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Frank Holt, Justice.
By felony information the appellant was charged with first degree murder. A jury found him guilty and assessed his punishment at life imprisonment in the state pentientiary. From that judgment appellant, through his court-appointed trial counsel, brings this appeal. For reversal we first consider appellant’s contention that “the evidence is insufficient to sustain the conviction of first degree murder.”
The decedent’s oldest child, a nine-year-old daughter, was a witness to the alleged crime. She testified that the appellant, decedent’s brother-in-law, came to the apartment where she and her mother were staying that night with a relative. After being there a few minutes, the appellant went into the bathroom and four or five minutes later reappeared with a brick which was used as a doorstop. Without any warning or provocation the appellant struck the decedent on the back of the head three or four times while the decedent had her back turned attending one of her five small children. Appellant then dragged the mother outside and put her in his car and left. The child’s screams attracted the landlord in a nearby apartment and he telephoned the police. The landlord testified that appellant had come to him about an hour earlier in the evening and complained that someone was peeping in the apartment where decedent was staying. This witness accompanied the police to the apartment and described the front room as being spattered with blood. The autopsy report revealed that decedent died from head wounds inflicted by some type of object.
The alleged crime occurred about 9 p.m. and appellant was apprehended a few hours after midnight. During the day appellant made two oral confessions to law enforcement officers before discovery of the body late in the afternoon. He then signed a written confession. In each of these statements the appellant admitted that he had beaten his sister-in-law and detailed how he had disposed of her body. The decedent’s body was finally found in the general area indicated by appellant. Appellant told the officers that he struck his sister-in-law with a brick following an argument about her treatment of her children; having his brother “locked up” and not signing the necessary papers to have him released from jail; and also that she made derogatory remarks about appellant’s wife. Appellant stated: “At this time I hit her with a brick that I picked up next to the front door that was being used for a doorstop. This was during a scuffle while we were fighting.” After striking her he admitted placing decedent in his car for the purpose of taking her to the hospital and after discovering she was dead, he hid her body in a wooded area and covered it with leaves. According to the state’s evidence, appellant spoke coherently and he assisted in locating the body.
Appellant did not testify. He interposed a plea of insanity. Four lay witnesses testified, in effect, that from their long acquaintance with the appellant they considered him to be mentally deficient and that he suffered from loss of memory. One witness described him as being “like a little child” with memory lapses. The trial court fully instructed the jury on all degrees of homicide, as well as the issue of insanity.
The thrust of appellant’s argument is that the evidence is insufficient to establish the required elements of specific intent, premeditation, and deliberation. In Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516 (1968) we quoted with approval that: “While the intent to kill cannot be implied as a matter of law, it may be inferred from the facts and circumstances of the assault . . . and all other facts and circumstances tending to reveal defendant’s state of mind.” Further, it is an oft stated rule of law that premeditation and deliberation in the act of murder can be formulated in the assailant’s mind upon an instant. “It does not have to exist in the mind an appreciable length of time. All that is necessary is for it to exist when the assailant commits the act.” Jackson v. State, 133 Ark. 321, 202 S.W. 683 (1918). On appeal we must, of course, view the evidence in that light which is most favorable to the appellee and affirm the finding of a jury and its verdict where there is any substantial evidence to support it. Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72 (1970). Certainly in the case at bar we cannot say there is no substantial evidence to support the jury’s verdict of guilty of first degree murder.
Appellant also contends for reversal that the court erred in admitting certain photographs into evidence which showed the position of decedent’s body when found by the investigating officers. We find no merit in this contention. Appellant argues that the photographs served no purpose except to inflame the minds of the jurors to the prejudice of appellant. It must be remembered that the burden was upon the state to prove all the elements of first degree murder beyond a reasonable doubt. These photographs merely showed the position of decedent’s fully-clothed body in a wooded area, partially covered by leaves. These pictures were of a corroborating nature as to appellant’s admissions and the officers’ testimony. Further, it is well established that the trial court is accorded wide discretion in admitting photographs into evidence. Stanley v. State, supra; Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965). We find no abuse of discretion in the case at bar.
Appellant also asserts for reversal that the court erred in admitting a purported written confession signed by him. After the state had rested its case, the appellant presented four witnesses who testified that appellant suffered from lapses of memory or inability to recall events. The court then permitted the state to introduce a signed written confession by the appellant. This statement, found to be voluntarily made following a Denno hearing in chambers, recited in detail the appellant’s commission of the alleged offense and the disposal of the victim’s body following the alleged crime. The court then instructed the jury that it was perrAitted in evidence as a rebuttal to the evidence adduced by appellant that he was incapable of recalling or remembering events. Our trial courts are granted wide discretionary powers in determining the nature and extent of rebuttal testimony. City of Fayetteville v. Stone, 194 Ark. 218, 106 S.W. 2d 158 (1937); Harger v. Harger, 144 Ark. 375, 222 S.W. 736 (1920); Chunn v. London & Lancashire Fire Ins. Co., 124 Ark. 327, 187 S.W. 307 (1916). In the case at bar we are of the view there was no abuse of discretion by the trial court in admitting appellant’s statement, accompanied by the cautionary instruction, as rebuttal evidence. Furthermore, this signed confession, given after discovery of the victim’s body, appears in conformity with the two oral statements previously given to the officers and admitted into evidence during presentation of the state’s case in chief. In our view the undisputed evidence by the state, in a Denno hearing, established that appellant’s signed statement was freely and voluntarily made and followed a recital of the Miranda warning with a full explanation of his rights.
After reviewing the trial proceedings for any errors prejudicial to the rights of appellant, as we are required to do by Act 333 of 1971 [Ark. Stat. Ann. § 43-2725 (Supp. 1971)], and finding none, the judgment is affirmed.
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Frank Holt, Justice.
Appellant and her husband had previously secured separate judgments against appellee’s insured, Loleta Goble. See Smith v. Goble, 248 Ark. 415, 452 S. W. 2d 336 (1970). The appellee insurer paid the entire policy limits of $10,000 to appellant’s husband and $7,641.60 to appellant for her injuries. However, the appellee refused to pay her any part of the additional $5,000 which the jury awarded her for loss of consortium. This resulted in the present action. The trial court, sitting as a jury, found the issues in favor of the appellee and dismissed appellant’s complaint. For reversal the appellant asserts that the recovery for loss of consortium was expressly included within the terms of the policy. Appellant argues that loss of consortium constitutes damages within the purview of Goble’s policy clause which provides coverage for damages resulting from * * (a) bolily injury sustained by other persons * * * ” and that the company bound itself to pay her for “* * * damages for care and loss of services” resulting from personal injuries. Appellant asserts that since consortium is a compensable element of damages arising from bodily injuries, citing Missouri Pac. Trans. Co. v. Miller, 227 Ark. 351, 299 S. W. 2d 41 (1957), her $5,000 consortium damages are included as coverage by the terms “care and loss of services.”
The appellee does not take issue with this assertion. However, appellee correctly relies upon the provision in the Goble policy which limits appellee’s liability. This provision reads:
“Limits of Liability — * * * Coverage A. The limit of liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages arising out of bodily injury sustained by one person in any one accident. * * *”
This provision clearly and unambiguously limits the recovery for damages for bodily injuries sustained by any one person in any one accident. In the case at bar the limit of liability is $10,000. We agree with the trial court that since appellant’s husband was paid the full amount of the policy limits for his bodily injuries, the appellant cannot recover her derivative claim for loss of consortium in excess of the $10,000 policy limits. See Sheffield v. American Indemnity Co., 140 S. E. 2d 787 (S. C. 1965); 7 Am. Jur. 2d Automobile Insurance § 195; 13 ALR 3d Insurance — Limits of Liability § 4 p. 1234.
The appellee having fulfilled its obligation by paying the full limit of its liability, it necessarily follows that we find no merit in appellant’s contention that appellee is estopped to deny the full amount is not due and owing; nor can appellant complain that appellee was negligent in its failure to settle appellant’s claim within the policy limits.
Affirmed. | [
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George Rose Smith, Justice.
This is an action for personal injuries sustained by the appellee, Jerry W. Hickman, when he fell into an unguarded open stairwell in a house that was being constructed for one of the appellants, Walter McDonald (or MacDonald). The other appellant, also a defendant below, is Gerald Rooks, who was McDonald’s chief carpenter. The jury returned a verdict for the plaintiff, fixing his tptal damages at $17,500 and apportioning the negligence in the ratio of 25% to the plaintiff and 75% to the defendants. For reversal the appellants contend that they were entitled to a directed verdict, on the ground that Hickman’s negligence exceeded their negligence as a matter of law, and, alternatively, that the court erred in not submitting to the jury their asserted defense of assumption or risk. We find no merit in either contention.
First: Comparative negligence. On the day of the accident Hickman, an employee of a rural electric co-operative company, had gone to the unfinished house to determine what kind of circuit breakers would be needed. Rooks escorted Hickman and another co-op employee into the house. While Hickman was standing in a somewhat dark windowless hall, examining the electrical panel, he stepped to his left and fell eight or nine feet to the concrete basement. He actually fell through a four-by-eighteen-foot opening in the upper floor, where a staircase was to be installed later. The opening was. unprotected. Hickman testified that Rooks later said that he should have told Hickman about the hole being there.
The court was right in refusing to direct a verdict for the defendants. The jury could well have concluded that the open hole in the dimly lighted hallway was in the nature of a concealed hazard about which Hickman should have been warned. It is not our province to compare the negligence of the litigants when fair-minded men might reach different conclusions in the matter. Willingham v. Southern Rendering Co., 239 Ark. 858, 394 S.W. 2d 726 (1965); Wood v. Combs, 237 Ark. 738, 375 S.W. 2d 800 (1964). Here we are firmly of the opinion that the trial judge properly left to the jury the apportionment of the total negligence in the case.
Secondly: Assumption of risk. Hickman testified that he was aware that there was danger in any construction job. Although he had not been in an unfinished house that had a basement, he had seen holes in floors, as for floor furnaces. On the day of the accident he probably had a flashlight in his truck, but he did not go back to get it when he found the hallway to be poorly lighted. Upon the foregoing proof the defendants requested the court to submit to the jury the issue of assumption or risk.
That request was properly refused. Assumption of risk, a harsh doctrine, depends upon actual knowledge and appreciation of the danger. As Prosser puts it: “ ‘Knowledge of the risk is the watchword of assumption of risk’ Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself.” Prosser on Torts, § 68 (4th ed., 1971). See also the Restatement of Torts (2d), § 496 D (1965), where it is stated: “The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence.”
In the case at bar there is no proof that Hickman actually knew that he was standing near a dangerous opening in the unfinished floor. Absent such knowledge, his conduct was to be tested by the standard of negligence rather than by the rule of assumed risk. Inasmuch as the court properly submitted to the jury the question of comparative negligence, the appellants have no basis for complaint.
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Conley Byrd, Justice.
Appellees Elizabeth Jackson Rogers, Virginia Jackson and Gladys Dear brought this action against their sister, Lynn Jackson Ackerman and her daughter Carlynn Ackerman Gee to declare that their mother’s will, barred from probate by the 5 year statute of limitation contained in Act 140 of 1949 (Ark. Stat. Ann. § 62-2125), was not a muniment of title and that consequently they held the approximately 740 acres of land in Woodruff County in fee simple absolute under the laws of descent and distribution. The chancellor so quieted their title and appellants, Lynn Jackson Ackerman and Carlynn Ackerman Gee appeal. For reversal they contend among other things that since appellees accepted the benefits under the will for fifty years they are estopped to deny that the will constitutes a muniment of title.
The record shows that Anna C. Jackson died in 1918 and that by the terms of a will probated August 26, 1918, in Bryan County, Oklahoma left the property as follows:
“Second, I give, divise and bequeath to my children Bernice, Gladys, Elizabeth, Lynn, Wayne, and Virginia all of my real estate which is situated in the County of Woodruff County and state of Arkansas, consisting of 740 acres, share and share alike, subject to the following conditions; no part of said-land shall be sold or in any manner encumbered so long as any of my said children shall live, but during said time shall be kept together without division or partition and the same shall not be subject to any debts created by said children and upon the death of any child without issue the shares of such deceased child shall go to such of children as be living and to the issue of any deceased child or children the surviving children to take share alike and the issue of any deceased child to take such share as the deceased parent would have taken if living, and upon the death of any of my said children leaving issue, then the share of such deceased child shall go to the issue of such deceased child subject, however to the conditions that same will not be devised, partitioned, sold or encumbered so long as any of my children shall live.
Fourth, There being a considerable quantity of merchantable timber on said lands in Woodruff County Arkansas, I devise said timber to my execution: ers in trust will power and authority to sell dispose of same and to grant permission to enter said lands for the purpose of removing said timber and the proceeds from the sale be divided equally between by children, Bernice, Gladys, Elizabeth, Lynn and Virginia.”
The will was never probated in Arkansas. However, an authenticated copy from the Oklahoma Probate Court was recorded in the circuit clerk’s office. Pursuant to the will, the personal representatives, one of whom was appellee Gladys Dear, sold the timber in 1920 for $15,000, and the proceeds were either distributed to the five girls or invested under the supervision of the Oklahoma Probate Court. Thereafter Bernice Jackson Blanchard took possession of the property and so far as the record shows, used the rents and profits from the land for her own use and benefit until her death in 1948. Bernice by her will devised the property to appellant Carlynn Ackerman Gee. The matter was discussed by the family attending Bernice’s funeral and it was there decided that Bernice had only a life estate under her mother’s will.
Since the death of Wayne and Bernice without issue, the surviving children have divided the rent proceeds between them four ways on the basis that Bernice only had a life estate. Neither Bernice’s estate nor her devisee have received any of the rents from this property since 1948.
As we understand the law, it is generally conceded that one who accepts the benefits of a will is thereafter estopped to deny the existence or validity of the will. See McWhorter v. Green, 111 Ark. 1, 162 S.W. 1100 (1914), Hopper v. Nicholas, 106 Ohio St. 292, 140 N.E. 186 (1922), and Board v. Board, L.R. 9 Q.B. 48 (1873).
In the McWhorter case, title had been conveyed to William B. McWhorter and Mary E. McWhorter. William devised the land to his two sons William F. and Thomas on condition that they would care for and support Mary E. McWhorter during her natural life. In an action by one of Mary’s daughters against Thomas it was shown that Thomas had remained on the land and supported his mother in accordance with terms of his father’s will. This court pointed out that since Mary E. accepted the benefits of the will, her heirs, having no greater rights, were estopped to deny Thomas’ ownership. In doing so the court said:
“. . .The rule is well settled that if an outsider undertakes to dispose of the property of another person by will and that person accepts a benefit under the will, such acceptance is a confirmation of the terms of the will and operates to estop such person to object to the disposition of his own property to another. Fitzhugh and Wife v. Hubbard, 41 Ark. 63; McDonald v. Shaw, 92 Ark. 15, and cases cited.”
The Ohio court in the Hopper case, stated the rule in this language:
“A party who consents that a court shall enter judgment and accepts the benefits thereunder cannot be heard to object to the court’s power to render such judgment. This court so decided in Merritt v. Horne, 5 Ohio St., 307. Judge Ranney said, at page 318: ‘There is now no principle better settled, or resting upon firmer grounds of justice and public policy, than that which precludes a party who has induced another to part with his money or property, and has taken the fruits of a judicial proceeding, from afterward questioning its regularity, or by evidence aliunde impairing its effect. * * * Although this doctrine debars the truth in the particular case, yet, as said by the Supreme Court of the United States in Van Rensseiear v. Kearney, 11 How., 326, ‘it imposes silence on the party only when, in conscience and honesty, he should not be allowed to speak.’ And we are of the opinion that it is equally effectual at law and in chancery.”
As pointed out in the English case, of Board v. Board, supra, the parties here are in the same position of a tenant that goes in possession under a landlord. They held their possession and divided the rents and profits therefrom, under the terms of Anna C. Jackson’s will, to the exclusion of the devisee under Bernice’s will. Therefore, we conclude that as between the parties, they are estopped to deny the title, by which they accepted die benefits.
The court below was not asked to probate the will but only to quiet the title of the parties to the land in question. Because the parties are estopped to deny the title under which they accepted benefits, the cause is reversed and remanded with directions to enter a decree not inconsistent herewith.
Reversed and remanded.
Jones, J., dissents. | [
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Lyle Brown, Justice.
William Ward, the lone occupant of a pickup truck, was killed at a rural railroad crossing near Plumerville in Conway County. Appellee, the administratrix of his estate, recovered judgment for $75,000 for the widow and $10,000 for mental anguish to each of three adult children, a total of $105,000. Appellants advance five points for reversal. Only a few of the details relating to the collision are pertinent to a determination of the issues. Such facts as are important will be related as we discuss the points for reversal.
Point I. The court erred in refusing to give the jury verdict forms which would permit separate findings for or against the two separate defendants. At the conclusion of the testimony all the defendants except the railroad and the engineer were removed from the case. Also, the issues upon which appellee predicated claim to liability were reduced to the single issue of blowing the whistle or ringing the bell. If the engineer was negligent in not ringing the bell or blowing the whistle, and if that negligence was the proximate cause of the collision, both the railroad and the engineer would be liable. If the engineer did in fact ring the bell or blow the whistle, for the requisite time then neither defendant would be liable. Consequently, we do not perceive any error in submitting only one form of verdict as to liability of the two defendants.
Point II. The trial court should have granted a mistrial when attorney for appellee in closing argument stated that the railroad crew is always present to testify but that motorists are always killed and unavailable to testify in crossing accidents. In discussing the requirement that the railroad employees must blow the whistle or ring the bell, the following colloquy occurred:
Mr. Gordon, for appellee: The reason for it is obvious. A locomotive, if it ever strikes anything, generally he doesn’t live to tell what happened to him. Mr. Ward is not here to tell you about whether or not he looked. It’s very seldom when we have a railroad crossing accident that people in the vehicle are ever here to tell you about their side of the story.
Mr. Love, for appellants: Your Honor, I’m going to object to that testimony. . .We want to ask for a mistrial on the basis of it.
The trial judge admonished the jury not to consider the statements made in closing arguments that were outside the record. (Appellant would have been entitled to a stronger admonition had it been requested.) The motion for a mistrial was overruled.
Mr. Gordon’s argument was not proper; however, we think any prejudicial effect the remarks was cured by the admonition of the court. The trial court has a wide range of discretion in matters of this nature and we should not reverse unless a prejudicial effect is obvious. The trial judge is in better position than we to determine the effect of any unwarranted argument. Many of our cases so hold, among which are Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905); and Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946).
Point III. The trial court was in error in permitting appellee’s attorney to elicit testimony from Bernard Hardeman that he was in position to have heard the whistle or the bell if sounded. The same issue was before this court in the recent case of Missouri Pacific R.R. Co. v. McDaniel, 252 Ark. 586, 483 S.W. 2d 569. Our holding was adverse to appellants’ claim under this point. It is what is known as “shorthand knowledge” and not an opinion. Baltimore C. & A. Ry. Co. v. Turner, 136 A. 609 (1947); Chicago C. & A. Ry. Co. v. Dillon, 15 N.E. 181 (1888).
Point IV. It was prejudicial error for the court to per mit the introduction of three photographs of the truck in which the decedent was riding. We agree that the introduction of the pictures served no useful purpose. They revealed the point of impact but that was irrelevant. Concededly, at the time they were introduced there were several issues of negligence still in the case, such as failure to keep a lookout, and one or more of the pictures may have been at that time appropriate as going to issues which were later withdrawn. Be that as it may, we are unable to say that the trial court abused its discretion. Whether photographs are helpful to the jury is to be determined by the presiding judge and again, considerable discretion is vested in the trial court. Dermott Grocery & Comm’n. Co. v. Meyer, 193 Ark. 591, 101 S.W. 2d 443 (1937).
Point V. The court erred in failing to give a requested instruction concerning the law that when a train is plainly discoverable by other means, signals cease to become a factor. Appellants offered and were refused this instruction:
When the presence of a train approaching or occupying a crossing is plainly discoverable by means other than lights, signals or flag men, then the failure to have crossing lights, crossing signals or a flag man at the crossing and the failure of the trainmen to ring the bell or blow the whistle are not relevant factors for your consideration. (Italics supplied.)
The language we have italicized covers factors which were not issues in the case and resulted in making an abstract statement of the general law. As early as 1854 this court condemned instructions containing statements of legal propositions having no bearing on the case made by the evidence. The State Bank v. McGuire, 14 Ark. 530. More recently on the point is the case of Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959).
The trial court did not state a reason for refusing the instruction but if there was a sound reason for refusing it, we should approve the action.
Point VI. The verdicts are excessive. The elements of recovery on behalf of the widow were for loss of support and for her mental anguish. The deceased was forty-five years of age and his widow was fifty-three years old. For several years immediately prior to his death Mr. Ward worked on a large farm. For the years 1968, 1969, and 1970, his wages averaged $3,378. He was furnished a house; he was furnished a pasture for his cattle which he bought, fed out, and sold; he raised hogs, chickens, and rabbits; he bought and sold used furniture; in the winter he trapped for mink and racoon; and he raised a truck garden each year, consuming and selling the products therefrom. In addition to his regular average salary he was paid a bonus averaging fifty cents to one dollar for each day he worked on the farm. He was sober, industrious, and frugal, and most of his earnings went to support his home and family.
Now as to the widow’s mental anguish. We find these statements in the abstract of her testimony. “We liked to do things together. We both liked to fish and we went fishing quite frequently. We went to the car races near Oppelo. . .It is terribly lonesome without my husband and I still miss him. . .1 have difficulty sleeping and I have been depressed.” We have many times said there is no standard by which mental suffering may be evaluated. The jury saw and heard the witness testify and was in better position to judge of her mental anguish than is this court. Furthermore, we have no way of knowing the precise amount allowed for her mental anguish. All in all, we are unable to say that the award for the widow is excessive when it covered loss of contributions, services, society, companionship, consortium, and mental anguish.
We turn now to the mental anguish awarded the three children. We find no error in the award given the youngest son, William Ward. He was twenty years old at the time of his father’s death and lived with his parents. There was evidence that the son was “terribly upset” and that emotional disturbance has continued since that time. As to the two daughters, they are married and have established homes for themselves. We have searched the abstract and find no substantial evidence that their grief was more than normal. Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961). The awards made to the two daughters are set aside.
Affirmed as modified.
Byrd, J., dissents as to modification. Fogleman, J., concurs. | [
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J. Fred Jones Justice.
At the November, general election in 1968 the qualified electors of Faulkner County voted for the use of voting machines in that county. On November 1, 1971, the appellant Robert T. Kirkwood filed a taxpayer’s petition in the Circuit Court of Faulkner County on behalf of himself and other residents similarly situated seeking a writ of mandamus requiring the appellees, Jesse Carter as county judge, and Tom Lindsey, Clarence Johnson and John F. James as the County Board of Election Commissioners, to comply with §§ 3 and 4 of Art. 12 of Act 465 of 1969 by purchasing or lease-purchasing voting machines to be used in Faulkner County.
The county judge filed a demurrer to the petition on the ground that the petition for mandamus failed to state a cause of action against him. The respondent members of the County Board of Election Commissioners filed an answer in which they attempted to explain and justify their inaction by pointing out that they had been advised, and therefore believed, that there has not been sufficient Faulkner County tax funds available for the purchase, or lease-purchase, of voting machines, and to purchase the machines under such circumstances would be in violation of Art. 12, § 4, of the Constitution of Arkansas.
Following a hearing on the petition the trial court found that on November 5, 1968, the electorate of Faulkner County voted to have voting machines installed in Faulkner County in compliance with Act 465 of 1969. The trial court found that under the petition of a writ of mandamus the court was not called on to determine the number of voting machines required to be purchased by the Faulkner County Board of Election Commissioners, but that the court was only required to determine whether there was sufficient revenue available for the purchase of voting machines. The court found that there were sufficient county funds available for the pirpose of voting machines, but that the number of voting machines to be purchased is within the discretion of the Election Commissioners. The trial court entered its order as follows:
“IT IS THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Petition for Writ of Mandamus be, and the same is hereby, granted and upon the application of the Petitioner, the Clerk of this Court is ordered and directed to issue a Writ of Mandamus to Respondents, Tom Lindsey, Clarence Johnson and John F. James, as Faulkner County Board of Election Commissioners, ordering and directing them to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased.”
On appeal to this court Mr. Kirkwood relies on the following points:
“The trial court was in error in holding as a matter of law that the number of voting machines is left to the discretion of the County Board of Election Commissioners.
The trial court was in error in sustaining the Demurer of the Respondent Judge Jesse Carter, Dismissing such County Judge from this suit.”
Amici curiae briefs have been filed in this case by interested organizations on behalf of the appellant and the case was argued orally before this court. It is apparent from the entire record that the appellant may have confused the trial court’s findings with the trial court’s order, and may have assumed, that in the light of past events, the respondent Election Commissioners would interpret the trial court’s findings and order as vesting in them full, complete and unlimited discretion in detmining how many voting machines they should purchase or lease-purchase for Faulkner County. We do not so interpret the trial court’s findings and certainly we do not so interpret the trial court’s order. The Board of Election Commissioners derive their discretion in the performance of their duties from the legislative Act creating and defining their duties, and not from the findings of a trial judge on a petition for mandamus.
It is difficult to understand the delay and the method employed by the Faulkner County Board of Election Commissioners in failing to carry out their duties in connection with this matter. It is apparent from the overall record that instead of seeking the advice of the prosecuting attorney as they had a right and obligation to do under the Constitution and laws of this state, the Election Commissioners sought and followed the advice of the county judge, whose official duties and responsibilities are entirely separate and apart from those of the Board of Election Commissioners under Act 465 of 1969, as well as in every other respect.
It is definitely suggested by the overall record in this case, that the Faulkner County Board of Election Commissioners simply did not agree with the electorate of Faulkner County as to the wisdom of spending tax money for voting machines. The record indicates that instead of proceeding, in an orderly and businesslike manner toward finding ways and means of carrying out the duties of their office under the law and the mandate of the people, the Commissioners did just the opposite by seeking ways and means of avoiding the performances of their duties under Act 465 and under the mandate of the people of Faulkner County.
It is also apparent from the record that perhaps the county judge has been under the impression that he is to approve the expenditure of funds for the purchase of voting machines before the Election Commissioners are permitted to purchase or lease-purchase them under the law. If such has been the impression and attitude of the Board of Election Commisioners and the county judge, such interpretation and attitude should have been dispelled by the order of the trial judge in this case as we interpret it.
The trial court’s finding that he was only called upon by the petition for mandamus, to determine whether money was available for the purchase of voting machines falls in the same category as the trial court’s findings as to the discretion of the members of the Board of Election Commissioners. The purpose of the writ of mandamus is not to establish legal rights or measure the discretion of public officials, but the purpose of the writ of mandamus is to enforce a right after it is already established or to enforce the performance of a duty. Howard v. McDiarmid, 26 Ark. 100; Fitch v. McDiarmid, 26 Ark. 482.
The trial court in the case at bar was called on by the petition for the writ of mandamus to enforce the perfor manee by the Election Commissioners and the county judge, of the duties imposed upon them by law in regard to the procuring of voting machines in and for Faulkner County, and as we interpret the trial judge’s order, he did just that. The trial court simply ordered the members of the Board of Election Commissioners to initiate and file a plan to purchase or lease-purchase voting machines and showing the number of voting machines to be purchased or lease-purchased. There were no duties to be performed by the county judge in connection with the purchase of the voting machines when the petition for the writ of mandamus was filed in this case, and the hearing was conducted thereon, so the trial court was correct in sustaining the demurrer. We are of the opinion that the trial court’s order directing the members of the Board of Election Commissioners to initiate and file a plan for the purchase of voting machines means, and should have recited, that they shall do so forthwith.
It is a matter of common knowledge that members of Boards of Election Commissioners are not attorneys and the membership personnel change from time to time in the various countries. The appellees’ counsel stated on oral argument in this case that the Faulkner County Board of Election Commissioners had never consulted attorneys as to its legal duties and obligations in connection with procuring voting machines until the taxpayer’s petition for mandamus was filed in this case. The issues have been considerably narrowed by the attorneys in their briefs and oral arguments. The appellees state in their brief that no one questions the duties of the Board to purchase voting machines; that the Board has never denied its duties to purchase voting machines and does not do so on this appeal. The appellees argue that the appellant has sought by mandamus to dictate to the Board the number of machines it shall purchase and as already pointed out, the appellant contends just the opposite. The appellant argues that under the order of the trial court the Board, in the exercise of its discretion, may determine that only one machine for the entire county is sufficient. We can anticipate no such gross abuse of discretion under the trial court’s order and under advice and directions from competent counsel.
We agree with the appellees that under Ark. Stat. Ann. § 3-1201 et seq. (Repl. 1956) the county Board of Election Commissioners are vested with some discretionary choices in the manner of performing their duties. We also agree with the appellees that the Board has some discretion in arranging for the manner of payment. We deem it unnecessary to discuss in this opinion all the multiple areas of discretion as alleged and argued by the appellees in their brief. The Board of Election Commissioners is now represented by competent counsel who undoubtedly have by this time advised the Board as to the extent of its discretion, and certainly as to the proper exercise of such discretion the Board members do have in the competent performance of the duties of their office pertaining to the procurement of voting machines under the statute and the election mandate.
The area of discretion most seriously questioned in this case has to do with the number of machines to be purchased under two sections of Art. 12 of Act 465 of 1969 (Ark. Stat. Ann. §§ 3-1203 — 3-1205 [Repl. 1956]), the pertinent portions of these sections are as follows:
“3-1203. * * *If the majority of the votes cast favor the proposal, the County Board of Election Commissioners shall install any voting machines approved by the State Board of Election Commissioners in all voting precincts in the County, or in the case of a City Election in all wards of the City, in which 300 persons voted in the preceeding general election in which members of the United States House of Representatives were elected. The State Board of Election Commissioners or the County Board of Election Commissioners shall have the authority to purchase or lease-purchase voting machines and payment may be provided for in such manner as is deemed best for the interests of the State, County or City in which an affirmative vote is cast under the provisions of this section.
3-1205. * * * Voting machines may be provided for all precincts in all Counties in which 100 or more persons voted in the last preceding comparable election. Precincts voting less than 100 persons may be consolidated, in conformity of the laws of this State, so that the total vote of the precincts would have exceeded 100 in the above primary or general election, or in a subsequent primary or general election, and a voting machine may then be installed in that consolidated precinct. If it shall be impossible to supply every election precinct with a voting machine or voting machines at any election following the adoption of the machines in a County or City, as many may be supplied as it is possible to procure, and the machines shall be used in precincts of the County designated by the County Board of Election Commissioners in' general elections, and by the County Central Committee in primary elections.”
It appears to us that the first duty incumbent upon the Election Commissioners under the law and under the order of the trial court, is to determine the number of voting precincts in Faulkner County where as many as 300 votes were cast, and start immediately, and continue in good faith, negotiations for the procurement of voting machines.
We conclude, therefore, that the order of the trial court sustaining the demurrer filed by the county judge should be affirmed. We also conclude that the order of the trial court as to the issuance of the writ of mandamus should be affirmed with the modification that the Commissioners start the performance of their duties thereunder forthwith, and continue such performance in good faith until their statutory duties are fully performed.
The judgment is affirmed as so modified. | [
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Conley Byrd, Justice.
This is an action by Bettye Walker Yarbrough, the only surviving heir of A. C. "Jack” Walker, to set aside a deed executed August 20th and delivered to appellees Clara A. Coats and Artie Lee Bernard by Walker as a gift on October 13th before his death on November 12, 1969. For reversal of the Chancellor’s decision upholding the deed, Mrs. Yarbrough contends that her father A. C. "Jack” Walker was mentally incompetent at the time and that the deed is void for want of a definite description of the land to be conveyed.
The test of mental competency to execute a deed is stated in Donaldson v. Johnson, 235 Ark. 348, 359 S.W. 2d 810 (1962), in this language:
“If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.”
The proof shows that Mr. Walker was an eccentric man who retired early in life. He divorced his first wife, the mother of appellant, in 1950, married a second wife, from whom he was shortly divorced, and thereafter lived with different people. He would “pop-in” and abruptly depart from visits with his relatives. In doing so he often carried a milk goat with him. He apparently met Lydia Breckenridge who was looking after him at the time of his death, at an organic food store a number of years ago. He distrusted his daughter’s business judgment so much that he had the house in which she lives and for which he paid put in the name of her aunt.
On August 5th he executed a power of attorney to appellant and her mother to execute deeds to a portion of the property involved. Thereafter he left appellant’s home and drove to North Carolina to visit appellees. While there on August 20th he acknowledged the deed in question before a notary public but returned to Arkansas with the deed. Sometime in September appellant checked him into the hospital but he left sometime in the night and woke her up in the early morning hours by pulling on her toes. On October 11, 1969, he arranged for his longtime friend and nurse Lydia O. Breckenridge to fly in from California to Hot Springs, Arkansas. About 3:00 a.m. October 12, he and his nurse departed Hot Springs to go to his ranch at Russellville, Arkansas. Monday morning, October 13 th, he borrowed Roy Dennis’ car and he and his nurse drove to a bank in Russellville where he got the deed and asked his nurse to mail it to Artie Lee Bernard in North Carolina. After returning from the bank in Russell-ville he told his nurse that they left Hot Springs just in time because “they’re after both of us. If we hadn’t gotten out we would have both been killed.” While in Russellville they used Roy Dennis’ car because Mr. Walker didn’t want his car recognized.
Lydia Breckenridge testified that when Mr. Walker was getting around so early to go to the bank, she told him that the bank would not be open to which he replied that while the bank might not be open, he still knew how to get in. When they arrived before banking hours he went in a side door and came back with the deed.
Dr. Richard E. Walters, a psychiatrist, treated Mr. Walker from October 24th to October 31st. He referred to Mr. Walker’s “perseverating or overly concentrating on keeping the control of his property.” After relating that Walker brought up these statements spontaneously the record shows the following:
“Q. What was this theme?
A. That there was someone, some group of people, that was attempting to take his property away from him; and that he had desired to preserve it by giving it away to some charitable organization.
This was not what I would call an organized delusion, in that he did not believe that a specific person or group was plotting to take it away in the terms of the communist party or foreign agents or someone of a bizarre or fantastic nature. It was more of a feeling and a sense and a fear that somehow he would not be able to control his property.
I would say it was a borderline delusion.”. . .
“Q. Doctor as a result of your examination, did you reach an opinion that is to a reasonable medical certainty as to what his mental condition was at that time?
A. The diagnosis that I made at that time was a non-psychotic — that is he was not psychotic in terms of frank distortion of reality — non-psychotic organic brain syndrome due to circulatory disturbance, that is arteriosclerosis.”
Other testimony in the record shows that while visiting with the appellees in North Carolina, Mr. Walker carried on normal conversations, located a supply of goat milk and gave his usual advice on investments. In fact Mrs. Coats followed his financial advice and obtained a $1900 short term profit on the purchase of some Federal Reserve notes. Two days after Mrs. Bernard received the deed in the mail, Mr. Walker called to see if she got the deed and advised her to have it recorded.
All parties agree that appellees visited in appellant’s home after Mr. Walker got out of the hospital. On those visits Mr. Walker recognized appellees and on one occasion took a $20 bill and sent after some fried chicken to feed them.
When the record is considered under the law set out above, we cannot say that the Chancellor’s holding that appellant had failed to show her father’s mental incompetency is contrary to a preponderance of the evidence.
We find no merit in appellant’s contention that the quit-claim deed is void for want of a definite description. The deed in question recites:
“That I, A. C. (Jack) Walker an unmarried person, Grantor for and in consideration of the sum of One and No/100 Dollars ($1.00) to me cash in hand paid, the receipt of which is hereby acknowledged, do hereby grant, sell, and quitclaim unto Clara A. Coats and Artie Lee Barnard share alike on West Side Grantee, and unto ...h...heirs and assigns forever, the following lands lying in the County of Yell and State of Arkansas, to-wit:
The South Half (Sh) of the Northwest Quarter (NW.K); the North Half (N V>) of the Southwest Quarter (SW Vi), of Section One (1), Township Five (5) North, Range twenty-one (21) West of the Fifth Principal Meridian, containing one hundred sixty (160) acres, more or less.”
As we view the deed, it definitely conveys the land to the appellees. How they may hold the land among themselves is not a controversy before this court.
Affirmed.
Brown, Fogleman and Jones, JJ., dissent; | [
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George Rose Smith, Justice.
Upon a charge of having burned a bam the appellant was convicted of arson and sentenced to imprisonment for one year. The facts are stated in our opinions upon two earlier appeals and need not be repeated. 245 Ark. 337, 432 S.W. 2d 472 (1968); 248 Ark. 395, 451 S.W. 2d 730 (1970). The appellant’s present points for reversal have to do with the selection of the jury, the admissibility of evidence, and the court’s instructions.
Juror Collins at first stated that he had an opinion about the case and that it might take evidence to remove it. He did not recall any particular item of evidence, but he had “a vague remembrance of hearing about the case and possibly hearing a portion of the testimony.” Upon further interrogation and explanation by the court, however, Collins stated that he understood his position better and that he could lay aside whatever opinion he had and try the case upon the evidence and the court’s instructions. We find no error in the court’s acceptance of the juror. The appellant had the burden of showing, by means of the voir dire examination, that Collins was subject to a challenge for cause. That burden was not met. It was not positively shown that Collins had firsthand knowledge of the facts or that he had actually heard any testimony at an earlier trial. Here the facts are materially different from those in Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970), for there the jurors ended the interrogation by stating that it would take evidence to remove their opinion. Here just the opposite is true. We do not see that Act 568 of 1969, which provides that no person shall serve as a juror who has formed or expressed an opinion “which may influence his judgment,” made any substantial change in our law. Ark. Stat. Ann. § 39-105 (c) (Supp. 1971). Whether the venireman’s opinion may influence his judgment is still a matter to be determined by the trial judge.
Later on the court excused a prospective juror whose brother was married to an aunt of the accused. Even if the court was in error in finding the juror to be disqualified, no prejudice appears. “Since a party is not entitled to have any particular juror, the erroneous rejection of a competent talesman is not prejudicial, in the ab sence of a showing that some biased or incompetent juror was thrust upon him.” Lewis v. Phillips, 223 Ark. 380, 266 S.W. 2d 68 (1954). That showing is not made in the case at bar.
The court did not err in allowing a witness to testify that one of the accused’s companions had said that there was hay in the barn. The question was asked in order to show what Satterfield’s response had been. Moreover, the presence of the hay was shown by other proof and in fact was not disputed. Nor do we perceive how the accused could have been prejudiced by the court’s action in allowing the prosecuting attorney to remind a witness that he had tried to persuade the witness to return to the scene of the fire to make notes or measurements.
The appellant contends that the court should not have allowed the witness Ross to testify that he and Satterfield had been riding around together and drinking beer or malt liquor during the afternoon before the barn was burned that same night. The testimony was not offered to prove that the accused had committed another crime; that is, drunken driving. In fact, the witness did not say that Satterfield had been drunk. We think the testimony to have been a permissible background to Ross’s further testimony that he went to the scene of the fire that night and saw Satterfield there.
With respect to the instructions, the court was right in refusing to give the accused’s Instruction 5, defining an accessory after the fact. A mere passive failure to disclose the commission of a crime does not make a person an accessory after the fact. Fields v. State, 213 Ark. 899, 214 S.W. 2d 230 (1948). Inasmuch as nothing more than such a passive failure was shown, the proffered instruction was abstract and would have been confusing to the jury. We have studied the court’s instructions with reference to the definition of accomplices and the weight to be given their testimony and find nothing that can be said to have been prejudicial to the accused.
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J. Fred Jones, Justice.
This is an appeal by Juanita L. Black from a judgment of the Pulaski County Circuit Court based on a jury verdict in favor of DeWitt T. Johnson in a personal injury suit brought by Mrs. Black against Mr. Johnson growing out of an automobile collision.
On her appeal to this court Mrs. Black relies on the following points for reversal:
“The verdict of the jury was not supported by substantial evidence.
The Court erred in failing to grant the plaintiff’s motion for new trial on the grounds of newly discovered evidence.
The court erred in failing to grant the plaintiff’s motion for new trial on the grounds of surprise at the tíme of trial.”
The record reveals the following facts: On September 12, 1968, Mrs. Black was driving her automobile east on 25th Street in the City of Little Rock, and a westbound dty bus had stopped on the north side of 25th Street at the Lewis Street intersection. As Mrs. Black drove her automobile across Lewis Street and past the bus, Mr. Johnson was driving his automobile into 25th Street from a private driveway on the north side of 25th Street approximately 75 or 80 feet east of the curb line of Lewis Street, and his automobile collided with the one driven by Mrs. Black.
Mrs. Black alleged in her complaint that Mr. Johnson was negligent in failing to yield the right-of-way, in failing to keep a proper lookout, in failing to keep his vehicle under proper control and as a result of such negligence she sustained injuries to her cervical, dorsal and lumbar spine, as well as an aggravation and acceleration of degenerative disc disease, to her damage in the amount of $38,000, and sustained damage to her automobile in the amount of $200. Mr. Johnson answered with a general denial and alleged that any damage sustained by Mrs. Black was occasioned by her own negligence in failure to yield the right-of-way, failure to keep her vehicle under control, failure to keep a proper lookout and failure to operate her vehicle at the proper rate of speed under the circumstances.
Under Mrs. Black’s first point she apparently recognizes the well established rule that if there is any substantial evidence to sustain the jury verdict, we must affirm the judgment rendered thereon. Mr. T. A. Owen testified that at the time of the collision he investigated the accident. He testified that 25th Street was 26 feet wide and that he determined, from the debris on the street, that the point of impact between the two vehicles was 19 feet south of the north curb of 25 th Street, and approximately 79 feet east of the east curb of Lewis Street. He said that Mr. Johnson stated to him that he was traveling between five and eight miles an hour coming out of the driveway into the street when the collision occurred; that Mrs. Black’s automobile had traveled some distance up the street from where he determined the point of impact had occurred, and that he does not remember where Mr. Johnson’s automobile was following the accident. He testified that Mrs. Black stated she was going 20 miles per hour and he found no skid marks behind either automobile. He testified that Mr. Johnson’s automobile was damaged on the right front and that the debris he noticed consisted of a piece of chrome from an automobile and dirt covering an area approximately two feet wide and six feet long.
Mrs. Black testified that she was going east on 25th Street and then testified in part as follows:
“A. * * * There was a bus stopped on Lewis there and I didn’t know whether they were loading or unloading school children because it was about Seven Thirty in the morning, and I had slowed up and I got almost passed the bus and I glanced and saw Mr. Johnson coming out of his driveway, headed north and I tried to speed up a little bit, but I didn’t make it and he hit the left side of my Rambler on the back door and dented it to where I had to have it repaired, tore the chrome off.
Q. Mrs. Black, did you have an opportunity to do anything to avoid this accident?
A. Nothing only I tried to speed up a little bit and I didn’t make it. I wasn’t going very fast.”
Mrs. Black testified that it cost $146 to have her automobile repaired; that by the time she got her automobile stopped she was very nervous but didn’t feel any pain at that time. She said she went to Dr. Lohstoeter four days after the collision and at that time was having pain in her low back and was having terrible headaches. She testified that she continued to return to Dr. Lohstoeter at intervals for almost a year and although the collision occurred almost three years ago, she still has difficulty which is growing worse as far as her nerves, legs and back are concerned; that she still has pain in her neck and still has headaches.
On direct examiniation Mrs. Black testified as to medical bills she had been out since the injuries and also testified as to an estimate made of her automobile damage in the amount of $146.60 which she paid for the repair of her automobile.
On cross-examination Mrs. Black testified that prior to the accident she had been going to Dr. Ogden for treatment since 1962 and had been receiving shots for her spine from Dr. Ogden from about 1967. She said that these shots given her by Dr. Ogden were for relaxing her muscles and that she had been going to see him immediately prior to the accident.
“Q. But you didn’t go to see him after this accident?
A. No, because it was an orthopedic job, he’s no orthopedic, he’s just an M.D. and surgeon.
Q. Okay. But he had been treating you for the back problem?
A. He gave me shots in my spine to relax the muscles.
Q. Since 1967?
A. I’m not taking them now.
Q. Okay, but from 1967, up until the time of the accident?
A. Along in there, in ‘67 for about six months, he gave me shots in my spine to relax the muscles. I hadn’t been to him since. Is that clear, is that what you wanted to know.”
On cross-examination Mrs. Black testified that she gave a check for repairs; that she did not have the canceled check with her and did not sign a ticket. She testified that the automobile was repaired about three days after the accident. She then identified her signature on a ticket from Twin City Rambler, Inc. dated September 13, 1968, in the amount of $30.02 representing labor in the amount of $21 for painting left rear door and quarter panel. She testified, however, that this ticket, although dated the day following the accident, was not for repair of the damage occasioned in the collision, and that she does not know where that ticket came from. She testified that she had surgery on her back consisting of a laminectomy in 1940 or 1942 and had a myelogram in the Missouri Pacific Hospital in 1962. She said that she had been in Missouri Pacific Hospital two or three times for pain in both legs since 1962 and had continued taking spinal injections from Dr. Ogden from 1962 up until the time of the collision.
Mrs. Black testified on cross-examination that she did not know how fast Mr. Johnson’s automobile was moving at the time of the collision, she then testified on cross-examination as follows:
“Q. You didn’t leave any skid marks in the street??
A. I didn’t skid any.
Q. You didn’t even put on your brakes?
A. Yes, I did.
Q. Before the accident?
A No, sir, I tried to get out of the way of him.
Q. You stepped on the gas?
A. I did.
Q. You didn’t try to stop.
A. I did stop as soon as he hit me.
Mr. Doyle Blackburn testified that he was the owner and manager of the Twin City Rambler, Inc. He testified that he had searched the records concerning repairs to Mrs. Black’s automobile for the month of September, 1968, and found only the one bill which was the bill already referred to and offered in evidence as defendant’s exhibit No. 1. The record on this point shows as follows:
“MR. BAKER: Your Honor, offer Defendant’s Exhibit 1.
MR. LARRISON: No objection.
THE COURT: Received.
MR. BAKER: That’s all I have.”
On cross-examination Mr. Blackburn testified that in many instances an estimate of damage to an automobile is made in one amount and, all the repairs may. not be made and paid for at the same time. According to Mr. Blackburn the estimate of damage and cost of repairs were made on September 12, 1968, in the amount of $146. The repair bill was dated the following day in the amount of $30.02 and the bill was paid four days later on September 17, 1968.
Dr. John Lohstoeter testified as to a change in the normal curvature of Mrs. Black’s cervical spine which he attributed to the accident, and also concluded that Mrs. Black had some aggravation in the lumbar spine where she had previously had a laminectomy.
Mr. Johnson testified that on the day of the accident he had gone to Mrs. Atchley’s house to pick her up to baby-sit for his wife. He said that he backed his automobile into the Atchley driveway on the north side of 25th Street and as he started to leave he stopped his automobile with its front end in 25th Street and waited for a pickup truck to pass on 25th Street. He testified that he was still stopped with the rear portion of his automobile still in the Atchley driveway when Mrs. Black drove her automobile into his automobile. He said he does no believe his automobile extended to Mrs. Black’s proper side of the street at all when Mrs. Black struck his automobile. He testified that the damage was very light to both automobiles. Mr. Johnson testified on cross-examination that his automobile was completely stopped when the collision occurred and that he did not tell the police officer otherwise. He testified that his automobile was completely in his westbound lane of 25th Street when the accident occurred He said there is no center line marked on 25th Street and that he does not believe any part of his automobile was across the center of the street. Mr. Johnson testified that the bus was stopped in the westbound lane of 25 th Street at the intersection of 25th and Lewis Streets. He said he did not know exactly how far the bus was from his automobile at the time of the collision, but he estimated that it was about two or three car lengths from the Atchley driveway.
Mrs. Myrtle Atchley, the passenger in Mr. Johnson’s automobile, corroborated Mr. Johnson’s testimony that the Johnson automobile was stopped when the accident occurred She also testified that Mr. Johnson’s automobile had not crossed the center of the street when the collision occurred. She testified that she was still drinking some coffee she brought from her house when the collision occurred and that the collision impact was not severe enough to cause her to spill the coffee from the cup.
We are of the opinion that there is substantial evidence in the form of Mrs. Black’s own testimony from which the jury could have found that when Mrs. Black observed the Johnson automobile coming out into the street from the private driveway, and instead of slowing down, stopping, or yielding the right-of-way to the Johnson vehicle, she negligently accelerated her speed in an effort to pass in front of Mr. Johnson before he temporarily blocked her passage, and that she thereby collided with the Johnson automobile. From the testimony of Mr. Johnson and Mrs. Atchley the jury could have found that the Johnson vehicle was completely stopped on its side of the street and that Mrs. Black negligently ran into it.
As to Mrs. Black’s second and third points, in support of her motion for a new trial she presented the affidavit of Mr. John Lanier, the bodyshop foreman for Twin City Rambler, Inc., who stated that Mr. Black brought his automobile to Twin City Rambler, Inc. for repairs on September 12, and that he prepared the estimate for Mr. Black which was offered in evidence as plaintiff’s exhibit A. He stated that Mr. Black needed the automobile repaired as soon as possible and that he took the automobile to his home and repaired it over the weekend of September 14 and had the damaged area painted at Twin City Rambler, Inc. He stated in his affidavit that the painting and one body side molding were all that were billed through Twin City Rambler, Inc. since the work was performed on the automobile in his off time. He stated that Mr. Black paid him by check in the amount of $146.61 which was the amount stated in the original estimate, and that of this amount approximately $30 was paid to Twin City Rambler, Inc. for the work performed at Twin City Rambler, Inc.
Mrs. Black contends that the court erred in not granting a new trial on this newly discovered evidence. Ark. Stat. Ann. § 27-1901 (Repl. 1962) provides as follows:
“A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:
# # #
Third. Accident or surprise which ordinary prudence could not have guarded against.
* * *
Seventh. Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.”
In Sellers v. Harvey, 220 Ark. 541, 249 S.W. 2d 120 (1952) we said:
“This court has consistently applied the following rules in considering an application for a new trial on the ground of newly discovered evidence under the seventh sub-division of Ark. Stats., § 27-1901: First, the testimony must have been discovered since the trial; second, it must appear that the new testimony could not have been obtained with reasonable diligence on the former trial; third, it must be material to the issue; fourth, it must go to the merits of the case, and not to impeach the character of a former witness; fifth, it must not be cumulative. John Robins v. Absalom Fowler, 2 Ark. 133; Mo. Pac. Transportation Co. v. Simon, 200 Ark. 430, 140 S.W. 2d 129.
Another settled rule is that the motion is addressed to the sound discretion of the court and this court will not reverse for failure to grant it unless an abuse of such discretion is shown. Forsgren v. Massey, 185 Ark. 90, 46 S.W. 2d 20.”
We are of the opinion, therefore, that the trial court did not abuse its discretion in refusing to grant a new trial. A full explanation of the repair bills was available to Mrs. Black at the time of the trial. On direct examination Mrs. Black placed in evidence the repair estimate in the amount of $146.61 and testified that she paid this amount by check. She was not in a position to claim surprise when she was cross-examined on this item and rebuttal evidence was offered without objections. Furthermore, it is clear from Mr. Blackburn’s testimony that a part of the repair bill could have been paid at one time and a part at another. Mrs. Black testified that she drove the damaged automobile down to the garage following the collision and then went to her attorney’s office. She testified:
“A. I put my car in the garage, yes, sir.
Q. At the Twin City American Rambler?
A Yes, sir, at Fourth and Cross.
Q. Did they repair it that day?
A. No, sir.
Q. The next day?
A. It was about three days later.
Q. Three days before you got it back?
A Yes, sir.
Q. Was all the damage that was done repaired?
A Yes, sir.
Q. Do you remember signing a ticket out there?
A Out where?
Q. Out at the Twin City American where you car was repaired?
Q. When I gave them the check, I didn’t sign no ticket.
Q. You gave them a check?
A Yes, sir.
Q. Do you have that with you here today?
A No, I do not.”
It should not be overlooked that Mr. Black also testified immediately following the testimony of Mrs. Black and although the affidavit of Mr. Lanier indicates that the entire transaction concerning repair to the automobile was had with Mr. Fred B. Black, Mr. Black made no effort to clear up any discrepancy in Mrs. Black’s testimony concerning the repair of the automobile.
We conclude, therefore, that the appellant’s second and third points are without merit.
The judgment is affirmed. | [
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Frank Holt Justice.
This appeal results from a directed verdict. The appellant brought this action against the appellee to recover damages for injuries received by her when she tripped and fell because of a loose wire lying upon a public sidewalk. After appellant presented her case, the trial court granted appellee’s motion to dismiss on the basis that the appellant had not met the burden of proof to sustain her allegations of negligence as asserted in her complaint. For reversal of that judgment the appellant contends on appeal that: “The trial court erred in holding that the record in this cause contains no substantial evidence of negligence on the part of the appellee causing the injuries suffered by the appellant.” We cannot agree with appellant.
On appeal from a directed verdict we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the directed verdict was entered and reverse only where the evidence, although not in dispute, is of such a substantial nature that fair-minded men might draw different conclusions. Collett v. Loews, 203 Ark. 756, 158 S. W. 2d 658 (1942); Wortz v. Fort Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691 (1912).
Appellant testified that the accident occurred near her residence between 7:30 and 8 p.m. when she tripped and fell on a loose wire lying across a sidewalk. About 3 o’clock that afternoon, as she walked by, she noticed the wire being loose and wrapped around a pole near the sidewalk. The accident was immediately reported to the local city water and light offices in the belief the wire was their property.
Appellant relies primarily upon the testimony of an employee of that city facility to establish negligence on the part of appellee. This witness testified that he had investigated the area and found a guy wire belonging to appellee lying across the sidewalk at the scene of the reported accident. One end of this 20-foot wire was connected to a pole at a point about 15 feet above the ground; the other end of this steel guy wire had been broken loose at the ground anchor. The anchor was positioned 3 or 4 feet from the uncurbed street and within an easement. According to this witness, normally the city water and light plant would put a protective guard around a guy wire anchor in areas where it was thought needed and while this guard would not actually protect the anchor from heavy objects, it would make the guy wire and anchor more visible. He did not recall any such protective guard around this broken guy wire.
On cross-examination this witness testified that the severed guy wire was constructed of material and of the width normally used in this type business or trade and that it was “a regular guy wire.” The anchor was constructed in a “manner which is reasonable and customary for the type of wire.” The anchor was bent and “looked like to me maybe a car had backed into it, broke it”. He could not recall the size but assumed that it was a quarter-inch steel cable. He testified that a person could not break the cable with his hands and that it would take something pretty heavy, “like a car or truck” to break it. He had not observed or had any knowledge of the broken cable before his office received the telephone call on the night of the accident. He knew of no city ordinance requiring a guard around a guy wire anchor.
When we review the evidence and all reasonable inferences in the light most favorable to appellant on appeal, as we have indicated, we agree with the trial court that the evidence is insubstantial to sustain appellant’s burden of proof as to her allegations of appellee’s negligence.
Appellant also contends that the doctrine of res ipsa loquitur applies in the case at bar. In Penny v. Gulf Refining Co, 217 Ark. 805, 233 S. W. 2d 372 (1950) we said: Res ipsa loquitur has no application unless the evidence in the particular case has a substantial tendency to show negligence in the defendant and in nobody else.” In Kapp v. Sullivan Chev. Co, 234 Ark. 395, 353 S. W. 2d 5 (1962) we cited with approval from 37 Words and Phrases, Res Ipsa Loquitur, page 488: “The mere happening of accident does not justify recourse to 'res ipsa loquitur’ rule in personal injury suit, but accident must further appear to be without explanation in light of ordinary experience, except on theory of defendant’s negligence to render rule applicable.” See, also, Dollins v. Hartford Acc. & Inc. Co., 252 Ark. 13, 477 S.W. 2d 179. In the case at bar we cannot agree with appellant that the doctrine of res ipsa loquitur can be invoked to establish a prima facie case that appellee was negligent and the proximate cause of appellant’s injuries.
Appellant also contends that appellee is a public utility and, therefore, governed by Ark. Stat. Ann. 73-267 (Repl. 1957). This statute requires that public utilities owning wires and equipment located along or across public or private ways shall maintain such wires in a reasonably adequate and safe manner. Assuming, without holding, that appellee is governed by the pertinent provisions of this statute, we cannot say that appellant has met the burden of proof that appellee was in violation of this statute or any city, state, or governmental regulation.
Affirmed. | [
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George Rose Smith, Justice.
This is a suit brought by the appellees, a group of neighboring homeowners in Little Rock, attacking an ordinance that rezoned two contiguous tracts in the city. The chancellor set aside the ordinance, holding it to be arbitrary and capricious. Inasmuch as the plaintiffs’ right to relief clearly appears to be barred by the doctrine of laches, we find it unnecessary to discuss the facts bearing upon the validity of the ordiance.
The two tracts, one comprising two acres and the other half an acre, were formerly owned by the Arkansas Episcopal Diocese. The tracts were then zoned for one-family residential use. The Diocese decided to sell the property. Richards, the principal appellant, contracted to buy the property, on condition that the larger tract be rezoned for apartment use and the smaller tract for quiet-business use. To that end Richards acted for the Diocese in seeking a reclassification of the property.
The municipal planning commission recommended that the application for rezoning be denied, on the ground that its approval would constitute spot zoning. The applicants took an appeal to the city’s legislative body — the Board of Directors — before whom the applicants contended that the two tracts could not as a practical matter be used as sites for single-family residences, principally because of the proximity of Interstate Highway 30 to the south. Neighboring landowners formed an association to combat the application and appeared at the Board of Directors meeting, where they contested the petition. Despite that opposition the Directors, on November 3, 1969, adopted an ordinance rezoning the tracts.
Richards waited about eight months, during which no suit was instituted by the protestants, before he completed his purchase from the Diocese. He testified that he paid $32,500 for the property, which at the time of trial he considered to be worth $16,000 to $18,000 for one-family residential use and $60,000 for apartment and quiet-business use. Thereafter he incurred substantial additional expense with respect to topographical surveys, engineering studies, development plans, and architectu ral designs. Finally ready to proceed with construction, he applied for a building permit in July, 1971. About a week later the landowners filed this suit, attacking the validity of the ordinance that had been passed some twenty months earlier.
The governing principles of law are not open to doubt. A suit such as this one seeks an equitable remedy and is subject to those defenses, including laches, that are commonly available in such proceedings. Anderson, American Law of Zoning, § 23.15 (1st ed., 1968). The doctrine of laches is ordinarily applied to situations in which the complainant has stood idly by while the other party has materially changed his position. In Hamilton v. Smith, 212 Ark. 893, 208 S.W. 2d 425 (1948), the plaintiff, who claimed an easement, delayed filing suit for an injunction until the defendant had spent about $2,000 toward the construction of a house that assertedly encroached upon the easement. In denying the plaintiff’s claim to affirmative relief we pointed out that “equity will lend its aid only to those who are vigilant in asserting their rights. Sims v. Petree, 206 Ark. 1023, 178 S.W. 2d 1016. This principle is especially applicable where, as here, the suitor has sought to invoke a drastic remedy such an injunction, and it has often been held to bar one who waits until another party has expended a considerable sum. . .before asking an injunction against the completion and maintenance of such a structure.”
