirs of the deceased testator, a contest of the probation or of the legality of such will-may be heard by the court probating the same. Any heir of the deceased testator may, within six months after the probation of such will, but not thereafter, file a complaint in said court setting out the grounds upon which the legality of such will is contested, and making defendants to the complaint all heirs and legatees of the deceased testator not joined as plaintiffs, and causing notice to be served upon all defendants for the time and in the manner required by law for service upon defendants in Chancery Court cases. ’ ’
While this statute authorizes a contest of a will, probated without notice to the heirs of the deceased, by Way of a proceeding filed within six months after the will is probated, it does not in express terms require that such proceeding be an independent one. By § 14521 of Pope’s Digest of the Laws of Arkansas it is provided that marriage of a female works a revocation of a will executed by her before her marriage. Hence, since the “motion” recited that the testatrix had married after she executed the will, it contained an averment which, if proved, would establish the revocation of the will — thus alleging a ground which would call for an order setting aside the probating order.
In the case of Sharp v. Drainage District Number 7, 164 Ark. 306, 261 S. W. 923, Judge Hart, speaking for the court, said: “Contrary to the common law rule, under our Code every reasonable intendment and presumption is to he made in favor of a pleading . . .” The same rule is laid down in many other opinions of this court. Some recent cases in which this rule has been applied are: Beene v. Hutto, 192 Ark. 848, 96 S. W. 2d 485; Arkansas Bond Company v. Harton, 191 Ark. 665, 87 S. W. 2d 52; Shoptaw v. Sewell, 185 Ark. 812, 49 S. W. 2d 601; Holcomb v. American Surety Company, 184 Ark. 449, 42 S. W. 2d 765. The lower court should have, under our liberal system of procedure, treated this “motion” as a substantial compliance with the terms of the above quoted statute. It is conceded that due notice of the filing óf the motion was given to appellee, whose interest alone was adverse to that of appellants. The other heirs could not he prejudiced by a failure to join them, and ¿ny defect of parties could have been remedied by an order of court requiring that heirs not joining in the “motion” be made parties and have notice of the proceeding.
-It appears from the record that two of the heirs appeared and agreed that the will he probated, but this action would of course not be binding on those heirs of the decedent who had no notice of the proceeding to probate, and who did not appear.
It follows from what has been said that the order of■ the probate court must be reversed and this cause is remanded with directions to the lower court to try any issue that may be raised by the “motion” and.the response or any additional response that may be filed by appellee, and for such further proceedings not inconsistent with this opinion as may be proper. If, as suggested in appellee’s brief, an independent proceeding to contest the will, in accordance with the statute above quoted, has been filed, such proceeding and the instant proceedings should be consolidated for trial. | [
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Bobins, J.
Appellant, an eye specialist, of Texarkana, Arkansas, prosecutes an appeal from judgment against him for $5,000 rendered by the circuit court and based on a jury’s verdict in a suit brought by appellee against appellant for damages for alleged malpractice resulting in the loss of vision of appellee’s left eye.
These grounds for reversal are urged by appellant: (1) That the testimony was insufficient to support the verdict. (2) That the trial court, erred in giving appellee’s requested instruction No. 1, and in refusing to give appellant’s requested instructions Nos. 1, 4, 5, 8, 9,10,12, 13, 14 and 16.
I.
Appellee consulted appellant in regard to a growth, called a pterygium, in the corner of appellee’s left eye. ■ He was advised by appellant that this growth should be removed, and that the needed operation was a simple one. Appellee, accompanied by his aunt, Mrs. Nellie Blanton, and two other relatives, went to the office of appellant to have the pterygium removed. In the room at the time the operation was performed there were, besides appellant and appellee, Mrs. Blanton and a negro maid employed by appellant, all of whom, except the maid, testified. Other witnesses were Drs. Fuller aiid Kirkpatrick, eye specialists of Texarkana, who testified on behalf of ap pellant and appellee, respectively, Miss Willie Blanton, Miss Hazel Trammell, Della Williams, Mrs. Grace Geyer, and Clint Barrett.
These facts, concerning which there is no controversy, were established by the testimony: >
(1) That the operation which appellant performed on appellee was a minor one which, when properly performed, was ordinarily not followed by the result which occurred in this instance.
(2) That for a surgeon to operate on an eye without washing his hands and sterilizing his instruments would constitute negligence.
(3) That an infection in the part of the body operated on might result from the use of an unsterilized instrument.
(4) That appellee suffered a severe infection in his eye following the operation and has sustained some loss of vision. No complaint as to excessiveness of the verdict is urged here.
There is a conflict in the testimony as to these important phases of the matter:
(1) As to the failure of appellant to sterilize his instruments and wash his hands before the operation. Appellee and Mrs. Blanton testified that appellant whetted his instrument on a stone and then used it in appellee’s eye without sterilizing the instrument or washing his hands. This was denied by appellant.
(2) As to the custom of surgeons relative to sharpening their instruments. Appellant and Dr. Fuller testified that those instruments were not sharpened by the operators, but came from the manufacturer already sharpened and in sealed packages. Dr. Kirkpatrick, an eye specialist practicing in the same city, testified that he sharpened his instruments prior to an operation.
(3) As to the manner in which appellee’s eye may have become infected. Appellant testified that he saw no evidence of infection in appellee’s eye when he performed the operation, and his belief was that appellee, after the operation, had taken the bandage off, suffered a fall or gotten a lick, which caused the infection. Appellee and other witnesses denied that any such incident had occurred. Dr. Fuller; introduced as a witness by appellant Avas of the opinion that the infection which caused loss of vision in appellee’s eye was probably in existence at the time of the operation.
In considering the question of the correctness of the action of the lower court in refusing to direct peremptorily a verdict for appellant and in refusing to set aside the verdict of the jury in favor of appellee, we must bear in mind these fundamental rules:
(1) This court on appeal from a.judgment based on a jury’s verdict does not pass on the credibility of witnesses. That function is one solely to be exercised by the jury, whose decision as to credence to be given to testimony (except as to testimony contrary to scientific knowledge and mathematical facts) is binding on this court. Mains v. State, 13 Ark. 285; Turner v. Huggins, 14 Ark. 21; Malone v. Collins, 112 Ark. 269, 165 S. W. 641; St. Louis S. W. Ry. Co. v. Aydelott, 128 Ark. 479, 194 S. W. 873; Fair Store No. 32 v. Hadley Milling Company, 148 Ark. 209, 229 S. W. 727; Gaster v. Hicks, 181 Ark. 299, 25 S. W. 2d 760; Greenlee v. Rolfe, 187 Ark. 1162, 60 S. W. 2d 568; Browne v. Dugan, 189 Ark. 551, 74 S. W. 2d 640; Metropolitan Life Insurance Company v. Pope, 193 Ark. 139, 97 S. W. 2d 915.
Judge Butler, in the case of Arkansas Power & Light Company v. Kennedy, 189 Ark. 95, 70 S. W. 2d 506, said: “In discussing the plaintiff’s testimony, certain discrepancies in the account he gave of the occurrence are suggested which tend to discredit his testimony, and circumstances are argued which, it is claimed, east doubt on the testimony'of the witness Bell. The matters argued are not properly for our consideration, but were for the jury, and doubtless were presented to, and considered by it. The jury having resolved these questions in favor of the plaintiff, under settled rules we must accept its conclusion as final. ’ ’
' (2) Where the verdict is supported by any substantial testimony it must, in absence of prejudicial, errors of the trial court, be upheld; and in determining whether there is substantial testimony to support the verdict the evidence must be given the strongest probative force in favor of the party obtaining the verdict that it will reasonably bear. We said in the case of Harris v. Bush, Receiver, 129 Ark. 369, 196 S. W. 471: “This court is irrevocably committed to the doctrine that it will not interfere with verdicts supported by airy substantial evidence ; and in arriving at whether the verdict is supported by 'substantial evidence, the strongest probative force will be given to the testimony, and every reasonable inference deducible therefrom, in favor of the party receiving the verdict.” This rule has been adhered to throughout the history of tlie court.
We conclude that, when the testimony in this case is considered in the light of these rules, it must be held that a fact question for the jury was presented by the evidence and that the jury’s verdict is supported by substantial testimony.
In support of his argument that the evidence is insufficient to justify the verdict, appellant points out that appellee’s charge of negligence against appellant is not supported by the testimony of any expert witnesses. It is appellant’s contention that in a case of this kind negligence cannot be established except by witnesses who are skilled in the profession involved. If there could,- under the testimony, be any dispute as to the method used in the operation or in the treatment of the patient it would be necessary to establish the correct method by expert witnesses, but we do not have that situation here. There was no dispute whatever as to what was the proper course to be pursued by appellant in preparing for and performing the operation. It was not denied that it was necessary and proper for appellant to cleanse his hands thoroughly and to sterilize his instruments. The dispute in this case was as to whether or not appellant followed the course which is conceded to be necessary and proper. Appellant says that he did and appellee and one of his witnesses testified that he did not follow this course. No amount of expert testimony could liave thrown any light whatever, on the real question in this case.
A somewhat similar situation was presented to the court in the cáse of Ellering v. Gross, 189 Minn. 68, 248 N. W. 330, in which the Supreme Court of Minnesota said: “Defendant contends that he is entitled to judgment notwithstanding the verdict on the ground that there is no evidence upon which the jury could find him liable. Ho raised the proposition by proper motions at the trial and after the verdict. He rests his contention, in part at least, upon these instructions given at his request: ‘1. The question as to whether the defendant was negligent in treating the plaintiff is whether he used that degree of care and skill used by dentists in the same and similar localities. This is a scientific question to be determined from the expert testimony of dentists qualified to speak as experts, and the jury must base its finding upon the testimony by the dentists herein relative thereto. . . . We think the second sentence of the first instruction is not applicable to all malpractice cases, for the reason that .the acts claimed to be malpractice may be of such a nature that laymen may be able to decide whether or not they are such without the aid of expert opinion. This was stated in Getchell v. Hill, 21 Minn. 464, and has since been recognized, as shown by the citations in Bush v. Cress, 181 Minn. 590, 233 N. W. 317. . . . The Court of Appeals also refers to Evans v. Roberts, 172 Iowa 653, 154 N. W. 923, 926, where, in removing adenoids, an instrument used by the surgeon cut off a part of the patient’s tongue. The court said: ‘If we understand counsel correctly, it is their contention that negligence in cases of this nature can be established only upon the testimony of competent experts. What may be the rule where the sole question is upon the treatment of the diseased part, and whether it was in accordance with approved and medical standards, we need not here decide, for, as we have already noted, this is not a case of that kind. The jury here did not have to consider whether the method of the defendant in removing the adenoids was correct or scientific, but whether the unintentional wounding of plaintiff’s tongue was occasioned by lack of reasonable care on Ills part. This, it would seem very clear, involves no question of science, or necessarily of expert knowledge.’ Prevey v. Watzke, 182 Minn. 332, 234 N. W. 470; Johnson v. Arndt, 186 Minn. 253, 243 N. W. 67.”
It was urged by the physician defendant in the case of James v. Robertson, 30 Utah 414, 117 Pac. 1068, that the judgment against him should be reversed because there was no expert evidence upon which a jury could base a finding that the physician was negligent in performing the operation. In answering this contention the court said: “It is true, as appellant’s counsel suggests, that in order to authorize a finding that one who is following a profession or calling requiring special skill, knowledge, and experience is guilty of negligence or unskillfulness it is necessary to furnish some proof from some source possessing the required skill, knowledge, and experience that the acts complained of did not measure up to the standard of skill, knowledge and experience required in the particular calling or profession. In this 'case, however, the principle cannot be applied to its full extent, for the reason that appellant did not come into court justifying his act or conduct; that is, he does not claim that, if he permitted a solution of carbolic acid to come in contact with the cornea of respondent’s eye, in doing so his conduct was justified by the ordinary and usual methods which are pursued by those of his profession under like circumstances. In other words, appellant does not claim protection because he has conformed to the standards of his profession. What he really contends for in this connection is: (1) That no part of the solution he used was through any act of his permitted to enter respondent’s eye, and hence he was not negligent in that regard; (2) -that, although it were conceded that some of the solution did enter respondent’s eye, yet the solution was not of sufficient strength to produce the injury complained of; and (3) that the result to the eye was produced by a cause or causes for which he was not responsible. It is apparent that most, if not all, of the conclusions involved in the foregoing propositions do not necessarily call for expert evidence.”
In the case of Russell v. Newman, 116 Kans. 268, 226 Pac. 752, a patient had sued his surgeons for negligence in leaving surgical gauze in an incision made for removing a kidney. The jury returned a verdict for one dollar in favor of the patient from which he appealed. The Supreme Court of Kansas reversed the judgment of the trial court entered on the verdict. .In discussing the contention that a charge of malpractice must always be established by expert testimony the court said: “The rule that the testimony of witnesses skilled in medicine and surgery is necessary to determine whether specified acts constitute malpractice is subject to some qualification. For instance, it is said: 'Probably the most common instance of malpractice which is brought into the courts arises out of surgical cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all, and it matters not at all that many physicians testify that the best of surgeons sometimes leave a sponge or some other foreign substance in the bodies of their patients, for this is testimony merely to the effect that almost every one is at .times negligent. ’ 21 R. C. L. 388. .
“In a recent case having some features in common with the present one the court said: '. . . Jurors of ordinary intelligence, sense, and judgment, although not skilled in medical science, are capable of reaching a conclusion without the aid of -expert testimony as to whether it is good surgery to permit a wound to heal superficially with nearly half. a yard of gauze deeply imbedded in the flesh, and likewise are capable of determining whether or not injurious consequences of some character would probably result. The exact nature and extent of the evil consequences resulting therefrom, of course, laymen would not be competent to determine without the aid of medical science.’ Walker Hospital v. Pulley, 74 Ind. App. 659, 127 N. E. 559, 128 N. E. 993.”
In the case of Barham v. Widing, 210 Cal. 206, 291 Pac. 173, one of the grounds urged for reversal of judgment against a dentist for malpractice was that there was no expert testimony to establish negligence on the part of the dentist. Denying this contention the court said: “ ‘ It ivas not necessary for any dentist or physician to state that the conduct of the defendant was negligent or in conflict with the usual established practice of the profession in that vicinity to administer a local anaesthetic for the purpose of extracting a tooth without sterilizing the needle or the flesh into which it is inserted. The court will take judicial knowledge of the necessity to use ordinary care to procure sterilization under such circumstances. This case was tried upon the theory that everyone concerned recognized this duty. We are, therefore, of the opinion that the evidence will support the judgment in this regard. ’ ”
Lack of medical testimony to sustain a verdict in favor of a patient against a dentist for malpractice was urged as ground for reversal in the case of Zettler v. Reich, 266 App. Div. 631, 11 N. Y. S. 2d 85 (affirmed by Court of Appeals, 281 N. Y. 729, 23 N. E. 2d 548). The court, in affirming the judgment of the trial court, said: “Expert evidence is not required where the results of the treatment are of such a character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves. Benson v. Dean, 232 N. Y. 52, 133 N. E. 125; Dictz v. Aronson, 244 App. Div. 746, 279 N. Y. S. 66; Pelky v. Kivlin, 199 App. Div. 114, 191 N. Y. S. 428; Evans v. Roberts, 172 Iowa 653, 154 N. W. 923; Vergeldt v. Hartzell, 8 Cir., 1 F. 2d 633; Eichholz v. Poe, Mo. Sup., 217 S. W. 282.”
Our conclusion that we are not required to set aside the verdict of the jury in this case because of lack of medical or expert testimony to support it is not in conflict with anything said in our opinion in the case of Gray v. McDermott, 188 Ark. 1, 64 S. W. 2d 94. In that case it was insisted by the complaining party that the surgeon in operating had failed to do certain things that he should have done. The surgeon and the expert witnesses testified in that case that the surgeon operated in an approved and skillful manner, and that it would not have been proper for the surgeon to have done the things, the omission of which was claimed to amount to negli gence. It was lielcl in that case that a jury should not be permitted to “speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure.” We have no such situation in the case at bar. The question here' is not whether appellant in operating followed the approved and skillful method in doing so, but whether or not, prior to the operation, he sterilized his instruments and cleansed his hands. The jury found that he did not do so. No amount of .expert or medical testimony as to the proper or improper method of operating would have thrown any light on this question, which was the sole question in litigation.
It is further contended by appellant that, even if it be conceded that appellant failed to sterilize his instruments and to wash his hands, this is not sufficient upon which to base a finding that such negligence was the proximate cause of the infection which caused the injury to appellee’s eye. It is not required in a case of this kind that the injured party show to a mathematical certainty or to the exclusion of every other hypothesis that his injury occurred as a result of the negligence of which he complains.
Dr. Herzog, in his “Medical Jurisprudence,” discussing the quantum of proof necessary to sustain a recovery for malpractice, lays down this rule (pp. 161,162, § 186): “It is not necessary to prove beyond a shadow of a doubt that an injury was caused by negligence preceding it, but a showing of strong probability of the causal relation is sufficient. . . . Where negligence and injury-are proved, a causal connection between them may be established by circumstantial evidence, by inferences from physical facts.”
In' the case of James v. Robertson, supra, it was sought to reverse a judgment for malpractice against an eye specialist. 'The plaintiff claimed to have lost sight in the right eye, due to negligence of the physician in spilling an acid in her eye, while removing a cyst from the eyelid. It was urged on behalf of the physician that the evidence did not establish negligence on his part. The court, in denying this contention, said': “In a case where tlie question is whether the defendant was guilty of negligence or not, the plaintiff need, however, merely show a state of facts from which the jury may logically infer negligence; and if the jury believe• plaintiff’s evidence from which the inference of negligence may be deduced it may be, and ordinarily is, sufficient to sustain a finding of negligence; and this is so, even if the defendant disputes all of plaintiff’s evidence, or produces evidence from which the jury might find that the injury complained of was due to a cause or causes for which the defendant was not responsible. ’ ’
In the case of Barham v. Widing, supra, Mrs. Bar-ham and her husband recovered judgment against Widing, a dentist, for alleged malpractice upon Mrs. Barham which consisted of failure to sterilize a hypodermic needle used to inject novacaine, a local anaesthetic, into the gum of the patient. Among other grounds for reversal, it was urged that the evidence did not establish that the infected condition of the patient’s gum resulted from the alleged use of the unsterilized needle by-appellant. Overruling this contention, the court said: “ ‘Under the circumstances of this case there is a remote possibility that the infection developed from some cause other than the defendant’s failure to sterilize the needle or the gum into which it was inserted, but the evidence is sufficient upon which to warrant the jury in finding that it was caused by his negligence in failing to follow these reasonable precautions in spite of his testimony to the contrary. The jurors were entitled to accept the solution to which these circumstances led them in preference, even, to the positive statements of the defendant and -his nurse to the contrary. After the verdict of a jury has been fairly rendered, all the circumstances of the case, together with every reasonable inference which may be drawn therefrom, will be marshaled in support of the judgment. Because of the very subtleness of the origin and development of disease, less certainty is required in proof thereof. As the court says in'the case of Dimock v. Miller, 202 Cal. 668, 262 P. 311: ‘If . . . it is necessary to demonstrate conclusively and beyond the possibility of a doubt that the negligence resulted in the injury, it would never be A possible to recover in a case of negligence in the' practice of a profession which is not an exact science.’ It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate canse of injury with such absolute certainty as to exclude every other conclusion. It is sufficient if there is substantial evidence upon which to reasonably support the judgment. Ley v. Bishopp, 88 Cal. App. 313, 263 P. 369.’ ”
. Sustaining a recovery by a patient against a physician for an injury alleged to have been caused by an infection brought on by the use of an unsterilized instrument the Supreme Court of Washington, in the ease of Hellen v. Bridenstine, 55 Wash. 470, 104 Pac. 626, said: “Respondent was not required to prove her case beyond a reasonable doubt nor by direct and positive evidence. It was only necessary that she show a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable. ’ ’
In Whetstine v. Moravec, 228 Ia. 352, 291 N. W. 425, a suit against a dentist for malpractice, the trial court directed a verdict in favor of the dentist. The plaintiff claimed that after the defendant had extracted certain teeth he suffered with pains in his chest and coughed and finally, about ten months after the extraction, he coughed up the root of a tooth, which was seen by a friend and several members of his family. Overruling the dentist’s contention that the evidence failed to show that his negligence was the proximate cause of plaintiff’s injury, the Supreme Court of Iowa said: “Both negligence and proximate cause are questions of fact for the jury if the evidence is of sufficient weight and character to warrant their submission. In a civil case they need be established only by the preponderance or greater weight of the evidence, and not beyond a reasonable doubt. And this is true whether the testimony be direct or circumstantial. No different rule is applied in the establishment of these facts than is ordinarily applied in the establishment of any other fact in a civil action.”
In the ease of Boucher v. Larochelle, 74 N. H. 433, 15 L. R. A., N. S., 416, 68 Atl. 870, the 'Supreme Court of New Hampshire refused to allow exceptions of physician sued for malpractice to action of lower court in denying his motion for nonsuit. The malpractice charged was negligence in administering chloroform (prior to operation to set a child’s arm) resulting in the death of the child. The court said: “But the defendant contends that, conceding that there was some evidence of the character stated, the conclusion that the death resulted from the negligence proved would be a mere surmise or conjecture, because it appeared from the evidence that the mere administration of chloroform to persons in a certain rare and obscure pathologic condition is sufficient to cause death, and that the fracture of a bone may cause a. fatal embolism. The claim is that the death of the child may have been due to its condition, or may have been the direct result of the fracture and that therefore the plaintiff failed to prove that the defendant’s negligence was the cause of death. Using the word ‘proof’ in the sense of demonstration to an absolute certainty, the defendant’s contention could probably be sustained. Questions capable of exact demonstration are rarely the subject of litigation. No such burden rested on the plaintiff. He was not bound to exclude all possible causes of death. He was required only to mate it more probable than otherwise that the fact was as he claimed it. The rule of Deschenes v. Concord & M. R. Co., 69 N. H. 285, 46 Atl. 467, that the jury cannot be permitted to determine by guess or conjecture between two equally probable causes of the injury, for one only of which the defendant is responsible, has no application unless the existence of a sufficient cause or causes for the injury, aside from the negligence charged, is conceded or conclusively proved. Whether the child’s condition was such that the mere administration of chloroform was á sufficient cause of the fatal result, or whether an embolism resulting from the fracture was the cause of the injury, are questions of fact upon which the case discloses little, if any, evidence. If there was evidence tending to establish either cause, it must be assumed in the present posture of the case that the jury wore properly instructed as to the legal effect, in the decision of the controversy submitted to them, if they found either contention sustained. It is common knowledge that death does not ordinarily follow the proper administration of an anaesthetic, or immediately result from a fractured humerus.”
In this case it was shown by testimony (accepted as true by the jury) that appellant failed to wash his hands and to sterilize his instruments before operating on appellee’s eye. It was undisputed that this was negligence. It was undisputed that a serious and unusual infection followed the operation. Since it appeared that all the causes for this infection, which were suggested by appellant and his expert witness, were excluded by testimony which the jury had a right to believe, we conclude that the jury was authorized to find that the infection in appellee’s eye was caused by the negligence of appellant.
• II.
• The trial court gave only this instruction permitting recovery by appellee:
“If you find from a preponderance of the evidence in this case that the defendant, Dr. L. H. Lanier, in performing the operation upon the eye of the plaintiff, James Trammell, negligently failed to sterilize properly and cleanse his hands and the instruments with which he operated and that such negligence was the proximate cause of an infection in the eye of James Trammell, the plaintiff, and that as a result thereof, the plaintiff lost the .sight of his eye, then you are instructed to find for the plaintiff.”
The court refused nine instructions requested by appellant, but gave the following at appellant’s request:
No. 2
“You are instructed that a physician is not required to exercise the highest possiblg skill, but is only bound'to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of the profession in good standing, practicing in the same line aucl in tlie same general neighborhood and to nse reasonable care in the exercise of his skill, and unless you find from the evidence that the defendant herein failed to possess and exercise such skill, learning and care your verdict must be for the defendant regardless of the result of the treatment.”
No. 3
“You are instructed that the defendant was not required to effect a cure of the plaintiff by his treatment, and is not a guarantor of results. He was only required to possess and exercise ordinary care and skill in the treatment of the plaintiff and if you believe from the evidence that the defendant possessed and exercised such care and skill the plaintiff cannot recover in this action. ’ ’
No. G
“You are instructed that no negligence on the part of the defendant is shown by tlie testimony in diagnosing and advising plaintiff that the operation was simple and safe and in failing to hospitalize plaintiff for the performance of the operation and your verdict will be for the defendant on that issue.”
No. 7
“You are instructed that no negligence is shown by the testimony that the defendant improperly treated plaintiff after discovering the infection and that he failed to hospitalize plaintiff, and 3'ou will find for the defendant on this issue.”
No. 11
“You are instructed that there is no evidence to sustain a finding that the operating chair must be sterilized in the exercise of reasonable and ordinary care by the defendant, and you must find for the defendant on this issue.”
No. 15 ‘
“You are instructed that there is no evidence to sustain a finding that defendant was negligent in failing to call in a consulting physician for the operation and after treatment, and your verdict will be for the defendant on this issue.”
No. 17
“You are instructed it was plaintiff’s duty to follow, tlie reasonable instructions prescribed by defendant, and if you believe from the evidence he failed to do so and that his condition was the result of his own negligence, however slight, he cannot recover in this action.”
No. 18
“You are instructed that if you believe from the evidence that on August 11, 1943, that the plaintiff came to the defendant for treatment of a growth on his left eye and on the same day at his request the defendant, in the exercise of his best judgment, performed the McReynolds operation under, approved aseptic surroundings for the removal of the growth, exercising the degree of care, skill and learning ordinarily possessed and exercised by doctors in the locality of Texarkana; that on August 13 the patient returned for treatment and dressing, and at the patient’s request he went to a hotel where the doctor saw and treated him in the exercise of his best judgment every day to August 17; that when he saw the patient again on August 18, he gave him written instructions for proper treatment at home until August 21, and thereafter treated the patient, in the exercise of his best judgment at his office every third day through September 21, when the patient failed to come for further treatment, then you are instructed that the defendant is not liable for the results of the operation and treatment of plaintiff, and your verdict must be for the defendant.”
It cannot be said that the one instruction on liability given at the request of appellee was erroneous. The instructions given by the court at the request of appellant properly and fully submitted to the jury.every theory of defense which appellant was entitled,to urge. We have examined the instructions refused and do not find that the refusal of the court to give any of them was prejudicial to appellant.
The judgment of the lower court is affirmed.
The Chief Justice and McIIaney and Holt, JJ., dissent. | [
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Robins, J.
Appellant, who claims title to the land involved herein under a donation certificate and donation deed from the State of Arkansas, seeks to reverse the decree of the lower court, "by which it was adjudged that appellee is the owner thereof, by virtue of a conveyance to him by the Cache River Drainage District.
This land is situated in the-Cache River Drainage District. The assessments due thereon to said district for the years 1924, 1925, 1926 and 1927 not having been paid, suit to foreclose same was instituted in the chancery court, the land was sold under decree of the court and deed therefor executed by the court’s commissioner to the district on January 2, 1928.
The state and county taxes on the land were not paid for the 3^ear 1931, and it was forfeited and sold to the state in 1932. This forfeiture was duly certified on December 3,1934.
Proceeding under the provisions of Act 119 of the General Assembly of Arkansas of 1935, approved March 19, 1935, the State of Arkansas brought a suit in chanceiy court to confirm its title. On November 7, 1936, the drainage district filed in the confirmation suit an intervention setting up that the land had been illegally as: sessed and that the forfeiture to the state was void. This intervention was sustained, the forfeiture to the state canceled and the title of the drainage district confirmed by decree dated May 9, 1939.
Appellant obtained donation certificate for this land from the State Land Commissioner on February 22, 1939, immediately entered into possession of the property and remained in open and notorious possession thereof thereafter and up until the filing of the instant suit. Appellant cleared 60 acres, built three small dwelling houses, three small barns, fenced 40 acres for pasture, put a pump at each house, built two smokehouses and built a chicken house for each dwelling. During each year of his occupancy he cultivated from eleven to fifteen acres in -cotton, from fifteen to twenty acres in corn, and also raised some cane and soy bean hay.
Appellee instituted this suit (originally an ejectment suit to recover the land) against appellant in the circuit court 6n March 18, 1942. The case was transferred to chancery court on motion of appellant.
By § 8925 of Pope’s Digest of the laws of Arkansas, it is provided: “No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or Commissioner of State Lands, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any act providing for the sale of lands forfeited to the State for the nonpayment of taxes, or who may hold such land under a donation deed from the State, or who shall have held two years actual adverse possession under a donation certificate from the State, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed of the lands in question within two years next before the commencement of such suit or action, and it is hereby intended that the operation of this act shall be retroactive. ’ ’
In discussing the operation and effect of this statute Chief Justice Hill, in the case of Dickinson v. Hardie, 79 Ark. 364, 96 S. W. 355, said: “This is purely a statute of limitations, and runs against void sales, as well as voidable sales or regular sales. The statute is not in favor of those holding under valid deeds issued pursuant to valid tax forfeitures and valid sales, but is in favor of the possession for two years under deeds therein mentioned, . . .A. statute of repose is not needed in favor of purchasers at valid tax sales. The validity of the sale and precedent proceedings effectually carries the title, and renders unnecessary such statutes, and they are enacted for the benefit of those acquiring these State titles and quieting these questions after two years possession under them. This whole matter was gone into fully and conclusively in the recent case of Ross v. Royal, 77 Ark. 324, 91 S. W. 178.” Other cases in which the effect of this statute has been considered are: Carpenter v. Smith, 76 Ark. 447, 88 S. W. 976; Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390, 11 L. R. A., N. S. 772; Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610 ; Terry v. Drainage District No. 6, Miller County, 206 Ark. 940, 178 S. W. 2d 857; Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016.
Tlie rule laid down in all of these cases is that this statute is a statute of limitation, and that actual, adverse possession under a tax deed from the State Land Commissioner (and, since the amendment by Act No. 7 of 1937, approved January 26, 1937, under a donation certificate) vests a good title in the occupying holder of the donation certificate or deed, regardless of any defect in the tax sale under which the state acquired title.
In the case at bar it is shown that appellant obtained a donation certificate for this land on February 22, 1939, immediately went into possession thereunder and occupied the land adversely for more than two years before the institution of the instant suit. The fact that the drainage district.was the holder of-the record title to the land did not change the effect of his occupancy, as we have held that the rights of an improvement district may be' barred by adverse possession. Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
It is argued on behalf of appellee that the act of the legislature extending the benefit of the two year statute of limitation to holders of donation certificates was passed after the drainage district' acquired title and during the pendency of the state’s confirmation suit. But this act was in force at the time appellant obtained his donation certificate, and his rights are necessarily governed by said act.
It is also urged on behalf of appellee that appellant, having purchased during the pendency of the suit by the state to confirm its title, is bound by the result of that suit, under the general doctrine that one who purchases Isaid'penclente lite must abide by the determination of the suit. But the only effect of the decree relied upon by appellee was to declare that the sale to the state was void, a fact which appellant might concede and yet prevail by reason of his adverse possession for two years under the donation certificate. The fact that the sale by which the state obtained title was a nullity does not affect the validity of the title of'one who enters land under a deed from the state or a donation certificate and holds it adversely for two years. Appellant was not relying upon the state ’s title, which was held void in the chancery proceeding, but upon his donation certificate and possession thereunder, and, for that reason, his title was not affected by the decree of the chancery court declaring the forfeiture to the state void. Appellant’s donation certificate was not canceled, nor was its validity challenged in the proceedings in the chancery court.
It is argued by appellee that appellant’s occupancy of the land did not amount to an adverse holding thereof by him. The testimony shows that appellant entered upon the land, cleared up 60 acres of it, built three dwelling houses with outbuildings upon it, cultivated it, raised and gathered crops thereon. Tliese acts by appellant amounted to adverse possession. Sims v. Petree, supra.
Nor is appellant’s claim affected by the fact that, after he had been in possession of the land under his donation certificate for more than two years, he attempted to purchase from the drainage district. After he liad held the land adversely under his donation certificate for the two year period fixed by the statute his title became good by limitation and would not be divested out of him simply because he did some act that might be construed as inconsistent with his claim of ownership. Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; Blackburn v. Coffee, 142 Ark. 426, 218 S. W. 836; Mustain v. Smith, 187 Ark. 1163, 63 S. W. 2d 537; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
The period of limitation provided by § 8925 of Pope’s Digest, supra, is a short one, but the policy of the state in such matters is one exclusively for determination by the legislative branch. Doubtless 'the legislature was influenced by a conviction that sound public policy requires that the state afford a measure of security to those who are willing to go upon land abandoned and permitted to forfeit for taxes b3^ the original owner, clear up and put same in cultivation, and thereby make it possible for the state and the local taxing units to collect revenue therefrom. Certainty we cannot say that the legislature did not have the right to enact such a law, and, since appellant lias brought himself within the terms of this act, he must be given the protection thereof.
While the drainage district and appellee, its grantee, are barred by the statute from prosecuting a possessory action for the land here involved, this does not mean that the right of the district to maintain a suit to enforce, payment of delinquent assessments would be likewise barred. On the contrary, a lienholder has been held not to be barred by this statute from foreclosing his lien. Wright v. Walker, 30 Ark. 44; Rural Realty Company v. Buckner, 203 Ark. 474, 158 S. W. 2d 17. The Cache River Drainage District in apt time foreclosed its lien on this land, and its deed to appellee should in equity .be treated as an assignment pro tanto to appellee of its judicially established lien, and appellee has a right to require from appellant re-imbursement of the amount paid by him to the district. Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
The decree of the lower court is accordingly reversed and this cause is remanded with directions that the title to the land be quieted in appellant, subject to a lien in favor of appellee, to be enforced as the lower court may deem proper, for the amount which appellee paid to the drainage district as purchase money for the land, and also the amount of anji general or special taxes paid by appellee, with interest at the rate of six per cent, per annum from the date of all such expenditures by appellee, the costs of both courts to be adjudged against appellee. | [
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Holt, J.
April 18, 1942, appellant, W. P. Gibbs, sued appellees to quiet and confirm title in himself to a- 160-acre tract of land in Crittenden county. He alleged in.his complaint that he acquired title to the land May 29, 1941, by warranty deed from C. H. Neely and wife; that Neely, under whom he claims, acquired title to the land by adverse possession for seven years and more, beginning in 1901, and also by oral gift from Dr. S. J. Knott, his father-in-law, in 1901.
Appellees answered, denying appellant’s claim of title, denied that C. H. Neely, through whom appellant claims title, acquired the land in controversy by adverse possession, or by oral gift from Dr. Knott, but alleged the facts to be that Neely and Dr. Knott acquired the land in 1899 as tenants in common; that Neely owned an undivided one-half interest in the tract, and that in 1901 Neely was permitted by Dr. Knott to take possession of the land and to have its use and the income therefrom during his life, Neely being the son-in-law of Dr. Knott, and that Neely’s possession was permissive only. Appellees also pleaded the statute of frauds as to the parol gift to Neely, and asked that the land be partitioned.
Upon a trial, the court found that Mrs. Eva Knott had no interest in the land and this appellees concede. The court further found that the remaining appellees were the owners of an undivided one-half interest, subject to an estate of C. H. Neely for life, now owned and held by appellant, Gibbs; that C. H. Neely’s possession had not been adverse to appellees or to their father, Dr. S. J. Knott; that Neely’s possession was permissive only, and decreed: “that the deed from C. H. Neely to W. P. Gibbs, dated the twenty-ninth day of May, 1941, . . . in so far as it affects or purports to affect the undivided one-half interest, subject to an estate for the natural life of C. H. Neely, owned by the defendants, Mary Knott Pace, Charlie Miller Knott Thomas and Simon J. Knott, be canceled as a cloud on their title; that the title to the” land in question (described herein) be “quieted and confirmed in the plaintiff, W. P. Gibbs, as to an undivided one-half interest for the natural life of O. H. Neely and is quieted and confirmed in the defendants, Mary Knott Pace, Charlie Miller Knott Thomas and Simon J. Knott, to an undivided one-half interest subject to the estate for the natural life of C.. H. Neely owned by W. P. Gibbs,” and granted appellees’ prayer for partition. Prom the decree comes this appeal.
Prom the record it appears that C. H. Neely and Dr. Knott, his father-in-law, acquired the land here in question in 1899', as tenants in common, and the record title has so remained until Neely attempted to convey same to appellant, Gibbs, May 29, 1941. Neely took possession of the land in 1901, cleared some of it, made improvements on it, enjoyed its use, and the income therefrom, down to 1941. He has paid the taxes on the land from 1904. Prior to 1901 Neely and Knott cut and removed the timber and say appellees: “It is undisputed that Neely has been continuously in actual possession of the land since the timber has been cut off by Knott and Neely and that he has cleared and improved this land.” Dr. Knott paid the taxes until 1904. He died testate in 1912. Dr. Knott never made any deed to Neely for his, Knott’s, undivided one-half interest in the land. In his will, Dr. Knott disposed of approximately 600 acres of land, but made no specific mention of the tract in controversy here. Paragraph 11 of his will provided: “Should there be any other property that has not been disposed of, I direct it be divided at my death equally, to share and share alike, among my three children, Charlie Miller Knott Thomas, Mary L. Knott and Simon Joseph Knott, Jr.”
May 16, 1901, Dr. Knott and Neely executed a deed of trust to Goodlett & Co., conveying this land. January 6, 1902, Knott and Neely mortgaged the land to Thomas & Proatz Lumber Company to secure a loan to them, and on June 20, 1904, Knott and Neely again mortgaged this land to the Colonial & United States Mortgage Company, Ltd. December 16, 1940, Neely wrote a letter to appellee, Mrs. Pace, in which he sought to purchase the interest of appellees in the land.
The above facts appear not to be in dispute.
Whether appellant acquired title to the property by virtue of his deed from C. IT. Neely obviously depends on Neely’s title, or Neely’s right to convey. Appellant asserts that Neely had acquired good title to the property, (1) by virtue of an oral gift from Dr. Knott at the time he, Neely, took possession in 1901, and (2) by adverse possession for seven years and more, since he took possession of the property.
This cause is here for trial de novo.
“In suits to quiet title plaintiff must rely upon the strength of his own title, and not upon the weakness of his adversary’s.” Meyer v. Snell, 89 Ark. 298, Headnote 1, 116 S. W. 208.
In order to establish a parol gift of the land in question, appellant assumed the burden of proof, and this burden could not be discharged by a mere preponderance of the evidence under the law, but the evidence must be clear, unequivocal and satisfactory. “The existence of a parol gift of land is one of those things which cannot be established by a bare preponderance of the evidence. It is required that such a gift be established by evidence that is clear and satisfactory.” Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338; Beichslich v. Beichslich, 177 Ark. 47, 5 S. W. 2d 739, and in Akins v. Heiden, 177 Ark. 392, 7 S. W. 2d 15, this court said: “To sum up, it may be said that, though expressed in varying phraseology, the general rule is that evidence necessary to establish a parol gift of - land must be clear and unequivocal. ’ ’
In considering tlie rules of law as to adverse possession, it must be remembered that at the time Neely entered upon possession of the land in 1901, the record title was in himself and Dr. Knott as tenants in common. “When one enters upon land, he is presumed to enter under the title which his deed purports upon its face to convey, both as respects the extent of the land and the nature of his interest.” Patterson v. Miller, 154 Ark. 124, 241 S. W. 875.
“Where possession, in its incipiency, is permissive, the presumption is, in the absence of proof to the contrary, that subsequent possession is permissive also, and such possession will not start the running of the statute of limitations.” Dial v. Armstrong, 195 Ark. 621, Headnote 1, 113 S. W. 2d 503, and in the opinion, it is said: “Where the original entry on another’s^ land was amicable or permissive, possession, regardless of its duration, presumptively continues as it began, in the absence of an explicit disclaimer.”
• In Newman v. Newman, 205 Ark. 590, 169 S. W. 2d 667, we said: “In order that adverse possession may ripen into ownership, possession for seven years must have been actual, open, notorious, continuous, hostile, exclusive, and it must be accompanied with an intent to hold against the true owner. . •. . The possession of some of the joint tenants, or tenants in common, is the possession of all, and continues to be such until there is some act of ouster sufficient in itself to give notice that those in possession are claiming in hostility to, and not in conformity with the rights of others having interests in the property. Keith v. Wheeler, 105 Ark. 318, 151 S. W. 284. One in possession is presumed to hold in recognition of the rights of his co-tenants. Patterson v. Miller, 154 Ark. 124, 241 S. W. 875.”
In Beattie v. McKinney, 160 Ark. 81, 254 S. W. 338, this court said: “One tenant in common might acquire the title of his co-tenant by adverse possession, but to do so it is not sufficient that he occupy the land exclusively, and that he intends his possession to be adverse. The ousted tenant must have notice that the hold ing is adverse, or the hostile character of the possession must be so openly manifest that notice will be imputed. Jackson v. Cole, 146 Ark. 565, 228 S. W. 513, and cases cited. ’ ’
And in Britt v. Berry, 133 Ark. 589, 202 S. W. 830, this court said: “The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner. ’ ’
Much evidence was presented by the parties in addition to the undisputed facts set out, supra. A great portion of this evidence is conflicting and unsatisfactory due largely to the fact that most of the happenings occurred more than thirty years ago.
While appellant produced testimony tending to show an oral gift of the land to Neely by Dr. Knott in February, 1912, when he (Dr. Knott) wrote his will, there was testimony on the part of appellees of equal, if not greater, weight tending to show that Neely’s occupancy and use of the land was permissive, both before and after the death of Dr. Knott, that no oral gift of the land was made to him by Dr. Knott and that his possession and occupancy were not adverse but permissive as the lower court found.
After a review of the entire, record, we think appellant has failed to sustain the burden of proof required of him. In weighing the testimony, it is significant that although appellant concedes that Neely had many opportunities to request a deed to the property from Dr. Knott, he never asked for one and. never received one. It is also significant that although Neely claims the property was given to him along with possession in 1901, three separate mortgages were executed by him and Dr. Knott on this property over a period from 1901 to 1904, and Dr. Knott paid the taxes on the property up to this latter date. The fact that Neely paid the taxes on the land subsequent to 1904 and enjoyed its use and profits, is not alone sufficient to make his occupancy adverse to tlie interest of appellees. “The reason that the possession of one tenant in common is prima facie the possession of all, and that the sole enjoyment of the rents and profits by him does not necessarily amount .to a disseizin, is because his acts are susceptible of explanation consistently with the true title. In order, therefore, for the possession of one tenant in common to be adverse to that of his co-tenants, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed. . . . The rule of law in such case very clearly appears to be that where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them and to turn his occupancy into an adverse possession or enjoyment under an invalid or merely colorable claim of title to the whole, and so as to acquire the title of the entire estate by lapse of time under the statute of limitation, he must show when knowledge of such adverse claim, or of his intention so to hold, was brought home to the other tenants; for from that time only will his possession be regarded as adverse.” Singer v. Naron, 99 Ark. 446, 138 S. W. 958, and in Alphin v. Blackmon, 180 Ark. 260, 21 S. W. 2d 426, it is said: “Moore’s possession also and the payment of taxes by him were not constructive notice to the appellee of his adversary claim, for the further reason that his wife was the owner of an undivided interest in the lands and a co-tenant of the appellee, and .Moore’s possession might have been referable to hers, arid his possession was not therefore exclusive, notorious and adverse as against all persons.”
Mrs. Thomas testified that Dr. Knott, her father, told her about forty years ago that Neely was to have the use of the property for his lifetime, and then it was to revert to the Knott heirs. Mrs. Eva Knott testified that Dr. Knott said that Neely could not sell the property because he did not have any deed to it. He told his daughter, Mrs. Pace, that he had told Neely that he could have the use of the place as long as he lived. From time to time, Dr. Knott drove around and inspected this property along with his other farms. Neely admitted that lie never talked with appellees-“about the title (of the land in question) in any shape, form or fashion.” He said the place was referred to as his farm or the “Neely Place, ’ and he considered it his property. He admitted writing a letter to Mrs. Pace December 16, 1940, in which lie sought to purchase whatever interest appellees might have in the property. Appellant says “that if Dr. Knott had felt that he had any interest in the tract of land, involved in this suit, he would have (in his will) made express and specific disposition of it by apt words, as he had done with all his other lands.” We think, however, that it is just as probable that Dr. Knott, had he intended to give his interest in the land in question to his son-in-law, Neely, would have made a specific devise to him in his will, or have deeded it to him prior to his, Knott’s, death.
As indicated, we think appellant has failed to maintain the burden of proof imposed, that the findings and decree of the lower court are correct, and accordingly, the decree is affirmed. | [
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Robins, J.
Appellant, charged by information with the crime of mnrder in the first degree, for the killing of Roy Curtis, was tried before a jury and found guilty of the offense charged. From judgment of the lower court imposing the death penalty in accordance with the jury’s verdict he prosecutes this appeal.
The evidence discloses that appellant, a negro, on the night of February 5, 1944, at the home of his sister in West Memphis, where he was living at the time, became involved in a quarrel with James Webber, another negro who was visiting appellant’s sister. Leaving his sister’s house appellant went about three 'blocks to the home of a relative, where he obtained a shotgun and five shotgun shells. Thus armed, he returned and began firing into the windows of his sister’s house. As to this he was asked when on the witness stand: “You saw him (James Webber) in there and shot at him?” And appellant answered: “Yes, sir.” He further testified that he thought Webber, after the first shot was fired, went into another room and he shot again into the window of that room.
While appellant was firing the shots into the windows of his sister’s home, Roy Curtis, a deputy sheriff, drove up, parked his car in a nearby street and went upon the porch of a small store located in front of the home of appellant’s sister. Mr. Curtis stood on the porch a moment, then came down from the porch and, according to appellant’s version, threw a flashlight on appellant and began firing at appellant with a pistol, whereupon appellant fired on Curtis, fatally wounding him. The effect of the testimony of an eyewitness was that Curtis’ first shot and the'fatal shot from appellant’s gun were fired simultaneously. Appellant was wounded in the exchange of shots, and after he fell to the ground he attempted to load the shotgun with the. two remaining shells, but was disarmed before he could do so.
For grounds of reversal appellant urges: 1. That the evidence was insufficient to justify the verdict. 2. That the court erred in refusing to give appellant’s requested instruction No. Í5, as follows: “You are in structed that a sheriff or other peace officer has no right to arrest a citizen without a warrant of arrest except for an offense committed in the presence of the officer and then only at the time of the offense. If the officer attempts to make an arrest under other circumstances he acts at his own risk and the citizen may resist such arrest even to the extent of killing such officer if it reasonably appears necessary to protect his own person from assault or great bodily harm.”
I.
The lower court properly instructed the jury as to the law of self-defense, and appellant does not complain here of any error of the lower court in declaring the law as to appellant’s right to defend himself. Proper instructions requested by appellant, defining the different degrees of unlawful homicide, were also given by the trial court.
It is urged, however, by appellant that the jury improperly ignored the testimony deemed by appellant as supporting his theory of self-defense; and it is also contended on his behalf that, since appellant did not intend to kill Mr. Curtis, he could not in any event be guilty of murder in the first degree.
The right of self-defense could not have been properly invoked by appellant, even if Webber had been the one who began the firing, and who was killed. Under his own statement of the affair, appellant left the scene of his quarrel with Webber, went a distance of about three blocks, secured a shotgun and ammunition, returned to the house where Webber was and began firing at him. If, under these circumstances, Webber had come out of the house and opened fire at appellant, appellant would not thereby have been justified in slaying Webber.
In Warren on Homicide, Yol. 1, § 151, the rule is thus expressed: “The general rule is that one cannot provoke an attack, bring on a combat, and then slay his assailant, and claim exemption from the consequences on the ground of self-defense. No one can avail himself of the plea of self-defense, in a case of homicide . .. .
when the defendant was himself the aggressor, and willfully brought on himself, without legal excuse, the neces- - sity for the killing. ’ ’
Judge Battle, in the case of Carpenter v. State, 62 Ark. 286, 36 S. W. 900, discussing the right of self-defense on the part of one who has provoked a difficulty, said: “He cannot provoke an attack, bring on the combat, and then slay his assailant, and claim exemption from the consequences of killing his adversary, on the ground of self-defense.”
The fact that appellant may have believed that he was firing at Webber, or may not have known that he was firing at an officer, does not excuse or mitigate his offense. Where one, in an attempt to murder, slays by mistake a person other than the intended victim, he is nevertheless guilty of murder. Ringer v. State, 74 Ark. 262, 85 S. W. 410; Brooks v. State, 141 Ark. 57, 216 S. W. 705; Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; 26 Am. Jur. 179.
II.
The lower court did not err in refusing to give appellant’s requested instruction No. 15.
In the first place, according to appellant’s testimony, Mr. Curtis did nothing to indicate that he was attempting to make an arrest. There was no testimony whatever to the effect that Mr. Curtis made any attempt to arrest appellant. The instruction requested was abstract and without any proof to justify the giving of it. The refusal by a trial court to give a requested instruction is not error where there is no testimony calling for such an instruction, even though the requested instruction correctly sets forth the law. Harris v. State, 34 Ark. 469; Beavers v. State, 54 Ark. 336, 15 S. W. 1024; Stevens v. State, 117 Ark. 64, 174 S. W. 219; Sims v. State, 171 Ark. 799, 286 S. W. 981.
In the second place, at the time the deceased, a peace officer, came on the scene, appellant was making a felonious assault on Webber, and Mr. Curtis had the right, under the circumstances, to arrest appellant without a warrant.
The inherent weakness of appellant’s position in this case is that, immediately before he took the life of Mr. Curtis, appellant, under his own admission, had been engaged in the commission of a felony, and therefore he had no right to kill an officer, or anyone else, who attempted to interfere with his felonious act; As was said .by Judge Butler in the case of Spear v. State, 184 Ark. 1047, 44 S. W. 2d 663: “It is well settled that one who, while in the actual perpetration of a felony by violence, kills another person who is attempting to’ prevent the felony, cannot plead self-defense. 30 C. J. 49. This would be true even though the person attempting to prevent the felony and who was killed began firing first.”
We have carefully examined .the record in this case and find no error prejudicial to appellant. The judgment of the lower court is affirmed. | [
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McFaddin, J.
Frank McCollum, as plaintiff, filed action against appellees, as defendants, to recover tbe amount of $238, tbe proceeds of a U. S. government check alleged to bave been stolen from tbe plaintiff, and cashed by tbe defendants, who in turn received tbe money thereon from the U. S. Government. At the conclusion of all of the evidence, the trial court instructed a verdict for the defendants. Should the court have submitted the case to the jury? That is the only question involved on this appeal.
The rule is well established that in determining on appeal the correctness of the trial court’s action in directing a verdict for the defendant we take that view of the evidence most favorable to the plaintiff. LaFayette v. Merchants Bank, 73 Ark. 561, 84 S. W. 700, 68 L. R. A. 231, 108 Am. St. Rep. 71; Brigham v. Dardanelle Railroad Company, 104 Ark. 267, 149 S. W. 90; and see many other cases collected in West’s Arkansas Digest, “Appeal and Error,” § 927 (7). With this rule in mind, we give the plaintiff’s version of the facts:
On February 28, 1943, check for $238 was issued by the Treasury Division of the United States, drawn on the Treasurer of the United States, payable to “Mary Pepple, Pascóla,' Mo.,” and stating: “Object for which drawn: Veterans’ Administration.” Mrs. Mary Pepple, who lived 125 yards from the store of appellant in Pascóla, Missouri, indorsed the check and received the full amount of money on the check from the plaintiff on March 2, 1943. There, were no banking facilities at Pascóla. The next day while the plaintiff was making a list of various checks to take to Kennett, Missouri (his banking point), he was'called from his office for a moment, and when he returned the check was gone. It was stolen in his absence. At that time it "bore only the indorsement of Mary Pepple. Immediately after the discovery that the check had been stolen, plaintiff notified the Government in an endeavor to have payment stopped. Neither Mary Pepple nor anyone for her, nor the plaintiff nor anyone for him, ever transferred or delivered the check to the defendants or anyone for them. The fact that the check was stolen from the plaintiff is not controverted. The trial court so stated.
The defendants, trading under the firm name of Graber’s Department Store, are engaged in business in Blytheville, Arkansas, some twenty-five miles from Pascóla, Missouri. At the times herein involved the Government was building near Blytheville an airport and other facilities for the war effort; and the government paydays were the first and fifteenth of each month; and the defendants cashed many government checks at the store after banking hours. On March 8, 1943, the defendants cashed the check here involved, without requiring the holder to indorse the check or he identified in any way, although there was a sign furnished by the U. S. Government hanging over the cash register in the defendants ’ store, and warning that all persons presenting checks should be identified. When the defendants cashed the check, it contained only the indorsement of Mary Pepple. Such was the plaintiff’s case. The defendants claimed in defense that they were holders in due course, and were therefore protected.
Before reviewing the testimony of the witnesses (and there were only two) for the defendants, we state some of the applicable legal principles. Arkansas adopted the Uniform Negotiable Instruments Law by Act No. 81 of 1913, as now contained in § 10152, et seq. of Pope’s Digest. Section 10213 of Pope’s Digest is § 55 of the Negotiable Instruments Law, and reads:
“When title defective. The title of a person who negotiates an instrument is defective within the meaning of this act. when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as to amount to fraud. ’ ’
Section 10217 of Pope’s Digest is § 59 of the Negotiable Instruments Law, and reads:
“Who deemed holder in due course. Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some , person under whom he claims acquired the title as holder in due course. But the las.tmentioned rule does not apply in favor of a party who became bound on the instrument prior to tbe acquisition of such defective title.”
In 8 Am. Juris. 331 et seq., the general rules on theft of a negotiable instrument are stated as follows:
“Theft generally. It is familiar law that one in possession of chattels by theft can convey no title to an innocent purchaser. Coin and bank bills are excepted' from this rule, however. As to those, even if feloniously obtained, the holder- can convey a good title to an innocent purchaser. From the highest considerations of public policy and of commercial necessity, the law also excepts from the rule negotiable instruments acquired for value in good faith before maturity and without notice. Such paper takes the place and performs, to a large extent, the office of money. It is used for the transaction of much the largest part of the business of mankind. It would be embarrassing, therefore, if every taker of such paper was bound, at his peril, to inquire into the title of the holder, and if he was obliged to take it with all the imperfections and subject to all the defenses which attach to it in the hands of the holder. It has, therefore, become settled by force of considerations such as these that a thief or any other person having possession of such paper fair upon its-face can give a holder in due course a good title to it, against all the parties thereto, as well as the true owner. Consequently, the well-settled rule of law is that the transfer of stolen negotiable paper, indorsed in blank or otherwise negotiable by delivery, to a bona fide purchaser, for value, without notice and before maturity, vests in him a title good against all the world.- This is the rule both at common law and under the Negotiable Instruments law. . . . (p. 33.1).
“. . . If circumstances exist as to the purchaser of stolen paper which are calculated to raise suspicion in the mind of a man of ordinary prudence and discretion, such a. purchaser will be prevented from acquiring title better than that of his vendor . . . (p. 332).
“. . ., the transferee of lost negotiable paper must, to acquire valid title thereto, have both paid a valu able consideration and taken it bona fide; if circumstances exist which are calculated to raise suspicion in the mind of a man of ordinary prudence and discretion, the purchaser of such paper will be prevented from acquiring better title than that of his vendor.” (p. 334); see, also, 10 C. J. S. 1117, § 507.
In the Uniform Laws Annotated, published by Edward Thompson Company, in the title on “Negotiable Instruments” (vol. V, part 2, p. 229, et seq.) there are annotations on § 59 of the Uniform Negotiable Instruments Law. In Note 52 on page 247 under the subject of “Theft,” there are cases from numerous jurisdictions to sustain the general rule that proof of theft shifts the burden of proof to the holder to prove that he, or someone under whom he claims, acquired the title as a holder in due course, i. e., for value and in good faith.
In Daniel on Negotiable Instruments, 7th Edition, §§ 1731-1732 the rule is stated:
“Section 1731. How title may be acquired from thief or finder. — Although the robber, or finder of a negotiable instrument, can acquire no title against the real owner, still if it he indorsed in blank, or payable or indorsed to bearer, a third party acquiring it from the robber, or finder, bona fide, for a valuable consideration, and before (hut not so, if after) maturity, without notice of the loss, may retain it as against the true owner, upon whom the loss falls, and enforce payment by any party liable thereon; upon the principle that whenever one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain it. And it is now settled in England and in the United States that even gross negligence on the part of such bona fide holder in receiving the instrument does not impair his title, nothing short of mala fides impeaching it. Not only does the mala fide transferee or holder of a negotiable instrument acquire no right to enforce payment, hut the loser may at once hold him liable in an action of trover ■ or assumpsit, or for money had and received. ...
“Section 1732. Presumptions as to bona fide ownership of lost bills and notes. — Some doctrines of evidence remain to be stated. The legal presumption is that the holder of a note is not a finder or thief, but a bona fide transferee for value. When, however, the loss by the original owner, or the theft from him, is proved, the burden of proof shifts, and the holder must show that he acquired it bona fide for value, and before maturity, or from some one who had a perfect title. . . . ”
From these authorities, — and with the theft of the check from the plaintiff being uncontroverted, — the law is: that the thief had a defective title (§ 10213, Pope’s Digest), and the burden was on the defendants (under § 10217, Pope’s Digest) to prove that they were, or the person from whom they acquired title was, a holder in due course, i. e., for value, before maturity, and bona fide.
Cases are cited to the effect that where proof is adduced that the holder acquired the negotiable note before maturity.for a valuable consideration, the burden proving lack of bona fides is on the opposite party. Such cases are: Metropolitan Discount Co. v. Fondren, 121 Ark. 250, 180 S. W. 975; Hamberg v. Ahrens, 118 Ark. 548, 177 S. W. 14; Conqueror Trust Co. v. Reves Drug Co., 118 Ark. 222, 176 S. W. 119; Williamson Bank & Trust Co. v. Miles, 113 Ark. 342, 169 S. W. 368; Pinson v. Cobb, 113 Ark. 28, 166 S. W. 943; Bank of Monette v. Hale, 104 Ark. 388, 149 S. W. 845; Holland Banking Co. v. Haynes, 125 Ark. 10, 187 S. W. 632; and Rose v. Spear, 187 Ark. 168, 58 S. W. 2d 684. But in none of these cases had there been any theft of the paper involved. There is no impairment of these cases in following, as we now do, the rule that where theft is shown, the burden is on the holdér to show both valuable consideration and bona fides.
With this burden on the defendants, we point out that in Uniform Laws Annotated, {supra) vol. 5, part 2, p. 247, the rule is stated that if the testimony of the holder to his purchase in good faith “is uncontroverted, and there are no circumstances tending to raise suspicion of its truth, the direction of a verdict in favor of the holder is proper.” So the questions then become: (1) whether the testimony offered by the defendants as to their purchase in good faith was uncontroverted, and (2) whether there was an entire absence of circumstances tending to raise a suspicion of the truth of the testimony supporting the defendants. Unless these two essentials concurred, the case should have gone to the jury.
We come, then, to the testimony offered on behalf of the defendants (appellees). There were two witnesses: (1) Mrs. (Miss) Marie Holthoff, and (2) the defendant, Meyer Graber. The sum total of the lady’s testimony was that she was working in the store when the check was cashed, and that Meyer Graber paid $238 for the check, and it had the name of Mary Pepple indorsed on it. The witness did not remember whether a man or a woman presented the check, or whether any questions were asked, or whether the witness noticed the address of the payee to be Pascóla, Missouri, or where that town was located: just the name, Mary Pepple, impressed the witness, and that was all that she could remember.
The testimony of Meyer Graber was the testimony of a party to the action, and is always considered as contradicted. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Holland Banking Company v. Booth, 121 Ark. 171, 180 S. W. 978. Furthermore, Graber had no more light to throw on the acquisition of the check than did the lady who testified; for this question was asked Graber, and answer made by him as follows:
‘ ‘ Question: As far as you know, you or none of your employees undertook to find out who Mary Pepple was or why she was down here from Pascóla, or where Pascóla was, or whether that was the proper party, and you don’t know whether a man or a woman cashed it?
“Answer: No, sir.”
Graber had first advised the court, in a motion for continuance, that he personally knew nothing about the cashing of the check, and that a Mrs. Hanna was the employee who had cashed the check. When continuance was refused, then Graher remembered that he had cashed the check. All this was presented to the jury as an impeachment of the testimony of Meyer Graber. In the case of Holland Banking Company v. Booth, supra, Mr. Justice Wood, speaking for this Court, quoted with approval from Skillern v. Baker, supra, as follows:
“ ‘It may be said to be the general rule that where an unimpeached witness testified distinctly and particularly to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact must be taken as established and a verdict directed accordingly, is inapplicable where the witness is interested in the result of the suit, or facts are shown which might bias his testimony, or from which an inference might be drawn unfavorable to. his testimony or against the fact testified to by him. Then the case should go to the jury.’ ”
This Arkansas case is in accord with the well-settled line of authorities. In Uniform Laws Annotated, “Negotiable Instruments,” vol. 5, part 2, p. 253, the rule is stated:
“Where the holder’s denial of notice is contradicted by suspicious circumstances, the question of good faith is for the jury, although there is no direct evidence of notice.” See Annotation on “Directing Verdict on Interested Testimony,” 72 A. L. R. 64.
We, therefore, conclude that the trial court erred in instructing a verdict for the defendants, and that the cause should have been submitted to the jury. Reversed and remanded. | [
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Knox, J.
This appeal presents solely an issue of fact — whether R. M. Ellis was competent to enter into an option contract, and later make the deed in conformity therewith. This matter concerns the sale by Mr. Ellis to U. S. Blankenship of a farm, which was then and had been occupied by Mr. Ellis as his home for several years. The farm consists of forty acres of land, only 36% acres of which, however, is tillable. The purchase price was $5,400, being a basis of $135 per acre for the entire forty, and slightly more than $147 per acre for the tillable land.
Shortly after the sale by Mr. Ellis to appellee the probate court of Mississippi county,- at the behest of Mr. Ellis’ children,' appointed a guardian for'his person and estate, and this suit was commenced. The main grounds relied on by appellants are (1) that fraud was practiced by appellee upon Mr. Ellis to obtain the conveyance; (2) that the purchase price was inadequate; and (3) that because of his age and mental infirmity Mr. Ellis lacked the mental capacity to understand and transact business.
There is no evidence of fraud. The deal was consummated in the office of an attorney selected by Mr. Ellis’ son-in-law, and several bf Mr. Ellis’ children were present. Appellee testified that he' and Ellis had discussed the trade for several weeks before it was made; that his first offer was $5,000, and Ellis increased the price by four hundred dollars. During all this time Mr. Ellis was in touch with his children, actually living with one, and seeing the others frequently. There appears to have been no effort on the part of appellee to conceal the fact that he was trying to purchase this property.
As to inadequacy of purchase price, the record does indicate that a better price, perhaps as much as $1,600, might have been obtained. It is to be remembered, however, that no such offer, or any other above the amount paid, was actually made. The evidence on this point is based on the opinion of witnesses as to value. On the other hand, other witnesses testified that the price paid represented the true value. There is sharp conflict in the testimony on this point, but, it is to be remembered, the only purpose for such evidence is to establish presence or lack of mental capacity, and only a wide divergency between value and sales price could have had strong evidentiary value on the issue.
The evidence is undisputed that Mr. Ellis is 83 years of age; that he is hard of hearing; afflicted with a disease somewhat akin to vertigo, which at times causes him to have dizzy spells; that he suffers with high blood pressure. Several months before the transaction, out of which this litigation arose, he was dragged some distance by a pair of young runaway mules.
The Ellis family and appellee have lived in the community for a number of years, and many lay witnesses testified on behalf of the respective parties relative to Mr. Ellis’ mental condition. To give a resume of all the testimony would unduly prolong this opinion, and to review a part and omit the balance would give undue emphasis to that reviewed. As to this lay testimony it may appear that on some points the preponderance is in favor of appellant, while on others it is on the side of appellee. Several of Mr. Ellis’ children testified to facts indicating lack of competence, but their interest in the result of this litigation cannot be ignored.
Four physicians, who hád examined Mr. Ellis, testified, two that, in their opinion, he was competent, and two that, in their opinion, he w;as not. Two of these physicians had known Mr. Ellis some twenty years, and had treated him and members of his family. The same ratio of divergency of opinion existed between these family physicians as the others.
Mr. Ellis took the stand and testified as a witness in the case. His evidence indicated that he understood and appreciated the issues. If any criticism of his testimony is at all justified it is that his answers disclose an over-keenness of perception for one. supposed to be lacking in mental capacity.
This case furnishes a splendid example of the valúe of the rule that the findings of a chancery court, while not conclusive, are nevertheless persuasive, and will not he disturbed unless against the weight of the evidence. If we were required to examine this record and decide this case on first impression, wholly without knowledge of local conditions, we would work under a great handicap. The chancellor on the other hand doubtless knew all, or most of the parties and witnesses; he was familiar with the scene in which the controversy was set; he was adjusting a dispute between his neighbors and friends, and the decree of the chancery court, of necessity, reflected much local color, which was clear to the judge thereof and helpful to a proper determination of the issues, but of which we can know little.
The decree of the lower court is affirmed. | [
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Griffin Smith, Chief Justice.
Isaac Williamson borrowed from Oscar Winn and used the money in paying part of the purchase price of land in Pulaski County. Williamson, unmarried, had two sisters: Nora P. Schneider and Rosa L. Karau. They joined their brother in a mortgage to Winn. The two sisters were Williamson’s nearest of kin when he died in 1935 or 1936.
Having inherited the property, the sisters made small payments from time to time, bnt when default continued unreasonably Winn foreclosed. The mortgage had been recorded January 23, 1934. Decree in Winn’s favor was rendered April 17,1942.
Virginia M. Borden intervened, alleging that on February 26, 1937, Mary L. Rush purchased the land from the State, its title having been acquired at a tax sale. Mary L. Rush (September 8, 1937) sold to Marguerite Fields, and Marguerite Fields (June 24, 1939) quitclaimed to intervener. Adverse possession was alleged from the early months of 1937. Pope’s Digest, § 8925.
Various defenses were interposed by Winn, who contended that the State’s tax deed was a cloud upon his title.
It was decreed September 10, 1942, that Virginia M. Borden had been in actual adverse possession for more than two years under color of title.
September 14 Winn moved to set aside the decree. Amendments to the complaint were filed January 6 and February 3, 1943'. Only the original motion and the second amendment are abstracted. Allegations were that there was an agreement between attorneys in open court that additional witnesses would be heard and other exhibits received, this to be permitted “after the Judge returned from his vacation.” It was then alleged that, without notice to the plaintiff, the intervener secured the decree of September 10, “. . . whereas, on the eighty day of September the plaintiff, pro se, informed the Court that within a few days — as soon as witnesses could be had and notice given to the intervener’s attorney — a day could be set for hearing and finishing the trial. The Court suggested that attorneys agree upon a day, and it would hear the .balance of the witnesses. . . .”
Substance of the motion and amendment is that “. , , the decree is a complete breaking of good faith, law, justice, and the agreement made after about a brief hour of hearing.” It was also alleged that fraud had been practiced upon the plaintiff and upon the Court. The decree, asserted Winn, was a mere word picture, due to the fact that the trial was recessed under an agreement that the plaintiff might present witnesses not then available. Prayer was that the “premature” transaction be expunged and that the cause proceed to final hearing.
February 3, 1943, the Court dismissed Winn’s motion, allowing the plaintiff thirty days within which to file proof in the form of depositions.
Partial transcript was filed in this 'Court March 8, 1943. Certiorari issued for the purpose of having the complete record brought up. Various depositions, exhibits, etc., were attached to the return of the writ, lodged with the Clerk of the Supreme Court March 16, 1944.
If, as appellant contends, the decree of September 10 was not final, an appeal did not lie. The mere circumstance that it was included in the record filed March 8 does not, standing alone, constitute an appeal, although this occurred within six months from date of rendition. What appears most probable is that Winn, in support of his contention that the case had not been closed, insisted -upon taking additional proof to sustain his assertion that an agreement made in open court allowed further time.
The method of presenting testimony is violative of the rules of this Court. Interspersed with the so-called abstract of depositions and oral testimony taken before the Court are personal comments, observations as to the effect of certain statements,'imputations that witnesses swore falsely, exemplification — and, in effect, annotations. One cannot distinguish between what the. .abstracter intended to present as language of the witness (or what the testimony would be in narrative form) and findings of facts with conclusions of law by appellant. Result is that Judges are driven to the transcript, or. must determine as best they can what part of the evidence is germane.
We would not retreat from this service if hy voluntarily assuming it there could be any assurance of deciding the case on its merits. As a matter of fact we have declined to dismiss on account of violations of rules. Mention of difficulties is made only for the purpose of emphasizing the possibility of overlooking evidence that from appellant’s point of view is controlling, but which as presented cannot be sifted from involved sentences and weighed in the scales appellant would provide.
An examination of the bill of exceptions — a task we are not required to perform — is not convincing that the Chancellor decided the case against a preponderance qf the evidence. On motion to vacate the decree the Court was vested with broad discretion. The Chancellor was in position to know what occurred in respect of any agreement not to close the case until additional evidence had been presented; but even if it should be said (which we do not hold) that a misunderstanding militated to appellant’s disadvantage, still the facts disclosed by additional depositions, when considered in connection with evidence in the original record, did not require that the decree be vaeáted.
Affirmed.
Mr. Justice Knox disqualified and did not participate in the consideration or determination of this case. | [
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Gtueein 'Smith, Chief Justice.
The controlling question is whether an occupation tax assessed by the City of Helena applies to appellant.
“'Contractors, brick or carpentry,” must pay $50 annually. Penalty for failure “shall be a fine twice the amount of the license imposed. ”
In Municipal Court appellant was fined $50. On appeal Circuit Court directed a verdict for $100. ■
Result here depends upon construction of the word “contractor.” It is undisputed that appellant (a brick mason) worked at $1.25 per hour. On one occasion he had been paid so much per thousand for laying brick. • In dealing with those desiring his services, appellant frequently-mentioned that a helper would be required. The amount so due would ordinarily be included in appellant’s pay check. He did not maintain an office. The telephone to which appellant had access was listed in his brother’s name. There was testimony that when appellant was not engaged as a bricklayer, he “did a little farming.” Printed on his truck were the words, “James Ewing & Son, Brick Masons. ’ ’
The term “contractor” is used in many senses. For determining whether a workman is entitled to recover under compensation laws, it is essential to ascertain whether the relationship of master and servant existed, or that of independent contractor and employer. Under lien laws a somewhat different rule applies; In Little Rock, Hot Springs & Texas Railway Co. v. Spencer, 65 Ark. 183, 47 S. W. 196, 42 L. R. A. 334, it was held that a contractor who had not performed any work or labor personally did not come within the terms of a statute providing a lien for “every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work or labor” on a railroad.
Texas courts have held that “contractor” refers to a person who undertakes a specific job in pursuit of an independent business, using his own means without submitting to control as to details. Evans v. Bryant, 29 S. W. 2d 484; Brigman v. Holt & Bowers, 32 S. W. 2d 220.
Opinions are to the effect that although, in a general sense, every person who énters into a ^contract may be called a “contractor,” yet the word — for want of a better term — has come to be used with special reference to one who, in the pursuit of an independent business, undertakes to do a specific piece of work for another person, using the performer’s own means and methods, without (as to details) submitting himself to control of the party for whose benefit the work is being done. The true test, it is said, appears to be that before one should be termed a contractor, he must render service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.
Caldwell v. Atlantic B. & A. R. Co., 49 So. 674, 161 Ala. 395; Jahn’s Adm’r v. Wm. H. McKnight & Co., 78 S. W. 862, 117 Ky. 655; Poor v. Madison River Power Co., 99 P. 947, 38 Mont. 341.
We think the Circuit Court erred in not holding, as a matter of law applicable to undisputed facts, that appellant was not a contractor within the meaning of the ordinance authorizing collection of occupation taxes.
Other issues were brought into the case, hut in the view we take they are unimportant.
Reversed, with directions to dismiss the cause. | [
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Wood, J,
This is an action by W. II. Hays against the American Insurance Company of Newark, New Jersey, and the Fidelity & Deposit Company of Maryland on a fire insurance policy issued by the insurance company on November 3, 1924, insuring the plaintiff’s residence in the sum of $1,000 and his barn in the- sum of $300. The insurance company will hereafter, for convenience, be called company. The residence of plaintiff at the time was occupied by the plaintiff, and the buildings — residence and barn — were situated on a farm three miles from Hamburg, Ashley County, Arkansas. The policy insured the property for a period of five years. The first premium of $21.60 was paid when the policy was issued, and the succeeding 'annual premiums were to be paid on the first of November of each year thereafter until November 1, 1928. On September 16, 1925, the plaintiff wrote the company that he was then living in St. Louis, and requested the company, when the premium was due, to send him notice at 1268 Delaware Avenue, St. Louis. On September '23, 1925, the company wrote the plaintiff that his note for $21.60 would be due on November 1, 1925. On October 24, 1925, the plaintiff sent his check for $21.60 to the company. On October 29, 1925, the company wrote the plaintiff, acknowledging receipt of the check for $21.60 for premium due November 1, 1925, and stated that, if he had rented his farm, he would have to pay an additional premium per annum therefor of $2.32, making the annual premium. $23.92. In this letter, as well as in the letter by the company to plaintiff of November 13, 1925, the company tells the plaintiff that, if he had a tenant occupying the property, he would have to pay the additional premium specified, and further states: “If- a man pays his premiums, he certainly wants protection, and we do not want you to do anything to violate the terms of policy contract without our consent.” On November 14,1925, in answer to these letters, the plaintiff wrote, notifying the company that he had a tenant occupying the property, and stated: “I understand from your letter that I am to pay an increase of $2.32 on the next installment, due November 1, 1926, which I expect to pay if I am not occupying the property myself and still own the same.”
On tbe 17th of November, 1925, the company wrote the plaintiff, inclosing permission to occupy the property by tenant, specifying the extra premium of $6.96 to be paid therefor, and requested the plaintiff to attach the same to his policy. On December 4, 1925, the plaintiff wrote the company as follows:
“I just received notice that my tenant whom I had on my place at Hamburg, Arkansas, moved out yesterday. Since I don’t think I can get my business arranged to get another in there before about the 20th of January, 1926, I am asking you if you will issue me a vacancy permit till that time.” ' On December 7, 1925, the company wrote the plaintiff as follows: “In reply to your favor of the 4th instant, will say that we cannot grant vacancy permit, so, if you will return your policy to us we will cancel the same, pro rata, and return your note and whatever amount cash that may be due you. Thanking you to let the policy come forward at once,” etc.
On December 9,1925, the plaintiff-wrote the company as follows: “I just received word that my house burned, and all other buildings were destroyed by fire Monday night last, the night of December 7, 1925, so I think my policy covering house and barn is due.” Plaintiff gave the number of his policy. He again wrote the company on December 21, 1925, to the same effect, stating that he had notified the company of the destruction of his property by fire and that he had not had any reply to his letter, that the policy was due, giving number of same. .On December 22, 1925, the company wrote the plaintiff, saying: “The matter with reference to the above policy was referred to our special agent, Mr. Oscar Dillehay, Hall Building, Little Bock, Arkansas, who no doubt will give attention to the same at his earliest convenience.” On January 7, 1926, the plaintiff wrote to Dillehay, stating he had written to the company notifying it of the fire and loss about a month previous, and had received an answer on December 22, 1925, stating that the company had referred the matter to him as special agent, and requesting bina to send tlie plaintiff blanks for proofs of loss, •concluding the letter with the following: “I will send the proof and estimate to you, as I would like to have an early adjustment, so I can build.”
On January 20,1926, the company wrote the plaintiff, stating, in substance, that its agent had visited the premises and found that the property was vacant ‘and had been vacant for some time.” This letter concluded as follows: “We refer you to the terms and conditions of your policy, without waiving any terms and conditions of policy and reserving all rights under terms of the policy, and neither admitting nor denying liability.” .On January 22, 1926, the plaintiff wrote the company, inclosing the plans of the buildings and cost of same, and requested the company .to give him a definite answer in the matter. Oü January 26,1926, the company answered, saying: “I can only refer to the terms and conditions of your policy without waiving any of the terms and conditions of the policy.” After this letter the plaintiff sent in his proof of loss about January 26, 1926, and on the 2d of February, 1926, wrote the company stating that he had written it four times previously,, and that the company had ignored his letters, and notified the company that, unless he heard from it in a short time, .he would put the matter in the hands of his 'attorney. This letter closed the correspondence. . ;
. The .company is a member of the. Fire Prevention Bureau, which is a rating bureau for fire insurance companies in Arkansas, .one of the rules of which is that, when permission is given for premises to become vacant, by reason of the increased hazard by reason of such vacancy or unoccupancy, one-third of the insurance is suspended, and in case the property is destroyed, by fire, through such vacancy, the company would be liable for not exceeding two-thirds of the amount of the insurance.