The principles announced in that opinion, and in many others to the same effect, are controlling here. The protesting homeowners had notice of the application for rezoning and in fact actively opposed it, without success. Upon the passage of the ordinance reclassifying the property the next move was up to the protestants, for the Diocese and Richards could not seek redress in the courts with respect to an ordinance giving them all the relief they sought. Nevertheless, Richards waited eight months before completing his purchase. He then paid, according to his testimony as an experienced real estate dealer, at least $14,000 more than the property was worth as originally classified. Still the protestants took no action. Richards then expended additional sums in going ahead with his plans to develop the property. At last, when Richards had reached the final step of applying for a building permit, the protestants took affirmative action to invalidate the ordinance that had been passed twenty months earlier. No excuse for their protracted delay is offered. In the circumstances a court of equity must hold that they have slept upon their rights for such an unreasonable length of time that they are precluded from obtaining affirmative relief.
Reversed and dismissed. | [
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Conley Byrd, Justice.
Appellant Carthel Dee Williford was found guilty of incest and sentenced to 10 years in the Penitentiary. For reversal he contends the trial court erred:
“1. In overruling the demurrer to the information;
2. In allowing appellant to be interrogated about an alleged intercourse with another person;
3. In refusing a continuance to secure a rebuttal witness; and
4. In allowing the prosecutrix to testify to previous acts of intercourse.”
I. The information here charged appellant with incest committed as follows:
“The said defendant in Pulaski County, Arkansas, on or about the 24th day of July, 1970, did unlawfully and feloniously engage in sexual intercourse with his fourteen year old daughter, Rhonda Williford, against the peace and dignity of the State of Arkansas.”
The statute, Ark. Stat. Ann. § 41-811 (Repl. 1964), under which appellant was charged provided:
“Persons marrying, who are within the degrees of consanguinity within which marriages are declared by law to be incestuous, or void absolutely, or who shall committ adultery or fornication with each other, shall be deemed guilty of incest.”
To sustain his demurrer appellant points out that the information is totally lacking in allegations of his marital status and fails to allege either adultery or fornication. In Martin v. State, 58 Ark. 3, 22 S.W. 840 (1893), a similar demurrer was held good but in so doing, this court recognized that the ruling was somewhat technical. Other courts hold to the contrary and indicate that the rule in Martin v. State is a minority view. See Wood v. State, Okla. Cr. App., 116 P. 2d 734 (1941). The technical views set forth in Martin v. State, supra, have been overruled by Init. Meas. 1936, No. 3, §22, now codified as Ark. Stat. Ann. § 43-1006 (Repl. 1964). In Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943), it was pointed out that this section was adopted for the purpose of simplyfing procedure in criminal cases and eliminating superfluous technical defenses. It follows that the trial court properly overruled appellant’s demurrer.
II. The trial court did not err in allowing appellant to be asked on cross-examination if he was guilty of also molesting his step-daughter Janet Williford and in allowing the State to inquire if he had joined in a wife swapping incident. See Black v. State, 250 Ark. 604, 466 S.W. 2d 463 (1971). While in Adams v. State, 229 Ark. 777, 318 S.W. 2d 599 (1958), we held similar questions to be improper and highly prejudicial when they were asked without any basis whatever, it cannot be said that the prosecution here had no basis for asking the question relative to Janet Williford and the appellant made no objection to the wife swapping question.
III. Joe Poe, a State witness, testified that he had known appellant fro some time and that in August of 1970, the prosecutrix and her two sisters talked to him about the charge and he advised them to go to the police. On cross-examination appellant’s attorney asked him if he had been kicked out of the ministry as a Missionary Baptist preacher because of adultery. Mr. Poe testified that he had not. After the State had rested, appellant moved for a continuance to subpoena certain records of a church at Benton, Arkansas. The trial court- refused the continuance and we cannot say under the record here that he abused his discretion in refusing the continuance. See Eddy v. State, 165 Ark. 289, 264 S.W. 832 (1924).
The prosecutrix testified that appellant had had intercourse with her once or twice a month since she was eleven years of age and that she was fourteen at the time of the occurrence on July 24, 1970. This testimony was properly admitted, see Wood v. State, 248 Ark. 109, 450 S.W. 2d 537 (1970) and Adams v. State, 78 Ark. 16, 92 S.W. 1123 (1906).
Affirmed. | [
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George Rose Smith, Justice.
The question here is whether the appellee, who is the father of the appellant’s former husband, can garnishee the appellant’s one-half interest in the net proceeds derived by the appellant and her former husband from the voluntary sale of their homestead. We find that the circuit court was right in holding that the fund in question is not exempt from the claim asserted by the appellee.
In 1970 the appellant obtained a divorce in the Washington chancery court. The parties owned a homestead in the county as tenants by the entirety. They had agreed upon a property settlement by which the homestead would be listed with a real estate broker for sale at a reasonable price. The divorce decree approved that arrangement. The property was eventually sold by the broker in 1971, the net proceeds of sale amounting to $2,051.55.
While the real estate broker was still holding the proceeds of sale the appellee brought this action against the appellant and her former husband, to recover the sum of $2,100.71 which the appellee had been compelled to pay as a result of having indorsed a note executed by the appellant and her former husband to a bank. Upon filing this action the appellee caused a writ of garnishment to be served upon the real estate broker, who has paid the proceeds of sale into the registry of the court. The appellant, having been awarded custody of the couple’s two minor children, contends that she is the head of the family and is therefore entitled to assert a homestead exemption in her half of the proceeds derived from the sale of the homestead. The circuit court rejected that contention.
The court was right. When the owner of a homestead voluntarily sells the property, the proceeds of sale are not exempt. Drennan v. Wheatley, 210 Ark. 222, 195 S.W. 2d 43 (1946). On the other hand, when the property is subjected to a forced sale, the debtor’s share of the proceeds is exempt if he intends to use the money to acquire another homestead. Sims v. McFadden, 217 Ark. 810, 233 S.W. 2d 375 (1950). Here the former rule applies, for the parties voluntarily agreed to list the property with a broker for sale at a reasonable price. We are not called upon to decide whether a sale ordered by the chancellor under Act 340 of 1947, Ark. Stat. Ann. § 34-1215 (Repl. 1962), might in some situations be considered to be a forced sale.
The appellant, to support her claim of exemption, cites our decision in Williams v. Williams, 245 Ark. 475, 432 S.W. 2d 830 (1968), where we held that the husband’s share in the proceeds derived from a court-ordered sale of the homestead could not be subjected to the wife’s judgment for delinquent child support. There, however, the wife argued only that the homestead exemption should not as a matter of policy be available against a judgment for child support. She did not argue that the court-ordered sale was voluntary rather than forced. Consequently that argument was waived. Missouri Pac. R.R. v. Harding, 188 Ark. 221, 65 S.W. 2d 20 (1933). Hence the decision is authority only for the rule specifically stated, that a homestead is exempt from a judgment for child support.
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Fred Pannell from an adverse decree of the Phillips County Chancery Court in a suit- brought by Pannell to have title confirmed and quieted in him, as against Cecil L. Earls, E. M. Regenold, et al. The land involved consists of approximately 2,000 acres lying east of the Mississippi River and attached to the state of Mississippi on the river’s eastern shore. The appellant contends that the land has always been in Phillips County, Arkansas, and that by avulsive action in 1858 the river changed its course severing the land from the rest of Arkansas and by subsequent accretions attaching it to the state of Mississippi. The appellees content that the land was never a part of the state of Arkansas but became a part of the state of Mississippi by gradual accretion to the east bank of the river throughout the years since 1830.
The chancellor found the lands to be in the state of Mississippi and the Phillips County Chancery Court without jurisdiction of the subject matter. The chancellor dismissed Pannell’s petition for want of equity and on appeal to this court Pannell relies on the following point for reversal:
“The court erred in holding that the land is in the state of Mississippi and that it was without jurisdiction to try title thereto.”
The facts appear as follows: In February, 1967, Mrs. Doris B. Pannell, the wife of the appellant, obtained an Arkansas State Land Commissioner’s deed to land in Phillips County described as follows:
“SVz Frl SE Sec 8-5S-3E-40.41 acres S5* Frl SW Sec 8-5S-3E-27.40 acres.”
This deed indicates that these lands were forfeited to the state under the above descriptions for the nonpayment of taxes in 1904 and 1906 respectively. On February 20, 1967, Mrs. Pannell also obtained an Arkansas State Land Commissioner’s deed to land in Phillips County described as follows:
“Fral. all Sec. 17-Twp. 55-R3E-302.32 acres.”
This deed indicates that the land was forfeited to the state under the above description for the nonpayment of taxes in 1927. On January 15, 1969, Mrs. Pannell deeded this property to Beverly Kathleen Schaffhauser by special warranty deed reciting the description as follows:
“All of Fractional Section 17; SIS Frl. SEM of Section 8; and the SH Frl. SWM of Section 8; all in 5S-3E, Phillips County, Arkansas, and all accretions thereunto belonging, which said original lands and accretions would be described if the Township, Range and Section lines be extended Eastward as all of Sections 7, 8, 9, 16, 17, 18, 19 & 20, 5S-3E, which lie East of the present main channel of the Mississippi River and West and North of the abandon channel of the Mississippi River marking the state line between the states of Arkansas and Mississippi and referred to on maps and charts as ‘Old River.’ ”
On January 22, 1969, Schaffhauser deeded the property back to Mrs. Pannell and Sam J. Howe under the same description and on January 27, 1969, the appellant Fred Pannell obtained a special warranty deed from his wife and Mr. Howe to land under the same description as above. It appears from the pleadings and evidence that the above lands are also claimed as lands in the state of Mississippi by the appellees.
This case was tried for two weeks in the chancery court and both sides submitted numerous exhibits as well as voluminous expert and lay testimony in support of their respective contentions. The determining factor before the chancellor actually boiled down to the fact question of whether this land became a part of the state of Mississippi by accretion or whether it was cut off from the rest of Arkansas by avulsive action of the Mississippi River. The question before us on appeal is whether the chancellor’s decree is clearly against the preponderance of the evidence.
The division line between Arkansas and the state of Mississippi is fixed as the middle of the main channel of navigation of the Mississippi River. Article 1, Arkansas Constitution 1874; Arkansas v. Mississippi, 250 U. S. 39, 63 L. ed. 832, 39 S. Ct. 422. The appellant argues he clearly proved by the preponderance of the evidence, that prior to 1858 the land involved was on the west and Arkansas side of the main channel of the Mississippi River and that by avulsive action occuring in 1858, the river changed its course to its present position leaving the land involved as an island on the east side of the main channel of the river and by subsequent accretions it became attached to the east shore.
The appellees argue that the appellant has failed to prove such avulsion occurred in 1858 or at any other time. They argue that the river gradually changed its course to its present position by eroding away the Arkansas shore, and that the land involved was added to the state of Mississippi by gradual accretion and not by avulsion.
A riparian owner of land in Arkansas who undertakes to prove Arkansas title to land on the east shore of the Mississippi River, has a considerable burden in proving that the land was severed from Arkansas by sudden avulsion. This is true because there is a strong presumption in favor of the permanency of land boundary lines. See Wyckoff v. Mayfield, 280 P. 340 (1929), 9 C. J. § 300. Furthermore, when land lines are altered by the movement of a stream, the weight of authority, both state and federal, appears to recognize a strong presumption, founded on long experience and observation, that the movement occurs by gradual erosion and accretion rather than avulsion. United States Gypsum Co. v. Reynolds, 18 So. 2d 448 (1944); Dartmouth College v. Rose, 133 N. W. 2d 687 (1965); Kitteridge v. Ritter, 151 N. W. 1097; Bone v. May, 225 N. W. 367.
It would serve no useful purpose to set out in detail the evidence in this case. Suffice it to say, both sides presented conflicting expert testimony as to the hydraulics of the changing thalweg of the Mississippi River as related to its erosive effects on both banks of the river. Both sides presented conflicting evidence as to the significance of forestry and vegetation found on and in the area involved. The appellant offered maps from the United States General Land Office Survey of 1830 showing the land involved to be partially on “Island 64” with the main channel of the Mississippi River running east of the island and an “island chute” running west of the island between Island 64 and the remainder of Phillips County, Arkansas. Later maps offered by both sides show the area involved to be on the east side of the main channel of the river and firmly attached to the general land mass forming the state of Mississippi.
The appellant relies heavily on probate court records, and most heavily on a map or plat in connection with the administration of the estate of Jehoida Halsey under his will made and probated in Coahoma County, Mississippi, in 1866. For the purpose of our discussion here we may assume that Halsey owned land in Phillips County by deed of conveyance dated 1857 with description as follows:
“SW Frl Vi (West of East Island Chute and west Frl of the NW Frl M of Frl Section 17-5S-3E, in the District lands subject to sale at Helena, Arkansas, containing 118.26 acres.”
An abstract of title was submitted in evidence and according to the abstract, on August 15, 1866, this land was sold to William I. Robson under the residuary clause of Halsey’s will. The description in the executor’s deed is as follows:
“Island 64 being all of Section 17 and all of Section 18 South of the dividing line between Jones Halsey’s heirs except Henry’s interest, according to recent Survey 393,34 acres and 127.50 acres of Batture, in Township Five South, Range Three East in Phillips County, Arkansas.”
It is in connection with the “recent survey” recited in this deed that the map or plat designated “Fontaine Survey” was introduced. For a clearer understanding of its significance we are reproducing it here.
It will be noted that in the executor’s deed to William I. Robson the deed recites the conveyance of “Island 64 being all of Section 17 and all of Section 18 South of the dividing line,” etc. (Emphasis added). It will also be noted from the map or plat, that what appears to be the main channel of the Mississippi River is designated “Mississippi River Cutthru 1858” and the land lying in Section 18 west of the river is designated “Old Island 64,” (emphasis added), and the land lying east of the main channel is designated “East Island 64 or Robson Island.” (Emphasis added). Also on a part of “Old Island 64” and west of the main channel of the river is shown a dead end appearing area designated as “Old Chute,” and east of “East Island 64 or Robson Island” is designated a dead end appearing area labeled “Old Bed Mississippi River.” It would appear therefore, if the designations on this exhibit represent the result of an avulsion occuring in 1858, the river channel did not change to the original “East Island Chute” as would have appeared logical, but it took a less logical course through the middle of Island 64 and did not bother to fill its original bed or the East Island Chute. According to this exhibit, on July 2, 1866, “Old Island 64” was attached to the state of Arkansas and “East Island 64 or Robson Island” was attached to the state of Mississippi, with the exception of the dead end area designated as “Old Bed Mississippi River.”
It is also noted from the abstract of title, when William I. Robson transferred this land to Merlin Perry, three days after he purchased it, no reference is made to “Old Island 64” and “East Island 64 or Robson Island,” but the land is simply described as:
“Island 64, being all of Section 17 and all of Section 18 South of the dividing line between Jones and Halsey’s heirs except Henry’s interest, according to recent Survey 393.34 acres and 127.50 acres of Bottom in Township 5 South, Range 3 East.”
According to the abstract of title, in 1868 Sarah A. Perry deeded this land to Dewitt C. Hughey and John R. McGuire, under description as follows:
“The NW frl. M of Section 17,
SW frl Vi of Section 17,
NE frl Vi of Section 17, et al lands, all in 5S-3E, containing about 400 acres all on Island No. 64.”
Other trust deeds of record through 1877 refer to the land as being 400 acres on Island 64. On February 8, 1879, Hughey and McGuire executed a deed to Prince Malloy describing the land as follows:
“NW Frl Vi Section 17, 152.72 acres;
SW Frl Vi Section 17, 61.23 acres, all in 5S-3E et al land.”
Except for forfeitures for nonpayment of state taxes and levee district assessments, no further reference is made to the acreage in the land until in 1926 when the state Land Commissioner of Arkansas made a deed to C. W. Hunter reciting conveyance of:
“All Fractional Section 17, Twp 5S, Rge 3E, containing 302.13 acres, more or less.”
This deed, however, was based on a 1904 forfeiture. In 1928 C. W. Hunter made a warranty deed to “C. W. Hunter Company” describing the land as:
“All Frl Section 17, Twp 5S, R3E — 302.13 acres, et al lands, Phillips County, Arkansas.”
No additional transfers of this land appear of record until the 1967 deed from the state Land Commissioner to Doris B. Pannell.
This so-called Fontaine survey map with its designated “Mississippi River Cutthru 1858” is the primary evidence upon which appellant relies to sustain his theory that the land involved was separated from the Arkansas mainland by avulsion in 1858. This instrument was vigorously attacked by the appellees who offered expert testimony that the paper on which the instrument was drawn contanined the element titanium which was not used in the manufacture of paper prior to 1932. The appellees also produced a handwriting expert who testified that the spencerian handwriting in which this instrument is drawn was accomplished, not in a bold freehand style, but by small separate strokes of the pen. It does not require an expert to detect the last above observation for it is obvious, even from the photographic copy in the abstract of title, that the flourishes to the handwritten letters were done in small short strokes of the pen. If it was the intention of the scrivener to pass the document off as the original of an ancient map or plat, his efforts were crudely performed and his purpose poorly accomplished.
Even though the integrity of this instrument was severely impeached as an original map or plat prepared by Surveyor Fontaine in 1866, that does not necessarily mean it was fraudulently prepared and secretly inserted in the probate record books pertaining to the probate of the estate of Jehoida Halsey and where, theoretically, it had lain loose and without observation for over 100 years. It is entirely possible that this instrument was copied from one previously prepared and the scrivener doing the copy work attempted to simulate the spencerian style of penmanship used in the original and in doing so, simply had more time on his hands than fraud on his mind. Aside from the conflicting evidence as to how this instrument was found loose in one of the probate record books in Phillips County, there is no authenticity whatever attached to it as a surveyor’s map or plat of the area indicated. There is ample evidence to indicate that this plat referred to as “Fontaine survey” is at most, a freehand copy drawing of some other instrument which could have been as easily prepared for the purpose of demonstrating contentions as recording or demonstrating facts. This land was involved in court litigation on previous occasions and the instrument could have been prepared by a witness for use in testifying in previous and related litigation as well as in the case at bar. This instrument on its face would indicate that it was prepared for some purpose other than to accurately set out and record events in the vicinity in 1858, and certainly the notation “Mississippi River Cutthru 1858” could have been self-serving as well as strictly hearsay.
We agree with the chancellor that the appellant failed to sustain his burden of proving the alleged effects of an avulsion on the Mississippi River occuring in 1858. In any event, we are unable to say that the chancellor’s decree is against the preponderance of the evidence.
The decree is affirmed.
Fogleman, J., not participating. | [
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Frank Holt, Justice.
The Appellant was charged by felony information with the crime of the sale of marihuana in violation of Act 590 of 1971 (Ark. Stat. Ann. §§ 82-2601 — 38 (Supp. 1971). The trial court, sitting as a jury, found appellant guilty and sentenced him to one year imprisonment in the State Penitentiary and ordered that the appellant serve one-third of this sentence before becoming eligible for parole. For reversal of that judgment the appellant, through court-appointed appellate counsel, contends that the alleged violation was a misdemeanor and, therefore, the court erred in sentencing him to the penitentiary since the Act does not provide for imprisonment in the penitentiary. In other words, the appellant asserts that the alleged violation of this Act constitutes a misdemeanor and not a felony. The pertinent penal provision of this Act (§ 82-2617) reads:
(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen (15) years or fined not more than $25,000 or both * *
The statutory definition as to what constitutes a felony or a misdemeanor has existed since 1869. Legislation enacted that year provided that:
“Public offenses are felonies and misdemeanors” Ark. Stat. Ann. § 41-102 (Repl. 1964);
“A felony is an offense of which the punishment is death or confinement in the penitentiary” § 41-103;
“All other public offenses are misdemeanors” § 41-104.
These definitions have remained unchanged. The words as to imprisonment or confinement “in the penitentiary” are noticeably and conspicuously missing from the pertinent penal provision of this 1971 Act. Even so, appellee argues that the use of the term “crime” together with the harsh penalty provided in the penal provision in this Act requires that we construe the Act to read that the legislature intended this alleged violation to be a felony. However, we have held that the words “misdemeanor” and “crime” are synonymous terms even though the latter be “of a deeper and more atrocious dye” and the former a “gentler name”. Hardaway v. State, 237 Ark. 732, 375 S.W. 2d 676 (1964); Rector v. State, 6 Ark. 187 (1845). Another well established rule of law with respect to statutory construction is that penal provisions are strictly construed and “nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the defendant.” Shepherd v. State, 246 Ark. 159, 439 S.W. 2d 627 (1969); Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W. 2d 375 (1953); State v. Arkadelphia Lumber Co., 70 Ark. 329, 67 S.W. 1011 (1902); Casey v. State, 53 Ark. 334, 14 S.W. 90 (1890).
For more than 102 years the definition as to what constitutes a felony or a misdemeanor has existed by statutory law in plain and unambiguous language. Further, these definitions are recognized by our case law. McIlwain v. State, 226 Ark. 818, 294 S.W. 2d 350 (1956); Algood v. State, 206 Ark. 699, 177 S.W. 2d 928 (1944); Burrell v. State, 203 Ark. 1124, 160 S.W. 2d 218 (1942); Cheaney v. State, 36 Ark. 74 (1880). In Cheaney we find this pertinent language:
“In all our penal legislation, when the word imprisonment only is used, it is understood to mean imprisonment in a county jail or local prison, and and when the legislature has intended imprisonment in the penitentiary, it has been so expressed.”
In the case at bar, in view of our statutory definitions and the recognition of their meaning by our decisions, we cannot say that the alleged violation of Act 590 of 1971 constitutes a felony.
Furthermore, we observe that within the past month our legislature in a special session amended Act 590 of 1971, including the penalty provisions before us. The title to this amendatory act (Act 67 of 1972, First Extra ordinary Session) provides, inter alia, that it is: “An Act *** to clarify penalties***.” The emergency clause, Section 9, reads: “It is hereby found and determined by the General Assembly that there is considerable confusion regarding the application and effect of Act 590 of 1971, that the penalties prescribed in Act 590 are in need of clarification; ***.” In the amendatory act of 1972 the legislature significantly added the word “felony” and provided for imprisonment “in the state penitentiary.” The legislature also increased the penalty for this alleged violation from 15 to 30 years imprisonment.
The appellant also asserts that the court erred in refusing to compel the State to divulge the identity of two informers. The State presented an undercover investigator as a witness who testified that he went to appellee’s apartment accompanied by two confidential informers; that after a few minutes conversation, one of the informers told appellant that “we wanted some grass.” Thereupon the appellant handed to the undercover agent a bag of marihuana for which he was paid $20 by the agent. Appellant contends that the refusal to require the State’s witness to divulge the names of the two individuals who accompanied him was a prejudicial error because: “I (court-appointed trial counsel) can’t properly defend my client, and it will keep me from finding any contradictory testimony.”
Generally, whether the privilege of nondisclosure of an informer’s identity applies depends upon whether the informer was present and participated in the alleged illegal transaction with which the defendant is charged, or whether the informer was “merely” one who supplied only a “lead” to law enforcement officers to assist them in the investigation of a crime. The identity of an informer is required in certain instances, particularly where he was present as a participant. Roviaro v. United States, 353 U.S. 53 (1957); United States v. Barnett, 418 F. 2d 309 (6th Cir. 1969); Sorrentino v. United States, 163 F. 2d 627 (9th Cir. 1947); Portomene v. United States, 221 F. 2d 582 (5th Cir. 1955); Gilmore v. United States, 256 F. 2d 565 (5th Cir. 1958); Annot., 76 ALR 2d 287. See, also, § 21 Am. Jur. 2d Criminal Law § 225. The rationale is that where the informer is a witness to an illegal transaction, his testimony could be relevant to amplify, modify, or contradict the testimony of a government witness and, therefore, essential to a fair determination of the cause.
In the case at bar the appellant denied the accusation and the testimony of the State’s witness. Therefore, the testimony of the agent’s two companions during the alleged transaction could be relevant and material in contradiction of the State’s evidence, as contended by appellant. In such a situation we find this apt language in Roviaro, supra; “***The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” In the case at bar it was prejudicial error to overrule appellant’s request for the identity of these two witnesses which he sought for the purpose of determining “any contradictory testimony.” It follows that the judgment is reversed and the cause remanded.
Reversed and remanded.
Harris, C. J., and Fogleman, J., concur. | [
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Frank Holt, Justice.
A jury found appellant guilty of possession of stolen property and assessed his punishment at one year and a day in the State Penitentiary. For reversal of that judgment, appellant first contends that the proof adduced by the state as to value of the property is insubstantial. We find no merit in this assertion.
We view the evidence on appeal in the light most favorable to the appellee in determining the substantiality of the evidence to support a jury verdict. Rickie v. State, 250 Ark. 700, 466 S. W. 2d 462 (1971).
The Conway County Coon Hunters Club was broken into and four trophies along with some soft drinks were taken from the club. Two days later the four trophies were found in the trunk of appellant’s automobile. The secretary of the club testified that he had ordered the trophies which were to be presented as awards to winners of various sporting events sponsored by the club. He described the trophies as “new’.’ and testified that their cost “would run somewhere around $10 apiece.” The treasurer of the club testified that he had paid for the trophies and further stated “if the club ordered those four trophies they would cost at least $40,” and he considered them worth $10 apiece before they were stolen.
Of course, it was necessary to present evidence of a substantial nature that the trophies were more than $35 in value to sustain a conviction for possessing stolen property. Ark. Stat. Ann § 41-3938 (Repl. 1964). Hammond v. State, 232 Ark. 692, 340 S. W. 2d 280 (1960). Compare Rogers v. State, 248 Ark. 696, 453 S. W. 2d 393 (1970). We are of the view that there was substantial evidence from which the jury could find that the value of the articles exceeded the required statutory sum. We note that the jury was instructed on a lesser included offense which is a misdemeanor. It was for the jury to reconcile the evidence and determine the grade of the offense.
Furthermore, we do not think “the court erred in applying the law with regard to proper proof of value of the stolen property.” In Cowan v. State, 171 Ark. 1018, 287 S. W. 201 (1926), we held that the actual cost of the automobile license plat was admissible as to the grade of larceny allegedly committed by stealing the plates from the car. See, also, 50 Am. Jur. 2d, Larceny, §§ 45 and 148, and Wharton’s Criminal Law and Procedure, 2, § 449 (12th Edition, 1957), to the effect that the actual or cost price of an article is admissible as being one factor for the jury to consider along with other factors in determining the market value. It is well established in civil cases that the original cost of property, as in eminent domain cases, is admissible so long as it is not too remote in time and bears a reasonable relation to the present value. Such evidence exists in this case.
Appellant next contends for reversal that the prosecuting attorney’s office failed to divulge information in its or its agents’ (sheriff’s office) possession concerning a material witness favorable to the defense. About a month following the appellant’s conviction, the appellant, in support of his motion for a new trial, presented a witness who testified that, as a retailer, he had sold these or similar trophies to the club; that before the trial the sheriff’s office called him in for identification purposes; and he had expressed his opinion that the total value of the trophies new was less than $35 or at the most $32.50. It appears that one investigating officer and the secretary of the club were present when the retailer viewed the trophies. The officer testified there was no detailed discussion relating to the price of the trophies; and he understood the presence of the retailer was for identification purposes; namely, “if they were the ones he sold.” Another deputy testified that he was not present when the retailer saw the property. He filed his investigative report with the prosecuting attorney’s office and he believed he gave the appellant a copy, also. The secretary of the club testified at the hearing that he had told the deputy prosecuting attorney about this witness and a conversation with him; however, the secretary said that his testimony at the trial, relating to the trophies’ value, was the same which he had imparted to the deputy prosecutor after his conversation with the retailer. There is no evidence that the prosecuting attorney’s office or its agents suppressed any evidence. In fact, appellant agrees nothing of such a nature was intentionally done. We note that this retailer or witness’ name was mentioned as a source of purchases during presentation of the state’s testimony in chief. No request for a continuance was made. In the circumstances, we hold that the trial court properly denied appellant’s motion for a new trial based upon the asserted suppression of evidence favorable to the appellant. Newly discovered evidence which tends only to impreach other testimony is not necessarily grounds for a new trial. Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853 (1971). Newly discovered evidence is one of the least favored grounds to justify granting a motion for a new trial and, further, such a motion is addressed to the sound discretionary authority of the trial judge. Steel v. State, 246 Ark. 75, 436 S. W. 2d 800 (1969). In the case at bar, the appellant has not demonstrated that the trial court abused its discretionary power in refusing to grant his motion for anew trial.
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George Rose Smith, Justice.
Upon a negotiated plea of guilty to separate charges of having forged an endorsement upon a check for $942.80 and of having uttered that check, the appellant was sentenced to ten years imprisonment upon each charge, the sentences to run concurrently. Thereafter the appellant filed the present petition for postconviction relief under Criminal Procedure Rule 1. After a hearing at which the appellant testified, the trial court denied the petition. In this court the appellant, by his court-appointed counsel, urges three points for reversal.
The facts which preceded the present petition are not essentially in dipute. In November, 1970, Meyers, an electrician, was performing work as a subcontractor upon a construction job in Carroll county. He owed AMO Electric Supply Company about $900 for materials purchased by him from that company. Meyers received a check for $942.80 payable jointly to his own company and to AMO. Meyers forged AMO’s endorsement upon the check and converted the money to his own use by depositing it in his bank account. That conduct resulted in the charges of forgery and uttering. Meyers does not now contend, and apparently has never contended, that he was innocent of the charges against him. There is nothing in the record to indicate that the State would have had any difficulty in proving its case.
In the original proceeding Meyers was also charged under the habitual criminal statute, as having been convicted of three previous felonies. Those convictions, all of which he admits, were for burglary in Texas, breaking and entering in Missouri, and false pretense in Kansas. Under the habitual criminal statute the penalty for a fourth offense is not less than the maximum punishment for a first conviction for the offense nor more than one and a half times that maximum. Ark. Stat. Ann. § 43-2328 (Supp. 1971). The maximum punishment for forgery and uttering is ten years imprisonment. Ark. Stat. Ann. § 41-1805 (Repl. 1964). Hence Meyers was subject to a term of from ten to fifteen years upon each of the charges.
In the original proceeding Meyers was successively rp resented by three retained attorneys of his own choice. He discharged his first attorney and then tentatively employed John O. Maberry as his second attorney. Meyers now insists that his constitutional rights were violated by Maberry, in that Maberry wrote a letter to Meyers, sending a copy thereof to the prosecuting at torney and to the trial judge, in which the following statements were made:
“I believe your best judgment should compel you to negotiate a guilty plea with the prosecuting Attorney, try to get a recommended 5 to 7 year sentence, have the Missouri and Arkansas charges run concurrently, then take advantage of the State prison’s psychiatric treatment. If, after a year and one-half to two years the prison Doctors consider you improved, it is likely you will be eligible for parole or pardon.
“I have studied your rap-sheet and it is very apparent you, for some reason, can’t refrain from hot checking anyone whose confidence you gain.
“Your personality compels people to like you and want to help you and you seem to have an uncontrolled desire to take advantage of these persons. You are still young enough to overcome your problems and make a fine citizen, if you will open your mind to assist those who would try to help you.”
Thereafter Meyers engaged a third attorney, Paul Jackson, who engaged in plea discussions with the prosecuting attorney. Jackson had hoped to obtain, in return for a plea of guilty, a sentence of from five to seven years and a dismissal of the habitual criminal charges. On the morning of the hearing, however, Jackson explained to Meyers that he had been able to obtain only an agreed recommendation for concurrent ten-year sentences upon each of the two charges, with a dismissal of the habitual criminal charges. Meyers agreed to enter pleas of guilty in accordance with the arrangement negotiated by his attorney.
The matter was submitted to the trial judge as a negotiated plea — subject, of course, to the court’s approval. Meyers’ rights were fully explainable to him by the trial court before the plea was accepted. In the course of the discussion Meyers’ attorney mentioned that there was also a charge (of an undisclosed nature) pending against Meyers in Missouri, the attorney expressing the hope that Meyers might enter a plea to that charge also and let all the sentences run concurrently. The trial judge accepted the negotiated plea and pronounced sentence in accordance with the parties’ recommendation, the habitual criminal charges being dismissed.
Meyers first contends that his second attorney violated his constitutional rights by sending to the trial judge a copy of the letter from which we have quoted and that his third attorney also violated his constitutional rights by mentioning to the judge the pendency of an unspecified charge in Missouri. These contentions are without merit. To begin with, when a criminal case reaches the point at which the accused is to be sentenced, defense counsel is not under any constitutional duty to the accused to conceal facts unfavorable to him. With respect to counsel’s duties at that point the American Bar Association’s Standards for Criminal Justice make this statement: “He [defense counsel] may not, for example, present facts concerning the defendant’s character which would suggest to the judge that the defendant does not have a prior record of crime if he knows that the defendant has such a record and that fact has not been disclosed to the court.” Standards Relating to the Prosecution Function and the Defense Function, § 8.1 b, Commentary (1971). That statement is in harmony with the basic premise that the trial judge, in imposing sentence, should have the benefit of all available information about the defendant, both favorable and adverse. Moreover, even if the communications in question had been improper, no prejudice is shown to have resulted from them. The trial judge simply accepted the sentence recommended by the parties. There is nothing whatever to suggest that his decision would have been different if he had not received the communications now complained of.
Secondly, the appellant contends that the trial court erred in imposing the maximum sentence of ten years upon each charge. The court’s action, however, must be considered in context. Meyers consistently disregards the vulnerability of his position during the plea negotiations. He was guilty of the offenses charged. The State could be expected to obtain without difficulty a verdict of guilty. Meyers’ record included three previous felony convictions. The minimum sentence that a jury could lawfully impose was ten years upon each charge, with the sentences running concurrently. The maximum was fifteen years upon each charge, with the sentences rtmning consecutively. Obviously Meyers and his counsel were not in a favorable position to bargain for leniency. We have no basis for saying that the court abused its discretion in approving a recommendation under which Meyers received the bedrock minimum penalty that could have been imposed by a jury upon a finding of guilty.
Plea bargaining is an accepted procedure in the administration of the criminal law. Cross v. State, 248 Ark. 553, 452 S.W. 2d 854 (1970). In the language of the Standards cited above: "It is appropriate, therefore, to view plea discussions or negotiations as an essential, indeed indispensable, part of the administration of justice. . . Recent studies make it clear. . .that the plea discussions are the norm, not the exception, in the sound administration of criminal law.” Standards, supra, Part IV, Introductory Note. We have no inclination to set aside the trial judge’s action in accepting a plea recommended by the parties when, as here, the negotiations appear to have been fairly conducted.
Thirdly, the appellant argues that his constitutional rights were violated because the postconviction proceeding was presided over by the same judge who imposed the original sentence. Counsel cite no authority for this contention. The point is duscussed in § 1.4 of the Standards Relating to Post-Conviction Remedies (1968). That discussion first points out that the most desirable venue for a postconviction proceeding is in the court in which the challenged conviction and sentence were rendered. The discussion then continues: “Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clearly preferable.” The Commentary goes on to state: “The same judge brings to the post-conviction proceeding familiarity with the case or the applicant that may make for more efficient handling. The same judge may be more free in fact to consider or reconsider matters affecting his prior rulings than would a colleague on the bench. On the other hand, there are obvious disadvantages and risks in such a practice. There is a value in seeking determination from a mind not predisposed by prior incidents, and a significant related value that .the arbiter appear not to be predisposed.”
We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W. 2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S. W. 2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.
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Battle, J.
This is an action by Weakly & Grooch against the St. Louis, Iron Mountain & Southern.Railway Company to recover the value of a jack that died while in the course of transportation over defendant’s railway.
The facts, as shown by the testimony, were substantially as follows: On the 22d of December, 1884, plaintiff shipped, at Nashville, Tenn., by the Nashville, Chattanooga and St. Louis Railway, a car load of jacks consigned to themselves at Fort Worth, Texas. They were to be shipped - by way of Memphis, over the Memphis and Little Rock . Railroad to Little Rock, and thence over the defendant's road to Texarkana. A written contract was entered into, whereby the Nashville, Chattanooga and St. Lonis Railway Company agreed to transport the jacks to its freight station at McKenzie, ready to be delivered to the consignee, or his order, or to such company or carrier whose line might be considered a part of the route to the destination of the stock; and in consideration of reduced rates of freight it was agreed that if any damage occurred by which the carrier was liable, the amount claimed should not exceed $300 for each jack injured.
The stock, in charge of Gooch, one of the plaintiffs, arrived at Memphis on the morning of the 24th of December, 1884. At Memphis the river was then impassable, on account of ice, and Gooch was delayed a day, The agent of the Memphis and Little Rock Railroad told him his stock could go forward on the Kansas City Railway at 9 o’clock the next morning; and on the next day, the 25th of December, he took his stock to the, Kansas City Railway depot. The stock was driven on the cars a few moments before the train started. About this, time a live stock contract with the Kansas City, Fort Scott and Gulf, and the Kansas City, Springfield and Memphis Railroad Companies was presented to him for his signature, which he signed without reading, supposing it was a pass for himself. So much of it as is necessary to mention in this opinion is in the words and figures following:
u Memphis Station, December 25th, 1884.
Agreement made between the Kansas City, Fort Scott and Gulf, and Kansas City, Springfield and Memphis Railroad Companies, of the first part, and Weakly &: Gooch, of the second part, witnesseth : oThat, whereas, the Kansas City, Eort Scott and Gulf, and Kansas City¿. Springfield and Memphis-railroad companies, as common, carriers, transport live stock as per tariff:
“Now, in consideration that said parties of the first part-will transport, for the party of the second part one (1)’ car load of jacks from Memphis to Eort! Worth, Texas, and there deliver to the Kansas City Stockyard Company, at the rate of seventy-six (76) dollars per car load, the same being a special rate, lower than the regular rate, mentioned in said tariff between said points, said' party of the second part hereby relieves said parties of the first part from the liability of a common carrier in the,transportation of said stock, and agrees that such liability shall be that of only a private carrier for hire.
“ And the said party of the second part * * * hereby assumes all risk of injury which the animals, or either of them, shall receive in conequence of any of' them being wild, unruly or weak, or by maiming eacht, other or themselves, or in consequence of heat or suffo— cation, or other ill effects of being crowded in the care,, * * * * or of loss or damage from any other cause- or thing not resulting from the negligence of the agents-of the said parties of the first part.
“And the said party of the second part further agrees^ that he will load and unload said stock at his own risk, anái feed, water and attend to the same at his own expense- and risk while in the stock yards of the parties of the-first part awaiting shipment and while on the cars or at feeding or transfer points, or where it may be unloaded!, for any -purpose.
“ And it is further agreed that the parties of the 'second part will see that said stock is securely placed in the- •cars furnished, and that the cars are safely and properly fastened, so as to prevent the escape of said stock therefrom.
‡ * * s|e >|< s|c H:
“And it is further agreed that iu no case shall the said railway companies be liable for a greater amount than fifty dollars per head of live stock hereby shipped, and that all the above “ rules and regulations for the transportation of live stock” shall be deemed an essential part of this contract. * * * *
The evidence that said party of the second part, after a full understanding thereof assents to all the con-ditions of the foregoing contract is his signature thereto.
E. A. ThrustoN,
Witness : L. L. Crisp. Agent of the Companies.
[Pass one.] ’ Wjeakly & Gooch, shippers,”
Executed in duplicate.”
No charges were demanded or paid by plaintiffs for transporting Gooch and the stock over the railroads, except $116 at Nashville.
The stock was shipped over the Kansas City, Springfield and Memphis Railroad to Hoxie, a station on defendant’s road 121 miles north of Little Rock. The station agent at Hoxie testified that the car load of jacks was received by defendant at Hoxie over the Kansas City, Springfield and Memphis Railway under the contract of shipment made at Memphis, and was transported to Texarkana under the same contract. Gooch aceom-panied the stock, riding on the same train with them. The stock arrived at Little Rock in good condition. Shortly after leaving Little Rock the conductor called on Gooch for his contract, and he handed him the Nashville contract, but the conductor refused to accept it, saying it did not pass Mm free. He then banded the conductor the contract signed at Memphis, which the conductor took, read and returned, and permitted him to ride upon it. A short distance north of Prescott Gooch got out to examine his stock, and found a tramp in the car with them; and after the train had started he told the conductor about seeing the tramp. When the train stopped at the next station the tramp was taken ■out of the car, and was permitted to go into the caboose to warm, it being cold and sleeting. He had a stick. Over the objection of the defendant, a witness allowed to testify that when the tramp went into the caboose and sat down by the stove to warm, he said, ■the presence of the conductor: “It is d — d cold, and if it had not been for lopping them mules over the head I would have froze to death.”
Gooch got out several times between Little Rock and Texarkana to look at his stock, and found them standing and apparently all right. He did so after seeing the tramp among them and a short time before they reached Texarkana, and discovered nothing wrong until they arrived at Texarkana, when he found one of .the jacks lying dead in the middle of the car, with blood running out of his nose and mouth. He saw no marks of blows or bruises on the animal; its skin was unbroken. He rode on the same train with the stock, according to his contract, from Hoxie to Texarkana, and testified he did not know the cause of the death. He testified that the dead jack was a fine animal, blooded, and of good pedigree, and was worth at Nashville $600, and at Fort Worth $800. When the other jacks reached Fort Worth plaintiffs presented the contract signed . at Memphis, and on it demanded and received their stock.
Plaintiff's recovered judgment for $800 ; and defendant ^appealed.
The declaration of the tramp was inadmissible. It was no part of the m gestae, and appellant should not be affected by it. .
Appellant asked, and the court refused, to instruct the j ury as follows :
“ The court instructs the. jury that if they find from the evidence that the plaintiff signed the bill of lading or contract of shipment in evidence, by which said carload of jacks was carried from Memphis, Tennessee, to Fort Worth,. Texas, via Hoxie, it matters not if plaintifls. did not read or understand the same, the fact that they signed the same is conclusive, unless said signatures were obtained by fraud on the part of the carriers making the contract; It was plaintiffs’ duty to know, and they were bound to know, what the contract contained and meant, and the effect of all its terms and conditions.”
But, at the instance of appellees, did instruct them as follows :
“ Unless the jury find from the evidence that the Memphis contract, so called in the evidence, was made by the defendant with the plaintiffs for a valuable consideration, they will disregard the same; and if they find that the same was signed by the plaintiffs, under the supposition alone that it was only for the purpose of having his jacks shipped from Memphis to a point on defendant’s line of railway; where the original or Nashville contract would have carried the same, they may entirely disregard said Memphis contract, unless they believe the injuries received by said jacks were received between Memphis and Little Rock.'’
Appellant also asked, and the court refused, to instruct as follows:
“If the jury find from the evidence that plaintiffs en tered into a written contract at the city of Memphis with the Kansas’City, Fort Scott and G-uif, and the Kansas City, Springfield and- Memphis Railroad Companies, by which it was agreed that said railroads should carry their cár-load of jacks from Memphis to Fort "Worth, Texas, at reduced rates as a private carrier, and upon certain agreed values of said stock upon a limited liability, that the defendant was aad is a connecting carrier •of said railroads, and that to carry out the contract it was necessary to carry said stock on defendant’s railway; that said defendant received and carried said stock under said contract; then, in that event, the court instructs you that as said bill of lading was a through bill of lading, expressing upon its face a rate of freight to be chargedby all the connecting lines from Memphis, Tennessee, to Fort Worth, Texas, the destination of the •stock, then its contract for exemption from liability inures to the benefit of the owners of all the lines of the whole route, including defendant company; and if, therefore, they find that there was such a contract, they must find that the same was for the benefit of this defendant, and must control in this case.”
Did the court err in giving the instructions asked for ■by appellees and in refusing those asked for by appellant ■?
At common law a common carrier, in the absence of •a contract limiting his liability, is responsible for any loss •or damage, however occasioned, unless it was by an act of Q-od or a public enemy. He is bound to receive and carry all the property offered for transportation, if it be of that character which he carries for the public, subject fo the responsibility incident to his employment, and is liable to an action if he refuses. He cannot relieve himself of such responsibilities, except by cont/act with the shipper, based upon a consideration. He cannot limit bis liabilities by an act of bis own; and can only do so by tbe assent of tbe parties concerned. Taylor v. L. R., M. R. & T. Ry. Co., 39 Ark., 148,, 157; Railroad Co. v. Manufacturing Co., 16 Wall., 318, 328; Gaines v. Union Trans. & Ins. Co., 28 Ohio St., 418; S. C. 14 Am. Ry. Rep., 158.
Appellees contend that they never assented to the.' of tbe liabilities of appellant contained in the contract signed at Memphis, because they signed it, without reading or hearing it read, and under a mistake as to its contents. Rut this will not relieve them from the contract, unless it was procured by fraud or imposition. It has generally been held by the courts in this country and in England that such contracts are binding on the shipper, although he did not read or hear them read before signing, provided the carrier resorted to no unfair means, and practiced no fraud or imposition, and the shipper had the opportunity to know the contents. As said by Hutchinson on Carriers, “ there is nothing unreasonable in this. Every man of ordinary intelligence knows that no individual or company engaged in the business of carrying to distant places now undertakes to carry his goods subject to the old common Jaw liability of the carrier. He knows, moreover, that bills of lading are constantly given, not only as the evidence of the receipt of the goods, but as an express and direct notice that they will be carried on certain terms. Knowing this, he cannot be wilfully blind and plfead ignorance, when it was his duty to know; and knowing in such cases is assenting. If it was his intention to hold the carrier to his common law liability, he should have said so, and have either declined to employ him or sued him for his refusal, after tendering á reasonable sum for his-services and risk.” Hutchinson on Carriers, sec. 240; Mc Millan v. M. S. & N. I. R. R. Co., 16 Mich., 79; Squires v. N. Y. Central R. R. Co., 98 Mass., 239; Long v. N. Y. Cent. R. Co., 50 N. Y., 76; MoIlroy v. Buckner, 35 Ark., 555; Hallenbeck v. De Witt, 2 John., 404; Rice v. Dwight, Manf. Co., 2 Cush., 80, 87; Harris v. Story, 2 E. D. Smith, 363, 367; Lewis v. Great Western R. Co., 5 H. & N., 867; Cooley on Torts, pp. 488-491; Greenfield's Estate, 14 Penn. St., 489, 504; Hunter v. Walters, 7 L. R. Ch. App., 75, 82, 84; Morrison v. Phillips & Colby Con. Co., 44 Wisc., 405, 409; Fuller v. Madison Mutual Ins. Co., 36 Wisc., 599, 603; Long v. N. Y. Cent. R. Co., 3 Am. Ry. Rep., 350; Mulligan v. The Illinois Cent. Ry. Co., 2 Am. Ry. Rep., 322, 328; Grace v. Adams, 9 Am. Rep., 131; S. C. 100 Mass., 505.
But in this case the Kansas City, Fort Scott & Gulf' and the Kansas City and Springfield and Memphis, and the Saint Louis, Iron Mountain and Southern Railway Companies were not parties to the contract made at Nashville. The stock was to have been transported by way of Memphis over the Memphis and Little Rock Railroad to Little Rock, and from there to Texarkana. When it arrived at Memphis it was ascertained it could not be shipped over the Memphis and Little Rock road, without delay, and appellees determined to ship it over another and much longer route; and for that purpose entered into the contract signed at Memphis. Under this contract the stock and one of the-appellees were carried from Hoxie to Texarkana, and the-stock was delivered to its owners at Fort Worth. Appellant acted under and was governed by it in carrying the stock-If the contract signed at Memphis was procurred by fraud- and appellees were unwilling to be governed by it, they should have so informed appellant before the delivery of the-stock to its agents. They were then in a situation to cor- <reet any mistake or misunderstanding in the terms oí the shipment, and definitely adjust its terms. But, having failed in this, they cannot make appellant suffer the consequences of their negligence. If a fraud was committed in the procure-anent of the contract at Memphis, their negligence enabled the perpetrators to succeed in its commission, and they should bear the loss occasioned by it, if any.
The Kansas City, Fort Scott & Gulf, and the Kansas City, Springfield & Memphis railroad companies contracted with appellees to transport their stock from Memphis, Tennessee, to Fort Worth, Texas. The appellant, by re--ceiving the stock, became their agent to complete their contract to the extent of shipping the stock over so much of its road as formed a part of the route over which the shipment -was to be made. From this fact the law implied a privity between the parties to this action sufficient to enable ap-pellees to sue appellant for any losses sustained by reason of Its failure to perform the contract, and gave to appellant the benefit of all valid limitations contained in the agreement <upon the carrier's liability. So that while the burdens were imposed, the benefits of the limitations in the contract inured to appellant. Taylor v. L. R., M. R. & T. R. Co., 39 Ark., 148, 158; Halliday v. The St. L., K. C. & N. Ry. Co., 74 Mo., 159; S. C., 6 Am. and Eng. Railroad Cases, 433; Hutchinson on Carriers, secs. 251, 252, 254, 256.
Appellant contends that the court below erred, because it disked and the court refused to give an instruction in the following words:
“If the jury find, from the evidence, that the plaintiffs ■entered into a contract with defendant, or its connecting ■carrier, whereby it was agreed that in no case should the carriers be liable for a greater amount than fifty dollars for each stock or animal shipped therein, then they are instructed that if they find that the defendant is liable at all in this action, their verdict cannot exceed the sum of fifty dollars.”
In the Memphis contract the liability of the carrier for losses or .‘damages was limited to fifty dollars for each jack injured. Should the instruction limiting the liability of appellant to fifty dollars have been given ?
In Railroad Co. v. Lockwood, 17 Wall., 357, it was held : “ A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law.”
Hart v. Pennsylvania Railroad Co., 112 U. S., 331, was an action like this. In that case the property received for •shipment was fiv.e horses, and the extent of the carrier’s liability agreed upon for each horse was two hundred dollars. By the negligence of the carrier one of the horses was killed and the others were injured. The plaintiff proved the horses were race horses and offered to show damages, based on their value, amounting to over $25,000. The testimony was excluded and he had a verdict for $1,200. On writ of error brought by him, it was held that the evidence was not admissible; that the valuation and limitation of liability in the bill of lading was just and reasonable, and binding on the plaintiff; and that the ter.ms of the limitation covered a loss through negligence. Mr. Justice Blatchford, speaking for the court, said : “ This qualification of the liability of the carrier is reasonable and is as important as the rule which it •qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the-•agreement is to cheapen the freight and secure the carriage if there is no loss; and the effect of disregarding the agreement, after a loss, is to expose the carrier to a greater risk than the parties intended he should assume. The agreement as to value, in this case, stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract.
“ The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound t® respond in that value for negligence. The compensation for caraiage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and when there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be-unjust and unreasonable and would be repugnant to the soundest principles and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss,, and to repudiate it in case of loss.”
The South and North Alabama R. R. Co. v. Henlein, 52 Ala., 606, was an action against a carrier on a contract to carry live stock, in which the extent of the carrier’s liability was limited to fifty dollars to each animal. The court said .• “We have had much difficulty jn determining the validity of the stipulation in the contract, that it loss or injury should occur, for which the company is liable, the amount claimed should not exceed fifty dollars for any one of the animals. If the measure of the liability thus fixed appeared to be-greatly disproportionate to the real value of the animal and. the amount of freight received, we should not hesitate to-declare it unjust and unreasonable- But as the case is presented, it seems to have been intended to adjust the measure of liability to the reduced rate of freight charged, and to protect the carrier against exaggerated or fanciful valuations. "We cannot, therefore, presume it unjust and unreasonable, and it is the measure of appellant’s liability.”
There are other decisions to the same effect as those cited. See South and North Alabama R. Co. v. Henlein, 56 Ala., 368; S. C., 19 Am. Ry. Rep., 200 ; Harvey v. The Terre Haute & Indianapolis R. R. Co., 74 Mo., 588; Maguire v. Dinsmore, 62 N. Y., 35. But all the decisions upon this question are not in harmony. They are cited and reviewed to some extent in Hart v. Penn. R. R. Co., supra. After a review of them the court reached the result as above stated.
In St. L., I. M. & S. Ry Co. v. Lesser, 46 Ark., 236, this court followed the decisions of the Supreme Court of the United States in Railroad Co. v. Lockwood and Hart v. Pennsylvania R. R. Co. In that case the carrier transported a car load of mules over its road under a contract which limited its liability to $100 for each horse or mule. One of the horses, of the value of $150, was injured. This court held that the damages the shipper was entitled to recover in that case was the proportion of $100 the horse was lessened in value by reason of thp injury.
As a general rule, the common carrier is bound receive and carry that which is offered to him for - transportation. He ought to be entitled to a reasonable reward for his services. As the risk of conveying property of considerable value is greater than that of small value, the care required is, and the reward should be greater. It is, therefore, reasonable and right that the value of the property shipped should be ascertained in order that the carrier may know the extent of his responsibility and the care and attention required, and fix the amount of his ieward. As said by Lord Mansfield in Gibbon v. Paynton, 4 Burrows, 2298: “ His warranty and insurance is in respect of the reward he is to receive, and the reward ought tobe proportionate to the risque. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expense of more guards or other method of security; and therefore, he ought in reason and justice, to have a greater reward.” If, therefore, the measure of the liability of the carrier as agreed upon is adjusted by the reward to be received by the carrier under his contract, and the contract of shipment is fairly entered into, and no deceit is practiced upon the shipper, the contract is reasonable as to the measure of liability and should be upheld.
Inasmuch as the measure of appellant’s liability in the stipulations contained in the Memphis contract, is stated to be based on reduced rates of freight paid for the transportation of the stock, it must be presumed, in the absence of evidence to the contrary, that the rate of freight was graduated by the valuation agreed upon as the limit of the carrier’s liability, and was reduced under the regular rates in consequence and consideration of the terms or stipulations of the contract. St. L., I. M. & S. Ry v. Lesser, 46 Ark., 236.
As to the burden of proof the circuit court instructed the jury, at the instance of appellees, as follows:
“The jury are instructed, as a matter of law, that whenever a common carrier seeks to avoid a liability for losses on account of the contract limiting its liability, the burden of proof, as a general rule, is upon it, not only to show that a limited contract has been made, but also tnat the loss in question arose from a cause excepted in the contract; and this fact must be established with reasonable certainty, and not rest upon conjecture or possibility. So, in this case, if defendant seeks to avoid its liability for the death of the jack sued for under a clause of their contract of shipment exempting the company from such liability for injury to said jack,, caused by the animals shipped in the car with him, or on the ground that the death of said jack was'caused by the inherent, vices and propensities of such animals, the burden of proof is upon the defendant to show that the death of said jack was caused by other animals in the car, or their inherent viciousness.”
And, at the instance of the appellant, as follows:
“ If the jury find from the evidence that plaintiff's stock was received and transported under a written contract or bill of lading, wherein it was stipulated or agreed that the owners or their agents should ride upon the freight trains in which said stock was being transported, and that they should load, transport, feed and care for said stock while on the cars, or at feeding, transfer or other points; and if they further find that plaintiff, J. S. Gooch, one of the owners of' said stock, did accompany the said stock and was upon the same train upon which the stock was at the time said animal died, and that said contract exempted the carriers from all liability from injury to said stock, then you are instructed' that by virtue of said exemption in said contract contained, the burden of proof is upon plaintiffs to show that said animal was killed by or through'the negligence or fault of this defendant; and if you find that no evidence of negligence has been offered showing, or tending to show, that defendant was at fault, then you must find for the defendant.”
These instructions are inconsistent with each other; and the one given at the instance of the appellees is misleading and not applicable to the facts in this case.
In St. L., I. M. & S. Ry Co. v. Lesser, supra, it is said : “ Whenever a common carrier seeks to avoid a liability for losses on account of a contract limiting his-liability, the burden of proof, as a general rule, is upon him, not only to show that a limited contract has been made, but also that the loss in question arose from a cause excepted in the contract.” But this court has never applied this rule to any case except- those in which the loss was caused by fire or like causes, against which the carrier was an insurer at common law. It did not, in Railroad v. Lesser, undertake to say to what class of cases it is applicable. Does it govern in this case ?
At common law a carrier is held to the strictest accountability. The reason is, when goods are placed in his care for transportation, the shipper is dependent on him for their safe keeping and delivery. He seldom goes or sends any one to protect his interest. His necessities often compel him to rely solely on the carrier. If the goods are lost through the grossest negligence of the carrier or his servants, or stolen by them, or others in collusion with them, he is unable to prove it by any one, except the carrier’s servants. If he is compelled to prove that his goods were lost through the fault of the carrier before he can recover, his ability to sustain an action would be necessarily uncertain and sometimes impassible. To protect him, and to insure the utmost good faith and diligence in the carriage and delivery of freight, the common law imposes upon the carrier the responsibility of an insurer against all losses, except those occasioned by the act of God or the public enemy; and in case of damage or loss requires him to show the cause. To exonerate himself from liability, the burden of proof is upon him to show that the loss or damage was caused by the act of G-od or the public enemy. This rule of evidence is the necessary result of the common law liability and the circumstance that the cause of the loss is presumed to be peculiarly within the knowledge of the common carrier.
But in this case there was a restriction upon the com-Ia w liability of the carrier. Appellees agreed to load the cars with the stock, and unload, feed,water, and •attend to them, at their own expense and risk, while in the stock yards of the carriers awaiting shipment, and •on the cars, or at feeding or transfer points, or when the same might be taken off the cars for any purpose, and to see that the cars were securely fastened ; and, for that purpose, one of them was allowed to ride, and did ride, •on the train with the stock, from Hoxie to Texarkana, free of additional charge. Under the contract, they’took charge of the stock during transportation, and relieved appellant of any responsibility for the discharge of those duties of a common carrier which they undertook to perform, and confined its duties, by the Memphis contract, to the furnishing suitable cars and hauling them to the place of destination. Having the care of the stock, the liabilities of a common carrier which make it his duty to account for the loss of freight, did not devolve on appellant. Being in charge, they were presumed to know the cause of the loss of the jack found dead, if either party to the contract does; and the burden of proof is upon them to show that the default or negligence -of appellant was the cause before they can be entitled to recover. Louisville, Cincinnati & Lexington Railroad Co. v. Hidger, 9 Bush, 645, 651; Clark v. St. Louis, Kansas City & Northwestern Ry. Co., 64 Mo., 441, 448; Harvey v. Rose, 26 Ark., 3; Kansas Pacific Ry. Co. v. Reynolds, 8 Kansas, 623, 641.
Eor the errors indicated, the judgment of the court below is reversed, and the cause is remanded for a new trial. | [
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McCaiN, Special Judge.