The policy and-a certified copy of the bond for the prompt payment of all claims with the Fidelity & Deposit Company as surety thereon were made exhibits to the complaint.
. The plaintiff instituted this action, and set np the policy, alleged a compliance on his part with its provisions, and prayed judgment for the amount of the policy in the sum of $1,228.24, less the premium notes. Plaintiff also prayed for penalty and a reasonable attorney’s fee.
The defendant answered, and denied formally the allegations as to the destruction of the property, and denied specifically that the plaintiff had complied with the terms of the policy as to notice and proof of loss, and that defendant had waived any proof of loss, and alleged that the plaintiff had wholly failed to comply with the terms of the policy, and therefore denied any liability on the policy and on the bond of the Fidelity & Deposit Company.
The policy, among other things, contains this provision : “If the risk be increased in any manner, or if any change takes place in the title, possession'or interest of the assured in the above mentioned property, * * * or if any of the above mentioned buildings BE OR BECOME VACANT OR UNOCCUPIED WITHOUT THE CONSENT of an officer or the Southern Farm Department manager of this company indorsed hereon, then, in each and every one of the above cases this entire policy shall be null and void. ” ' •
The cause was, by consent of parties, submitted to the court sitting as a jury upon the above issues and facts, and the court rendered a judgment in favor of the plaintiff against the defendants in the sum of $1,228.24, the amount due under' the policy, with interest, and twelve per cent, penalty., and an attorney’s fee in the sum of $250, from which judgment is this appeal.
It will be observed that the policy provides that if any change takes place in the possession of the property without the consent of the insurance company, the policy should be null and void. The policy and the correspondence between the appellee and the insurance company show that the appellee, after issuance of the policy, changed possession of the property without the consent- of the insurance company. It appears from the policy that W. H. Hays insured his dwelling house, situated within three miles of Hamburg, Ashley County; his address in the policy is Hamburg, Arkansas, and his letter to the company of September 16, 1925, states he was then living in St. Louis. There is nothing in the record to show that, up to this time, he had obtained the consent of the company to change possession of the property, and if the company had then declared a forfeiture of the policy, it would have been entitled thereto, under the express terms thereof; hut the company clearly waived this right to a forfeiture of the policy by its letters to appellee of October 29, 1925, November 13, 1925, and November 17, 1925, which show that the company consented to the occupancy of the property by tenant and accepted appel-lee ’s promise to pay the company an increase of $2:32 on the annual premium in consideration of the permission granted by it for appellee to have the premises occupied by tenant. We cannot therefore agree with learned counsel for the appellants in their contention that the appellee has not paid anything for the tenancy permit and made no promise to pay. On the contrary, appellee did promise to pay the increasód premium, which was not due until November 1, 1926, and, before this premium became due, the fire destroyed the property, and the company has-denied all liability under the policy. The parties agreed that, in case of recovery on the policy, the balance due on the unpaid premium note of $71.76 should be deducted from the amount due on the policy, and such was the judgment of the trial court.
It appears from the letter of the insurance company to the appellee of October 29, 1925, that the company proposed to continue the insurance on the property to the end of the term, with permission for tenant occupancy during that time, upon appellee’s paying an increased premium of $23.92. At the next due date of the premium, which was November 1, 1926, the premium for the year 1925 had been paid, as the letter shows. Appel-lee accepted the company’s proposition in a letter of Nov ember 14, 1925, in'which, he states that he understood that he was expected to pay the increased premium for tenant occupancy, and that he would pay the same if, at the time the premium became dne, he was not occupying the property himself and still owned the same, and hoped that this would be satisfactory. The insurance company, by its letter of November 17,1925, indicated that this was satisfactory to the company by sending to the appellee an indorsement which they requested him to attach to his policy, which indorsement contained this provision: “In consideration of extra premium of $6.96 permission is granted for property under this policy to be occupied by good reliable tenant during remaining term of policy contract.” This concluded a contract between the insurance company and the appellee for the insurance of the property in controversy until November, 1929. This contract of insurance for tenant occupancy of the property insured was therefore in force and binding upon the parties on the 7th of December, 1925, when the loss occurred, unless, in the meantime, the appellee’s rights thereunder had been forfeited by reason of the fact that, at the time the loss occurred, the property was vacant. The letter of the appellee to the insurance company of December 4,1925, shows that the property became vacant on December 3, 1925, and the appellee notified the insurance company by letter of that fact on the next day, and requested a vacancy permit until January 20, 1926. The appellant replied to the letter on December 7, 1925, the day the fire occurred, and refused to grant appellee permission to continue the policy if the property remained vacant, and requested appellee to return the policy at once, saying, “We will cancel same, pro rata, and return your note and whatever amount of cash may be due you.”
The policy provides: “If any of the above buildings be or become vacant or unoccupied without the consent of an officer or the Southern Farm Department manager of this company indorsed hereon, * * * then this entire policy shall be null and void.” The crux of this lawsuit therefore is to determine whether or not, under the above facts, there was in law a vacancy which, under' the terms of the policy, wrought a forfeiture thereof.
In Planters’ Fire Insurance Company v. Steele, 119 Art. 597, 178 S. W. 910, Ann. Cas. 1917B, 667, the insurance company issued to Steele a policy of fire insurance on his dwelling- which he was then occupying- as such. Afterwards he moved-out, without permission of the company, and rented the same to a tenant. The tenant moved out, and Steele made application to the company for a vacancy permit. The company granted the permit for a period of thirty days. After the time for the vacancy permit had expired, Steele re-rented the house, and it was again occupied hy a tenant, who occupied the same until four days before the fire. The tenant’ moved out on July 11 and the fire occurred on July 15, and the house was vacant when the fire occurred. The vacancy permit had expired before the tenant moved out of the house the last time, and Steele, the insured,- did not ask for and did not obtain la renewal vacancy permit.
Under the facts of that case we held that the policy was void for two reasons; first, because there was a change of occupancy within the meaning of the policy, the owner having moved out and having rented the property insured to a tenant, who took possession thereof; and second, because the house covered by the insurance was vacant at the time of the fire. In that case, at page 602, we said:
“There are authorities to the effect that, where the insured property is occupied by a tenant, it is impliedly contemplated by the parties to the contract of insurance that any temporary vacancy caused by, or incident to, such change, is not within the purview of the vacancy clause. 2 Cooley’s Briefs on Insurance, 1675. That principle does not apply, however, in this case, for the reason that the property was occupied as a dwelling, and it was contrary to the terms of the policy to change the character of the occupancy. Insurance Association v. Dewberry, 69 Ark. 295, 62 S. W. 1047, 86 Am. St. Rep. 195. Therefore there could be no presumption that a temporary vacancy or period of tmoccupancy was within the contemplation of the parties. * * * The stipulation of the present policy was unconditionally to the effect that, if the building become 'vacant ¡and unoccupied,’ the policy should be void, and it cannot be said that there •was any period of time contemplated at all for unoccu-pancy for the reason that the policy also provides that any change of occupancy should also operate as an avoidance of the policy. No presumption could be indulged in the face of that express stipulation.”
Learned counsel rely upon the above ease, and cite a great many authorities from other jurisdictions to support their contention that, under the terms of the policy, the property in controversy, upon the undisputed facts of this record, was vacant at the time of the fire, and therefore that the policy lat that time was void. One of the leading cases which support the contention of counsel for the appellants is that of Farmers’ Insurance Company v. Vogel, 73 N. E. 612, 166 Ind. 239, 3 L. R. A. (N. S.) 966, 117 Am. St. Rep. 382, 9 Ann. Cas. 91. In that case the policy contained a provision similar to the one here under review. The building insured was occupied by a tenant with the knowledge of the insurer. The tenant, without the knowledge of the assured, moved out of the building, and, four hours thereafter, and before the assured had learned of it, and before he had reasonable time to make application for a vacancy permit, and before he had opportunity to procure another tenant, the building was destroyed by fire. The court held, under those facts, that the building was vacant within the meaning of the policy at the time of the fire, and that the policy was void. The ease is exhaustively treated, and many authorities are cited to sustain the court’s views, and the authorities holding otherwise are reviewed and distinguished to the satisfaction of the majority of .the court. There was a dissenting opinion, however, in which the judge states that the appellee, the insured, “was entitled to a reasonable time in which to ascertain that the tenant had moved out and within which to procure the indorsement of a vacancy permit upon liis policy,” and he cites a- great many cases to support his conclusion. So we concede that there is a great contrariety of views upon the question. But we aye in accord with Mr. Cooley when he says: “It is a well settled rule that, when the premises are described in the policy as occupied by a tenant, change of tenants is contemplated by the parties, and therefore any temporary vacancy caused by or incident to such change is not within the purview of the vacancy clause. ’ ’ 2 Cooley, Briefs on the Law of Insurance, page 1675. A great many cases are cited to support the text.
In R. C. L. it is said: “According to the prevailing view, if a fire insurance policy is taken on tenement property, a provision for forfeiture in case the premises become vacant- will operate only after a reasonable time has elapsed, in which to obtain other tenants.” R. C. L., page 1104, § 282. See also 26 C. J., page 216, § 263. Numerous authorities are cited to support the text above announced.
In this connection we approve the doctrine announced by the Supreme Court of Wisconsin in Hotchkiss v. Insurance Co., 76 Wis. 269, 44 N. W. 1106, 20 Am. St. Rep. 69, as follows:
“Under certain circumstances, premises may be vacant or unoccupied when, under other circumstances, premises in like situation may not be so, within, the meaning of that term in insurance policies. Thus, if one insures his dwelling ho,use as occupied as his residence, and moves out of it, leaving no person in occupation thereof, it thereby becomes vacant and unoccupied; but if he insures a tenement house or one occupied by tenant, it may fairly be presumed, nothing appearing to the contrary, that the parties to the contract contemplated that the tenant was liable to leave; and that more or less time might elapse before the owner could procure another tenant, and hence that the parties did not understand that the house should be considered vacant and the policy forfeited, immediately upon the tenant’s leaving it. ’ ’ See also Insurance Co. v. Davis, 59 N. W. 700, 40 Neb. 700; Texas Fire Ins. Co. v. Kempner, 34 S. W. 393, 396, 12 Tex. Civ. App. 533.
Now, it will be observed that tlxe case of Planters ’ Fire Insurance Co v. Steele, supra, upon which counsel rely, does not sustain appellant’s contention that, in the -contemplation of the parties to this contract, there was a vacancy of the property at the time of the fire. On the contrary, we think the doctrine there announced, at least by implication, tends to support the views we here express. In that case the property was the dwelling of the insured, and it’does not appear that there was any consent to a change of occupancy of the property insured. As the court said, “No temporary vacancy or period of unoccupancy was within the contemplation of the parties ; ’ ’ but here, as we have shown, there was an express contract that the policy should cover the property when occupied by a tenant. So it occurs to us that, under the facts of this record, it was in the contemplation of the parties that a vacancy might occur necessarily incident to a change of tenancy which would not affect the validity of the policy. "When we consider the fact, which is undisputed, and which the insurance company had knowledge of, that the appellee at the time of the fire was residing in St. Louis and that the property insured at Hamburg, Arkansas, was occupied by a tenant, that the property became vacant on the 3d of December, 1925, and the appellee notified the insurance company of that fact the next day, certainly it cannot be said that the appellee was negligent in entering upon negotiations with the insurance company for a continuation of his policy until he could have the premises reoccupied. Before appellee received an answer to this request for a vacancy permit, on December 7,1925, the fire occurred. It cannot be said that four days was an unreasonable time to conduct such negotiations, nor can it be said that four days was an unreasonable time incident to a change of tenancy. We think the argument unsound that the appellee did not .intend to occupy the premises until January 20, 1926, because he requested the insurance company to give him a vacancy permit until that time. On the contrary, we doubt not that, if the insurance company had notified the appellee, in answer to his request, that it would grant him a limited vacancy permit, and, after such time, if the property were,'still vacant, the policy would be declared forfeited, appellee would have immediately arranged to reoccupy the premises either by himself or by a tenant.
Our conclusion on the whole case therefore is that, at the time the fire occurred, there had been no forfeiture of the policy, that the same was in full force and effect, and that the appellants are liable thereunder for the amount .of the judgment rendered against them in favor of the ■appellee.
The judgment is in all respects correct, and it is therefore affirmed. | [
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Smith, J.
On January 1,1914, E. J. Jackson entered into a coutract of lease with H. L. and S. W. Cole, who were partners, doing business as the Cole Furniture Company. The lease covered lot 11 in block B of the town of Trumann, and it was there agreed that the. Cole brothers, as lessees, should erect a business house on the lot and pay a monthly rental of $20, and should have the right to use and occupy the building for the period of ten years, at the end of which time the lessees were to surrender possession of the building. The lessees erected a building, and, after occupying it for- about three years, they entered into a verbal contract with Jackson under which they erected several smaller business houses. The terms of the contract under which these last and smaller buildings were erected are in dispute. The lessees insist that the contract provided that they should have the free use of these buildings until the termination of the original written lease, and, at the end of that time, should be paid the salvage value of the buildings. The lessees defaulted in the payment of the rent, and an unlawful detainer suit 'was brought by the lessor to recover possession. A judgment was rendered in that case, which recites that the defendants announced not ready for trial, but that a jury was impaneled, and, after testimony was offered, a verdict was returned in favor of the plaintiff lessor for the possession of the property and for $855.12 as rent.
Later this suit was brought by the Cole Furniture Company, and the complaint alleged their version of the contract under Avhich the additional buildings had been erected, and at the trial they offered testimony tending to sustain these allegations. Testimony was offered by Cole Brothers that Jackson had bought certain furniture at another store owned by them at Parkin, Arkansas, and that Jackson had failed to credit the purchase price thereof on the account between the parties. This was denied by Jackson. •
At the conclusion of all the testimony the court ruled, in effect, that the judgment in the first suit was conclusive of all the issues in controversy except the'purchase piice of the furniture, and the jury was directed to find for the plaintiff for the purchase price of the furniture, unless it was found that the account had been paid and settled, and that the^burden was on the defendant to show payment. A verdict was returned in favor of the defendant, and judgment was rendered accord-' ingly, and this appeal is from that judgment.
Several questions are raised which we find it unnecessary to discuss. The court correctly held that the first judgment was conclusive of the rights of the parties under both the written and verbal leases. As the lessees might have litigated their rights to the lot and the property thereon in the unlawful detainer case, they are barred by the judgment there rendered from litigating them in the second case. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 684, 290 S. W. 577.
The lessees cannot, in a subsequent case, litigate matters which were necessarily within the issues pre sented in the first case. Nothing remained which was not concluded by the judgment in the first case, except the sale of the furniture, and the verdict of the jury at the trial from which this appeal comes is conclusive of that question.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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McHaney, J.
John J. Hughes, was the owner of certificate No. 147 for. 44 shares of stock in appellant corporation, of the par value of $25 each, and, on September 30,19'20, at a time-when he was indebted to the Ameri can Bank of Commerce & Trust Company of Little Kook, Arkansas, W. W. Moore, secretary of appellant, executed the following* waiver of its statutory lien on said stock:
“State of Arkansas, County of Phillips.
“I, W. W. Moore, do hereby certify that John J. Hughes is the owner of 44 shares of the capital stock of the Interstate Grocer Company, a corporation org*anized and doing business under the laws of Arkansas, evidenced by stock certificate No. 147 of said corporation. That said corporation has no lien or claim whatever on said stock, and hereby acknowledges that said stock is transferred as security to the American Bank of Commerce & Trust Company, Little Rock, Ark., for the payment of $. with interest at.per cent, per annum, or for any other indebtedness now .existing or that may he hereafter contracted.
“Dated at Helena, Ark., Sept. 30, 1920. W. W. Moore, Secretary of the above named corporation.”
This indebtedness to the American Bank of Commerce & Trust Company was evidently paid off on or about June 5, 1922, as, on that date, the American Bank of Commerce & Trust Company assigned the above-mentioned waiver of lien to appellee by indorsement thereon in the following* language:
“'June 5, 1922.
“We hereby assign all rights of lien as expressed in the waiver on the opposite side of this sheet in favor of the National Bank of Commerce, St. Louis, Missouri, without recourse of any kind whatsoever on this institution. American Bank of Commerce & Trust Co., Little Rock, Arkansas. By W. A. Hicks, V. P. and Cash.”
On June 5,1922, Hughes was indebted to appellee in a large sum of money, and deposited with appellee, or its agent, the 44 shares of stock above mentioned, together with the waiver of lien above set forth, with the indorsement thereon. On December 5, 1922, this indebtedness by Hughes to appellee was renewed, and this stock certificate and other collateral remained with appellee as collateral security for the payment of Ms indebtedness. Hughes paid a portion of Ms indebtedness to appellee, and, on March 13, was adjudicated a bankrupt in the Helena Division of the Federal District Court of the Eastern-District of Arkansas, at a time when he was still indebted to appellee in a large sum of money. During all of the times hereinbefore mentioned Hughes was indebted to the appellant, and, on the date óf the adjudication, owed appellant the sum of $1,094.94, for which amount appellant filed claim with the referee in bankruptcy as an unsecured creditor, and without claiming or asserting any lien upon the stock in question, and without giving Hughes credit for the value of the stock in question. In its proof of claim in bankruptcy, appellant made the following statement: “That the said Interstate Grocer Company has not, nor has any person by its order or to the knowledge and belief of said deponent, for its use, had or received any manner of security whatever, or any note for such account, nor has any judgment been rendered thereon, and that the only securities held by the said............for said debt are the following”; and no securities are listed opposite said statement.
On June 29, 1923, appellee wrote .appellant advising it that it held this stock, giving the certificate number, in which it claimed the dividend, if any, thereon. Thereafter followed considerable correspondence between the parties regarding the stock, in which appellee sought to have appellant transfer the stock to it, and in which appellant demanded to see the stock and the waiver, which was sent by appellee to its correspondent bank in Helena, were submitted to appellant on September 4, 1923, and it refused to transfer the stock, because it claimed a statutory lien thereon for the indebtedness due it by Hughes. On October 20, 1923, appellee filed its claim in bankruptcy as a secured creditor for the balance due on its indebtedness, .and, having reached an agreement with the trustee as to the value of the securities held by it as collateral, including the stock in con troversy, which was valued at $1,100, the value of all securities was credited on the note and claim filed in bankruptcy for the balance due as an unsecured claim, and the value of the securities so agreed upon between appellee and the trustee was approved by the referee. On November 30, 1923, a dividend of 7y2 per cent, was declared and paid, and on May 24,1924, another and final dividend of a little more than one-half of 1 per cent, was declared and paid, both of which were accepted by appellant, and thereafter the bankrupt was discharged. On these facts the lower court entered a decree holding that the 44 shares of stock in question was the property of appellee, and directing appellant to transfer same on the books of the corporation and issue a new certificate for a like number of shares to the appellee, together with the payment of dividends which had been declared on said stock, in the sum of $132, with interest as set forth therein. From the decree against it appellant has prosecuted this appeal.
The only question presented to this court for decision, as stated by counsel for appellant, is “whether or not the appellant is estopped by its conduct to now assert its statutory lien on the shares of stock in question for the purpose of enforcing collection of an indebtedness due it by the owner of the stock. ’ ’ Appellant concedes that, “if the conduct of the appellant company is such as to warrant a finding that it has made an election to rely upon the dividends to be declared by a court of bankruptcy rather- than upon the lien given it by statute for enforcing collection of its demand, then the decision of the lower court was correct.” Counsel for appellant contends, however, that, if “the claim of this appellant was filed as an unsecured claim with the referee in bankruptcy under a misapprehension of facts, ’ ’ without fault or negligence on its part, it should not be held to an election, and that the doctrine of estoppel would not prevent the enforcement of its statutory lien.
As above stated, appellant filed its claim in bankruptcy, without claiming a lien, on March '20, 1923, and a little more than 90 days thereafter, June 29, it received a letter from appellee advising it that it held this stock as pledgee thereof, and claiming any dividends thereon after that date. Reply was made to this letter on July 5, in which appellant requested proof of the fact that it was the holder of this stock, in which it said: “It will be necessary for you to prove your claim, not that we doubt your statement. The best way would he to send this stock in, together with release, and have new stock • issued for it. The writer was under the impression that this stock had been released by us, but we find no record of it, and said release would have to be established. ’ ’ A brief history of the success of the company was given in this letter, and a promise to send appellee the semiannual statement was made. Reply was made to this letter by appellee on July 6, suggesting that appellant confer with its counsel, and on July 9 appellant wrote appel-lee, acknowledging receipt of the letter of the 6th, and stated: “We have no idea of contending* with you concerning this matter with reference to John J. Hughes’ stock. We cannot send dividends to any person or persons until they establish their rights to receive such dividends. We need no legal advice on this matter. If you hold this stock as pledgee and have our release, when you have established this fact to our satisfaction, we will then recognize you as the proper source to receive the dividends.”
On July 13 appellee wrote appellant that they were sending the stock to the First National Bank at Helena, and requesting that the stock be transferred to their nominee. The stock was sent by appellee to its correspondent, who took the matter up with appellant, and for the first time it claimed to have a lien on the stock by reason of an indebtedness due it by Hughes.
We are of the opinion that the chancery court correctly held that appellant is estopped to assert its statutory lien on the stock because of its election to file its claim as an unsecured creditor of the bankrupt. It is true that, at the time of filing the claim in bankruptcy, appellant did so under a misapprehension of fact, as it had no knowledge of the discharge of the indebtedness of Hughes to the American Bank of Commerce & Trust Company, hut, shortly thereafter, it did learn of this fact, within ample time to have amended its claim in bankruptcy and reestablished its claim as a secured creditor and had the value of its security estimated.- It did-.not do this, but, with the full knowledge of appellee’s claim thereto, and with either the actual or constructive knowledge of its having filed its claim in bankruptcy as a secured creditor, with the value of the securities, including the value of this stock, credited thereon, appellant took no steps to have its rights to the stock adjudicated in the bankruptcy court. As this court said, in the case of the Bank of Searcy v. Merchants’ Grocery Company, 123 Ark. 403, 185 S. W. 806, ‘ ‘ it involves the doctrine of election because, if the appellee (grocer company) made an election to stand as an unsecured creditor, it cannot afterwards take the inconsistent position of being a secured creditor and assert the right to enforce the security. In' other words, the election to appear as an unsecured creditor constitutes an abandonment of the security.”
Quoting again from the same opinion, on page 407, this court quoted from the bankruptcy act as follows: “The bankruptcy act (§ 57, subdivision ‘e’) contains the following provision on the'subject of secured creditors-: £ Claims of secured creditors and those who have priority may be allowed to enable such creditors to participate in the proceedings at creditors’ meetings held prior to the determination of the value of their securities, or priorities, but shall be allowed for such sums only as to the court seems to be owing over and above the value of their securities or priorities.’ Another subdivision of the same section (‘h’) contains the following provision: ‘The value of securities held by secured credr itors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors, or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance.’ The bankruptcy act (§ 1, subdivision 23) defines the words ‘secured creditor’ as follows: ‘Secured creditor’ shall include a creditor who has security for his debt upon the property of the bankrupt of a nature to be assignable under this act, or who owns such a debt for which some indorser, surety, or other persons secondarily liable for the bankrupt has such security upon the bankrupt’s assets.’ ”
If appellant had desired to assert its claim in bankruptcy as a secured creditor, it would have been necessary for it to have asserted its lien and had the value' of the stock determined in the manner set forth in the bankruptcy act. And, although it filed its claim as an unsecured creditor in ignorance of its rights, or under a mistake of fact or law, it had the right, after it came into the possession of facts which put it on notice that another was claiming the security^ which it claimed, to have amended its claim in bankruptcy, so as to have asserted its lien and saved itself from the necessary consequences of election and estoppel, as is here presented.
One of the recent cases on this subject is that of In re O’Gara Coal Co., 12 Fed. (2d) 426, 46 A. L. R. 916, cited and quoted from by counsel for appellee as follows:
“In bankruptcy there have been many decisions in the district courts, all to the effect, so far as we have found, that the consequence of filing a secured claim as an unsecured debt is the waiver of the security. White v. Crawford (C. C.) 9 F. 371; In re M. I. Hibbler Machine Co. (D. C.), 192 F. 741; In re Fisk & Robinson (D. C.), 185 F. 874; In re Little (D. C.), 110 F. 621, 627 (Judge Shiras); In re Norris, 18 Fed. Cas. page 316, No. 10, 303; In re High, 12 Fed. Cas. page 133, No. 6, 473; In re Jaycox, 13 Fed. Cas. page 409, No. 7, 242, in which case it was held, however, that, when such proof was made through ignorance or mistake, a creditor ought to be allowed to withdraw Ms proof land prove as a secured creditor. In re Granger, 10 Fed. Cas. page 958, No. 5, 684. The answer to the objection that the filing of the amendment to the claim for allowance as a secured debt was ivith-out permission of the court should have been filed earlier, might be well taken under different conditions. But here no steps were taken for the allowance of the claim as secured until after the case was returned from the Supreme Court and several years after the decree of May 9, 1919, ordering payment of all claims. Unquestionably, great latitude has been allowed, as there should be, in the amendment of claims. There are, on the proposition, many district court decisions. In re Myers (D. C.), 99 F. 691, 693, an Indiana case, District Judge Baker said: ‘The court undoubtedly possesses the power, in its discretion, and in a proper case, to allow proofs of debt to be amended, and, in case of mistake or ignorance, either of fact or law, will generally exercise that power, in the absence of fraud, and, when all the parties can be placed in the same situation that they would have been in if the error had not occurred, and where justice seems to demand that the amendment should be made.’ See In re Wilder (D. C.), 101 F. 104; In re Falls City Shirt Co. (D. C.), 98 F. 592; In re Hubbard, 12 Fed. Cas. page 775, No. 6, 813; In re Fisk & Robinson (D. C.), 185 F. 974. See also Hutchinson (D. C.) v. Otis, 190 U. S. 552, 23 S. Ct. 778, 47 L. ed. 1179, where the court permitted the amendment and granted the relief because of a mistake of fact. All those cases show that amendments are only allowed because of some mistake or error, and in furtherance of justice. Here the alleged amendment of the claim sets up no error or mistake, and none is shown in the record. From the situation of the receiver we must assume that he knew that the collateral was worth at least $50,000 on January 1, 1917, and yet he delayed seven months thereafter before filing his amended claim.”
It will be seen that Judge Page, of the Circuit Court of Appeals of the 7th Circuit, made a very exhaustive review of the authorities and states the law clearly with reference to this matter. Taking all the facts and circumstances into consideration, including the fact that appellant had executed a waiver on this stock in favor of the American Bank- of Commerce & Trust Company, which had been assigned by it to appel-lee, and which had never been recalled by appellant, and its waiver of lien surrendered and canceled, together with the other matters hereinbefore stated, we hold that the appellant -had its election, and is now estopped to assert a lien on the stock in question.
It necessarily follows that the judgment must be affirmed. It is so ordered. | [
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Smith, J.
Appellee, B. A. Gray, entered into a contract -.with Prairie County to do-certain road and'bridge work and to drag certain other roads and to build certain bridges. J. P. Sims was • the county judge at the time this contact was made.- Gray built a dump about three miles long, and filed four claims for moving the earth used in its-construction. One-claim was for $896.60 for moving 4,483 cubic yards*- the second for $929 for moving. 4,645 yards, the third for $649 for moving 3,245 yards,.and the fourth for $847.40 for moving 4,237 yards. Other claims were filed for grading -and for dragging the roads and for construction of two bridges. All the claims were allowed in full. None of the claims were verified, and some of them were not-itemized.
Sims was succeeded as county judge by George W. Craig, who, shortly after his induction into office, made an order calling in all outstanding county warrants for reissuahce, and at: finding was made'by him that certain warrants, issued to appellee were fraudulent and had been issued oollusively by his predecessor, and new warrants were issued Gray for the amount, found due by Judge Craig for-services actually performed-under'the contract: - "
W. L. Sanders, a citizen and .taxpayer of the county, prayed an appeal from the order allowing the.claims of Gray, and this appeal was consolidated and heard with the appeal from the order of the county court made upon reissuing the warrants. -. .
It was decided in the case of Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40, that the county court, in the .allowance of claim’s against the county, acts judicially, and that its judgments are not open to collateral attack except for fraud or lack of jurisdiction, hut that, when the court has ordered warrants to be called in for reissuance under the power- so' to do conferred-by statute, the authority exists to reject warrants issued illegally or fraudulently. It was there also decided that, while the mere fact that the county-court had erroneously allowed a claim for an excessive amount does not call for reinvestigation and review in the calling-in- proceeding under the statute, yet, if fraud was practiced in the allowance itself, the claim is an illegal one, and may he canceled, but, when canceled, it should then he allowed for the amount actually due by. the county.
The evidence tending to show- collusion in the issuance of the claims is as follows: They were not itemized or verified. These circumstances alone do not establish fraud, although they are proper circumstances to consider in determining whether there was fraud.
In the case of Lamb & Rhodes v. Howton, 131 Ark. 211, 198 S. W. 521, it was held that the failure to-verify a claim did not operate to defeat the jurisdiction of the county court to allow it, and that the verification might he supplied in the circuit court.
It was further shown by the testimony, however, that a claim was allowed for the construction of two bridges, each sixteen feet long, at a certain crossing, whereas only one.bridge was built at that crossing,'and it was only twelve feet in length. It was shown also that the county judge drew most of the warrants which he had ordered issued-to Gray.
We conclude therefore that the testimony supports the finding that certain wa'rrant's were illegally issued, and the court therefore had the" right to inquire and' to determine what amounts were properly due on the claims. The appeal of the taxpayer would also confer this .jurisdiction-.
■ The judgment of the circuit court affirmed the action of the county court in certain respects, but reversed the judgment of the bounty' court in - others by ordering allowance to be made in larger amounts than those fixed by the county court,- -and the county, has- appealed from this order. It appears therefore that the present appeal pres'ents nothing but questions of fact, -and we must therefore, under settled'rules of practice, affirm the'judgment of -the 'circuit court if- the testimony is legally sufficient to support the findings made. Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723; Matthews v. Clay County; 125 Ark. 136, 188 S. W. 564:
' The’ principal items involved are for thé earth excavated and placed in the road, the contract for'which was twenty cents per cubic yard. Judge Craig employed two engineers, to check this work, and, according to their testimony, the allowances were - grossly, excessive.. The county surveyor had'given appellee estimates on the work as it progressed, and these "estimates,- four in- numiber, totaled 16,610 yards. One of the - engineers .employed ,bv Judge Craig placed the yardage at 2,960.2, the other at 3,520.7.
. The county surveyor explained how these estimates were made, and testified that they.were correct, except that he had made a mistake of 4,000 yards in his calculations.
H. R. Carter testified, in appellee’s behalf, that he saw the bench marks placed by the county surveyor,' and that he checked the notes and found them correct, and that, in his opinion, it would have been impossible for the couiitv surveyor to have “'framed up” his notes. It was Carter who discovered the error of 4,000 yards in the county surveyor’s estimates, but, notwithstanding this fact, Carter testified that, in his judgment, 12,699 cubic yards of earth had been moved. In addition to this testimony, appellee himself testified that he had moved a quantity of earth as great at least as that stated by Carter. , -
The circuit court rendered judgment in • appellee’s favor for moving the amount of earth which Carter stated had been moved, at the contract price, and, as the testimony supports that finding, we cannot disturb it.
The finding,., o'f the county court in regard 'to the allowance for the! bridge does not appear to be questioned. Indeed, appellee himself testified that he did not present a claim for two bridges,- and could not explain why this was. done..
As to' the items for grading and dragging the roads, it suffices to say that appellee testified as to the number of days on which he had worked and the number of men and teams employed, and there appears to be , no real contradiction of this testimony..
The judgment of the court allowing these items appears to be supported by legally sufficient testimony, and the judgment will therefore be affirmed. | [
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Hart, C. J.
The issues raised by these two eases are the same, and one opinion will suffice. Each case is an appeal by a common carrier from a judgment against it in favor of a shipper for damages for the alleged negligence of the carrier in failing to refrigerate a oar of strawberries during transit in an interstate shipment.
It appears from the record that the car of strawberries in each case was shipped from a point in Louisiana to New York City, and did not, at-any time while en ■route, come into the State of Arkansas. The plaintiff is a domestic corporation organized under the laws of the State of Arkansas, and.is engaged in business at Van Burén, Arkansas. The defendant is a foreign corpora tion, but lias complied with tlie laws of the State of Arkansas with regard to carrying on its express business in tlie State. It is claimed by counsel for tlie appellant tbat the appeal should be dismissed under these circumstances, because it would be a burden on interstate commerce to require the defendant to answer to a suit in this State. The contention of counsel for the appellant on this point is concluded against.it by the opinion of this court in American Railway Express Company v. H. Rouw Co., 173 Ark. 82, where it was expressly held that an action of this sort may be maintained against a foreign corporation by a resident of this State or by a domestic corporation.
In the case at bar the cause of action was a transitory one, and the court had jurisdiction of the subject-matter of the action. The plaintiff is a domestic corporation carrying on its business in this State and, as such, is subject to suit in the courts of this State at the hands of any one having a cause of action against it. The defendant is a foreign corporation, and has complied with our laws with reference to such corporations doing business in this State. Our courts are open to it, and its property within the State is protected by our laws. Its express business is of necessit}r operated as a unit, and its agents in this State have facilities for investigating claims against it.
Other reasons might be given why the courts of this State should entertain jurisdiction over a foreign corporation in behalf of a domestic corporation for a cause of action arising out of the State, but, inasmuch as no good reason appears to us why the court should refuse to entertain such jurisdiction, we do not deem further comment necessary. Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N. Y. 152, 139 N. E. 223, 32 A. L. R., p. 1, and case-note.
It is next insisted that the judgment should be reversed because plaintiff never gave any notice or made any claim of loss as required by the act of Congress governing actions of tliis sort and the uniform bills of lading issued pursuant to such act. The damages claimed by the plaintiff were for negligence in failing to properly refrigerate the car during transit, and no claim of loss was necessary. It devolved upon the plaintiff to prove actual negligence on the part of the carrier in failing to properly refrigerate the car. of strawberries during transit as one of the facts essential to recovery. American Railway Express Co. v. H. Rouw Co. post.
Because the plaintiff had the burden of proving the carrier’s negligence as one of the facts essential to recovery, it was bound to show something more than a delivery of the strawberries to the carrier in good condition and its delivery to the consignee in bad condition. It is earnestly insisted by counsel for the defendant that no such additional proof was made. The defendant introduced the evidence of various witnesses to show that its car was properly iced at the point of shipment and was kept properly iced during transit and until the car of strawberries was delivered to the consignee. The carriage of the shipment was made in the usual time. We cannot agree with counsel for the defendant that there is not sufficient proof to show actual negligent conduct on the part of the carrier in failing to properly refrigerate the car of berries during transit. The proof on the part of the plaintiff shows that the car of strawberries was inspected by competent inspectors at the time it was delivered to the defendant. The berries were sound and in good condition. They did not show that they had been rained on. In fact, they showed that no rain had fallen upon them. When they were delivered to the consignee they were inspected at once by competent inspectors. Their appearance showed that they had become soft and moldy. Some of the berries had decayed, and their appearance indicated that the decay was due to laclr of refrigeration in transit. One of the witnesses had had twenty-five years’ experience in the shipment of berries, and said that, from his experience and the appearance of the berries, their condition was dne to lack of proper refrigeration during transit. The witnesses were examined at length, but we deem' the above to ¡be the effect which the jury might have drawn from their testimony ás a whole. In testing the legal sufficiency of the evidence to show actual negligence on the part of the carrier in failing to properly refrigerate a car of berries during transit, we must view the evidence in the light most favorable to the plaintiff. The jury had a right to disregard as untrue the testimony of the witnesses for the defendant and accept as true the evidence given in favor of the plaintiff. - We believe that the evidence for the plaintiff, if true, is of such a substantial character as to warrant the jury in finding that the carrier was guilty of actual negligence as alleged in the complaint.
Therefore the judgment in each case will be affirmed. | [
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Humphreys, J.
. Appellees, J. M. Garrett and Joe Modisett, doing 'business under tbe firm name of Garrett & Modisett, instituted tbis suit in tbe second division of tbe circuit court of Union County to recover $18,625 from appellants, D. N. Johnson, J. B. Hawley and W. H. Flani-gan, doing business under tbe firm name of Smackover Petroleum Corporation, as a commission for effecting an alleged sale of an oil and gas lease located on tbe southeast one-quarter of section 34, township 15 south, range 15 west, Ouachita County, Arkansas, to tbe Phillips Petroleum Company for $375,000. It was alleged, in substance, in tbe complaint that appellants employed appel-lees to sell said lease, that they effected a sale theréof to tbe Phillips Petroleum Company for $375,000 in cash, and that a reasonable value for tbe service performed was 5 per cent, on tbe amount- received.
Appellees filed an answer, denying tbe material allegations of tbe complaint.
Tbe cause was submitted upon tbe pleadings, testimony adduced by tbe respective parties and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellees for $18,750, from which is tbis appeal.
At tbe conclusion of tbe testimony appellants requested a peremptory instruction, which the court refused to give, and now seek a reversal of tbe judgment on tbe ground that tbe court erred in refusing to instruct a verdict in their favor, contending:
First. That tbe undisputed evidence reflects that no contract of employment for tbe sale of tbe lease was entered into between tbe parties.
Second. If such a contract was entered into, appel-lees performed no substantial services for appellants therein.
(1). Appellees were employed by appellants to drill an oil w.ell to deep sand on the leased premises, and brought in a producing- well of 12,000 barrels daily. Early Sunday morning May 24, 1925, a short time after the well came in, appellees and I). N. Johnson drove to El Dorado in a car. Appellants were inexperienced in the development and handling of oil properties, and desired to sell the lease for as much as possible. They had been advised by appellees to let agents, or what they called “lease-hounds” alone, else they would get them into trouble.
J. M. Garrett testified that, on the way to El Dorado, D. N. Johnson told him that he wanted to sell the property, and asked Mr. Modisett and himself to see if they could get a buyer for it; that, Sunday, he took Bob Matder, who represented the Humble Oil & Refining-Company, to the well to check it up, and • introduced him to appellants, who made them an offer for the property Monday morning, May 25. Matder was then stopping at the Garrett Hotel, and, while appellants were in his room discussing the trade, witness saW and approached ‘W. E. Thompson, with whom he was acquainted, and who represented the Phillips Petroleum Company, and had a conversation with him about purchasing the property; that witness arranged to take Thompson to see appellants at 11 o’clock; that Mr. Modisett called Matder’s, room over the telephone and advised J. B. Hawley not to close the deal with him, that they had a better offer; that, when Mr. Hawley came down the stairs, witness said to him and Mr. Johnson, “I have a competent buyer for the property from whom we can get more money; you be at your cottage at 11 o ’clock and I will have a man out there to make you an offer on the property;” that, at 11 o’clock, witness took Thompson out to the cottage in his car and introduced him to appellants — none of them knew him; that they began negotiations which resulted later in the sale of the lease for $375,000 to the Phillips Petroleum Company; that they had offices in the First National Bank at El Dorado, and were making- lots of sales in Nevada County at that time, but did not know whether they had sold any leases in Ouachita County, and could not remember any particular sales they made; that he paid a brokerage tax to sell leases in El Dorado in 1924, but did not for 1925, because they incorporated in 1925, about June;l; that, after-their sale of the lease, appellants settled with -them for drilling the well, at which time nothing was. said about the commission for making the sale of the lease...
Joe Modisett testified that, on the way to El Dorado the morning after the well came in, Johnson told Garrett and himself to go ahead and see what we could get for the lease; that we knew more about the lease than they did, and Go go ahead and see some of the men when we got to town, as he wanted to sell the lease;” that witness-asked Thompson why he did not buy the property, at which time he called Mr. Hawley from Mr. Matder’s room and told him not to close the deal with the Humble Oil & Refining Company, because Thompson, the Phillips Petroleum Company man, was there; that he was at the home of appellant when Garrett brought Thompson and introduced him to them; that he never thereafter disavowed any intention to. claim a commission.. . :
D. N. Johnson-testified that, after the well came in, he told Garrett and Modisett on the way to El Dorado that they wanted to sell the lease, but that he did not know that they were brokers; that Matder made an offer Sunday, the 24th, for the Humble Oil & Refining Company,. which they refused; that nothing further was done until- Garrett brought Thompson, representative of the Phillips Petroleum Company, out to the. house where they lived; that was the first intimation he had that Garrett had anything to do with the trade, and did not know that Garrett was. acting* or representing -them as a broker in trying to sell the lease; that he did not know that Garrett was claiming to- be a broker in handling the deal until June 10, after the property was sold on May 27; that they settled Avith Garrett and Modisett' for drilling the well after the sale of the lease, and made no claim for a commission at that time, nor afterwards when he saw them, until G-arrett wrote him, on July 10; that, some time after receiving the letter, he had a conversation with them, in which Garrett said he thought they ought, to have something, hut, in a conversation with Modisett after the first conversation referred to, he said that he did not make his money that way, and disavowed any intention of claiming a commission; that it is true that Modisett telephoned to Hawley, while they were in Matder’s room, not to close the deal, but that he attached no importance to it, and broke off with Matder because he did not offer what they wanted.
W. E. Thompson testified that he was interested in buying the lease for the Phillips Petroleum Company, and inspected it on his own motion on Sunday morning, the 24th; that he returned to El Dorado and that, by inquiry, he ascertained that D. N. Johnson was the president of the Smackover Petroleum Corporation that owned the lease; that later in the day he visited and checked up some of the surrounding wells; that on Monday morning, the 25th, he went to the Garrett Hotel; met Jimmy Garrett, and learned from him that D. N. Johnson and J. 'B. Hawley were upstairs in the hotel on a deal with some one relative to the sale of the lease; that he would get in touch with appellants, and, if they wanted to sell their lease, he would let me know; that he arranged to meet Garrett at 12 o ’clock, at which time they met, and Garrett took him to the home of appellants and introduced him to them; that, on the way, he told him that one party who wanted to buy would pay him a commission, and wanted to know if I would allow him a commission if I bought; that I told him “no”; that Garrett took no part in the negotiations, and that he was not aware that Garrett was appellants’ agent; that, after talking the matter over and looking at the well again, he made appellants an offer, which they declined, making a counter-offer, which he accepted; that several days thereafter they closed the deal in accordance with their agreement.
A. B. Taylor testified that he was the collector of occupation taxes in E'l Dorado, and that J. M. Garrett paid no occupation tax for himself or his company in 1924, but did pay one as drilling contractor for himself and also for Garrett & Modisett for the last quarter of 1925.
W. H. Flannigan testified that he was present when Garrett brought Thompson to the house and introduced him to them, but that he did not know that Garrett was a broker or acting as agent for them; that he sent a telegram to Johnson advising a compromise of appellees’ claim, but Johnson refused to make any kind of a settlement; that when they settled with appellees for drilling the well they made no claim for a commission; that subsequently in a conversation with Modisett he disavowed any claim to a commission.
J. B. Hawley testified that Modisett telephoned him not to close the deal with Matder, but that he did not attach any importance to the matter; that he was present when Garrett brought Thompson to the house and introduced him to them, but he had no idea that Garrett was acting in the capacity of a broker.
Only enough evidence has been set out in this opinion to indicate that the testimony was conflicting relative to the employment of appellees by appellants to sell their lease for them.
The rule of law applicable to cases of this character was announced by this court in the case of Scott v. Patterson & Parker, 53 Ark. 49, 13 S. W. 419, as follows: “If a real estate agent employed to sell land introduces a purchaser to the seller, and, through such introduction, the sale is effected, he is entitled to his commission, although the sale is made by the owner. ’ ’
There is sufficient substantial evidence in the record to sustain the verdict and judgment under the rule thus announced, when it is remembered that a contract of employment may be implied and need not bo expressed either orally or in writing. Appellees testified that appellants requested them to procure a purchaser for their lease, saying* that appellees were experienced in the business, and that they were not. The undisputed testimony reveals that they procured and introduced a purchaser to appellants, who bought and paid them $375,000 in cash for the lease. •' Of course, in a way, appellants denied a contract of employment, hut their denial made the question of employment one of fact to he determined by the jury. The question of employment was submitted to the jury under correct instructions, hence appellants are bound by the verdict. This court never disturbs verdicts of juries rendered under proper instructions on conflicting testimony.
It was not necessary that the contract of employment should specify the amount of the commission. If there was an employment, and the jury found there was, the law implies that appellees were entitled to reasonable compensation. From what has been said, appellants are not correct in their contention that the undisputed evidence shows there was no contract of employment.
(2) The contention that appellees performed no services entitling them to a commission, even if there were a contract, is without merit.
. Appellees produced a purchaser who was not only willing to buy the lease for the price asked, and upon the terms required, but who actually purchased the lease from appellants for $375,000 in cash. They secured a purchaser who paid them $75,000 more than the first man they introduced to them and $175,000 more cash than their first prospect offered to. pay.
Appellants ’ last contention for a reversal of the judgment is that it is excessive. The undisputed evidence shows that five per cent, commission on sales of oil and gas leases, where the price does not exceed $375,000, is usual and customary. The fact that they procured a purchaser who- paid $75,000 more than they had been offered for the lease indicates that the fee recovered is not excessive.
No error appearing, the judgment-is affirmed. | [
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McHaNey, J.
War Eagle Creek or river is a non-navigable stream running through the eastern side of Benton County, and for more than 50 years there has been maintained and operated on said stream and on the land in controversy a water-power mill known as the War Eagle Mill. On or about May 15, 1924, the mill was destroyed by fire, and has never been rebuilt. Appellants are the owners of 12 acres of land in sections 3 and 34, section 3 being in township 18 north, range 28 west, and section 34 being in township 19 north, range 28 west, and all of said 12 acres being in the bed of War Eagle Creek, except two or three acres on which the millsite and other buildings are situated. The original Government survey of this land took no notice of War Eagle Creek, as all of it was surveyed as land. Appellee, G. S. Cook, is the OAvner of 30 acres of land east of War Eagle, his west boundary being the east bank of War Eagle. Both parties deraign title from a common source, A. E. Crossman, who acquired title to this land in 1902, and later, in 1908, mortgaged the 12 acres of land now belonging to appellants to W. H. Allred, Avhich was foreclosed, sold, reported, deed made, confirmed and delivered to appellant, J. B. Kilgo, in 1915, who, in December,. 1915, sold and conveyed same to B. B. Kilgo and H. R. Crossman, and in 1917 said Crossman conveyed Ms half interest therein to J. B. Kilgo. Said tract is described as follows: “Beginning at an iron stake driven in the ground about six feet north of a maple tree at the northeast corner of the blacksmith- lot, thence west across "War Eagle Creek to a point just south of the county road and west of War Eagle Creek, thence south and with War Eagle Creek to the south line of the north half ;of the northeast quarter of section 3, township 18, range 28, thence east across War Eagle Creek to the east bank of same, thence northerly with said bank to a maple tree three feet in diameter, thence northeast with a row of maple trees to the place of beginning,.in section 34, township' 19, range 28, and containing twelve acres, more or less, and being the lands upon which the War Eagle Mill property is located;”
Appellee, Cook, acquired his land adjacent to appellant’s land on War Eagle from the executor of the will of Samuel Burks, who acquired. title from said A. E. Crossman, to the following described tract: “Part of the north half of the northeast quarter of section 3, township 18 north of range 28 west, and a part of the south half of the southeast quarter of section 34 in town-: ship 19 north of range 28 west, beginning 3 chains and 32' links-; north and 8 chains and '64 links west of the southeast corner, of section 34, township 19 north of range 28 west,, running thence south'8 dégrées with'the plank fence now on said land to the south line of the northeast quarter of the-northeast quarter of section 3, in township 18 north of range 28 west-, running thence west to War Eagle Creek, thence down War Eagle Creek to. a large sycamore tree 100 feet, more or léss, south of the War-Eagle mill;- running thence in.a northeasterly direction to the south maple tree in a-row of maple trees; thence northeast with said row of maple trees to a rock riprap; thence east to the county road; thence east with said county road to the northwest corner of a tract of land formerly owned by Evaline Sharp, now owned by Mr. Fitzsimmons; thence south to the old Burks tract of land; thence west to the.place of beginning;-except a lot of said land heretofore sold to G. S. Cook by Samuel Burks, leaving a balance of thirty acres, more.or-less.” His deed to this land is dated June, 30, 1917. . •
This controversy arises, over, the rights of piscary, boating, swimming, and, in general, commercializing, the waters in War Eagle Creek oyer the land of appellants by appellee, who has erected a number of cottages on his land for.rent to tourists and others, who are'attracted thereto by the excellent -fishing, boating, bathing and swimming facilities afforded by thewaters of War Eagle, forming the lake above the mill-dam on the lands of appellants. This suit was brought by appellants to enjoin the commercializing of the waters .over their land by appellee, and, on a hearing, the court dismissed the complaint for want of equity, from which is this appeal.
- The only question for decision- in this case by this court is, did appellee, by virtue of his deed of: June .30, 1917, conveying to him the 30: acres of land by the executor of Samuel Burks,, the west boundary of which was the east shore line of War Eagle, acquire any title to the bed of the stream as a riparian owner? . We are of the opinion, and therefore .hold,, that, he did not. ■Appellee is not a riparian owner. War Eagle- Creek was not meandered by the Government survey, and, as heretofore stated, no notice of it was taken by the surveyors as water, but it was included in the survey as land. Of course,.if appellee, was a riparian owner on an unsur-veyed or a meandered: non-navigable stream, he would take title to the middle or; thread of the stream. Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S. W. 534; Rhodes v. Cissel, 82 Ark. 367, 101 S. W. 758 Little v. Williams, 88 Ark. 37, 113 S. W. 340; Glasscock v. National Box Co., 104 Ark. 154, 148 S. W. 248; Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378. It may be stated as' a proposition of law, well settled by the former decisions of this court, that owners of land• bordering on a non-. navigable stream or lake, -where the Government survey meandered the boundary lines thereof, making fractional sections along the bed or shore line of such stream or lake, such owners acquire title only to the middle or thread of such lake or stream. Chapman & Dewey Land Co. v. Bigelow, supra, and cases above cited.
As is said in 40 Cyc. 552,- “When a stream is the boundary line between the two landowners, and there be no agreement, grant or conveyance to the contrary, each shall own to the middle of the stream.” But in this case, at this place, War Eagle Creek is privately owned, not meandered, and the title to its bed passed by deed of the owner just the same as the adjacent land. The stream is not the boundary between appellants and appellee. There was a prior conveyance to appellant to the very land over which appellee seeks to trespass, and he has no more right to trespass on the water over appellant’s land than he would on the land not covered by water. And, even though it could be said that appellee is a riparian owner with title to the middle of the stream, he would have no right to exercise acts of ownership beyond such dead-line, or license others to do so against the wish and will of appellant. The title to the bed of the stream having been conveyed to appellant prior to appellee’s acquisition of title, appellee took with notice of the prior grant, and must be held to have known that his western boundary line was the brink of the east bank of War Eagle Creek, and that he acquired no title beyond the ripa.
It necessarily follows from what we have said that the decree dismissing the complaint for want of equity is error. The cause will be reversed, and remanded with directions to enter a decree in accordance with the prayer of the complaint and not inconsistent with this opinion. It is so ordered. | [
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Mehaffy, J.
Appellee brought suit in a justice of the peace court in Jackson County, Arkansas, and obtained judgment against H. F. Burton and others. Execution was issued and returned unsatisfied, and thereafter, on September 17, 1925, a duly certified copy of said judgment was filed in the circuit court of Jackson County. On October 3, 1925, the clerk of the Jackson Circuit Court issued his execution based on said judgment against H. F. Burton and other defendants, said execution being directed to the sheriff of Lee County, Arkansas. Thereafter plaintiff filed his motion for summary judgment against Z. C. Smith, sheriff, S. L. Kirkpatrick and W. S. McClintock, sureties on his official bond, and notice of said motion was given to appellants on August 27,1926, and on September 30 the court below rendered judgment against the sheriff and his sureties, appellants here, for $247.25, together with 10 per cent, penalty, and interest from August 11, 1925.
Appellants prayed an appeal to this court, which was granted. Appellants asked for reversal of the judgment on two grounds: First, that the execution was returned within 60 days allowed under the statute; and second, that the Jackson County Circuit Court was wholly without jurisdiction to hear and determine the question.
There was indorsed on the execution the following:
“Indorsed: This writ came to hand on the 8th day of October, 1925, and I have duly served the same by finding no property in my county on which to levy, and now return this execution wholly unsatisfied. November 18, 1925. Z. C. Smith, Sheriff. By C. F. G-ovan, D. S. ”
This indorsement was within the 60 days, and the contention of appellants is that this is a return, and, if this were true, there would be no liability. There would have been no cause of action. But we do not agree with appellants in this contention.
Section 4353 of Crawford & Moses ’ Digest provides: “All executions shall be returnable in 60 days from their date.” The only controversy here, however, is not with reference to this statute. There is no contention that the sheriff should not make a return within 60 days, but the contention is that the indorsement on the execution was a return.
“A return on a writ of execution is the short official statement of the officer, indorsed thereon or attached thereto, of what he has done in obedience to the mandate of the writ, or of the reason why he had done nothing: It consists of the two acts of writing out the statement on the writ or on an attached paper, and the filing. The mere writing out of the statement is not sufficient without filing it, and, vice versa, the mere filing of the writ with no statement is not a return. ” 23 C. J. 791.
It will be observed from the above authority that it requires the two acts, the indorsement on the writ of what the officer has done and the filing it with the clerk of the court out of which it issued. Neither act without the other would constitute a return. An officer might write the statement on a writ and keep it in his office, or do anything else with it except file it with the clerk who issued it, and this would not be a return. On the other hand, he might file the writ with the clerk within the 60 days without any indorsement on it, and this would not be a return. It takes both the indorsement and the filing to make the return, and it appears that, in this case, the writ was not filed until long after the 60 days had, expired.
It has been stated by this court, with reference to the return of a writ:
“In the original answer he alleged that he had indorsed his return on the writ but had failed to lodge it in the clerk’s office as required. This was held insufficient in the former determination of this case, and he has added to this an allegation that the return was not made because the clerk was absent from his office on one occasion when he went there for that purpose-, and that his official duties thereafter prevented him from returning to the clerk’s office. If it were shown that the clerk’s office had been closed for such a time toward the close of the life of the execution, as absolutely to prevent the officer from making- a return, that would be a sufficient excuse for not returning- it within the 60 days, but the ohlig-ation would remain upon the sheriff of perfecting* his return at as early- a day as' practicable thereafter.” Atkinson v. Heer & Co., 44 Ark. 174.
“ Where a process or writ is placed in the hands of a sheriff or constable for service or execution, he is liable if he fails to return the same within the time which is allowed by law for making his return thereon. And the fact that a return is made after the expiration of the time does not release him from' the liability for his default.” 35 Cyc. 17'20.
“The word ‘return’ has a legal meaning more or less definite and certain. Webster’s International Dictionary, defines it: ‘ (aj The rendering back or delivery of a writ, precept, or execution to .the proper officer or court. This is now usually done by filing the document,.properly indorsed, in the clerk’s office, (b) The certificate of an officer stating what he has done in or about the execution of a writ, precept, etc., indorsed on the document, (c) The sending back of a commission with the certificate of the commissioners’.” Tate v. Biggs, 130 N. W. 1053, 89 Neb. 195.
The authorities seem to be practically unanimous that a return means indorsing what the officer has done on the writ and then filing it with the clerk who issued it. We therefore conclude that the sheriff in .this case did not make his return as required by law within the 60 days.
Appellant’s next contention • is that the Jackson County Circuit Court was wholly without jurisdiction to hear and determine the cause. Section 4360 provides that, if an officer fails to return an execution before the return date, he shall be liable, etc., and § 4362 provides for an action against the officer, among other things, for failure to make return. Not only does the' statute provide that the motion for summary judgment must be in the court out of which-the execution issued, but this court has held, in effect, that the court out of which the execution issues has jurisdiction.
An execution was directed to the sheriff of Johnson County and returnable within 60 days. The execution was issued by the clerk of the circuit court of Pope County. Judgment was rendered against the sheriff and sureties on his bond in Pope County, and the judgment was affirmed. Jett v. Shinn, 47 Ark. 373, 1 S. W. 693.
The circuit court of Jackson County had jurisdiction in this case. There was no suit pending in any other county, and, to hold that the Jackson Circuit Court, the court out of which the execution issued, did not have jurisdiction, would be to deprive the judgment plaintiff of the remedy given to him by státute. The Jackson Circuit Court had jurisdiction over the subject-matter and, even if it did not have jurisdiction over the person, it obtained such jurisdiction by the service of the notice upon the sheriff and its sureties and their failure to object to the service in the court below.
This court has said:
“Having elected to submit themselves to the jurisdiction of the tribunal provided by the statute, and having taken an appeal in accordance with the provisions of the statutes, they must abide the results of their own voluntary action. * * * Broadly stated, any action on the part of the defendant, except to object to jurisdiction over his person, which recognizes the case in court, will constitute a general appearance.” Purnell v. Nickell, 173 Ark. 496, 292 S. W. 686.
“In the United States many statutes have been enacted for the purpose of giving ample, and in most cases summary and punitive, .redress against officers neglecting or refusing to return final process. Independent of these statutory provisions, the right of a plaintiff to maintain an action against an officer and his sureties for a failure to make a return'has been generally conceded.” Freeman on Executions, vol. 3, 368.
“In many of the States the liability of an officer for not returning an execution is fixed by statutes. These statutes are very harsh in their terms, and are manifestly intended to be so stringent that no officer will be tempted to neglect this official duty. Some of them impose upon the officer a mere penalty, while others add to this penalty the amount of the .judgment and costs. Where this is the case, the fact that the plaintiff has not been injured by the official neglect can neither be received in evidence in justification, nor in mitigation of damages. In most of these states the proceedings for the enforcement of the officer’s liability are of a summary character. No new or independent action need be commenced. A motion may be made in the suit in which the execution issued, and a judgment obtained therein against the officer and his sureties for the penalty prescribed by statute.” Freeman on Executions, vol. 3, 368.
It is our conclusion that the plaintiff was not required to commence a new or independent action. He had a right to make the motion for a summary judgment in the suit in Jackson County in which the execution was issued, and he could maintain that action or pursue that remedy in the Jackson Circuit Court against the sheriff and his sureties. The judgment of the Jackson Circuit Court is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts). The record shows that, prior to the execution of the mortgage by Morrison to Meyer & Kiser, Arthur Wills purchased the automobile in question from the Stamps Motor Company at Stamps, Arkansas, for the sum of $468. He paid $200 in cash and gave twelve installment notes for the balance of the purchase money. He executed a written contract for the purchase of the automobile in which it is expressly stated that the title to the car shall remain in the seller or its assignee until the purchase price has been fully paid. The balance of the purchase price had not been paid at the time the present suit was instituted. The plaintiff in the present case became the purchaser of the notes for the balance of the purchase money of said auto- . mobile for value before date of maturity, and the conditional sales contract was also transferred to it. Thus it will be seen that whatever rights it had under the conditional sales agreement attached before the mortgage was executed by Paul Morrison to Meyer & Kiser. It is the settled law of this State that, when a chattel is sold with a reservation of title in the seller, the title remains in it until the condition is performed, and a purchaser from the vendee acquires no title, though he buys in good faith for a valuable consideration and without notice of the condition. McIntosh & Beam v. Hill, 47 Ark. 363, 1 S. W. 680; Garner Mfg. Co. v. Cornelius Lbr. Co., 165 Ark. 119, 262 S. W. 1011; and Hachmeiser v. Power Mfg. Co., 165 Ark. 469, 264 S. W. 976.
But it was argued that this rule does not apply because the automobile was carried from the State of Arkansas into the State of Texas and there mortgaged to a person who had no knowledge of the conditional sales agreement or the rights of the plaintiff thereunder. This does not make any difference, if it is not shown that the seller of the automobile or the plaintiff knew that the automobile bad been carried from the Slate of Arkansas into the State of Texas, or that a mortgage was executed upon it in the latter State. In Fairbanks, Morse & Company v. Parker, 167 Ark. 654, 269 S. W. 42, it was held that, in conditional sales of personal property in which the title is retained, by the seller until the purchase price is paid, the buyer acquires an interest which he may sell or mortgage without the seller’s consent, but the seller’s right to recover the property, if not paid for, is not prejudiced by such sale or mortgage. Under our laws, in a.conditional sales agreement the seller is not required to file his agreement of record, and his rights aré fixed under the terms of the agreement, and are not affected by the subsequent sale or mortgage of the property by the buyer without his knowledge or consent. The burden of proof was upon the interveners to show that the seller or its assignee consented to the removal of the automobile to the State of Texas before its rights, which had become vested under the conditional sales agreement, could be affected by the subsequent mortgage of the property in the ' State of Texas,
It follows that the judgment of the circuit court was correct, and it will therefore be affirmed. | [
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Humphreys, J.
Appellant was indicted, tried and convicted for the crime of forgery, in the circuit court of Franklin County, Ozark District, and adjudged to serve a term of two years in the State Penitentiary as a punishment therefor, from which is this appeal.
The assignment of error insisted upon most strenuously for a reversal of the judgment was the giving of a cautionary instruction, orally, hy the court, over the objection and exception of appellant. The instruction is as follows:
, “Gentlemen of the jury: It is not surprising to the court that twelve men, even though they have listened to the same testimony and the same argument of counsel and to the same instructions of the court, that they do not agree as to what the testimony was and do not agree as to the instructions of the court and to the argument of counsel. In fact, gentlemen, it would be strange if you should go out into your jury-room and immediately all agree upon a verdict. It rarely ever happens that twelve men are of the same opinion at first in trying to decide any case. Now, what is the duty of a jury when they disagree? It is your duty to keep frank, open minds, to he frank with your fellow jurors, and listen to what your fellow jurors say, to see if perchance, they might not be right and you might he wrong, ■ and, when you are convinced that they are right and you are wrong, why, you ought not to hesitate to admit, that you are wrong and so.in that way arrive at a verdict. Of course, if you go into the jury-box with your mind fixed and set, and you say to yourself, I am right and the others are wrong, and I will not change my opinion, why, of course there would he no use in keeping you together any-longer, and I would discharge you. But a juror ought not to get into that frame of mind, but he ought to go into the jury-room with a frank mind and listen to the argument of his fellow jurors and weigh it, and then, if their argument does not change his mind and he is still convinced that he is right, of course, I would not ask him to give up an honest conscientious opinion simply, for the purpose of arriving at a verdict. I am not asking you to do that and do not want you to do that. But if, after hearing the argument of the other members of the jury, he decides that they are right, he ought not to hesitate to change his views. Now, gentlemen, the fact that a man-changes his. mind is not evidence that he is a weakling or a wishy-washy sort of a fellow, but rather an evidence that he is a thinking human creature. All the progress in the world has been brought about by men changing their minds. It is the power of reasoning and thinking that distinguishes us from the lower animals. The lower animals do not think, and their condition is the same that it has always been. Men do think and change their minds, and so has risen himself - from- the savagery, in which he formerly lived to the high state of- civilization which we boast and enjoy today. - All-the great inventions have been brought about by men changing their minds; and so do. not get into your heads, gentlemen, that changing your mind would be an evidence of a weakling.■Some jury in the Ozark District of Franklin County must decide this case, if it is ever decided. I think you gentlemen are just as competent to decide this case as' any twelve men I could get. If I did not think so, I would immediately discharge you and get another jury. But I know you twelve men can decide this case just as well as any other jury. This litigation is expensive both to the State and to the defendant, and can only he decided by a verdict. So I want you gentlemen to go hack into your jury-room, and if, after a conscientious consideration of the arguments of your fellow jurors, you are still convinced that your opinion is better founded in truth than theirs, I do not ask you to give up that opinion. But what I do ask is to go back and make a conscientious, frank, open-minded effort to arrive at a verdict, and that is my purpose in keeping you together, is to give you plenty of time to do that and not for the-purpose of punishing you and compelling you to arrive at a verdict. So go hack, gentlemen, into your jury-room and see if you cannot arrive at a verdict. ”
• The jury had the ease under consideration from the 24th of February until the 26th of February, 1927, before returning the verdict. After deliberating some time on the 24th of February they reported that they were unable to agree, whereupon the court gave said cautionary instruction. After the noon hour on the 25th of February the jury again reported that they were unable to agree, and the court again gave them the cautionary instruction. After supper on the same day the court again gave them the cautionary instruction before they retired to consider the case. Appellant objected to the instruction each time it was given,- and also objected to it being given orally.
The-' constitutional inhibition against instructing juries orally relates to declarations of law made by the court applicable to the particular facts in a given case. Instructions of that character should be reduced to writing by the court, when requested to do so. Section 23, article 7, of the Constitution of 1874 of this State is as follows-:
“Judges sliall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charges or instructions to writing, on request of either party. ’ ’
Cautionary instructions are not supposed to contain declarations of law. They are simply warnings to the jury to lay aside all pride of opinion and consult with each other for the purpose of harmonizing their views, if possible, under the evidence; to apply the law as given by the court to the facts in the case and deal with each other in a spirit of candor in order to arrive at a verdict. In doing this the court may detail to the jury the ills attendant upon a disagreement, the expense, the length of time it has taken to try the case, the length of time the case has been pending, and that the case will have to be decided by some jury' upon the pleadings and in all probability upon the same testimony. Mallory v. State, 141 Ark. 496, 217 S. W. 482; Benson v. State, 149 Ark. 633, 233 S. W. 758; Evans v. State, 165 Ark. 424, 264 S. W. 933; Clarkson v. State, 168 Ark. 1122, 273 S. W. 353; Stepp v. State, 170 Ark. 1061, 282 S. W. 684.
A short cautionary instruction embodying the matter detailed above would in no way deal with the law of the case applicable to the facts, and would not therefore be within the constitutional prohibition. The length of the cautionary instruction given by the court in the instant case would of itself necessitate that it be reduced to writing so as to prevent any possible dispute or misunderstanding as to its exact phraseology and contents.
The instruction, however, was not within the rule announced in the cases cited. It was not only long but involved and argumentative. It might well be characterized as a persuasive entreaty to the jury to change their minds and reach a verdict. The court called their attention to the fact that a change in mind did not indicate that one was a weakling. In emphasizing this point he took occasion to say that all the progress and all great inventions in the world were attributable to a reversal of men’s ideas and opinions. This was a seductive appeal to the progressive element of the jury to change their minds and return a verdict. The repetition of the instruc tion a second and a third time was calculated to cause the jurors to yield their honest convictions in order to prevent a mistrial. Although ills attendant upon a disagreement of a jury are great, yet they should not be entreated and overpersuaded to reach a verdict which is not the result of their free and voluntary opinion, as was done in this trial.
Another assignment of error is that the court refused to allow appellant to prove by J. K. Ford, whose name was alleged to have been forged by appellant to a note payable to the order of T. L. Dickerson in the sum of $1,500, that witness had a checking account in the People’s Bank, and that his checks were honored by appellant, who was the cashier, when the witness was overdrawn, and that the witness authorized the appellant to sign his name to checks and notes in connection with the checking account of said witness at said bank. We think the court properly excluded this testimony, for the issue involved was whether appellant had obtained specific authority from J. K. Ford to sign his name to the $1,500 note. An admission of this testimony would have introduced collateral issues calculated to cloud the real issue in the case.
Another assignment of error was the refusal of the court to give appellant’s requested instruction number 3, which is as follows: “If defendant signed the name of J. K. Ford to the note to Dickerson under the honest belief that he had the authority from Ford to do so, although the jury may now find that defendant did not in fact have such authority, the defendant is not guilty of forgery or of uttering a forged instrument.”
The court instructed the jury on behalf of the State as follows: “If you find from the testimony, beyond a reasonable doubt, that the defendant, F. E. Stockton, signed the.name of J. K. Ford to the note in question with the fraudulent intent to obtain the possession or to deprive another of any money or property, .or cause him to be injured in his estate or lawful right, without the knowledge or consent or authority of said J. K. Ford, you will find the defendant guilty of forgery.”
The last instruction presented the State’s theory of the case, which was that appellant had signed the note in question with a fraudulent intent of depriving J. K. Ford of money or property without his knowledge, consent or authority, and that appellant was entitled to an instruction covering the converse of the State’s theory. Requested instruction number 3 was intended to cover the converse theory,'but is defective in failing to say that he would not be guilty of forgery if he signed the name of J. K. Ford to the note to Dickerson under the honest belief that he had authority from Ford to do so, if he acted without fault or carelessness. With this modification the instruction on retrial should he given as presenting appellant’s theory of the case.
' On account of the error in giving the cautionary instruction, which was inherently wrong and prejudicial, the judgment is reversed, and the cause is remanded for a new trial. | [
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HumpiíReys, J.
This suit was brought by appellant against appellee in the circuit court of the Fort Smith District of Sebastian County to recover $3,000, and is predicated upon an alleged breach of the following’ bond, omitting clause B, which relates to a change in route, and clause C, which relates to stopping shipments in transit, which have no relation to the facts in this case.
“Know all men by these presents:
“Whereas, the undersigned principal ships and expects to ship or cause to be shipped, or to receive or cause to be received, as consignor or consignee, or otherwise, goods, wares, merchandise or chattels over the line of railroad operated by the Kansas City Southern Railway Company, Texarkana and Fort Smith Railway, herein referred to as the railway company, or carrier, or by other carriers operating lines of railroad connecting therewith, directly or indirectly; and
“Whereas, said principal, for his own advantage, expects to request, from time to time during the life of this bond, the railway company, or one or more of the carriers which may have transported or received such goods, wares, merchandise, or chattels shipped by said principal, or consigned to said principal, or consigned to others with directions to notify said principal, or consigned to said principal with directions to notify others, including what are commonly called other shipments, to-wit:
“A. To undertake, at the request of said principal, to deliver or cause to be delivered to said principal, or to others, such goods, wares, merchandise or chattels, prior to surrender of the original shipping receipt or bill of lading therefor.
“Now therefore, in consideration of the premises and of the compliance with any request of said principal or of any attempts or efforts to comply with the same by the railway company, or by any connecting carrier at the request of the railway company, we, the undersigned principal and surety (or sureties), jointly and severally undertake, covenant and agree with each railway company and connecting'carriers, that, in the event any such request or requests shall be made by said principal during the life of this bond, and any such request shall be complied with, or any effort to be made to comply with the same by any of said carriers, that we and each of us shall and will fully indemnify, protect and save harmless each and every said carrier and all carriers complying therewith or causing compliance with such request or requests, or attempting to do so, from and against any and all liability, suits, actions, costs, damages, expenses, losses and claims for loss or damage of every kind and nature which might or may be made against, or suffered, sustained or incurrd by any such carrier or carriers, on account of or by reason of any compliance with any such request, or requests, or of any attempt or attempts to comply with'the same, or in any way connection there with, including all reasonable attorney:^ fees paid or incurred in the premises by such carrier or carriers.
“1. The railway company and such other carriers may, in their discretion, settle and pay any claim that may be made against it or them on account of the ■ compliance with such request of the principal, and the amount of such settlement shall be repaid by the principal or sureties upon receipt of bill from the railway company or such other carriers.
“2. That neither the principal nor its agents nor employees shall request, accept or receive from said railway company the delivery or possession of any freight to which it would not be entitled upon the production and surrender of bills of lading of .shipping receipts therefor, and that no delivery of freight on account of this bond will be requested or made where the draft with the bill of lading is then in any bank at point of delivery for collection.
“3. That said principal shall and will promptly, after the delivery of such freight, not, however, to exceed five (5) days, surrender to the railway company the original bill of lading or shipping receipt therefor, duly indorsed, or, if any such bill of lading or shipping receipt shall have become delayed or lost, will, if and when same shall have been received or found, promptly deliver to said railway company.
“4. The liability of the principal and of the surety (or sureties) under this bond shall not exceed the sum of three thousand dollars ($3,000) for each principal and each surety.
“The surety (or sureties) shall not be liable hereunder for claims accruing after the expiration, of sixty (60) days after the receipt by said railway company.of written notice from the surety (or sureties) of its desires to withdraw as surety (or sureties) for said principal, and-any claim-hereunder against the surety (or sureties) must be duly presented to the surety (or sureties) within nine' (9) months after such determination of the surety’s (or sureties’) liability.
“In event of any payment by the surety (or sureties) of any claim hereunder, the surety (or sureties) shall be subrogated to all the rights of the obligee with respect to such claim, and the obligee shall execute the necessary assignment of the said subrogation.
“No such carrier or carriers shall in any event be liable or responsible to said principal by reason of any failure or of any delay to comply with, or of errors or mistakes in complying or attempting to comply with, such request or requests of such principal, or to accomplish in any respect whatsoever any of the matters so requested.
“6. This agreement and all of the covenants and undertakings thereof shall inure to the benefit, separately, of each of the carriers over whose lines any such shipment or shipments, or any part thereof, may be transported, or by whom any such goods, wares, merchandise or. chattels may be received, or delivery thereof may be made, and also to the benefit of the successors and assigns of each of said carriers, and the same may be enforced jointly or severally by such carriers as their interest, may be, joint or several.
“7. This bond shall not be void on the first of any subsequent breach thereof, or on the first of any subsequent suit and recovery thereon, but may be sued on and enforced until the full sum herein named shall have been recovered.
“This bond shall become effective on the date of its execution, and shall continué in force as provided for in § 3, except that it is distinctly understood and agreed that the circumstances, in the opinion of the officers, agénts or employees' of said railway company, fully justify such compliance, and that said, railway , company may at any time discontinue, without notice, the making of deliveries or charges under any or all of the aforesaid conditions. •
“In ivitness Avhereof the undersigned principal (or principals) and surety (or sureties) have executed this instrument this 22d day of January, A. D. 1923. ..
“Western Grain Company (Seal). ■
“By W. J. Pendergrass, President.
“Attest: Chas. F. Kent,. Secretary., -s
“United States Fidelity & Guaranty Company,
“By W. E. Atkinson.
“Approi^ed: I. C. McGee, Treasurer” (Seal).'
The gist of the complaint Avas that the bond sued upon Avas executed under § 793 of Crawford & Moses’ Digest to enable appellant, Avithout violating § 792- of said Digest, to deliver three cars of grain and other products to the consignee or principal in the bond, which had arrived in Fort Smith, Avithout first presenting the bills of lading therefor, to Avhich drafts had been attached; that said bond had been breached by failure of the principal in the bohd to pay the several drafts and deliver said bills of lading to it, by reason of Avhich failure it Avas compelled to pay the drafts attached to the several bills of lading in order to obtain pqssession of them, same having been forAvarded to the First National Bank at Fort Smith for collection.
Tavo defenses Avere interposed to the alleged cause of action by appellee. First, that the bond did not conform to the requirements of said statute; and second, that, under § 2 of the bond, appellant was prohibited from delivering the several cars of grain and other mill products, because the bill of lading for each of the three cars was in the possession of the.First National Bank at Fort Smith at the time appellant delivered said cars to the principal in the bond, Western Grain Company.
. The cause Avas submitted upon the pleadings, testimony introduced by the respective parties and the instructions, of the court, Avhich resulted in a judgment dismissing the complaint of appellant, from which an appeal has been duly prosecuted to this court.
(1).’ The two sections of Crawford & Moses’ Digest alluded to, the one prohibiting the delivery by common carriers of shipments without the presentation of bills of lading,- and the other providing for the delivery of shipments'without the presentation of bills of lading upon the execution of a bond, are as follows:
‘‘‘■Section 792.' Receipts given by any warehouseman, wharfinger or other person or firm for any goods, wares, merchandise, cotton, grain, flour or other produce or commodity, stored or deposited, and all bills of lading and transportation receipts of every kind given by any carrier, boat, vessel, railroad, transportation or transfer company, may .be transferred by indorsement in writing thereon, and the delivery thereof so indorsed, and any and all persons to whom the same may be transferred shall be'deemed and held to be the owner of such goods, wares, merchandise, cotton, grain, flour or other produce or commodity, so far as to give validity to any pledge, lien or transfer given, made or created thereby, as on the-faith thereof, and no property so stored or deposited, as specified in such bills of lading or receipts, shall be delivered, except on surrender and cancellation of.such receipts and bills of lading; providing, that all such receipts and bills of lading which shall have the words ‘not negotiable’ plainly written or stamped on the face thereof, shall.be exempt from the provisions of this act.
“Section 793. It shall be lawful for a shipper or a consignee of goods to make, execute and deliver to, and the carrier to take, and receive, a good, sufficient and valid bond, in a-sum double the value of the goods, conditioned that the shipper or consignee shall, within a reasonable time thereafter, deliver to the carrier the original receipts and bills of lading issued for said goods or shall pay the value of said goods to the carrier upon demand; and upon the execution and delivery of said good, sufficient and valid bond, as aforesaid, it shall.be lawful for the carrier to deliver up the said goods to the shipper or consignee; without requiring the immediate surrender of said original bills of lading and receipts, and for so doing the carrier shall not incur the penalty of the law as set forth in this chapter.”