This is a controversy about the parcel of land occupied by the old county jail in Little Rock. The following statement of facts will serve to present the legal questions we are called upon to determine :
On the 24th day of October, 1821, the territorial legislature, by an act appointed three commissioners to locate the county seat of Pulaski county, and empowered the court of common pleas to appoint commissioners to superintend the erection of county buildings, and authorized the latter to receive donations for that purpose. Within less than thirty days from the passage of this act, one William Russell and certain of his associates, who claimed to be the proprietors of the soil, laid out and located the town which afterwards became the city of Little Rock. In addition to filing a plat of the town, Russell and his associates executed and acknowledged what they denominated a “ Bill of Assurances,” which was duly recorded. The bill of assurances contains this language :
“ The owners and proprietors of said town of Little Rock hereby, give, grant and convey to the territory of Arkansas, and to the legislatures from time to time of said territory, and in trust for said territory, the open square of land represented on said plat by the words “ territorial public square,” which the proprietors as aforesaid hereby give, grant and ■convey to-the said territory of Arkansas forever, and to the legislature thereof for the use and in trust for said territory, for the consideration and upon the express condition and for the express use and purpose, and no- other, that the seat of--government of said territory and future state continues to be and remain upon said public square of land forever. And the said owners and proprietors in like manner, hereby give, grant and convey- to the county of Pulaski, and in trust for said county to the commissioners or court that are, or may be authorized by law to locate the permanent seat of justice cf said county, and contract for, erect and superintend the public buildings in and for said county, one-half square of land in said town, described * * * >!< * * And aiso give, grant and convey to said county, and to the commissioners or court aforesaid in trust for said county, lots 3 and-4 in block 103 in said town, which said two lots and half block of land in said town the said proprietors give, grant and convey to the commissioners or court aforesaid in trust for said county forever, for the following- express conditions, uses and purposes, and for no other consideration, use or purpose, to wit: That the said county of Pulaski, within ten years from this date, erect a court house on said half block of land, and within two years after this date erect and ‘build the common jail of said county upon the aforesaid lots ■3 and 4; and that the same be continued, occupied and kept in repair for those purposes forever.”
The county seat was located at Little Rock and the county jail was built upon the designated lots within two years, and from thence until 1885 the property was continuously used as a county prison.
Russell and his associates, whom we may for convenience-designate the original proprietors, had never, it seems, procured from the goverment a patent for the land which they ■had thus laid out as a town site. Their right to such patent was challenged by rival claimants, among whom finally ap_. p'eared Roswell .Beebe. Litigation sprang up among these' claimants and the patent was withheld for many years. Finally, in the year 1838, by way of adjusting the litigation no doubt, yet for no other expressed consideration than one-dollar, Roswell Beebe entered into a covenant in writing-with the mayor and aldermen of Little Rock, by which he-agreed and covenanted that whenever the United States government should issue to him a patent for the land constituting the disputed town site, he would upon reasonable-demand, make a quit claim deed to any and every person who might hold a conveyance from the original proprietors,, for any lot or lots in said city of Little Rock. The patent was awarded and delivered to Beebe in December, 1839-The county records do not disclose that he ever made any deed to Pulaski county. The growth of the city having rendered it incompatible with the public welfare to longer use-the property in controversy as a prison, the same was sold by the county court in 1885 to Catharina Skipwith.
She has brought this action for specific performance and to quiet her title against the heirs' and privies of Roswell Beebe, deceased, and they have filed a counter claim setting up the legal title to the property and demanding possession.
Taking up the points somewhat in their chronological order, we first consider the question propounded by counsel for appellants as to whether any title or estate passed by the-bill of assurances so far as the lots in controversy are concerned, assuming the proprietors to have had the legal title,
Counties were first incorporated, it seems, by the act of' It is argued that a conveyance to a county, as such,. before the act of 1837, was invalid for want of legal capacity in the grantee to take and hold the title to real estate. This-point would merit greater attention, but for the act of October 24, 1821. By that act commissioners were appointed to- locate the county seat, and we can see no objection to a conveyance to these commissioners, in trust for the county. It is true that that this act contemplates two sets of commissioners, one to locate the county seat and another to superintend the erection of public buildings. The latter was to be appointed by the court of common pleas, and these last were expressly authorized to receive donations to aid in the erection of buildings.
The bill of assurances was drawn, no doubt, with special reference to this act. The grant was made to both sets of commissioners. It is not claimed that the county could not be the beneficiary of a conveyance in trust, and no objection is suggested to the commissioners taking the title in trust for the county. If there was any want of authority or lack of capacity on the part of the commissioners, or of the court of common pleas, or any of them, to take and hold the title, the •conveyance would not thereby be defeated. Counsel for appellants say, in their brief: “ It (the grant) was made to the court or commissioners in trust for the use of the county.” Now, “it is a rule that admits of no exception that equity never wants a trustee, or in other words, that if a trust is once properly created, the incompetency, disability, death or non-appointment of a trustee shall not defeat it.” Perry on Trusts, sec. 38; Conway ex parte. 4 Ark. 361.
It is also suggested that the language of the bill of assurances does not show that a conveyance of the title to the jail lots was intended. We think the words used are apt for that purpose according to even the most technical rules of conveyancing.
It is true that the conveyance was upon the condition that . . . the county should build a jail upon the premises, but it is not denied that this condition was performed.
Whether the permanent maintenance of the .jail at this point was also a condition is not so clear. Two cases quite analogous have been cited. The affirmative was held in R. R. v. Hood, 66 Ind., 580, but in Mead v. Ballard, 7 Wall., 290, such a provision was held to be nothing more than a covenant. We are not called upon, however, to determine this point in the present case. If this is a condition at all it must be agreed that it is a condition subsequent. Such a condition does not prevent the vesting of the title. The-question of performance or non-performance of a- condition subsequent could interest no one but the grantors, whom the appellants in this case do not pretend to represent. Schulenbergg v. Harriman, 21 Wall., 63; 4 Kent’s Com. 131. Coming down to the year 1839, our next inquiry is, whether Beebe, when he obtained his patent, was bound to make a deed to Pulaski county for the lots in controversy. This must be determined exclusively by his covenant. Since we have determined that the county had a good conveyance from the original proprietors, the county seems to have been within the letter of Beebe’s covenant. If he had refused to make the deed on demand he would have been compelled to execute it on a bill for specific performance. If he would have been compelled to make it then, it is difficult to see why his heirs should not be required to make it now. It will hardly be claimed that the right has been lost by the lapse of time. We have never understood that a vendee in possession, who was entitled to a deed, could ever lose his right to a deed by efflux of time.
If Beebe was bound to make a deed, what kind of a deed was he to make ? In view of the emphasis and reiteration in his covenant on this point, it would be unpardonable to raise a dispute as to the character of this deed. It was to be a quit-claim deed.
There, eap be as little. controversy as to the effect of sueh a deed. Since he himself had obtained from the government, by his patent, a perfect title, as all concede, his quit claim deed then, and that of his heirs and privies, now would pass an indefeasible title.
' It is suggested that the quit-claim deed which Beebe was to make should have had in it the same condition subsequent,, touching the permanence of the jail, which was in the conveyance made by the original proprietors; but it is not so nominated in the bond. We can find nothing whatever to rest this proposition upon. We would not be ready to imply such a condition, as conditions of this kind are not favored by the courts, but, if we were, we can see nothing in the covenant to justify such án implication.
We have not overlooked the stipulation that the county was to demand the deed within a reasonable time. But, as a rule, equity does not regard time as of the essence of a contract, and especially if nothing more is required than a quit-claim deed, and the only excuse for not making it is a lack of demand. Bispham’s Equity, sec. 391.
The only doubt we entertain on this point is whether a deed from Beebe was ever necessary. If we have properly construed Beebe’s covenant the county became the equitable owner as soon as he obtained the legal title.
The sole object of the statute of uses was to divest the title of the legal owner and to pass it by operation of law to the equitable owner. The authorities seem to be agreed that covenants to stand seized and deeds of bargain and sale are within the purview of this statute. Perry on Trusts, secs. 162, 302; Malone on Real Property Trials, secs. 175, 179. The covenant of Beebe is pretty clearly within the common law definition of a deed of bargain and sale. 2 Sanders on Uses and Trusts, 53. We do not undertake to lay down the law on this point, however, as counsel on neither side have argued it. It is easy to see that this point, if well taken, would be equally fatal to the plaintiffs right of action, and to the defendants’ title, and it was wise enough, perhaps, on the part of both to ignore it. There are, of course, recognized exceptions to the statute of uses, established either from necessity or out of hostility on the part of the chancery courts, and this case may have been regarded by couusel as within the line of exceptions. Perry on Trusts, secs. 300 et seq.
These conclusions are sufficient to dispose of the case. But if we are mistaken in our legal deductions; if this property was not within the meaning and intent of Beebe’s covenant; if this obligation to make a quit-claim deed was not intended for the benefit of Pulaski county, then we leave the parties without any contractual relations whatever. Their rights in such case must rest upon the statute of limitations. Pulaski county was a corporation, and was in possession of the jail property when Beebe obtained his patent, in December, 1839. Did Beebe have a right of action against the county for possession immediately upon the receipt of his patent ? The contention is that he had not, the rule being that in the absence of any testimony to the contrary, the occupant must be presumed to hold in amity with and by sufferance of the holder of the legal title. This is undoubtedly the rule, but this presumption of amity may always be overcome by notorious demonstrations of hostility. This hostility may be shown by oral declarations, but the most satisfactory and conclusive evidence of disloyalty on the part of the occupant is for him to be found holding under a deed which upon its face shows treason to the lord of the fee. Pillow v. Roberts, 13 How., 472. The deed may be void upon its face, and yet it may be used to show'the hostile character of the possession claimed under it. In the present case the county had entered and was holding possession under a deed, and, whether that deed was good or bad, it was sufficient to show the quo animo of the occupancy, and in the absence of any covenant between the parties gave Beebe an immediate right of action for possession. To escape -the statute bar, the burden is now on Beebe’s heirs to show a:n attornment or other evidence of subservient occupation. No such evidence has been adduced.
This case is easily distinguishable from the case of Pulaski County v. The State, 42 Ark., 118. In that case the county held under no written instrument, and there was nothing whatever to rebut the presumption of amity in the possession.
It is urged that a defendant claiming by possession as against the plaintiff in ejectment, must not only show that he has held adversely to the plaintiff during the period of limitation, but .that he must go further and show a possession “ exclusive of the title of any other person.” The statement of this proposition arouses our skepticism at once, and when we look into the numerous authorities cited to support it, we are not surprised to find that the cases do not justify the argument on this point. It is. most broadly asserted in R. R. Jones, 68 Ala., 48, but the proper qualification is made in the later case of Dothard v. Duncan, 75 Ala., 482. So, if it were conceded, as appellánts contend, that the possession of the county was not adverse to the original proprietors, it would not follow that the appellee could not claim the statute bar as against Beebe and his heirs.
The appellants, in demanding possession by their counterclaim, assume apposition analogous to that of a plaintiff in ejectment. They must recover on the strength of their own title, and not upon the weakness of their adversary’s.
This court, in Wilson v. Spring, 38 Ark., 181, held it to be “well settled in this state that the statute is not merely defensive, but confers title which may be asserted in ejectment.” If appellee, as the plaintiff in an action of eject ment, was asserting a title acquired by adverse posseesion, the argument of appellant’s counsel might well apply. It must not be forgotten, however, that oftentimes a title is all sufficient as a shield which might be entirely ineffective as a sword.
The same disposition may be made of the argument that the occupant must claim to be the owner in fee, before he can make the statute of limitations available. Ricard v. Williams, 7 Wheaton, 59, is cited as conclusive on this point. That is a leading case in the laws of real property, but we cannot see its application to the issues in this action. It is-well settled, of course, that the plaintiff in ejectment makes a prime facie case when he deraigns title from one who, at some time in the past, was in posession, claiming to be the owner in fee, but in the case cited the plaintiff sought to rest his title simply upon the long-continued possession of the person under whom he claimed. Mr. Justice Story held that length of possession in that ease was not a material circumstance, but that the essential fact to raise the presumption of ownership was the claim of title in fee on the part of the occupant. The proof having shown that the occupant, claimed only a life estate, he could not, oí course, be a source of title to one claiming under him after his death.
If, however, we have properly construed the instrument under which the county held, then she was claiming in fee and adversely to all other persons, as well as to Beebe and his heirs.
Without disputing the general proposition that the court may look to the deed under which the occupant holds to de-whether he is holding adversely, counsel for appel-urge as an exception to this general rule cases where 0CCUpan^ setting up adverse possession was holding under his deed at the time the patent was issued by the govern- merit to the rightful claimant of the legal title. We are not referred to any decision supporting this contention, and we think it would not be difficult to show the fallacy of the reasoning upon which it is based. If a person procures a patent for land from the government, and he finds some one already in possession, claiming the title by deed from a third person, the patentee has an immediate right of action for possession ; and if the action be not brought within the period fixed by the Statute, the claim of the occupant thereby ripens into an indefeasible estate. Trapnall v. Burton, 24 Ark., 395.
This case might also be rested upon the presumption of a grant after a sufficient lapse of time, if that doctrine can be distinguished from right of title by limitation. The recent case of Fletcher v. Fuller, 120 U. S., 534, is an instructing one on this point. The court in that case held that the execution of a deed necessary to complete the chain of title ought to be presumed in favor of the occupant after a great lapse of time, notwithstanding there was no evidence whatever that any such deed had ever in fact been executed.
Let the decree of the Pulaski Chancery Court be affirmed.
CocKRiLL, C. J'., did not sit in this case. | [
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Battle, J.
The appellant was indicted in the Washington circuit • court for obstructing a public road. It is-, charged in the indictment that appellant, in the co.unty of Washington-and State of Arkansas, on the 10th of April,. 1886, “unlawfully obstructed the Fayetteville and War Eagles road by then and there, placing and causing .to b.e placed in. said, road a d.itch.and a fence, said road being then and there-.a public highway in said county.” <¡
The parties, by consent, waived a jury and submitted the-law and facts to the court. On the trial it was proven that many years ago the road leaving the Missouri road two and a half or three miles from Fayetteville and running but oh' War Eagle Creek and to the county line was, by the county - court of Washington county, declared to- be a public high- : way and denominated “the War Eagle Road-;” and fór more-than ■fifteen years-the same has been laid off into road dis-j tricts, and overseers for each district so laid off, for each) second year; have been appointed by the county court.. The road originally ran diagonally, through the north-west quarter of section sixteen, in township seventeen north, and in range twenty-nine west, entering at the south-west corner- and going out at the north-east corner. In 1856 Wilson Eidson, who then owned this tract of land, under and in pur-' suance of an order of the county .court, changed the road, beginning where it entered the north-west quarter of section, sixteen and running the same north on the same quarter of a. section to the'north-west corner thereof, and thence east on’ the same tract to the north-east corner thereof. After the-close of the late war between the States, the owner of this- tract of land, enclosed a large part oí the road on the west boundary of his land by a rail fence, which ran in some places within five or six feet of the line between sections sixteen and seventeen ; and thereafter public travel was wholly diverted from the part of the old roadway so enclosed to the west side of the rail fence, and a new road was beaten out, and a large part of it was made, by public travel, west of the section line and on the north-east quarter of section seventeen in the same township and range, in the general direction of the part of the old road enclosed by the rail fence, falling into the old road at each extremity. Public travel continued over this new roadway for more than seven years, and the overseers appointed on the War Eagle road caused it to be worked until it was closed up and obstructed as hereinafter stated.
Isaac Patton was the owner of the north-east quarter of section seventeen, in 1859, and so continued until some time during the late war, when he died, leaving a widow, and the defendant and others his heirs at law. The widow aud heirs, except the defendant, were, and at all times since the close of the war have been, non-residents of this state. The defendant acquired all their respective interests in the land of Isaac Patton. He knew nothing of the road made on the land purchased by him., he being a resident of Little Rock, until so'me time in September, 1885. In the fall of 1885, and in the spring of 1886, he made a ditch and wire fence parallel to and within three feet and west of the section line, and in the road made by the public on his land, as it then ran, and had run for more than seven years before; and at some places left only from eight, to twelve feet between his wire fence and ditch and'the rail fence on the opposite side of the section lino; and thereby rendered public travel difficult; and this was the obstruction charged in the indictment to have been made by the defendant.
The court found the defendant guilty in the manner and form charged in the indictment; fixed his punishment at a fine of ten dollars; rendered judgment against him; and he filed a motion for arrest of judgment and new trial, which were denied, and, saving exceptions, appealed.
It is contended by appellant that the indictment is fatally defective, because it does not show the district in which the road was obstructed as charged, its terminal points, or in what part of the county it lies. The description of the road obstructed given in the indictment is, "The Fayettevi]le and War Eagle Road." By this designation it is clear that the road meant or referred to was the road leading from Fayette-yule to or on War Eigle. In State v. Lemay, 13 Ark., 405, this court sustained an indictment for obstructing a public road, which described the road obstructed as the road "leading from Lewisville to Minden and Oamden." The description of the road in the indictment in this case is as certain as that in the Lemay case, and is sufficient.
It is insisted by appellant that the way travelled by the public over his land was not a public highway and no part of the road for the obstruction of which he was indicted, and that he was not indictable for making the wire fence and ditch in it end thereby obstructing pubiic travel.
It is not absolutely necessary to establish a public'highway that its boundary lines be surveyed and that it be opened and appropriated to public use, under an order of the county court. It can be established by a dedication on the part of the owner of the soil over which it runs, and the assent thereto and use thereof by the public, or by prescription.
Hobbs v. The Inhabitants of Lowell, 19 Pick., 405, was an “ action on the case,' to recover damages for an injury sustained by the plaintiff, by reason of a defect in a highway in the town [now city] of Lowell, called ‘Merrimac street.’ At the trial, before Morton, J., it appeared that there was án ancient county road leading through that part of Chelms-ford which' now constitutes Lowell, and thence through. Tyngsborough to Dunstable. In 1822 that road was stopped up by an impassable canal, fences, and dwelling houses, erected and made by a corporation called ‘The Proprietors Of' Locks and Canals on Merrimac River,’ and the travel on it entirely prevented. At the same time Merrimac street was-openéd by the same corporation, in the general direction of the old road, passing over the canal by a bridge, and falling into the old-road at each extremity. From that, time'the-travel was wholly diverted into this street, which wá$ to appearance a part of the-same county road, and all traces of the-old road were obliterated. 'The town of- Lowell was incorporated in 1826. In 1827 the-selectmen of the town directed, generally, that-guide-posts-should be set up in such places as required them, and pursuant to that direction, one of the selectment set a guide-post at the corner of Central street and Merrimac street,■ directing on the latter street to Tyngs-boro and Dunstable. On Merrimac street were a church and •parsoinage, leased, to a religious society, and used as a place-,0.f public worship. . On the side-of the street, opposite to-the church, was an excavation about eight or ten feet deep,, extending into the travelled part of the street, .where the injury to the plaintiff was received. The street was otherwise-a good road. There was no further evidence of acceptance of the street on the-part of the town, or of any-work or repairs done thereon by the authority of the town. On the 19th of October, 1828, the plaintiff was passing with a horse and chaise, in the' night time, between certain points in-Lowell, and fell into the excavation; Prior to shutting up, the old road his course would have lain through that road, and after the discontinuance of that road the only travelled way between .those points was through Merrimack street and across the bridge over the canal.” Chief Justice Shaw,. speaking for the court, said : “ This case raises the question^, whether, under any possible circumstances, a highway can be established and recognized in this commonwealth by dedication, that is, by an appropriation by 'the owner of the soil, to the use of the public for a highway, and the adoption thereof by the public; because it is scarcely possible tó imagine- a case of dedication more clearly and fully proved,, than the'present case. Tlie owner of the' soil kid out and ’ fitted this'section of the róad for public travel; the Old highway, for'which it was substituted, was not only afterwards disused,-de facto, but'was obstructed, so as to render it physically impassable. ' The town of Chelmsford, whose duty it ' was to keep this section-of the old road in repair, if they did not intend to adopt the new oné as asribstitute,instituted rid" prosecution against those who Obstructed-it,'but, on the obn-T trary, the surveyor of highways, the selectmen, and the cor- ' poration -itself, acquiesced in the change, until the territory-' was set off into a new town. Thé wáy iri ‘ question-was ah'" open highway'in actual use, when the town by the act of in-" corporation, became de facto liable to support and repair alb" highwriys' within its limits,- and they have taken no measure®to re-establish the’ old - from that time to the present. This-highway was so in actual use by the public, from 1822, when-it was opened, until 1828, when the accident occurred. The-' act of the owners of the soil in appropriating the land to' public use ás a highway, is as distinct and unequivocal, as" could possibly be, without an instrument in writing; and the-actual usé of the highway by the public and the acquieseerice-by all in authority, whose assent could be considered requisite, are as .clearly proved as tacit acquiescence ever can 'be;5*' After showing that a highway can be established in the; Commonwealth of Massachusetts by a dedication on the-parfe of the owner of the-soil, and an assent thereto on the part of ■ the public, he concluded by saying: “But we consider that. xfche questions whether the assent of the public is necessary to ■an effectual dedication, and how it is to be given or withheld, do not arise in the present ease, and the court gives no opinion upon them; they must be considered as open for • consideration whenever they occur. In the present case, the 4own of Chelmsford, the town and city of Lowell, the County -and the Commonwealth, by their respective town and city ■«officers, grand juries and public prosecutors, by forbearing to (proceed against those who have stopped up the old highway; ¡and substituted the new one for it, have respectively expressed their assent to this dedication; and it is too late now for the city to say this road is not a public highway.”
But the case of Hobbs v. Lowell is unlike this in one respect — Patton did not stop up the old road on section sixteen =and open the road on his own land. In other respects, there is a striking similarity. The county of Washington took no •steps to have the old road opened. Its grand juries instituted no prosecutions against him who obstructed it, but, on ‘the contrary, the overseers appointed by its county court -acquiesced in the change, and caused the new road on Patton's land to be worked for many years. No effort seems to ihave been made to re-establish the old road after it was •stopped up and the road was made on Patton’s land. For miore than seven years the road made on appellant’s laud was •In actual use by the public and as a part of the War Eagle -iroad. And here arises the question, what the public acquired by actual and expressed dedication od the part of the owner in Hobbs & Lowell, has it not gained in this case by adverse (user ?
In Howard v. State, 47 Ark., 431, it was held by this court fhat “a road becomes established as a public highway by prescription, when the public, with the knowledge of the owner of the soil, has claimed and eontiuuously exercised fhe right of using it for a public highway for the period of seven.years, unless it was so used by leave, favor or mistake/”.' The right to a public highway acquired in this, manner is based upon .adverse possession for the full statutory period! of limitation, as the title to land is acquired by individuals-by such possession. In this way a street has been held to have been evidenced. The right to a public highvray acquired in this manner is as full and complete as it would be had it been acquired by actual dedication by the owner*. It is not sufficient to overturn this doctrine to say that it-would be a great hardship upon the people to impose upon» them the maintenance and repair of highways acquired m such manner. There can be no stronger evidence of the public necessity and convenience of such roads than .the voluntary and persistent use of them by the public for a long period of time. The roads which become useless and too» burdensome to maintain and.keep in repair can be vacated by the county court in the manner prescribed by the statutes, Smith v. State, 3 Zab., 130, 140; Valentine v. Boston, 22 Pick., 75, 79; Rugby Charity v. Merriweather [note], 11 East, 376 ; Rex. v. Leake, 5 Barn. & Adolph, 469 ; Commonwealth v. Cole, 26 Penn. St., 187; Esling v. Williams, 10 Penn. St., 126; Howard v. State, supra, and authorities cited.
The evidence adduced in the trial of this action tended to-prove that the public did not travel over Patton’s land by leave, favor or mistake. The old road was closed up. There was no doubt about its locality. The witnesses, who testified in the trial, testified positively as to its location. There is no contention that it was involved in obscurity, or that there was .any mistake about its location. But notwithstanding the locality of the old road was fixed and certain, no effort to re-open it was made. The public acquiesced in the partial closing of it, and by continuous travel made a road on the land of appellant. . It became, by long use and the abandonment of the old road, a part of the War Eagle road ; and as- such the overseers on that road appointed by the county court caused it to be worked for more than seven years. Under these circumstances it could not have been used as it was, except under a claim of right. The fact that the old road laid out by authority of the county court ran alongside and parallel with it did not, as held in Hobbs v. Lowell, defeat the right of the public to hold it as a public highway and as a part of the War Eagle road.
The public held open, peaceable, exclusive, notorious and possession of it, under a claim of right, for more than seven years, continuously, and thereby acquired the right to it as a public highway. It is not enough to defeat this right to prove that appellant did not actually know that the road was upon his land. He ought to have known. The possession and use of it was open and notorious and could have been easily ascertained by ordinary observation. This was sufficient to have put him upon notice, and he will not now be heard to say that he did not acquiesce in such use, possession, and appropriation. Smith v. State, supra.; The State v. Nudd, 3 Foster [W. H.], 327, 339; Corbry v. Willis, 7 Allen, 364; Cleveland v. Ware, 98 Mass., 409, 413; 2 Greenleaf on Evidence, sec. 430; and authorities citied ; Morse v. Williams, 62 Me., 445.
The evidence was sufficient to sustain the conclusion of the court that the road on Patton’s land was a public highway, and that he was guilty of obstructing it. We find no substantial error in the judgment of the court, prejudicial to appellant, and it must be affirmed. | [
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Cockrill, C. J.
This is a suit to quiet title. The complaint was filed by the Parrs to cancel a tax deed held by Matthews. The court found that the title to the land was in the plaintiffs, unless it was divested by the tax deed ; that the tax deed was good on its face but void in fact; that the land was wild and unimproved ; that the defendant, the purchaser at tax sale, had never been in possession, but had paid the taxes for the years subsequent to his purchase; and it was decreed that the adult plaintiffs were barred of their remedy and that the minor plaintiff should be permitted to redeem. The plaintiffs appealed.
The court’s finding of facts is sustained by the proof.
The land was sold in December, 1869, for the taxes of 1868. The tax proceedings were had under the act of February 19, 1869 — an act passed in aid of the revenue law of July 23, 1868. Pack v. Crawford, 29 Ark., 492; Cole v. Moore, 34 Id., 582 ; Hickman v. Kempner, 35 Id., 505.
The assessor caused his return of the assessment of real property to be filed by the county clerk pn the 9th of June, 1869. The county court met-within’15 days thereafter, as the act required, to equalize the assessments, and after a series of adjournments, on the 15th of July, 1869, ordered that a tax of one per cent, for county purposes be laid upon the taxable propeity, presumably for the year 1868. There was no evidence of the levy of any other taxes for that year. Rut as the act makes the tax deed prima facie evidence of title in the grantee, the presumption is induulged, in the absence of controverting evidence, that the taxes were laid according to law. The supplemental act of February 19, 1869, makes no provision for the levy of taxes. That power was governed, at that time, by the act of July 23, 1868 When the supplemental act was passed, it seems .to have been taken for granted that the county courts had performed the duty of levying taxes as prescribed by the revenue law then in force, and the supplemental act was intended to authorize a subsequent assessment and collection of the taxes already levied. It was the policy of the revenue act of 1868 to cause the taxes to be laid before the property assessment was completed. The power to levy taxes for the year 1868 expired with that year by virtue of the 83d and 84th sections of the act of July 23. 1868. Moreover, that act and its supplement of 1869 were expressly repealed by the 159th section of the act of April 8, 1869, before the levy of the tax in question, but were continued in force for the sole purpose of collecting the taxes due tor 1868. It follows that there was no legislative authority for the county court to lay taxes in July, 1869 for the year 1868. The county tax of one per cent, was therefore laid without authority of law and was an illegal exaction. The land in question was sold to state, county and other taxes. The county tax for which it was sold amounted to just one per cent, of its assessed value. In the absence of other evidence, we would indulge ttie presumption that this tax had been regularly laid by the proper authority-ia the year 1868. But the record shows, as we have seen, that such a tax was levied in 1869 for 1868. It was the duty of the county court alone to perform this act, and when it is proved to have been done on one date, there is no presumption that it was done on another. It will not be presumed that the fact is otherwise than as proved by the record of the court adduced in evidence. Galpin v. Page, 18 Wall., 364. The proof that the county tax, for the non-payment of which the land appears to have been sold, was illegally laid upon it, rebutted the presumption of regularity raised by the deed, and cast upon the tax purchaser the onus of showing, it he could, that a •similar tax was legally assessed. No effort was made to do so. It follows that the land was sold for an illegal tax. That vitiated the deed. The bare lapse of time without possession, did not cure the defect. Radcliffe v. Scruggs, 46 Ark. 96.
The court should have cancelled the tax deed upon the payment of the taxes, &c., legally assessed against the land -and the taxes subsequently paid by the purchaser.
Reverse the decree and remand the cause with instructions ■to enter such a decree. | [
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Smith, J.
The indictment alleged that the defendant. “ unlawfully did make use of violent, abusive and insulting language towards and about one Asher Willie, and in his presence and hearing; which language, m its common acceptation, was calculated to arouse to anger, him, the said Asher Willie, and cause a breach of the peace,, against the peace, etc.” After trial and conviction, a motion in arrest of judgment was denied.
The indictment is founded upon the peace and tranquil-act of July 23, 1868, Mansf. Dig., sec. 1802: “If any person shall make use of any profane, violent, abusive,, or insulting language, toward or about another person,, in his presence or hearing, which language, in its common acceptation, is calculated to arouse to anger the person about or to whom it is spoken or. addressed, or to-cause a breach of the peace or an assault, every suehi person shall'be deemed guilty, etc.”
The Act recognizes the right of a person, not only to be safe, but to feel safe; and the indictment conforms closely to the words of the Act, which creates and defines the offense.
It would seem, on principle, that an indictment for this offense should set forth the language used by the defendant, which is alleged tó be abusive and tending naturally to provoke an assault, in order that the court might be enabled at the outset, to judge whether any offense had been committed. The analogies of the law discourage putting a defendant on trial without a more minute specification of his offense. Thus in an indictment for obtaining goods under false pretences, it is necessary to set out. the pretences used, as well as the other facts which constitute the crime. So an indictment for libel must set out the libellous matter, or such parts of it as go to make up the libel charged. Accordingly in a late case (Stener v. State, 59 Wisc. 472) the Supreme Court of "Wisconsin held, that in a criminal proceeding before a justice of the peace, under a similar statute, the complaint must set forth the abusive or obscene language. And such was the course pursued by the prosecuting attorney who drew the indictment in State v. Mozier, 33 Ark., 140. But in Hearn v. State, 34 Id., 550, and in State v. Hutson, 40 Id., 361, this court sustained indictments similar in form to the present one. Perhaps the mention of the person to-whom the offensive language is-addressed sufficiently individuates the offense for all practical purposes; especially since the question, whether language was in its nature ealculáted to arouse to anger or to provoke a breach of the' peace, must be left to the jury; depending-as it does upon the manner of the speaker,, the relations of the parties, and the circumstances under'which it was spoken.
When the cause was called for trial, the defendant . moved the court to grant him a continuance on account : of the. absence of a witness, by whom he expected to prove that the language used by him, on the occasion referred to in the indictment, was in response to opprobrious language used by Willie of and concerning the defendant’s father, and that Willie, without .any provocation, was the first to use angry words. The State’s attorney conceded that the witness, if present, would so testify. The defendant insisted that he was entitled to a continuance unless the truth of the matter set forth in his motion was admitted. The court ruled otherwise. On the trial the application for continuance was read as the testimony of the absent witness. The State did not controvert the statements contained in the application, and the jury assessed the minimum fine.
If it be granted that the provisions of the civil code regulating continuances do not apply to criminal case», or if intended to apply, that they are in derogation of the constitutional rights of the accused, still no prejudice could have accrued to the defendant. The evidence would not have gone to the extent of justification, or complete exculpation; for of course violent words can not excuse like violent words. But the jury might consider the provocation in mitigation of the punishment. And this is manifestly what they did; for they have inflicted the lowest penalty.
Judgment affirmed. | [
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Battle, J.
Marks recovered a judgment against Matthews in the Dorsey circuit court, and sued out an execution thereon, and caused the sheriff to levy on certain land of Matthews5 to satisfy it, and to sell the lands, in accordance with law; and purchased them; and after the expiration of twelve months next succeeding the sale caused the sheriff to convey them to him; and thereafter took possession. To recover these lands Matthews brings an action of ejectment.
In the trial Matthews introduced parol testimony, over ■ the objection of Marks, to prove that Marks sued him before a justice of the peace; that process in that suit was never ■served on him; that he made no appearance and authorized no one to appear for him ; that judgement was rendered ■against him by the justice; that he never took an appeal from the judgment of the justice to the circuit court, but an appeal was taken; that he never appeared or authorized any one to appear for him in the circuit court; and that the judgment recovered by Marks as before stated was rendered in said action against him. It is stated in the judgment that the parties, who were G. M. Marks, plaintiff, Jackson Matthews, defendant, and James Warner, garnishee, appeared by their attorneys, and on motion, and, it appearing that Matthews was indebted to Marks in the sum of 4180.80, with interest thereon at the rate of ten per cent per annum from the 23d of January, 1877, until paid, it was considered and adjudged that Marks recover of Matthews the sum of $180.80 for his debt, and the further sum -of $23.33 for his damages. The pleadings and other papers ■on which this judgment was based were lost, and were not produced or read as evidence in this action.
Matthews recovered judgment for the lands; and Marks-moved for a new trial, which was denied, saved exceptions, and appealed.
The facts necessary to give the circuit court jurisdiction' in the action instituted by Marks against Matthews, in the absence of record evidence to the contrary, are presumed to exist; and the parol evidence introduced by Matthews to-contradict this presumption, and to show that the judgment recovered by Marks was void, because the court rendering it did not have jurisdiction, is not admissible in this action. Boyd v. Roane, 49 Ark., 397, and Lessee of Fowler v. Whiteman, 2 Ohio St., 279.
The judgment of the court below is, therefore, reversed, and this cause is remanded for a new trial. Appellee will,, of course, have the right to amend his complaint, or .to dismiss and bring a new action inr equity to set .aside the judgment recovered by Marks and . the sale, on any grounds, courts of equity will set aside such judgments and sales, and for the possession of the lands. | [
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Battue, J.
Appellees, “ creditors of the estate of Samuel Dickens, deceased, on behalf of themselves, and other creditors of said estate, filed their bill in 1878, against the administrator, Jacoway, his sureties on his bond, and Mrs. Elizabeth D. Jacoway. The object of the bill was to set aside for fraud the settlements made by Jacoway in the probate court, to restate the accounts, to hold the sureties liable, and to subject to any decree to be rendered, certain real estate to which Mrs. Jacoway had legal title. A demurrer to the bill for want of equity was sustained, whereupon complainants rested. The bill was dismissed and they appealed ” to this court. The judgment of the court below was reversed on appeal, and the cause was remanded for further proceedings. It then proceeded to a final hearing and was heard upon its merits. The settlements were held to be fraudulent in many respects and were restated by the court below; and the defendants excepted and appealed to this court. Plaintiffs also excepted to many rulings of the court against them and again appealed. ,
Dickens died intestate, on the second of March, 1867. Jacoway administered on his estate ; filed an inventory, and made settlements, respectively, on the 19th of May, 1868, on the 7th of July, 1869, on the 14th of April, 1870, and the 5th of July, 1871, all of which were approved and confirmed.
“ Subsequently, on the 15th of April, 187'5, he filed a fifth settlement, in lieu of the four former ones, purporting to render an account and statement of all his administration down to that time, from the beginning, which was also duly approved and confirmed.” Plaintiffs allege in their bill that these settlements are fraudulent, and to show this make thirty-one specific charges of facts which they insist indicate fraud.
The opinion delivered by this court in this cause when it was here for the first time, which is reported in the 42 -Ark., 186, lays down the rule by which, courts of equity are governed when they interfere in the settlements of administrators to correct fraud or errors, or relieve against accident or mistake. It is unnecessary to add to what has been said upon that, subject in that opinion, except to repeat the rule so often announced by this court: A court of equity will not interfere with the proceedings in the probate courts for the settlement of estates to correct mere errors or irregularities, unless they are sufficiently gross to raise the presumption of fraud. Ringold v. Stone, 20 Ark., 526; Osborne v. Graham, 30 Ark., 66 ; West v. Waddill, 33 Ark., 575; Reinhardt v. Gartrell, Id., 727; Mock v. Pleasants, 34 Ark., 63; Jones v. Graham, 36 Ark., 383; Nathan v. Lehman, Abraham & Co., 39 Ark., 256; Trimble v. Jones, 40 Ark., 393; McLeod v. Griffiths, 45 Ark., 505 ; Hawkins v. Layne, 48 Ark., 544.
Plaintiffs’ first charge of fraud is, the administrator charged himself in his settlements with interest at ten per centum per annum on $3,487 from March 18th, 1868, when he should have charged it from* March 19th, 1867, and thereby defrauded the estate of Dickens out of $348.71.
The thirteenth is, the administrator received $6,957.18, and tailed to charge himself with interest thereon from the time he received it, and thereby defrauded the estate of $1,158.25.
The evidence does not sustain either of these charges. In the first, the $3,487 was the amount of a note which did not bear interest until the 18th of March, 1868, when it was due. In the latter case the administrator charged himself with ten per centum per annum interest on the money from the time he received it to the date of the settlement in which it is charged.
But Jaeoway insists that he did not use the $6,957.18,2. and through mistake charged himself with $764.72 thereon, when he was not chargeable with interest, and this error against him should be corrected. The evidence does not show that he charged himself with it through mistake of fact. His settlement shows the dates of the receipt of it, and that he charged himself with interest thereon from the time he received it to the date of his settlement. If there was any mistake in this, it was a mistake of law and not of fact. He received of this money $2,786.25 on the 11th of July, 1873, $1,035 on the first of July, 1873, and $3,135.93, the remainder, on the 20th of December, 1874. He made no report of the collections of it to the. probate court until the 15th of April, 1875, the date of the settlement in which he charges himself with it, but elected to hold the money and pay interest thereon. It was his duty to have reported the collection of it to the piobate court as promptly as he could, so that the court could have directed that it be loaned out or used in the payment of the debts allowed against the estate. Had he done so, the estate would have been benefitted by the interest accrued on the same or by the saving of interest on the claims paid. Having injured the estate by his inaction he did right in charging himself with interest, and the charge should not be changed.
The sixth charge of fraud is, Jacoway charged himself with $4,132.59 as the amount due on the 10 per cent, notes reported worthless, when in fact the amount due on them was $4,556.23, and thereby defrauded the estate of $423.64. The fifteenth charge is Jacoway credited himself with $5,607.31, as the amount of worthless notes when the true amount was $4,470.87, and thereby defrauded the estate of $836.44.
The eighth charge is, Jacoway, on the 1st of January, 1868, sold some notes of the estate for $10.35, and fraudulently failed to charge himself with interest on the amount of the sale, amounting to $7,48.
Jacoway admits that he erroneously charged himself with $4,132.59, the amount due on the 10 per cent, notes reported as worthless, when he should have charged himself with $4,556.33, but says it was an unintentional error and would have been cheerfully corrected in the probate court had his attention been called to it. He admits that he took an excessive credit of $589.30 for worthless claims, through mistake; and that through an oversight he failed to charge himself with $7.48 on the $10.85 received on account of sales. He says these errors were mistakes made by him, and that he is willing to correct them, but insists they should be corrected in the probate court.
It appears that he made calculations of the amount due on these claims, and made statements in his settlements and otherwise showing the amount of the principal of each of them, and the interest due thereon and the sum total of the amounts due on all, and that the probate court accepted his ■calculation as correct. This amounted to a misrepresentation to the probate court as to the amount due, and having been acted on and accepted as correct by the probate court, amounted to a fraud on the court, and oú the creditors and others interested in the estate. Jacoway, admitting that his failure to charge and credit himself with the proper amounts for worthlsss claims and to charge himself with $7.48 was a mistake of his own, and manifesting a desire that they should be corrected, he should be charged with the correct amount of the worthless claims belonging to the estate, and credited therewith, and charged with the $7.48; and the correction should be made in this cause.
The ninth charge is, Jacoway included in his inventory of the estate six bales of cotton of the value of $750, and has never accounted for them. In explanation of this omission the evidence shows that the last crop raised by Dickens was on shares with the freedmen on his place, under an agreement that the Ireedmen should have one-half of the crops raised; that Dickens sold, substantially, all the cotton and applied the proceeds to his own use, only leaving the six bales of cotton, a small part of the cotton crop, unsold ; that the six bales of cotton and 1,265 bushels of corn and seven stacks of hay and fodder, of the crop of 1866, were inventoried by Jacoway; that it is shown in the inventory that one-half of the corn, fodder and hay were claimed by the freedmen; that after it was inventoried complaint was made to the agent of the Freedman’s Bureau; that he seized the six bales of' cotton and one-half of the corn, fodder and hay to satisfy the demands of the freedmen ; and that Jacoway realized nothing from the property seized. He testified, from investigation he became satisfied they were entitled to it.
There was no competent evidence to show that Jaeoway acted fraudulently or that there was any inducement for him to betray his trust. Accepting the evidence as true we think the freedmen were entitled to the portion of the crop seized by the agent of the Freedman’s Bureau; and that Jaeoway should riot be held to aecountYor the six bales.
Jaeoway charged himself in his settlements with the appraised value of the corn, fodder and hay and interest thereon, but never credited himself with the half of it which was seized by the agent of the Freedmen’s Bureau. He insists he should be credited with the portion so seized. It is obvious that this failure to credit himself was unintentional, and that he should be credited with the appraisement of the corn, hay and fodder seized and the interests thereon with which he stands charged. This should be done in this ease on the principle, that he who seeks equity should do equity, if upon no other. Trimble v. James, 40 Ark., 407.
The second charge of fraud is, Jaeoway delivered to the widow of Dickens, as a part of' her dower, $398 worth of personal property, at its appraised value, and fraudulently failed to charge himself with it; and the third charge is, he failed to charge himself with interest on the last amount. The evidence is, the property delivered to the widow consisted of a gin stand and belt of the appraised value of $308, and one shot gun, two cows and calves, and two pistols, of the aggregate appraised value of $90; that Jaeoway sold the gin stand and belt to Hilb and Jessnp for $308 and at the same time sold to them other property and took their note for the property sold and charged himself with the note; that afterward, when the widow demanded them as part of her dower, the gin stand and belt were delivered to her by Hilb and Jessup, at the request of Jaeoway, and they were credited on their note with their appraised value; and that he, Jaeoway, never charged himself with the other personal property delivered to her at the same time. Jaeoway admits that he unintentionally failed to charged himself with the gun, pistol, and cattle, and that he has credited himself therewith in his settlement. This is a fraud upon the estate of Dickens. Jaeoway should be charged with the ninety dollars, and so much interest thereon as he has credited himself with in his settlements.
The tenth charge is, Jaeoway inventoried two judgments in favor of Samuel Dickens, one against H. Bernard and the other against B. J. Jaeoway, and has never accounted for them. It does not appear that the judgment against Bernard was of any value, or that any part of it has been collected, but Jaeoway admits that he collected on the judgment against-B. J. Jaeoway, on the third day of July, 1871, the sum of $167.83, and has never accounted for it. This is also a fraud upon the estate. Jaeoway should be charged with it and interest thereon from the third of July, 1871.
The eleventh, eighteenth, twenty-third, twenty-sixth, and-twenty-eighth charges are, Jaeoway is credited in his settlements with various sums for which he is not entitled to credit. It is unnecessary to state more definitely what these credits are. There is no evidence sufficient to show that Jaeoway practiced any fraud upon the court, in obtaining them, by misrepresentation or withholding information, or that there was any mistake of fact committed in allowing them. The burden of showing that these credits were the result of fraud, mistake or accident rested "on the appellees^ the plaintiffs; and inasmuch as they have not made the proof they will be permitted to stand.
The thirtieth charge is, Jaeoway was credited with $18.60, the amount of the principle and interest due on a note against D, W. McKenzie, belonging to the estate of Dickens, the same being returned and credited as a worthless claim, when he had collected it. As to the collection of this note the evidence is conflicting, but it is clearly proven that Jacoway, in his capacity of administrator, collected of McKenzie, on the 9th of May, 1868, the sum of thirty dollars, and that he has failed to charge himself with this amount. He should be charged with it and interest thereon from the time it was paid.
The twenty-ninth charge is, Jacoway allowed a claim against the estate of Dickens in favor of himself and one Holl'owell for $560, that was barred by the statute of limita-tioiis. This amounts to nothing. The statute governing < , . . the allowance of claims in favor of executors and administrators against their testators or intestates says : “ An executor or administrator may establish any demand he may have against his testator or intestate, by presenting and proving the same to the satisfaction of the court; and the court shall not allow any claim in favor of an executor or administrator agains this testator or intestate, unless on legal and competent testimony; and the same affidavit shall be required of an executor or administrator as is required of other claimants.” From this statute it is evident that an administrator cannot allow a claim in his favor against his intestate, but in order to secure an allowance of the same he must verify it by his own affidavit, present it, and prove it to the satisfaction of the probate court by competent evidence. Being an ad-ministaator, occupying a place of trust, it is his duty to act in good faith, and protect the estate by placing the probate court in possession of all the material facts within his knowledge or information, which would be competent evidence and calculated to influence the judgment of the court. Failing in this and thereby securing the allowance of his claim he would be guilty of fraud. But notwithstanding it is his duty to prove his claim in the manner indicated, an allowance in his favor will not be set aside for mere errors or irregularities. Like all other judgments it may be set aside in a court of equity for. fraud committed in obtaining it. But it will not be sufficient to set it aside to prove that the claim was barred by the statute of, limitations. If it was the duty of the court to have disallowed it because it was barred and the evidence showed that it was, the court only committed an error in allowing it, which cannot be reached or corrected in a chancery proceeding. Nathan v. Lehman, Abraham & Co., 39 Ark., 256; Jones v. Graham, 36 Ark., 390.
In this ease it appears that the claim of Jacoway and Hol-lowell was presented to the probate court and allowed and classed. In the absence of proof it is presumed that the court acted in pursuance of law and that the allowance was not obtained by fraud, accident, or mistake, and should not be set aside or modified.
The fourth, fifth, seventh, twelfth, fourteenth, sixteenth, seventeenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-fourth, twenty-fifth, twenty-seventh, and thirty-first charges are not insisted on here'and are considered abandoned.
The decree of the court below is, therefore, reversed, and this cause is remanded with directions to the court to surcharge and falsify the settlement of Jacoway in accordance with this opinion, and to render such judgment for the costs, of the court below as to the court may seem equitable, and. for other proceedings not inconsistent with this opinion. | [
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OocKRiLL, C. J.
Berger, the appellant, is a at Malvern — a town where no license can be issued for the sale of intoxicating liquors. Lederer & Bro. were licensed liquor dealers at Donaldson — a station in the same county on the same line of railway, but not within the territory where the -sale of liquor is prohibited. Persons at Malvern who wanted Lederer’s liquors would leave orders for what they desired with Berger, who would forward them to Donaldson to . be filled. The Lederers, except in rare instances, accepted the orders, placed the liquors designated in each in a bottle or jug labelled with the name of the- person giving the order; put the bottles or jugs into a box which was kept for the purpose, locked the liquor in and delived the box to the railway company, addressed to Berger. Berger was provided with a key and when the box was received he would remove the contents and return it by rail empty to the Lederers to be used as before. This occurance was oft repeated — the box going and returning with such frequency that one witness who was hired by the Lederers to carry it to and from the depot at Malvern, «aid it was almost daily. The bottles and jugs thus received by Berger were delivered by him on demand to the person indicated by the labels. It does not appear that Berger was in any way interested in the Lederers* business at Donaldson, or that he was expressly authorized by them to do more .than transmit orders and deliver such liquor as they saw fit to send him; and he received no remuneration for his services. , .
John Carmichael, on two occasions, ordered and received whiskey from the Lederers through Berger at Malvern in the usual way — viz: as above indicated. On one of the occasions Berger delivered the liquor to Carmichael without receiving the purchase price ; and on the other refused at first to receive it, explaining that he had nothing to do with the sale, but he finally accepted it. for the Lederers upon Carmichael’s suggestion that it would be a favor to him, as it would save him the trouble and risk-of transmitting it. He had pursued the same course in his dealing with others. The grand jury indicted Berger for selling ardent spirits at Malvern te Carmichael. All the facts above detailed were put in evidence. Berger was found guilty and has prosecuted this appeal from the judgment of conviction. His contention is, that, the facts show that the sales were made by the Lederers and became consummate at,Donaldson upon the delivery of the liquor to the common carrier at that point.
This would be true if the Lederers after selecting the goods ordered, had consigned them:to the carrier for the purpose of being delivered by it to Carmichael. That would have shown a palpable appropriation of the articles selected to the contract of sale, the carrier would! be regarded as standing in the place of the buyer for the purpose of delivery; the property would have vésted in him at Doldalson — the place of shipment — and the sale would have become complete there. Parsons Oil Co., v. Boyett, 44 Ark. 230; State v. Carl & Tobey, 43 Id., 353; Frank v. Hoey, 128 Mass. 263; Weber v. Howe, 36 Mich. 150; Boothy v. Plaisted, 51 N. H. 436 ; Sarbecker v. State, 65 Wisc. 161; Gahbracht v. Com’th, 96 Penn. St. 449. No offense would then have been committed, for the Lederers were licensed dealers at Donaldson and the act there was lawful. To sustain the judgment, it must appear that the sale was consummated-that is that the property passed-in the territory where the act was unlawful. Gases supra. But the intention to pass the property to Carmichael before actual delivery at Malvern was not manifested by the Lederers. The order received by them was not a contract of sale, but only a proffer to purchase, and their intent in shipping the liquor is the paramount consideration in determining whether the offer was accepted and the sale completed. Now, they did not consign the liquor to Carmihael, but to their own agent, -Berger; they paid the charges for carriage; they assumed control of the property on its arrival at Malvern by, causing it to be taken in charge for the purpose of transportation to their agent’s place of business, and finally delivered it into his hands. These facts indicate the intention not to pass the property to Carmichael.
The rule is well established, that a vendor who takes a bill of lading deliverable to his own order, manifests the intention to reserve the jus disponendi and prevent the property from pas~ing to the intended vendee. Benjamin cn Sales, sec. 399; 2 Shouler on Personal Property, sec. 27, et seq. One who ships goodsto~ a third person who is his agent, and who as si~ch agent is subject to his authority in reference to it, equally manifests the inten~tion. While the goods are in transit or in the hands of the seller’s agent, the- contract is executory and either party may recede from it. The other facts mentioned are circumstances which also tend to' show the intention of keeping control of the liquor. By assuming to pay the cost of carriage without any adjustment of the charge between themselves and the intended buyer, the Lederers manifested the intent to hire the carrier to transport the liquor as their agent, jiist as they did the man employed to complete the transportation for them by delivery at Berger’s store. 2 Shouler on Pers. Prop. sec. 264; Suit v. Woodhall, 113 Mass. 391, The delivery to the carrier at Donaldson was not, therefore, an appropriation of the liquor to Carmichael’s proffer to purchase. But Berger consumated the sale át Malvern as agent for the Lederers by actual delivery to Carmichael, and be’came a principal in the offense. State v. Keith, 37 Ark. 96 ; Foster v. State, 45 Id. 361.
The court’s charge was based upon the theory that Berger acted as the agent for the Lederers in the sales to Carmichael, and the jury by their verdict have found that he did. It is argued that as he received the order to purchase from Carmichael, he acted as his agent in making the purchase, and that there was no evidence to sustain the theory of an agency for the Lederers. The continuous dealings between Berger and the Lederers of the same nature as thos.e they had with Carmichael, and the testimony of Berger and one of the Lederers of an understanding between them that Berger should take ordersfor liquor and receive and deliver it when they saw ditto send it to him, was amply sufficient to justify the finding-that he was acting in the transactions for the Lederers. It was immaterial that he received no pay for his services; he was nevertheless their agent. As such, according to the verdict, he took the order oí sale, as such the Lederers consigned the liquor to him and he delivered it for them. The case stands then as though, after receiving the order of sale at'Malvern, upon his principals, he had carried it to Donaldson, received the liquor in person, returned to Malvern and there delivered it for them; and it is not distinguishable in principle from Yowell v. State, 41 Ark. 355.
Affirm. | [
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Kirby, J.,
(.after .stating the facts). It is insisted first for reversal that the indictment is insufficient and that the court erred in not sustaining the demurrer and granting the motion in arrest of judgment.
There is no merit in the contention that the allegations of the indictment are so indefinite and uncertain as not to put the defendant on notice of the crime with which he is charged, nor was it defective for failure to allege with more particularity the manner of 'causing the death of the deceased. It charges that the defendant ‘ ‘unlawfully, wilfully, wantonly, feloniously and with malice aforethought, did kill and murder J. H. Harrod, by then and there striking and causing to be struck the said J. H. Harrod, with an automobile, said automobile being then 'and there operated, managed and driven by said defendant in an unlawful, wilful, wanton, careless and negligent manner, ’ ’ etc.
We think the allegations of the indictment sufficient to put 'the defendant on notice that he was charged with killing the deceased by striking him with an automobile, driven in an unlawful, wilful, careless 'and negligent manner, in effect notifying.him that it was not being operated in accordance with either the laws of the State or the ordinances of the city regulating the use off automobiles.
In Schultz v. State, 33 L. R. A. (N. S.) 403, the Supreme Court of Nebraska., in holding sufficient an indictment of about 'the same tenor and effect as the one herein, upon demurrer, said:
“A like question was before the Supreme Court of Missouri in State v. Watson, 216 Mo. 420, 115 S. W. 1011, upon a similar information, in which 'defendant was charged, with killing a pedestrian while carelessly, recklessly iand negligently running Ms automobile over and upon a certain street of St. LoMs. Speaking of the information in that case, the court said: ‘ This in our opinion is a sufficient charge, and fully informed the defendant of the nature 'and character of the offense he was called upon to answer. It wias not, in our judgment, essential that the information should undertake to set out in detail in what such carelessness, recklessness and culpable negligence consisted, but the charge that he operated and propelled this automobile .along a public street, carelessly, recklessly and with culpable negligence, was in effect notifying the defendant that he was not using, operating or propelling Ms automobile in accordance with the law or the ordinances of the city, regulating the use and operation of such machines. ’ ’
The defendant was only convicted of involuntary manslaughter 'and the manner of the killing was not material in any event, since it would only have tended to Show the disposition of mind or the intent with which the act was committed and no intent to kill is reqmred to constitute the offense of involuntary manslaughter.
An involuntary killing without design in the commission of some unlawful act or in the improper performance of some lawful act, constitutes the offense. Tharp v. State, 99 Ark. 188.
Neither do we think the testimony concerning the exclamations of the different witnesses upon noticing the running ¡automobile were incompetent, being only indicative of their opinion of its speed. Each of these witnesses also gave Ihis estimate of the rate of speed of the automobile and some then said it was going so fast as to cause them to make the exclamations complained of. Like involuntary remarks and exclamations by witnesses not shown to be acquainted with the speed of automobiles were held competent in the case of Bowen v. State, 100 Ark. 232.
In’ closing the argument the prosecuting attorney made the following statement, which was objected to:
“It seems to me, gentlemen of the jury, that they have lugged in here of their own accord — it certainly would be improper for me to make any reference except it had been lugged in here before you against our will — I would not for one moment say aught to wound the feelings of any one, and much less the beautiful bride that had married him, but I say, gentlemen of the jury, they lugged that in here before you, but they knew before they entered the bonds of matrimony the indictment was pending here against the defendant for murder in the second degree. They knew that. And I say I wouldn’t refer to these things but for the fact that it has been lugged in here and hammered upon — why, it seems even in that sacred act the defendant went on with that reckless disregard of the propriety of the occasion that he manifested evidently under the evidence here in this case when he killed and murdered and butchered James H. Hjarrod. ’ ’
We think there was no reversible error committed in the making of this statement, which appears from other statements o'f the record to have been invited, and it was at most but a .statement of the prosecuting attorney’s opinion of the weight of the testimony in the case. Smith v. State, 79 Ark. 25; Holt v. State, 91 Ark. 576; Valentine v. State, 108 Ark. 594.
It is next contended the court erred in its charge to the jury, as follows:
“No man has the right to use a public street of a city as a speedway, but every man has a right to drive an automobile on the streets, just as much right as a man has to drive a buggy in it, or to cross it on foot, but wherever any man uses a dangerous machine, lie must guard the exercise of that right with a proper care and due regard for 'the lives ¡and siafety of people who have ian equal right to he upon the streets.”
There was no error in the charge as given, which does not assume that defendant was using the street as a speedway, ¡and although an automobile may not he a dangerous machine when not in operation, it evidently becomes so to such an extent when operated without ¡care on the crowded streets of a city, that there could have been no error in this instruction. This was a racing ear of high power, stripped, and was being operated recklessly as the jury found, at a high and unlawful rate of speed, at a place where the presence of persons alighting from ¡the car, pedestrians and others crossing the street, should have been anticipated. Allen v. Bland, 168 S. W. (Tex.) 35.
Neither did the court err in telling the jury that it was the duty of the ¡defendant to keep his machine under such ¡control as to check the speed or stop it 'absolutely if necessary to avoid injury to others where danger could reasonably be expected or was apparent. The defendant was driving ¡his racing ¡car ¡on the ¡city street at a high rate of ¡speed, past a street car standing for allowing passengers either to get on or off, in violation of the ¡city ordinances, and where he could have reasonably expected that some ¡one might come from behind the street car from out of his sight into a place of danger from.hismachine. He made no effort to stop his .automobile, swerved it in next to the street car, to avoid it is true, a collision with a delivery wagon on the right, but necessarily where he could not see ¡a pedestrian ¡coming from behind the oar. He made no effort, according to his own .statement, to check the speed of his car until it was apparent that it would collide with the delivery wagon, notwithstanding he could see both the wagon and the standing street car, before he ¡came near enough to endanger the .safety of any one crossing the street at the place. Gregory v. Slaughter, 8 L. R. A. (N. S.) (Ky.) 1228; State v. Campbell, 18 Ann. Cas. 236.
The defendant, it is trae, was not we'll acquainted with the eity, nor its streets, but he was accustomed to driving an automobile, and if the State’s testimony be true, he wlas (driving 'the Car iat the time of the accident with reckless' abandon and wanton disregard of the rights of ethers upon the street 'and without care as to their safety. It is not claimed that he had any intent to injure his victim, the deceased, land he ha's doubtless suffered much languish of mind because of the unfortunate occurrence in which he caused his death, but the fact remains that he drove his racing- ear 'at great speed past a standing street car, beyond and behind which he could not see, and killed the man who was stepping out from behind the street car, because he was not able to sooner see him nor stop his car to prevent the injury.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Hart, J.,
(.after stating the facts). In the case of Southern Express Co. v. Owens, 146 Ala. 412, 9 Am, & Eng. Ann. Cas. 1143, the 'Court held that in an action to recover for the loss of an article which had no market value the measure of damages should be the value of the article to the plaintiff, and, in .ascertaining this value, inquiry may be made into the constituent elements and the cost 'to the plaintiff of producing the article. In that case the court said:
‘ ‘ Ordinarily, where property has a market value that can he ¡shown, ¡such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may he that property destroyed or lost has no market value. In such state of the case, while it may he true that no rule which will toe absolutely certain to do justice between the parties can be laid down, it 'does not follow from this, nor is it the law, that the plaintiff must toe turned out of 'Court with nominal damages merely. Where the article or thing is so unusual in its character that market value can not be predicated of it, its value, or plaintiff’s damages, must be ascertained in some other rational way, ¡and from such elements as ¡are attainable. ’ ’
■Several cases ¡are cited supporting that opinion, and other .oases announcing the same principle are cited in the case note. In the instant case the plaintiff had procured letters patent upon his plow and had constructed a model to toe used in selling the plow. He ¡shipped the model from Newport to Texarkana over the defendant’s line of railway and it was lost in transit. The court followed the principles of law ¡above announced in the admission of testimony and in its instructions to the jury.
It is insisted toy counsel for the defendant that the court erred in failing to g*rant it a new trial on account of newly discovered evidence. In support of its motion, it introduced the affidavits of its .agents to the effect that the loss of the machine was reported in December, 1913, and that 'an investigation was at once started to find the plow; that the property was described in the bill of lading as a model plow; that they were looking for something like a plow ¡and were not able to find it; that some time in August, 1914, the traveling freight claim adjuster for the defendant and one of its agents while looking over some unclaimed freight packages in the company’s warehouse in Little Bock, a station between Newport and Texarkana, located a box about thirty inches square and about twelve inches 'high, and upon looking into it found that it 'Contained 'the model plow which plaintiff had lost; and that before this time an examination of the unclaimed freight packages in stations between Newport and Texarkana had ¡been made and they had been unable to find the plow.
After the railroad company found the plow it asked •the court to set aside the judgment and require the plaintiff to accept the model and resubmit to the jury for its decision the question of damages sustained by the plaintiff for the detention of the plow.
The court 'did not abuse its discretion in refusing this request of the defendant. It is true, according to the testimony introduced by the defendant, that the box containing the plow did not look like a plow and was not marked ‘ ‘model plow’ ’ on the box. According to the testimony of the plaintiff, however, when the property was delivered for shipment the box was plainly marked “model plow or soil pulverizer.” It was shipped from a point in the northern part of the State to a station in the southern part of the State and the whole route was over the defendant’s main line of road. Though the defendant made some effort to trace the plow after its loss was reported to it, still, under the circumstances, it can not be said that it used due diligence in doing so. The property was lost in the latter part of December and was not found until some time in the following August.
Again, it is insisted by counsel for defendant that the verdict is excessive; but we do not agree with them in that contention. The plaintiff testified that he was a mechanic himself and gave a detailed estimate of the materials that went into the model .and the reasonable cost of constructing same. These items amounted to $383.40. His testimony was in no manner contradicted and the jury properly found for him in that amount.
The judgment will be affirmed. | [
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Smith, J.
This is the second appeal of this case. For opinion on the former appeal see Home Fire Ins. Co. v. Wilson, 109 Ark. 324.
As appears from the statement of facts in the opinion on the former appeal, appellees bought a house and lot upon which there was at the tilme an outstanding policy of insurance in favor of their vendor, but by and with the consent of one John Rhea, who was appellant’s agent at McNeill, Arkansas, the policy was transferred to appellees. It further appears that appellant’s agent was also a rental agent, 'and that the house in question was listed with this agent for rent. Upon the former trial the cause was tried upon the theory that this agent had been requested to and had agreed to act for appellees, not only in renting this property, but in keeping it insured, and had agreed, at the time it was listed with him, to take whatever action might he necessary to continue the policy in effect. It was said, however, upon the former appeal that this agreement constituted Rhea the agent of the insured, .and that in the performance of this agreement he was not .acting as the agent of the insurer. And it was further held that this agent could not, by an executory agreement to take some future action, waive any of the conditions of the policy.
Discussing the effect of this agreement it was there said: “But an agent’s executory .agreement to waive future breaches, if any should occur, is not enforceable, for such an agreement is not 1a waiver of the effect of an existing condition, but is an amendment to the extent of sudh an agreement, of the terms of the written contract between the parties, evidenced by the policy of insurance. The understanding between appellees and Rhea, when given the (highest effect of any inference that can be drawn from the conversation between them, is no more than an executory contract to keep appellees’ insurance in effect, and to do whatever may be necessary for that purpose.”
Under the record as then made, we held that judgment had been erroneously rendered against the insurance company, and the judgment was reversed and the cause remanded for a new trial.
Upon the remand of the case a trial was had before the court, sitting by consent as a jury, and the evidence at this trial was substantially the same as at the first trial with this important exception. Mr. Grayson testi fled that after the property 'became vacant he notified the agent of the appellant company of this vacancy, and he was at the time assured by the agent that the insurance was ¡all right and the policy was in force land he would keep it in force. He testified further that he notified Mr. Rhea of the vacancy so that he might look after the insurance, and that Mr. Rhea told him the policy was in force. Mr. Wilson testified to substantially the same facts, and they were not contradicted by the agent, who was present and testified at the trial.
We need not discuss appellees’ failure to make this proof at the former trial. The truthfulness of this statement was passed upon by the trial court, and the finding there made is conclusive upon us.
A different question is presented by the record in this case from the one decided upon the former appeal. It was shown at both trials -that Mr. Rhea possessed all of the power 'and authority ordinarily possessed by local agents; that he was furnished by the company with blank applications, and with policies duly signed by its officers; that he had full .authority to issue these policies, which were not valid until countersigned by him as agent of the company; that he had issued and countersigned the policy sued on; that he had full authority to consent to the transfer of policies, and did consent to the transfer of this policy from appellees’ vendor to appellees ; that he collected premiums .and was authorized to cancel policies, .and did cancel policies, and was authorized to issue vacancy permits, which were subject only to the right of the company to ratify or cancel.
Upon the former ¡appeal we decided that the agent could not, by an executory agreement on his part, change or modify the written conditions contained in the policy, and further, that in .any agreement upon his part to thereafter take the necessary action to continue a policy in effect he was thereby acting as the agent of the owner and not as the agent of the insurer. But it has also been frequently held that an agent possessed of the authority vested in Rhea can waive the conditions of the policy. In the case of Commercial Fire Ins. Co. v. Belk, 88 Ark. 506, it was said: “Koeningstein was the agent of the defendant, and was entrusted with blank policies signed by the defendant with power and authority to solicit insurance, and, when obtained, to fill the blanks in the policy, receive the premiums and issue the policies, and consequently had the implied authoriy to waive the conditions of the policy. (State Mut. Ins. Co. v. Latourette, 71 Ark. 342; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187; German-American Ins. Co. v. Humphrey, 62 Ark. 348, and cases cited). He knew that appellee had contracted to sell and convey to Kifer the property insured, when the purchase price agreed upon was paid; he wrote the contract, and with full knowledge of the transaction assured appellee that her policies were ‘all right.’ The appellant, through its agent, thereby waived the condition in the policies as to sole and unconditional ownership of the insured property. With the assurance that the policies were all right, she rested in the belief that her property was insured until it was destroyed or damaged by fire. Appellant can not now avoid the policies, on account of the 'condition waived. German-American Ins. Co. v. Harper, 75 Ark. 98, and cases cited; Arkansas Mutual Fire Ins. Co. v. Claiborne, 82 Ark. 150, 162.”
The proof now shows that appellees did not rely solely upon Rhea’s promise to keep the policy in effect, but that, after the property had become vacant and the policy had forfeited and before the loss occurred, and at a time when appellant had the right to cancel the policy, and when cither insurance cou'ld have been taken out had it done so, the agent of the appellant company assured the owners of the property that the insurance was in force.
The former opinion pointed out the difference between the executory promise oí an agent to perform some future service in connection with a policy and his action in regard to a forfeiture which already existed. It was there said: “But this is not the case of property being vacant at the time of the issuance of the policy, and of that vacancy being known to the agent issuing the policy, for, in such cases .as ¡stated, the ¡authorities hold that the insurance company has waived .the ¡conditions of the policy against vacancy. Clement, on Fire Insurance, volume 1, p. 418. Nor is this the case of ¡an insured advising the company’s agent of a condition which would work ¡a forfeiture, if not waived, yet one which could and would be waived upon the doing of some .act by the agent which the insured assumed, in reliance upon the agent’s promise, was done or would be ¡done, but which the agent had, in fact, failed to do, for, in such cases, the authorities hold that the agent’s neglect does not invalidate the policy.”
We there quoted extensively from the opinion delivered by Chief Justice Campbell of the Supreme Court of Mississippi in the case of Home Ins. Co. v. Scales, reported in 15 So., p. 134. The controlling facts in this Mississippi case were identical with the facts considered by us, ¡and the language of that ¡court was applicable to the facts ¡as developed on the former ¡appeal. We quoted from the Mississippi court the following language: “It was no part of his business, as agent for the company, to keep policies from being avoided by violations of their ¡conditions, whatever obligations he may have assumed by his engagements to the insured, as to which engagement he could not bind the insurer.”
But the Mississippi court drew in that ¡case the distinction which we now recognize when it employed the following language: “If Hibler, the agent, had done anything in his ¡capacity .¡as agent, ¡after the house was unoccupied, to mislead the insured, the ¡ease would be different, but nothing of that sort occurred There was silence, .and that is never ground for estoppel except where it is a fraud which can not be predicated of this silence. The ¡agent had ¡a right to be silent, and give no notice as to the unoccupied condition of the house.”
The agent here, who had the authority to issue the vacancy permit, which would have continued the policy in force, was notified of the vacancy for the purpose, as stated by .appellees, of having the policy kept in force, and they were assured by the agent that the insurance was in force, and this assurance must be held to constitute a waiver of the forfeiture. The trial court held in effect that the forfeiture was waived and rendered judgment accordingly, and we think 'that judgment should be affirmed, and it is so ordered. | [
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Wood, J.,
(after stating the facts). Appellant contends that the court erred in permitting nonexpert witnesses to testify in effect that soon after the injury appellee “appeared to be suffering*.” That “she looked bad; looked like she was :siok; seemed to be in bad health. ’ ’ That “a short time before the injury she appeared to be in very good health. ’ ’
The testimony comes within the rule approved by this court in St. Louis, Iron Mountain & S. Ry. Co. v. Osborne, 95 Ark. 310-317, where we held that it was not error to allow nonexpert witnesses to state facts within their knowledge and observation as to the plaintiff’s physical condition, habits, etc., before and after the date of the alleged injury.
Judge Elliott, in his treatise on Evidence, volume 1, section 679, states: “An ordinary witness may testify in a proper case as to the state of his health. Thus, he may testify that he has suffered pain, or state his physical condition generally. * * * So, such ,a witness may testify that another person seemed to be sick, suffering pain, nervous, or in good or bad health.” See .also sections 675, et seq. 676.
Where one person is acquainted with another and they come in contact with each other frequently, it is not a matter of expert knowledge for one to tell whether the other appears to be sick or well. These are matters of common experience and observation. And a nonexpert witness, after stating the facts upon which his opinion is based, may even give his opinion in such matters. J ones on Evidence, vol. 2, § § 360, et seq. 366.
The appellee herself had testified as 'to her condition of health (before the .alleged .occurrence of which she complains, iand the testimony of these witnesses but tended to corroborate her, 'and their testimony was competent.
Appellant complains that the court erred in admitting the evidence of Dr. W. A. Sanders. This witness was at appellee’s father’s house on the day she arrived there iand had prescribed for appellee. The only portion of his testimony to which appellant objects was as follows: “Q. What was her apparent condition? A. Why, she seemed to be in fiairly good health, all right; didn’t seem to be anything wrong; had only just taken cold. Of course, I could not say; I did not make an examination.” This testimony was competent and certainly was not in any manner prejudicial to appellant. If it could have had any effect at all on the jury, it was rather in appellant’s favor than otherwise. There can be no question about .a physician, an expert in the treatment of diseases, being permitted to testify .as to the apparent condition of the patient whom he treats. As we have seen, the law permits even /a nonexpert to testify as to whether such person appears to ibe sick or well, such matters not being peculiarly' of expert knowledge.
Appellant contends that there was no evidence to sustain'the verdict inasmuch ,as neither the appellee nor any of her witnesses testified to the effect that the failure on the part 'of the .agents of the appellant to build a fire in the depot resulted in the cold and other ailments of which appellant complains and about which she testified.
The appellee testified, in effect, that while she was at Texarkana her menses -appeared; that when the train reached Hatton, her destination, it was not raining, but that by the time the train reached Vandervoort, the place where she debarked, “it was raining torrents,” and, as a consequence, she “was drenched.” The waiting room at Vandervoort was not heated, and in ten or fifteen minutes after she entered it she was shaking with a hard ague. Before this she had explained to the agent that she was cold and wanted a fire. He did not make the fire. She remained in this waiting room nearly an hour -and -took the south-bound train to Hatton and arrived there about daylight; the morning was very cold, and a cold wind blowing from the east. Her health before had been good for nearly a year. After .she .arrived at her father’s she became dangerously ill, and has since been afflicted -with ailments, which she specifically described.
Under these circumstances, it was a question for the jury to determine as to whether or not appellee’s injuries and ailments resulted proximately from appellant’s failure to put appellee off at Hatton or from a failure upon its part to keep its waiting room for passengers at Yandervoort in a comfortable condition. If appellant negligently carried appellee by her station of Hatton, or negligently failed to keep its waiting room for passengers at Yandervoort comfortably heated, it would be liable in damages to the passenger for any injury sustained by reason of such failure. Kirby’s Digest, § $ 6704, 6707 and 6634.
The above facts show that it was a question for the jury to determine whether the alleged failure in either or both of the above alleged particulars was the proximate cause of the injuries of which appellee complains. It was- unnecessary for the appellee or any witness in her behalf to testify specifically that the ailments which she ■described resulted from these alleged ■ negligent causes. That was a deduction which the jury was authorized to ■make from the testimony. See St. Louis, I. M. & S. Ry. Co. v. Hook, 83 Ark. 584. And in coming to such conclusion, the jury were not merely exploring realms of speculation, but their findings were only such reasonable and natural inferences .as intelligent minds might miake from the facts which appellee’s testimony tended to prove.
The court, at the instance of the appellant, instructed the jury, in effect, that .even though the plaintiff was carried beyond her station against her consent that she could not recover for any damages she may have suffered by reason of being wet while going from the coach to the waiting room.
Appellant contends that 'tinder ithe evidence the only damage, if any, to appellee aside from the inconvenience land delay, was that caused by reason of her exposure to the rain and getting wet, and that under the- above instruction appellant was not liable. True, appellant succeeded in having the court grant the above prayer, but a verdict of the jury will not be set aside -where there is substantial evidence to support it, even though the verdict is not in accord -with an erroneous instruction. The above instruction was not the law. It is obvious from the amount of damages assessed that the jury found that the injuries of which appellee complains were caused by reason of her being wet. There was no evidence to warrant them in finding the sum of $1,000 merely for -the inconvenience and delay of being wrongfully carried by her station.
Now, as we have seen, the jury were warranted in finding that the proximate cause of appellee’s getting wet was the fact that she was negligently carried by her station, and in order to reach her father’s in time she had to debark at the next station; that in doing so she was exposed to a drenching rain and became wet, resulting in the injuries of -which she- complains. The proof shows that it was not raining at Hatton at the time the train passed that station, and but for appellant’s' negligence in carrying her beyond her station she would'not have been exposed to the rain. Therefore, as we have shown, 'the jury might have found from the testimony that the proximate cause of appellee’s injuries was the negligent act of carrying her beyond her station, thereby exposing her to the rain which resulted proximately in the injuries for which she seeks damages.
On the ground of alleged negligence in being carried by her station, the jury might have found, under the testimony, that appellee was entitled to -recover damages for the injuries she received by reason of being exposed to the wet and cold
In St. Louis, I. M. & S. Ry. Co. v. Evans, 94 Ark. 324, where a passenger was wrongfully carried beyond her station, we approved the rule that the amount of her re eovery should (be such isum as the jury should find from the evidence would fairly compensate her for the exposure, inconvenience and physical pain and suffering occasioned (by reason of the negligent act. See, also, St. Louis S. W. Ry. Co. v. Knight, 81 Ark. 429; Texarkana & Ft. S. Ry. Co. v. Anderson, 67 Ark. 123.
On the issue as to whether .appellant was negligent in failing to keep its waiting room comfortably heated, the court instructed the jury, in effect, that it was the duty of the appellant to exercise ordinary care to keep its waiting room at Vandervoort comfortably warm, and that if appellant failed to exercise such care and appellee suffered injury as the direct result of such failure, they should find for her'on that issue.
The court further instructed the jury that ordinary care was such care as a person of ordinary prudence would have exercised under all the circumstances existing at the time and place.
The appellant asked the court to instruct the jury as follows: “The defendant was not required to keep a fire in the waiting room to meet the exigencies or needs brought about by a sudden storm. If the weather was cold and if that cold was due to -a sudden storm the defendant would not be required to build a fire so as to meet that sudden demand.” The court refused this prayer, and the appellant contends that the court erred in its rulings.
In St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, speaking of the duty of railroads in regard to keeping their waiting rooms comfortable, we said: “It was the duty of railroads independent of the statute of March 31, 1899, to provide reasonable accommodations for passengers at their stations. This duty requires the exercise of ordinary care to see that station houses are provided with reasonable appointments for the safety and essential comfort of passengers, or those intending to become passengers, while .they are waiting for trains.”
The instruction of the court was in conformity with the law as thus .announced and fairly submitted the issue ias to the duty of appellant to keep its waiting rooms at all proper times comfortably heated as required by -section 6634 o-f Kirby’s Digest. The issue, under the evidence, was for the jury. The instruction given by the court properly declared -the law on the subject, and it was not error to refuse appellant’s prayer in regard to the exigencies of a sudden istor-m. There wias no testimony tending to prove that the rainstorm to which appellee was 'exposed on the occasion under review, early in the month of May, was in the nature of an- unprecedented exigency or one that could not have -been reasonably (anticipated during that season of the year. Therefore, the court did not err in refusing .to tell the jury that the appellant was not required to keep a fire in its waiting room to meet the exigency of a sudden rainstorm. The prayer for instruction ignored the duty of .appellant to do those -things which a person of .ordinary prudence would have done, considering the -season of the year, and the natural conditions of the weather that might .be reasonably anticipated during such season. In other words, the prayer rejected ignored the question of 'ordinary care. But the instruction which the court gave completely covered the subject.
There is no prejudicial error in the record, and the judgment must therefore be affirmed. | [
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Wood, J.,
(after stating the facts). The findings and decree of the court are correct.
'The appellant does not seek by appeal, writ of error, certiorari, nor by bill of review to set aside the judgment for the errors appearing in the face of .the record, or on account of newly discovered evidence, nor does his complaint set forth facts sufficient to constitute a cause of action for vacating a judgment after the expiration of the term under Kirby’s Digest, section 4431, which provides: “Fourth. For fraud practiced by the successful party in obtaining the judgment.”
It is true that the complaint alleges, “Fourth, that said judgment was procured by fraud committed by plaintiff upon this court and this plaintiff, wherein the said plaintiff .alleged in its complaint that the owner of staid lot was unknown. The plaintiff denies the 'allegation in the complaint that the owner of said lot was an unknown owner, and states that the plaintiff was the owner at said time and was well known to be the owner; that he was known to be the owner to B. L. Norris, who served the summons, and to the board of improvement,” etc. But these allegations were not sufficient to constitute a fraud practiced by the successful party in obtaining the judgment. The allegation in the complaint in the suit to condemn, that the owner was unknown, was sufficient to -give the court jurisdiction to proceed against the property. It was not a fraud on the court to make this .allegation although it was untrue, for the court had the power to inquire into its jurisdiction and to determine whether or not it was true. The recitals of the decree condemning the lot in controversy to be sold were, in effect, that the owners of the lots were designated as unknown and that they were unknown to the board of improvement. We must ¡presume, in the face of these allegations, that the court did make inquiry as to its jurisdiction to proceed against the property, and found that it ¡had jurisdiction. In other words, that the complaint alleged that the owners of the lots were unknown and that such was Itihe fact.
Another ground alleged in the complaint for setting aside the judgment is that no service of summons was had against the plaintiff in the suit or against the lot in question; that the officer who served the summons failed to make his return as required by section 5696 of Kirby’s Digest, showing that C. C. Cassady was not found in the county. But again the decree of condemnation recites, “that due service of process by summons had been had against each of the defendants for more than fifteen days next prior to this day by the posting of a copy of the summons in a conspicuous place on each of said lots and by publication of said summons for one issue in the Daily Mena Star, ta newspaper published in the-city of Mena, having, a general circulation,” etc., following substantially the requirements of the statute, •section 5696, Kirby’s Digest, in regard to the giving of notice where it was stated in the complaint that the owner was unknown. Therefore, it appears from the recitals in the decree to condemn that the court found that proper service had been obtained to warrant the proceeding in rem, .and the allegation in the. complaint as to the want of service was not sufficient to show that the court did not have jurisdiction.
Another ground alleged for setting aside the decree was “that the complaint in the cause was not verified by the plaintiff nor its solicitor, ¡and that no proof was taken in said cause upon which a decree could be legally rendered, thereby committing a fraud.upon this court and against this plaintiff. ’ ’ But the improvement district statute -under which the land in Controversy was condemned does not require that the complaint be veri fled, and in the absence of ¡such verification is not a' prerequisite to the court’s jurisdiction.
None of the allegations of the Complaint state facts sufficient to constitute a direct attack upon the judgment. We have no statute authorizing a judgment to be vacated or set aside upon such allegations as those contained in the complaint.
“Any proceeding provided by law for the purpose of avoiding or correcting a judgment, is a direct attack which will be successful upon showing the error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.” Vanfleets Collateral Attack, p. 5, section 3.
The facts alleged in the complaint as grounds for vacating the judgment were mere errors and irregularities for which, as was said in McCarter v. Neil, 50 Ark. 188-190, the judgment could be assailed only in a direct proceeding in the nature of a review on error. The complaint here was clearly a collateral attack on the judgment.
The improvement district was not a necessary party to the proceeding. There is no allegation that the taxes due the district were paid or that same were nót a legal icharge against the land. The judgment condemning the lands for sale had been fully executed and satisfied, the district having received its taxes. Therefore, no sUeh suit could ibe maintained against the district for these taxes, and the district was not concerned in the controversy between appellant and the appellee Norris, the purchaser of the land, over the title thereto. The court correctly found that the improvement district had no interest in the matter.' The primary purpose of the suit was to quiet title by having the deed held by appellee Norris cancelled and set aside. It is a proceeding not in the original suit in any direct manner to have the judgment vacated and set aside, but is merely an independent proceeding and having as its -direct purpose the quieting of the title of appellant by setting aside the deed of appellee Norris. This is the proper characterization of the suit, and it constitutes only a collateral attack upon the judgment of the chancery court under which the land in controversy was condemned and sold.
In '23 Cyo., p. 1063-4, it is correctly stated: “If the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.” See, also, cases cited in note to foregoing quotations. Also O’Neill v. Potvin, 13 Idaho 721, 93 Pac. 20, 21; Words & Phrases, Collateral Attack. 753; Continental Gin Co. v. DeBord, 123 Pac. 159.
This suit then being only a collateral attack upon the judgment of the chancery court, according to the doctrine announced by this court in many cases, some of them quite recent, the judgment herein assailed is valid and conclusive against the matters alleged in the ■complaint as grounds for annulling the same.
In the recent case of Pattison v. Smith, 94 Ark. 588, we held (quoting syllabus): “Where the land of a nonresident was proceeded against for levee taxes, and was sold under a decree which recited that published notice was given as required by the statute, such recital is conclusive upon a collateral proceeding.”
Again: “A judgment or decree can not be impeached for fraudulent acts or testimony, the truth of which was or .might have been in issue in the proceedings which resulted in the judgment assailed, but must-be impeached by proof of a fraud practiced in the procurement of the judgment itself.”
In Pattison v. Smith, supra, it was alleged as one of the grounds for setting aside the decree of the chancery court that the same was obtained by fraud in that the decree was founded upon the nonpayment of levee taxes and that the same were not actually delinquent, 'but had been paid, and that this was procuring the judgment by fraud. Disposing of this allegation, the court 'said: “It was therefore, in effect, an impeachment of the decree relative to a question of fact upon which the' court 'had made a finding and not such an allegation of fraud practiced upon the court in the procurement of the decree for which the decree could be set aside.” Citing Pine Bluff v. Levi, 90 Ark. 166, where the court said: “But the fraud which entitles a party to impeach a judgment must be a fraud extrinsic of the matter tried in the cause. It must not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in. the proceeding before tbe court which resulted in the' judgment that is thus assailed. It must be a fraud practiced upon the court in the procurement of the judgment.”
The language used in that case is germane to the issue raised by the allegation in the complaint under review to the effect, that the judgment was procured by fraud committed by the plaintiff in the suit for condemnation in alleging that the owner of the lot was an unknown owner, when in fact he was 'known by the plaintiff in that suit to be the owner. The language above quoted disposes of tbis issue.
Appellant alleges and contends that the sale was invalid bemuse there was no notice to the effect that ‘ ‘ only so much of the property shall be sold as will pay the assessment, costs and penalty ¡and no more.” Kirby’s Digest, section 5700. Also that the notice did not state the amount due against the lot, and that the sale was advertised to be held at the southeast door of the court house, when it in fact took effect in the circuit clerk’s office; and also that the sale was invalid because there was a collusion 'among the bidders to suppress competition in bidding; 'also that the commissioner’s deed wias void because of a defect in the (acknowledgment; also that the 'commissioner’s deed was void because the commissioner had removed beyond the jurisdiction of the ■court and the deed was therefore not executed and acknowledged by the proper party.
In Bank of Pine Bluff v. Levi, supra, in an adversary proceeding, speaking of the effect of a con-' firmation of a sale, we said: “Before the confirmation of the 'Commissioner’s sale, irregularities may be shown, that the sale was not made in accordance with the provisions of the decree; or 'any misconduct or unfairness shown, in order to set aside such sale. And upon all these matters the chancery court passes when it makes its decree of confirmation. And from such order or decree of confirmation an appeal lies. But after a confirmation of the sale has been made by order of the court 'all defects and irregularities in the conduct of the sale are cured; and every presumption will be indulged in favor of its fairness and regularity.”
The rule thus announced is 'certainly broad enough to cure all the irregularities of which appellant here complains. But inasmuch as this is not an adversary proceeding it might be urged that the confirmation could not cure the fraud practiced by the bidders in suppressing competition in bidding for the reason that the owner of the land being only constructively summoned and having no actual notice of the sale, could not know of the fraud that was being, perpetrated, and that therefore this rule should not apply. But this argument is not sound, because the owners and those interested in the lands by constructive service received all the notice that the law contemplates; and the statute does not authorize the execution of the deed by the commissioner until a period of one year after the sale in which the owner is allowed to redeem. Kirby’s Digest, sections 5703 and 5731. Under these provisions it is contemplated that each owner, by proper diligence, may ascertain that his lands have been sold before the time for confirmation of the deed, and that therefore he will have an opportunity to challenge the validity of the deed when the same is before the court for confirmation. Therefore, the fact that the owner may have had no actual knowledge or notice of the fraud in the sale at the time of the confirmation can make no difference in Ithe principle. In contemplation of law he must ascertain if there are any defects before the deed is confirmed, and if he fails to do so. and to challenge the sale at that time he will not be heard to do so thereafter. But even if we were mistaken in this view, the ichancellor found that appellee Norris was not a party to any agreement to suppress competition, and this finding is in accord with the evidence.
We find no element of estoppel in the fact that the ¡appellee Norris did not offer to pay the taxes after the sale of the land until the last day when he was authorized under the law to pay such taxes. Appellee was under no obligation to pay these taxes, although the purchaser of the land, until the period of redemption had expired and until after the deed was executed and delivered to him. Certainly no fraud was perpetrated upon the owner by his failure to offer to pay the same when he was not required under the law to do so, and was under no legal duty or obligation to appellant to advise him of hisi purchase of the land.
The decree of the chancery court is therefore affirmed.
Hart and iSmith, JJ., dissenting. | [
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OPINION OP
THE COURT.
In this case, the plaintiffs obtained a judgment on the law side of this court against Maxwell, on which execution issued, directed to the sheriff of Arkansas county. The defendant applied to the circuit court of that county to stay proceedings, and obtained an injunction, as appears by the sheriff’s return on the execution. The plaintiffs now ask the issuing of an alias execution, notwithstanding the injunction, which they contend is a nullity. The bill is made returnable to the circuit court of Arkansas county, and is there to be tried and heard; and the question is directly involved whether the circuit court has the power to stay the process and proceedings of the superior court, and by interlocutory or final decree, enjoin, restrain or control our acts. We believe there is no power so to do; nor do we think one circuit court has the right to restrain or control the proceedings of another, so as to draw to itself an investigation properly belonging to the court where the suit at law was tried, much less to enjoin the proceedings of this court and retain the bill there. A course of practice fraught with so much inconvenience to suitors, and embarrassment to this tribunal, cannot be submitted to nor supported. It is disrespectful to us, and badly calculated to attain the ends of justice and equity. It is due to the superior court to know whether its judgments and process are properly or improperly intercepted. If improperly, must this court await the tedious investigation of a suit in chancery in the circuit court before it can enforce its judgments, and before it can know in any legitimate way whether the restraint is in conformity with equity or not? Can it be insisted, that after having permitted a judgment to go against him in this court, a party may, by applying to an inferior, paralyze the arm of the superior court, and make the efficacy of our judgments and decrees dependent on an inferior tribunal? We think not. Besides, this bill ought to have been addressed to and returned into this court, where the judgment was rendered, so as to have afforded an early opportunity of withdrawing or continuing the restraint on the judgment, as should seem most consistent with equity. The power of the circuit judges to grant injunctions in proper cases is not denied. Such a power may well be said to be an incident to every court of record that can exercise chancery jurisdiction. But the right to retain this bill, and to proceed to the determination of it, is quite a different thing, and cannot be admitted. If the circuit court has a right to stay our proceedings during an investigation in a suit in chancery, and at last forbid our proceeding at all to execute our judgments, it has as good a right to interfere in the trial of every suit here, and thus enfeeble our powers, forbid the trial of any and every suit on the docket, ahd hold our judgments and decrees subject to its will; in fact, it would make the inferior paramount to the superior tribunal. It need only be proposed to insure the rejection of such a doctrine. We are therefore of opinion that an alias execution should issue, and that the plaintiff should recover the costs of this motion. Ordered accordingly. | [
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LACY, J.
This is an appeal from the Pulaski circuit court. The bill was filed by McLain, the appellee, for the specific performance of a parol agreement in the case of a chattel. It charges that Jesse Roundtree, in his lifetime, was considerably indebted by note and account to the complainant, and in consideration of his forbearance to sue, and gire day, Roundtree, on his part, stipulated to procure an obligation of Allen Martin, as soon as he completed the building of a cotton-gin for Martin, and to assign the same to the complainant, or so much thereof as would satisfy and discharge his, Roundtree's, debt to McLain. It was further stated, as agreed between the parties, if Martin’s note exceeded the amount due McLain, he was to pay the difference or excess to Roundtree. The answer denies the allegations of the bill, and puts the complainant to the proof.
It has been so repeatedly and constantly ruled, that equity will not enforce the specific performance of a contract where either the contract or the proof is uncertain, that reference to the decisions is deemed almost unnecessary and superfluous. Colson v. Thompson, 2 Wheat. [15 U. S.] 336; 1 Fonbl. Eq. 172; 4 Johns. Ch. 559; 11 Ves. 522. The agreement is substantially proved by one witness, and very imperfectly by any other testimony. Under all the circumstances of the case, it is questionable whether the proof would be sufficient to sustain the bill; but waiving that objection, and considering the agreement as fully .established, the court will proceed to examine what equity the complainant has to ask for the extraordinary interposition of the chancellor. The jurisdiction to decree the specific performance of the agreement of parties, is founded on a legal title to damage, and will not be enforced, where adequate compensation can be recovered by an action at law. Flint v. Brandon, 8 Ves. 159; Halsey v. Grant, 13 Ves. 73; [Mechanics’ Bank of Alexander v. Seton] 1 Pet. [26 U. S.] 305; Holly v. Edwards, Burrows, 159; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 282; 1 Bibb, 212; 2 Bibb, 273. If McLain has actually sustained an injury, his redress is ample, by an action on the case for damages. It is no answer to say that Roundtree’s estate is insolvent. The question is not, whether it is insolvent or solvent; but has the party as full and complete a remedy at law as in equity? If so, he cannot‘come into this court for relief. What legal or equitable right has McLain to the note, or obligation which Roundtree promised to procure from Martin, and in what way or by what means can he set up his claim? At the time the agreement was entered into, it had no legal existence, for nothing certain was then due Roundtree from Martin, and his indebtedness, which afterwards accrued, depended upon a contingency which might never happen. Could McLain, by bill, or otherwise, have prevented Martin from discharging his own note, after its execution, or Roundtree from assigning it to an innocent purchaser for a valuable consideration? Surely not. If he had exhibited his bill in the lifetime of the intestate, could a court of chancery .have decreed the specific performance of the agreement, when it possessed no means by which Martin could be compelled to give the note, or Roundtree to assign it? What sort of legal right had the -complainant to the note, which could be enforced? None at all. He does not claim it by delivery, for it never was in his custody or possession; nor by assignment, for this bill is to effect that object. It is contended, however, that this agreement constitutes an equitable charge upon a particular fund in the hands of Martin, and that equity will consider that done which ought to be done, and consequently enforce the agreement. This doctrine is unquestionably true, when a proper case arrives for its application; but the present case is not embraced by this principle, nor does it fall within the reason of the rule. It is, however, but justice to add, that the position was maintained with much learning and skill, and in a manner highly creditable to the ability of the counsel. The case of Row v. Dawson, 1 Ves. Sr. 331, was cited and relied on by the counsel for the complainant; but that case and this are widely different, and the principle there settled by Lord Chancellor Hardwicke, so far from sustaining this bill, shows that it should be dismissed for want of equity. There, money was advanced on a draft drawn by the borrower, on certain moneys then due and to become due to him at Michaelmas, and the draft was also placed in the hands of the proper officer of the exchequer, which the court declared amounted to an assignment, and that the officer could not have paid the money to the drawer without making himself liable, because he had actual notice of the assignment for a valuable consideration. It could not be contended, that Martin could not have discharged his note to Roundtree, without making himself liable to McLain. Besides, in that case there was both assignment and delivery of the draft, and a prior lien for the money advanced, which immediately attached. Here none of these requisites existed, which cannot indeed be dispensed with; there was neither assignment nor delivery, nor was any thing due or certain, at the time of the contract, nor does the bill allege that advancements were made on the faith of the agreement, or of any particular fund.
An application to a court of chancery for the specific performance of a contract, is always addressed to their sound discretion. 1 Ves. Jr. 565. Lord Somers, in the celebrated case of Marquess of Normandy v. Lord Berkly, 5 Vin. Abr. 539, said that a specific performance ought never to be decreed. though the contract might be good in law, and damages recoverable for its breach, unless it was fair and reasonable in every iiar-ticular. If an executory agreement is hard or oppressive, it is the constant practice to refuse a specific performance. Barnardiston v. Lingood, 2 Atk. 133; Howell v. George, 1 Madd. 5-7; 2 Schoales & L. 554; Cas. temp. Talb. 234. This bill is to compel the specific performance of a contract respecting a chattel, which is never decreed, except in cases of extreme and peculiar hardship, and when there is no adequate remedy at law. Mason v. Armitage, 13 Ves. 37; 1 P. Wms. 570; 3 Atk. 383; Hardin, 553; 3 Atk. 389; 2 Ves. Sr. 238. And to grant relief would violate the rule that a court of equity will never allow one creditor to gain an inequitable or undue advantage or preference over others. Riggs v. Murray, 2 Johns. Ch. 576; St. John v. Benedict, 6 Johns. Ch. 112. This contract is certainly executory, and if enforced, it would prefer one creditor to another, without any lien, assignment, or legal right in his favor. It is neither fair, reasonable, nor just, for one to appropriate all the estate to his own benefit, without any advancement made in favor of the debtor, on the faith of the particular or expected fund. The bill does not allege, that at the time the contract was made, Roundtree was solvent and aft-erwards became insolvent, whereby the complainant lost his debt. This contract is deemed hard and oppressive, on the part of Roundtree, for it could easily have been, and probably was, extorted from his fears and necessities. If agreements of this kind should be specifically enforced, then great injustice and oppression might be exercised by creditors adjusting and settling their claims with their debtors, which ought not to be allowed.
The decree of the circuit court, in favor of McLain, must be reversed, and the bill dismissed for want of equity, at his cost. Decreed accordingly. | [
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FrauRnthar, J.
This was an action instituted by I. G. Clayton, the plaintiff below, against the Missouri & North Arkansas Railroad Company to recover damages for a personal injury which he sustained on account, as he alleged, of the negligence of the defendant. The plaintiff was a conductor on one of defendant’s freight trains running from Fureka Springs to Leslie, and, while engaged in the performance of his duty in attempting to re-rail a derailed -box car at a point on the line of railroad known as Baker’s Switch, his left foot was caught ¡beneath the replacer and so severely crushed and injured that it necessitated the amputation of the foot and the lower portion of the leg. It was alleged that the negligence of the defendant consisted in a failure upon its part to exercise ordinary and reasonable care in providing' safe ¡appliances for stopping the train; it was claimed that the air pump upon the train was so defective that it would not work, and on this account would not apply the air properly to the brakes so as to promptly, stop the train, and that this defective condition of the appliances on the train was known at the time to the defendant and unknown to the plaintiff. The defendant denied the acts of negligence complained of on its part, and pleaded plaintiff’s alleged contributory negligence as a bar to his recovery, and also alleged that the injury was the result of an accident the risk of which was an incident of his employment and assumed by ¡him. Upon a trial of the case in the lower court a verdict was returned in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed to this court. The sole assignment of error which is now pressed upon us on this appeal, and the sole ground that is urged by the defendant’s counsel why this judg ment should be reversed, is that the undisputed evidence shows that plaintiff was guilty of negligence which contributed to the cause of the injury he sustained. Briefly stated, the case is this: The plaintiff was in the employ of the defendant as a conductor, and was on the date of the injury engaged in running a freight train from Eureka Springs to Leslie. He received orders from his superior directing him to take two cars from the side track at Baker’s Switch and carry same on to Leslie. When the train arrived at Baker’s Switch the engine was backed upon the side track, and was pushing four cars on this side track back to the two cars which were to be taken up. The rear car of these four cars was a large box car, and its rear wheels were derailed while it was being pushed back upon the side track and thus ran along the ties for a distance of about 30 feet. The plaintiff in the due performance of his duties proceeded with the assistance of a brakeman to replace the wheels of this car back on the rails. The trucks on the east side of this car were on the outside of the rail and on the end of the ties, and on the west side thereof they were between the rails. The plaintiff was engaged with a replacer in rerailing the wheels on the east side, and the brakeman was assisting in replacing those on the west side of the car. On account of the situation the plaintiff was compelled to communicate all signals for the engineer to the brakeman who then gave the signals to the engineer. The wheels of the car were replaced upon the rails by means of an appliance known as a.‘ replacer. This was a large piece of steel or iron which was placed upon the ties next to the rail and with one end just under the derailed wheel in the fore part of the rear truck. The appliance was so constructed that when the car was pulled forward the derailed wheel would mount upon the replacer, and upon reaching a point level with the rail would then slide from the replacer on to the rail.
It appears from the testimony that the replacer furnished to plaintiff on this occasion was not so constructed that it could be spiked or securely fastened to the ties so that it would remain firmly fixed as the derailed wheel mounted it, but it was placed loosely on the ties so that when the wheel of the car started to mount it it would sometimes lose its equilibrium and be thrown to one side, causing the wheel to slip from it and between it and the rail. The testimony .on the part of the plaintiff tended to show that on this .account it was the custom for .one working with this replacer to put the foot against the outside thereof in order to steady it and keep it in proper position as the wheel first pressed against it in mounting it. On this occasion the plaintiff put the replacer upon the ties with its end properly placed upon the ties and a few inches from the space between it and the next tie, and placed his foot against its outer side in order to steady it, and the signal was given to the engineer to pull the car forward. When the front wheel of the back truck struck the end of the replacer, either because the ties moved and bunched on account of the lack of proper ballast or for other reason, the wheel failed to mount the replacer, but slipped from it on to the tie between it and the rail, and threw the back end of the replacer upward and outward, striking the plaintiff’s leg and knocking him down and catching his foot beneath it. At the instant that the front wheel of the back truck struck the re-placer and deflected it, the plaintiff quickly removed his foot and promptly gave the signal to the brakeman to stop the train, who promptly forwarded the signal to the engineer, and the plaintiff endeavored to extricate himself. But the train did not stop, but moved on about from six to eight feet, and the rear wheel of the back truck mounted the replacer and crushed the plaintiff’s foot beneath it. The testimony on the part of the plaintiff tended to prove that the signal to stop the train was promptly communicated to the engineer, and that the train was not promptly stopped because the air pump was defective, and did not properly work so as to set the brakes; that if the air pump had been in proper working condition the train could have been stopped within a distance of two feet after the stop signal had been given, and before the rear wheel of the back truck had mounted the replacer. Upon an examination of all the testimony as to the situation and circumstances at .the the time of the injury, we are of the opinion that there was sufficient evidence to warrant the jury in finding that the proximate cause of the injury was the failure to promptly stop the train due to the negligence of the defendant in failing to exercise reasonable care in having a safe air pump on its train; and this is conceded by counsel for defendant upon this appeal, who now only contend that the judgment should be reversed on the ground that the undisputed testimony shows that plaintiff was guilty of contributory negligence barring him from recovery.
It is urged by the defendant that the plaintiff was guilty of contributory negligence as a matter of law by reason of placing his foot against the replacer, which bars him from a recovery for the injury sustained by him. But, under the testimony adduced upon the trial of this case, we think that this was a question of fact which under the circumstances of this case it was the province of the jury to' determine, and not a question of law for the court to decide. In order to constitute contributory negligence sufficient to defeat a recovery, it is essential that the act of the injured person be itself one of negligence. It is not sufficient that the act may have contributed to the injury, but it is necessary that the injured person’s negligence contributed to cause it, before he will be defeated of a recovery. Now, the test of whether or not one is guilty of negligence in any given 'case is not what a prudent man would generally do, but the test is what a man of ordinary care and prudence would do under similiar circumstances. Each case must necessarily be determined by its own facts and circumstances. If the situation disclosed by the testimony is one from which different minds might draw different conclusions as to whether or not under the circumstances of the particular case the injured person was guilty of negligence, then the question is properly one of fact for the jury to determine.
It has been held by this court that it is not negligence per se for a brafceman to go in between moving cars to couple them together. That may be a dangerous act for one to do, and it may be that many prudent men would not do the act.' But, though such an act is dangerous, still if, under the circumstances of the case, a man of ordinary care and prudence would do the act, and as a matter of fact men of ordinary care and prudence do perform such acts, then it becomes a question of fact for a jury to decide as to whether or not such act under such circumstances is negligent. Choctaw O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443.
In the case of Narramore v. Cleveland, etc., Ry. Co., 37 C. C. A. 499, the principle was thus expressed by Judge Taft: “But where the danger, though present and appreciated, is .one which many men .are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes .the risk cannot be said to be guilty of negligence if, having in view the risk assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences.” St. Louis, I. M. & S. Ry. Co. v. York, 92 Ark. 554.
In the case at bar the testimony on the part of the plaintiff tended to prove that it was almost the customary method in steadying the replacer to put the foot against its outer side as the wheel first touched it at its end. Employees of the defendant who had been engaged upon numerous occasions in rerailing cars with a replacer such as was used in this case testified that it was safe to place the foot against it in order to steady it, and that this had been done by them numbers of times and without injury. Such evidence was admissible as tending to show that the plaintiff did not fail to exercise due care by putting his foot against the replacer. 29 Cyc. 517.
And, under the circumstances of this case, we think that it was a question of fact for the jury to say whether or not the plaintiff was guilty of negligence in putting his foot against the replacer in order to steady it and whether or not he exercised due care thereafter. The question was submitted to the jury under proper instructions, and we cannot say that the undisputed evidence shows that their verdict is contrary to those instructions.
The judgment is accordingly affirmed. | [
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RAYMOND R. ABRAMSON, Judge
11 Robin Holloway and Christopher Britt appeal the Greene County Circuit Court order terminating their parental rights to their five children, L.B. (6/17/03), R.B. (4/15/05), M.B. (9/17/06), C.B. (10/3/07), and Z.B. (12/13/08). They argue that the circuit court erred in finding that it was in .the best interest, of the children for their parental rights to be terminated. We affirm.
On April 23, 2014, the Arkansas Department of Human Services (“DHS”) filed a petition for an ex parte order of emergency protection of L.B., R.B., M.B., C.B., and Z.B. In fhe affidavit attached to the petition, DHS stated that it had received multiple hotline reports concerning Holloway and Britt dating back to 2002, which in- eluded allegations of |2sexual abuse, physical abuse, inadequate supervision, and environmental neglect. DHS further stated that Britt and Holloway had joint custody of the children and that Holloway was dating Nathan Warren, a level III sex offender. DHS proposed that Britt should have custody of the children and that Holloway should have only supervised visitation. On the same day the petition was filed, the circuit court entered an order granting the petition. On April 29, 2014, the court found probable cause for the emergency order.
On May 28, 2014, DHS filed a petition for emergency custody and dependency-neglect, and the circuit court granted the petition that same day. In the affidavit attached to the petition, DHS alleged that Britt had been unable to meet the children’s needs; that Holloway had unauthorized visitation with the children; and that the children had been threatened not to tell the truth to their counselors, teachers, and DHS workers. On June 1, 2014, the court held a probable-cause hearing, and on July 1, 2014, the court entered a probable-cause order.
On September 9, 2014, the circuit court held a dependency-neglect hearing, and on February 13, 2015, the court entered an order adjudicating the children dependent-neglected. On July 1, 2016, DHS filed a petition for termination of Holloway’s and Britt’s parental rights.
On August 19, 2016, the court held a termination hearing. At the hearing, Britt testified that he did not believe L.B., R.B., or M.B. were adoptable because of their medical and aggression issues. Holloway testified that she did not believe , her children were adoptable because of their emotional and behavioral issues.
laHoIly Johnson, a Greene County family-service worker, testified on behalf of DHS and stated that she had been assigned to the ease since January 25, 2016. She believed that the children could be successful in a loving and caring adoptive home but that DHS had been unable to initiate trial placements. She noted that the children had been placed in different homes since they had been removed from their parents’ custody, and she further discussed the children’s behavioral and development problems.
She stated that L.B. is in the eighth grade and that he is a very sweet child but that he has severe anger outbursts. She explained that during the outbursts, he frequently destroys items such as his eyeglasses and electronic tablets. She believed L.B. is adoptable but noted that his current foster home did not want to adopt him. She further noted that he had been placed in a therapeutic foster home and that he is receiving therapy there. She also stated that he enjoys playing on a soccer team. On cross-examination, Johnson testified that L.B. had been moved to multiple foster homes as result of his anger issues and that his anger issues are a hurdle to • adoption.
Johnson testified that R.B. is in the sixth grade and that she is adoptable. She stated that she is in a group-home placement and that she receives therapy there. She also noted that she had been participating in extracurricular activities such as horseback riding and that she is learning patience through caring for the horses. On cross-examination, Johnson testified that R.B. suffers from ADHD and that she has trouble following instructions but that she had not received any recent reports of bad behavior. She stated that R.B.’s group-home parent had verbally expressed interest in adopting her.
14Johnson testified that M.B. is in fourth grade and that she is adoptable. She noted that over the summer she had traveled with her foster family and had behaved well on the trips. On cross-examination, she testified that M.B. also has anger outbursts and had tried to physically harm her foster parent. She explained that M.B. and C.B. had initially been placed in the same home, but they had to be separated because they had disagreements that resulted in physical aggression. She noted that M.B.’s current foster parents had verbally expressed interest in adopting her.
Johnson explained that C.B. has jealousy issues with M.B. and other children but that she is doing well in her foster home and that she is adoptable. On cross-examination, she stated that since C.B.’s separation from M.B., C.B.’s behavior had improved, but the case manager cannot mention M.B. without C.B. becoming agitated. She noted that C.B. lives in a therapeutic foster placement.
Johnson testified that Z.B. is in second grade and that he is adoptable. She stated that he works well with others and that he had behaved well on summer trips with his group home. On cross-examination, Johnson stated that he has emotional and behavioral issues. She noted that he cries when asked to complete simple tasks and that he frequently removes his clothing and runs around his home. She noted that he had been living in the same home for the last six months.
Kandi Tarpley, the Greene County foster-care unit supervisor, testified that based on her eleven years of experience, the children are a “tough adoption.” She explained that the adoption process may take time but some families want to raise children with behavior issues |fiand special needs. She testified that “there isn’t anything that could bar these kids from being adopted.”
On cross-examination, Tarpley stated that she had testified about the adoptability of children on five or six occasions. She stated that she had never testified that a child is not adoptable. She did “not believe a child can be unadoptable.” Further, when asked whether “no matter what the problems are with the kid, you would testify under oath that that child is adoptable,” Tarpley stated, “[Y]es, I would.” She further noted, “[K]ids do age out [of foster care]. Even those children are adoptable.”
At the conclusion of the hearing, the court found it was in the best interest of the children to terminate Britt’s and Holloway’s parental rights. The court noted that it had considered “the adoptability of these children in great detail.” On October 28, 2016, the court entered a termination order based on three statutory grounds. In the order, the court found by clear and convincing evidence that it was in the best interest of the children to terminate Britt’s and Holloway’s parental rights. The court “specifically considered the likelihood that the juveniles will be adopted if the termination is granted” and found that “the children are adoptable.” Thereafter, Britt and Holloway filed their notices of appeal.
We review termination-of-parental-rights cases de novo. Brown v. Ark. Dep’t of Human Servs., 2015 Ark. App. 725, 478 S.W.3d 272. An order terminating parental rights must be based on a finding by clear and convincing evidence that one of the grounds stated in the termination statute is satisfied and that the sought-after termination is in the children’s | fibest interest. Id. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction that the allegation has been established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, we ask whether the circuit court’s finding on the disputed fact is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
Britt and Holloway do not challenge the statutory grounds for termination. They contend only that the circuit court’s best-interest finding must be reversed because there was insufficient evidence concerning the likelihood of adoption. In making a “best-interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Miller v. Ark Dep’t of Human Servs., 2016 Ark. App. 239, 492 S.W.3d 113. While the likelihood of adoption must be considered by the circuit court, that factor is not required to be established by clear and convincing evidence. Caldwell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 144, 484 S.W.3d 719 (citing Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, 435 S.W.3d 495). A caseworker’s testimony that a child is adoptable is sufficient to support an adoptability finding. Id.
However, this court has reversed a termination order where the only evidence of adoptability was a caseworker’s opinion that the child was adoptable because “all children are adoptable.” Grant v. Ark. Dep’t of Human Servs., 2010 Ark. App. 636, at 13, 378 S.W.3d 227, 233. Specifically, in Grant, the child suffered from autism, and the condition was not considered in determining whether he was adoptable. Id. The record showed that it had |7been impossible to find a foster placement for the child in the same county as the parent, that his foster parent had no interest in adopting him, and that the caseworker offered only one email contact regarding a person who might be interested in adopting a child with autism. Id.
Britt and Holloway assert that the circumstances in this case are similar to Grant. They argue that the only evidence of adoptability is Johnson’s regurgitated answers of what the law requires and Tarpley’s belief that all children are adoptable. We disagree. Johnson testified extensively about the children’s behavioral problems but concluded that she believed the children were adoptable. She noted that the children had been participating in therapy and extracurricular activities and that their behavior was improving. See Cobb v. Ark. Dep’t of Human Servs., 87 Ark. App. 188, 189 S.W.3d 487 (2004) (affirming the trial court’s best-interest determination where the caseworker testified that the children were adoptable even though they were older and had issues to work through). Further, as to Tarpley’s testimony, even though she testified that she believed all children are adoptable, she considered the children’s behavioral and special needs in this case and stated the children are adoptable. Accordingly, given both Johnson’s and Tarpley’s testimony, we hold that there was sufficient evidence on the issue of adoptability.
Affirmed.
Hixson and Murphy, JJ., agree.
. The 2002 reports involved sexual abuse of minor victims by Britt, who was eighteen years old at the time. The reports were found true.
. Specifically, the court terminated their parental rights based on the grounds in Ark. Code Ann. § 9-27-34 l(b)(3)(B)(i)|W, Ark. Code Ann. § 9—27—341 (b)(3)(B)(vii)faj, and Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(aj (Repl. 2015). | [
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Hart, J.,
(after stating the facts). The court found 'that on June 18, 1913, the defendant Rush had a general deposit in the bank of plaintiff of twenty-five hundred dollars. This finding of fact is sustained by the evidence ,and its correctness is not disputed by the defendant Rush. It will also be noted that the court found that so far as the plaintiff bank was 'concerned, the defendant Rush was a joint maker with C. Gr. Bryan on the note in controversy. This finding is sustained by the evidence of the cashier of the bank. It is true his testimony to that effect was contradicted by the defendant Rush, but it is well settled that where a case is tried before a court sitting as a jury, the findings of fact made by the court are as binding on us on appeal as is the verdict of a jury. Therefore, it may be taken as settled that the defendant Rush was a joint maker with the defendant Bryan on the note in controversy. The bank, when the note became due, applied $2,045 on the amount deposited with it by Rush as a part payment on the note in controversy. The right of the plaintiff to do this is challenged by Rush in this appeal.
(2) Where, at the maturity of a debt due á bank from ia depositor, the latter’s deposit is sufficient to meet the obligation, and it has not been specifically appropriated by him, to be held for .a different purpose, the bank has a right to apply 'such deposit to the payment of the debt. 5 Cyc. 550, and cases cited; and case-note to 2 A. & E. Ann. Cas. 206, land ease-note to 19 A. & E. Ann. Cas. 487.
Among the cases cited is that of Cockrill v. Joyce, 62 Ark. 216. In that case, Mr. Justice Riddick, speaking for the court, in discussing the rule, said:
“The law on this subject is well settled, and is thus stated by a recent writer: ‘A banker has a lien on all securities of his debtor in his hands for the general balance of his account, unless such a lien is inconsistent with the actual or presumed intention of the parties. The lien attaches to notes and bills and other business paper which the customer has entrusted to the bank for collection, as well as to his general deposit account.’ ”
It is contended by counsel for the defendant Bush that in order for the bank to have this right the same mutuality must exist between the parties as is required in other cases of set-off, and in support of his position he cites the case of Trammell v. Harrell, 4 Ark. 602, where the court held: “A debt or demand, to be a set-off, must be due from the sole plaintiff or all the plaintiffs to the sole defendant or all the defendants.” This case and other cases to the same effect were overruled by the case of Leach v. Lambeth, 14 Ark. 668, where the court held that a debt due from the sole plaintiff to one of several defendants may be pleaded, under the statute, as a set-off by the defendant to whom such debt is due. And the court further held that the case of Trammell v. Harrell, supra, is overruled as to this point. The court, in overruling the case, adopted the reason of the Chief Justice in a dissenting opinion in the case of Trammell v. Harrell, and reference to the opinion is made for the reasoning of the court, which we do not deem it necessary to repeat here. To the same effect, see Burke’s Admr. v. Still-well’s Exr., 23 Ark. 294, and Wilson v. Exchange Bank, 122 Ga. 495, 2 A. & E. Ann. Cas. 597, and case note. In the case of Wilson v. Exchange Bank, the principles of law applicable to cases like this are thoroughly discussed, and the court, after criticising the opinion in the case of Trammell v. Harrell, 4 Ark. 602, said:
“And in the subsequent opinion of Leath v. Lambeth, 14 Ark. 668, the principle laid down in Trammell v. Harrell was overruled, and by a unanimous decision, the views expressed by the Chief Justice in his dissenting opinion in that case were adopted as the law applicable to the subject under discussion.”
Rush deposited $2,500 with the bank as a general deposit, and, therefore, the bank became indebted to him for that amount. "When the note of Bryan and Rush to the bank became due, the bank had a. right to apply the. whole or any part of this deposit toward the payment of the note, Rush not having directed its application to any other indebtedness due by him.
The judgment should be affirmed for another reason. The bank only brought suit against Rush and Bryan for $1,532.58. The testimony showed that the defendants owed the bank the $3,500 note, and the defendant Rush did not deny his indebtedness on that note. He does not claim to have paid any part of it, and, inasmuch as the bank only brought suit for $1,532.58, the balance of the note which was due after it had been credited with the sum of $2,045, which Rush had on general deposit in the bank, it is immaterial whether or not the bank credited the note with the deposit so far as the present suit is concerned.
In short, the bank had a right to sue the defendant for the amount alleged to be due it, and the defendant Rush can not complain that suit was not brought for the whole amount of it. The fact that the bank credited the note with a part of the general deposit of the defendant, Rush, would be no defense to a suit by the bank to recover on the remaining amount alleged to be due the bank on the note, and which the undisputed evidence shows has not been paid.
The judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). 1. The appellant contends that the part of the act quoted violates that part of the due process clause of the State and Federal Constitutions which provides that “no person shall be deprived of property without due process of law.”
The act itself is due process. It does not deprive the appellant of any property right or deny to the appellant the right to be heard in court as to any of its property rights. The act only requires the Secretary of State to revoke the authority of a foreign corporation or company to do business in the State when the facts exist making it his duty to exercise the power conferred upon him to revoke. If he exercises or attempts to exercise this power in the absence of the actual existence of the facts authorizing him to do so, his acts would be void and would not affect the authority of the foreign corporation to do business in the State. Such corporations could ignore all suela unauthorized acts on his part, and the courts would he open to them to restrain him from any threatened revocation or to annul as void any pretended revocation that he might make that was not based upon the existence of facts calling for the exercise of the authority. The act, therefore, does not deprive any foreign corporation of an opportunity to be heard concerning any right of property, and is not violative of the due process clause.
The demurrer admitted the existence of the facts alleged in the answer which made it the duty of the appel lee, under the statute, to revoke appellant’s license. Therefore, if it be conceded that appellant’s license to do business is in the nature of a property right, if the statute is otherwise valid, appellee was authorized and required by it to revoke appellant’s license to do business in this State, and in doing so has not deprived the appellant of any right of property without due process of law.
2. Section 11, article 12, of the Constitution of Arkansas, provides that foreign corporations “as to contracts made or business done in this State shall be subject to the same regulations, limitations and liabilities as like corporations of this State.”
This pirovision of the Constitution has reference, of course, to foreign corporations who have been licensed to do business, and who are making their contracts and conducting their business in pursuance of this license. In other words, to foreign corporations who ar.e propeaiy within the State in pursuance of its laws, and who have not forfeited their right to do business in the State by a violation of the law under which they were admitted. When a foreign corporation has ignored or violated the conditions of the act under which it is admitted, and under which it is permitted to conduct' any business in the State, and for which violation its license is required to be forfeited under the statute, then such corporation in the sense of the above provision can not thereafter be said to be doing business and making contracts within the State, and is not within the protection afforded by the above provision to foreign corporations who have been admitted and who are conducting their business according to the requirements of the statute under which they were admitted. In other words, a foreign corporation which has violated the provisions of the statute prescribed as conditions upon which it has been permitted to enter the State and to conduct its business is not in an attitude to •set up the unconstitutionality of the very law upon which is based the only right it has to be in the State at all.