The objection made to the bond is that it did .not obligate the principal and surety in a sum double the value of the goods, conditioned that the shipper or the consignee would deliver the hills of lading issued for said goods to the carrier within a reasonable time, or else pay it the value of said goods upon demand. The preamble, § A and § 3 of the bond indicate that the intention of the parties was to execute a bond in accordance with said § 793 in order to avoid the penalty imposed by said § 792. The amount or $3,000 is fixed in the bond, which we must presume to be a sum in double the value of the goods, whether it specifically says so or not. Where it is manifest that the intention of the par: ties was to execute a bond under this or any particular statute, the rule is that the statute will be read into and become a part of the bond. There is no doubt that this bond was intended as a continuing bond, and that its purpose- was to cover each shipment, when delivered without the production of the bill of iading, at the request of the consignor or consignee. Under this construction of the bond the sum of $3,000 was more than double the value of either one of the cars shipped and delivered to the consignee. Appellee is, a paid surety, and is not favored in the law any more than any other contracting party. It was the author of the bond, and all of the provisions therein .must be. construed most strongly against it and favorably to the beneficiary. Any other construction would allow appellee to take advantage of its own wrong, errors and inaccuracies in the preparation of the bond or contract.
(2): The facts are undisputed. The Western Grain Company, the principal in the bond, purchased three cars of corn and other mill products.from different grain or mill companies. Each company shipped the car purchased from it to shipper’s order,-“Notify the Western Grain Company,” and to the bill of lading received by each the shipper attached a draft on the Western Grain Company for the purchase price of the car, including the freight thereon. Each bill of lading and draft was delivered to the respective shipper’s bank and credited to his account. The several bills of lading with drafts attached were forwarded by the receiving bank, through correspondents, to the First National Bank of Fort Smith, Arkansas, for collection. The First National Bank of Fort Smith received all three bills of lading with drafts attached severals days before the cars arrived. The Western Grain Company had accepted one of the drafts and the bank had paid it and charged same to its account before the delivery of the particular car of grain to the Western Grain Company. The Western Grain Company requested appellant to deliver the cars of grain to it without presenting the bills of lading; and, in accordance with its custom, the appellant complied with its request. After the delivery of the cars, and before the Western Grain Company paid the several drafts, it failed in business, and was unable to pay them. In order to obtain possession of the bills of lading and avoid the penalty imposed by statute upon appellant, it was compelled to pay the drafts. Appellant delivered the cars to the Western Grain Company, the consignee and principal in the bond, without actual knowledge that the bills of lading were in the First National Bank of Fort Smith for collection, or without making any investigation as to the whereabouts of the bills of lading and drafts.
Appellant and appellee each requested a peremptory instruction, at the conclusion of the testimony, which the court declined to give, and, instead, sent the case to the jury upon the issue of whether appellant exercised reasonable diligence to discover that the bills of lading with drafts attached were in the bank at Fort Smith when the deliveries of the cars were made. The trial court con strued § 2 of the bond to mean that appellee was not liable thereon, unless appellant • used reasonable diligence to ascertain whether the bills of lading with drafts attached were in the bank at Fort Smith at the time it made the several deliveries of the cars to the Western Grain Company.
The majority of the court are of the opinion that the trial court erred in its interpretation of said section of the bond. The majority interpret the word “made” contained therein as synonymous with “request, accept or receive” in the first part of the section and the word “requested” disjunctively connected with it. They are impelled to the construction because a request on the part of the principal in the bond for a delivery of the shipments necessarily amounted to a statement or representation that the bills of lading attached were not in the bank for collection at the point of delivery. Chief Justice Hart and the writer are of the opinion that the words are not synonymous, and that the word “made” relates to and is a restriction upon appellant, whereas the word “request, accept, receive” and “requested” relate to the principal in the bond, and are restrictions upon it. We think our construction correct, because a delivery of the property could not have been made by any one except the carrier in possession thereof. Under the majority view the trial court should have peremptorily instructed a verdict in favor of appellant for $3,000 and interest.
On account'of the error indicated the judgment is reversed, and a judgment will be entered here in favor of appellant for said amount. | [
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Wood, J.
By these appeals we are asked to answer the following question: Did the constitutional amendment adopted October 5, 1926, as Amendment No. 15, repeal the bond-is'suing- clause of the constitutional amendment adopted October 7, 1924, as Amendment No. 11? (These constitutional amendments will hereafter for convenience be referred to as Amendments No. 11 and No. 15, respectively, regardless of the numbers that may be given them when they are digested' in the Constitution) .
Amendment No. 11 is, in part, as follows:
“ Section 1. That § 4 of article 12 of the Constitution of the State of Arkansas be amended by adding thereto the following: ‘The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis’.”
The language of the first section then prescribes the method by which counties, cities and incorporated towns shall be conducted on a sound financial basis, and the section further contains the following:
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”
Section 2 repeals all provisions in conflict.
Amendment No. 15 is as follows:
“That § 1 of article 10 of the Constitution of the State of Arkansas he amended to read as follows : ‘Article 10, § 1: Neither the State nor any city, county, town or other .municipality in this State shall ever lend its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide'for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874, and the State shall never issue any interest-bearing- treasury warrants or scrip.’ Provided, that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows:
“For the payment of any indebtedness existing at the time of the adoption of this amendment; for the purchase of rights-of-way for construction of public streets, alleys and boulevards within the corporate limits of such municipality; for the construction . of, widening or straightening of streets, alleys and boulevards within the corporate limits of such municipality; for the purchase, development and improvement of public parks and flying-fields located either within or without the corporate limits of such municipality; for the construction of sewers and comfort stations; for the purchase of firefighting apparatus and fire-alarm systems; for the purchase of street-cleaning apparatus; for the purchase of sites for, construction of, and equipment of city halls, auditoriums, prisons, libraries, hospitals,. public abattoirs, incinerators or garbage disposal plants; for buildings for the housing of fire-fighting apparatus; for the construction of viaducts and bridges; and for the purpose of purchasing, extending, improving, enlarging, building, or construction of waterworks or light plants, and distributing- systems therefor. * * *
There is no express repeal of any oilier provision of the Constitution,‘in Amendment 15.
It Avill be observed that, under the language of Amendment No. 11, above' quoted, counties, cities and incorporated towns, in order to secure funds to pay indebtedness existing at the time of the adoption of the amendment, are authorized to issue interest-bearing certificates of indebtedness or bonds, while the language of Amendment No. 15 is: “Nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874.” There being no express provision in the language of Amendment No. 15 repealing the bond-issuing provision of Amendment No. 11, the question therefore is whether or not the language of the bond-issuing provision of Amendment No. 15 repeals the bond-issuing provision of Amendment No. 11 by necessary implication.
In State v. Martin, 60 Ark. 343, 348, 30 S. W. 421, 422 (28 L. R. A. 153), we said:
“We must keep to the front certain familiar but unvarying rules when we come to interpret the provisions of any section of a constitution. (1). Unambiguous words need no interpretation. (2) Where construction is necessary, words must be given their obvious and natural meaning. (3) The words or provisions under consideration must be construed with reference- to every other provision, so as to preserve harmony in the whole instrument. (4) The intent of the framers, gathered from both the letter and spirit of the instrument, is the law.”
Judge Cooley says: “The object of construction, as applied to a written constitution, is to give effect to the intent of the people adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it.”
He further says: “Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and nó contradiction beUoeen different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case_ there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning.
“Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by conv-parison with other clauses or portions of the same law. Tt is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the I rue intention of each part. * * * If any section of a law be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with tite other sections, and finding out the sense of one clause by the words or obvious intent of another. And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, tlie courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than-one which may make some words idle and nugatory.
“This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be" justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another if, by any reasonable ^construction, the two can be made to stand together. Every provision should be construed, where possible, to give effect lo every other provision. Upon the adoption of an amendment to a constitution the amendment becomes a part thereof, as much so as if it had been originally incorporated in the constitution, and it is to be construed accordingly. If possible, it must be harmonized with all the other provisions of the constitution. If this cannot be done, the amendment will prevail.” 1 Cooley, page 124, Constitutional Limitations. Numerous cases are cited in noté to text.
There is another familiar rule which should be stated here. “It is settled by very high authority that, in placing a construction on a constitution, or any clause or part thereof, a court should look to the history of the times, and examine the state of things existing when the constitution was framed and adopted, in order to ascertain the old law, the mischief and the remedy. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption and the general spirit of the times and the prevailing senti ments among the people.” 6 R. C. L. § 46, p. 51. Numerous cases are cited to support the text.
Another rule, about which there is no conflict in the authorities in the construction of a constitution and amendments thereto, is that the last amendment to a constitution adopted by the people must control, and all the provisions of the constitution and the prior amendments thereto which are in necessary and irreconcilable conflict with the last expression of the popular will must yield and the last amendment adopted be allowed to stand.
Still another rule which must be considered is that a repeal by implication of a provision of a constitution, like the repeal of a statute by implication, is not looked upon with favor and is never allowed by. the courts, except where there is such an invincible repugnancy between the former and the later provisions that both cannot stand together and be a part of the organic law.
Another rule is that, where a word or phrase in a statute would make the clause in which it occurs unintelligible, the word or phrase may be eliminated and the clause read without it.
Still another rule is that a later law'which is merely a reenactment of a former does not repeal an intermediate act which qualifies or' limits the first one, but such intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner that it did the first..
The above rules have been announced by text-writers and adjudicated cases, and most of them have often found expression by our own court, according to the particular facts calling for their application. See, in addition to the above text from Cooley and R. C. L. and the authorities there cited, Encllich on the Interpretation of Statutes, §§ 27 and 28; 2 Lewis’ Sutherland Statutory Construction, § 284, page 739;"Black on Interpretation of Laws, §§ 39, 40; also some of our own cases, as State v. Scott, 9 Ark. 270; State v. Watts, 23 Ark. 304; Hawkins v. Filkins, 24 Ark. 286; State v. Martin, supra; Hartford Fire Ins. Co. v. State, 76 Ark. 303, 89 S. W. 42; Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162; Martels v. Wyss, 123 Ark. 184, 184 S. W. 845; Morris v. Raymond, 142 Ark. 450-501, 201 S. W. 116; Bank of Blytheville v. State, 148 Ark. 504, 230 S. W. 550; Matheny v. Independ ence County, 169 Ark. 925, 277 S. W. 22; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; Combs v. Gray, 170 Ark. 936, 281 S. W. 918.
The provisions of the Constitution of 1874 and all the amendments thereto relating to the debts of municipal corporations, counties, cities and towns must be considered in pari materia as constituting the whole body of the law on that subject. Article 12, § 4, of the original. Constitution is as follows
“No municipal corporation shall be authorized to pass any law contrary to the general laws of the State; nor levy-any tax on real or personal property to a greater extent, in one year, than five mills on the dollar of the assessed value of the same. Provided that, to pay indebtedness existing at the time of the adoption of this Constitution, an additional tax of not more than five mills on the dollar may be levied.”
Article 16, § 1, is as follows:
“Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest:bearing evidences of indebtedness, '(a) except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and'the State shall never issue any interest-bearing Treasury warrants or scrip.”
The adoption of Amendment No. 11 added all of its provisions to § 4 of article 12 of the Constitution and repealed the provisions of the Constitution in conflict therewith. By the adoption of Amendment No. 15 the provisions of § 1, article 16, were readopted in the pre cise language of that section down to tlie words, “present existing indebtedness.” Instead of these words in § 1, lart. 16, of the original Constitution, the words in Amendment No. 15 are “indebtedness existing* at the time of the adoption of the Constitution of 1874.” After repeating verbatim the language of § 1, article 16, except as above set forth, Amendment No. 15 provides that cities of the first and second class may issue bonds for the various purposes therein specified, the first purpose mentioned being for the payment of any indebtedness existing at the time of the adoption of this amendment. Then follows an enumeration of the various public improvements for which cities of the first and second class may issue bonds.
Now, keeping in mind the applicable rules of construction as above set forth, let us see if there is any irreconcilable conflict between Amendment No. 11 and Amendment No. 15 of the Constitution. The history of the times shows that, when Amendment No. 11 was adopted, many, if not all, the counties, cities, and towns of the State were heavily in debt. In order to enable them to pay off their indebtedness existing at the time of the adoption of Amendment No. 11 and thus to get on a cash basis, they were authorized to issue bonds; and, in order to keep them on a cash basis, they were prohibited from incurring any future obligations in any fiscal year which exceeded the revenue for such year. This was the purpose of Amendment No. 11, as declared in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782; Babb v. El Dorado, supra; Nelson v. Walker, 170 Ark. 170, 279 S. W. 11; also McGregor v. Miller, 173 Ark. 459, 297 S. W. 30; see also Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.
What, then, was the intention of the draftsman who formulated the language in which Amendment No. 15 was couched and in which it was initiated, submitted to, and adopted by the people, and what was the intention of the people in adopting the same? Of course, the people intended to adopt the amendment as it was written. We are convinced that it was the intention of the draftsman of Amendment No. 15- to copy in the first paragraph thereof all of § 1, article 16, of the Constitution of 1874. • Doubtless such intention was in his mind when he copied literally the language of § 1, article 16, of' the Constitution down to the words “present existing indebtedness,” then, through inadvertence, or mere clerical oversight, instead of using the words “present existing indebtedness,” he used the words, “indebtedness existing at the time of the adoption of the Constitution of 1874.” This change in the language was Wholly immaterial, because, in the sense they were, obviously intended to be used, the expression “present existing indebtedness” and the expression “indebtedness existing at the time of the adoption of the Constitution of 1874” mean precisely the same thing; for the “present existing- indebtedness” at the time these words were used in § 1, article 16, of the Constitution, was. “indebtedness existing at the time of the adoption of the Constitution of 1874. ’ ’ These were synonymous expressions, and indeed blit convertible terms. If the words “indebtedness existing at the time of the adoption of the Constitution of 1874” should be construed to mean that it was the intention of the people in adopting Amendment No. 15 to prohibit counties, cities, towns or municipalities from issuing any interest-bearing evidences of indebtedness except “indebtedness eooisting at the time of the adoption of the Constitution of 1874, then the first paragraph of the amendment in which this language is used would be wholly inconsistent with the provisions in the second paragraph, to wit: “that cities of the first and second class may issue” bonds “for the payment of any indebtedness existing at the time of the adoption of this amendment.” In the first paragraph the words “city, town or municipality” certainly include cities of the first and second class mentioned in the second paragraph.
It is the duty of the court, under one of the rules of construction above mentioned, to give some meaning, if possible, to all tlie words used in Amendment No. 15, and to interpret tlxe separate words as well as the language of the amendment as a whole, so as to make its varied provisions harmonize, if possible, and to arrive at the intention of the electorate in adopting the amendment. As we have said, the phrase, “indebtedness existing at the time of the adoption of the Constitution of 1874,” was intended to mean precisely the same as if the phrase were the “present existing indebtedness,” it being, the manifest intention not to change § 1, article 16, of the Constitution of 1874, except to amend the same by adding thereto the provisions contained in the second paragraph of the amendment.
“It is the duty of the courts,” says Mr. Black, “to give effect, if possible, to every word of the written law. But, if a word or clause be found in a statute which appears to have been inserted through inadvertence or mistake, and which is incapable of any sensible meaning, or which is repugnant to. the rest of the act and .tends to nullify it, and if the statute is complete and sensible without it, such word or clause may be rejected as surplusage. ’ And, on the other hand, as this distinguished author says, “Words may be interpolated in a statute, or silently understood as incorporated in it, . where the meaning of the Legislature is plain and unmistakable, and such supplying of words is necessary to carry out that meaning and make the statute sensible and effective.” Black on Interpretation of Laws, §§ 39 and 40.
Section 23 of article 5 of the Constitution provides that “no law shall be revived or amended, or the provisions thereof extended,, or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred, shall be reenacted and published at length.” What we have said above in regard to the rules of construction and interpretation applies equally to constitutions and statutes. See 12 Cor. Jur. 699, and cases cited in note, among them Hodges v. Dowdy, 104 Ark. 583, 140 S. W. 656; see also Babb v. El Dorado, supra.
Our conclusion therefore Is that the electorate, in adopting Amendment No. 15, intended by the first paragraph thereof to amend § 1, article 16, of the Constitution of 1874 by readopting the same in language meaning precisely the same thing’ as § 1, article 16, and then intended to add thereto the provisions contained in the second paragraph. Since therefore the first paragraph of Amendment No. 15 merely adopts the constitutional form of amending § 1, article 16, of the Constitution by reenacting or adopting that section, and then adding thereto the changes contained in the proviso of the second paragraph, we must apply to the first paragraph of Amendment No. 15 the well-established canon of construction referred to above and expressed by Mr. Sutherland as follows:
“The constitutional provision requiring amendments to be made by setting’.out the whole section as amended was not intended to make any different rale-as to the effect of such amendments. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that the mere nominal reenactment should have the effect of disturbing the ivhole body of statutes in. pari materia which had been passed since the first enactment. There must be something in the nature of the neto legislation to show such an intent with reasonable clearness before an implied repeal can be recognised.” 1 Lewis’ Sutherland Statutory Construction, vol. 1, % 237, page 441; see also 36 Cye. 1084.
Under this rule of construction the words, “indebtedness existing at the time of the adoption of the Constitution of 1874” cannot be held to repeal Amendment No. 11, permitting counties, cities and incorporated towns to issue interest-bearing certificates of indebtedness or bonds to pay their indebtedness outstanding at the time of the adoption of Amendment No. 11. Section 1, art. 16, of the Constitution is the original law on the subject of allowing counties, cities and towns to pay their indebtedness. Amendment No. 11 is an intermediate law on that subject, qualifying the original; and the first paragraph of Amendment No. 15 is merely a reenactment of § 1, article 16, of the Constitution, and the first original law on that subject.
In Ellsworth Dist. v. Tyler County Court, 87 S. E. 870, 77 W. Va. 523, it is held:
“Generally, where a later law is merely a reenactment of the former, it will not be regarded as repealing the intermediate act, which qualified and limited it, but the intermediate act will be deemed to remain in force, qualifying or modifying the new act as it did the first.”
In Gordon v. People, 7 N. W. 69, 44 Mich. 485, Judge Campbell, speaking for a unanimous court, of which Judge Cooley at the time was a member, says:
‘ ‘ The constitutional provision requiring amendments to be made by setting out the whole section as amended was not intended to make any different rule as to the effect of any such amendments.. So far as the section is changed it must receive a new operation, but so far as it is not changed it would be dangerous to hold that the merely nominal reenactment should have the effect of disturbing the whole body of statutes in pari materia which had been passed since its first enactment.”
This rule has been announced and applied in, many adjudicated cases. State ex rel. v. Clausen, 199 Pac. 752, 116 Wash. 432; Monocal v. Heise, 94 N. E. 232, 49 Ind. App. 302; State ex rel. Taggart v. Kansas City, 111 Pac. 493, 83 Kans. 431; Hall v. Dunn, 97 Pac. 811, 25 L. R. A. (N. S.) 193, 52 Ore. 475; Powell v. King, 80 N. W. 850, 78 Minn. 83; Collins Coal Co. v. Hadley, 38 Ind. App. 637, 75 N. E. 832; Cooperative Savings & Loan Assn. v. Fawick, 11 S. D. 589, 79 N. W. 847; Hill v. Village of Aurora, 196 N. W. 465, 156 Minn. 469; Powell v. King, 80 N. W. 850, 78 Minn. 83, 271; Nelson v. Itasca County, 155 N. W. 752, 131 Minn. 478; Gaston v. Merriam, 22 N. W. 614, 33 Minn. 271; Gaughn v. State, 118 N. E. 565, 187 Ind. 334; Leach v. Exchange State Bank, 203 N. W. 31, 200 Iowa 185; Hill v. Village of Aurora, 196 N. W. 465, 157 Minn. 469; Bentley v. Allen, 66 N. W. 505, 92 Wis. 386; Olson v. Haritwen, 57 Fed. (C. C. A.) 845; Small v. Lutz, 67 Pac. 421, 41 Ore. 570, 69 P. 825.
To be sure, the last rule of construction above mentioned is subject to the exception or limitation as stated by Mr. Sutherland on Statutory Construction, § 273, page 524, as follows:
“"Where.a law is amended and reenacted as amended, any intermediate law inconsistent with the "new matter introduced or change made by the amendment will be repealed. ’ ’
See also Leach v. Exchange State Bank, supra, page 35.
Now7, when the provisions of article 4, § 12, of the Constitution as amended by Amendment No. 11, and § 1, article 16, as amended by Amendment No. 15, are considered and construed in the light of all the above rules, we are thoroughly convinced that there is no inconsistency between the bond-issriing provisions of Amendment No. 11 and Amendment No. 15. On the contrary, the provisions of our Constitution with the amendments thereto on this subject, Nos. 11 and 15, constitute a consistent and harmonious whole. It seems to us that this is the inevitable conclusion, in view of the contemporaneous history of the adoption of these amendments. Man}7 of the counties, cities and towns of the State, as already stated, were overwhelmed with debts, the payment of which and the putting of these municipalities on a cash basis and keeping them so, furnished the motive for the adoption of Amendment No. 11; then, to enable cities of the first and second class to pay their existing indebtedness and to make the municipal improvements mentioned therein necessary to their progress and prosperity, furnished the motive for the adoption of Amendment No. 15. Such, undoubtedly -was the inten tion of the people in the adoption of these amendments to the Constitution. But, if the phrase “ indebtedness existing at the time of the adoption of the Constitution of 1874,” could be construed to mean that it was the purpose of this amendment to prohibit the payment of indebtedness of counties, cities and towns, except that existing at the time of the adoption of the Constitution of 1874, then such construction would strike down Amendment No. 11 and destroy the purpose of the people in adopting that amendment. Such an interpretation of the phrase mentioned would render the same meaning-less, lead to an absurdity, and be wholly at variance with the intention of the electorate in adopting these amendments, which intention, if it can be discovered, is the law. We believe we have discovered that intention, assisted as we have been by the excellent briefs of counsel. We therefore answer the question propounded in the'beginning of the opinion in the negative by holding that Amendment No. 15 does not repeal Amendment No. 11 and that both must be retained as a part of the organic law of our State.
The' above conclusion makes it necessary ^ to determine whether or not counties, cities and incorporated towns may be compelled by mandamus to issue interest-bearing certificates or bonds to pay their indebtedness existing at the time of the adoption of the amendment.
An enabling act to put the provisions of Amendment No. 11 into effect was passed by the Grenefal Assembly of the State of Arkansas approved March 23, 1925. In United States ex rel. Stayton v. Paschal, 9 Fed. Rep., 2d Series, page 109, Judge Trieber, in an opinion handed down on December 2, .1925, said: “So the only question to be determined is, does Amendment No. 11 to the Constitution of the State and the enabling act of March 23, 1925, entitle the relator to have interest-bearing bonds' issued and paid by the county in order to satisfy his judgment?” The court denied the petition for mandamus in that case, and, after an exhaustive review of the authorities, among other things said: “It is only when the statute imposes a positive instead of a discretionary power that ‘may’ will he construed as ‘must’.” The court then cited and quoted from Farmers’ Bank v. Federal Reserve Bank, 262 U. S. 662, 43 S. Ct., 651, 67 L. ed. 1157, 30 A. L. R. 635, as follows: “It is true that in statutes the word ‘may’ is sometimes construed as ‘shall.’ 'But that is where the context or the subject-matter compels such construction. ”
We consider the reasoning of Judge Trieber in that case as absolutely unanswerable. He cites to sustain the propositions of law announced and the conclusion reached by him numerous authorities, and his exhaustive and able review of the same makes it unnecessary for us to say more than that we follow this opinion as being a correct interpretation of Amendment No. 11 and the enabling act to make the same effective.
It follows that the judgment of the G-rant Circuit Court in the case of J. W. Lybrand, Jr., County Judge of Grant County, v. W. F. Wafford, is reversed, and the cause will be remanded, with directions to the circuit court to enter a judgment affirming the order and judgment of the Grant County Court in the matter of funding the indebtedness of Grant County existing at the time of the adoption of Amendment No. 11, and to certify its judgment to- the county court. It likewise follows that the judgment of the Madison Circuit Court dismissing the petition of the appellant, Pioneer Construction Company, for a writ of mandamus to compel the county judge of Madison County to issue bonds to pay the judgment of the petitioner against that county, is correct. The judgment in that cáse is therefore affirmed. | [
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Humphreys, J.
Appellee, successor to the Crusader Pipe Line. Company, brought suit against appellants in ike Second Division of tlio circuit court of Union County to recover $2,289.88 alleged to be due it under written contract for tlie taxes of 1924 on personal and real property in Ouachita County, Arkansas, which it agreed to purchase from appellants on August 28, 1924, and which was turned over to it the first of September following. The third paragraph of the contract, which was set out and made a part of the complaint, is as follows:
“Third. With reference to the taxes on all property which we are selling you, being both oil of the Empire Petroleum Company and real estate and personal property of the Empire Pipe Line Company. We agree that we will pay our pro-rata part' of this year’s taxes, i. e., when these taxes are due, about January 1, 1925, you will pay same and bill us for our portion according to the pro-rata part of the current year during which this property'was in our possession. The date from which this reckoning shall be made will be the date on which the property in question is actually turned over to you.” -
It was alleged in the complaint that the taxes upon the property amounted to $3,431.31, and that, after proper demand, appellants refused to reimburse appel-lee for two-thirds of said taxes.
Appellants filed a demurrer to the complaint, which was overruled by the court, whereupon they declined to plead further, and judgment was rendered against them for the amount claimed, from which is this appeal.
The demurrer was overruled and the judgment rendered upon the theory that the phrase “current year” used in the contract had reference to the calendar year 1924, and, as the property was delivered on September 1 of that year, appellants owed appellee two-thirds of the amount paid in 1925 for the taxes of 1924.
Appellants contend for a reversal of the judgment upon the ground that the term “current year” in the. contract had reference to the “fiscal” or “tax year,” during which the.1924 taxes were'to be expended to cover the cost of Government. We do not think the “tax year” in Arkansas is the criterion or key by which the third paragraph in the contract is to be construed. The taxes which were to become due on January 1,1925, were the taxes about which the parties were contracting’ and the pro-rata part of which each was to pay; The contract specifies in unambiguous language that the proportionate part of the year’s taxes which each must pay shall he determined by the pro-rata part of the current year during which the property was in their respective possessions, meaning, of course, the pro-rata part of the year in which the contract was made. The word “current” is defined in Webster’s Dictionary, in part, as follows: “Now passing, as time, or pertaining to the present time, as the current month; the current number of a periodical.” Appellants had the possession of the property from January 1, 1924, until September 1 of the same year, and appellee had possession thereof from September 1 to December 31 of the same year, so it follows that the court was correct in adjudging that appellants should pay two-thirds of the taxes.
No error appearing, the judgment is affirmed. | [
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Mehaffy, J.
The appellee, who was the plaintiff below, is the owner of an 80-acre tract of land in Union County, Arkansas, and he brought this suit against the appellant, who' was defendant below, alleging that the defendant stored oil in pits by excavating the dirt in certain places and building embankments or levees, and that, when it rained, the water accumulated in the pits or tanks; and that from said pits or tánks portions of crude oil and basic sediment esieaped and was carried on to plaintiff’s land, and damaged and injured same.
The defendant answered, denying all the material allegations of the complaint.
The plaintiff testified, in substance, that he had been the owner of the land since 1913 or 1914; that it was practically all cultivable. The Standard Oil Company of Louisiana owns and operates a tank farm near plaintiff’s land, and the tanks were formed by throwing up a levee. Pie also testified that there was a natural watercourse upon his land that passed up within the vicinity of the oil tanks. The oil tanks are between the forks of the said stream. When they turn the valve the water and basic sediment from the tanks run into the streams and pass into the stream and across plaintiff’s land. The tanks have been there about two years. The water in the stream is not fit for the stock to drink or for any other use around the farm. The stream dries up in dry weather, except in holes. There are about 15 acres of plaintiff’s land that have been covered with sediment. Twelve acres of it would be termed fertile land. Prior to the time the sediment was deposited upon his land grass would grow; now it will not. Timbers have begun to die a little. The reasonable market value of the land would be $100 per acre if it was not for this pollution. It is now worth about half value. The amount of the land covered by the sediment is only estimated. It is all under fence, and cleared. A man can jump across the branch in most places. It is a very crooked branch. The northeast corner of plaintiff’s land is right on the channel. It then leaves his land, and touches it again at the northwest corner. The channel’s average depth is four or five feet. The timber in this branch bottom is all small timber. Plaintiff has not lived on the land for four years, but has rented it for $150 a year. Has never offered it for sale, but had been offered $100 an acre for his land, and refused it. It is now worth about half that value.
Other witnesses testified to substantially the same facts about the value of the land, and some of them put the value considerably lower.
Defendant’s witness testified that there was between seven and eight acres of the land that had some deposit on it, but that the water had no taste of salt in it. The seven acres were not covered with oil, hut just scattered over it, and some places it was bare.
There was testimony about other lands near there selling for $55 an acre, and there was a pretty sharp conflict in the testimony as given by the plaintiff and defendant’s witnesses, hut the weight of testimony and credibility of witnesses were matters to be determined by the jury, and the rule of this court is that, if there is any substantial evidence supporting a verdict, it will not be disturbed.
The first contention of appellant is that the court erred in instructing the jury on the measure of damages. The instruction given by the court was as follows: “If you find for the plaintiff, you will award him such damages as will fully compensate him for the difference in the market value of his land without the pollution of the stream which crosses his said land and the deposit of sediment thereon from defendant’s tanks, and the market value of said lands with such pollution and deposit of sediment, if any.”
It is urged that this instruction is erroneous, and that the correct measure of damages is not the difference in the. market value of the land before and after the stream was polluted, but that the proper measure is the difference in the rental value of the land, and this would be the correct rule where the damages to the land are temporary, but, if the damage to the land is permanent, the measure of damages, of course, would be the difference in market value.
The appellant, however, did not ask any instruction at all on the measure of damages and did not make any specific objections to the instruction as given, but its objection was general. Both parties seemed to have tried the case on the theory that the measure of damages was the difference in the market value of the land. That is evidently the theory adopted, not only by the appel- lee, but by the appellant. ' This is shown, not only in the cross-examination of the witnesses for the plaintiff, but it also appears in the testimony of the witnesses for the defendant itself.
Deering, a witness for the defendant, testified that the land with the oil on it was not worth anything now, and before the oil got on it it was worth from $5 to $25 an aere.
Another witness testified .on behalf of the defendant, testifying that he bought land as good as this, six or seven years ago, for $15 per acre. And it appears all through the testimony that the case was tried on the theory that the measure of damages was the difference .in the market value of the land before and after the injury.
Again, it may be said that the testimony shows the damage to the land to be permanent. Witnesses testify that it was worth a certain price before the pollution of the stream and a less price per acre after the pollution of the stream. Whether that was temporary or permanent is not only not shown by the testimony, but there seems to have been no effort on the' part of appellant to ascertain from any witnesses whether they meant that that was the difference in the price now and for a short time, or permanently.
Appellant says that one of the best-considered cases is Sussex Land & Live Stock Co. v. Midwest Refining Co., 34 A. L. R 249 (C. C. A.) 294 F, 597. In the case referred to the court said:
“We may well enter an examination of this subject with the observations of the great Chief Justice, made in an historic case (Marbury v. Madison, 1 Cranch 137, 163, 2 Law ed. 60, 69) that the Government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation, of a vested legal right.”
And the court calls attention to many things that one may do to violate another’s vested legal right, _ and, among other things, says: “Here, the evidence is clear and the court found that the water was rendered partially unfit for stock purposes. Where the rights of priority are as above shown, and the pollution is shown, the authorities are that an actionable wrong has occurred, and it is no defense that the cause of the pollution was a natural user of land in a careful manner.”
In that case the court also said, in speaking of the remedy of the landowner:
“The injury shown here is not complete destruction of the land for' all reasonable natural user. It is not .even complete destruction of the user (stock gracing) particularly affected. * * * The character of the injury is, as found by the court and as apparent from the evidence, not permanent. When the cause thereof ceases to be active, the effects will, from the nature of the matter and as shown in the evidence, become negligible within a reasonable time thereafter, through subsequent floods and the natural decay and disappearance of annual vegetation. The cause may and probably will continue as long as this oil field is actively productive. The life of this oil field is estimated at twenty years. * * * It would seem that both justice to the parties concerned and public policy would seek some solution of the matter which would permit neither landowner to have the complete use of its land to the entire prevention of use by the other of its land. * * * If this use by one destroyed all beneficial use by the other of its land permanently or for any considerable time, another situation would be present.”
The above case was really a suit for an injunction, and the lower court itself adopted the rental value as the measure of damages, and the circuit court of appeals held that that was a correct rule in that case. It would have been a correct rule in this case if the parties had tried the case on that theory. The plaintiff, however, undertook to show that his damages were so much, and the defendant undertook to show that they were less, and both parties introduced evidence in an effort to show the damages; that the land was worth so much before the pollution and a certain less sum after the pollution.
The appellant cannot change its theory after appeal to this court, and we do not think that the case relied on sustains the contention of appellant here. The case relied on by the appellant is annotated, and one of the notes is as follows: “Damages for permanent injury may be recovered for destruction of- the productive power of land by discharging thereon oil and salt water from an oil well, although the continuance thereof may be abated. ’ ’
No objection to the testimony tending to show the difference in market value was made by the appellant, and the appellant cannot complain that the measure of damages which was adopted, and which was justified by the evidence introduced, was not the correct rule, when practically all of the evidence on the question of damages both by the plaintiff and defendant assumed that the injury was permanent.
Appellant’s next contention is that the appellee is entitled to nominal damages only. Witnesses testified that the value of the land before the pollution was from $100 down to a very much smaller sum, and that the value of the land after the pollution was much less. We think there was substantial evidence that the market value of the land was considerably less after the injury than it was before. As to how much the land was damaged was a question of fact for the jury to determine from the evidence, and the evidence of this damage was introduced without objection. And, since there was substantial evidence upon which to base the verdict, and no request for instructions made by appellant and no objections argued to instructions given by the court, except the one to which we have referred, it folloivs that the judgment must be affirmed. | [
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Kirby, J.
Appellees, contractors for the construction of a gravel road in Road Improvement District No. 6, Little River County, brought this suit against the pipe-line company, appellant, for $185.25 damages alleged to have been caused by appellant to the roads under construction by the contractors and before its completion and acceptance by the district.
The testimony tends to show that, while T. S. Haynie and Brown Arnold, a partnership, the Haynie Construction Company, were engaged in the construction of this road, the pipe-line company was engaged in stringing the pipe and constructing a pipe line through the road district, and was using the uncompleted road in hauling and distributing the heavy pipe therefor; that the contractors objected to the use of the road; that Lee and Allison, both for the pipe-line company, agreed to pay the. cost of any necessary repairs to the road if they were allowed to continue to use it in the distribution of the pipe; that, after this agreement, they continued to.use the road from the 15th to the 20th of November in distributing the pipe, and plaintiffs were compelled, to use $175.24 worth of gravel and an operator at a cost of.$10 to recondition the road after such damage.
The pipe-line company denied having-made any such agreement and that any agent with authority to do so had attempted to make or even been consulted about it.
Plaintiff’s testimony tends'to show that agreement was made' with a Mr. Cummings,' whose office was in Ashdown, and who. was said to be superintendent" of the pipe-line company, by B. C. Jenkins, superintendent of construction and bookkeeper for the Haynie Construction Company. They agreed that damage would result from such use by the pipe-line company, and Cummings said, if they would permit his company to haul pipe over the new road, his company would pay for putting new gravel on the damaged portion and for grading and shaping the road after the hauling was completed. The agreement was made early in November, probably after one load of pipe had been hauled. The damages' to be paid under the agreement were to be the actual cost of repairs to the Haynie Construction Company, as stated by Jenkins. After the repairs were made, the bill was presented to Cummings, who said he would O. K. it and forward it to the Shreveport office, which would allow it and return the check in payment, but this was never done.
The pipe was being hauled from Wilton, where it wás being shipped by train, on the gravel road to the location west, where it was to be used -in constructing the line. “This was the only road leading from Wilton to where they wanted to haul the pipe, except an old road they could not use because of the heavy loads they were hauling and bad weather conditions.”
Haynie testified that the contract was made with Mr. Allison, who appeared to be the foreman of the company — he was riding horseback — and that the damage was done by the hauling of the heavy pipe over the road, and that the actual cost of the repairs was the amount claimed. ■ '
Cummings testified that he was in the employ of the pipe-line company as clerk to the district foreman, when Jenkins came to the office and complained that a truck was tearing up the road; that he'was on the road during the time the pipe-line company was hauling pipe; that he went to payoff the men,' which was'done twice a month; that he made one or two trips a day over the road west of-.Wilton,, checking up on labor and seeing that all were furnished with tools. Said Allison was the foreman out there, to see that the hauling was done and how much was done; that Lee, -the district foreman, who was authorized to make contracts with reference to the work,was not in town, ‘ ‘ and Allison and I' had authority to move'the trucks and put on wagons, and did so, at'which time they had been running three or four days. We had two miles of pipe to haul. A joint of pipe was 21 feet long and weighted 750 pounds. It xvas muddy off! the gravel roads, and we- saw the road was open, and used it;” Witness knew that the road xvas being worked on, and, if there was any such agreement, Allison and himself made it; that they took the trucks off ■ the road .on Jenkins’ complaint, and he turned the bill in the latter part of December. ...
Allison stated that he xvas assistant “stringing foreman” of the pipe-line company in Little River County, and went to Ashdown xvith Mr. Jenkins, who had told him that they would like for him to take the truck's off the road or agree to pay for the damages. Witness took Jenkins to Lee’s office, but Lee was not there, and -Cummings, Jenkins and himself were the only ones'.present. Jenkins asked them not to use the trucks any more, and there was .probably two miles of pipe to be distributed from the station, and that they took the trucks off the road, as they had the authority to use the trucks or take them off and put on wagons without consulting Mr. Lee, the foreman. Allison said further that hauling and stringing the pipe along the pipe line would ,be part- of the construction, and also directing when and where the trucks and wagons should haul; that Cummings had authority to do that, hut nothing to do with stringing the pipe; that he was stringing foreman; also that, after the agreement, the pipe-line company did haul its pipe over that road and got the benefit of passing over it. It .was pretty had hauling over other roads. Witness heard no complaint “from any of my foremen or superintendents about this agreement having been made.”-
There was some testimony tending to show that the road was being used indiscriminately by the traveling public, but one of the commissioners testified that it had not been completed nor accepted by the district, and the plaintiff’s witnesses testified that they had made the tie-haulers and all other heavy traffic quit using the road.