The appellant was licensed to do business in the State after the passage of the act under consideration and the provisions of the act must be treated as a part of its license. Appellant took its license subject to the conditions which the statute imposes upon it. It accepted the license burdened with the concomitant conditions upon which a forfeiture of the same should be declared, and, having confessedly violated those conditions, will not be permitted to say, “that part of the act which granted me the license to enter the State is valid, but that part which imposes conditions, which I accepted, is. unconstitutional and void.”
In American Smelting Co. v. Colorado, 204 U. S. 103-111, it is said: ‘ ‘ Undoubtedly, if the corporation violated the laws, of the State properly applicable to it, or if otherwise, it gave just cause for its expulsion, it could not insist upon such a contract as a defense.”
Moreover, if the appellant could be considered a foreign corporation doing business in the State after it had violated the conditions of the act under which it was admitted, and after the revocation of its license, nevertheless, that act is not in conflict with the provisions of the Constitution under discussion, for it will be observed that the same “regulations, limitations and liabilities” therein mentioned relate to “contracts made or business done.” The institution of a suit or the removal thereof is neither the making of a contract nor the doing of business. See, Alley v. Bowen-Merrill Co., 76 Ark. 4.
The act therefore did not prescribe any regulations, limitations and liabilities “as to contracts made, or business done” by foreign corporations in this State. The constitutional provision, therefore, does not inhibit the enactment of a law prescribing regulations for instituting suits, or removing the same when instituted against them, applicable to foreign, but not to domestic, corporations.
3. Learned counsel for appellant insists that the act violates the equality clause of the Constitution, which provides, in part, “that no State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.”
A foreign corporation can not claim the benefit of the above provision after it has failed to comply with the conditions prescribed by the act under which it was. admitted into the State, and under which it is permitted to do business. Such foreign corporation, when it violates the terms of the act under which it is admitted, and after it has failed to comply with the conditions under which it alone is permitted to do business, is no longer entitled to the protection of the law guaranteed to persons who are conducting their business in compliance with the laws under which they exist and are permitted to do business. A foreign corporation which has violated the provisions of the law under which its license was granted, and which provisions, upon a failure to comply therewith, require the revocation of its license, can not, after such revocation, claim to be a person within the jurisdiction of the State, and entitled to the equal protection of her laws.
4. It is last contended by the learned counsel for appellant that the right of removal of a cause granted under the acts of Congress in pursuance to the provisions of the Constitution conferring judicial power, is a right vested in and to be enjoyed by every corporation, “anything in the Constitution and laws of any State to the contrary notwithstanding,” and that the provisions of the act in question in regard to the removal of causes are violative of the Constitution of the United States, and the laws concerning the removal of causes passed in pursuance thereof.
The basic and fatal error of this contention is that it fails to recognize that the State has the absolute power to prevent foreign corporations not engaged in interstate commerce from doing business therein. It may exclude them entirely or it may permit them to come in under any terms which it sees proper to prescribe. Section 11 of article 12 of our Constitution provides as follows: ‘ ‘ Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law. ’ ’
The provisions of the act under review, in regard to the institution and the removal of suits, are conditions upon which appellant was licensed to do business in the State, and upon a failure to comply with these conditions, appellant’s license was revoked and appellant thereby excluded from doing business in the State.
Chief Justice ‘White, in his concurring opinion in Pullman Co. v. Kansas, 216 U. S. 56-65, speaking of the State’s power to exclude foreign corporations, says: “In cases where this power is absolute, the States may affix to the privilege such conditions as are deemed proper, or, without giving a reason, may arbitrarily forbid such corporation from coming in. When, therefore, in a case where the absolute power to exclude obtains, a condition is affixed to the right to come into the State and a foreign corporation avails of such right, it may not assail the constitutionality of the condition because, by accepting the privilege, it has voluntarily consented to be bound by the condition. In other words, in such case the absolute power of the State is the determining factor, and the validity of the condition is immaterial. ’ ’ And he quotes from Horn Silver Mining Co. v. New York, 143 U. S. 305, as follows: “Having the absolute power of excluding the foreign corporation, the State may, of course, interpose such conditions upon permitting the corporation to do business within its limits as it may judge expedient. ’ ’ And, further, “This doctrine has been so frequently declared by this court that it must be deemed no longer a matter of discussion, if any question can ever be considered at rest. ’ ’ .
The Chief Justice then says: “In addition, the following cases, either directly, expressly, or by fair implication, must be taken as sustaining the right of the State, where it has the absolute power to exclude, to affix whatever condition it deems proper to the right of a foreign corporation to come in and the consequent inability of such corporation, after accepting the privilege, to assail the constitutionalitiy of the condition. ’ ’ And he cites: Pawl v. Virginia, 8 Wall. 168; Postal Telegraph Co. v. Charleston, 153 U. S. 692; Hooper v. California, 155 U. S. 648; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; Pullman Company v. Adams, 189 U. S. 420; Allen v. Pullman Company, 191 U. S. 171; Security Mutual Ins. Co. v. Prewitt, 202 U. S. 246; National Council v. State Council, 203 U. S. 151.
In Security Mutual Ins. Co. v. Prewitt, supra, the court had under consideration an act containing the same provisions as the act now called in question. Indeed, the present act, in this respect, was copied from the Kentucky statute. The court, in that case, concludes its opinion as follows: ‘ ‘ The mere enactment of a statute which, in substance, says, ‘If you choose to exercise your right to remove a cause into a Federal court,, your right to further do business within the State shall cease, and your permit shall be withdrawn,’ is not open to constitutional objection.”
In Doyle v. Continental Ins. Co., 94 U. S. 535, the court had under consideration a statute of Wisconsin which declared “that if a foreign insurance company shall remove any cause from its State court into the Federal court contrary to the provisions of the act of 1870, it shall be the duty of the Secretary of State to cancel its license to do business within the State.” The court said: “The effect of our decision in this respect is that the State may compel the foreign company to abstain from the Federal courts or to cease to do business in the State. It gives the company the option. This is justifiable, because the complainant has no constitutional right to do business in that State. That State has the authority at any time to declare that it shall not transact business there. This is the whole point of the case, and, without reference to the injustice, the prejudice, or the wrong that is alleged to exist, must determine the question. No right of the complainant under the laws or Constitution of the United States, by its exclusion from the State, is infringed; and this is what the State now accomplishes. There is nothing, therefore, that will justify the interference of this court.”
As we understand, from a somewhat exhaustive examination of the decisions of the Supreme Court of the United States, there are at least two lines of cases where statutes similar to the one in question have been reviewed and passed upon by that court. In cases where the foreign corporation has been admitted to do business in the State upon conditions, such as are prescribed in the statute under consideration, and where such corporation is engaged in business that is purely local or intrastate, if the corporation violates the conditions under which it is permitted to come into the State and to do business therein, its license may be revoked and the State may thus exclude such corporation from doing business of a purely local character within its borders. These cases hold that a State may impose upon a foreign corporation as a condition of coming into and doing business within its territory any conditions it may see proper, provided they are not repugnant to the Constitution and laws of the United States, and that conditions such as are prescribed by the present act are not repugnant to the Constitution or laws of the United States. The cases holding this view are Security Mutual Ins. Co. v. Prewitt, supra, Doyle v. Insurance Co., supra, and others.
Other cases hold that where the foreign corporation has been admitted and permitted to do business in the State, if such corporation, although transacting a local business, is also engaged in interstate commerce of the character mentioned therein the license of such corporation can not be revoked upon conditions such as those prescribed in the act.
The latter oases hold that such provisions as those prescribed in the act are repugnant and contrary to the Constitution of the United States and the laws made thereunder, and that as to corporations doing an interstate business, they attempt to restrain and penalize the assertion of a Federal right. Such are the cases of Harrison, Secretary of State of Oklahoma, v. St. Louis & S. F. Rd. Co., 232 U. S. 318; Herndon v. Chicago, R. I. & P. Ry. Co., 218 U. S. 135; Western Union Tel. Co. v. Kansas, 216 U. S. 1, and other cases referred to in those.
The cases last mentioned note the distinction between them and the Doyle and Prewill cases, supra. For instance, in Harrison v. St, Louis & S. F. Rd. Co., supra, Chief Justice White, speaking of the Doyle and Prewitt cases, said: ‘ ‘ Those cases involved State legislation as to a subject over which there was complete State authority, that is, the exclusion from the State of a corporation which was so organized that it had no authority to do anything but a purely intrastate business, and the decisions rested upon the want of power to deprive a State of its rights to deal with a subject which was in its complete control, even though an unlawful motive might have impelled the State to exert its lawful power. ’ ’
And in Herndon v. Chicago, R. I. & P. Ry. Co., supra i.t is said: “Moreover, this is not a case where the State has undertaken to prevent the coming of the corporation into its borders for the purpose of carrying on business. The corporation was within the State, complying with its laws, and had acquired, under the sanction of the State, a large amount of property within its borders, and thus had become a person within the State within the meaning of the Constitution, and entitled to its protection. ”
While the cases of Doyle v. Insurance Co. and Security Co. v. Prewitt, supra, are confined and limited to an extremely narrow scope, yet they are clearly distinguished from the later cases referred to, and certainly have not been overruled by them. The case we have in hand comes strictly within the narrow limits of the Prewitt case, supra.
In construing the statute, of course, familiar rules must be observed. All doubts are resolved in favor of its constitutionality. Appellant having made the attack upon it, has the burden to show its invalidity. The demurrer to the answer tests also the sufficiency of the com-' plaint. There is no allegation in the pleadings that would authorize the inference that appellant was doing any other than a purely intrastate business. There is no allegation to the effect that it was engaged in interstate commerce or doing an interstate business. The complaint therefore fails to state a cause of action, and the judgment of the circuit court dismissing the same and denying the appellant the relief sought is correct, and it is affirmed. | [
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Kirby, J.
Appellant was indicted ¡and convicted for a violation of what is known as the pandering act, for enticing Clarissa Grubbs, a female under the age of sixteen years, to become an inmate of an assignation place and engage in a life of prostitution, the indictment charging this place, towit:
" The home of her, the said Mrs. Lee, * * # said home then and there being situated on Lake Street, in the city of Paragould, Greene County, Arkansas, which said house was then and there a place where prostitution was practiced, encouraged and allowed,” etc.
The testimony is otherwise sufficient to show the commission of the -offense, /but it is claimed that there is a variance in the proof, the only testimony introduced showing that the home of Mrs. Lee, or her house, was situated, not on Lake Street, in the -city of Paragould, as -charged, but upon a short street in that vicinity, and the majority of the court -are -of the opinion that the contention shoul-d be sustained.
The offense charged in this indictment is one of a local character or nature, consisting of enticing a female under age to visit -or become -an inmate of a place where prostitution is practiced, or an assignation house, and the place was properly descriptive of the offense, it being necessary to allege a place. Bryant v. State, 62 Ark. 459; Jenks v. State, 63 Ark. 312; Adams v. State, 64 Ark. 188; Keoun v. State, 64 Ark. 231.
In Keoun v. State, supra, the court said: “Where -an indictment contains a necessary allegation, which can not be rejected, and the pleader makes it unnecessarily minute in the way of -description, the proof must -satisfy the -description as well -as the main part -of the indictment. ’ ’
A description of the house or place was descriptive of the offense, and, while the indictment would have been sufficient had it -charged only “her home in Paragould,” since the pleader charged specifically the location of the place upon a particular street, it -also became descriptive of the offense, and material, and shoul-d have been proved as charged.
The testimony, having failed to show the commission of the offense, by enticing '-the girl into the home situated on Lake Street, a-s alleged, did not sustain the charge of the indictment, and the variance is fatal.
The judgment is reversed, -.and the cause remanded for a new trial. | [
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The question of tender was not raised below.
Smith, J.,
(after .stating the facts). The principal, of course, is not bound by the unauthorized act of his .agent, who acts without .the .apparent scope of his authority. But he may ratify his agent’s unauthorized act, and, when he does so, he becomes as completely bound as if he had conferred upon his agent the authority to do the act in question. This is an elementary principle of the law of agency and requires no citation of authority to sustain it. Ordinarily, the principal is not held to have ratified the acts of his agent, if he is ignorant of his agent’s action, but such lack of knowledge can not always afford immunity from liability, and does not do so at all, if with knowledge that an unauthorized contract has been made in his name, but without information as to its details, he permits its performance and enjoys its benefits. In 31 Oye., p. 1257, it is said: “The lack of full knowledge (of all the facts), however, does not protect a principal who deliberately chooses to act' without such knowledge, as where, knowing that he is ignorant of some of the facts, he has such confidence in his agent that he is willing to assume the risk and to ratify the act without making inquiry for further information than he at the time possesses, or where he deliberately ratifies without full knowledge, under circumstances which are sufficient to put a reasonable man upon inquiry.” And again on the same page it was said: “Although a principal has an election either to repudiate or to ratify an unauthorized act of an agent, on his behalf, he can not ratify in part or repudiate in part, but must either repudiate or ratify the whole transaction. He can not ratify the part which is beneficial to himself and reject the remainder; with the benefits, he must take the burdens; Thus, a principal can not ratify a contract made for him by an agent without also ratifying and becoming bound by the terms and conditions, although unauthorized, upon which it was made. * * *
“Accordingly, a ratification with full knowledge of part uf a transaction in general operates as a ratification of the whole.”
Appellants knew a contract had been entered into in their name and was being performed by appellee. A letter was introduced in evidence addressed by appellee to appellants, thanking them for their patronage, and this letter was notice that some kind of an order or contract had been made in their behalf, and that the cuts were being delivered in accordance therewith.
Upon being advised their employee had executed a contract in their name, without authority, appellants had the right to repudiate it; but they could not ratify it in part and repudiate it in part. Daniels v. Brodie, 54 Ark. 220.
Good faith required appellants to ascertain the terms of this contract, if they did not intend to repudiate it. A copy of it appears to have been left with appellants, but became misplaced, and another copy was promptly furnished' upon a request therefor. Appellants say Gavin misinformed them as to the terms of the contract. Even if this be true, appellee was in no wise responsible for that fact. Gavin was never its agent and never undertook to act for it, but he became the instrumentality or agency by which appellant undertook to ascertain the extent to which he had contracted for them, and, under the circumstances, appellants must sustain the loss resulting from Gavin’s deception or error. Dierks Lumber Co. v. Coffman, 96 Ark. 505.
Finding no error in the judgment, the same is affirmed. Dec. 740, 10 Cal. 385, cited in their brief. Even, if this were a suit in equity and they made this contention, they could not successfully maintain it for the reason that it was within the issue involved in the chancery court instituted by the plaintiff against the defendant to have a lien declared on the land in question for the money loaned the defendant by the plaintiff. No appeal was taken from the judgment in that case, and, the plea of res adjudicata of the defendant would be a bar to the right of the plaintiff for subrogation. | [
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Kirby, J.
The appellant contends that without regard to the testimony, it is entitled under the law to all the fines and penalties imposed by the mayor’s court, whether for violations of the ordinances of the town or.State laws of which it had jurisdiction. Sections 5465 and 7183 Kirby’s Digest provide:
“All fines, penalties and forfeitures imposed by any court or board of officers whatsoever, except those imposed by mayor’s or police courts in any city or town, shall be paid into the county treasury for county purposes.” Kirby’s Digest, section 7183.
“All fines and penalties imposed by the mayors or police court in any city or town in this State shall be paid into the city or town treasury, and the city or town councils shall have power to prescribe all necessary regulations for the collection, and account for said fines and penalties.” Kirby’s Digest, section 5465.
The mayors of incorporated towns and cities of the second class are also given concurrent jurisdiction with justices of the peace of offenses in violation of the State laws within their jurisdiction. Sections 5586, 5590, Kirby’s Digest.
All municipal corporations are authorized to prohibit and punish any act, matter or thing which the laws of the State make a misdemeanor, and bo prescribe penalties for violation of such ordinances not greater nor less for the violation thereof than those prescribed by the statute. Sections 5463, 5464, Kirby’s Digest.
The sections of the Digest above quoted give color to appellant’s contention but they received a different construction by this court in Hackett City v. State, 56 Ark 135. It was there held that the city or town is entitled to all fines imposed by the mayor’s court for violations of the ordinances of the municipality without regard to the fact that the town ordinances imposed penalties for acts which were also offenses against the State. The court said also in construing section 5860 of Mansfield’s Digest, since conformed to section 2, of the act of March 30,1891, (seetion'5465, Kirby’s Digest), and carried into Kirby’s Digest as section 7183, “It was the clear intention of that section to give to the county all fines arising from the enforcement of the State law by the mayor in his capacity of justice of the peace.” The court considered in its opinion said act of March 30, 1891, and we adhere to its ruling therein. Accordingly the city or town is entitled to retain all the fines and penalties imposed by the mayor’s court for viola.tions of its ordinances, notwithstanding the ordinances make the same acts offenses as are made offenses against the State by the statutes and the county is entitled only to such fines and penalties as are imposed by the mayors of said courts, acting in their capacity of justice of the peace for violation of the State laws within their jurisdiction.
The testimony herein tended strongly to show that the fines and penalties in controversy were imposed by the mayor’s court for the violation of ordinances of the town that prescribe like punishment for the same offenses as are prescribed by statute for violation of State laws and the court should have submitted this issue to the jury for its determination under proper instructions; and the testimony not being undisputed, should not have directed a verdict. For these errors the judgment is reversed and the cause remanded for a new trial. | [
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Kirby, J.
The only question presented by this appeal, for determination, is whether an improvement district can be organized in a city for opening, establishing and creating an alley through property where no alley has ever been opened, dedicated or provided for.
Section 5664, Kirby’s Digest, provides, “The council of any city of the first or second class of any incorporated town may assess all real property within such city or within any district thereof, for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvement of a public nature in the manner hereinafter set forth.”. Section 5672 authorizes the board of improvement to form plans for the improvement within the district and prescribe estimates for the cost thereof, “'but all such improvements shall be made with reference to the grade of streets and alleys that may be fixed by the ordinances of said city. ’ ’
Said section 5664 authorizes the formation of improvement districts, “for the purpose of grading or otherwise improving streets and alleys, constructing sewers or making any local improvement of a public nature, etc., and the appellee insists that an alley is a local improvement of a public nature within the meaning of the statute. The statute, however, provides a restriction and limits the purposes for which districts may be formed to “grading or otherwise improving streets and alleys,” evidently referring to streets and alleys already opened, dedicated or provided for. This view is confirmed by the statutes providing a different agency and giving the municipalities themselves the power for opening and establishing streets and alleys. Section 5456 and subdiv. 2, sections 5593, 5648, Kirby’s Digest.
It was not the purpose of the law to give two separate agencies power to open and establish streets and alleys, or to have control and supervision of them, as held in Sanderson v. Texarkana, 103 Ark. 529, and the power has been expressly given to the municipality and can not be delegated by it to a. different agency. Improvement districts are governmental .agencies or gmsi-eorporations with certain powers and duties of a public nature, and can only exercise the functions which the statutes have expressly conferred upon them. In Board Imp. Sewer District v. Moreland, 94 Ark. 381, the court said: “The effect of our former decision on the subject of improvement districts organized within the limits of cities and towns, and of fencing, drainage and levee districts, is to make them governmental agencies, or public gitosi-corporations, wbicb are ‘purely auxiliaries to the State, and have no powers, duties or liabilities except as conferred expressly by statute.’ ” They are neither municipal corporations nor ágents of the municipal corporations within which they are organized, but they derive their powers directly from the Legislature, and in exercising them, act as the agent of the property owners. Fitzgerald v. Walker, 55 Ark. 157. They have no control over the streets and alleys of the municipality except for the purpose of making the improvement for which the district was organized, and this being 'accomplished, the street or alley becomes subject to the exclusive control of the municipality. Pulaski Gas Light Co. v. Remmel, 97 Ark. 318. Improvement districts are given the power to exercise eminent domain in furtherance of the purpose of their organization. Sections 2921-2925, Kirby’s Digest.
It is true, as contended by appellee, that this court has held that an improvement district can be created in a city for the purpose of acquiring and improving a public park, the court saying of the statute: “The language is certainly broad enough to include any kind and class of improvement which will enhance the value of real estate of the particular district that is benefited, ’ ’ but the only limitation upon the making of improvements is not, as contended by appellees, that it shall be a local improvement of a public nature, for the statute expressly limits the power to organize such districts so far as streets and alleys are concerned, to the “purpose of grading or otherwise improving them,” manifestly intending that they shall have already been opened, laid out, dedicated or established by competent authority. The city council was without authority to create the improvement district, and it had no authority to levy the assessment which'is void against the property of the appellant.
The judgment is reversed and the cause remanded with directions to disniiss the complaint for want of equity. | [
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Hart, J.
Clarence Dewein was indicted, tried before a jury and convicted of murder in the first degree. From the judgment of conviction he has duly prosecuted an appeal to this court. The facts are substantially as follows:
L. H. Thompson, in November, 1913, resided in the south end of the town of Benton in Saline County, Arkansas, and was killed one evening something after 9 o ’clock. He owned and operated a store and also resided there and ran a hotel or rooming house in connection with Ms business. On the evening he was killed his wife left Mm counting Ms money and went to an adjoining room to go to bed. After he finished counting his money he went out on the front porch to smoke. There was -a lighted lamp in one of the front windows. A neighbor, ’ who was also sitting on Ms front porch smoMng, saw two men approaching the store of the deceased. Just before they got there, the neighbor testified, they separated and one of them, who was dressed in a dark gray sMrt, with a cap pulled down over his face, walked up on the porch where Thompson sat and said sometMng to Mm. Thompson got up and walked into the store and the man f ollowed Mm. Just as the man followed Thompson into the door he nodded to his companion who had come up and was playing with a cat on the porch. His companion then followed him into the store and the light was put out. This neighbor further stated that he did not hear any commotion but became suspicious of the men from their ■ actions and went into the house and procured his gun. When he came out he saw two men walking rapidly away and was unable to capture them. The second man had a long coat buttoned up, and also had his cap pulled down over his face.
Mrs. Thompson heard a commotion in the store room, returned there and found her husband sitting on the floor complaining of his head. A coupling pin was lying-on the floor right beside him. A physician was summoned at once and upon examination of Thompson found the base of his skull crushed all to pieces. There was a stroke on the left side and another on the right about three inches long. The physician opened up Thompson’s skull at the'place where it was fractured and took out a piece of the skull about the size of a dollar. He then raised the skull and said that the old man’s breathing became good. Thompson died the next day about 2 o ’clock. The physician testified that blows from a blunt instrument caused his death and that the most severe blow, was at the base of the brain. He found a coupling- pin, which was all bloody and had hairs on it, near the body. The deceased was about seventy years- of age at' the time he was killed and was a strong and vigorous man for that age.
The manager of the electric light plant at Benton, which was near Thompson’s store, testified that about twenty minutes before the killing was reported to him he saw defendant in front of the light plant, that he had on a pair of light looking pants, a coat and a black cap; that he had a companion with him who had on a gray shirt and a brown necktie; that the defendant’s companion did not have on a coat but had on a -pair of leggings. The light plant was about eighty yards from the store of the deceased.
Mrs. Sarah Ewing testified: At the time the killing occurred I was running a boarding house in Benton and the defendant boarded with me. Joe Strong assisted me in my work. My boarding house was about a quarter of a mile from where Mr. Thompson was killed. The defendant, on the night in question, had supper at my house and went away after supper. Later on he came back and stayed all night. He did not -eat any breakfast. He went to Little Hock Sunday morning, came back that evening, -ate supper and stayed all night at my house. On Monday, after 'dinner, I went to the defendant’s room and began talking to him about the killing -and asked him if he was not implicated in it. He first denied it and then said that he was. I then asked him to tell me all about it -and asked him how he came to be in it. He said that he and some companions had gone to Mr. Thompson’s store prior to the night of the killing and had seen him -counting money; that on the night of the killing he went down to -see if they -could get the money; that when he got down there Mr. Thompson was sitting on the porch playing with a little cat; that Joe Strong was with bim -and that Strong grabbed Thompson around the neck; that Thompson got loose and ran into the house; that Joe Strong hit Thompson one lick with the coupling pin and that he then took the pin and finished bim; that J-oe got blood on his clothes and, after they left the scene of the killing, pulled off his shirt -and leggings and threw them into a creek and that he pulled off bis coat and gave it to Joe to wear until they got to the house.
On cross-examination Mrs. Ewing stated that she told the defendant that if he would tell her about the killing she would not say anything about it. Afterwards she reported the matter to the officers and her statement was written down by them. She -said that the defendant had said to her that they did not intend to kill the -deceased but that it turned -out worse than they thought.
After the defendant was arrested it was reported to the officers that a shirt and some leggings would be found at a certain place in a -creek near by. They made a search there and found the shirt and leggings w-bich were all bloody. ■ They -also found a pocket book which had belonged to the deceased. The defendant’s grip was also searched after his arrest and a pistol was found in it which Mrs. Thompson identified as being like one her husband owned. The pocket bock found -after the killing was empty when found hut contained about ten dollars when last in Mr. Thompson’s possession.
The defendant made a written confession which is substantially as follows: My name is ¡Clarence Dewein; I will be twenty years old on my next birthday; 1 was born in Belleville, Illinois, and left home about a month ago; I came to Benton and have been boarding with Mrs. Ewing nearly ever since. Several days prior to the killing one of the boarders stated that he had ¡seen Mr. Thompson counting his money and said that a man could get it if he was on to his business. On Wednesday night preceding the killing William Herman -and I told Joe Strong about the old man’s money and told him to go over and look .around. Joe went to the -old man’s ¡store and bought some tobacco and came back and reported that there was no chance of getting it that night and said we would have to let it go till some other night. On Saturday night Strong and I went down to Deed’s store and from there down towards the light plant. We then went to old man Thompson’s store and Joe went in and got a package of tobacco. He came back and said there was no one in the store but the old man. We walked on down the block and came back and saw the old man sitting on the porch. We then walked'uway again and looked for something to hit him on the head with. We came to a box car and saw a coupling pin. We took it and went ¡on back to the store and told the old man we wanted some cheese and crackers. Joe went in with the old man and I stayed on the porch playing with the cat. When the old man went behind the counter he started to wait on Joe. I walked in at the door and closed it and blew -out the light. In the mean time they had gotten to the rear of the -store and Joe hit -the old man with the coupling pin and called to me. I started towards him and he picked up the coupling pin and hit the old man again and said that would kill him. Joe went through his pockets and got his money, pistol and knife. After we left Joe washed the blood off his hands in the creek and pulled off his shirt and threw it in the creek. I gave him my coat to put on until we got to the house. Joe and I went back to Mrs. Ewing’s -and slept there that night. I went to Little Dock Sunday morning and returned that afternoon. On the night of the killing I had on a bine serge coat and brown corduroy cap and Joe had on a blue shirt and brown tie, a small black cap and was in his shirt sleeves. We threw the money sack or pocket book of Thompson away when near our boarding house on the night he was killed.
The parents of the defendant were present 'at the trial and testified that when he was about nine years old he received a severe lick on the head and since that time his intellect had been weak and that his mind was that of a .child about nine or ten years of age; that he had always borne a good reputation and had stayed with them until he went to Benton from their home in Illinois a few weeks before the killing occurred. The defendant’s father was a saloon keeper and the defendant was working in the saloon with him prior to leaving for Arkansas.
The defendant testified in his own behalf substantially as follows: I came to Benton from Illinois a few weeks before the killing occurred and boarded with Mrs. Ewing; Joe Strong was working for her and I got acquainted with him. On the night of the killing Joe and I went to the business part of the town .and as we started home we passed old man Thompson’s place and Joe told me to wait a minute, that he wanted to get something to eat. This was .about 9 o’clock. I did not go into the store with him and when he .came out he handed me a gun to keep for him. When we got to the boarciing house he gave me some money and asked me to keep it for him until the nest day. I did not go into Thompson’s store that night but stayed on the porch and played' with a little cat while Joe went in there. There was no blood on Joe when he came out and I never .saw .any blood on any of his clothes. . I did not .hear any commotion in the store and did not know that Joe had killed the old man. I had on a coat on the night that Thompson was killed and have worn the same coat ever since. I was not in the house and had nothing whatever to do with the killing of the deceased.
It is earnestly insisted by counsel for the defendant that the testimony is not sufficient to warrant the verdict. From the summary which has been given of the evidence as it .appears in the record it clearly ap pears that it was 'Sufficient to warrant the verdict and no useful purpose could be served by going into an extended analysis of it.
It is also insisted by counsel for the defendant that his confession was improperly admitted in evidence because it was not voluntary. After the defendant was arrested he was taken from the jail one night and carried to the court room and was locked in a room in the courthouse with the mayor of the town of Benton. The mayor was a man about sixty-five years of age and had formerly been sheriff of the county. He testified positively that he made no threats against the defendant and offered him no inducement whatever to make the confession. He stated that at first the defendant denied that lie was implicated in the killing; that he told the defendant that Mrs. Ewing had made a written statement of the confession which he had made to her and that he had seen that ' statement; that he recounted to the defendant what purported to be Mrs. Ewing’s Avritten statement of his confession to her and that the defendant then admitted that he was implicated in the killing and said that he was willing to make a confession of it and did so. ' He agreed that his confession might be reduced to writing and the mayor then called in the sheriff and a lawyer who had been employed to'prosecute the defendant and the defendant’s statement Avas reduced to writing and was read over to him and signed by him. The defendant made some correction ini the statement when it Avas read over to him. The defendant’s statement was made in response to questions asked him but the questions Avere not reduced to writing and his confession appears in narrative form.
The defendant stated that he was taken from jail to the sheriff’s office and met Mr. Shoppach, the mayor, there a little after 7 o’clock in the evening; that they locked him in the room Avith the mayor and he began questioning him .and told him that if he would tell him everything he would take care o'f him; that they told him about having Mrs. Ewing’s statement and that they had Joe Strong; that they asked him if he did it and that he told them that he did not; that Mr. Utley who wrote down the statement assisted in prosecuting him and was present when Mr. Shoppach questioned him; that Mr. Utley also questioned him; that he did not remember ■what was in the statement, though he thought it was read over to him; that he had no one there -to represent him but just told them everything; and that he first told them he had nothing to do with the killing.
In the case of Greenwoood v. State, 107 Ark. 568, the court held: “A confession of guilt, to be admissible, must be free from the taint of official inducement proceeding from either defendant’s hope or fear; and a confession to be admissible must be voluntary and made in the absence of threat of injury or promise of regard, and made in the absence of any influence which might swerve him from the truth.
“Where a confession is obtained from defendant by persistent questioning by officers, but without deception, threat, hope of reward or inducement of any kind, it is admissible as a voluntary confession.” See, also, Hardin v. State, 66 Ark. 53.
It is insisted by counsel for defendant that his confession was not voluntary because he was not warned that it would be used against him. In the G-reenwood case, supra, we held that in the absence of a statute requiring it, the failure to warn or caution the accused while in custody that his statement would be used against him does not render it involuntary. That this is the prevailing rule, see case note to Ammons v. State, 18 L. R. A. New Series, 768, 791.
In the Greenwood case, supra, we also held that the fact that the statement of accused was elicited by questions put to him by officers or by private persons does not render, them inadmissible. To the same effect see note to Ammons v. State, 18 L. R. A. (N. S.) 799.
It has been said that no general rule can be formulated for determining when a confession is voluntary becau-se the character of the inducements held out to a person must depend very much upon the circumstances of each ease. Where threats of harm, promises of favor or benefits, inflictions of pain, a show of violence or inquisitorial methods are used to extort a confession, then the confession is attributed to such influences.
It may be said, also, that in determining whether a confession is voluntary or no't, the court should look to the whole situation and surrounding of the accused. Hence it is proper to consider his age, the strength or weakness of his intellect, the manner in which he is questioned, the fact that he is in jail, and everything connected with his situation. In order to render a confession involuntary there must be some threat or inducement held out to overcome his will.
In the instant case it is true that the def endant was in jail and that he had no friends with him at the time he was questioned by the mayor. The mayor says that no one was in the room with him at the time the defendant first made his confession to him and that he made no threats against the defendant and offered no inducements whatever to him to make the confession. He only confronted him with the confession which Mrs. Ewing said he had made to her. No harsh treatment was used and no inquisitorial methods were employed to induce him to confess. The court had all the facts before him and his decision in the matter did not rest upon any one fact but upon a combination of them all. The defendant was before him and the court had an opportunity to judge of his intellect by the manner in which he testified, and when the whole situation and surroundings are taken and considered together we do not think the court erred in permitting the confession to go before the jury.
It is next insisted that the court erred in its ruling upon the challenge of the defendant to the juror Gr. D. Smith. The juror testified that he had read in a Benton paper what purported to be the confession of the defendant and that at the time he read it he had a definite opinion as to the guilt or innocence of the defendant. He further stated that if he were accepted as a juror he would not let anything he had read or heard influence his verdict and that he could give the defendant a fair and impartial trial upon the law and the evidence, uninfluenced by the opinion he entertained when he read the purported confession. He said that he could go into the jury box and decide the case entirely upon the evidence introduced before the jury and upon the law as given by the court.. The court held him to he a competent juror and we think this holding was correct.
In the case of Hardin v. State, 66 Ark. 53, the court-held: “A juror in a criminal case who states that, from rumor and from reading the newspapers, he has formed an opinion as to defendant’s guilt which it will require evidence to remove, but that, for the purpose of the trial, he can disregard such opinion, and give defendant a fair and impartial trial, is not incompetent, if it does not appear that he entertained any prejudice against defendant. This rule was recognized in Sullins v. State, 79 Ark. 127; -but the juror was there held incompetent because his brother-in-law, in whom he had great confidence, and who was also a witness for the State, had published the newspaper reports and under such circumstances the court said the statement on which the juror based his opinion was not a mere rumor, but amounted to a statement of the facts by a witness.
In the following cases it has been held that -opinions based upon newspaper reports of confessions did not disqualify a juror: State v. Church, 199 Mo. 605, 98 S. W. 16; State v. Potter, 18 Conn. 166; State v. Wooley, 215 Mo. 620, 115 S. W. 417; State v. Bobbitt, 215 Mo. 10, 114 S. W. 511.
In the instant case the juror stated positively that he could disregard the -opinion formed by him from the newspaper account of the purported confession and that if the testimony turned -out different from the new-spaper account that his verdict would be based solely upon the evidence given to the jury. From the juror’s testimony it appears that -he was entirely indifferent in the case and the court properly re-fused the defendant’s challenge for -cause.
It is -also -contended by counsel for defendant that it was error for the court to permit the State to peremptorily challenge the juror G. W. Gunter. The juror was accepted on the first day of the trial and on the next day after the defendant had exhausted all of his -challenges but one the State was permitted to exercise a peremptory challenge and excuse Gunter from the jury. Thus it will be seen that the defendant had not exhausted all of Mg peremptory challenges and the court, in the exercise of its discretion, could permit the State to peremptorily challenge the juror after he was accepted on the jury. See McGough v. State, 113 Ark. 301; 167 S. W. (Ark.) 857; Carr v. State, 81 Ark. 589; Allen v. State, 70 Ark. 337.
It is next contended by counsel for the defendant that the court erred in refusing him a new trial on account of Dodson’s inoompetency as a juror.. The defendant attached several affidavits to his motion for a new trial alleging that G-. E. Dodson, one of the jurors, had formed -and expressed an opinion prior to his being* accepted as such juror and that he had stated to different persons that all of the parties connected with the killing should be hanged and that if he had his way about it he would not wait for any court. The juror was examined under oath and denied that he made any such statements as those ascribed to Mm and stated that he had never discussed the merits of the case at any time or place until after he had been chosen as a juror and the verdict had been rendered. The court was in possession of all the facts relating to the disqualification of the juror and it can not be said 'that the court abused its discretion in refusing to grant the defendant a new trial on this ground.
It is next insisted by counsel for the defendant that the court erred in refusing to instruct the jury upon murder in the second degree^ Section 1766 Kirby’s Digest provides that all murder wMch shall be 'committed in the perpetration or in the attempt to perpetrate arson, rape, robbery, burglary or larceny shall be deemed murder in the first degree. The jury, by its verdict, has accepted as true the testimony of the witnesses for the State. That testimony shows that the deceased was killed-while the defendant and a companion were attempting to rob him. There is nothing whatever to contradict fchp testimony in this respect except the testimony of the defendant to the effect that he was not present and did not aid in the commission of the crime. It is true that we have frequently said that the trial court should not in any case indicate an opinion as to what the facts establish, but in properly giving the law to the jury the court must of necessity determine whether there is any evidence at all justifying a particular instruction. There was no evidence adduced before the jury, either for the State or the defendant, tending to show the defendant guilty of murder in the second degree. Hence, there was no evidence upon which to base an instruction for murder in the second degree, and the court properly refused it. Allison v. State, 74 Ark. 444; Jones v. State, 52 Ark. 345.
It may be also said that the court correctly modified instruction No. 19 asked for by the defendant. This instruction, as originally asked for, was argumentative and (also'contained an indication as to the weight the jury should give to the confession of the defendant. -As requested the instruction was erroneous because it told the jury that they must weigh with care the confessions of the defendant. Of course it was proper for the jury to take into consideration all the surrounding facts attending-the confession as introduced in evidence and to consider it in connection with all the other evidence introduced in the case. But it was not within the province of the court to tell the jury how much weight they should give to the confession. This was peculiarly within the province of the jury.
It is next insisted by counsel for the defendant that the court erred in refusing to give instruction No. 20 asked for by him. This instruction in effect told the jury that in order to warrant their considering any alleged confession made by the defendant and introduced in evidence they must believe beyond a reasonable doubt that such confession was made voluntarily upon-the part of the defendant. The question of the admissibility of the confession -of the defendant was for the court. After the court admitted it in evidence the jury, of course, were the judges of the weight to be given to it. See Greenwood v. State, supra. The court, therefore, properly refused this instruction.
It is next insisted -by counsel for the defendant that the court should have granted him a new trial on the ground of newly discovered evidence. It may be said, in brief, that the newly -discovered evidence only went to attack the credibility of the witness Mrs. Ewing and it is well settled in this State that newly discovered evidence that goes only to impeach the credibility of a witness is not ground for a new trial. Smith v. State, 90 Ark. 435; Young v. State, 99 Ark. 407; Russell v. State, 97 Ark. 92.
Independent of the confessions of the defendant it was shown that the deceased was murdered in his storehouse by persons who came there for the purpose of robbing him. The manager of the electric light plant testified that he saw the defendant and Joe Strong in front of the light plant about twenty minutes before the killing occurred; that each of them had on a cap and that the defendant had on a blue or black serge coat, ¡buttoned up around his neck; land that Joe Strong had on a gray shirt, a brown tie and was without a -coat.
A neighbor of the deceased testified that he saw men answering to this description enter the storehouse of the deceased just before he was murdered and robbed and that they immediately ran off after the robbery and murder had been accomplished. This testimony- abundantly established that the crime of murder was committed ¡by some one and the facts point toward the defendant and Joe Strong as being the perpetrators of the crime. This evidence, when taken in connection with the confession of the defendant, if believed by the jury, abundantly warranted the verdict.
We are of the opinion, upon 'an examination of the whole record that the defendant had a fair trial and that every phase of the evidence was properly submitted to the jury upon correct instructions. Therefore the judgment must be affirmed. | [
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McCulloch, C. J.
Appellants were the owners of real property in the incorporated town of Hoxie, Arkansas, and this is an action instituted against them by the board of improvement of a district formed for the purpose of constructing sidewalks. The property of appellants is situated within the district and has been assessed, and the purpose of this action is to enforce the payment of the first assessment.
A similar suit between these parties was -formerly here on appeal, and we held that the improvement district had been legally formed, but that the ordinance levying the assessments on the property was void on account of not having been published in accordance with the terms of the statute. Gibson v. Incorporated Town of Hoxie, 110 Ark. 544.
After that decision a new ordinance was-passed levying the assessments, and it was published in accordance with the act approved March 3,1913, which provides that “where improvement districts are organized in any city or town in which no newspaper is regularly published,, all notices required may be published in any newspaper that is published and has a bona fide circulation in the county.” Act 125 of Acts of 1913, § 5, pi 527.
An earlier statute, approved January 30, 1913, contained a provision that “where no newspaper is published in such town or city, such publication may be made in some newspaper published in the same county and having a circulation in such town.” Act 5 of 1913, p. 27.
But the act of March 3, 1913, operated as can amendment of the former act, and is the last expression of the lawmakers on that subject. The latter act contains no express amendment or repeal of the act of January 30, 1913, nor of section 5685, which that act amends; but it contains the broad language that “all notices required may be published,” etc., in the manner indicated; and that covers all notices necessary in the formation of districts and proceedings thereunder. The new statute in this respect related only to a method of procedure and applied to districts already formed. The act of March 3,1913, must, therefore, control in the present- case.
The fact that the work of the assessors was done prior to the passage of the ordinance which was held invalid in the former case and prior to the passage of the new act referred to herein does not affect the validity of the new ordinance and publication thereunder. The whole proceedings, so far as this record shows, were valid up to the publication of the former ordinance, and it was only the ordinance itself levying the assessment which was invalidated, by reason of the failure to publish the same in accordance with the statute. The ordinance was merely void, and it did not affect the power of the city council to pass a new ordinance and cause it to be published in accordance with the statute in force at the time of its passage. It is shown by the affidavit of the editor that there was publication of the present ordinance in accordance with the terms of the new statute.
The principal contention of appellants for re- ■ versal of the 'cause is that the ordinance was not properly published; but it is also urged that the assessments are not enforceable for the reason that there has been no ordinance of the town establishing the grades of the streets.
That question, however, is ruled by the case of McDonnell v. Improvement District, 97 Ark. 334. In that case we said:
“It is time enough for the property owners to complain when the work is .about to be done, without reference to the establishment of a grade by the city. ’ ’
(4) The property owners -have the right to prevent construction of the improvement in violation of law and may seek injunctive relief from the chancery court where the commissioners are about to violate the law on that subject; but the mere fact that the grade has not been established does not afford any defense against the payment of assessments validly laid.
The other questions argued are not of sufficient importance to discuss.
The decree is affirmed. | [
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Per Curiam :
Appellant filed a motion in which he alleges that from causes over which he had no control he has been unable to perfect the bill of exceptions in this case". The judgment appealed from was rendered by the circuit court of Lawrence County on September 5, 1913, and time (120 days) was given within which to prepare and file bill of exceptions. Appellant alleges that he was unable to procure a transcript from the stenographer within the time specified, and filed a skeleton bill of exceptions ; and that thereafter he procured the transcript and delivered the same to.the special judge, who presided at the trial of the cause; that the trial judge failed to return the transcript to him, but lost it; and that when he applied to the stenographer for another transcript, he found that the stenographer’s notes had been lost, and that the stenographer, for that reason, was unable to fur nish another transcript. This occurred after the expiration of the time allowed for filing the bill of exceptions, and appellant is therefore left with only a skeleton bill without any record of the oral proceedings.
He is not very definite as to the relief which he asks, but he does ask that the special judge, the stenographer, and the clerk of the court be cited to appear and make disclosures as to the lost papers. The allegations of the motion are to the effect that the stenographer’s transcript and his notes have both been lost, and it would avail nothing to cite the officers' named to appear here for disclosure. At any rate, this court has no authority over the stenographer, and the remedy to require a transcript to be filed, if the notes could be found, would devolve upon the circuit court.
The special statute in force in the judicial circuit whence this appeal comes provides that the appellant in the case “may file a skeleton bill of exceptions with the clerk without incorporating therein the stenographer’s transcript, when said transcript has not been prepared and approved by the court or judge thereof, within the time allowed by law for filing the bill of exceptions, and the clerk shall insert said stenographer’s transcript as, and after, same has been approved by the court or judge thereof, in the record of the Supreme Court, when the same is filed by the stenographer.” Act No. 325, Session of 1911.
In the case of Gibson v. Inman Packet Co., 111 Ark. 521, 164 S. W. 280, we held that under that statute, the stenographer’s transcript, when approved by the judge, could be filed within the year 'allowed for an appeal.
Appellant, within the time allowed by the trial court for filing the bill of exceptions, could have prepared a bill of exceptions .containing his own recital of the testimony, and had that approved by the judge, or he had the right to file a skeleton bill of exceptions under the terms of the special statute, and later get the transcript of the stenographer’s notes. After the expiration of the time allowed for filing the bill of exceptions, it was too late to incorporate a recital of the oral proceedings, except in the manner prescribed by the special statute; that is, by the transcript made by the stenographer and approved by the judge.
Since it has become impossible for the- stenographer to furnish another transcript, and the one prepared and delivered to the trial judge was never approved and has been lost, there appears to be no relief for appellant unless it be by an action in the chancery court to compel the appellee to submit to a new trial, as pointed out in several decisions of this court. Kansas & Arkansas Valley Railroad Co. v. Fitzhugh, 61 Ark. 341; Little Rock & Hot Springs Western Rd. Co. v. Newman, 73 Ark. 555; Missouri & North Arkansas Ry. Co. v. Killebrew, 96- Ark. 520. Whether the facts will justify relief in that direction, we are not called on now to decide. It is sufficient to say that under the facts stated in the motion, no relief can be granted here in the way of requiring the record to be perfected.
The motion is therefore overruled. | [
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Fraurnthal, J.
This was an action instituted by C. W. Grubbs, the plaintiff below, to recover damages for a personal injury which he sustained while in defendant’s employment, and which he alleged was caused .by defendant’s negligence. The defendant denied the allegations of negligence set out in the complaint, and pleaded as a bar to a recovery by plaintiff his alleged contributory negligence and his assumption of the risk of the injury. The jury returned a verdict in favor of the plaintiff, and from the judgment rendered thereon the defendant has appealed to this court.
Upon the trial of the case the defendant asked for a peremptory instruction in its favor; and now contends that under the uncontroverted testimony in the case the injury which the plaintiff received was due to a risk which was ordinarily incident to the employment in which he was engaged, and whiebq therefore he assumed; and also that plaintiff himself was guilty of negligence which contributed to cause the injury. In determining whether or not there was any evidence adduced upon the trial of the case that was legally sufficient to warrant the verdict, this court will consider the testimony in its aspect most favorable to plaintiff and make every legitimate inference in his favor that is deducible therefrom. Viewed in this manner, the case is substantially this: The plaintiff was employed by the defendant as a section hand, and had been engaged in that service for about 18 months prior to the time he received the injury complained of. Two cars of creosoted ties had been placed upon the side track at the town of Ronoke. These ties were loaded on flat cars, and had become disarranged while being transported. They were placed upon the side track for the purpose of having them rearranged or straightened out, and it was one of the duties of the section hands to do this. The foreman of the section crew directed a number of his hands, amongst whom was plaintiff, to straighten out these ties upon the cars. The ties were loaded upon the cars to a height of about 12 or 14 feet from the ground, and they had become so disarranged that their ends protruded over the cars. The men first attempted to rearrange the ties by the use of a scantling while standing on the ground; but, this method proving unsuccessful, the foreman directed the men to go upon the ties in order to straighten them out. Four of the men got upon the ties safely. The plaintiff went to the end of the flat car and, climbing upon the drawhead of the car, caught hold of a protruding cross tie with his hand and attémpted to pull himself up. The tie slipped, and the plaintiff, loosening his hold, fell to the ground, and was painfully and severely injured. The plaintiff had worked with ties which had been treated with creosote and knew that they were made slick by reason of this treatment; and the section crew to which he belonged had handled a great number of creosoted ties prior to the time of this injury and had straightened the ties on probably one or two cars.
The foreman did not direct the section hands, and did not direct the plaintiff, as to the manner in which they should get upon the ties, nor did he warn them of any danger in so doing. He left the manner of mounting the cars to their own discretion, and did not see or know of plaintiff’s attempt to get on the car until after the injury.
In accepting and continuing in the employment in which he is engaged a servant assumes the ordinary and usual risks and perils that are incident thereto. He assumes all the obvious risks of the work in which he is engaged and also the risks which he knows to exist as well as those which by the exercise of reasonable care he may know to exist. By the contract of service he agrees to bear the risk of all such dangers, and he therefore cannot recover for the injuries resulting therefrom. As is said in the case of Fordyce v. Stafford, 57 Ark. 503: “The employee assumes all risks naturally and reasonably incident to the service in which he engages, where the hazards of the service are obvious and within the apprehension of a person of his experience and understanding.” St. Louis, I. M. & S. Ry. Co. v. Touhey, 67 Ark. 209; Archer-Foster Construction Co. v. Vaughn, 79 Ark. 20; Choctaw, O. & G. Ry. Co. v. Thompson, 82 Ark. II; Graham v. Thrall, 95 Ark. 560; 1 Labatt on Master & Servant, § 259.
In the case at bar the plaintiff knew that the effect of the •treatment of creosote upon cross ties was to make them slick and therefore liable to slip. The ties had on this account become disarranged upon the cars, and it was for this reason that plaintiff was directed to do the work of straightening them out. Their condition was patent to him, and the manner in which they were disarranged upon the car was also patent. It was obvious, therefore, that these ties were liable to slip whenever any force or weight was applied to them. The risk of injury which might result by reason of the ties slipping or moving was obvious, and when plaintiff undertook the service of straightening them out he assumed that risk. The plaintiff knew that these ties had been treated with creosote, and he testified .that the effect of such treatment made them slick; he observed that on account of this slick condition these ties had become dislodged and disarranged, and therefore the danger incident to applying force to them and thereby causing them to easily .move was obvious and known to the plaintiff. A master is not bound to warn the servant as to dangers which are obvious and patent to him. And where the master and servant are possessed of equal knowledge of the danger, then it is not incumbent upon the master to warn a servant of sufficient maturity and experience to appreciate the same. In such case the servant assumes the risk. In the case of Louisiana & A. Ry. Co. v. Miles, 82 Ark. 534, the court, quoting from Rabatt on Master & Servant, states the doctrine as follows: “The master is not required to point out the dangers which are readily ascertainable by the servant himself if he makes an ordinary careful use of such knowledge, experience and judgment as he possesses. The failure to give instructions, therefore, is not culpable where the servant might by the exercise of ordinary care and attention have known of the danger, or, as the rule is also expressed, where he had all the -means necessary for ascertaining the conditions and there was no danger which could not be discovered.”
But it is urged by counsel for plaintiff that while the servant assumes the ordinary risks incident to the employment he does not assume the risk of danger caused by the negligence of the master. It is contended that it is incumbent upon the master to furnish the servant with a safe place in which to do the work, and in failing to perform that duty the master is guilty of negligence. It is claimed in this case that it was the duty of the defendant to have provided the plaintiff with a safe means of' mounting the -car in order to rearrange the ties, and that it failed to furnish same. But, even if the failure to furnish such special appliance or means of mounting the car should be -considered an act of negligence on the part of the defendant, still the plaintiff was fully aware of the manner in which the work was being done and the way in which the car was -mounted. In the case of Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232, it is said: “If, having sufficient intelligence and knowledge to enable him to see and appreciate the -dangers to which he will be exposed, he knowingly assents to occupy a place set apart for hi-m by the master, and he does so, he thereby assumes the risks incident thereto and dispenses with the. obligation of the master to furnish him a better place. It is then no longer a question of whether such place could not with reasonable care and diligence be made safe. Having voluntarily accepted the place occupied by him, he cannot hold the master liable for injuries received by him -because the place was not safe.” Where the servant knows the methods that are adopted in doing the work and the place furnished in which the work is done, and accepts or continues in the employment under such conditions, he assumes the risks of the dangers which may result therefrom. Railway Co. v. Kelton, 55 Ark. 483; Patterson Coal Co. v. Poe, 81 Ark. 343; Graham v. Thrall, supra.
But, in addition to this, in the case at bar the plaintiff was engaged in the work of straightening out the ties which on account -of their peculiar slick condition had become disarranged. If the place or the work itself was unsafe, it was a part of the very service which the plaintiff voluntarily engaged in with full knowledge of the unsafety of the place and the dangers of the work. The rule is that under such circumstances the servant assumes the risks of the dangers incident to such duty he has thus engaged to perform. In speaking of the risk which in such a case is assumed by the servant this court, in the case of Marshall v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 213, quoted the following with approval from Judge Rurton: “It is not a case where dangerous or defective instrumentalities are supplied by the master to be used in his work, and where notice of such danger should be given, but a case where the instrumentalities to be handled and worked with or upon are understood to involve peril and to demand unusual care. In such cases the risk is assumed by the servant as within the terms of his contract and compensated by his wages.”
In the case at bar the plaintiff was engaged in rearranging the ties, which he knew had become dislodged and displaced on account of their slick condition. He understood the manner in which the work was to be done; and whatever danger was incident to mounting the car and going on and over these ties was Obvious to any one with the experience and understanding possessed by plaintiff. The danger of these ties slipping and the peril arising therefrom was one of the ordinary incidents of the work in whioh he was engaged. This risk of injury therefrom was therefore assumed by him. Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69; Chicago, R. I. & Pac. Ry. Co. v. Murray, 85 Ark. 600; St. Louis, I. M. & S. Ry. Co. v. Goins, 90 Ark. 387.
Considering the testimony adduced upon the trial of this case most favorably to the cause of the plaintiff, we are of opinion that the injury which he sustained occurred by reason of a risk which under the law he assumed.
The judgment must accordingly be reversed, and the case dismissed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). The court treated the action as one for specific performance of the contract for the sale of block number two, as evidenced by the receipt for the remainder of the purchase money, describing it, and the answer and cross complaint as asking a reformation thereof because of a mistake in the description of the land or fraud of the vendee in procuring it; and in effect decreed a reformation and specific performance of the contract as reformed.
A preponderance of the evidence is not sufficient to- warrant the reformation of such a contract, for, as was said in Wilson-Ward Co. v. Farmers’ Union Gin Co., 94 Ark. 200: “This court has decided in an unbroken line of cases that, in order to reform a written instrument, the evidence must be '-clear, unequivocal and decisive.’ ” McGuigan v. Gaines, 71 Ark. 614; Goerke v. Rodgers, 75 Ark. 72; Tillar v. Wilson, 79 Ark. 256; Davenport v. Hudspeth, 81 Ark. 166; Marquette Timber Co. v. C. T. Abeles Co., 81 Ark. 420; Mitchell Mfg. Co. v. Kempner, 82 Ark. 349; Turner v. Todd, 85 Ark. 62; Cherry v. Brizzolara, 89 Ark. 309. This court has in several of the above cited cases approved the statement of the rule of evidence on this subject 'by Mr. Bishop -in his work on Contracts, § 708: “In no -case will a court decree an alteration in the ter-ms of -a duly executed written contract unless the proofs are full, clear and decisive. Mere preponderance of the evidence is not enough; the mistake must appear beyond reasonable controversy.”
The receipt for the first payment signed by appellee, I. N. Steuart, showed an agreement to sell to appellant a tract of land, situated betweet the two railroads north of one and east of the other, in extent “a city block -containing one acre or more,” and after the lands were laid off and platted the receipt for the remainder of the purchase money showed a concluded sale of that date to him of block 2 in the town -of Tokio, definitely described with the names of the streets surrounding it as shown on the plat thereof.
It is true he denies having signed this receipt, but appellant testified that he did sign it, and he admits having signed a receipt at -the time, written by appellant, after first refusing to fake the money and a heated controversy with him as to the amount and description of the land sold, appellant all the time insisting that he was -entitled to said block 2. It is not within the range of probability that appellant would have written a receipt, with the recitals in it as claimed by appellee, under the circumstances. It is before us with the undisputed signature of appellee, and it has no appearance of any changes by erasures or otherwise, and -we are convinced that he did sign it, and that he is now mistaken in his statement of its recitals. The evidence was not sufficient to justify the decree reforming .the contract.
Was the contract of sale of this land void under the act of Mar-ch 18, 1887, because of the failure of appellee’s wife to join in it?
Appellee had 187 acres of land upon which he had established his home and resided with his family, and was entitled to select no more than 160 acres of it as a homestead. He could select his homestead without .the consent or concurrence of his wife, and, having laid off and platted 20 acres of his farm as lots and blocks with .the intention of selling it as town lots and having sold some of them with reference to the plat dedicating the streets, filed and recorded as the law requires, he thereby excluded same from his right to select it as a homestead, and was thereafter limited to the lands not platted and sold to others -and the 167 acres remaining which was more than he could claim in any event. It may be that three storehouses, a depot, law office and two residences with no incorporation would not constitute this platted land a town or village within the meaning of the Constitution limiting a homestead in a town or village to one acre and preclude the appellee, if he resides within its boundaries, from claiming more than that as a homestead, but that question is not before the court as it was in the case of Clements v. Crawford Co. Bank, 64 Ark. 7.
It is contended, however, that the contract of sale was executed before the land was platted, but the first agreement at most was but one to sell while there was in fact a sale made on August 10, 1910, after the town was platted and the block of land sold was described in accordance with the said plat. If the first agreement was void because of the failure of his wife to join in it, it was only executory, and would not have prevented appellee from making the sale 'he did make on the date after the filing of the plat nor from his allowance of credit as part of the purchase price the money he had already received on the void contract conceding it to be so. We hold that his sale of said block of land on August 10 was a sale of that date which he could make, and his receipt, showing payment of all the purchase money and the description of the land sold, was evidence of a binding contract of which appellant can have and is entitled to specific performance.
The decree is reversed, and this cause remanded with directions to enter a decree in accordance with this opinion. | [
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Wood, J.,
(after stating the facts). 1. “According to the matrimonial law of England,” says Lord Penzance, “nothing will justify a man in refusing to receive his wife except the commission of some distinct matrimonial offense, such as adultery or cruelty, upon which the court could found a decree of judicial separation.” Yeatman v. Yeatman, Law Rep. 1 P. & M. 489, 491; 1 Bish. Mar. Div. & Sep. § 1752. As observed by Mr. Bishop: “If this rule of decision was sound in England at a time when judicial separations were allowed only for adultery and cruelty, much more should it be received as such in this country where the causes of separation and divorce are more extended.” See note to § 1752, supra.
If the parties to a marriage contract were allowed to renounce the ties of wedlock, and to abandon the duties and obligations of the conjugal relation for any cause that seemed reasonable and just to them, or for any cause other than the legal cause for divorce, then indeed would such contract have but little binding force and the sanctity of the marital state would be destroyed. Suits for divorce, already far too numerous, would overwhelm the courts of chancery. I-Ience “the interests of society, the happiness of the parties, and the welfare of families demand the rule,” supra, that there shall be no abandonment of the matrimonial relation except for such causes as would constitute grounds for divorce. 1 Bishop, Mar. Div. & Sep. § 1753-
2. To justify appellant in his desertion of appellee, which he admits, it devolved upon him to prove that appellee had been guilty of adultery. The evidence he adduces for that purpose is entirely insufficient. Appellant admits that he had the most perfect confidence in his wife up to the time that his nephew told him that Johnson said “he had had a time with her.” This information alone, it appears, caused him to think that Johnson had been having intercourse with his wife. Whereupon he ordered Johnson to leave, and had a “row with her about it.” “She did not deny it,” he says; “but went off and spent two or three days and came back.” He “was not sure at that time whether Johnson’s statement was true or false.” He “was not fully satisfied of her guilt, and hence did not leave her, until December io, 1908, when he was told, by one who says he saw her, of her having intercourse with Johnson. We quite agree with the counsel for appellee in his analysis of the testimony and his conclusion that it is wholly unworthy of belief. It is unreasonable to believe, if Johnson had really been having intercourse with appellant’s wife, that he would have communicated such fact to the nephews of appellant. It is uni easonable to believe that Johnson and Mrs. Warfield were having sexual intercourse at the place, and especially in the posture, described by Emmet Warfield. If Johnson was in unholy liason with the wife of appellant, it was most unnatural and unnecessary, as counsel suggest, that they should have been “indulging in sexual felicities standing up in the corner of the kitchen close to the window face to face,” when there were two bed rooms close at hand, and when appellant was absent at Helena, and there was nothing in the surroundings to interrupt the freedom of their illicit commerce in its most “desirable and natural way.” Nor is it believable that witness Emmet Warfield could have approached, as he said he did, “walking with ordinary shoes over a wooden floor for a distance of 20 feet and not on tiptoe to catch any one,” without giving warning. And, if warned, it is utterly unreasonable to believe that human beings would have continued their indulgence, like brutes, oblivious to detection. On the contrary, if appellee and Johnson could have engaged in .the act in manner and form as described by the witness, then we have no doubt but that at the sound of the first footfall they summarily would have ended the performance and escaped observation.
Our conclusion therefore of the whole matter of fact is that the testimony of these nephews of appellant is a pure fabrication. For 18 years appellee as the wife of appellant not only faithfully performed her customary household duties, but in addition worked by appellant’s side in the field. By their combined industry and frugality they had amassed a small fortune. During all these years her demeanor as the consort of appellant was so exemplary that close neighbors could not detect any impropriety therein, and they unhesitatingly pronounced her a “good wife,” and say that she gave appellant “no cause for treating her as he did,” and that “they would have known it if she had given him such cause.”
Appellant himself concedes that he had no suspicion of infidelity on her part until he received the alleged information thereof through his nephews. Appellant accepted this accusation as true, forgetting that ofttimes “virtue itself ’scapes not calumnious strokes,” and immediately proceeded to “raise a row with her” whom he had plighted to love and cherish. For two years thereafter appellant continued to cohabit with appellee as his wife, and the record discovers no disloyalty on her part towards him. But, upon being told again that appellee had committed adultery two years previous, he forthwith abandons her. As we have endeavored to show, the story then told appellant was so shockingly unnatural in its details as on its face to bear the evidences of its falsehood. Appellant never even investigated to determine whether the accusation was true. His failure to do so, and his abandonment of appellee under such circumstances, was wholly unjustifiable, and therefore wilful. His conduct in so doing can only be explained upon the theory that he was so completely dominated by the “green-eyed monster” as to be incapable of exercising his reasoning faculties. To conclude that appellee was unfaithful to her marriage vow from the testimony in this record would do her a gross injustice. But, even if there were room for some doubt upon this proposition, we should still regard the judgment of the learned chancellor as strongty persuasive, and feel it our duty to affirm it.
3. The present case is that of a divorce a vinculo matrimonii. The marital bonds are completely severed by the decree. The husband was living when the decree was entered. Hence no question of dower intervenes here, and Johnson v. Bates, 82 Ark. 284, has no application. Appellee takes the property awarded her in pursuance of the very terms of the statute. Sec. 2684, Kirby’s Digest.
The judgment is affirmed. | [
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Hart, J.
On the first day of April, 1907, the Consumers Ice Company, a domestic corporation, by a contract in writing leased its ice plant to the Little Bock Ice Company, also a domestic corporation, for the term of ten years, at an annual rental of $2,500 per year, payable in advance. Notes were executed for the rent and this suit was instituted by the plaintiff, the Consumers Ice Company, against the defendant, the Little Rock Ice Company, to recover on the note for rent which matured on the first day of March, 1913.
The defendant answered and denied any liability on the note and averred that it had performed all of its undertakings. It alleged that the three boilers of the ice plant became so worn in 1911 that it became dangerous to use them and that they abandoned the ice plant because the plaintiff refused to replace or repair them. The defendant also alleged that the plaintiff had procured the execution of the lease by fraudulent representations.
On motion the cause was transferred to the chancery court, and, upon the hearing, the chancellor rendered judgment in favor of the plaintiff for the rent note sued on and dismissed the cross complaint of the defendant for want of equity. The defendant has appealed. The facts are substantially as follows:
In 1902 F. L. Riggs came to Little Rock and purchased a site for an ice plant. After the ice plant was erected the plaintiff corporation was organized and Riggs became its manager. At that time the defendant •corporation was engaged in operating an ice plant about two blocks away from the site of the plaintiff’s plant. Both plants continued in operation until the spring of 1907 at which time, by a contract in writing, the plaintiff leased to the defendant its ice plant in the city of Little Rock for the term of ten years at an annual rental of $2,500, payable in advance. The lease did not contain any covenant requiring the lessor to make repairs, but did contain the following covenant:
“In the event of loss by fire or boiler explosion, the lessor shall elect within a reasonable time, whether to repair damages, or cancel lease, and return notes for rent due, but rent shall continue until such election, and in event of election to rebuild, there shall be no rebate of any part of rent herein provided. Said repairs are to be executed in a reasonable .time.
“And, in event the lessor elects to rebuild the plant, it shall be put in as good condition and have .as much producing capacity as at time of fire or explosion.”
In the negotiation for the lease, H. C. Daniels, president, and L. W. Cherry, treasurer, of the defendant corporation, represented it in making the lease, and F. L. Riggs represented the plaintiff corporation.
According to the testimony of the defendant, when F. L. Riggs first came to Little Rock he went by the name of F. Leonard. Afterwards Cherry learned that his real name was Riggs and his proper name was then assumed by him. Cherry and Daniels said that Riggs represented to them that the ice plant was capable of manufacturing forty tons of ice per day and that its boilers and other machinery were in good condition; that they began the operation of the plant as soon as they leased it and continued to operate until the year 1911, when the boilers became so thin and so badly worn out that it was dangerous to use them; that they notified the plaintiff to replace or repair them and that upon its failure to do so they would surrender the leased premises; that the plaintiff failed to repair the boilers; and that they abandoned the leased premises.
By other testimony it was shown that the usual life of a boiler in the city of Little Rock, with good care and attention, would be from twelve to eighteen or twenty years; that-the boilers in question were used in a careful and skillful manner; and that, notwithstanding this, in 1910 they became badly worn and in 1911, by reason of decay, were totally unfit for use in the ice plant. During that year an inspection was made of them by the inspectors of the Hartford Steam Boiler Insurance Company and the inspectors reported that they were badly worn, contained patches in many places, were unfit for use in the ice plant, and were likely to explode at any time.
Other witnesses for the defendant testified that for a while -after the premises were leased by the defendant thirty-eight tons of ice per day were manufactured, but that, by reason of the wearing of the boilers, the plant for two or three years was incapable of manufacturing that amount of ice.
On the other hand, it was 'Shown by the plaintiff that an inspection of the boilers had been made by it a short time before the lease was executed; that this inspection was made by the inspectors of the Hartford Steam Boiler Inspection and Insurance Company and that the inspectors reported that the boilers were then in good condition. It is shown by the witnesses for both parties that the inspectors of this insurance company were skillful and reliable men and that the report of an inspection made by them would be considered as reliable.
Riggs testified that when he came to Little Rock he went under the name of Leonard because Mr. Cherry knew that his father had been engaged in the ice business a.t other places and that he was afraid that if he made his identity known Cherry, on account of his influence, might throw obstacles in the way of establishing another ice plant in the city of Little Rock. He said that he did not refuse permission to the officers of the defendant corporation to examine the ice plant before the lease was executed; that its ice plant was situated about two blocks away and that he supposed the officers knew as much about the condition of the plant as he did.
On the other hand, Mr. Daniels stated that for several days prior to the execution of the lease, he spoke of making an examination of the plant, but that Mr. Riggs always had an engagement that prevented him from accompanying him. He states, however, that Mr. Riggs did not refuse him permission to examine the plant before the lease was executed.
Riggs also said that the plant was capable of manufacturing forty tons of ice per day at the time .the lease was executed and that he, as its manager, had been manufacturing that amount of ice during the preceding year.
As we have .already seen, there was no express covenant in the lease that the plaintiff was to repair the leased premises or to replace ¡any machinery that might become worn out during the term of the lease. In the ease of Delaney v. Jackson, 95 Ark. 131, the court held that unless a landlord agrees with his tenant to repair leased premises he can not, in the absence of a statute, be compelled to do so.
It is the settled rule of 'the common tew that there is no implied covenant by the lessor that the leased premises are in good repair or fit for the intended use, nor that the premises shall continue to be suitable for the lessee’s use or business. 24 Cyc. 1048; Horton v. Early, 47 L. R. A. (N. S.) 314, and eases cited. Clifton v. Montague, 33 L. R. A. 449, and note.
In the ease of Viterbo v. Friedlander, 120 U. S. 707, the court said that the common law regards a lease for years as an estate for years, which the lessee takes a title in to pay the stipulated rent for, notwithstanding any injury by flood, fire, or external violence.
In 24 Cyc. 1047, it is said: “It may be broadly stated that in the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, the rule of caveat emptor applies, since there is no implied warranty on the part of the landlord that the premises are tenantable, or even reasonably suitable for occupation. ’ ’
In other words, in /the absence of fraud or concealment, the tenant leases at his peril and the rule in the nature of caveat emptor throws upon the lessee the responsibility of examining the demised premises for defects and providing against their consequences, before he enters into the lease. Watson v. Almirall, 61 N. Y. App. Div. 429, 70 N. Y. Supp. 662.
This rule was applied in Foster v. Peyser, 9 Cush. (Mass.) 247, 57 Am. Dec. 43. In that case the contention was that a drain made a house so uninhabitable that the lessee abandoned it. This fact was held not to discharge him from the payment of the rent afterwards accruing.
In the application of this principle it follows that the lessee can not abandon the premises because of defects which were discoverable by a reasonably careful examination.
It will be noted that tbe lease contained a provision that in event of loss by fire or boiler explosion the lessor should elect within a reasonable time whether he would repair the damage or cancel the lease. The testimony shows that in 1911 the boilers became so thin by reason of decay that they were likely to explode at any time and that it was very dangerous to use them. The lessees notified the lessor of this fact and the lessor failed to repair or replace the boilers. It is contended by counsel for the defendant that because the boilers became so worn that they were likely to explode at any time that the lessor was bound to repair or replace them under the clause of the lease requiring him to repair damages from a boiler explosion; in other words, they claim that when the boilers became so thin' that they were likely to explode by being used, that this was equivalent to an actual explosion. We do not agree with them in this contention.
In the case of Kirby v. Wylie, 108 Md. 501, 21 L. R. A. (N. S.) 129, the court held that the destruction of a’ building by gradual decay from natural causes is not an act of God, or damage by the elements within the meaning of a provision in a lease requiring the landlord to replace in case the building is destroyed by such an act.
In the case of Harris v. Corlies (Minn.) 2 L. R. A. 349, the lease contained a provision that if at any time during the term, the premises should be rendered partially untenantable by fire or the elements, that the landlord should repair them within a reasonable time. The premises, by reason of water percolating from springs through the walls of the basement, became so unhealthy as to be untenantable and the court held 'that the landlord was not bound to repair under the covenant. Mr. Justice Mitchell, who delivered the opinion of the court, said: “Every case of damage to or destruction of human structures, not caused by animal force, may, in one sense, be said to be caused by the elements, as, for example, ordinary gradual decay. ■ But it would hardly be claimed that such a case would be within the meaning of the provisions of the lease. Or, suppose because of the manner of its construction it should have proved, when winter arrived, that the basement was untenantable because of the cold, it would scarcely be urged that this came within the terms of the lease. We think that the language of the lease refers only to some sudden, unusual or unexpected action of the elements occurring during the term, such as floods, tornadoes or the like, extraordinary disasters not anticipated by either party, the efficient cause of which originated after the term began, and which either destroyed the building or left it in a materially and essentially worse condition than it was in when leased. We think this is substantially the sense in which such expressions in leases have always been used and in which they would now be ordinarily understood by business men in executing such contracts. ’ ’
In the case of Bigelow v. Collamore, 5 Cush. (Mass) 226, the facts were that a mill was leased for a term of years and the wheels became so rotten, out of repair and worn out as to be almost worthless. The lease contained a clause that in case the premises or any part thereof should, during the term, be destroyed or damaged by fire or other unavoidable casualty, so that the same should thereby be rendered unfit for use, then there should be a proportionate abatement of the rent until the premises should have been put in proper condition for use by the lessor. The court held, in effect, that if the water wheel of a mill which is the subject of a lease, breaks down by age, decay or want of repair, this is not an unavoidable casualty and the lessee continues liable for the rent.
Explosion means a sudden bursting or breaking up from an internal force. The explosion of a boiler has been defined to be “the bursting of a boiler, the shattering of a boiler by a sudden and unusual pressure in distinction from rupture.” Louisville Underwriters v. Durland, 123 Ind. 544, 7 L. R. A. 399.
It will be seen that in the lease under consideration the provision is that in event of loss by fire or boiler explosion the lessor shall within a reasonable time make repairs. Looking at the connection in which 'the word explosion stands, it clearly refers to damage done to the boiler by a sudden bursting of it which could not be reasonably foreseen by human agencies, and does not signify a mere want of repair or natural decay or wearing out arising from lapse of time or improper use of the boilers.
In the case of Delaney v. Jackson, supra, the court ¡held that in order to vitiate a lease contract on the ground of fraudulent misrepresentations, such misrepresentations must relate to a matter material to the contract and in regard to which the other party had a right to rely -and did rely to his injury. The court further held that if the means of information as to the subject of the representation is equally accessible to both parties, they will be presumed to have informed themselves; and if they have not done so they must abide the consequences of their carelessness.
The witnesses for both parties admitted that ■ the inspectors of the insurance company which inspected the boilers 'in 1907, just before the lease was executed, . were competent and reliable men; It was conceded that whatever report they might 'make would be regarded as representing the true state, of facts. The inspection made at that time shows that the boilers were in good condition. The testimony .also shows that it was necessary to go into the boilers and make a careful examination of them before their true condition could be ascertained and that the inspectors did this and reported them to be in good condition. Therefore, it can not be said that Riggs made any false representations as to the condition of the boilers.
There was no fraud by concealment because Riggs did not refuse permission to the officers of the defendant corporation to examine the boilers.
The defendant corporation was engaged in the ice business about two blocks away, and had been prior to the time the plaintiff corporation erected its plant. Riggs was under the belief that the officers of the de fendant corporation knew, in a general way, the capacity of the plant. For at least a part of the time prior to the execution of the lease, while both corporations were engaged in manufacturing ice, by agreement each delivered the ice manufactured by it to a selling agent and from this fact, and from the proximity of the ice plants, Riggs might well assume that the officers of the defendant corporation knew in a g-eneral way the capacity of the plaintiff’s plant. Besides, Riggs testified that at the time the lease was executed the plant was capable of manufacturing forty tons of ice per day, and, as a matter of fact, the defendant corporation did manufacture nearly that amount after it took charge of the plant under its lease. The loss in capacity of the plant arose from the fact that the boilers, through decay and old age, became worn out. As we have already seen, the lessee having failed to provide against such a contingency, must suffer the consequences of its neglect and is liable for the rent accruing after the boilers became worn to such an extent that it was dangerous to use them.
The decree will, therefore, be affirmed. | [
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McCulloch, C. J.
This is an action instituted in the circuit court of Randolph. County by the plaintiffs, Spinnenweber & Peters, against the defendants, W. A. Smith and J. B. Smith, as copartners under the firm name of W. A. Smith & Bro., to recover the sum of $150 alleged to be due on account for rent of a farm and the price of timber sold. A garnishment was sued out at the commencement of the action against E. -N. Ellis and A. H. Fredricks as garnishees and interrogatories were filed against them, to which they made response. One of the defendants, J. B. Smith, was served with process, and the action proceeded to final judgment-against him, but there was no service, either actual or constructive, against W. A. Smith, the other defendant. Defendant J. B. Smith filed an answer denying that he was a mem her of the firm of W. A. Smith & Bro. or that he was indebted, to the plaintiffs in any sum. There was a separate trial of the issue between the plaintiffs and J.- B. Smith which resulted in a verdict and judgment in favor of the plaintiffs for the amount of their claim.
E. N. Ellis, one of the garnishees, filed a separate response and intervention, in which it appears that the other garnishee, Fredricks, executed a negotiable promissory note to W. A. Smith & Bro. for the sum of $150, that the same had been transferred by a proper indorsement on the note to garnishee Ellis, and that he is now the holder of the same for a valuable consideration. The said garnishee contends that the note was transferred to him before maturity for a valuable consideration, but the note was overdue and unpaid in his hands at the time of the trial below. There was a trial of the issue between the plaintiff and the garnishees before a jury and the verdict was in favor of the plaintiffs against both the garnishees in the sum of $100. The court thereupon rendered judgment against both garnishees for the sum named in the verdict. Garnishee Ellis alone has appealed.
It is insisted in the first place that final judgment should not have been rendered against the garnishees until judgment was rendered against the defendants, and we are of the opinion that this contention is well founded. There was a judgment against J. B. Smith, one of the defendants, but in his answer he disclaimed any interest in the partnership assets; and even though the jury decided against,him as to liability for plaintiffs’ debt, it does not follow that this obviated the necessity of bringing in, by proper process, the other defendant, who confessedly is a member of the firm and interested in the note, if the assignment to garnishee Ellis is not valid. At any rate, it was improper to proceed with the trial of the rights of the garnishee without bringing in W. A. Smith, one of the original debtors, as he was a party in interest and is not bound by the judgment of the court rendered against the garnishees. He was an indispensable party, in other words, and no final judgment could be rendered .without his presence in the action. The proof tended to show that he was a fugitive from justice and is now in the State of Mississippi, but he could have been brought in by publication of a warning order, the court having acquired jurisdiction of the property by service on the garnishee.
This court decided in Norman v. Poole, 70 Ark. 127, that under the garnishment statute now in force it is indispensable that final judgment be rendered against the principal debtor before there can foe any final judgment against the garnishee. Judge , Riddick, speaking for the court in that case, said: ‘‘ The proceeding against the garnishee is ancillary to that against the defendant. A.s the object of the garnishment is to reach money or property in the possession of the garnishee, and subject it to the payment of the judgment which the plaintiff may recover against the defendant, it follows that there can be no lawful judgment against the garnishee until after the judgment has been recovered against the defendant. ’ ’
It is not too'late for said defendant W. A. Smith to be brought in and it can foe done after the cause is remanded to the circuit court, as the ease is still pending and the garnishee is not entitled to an absolute discharge pending the process to bring in the other defendant.
Inasmuch as there may be another trial of the case, we deem it proper to notice some of the other assignments so that the court may have some guide for the trial of the case when the record is complete.
In the first place, the question is not free from doubt as to whether a negotiable promissory note can be reached by a garnishment and the maker required to respond. There is some conflict in the authorities on this question, but it seems to be settled by the weight of authority that an overdue, negotiable, promissory .note still in the hands of the payee, is subject to garnishment. Rood on Garnishments, § § 133-134 Our statute recognizes this by providing for a garnishment to reach “goods, chattels, moneys, credits and effects” in the hands or possession of the garnishee belonging to the defendant. The right seems also to be recognized by a decision of this court in Cross v. Haldeman, 15 Art. 200, where it is said that ‘ ‘ a garnishee, answering and admitting his indebtedness, as the maker of negotiable paper, without reserve or qualification, does so at his peril,” and may be held liable under the garnishment.
The note bears the written assignment of "W. A. Smith & Bro. and it remains now unpaid in the hands of garnishee Ellis. There is an issue presented in the case whether Ellis is a bona fide holder of the note or whether it was transferred to him in fraud of the creditors. The plaintiffs are entitled to a trial of that issue; and, as the maker of the note as well as the holder is a party garnishee, if it be found that the assignment is colorable and made for the purpose of defrauding creditors, the plaintiffs are entitled to reach the funds by the process of garnishment. It was error, however, to render judgmen against Ellis for the recovery of the money. The judgment could have been only against Fredricks, the maker of the note.
The court gave the following instructions, over the objections of the garnishee:
“1. You are instructed that, if you find, from the evidence that the note garnisheed was the property of W. A. Smith & Bro., and that same was assigned by W. A. Smith to E. N. Ellis for the payment of the individual debt of the said W. A. Smith, and that J. B. Smith, the other partner, did not consent thereto, you will find for the plaintiffs.”
“2. If you find from a preponderance of the testimony, that a part of the note was assigned for professional services for the benefit of the firm of W. A. Smith & Bro., and a part of it for for the individual benefit of W. A. Smith, then you should find for the plaintiffs against the defendant for such part of the note as was for the individual service for W. A. Smith, and your verdict for the balance of said note, should be for the defendant. ’ ’
These two instructions were both erroneous; the second one because it ignored entirely the question of the consent of -the other partner to the transfer; and the first one for submitting that question at all, inasmuch as the undisputed evidence was that W. A. Smith was authorized to assign the note. This court has steadily adhered to the rule that, partnership property may, by consent of the partners, be appropriated to individual indebtedness; and where property has been so transferred, the equity of the partnership creditors is lost. Boyd v. Arnold, 103 Ark. 105. Now, the record in this case shows beyond dispute that the assignment of this note to the garnishees was made 'by W. A. Smith in the name of the partnership; and even if it was for an individual indebtedness, it was not without the consent of any one else interested. In fact, the other defendant in the case expressly denied that he was a member of the partnership and there was therefore no reason for submitting the issue to the jury whether consent had been given 'by the copartner of W. A. Smith. It was erroneous to give any instructions to the jury on that subject, and the issues should have been narrowed to the single one concerning the bona fides of the transfer, as that was the only disputed question in the case. There was, we think, enough dispute on that issue to warrant a submission to-the jury. Garnishee Ellis testified that the note was assigned to him by W. A. Smith upon a certain consideration, but the plaintiffs proved a prior conflicting statement which would warrant the jury in rejecting his present statement if they believed it to be untrue;
The judgment is reversed, and the cause remanded for further procedings not inconsistent with this opinion. | [
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Kirby, J.,
(after stating the facts). The original complaints of the Benton County Lumber Company, the Builders’ Supply Company and C. O. 'Mitchell, were filed May 31,1911, and thé affidavits filed in the clerk’s office claiming liens stated that the materials furnished were sold to the administrator after the death of the intestate. Notice of claim of lien by the Benton County Lumber Company was given to the administrator on the 26th day of May, 1910, and the account and lien claim were filed with the circuit clerk on the 8th of June, 1910. Notice of claim of lien of the Builders’ Supply Company was given the administrator on the 6th day of May, 1910, and their account for the amount claimed due was filed with the circuit clerk of Benton County on the 27th of May, 1910. The notice was given the administrator in the C. O. Mitchell case on the same day, and the lien claim filed with the clerk of the circuit court on the same day as in the Benton County Lumber Company case.
Liens of mechanics and material men for work done or materials furnished in the 'construction of an improvement are creatures of the statute, and must be perfected and enforced according to its provisions. The work must be done or the materials furnished “under or by virtue of a contract with the owner or proprietor of the building or improvement or his agent, trustee, contractor or subcontractor,” and every person except the original contractor, who would avail himself of the benefit of the mechanics’ lien act, is required to give ten days’ notice before the filing of the lien “to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.” A just and true account of the amount claimed, containing a description of the property to be charged with the lien, is required to be filed with the'clerk of the circuit court of the county in which the improvement is situated within ninety days after the work has been done or the materials furnished, and all actions to enforce the liens must 'be commenced within fifteen months after the date of their filing with the circuit clerk. Kirby’s Digest, § § 4970, 4976, 4981-84.
The administrator of an estate is not the owner or proprietor of the lands of the estate, nor the agent of the heirs within the meaning of the statute relating to mechanics ’ liens. Lands and tenements are only assets in the hands of an administrator for the payment of the debts of the intestate when the personal property of the estate is insufficient to pay the debts. The complaints and the lien claims filed with the circuit clei’k in two of the cases show that the materials for the completion of the improvement were furnished to the administrator after the death of the intestate, and upon contracts made with the administrator and not upon contracts with the intestate.
The evidence is also virtually undisputed that the personal property of the estate was sufficient to pay the debts thereof at the time of the administrator’s appointment, and the order of the probate court was made attempting to authorize 'him to complete the building. Under these conditions, notice to the administrator and the lien claim filed, showing the contract with him for the materials furnished, could not fix a lien against the improvement, and the administrator was without authority to contract and the probate court had no such power to authorize him to complete the building or improvement and purchase materials therefor, for which the furnishers could claim liens upon the improvement. Kirby’s Digest, § 186; Langston v. Canterbury, 73 S. W. 151; Woerner on Administration, § 518; Waldermeyer v. Loebig, 81 S. W. 904; Brackett v. Tillotson, 4 N. H. 208.
There was an attempt by am ended complaint to allege a contract made with the deceased during his lifetime, but the claims for liens filed show that the materials were furnished to his administrator upon a contract with him after the intestate’s death, and after the order of the probate court had been made attempting to authorize him to complete the building. The heirs have the right to the real property of an estate unless and until it is necessary to apply it to the payment of the debts of the intestate, and it is not within the province of the administrator to construct or complete buildings at the expense of the real estate, for which mechanics’ liens can be fixed and enforced against it.
Neither is C. O. Mitchell entitled to a lien against the improvement. The court below found that he did not file his claim and account for a lien with the circuit clerk within ninety days after the work was done and the materials furnished under his contract therefor made with the intestate, and dismissed his complaint without prejudice as to the amount due thereon, and this judgment was not appealed from. It also found that he had contracted with the administrator for and delivered materials to him' which were used in the construction of the building, amounting to $40.60, for which it adjudged him a lien against the improvement. These materials were furnished upon the contract made with the administrator, and a lien was attempted to be fixed against the improvement by filing a claim therefor with the circuit clerk after giving the ten days’ notice of his intention to do so. It falls within the rule already announced and the court erred in its decree.
None of the claimants were entitled to mechanics’ or materialmen’s liens against the improvement, and the court erred in not so holding. The decree is reversed and the cause remanded, with directions to dismiss the complaints for want of equity. | [
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Hart, J.
Nathan Rogers has appealed from the judgment of conviction for the crime of seduction. The prosecuting witness identified a number of letters and postal cards as having been written by the defendant. The letters and postal cards were not identified or proved to be the letters of the defendant by any other witness. They were read in evidence. With reference thereto, the defendant asked the court to instruct the jury as follows:
“9. The jury are instructed that while certain letters and postal cards have been read to you as evidence in this case, yet if you find that the only evidence that these were the letters and postal cards of the defendant is that of the prosecuting witness, Ollie Dugger, and she alone undertakes to identify the same, then said letters and postal cards can not be considered by you as testimony tending to corroborate the prosecuting witness, Ollie Dugger. ”
The court should have given, the instruction. It is well settled that when evidence is admitted for a particular purpose, it is the duty of the court to tell the jury to confine the application of the evidence to such purpose. So in the case before us the letters and postal cards were not identified or proved to be the letters and postal cards of the defendant by any other witness except the prosecuting witness herself. Hence they were a part of her evidence, and their probative force was due to her testimony. Carrens v. State, 77 Ark. 16.
The instruction, as asked, told the jury that if they should find that the only evidence that the letters and postal cards were written by the defendant was that of the prosecuting witness, and that she alone undertook to identifiy them, the jury could not consider them as testimony tending to corroborate the prosecutrix. Without any instruction from the court explaining that under these circumstances the letters and postal cards of the defendant had no probative force of their own, and could only speak as a part of the evidence of the prosecuting witness herself, their effect upon the jury may have had an illegitimate and undue weight in producing or affecting their verdict. This is conceded by the Attorney General, but he claims that the proposition was fully covered by other instructions given by the court. In the instructions referred to, the jury were told that there must be such cor roborating evidence in the case, outside of the prosecuting witness, as tends to connect the witness with the crime charged. And again the court said:
“It (referring to the corroboration required) must be of such a nature and character, independent of the prosecuting witness, as to connect the defendant, or tend in some degree to connect him with the crime. * * * In determining that question, you will not consider the testimony of the prosecuting witness, together with the other circumstances. You take the circumstances independent of her testimony here, and find it from the legal evidence in the case.”
It will be observed, however, that in these instructions the court does not explain that the letters and postal cards, if identified and proved by the prosecutrix alone, could only be considered by the jury as a part of her testimony, and did not explain to the jury that the letters and postal cards had no probative force independent of her testimony. Therefore we are of the opinion that the court erred in refusing to give instruction No. 9 as asked by the defendant. Thomas v. State, 72 Ark. 582.
"We do not deem it necessary to set out the testimony in detail. It is sufficient that it was sufficient to warrant the verdict of the jury.
For the error indicated, the judgment will be reversed, and (he cause remanded for a new trial. | [
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Frauenthal, J.
This was an action instituted by W. A. Worthington, the plaintiff below, to recover damages for injuries which he alleged he received while attempting to alight as a passenger from one of defendant’s trains. On November 25,1910, the plaintiff became a passenger on one of defendant’s local freight trains from Mena to Cove. It appears that Cove was a station on defendant's railroad, and that defendant carried passengers on its local freight trains and stopped such trains at said station when having passengers for that place. Upon entering the caboose of the train at Mena, the plaintiff notified the conductor that he desired to be carried to Cove and paid his fare to that station. Before arriving at that station, one of the brakemen went to the engineer and notified him that they had a passenger for Cove, and to stop the train there.
Plaintiff was a resident of Cove, and was well acquainted with the location of the depot platform and the general condition of the track at that place. When the train approached Cove, its speed was slackened until it was going at the rate of probably from three to four miles per hour as it passed the depot platform. In the meanwhile, as the train approached the platform, the plaintiff left his seat and went to the rear of the caboose preparatory to leaving the car. The- train did not stop at the depot platform, but was going slowly past it, and the plaintiff, fearing that it would not stop but would carry him past his destination, attempted to alight from the train, and in doing so was thrown to the ground with such force that he was severely and painfully injured.
The testimony tended to prove that, as the train was passing the depot platform, it was going at such a slow rate of speed that one might have left it with safety. All of the employees of the defendant upon the train testified to this. One of the brakemen was asked: “Q. The train was going sufficiently slow for a man to get off without injury? A. Yes, sir; I have got off lots of times that slow.”
The testimony tended further to prove that just about or after the train had passed the platform, the conductor looked for the plaintiff, and, not seeing him, and observing that the train had passed the depot platform so slowly, he thought that he had alighted from the caboose in safety, and thereupon he gave a signal to the engineer not- to stop but to go on, and the train increased its speed, and it did not stop at all. The evidence shows that it was dark when the plaintiff attempted to alight from the train; but it also shows that the plaintiff was well acquainted with the platform and surrounding conditions at that place, that he was active in his movements, and was accustomed to alight from trains.
Upon the trial of the case, a verdict was returned in favor of plaintiff, and the railway company has appealed.
It is contended by counsel for defendant that, according to the testimony most favorable to the cause of plaintiff, the court should have directed a verdict against his right to recover. It is urged that the defendant under this testimony was not liable for plaintiff’s injury, because the failure to stop the train at the station was not the proximate cause thereof, which it is claimed was solely the result of his leaving the train while it was in motion. It is also urged that according to the testimony the plaintiff was guilty of contributory negligence in going to the steps of the caboose and attempting to alight therefrom while the train was in motion, or that he thereby voluntarily assumed the risk of any injury resulting therefrom.
It is well settled, we think, that it is the duty of.a railroad company as a carrier of passengers to stop its trains at a station which by its regulations it has designated as a place for stopping, and to there remain for a sufficient time to permit its passengers, in the exercise of ordinary diligence and care, to safely leave its trains. The passenger must not only be carried properly and safely, but he must be carried to the end of his journey for which he has paid his fare, and he must be put down at the usual stopping place at the end of such journey. Unless the proof shows that, according to the regulations of the company, or a custom in handling trains, a distinction is made between trains exclusively employed in carrying passengers, and those engaged in carrying freight and passengers, it is the duty of a railroad company to transport the passenger on either kind of train to the usual stopping place and there stop its trains and permit the passenger to alight therefrom. 2 Hutchinson on Carriers (3 ed.), § 1117.
In the case at bar, there is no evidence that any distinction was made in this regard by any rule, regulation or custom of defendant between the two kinds of trains. The plaintiff had the right to act upon the belief and assumption that the defendant would stop its train at the usual stopping place at Cove, so that he could there alight. When the train slackened its speed and approached the platform slowly, the plaintiff was therefore warranted in the belief that it was about to and would stop there, and was justified in acting upon that belief. It then became a question for the jury to say whether or not the plaintiff acted with ordinary prudence when he left the caboose and proceeded to the steps thereof preparatory to alighting.
It is contended that the plaintiff was guilty of an act of negligence contributing to his injury by going upon the steps of the caboose while the train was still in motion, and before it had actually stopped; and to sustain this contention we are cited to the cases of St. Louis, I. M. & S. Ry. Co. v. Rush, 86 Ark. 325, and Chicago, R. I. & P. Ry. Co. v. Claunts, 99 Ark. 248. But we do not think that the principle advanced in' those cases is -applicable to the facts of this case. . In those cases the train had not stopped at the' station, and the passenger was not notified or informed that the train would stop at the station. On the contrary, the passenger knew that the train would not stop, and took his position upon the steps of the coach without direction from any employee of the carrier, and without any right to believe or assume that the train would stop. In those cases the passenger, while at a place where he had no right to be, and without the knowledge of the carrier’s employees of his position, was thrown from the train by the sudden increase in the movement thereof. It was there held that the train operators had a right to assume that the passenger was in his place in the coach, and could move the train as they saw proper as long as such movement was not calculated to injure passengers who were in such places as would naturally be expected of careful passengers.
In the case at bar, according to the regulations of the defendant, the train should have stopped at this station, and plaintiff had a right to assume, when it slackened its speed and slowly approached the station, that the train would stop at that place. This was the place to which the defendant had agreed to carry him and put him down, and it can not be said as a matter of law, under these circumstances, that the plaintiff was negligent in going to the steps of the caboose preparatory to alighting from the train. At the time he attempted to alight, the train was moving slowly; but it was passing the depot platform and did not stop. Under the circumstances, the jury may well have been warranted in finding that the plaintiff, after he had reached the steps of the caboose, believed, and was justified in believing that the train was not going to stop at the station, but would carry him past his destination. An emergency was thus presented, and a necessity for sudden action placed upon the plaintiff. This was caused by the negligence of the defendant in failing to stop its train at the station. The plaintiff by this act of negligence on the part of the defendant was either required to undergo the inconvenience and annoyance of being carried past'his station if he remained upon the train, or to leave the train while still in motion. If, as a matter of law, he was not guilty of contributory negligence in leaving the moving train under the circumstances of this case, then the injury .which he sustained was due to the sole negligence of the defendant in failing to stop its train, which was the proximate cause thereof. The immediate efficient cause of the plaintiff attempting to leave the train was the omission of the defendant to stop its train and its act in passing the station. This created a situation that necessitated immediate action on plaintiff’s part. The act of plaintiff in alighting from the train was only an incidental cause contributing to the injury, which was induced by the defendant’s negligent failure to stop its train. If in thus acting the plaintiff was negligent, he would then, and only then, be precluded from a recovery because of his contributory negligence. Little Rock & F. S. Ry. Co. v. Atkins, 46 Ark. 423; 3 Hutchinson on Carriers (3 ed.), § 1430; 29 Cyc. 500.
The question as to whether or not a passenger is guilty as a matter of law of contributory negligence, precluding a recovery for an injury sustained by attempting to alight from a train while moving past the station at which it should stop to enable him to alight, has been decided differently by different courts. This court has steadily adhered to the view that the attempt of a passenger to alight from the train while it is passing the place where it should stop to permit him to leave it will not as a matter of law be deemed an act of negligence upon his part unless the attending circumstances show so clearly that he acted recklessly and imprudently that reasonable minds could fairly arrive at no other conclusion. Otherwise, it becomes a question for a jury to determine whether or not such attempt to leave the train while in motion is one of negligence.
In the case of Little Rock & F. S. Ry. Co. v. Atkins, supra, it was held that it was not negligence per se for a passenger to leave a moving train.
In the case of St. Louis, I. M. & S. Ry. Co. v. Cantrell, 37 Ark. 526, this court said: “It may as a general proposition be said that it is imprudent or a want of ordinary care to alight from a train while it is in motion; but whether it was so in a particular case must depend upon the circumstances under which the attempt was made. It would not be so if the train was moving so slowly that no damage could be reasonably apprehended. ”
In the case of Railway Co. v. Tankersly, 54 Ark. 25, the court, speaking through Mr. Justice Hemingway, said: “If it would seem to a person of ordinary prudence and caution to be safe to step off, considering the train’s speed, the situation at the place of alighting, the opportunity to see where the step was made, and the activity of the person making it, and all other circumstances reasonably affecting the safety of the attempt, it could not be deemed negligence in the plaintiff to do it.” Memphis & L. R. Ry. Co. v. Stringfellow, 44 Ark. 322; St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256; St. Louis, I. M. & S. Ry. Co. v. Person, 49 Ark. 184; St. Louis, I. M. & S. Ry. Co. v. Leamons, 82 Ark. 504; St. Louis, I. M. & S. Ry. Co. v. Rush, supra; Chicago, R. I. & P. Ry. Co. v. Claunts, supra; 3 Thompson on Negligence, § 3055; 3 Hutchinson on Carriers (3 ed.), § 1179.
.The failure to stop a train at a station will not justify a passenger in attempting to alight under circumstances which are obviously hazardous. But if the necessity of leaving the train while in motion has been put upon the passenger by the negligence of the carrier in failing to stop its train at the station, then contributory negligence will not be imputed to the passenger from the fact of his attempting to alight from the moving train if under the circumstances of the case such act was not a reckless or imprudent one.
Under the circumstances of this case, we are of the opinion that it was a question for a jury to determine whether or not the plaintiff was guilty of contributory negligence in attempting to leave the train as he did, while it was in motion.
Counsel for appellant have called to our attention a number of assignments of error, which they claim the court made in its rulings upon the instructions. We have examined each of these assignments, and fail to find that any of them is well founded. The instructions which the court gave are in conformity with the above principles which We think are applicable to the facts, and the instructions cover correctly every issue that was involved in a fair determination of the merits of this case. We do not think it would serve any useful purpose to note these assignments in detail. By these instructions, the case was fully submitted to the jury upon the issues (1) as to whether or not the defendant was negligent in failing to stop its train at its station at Cove, and (2) as to whether or not plaintiff was guilty of contributory negligence in going to the steps of the coach and in leaving the train while it was in motion under the circumstances of this case. Upon these issues the jury returned a verdict in favor of the plaintiff, and we are of the opinion that it is sustained by sufficient evidence.
The judgment is accordingly affirmed.
Kirby, J., dissents. | [
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Kirby, J.
Appellant was indicted by the grand jury of Woodruff County, Arkansas, for the crime of murder in the first degree, and upon trial was convicted of voluntary manslaughter, and sentenced to five years’ imprisonment in the penitentiary.
He appealed fi’om the judgment, and complains here that the court erred in overruling his challenge of a certain juror for cause.
None of the testimony heard on the trial is included in the transcript, and the bill of exceptions recites:
“Mr. Marsh, a qualified elector, summoned as a juror on the special venire on his voir dire, in answer to the following questions, made the following answers: Q. By Mr. Daggett: The plea in this case is self-defense. Can you go into the jury box and try this defendant as fairly and impartially, give him the benefit of every reasonable doubt and the presumption of innocence, as you would if he were a white man charged with the same offense? A. I could not. By Mr. Daggett: I submit, your honor, this juror is disqualified. By the Court: Q. If a negro was charged with the murder of a negro, could you go into the jury box and give him as fair and impartial a trial as you would a white man charged with murdering a white man? ■ A. How is that? Q. Could you go into the jury box and give a negro charged with the murder of a negro the same fair and impartial trial as you would a white man charged with killing a white man? A. Yes, I suppose I could. Q. Well, you’ll have to answer, ‘yes’ or ‘no.’ A. Yes.”
The court thereupon declared him a competent juror, over the objection of appellant and he was challenged peremptorily by appellant, who exhausted his peremptory challenges before the jury was completed.
The answer of the juror to the first question was positive and unequivocal, and disclosed a prejudice in his mind that would have prevented his giving the defendant such a fair and impartial trial as the law entitled him to' under such circumstances as were included within the question asked; but, to the question of the court, asking if he could go into the jury box and give a negro, charged with the murder of a negro, the same fair and impartial trial as he would give a white man, charged with killing a white man, he answered, “Yes, I suppose I could,” and then, “Yes,” without qualification. It is manifest from the question of the court that it was applicable to the condition, existing and from the juror’s answers thereto that he could, under such circumstances, give the defendant, a negro, charged with the killing of a negro, the same fair and impartial trial that he could give a white man charged with the murder of a white man.
Although the answer to the first question indicated that such a prejudice existed in the mind of the juror against a negro that he probably would not have been able to give a defendant of the negro race, who is entitled to the same fair and impartial trial as any man, without regard to his race or color, a fair trial, his answers to the other questions disclosed that he could give the defendant, charged with the murder of a man of his own race, the same fair and impartial trial that he could give any defendant under any circumstances, and the court committed no error in denying defendant’s challenge and declaring him competent. Strong v. State, 85 Ark. 539; Hardin v. State, 66 Ark. 59, 60; Maclin v. State, 44 Ark. 115.
The judgment is affirmed. | [
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McCuuuoch, C. J.
Plaintiff embarked at Plummerville, Ark., as a passenger on one of appellant’s trains en route to Bragg, Oklahoma, and had a ticket which entitled her to ride on the train between those stations. According to the allegations of the complaint and testimony which she adduced at the trial, the train auditor wrongfully and forcibly ejected her from the train in the night before she reached her destination and about half a mile from Bluffs, Okla., another station. She testified that the auditor pitched her baggage off, and then, over her protest, seized her under the arms and set her off the train; that she screamed and asked where the depot was, and he replied, as the train moved on, that the depot was about two hundred yards back. She was alone, and her baggage was heavy. She attempted to carry it until she became exhausted, and set it down by the trade, and after search she found a house, and finally flagged a freight train, and was carried to her destination, reaching there about 11 o’clock in the night. In her search for a house at which to stay, and in getting back to the railroad after failing to get a place to stay, she had to. walk across fields, through brush and briars. She testified that she was humiliated and frightened at being put off in a strange place in the night, that she was physically exhausted by the exertion in carrying the heavy baggage, and that her condition became such that she did not sleep for several nights, and was unable to get out of her room for about two weeks.
It is insisted by counsel for defendant that the court erred in giving instructions which permitted plaintiff to recover damages for “humiliation and fright, anxiety and mental distress, which she suffered, if any, by reason of being ejected from said train and left alone,” and that the damages assessed were excessive on account of the jury being allowed to consider those elements. Counsel base their contention on the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42. The doctrine of that case is stated in the following language, and does not reach to this case at all: “We prefer to adhere to the rule, as a sound one, that mental suffering alone, unaccompanied by physical injury or any other element of recoverable damages, can not be made the subject of an independent action for damages, even where the act- or violation of duty complained of was wilfully committed; and that such suffering does not of itself constitute a cause of action, but is merely an aggravation of damages when it naturally ensues from the act complained of.” Here there is an independent cause of action for the wrongful and forcible ejection. Little Rock & F. S. Ry. v. Dean, 43 Ark. 529; Hot Springs Rd. Co. v. Deloney, 65 Ark. 177; Little Rock Ry. & Elec. Co. v. Goerner, 80 Ark. 158; St. Louis S. W. Ry. Co. v. Furlow, 81 Ark. 496; St. Louis, I. M. & S. Ry. Co. v. Baty, 88 Ark. 282.
In St. Louis S. W. Ry. Co. v. Furlow, supra, we said: “The amount of damages for an injury involving humiliation and distress of mind resulting from a wrongful expulsion from a train, accompanied by harsh treatment, is indeterminate, and must be left, to some extent, to the sound discretion of the jury; and unless the assessment is palpably excessive, or so flagrantly unjust as to indicate passion, prejudice or a failure to appreciate the law and facts presented, this court will not disturb it.”
The evidence in the present case warranted a finding that the train auditor ejected plaintiff from the train with full knowledge of the fact that it was not her station, that it was not any station at all, and that there was an element of wilfulness and intentional wrong in his conduct. There is also evidence of physical suffering resulting directly from the wrongful expulsion of plaintiff with her baggage at a lonely place on the railroad where she could not procure shelter. She became physically exhausted in attempting to carry her baggage back to the place where the auditor told her she would find the depot, and in seeking to find a bouse where she could procure shelter and protection for the night. The jury had a right to consider these circumstances, and the mental as well as the physical suffering plaintiff endured, in estimating the amount of her damages.
Counsel for defendant do not argue the question of excessiveness of the damages except in connection with their contention that the court erred in submitting to the jury the element of mental pain and suffering.
The case was submitted- to the jury under proper instructions, and the evidence was sufficient to warrant a finding that the plaintiff was wrongfully ejected from the train without any fault on her part. The judgment is therefore affirmed. | [
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McCulloch, C. J.
Appellee, Mary E. Harrell, is the daughter and only child of Col. John M. Harrell, deceased, of Hot Springs, Arkansas, and she instituted this action in the chancery court of Garland County against appellants, who were grantees of her father, to establish her title to and recover possession of certain real estate situated in that city. She was about 31 years of age when she instituted the action on September 4, 1908, and her father died on July 4, 1907, after having conveyed the property in controversy to. George R. Belding and H. R. Morrison, who, in turn, conveyed it to one Shevlin, who conveyed to appellants, Sam J. Davis and wife. Col. Harrell purchased the property from one Carter Brutus in the year 1878, when appellee was an infant of tender years, and, as a gift or advancement to his daughter, he caused the conveyance to be made to her by Brutus. He built on the lot a large and comfortable residence, with outhouses, out of his own means, and he and his wife and child occupied it as a home. Carter Brutus occupied the lot, or a portion of it, at the time of his said conveyance to appellee, but the title was in the United States, and was subsequently patented to him by the Government on May 10, 1882. In December, 1884, Brutus executed another conveyance to one Mary Goff, who a few days later reconveyed to Amelia Brutus. An estrangement grew up between Col. Harrell and his wife, appellee’s mother, which resulted in a separation. Mrs. Harrell left home in the year 1888, and went to the State of Tennessee, taking the child with her, and they never returned. Col. Harrell continued to occupy the property as a place of residence until he sold it to Belding and Morrison in the year 1903. Mrs. Harrell obtained in the courts of Tennessee a decree of divorce, and in 1892 marriéd one J. H. Thompson. Col. Harrell also obtained a decree of divorce in the chancery court of Garland County about the time of his wife’s intermarriage with Thompson. The estrangement between Col. Harrell and his wife and daughter was complete.' He did not communicate with either of them after Mrs. Harrell’s intermarriage with Thompson, and never thereafter contributed anything to their support. The last .communication shown positively by the record was a letter from him to appellee dated January 30, 1891, in 'which he enclosed a remittance of $35 to pay for her board. This letter disclosed the strained relations between father and ' daughter, though she was only 14 years of age at that time. She testifies that she wrote to him after that time, but received no response, and that she never thereafter saw him or heard from him. She testified that she resented her father’s attitude of hostility toward her mother, and lost all affection for him. 'She took the name of Thompson, and bore that name ever afterwards, which, of course, incensed her father very greatly, and added fuel to the flame of his indignation. Before that time Mrs. Harrell had caused a slight change to be made in appellee’s name at her christening from what Col. Harrell had intended it to be, and he seems to have laid considerable stress upon this wrong which he conceived had been done him. Shortly after the separation, Col. Harrell’s maiden sister, Mary E. Harrell, came to' live with him as his companion and housekeeper, and they resided together at the dwelling house on the property in controversy until Miss Harrell’s death in April, 1901. On March 8, 1892, Amelia Brutus, the wife of Cárter Brutus, executed to Mary E. Harrell, Col. Harrell’s sister, a deed purporting to convey to her the property in controversy. This conveyance was properly placed of record, and from that time up to her death Miss Harrell claimed the property as her own. It was assessed and insured in her name, and listed in her name for sale with real estate men. Miss Harrell died.intestate, leaving Col. Harrell and another sister, Mrs. Ellen H. Cantrell, as her only heirs at law, and Mrs. Cantrell shortly after Miss Harrell’s death, executed to Col. Harrell a deed conveying all her interest in the property. The testimony shows conclusively that Col. Harrell never treated the property as his daughter’s after she and her mother left him. On the contrary, he treated it as his sister’s property up to the time of her death and as his own after that time. He mortgaged it for $2,100 borrowed money, and improved it by building thereon several cottages for rent. In September, 1901, after the death of his sister and the execution of the deed to him by his other sister, Mrs. Cantrell, he filed a complaint in the chancery court of Garland County, under the act of March 28, 1899, to confirm and quiet his title to the property, claiming title thereto under the conveyance to his sister by Amelia Brutus and also claiming title thereto by adverse possession for the statutory period of seven years. He set forth in his complaint the history of the conveyance by Carter Brutus to his daughter, and also that it was intended by him as an advancement to his daughter, but that she had completely abandoned him and disowned him as her father, and had taken another name, and he asserted the right to revoke the advancement. He named her as a defendant in the action, and asked that her title be divested. Notice of the pendency of the proceeding was duly published in accordance with the provisions ■of said statute. That proceeding resulted in a decree in accordance with the prayer of said petition, confirming and quieting the title of the petitioner. Appellants filed separate answers, setting forth the facts hereinbefore recited, and pleading that they are innocent purchasers of said land for value without notice of appellee’s claim, that she is barred by her laches from asserting any claim to the property, that she is also barred by the seven years’ statute of limitations, and that the decree of the chancery court in the confirmation suit of Col. Harrell was a final adjudication which barred appellee’s right to recover. They also filed a plea to the jurisdiction of the chancery court in this action, which was overruled.
The court, on final hearing of the cause, rendered a decree in favor of appellee, establishing her title to the property, and awarding possession thereof except as to certain portions which did not fall within the description in the deed from Carter Brutus to her.
We shall discuss only the plea of laches, for we are of the opinion that that plea is conclusive in this ease. Appellee is barred by her own laches from asserting her claim against appellants, who purchased the property for a valuable consideration, without any actual knowledge of her rights. She had been absent for twenty years, of which thirteen years accrued after she attained her majority, without asserting any claim to the property, though she knew that it belonged to her, and that her right of action to recover the same was complete. During all that time her father was in possession, using it and openly and notoriously claiming it as the property of his sister, and, after the latter’s death, as his own. She knew this, or, at any rate, she had every reason to believe it. She says she heard about his building cottages on the lot for rent She admits that she and her mother employed attorneys in Nashville, Tennessee, many years ago to investigate the record in Garland County to procure evidence of her title to the property in controversy. There was a complete and final separation of father and daughter. She had abandoned him for good, and knew that he had renounced her as his daughter. The attitude of each towards each other was one of the utmost hostility, and they made no further claim to each other’s affection. She states in her testimony that -her feeling of resentment toward her father was so pronounced that if she had heard that he was in a dying condition she would not have gone to him. She says she thought- he was holding the property and looking after it for her, but she had no right to think so under the peculiar circumstances of this case. In fact, her admission that she and her mother had got- attorneys to inquire about the title shows that she was suspicious of her father’s conduct with respect to this property, and had reason to believe that his continued possession was hostile to her rights. When she heard that her father was placing valuable improvements upon the property, she had no right to assume that he was doing this for her benefit, and as a further advancement to her; for at that time her father had long since ceased to contribute to her support, though it had become necessary for her to support herself by her own efforts. There is evidence also that, very soon after her father sold the property to Belding and Morrison in 1903, she learned of it, and yet she remained inactive, permitting those parties to resell to others, who were innocent of any knowledge of her claim. The familiar rule on this subject is statued thus:
“Courts of equity have always discouraged laches and delay. The door of equity can not forever remain open.” Gibson v. Herriott, 55 Ark. 85. In that case Judge Battle quoted with approval the following words of Lord Camden in Smith v. Clay, 3 Brown’s Ch. Rep. 639:
“A court of equity, which is never active in relief against ' conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.”
Mr. Justice Brown of the Supreme Court of the United States, speaking for that court as to the equitable doctrine of laches, said:
“The cases are many in which this defense has been invoked and considered. It is true that, by reason of their difference of facts, no one case becomes an exact precedent for another. Yet a uniform principle pervades them all. They proceed on the assumption that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned; and that, because of the change in conditions or relations during this period of delay, it would be an injustice to the latter to permit him to now assert them.” Galliher v. Cadwell, 145 U. S. 368.
The fact that the possession of Col. Harrell began while the parental relation subsisted raised a presumption that this relation controlled his action, and that his possession wasjn subordination to the title of his daughter. Waits v. Moore, 89 Ark. 19. But his possession continued long after that relation came to an end in fact, and continued in hostility for so long a time as to overcome that presumption. He held possession at first as trustee for his daughter, but his subsequent conduct amounted to an open repudiation of the trust.
“Notice of facts and circumstances which would put a man of ordinary intelligence and prudence on inquiry is, in the eye of the law, equivalent to knowledge of all the facts a reasonably diligent. inquiry would disclose. Whatever is notice enough to excite attention, and put the party on his guard, and call for inquiry, is notice of everything to which such inquiry might have led. ” Percy v. Cockrill, 53 Fed. 872.
In Singer v Naron, 99 Ark. 446, we said:
“In order for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse .claim must be brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed. ”
The rule is that the trustee is presumed to hold the trust estate in subordination, and not in hostility, to the rights of the cestui que trust, and he can not plead lapse of time in bar of the latter’s rights, but it is equally well settled that a repudiation of the trust sufficient to bring home notice of his hostile claim to the other party will set the statute of limitations in motion. McGaughey v. Brown, 46 Ark. 26; Gibson v. Herriott, supra; Thomas v. Sypert, 61 Ark. 575; St. Louis & Ark. Lbr. Co. v. Godwin, 85 Ark. 372; Stuckey v. Lockard, 87 Ark. 232.
Judge Riddick, delivering the opinion of the court in Thomas v. Sypert, supra, said:
“The fact that Sypert was the administrator of the estate of appellant’s father, and also stood in loco parentis towards appellant, can now avail nothing, after so great a lapse of time; for, by the purchase and adverse possession of the land, Sypert had, so 'far as it was concerned, openly repudiated the trust. The rule is that 'the statute begins to run from the time that the trust is openly repudiated or disclaimed by the trustee. ’ ” This was said as to the statute of limitations, but its applica tion is stronger to the plea of laches in the assertion of an equitable title.
In addition to the facts already referred to, there is another feature of the case which we think, in the interest of justice, strongly calls for the application of the doctrine of laches., There is reason to believe, from the conduct of Col. Harrell and his statement to others that he claimed the right to revoke the gift or advancement to his daughter, that he disregarded it and held the property as that of his sister and as his own, and that he had so notified appellee and her mother. We can not consider those matters further than to take them as suggestions that if Col. Harrell were now alive he could adduce proof upon which he and his grantees could make good his claim of adverse possession which he asserted in his confirmation suit. Now that he is dead, and that his mouth is closed as a witness, it adds another reason why appellee’s claim should not be sustained at this time.
The loss of testimony is a material circumstance in enforcing the equitable doctrine of laches. This principle is illustrated in the case of Dickson v. Sentell, 83 Ark. 385. In that case G. W. Sentell, a wealthy merchant of the city of New Orleans, was a creditor to a large amount of his brother-in-law, David E. Dickson, a planter and land owner in Lafayette County, Arkansas. During the life of the mortgage the land was sold under execution for a small amount and purchased by another person, who transferred the certificate to Sentell, and a sheriff’s deed was executed to him. The mortgage was never foreclosed, and Sentell rested upon his legal title under the execution sale. Both of the parties lived for many years afterwards, Dickson still remaining in possession of the property but recognizing Sentell’s rights by paying rent to him. After the death of both, the heirs of Dickson sought, in a court of equity, to have the widow and heirs of Sentell held to be trustees; but this court decided against them on the ground of laches, and Judge Riddick, in disposing of that question, said:
“Neither laches nor the statute of limitations was set up as a defense in this case, the defendant simply denying most of the material allegations of the complaint. But, though laches was not pleaded, still this long delay must be considered. It lasted until Sentell and Dickson, the two principal actors' in the transactions upon which this suit is based, and who probably alone fully understood them, were both dead. After a delay that has sealed the mouths of these two most important witnesses, a court of equity ought not to set aside this deed unless clearly satisfied that the interest of justice require it and that Dickson had no notice of the adverse claim of the Sentells to his land until shortly before his own death. ”
Upon a careful examination of the whole record, we are convinced that the evidence abundantly shows facts which were sufficient to put appellee upon notice of her father's hostile claim to the land, and that she was in fact possessed of sufficient actual knowledge of his conduct with respect to the property to put her upon notice and call for action upon her part. Her passiveness, though the situation called for action, has involved innocent parties, and, upon settled principles of equity, she can not demand relief against them in a court of conscience.
It is unnecessary for us to pass on the question whether the court of chancery should have entertained jurisdiction of the cause or transferred it to a court of law. Appellee having selected the forum and voluntarily invoked the aid of the chancery court, she can not complain that the action should have been in a court of law. Cribbs v. Walker, 74 Ark. 104.
The decree of the chancellor is therefore reversed, and the cause is remanded with directions to enter a decree dismissing the complaint for want of equity. | [
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Kirby, J.
The appellant was indicted in the Calhoun Circuit Court for the offense of presuming to solemnize marriage con trary to law. The indictment (caption omitted) is as follows:
“The grand jury of Calhoun County, in the name and by the authority of .the State of Arkansas, on oath, accuse the defendant, J. D. Pearce, of the crime of presuming to solemnize marriage contrary to law, committed as follows, towit:
“The defendant, on the 15th day of June, 1909, in Calhoun County, Arkansas, did unlawfully and wilfully presume to solemnize marriage contrary to law between Felix Holeman and Nuty Moore by then and there pronouncing between them a pretended marriage ceremony and declaring them, the said Felix Holeman and Nuty Moore, man and wife, the said Felix Holeman and Nuty Moore then and there having no marriage license, as required by law, and the said J. D. Pearce then and there not being authorized by law to solemnize marriage, against the peace and dignity of the State of Arkansas.”
The appellant demurred to this indictment on the ground that it did not state facts sufficient to constitute a public offense; said demurrer was overruled, and exceptions saved. After verdict appellant filed a motion in arrest of judgment on same ground, and it was overruled and exceptions saved. The proof fended to show that appellant told one of the witnesses, a relative of the woman contracting marriage, that he was not a justice of the peace, but that he was a notary public, and could marry them all right, and that he did pronounce a ceremony of marriage for Felix Holeman and Nuty Moore, reading or repeating it to them after having them join hands and asking if there were objections to the marriage, and concluded by pronouncing them man and wife. There were a good many people present, and among the number George Mahen, a preacher, who came to solemnize the marriage but learned he could not under the circumstances; that appellant was to do the marrying. Appellant denied that he had in fact pronounced any ceremony or solemnized any marriage at all; claimed to have explained to one of the contracting parties, Henry Holeman, that he could not marry because he had a living wife, and that his purpose in going to the place of marriage was to keep the parties from marrying, as he wanted to use said Holeman as a witness in a suit he had pending in court, and did not want him to get into any trouble. While at the party where the marriage is alleged to have occurred, the subject of marriage came up, and some one asked appellant if he did not use to marry people. He replied that he did when he was justice of the peace. They asked him how he did it, and he repeated some kind of a ceremony. Said that no woman was present at the time, and that he did not perform any marriage ceremony; was doing all he could to prevent the marriage because he wanted to use Hole-man as a witness in a case appellant had in court. That he did not i-n any way represent himself authorized to marry people.