The court instructed the jury, and from this judgment against the pipe line company this appeal is prosecuted.
Appellant insists that no agreement was made by it nor by any of its agents acting within the scope of their authority to pay for damages or repairs for the use of this road. The clerk of its superintendent of construction, in the absence of the superintendent, was shown to have made this agreément, which was concurred in by the “assistant stringing foreman,” whose duty it was to see to the distribution of the pipe along the right-of-way and the putting it into the ground and connecting it up into a pipe line. The testimony shows that these agents or employees of the pipe-line company had the authority to haul and distribute the pipe, put it into the ground and connect it up, and the undisputed testimony shows that the gravel road under construction was the only one that could be used to any advantage in the performance of this work, the dirt roads being in bad condition on account of the weather. That appellee was in possession of the uncompleted gravel road under construction, with the right to exclude appellant’s trucks and teams from the use of it. That they continued the use of it, after objection was made, by consent of tlie contractor of . the road district, under an agreement to pay the damages caused by such use, according to 'the testimony on the part of appellees, and on their change from trucks to wagons for the hauling, as attempted to be shown by appellant. Neither is it disputed that it cost the amount' claimed for reconditioning and repairing the road after its continued use by appellant.
It is true that one dealing with an agent of a corporation is put upon notice of the limitations of his authority, and must ascertain what the authority is or deal with such agent at his own risk, but the power of the agent. to bind his principal is. determined by the actual authority expressly given him and by authority necessarily, implied in order to carry out or perform the duty he is directed to do.
As said in the case of United States Bedding Co. v. Andre, 105 Ark. 111, 150 S. W. 413, 41 L. R. A. (N. S.), 1019, Ann. Cas. 1914D, 800:
‘ ‘ This implied authority to do acts by which the principal will be bound, which are not expressly authorized, is also spoken of as those acts which' are within the apparent scope of the agent’s authority. But, to authorize an inference of authority in an agent, it must appear that the thing done or transaction made was necessary in order to promote the duty or carry out the purpose expressly delegated to him.”
This court approved, in Pierce v. Fioretti, 140 Ark. 313, 215 S. W. 648, the following-as a correct statement of the law from 2 C. J. 573:
“Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the •agent to possess.” See also Lumber Co. v. Fowler, 137 Ark. 418, 208 S. W. 786; Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260; Benton v. Auto Co., 147 Ark. 415, 227 S. W. 608; and Forrest v. Benson, 150 Ark. 89, 233 S. W. 916.
This is not so much an agreement to bind the principal to 'the payment of damages as appellant contends was beyond the apparent scope of . the authority of its agent, but rather an agreement for procuring the.use of this road, indispensably necessary for the distribution of the pipe for the construction of the pipe line by appellant’s agents and employees having the matter in charge, and was binding upon the appellant, being, if not expressly authorized, easily within the apparent scope of the authority of its agents.
There is no question of ratification of the unauthorized acts of appellant’s agents in this case, and no prejudicial error could have resulted from the giving of instruction No. 3 complained of.
The testimony was conflicting to some extent on the terms of the agreement made for payment for use of the road, but all doubts have been resolved in appellee’s favor by the jury, and its verdict will not be disturbed.
No prejudicial error- appearing in the record, the judgment is affirmed. | [
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McHaNey, J.
In her lifetime Mrs. Julia A. Raney, mother of the appellees and a sister of the' appellant, was a member of the Knight & Ladies of Honor, holding a beneficiary certificate therein in the sum of $2,000, payable $1,750 to J. E. Comer, her brother, and $250 to appellee, W. W. Raney, her son. On or about July 18, 1920, the insured surrendered her beneficiary certificate to the Fráternal Aid Union and received another beneficiary certificate in the latter for the same amount, in which her brother, J. E. Comer, was named the beneficiary. It is admitted that J. E. Comer paid substantially all the premiums or assessments due to the Knights & Ladies of Honor, and that, at the time this insurance was taken over by the Fraternal Aid Union, he refused to pay any more premiums or assessments unless he was made the sole beneficiary therein, which was done, and he thereafter paid all the premiums or assessments due to the Fraternal Aid Union until the time of his death, which occurred in the year 1923, during all of which time he had paid out to the Knights & Ladies of Honor $883.93 and to the Fraternal Aid Union $427.20, making a total of $1,311.13. At the time of his death J. E. Comer had this policy in his possession, and appellant, Andrew Comer, being the chief beneficiary and executor under the will of J. E. Comer, took charge of this policy, and thereafter, from August 1, 1923, paid all the premiums or assessments to the Fraternal Aid Union until the death of Julia A. Raney, which amounted to $464.60. The application for the insurance, the constitution and by-laws, together with the beneficiary certificate or policy, constitute the contract in this case. The pertinent portion of one of the by-laws, No. 96, is as follows:
“If all the beneficiaries shall die during the lifetime of the member, and he shall have made no other directions, the benefit shall be paid to the husband or wife of said member, if living at the time of his death; if no husband or wife survives the member, then said benefit shall be paid, share and share alike, to his children. ’ ’
After the death of J. E. Comer, no request was ever made to change the beneficiary in the policy, and none was made. Appellant brought this suit to recover the full amount of the policy, and, after hearing the matter, the court entered a decree allowing appellant the amount of premiums paid by him personally, with interest, in the total amount of $496.10, and decreed the remainder to appellees. From this judgment this appeal is prosecuted.
We are of the opinion that the decree of the court is correct, and that the rights of the appellant in this policy must be determined by the contract itself, which, as heretofore stated, is the beneficiary certificate, the application therefor and the constitution and by-laws of the insurer. The Fraternal Aid Union was made a defendant in this action, and it answered, setting up the pertinent parts of the contract, including the section of the constitution and by-laws heretofore referred .to. _ It admitted its liability on the policy, paid the money into the court, and asked that it be distributed to the proper parties.
Appellant had this policy in his possession all the time after the death of J.^E. Comer, and will be charged with notice of the terms and conditions of the policy. He knew that it was made payable to J. E. Comer. He knew that the constitution and by-laws constituted part of the contract, and, by the slightest investigation, -he could have known that, on the death of J. E. Comer, all the benefits, in .case of the death of the insured, would, by the terms of the contract, be payable to the children of the insured. He could, no doubt, have had Mrs. Raney change the beneficiary in this policy to himself. There is nothing in the record to show that there was any express agreement that appellant should have a lien on the policy for the amount of premiums paid by him or by his brother, J. E. Comer. J. E. Comer had no lien upon the policy,' either express or implied, as, on the death of the insured, he was made the sole beneficiary, provided he survived her.
Under the decisions of this court, where a beneficiary certificate, such as is involved in this case, provides that the application, constitution and by-laws, together with the certificate, shall constitute the contract, the whole contract must be looked to in order to determine the rights of the parties thereunder, because it is the whole basis of the contract. Baker v. Mosaic Templars, 135 Ark. 65, 204 S. W. 612, L. R. A. 1918F, 776; Eminent Household Columbian Woodmen v. McCray, 156 Ark. 300, 247 S. W. 379; Mutual Aid Society v. Lovett, 170 Ark. 745, 281 S. W. 354. And in Lawson v. Barbee, 170 Ark. 833, 281 S. W. 365, quoting syllabus, it is said:
“The holder of a benefit certificate issued by a mutual benefit society has no power to change the beneficiaries named therein, unless expressly authorized to do so by the policy itself, or by the articles of association or by-laws of the society, where these are, by the terms of the certificate, made a part of it.”
In Block v. Valley Mutual Insurance Co., 52 Ark. 206, 12 S. W. 477, 478, 20 Am. St. Rep. 166, it was said:
“But regardless of the character of the company, the rights of persons claiming insurance arise out of and upon contract, and must be ascertained and fixed by the contract. Although the object of the company in entering into the contract may be benevolent, this purpose can impart no new meaning to the unambiguous terms of the writing. When the courts are invoked, the contract measures the rights of one and the obligation of the other party, and relief must be granted, if at all, according to its terms.”
Numerous cases might be cited to the same effect, but we deem it unnecessary to do so, as we now hold that appellant’s rights are to be determined by the contract, which includes the policy, the application, and the constitution and by-laws, and these, providing how ihe benefits shall be paid in case of the predecease of Ihe beneficiary, are controlling here. .
The decree of the chancery court is right, and it is therefore affirmed. | [
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Humphreys, J.
This is a suit brought by appellee against appellants in the circuit court of Monroe County to recover an alleged interest amounting to $17,000, in the timber on a 5,300-acre tract of land in Monroe, Phillip's and Arkansas counties, Arkansas, which J. T. Wylie conveyed to S. M. Bush, by deed dated January 15, 1924, acknowledged May 24, 1924, and hied for record July 34, 3924.
The gist of the complaint was that appellee and his two partner's, J. M. Linder and F. M. Linder, released their agreement to purchase said tract of land from J. T. Wylie upon tlie agreement of appellants that they would pay appellee $1 per thousand feet as the timber was cut and removed from the land; that, shortly after said deed was executed, logging operations were commenced upon s'aid land, and that a total of 229,063 feet of logs was cut and removed and settlement made with appellee by said appellants at the rate of $1 per thousand feet, in accordance with said contract; that on or about the first day of September, 1925, there had been cut and removed from said lands by appellant 1,707,114 feet of logs; that, under the terms of said contract, there was due appellee the sum of $1,704, for which amount he requested settlement; that appellants claimed the amount they had agreed to pay appellee was excessive, and persuaded and induced him to accept the sum of fifty cents per thousand for the remainder of the timber, 38,000,000 'feet, in lieu of $1 per thousand, the amount originally agreed upon; that one of the inducements offered was to employ appellee as general superintendent of the logging operations upon said lands at the rate of ten cents per thousand feet; that on said date they settled with appel-lee for the 1,704,114 feet which had been cut at fifty cents per thousand feet; that from the first day of September, 1925, up to the 17th day of January, 1926, 1,794,-975 feet of logs were cut and removed, for which appellants paid appellee fifty cents per thousand feet, under the contract for his interest in the timber, in addition to ten cents per thousand for his personal services as superintendent of logging operations; that at that time appellants terminated said contract, and, by reason of the breach, appellee has been damaged in the sum of $17,000, for which amount judgment was prayed.
S. M. Bush resided in Monroe County, where suit was brought, and he was served with summons. The Southwestern Veneer Company was an ordinary mercantile corporation, domiciled, with all of its offices, in the Southern District of Woodruff County, with no place of business, branch office, agent or officer in Monroe County. Summons was directed to the sheriff of Woodruff County and served upon said company in the Southern District of Woodruff County. -Appellant, the Southwestern Veneer Company, appeared specially and only for the- purpose of objecting to the jurisdiction of the court, and moved that the summons served upon it be quashed upon the alleged ground that S. M. Bush had no interest in the controversy, but was joined in the suit in order that service might be had upon him in Monroe County as a basis for bringing the suit in said county, so as to serve a summons upon it in the Southern District of Woodruff County, under the provisions of § 1106 of Crawford & Moses’ Digest. The court overruled the motion to quash the summons because it would necessitate a hearing of all the evidence in the case in order to determine whether S'. M Bush had a personal interest in the controversy, to which ruling of the court appellants objected and excepted.
Reserving their exceptions to the ruling of-the court in refusing to quash the summons, at every step-during the progress of the trial, appellants first filed an answer denying the material allegations of the complaint, and interposing the additional and further defenses of a release, and the statute of frauds. The cause was submitted, and, when the testimony was completed, appellants moved for an instructed verdict, both upon the ground that the court had no jurisdiction to try the cause and that appellant had failed by competent, substantial evidence to establish any liability against them. The cause was then sent to the jury, over the objection and exception of appellants, on the theory embodied in the following instruction:
“If the preponderance of the evidence shows that, prior to the first of September, 1925, there had been between plaintiff and defendants a controversy as to whether or not defendants had agreed to pay plaintiff a commission of $1 per thousand feet in connection with the purchase of the Wylie timber, aiid if, on or about September first, 1925, defendants or defendant Bush, compromised such dispute or controversy by agreeing to pay plaintiff a commission of fifty cents per thousand feet on said timber in settlement of such controversy, such Oral or verbal ■ agreement would be valid, and your verdict will be for the plaintiff. ” ■
The jury returned a verdict in favor of appellee for $3,086.52, upon which judgment was rendered, from which is this appeal. ■
■ The’ undisputed testimony shqws that J. T. Wylie owned 5,300 acres of heavily timbered land in Monroe, Arkansas and Phillips ¡counties, in the State of Arkansas, with which S. B. Dennison was familiar. Dennison and his two partners, Linder Brothers, were conducting logging operations on White River, near this tract of land. In the summer of 1923 Dennison,- for his partnership, began negotiations for the purchase of the land from J. T. Wylie, who asked him $45 an acre for it. Dennison and his associates did not have the cash to make the first payment, so they fell upon the plan of getting' some manufacturing concern with money to buy the logs from them and advance the necessary cash payment on- the purchase of the land. The Southwestern Veneer Company was operating at Clarendon, and could use the logs. J. W. Welsh was its president and S. M. Bush its manager. Pursuant to this plan, Dennisonproposed to R. S. Easley, the logging superintendent, and S. M. Bush, the .general manager, of the Southwestern Veneer Company, that Linder Brothers and Dennison would purchase the tract from Wylie and log the same if the Southwestern Veneer Company would buy the logs as cut and advance the cash payment required to purchase the land from Wylie. Bush accepted the proposition, and, on the strength of the agreement, a contract was prepared for the sale and purchase of the land by Wylie to Linder Brothers & Dennison, in which it was provided that the cash payment -should be $100,000. In August, 1923, the parties met in Memphis to close up the deal, but failed to consummate it because the cash payment was too large. Dennison and Wylie continued their negotiations, and finally agreed upon terms, the sale and purchase calling for only a $10,000 cash payment, the details of which were incorporated in a tentative deed from Wylie to Linder Brothers & Dennison. On the 23d of March, 1924, they met at the Chisca Hotel in Memphis to close np the deal in accordance with the terms set ont in the tentative deed. Welsh objected to advancing the cash payment on account of the .doubtful financial condition of Linder Brothers, and refused to do so unless they would get out of the deal. H. F. Linder became angry at the accusation that Linder Brothers were insolvent, and withdrew from the conference. Dennison, later in the day, on the 24th of March, 1924, at the suggestion of Bush, obtained the two following letters, one from the Southwestern Veneer Company and one from Wylie:
‘ ‘ Southwestern Veneer Company,
Cotton Plant, Arkansas,
“Gentlemen: We have agreed with Mr. J. T. Wylie of Saginaw, Michigan, for the purchase of certain lands in Monroe, Phillips and Arkansas counties, which we find we cannot handle, and hereby turn over to you to handle.
“Linder Brothers,
“By H. F. Linder,
“S. B. Dennison.”
“Mr. J. T. Wylie,
Saginaw, Michigan.
‘ ‘ Dear sir: We agreed to purchase your timber land under contract, and called you here, but find we cannot make necessary arrangements for the money, so we will have to turn the deal down, releasing you to deal with any one you please, with no obligations to us.
“Linder Brothers,
“By H. F. Linder,
“S. B. Dennison.”
Dennison also obtained the following letter to the Southwestern Veneer Company:
‘ ‘ March 25, 1924.
“Southwestern Veneer Company,
Cotton Plant, Arkansas.
“Gentlemen: We have for the last six months negotiated with Mr. J. T. Wylie, of Saginaw, Michigan, concerning the purchase by us from him of certain-lands owned by him in Monroe, Phillips and Arkansas counties, Arkansas, known as the Bateman and Ezell lands.
“At our request Mr. Wylie came to Memphis this month for the purpose of closing up the trade, but, after he arrived here, we found we could not handle the deal, and we have therefore given Mr. Wylie a written waiver of any rights we had in the matter with him, and have authorized him to sell the property to others without any right, title or claim on our part.
“We understand you are now negotiating with Mr. Wylie for the purchase of these lands, and we hereby write this letter to you for the purpose of informing you that you are at liberty to make any trade you wish with Mr. Wylie, and that we shall not make any claim of any kind or character against you now or in the future in connection with any trade you may make with Mr. Wylie, or due to our failure to consummate trade with him.
“S. B. Dennison, “Linder Brothers,
“J. M. Linder,
“H. F. Linder.”
At this juncture in the history of the ease the record reflects some dispute in the testimony.
Appellee testified that, before he obtained- the first two letters from the partnership, S. M. Bush, on behalf of himself and the Southwestern' Veneer Company, agreed to pay him $1 per thousand on all logs as they were cut and removed from the land. After appellants and Wylie began negotiations for the sale and purchase of the land which terminated in Wylie conveying same to Bush on the 14th day of July, 1924, by deed embracing practically the same terms and conditions contained in the tentative deed which had been prepared for Wylie to execute to Linder Brothers & Dennison; that, on the day after he had delivered Bush the first two letters, he mailed a third letter, directing it to Brinkley, which his attorney had prepared because not satisfied that the first two letters sufficiently released any claim the partnership of Linder Brothers & Dennison had to purchase said lands from Wylie; that, several days after receiving the letter, he had an interview with Bush in Brinkley, at which time he asked Bush whether the release he wanted him to get, dated March 25,1924, would in anywise affect their agreement for $1 a thousand on the logs when cut and removed, and, being informed that he (Bush) intended to have the deed made to him personally, and would see that he received $1 per thousand for the timber when cut and removed, he went to Memphis to prevail upon Linder Brothers to sign the release, and accomplished the purpose ; that it began removing logs from the Wylie tract in December, 1924, and up to and including March 27, 1925, removed 229,063 feet, for which appellants settled with him at the rate of $1 per thousand in accordance with the contract made with him for procuring the release; that from June to September, 1925, they cut and removed about 1,700,000 feet of logs; that on September 21, 1925, witness went to Cotton Plant to see Bush and collect the amount due him under his contract, but Bush objected to settling with him on the basis of $l per thousand, saying that the Wylie tract had over 35,000,000 or 36,000,000 feet more on it, and that $1 a thousand would amount to more than witness should have out of the deal; that they discussed the matter about half a day, at which time Bush proposed to pay him fifty cents a thousand on what had been cut and the remainder to be cut, and refused to pay more; that, not being financially able to litigate with appellants, witness compromised his agreement with them on that basis, and, pursuant to the compromise, received $851 or $852 for the amount cut up to that date; that on that date .appellants also entered into an agreement with witness to conduct their logging operations on said tract of land for ten cents per thousand feet; that it cut and hauled 1,974,000 feet between September 10, 1925, and January 17, 1926, for which settlement was made with him on a basis of sixty cents per thousand; that he continued to work for appellants until January 27, 1926, at which time he received a letter from Bush, discharging him; that thereafter he refused to pay him fifty cents per thousand according to the compromise agreement made on September 1, 1925, to witness ’ damage in the sum of $17,000.
S. M. Bush testified that, when Welsh refused to advance the cash payment, or to go into the deal on account of the doubtful financial condition of Linder Brothers, through witness’ request and the efforts of Dennison, Linder Brothers & Dennison voluntarily released any claim they or either of them might have under their oral contract to purchase from Wylie, in' order that the Southwestern Veneer Company might purchase the land directly from him; that he made no promise, either personally or for the Southwestern Veneer Company, to pay Dennison $1 per thousand feet as the timber was cut and removed, or any other sum, to obtain the release of Linder Brothers and himself; that he regarded Dennison’s activity as a friendly act growing out of past business transactions and in anticipation on his part to secure employment when his company should begin to cut and haul the timber off of said tract of land; witness did not, for himself or his company, pay Dennison $1 a thousand for 229,063 feet of logs cut and removed up to' March 27, 1925, nor .enter into a compromise agreement to pay him fifty cents per thousand for the 1,700,000 feet cut and removed from that date until September, 1925, or promise to pay him fifty cents per thousand on the 35,000,000 or 36,000,000 feet to-be cut in the future on the Wylie tract of land; that on September 1, 1925, he employed appellee, for the Southwestern Veneer Company, to superintend logging opera-: tions upon the Wylie tract, who was to furnish his own ear and gasoline boat, and buy his own gasoline, for sixty cents a thousand as the logs were cut and removed; that on that date about 1,700,000 feet had been cut, and he directed his bookkeeper to allow Dennison $850 for the amount already cut because he, Dennison, had been very nice to them; that Dennison continued in their service until January 27, 1926, at which time he discharged him because he was not devoting his entire time to their logging operations on the Wylie tract of land; that everything he did in relation to the purchase of the Wylie tract of land and in the employment of appellee was for and on behalf of the Southwestern Veneer Company, which he represented in the capacity of manager, and was not on behalf of himself; that the deed from Wylie to the land was made to witness personally in order to avoid a showing on the record of a large indebtedness against his company; that the consideration paid and to be paid was $240,660, only $10,000 being paid in cash, leaving an indebtedness of $230,660, to be paid in large annual installments.
Other testimony appears in the record corroborating the testimony of Dennison and Bush, but it is unnecessary to a determination of the questions involved on this appeal to set out such testimony.
Appellants first contend for a reversal of the judgment because the court entertained jurisdiction of the cause. It is argued that, according to the undisputed testimony, S. M. Bush had no personal interest in the transaction and was-improperly made a party in order that a summons might be served upon his codefendant, the ■Southwestern Veneer Company, in Woodruff County, under the provisions of § 1166 of Crawford & Moses’ Digest, allowing service of summons upon all the defendants in a'cause of action in other counties than that in which the action is brought, if, at its commencement, any of them resided in the county where it was brought. It was alleged in the complaint that S. M. Bush and the Southwestern Veneer Company breached a compromise agreement entered into on September 1, 1925, to pay appellee fifty cents per thousand for the remainder of the timber cut and removed: from the lands known'as the Wylie tract, in lieu of an original contract to pay him $1 per thousand for the timber cut and removed from said lands, growing out of the sale and purchase of said lands by Wylie to appellants.
The evidence of appellee and his corroborating witnesses tended to support the allegations of the complaint, and, when considered in the light-of the fact that S. M. Bush, individually, was the grantee in the deed, we cannot agree with appellants that the undisputed evidence showed that S. M. Bush had no personal interest in the transaction, and that he did not personally undertake to pay appellee fifty cents per thousand for the timber to be cut and removed off of said lands, in compromise of appellee’s claim that he was entitled to an interest in said timber to the extent of $1 per thousand when same was cut and removed. The issue of-whether he had any personal interest in the transaction was submitted to the jury, under disputed testimony, and found against appellants, and they are bound by the verdict. There being sufficient evidence to sustain the finding of the jury in this particular, the suit was properly brought in Monroe County, and appellee was properly summoned in Woodruff County. ' ■ •
Appellant’s next contention for a reversal of tlie judgment is that, according to the undisputed testimony, there was no consideration to support the contract alleged to have been breached. The contract sued upon was an alleged compromise agreement to páy appellee fifty cents per thousand for all logs which had been exit and not paid for, and all logs which were to be cut after September 1, 1925, off of the Wylie tract of land, in lieu of and in settlement of the original contract entered into between appellants and appellee by which appellee was to receive $1 per thousand for his interest in the timber on said tract when removed, which he had acquired ¡n getting the release from the partnership of Linder Broth ers & Dennison. ’ We think the settlement of the disputed claim was sufficient consideration to support the compromise agreement sued upon, and that the testimony of appellee and his corroborating witnesses tended to show both an original and a compromise agreement. It is immaterial whether the original agreement was supported by a sufficient consideration if the agreement which was compromised was in good faith and was not prohibited by law. Appellants argue, however, that, if the original and compromise agreements were made, they were oral and in contradiction of the written release, and for that reason not provable. The oral contracts are not in contradiction of the written releases, if appellee’s testimony was true relative to the construction placed upon them by S. M. Bush when he requested appellee to get them. • Appellee testified that Bush told him that the contracts only released the partnership contractual rights of Linder Brothers & Dennison to purchase the lands from Wylie, and would not interfere with their agreement to pay him individually $1 per thousand for logs when they removed them from the lands, which agreement was afterwards modified so as to pay fifty cents per thousand for the logs in lieu of $1 per thousand. We think the testimony admissible, and, if true, was made as an inducement and in consideration of obtaining the partnership release to purchase the timber from Wylie. The record reflects that Wylie was not willing to sell the lands to appellants without such a release. Appellants argue that, if made, the contracts were oral, and for that reason were void under the statute of frauds. The contracts, if made, were taken out of the statute of frauds by partial performance. They had been entirely performed by appellee and partially performed by appellants.
No error appearing, the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). The defendant claims title tq the automobile by purchase at the sale foreclosing its lien as an automobile repairman under the provisions of an act of the Legislature, approved February 27, 1919, giving to automobile repairmen and other persons a lien on the production of their labor when any article is repaired by them, and for material furnished, and providing for the enforcement of such lien. The sections of the act are 6866-6874 of Crawford & Moses’ Digest. It will be noted that this act was passed by the Legislature before the sale of the automobile involved in this case was made and the chattel mortgage given to the seller to secure a payment of the purchase price.
Statutes giving liens for services in repairing personal property and purporting to make such liens superior to all others have been construed to create liens superior to previous chattel mortgages, even though the lien claimant has knowledge of the prior mortgage. Such statutes have been held to be constitutional, provided the prior chattel mortgage was taken subsequently to the passage of the statute, and the mortgagor has been allowed to keep possession of the mortgaged chattel. The reason is that, in taking such a mortgage, the mortgagee does so with the knowledge of the lien given by the statute, and by leaving the property, such as an automobile, in the hands of the mortgagor, impliedly consents that he shall make a contract for repairs which are necessary to preserve the property and which enhance its value. Corning Motor Co. v. White, 173 Ark. 144, 293 S. W. 46; Weber Imp. & Auto Co. v. Pearson, 132 Ark. 101, 200 S. W. 273, L. R. A. 1918B, 327; Crucible Steel Co. v. Polack Tyre & Rubber Co, 92 N. J. 221, 104 Atl. 324; Cattell v. Rehrer, 94 N. J. 292, 119 Atl. 384; and New Britain Real Est. & Title Co. v. Collington, 102 Conn. 652, 129 Atl. 780.
The right to a mechanic’s lien being entirely statutory, not only the right itself but the method of enforcing it must depend upon the statute. The statute was complied with in foreclosing the lien, and the question which has the superior lien depends upon the construction to be placed upon the statute. Section 6874 of the Digest provides that the lien shall take precedence over and be superior to any mortgage. It reads as follows:
“The lien herein provided for shall take precedence over and be superior to any mortgage or other obligation attaching against said property in all cases where the holder of such mortgage or other obligation shall permit such property to remain in the possession and he used by the person owing and bound for the amount thereof; provided, that the lien herein provided for shall be subject to the lien of a vendor of automobiles, trucks, tractors and all other motor-propelling conveyances retaining title therein for any claim for balance of purchase money due thereon; provided, further, that said lien shall not take precedence over a bona fide purchaser for value of any such automobile, truck, tractor and other motor-propelled conveyances without notice, either actual or constructive. ’ ’
It is the contention of counsel for appellant that a chattel mortgage given for all or a part of the purchase money of an automobile places the seller of the automobile in the same class under the statute as a seller retaining title for the balance of the purchase money.. We do not so construe the statute. It will be noted that the section quoted expressively reads that the lien provided for shall take precedence over and be superior to any mortgage attaching against the property in all cases where the holder of the mortgage shall permit the property to remain in the possession of'and to he used by the purchaser. It is true that the section contains a proviso that the lien shall be subject to the lien of a vendor of automobiles retaining title for any claim for the balance of the purchase money. If the framers of the law intended to place mortgagees, where a chattel mortgage is given for the purchase money, in the same class as conditional sellers, they should have so expressed themselves in the statute. The statute expressly states that the lien of the repairmen shall be superior to any mortgage. This would include mortgages given for the purchase money as well as other mortgages. The proviso excepts sellers of automobiles retaining title for any balance of purchase money. This language has often been construed by the courts, and has a definite and settled meaning. The lawmakers, having seen fit to except the seller of an automobile who retains title in himself until the purchase price is paid, and having failed to include holders of chattel mortgages for the purchase price in the exception, the courts are powerless to do so. It is our duty to construe the statute according to its terms, and, when we give the language used, its ordinary meaning, we are of the opinion that holders of chattel mortgages given for the purchase price are not the same as sellers who retain title to the automobile until the purchase price is paid.
Therefore the circuit court correctly found the issues in favor of the defendant, and dismissed the* complaint of the plaintiff. It follows that the judgment must be affirmed. | [
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Hart, C. J.
This is an appeal by common carrier to reverse a judgment against it for $100 in favor of a shipper for damage to an interstate shipment of peaches.
The record shows that, on the 28th day of July, 1925, the hi. HoilW Company delivered to the St. Louis-San Francisco Hallway Company at Budy, .Aikansas, a car of peaches consigned to itself at St. Louis, Missouri. On July 29, 1925, before the car of peaches arrived at St. Louis, it was diverted to Fred Brennison & Son, Buffalo, New York. The peaches arrived at their destination and were delivered to the consignee on August 1, 1925. Damage on account of their decayed condition amounted to more than $100.
As a part of its defense the defendant set forth the provisions- of what is commonly called a uniform bill of lading, one provision of which is that claims for loss or damage must be made in writing to the originating or delivering carrier, issuing the bill of lading, within six months after delivery of the property, with the proviso “that, if such loss, damage or injury was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.’’
This provision in the bill of lading was inserted pursuant to an amendment of the Interstate Commerce Act, which, as construed in Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, reads as follows:
“Provided, further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise, a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: provided, however, that if the- loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”
The present suit was not instituted until more than six months after delivery of the property to the carrier, and the plaintiff did not show compliance with the bill of lading requiring written notice of its claim to the carrier. On the other hand, plaintiff relied upon the negligence of the carrier in failing to properly refrigerate the car of peaches as a ground for recovery. In construing this provision, the Supreme Court of the United States has, in effect, held that a claimant must either allege and prove notice as required by the act of Congress and the filing of a claim, or must allege and prove negligence as a fact. Where the plaintiff brings suit under the proviso and alleges negligence on the part of the carrier in transit, the burden of proof is upon him to prove negligence as alleged.
In Barrett v. Van Pelt, 268 U. S. 85, 45 S. Ct. 437, in the construction of this provision concerning the duty of the carrier to issue receipts or hills of lading for interstate freight and their liability for loss or damage, it was held that, in an action ag’ainst an express company for damages due to delay, the shipper not having given notice and filed a claim as required by the uniform express receipt, must prove that the delay Avas due to the carrier’s carelessness or negligence. In discussing the question, the court said:
“It must be assumed that Congress intended to make the classification on a reasonable basis,, having regard to considerations deemed sufficient to justify exceptions to the rule. The element of carelessness or negligence is important. There are such differences between liability without fault and that resulting from negligence that Congress, upon good reasons, might permit carriers to require notice and filing of claim within the specified times where the carrier is Avithout fault, and forbid such a requirement in the cases' referred to where the loss results from the carrier’s negligence. Notice and filing of claims warns the carrier that there may be need to make investigations Avhich otherwise might not appear to be necessary; and, if notice of claim is given and filing of claim is made Avithin a reasonable time, it serves to enable the carrier to take timelA7- action to discover and presence the evidence on Avhich depends a determina tion of the merits of the demand. As to claims for damages not due to negligence, in the absence of notice, there may be no reason for anticipating demand or to investigate to determine the fact or extent of liability. But, as to damages resulting from carelessness or negligence, it reasonably may be thought that the carrier has such knowledge of the facts or has such reason to'expect claim for compensation to be made against it, that the carrier should, not be permitted to exact such notice and filing of claim as a condition precedent to recovery. No other basis of classification seems as well supported in reason as the element of carelessness or negligence.”
Again, in C. & O. Ry. Co. v. Thompson Manufacturing Co., 270 U. S. 416, 46 S. Ct. 318, in a precisely analogous case, it was held that the burden of proof is on the shipper to establish negligence within the meaning of the proviso. In that case it was also held that the second or last proviso relieves the shipper from filing notice of his claim, where damage to goods in transit is due to the carrier’s negligence, only when the damage is due to the carrier’s negligence in fact.
In the case at bar the plaintiff brought this action against the railway company to recover damages which it claims to have suffered as a consequence of the negligence of the defendant company and its connecting carriers in transporting for it a carload of peaches from Rudy, Arkansas, to Buffalo, New York. Inasmuch as the plaintiff alleged negligence under the terms of the proviso, it was incumbent upon it to prove negligence as a fact.
In this inspect it is earnestly insisted by counsel for the defendant that there is a total lack of proof. It is true that the evidence adduced for the defendant tended to show that the car of peaches was promptly carried from the point of delivery to its destination, where it was delivered to the consignee, and that the car was kept properly refrigerated during transit and up to the time that it was delivered to the consignee. It does not make any difference that we might believe that the decided preponderance of the evidence was in fa-vor of the defendant on this branch of the case; for, under our settled rules of practice, the verdict must be tested by the evidence for the plaintiff. Therefore, if there is any evidence of a substantial character tending to prove negligence in fact to properly refrigerate the car on the part of the defendant, while the peaches were in transit, it will be our duty to uphold the verdict of the jury.
As we have already seen,, the present suit was instituted by the plaintiff on the ground that the defendant failed to keep the car in which the peaches were shipped properly refrigerated during transit. On this point the plaintiff introduced as a witness an experienced grader, who testified that he graded the car of peaches and supervised the loading of the car in question. He testified that the car contained all No. 1 peaches and that there were no soft ones among them. The peaches .were all sound and firm. He said that he saw the men pack and load the peaches in the car, and that all the peaches that went into the car were good. A salesman for the consignee inspected the peaches as soon as they arrived at their destination, and found the quality of the peaches to be good. A few of the baskets were found broken, and the peaches in them were considerably bruised. This witness had had twenty-five years’ experience in handling peaches, and, basing his opinion upon the condition in which he found the peaches, he would say that the car had not been properly refrigerated during transit. The amount of damage to the peaches was also established by the plaintiff. Accepting the testimony as representing the facts in the case, the jury was warranted in finding that the defendant was negligent in failing to keep the car properly refrigerated during transit. The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony. Hence, when the evidence for the plaintiff is viewed in the light most favorable to it, the jury was warranted in finding as a fact that the defendant was negligent in not keeping the car properly refrigerated during transit. American Railway Express Co. v. H. Rouw Co., 173 Ark. 82; Mo. Pac. Ry. Co. v. Bell, 163 Ark. 284, 259 S. W. 745; C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 102, 227 S. W. 12; and Mo. Pac. Ry. Co. v. Wellborn & Walls, 170 Ark. 469, 280 S. W. 18.
Counsel for the defendant also asks for a reversal of the judgment on account of alleged errors of the court in instructing the jury. We do not deem it necessary to set forth the instructions or to review them. It is sufficient to say that the respective theories of the parties to this lawsuit were correctly submitted to the jury under the principles of law decided in the cases last above cited.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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McHaney, J.
On September 24, 1943, appellee was a passenger on appellant’s bus from Brinkley to Little Bock. On arrival at the bus terminal in Little Bock, she entered the check or parcel room and checked her hand bag, containing valuable articles of clothing and other personal belongings, for safe keeping, and was given a duplicate parcel or baggage check, for which she paid ten cents. Some two or three hours later she returned, presented said check, demanded her baggage, and same was not delivered to her. These facts were stipulated. The check is attached to the stipulation and on the face of it provides in part as follows: “10 cents for each 24 hours or fraction thereof. Maximum charge for 30 days $1.00. The carrier will not be responsible for loss, damage or detention of articles left in storage for any amount in excess of $25.00.” Appellee testified that she did not read the printed matter on the face of the check and that her attention was not called to it by appellant’s agent or anyone else. Appellant’s agent testified that the porter just handed out too many bags to some person, in explanation of the failure to deliver appellee her bag.
On a suit by appellee to recover the value of her bag and its contents and for damages for inconvenience, etc., on account of its loss, appellant tendered into court the sum of $25 in full settlement of its liability, which was refused, and a trial to the court sitting as a jury resulted in a judgment against appellant for $160.50 as the value thereof and for $30 as damages. The case is here on appeal.
First it may be said that there is no question here of a loss in transportation. The baggage was not checked for transportation, but for safe keeping, for which a nominal charge of ten cents was made regardless of the value of the parcel, whether $5 or $500, the charge is the same, ten cents per day with a maximum charge of $1 .for 30 days, and said check further provides that “parcels remaining on hand for more than 30 days may be sold for charges.” Nor is there any question here of a minimum charge for a certain valuation and the option to pay a higher rate on a declaration of higher value, such as are frequently involved in carrier contracts for transportation as freight or as baggage of a passenger, and in warehouse receipts for goods held in storage. Such a warehouse receipt was involved in the case of Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S. W. 249, 23 L. R. A., N. S., 1205, where it was held that a stipulation therein that the. compress company is “not responsible for loss by fire, — ” should not be construed to exempt it from liability for loss by fire caused by its own negligence. That was a case where the company sought complete exemption from liability, even for its own negligence. In Central Storage Warehouse Co. v. Pickering, 114 Ohio St. 76, 142 A. L. R. 768, 151 N. E. 39, it was held that a stipulation in the warehouse receipt referred to as “4-A,” limiting responsibility of the company to $25 for any article listed on the receipt, “unless the value thereof is made known at the time of storing, noted on this receipt, and a higher storage rate paid therefor,” is a valid stipulation. It was held in that case that such a receipt, to quote a headnote in A. L, R., “becomes a contract between the parties, and the person receiving and holding such receipt, even though he does not sign the same or otherwise expressly assent to its terms and conditions, is chargeable with knowledge of such terms and conditions, and is bound by same provided same be not contrary to the provisions of those sections and other related sections (of the Uniform Warehouse Receipt Act adopted in Ohio in 1909), and further provided that such terms and conditions do not in any wise impair the obligation of the warehouseman ‘to exercise that degree of care in the safekeeping of the goods intrusted to him which a reasonably careful man would exercise in regard to similar goods of liis. own. ’ ” It was held that these provisos had not been violated, and the court, speaking through Chief Justice Marshall, said: “There was therefore no question of responsibility for negligence. The only question before the court is as to the measure of that responsibility. The company being bound to use care, the provisions of section 4-A fixed the measure of that responsibility,, and the judgment should therefore have been in the sum of $25.” This case is not cited or quoted from for the purpose of approval as to warehouse receipts, but for the purpose of illustrating the differences between such receipts, in which a provision is made for the declaration of a higher value and payment of a higher rate, and the case at bar where only a nominal, flat charge is made for the temporary safekeeping of parcels, regardless of their value, providéd primarily for the convenience of passengers. It is authority, however, for the proposition that the stipulation on appellee’s check, above quoted, became a contract between her and appellant, even though she did not read same, or have her attention called to it, or otherwise expressly assent thereto, as she is chargeable with knowledge of its terms and conditions, and is bound by same.
Such is the effect of the holding of this court in Missouri Pacific R. R. Co. v. Fuqua, 150 Ark. 145, 233 S. W. 926. There, Fuqua was a passenger on one of the company’s trains into Little Rock, en route to Oklahoma; that he had to spend the night here to get a train to Oklahoma; that he checked his suitcase in the parcel room at the depot, paying ten cents therefor, and received a parcel stub check containing the exact stipulation limiting liability to $25, as here involved. The depot was destroyed that night by accidental fire, as was also Fuqua’s suitcase and contents. He sued to recover their value and the company pleaded said stipulation of $25 as the maximum amount to be recovered, if any. Negligence of the company was alleged because of the failure of the company’s employees in the parcel room to remove said suitcase to a safe place, and the evidence as to negligence as alleged was held to be sufficient to go to the jury. This court reversed the judgment of the trial court on a verdict for $150 and reduced it to $25, and said: “It is also contended by appellant that the court committed error in permitting a recovery in excess of $25. Appellee contends otherwise, insisting, first, that the contract makes no attempt to exempt appellant or limit its liability by reason of negligence; second, that appellant could not limit its liability growing out of its own negligence.
“(a) We think the contract broad enough to limit appellant’s liability on any account. The language of the contract is: ‘ The carrier will not be responsible for loss, damage or detention of articles left in storage for any amount in excess of $25.’ It is broader than the language used in Gulf Express Co. v. Harrington, 90 Ark. 256, 119 S. W. 249, 23 L. R. A., N. S., 1205. ’ ’
In that case Fuqua testified, without contradiction, that no questions were asked him as to the contents of the suitcase and that nothing was said as to the amount he would receive in case it was lost. An-examination of the briefs in that case and of the abstract of the evidence therein is convincing that Fuqua did not read the stipulation on the check, nor was his attention called to it. But in answer to his contention that the company, by said stipulation, did not attempt to limit its liability by reason of negligence, and that it could not do so where the loss was caused by its own negligence, this court said: “We think the contract broad enough to limit appellant’s liability on any account. ’ ’ So, this court held the stipulation to be a contract,' even though it was not called to the attention of Fuqua.
To the same effect is the case of Noyes v. Hines, 220 Ill. App. 409, annotated in 27 A. L. R. 158, with our own Fuqua case. It was there said: “We think the weight of authority is to the effect that when a person accepts a ticket from„a bailee in receipt for a parcel deposited with him, he is bound by the terms and conditions of that receipt in so far as he has reasonable notice of the same, and in so far as the same are reasonable. In this case it does not seem to be unreasonable to hold that a person depositing luggage or similar articles temporarily, in the manner as shown by the evidence, and for a consideration of only 10 cents to be paid by him, would expect that there would be some limitation placed upon, the value of the article so deposited. If this were not so, then the defendant would have been bound if plaintiff had deposited with his suitcase $100,000 worth of diamonds or other articles of similar great value. The condition, therefore, in itself, seems to have been a reasonable one. The notice as to the condition would also seem to have been reasonable. The defendant had a right to assume that the plaintiff could read the English language; had also a right to assume that the plaintiff would take notice that by reason of the very small charge he could not expect an unlimited liability. ’ ’
Whether the weight of authority is as stated in Noyes v. Hines, supra, we do not now determine. We do know there are a number of cases to the contrary. See 27 A. L. R., note p. 159. In 10 Am. Jur., § 189, it is said: ‘ ‘ The passenger or owner of the baggage delivered to' the carrier in its parcel room is presumed to have knowledge of a condition or stipulation printed on the duplicate parcel check, limiting the carrier’s liability to a sum stated thereon, and he is bound by such a provision. However, it has been held in some decisions that in the absence of proof of express knowledge on the part of the passenger of the provisions of a clause limiting liability, he is not bound thereby.” For authority for the first statement, the author cites Terry v. Southern R. Co., 81 S. C. 279, 62 S. E. 249, 18 L. R. A., N. S., 295, and it supports the statement. Cases are also cited to support the second statement.
It is admitted that appellant’s agent was negligent in delivering appellee’s baggage to another. ¡But for that negligence, the loss would not have occurred. However, the purpose of the stipulation was to limit its liability for negligence, not to exempt it entirely, and the language used was “broad enough to limit appellant’s liability on any account.” Fuqua case, supra.
Appellee cites K. C. S. Rd. Co. v. Skinner, 88 Ark. 189, 113 S. W. 1019, and Strickland v. Mo. Pac. Trans. Co., 195 Ark. 950, 115 S. W. 2d 830, to support her right to recover. In neither of these cases was there any question of the limitation of liability involved and both concerned baggage lost in shipment, so they are not in point here.
We have carefully reconsidered our Fuqua case, and, while we find it contrary to some very respectable authority, we also find it supported,by other very respectable authority. It has been the law in this state for a period of 24 years, and we decline at this time to overrule it.
The judgment will be reduced to $25 with interest to the date of tender and appellee will be charged with the costs that have accrued since the date of the tender.
Robins, J., dissents. | [
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McFaddin, J.
The issues presented'by this appeal are (1) whether the County Salary Act of Clay County effects an unlawful diversion of school funds; and (2) if so, can the funds so diverted be recovered.
Initiated Act No. 1 of Clay county was adopted at the general election of 1934. It is entitled “An Act to Fix the Salaries and Expenses of County Officials, and to Fix the Manner in Which Such Compensation and Salaries Shall he Paid, and to Reduce the Cost of County Government, and for Other Purposes.” The act consists of 15 sections. Section 1 states that after January 1,1935, the officials of Clay county shall receive only the compensation provided by the act. Sections 2 to 7, inclusive, fix the compensation, respectively, of county judge, circuit clerk, county clerk, sheriff and collector, assessor, and treasurer. Section 8 concerns payment of salaries. Section 9 provides that the officials shall charge and collect for the use and benefit of the county the same fees, costs and commissions fixed by law for such services,' and said officials shall make regular reports to the county treasurer of all such collections. Sections 10 and 11 concern the duties of the officials as to the record of fees, costs and commissions earned. Section 12 concerns purchases of supplies, etc. Section 13 here assailed as unconstitutional reads:
“After all salaries and expense claims have been paid as provided in this act, the surplus and savings resulting from the enactment of this law, if any, at the end of the fiscal year, shall be held by the county treasurer, and to be known and designated as a sinking fund, to be used only for the purpose of paying and retiring outstanding Clay county general warrants in the order of their date of issue, and after all outstanding Clay county general warrants are paid in full, then all remaining surplus or additions thereto, shall be transferred to the county general fund.”
Section 14 declares that the various provisions and sections of the act are separable, and the unconstitutionality of any provision or section shall not invalidate the remainder of the act. Section 15 is the repeal of all conflicting laws.
From the effective date of the act until the filing of this suit in the chancery court, the surplus, each year, of fees, costs and commissions earned over the salaries due under the act, had been passed to the sinking fund and county general fund as provided in § 13 of the act.' On November 27, 1943, appellees, as the members of the county board of education of Clay county, and also one appellee as a taxpayer, filed this suit in the chancery court against the county judge, treasurer, and sheriff of ' Clay county, alleging that from 1939 to and including 1943, a surplus of several thousand dollars of school funds (after paying the pro rata share of expenses) had been diverted from the school fund under § 13 of the act. The exhibits to the complaint gave the detailed figures. The complaint alleged that this transfer of the unexpended balance each year from the various school funds to the sinking fund and county general fund under § 13 of the act, was a diversion of school funds in violation of Art. 16, § 11, of the Constitution of Arkansas, and also of Amendment No. 11 to the Constitution.
The relief prayed was: (1) a decree enjoining future transfer, and (2) a judgment against the county general fund for the amounts so alleged to have been diverted in the previous years, 1939' to 1942, inclusive. The controverted fund for 1943 was held by a temporary restraining order made shortly' after the filing of the suit. On final hearing the chancery court held that payments in 1939 were diversions, but also held that recovery thereof was barred by limitations. As to all years subsequent to 1939, the court granted the plaintiffs (appellees) all of the relief prayed. The correctness of the decree is challenged in this appeal, presenting the questions herein discussed.
I. Appellants contention is stated by them as follows: “There is no diversion of school funds in permitting an individual officer' to collect out of school tax moneys his commissions for his services in handling the fund. Initiated Act No. 1 retains this recognized commission or fee basis as the standard of charge for the services rendered in collecting _ and handling the school funds. That part of the school funds which is deducted for the fees charged loses its identity as school tax money ivhen it is collected by the officer. The fact that under the salary act a part of the fees may be taken from the officer and transferred to the county general fund does not constitute a diversion of school taxes. The case of County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2, is fundamentally unsound and should be overruled. The rule laid down by the Austin case has actually been disregarded in subsequent decisions of this court.”
Appellants thus make a direct attack on the decision in Lonoke County v. Austin, 169 Ark. 436, 276 S. W. 2, (which we will hereinafter refer to as the Austin case) and claim that the case has been so weakened by subsequent eases that it should now he overruled. The cases cited by the appellants as weakening the Austin case are: Marable v. State, 175 Ark. 589, 2 S. W. 2d 690; Page v. McCuing, 201 Ark. 890, 148 S. W. 2d 308; and Howard v. Stafford, 203 Ark. 736, 158 S. W. 2d 929. Appellants’ contentions therefore necessitate (1) a review of the Austin case; and (2) a study of the cases said to weaken it.
The striking similarity of the case at bar to the Austin case may be demonstrated as follows:
(a) The same type of suit is filed here as in the Austin case.
(b) In the Austin case the county salaries were fixed by special act of the legislature passed prior to Amendment No. 14 to the Constitution. Here the salaries are fixed by initiated County Salary Act adopted under Amendment No. 7 to the Constitution.
(c) In the Austin case the money was paid from the fees, costs and commissions direct to the county general fund under § 17 of the act there involved. Here the unexpended balance of each such fund is ultimately transferred to the sinking fund and then to the county general fund under § 13 of the act here involved.
(d) In the Austin case it was shown that after the school fund had paid its pro rata part of the commissions, etc., there remained a balance to the credit of the school fund. Similar facts are alleged and shown here.
(e) In the Austin case it was alleged that to take the unexpended balance from the school fund would be a diversion in violation of Art. 16, § 11, of the Constitution, and also of Amendment No. 11 (there referred to as Amendment No. 9). The same allegations are contained in the case at bar.
With these points of similarity between the two cases, we further point out that in the Austin case it was held that the attempt to take the unexpended balance from the school fund was a diversion of school money contrary to the Constitution. There is no escape from the conclusion that the Austin case is ruling here; and with becoming candor appellants so admit, and ask that it be overruled.
The Austin case was decided in 1925, but the basic reasoning thereof is a quotation from Gray v. Matheny, decided in 1898, 66 Ark. 36, 48 'S. W. 678, and quoted in the Austin case as follows (169 Ark. 436, 276 S. W. 6):
“ ‘He (the treasurer) receives fees or commissions on funds paid into the treasury derived from taxation. Section 11, Art. 16, of the Constitution of Arkansas provides : . . . “ and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” Section 4 of the special act under consideration requires the officers to pay over in kind the funds received by them in excess of their salaries. We are of the opinion that § 7 of the act is obnoxious to the above provision of the Constitution, in so far as it requires the excess over the treasurer’s salary of eight hundred dollars, to be covered into the general revenue fund of the county. The excess of funds in the hands of the treasurer over his salary belongs to the county, and goes to the-respective funds for which the tax was levied and collected. . . .’ ”
Furthermore, in the Austin.case, we said:
“The legislature is wholly without power to command that fees, emoluments and commissions allowed for the collection and handling of school funds by the county officers be covered into the county general fund. 24 R. C. L., p. 592, §§ 45-48. See, also, Hartford v. West Hartford School Dist., 102 Ark. 261, 143 S. W. 895; Cost v. Shenault, 113 Ark. 19, 166 S. W. 740, Ann. Cas. 1916C, 483; Dickinson v. Edmondson, 120 Ark. 80, 178 S. W. 930, Add. Cas. 19170, 913. Such fees, emoluments and commissions, when paid into the treasury, should go to the credit of the school fund to be used for school purposes and no other. Section 17 is unconstitutional because it plainly authorizes a diversion of the school funds into the county general fund, where it could be used for other than school purposes.
“In the case of Dickinson v. Edmonson, supra, we quoted at page 89 from the Supreme Court of Washington in School District No. 20 of Spokane County v. Bryan, 51 Wash. 498, 99 Pac. 28, 20 L. R. A., N. S., 1033, as follows : ‘ To take from the one and give to the other by indirect methods that which was designed for a special purpose would defeat the whole scheme of the law, and open a way for the ultimate transposition of funds held under a most sacred trust. Courts have been zealous in protecting the money set apart for the maintenance of the free schools of the county. They have turned a deaf ear to every enticement, and frowned upon every attempt, however subtle, to evade the Constitution.’ The above language is exceedingly apposite here. ‘Constitutional requirements as to the preservation and inviolability of the public school funds must be observed by state legislatures, or their enactments will be invalid.’ 35 Cyc., p. 826. Certainly the school funds should not he made to bear more than its just proportion of the salaries of the collector and treasurer. ’ ’
In the Austin case we were considering the constitutionality of an act of the legislature claimed to be a diversion of school funds. Here we are considering an initiated county salary act. But this difference in the form of the legislation is immaterial. The same constitutional provision that prevented the legislature from diverting the trust funds of schools applies with equal force to the attempt of a county salary act to do the same thing. In the case at bar, one of the declared' purposes of the county salary act is to reduce the cost of county government. The saving is to he accomplished through economy, but not through diversion. The act cannot create a surplus in the county general fund at the expense of school funds, which are, in themselves, trust funds. What is saved the school funds through the reduction in the salary of county officials cannot, by the process here sought to be applied, he appropriated for county obligations, hut can only be expended for school purposes. As has been 'shown, the school fund is a trust fund, and as long as it retains this character it is subject to recovery.
The excellent briefs and earnestness of counsel for appellants in this case (and also in the case of Independence County v. Thompson, No. 7462, presenting the same questions, and this day decided,) have caused us to incorporate in this opinion a thorough review of the Austin case in response to the request that it should he overruled. We have concluded that the Austin case should not he overruled. We now reaffirm it. Without present ing an essay on stare decisis, or commenting on how other courts may overrule time-honored decisions, and without reviewing in greater detail the cases cited and discussed in the Austin case, it is sufficient to say that we adhere to it.
Neither do we believe that the cases, which appellants cite as weakening the Austin case, accomplish such a result as claimed. We have listed these cases heretofore; we now briefly discuss them:
(a) Marable v. State, 175 Ark. 589, 2 S. W. 2d 690, is cited. In the Marable case the county clerk was on a salary, but all fees and emoluments were to be collected by him and reported to the county treasurer. The county clerk received fees from the state for making the tax books, and he failed to report and remit these fees. When asked for the same, the county clerk replied that he received the money from the state, and for him to remit it to the county treasurer would be a diversion of state money to the county general fund. This court, in refusing to allow the county clerk to profit personally by any such defense, said:
“We do not think that this provision of the Constitution would be violated by requiring the county clerk to pay into the county treasury any portion of the fees allowed for making out the tax books. His act in paying the money into the county treasury would end his responsibility in the matter, and he would not be concerned about any diversion of the funds.”
It is evident that in the Marable case this court was refusing to allow an official to profit by claiming such defense. The official did not offer to return to the state the funds he received for making the tax books; he sought to keep the funds himself. The Marable case does not weaken the Austin case..
(b) Page v. McCuing, 201 Ark. 890, 148 S. W. 2d 308, is cited. The Page case held that the proceeds received by the state for the sale of tax-forfeited lands need not be delivered back to the counties and school districts in the proportion that the taxes of each such agency were levied originally on the particular land. The opinion states the reasons for such holding, in these words:
“It is our view that the state, in purchasing the property, takes it free of the liens which formerly attached. In other words, the state has not received moneys arising from a tax levied for one purpose and applied it to a different purpose. The reason is that the taxes were not paid, and therefore the money was not realized within the meaning of Art. 16, § 11, of our Constitution. ’ ’
Thus, the Page case, while not citing the Austin case, specifically shows the distinction between the two cases, and is in no sense a weakening of the Austin case.
(c) Howard v. Stafford, 203 Ark. 736, 158 S. W. 2d 929, is cited. The Howard case held that the Act No. 78 of 1941 (providing that county treasurers should be allowed as fees 2 per cent, on certain funds coming into their hands) did not repeal any county salary act or other law whereby county treasurers were on a salary; and that Act 78 meant that the treasurer’s office could claim the 2 per-cent, which would go to the treasurer if his salary was not-otherwise fixed bylaw. The opinion said:
“There is no provision in the act that intimates that all such fees accruing to the office shall he paid to the treasurers as salary or other compensation. We think what the legislature intended to do was to create a source of revenue accruing to such office from which the salary of the incumbent could be paid. ’ ’
If the treasurer’s office did not receive the salary, certainly no other person nor fund could claim it. So the Howard case in no sense weakens the Austin case.
We, therefore, adhere in all things to the ruling in the Austin case.
II. Appellants next contend that § 11579 of Pope’s Digest is unconstitutional. This argument was evidently placed in the brief with the idea in mind that if this court should overrule the Austin case, this § 11579 of Pope’s Digest could not be used to sustain the lower court. Having decided to adhere to the Austin case, it becomes unnecessary for us to consider § 11579 of Pope’s Digest; so we pretermit any discussion of this section.
III. Appellants express their next contention in this language: “Appellees cannot question the constitutionality of Initiated Act No. 1 of Clay county. The funds which appellees claim exist only by reason of Initiated Act No. 1 which preserves the statutory fees but provides that the excess over the salaries and expenses of the county collector and county treasurer shall become a part of the county general fund. The appellees cannot rely upon Act No. 1 to create the funds claimed accruing from fees which would otherwise go to the officers individually and at the same time attach the constitutionality of the act, thereby defeating the express intent of the electors.”
The answers to this contention are (1) that the appellees are not attacking the entire Initiated Act No. 1, but are attacking only that part of the act that constitutes a diversion of school funds; and (2) that the tax is not levied by the salary act, hut by the means fixed by the Constitution, i.e., the quorum or levying court on vote of the electors in the school districts. The general rule is that the acceptance of benefits under a statute gen eral! v precludes an attack on the statute; but that rule has numerous exceptions, one of which is that where the provisions of the statute are separable, attack may be made on a separate part claimed to he unconstitutional. Section 14 of the county salary act here involved provides for separability. The rule of separability may be invoked even in the absence of such a section, if a workable act remains with the invalid portions stricken. We conclude that with so much of § 13 of the Clay County Salary Act as affects school funds, stricken as violative of Art. 16, § 11, of the Constitution, the remaining parts make a workable act.
In 11 Am. Juris. 770, et seq., many instances are listed showing the exceptions to the general rule that the acceptance of benefits under a statute precludes an attack; arid in 16 C. J. S. 195 it is stated::
“The fact that a taxpayer, by his acts or omissions, might he precluded from'attacking a statute will not pre elude him from attacking a tax under another statute, or an independent and separable provision of the same statute.”
The appellees are seeking to prevent a diversion of school funds, and as citizens and taxpayers they have this right. See Samples v. Grady, ante, p. 724, 182 S. W. 2d 875.
We therefore hold against the appellants’ contention on this point'.
IV. Recovery for years prior to 1943. The appellants say: “Even if this court should follow the Austin case, no judgment can be rendered in this cause for sums transferred to the county general fund for 1942 or prior years. The county court has exclusive jurisdiction of claims against Clay county, which is not even a party to this suit. The maximum relief which appellees can have here is injunctive relief as to the future and the apportionment of the excess fees for the year 1943 which have been impounded in this suit. The excess fees transferred to the county general fund have long since been spent by the county. Appellees cannot now compel the repayment of these sums out of current county revenues. Amendment No. 10 prohibits any recovery in this case except as to funds actually impounded herein.”
Without considering the fact that Clay county is not a party to this suit, we uphold the appellants’ contention because of Amendment No. 10 to the Arkansas Constitution, and our holdings involving that amendment. It was shown in this case the county general fund was exhausted for each of the years of 1940, 1941 and 1942. The diversion in 1943 was prevented by a temporary restraining order. The appellees have no right to claim moneys accruing to the county general fund in 1944 and subsequent years for the diverted funds of 1940,1941 and 1942. The reason for this holding is expressed in the following cases: Crawford County v. Maxey, 196 Ark. 361, 118 S. W. 2d 257; Cook v. Shackleford, 192 Ark. 44, 90 S. W. 2d 216; Skinner & Kennedy Stationery Company v. Crawford County, 190 Ark. 883, 82 S. W. 2d 22; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30.
One of the purposes of Amendment No. 10 to the Arkansas Constitution was to keep counties from paying claims of previous years out of current funds, where such payments would be in. excess of the revenues collected for the year in which the expenses were incurred. The failure of any citizen or taxpayer to take steps to restrain the diversion of the school funds in 1940, 1941 and 1942 resulted in the loss of the money from the school funds to the county general fund. The money has long since been expended and cannot be traced because the county general revenues were depleted at the end of each of the years. To allow the appellees now to recover back the money from the county general fund would be to allow the diversion of tax money collected for the county general fund to the school fund, for which fund it was never levied.
To summarize and conclude, we hold:
(1) That § 13 of the Clay County Salary Act is' unconstitutional in so far as any attempted transfer of school funds is concerned.
(2) All of the decrees of the chancery court in this cause is affirmed, except that part which reads:
“. . . that the plaintiffs do have and recover of and from the Clay county general fund of Clay county, Arkansas, the sum of $5,044.08, the same being the amount of school funds diverted to the Clay county general fund in excess of the salary and office expenses of said treasurer and collector respectively for the years 1940, 1941 and 1942 from the school funds collected and received by said officers.
‘ ‘ The court further finds that the defendants should pay all costs herein out of the Clay county general fund, and that the plaintiffs may have such process as may be authorized by law for the collection of said judgment.”
The quoted part of the decree is reversed and stricken; and, as so modified, the remaining portion of the decree is in all things affirmed. The costs of the lower court and of this court are to he paid one-half by appellants and one-half by appellees. | [
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Griffin Smith, Chief Justice.
Bert L. Connor and his wife, Vicie, sought to enjoin D. P. and R. E. Thornton from operating a sawmill on lands without the corporate limits of Hot Springs, an allegation being that because of proximity to their residence, value of the property and its utility as a home were impaired. The prayer was for abatement of the so-called nuisance, and for $2,000 to compensate damages. The complaint was dismissed on motion when the Court found as a matter of law that the plaintiffs were of a class, and that rights had been previously adjudicated.
Facts were that in 1942 and 1943 suits by parties then situated somewhat as appellants were when this action was brought resulted in decisions favorable to the Thorntons.
In the Eddy-Thornton case it was sought to restrain erection and use of the mill because, as the plaintiffs alleged, its operation would necessarily be a nuisance. We sustained the Court !s holding that a sawmill is not a nuisance per se.
In August, 1943, Ted Wynia and other home owners in the affected area sued for sums ranging from $1,000 to $3,000, claiming that the mill (steam-driven) caused cinders, soot, and other substances to settle upon property of the plaintiffs; also that noise and vibration prevented peaceful enjoyment of the several homes.
In this action Bert L. and Vicie Connor were witnesses whose testimony was favorable to the plaintiffs. The jury’s verdict, upon which judgment was rendered, was for the defendants. There was no appeal.
In dismissing the complaint it was expressly found that the Wynia-Thornton judgment bound the plaintiffs in this proceeding on the theory of virtual representation —the cause was res judicata.
The class suit is an exception to the general rule in equity that all persons materially interested in the subject matter must be made parties in order that complete justice be done. See Story, Equity Pleadings, 10th ed., §§ 72, 94, 97 (1892). Bather than require all of a group to be brought into court, the effect and purpose of a class suit is to adjudicate the interests of absent parties through the representative who sues.
The question here is whether, in fact, the Circuit Court action was of a character sufficient in purpose and scope to reasonably inform the Connors that final determination of Thorntons’ rights to operate the mill would be determined by the judgment to he rendered.
Appellees insist that because the Connors testified in the damage suit that they suffered inconveniences, it was their duty to join in that cause or be barred unless there were changed circumstances giving rise to a new cause of action.
It cannot be seriously contended that the decree in Eddy v. Thornton is res judicata. The mill had not then been erected. The only thing decided was that a sawmill is not a nuisance per se.
We think the Court erred in applying the virtual representation doctrine. No decision of ours dealing with a like matter has gone to the extent contended for by appellees.
American Jurisprudence, Vol. 30, § 228, p. 962 (after stating the general rule to be that no person is bound by judgment except those who are parties or who stand in privity with others who are parties), cites cases collected in the eleventh footnote as authority for the proposition that when one is virtually represented by record parties, a judgment in favor of the actual plaintiff representing a general class is res judicata as to the rights of others in that class. The fiction was. one of common law cognizance. As was said in Gavin v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776, there is a presumption that parties joined may be depended upon to bring forward the entire merits of the controversy as a protection to their own interests.
Determination of what is and what is not a class suit frequently presents difficulties. We are cited to McCarroll, Commissioner, v. Farrar, 199 Ark. 320, 134 S. W. 2d 561, where the principle stated in 15 Ruling Case Law, § 429, is quoted with approval — that a final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon matters within its jurisdiction, is conclusive of the rights of the- parties or their privies in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit.
' It will be observed that those bound under this rule are “parties or their privies”; but even so, there is frequently a broader application. Contra, Lightle v. Kirby, 194 Ark. 535, 108 S. W. 2d 896. We have not the same situation here that was presented in the McCarroll-Farrar appeal where constitutionality of a, statute was involved,
The Wynia suit, insofar as it concerned those adversely affected by operation of the mill, did not purport to be for the benefit of a class. In the very nature of things, there would have been difficulty in prosecuting it as such, because values of the several properties were different, distances from homes to the mill varied, and damage would probably be in ratio to proximity of the property to the mill, with consideration f'or investments of those who complained. There was no prayer in Circuit Court that the Thorntons be enjoined; only that they respond in damages.
A holding in Hansberry et al. v. Lee et al., 311 U. S. 32, 61 S. Ct. 115, 85 L. Ed. 22, 132 A. L. R. 741, is that “where the interest of persons not joined as parties are of the same class as the interests of those who are joined and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a common interest, the court will proceed to a decree.”
A question in the Hansberry case was whether the Fifth and Fourteenth Amendment to the Federal Constitution were transgressed by a state court holding that certain persons were bound by the judgment below, although they were not made parties to the proceeding.” “One is not,” says the opinion, “bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. A judgment rendered in such circumstances is not entitled to the full faith and credit which the Constitution . . . prescribes, . . . and judicial action in enforcing it against the person or property of the absent party is not that due process which the Fifth and Fourteenth Amendment require.”
It was then said that to these general rules there is a recognized exception that, to an extent not precisely defined by judicial opinion, the judgment in a “class” or “representative” suit, to which some members of the class are parties, may bind members of the class or those represented who were not made parties to it.
The following pertinent comment was made by Mr. Justice Stone (now Chief Justice) who wrote the opinion of the Court:
“The class suit was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable. Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation'of the issues in which all have a common interest, the court will proceed to a decree.”
While it is unfortunate that a decree involving persons who have for the third time been required to defend must be set aside, we are not willing to say that plaintiffs in the Circuit Court action (which was not designated a class suit) were acting for all property owners in the affected area. It is in evidence that a single lot and street separated appellants and the mill.
Because the complaint was dismissed on motion, the decree must be reversed, with directions to proceed to trial.
Mr. Justice Frank C. Smith dissents.
Eddy v. Thornton, 205 Ark. 843, 170 S. W. 2d 995.
Plaintiffs in the Circuit Court action of 1943 included L. C. Eddy, who had unsuccessfully prosecuted the chancery action.
Michigan Law Review, vol. 39, No. 5. | [
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Griffin Smith, Chief Justice.
Eureka Coal Company is a bankrupt, with Oscar T. Brown as trustee. N. B. Hames, (miner) alleging injuries by the fall of a rock, sued for $25,000 and recovered $750.
Appellant thinks (a) the Court erred in overruling its demurrer to the amended complaint, and (b) that it was entitled to a directed verdict.
The plaintiff’s allegations and proof w.ere that the nature of his work as a miner required installation of “props.” He asked Rowe, his immediate superior, to supply them.
The trustee states the case this way: “Appellee encountered a dangerous part of the roof. He believed [a certain rock] was loose. He was Geary of it’ and thought it was unsafe. Yet, after he had determined it should be timbered and after he had asked for additional timbers and had been told by the foreman that there were no more, he continued working under the rock, and while so working it fell.”-
The defense would be good if contributory negligence or assumed risk could be pleaded; but neither defense is available if Rowe, while acting within the scope of his employment, failed to supply necessary timbers. Southern Anthracite Coal Mining Company v. Rice, 156 Ark. 94, 245 S. W. 805.
It is said that the amended complaint does not allege a willful violation of the mandatory statute of April 4, 1893. Pope’s Digest, § 93-27.
In determining whether conduct is willful or merely passive,, (if a particular thing is directed by statute) an understanding of the end sought to be served must first be had. This is to be considered in its relation to facts of the transaction and all circumstances attending the event.
Expressed purpose of Act 125 of 1893 is to provide for the health and safety of persons employed in mines. The mandate is that those in charge of operations shall at all times keep on hand the necessary timbers. Here there is no evidence contradicting facts stated by appellee. Full effect of Hames ’ testimony is that he asked for the timbers through fear of a cave-in, and they were not supplied. It may be they were not available; but that does not satisfy the law. Prudence upon Rowe’s part and appreciation of the statutory obligation required that if safety needs could not be met, work should have been suspended until a more propitious occasion.
Clearly the General Assembly recognized that underground mining was attended by physical hazards not common to many other occupations, and it sought to compel observance of certain precautions. By withholding the pleas of contributory negligence and assumed risk from those who failed to provide timbers, it was believed that “chance-taking” would be eliminated, or at least such conduct would be circumscribed.
The word “willful,” in the sense insisted upon by appellant, does not appear in the statute; but, conceding it is implied, we arrive at the same end when the proof shows a refusal of the foreman to comply with the demand. It is not a satisfactory answer to say that the timbers were not available, and to make no other explanation. It was the Company’s duty to have them, and there is no showing of impossibility or the intervention of an act of God
Affirmed.
“The owner, agent or operator of any mine shall keep a sufficient amount of timbers when required tó be used as props, so that the workmen can at all times be able to properly secure the said workings from caving in and it shall be the duty of the owner, agent or operator to send down all such props when required and deliver said props to the place where cars are delivered.” | [
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Robins, J.
Appellant, Mrs. Borghild Jensen, brought suit in the lower court against appellees, J. Earl Housley, administrator of the estate of Charles M. Schoen, deceased, and Roy Schoen, son of Charles M. Schoen, deceased, praying for specific performance of an oral contract alleged to have been entered into between appellant and Charles M. Schoen, deceased, in 1928, by which Schoen agreed that, if appellant would accompany him from Chicago to Hot Springs, keep house for him, look after his property and take care of him, appellant would receive all of Schoen’s property upon his death. ‘Appellant alleged that she had performed the undertakings of said contract on her part and was entitled to all of Schoen’s real estate and personal property. Schoen was the owner of á dwelling house in Hot Springs, household goods located therein, and certain real estate in Chicago.
Appellees in their answer denied the existence of the contract relied upon by appellant and pleaded in bar of any right of appellant a judgment of the Garland probate court disallowing a claim for $3,900 filed by appellant against the estate of Schoen for her alleged services to Schoen before his death. Appellees further alleged that it was necessary to sell the Garland county real estate to pay Schoen’s debts and that after payment of the debts appellee, Eoy Schoen, was entitled to the remainder of his father’s property. By way of cross-complaint appellees alleged that at the time of his death the said Charles M. Schoen, deceased, had approximately $9,000 in currency and a diamond ring of the value of $750 which appellant had concealed and converted to her own use, and that appellant was indebted, to the estate in the sum of $1,015 for rent on the dwelling house occupied by her after Schoen’s death, and judgment against appellant for the amount of these items was prayed by appellees.
The court found that the administrator was entitled to the proceeds of all of the real and personal property described in the complaint for the purpose of paying the debts of the estate and the costs of the administration; that there was no valid contract between Schoen and appellant by which his property was to become the property of appellant upon his death; that the money sought to be recovered by the administrator upon his cross-complaint had been given to appellant before the death of Schoen and was her property, but that there was no valid gift of the diamond ring which appellant claimed Schoen had given to a relative prior to his death and which appellant had turned over to this relative after Schoen’s death; and that the administrator was entitled to recover from appellant the said ring or its value, which was found to be $750; and that the administrator was entitled to judgment against appellant for rent on the home and furniture at the rate of $25 per month from June 22, 1940. From decree entered in accordance with these findings both sides have appealed.
The validity of an oral contract to make a will has long been recognized and such contracts have often been enforced by the courts. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049; Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117, Ann. Cas. 1914A, 394; Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Williams v. Williams, 128 Ark. 1, 193 S. W. 82; Speck v. Dodson, 178 Ark. 549, 11 S. W. 2d 456; Schwegman v. Richards, 184 Ark. 968, 43 S. W. 2d 1088. But it is equally well settled that the testimony to establish such a contract must be clear, satisfactory and convincing. Kranz v. Kranz, 203 Ark. 1147, 158 S. W. 2d 926; Sheffield v. Baker, 201 Ark. 527, 145 S. W. 2d 347; Williams v. Williams, 128 Ark. 1, 193 S. W. 82; Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; Tucker v. Wycough, 194 Ark. 840, 109 S. W. 2d 939. As was said by the court in the case of Kranz v. Kranz, supra, wherein it was sought to establish, such a contract, “it is not sufficient that he establish it by a preponderance of the testimony, but that he must go further and establish the contract by evidence so clear, satisfactory and convincing as to be substantially beyond a reasonable doubt. ’ ’
Appellant sought to establish the contract relied on by the testimony of herself and 'Sterling C. Couch. Mr. Couch testified as to conversations with the deceased which might be said to indicate a belief or wish on the part of Schoen that appellant would receive his property, but did not testify as to any statement by the deceased that would establish that, such a contract had been made. Mr. Couch identified as being in Schoen’s handwriting an instrument written, dated and signed by Schoen, but not witnessed, in which he willed all of his property to appellant. This instrument has never been offered for probate as a holographic will, doubtless for the reason that Boy Schoen, the son of the deceased, was not mentioned therein and therefore, in this state, it was ineffective to prevent Boy Schoen from inheriting as a pretermitted child. A letter written by Schoen to his lawyer, in which he stated that he had transferred the Chicago property to appellant, was also identified by Mr. Couch.
Appellant testified that Mr. Schoen had been married, but was divorced. (Appellant apparently had been married, but whether her marriage had been terminated by death of her husband or divorce does not appear in the record.) She testified that she had been working for Mr. Schoen in Chicago for some time when, in .1928, he proposed to her that, if she would accompany him to Hot Springs, keep house for him there, look after him and attend to his property for him, she would receive all of his property, and that in pursuance of this agreement she became his housekeeper and companion, doing his cooking, marketing and household work, as well as assisting him in looking after his business, up until his death, which occurred on June 13, 1940. She introduced in evidence a number of letters written to her by the deceased while she was on a visit to Chicago. These letters reflect the existence of a close relation between the parties and a strong affection on the part of Schoen toward appellant, and also indicated that he did not look upon appellee, Roy Schoen, as a son. There was no proof, however, to the effect that Roy Schoen was not a son of Charles M. Schoen, and this relationship was impliedly recognized by appellant in a pleading filed by her in which she asked that Roy Schoen be required to execute a deed conveying all the real estate involved'herein to her.
Section 5154 of Pope’s Digest of the laws of Arkansas provides: “In civil actions, no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. Provided further, this section may be amended or repealed by the General Assembly.” Constitution, Sched. § 2.
The authorities agree- that a suit to enforce a contract to make a will, where the administrator is a necessary party, is in the category described in this statute. “Statutes as to the admissibility of testimony of transactions or conversations with deceased persons apply to actions involving contracts to will, and evidence of matters coming within the operation of such statutes is inadmissible.” 68 C. J., p. 599 (note 85 (d) ). In Page on Wills, vol. 4, § 1751, the rule is thus stated: “In an action to enforce a contract to devise or bequeath property, after the death of the promisor, the promisee is not a competent witness to 'testify to the existence of such contract. . . . ”
The administrator of Schoen’s estate was a necessary party in this action. Appellant sought judgment against the administrator for .both real estate and personal property. The administrator claimed the right of possession of the real estate on the ground that same-was necessary to pay debts of the estate. This necessity was denied by appellant. By § 66 of Pope’s Digest, it is provided: “Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts,” and in Chowning v. Stanfield, 49 Ark. 87, 4 S. W. 276, it was held that an administrator might enforce his right of possession of the intestate’s land when necessary for the payment of debts without the heirs being made parties.
The right of possession of the personal property of a decedent vests in his administrator upon his appointment. In the case of Lambert v. Tucker, 83 Ark. 416, 104 S. W. 131, we held (headnote 2): “An administrator is entitled to possession of the personal property of his intestate as against the widow and heirs.” The rule is thus stated in C. J. -S., vol. 33, p. 1341: “It is well established that as a general rule the legal title to personal property of which decedent died possessed does not vest at his death in his next of kin or distributees, . . . but vests, for the time being, in his executor or administrator, . . .” Whelan v. Edwards, 31 Ark. 723; Pryor v. Ryburn, 16 Ark. 671; Lemon’s Heirs v. Rector, 15 Ark. 436; Oldham v. Melton, 205 Ark. 240, 168 S. W. 2d 387.
Since a judgment against the administrator for the personal property of the deceased was prayed by appellant in her complaint, it is obvious that, regardless of the situation as to the'real estate, the administrator was a necessary party to this suit and that it was an action in which the testimony of a party as to transactions with the decedent was declared incompetent under the provisions of § 5154 of Pope’s Digest, supra. Therefore, appellant was not a competent witness to establish the contract relied upon by her.