The court gave, among others, the following- instruction, to which exceptions were saved:
“2. The jury are instructed that if they believe from the evidence in this case that the defendant -did solemnize marriage, as -charged in the indictment, you will find him guilty, notwithstanding he may have told the parties before he pretended to solemnize the marriage that they could not lawfully marry.”
The jury found the appellant guilty, and assessed his punishment at a fine of $100, and he appealed;
Appellant presents three questions here: Is the indictment sufficient? Did the court err in giving instruction number 2, asked by the State? And is the evidence sufficient to sustain the verdict?
The indictment is founded upon section 5204, Kirby’s Digest, which reads as follows: “Any person who shall presume to solemnize marriage -contrary to the provisions of this chapter, or who shall fail to .officially sign and return any license to the party at the time of such marriage, shall be -adjudged guilty of misdemeanor, and upon conviction thereof shall be fined in any sum not less than $100 nor more than $500.”
Sections 5x71 and 5176 define what marriages are and what are not lawful as to -the parties to the contract. Section 5180 defines the parties authorized to solemnize marriage. Section 5181 prescribes the condition upon which ministers and priests, not including appellant among such persons named in section 5180, may exercise the authority conferred upon them-.
The indictment does not charge two offenses, but one committed in two different ways by presuming to solemnize marriage contrary to law, first, between persons having no marriage license as required by law, and, second, not being authorized by law to solemnize marriage.
Appellant at most could only have required the State to elect upon which charge it would prosecute; and if .he did not waive such right by failing to do so, he has been in no wise injured nor his case prejudiced by such failure, since the State only introduced evidence upon the one charge, and thereby in effect -made such election. It is true, appellant is not charged with having pretended or represented himself or purported to be one of the persons or officers authorized to solemnize marriage by this chapter, but only with “the crime of presuming to solemnize marriage contrary to law,” “did unlawfully and wilfully presume to solemnize marriage contrary to law,” * * * “and the said J. D. Pearce then and there not being authorized to solemnize marriage,” etc. The language clearly charges defendant with wilfully presuming , to solemnize marriage contrary to law, not being authorized by law to solemnize marriage; and it can make no difference, since he expressly claimed to have such authority, being a notary public, that he is not charged with pretending to be some person or officer to whom the statute gives such authority. It is the apparent purpose and intention of this statute to place all reasonable safeguards about the solemnization of marriage, society’s and the State’s chiefest institution, and upon which the perpetuity of both depend: “Close as sin to suffering joined” is the State’s welfare with marriage linked. And it denounces a penalty against all who, not being expressly thereunto authorized by its terms, presume to solemnize it against its provisions, whether such .presumption consists in purporting to be an officer, minister or priest to whom such authority is given, or in assuming and exercising such authority without claiming to be such person or officer, as did this defendant.
The offense here consists in presuming to exercise a power or authority that he knew he did not possess, and not in the pretense that he was such officer or person as the statute gave the power to. Webster defines the word “presume,” when used in the sense used by the Legislature in this statute, as follows: “To venture, go or act by an assumption of leave or authority not granted; to go beyond what is warranted by the circum stances of the case.” The allegations follow the language of the statute, and the indictment was sufficient. Sections 2228, 2241, 2242 and 2243, Kirby’s Digest; Morphew v. State, 84 Ark. 487.
Appellant contends that instruction No. 2, on behalf of the State, was erroneous in that it told the jury, if they found from the evidence that he did solemnize the marriage as charged in the indictment, they would find him guilty, notwithstanding he may have told the parties before he pretended to solemnize the marriage that they could not lawfully marry, in disregard of the law as to reasonable doubt and his theory that the ceremony was performed in a spirit of fun and play and without any intention to solemnize marriage. The State’s instructions fully and fairly presented the law and covered such theory. This instruction is correct, even though he may have told the parties before he pretended to solemnize the marriage that they could not lawfully marry. Plis offense consisted in presuming to exercise authority he represented himself to have, and did not, to solemnize the marriage, the thing they were directly interested in, being willing to risk their own judgment as to their capacity to lawfully marry and not careful of his opinion thereon. Even if they were without such capacity, it will not prevent defendant being guilty of the offense. People v. McGlaughlin, 108 Mich. 516, 66 N. W. 385.
As to the sufficiency of the evidence: Wm. Moore testified that appellant stated to him that he was no justice of the peace, but that he was a notary public, and could perform the marriage ceremony all right; that he had the parties to join hands, asked if any one objected, read the ceremony or repeated it to them, and pronounced them man and wife. Geo. Sanders did not know what the words were, but heard him ask the parties if each would take the other for husband and wife till death, and wound up by calling them husband and wife. Geo. Mahen, the preacher, was there to marry the parties, but learned he could not marry them under the circumstances, that appellant was to do the marrying. The theory of the appellant was that Eelix Holeman and Nuty Moore could not legally marry, and that the appellant had so told them. It is contended that he went through the form of a marriage ceremony, but that it was done in a spirit of play, and. that the whole affair was nothing more nor less than a farce, and that all parties so understood it. This theory of the case has been decided against the appellant by the jury, under an instruction which fully and fairly presented it to them. The jury might have concluded that appellant presumed to solemnize the marriage to the exclusion of the minister, hoping thereby to keep Felix Holeman out of such trouble as would prevent him being a witness in his behalf in the case in which he expected to use him. They have found him guilty upon evidence sufficient to sustain their verdict.
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Wood, J.,
(after stating the facts). Under the pleadings and the undisputed evidence the appellee should be allowed to recover unless the appellant’s answer and cross complaint present a good cause of action against the appellee, according to the doctrine announced in Ewing-Merkel Elec. Co. v. Lewisville Light & W. Co., 92 Ark. 594. In that case we held that (quoting syllabus): “In a suit upon contract by a nonresident against a resident of this State, the defendant' will be allowed in equity to set-off a claim for unliquidated damages growing out of the breach of an independent contract between the same parties. ”
The questions presented by the cross complaint and the answer are:
1. Whether or not there was a breach of the warranty in the contract under which appellant purchased the engine of appellee in 1906. The contract under which that engine was purchased expressly warranted that the engine “shall be as represented herein and of good material and workmanship— to do good work when properly set down and operated.” As to whether or not this warranty was breached by the appellee was purely a question of fact.
There were three witnesses on behalf of the appellee. One of them, the general manager for ten years, testified that they manufactured a thousand engines a year; that he had been a manufacturer of engines for more than 18 years, and understood the proper construction of engines. He said that the engine in controversy was manufactured in appellee’s plant, was placed on the testing block in the factory and'operated several hours and tested thoroughly to see that everything about it was correct. The engine left the plant in first-class condition.
Another witness, the general superintendent, had been with the company eight years. He had been designing and building stationary engines for twelve years, and was familiar with the details of the manufacture of steam engines. Had been connected with some of the best known engine mills in the United States; had superintended the building of thousands of engines, and had made a close study of the causes of accidents to engines.
The other remaining witness had been vice president and sales manager of appellee for thirteen years. He had been in the manufacturing of steam’engines fourteen years, and had had close observation of them for a much longer time, and was fully acquainted with the type of engine in question. He knew the engine that appellant purchased; it was manufactured in the best way, fitted up in all parts with ample strength for an engine of its size. The piston head was made in accordance with the best plans, the piston rod being forced into the piston head by hydrostatic pressure of between five and eight tons, and was then beaded over at the end to more effectively hold the head on the rod. This was of the best type of cylinder rings and piston head, and made in accordance with the best methods of building steam engines. The engine was first-class in every particular, without any defects or weak points.
One of the witnesses, after describing minutely how the piston and rod were constructed, said: “All piston rods are constructed in this way. The extended or conical edges at end of rod being so constructed to fill up the counter bore of piston more fully. An examination of the rod in question will show where the riveted edges of rod were sheared off, and will also show that rod was galled or scarred, indicating that an enormous pressure of not less than thirty tons were exerted on this rod.” He further said that pistons that worked loose never wrecked an engine. “When they get loose, they simply strike the rear head, and always give warning, the engineer having ample time to turn off steam before any damage is done. ”
These witnesses all substantially agreed as to what might be the cause of the wrecking of an engine of the kind under consideration. They showed that the piston head and piston rod which appellant shipped appellee in 1908, after the wreck of same, were received at appellee’s plant January 22,1908. They described and explained the reason for the wrecking of the engine substantially as follows;
“The broken piston head and piston rod indicate clearly that something was allowed to get in the cylinder which knocked the piston head loose from the piston rod. It shows that it was struck by a heavy blow, a piece being broken off of the side next to the engine bed. It shows that water or some foreign substance was allowed to get in the cylinder between the piston head and the bed plate of the engine, and that this caused the wreck. ”
Sketches were exhibited showing how the piston rod and head were constructed. The witness showed that, after an examination of the piston head and rod in question, they were properly put together; that it was originally put on very tight, and it took an enormous power to separate the head from the rod; that the rod projected through the piston head fully three sixteenths of an inch for riveting over the end.
One witness stated that: “The old piston head and rod which Mr Benton sent in, and which was exhibited, showed conclusively for themselves that they were properly manufactured and put together in accordance with the best customs known to mechanical engineers in the United States.” The testimony of this witness as to why an engine of the kind under consideration should be wrecked was substantially as follows: “The engineer does not take proper care in making the necessary adjustments. An engine will not take care of itself always; without some competent man to adjust the parts. If the engineer should allow the nut on the rod bolt to work off and let this rod bolt get out, that would cause a wreck just like this one. Should he allow the governor belt to break and run off, should he start the engine and turn on full steam before all the condensation and water is turned out of the cylinder; if the boiler was not properly set and the water could syphon into the cylinder; or should the steam pipe be taken apart to make repairs and a small bolt or nut get inside the steam pipe and work into the cylinder of the engine; if the nut fastened to the piston rod and cross-head be allowed to work loose and allow the rod and cross-head to become separated; should a wrench fall on the cross-head while in operation; or a nut or bolt fall from above and lodge between the, cross-head and cylinder— any of these things would cause the engine to wreck itself.”
It was shown on behalf of appellee that appellant sold the engine after it was wrecked to one H. W. Moody, and that he ordered from appellee a list of parts necessary to repair the engine. That included in the list of repairs were a strap and two rod bolts for the wrist of the engine, and the general manager of appellee testified “that the very fact that these parts had to be renewed, and also the stuffing box for the piston had to be renewed, indicates clearly to my mind that the engineer neglected his duty and allowed this engine to come uncoupled and wreck itself. Such a wreck is inevitable where the engineer does not look after the engine and keep the nuts tightened up.”
The appellant, in his own behalf, testified that the engine was properly set up and operated by himself or some one on 'his premises; that he commenced to run it about the first of November, 1906, ran it about two months that season, then commenced to run it again about the first of October, 1907, and ran it until the 20th of November, 1907, when it was wrecked. It was used for ginning cotton and running a sawmill. He testified that they were running with 80 pounds of steam, and that all at once-the engine tore up and came to pieces, and the parts of the engine were scattered all around over the engine bed. He identified the parts of the engine which were broken, and said that the pieces showed that in the milling they had not been run together as they should have been to make them solid; that the difficulty was in the molding and the material of which they were made. He said in the broken parts he found rust streaks and found rust streaks all through the casting, as if it had been made of scrap iron, and that these flaws were caused by using old rusty iron in making the casting. He testified further that the piston was not properly fastened into the piston rod; that it should have gone far enough through to have been swollen on the head, but only came through the sixteenth of an inch; that the entire engine was mads of a kind of soft material. He said that he had been operating a gin with engines for ten or fifteen years; that the life of an engine, such as this one was represented to be, when properly handled, was fifteen or twenty years. He said that during the time he operated it it was properly managed and operated. He said it was protected from the weather; that the roof leaked a little but not enough to damage the engine in any way; that it was damp in all engine rooms. He said that he notified appellee of the explosion by telephone about ten- minutes after the wreck happened. He further said that the engine operated very well, but not entirely satisfactory, during the first thirty days, but that he thought as soon as it adjusted itself it would be all right. He could not detect the defects mentioned until after the engine exploded. He further said that the piston and rod, in his judgment, were not fastened as they should have been. He said that the new piston rod and head that were used in repairing the engine after it had blown up were not properly fitted in the head; that the defect could not be discovered, however, until after it is used; that the defect in the second piston rod and head showed up within thirty days after the rod was used in the engine, but did not show up in that time in the first one, which came with the engine.
Other witnesses on behalf of appellant corroborated his testimony as to the defects in the engine and the construction of the piston rod and head. One witness, a farmer and engineer, said that there were defects in the casting which was broken; that he worked there the summer before the engine bio wed up, and that the valve slipped three or four times while they were sawing. He said he was not an expert machinist, but had worked with engines ever since he could remember, and he was then 43 years of age. He said that he was on the ground the day the engine wrecked, after it had blown up, and that it was torn all to pieces.
Another witness said that he had had 20 years’ experience in handling steam engines, and was at the appellant’s gin when the engine in question blew up. After describing the broken parts, as they appeared to him after the wreck, he says: “The piston rod was not made long enough to go through the piston and brad or swell, and the molding of the main body seemed to have run too cold and didn’t stick. ” He measured the rod that went through the piston; it was not more than a sixteenth of an inch longer than the hole made for it through the piston; it should have been half an inch longer. There were rust streaks all through the main body of the engine. The engine was not made of good material and by good workmanship. It had been properly set up and operated. He said that he was working for appellant on a salary, but had no interest in the engine, mill or gin. ”
Another witness testified that he had built and repaired engines, but never ran one. He examined and repaired the last piston rod sent appellant for the engine that was damaged. The bore and piston head, were too large for the piston rod; it didn’t fit; it should have been a shrunk or pressed fit, which was easily driven back to position and re-riveted. He didn’t see the first piston rod. If it had been inserted in the head, as it should have been, there would not have been any accident, such as occurred. The accident was caused entirely by the bad workmanship, or due to the carelessness of the fit. He was not a practical moulder, but was a practical machinist; had been in a machine shop for about 35 years, and had never followed any other occupation. The piston rod and piston head sent to repair the wrecked engine needed repairing before they could be used, and he repaired them. The rod and head had the appearance of being new, and he would say that it was, but didn’t know of his personal knowledge; didn’t have the appearance of having been worked on before it came to his shop.
Still another witness testified that he had operated engines for the past twelve years, and operated the engine in question after it had been repaired from the wreck. He went into it, and found the piston head was about to come off the rod, and if he had not stepped the engine when he did, in two or three more revolutions the head would have come off and the engine torn up again. The defect was that the head was not properly fitted on the rod. He had examined the piston rod which was in the engine when it was wrecked, and the piston rod sent to replace the old one pulled loose just as the old one had done. That is, it had pulled back in the piston head about an inch, and if he had not stopped the engine just when he did there would have been a wreck like they had before. The piston rods were both in the same condition. He was not a moulder or machinist, but understood steam machinery from practical experience. He was a practical engineer. Sáid that he knew the piston rod sent to repair the old one would have to be taken out of • the head and the head counter-sunk more than it was in order that the piston rod might be long enough to upset to make it hold, qs the rod was too short to hold it in the shape it was.
It will be observed from the above testimony that there is a decided conflict in the evidence as to whether or not the engine was of good material and of good workmanship, as required under the warranty contained in the contract of purchase. It is difficult to determine which of the parties had the preponderance in his favor, but we are of the opinion that the finding of the chancellor is, to say the least, not clearly against the weight of the evidence. We are of the opinion that if there had been such marked defects in the material of which the engine was constructed and in the workmanship as the testimony on behalf of appellant tends to show there were, such defects would have manifested themselves long before the wreck occurred, and, in our opinion, the preponderance of the evidence tends to show that there were no defects, either in the material of which the engine was constructed or in the workmanship by which it was constructed. It seems to us that those who constructed the engine, and who show themselves to be experts along that line, are best qualified to speak with reference to the material and workmanship that entered into the make-up of the engine; and if their testimony is true, certainly there was no breach of warranty in this case.
The chancellor has determined that the preponderance of the evidence on this question was in favor of the appellee, and we are of the opinion that his judgment should be, in a case like this, strongly persuasive. As we said in Greenlee v. Rowland, 85 Ark. 105: “It is the duty of this court to try chancery cases de novo, and in doing so the court gives much weight to the finding of the chancellor upon conflicting evidence; and where the testimony is evenly poised, or nearly so, the finding of the chancellor is accepted as conclusive.”
It is the well settled rule of this court that the finding of a chancellor on questions of fact will not be disturbed unless they are clearly against the preponderance of the evidence. Leonard v. Leonard, post p. 522, and cases there cited.
2. Since we have concluded that there was no breach of the warranty, as found by the chancellor, it becomes unnecessary to inquire whether or not appellant had complied with the conditions of the contract as to notice.
The judgment is affirmed. | [
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Frausnthau, J.
This was an action instituted by the St. Louis Southwestern Railway Company, the plaintiff below, the recover a balance due for its charges as compensation for the carriage of property of the defendant. In the complaint the plaintiff alleged, substantially, that it was a railroad corporation, and owned and operated a line of railroad in the State of Arkansas; upon which as a common carrier it transported goods and was engaged in carrying same in the course of interstate commerce. On February 19, 1907, the defendant tendered to it for carriage from Paragould, Arkansas, to the National Stock Yards, in the State of Illinois, 24 head of cattle and 28 head of hogs, which were the property of defendant, and that it 'did accept and agree to carry same at the charges legally fixed for and controlling such shipments, which in the aggregate amounted to the sum of $228.92. That it transported said property over its own line and over the lines of railroad of other carriers, who were its agents, and that the final carrier as its agent duly delivered the same at the point of destination to defendant’s agent. It further alleged that by mistake or oversight its agent collected for said charges only the sum of $57.60, leaving a balance due to the plaintiff of $171.32, and it sought to recover from the defendant this balance. To this complaint the defendant interposed a demurrer upon the ground (1) that there was a defect of parties, both plaintiff and defendant; and (2) because the court was without jurisdiction to entertain the cause of action. The lower court sustained the demurrer to the complaint; and, the plaintiff refusing to plead further, it rendered judgment against the plaintiff for costs. Did the lower court err in sustaining thé demurrer ?
It is urged by the defendant that the delivering carrier was a necessary party to this suit; but we do not think that this contention is correct. Under our Code (Kirby’s Digest, § 5999) every action must be-prosecuted in the name of the real party in interest. Under the allegations of the complaint in this case we think that the plaintiff was the real party in interest. The plaintiff had, as a common carrier, entered into a contract with the defendant whereby it had agreed to transport defendant’s property from Paragould to the point of destination in Illinois, and, although the point of destination was beyond the terminus of its own line, it had the right to accept and make a binding contract to carry goods to that point. To carry out that contract, it employed connecting carriers to assist it in making the transportation. Such subsidiary carriers became under such circumstances the agents of the contracting carrier. St. Louis S. W. Ry. Co. v. Wallace, 90 Ark. 138.
The contracting carrier was still the principal, who was entitled to receive the charges for the transportation. It made the contract for the carriage, and it had the right to agree as to the manner in which the charges should be paid. It could demand payment in advance; or after th$ performance of the service it could recover the (amount of the freight upon the goods. In the present case it was alleged that the delivering carrier was only the agent of the initial carrier in making the carriage. In effect, therefore, the complaint alleged that whatever compensation was due to such delivering carrier was paid by the initial carrier; so that the entire compensation for the transportation was due solely to the plaintiff. The plaintiff was therefore the onty proper and necessary party plaintiff to this suit. 2 Hutchinson on Carriers, § § 799, 828.
It is also urged by defendant that the consignee of the goods was a necessary party to the suit. But we do not think tliis contention is correct. The owner of goods under whose direction they are shipped is liable for the freight. The consignee who actually receives the goods becomes responsible for the carriage charges on the ground that the goods are delivered to him upon the condition that he will pay such charges; and from bis acceptance of the goods the law implies a promise upon his part to pay such charges. But where the consignee is only the agent of the owner, and this fact is known to the carrier, such contract to pay the freight by the consignee will not be implied. 2 Hutchinson on Carriers, § § 809, 810; 6 Cyc. 500.
The carrier has the right to look to the consignor or owner of the goods for the payment of the freight, and he may waive his lien upon the goods by delivering them to -the consignee and still bold the consignor liable upon the contract of shipment. The complaint alleged that the defendant not only made the contract of shipment with plaintiff, but that he was the owner of the property, and that the consignee was only his agent to receive the .goods. The defendant was therefore the proper party from whom to recover the compensation for the transportation of the property.
It is earnestly contended by counsel for defendant that the lower court did not have jurisdiction to entertain this cause of action, upon the ground that the matter related to an interstate shipment, and that any right which plaintiff might have was only cognizable before the Interstate Commerce Commission or a court of the United States.
It is urged that the freight or compensation for which plaintiff seeks recovery in this case is a subject of interstate commerce and governed by the “Interstate Commerce Act” of Congress, approved February 4, 1887, and the acts of Congress amendatory thereof; and that on this account a recovery of such freight cannot be enforced in a State court. But we do not think that the cause of action set out in the complaint grows out of any right created by or springing from said acts of Congress. The cause of action herein set out is simply for the recovery of an indebtedness due for a service performed. The indebtedness grows out of a contract, which is only an incident of an interstate shipment, and is not a liability springing from or created by any act of Congress. It is simply alleged that the defendant was due to plaintiff a certain sum for the transportation of his goods; that in making payment of the freight a mistake was made, so that the defendant did not pay the entire amount of the charges; and that therefore he owes the balance. It is, in effect, a suit to recover a balance claimed to be due upon an account.
It is claimed that the cause of action herein set out grows out of and is based upon the same right that is conferred upon a shipper to recover of a carrier for overcharges in an interstate shipment. But we do not think this is correct. The right of a shipper to recover from a common carrier for overcharges for freight on goods shipped in interstate commerce springs from sections 8 and 9 of the Interstate Commerce Act, approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Start: at L. 386 [U. S. Comp. Stat. 1901, p. 3169]). The very language of those sections makes it clear that they have no application to such an action as this. The provisions of those sections declare a liability for damages only against the common carrier, and not against a shipper, and only in cases where the common carrier “shall do, cause to be done' or permit to be done any act, matter or thing, in this act prohibited or declared to be unlawful or shall omit to do any act, matter or thing in this act required.”
The liability against the carrier for an overcharge grows out of the act of the carrier in charging an unreasonable tariff rate, and whether such rate is unreasonable or not is exclusively within the province of the interstate commission to determine. The right to recover for such overcharge springs, therefore, from that act. But the suit here brought is not for a liability against a carrier or for any damages growing out of any act done by the carrier contrary to the provisions of the acts of Congress relating to interstate commerce. The right to a recovery is herein sought against the shipper, and under the allegations of the complaint such right is not dependent upon, nor does it grow out of, any liability created by any provisions of said acts. We are therefore of the opinion that the allegations of the complaint, with the inferences that are reasonably deducible therefrom, set out a good cause of action enforceable in the court in which the action was instituted. The court therefore erred in sustaining the demurrer to the complaint.
The judgment is reversed, and the case remanded with directions to overrule the demurrer and for further proceedings. | [
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McCulloch, C. J.
Defendant, N. Harris, is engaged in the second-hand clothing business in the city of Little Rock, and in August, 1910, he purchased a bill of goods from plaintiff, O. J. Lewis Mercantile Company, a corporation engaged in the wholesale business at St. Louis. The bill amounted to $403.04, and defendant paid $50 in cash, reducing it to $353.04, and it was agreed that the plaintiff should ship the goods to Little Rock and forward its draft on defendant, with bill of lading attached, through the German National Bank of Little Rock for the amount of the bill. This was done on August 31, 1910, the draft being in ordinary form payable to the order of the German National Bank, and the same was duly deposited in the mails, addressed to that bank. Subsequently, plaintiff instituted this action against defendant in the circuit court of Pulaski County to recover the amount of said account, claiming that the draft had never been paid. Defendant answered, pleading payment of the draft, and upon this issue the case was tried before a jury.
The defendant produced the draft in question with the following indorsement stamped thereon with a rubber stamp: “German National Bank — Paid September 2, 1910 — Little Rock, Ark. ” Defendant testified that between 4 and 5 o’clock on the afternoon of September 2,. 1910, a young man appeared at his place of business, representing himself as a collector for the German National Bank, and presented this draft for payment, and that, after borrowing part of the amount from two of his neighbors, he paid the amount to the young man, and the draft was surrendered to' him.. He stated that he was not acquainted with the young man, and had never seen him before nor since. He introduced another witness who corroborated his statement as to the payment of the draft.
It was agreed that the German National Bank had never accounted to the plaintiff for said amount or any part thereof, and that the plaintiff had never received anything in satisfaction of the draft or the account.
Four of the employees of the bank were introduced, who testified that they had exclusive charge and control of the bank’s collection department, that they had no recollection of any such draft having passed through the bank, and that there was no trace thereof upon the records of the bank. Other evidence tended to show that the daily mail coming to the bank was placed in charge of the head of the collection department; who was one of the witnesses, and who opened it. Other testimony also tended to show that it was possible for other employees of the bank to come in contact with the mail before it actually passed into the hands of this witness who opened it. The testimony of one of the witnesses tended to show that there was no such stamp used by the bank similar to the one which made the impression on the draft in defendant’s hands.
In this state of the proof the trial judge instructed the jury to return a verdict in favor of the defendant.
We are of the opinion that the court erred in giving this instruction, and that the question as to payment of the draft should have been submitted to the jury under proper instructions. The evidence tended to establish the fact that the bank never received the draft, and that it was paid by the defendant, if at all, on an unauthorized or forged indorsement. The testimony was sufficient to warrant a finding to that effect, and this would have called for a judgment in favor of the plaintiff. It is now too well settled to need citation of authority that the holder of commercial paper, payable to order, must trace his title through a genuine indorsement, and that the drawee of a draft, payable to order, who pays upon a forged or unauthorized indorsement, does so at his peril. Sims v. American National Bank, 98 Ark. 1; First National Bank v. Whitman, 94 U. S. 343; Shipman v. Bank, 126 N. Y. 318; Bank of North America v. Merchants National Bank, 91 N. Y. 106; Chism v. First National Bank, 36 S. W. 387; Henderson Trust Co. v. Ragan, 21 Ky. Law R. 601; Barnett v. Ringgold, 80 Ky. 289, 52 S. W. 848; Janin v. Bank, 92 Cal. 14, 14 L. R. A. 320; Garthwaite v. Bank of Tulare, 123 Cal. 132, 66 Pac. 326; German Savings Bank v. Citizens National Bank, 101 Iowa 530, 70 N. W. 769; Chicago, B. & Q. R. Co. v. Burns, (Neb.), 86 N. W. 483; Com. v. Foster, 114 Mass. 311; Winslow v. Everette National Bank, (Mass.) 51 N. E. 16.
If the draft which was sent through the mail never reached the bank, it remained the property of the plaintiff, and title thereto could not be divested through a forged indorsement. Garthwaite v. Bank of Tulare, supra.
If it actually reached the bank, and was fraudulently or wrongfully abstracted, indorsed and collected by some unauthorized person, neither the bank nor the plaintiff was bound thereby. Kellogg v. Norris, 10 Ark. 18; Walker v. Scott, 13 Ark. 644; Chicago, B. & Q. R. Co. v. Burns, supra; Doubleday v. Kress, 50 N. Y. 410; Shipman v. Bank, supra.
The case of Barnett v. Ringgold, supra, was very similar to the present case, and the court, in disposing of it, said:
“The indorsement on the note was a special authority to the bank authorizing it to make the collection of the note, and the bank, or its agents authorized to act for it, were the proper parties to whom the payment should have been made, and by whom the note could have been legally presented for payment. The payment by the appellant to an unknown holder or stranger who had no right to collect it, either as agent in fact or bona fide owner, in the face of the special indorsement to the bank for collection by the appellees, was made at his own risk, as the possession with such an indorsement was notice to him that none but the bank or its agents, were authorized to collect the note or receive the money thereon. The appellees adopted the natural and proper method of informing the appellant of the fact that they had constituted the bank their agent for collection, and, had he taken the precaution which ordinary prudence dictates, and read the indorsement plainly written upon the back of the note, he could have ascertained whether the person presenting it was the proper person to whom payment should have been made; and, having paid the note to a fraudulent holder, if, indeed, he paid it to any one, the appellant must suffer the loss because he took the risk. ”
Learned counsel for defendant rely on Fidelity Mutual Life Ins. Co. v. Click, 93 Ark. 162, as sustaining the ruling of the court in giving a peremptory instruction. That case is not, however, in point. There the plaintiff relied, as evidence of payment, on a receipt which was admitted to be genuine, and defendant insurance company contended that the receipt was mailed to the insured by mistake, and that payment had not been made. Several witnesses, employees of defendant, testified to that effect, and it was insisted by defendant that, notwithstanding the receipt in the hands of plaintiff, the proof was undisputed that no payment had in fact been made, and that the court should have given a peremptory instruction in its favor. We said that possession of the receipt raised a presumption of payment, and that it devolved on defendant, in order to overcome it, so as to make the proof undisputed, to “close up by affirmative proof every avenue through which payment could have been made.” We did not hold that the possession of the receipt was conclusive evidence of payment, or that defendant had to close up “every avenue through which payment could have been made” in order to be entitled to go to the jury on the question of payment.
The court having erroneously taken the case from the jury by a peremptory instruction, the judgment is reversed, and the cause remanded for a new trial. | [
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Frauenthae, J.
This is an appeal from judgments that were recovered by the receiver of an insolvent -corporation against the defendants -below upon subscriptions made by them for shares of the stock of said corporation. The suits were instituted against die defendants severally upon notes executed by th-em to the corporation for the par value of the stock for which -they -had subscribed. On March 2, 1905, all the subscribers to the capital stock of the People’s Fire Insurance Company met for the purpose of organizing said corporation in pursuance of the laws of Arkansas in that behalf provided for the “incorporation for manufacturing and _other lawful business.” On that day the articles of agreement for the incorporation -of said -company were duly signed and executed by all the subscribers. All of the -capital stock was subscribed, and the number of shares of stock subscribed for by each corporator was set -out in said articles of association. The defendants duly signed and executed said articles after all other corporators had signed same and therein subscribed for forty shares each of said capital stock. The amount of the -capital stock of said corporation was stated to be $100,000 in said articles, which also contained a provision stating that “fifty thousand dollars of said capital stock have been actually paid in by the subscribers hereto.” The general nature of the business proposed to be transacted by said corporation was a “general insurance against loss by fire, wind storms, tornadoes and cyclones,” to buy, sell and deal in real estate, and to contract and rent buildings, “and to do everything necessary to its interest as an insurance company.” Upon the same day the corporators held the first meeting for organization and elected directors of the corporation, who elected the officers thereof; and the articles of association were then on the same day filed in the office of the Secretary of State and county clerk in manner provided by law. Eight of the corporators of the insurance company subscribed for a large number of the shares of the capital stock, and executed to the corporation their note in the sum of $50,000 therefor. Thereupon application was made to the Auditor of State under section 4345 of Kirby’s Digest for the ■issuance of a certificate entitling the insurance company to do business in the State of Arkansas. The statement made to the Auditor showed that the subscribed capital of the corporation amounted to $100,000, and that $50,000 thereof had been paid up by notes executed to the corporation. The Auditor declined to issue the certificate or license entitling the company to do business in the State for the reason- that the -company should have had $50,000 in cash, instead of notes representing its assets. Thereupon the insurance company, by discounting the notes which it held and owned, obtained from a banking institution the sum of $50,000; and on March 8, 1905, presented to the Auditor thejcertificate of deposit or deposit slip of said bank therefor, and the Auditor thereupon issued to the People’s Eire Insurance Company a certificate or license entitling it to do business in the State. The insurance company then began business, and continued to transact business from that date until January 19, 1907, when it failed, and a receiver was appointed to take charge of its affairs. During its existence the insurance company did quite an extensive business, and at the date of its failure it was indebted to creditors in a large amount. The defendants executed their several notes herein sued on to the corporation for the shares of stock subscribed for by them on March 15, 1905, about the time the company actively began its business, and the notes were made payable one year after date.
In their answers the defendants pleaded that the notes were executed for their subscriptions to the capital stock of the corporation which was intended to be organized under the laws, of the State for the purpose of doing a general fire insurance business, and that the subscriptions were “made upon the expectation and condition that such laws would be' fully complied with, so that the company would have a legal and effectual organization for the purpose of engaging in said business. That section 4335 of Kirby’s Digest was never complied with, in that $50,000 of the capital stock was never at any time paid up, and that the company at no time had a legal right to do the business contemplated at the time of its organizationand on this account they claimed and now urge that they are not liable upon said notes.
The defense that is thus made against a recovery upon these notes and the subscriptions which they represent is that the corporation had not complied with the laws of the State in its organization, and therefore had no right to exist as a body corporate. The rightfulness of the existence of a body claiming to act, and acting, as a corporation cannot be questioned in actions between private individuals and such corporation; the question as to whether or not the assumed corporation 'has a rightful existence can be raised only by the State, the sovereign by whom it is -created. Such question cannot be litigated in a collateral proceeding, such as a suit instituted by the corporation, or its legal representative, against its alleged debtor. This principle is almost universally recognized, and has had uniformly the sanction of this court. In the case of Brown v. Wyandotte & Southeastern Ry. Co., 68 Ark. 134, it is said: “It is the doctrine of the Arkansas Supreme Court decisions that the existence of a corporation, once formed, can be questioned only by a direct proceeding, and that at the suit of the State.” Hammett v. Little Rock, etc., R. Co., 20 Ark. 204; Mississippi, etc., R. Co. v. Cross, 20 Ark. 443; Searcy v. Yarnell, 47 Ark. 269.
The defendants contend that they are not liable for the subscription notes executed by them to the corporation because the insurance company had not complied with some provisions of the law which were essential to its organization and existence as a corporation. But the People’s Fire Insurance Company had filed its articles of association in the manner provided by the statutes of this State for the incorporation of business corporations, and had received a certificate of incorporation from the proper official. It had made application to the proper official of the “insurance bureau” of the State, and from him had received license to do insurance business. At the time of the execution of the notes sued on it was acting as a corporation, and for almost two years prior to the insolvency of the company it acted and did business as such corporation. If there was any irregularity in the organization of said corporation, it cannot avail defendants as a defense to this suit brought upon these contracts which they made with this corporation. This principle is thus stated by the Supreme Court of the United States in the case of Chubb v. Upton, 95 U. S. 665: “It is settled by the decisions of the courts of the United States and by decisions of many of the State courts that one who contracts with an acting corporation cannot defend himself against a claim on such contract by alleging the irregularity of its organization. * * * The same principle applies to the case of a subscription to the capital stock in an organization which has attempted irregularly to create itself into a corporation 'by alleging the irregularity of its organization.” 2 Thompson on Corp., § 1850.
This principle is applicable to the subscriber to the capital stock of the corporation on the further ground of estoppel. The subscriber has assisted in the organization of the corporation, and has thus aided in giving to it not only an existence but a credit by the use of his subscription. The liability which he assumed when he subscribed for the stock of the corporation assisted in giving to it a standing and a credit. He should not therefore be permitted to escape the liability which he thus assumed to the creditors of the corporation on the ground that the company was not organized in strict conformity to the law. The requirement of the statute which the defendants allege the insurance company did not comply with was to have a paid-up capital of $50,000. If this allegation should be true, the failure to have such paid-up capital was caused partly by the defendants themselves. They gave notes for the entire amounts of their subscriptions payable one year after date, and therefore paid no part thereof in cash. If therefore a portion of the subscriptions of the corporators should have been paid in cash before obtaining the license to do business, the defendants assisted in the failure of this insurance company to comply with that requirement. They should not now be heard to plead such a delinquency on their part to defeat a liability to the corporation and its creditors which they assumed by reason of the subscriptions they made to its capital stock. A person who has assisted in the organization of a corporation cannot escape liability as a subscriber for its stock on the ground that it was not organized according to the requirements of the statute. Selma & T. Rd. Co. v. Tipton, 5 Ala. 807; Central Plank Rd. Co. v. Clemens, 16 Mo. 365.
The rule is thus stated in 2' Thompson on Corp. § 1849; “The subscriber cannot, when sued by the corporation to enforce his contract of subscriptions, set up as a defense an irregularity in the organization of the corporation. * * * So, in an action by an insolvent corporation to collect an assessment for the purpose of paying their debts, the interests of the creditors will be so far regarded that no defense grounded on defects in the organization of the corporation can be maintained.” 2 Morawetz, Private Corporations, § 742; Bast Pascogoula Hotel Co. v. West, 13 La. Ann. 545; Sanger v. Upton, 91 U. S. 56.
And the failure by the corporation to comply with a statutory provision requiring a certain amount to be paid in before commencing business cannot be set up, either by the corporation or by the stockholder, to avoid a liability which has been assumed by them. 2 Thompson on Corp., § 1232.
The notes herein sued on were executed for shares of the capital stock of the corporation. The defendants assisted in the organization of the company by voting as shareholders for the directors thereof, and thereby have held the company out to the world as legally incorporated. They have thus enabled it to do business and obtain credit. Upon the faith of these notes and of similar notes the public was induced probably to give credit to the company; and the defendants should not now be permitted to defeat the notes upon which these creditors were induced to rely as a part of the capital of the company.
It is also claimed by the defendants that at the time of the organization of the insurance company there was a secret agree ment between the above eight corporators, who had made large subscriptions to the capital stock, that they should be liable only for one-half >of the amount of the shares subscribed by each of them, and that such an agreement was a fraud upon the rights of defendants who were ignorant thereof. But such an agreement, if made, would not be valid, and would not release those subscribers from their liability to the corporation for the full amount of the shares for which they actually subscribed. The obligation of a corporator to pay the full amount of all the shares for which he has subscribed cannot be released by the company or its officers. The attempt to do this could not be successful. Such an agreement would be void, and the status of such corporators and their liability would be and continue as if no such agreement had been made. The defendants could not be defrauded by such invalid agreement, and therefore could not have been injured thereby. Upton v. Tribilcock, 91 U. S. 45.
Such an agreement, if made, would not be a defense against the liability incurred by the defendants by the execution of the notes sued on for their subscriptions to the capital stock.
The above are the only defenses interposed by the defendants why recovery should not be had on said notes; and we do not think that any of them is meritorious or legally well founded.
The judgments are affirmed. | [
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McCulloch, C. J.
The plaintiff recovered judgment below against the defendant for damages on account of alleged injuries received while at work in defendant’s service, and we are asked to reverse the judgment on the ground that the evidence was not legally sufficient to authorize the verdict. 'Defendant is a domestic corporation, and was, at the time of plaintiff’s injury, engaged in operating a limekiln in Washington County, Arkansas. Plaintiff was employed by defendant as a wood-hauler, but late in the afternoon on a certain day he was taken from that work by the foreman and put to work assisting in laying a track along which the cars run from the rock quarry to the kiln. The face of the hillside had been blasted off so that there was a bluff 40 or 50 feet high, almost perpendicular, and tunnels were blasted into the face of this bluff in taking out rock. The track which plaintiff was assisting in laying ran along the surface of the ground at the foot of the bluff, and while he was at work, a rock, about the size of a gallon bucket, as the witnesses described it; fell or rolled down from somewhere above and struck him, inflicting a painful injury.
Plaintiffs right to an affirmance of his judgment depends entirely upon the force and effect to be given to his own testimony. After describing the blasted-off face of the hillside and the tunnels, he testified that he was at work helping to lay the track when the rock rolled down from above and struck him, and that the only warning he had was that somebody cried, "Lookout!” just before he was struck. He does not pretend to say where the rock came from nor what caused it to fall, and there is no other testimony in the case that sheds any light on the subject. Now, the rule is well settled by the decisions of this court that, in a suit by an employee against his employer to recover damages on account of negligence of the latter in failing to furnish a safe place in which, or safe appliances with which, to work, no presumption of negligence arises from the happening of the injury nor even from proof of some defect. The eases on this subject are so numerous that they need not be cited. In order to recover in such a ease it devolves on the plaintiff to prove, not only that there was some defect in the working place or in the appliances furnished, but that the employer had discovered the defect or that it was of such a character that it could have been discovered by the exercise of reasonable diligence. In other words, the plaintiff must prove that there was a discoverable defect before it can be said that the employer has been guilty of negligence in failing to discover and repair it. In the present case there is nothing whatever in the testimony that warrants a finding that there was any dangerous condition existing there which plaintiff’s employer was apprised of or which in the exercise of reasonable diligence he could have discovered. Of course, we know that the rock must have come from the hillside or from the face of the bluff, but the evidence does not disclose where it came from, nor what its appearance before it fell, nor what caused it to fall. It may have been loosened or dislodged in some way by a blast which left it in condition that it would roll down from a slight jar, but that its appearance did not indicate such a situation as to apprise the employer of its dangerous condition. It may be that the rock was set in motion from the hillside by some trespasser without the knowledge of the employer and without any opportunity to guard against it. These are entirely matters of speculation, and in this class of cases the jury is not permitted to speculate and to base a verdict thereon where there is no evidence upon which it can be established that the defendant was guilty of negligence. In the absence of proof that there were loose rocks which were likely to fall, it can not be said that the place where plaintiff was working was a dangerous one, and the mere fact that the rock rolled down does not prove that it was in a condition which created a discoverable danger, nor that plaintiff’s place of work was rendered dangerous by it.
The maxim, “res ipsa loquitur'” does not apply in this class of cases, for it devolves on an injured employee, before he can recover, to prove that the injury was caused by the negligence of his employer in failing to make the working place safe. The maxim only applies where the happening of the injury speaks for itself and establishes the fact that it could not have occurred otherwise than as the result of some act of negligence. In this case we can not say that the falling of the rock necessarily resulted from some act of negligence on the part of the defendant. Therefore, the maxim can not be invoked to supply proof of negligence.
We are of the opinion that the evidence is insufficient to sustain the verdict in this case, and that the judgment should be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Frauenthar, J.
This is an appeal by the St. Louis Southwestern Railway Company, the defendant below, from a conviction upon an indictment charging it with unlawfully and wilfully failing and refusing to establish and keep open a depot at Ogamaw, in Ouachita County. The Legislature enacted a law, which was approved May 31, 1909, by which it was provided that the defendant should within 60 days after the passage of the act establish and keep open a depot at said Ogamaw, and that upon a refusal, failure or neglect so to do it should be guilty of a misdemeanor. (Acts 1909, p. 986.) The defendant having failed to establish and keep open a depot as required by the provisions of said act, the grand jury of said county returned an indictment against it charging it with a violation of the provisions thereof. To this indictment the defendant interposed the following pleas: First, It alleged that it was a common carrier engaged in interstate commerce, and that the act of the Legislature in question was a regulation of and burden on interstate commerce, contrary to section 8 of article I of the Constitution of the United States, and therefore void. Second. That the said act was violative of the Fourteenth Amendment ot the Constitution of the United States 'because it in effect amounten to depriving the defendant of its property without due process of law. Third. That the said act is violative of section 24 of article 5 of the Constitution of the State, providing, in effect, that in all cases where a general law can be made applicable no special law shall be enacted. Fourth. That said act was void because in violation of section 25 of article 5 of the Constitution of the State, in that the act in question is a special act, and notice that same would be introduced was not given prior to its introduction in the Legislature. Fifth. It was also alleged that at the time of the passage of said act and continuously since there was no public necessity for said depot, and that, if defendant was required to comply with the provisions of the act, it would amount to a confiscation of its property.
The State interposed a demurrer to the first, third and fourth pleas above made by defendant, which was by the court sustained. The court thereupon heard testimony relative to the other pleas made by defendant, and, finding that they were not sustained by the evidence, overruled same. The court then proceeded by consent of the parties to try the case upon the testimony introduced upon the hearing of the above pleas, and made a finding against defendant, and rendered judgment accordingly, from which the defendant has appealed.
The questions involving the validity of the above act of the Legislature requiring the defendant to establish a depot at Ogamaw have been either expressly or in effect settled by the case of Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12. In that case it was held that the Legislature in the exercise of its constitutional powers had the right to supervise railroads within the State and to require them to establish and maintain depots at given points upon their lines. It was also held that such legislative power must not be exercised arbitrarily or unreasonably, and that it became a judicial question for the courts to determine under the facts of each -case whether or not by such requirement the Legislature had exceeded its constitutional power. In the exercise of its power to require a railroad company to establish and maintain a depot at a given point upon its line the Legislature must act reasonably and not arbitrarily ; in other words, there must be a real necessity for such depot in order to serve the public needs and convenience. The Legislature has primarily the right to determine whether the public necessity and convenience require the establishment of the depot at the given point, and the courts will not disturb that determination unless it is clearly shown that such requirement is unreasonable and arbitrary. In that case (Louisiana & A. Ry. Co. v. State, supra) it was said: “The legislative determination should be and is conclusive unless it is arbitrary and without any foundation in reason and justice. * * * The utmost force must be given to the legislative determination of the necessity for a station and the reasonableness of requiring the company to erect and maintain one.” In determining from the testimony adduced in any given case whether or not the requirement is reasonable the primary question to be considered is whether or not such depot is needed in order to serve the public convenience and wants. The mere fact that the establishment and maintenance of such depot would greatly exceed the revenues that might be derived from the business at such place should be considered, but this would not be controlling. Viewing the testimony that was adduced upon the trial of this case in the light of these principles, we cannot say that there was no public necessity for this depot or that the requirement that it be established was unreasonable and arbitrary. We do not think that it would serve any useful purpose to set this testimony out in detail. It is sufficient to say that the testimony tends to prove that there are three store houses at Ogamaw, and that there are about 20 families living within its immediate vicinity. Fully 100 families live within six or seven miles of the place, all of whom would be served by the erection and maintenance of a depot at this place. There is a postoffice there, and a flag station, and freight and passengers have for some time past been received and delivered at the place. The average monthly receipts at this point for freight for 14 months next prior to the finding of the indictment was $70.72, and the average monthly income from passengers for the same period was $77. The only expense to the defendant in erecting such depot would be the actual cost thereof. The evidence tends to prove that the cost of such a depot would be about $900, and the monthly expenses in maintaining same would be about $75. Under this proof we cannot say that the Legislature acted without reason and arbitrarily in determining that there was a public necessity for the establishment and maintenance of a depot at this place.
It is claimed by defendant in one of said pleas, and it is now urged, that said act of the Legislature is invalid because it is violative of section 24 of article 5 of the Constitution of the State, which provides: “In all cases where a general law can be made applicable, no special law can be enacted; nor shall the operation of any general law be suspended by the Legislature for the benefit of any particular individual, corporation or association; nor where the courts have jurisdiction to grant the powers or the privileges or the relief asked for.”
It is contended that the Legislature of the State passed an act which was approved May 17, 1907, which was amendatory of an act approved April 5, 1907 (Acts 1907, pp. 356, 832), by which the Railroad Commission of Arkansas was given the power upon proper conditions to require the establishment and maintenance by railroad companies of depots at places designated by the commission upon their lines; that this was a general law applicable to the establishment of a depot at Ogamaw, and that the Legislature was on this account inhibited by said constitutional provision from passing this special act. This question, we think, was in effect decided by the case of Louisiana & A. Ry. Co. v. State, supra. While the prosecution in that case was under an act of the Legislature passed prior to said above act impowering the Railroad Commission of Arkansas to require the establishment by railroad companies of depots at. designated places on their lines, nevertheless if a general law could be made applicable to the establishment of a depot required by the act under which this prosecution is had, a general law could also have been made applicable to the establishment of a depot required by the act under which the prosecution was ■made in the case of Louisiana & A. Ry. Co. v. State, supra. Under the above constitutional provision, the question is not whether the special act was passed after or before the enactment of a general law that might be applicable to the case, but the question is solely whether or not a general law can be made applicable to such case. In that event no special law should be enacted, whether the general law has or has not been actually passed by the Legislature. But, in addition to this, the question is, who shall determine whether or not the general law will sub-serve the purpose as well as a special act? This court has held that the Legislature is the exclusive judge to determine this question. The Constitution has vested the Legislature with the power over the subject involved in this enactment, and in matters over which it has the power to act it becomes the duty, as well as the right, of the Legislature to determine whether or not a general law can be made applicable to accomplish the purpose and whether or not it is necessary to put in force a special law to secure the object desired. In the case of Davis v. Gaines, 48 Ark. 371, this court said: “According to the adjudged cases, the Legislature is the sole judge whether provision by a general law is possible, except in the enumerated cases of changing the venue in criminal cases, changing the names of persons, adopting and legitimating children, granting divorces and vacating roads, streets or alleys. The provisions are merely cautionary to the Legislature.” Carson v. St. Francis Levee Dist., 59 Ark. 513; Boyd v. Bryant, 35 Ark. 69; Powell v. Durden, 61 Ark. 21; Cooley on Const. Lim. (7 ed.) 184; 8 Cyc. 851; State v. Hitchcock, 1 Kan. 178; Richman v. Supervisors, 77 Iowa, 513.
And the Legislature is likewise the sole judge of whether or not the requirement of the Constitution (art. 5, § 26) that notice of the introduction of a proposed bill be given has been complied with. Davis v. Gaines, supra.
It is claimed by defendant in its first plea that the act in question in its practical effect tends to regulate and burden interstate commerce, in which defendant is engaged as a common carrier, and that on this account the act is violative of section 8 of art. 1 of the Constitution of the United States and therefore invalid. But we think that the requirement of the establishment of a station at a given point upon the line of a railroad company, which is determined to be a public necessity, is but the exercise of the police power of the State by the Legislature for the safety, convenience and welfare of its citizens. The State has the right, in the exercise of its police power, to make all those regulations which have for their object the protection of the health, safety, and welfare of its citizens; and although such regulations may incidentally affect interstate commerce, they do not constitute a regulation or burden thereof, within the inhibition of the above constitutional provision of the general government.
In the case of Sherlock v. Alling, 93 U. S. 99, the Supreme Court of the United States said: “In conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution.” And in the case of Gladson v. Minnesota, 166 U. S. 427, the same court said: “Even when its road connects, as most railroads do, with railroads in other States, the State which created the corporation may make all needful regulations of a police character for the government of the -company, while operating its road in that jurisdiction. It may prescribe the location and plan of construction of the road, the rate of speed at which the trains shall run, and the places at which they shall stop, and may -make any other reasonable regulations for their management, in order to secure the objects of the incorporation, and the safety, good order, convenience and comfort of all the passengers and of the public. All such regulations are strictly within the police power of the State.”
In the exercise of the State’s police power it has been held that the States may pass laws requiring railroad companies to fence their right-of-way, providing for the quarantine of cattle carried in interstate commerce, requiring certain conveniences and facilities at its stations, requiring guards and guard posts on bridges and trestles and their approaches; and in requiring many other observances which will subserve the safety, life, health and convenience of the citizens -of the States. 2 Hutchinson on Carriers (3 ed.), § 955; Reid v. Colorado, 187 U. S. 137; New York, etc., Ry Co. v. New York, 165 U. S. 628; Missouri Pac. Ry. Co. v. Kansas, 216 U. S. 262; Smith v. Alabama, 124 U. S. 465; Kansas City So. Ry. Co. v. State, go Ark. 343.
Upon a consideration of the whole case we find no error in the trial thereof or in the judgment that was rendered; and the judgment is' accordingly affirmed | [
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McCulloch, C. J.
Appellant instituted an action against one Taylor on account for $74 before a justice of the peace, and sued out an order of general attachment with a garnishment clause summoning appellee, St. Louis, Iron Mountain & Southern Railway Company, as garnishee, the latter being indebted to Taylor for wages. The record of the justice shows' the following entry on the same day, after reciting service of summons and the writ of garnishment:
“December 4, 1909. Defendant appears, and by agreement of the parties in open court the wages of defendant garnished in the hands of the railroad company is to be paid into court and credited upon the judgment that may be rendered in this case. The attachment as to the property seized by the officer is discharged, and ordered the garnishee to pay money into court, defendant consenting in writing to its issuance.”
On December 15, 1909, the justice rendered a judgment against said defendant, and against the garnishee, in favor of appellant for the amount of his said claim and the costs of suit. On August 4, 1910, an execution was issued on the judgment, and appellee, a few days later, filed with the justice a verified petition, alleging that the execution was void, and praying that the same be recalled and quashed. Appellee also filed with the justice a bond undertaking to pay the judgment and costs if it be finally determined that the execution should not be quashed. The justice made an order superseding further proceedings under the execution until the appellee’s petition could be heard, but on final hearing denied the prayer of the petition, and appellee prayed an appeal to the circuit court, which was granted. The circuit court granted the prayer of the petition and quashed the execution, and an appeal was taken to this „ court.
Appellant’s counsel insists, in the first place, that the judgment or order of the justice refusing to quash the execution was not appealable, and bases his contention on the language of the statute, which provides that “any person aggrieved by any judgment rendered by a justice of the peace, except a judgment of dismissal for want of prosecution, may * * * take an appeal therefrom to the circuit court.” Kirby’s Digest, § 4665.
It is insisted that the ruling of the justice refusing to quash the execution was an order and not a judgment, and that the statute authorizes appeals only from judgments of a justice of the peace. Under the Code of Civil Procedure a judgment is defined as “the final determination of the rights of the parties in an action. ” Kirby’s Digest, § 6228.
This court has held that a decision of a justice of the peace refusing to set aside a judgment wrongfully obtained or refusing to quash an execution issued on such judgment is such a final judgment as is appealable. Scanland v. Mixer, 34 Ark. 354; Woolum v. Kelton, 52 Ark. 445; Knight v. Creswell, 82 Ark. 330; Dale v. Bland, 93 Ark. 266.
The statute expressly authorizes á proceeding to quash a void or improvident execution (Kirby’s Digest, § § 3224-3226) and this proceeding is made applicable before justices of the peace. Kirby’s Digest, § 4564; Scanland v. Mixer, supra, Dunnagan v. Shaffer, 48 Ark. 476.
A statute of this State on the subject of garnishments before judgment reads as follows:
“Hereafter no garnishment shall be issued by any court in any cause where the sum demanded is two hundred dollars or less and where the property sought to be reached is wages due to a defendant by any railroad corporation, until after judgment shall have been recovered by plaintiff against defendant in the action. No railroad corporation shall be required to make answer to, nor shall any default or other liability attach because of its failure to so answer, any interrogatories propounded to it in any action against any person to whom it may be indebted on account of wages due for personal services where a writ of garnishment was issued in advance of the recovery by plaintiff of a personal judgment against the defendant in any action for two hundred dollars or less, and any judgment rendered against any railroad corporation for its failure or refusal to make answer to any garnishment so issued before the recovery of final judgment in the action between the plaintiff and defendant in the cases mentioned in section 3695 shall be void, and any officer entering such a judgment or who may execute or attempt to execute the same shall be taken and considered a trespasser.” Act June 26, 1897, Kirby’s Digest. § § 3695 and 3696.
This statute applies to garnishments by attachment as well as garnishments authorized before judgment under the aet of April 19, 1895. In the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Walsh, 86 Ark. 147, we gave full force to this statute by holding that a judgment against a railway company as garnishee in violation of its terms is void, and we upheld the statute as a valid exercise of the legislative power. In Missouri there is a statute almost identical with ours, and the Supreme Court of that State held it to be constitutional. White v. Missouri, K. & T. Ry. Co., 280 Mo. 287, 130 S. W. 325, 29 L. R. A. (N. S.) 875. We concur in the excellent reasoning of that court on the subject.
It is also contended that this statute is for the benefit of railroad employees, who can waive its provisions, and that the railroad company can not complain. It is true that the statute is for the benefit of the employee, but by its express terms the employer, the railroad company, is excused from answering in a case which falls within the terms of the statute, and a judgment rendered in violation of the statute is declared to be void. The railroad company therefore has the right to insist that no judgment be rendered by default on a garnishment issued before judgment. This point was raised in the Missouri case supra, and decided adversely to appellant’s contention. It follows that the judgment of the circuit court was correct, and the same is affirmed. | [
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Wood, J.
(after stating the facts). Under the act of February 5, 1891, where the tenant refuses to pay rent when due the landlord may maintain an action of unlawful detainer against him, if he refuses to quit possession after the landlord has given him three days’ notice to quit and made written demand upon him for the possession. Section 3630, Kirby’s Digest; Parker v. Geary, 57 Ark. 303. The allegation in the complaint that the plaintiff was unlawfully deprived “of his one-third share of the crop of oats,” and that “defendant has refused to pay rent to this plaintiff, and has appropriated the entire crop of oats to his own use,” is sufficient to show that the appellant had raised an oat crop on a portion of the place, one-third of which was due appellee for the use of the land, and that appellant had not given to appellee this one-third, but had appropriated it to his (appellant’s) own use. The necessary inference from this allegation is that the appellee’s rent, represented by the portion of the crop he was to receive, was due, and that appellant had refused to pay or deliver it to appellee.
The other allegations of the complaint show that the appellant had violated the obligations of his contract with appellee in such manner as to evince an intention on his (appellant’s) part not to pay the rents as stipulated for, and, in fact, to abandon the contract. The complaint is crude, but, taken as a whole, it certainly states facts to show that appellant had wholly abandoned the contract which created the tenancy, and that his holding thereafter was unlawful.
The cause of action was stated inartistically and defectively, but it was nevertheless stated, and called for some response from appellant, and he must suffer the consequences of his failure to answer. As was said in Buckner v. Warren, 41 Ark. 534: “If the facts as set out in the complaint are true, the defendant had himself abandoned the contract. This authorized the plaintiff to disaffirm it, and to regain possession of his land by this summary process.” The allegation of the complaint that “plaintiff has caused a written notice to be served on the defendant more than three days before the commencement of the action demanding pos session of said premises, and said notice is hereto attached marked ‘Exhibit B’ and made part of this complaint,” was sufficient to describe the lands, when taken in connection with the further allegation that plaintiff had “rented to the defendant certain parts of his farm in section 16, township 21 north, range 5 east, in Clay County, Arkansas.” With the description of the land given in the complaint and the reference made to the “said premises,” possession of which was demanded in the notice that was made an exhibit to the complaint, the court could readily identify the land. The notice could be referred to, not to contradict or control, but in explanation of, the allegation. This is not in conflict with Buper v. State, 85 Ark. 223, where we held that the exhibit could not be used to control the averments of the complaint, hiere it is used, not to control, but to complete and explain the allegations of the complaint. Bouldin v. Jennings, 92 Ark. 299; Abbott v. Rowan, 33 Ark. 596.
The court will take cognizance that there are two judicial districts in Clay County, created by act of the Legislature, and will also take notice of sections, townships and ranges according to surveys of the United States Government, and of the particular judicial district in which these are located. Bittle v. Stewart, 34 Ark. 224. See also Rachels v. Stecher Cooperage Works, 95 Ark. 6.
There is no error, and the judgment is affirmed.