Aside from appellant’s testimony, there was very little evidence tending to establish the existence of the contract which she sought' to enforce, and her testimony, even if competent, was considerably weakened by her admission that she had filed a claim against Schoen’s estate for the value of the same services to Schoen that form the consideration of the contract to devise which she relies on in the instant suit. Sheffield v. Baker, 201 Ark. 527, 145 S. W. 2d 347. The lower court did not err in finding that the testimony was insufficient to establish the existence of the contract sued on.
The testimony as to the currency which Mr. Schoen had on hand at the time of his death, though rather meager, tended to establish that this money had been given by Schoen to appellant before Schoen’s death, and had been in her actual possession for some time before his last illness. As to the diamond ring, it was shown that the gift of this ring to Mrs. Fisher, as claimed by appellant, was never consummated by delivery thereof to her or to anyone for her during the lifetime of Schoen. ‘ ‘ To constitute a valid gift, there must be actual delivery of the property.” Williams v. Johnston, 84 Ark. 109, 104 S. W. 789.
We hold therefore that the decree of the chancery court denying recovery against appellant for the money alleged to have been concealed and converted by her, and granting judgment in favor of the administrator for the value of the diamond ring was correct.
In the order made by the probate court allowing appellant’s claim for certain outlays made by her she was charged with the rent on the dwelling house at the rate of $25 per month from June 22, 1940, until the date of the order (December 2, 1941) and this was deducted from the amount otherwise found to be due appellant and a judgment was rendered in her favor for the balance. Since in the decree in the case at bar it was ordered-that any amount therein adjudged to be due from appellant should be offset against the amount allowed to her under the order of the probate court, it was error for the lower court to render judgment against appellant for rent on the dwelling house from June 22, 1940, up until the date of the order of the probate court, and the decree herein should be modified so as to grant recovery in favor of the administrator against appellant for rent at the rate of $25 per month only for the period beginning December .2, 1941.
The lower court in its decree continued in force pending appeal its temporary order enjoining appellant from disposing of certain shares of capital stock of the Arkansas Power & Light Company, which had been purchased by Charles M. Schoen in his lifetime and placed in the name of himself and appellant jointly, with right of survivorship, and enjoining appellee, Eoy Schoen, from disposing of the real estate in Chicago owned in his lifetime by Charles M. Schoen, and also the rents collected therefrom. The decree of the lower court is modified so as to abate this injunction as against both appellant and appellee, Eoy Schoen. The evidence clearly shows that the title to the stock in the Arkansas Power & Light Company vested in appellant on the death of Charles M. Schoen. Equally clear it is that the court had no jurisdiction to make any order affecting the title of the real estate in Chicago. As to that property the parties stand as if the instant litigation had not occurred.
As modified herein the decree of the lower court is affirmed; and appellant will be required to pay one-half of tlie costs in both, courts, and appellees will pay the other half of said costs. | [
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Holt, J.
March 30, 1943, appellee secured a judgment against appellant in the municipal court of the City of Pine Bluff. On April 23rd thereafter, appellant filed affidavit for appeal to the circuit court, and on the same date executed and filed appeal bond. April 30, 1943, appellant filed transcript of the judgment in the office of the clerk of the circuit court. Thereafter, on November 8, 1943, when the cause came on for trial in the circuit court, the court found “that the appeal herein should be dismissed for the reason that the transcript of the judgment rendered by the Municipal Court of Pine Bluff, Arkansás, was not. filed in the office of the clerk of this court within the thirty-day period prescribed by law,” dismissed the appeal and remanded the cause “for enforcement of the judgment of said Municipal Court.” The action of the court is questioned by this appeal.
The General Assembly, at its 1939 session, passed Act 323, § 1 of which provides: “A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of. the circuit court clerk within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, exe cution can be issued against tbe signers of tbe appeal bond. ’ ’
As to the effect which should be given to this section of the act, in Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684, we said: “This section gives finality to the judgments of inferior courts where the transcript of the judgment is. not filed in the office of the clerk of the circuit, court within thirty days after the rendition of the judgment, and authorizes the issuance of an execution against the signers of the appeal bond as upon a final judgment. This act is not only mandatory, but is jurisdictional. The transcript must be filed with,the clerk of the circuit court within 30 days to confer jurisdiction upon the circuit court. It was so expressly held in the case of Nowlin v. Merchants National Bank, 192 Ark. 529, 92 S. W. 2d 390, and the holding in the case of Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217, is to the same effect.”
The judgment in the. instant case was rendered on March 30, 1943, and the statute required appellant to file the transcript with the clerk of the circuit court within 30 days from that date. This he failed to do. In-computing the time, the day on which the judgment was rendered must be excluded, and the day on which the transcript was filed must be included.
In Massachusetts Bonding & Insurance Company v. Home Life & Accident Company, 119 Ark. 102, 178 S. W. 314, this court said: “The general rule is that in computing the time, the first day is to be excluded, and the last day is to be included.” See, also, Robertson v. Cunningham, ante, p. 76, 178 S. W. 2d 314.
Excluding March 30th, the day on which the judgment was rendered, it is obvious that 31 days had elapsed between this date and the date on which the transcript was filed, April 30, 1943.
Finding no error, the judgment is affirmed. | [
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Smith, J.
On May 24, 1943, in an opinion reported in 205 Ark. 918, 171 S. W. 2d 939, we reversed a decree granting appellee a divorce from appellant. The decree had been awarded upon the allegation and proof of cruel treatment and indignities, under sub-division 5 of § 4381, Pope’s Digest. We held that these allegations had been sufficiently proved to entitle appellee to a divorce, but we further held there had been a condonation by a temporary resumption of the marital relation. These allegations had been denied and in addition the defense had been interposed that appellee was not a resident of the state, as contemplated by the first paragraph of § 4386, Pope’s Digest, which authorizes a suit for divorce upon proof of: “A residence in the state fór three months next before the final judgment granting a divorce in the action and a residence for two months next before the commencement of the action,” but we held that the testimony established this residence, and that the testimony to that effect was practically undisputed. In reversing the decree granting the divorce we remanded the cause with directions to dismiss appellee’s complaint for want of equity.
Thereafter, on November 23, 1943, appellee filed a second suit for divorce and as ground therefor alleged that appellant had committed adultery with one Lewis Dodge, in the city of Quincy, Mass., in 1943. This was a ground for divorce not alleged in appellee’s first suit. The second divorce was granted, and from that decree is this appeal.
A reversal of this decree is urged upon three grounds. First, that appellee was not a resident of this state when he filed this last suit. Second, the allegations of the complaint as grounds for the divorce were not proved. Third, this last suit was barred by the first one. We consider these defenses in the order just stated.
Now appellee was a resident of this state when the first decree was rendered, and the first question presented is whether he had ceased to be when he filed his second suit. Appellee testified at the first trial, as recited in the opinion above referred to, that he expected to reside here permanently, and that he had never changed that intention, but that after obtaining the divorce he decided to visit his mother before enlisting in the United States Army, and that with that intention, he went, not to Portland, Maine, where he had resided before coming to this state, hnt to the city of Quincy, in the state of Massachusetts, where his mother resided; He arrived in Massachusetts and offered to volunteer in the United States Army, and was' enlisted as a private in the United States Army. He was inducted at Camp Devens in Massachusetts, and was sent to Ann Arbor, Michigan, for training, where he resided until November 24, 1943, when he was discharged on account of physical disability, and he immediately returned to this state. He further testified that while visiting his mother in Massachusetts he had two jobs, one for a week in a lumber yard, and the other for two weeks in a clothing store, but both were part time jobs, and neither was intended to be, or was, of a permanent character.
We do not think appellee lost his status as a resident of this state which he had previously established. In the recent case of Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, we said: “In the case of In re Deans, 208 Fed. 1018, Judge Trieber said that the word ‘residence’ was an elastic term of which no exact definition applicable to all cases could be given and that it was generally held that whether a party’s removal constitutes a change of residence depends on his intention in making such removal, or the animus manendi.”
Appellee did leave this state, but he did not return to his former residence in the state of Maine. He visited his mother and as will later appear he had another purpose in making his visit, but it was a mere visit made while contemplating enlistment in the United States Army, a purpose later effectuated; and he did not lose his status as a resident of this state by that enlistment, nor would he have done so however long that service might have continued, unless during its continuance he had formed the intention of becoming a resident of some other state, Kennedy v. Kennedy, supra. The appellee affirmatively shows he had no such intention as he was employed as a teacher in the Fort Smith High School, which he testified was an employment he preferred, al though it was less remunerative than other employment he might have obtained.
As to the'ground for, divorce, the testimony is to the following effect. Appellant lived in a two-room apartment in the city of Quincy. She occupied one room, and rented the other' to one Lewis Dodge, a married man, who was not living with his wife, but was renting this room in October, 1942, and had done so for some days prior, thereto. The testimony, which we do not recite, convinces us that Dodge had spent the night of October 4, not in his room, but in that of appellant. The court specifically found this to be a fact, and we think the testimony sustains that finding. A statutory ground for divorce was therefore proved.
The first suit was filed August 21, 1942, and was pending when this act of adultery was committed. The insistence is that as this ground of divorce was not alleged, or relied upon when the first case was heard, it may not now be asserted.
We held in the case of Ball v. Ball, 189 Ark. 975, 76 S. W. 2d 71, that in divorce actions, as in all others, a judgment is final and conclusive upon all questions .which were - or might have been litigated, and among other cases there cited to support this statement was that of Averbuch v. Averbuch, 80 Wash. 257, 141 Pac. 701, Ann. Cas. 1916B, 873, which cites many cases to the same effect.
But the record here does not present the case of one spouse suing another for divorce upon a specific allegation, when other grounds for divorce known to exist were not alleged. It is not contended that appellee was advised of his wife’s infidelity when he filed his first case. Indeed the act of which she was found guilty had not been committed when the first suit was filed. In the case of McKay v. McKay, 172 Ark. 918, 209 S. W. 951, a suit for divorce on the ground of cruel treatment was dismissed, and that decree was pleaded in bar of a subsequent suit brought on the ground of desertion. It was held that a decree dismissing the first suit brought be fore the cause of action for desertion had accrued did not bar her subsequent suit on the ground of desertion brought after such desertion had continued for the year required by the statute.
The annotator’s note to the case of Renner v. Renner, 127 A. L. R. 674, states the rule to be that a divorce will not be granted for causes arising after the action was brought. Among other cases cited to support this statement is our own Spurlock v. Spurlock, 80 Ark. 37, 96 S. W. 753. In this Spurlock case it was said that the cause of divorce must exist before the commencement of the suit, although it was held competent to prove the relation between the defendant and the co-respondent after the suit had been filed, not as a ground for divorce, but as corroborating testimony as to the improper relations before the suit was filed.
Now appellee'testified that he received information as to Dodge being a lodger in his wife’s apartment on the day before the trial of the first suit, but this information only aroused his suspicion that an improper relation existed between his wife and Dodge, but did not furnish proof of that fact. In her cross-examination at the first trial appellant was asked certain questions which appellee'says were intended only to bear upon her income, inasmuch as appellant was asking for an attorney’s fee, and an allowance for support. Appellee testified that on the day of the rendition of the first decree he took appellant to dinner and later to the theater, and that his purpose was to learn what relation she had borne to Dodge, and that one of his purposes in going to Quincy, where both appellant and appellee’s mother resided, was to satisfy himself on this question, and that it was only after going to Quincy that he obtained the evidence which did prove the improper relations between his wife and Dodge, and that it was upon this information, which he did not possess at the time of the first trial, that he brought his second suit for a divorce. His testimony was that he obtained the information on which he based the second suit in September, 1943, which was subsequent, not only to the date of the rendition of the first decree, but subsequent also to the date on which this court reversed that decree.
Under these circumstances, we think the court below was correct in holding that the prosecution of the first suit, did not bar the right to institute the second one, which suit eventuated in the decree from which is this appeal. That decree must, therefore, be affirmed, and it is so ordered. | [
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Robins, J.
Appellant, D. L. Jones, by this appeal, seeks to reverse a decree of the lower court dismissing for want of equity his complaint against appellees, The National Bank of Commerce of El Dorado, Arkansas, Oliver Grraydon Harris and W. H. Hines.
In his complaint appellant prayed for cancellation of foreclosure decrees of the Union chancery court rendered against appellant and others in favor of appellee, The National Bank of Commerce of El Dorado, the cancellation of deed executed by commissioner in pursuance of said decrees by which certain lands mortgaged by appellant to said bank were conveyed to the bank, and the cancellation of deeds executed by the bank to appellees, Harris and Hines, for these lands; and appellant also prayed for the return of certaiii personal property owned by appellant and sold under the foreclosure proceeding, and for judgment against the appellee bank for $5,064.38.
On November 4,1933, appellee bank filed suit against appellant and -others in the First Division of the Union chancery court to recover judgment against appellant for debt and to foreclose certain mortgages executed by appellant to the bank.
On June 4,1934, the chancery court rendered decree by which it was adjudged that said appellee recover of appellant the. sum of $706.45 with interest at the rate of ten per cent, per annum from date of decree for the balance due on a certain promissory note, which amount was declared a first lien by virtue of a real estate mortgage on one hundred and twenty acres, and by which it was also adjudged that appellee bank recover of appel.lant the further sum of $1,054.37 with interest at the rate of ten per cent, per annum on another promissory note, which amount was declared a lien on said lands and also on certain personal property, by reason of another mortgage given by appellant thereon. The decree ordered foreclosure of the mortgages and sale of the land and personal property. On September 3, 1934, another decree, making the foreclosure effective as to certain other parties, and fixing the sale on November 3, 1934, was rendered.
The property was sold by the commissioner on November 3, 1934, the sale was reported to the court by the commissioner on November 5, 1934, and on September 3, 1935, the commissioner’s report of sale and deed conveying the property to appellee bank were presented to the court and approved. In the early part of 1936, appellant surrendered all the property to appellee bank and moved to Louisiana. Appellee bank, on January 14, 1937, sold and. conveyed to appellee Harris forty acres of the one hundred twenty-acre tract obtained by it in the foreclosure proceeding, and appellee ■ Harris thereafter spent a considerable amount in improving the land bought by him. Subsequently appellee bank sold and conveyed the remaining eighty acres to appellee, W. H. Hines.
On October 26, 1934, after the foreclosure decrees had been rendered, appellant filed in the United States District Court a petition asking for the benefit of the provisions of § 75 of the Bankruptcy Law, 11 U.S.C.A., § 203, commonly known as the Frazier-Lemke Act, and on November 3, 1934, this petition was referred to the Conciliation Commissioner. On June 25, 1935, the Conciliation Commissioner filed his report in the United States District Court, and on July 1, 1935, that court entered an order dismissing appellant’s Farmer-Debtor petition. For some reason not disclosed by the record appellee bank, on July 17,1935, filed in the-federal court a motion asking for dismissal of appellant’s Farmer-Debtor petition which had’already been dismissed, and on November 1, 1935, this motion was granted by the court, and the case was again dismissed.
On November 1, 1941, a second “Farmer-Debtor Petition” was filed in the United States District Court for the Western District of Arkansas. In his schedule to this petition appellant set forth that his sole indebtedness was to appellee bank in the sum of $2,435.62, and that his assets included the land which had been taken from him in the foreclosure proceeding, valued at $4,000, an unliquidated claim against appellee bank for rents and proceeds of oil amounting to an aggregate of $7,500 and the foreclosed personal property and ungathered crops of the value of $1,240. In other words, appellant in this petition asking for the benefit of the’Bankruptcy Act alleged that he owed $2,435.62 and owned property of the total value of $12,750. This second “Farmer-Debtor” petition filed by appellant was not a renewal or an attempt to reinstate his former petition. On the contrary,' appellant himself asserted, in a response filed by him to a motion to dismiss his petition,, that the subject-matter of the second petition was not the same as that of the first. The substance of appellee’s motion to dismiss was a pléa of former adjudication and an averment that petitioner did not show grounds for relief.
Appellant’s second petition was referred to the Conciliation Commissioner who, on March 2, 1942, filed with the United States District Court his report in which he recited that appellant alleged in his petition that appellee hank was indebted to appellant in an amount in excess of $7,500, and that appellant owed only the sum of $2,435.62, from all of which the Commissioner concluded as a matter of law, and so reported to the court, that appellant’s petition did not show that he was insolvent within the meaning of § 75 of the Bankruptcy Act, and therefore his petition did not state facts entitling appellant to relief in the Bankruptcy Court.
On March 30, 1942, this report was heard by the district court and an order was entered by it approving the report and dismissing appellant’s petition for relief under the Bankruptcy Law. Appellant prayed, but did not perfect, an appeal from this order.
In his complaint in the instant case, which was filed on September 12, 1942, in the Second Division of the Union chancery court, appellant stated that he “bases this action and his right of immediate possession of all of the properties . . . his right of recovery of money judgment against National Bank of Commerce in the sum of $5,064.38, and the relief prayed, on the findings and judgment of the District Court of the United States for the Western District of Arkansas) . . . entered on March 30, 1942.”
In other words, the basis of appellant’s claim in the proceeding at bar was the order of the district court dismissing his second petition in bankruptcy. Plainly stated; appellant’s contention in the court below was that, .'because he alleged in his bankruptcy petition that appellees were wrongfully withholding his property and that appellee bank owed him $5,064.38 in excess of his debt to the bank, ipid because the district court dismissed his petition for the reason that it failed to show insolvency of appellant, or his inability to pay his debts as they matured, this amounted to a judicial ascertainment and declaration that the allegations of his petition were true, that appellees, Harris and Hines, were wrong fully in possession of his property, and that appellee hank owed appellant $5,064.38.
Appellant misconstrued the meaning and effect of the district court’s order. The order simply meant that appellant’s petition, if true, failed to show that he was an insolvent debtor, or was unable to pay his debts as they matured, so as to be entitled to the benefits of the Bankruptcy Act.
In support of his contention appellant argues that appellee bank’s motions to dismiss appellant’s Farmer-Debtor petitions amounted to admissions by appellee bank of the truth of the allegations of said petitions. These motions contained averments that appellant’s petitions did not contain allegations necessary to entitle appellant to the relief sought by him, and in reality amounted to demurrers to the Farmer-Debtor petitions. While it is said that, for the purpose of testing the legal sufficiency of a pleading, a demurrer admits the allegations of the pleading, it has never been held that by filing a demurrer to a pleading a party is thereby precluded from ever disputing the allegations of the pleading to which the demurrer was filed. “The admissions by demurrer are only for the purpose of passing upon the sufficiency in law of the pleading .demurred to, and they are not evidence, nor an absolute admission dispensing with proof upon the trial on the merits.” 49 C. J. 442.
The district court did not find or declare that appellant owned the property described in the petition or that appellee bank owed him the amount claimed by appellant or any other sum. The effect of the district court’s order was'merely a declaration that, assuming the truth of appellant’s petition, appellant’s financial condition was such that the bankruptcy court could not afford him any relief.
Furthermore, the district court had no jurisdiction to try and determine • the disputed question of the existence and amount of any alleged indebtedness of appellee bank to appellant or the title of the property claimed by appellant and held adversely by'appellees.. All the parties being residents of Arkansas the jurisdiction to litigate any of those matters was solely in the state courts. “The general rule is that a trustee in bankruptcy, wishing to sue on behalf of the estate, must resort to the same courts to which those whose rights he represents might have resorted if bankruptcy had not intervened.” 8 C. J. S. 1134, § 348.
While appellant in his complaint set forth that he based his action “on the findings and judgment of the District Court of the United States for the Western District of Arkansas . . . entered on March 30, 1942,” and did not anywhere in his complaint filed in the lower court attack the validity of the foreclosure proceedings on the ground that these proceedings were void because the filing of his first Farmer-Debtor petition in the district court deprived the state court of jurisdiction to proceed further in the foreclosure suit, the pendency of this petition does appear from the exhibits to appellant’s complaint in the case at bar, and, under our rule that in equity the averments of the complaint are controlled by the exhibits, it might be said that the complaint was sufficient to raise this question. We conclude, however, that a contention that the order of the chancery court confirming the foreclosure sale was void because of the pendency of the bankruptcy proceeding could not be sustained by the record in this case.
Appellant’s Farmer-Debtor petition in the first proceeding (No. 247-B) was dismissed by the district court on July 1, 1935. That appellee bank, on July 17, 1935, filed a motion to dismiss, and the court made another order of dismissal on November 1, 1935, does not alter the fact that the proceeding was actually dismissed on July 1, 1935. The mere filing of an unnecessary motion by appellee bank and the making of an unnecessary order by the court would not serve to reinstate or to revive in any manner the proceeding which had been dismissed.
Therefore, when the chancery court met on September 3, 1935, this situation existed: The property of ap -pellant had been sold under a decree rendered before the filing- of the Farmer-Debtor petition. No question as to the validity of this decree is or could properly be raised. While the sale was made after the filing of the bankruptcy petition, yet, before the report of sale came up for the approval of the court, the bankruptcy proceeding had been dismissed.
Conceding that, under the rule laid down by the Supreme Court of the United States in the case of Kalb v. Feuerstein, 308 U. S. 433, 60 S. Ct. 343, 84 L. Ed. 370, the filing- of the bankruptcy petition automatically suspended the power of the .state court to proceed further, the dismissal of the bankruptcy proceeding restored this power, so that the chancery court was authorized to act on the Commissioner’s report. In the case of Union Joint Stock Land Bank of Detroit v. Carl Byerly, 60 S. Ct. 773, 84 L. Ed. 1041, 310 U. S. 1, it was said: “Although the state court’s jurisdiction was superseded by that of the bankruptcy court, it again attached upon the dismissal of the bankruptcy case, and, thenceforward, as respects the foreclosure suit, and the state court’s procedure, it was as if no bankruptcy case had ever existed. ’ ’
The objection that the sale was made at a time when under the Bankruptcy Law it should have been stayed was one which the chancery court had plenary jurisdiction to hear and determine. The chancery court ’s order approving the sale -cured any irregularity affecting the sale and was a final adjudication of the matter, and, not having been appealed from, is a bar to appellant’s instant suit. Neff v. Elder, 84 Ark. 277, 105 S. W. 260; Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250; Green v. Maddox, 97 Ark. 397, 134 S. W. 931; Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; 31 Am. Jur. 470.
Furthermore, even if it had been shown that the order confirming the foreclosure sale was void, under the facts in this case it must be held that appellant was estopped by his conduct and his inaction to question the validity of this sale.
Appellant was a party to the foreclosure suit. He had been served with summons therein. It was his duty to keep himself advised of the proceedings in this suit against him. Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222. It must be presumed that he was fully aware of the progress in the case. Yet, after the decree was rendered against him, he stood by and permitted the sale to be made, and report of sale to be confirmed, without at any time calling his bankruptcy petition to the attention of the chancery court, or asking the bankruptcy court to stay the foreclosure proceedings. And, when directed by the sheriff in February, 1936, to turn over the property to the purchaser at the foreclosure sale he complied, without in any manner questioning the validity of the Commissioner’s deed to appellee bank. He moved away from the state and did no act indicating a disposition or intention to challenge the validity of the foreclosure until more than five years after the sale. After he abandoned the land it was sold by appellee bank to appellees, Harris and Hines, who bought and improved the land in the belief that they were acquiring good title thereto. By his failure to act when he should have acted and by his tacit recognition of the validity of .the Commissioner’s sale to appellee bank appellant is estopped now to question it. In 31 C. J. S. 368, § 115, it is said: “A person who, with knowledge of the facts and of his rights, assents to, . . . judicial proceedings without objection is ordinarily bound by such proceedings as against one who has been misled to his injury.” The same rule is announced in these cases: First National Bank v. Farmers’ & Merchants’ Bank, 159 Ark. 384, 252 S. W. 34; Adams v. Woods, 128 Ark. 441, 194 S. W. 849; Walker v. L. Maxcy, Inc., 103 F. 2d 24.
The doctrine of laches also would bar appellant’s claim, if it were otherwise enforceable. Railway Company v. James, 54 Ark. 81, 15 S. W. 15; Ayers v. McRae, 71 Ark. 209, 72 S. W. 52. In the case of Jackson v. Becktold Printing & Book Manufacturing Company, 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 454, it was sought by appellants to set aside in a collateral proceeding a foreclosure sale made in pursuance to a decree which was ad mittedly void because (at a time prior to the statute authorizing sucli a decree) it was rendered in vacation. The suit attacking tbe sale was filed almost five years after tbe property was sold. It appeared that tbe owners of tbe property, wbo were defendants in tbe original proceeding and plaintiffs in tbe latter proceeding, knew about tbe sale and made no objection at tbe time, and it also appeared that tbe purchaser at tbe foreclosure sale sold parcels of tbe land to different parties. This court held that tbe appellants were barred by laches, saying: “These facts render appellants guilty of laches in not sooner moving to annul tbe foreclosure decree, and make it inequitable to divest tbe numerous purchasers of rights which they acquired under what purported on its face to be a valid decree, and which they were led to believe appellants bad acquiesced in by their delay and negligence in moving to have it annulled and set aside.”
We conclude that the decree of tbe lower court is correct, and it is affirmed. | [
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McHaney, J.
Appellants own lands in Sevier county and appellees own lands in Little River county. Little River is the boundary between their respective tracts and is also the boundary between the said two counties. The lands of appellants are described as being “north of the river,” but appellees’ lands are not described with reference to said river. Little River county was created by Act 104 of 1867, p. 217, which fixed the north boundary of the county at this point as the north bank of Little River.
This action originated as an interpleader’s suit, brought by Little River Sand & G-ravel Development, a partnership, engaged in removing and selling sand and gravel from the bed of Little River, against appellants and appellees to have tbe court determine tbe line between their lands and the amount of compensation due each for the sand and gravel taken from their respective lands. It is conceded, and the court so found that Little River at this point is a non-navigable stream.
The contention of appellants in the court below and here is that the boundary line between their property ,and that of appellees should be a line running in the river equi-distant from high bank to high bank, while appellees claim and contend that they are the owners of the entire bed of the stream from high bank to high bank. The trial court did not sustain either contention. It appointed an engineer and special master to make a survey of the river between their lands, and to determine or locate the center of the stream of Little River; to make a map or plot thereof and to report his findings to the court. This was done, and the court found that the river had gradually through the years since the government survey of 1837 changed its course to the south and east, leaving accretions, and that such accreted land belonged to the original owners; and that the river, being non-navigable, although meandered by the government survey, the respective riparian owners have title to the land and to the sand and gravel to the center of the stream as it stood at the time of the excavation and removal of said materials. The court also found that “the center of the stream is the middle thread of the main, regular, continuous and flowing stream at . . . low water stage the year around or practically so.” And the court held that appellants owned the sand and gravel to the north and west of such line, and that appellees owned that to the south and east of said line. Later the court ordered a distribution of the funds in court deposited by the interpleader who reported to the court the amount of material taken from each party’s land. Neither the appellants'nor the appellees were satisfied with the decree, and there is here an appeal and a cross-appeal.
We think the court correctly determined the rights of the parties. In other words, appellants are riparian owners on an non-navigahle stream and are entitled to the rights of such owners, even though their lands are described as lying “north of the river,” and even though also the northern boundary of Little River county is fixed in the act creating it as the north bank of Little River. We see no intent of the Legislature in the act to change the well-settled rule of law of riparian owners on non-navigable streams or lakes. We think appellants are riparian owners, and if they are, then the trial court was correct in rendering the decree it did render, and appellees admit that if appellants are riparian owners, then appellees’ contention that they own all the bed of the stream from high bank to high bank is untenable. Our most recent case holding that riparian owners of land on a non-navigable stream take to the center of the stream is McGahhey v. McCollum, ante, p. 180, 179 S. W. 2d 661.
The general rule, supported by the great weight of authority, regarding the boundary line between owners of land bordering on non-navigable streams is stated in 8 Am. Jur., p. 761, § 22, as follows:
“In all rivers deemed to be non-navigable, the presumption is that the boundary line between owners of lands bordering on streams or watercourses is in the middle thread of the watercourse. When such lands are conveyed with the stream or watercourse described as a boundary, it is frequently held that there is a presumption that the grantor intends that the boundary of the lands of the grantee should extend to the middle of such stream or watercourse. An intent that the soil in the river should be owned by a person who does not own the abutting upland is so improbable that it will never be presumed in the absence of an express exception in the grant. It has -been said that the abutting owner owns the bed of a non-navigable stream to the thread of the water, even though his land is nominally bounded by the margin of the stream in his conveyaiice, though such a holding seems extreme.”
Again in § 24, same volume,- it is said:
“The general principle'is that in order to restrict title to the edge of a watercourse the bed of which belongs to the upland owners, there must be a reservation or restriction expressed or necessarily implied which controls the operation of the general presumption that title extends to the middle of the stream or highway. The statement in many of the cases that nothing short of an express reservation of the bed of the stream will overcome the force of the presumption that the grantor intends to convey all the land he owns under water has usually been construed, in the application of the rule, to mean a reservation inferable from the terms of the description. As a general rule, however, if the language in the description of boundaries is clear, that should control and should not be narrowed and limited by any mere ambiguity in the subsequent statement of the appurteiiances to the grant.”
See, also, § 25, for particular descriptions of boundary lines on rivers, such as “to the river, and thence up the river” and even “thence on the river shore,” which have been held to carry the boundary lines of the owners to the thread of the stream. The conveyances from the United States to the state and from the state through mesne conveyances to appellants describe their land as being “north of river,” meaning north of Little River, and making the river the boundary line, and there is nothing in any conveyance to rebut the legal presumption, above quoted, that their line and that of all their predecessors in title extended to the thread of the stream or river. It was not the intention of the Act of 1867, creating Little River county, to disturb any vested rights of owners of land included in said county. We, therefore, affirm on the direct, and cross-appeals on this point.
Another argument made on the cross-appeal of appellee consists of an attack on the order of the court allowing C. E. Johnson, Jr., attorney for the inter-pleader, a fee of $150 out of the funds paid into court by the interpleader. Mr. Johnson was not a party to the action in the conrt below, and he cannot be made a party here by cross-appeal. If appellees thought the conrt erred in allowing a fee for interpleader’s attorney, they should have appealed directly from such order and within the six months allowed for appeals to this conrt.
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Humphreys, J.
These are appeals from five judgments .rendered in the circuit court of Mississippi County against appellant, four of them for $2,500 each in favor of Florence Oxford, for the death of her four minor children, resulting from a collision of .appellant’s train with an automobile in which the children were riding, through the alleged negligence of appellant’s employees in operating the train, and one in favor of Theodore Oxford .for $1,500, for the death of his father and mother and injuries received by himself in the same collision. The separate judgments were rendered upon five separate complaints and answers in response to five separate verdicts returned in a single trial of the five separate cases, under an order of the trial court consolidating them for the purpose of expediting and saving time and costs, pursuant to the provisions of § 1081 of Crawford & Moses’ Digest, which is as follows:
“When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may he conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”
A motion for a new trial was filed in each case, and, when overruled, separate appeals were prayed and granted, but, by order of court and agreement of the parties, one hill of exceptions was prepared and filed as part of the record to be used on appeal in each case. After the several suits were filed and service obtained, appellant filed a petition and bond in due form in each of Florence Oxford’s cases to transfer them to the Federal court, because of a diversity in citizenship, and upon the alleged ground that said appellee had split her cause of action to reduce the amount for the fraudulent purpose of preventing a removal. The court over ruled each petition, over the separate objections and exceptions of appellant. After the trial court consolidated the four cases with the Theodore Oxford case for the purposes set out above, appellant again filed a.petition and bond for the removal of the Florence Oxford cases to the Federal court, for the reason that the consolidated cases constituted one suit for $12,000. The court overruled the motion, to which appellant entered an objection and saved an' exception. The grounds of negligence alleged in each complaint and denied in each answer are as follows:
“ (1) . Failing to keep a lookout as required by law. (2) Failing to give warning of the approach of the train by sounding the whistle and ringing the bell. (3) Failing to signal for said crossing as required by law. .(4) Failing to stop the train after discovering the peril of deceased-. (5) Operating the train at a dangerous and excessive rate of speed over- the crossing and in nearing the station.”
A supplementary motion for a new trial was filed, assailing the integrity of the trial on account of the alleged disqualification of one of the jurors, in part as follows:
“Defendant (appellant), for a further ground upon which the verdict of the jury should be set aside and' defendant (appellant) be granted a new trial, is that' one Ira Crawford was selected as a juror was selected to try this cause of action. While being examined touching his qualifications as a juror, he stated he knew nothing of the facts of the case, had not talked to any one else who knew the facts, and, if chosen as a juror, he would try the case without bias or prejudice. As a matter of fact, ’ defendant (appellant) charges that the said Ira Crawford, on the evening following* the collision, the subject-matter of this suit was' discussed by him with an eye-witness to the said collision, land interrogated said eye-witness, Mrs. Maggie Hawkins, who told the said Ira Crawford the details of the collision as witnessed by her.' Later, lat night, about April 20, 1926, the said Ira Craw-' ford 'again visited the said Maggie Hawkins at her home, at which time he talked over the details of said collision with the said Maggie Hawkins. The said Ira Crawford made two other visits, between his first and last visit above mentioned, to the home of Maggie Hawkins for the purpose of soliciting and receiving detailed information of the said.collision from said Maggie Hawkins.” The allegations relative to the disqualification of the juror were supported by the affidavits of Clarence and Maggie Hawkins and Andrew and Lucy Smith. The attorneys for appellant made and filed affidavits that the matters and things set out in the affidavits of the Hawkins and Smiths were unknown to them and all of them until after the submission of the case to the jury, and that they never obtained definite information until after the verdicts were returned.
Appellant seeks a reversal of the judgments because the trial court overruled its motion to remove Florence Oxford’s four cases to the Federal court. It contends that the four cases were in fact one cause or right of action split in four amounts of $3,000, less than the amount necessary to give the Federal court jurisdiction. The rule contended for by appellant pertains when personal property is damaged, lost or destroyed through the negligence of another. St. Louis & San Francisco Railroad Co. v. Davis, 157 Ark. 27, 247 S. W. 53. Not so “where two or more' persons are killed through the negligence of another, and the cause of action for the death of each inures to the same parties.” Payne v. Moore, 126 Miss. 693, 89 So. 225; King v. Ray Co., 126 Ga. 794, 55 S. E. 965; So. Ry. Co. v. King, 217 U. S. 524, 30 S. Ct. 594, 54 L. ed. 868.
The consolidation of the causes for the purpose of trial only did not have the effect of merging the separate causes of action into a single cause of action. The identity of the separate causes of action was maintained throughout the trial. The complaint, answers, verdicts, judgments and motions for a new trial were all separate.
Appellant also seeks a reversal of the judgments because the trial court refused to instruct the. jury as follows in the Theodore Oxford case: “You. are instructed that Theodore Oxford cannot, even if the defendant was negligent, recover for the death of his mother, for the reason that his right vests in the father or husband only, and does not survive the father or husband.”
Section 1075 of Crawford & Moses’ Digest vests the right of action in children of parents who have been killed through the negligence of others. In the instant case the father, mother, brother and sister of Theodore Oxford were killed in the collision, leaving Theodore, an eight-year-old child,'the only heir and next of kin .of both his father and mother. Of course a child of tender age must necessarily suffer pecuniary loss if deprived of the care and association of his mother.
Appellant also seeks a reversal of the judgments because the trial court overruled the last ground of its' motion for a new trial, to the effect that the juror, Ira Crawford, was disqualified to act. The evidence fully sustains. the charge that the juror was a partisan of appellees: In order to render a fair and impartial verdict, jurors’ minds must be unbiased and free from prejudice, else the stream of justice will be impure. Equal and exact justice cannot be administered to all save by impartial minds. In the instant case the juror’s activity in behalf of appellees revealed a condition of mind clearly precluding him from sitting in judgment on the case. He was wholly and entirely disqualified, and his disqualification destroyed the integrity of the trial. The verdicts and judgments will have to be reversed for this reason, if no other.
The reversal of the judgments will, eliminate the necessity of considering and discussing the alleged exces-siveness of the judgment in favor of Theodore Oxford, and, as there must be a remand of the causes for a new trial on account of the error indicated, we deem it inappropriate to discuss the sufficiency of the testimony to support the verdicts and consequent judgments. There may be additional testimony on a new trial of the cause.
The judgments are reversed, and the causes are remanded for a new trial. | [
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Humphreys, J.
This is an appeal from a judgment of $450 against appellant in favor of appellee for the alleged unlawful -conversion of a Chalmers automobile. Appellee had traded an equity valued at $300 in a Ford coupe to appellant for a second-hand Chalmers car valued at $850, executing twelve notes in the sum of -$45 each, or a total of $540, for the balance of the purchase money. Title was retained Fy appellant to secure the purchase-money notes. After appellee had used the Chalmers car for a time it became necessary to have it repaired, and the car was returned to appellant for that purpose. Appellee testified that appellant agreed to repair it for $50. Appellant testified that he agreed to repair it for the actual cost of the material and labor. The actual cost of material and labor entering into the repairs was $105. In addition to tlie dispute relative to the amount *of the repairs, a dispute arose between the parties concerning the amount of the monthly payments, appellee testifying that appellant had agreed to accept notes in denominations of $35 each covering the balance of the purchase money in lieu of the notes he had given appellant for $45 eadi, and tliat, In keeping with the understanding, he had paid $35 on the first note which was due August 3, 1924. Appellant testified that he made no agreement to vary or change the original contract or to substitute notes in denominations of $35 each for the $45 notes given for the balance of the purchase money. The- dispute became acute, resulting in a refusal by appellant to return the car to appellee unless he would pay $105 for the repairs and the entire balance of the purchase money of $505. Appellee refused to comply with this demand, whereupon appellant sold the Chalmers car for $150. This suit was then instituted.by appellee for the alleged unlawful conversion of the car.
In the course of the trial the court committed reversible error in defining the rule of damages applicable to unlawful conversion of personal property where each party to the suit has an interest therein.
“The rule is that, wherever the defendant has a legal or equitable interest in or claim upon the specific property for the conversion of which he is sued, the recovery against him is limited to the actual net amount of the plaintiff’s interest, although the possession is wrongfully assumed or retained. This fully indemnifies the plaintiff and leaves the balance of value- in the hands of him who is entitled to it, thus settling the whole controversy in one suit. ’ ’
Instructions numbers 5 and 9 told the jury that, if they found appellant unlawfully converted- the Chalmers automobile, to render a verdict in favor of appellee against him for the value thereof at the time of the conversion, together with interest thereon. These instructions failed to tell the jury to deduct from the value of the automobile the amount appellee owed appellant thereon for purchase money and repairs.
On account of the errors indicated the .judgment is reversed and the cause is remanded for a new trial. | [
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