Kirby, J., dissents. | [
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Kirby, J.,
(after stating the facts.) The evidence on the part of the appellant is not sufficient to show that the check was tainted in its inception with illegality or fraud, or obtained from the maker by duress. Its president stated that the account for the claim was submitted to him and examined by himself and his inspector for some days before the check was finally given. That, while he regarded it an injustice, he gave the check for the amount claimed to be due by the Dry Dock Company, on completion of the vessel, in order to have same released and turned over to him, saying: “I wrote that check and delivered it to Mr. Smith, who was the office man, and also wrote my note in compliance with the contract for the last payment. Mr. Smith went up there, and Murnan told Smith to sue me. He said: ‘Mr. Murnan said you couldn’t leave here without a certified check for $530.21.’ I said: ‘You go tell Mr. Murnan that I won’t give him a certified check for that amount.’ That was the first time they ever asked me for a certified check. He said: ‘Well, what will you do, Mr. Roberts?’ I said: T will give you a check for it- — anything on earth to get out of here. ’ ”
In his protest and notice to the attorney for said Ship Yard Company, he stated that he had written the check under duress on account of the statement of the bookkeeper that “unless I did he did not think Mr. Muman would let the boat go. * * * Hence I submitted to this injustice with a view to getting the boat released from their control. And this protest will serve as a notice to the Helena Ship Yard & Dry Dock Company, H. C. Muman and Don G. Owens, as principals, that on my arrival at Little Rock I will file suit for damages against them.”
He gave no intimation to any of the parties in interest that he intended to stop payment of the' check, or that it would not be paid in the usual course of business upon presentation, and his protest, which was directed to the attorney for the Ship Yard Company, was only intended as a notice that he did not propose to be bound by the giving of said check to release any claim he might otherwise have for damages against said company because of its failure to comply with the contract. In other words, the check in payment for the claim was given with a full understanding of all the circumstances, and. the boat was turned over to appellant upon its delivery, and we see no reason why the maker of it should not be estopped to deny its validity. Springfield & Memphis. Rd. Co. v. Allen, 46 Ark. 220.
If, however, it be conceded that the transaction was so tainted with duress that it would have been available to appellant as a defense, had the suit been brought by the payee of the check, we still are of the opinion that appellant can not avail himself of such a defense herein.
The undisputed testimony shows that the plaintiff had no notice of any such defense between the original parties to the check nor of any facts that should have put it upon inquiry.
The conversation of Mr. Roberts of the appellant company with the president of the bank and the attorney of the Ship Yard Company occurred four or five days before the final settlement with the Ship Yard Company and the giving of the check sued upon, and related chiefly to the failure of said company to complete the boat on time, and his complaint that it was not then making the proper effort to complete it, and that it should take men off another boat and finish appellant’s, so he could remove it on the approaching rise of the river. Mr. Quarles, at this time, told him he had no interest whatever in the Ship Yard Company, and called in Judge Moore, who was its attorney, and who, as Mr. Roberts says, agreed to go down and see if he could not have the boat completed. Nothing was said about any claim of the Ship Yard Company for extras, nor was there any suggestion of the injustice of such a claim, and such conversation could not have put the bank on notice that a check thereafter given in all respects apparently valid was made under duress and affected by the terms of a written protest said to have been pinned to it. The reasonable and fair inference would have been that the matters in controversy between the appellant and the Ship Yard Company had been adjusted satisfactorily and finally settled by the giving of the note and the checks.
All the officials of the bank, who had anything to do with the transaction, testified that the bank had no notice whatever of any defect or irregularity about the check or its terms, or that it was other than it appeared to be, and that it was taken in the usual course of business, and the whole amount of it credited to the account of the payee. It is true, some of the witnesses on this point stated that “the proceeds” were credited to the payee’s account; but from their statements it is evident that they used such expressions as synonymous with “the amount” of the check. The check was presented to the bank in the usual course of business on the day of its date, without any notice on its face of any invalidity or defense, accepted by the bank and credited to the payee on its books.
In Burton v. United States, 196 U. S. 303, the court said: “When a check is taken to a bank, and the bank receives it and places the amount to the credit of the customer, the relation of creditor and debtor between them subsists, and it is not that of principal and agent.”
And also quoting from Craige v. Hadley, 99 N. Y. 131, 52 Am. Rep. 9, 1 N. E. 537: “The general doctrine that, upon a deposit made by a customer in a bank, in the ordinary course of business, of money, or of drafts or checks received and credited as money, the title to the money, or to the drafts or checks, is immediately vested in, and becomes the property of, the bank, is not open to question.” * * * The transac tion, in legal effect, is a transfer of the money, or drafts, or checks, as the case may be, by the customer to the bank, upon an implied contract upon the part of the latter to repay the amount of the deposit upon the checks of the depositor. The bank acquires title to the money, drafts, or checks, on an implied agreement to pay an equivalent consideration when called upon by the depositor in the usual course of business.”
It is true that the account of the payee of the check, the Ship Yard Company, was overdrawn in a large amount when this check was presented by it, and the amount thereof credited upon its account; but it has been held by our court that one who takes negotiable paper in payment of an antecedent debt before maturity and without notice of any defect receives it in the due course of business, and becomes, within the meaning of the commercial law, a holder for value, entitled to enforce payment without regard to the defense that may exist between the other parties to the paper; and this is in accord with the very general concurrence of judicial authority. Tabor v. Merchants’ National Bank, 48 Ark 458; Evans v. Speer Hdw. Co., 65 Ark. 210.
The undisputed testimony in this case shows that the appellee bank in effect cashed the check sued upon in the usual course of business upon the date it was drawn, without any notice of any infirmity in it or any defense that might be available between the parties to it, crediting the whole amount of it to the payee upon its account, and it thereby became a bona fide holder of the same for value, with the right to enforce it against the maker, free from any defense that may have existed between the original parties.
It is also contended by appellant that there was such an alteration of the check after it was made and delivered to the payee as should release it from payment. The undisputed testimony shows, however, that the check as sued upon was the same as made without any alterations or changes thereof, and that the bank had no notice at the time it was presented and credited to the account of the payee of the letter of protest, addressed to the attorney of the payee company, that had been pinned to the check at the time of delivery thereof to the payee, according to the statement of Mr. Roberts, the president of the appellant company.
This letter of protest was written upon a separate paper, without any memorandum on the face of the check, indicating that it was affected by any conditions not shown thereon, and only pinned to the check and easily detachable therefrom without leaving any evidence of any change in the terms of the check and, being detached therefrom at the time it was cashed without notice to the appellee bank, its rights were in no way affected by it being so severed and destroyed.
In Daniel on Negotiable Instruments, § 1407, it was said:
“But if the memorandum were so written upon the margin or any other part of the instrument that it could be readily separated from it, without giving it a mutilated appearance, a bona fide holder taking it without notice we should consider unaffected by its being so severed and destroyed. This view was well illustrated in a late Indiana case. If the memorandum were originally made upon a separate paper, there can be no doubt that, although a contract binding between the parties, it would be of no effect against a third party without notice, if the party who executes a negotiable instrument chooses to restrict its effect by a separate memorandum, instead of writing the entire contract in the body of the instrument, he should not be protected against a fraud of which he has laid the foundation.
“The holder should be protected, upon the principle that where one or two innocent persons must suffer, the loss should fall on the one who furnished the opportunity. The case is analogous to those in which blanks have been filled with excessive amounts. The promisor should be held bound when he has left his contract in a form to be mutilated by the cutting away of a part, as well as where he has left room for an alteration to be engrafted upon it.”
In this case the undisputed testimony shows that the appellee was the bona fide holder of the check for value without notice.
It was entitled to recover thereon, and the court correctly directed the jury to return a verdict, there being no disputed question of fact to be determined by them.
The judgment is affirmed. | [
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Hart, J.
This is an appeal by J. D. Warmack from a judgment rendered against him in favor of J. H. Askew and J. C. Karner. The suit was originally brought by J. H. Askew against J. D. Warmack to recover upon two promissory notes.
The defense was interposed that the notes were given to one J. C. Karner in payment of patent right territory, or in payment of the purchase money of patented instruments, and they were not executed on a printed form, and did not show upon their face that they were executed in consideration of a patented machine, implement, substance or instrument, as required by section 513 of Kirby’s Digest; and that said notes had been transferred by said Karner to the plaintiff Askew.
The plaintiff demurred to the answer, and his demurrer was overruled. Subsequently plaintiff asked that his complaint be amended, and, as amended, the complaint is a suit by J. H. Askew and J. C. Karner against J. D. Warmack to recover upon the contract of sale made by Karner to Warmack.
The defendant answered, and, among other defenses, set up that the action was barred by the statute of limitations of three years. The suit as first brought was upon the notes, and the second complaint in which Karner was made a co-plaintiff was upon the contract of sale. «
In the case of Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, the court held that the failure to comply with the statute in regard to the execution of a note given for a patented machine, implement, substance or instrument does not affect the validity of the sale, but only renders the note absolutely void; and that an adverse judgment in a suit on the note is no bar to an action upon the contract of sale. See also Tillman v. Thatcher, 56 Ark. 334.
It follows that a suit upon the notes and upon the contract of sale are entirely separate and distinct causes of action. The defendant answered the complaint which based the right of recovery upon the contract of sale, and thereby entered his appearance.
The filing of an amendment setting up an entirely separate and distinct cause of action and the answer to it are equivalent to the bringing of a new action and the entry of appearance thereto by the defendant. Choctaw, O. & G. Rd. Co. v. Hickey, 81 Ark. 579; Wood v. Wood, 59 Ark. 446.
Hence the case stands as if Askew and Karner, the plaintiffs, had brought suit against Warmack, the defendant, on the contract of sale on the 25th day of February, 1909, the date of filing the amended complaint. In such cases the statute of limitations as to the new cause of action continues to run until the filing of the amendment. Buck v. Davis, 64 Ark. 345.
The undisputed evidence shows that the cause of action is barred by the statute of limitations of three years if it shall be determined that the action is founded on a “contract or liability, express or implied, not in writing.” See Kirby’s Digest, § 5064.
On the 2d day of May, 1904, J. C. Karner, .by an instrument in writing signed by him, appointed J. L. Warmack as his exclusive agent to sell the Karner S'ash Lock, a patented article, in certain named territory for a period of time, and agreed to furnish said agent all the locks he might order at a designated price. . On the same day the notes originally sued on, amounting to $294, were executed .by Warmack to Karner. On the same day the following receipt was executed:
“$294. Received of J. L. Warmack two hundred and ninety-four dollars in full payment for seventy royalty checks for $4.20 each, being advanced royalty on Karner Sash Locks, the purpose of which is to carry the locks in stock ready for shipment to such points in the United States as they may direct.
(Signed) “J. C. Karner.” The form of the royalty check is as follows:
“Nickel Manufacturing Company.
“Morris, 111., $4.20.
“Upon presentation of this check, duly indorsed by one of my authorized agents, you will accept the same in payment of thirty-five cents per dozen on 12 dozen Karner Sash Locks at the price of $1.70 per dozen, and charge the same to my account on royalty.
“J. C. Karner.”
The Nickel Manufacturing Company was under contract with Karner to manufacture these sash locks, and sell them to his agents and take in payment therefor these royalty checks.
In the case of Columbia County Bank v. Emerson, 86 Ark. 157, the consideration of the notes sued on was the payment of royalty checks to be used in purchasing this same sash lock, and the court held that they, not having been executed in conformity with section 5x3 of Kirby’s Digest, were void and that no recovery could be had thereon.
It follows that the notes originally sued on are void, and no recovery can be had on them. The notes, being void, can form no part of the contract, and in that respect are just as if they had never been executed. The instrument of writing of May 2, 1904, in which Karner appointed Warmack to sell the sash locks, contains no provision that obligates Warmack to purchase any of the sash locks or royalty checks.
The same may be said of the $294 receipt issued by Karner on that day.' This receipt was not contractual in its nature, but is a mere acknowledgment that so much money was received in payment of royalty checks. Whatever contract or liability there was arises from facts outside of the receipt. The receipt does not embody any agreement between Karner and Warmack, and no promise or obligation is imparted by it. It follows that, whatever agreement was had between Karner and Warmack, it was a contract not in writing. Ashley v. Vischer, 24 Cal. 322, 85 Am. Dec. 65. See also 17 Cyc. 632.
Hence we conclude that the action was founded on a contract not in writing, and under the undisputed evidence is barred by the statute of limitations of three years.
The record shows that the case has been fully developed. It is therefore ordered that the judgment be reversed, and the cause dismissed. | [
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Wood, J.,
(after stating the facts). The court did not err in refusing prayers for instructions numbered 10 and 11. There was no evidence to show that the appellant had promulgated a rule for the safety of its servants as to the manner of unfastening the toggle chains. Even if a rule had been promulgated upon the subject, the prayers for instructions were defective because they did not leave it to the jury to determine whether or not the appellee had knowledge of such a rule, and, under the evidence, this was a disputed question of fact, as appellee himself testified that he was never directed by any one not to undertake to unload the cars while on the incline when they were fastened in an unusual manner; that he never knew of any instructions to any of the servants to that effect. Contrib utory negligence, under the evidence, was a question for the jury..
A majority of the judges are of the opinion that the undisputed evidence shows that appellee, in undertaking to unfasten the chains around the car load of logs in the manner indicated by his testimony, assumed the risk of the danger in so doing. The promise of the master to assume the risk refers to the particular car of logs that was unloaded by appellee three or four days before his injury, and not to the manner of the fastening of the logs on the particular car by which appellee was injured. Appellee had no right, according to his own testimony, to rely upon any promise of the master to repair the fastenings on any future car, for the master specifically limited his assumption of the risk to the car that appellee was unloading when he called the master’s attention, to its defective condition. If the master had said generally for the servant to go ahead and he would stop it, the case would have been différent; but the master only promised with reference to “that one,” i. e., the particular car that the appellee was then unloading.
The appellee himself testifies that he saw, four or five minutes before he was injured, that the car load of logs that injured him was fastened in the same manner as the car to which he had called attention three or four days before, and that the master had not corrected that manner of fastening the logs; that “he hadn’t lived up to his promise. ” This testimony of appellee shows that he knew that the promise of the master to repair had come to an end and had not been fulfilled, and that he, appellee, was no longer relying upon same. Since the master only told appellee “to go ahead with reference to that one, ” appellee, by undertaking to unfasten another and future car when he saw it to be dangerous to do so, assumed the risk.
The verdict is without evidence to sustain it. The judgment is therefore reversed, and the cause is remanded for a new trial.
Kirby, J., concurs in the judgment; Frauenthal, J., dissents. | [
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Hart, J.
This is an appeal by the Kansas City Southern Railway Company from a judgment rendered against it in favor of T. A. Thomas for the sum of $75 for damages .alleged to have been sustained by reason of the destruction of his property by fire by the railway company. The defendant railway company •has duly prosecuted an appeal to this court.
The plaintiff’s home was in the State of Texas, a few miles west of the station of Ravana, in the State of Arkansas. He purchased a ticket over the St. Louis & San Francisco Railroad Company from a station in the State of Oklahoma to Ashdown, in the State of Arkansas. His trunks were shipped as baggage, and when he arrived at Ashdown he had his trunks transferred to the station of defendant on the afternoon of his arrival. He applied to the agent for the purchase of a ticket from Ashdown to Ravana, and says that the agent told him that he could not sell him a ticket until the next morning, a short time before his train was due. He then says that he asked the agent to check bis trunks, and that the agent told him he could not do so until the next morning. The trunks were, however, by permission of the agent placed in the wareroom of the railway company at the station. That night, about 1 o’clock, the station was burned, and the trunks of the plaintiff were destroyed by the fire. No testimony was introduced as to the origin of the fire, except one witness testified that it seemed to have commenced around the flue in the colored waiting room. The fire spread rapidly, and the people that assembled were unable to extinguish it.
The cause was tried on the theory that the defendant was liable under the act of April 2, 1907 (Acts of 1907, p. 336), making railroad companies liable for damages caused by fire. The act is as follows:
“Hereafter all corporations, companies or persons, engaged in operating any railroad wholly or partly in this State shall be liable for the destruction of, or injury to, any property, real or personal, which may be caused by fire, or result from any locomotive, engine, machinery, train, car or other thing used upon said railroad, or in the operation thereof, or which may result from, or be caused by, an employee, agent or servant of such corporation, company or person upon or in the operation of such railroad, and the owner of any such property, real or personal, which may be destroyed or injured, may recover all such damage to said property by suit in any court in the county where the damage occurred having jurisdiction of the amount of such damage. It shall not be lawful for the defendant in such suit or action to plead or prove, as a defense thereto, that the fire which caused such injury was not the result of negligence or carelessness upon the part of such defendant, its employees, agents or servants; but in all such actions it shall only ■be necessary for the owner of such property so injured to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employees, agents or servants of such defendant, and if the plaintiff recover in such suit or action he shall also recover a reasonable attorney’s fee to be ascertained by the evidence in the case by the court or jury trying the same. Provided, that the penalty prescribed by section one of this act shall apply only when such employee, agent or servant is in the discharge of his duty as such.”
It is a well-known canon of statutory construction that the intention of the Legislature must be inferred from the plain meaning of the words used; and if the intention can ¡be so arrived at, the court cannot go further and apply other means of intérpretatioh. When tested by this rule, it is evident that the Legislature had in mind in passing the statute above quoted to make railroad companies liable for fires communicated by its locomotives and other instrumentalities used in the movement of its trains, and did not have in contemplation fires caused by the, burning of its buildings used in connection with the operation of its trains. There is no testimony tending to show that the fire was caused by or resulted from the operation of any train of the railroad company. Consequently, the defendant was not liable under the statute quoted.
Under the testimony of the plaintiff, the trunks were placed in the warehouse of the defendant at its station by permission of its agent. This raises the question of the liability of the defendant as warehouseman. In the case of Little Rock & Fort Smith Raihvay Company v. Hunter, 42 Ark. 200, the court said: “Of course, a warehouseman is not an insurer. He is only bound to ordinary and reasonable care of the commodity entrusted to him, and -is not liable even for thefts, unless they have been occasioned by his own negligence, nor for accidental fires.” See also Kansas City, Fort Scott & Memphis Railway Company v. McGahey, 63 Ark. 344.
There was no evidence to show that the fire was otherwise than of purely accidental origin. It follows that there is no evidence to support the verdict.
The judgment will be reversed, and, as the testimony shows that the case was fully developed, the cause will be dismissed. | [
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Kirby, J.,
(after stating the facts). It is contended that the circuit court erred in refusing to try the case de novo, which had been first appealed from the county court to it, after same had been reversed by the Supreme Court and remanded for a new trial, and this contention is correct.
The appeal, in the first instance, from the county court brought the entire matter to the circuit court for a trial de novo. “ It is the duty of the circuit court, when a case is appealed from the county court, to hear the matter de novo and to try the case and to exercise the same discretion therein in the same manner in which the county court might have done originally. When a case is appealed from the county court to the circuit court, the latter court obtains jurisdiction over the matter To the same extent as if it had been originally brought in that court, and it must proceed to fully try and determine the cause. It does not pass upon the question as to whether or not the county court has committed error in any of its rulings, either of law or fact, but it must try the case upon its merits, both of law or of fact, just as if it had been originally brought in the circuit court. It does not either affirm orreverse the findings of the judgment of the county court, but tries the cause alone upon its merits, and determines the same by the exercise of its own discretion and judgment. It must come to a final determination of the matter, and enter a final judgment thereon. After such final judgment has been made by it, it can then order the same back to the county court, with directions to enter such judgment as it has made, but it has no authority to remand the cause with power of the county court to proceed further therein, as it may determine. * * * Having this jurisdiction of the cause and being clothed with this power and discretion, the circuit court erred in not trying the matter anew and in remanding the same to the county court. ” Batesville v. Ball, 100 Ark. 496.
In that case the court also decided that the action oí tne circuit court in remanding the cause to the county court for further proceedings and refusing to entertain jurisdiction of the matter and finally pass upon the same in the trial anew was in effect a final dismissal of appeal and determination of the cause from which an appeal would lie.
It thus appears that the error of the circuit court in remanding said cause to the county court with directions to proceed further therein, instead of trying same anew, as the law requires, could have been corrected by an appeal to this court, and “prohibition is only granted when the usual and ordinary forms of remedy are insufficient.” Finley v. Moose, 74 Ark. 220. See also 32 Cyc. p. 613-15 and notes.
Said county court would doubtless not have undertaken to proceed in the matter, had an appeal been taken from the judgment of the circuit court remanding it; and, if it had, proceedings therein could have been stayed by an appropriate order of this court upon the appeal being lodged here. No error was committed by the court in denying the writ of prohibition, and the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). If appellant is estopped, it is because of the alleged representation of its vice president, Morton, made in the written statement in evidence. According to the testimony, Harris, trustee for the First National Bank of Fayetteville, requested Boles to get a statement of the amount that Boles was due it on the “home” and “mountain” places. Boles communicated this request to Morton, telling him that he was on a deal with Harris, and that Harris wanted the information. Morton made the statement in compliance with such request. Conceding that the statement was such a representation' as under the circumstances would estop appellant from asserting any claims contrary to what was contained in the statement, still -the statement shows that there was a “bal. $1,350 indorsed E. Pitkin and Elias Duncan.” But it does not show whether this amount was secured by mortgage on the “home” place or the “mountain” place. It must have been secured by one or the other. For Morton was requested to give Harris a statement of what was due >by Boles “on the home and mountain places,” or, in another form, a “statement of what we owe and what it is secured by.” Now, who can tell from the above statement whether the balance of $1,350 was secured by the “home” place or the “mountain” place? From the request made of Morton to show what was due on the “home” and “mountain” places, or to show what was due and how secured, the statement must have been intended to show that this sum was due and secured by mortgage on one- or the other of these places. It could not reasonably be inferred that this sum of $1,350 was not secured, for the request was to show how the amount due was secured. Harris was not interested in any amounts that were not secured. What right had Harris, as trustee, to assume .that the amount of $1,350 was secured by the “mountain” place, and not by the “home” place, or that it was not secured? None whatever.
The statement was too indefinite to constitute an estoppel against appellant as to the balance of $1,350 mentioned therein.
According to the testimony, it was intended by the statement to give Harris notice that the amounts named were due appellant and were secured by mortgage either on the “.home” place or the “mountain” place. The statement, being too indefinite to indicate which of the places was meant, could not constitute an estoppel against appellant. It was not shown that Harris, before making the loan, took any steps to have the statement or representation made more definite. This be might easily have done by consulting the record of mortgages. Of course, any statement that Boles made to him concerning this statement and what it was intended to represent could not bind appellant. All such statements would be res inter alios actae as to appellant, for Boles in securing the statement was representing Harris and not appellant.
“Before an estoppel can be raised, there must be certainty to every intent. The facts alleged to constitute it are not to be taken by argument or inference. 16 Cyc. and numerous cases cited in note. As estoppel bars the truth to the contrary, the party setting it up must prove it strictly. Nothing • can be supplied by intendment. First Nat. Bank v. Marshall & Ilsley Bank, 65 N. W. 604, and cases cited; First Nat. Bank v. Marshall & Ilsley Bank, 83 Fed. 725, 34.
The evidence does not warrant the conclusion that appellant, through its vice president, Morton, intended by its statement to deceive Harris, and malee him believe that appellant had no lien on lot x, block 1, in the city of Fayetteville, for the sum of $1,350. The most reasonable inference from the statement, taken in connection with .the other evidence, is to the contrary. Nor does the evidence warrant the conclusion that Morton was so grossly negligent in making the statement in the loose form given as to indicate an intention on his part to mislead and deceive Harris.
The statement was made rather to accommodate Boles and Harris, than otherwise, and was not in regard to any transaction in which appellant was interested. “This equity” (estoppel), “being merely an instance of fraud, requires intentional deceit, or at least that gross negligence which is evidence of an intent to deceive.” 2 Pom. Fq. Jur., § 807, note, citing numerous cases. See Jowers v. Phelps, 33 Ark 465.
The judgment is therefore reversed, and the cause is remanded with directions to enter a decree in favor of appellant in accordance with this opinion. | [
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Frauenthal, J.
This was a proceeding by mandamus, instituted by the Spybuck Drainage District No. 1, seeking a judgment to compel E. A. Rolfe as county judge of St. Francis County to order the clerk of said county to issue a warrant for the payment of certain assessments made for the benefits accruing to the public roads of said county by the construction of a ditch in said drainage district. The complaint' alleged in effect that the said drainage district was constituted and estab lished by the county court of St. Francis County under and in pursuance of section 1414 et seq. of Kirby’s Digest, for the purpose of constructing a ditch within the territory described in the drainage district. All- steps appear to have been taken for the establishment of said district and making the assessment of the benefits. Viewers were duly appointed by said county court, and, in compliance with the orders of said court, they assessed all the land in said district benefited by the improvement in proportion to the benefits thereby received. They assessed the amount of the benefits received by the public roads located within said district, and apportioned the cost of the drain according to said assessed benefits. The amount of the benefits thus received by said public roads in the district was assessed at $844.75. The viewers made report of said assessment to the county court. After due notice, the court found that said report was fair and just as to the benefits therein assessed, and approved and confirmed same. It was further provided in the said order of the county court that said benefits should be paid in installments of one-fifth each year, and that the deferred payments should bear interest at the rate of six per cent, per annum until paid.
The improvement was made and constructed in pursuance of said orders, and all assessments had been paid except those due from the county of St. Francis for the benefits ac cruing to said public roads. A statement of the amount thus due from St. Francis County for said benefits to said public roads was presented to the county court of said county, but said court disallowed same, and refused to make an order directing the clerk of the county to issue a warrant therefor.
It was further alleged that an appropriation for road purposes had been made by the levying court of said county at the time said drainage district was established, and that such appropriation had been made for each succeeding year. Defendant filed a general demurrer to this complaint, which was overruled. He thereupon made answer, in which, amongst other things, he denied that an appropriation to pay for said alleged assessment or for road purposes had been made at any time by the county court of said county, or- that there had at any time been any funds available according to law out of which to pay said assessment.
-Upon the trial of the cause, the circuit court adjudged “that E. A. Rolfe, as judge of the county courty of St. Francis County, be and he is hereby directed to make an order in the county court aforesaid directing the clerk1 of said court to issue a warrant in payment of the amount” of the assessment for the benefits received by the public roads in said district.
It is well settled that the remedy of .mandamus will only be granted in unusual cases, where other remedies fail, and where there is a clear legal right thereto. Mandamus will not lie to control or review the exercise of the discretion of judicial officers, but such remedy can only be invoked to compel such officers to exercise such discretion and act. Collins v. Hawkins, 77 Ark. 101; Branch v. Winfield, 80 Ark. 61; McBride v. Hon, 82 Ark. 483; Maxey v. Coffin, 94 Ark. 214; Garland Power & Development Co. v. State, 94 Ark. 422.
As a general rule, the party applying for a writ of mandamus must show a specific legal right to its issuance, and also the absence of any other legal remedy. For it is a well settled principle that mandamus will not be allowed to take the place of or usurp the functions of an appeal. Automatic Weighing Co. v. Carter, 95 Ark. 118.
The questions in this case to be determined are whether the plaintiff showed that it had a clear legal right to this remedy which it has invoked, and whether it has or had any other ad equate remedy to obtain the relief sought. In order to settle these questions, it is necessary first to determine the nature of the assessment of the benefits which were made by the viewers of this drainage district when the same was approved by the county'court of St. Francis County.
It is provided by our laws that the county court of each county shall have the exclusive original jurisdiction “to audit, settle and direct the payment of all demands against the county.” Kirby’s Digest, § 1375; Constitution of 1874, art. 7, §28; Shaver v. Lawrence County, 44 Ark. 225; Hempstead County v. Graves, 44 Ark. 318; Chicot County v. Kruse, 47 Ark. 80; Clark County v. Calloway, 52 Ark. 361.
"It is also provided by statute that “no moneys derived from a tax levy by the county court shall be paid out of the county treasury except on the order duly made by said court, while in session, and entered upon the records of its proceedings.” Kirby’s Digest, § 1451; Parsel v. Barnes, 25 Ark. 261. By section 1505 it is provided: “Every order of allowance made by a county court shall set forth the appropriation out of which the same is to be made.”
If, therefore, the amount of said assessment for the benefits accruing to the public roads is only a claim against the county, then the county court of St. Francis County had the exclusive jurisdiction to pass upon it and to allow or disallow the same as in its discretion it deemed right and just. From such action of the county court an appeal would lie to the circuit court.
It is only where the county court refuses to act at all upon a claim that it can be compelled to do so by mandamus. Before such remedy can be obtained, it, must be first shown that the claim was duly presented to the county .court for allowance, and that such court declined or refused to act at all upon it. However, where a judgment has been recovered against a county, then fhe owner thereof has a clear right to its payment, which can only be obtained by a warrant upon the treasurer of the county. This warrant can only be issued by the clerk when an allowance therefor has been made by the county court and an order entered upon the records. Kirby’s Digest, § 1459. It has therefore been held that a man damus will lie to compel the county court to make an order directing the issuance of warrants in payment of a judgment obtained against it. St. Louis National Bank v. Marion County, 72 Ark. 27; Little Rock v. United States, 103 Fed. 418.
The question then recurs: What was the nature of the assessment made for the benefits received by the public roads in the drainage district as reported by said viewers after such report was by the county court duly approved and confirmed? Was it a judgment, or only a claim against the county?
A judgment is defined by our statute to be “the final determination of the rights of the parties in an action.” Kirby’s Digest, § 6228. The rights of the parties are determined by a trial, which is defined to be “a judicial examination of the issues, whether of law or of fact.” Kirby’s Digest, § 6169.
Now, the establishment of a drainage district in pursuance of section 1414 et seq. of Kirby’s Digest is in effect the organization of an improvement district for the purpose of constructing a ditch in the territory embraced by the district. The cost of the improvement is paid by assessments made against the lands and public and private roads located therein, according to the benefits received. The amounts of these various benefits are determined by viewers and by the county court upon approving their report. But such finding of the amounts of these benefits is not a final determination of the rights or liability of the parties relative thereto, and does not become a judgment therefor against the owners of the lands in the district, or against the county which owns the public roads. On the contrary, it is provided by section 1435 of Kirby’s Digest that, if the assessments of the benefits are not paid, the collector of the district shall institute suit to recover all delinquent assessments. Such suits must, of course, be instituted in a court having jurisdiction thereof; and if a suit is brought to obtain a recovery against the county, it must be brought in the county court, which has exclusive original jurisdiction of all claims against the county. The mere finding of the amounts of such benefits by the viewers, and the approval of their report by the county court, does not become a final determination, barring any legal defenses against a recovery thereof. Defense can still be made by individuals against such recovery by showing that some jurisdictional defect exists in the establishment of such district or in the making of such assessments, and the county court has the right, upon the same lawful grounds, to defend against, the recovery of such assessment of benefits claimed to be received by the public roads in the district. The action of the county court in this special proceeding establishing the drainage district and approving the assessment of benefits is not a judgment for such assessment either against the individuals or against the county. Such action is only one of the proceedings prescribed by the statute for the purpose of creating a claim for the recovery of such assessments. The right to the assessment can only be enforced by a suit brought thereon, and in such suit only can the liability of the parties be finally determined.
It follows that the assessment of the benefits received by the public roads in said district made by the viewers, and approved by the county court, was not a judgment against the county, but it was only a claim, the legal right to recover which could only be determined upon a presentation of such claim to the county court for allowance.
It follows that the court erred in overruling the demurrer to the complaint. The judgment is reversed, and this cause is dismissed. | [
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McCulloch, C. J.
This is an action instituted by appellee against appellant in the circuit court of Sharp County, Northern-District, to recover the sum of one hundred dollars alleged to be-dire as damages resulting from -the alleged breach by appellant of his contract with appellee employing the latter as his agent to sell a certain tract of land. Appellee recovered judgment below for $25.
The Constitution (art. 7, § 40) provides that justices of" the peace shall have original jurisdiction “exclusive of the circuit court in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest.” It 'has been held by this court that the term “matters-of contract” embraces an action for unliquidated damages when, the action is founded upon a contract. Stanley v. Bracht, 42 Ark. 210; Koch v. Kimberling, 55 Ark. 547.
It follows that the circuit court had no jurisdiction of the cause of action set forth in the complaint. Therefore the.judgment is reversed, and the cause dismissed. | [
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Frauenthai,, J.
This was an action instituted by Joseph Norman, the plaintiff below, to recover the value of a bale of cotton which he owned. It was originally instituted in a justice of the peace court against Bertig Brothers, the Paragould Grocer Company and D. D. Hodges as defendants. The cause of action was in that court based upon allegations that the plaintiff had delivered or caused to be delivered to the defendants the bale of cotton, and that it was sold or shipped by them, and that they had refused to pay therefor. The case was appealed to the circuit court, and in that court the complaint was amended, and in substance alleged that the cotton was delivered to Bertig Brothers, and that, by the negligence of all the defendants in failing to properly care for same, the cotton was lost. It was also alleged that defendants had converted the cotton to their own use and benefit. Upon the trial of the case in the circuit court, and after the introduction of all the testimony, the defendants “moved the court to require plaintiff to state whether he sued upon account, in bailment, or conversion. Thereupon plaintiff stated that the action was founded upon bailment. ”
It appears from the testimony that in April, 1907, the plaintiff hauled a lot of seed cotton to the Farmers’ Gin Company, a business corporation located at Paragould, in order to have the same ginned and baled, which was done in a short time thereafter. The plaintiff resided in the county, some distance from the gin, and he claimed that he gave no directions to the ginner as to the disposition of this bale of cotton at the time he delivered the seed cotton. After ginning the cotton, the Grin Company sent the bale by its driver to a public platform situated at or near the depot in that city. At this platform cotton was weighed by a number of mercantile companies located in said city who were engaged in buying and shipping cotton. Two of these mercantile companies — Bertig Brothers and the Joseph Mercantile Company — had weighers at this cotton platform who weighed and placed tags upon the bales with consecutive numbers thereon. The bale in question was by the Gin Company marked “ J ON, ” and by its driver hauled to the public platform, where the weigher of Bertig Brothers was at work. This weigher weighed the cotton and placed thereon a tag of Bertig Brothers marked “B-2977,” with notation thereon “to hold.” The bookkeeper of Bertig Brothers was notified thereof, and he entered the bale on the cotton book of the company, with this number; the name of the plaintiff as owner, and the notation that it was not to be shipped. It appears that the plaintiff never saw Bertig Brothers relative to this cotton, and gave no direction to them to take possession or otherwise to control or have custody thereof. The driver of the Gin Company hauled the bale at the direction of the manager of the gin to the public platform and there unloaded it.
It appears that a number of bales owned by various merchants and others was upon this public platform, and that, according to the custom, when cotton which was not sold to any of these merchants was placed upon the platform, the weigher would weigh and tag the same for the convenience of the owner and also of these mercantile companies, so that said bale could be identified from the other bales upon the platform. The notation “to hold” was placed thereon to indicate that it was not owned by any of the mercantile companies and should not be shipped out. The number of the bale and the name of the owner was placed upon the cotton books of Bertig Brothers for convenience only. The notation was made on the books showing that it was not bought by Bertig Brothers, and that they had no interest therein; and if subsequently they did purchase it, the entry of the number of the bale would appear in consecutive order upon their books.
It appears that, about a week or so after he had delivered the cotton to the Gin Company, the plaintiff made an arrangement with the Paragould Grocer Company to take the cotton from the gin and ship same, and, after its sale, to apply the proceeds upon certain indebtedness due by the plaintiff. The bale was hauled to the public platform without any knowledge or direction of plaintiff or of the Paragould Grocer Company. The bale remained on the platform for about two weeks, when some one whom the weigher did not personally know, but whom the testimony tended to prove was the shipping clerk of the Paragould Grocer Company, notified the weigher that the cotton belonged to it or was in the charge of that company, and thereupon the weigher notified Bertig Brothers’ bookkeeper of. this, and he directed the weigher to take the tag from the bale, which was immediately done. The bale was then left upon the public platform, just as it was when hauled there by the driver of the Gin Company. It remained on the platform about three weeks thereafter, when it disappeared.
There was some testimony tending to show that about this time an agent of the Paragould Grocer Company presented to the agent of the railroad company at that place a bill of lading for this bale of cotton for the purpose of shipping it. The depot agent testified that, before signing same, he went to the platform to check the bale, and, not finding it, did not issue the bill of lading therefor. No inquiry or investigation as to this bale seems to have been made by any one from this time until about one year later, when the plaintiff, seeking settlement therefor from the Paragould Grocer Company, learned that it had not shipped or sold it. During all this time the plaintiff understood that the Paragould Grocer Company had obtained the.cotton under his direction, and had sold same for him.
The testimony on behalf of Bertig Brothers proved that the bale of cotton was not taken, shipped or sold by them. Upon the trial of the case, a verdict was returned in favor of the plaintiff and against Bertig Brothers only, and they alone have appealed from the judgment entered upon this verdict to his court.
It is urged by counsel for Bertig Brothers that the action as originally brought was one sounding in tort for the conversion of the property, and that the complaint could not be amended so as to base the action upon a bailment. But we are of the opinion that the allegations of the complaint in the justice of the peace court, and as it was amended in the circuit court, were sufficient to make the action one of assumpsit. The action of assumpsit is one for the recovery of damages for the nonperformance of a simple contract. Such contract may be expressed or implied, and the action is based upon the breach thereof, and is therefore ex contractu. 2 Enc. PI. & Prac. 988.
Giving to the pleading that liberal construction accorded by our practice, the complaint as originally filed alleged that the defendants had obtained and converted the bale of cotton, and were liable to plaintiff upon an implied promise to pay for the value thereof thus received by them. At the trial, the plaintiff, when required to elect or specifically name his cause of action, in effect based it upon the allegations that a contract of bailment existed between the parties, and that the defendants had breached that contract by negligently failing to care for the property intrusted to them. Under the allegations made in the complaint and under those made at the trial, the plaintiff founded his cause of action upon a contract of bailment and the breach thereof. In the former, upon the allegation that after the bailment the defendants had sold and converted the property and failed to account for its proceeds; in the latter, that after the bailment said defendants had negligently lost the property. Under both allegations, the suit was for damages for .the breach of contract, and was founded in effect upon the same cause of action. Whether the breach of contract grew out of the failure to pay the proceeds of the bale upon an implied promise to do so by those who had obtained it, or out of the negligence of those who, as bailees, were intrusted with its care, the remedy was an action of assumpsit. Ferrier v. Ward, 9 Ark. 85; Stanley v. Bracht, 42 Ark. 210. The action instituted was therefore based, and recovery can only be had, upon a contract of bailment and the breach thereof by the defendants.
There was no testimony adduced upon the trial of this case proving or tending to prove that Bertig Brothers sold, shipped or converted this bale of cotton, or in any way received anything of value therefor. Their liability can therefore only be based upon the theory that an express or implied contract of bailment existed between them and the plaintiff by which they had the possession, custody and control of the bale of cotton for him, and during the continuance of that relation the cotton was lost through their negligence.
A bailment has been differently defined by the different text writers, and also in the different opinions of the courts. By all, however, it has been recognized that there must be a contract expressly entered into or one arising by implication, growing out of the delivery of property to the party intrusted with its care to constitute this relation. Such delivery may be actual or constructive; but, in order to constitute the transaction a bailment, there must be a delivery to the bailee and also an actual acceptance thereof by him. There must be a full delivery of the property to the bailee, so as to exclude the possession of the owner and all other persons, and give to the bailee for the time being the sole custody thereof. In addition to this, the party who is sought to be charged as bailee must J accept the property, because the relation is founded upon con- ' tract, and the duty and liability springing therefrom can not be thrust upon one without his knowledge or consent. The acceptance, however, may be proved either directly or by circumstances; but in either event the proof must show that the ] person to be held knows that he is bailee of the property, or has notice of his possession or custody thereof, before he can be J charged with the duties and responsibilities growing out of this relation. Story on Bailments, •§ 2; Hale on Bailments, 13; Lawson on Bailments, 12; Van Zile on Bailments, § 3.
The relation of bailment may exist from the fact that the property has come into the possession of a person, even though accidentally or by mistake; but the responsibilities and duties growing therefrom can only exist and continue so long as the party to be charged has and knows, or has notice, that he has possession and custody thereof. Hale on Bailments, p. 14; Van Zile on Bailments, § 19.
The degree of care and diligence that must be given by the bailee to the property intrusted to his care depends upon the nature of the bailment; whether it is for the sole benefit of the bailor, or of the bailee, or whether the benefit is reciprocal. If the benefit arising from the bailment is reciprocal, then the law requires ordinary care and diligence on the part of the bailee and makes him responsible only for ordinary neglect. Story on Bailments, § -23. And this is the extent of his- duty and liability, even though he may be so interested in the property as to make him a bailee for hire. In such case, the bailee is liable only for negligence; and such negligence must be proved by the party seeking to make him responsible therefor. The mere loss of the property does not ordinarily fix a liability for the loss upon him, but it must be further shown that said loss arose by reason of his negligence.
In the case of James v. Orrell, 68 Ark. 284, involving an action against a bailee, the trial court instructed the jury that, “the loss of the cotton being admitted, the burden is upon the defendant to show that such loss was not caused by the negligence of him or his servants; and, unless you find by the preponderance of the evidence that the loss was not caused by such negligence, your verdict will be for the plaintiff.” This instruction was held to be erroneous, and the court in that case quoted the following with approval from Story on Bailments (8th ed. §410): “With certain exceptions, which will hereafter be taken notice of, as to innkeepers and common carriers, it would seem that the burden of proof of negligence is on the bailor, and proof merely of loss is not sufficient to put the bailee on his defense. *' * * As negligence is the foundation of the action between bailor and bailee, the duty of proving such negligence is on the former, rather than that of disproving it on the latter.” To the same effect see Tombler v.Koelling, 60 Ark. 62; Union Compress Co. v. Nunnally, 67 Ark. 284.
But it is urged by counsel for appellee that a bailee for hire must first explain the loss of the goods which came into his possession before it can be held that the bailor must prove that such loss arose from some act of negligence upon the part of the bailee. But this rule is only applied to those cases where the bailee has actual and exclusive possession of the property intrusted to his care. It is a rule which is founded upon necessity, and grows out of the fact that the bailee, having the exclusive possession of the property, has also the exclusive means of showing what became of it. The rule is founded upon the principle that the bailee, having peculiar if not the exclusive means of knowledge of the facts growing out of his exclusive possession and custody of the property, is best able to prove them. Prince v. Alabama State Fair (Ala.), 28 L. R. A. 716; Claflin v. Meyer, 75 N. Y. 260.
This rule, however,, does not obtain where the bailee does not have the exclusive possession of the property at the time of its loss. If the possession of the bailee is not actual and exclusive, or if the owner has such charge or possession thereof that he is equally able to show the facts, then it does not devolve upon the bailee to account for its loss or to show in effect that he was free from negligence. St. Louis, I. M. & S. Ry. Co. v. Weakley, 50 Ark. 397.
In the case at bar, the evidence does not show that the bale of cotton was in the actual possession of Bertig Brothers, or in their exclusive possession at the time of its loss. It was placed upon a public platform, without any agreement made between plaintiff and Bertig Brothers that they should have the charge thereof or should care therefor. The tag of Bertig Brothers was placed upon the bale by the weigher only for the purpose of identifying it, and to keep it from being shipped with the other cotton on the platform. If by this act Bertig Brothers had any kind of possession or custody of the bale, they shortly afterwards, and long before the bale disappeared from the platform, took this tag off from the bale, and thus relinquished all such possession or custody of it. They did not put the tag on the bale by agreement with the plaintiff, and were therefore under no obligation or duty by reason of that act to continue their tag on it. The bale, when placed upon the public platform, was still presumptively in the constructive'possession of the true owner thereof, and especially is this true after the tag was taken off the bale. At that time the bale was on the platform just as it had been hauled there by the driver of the gin company, and so remained for several weeks thereafter. The defendants, Bertig Brothers, did not possess any peculiar means of knowledge relative to this cotton, or as to where it went, beyond that possessed by the owner thereof, or by the defendant, the Paragould Grocer Company, or by any other person who had cotton weighed on this public platform. They were under no obligation to plaintiff, either by contract, express or implied, to put a tag on the bale or to keep it there after it was placed .thereon. When the bale disappeared, there was no tag of Bertig Brothers thereon, and at that time they did not have possession thereof other or further than the true owner had. Under these facts and circumstances, they were not required therefore to show how the loss of this bale of cotton occurred. If it can be said that they were, at the time of its •disappearance, in the constructive possession of the bale, then under- the circumstances of this case it devolved upon the plaintiff to prove by evidence that its loss occurred through their negligence.
The court instructed the jury relative to this question as follows: “7. You are instructed that if you find from the evidence that the cotton was in the possession of Bertig Brothers, within the meaning of the instructions hereinbefore given you, either with' or without the directions of plaintiff, and if you further find that Bertig Brothers either took or retained possession of said cotton with the expectation of buying the cotton, and thereby making a profit, then Bertig Brothers would be bailees for hire within the meaning of the law, and it would be your duty to find for the plaintiff and against the defendants, Bertig Brothers, unless you further find that Bertig Brothers have explained the loss of the cotton.”
We are of the opinion that the court erred by telling the jury in this instruction that it was the duty of Bertig Brothers to explain the loss of this cotton. Under the undisputed facts and circumstances adduced in evidence in this case, Bertig Brothers did not owe in any event any greater duty than that of ordinary care in regard to the bale of cotton, and were liable only in event it was lost by reason of their negligence; and the burden of proving such negligence was upon the plaintiff.
For the error in giving said instruction No. 7 the judgment is reversed, and this cause is remanded for a new trial.
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McCujxoch, C. J.
This action involves an attack by landowners on the validity of an act and an amendatory act of the General Assembly of 1909, creating Eevee District No. 1 of Crawford County, Arkansas, the name and style of the organization being stated in the act as “Board of Directors of the Crawford County Levee District.” The original act, approved March 15, 1909, contains the following section relating to assessments to defray the cost of building and maintaining the levee:
“That for the purpose of building, repairing and maintaining the levee aforesaid, and for the purpose of paying such sums as may be necessary for the condemnation of property as hereinbefore provided, and for carrying into effect the objects and purposes of this act, the Board of Directors of Crawford County Levee District shall have power, and it is hereby made their duty, to assess and levy, annually, a tax upon the valuation as it shall appear each year upon the real estate assessment book of Crawford County, Arkansas, upon all lands and real estate within said district; provided, further, that no error in the names of (or) residence of the owner of the land or real estate, or the description thereof, shall invalidate said assessment or levy of taxes, if a sufficient description is given to ascertain where the lands or real estate is situated. Whenever the board of directors may deem it advisable, they may employ one or more competent surveyors whose duty it shall be to survey any or all of the lands of the district, as they may be directed by the board, for the purpose of ascertaining the lands subject to taxation hereunder.” (Sec. 4, p. 163, Acts of 1909).
The act approved April 23, 1909, amended section 4 of the original act as follows:
“That for the purpose of building, acquiring, repairing and maintaining the levee aforesaid and for the purpose of paying such sums as may be necessary for the condemnation of property as hereinbefore and hereinafter provided, and for carrying into effect the objects and purposes of this act, the Board of Directors of the Crawford County Levee District shall have power, and it is hereby made their duty, to assess and levy annually a tax upon the valuation of the real estate, including the increased value or betterments estimated to accrue from protection given against floods from the Arkansas River by said levee; and upon all lands and real estate within said levee district as the same shall be assessed by a board of assessors as is hereinafter provided, * * * and such board of assessors shall make an assessment of all the lands in said district in a book or books provided by the board for that purpose. The said lands shall be entered upon said book or books in convenient subdivisions, as surveyed by the United States Government, in appropriate columns showing the names of the owners of said lands, a description of said lands, showing the number of acres in cultivation and in woods as nearly as said assessors can ascertain without measurement, the value thereof as estimated increased by levee protection. * * * The assessors shall make their assessment at such times as they may be directed to do so by the board of directors and shall place in the hands of the president of the board of directors their report of said assessment; thereupon the president of the board of directors shall cause a notice to be published, * * * calling on the landowners aggrieved by reason of the assessment to appear on the day therein named before the board of assessors at a place of meeting to be named in said notice, for the purpose of having any wrongful or erroneous assessments corrected; that, after said notice shall have been given, the assessors shall meet at the place named in said notice on the day mentioned therein, and shall hear any complaint of landowners and persons interested and adjust any errors or wrongful assessments, and their- assessments as adjusted shall be the assessment of said levee district until the next assessment shall be ordered by the board of directors.”
The chancellor sustained a demurrer to the complaint, and the plaintiffs, after declining to amend and suffering a decree to be entered dismissing the complaint for want of equity, appealed to this court.
The whole statute, as originally enacted and as amended, is assailed on the ground that the Legislature exceeded its powers in attempting to create by direct legislation a district for local improvements outside of a city or town, to be paid for out of special assessments, without providing some method of obtaining the consent of the property owners within the district to be affected. That question has never been expressly decided by this court.
Craig v. Russellville Waterworks Improvement Dist., 84 Ark. 390, involved that question as to improvement districts in cities and towns, and the court held that such a statute was void by reason of its failure to provide for obtaining the consent of the property owners. The court based its conclusion entirely on the provision of the Constitution relating to improvement districts in cities and towns. The court, in disposing of that case,'said: “It (the constitutional provision referred to) created a vested property right in owners of real estate in cities and towns. It is a guaranty to them that their property shall not be taxed for local improvements except upon an ad valorem basis, and upon the consent of a majority in value of those to be affected by such improvement. Having this constitutional guaranty that their property shall not be subject to assessment except in this manner, then, until it is assessed in this manner, they have a right to object to any taxation upon it for the purpose of local improvements. * * * It is not the province of the Legislature to determine whether such consent has been obtained as a basis for the improvement. Its province is to create a procedure for obtaining such consent and a forum to determine whether such consent is obtained.”
The Constitution is silent as to improvement districts outside of cities and towns, and of this the court in the Craig case, supra, spoke as follows: “This restriction only reaches to local improvements in cities and towns, and leaves the General Assembly free to exercise its sovereign will in this respect elsewhere in the State. The power to create districts for local improvements and to provide a method for taxation therein, and the breadth of that power, and the narrow scope of judicial inquiry into it, have been considered by this court in recent cases.”
This, of course, must be treated as dictum, so far as it attempted to decide the question now' before us, though it was pertinent in the discussion of the questions then before the court. Undoubtedly this court has, in many cases, treated the question as settled that the Legislature may create improvement districts outside of cities and towns without providing for obtaining the consent of the property owners. Altheimer v. Plum Bayou Levee Dist., 79 Ark. 229; St. Louis S. W. Ry. Co. v. Red River Dist., 81 Ark. 562; Coffman v. Drainage Dist., 83 Ark. 54; Sudberry v. Graves, 88 Ark. 344.
The general statute of this State authorizing the formation of drainage districts by order of county courts contains no provision for ascertaining the will of the property owners, and does not make the authority of the county court depend on a petition signed by a majority of such owners; yet the court has repeatedly sustained assessments levied pursuant to the terms of this statute. Cribbs v. Benedict, 64 Ark. 555; Brown v. Henderson, 66 Ark. 302; Driver v. Moore, 81 Ark. 80; Sudberry v. Graves, supra; Ritter v. Drainage Dist., 78 Ark. 581; Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30.
'An examination of the opinions in those cases will disclose the fact t'hat almost every conceivable objection was raised as to the validity of the statute and proceedings, but this point was never suggested nor expressly decided. It is true the power of the court in the drainage statute is made dependent upon a finding that the improvement will be conducive to the public health or welfare, or that it will be a public utility or benefit, and for this reason the power may be referable to the police power. But still the formation of the district is authorized without the consent of a majority of the property owners where the improvement will be of public benefit. ’
In Sudberry v. Graves, supra, we followed the Supreme Court of the United States, holding that it is within the power of the Legislature to ascertain directly the amount of benefits and to levy assessments without delegating the power to do those things to a subordinate agency. We conceive the question now before us to fall within that principle. There being no constitu tional hindrance, the Legislature may, in the exercise of the sovereign power, ascertain in its own way the will of the property owners to be affected by the local improvement, and create the district and levy assessments for the construction of an improvement. This falls within the legislative power to legislate for the benefit of the whole State or for the special benefit of’ any given locality thereof.
We find many expressions in the authorities, so ably and interestingly discussed by counsel for defendants, which sustain their contention that assessments for local improvements must be based on the consent of a majority of those who are to be taxed, but on a careful consideration we are of the opinion that the views we have announced are sound and are in accord with our previous decisions.
The validity of the amendatory act of April 23, 1909, is challenged on the ground that it authorizes assessments based on valuation as increased by the improvement. The act clearly states that the assessment shall be levied on “the valuation of the real estate, including the increased value or betterments estimated to accrue from protection given against floods.” The assessors are authorized to ascertain the value of said lands “as estimated increased by levee protection,” and “the assessments as adjusted shall be the assessment of said levee district until the next assessment shall be ordered by the board of directors.” It is, we think, well settled by authority that assessments for local improvements must be based on special benefits to accrue therefrom, and must be laid in substantial proportion to such benefits and not in excess thereof. This principle is nowhere better expressed than by Special Justice Cockrill in delivering the opinion of the court in Kirst v. Street Imp. Dist., 86 Ark. 1, as follows:
“Special assessments for local improvements find their only justification in the peculiar and special benefits which such improvements bestow upon the particular property assessed. Any exaction in excess of the special benefit is, to the extent of such excess, a taking of property without compensation. Notwithstanding those principles so firmly settled, and in spite of Norwood v. Baker 172 U. S. 270, it has been repeatedly held by the Supreme Court of the United States and this court that an act of the Legislature providing for the assessment of the cost of a local improvement according to the value of the property itself is not arbitrary, and is not in conflict with the Federal Constitution. These decisions are based on the principle that it must be assumed that the Legislature, in adopting such a method, has determined that the amount of benefits will accrue in proportion to the value of the property itself, and thus the assessment is still according to benefits, within the meaning of the law.”
Judge Riddick, speaking for the majority of the court in Ahern v. Bd. Imp. Dist, 69 Ark. 68, said: “It has often been decided that the only sound principle upon which assessments for local improvements can stand is that the property assessed is specially and peculiarly benefited by the improvement. If this be the basis upon which such assessments rest, then the most equitable method of apportioning the burden among the property holders of the district is by assessment in proportion to benefits.”
The opinions in many other cases express the same idea. It has also been held in many of the cases that local assessments may be based on valuation of the property to be benefited, but it is always explained that this is on the theory that the Legislature has determined that the benefits will accrue in proportion to the value of the land, and that the courts should respect that determination. Judge Riddick explained that in the Ahern case supra, and in the case of St. Louis S. W. Ry. Co. v. Board of Directors, 81 Ark. 567, we said: “The fact that the assessment is made upon the whole value of the property does not imply that it is not also according to the benefits to accrue from the improvement, for it is not an arbitrary or unreasonable method of ascertaining the amount of the benefits to assume that they will accrue in proportion to the actual value of the whole property. The Legislature acted upon this assumption in providing that the assessments should be fixed according to value, and we can not say that it is arbitrary or unreasonable.”
We have never held, nor are we aware that any other court has ever held, that assessments of local improvements may be assessed according to value as such, but such assessments are always sustained -distinctly upon the assumption that the benefits will accrue in proportion to such value, and that after all this is only a method of assessing the benefits. Oúr general statute as to local improvements in cities and towns, as originally enacted, provided for assessments according to valuation fixed from year to year for county taxation. The valuation so fixed of course included the increase from year to year. Nevertheless, the assumption is that the benefits will continue to increase from year to year in the same proportion, and that is the theory upon which the assessments were sustained.
But here we have a statute which authorizes assessments on valuation and benefits. It would be a contradictidn of terms to say that this was intended as an assessment of benefits on the assumption that the benefits will accrue in proportion to the value of the land, for, if that be true, why include the estimated benefits in the assessment of values ? This method of assessment necessarily excludes the idea that the assessment of valuation was intended as a method of assessing the benefits.
The injustice of this method of assessment was very aptly illustrated in the argument of counsel for defendant. Let us suppose the original value of one tract of land in the -district to be $50 per acre, and the estimated benefits to be $5 per acre, making the total in-creased value by reason of the improvement $55 Per acre. Another tract may be valued at $5 per acre, and the estimated benefit $50 per acre, making the increased valuation $55 per acre, the same as the other tract. Now, under this method both tracts are taxed precisely the same amount, whereas one has received ten-fold the benefits that -the other has received. Is this in accord with the rule fixed by all courts that, the assessments must be in proportion to benefits? A method of assessment which could result in this way was expressly condemned by this court in Kirst v. Imp. Dist., supra, as violative of the uniformity clause of the Constitution.
It is earnestly insisted that the language of this statute is substantially the same as that used by the general statute authorizing the formation of levee districts by order of the county court, and that that statute passed in review before this court in Overstreet v. Levee District, 80 Ark. 462, without condemnation. In that case the method of assessment was not called to our attention, and no objection was made to it on the ground that the statute provided an improper basis of assessment. The question now before us was not raised, and that case can not be treated as a precedent. Besides, the language of the statute involved in the Overstreet case is not precisely the same as the language of the statute we are now reviewing, and we are not called upon to determine whether an assessment made pursuant to that statute would be valid.
We are therefore of the opinion that the amendatory act is void. It does not necessarily follow, however, that the district is without power to proceed to perform its functions and to levy assessments. The original act 'contains complete authority, and is not repealed by the void amendatory act. Union Sawmill Co. v. Felsenthal, 85 Ark. 346; Beasley v. Gravette, 86 Ark. 345.
The original act is assailed on the alleged ground that it omits assessments of railroad property, and is void because such omission destroys the equality and uniformity of the taxation. The statute might be sustained, if held not to authorize assessments of railroads, on the assumption of a legislative determination that the railroad in the district will not be benefited, and that it was included in the district out of considerations of convenience. Stiewel v. Fencing Dist., 71 Ark. 17. But we are clearly of the opinion that the railroad in this district is subject to assessment. This is settled by the decision of this court. in Kansas City, P. & G. Ry. Co. v. Imp. Dist., 68 Ark. 376. The assessment of railroad property is certified down to the county assessor, and by him listed on the county assessment books like other real property. The board of directors of the levee district are impowered to ascertain the extent of the railroad property in the district and to cause it to be extended for special taxation in accordance with the assessment for county purposes. This accomplishes the will of the lawmakers in determining that the railroad property, like other real property, will receive benefits in proportion to its assessed valuation.
It follows from what we have said that the court erred, and the decree is reversed with directions to overrule the demurrer to the complaint, so far as it seeks to prevent the enforcement of assessments under the amendatory act of April 23, 1909, but to sustain the demurrer in so far as an attack is made upon the right to levy assessments under the original act of March 15, 1909, and to make sale of bonds authorized by the statute. | [
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Frauenthal, J.
This is an appeal from a judgment convicting the defendant of the offense of selling liquor without license. He urges that the judgment should be reversed for the following reasons: (1) Because there was not sufficient evidence to warrant the verdict of guilty returned by the jury; and (2) because the court erred in its rulings relative to certain instructions.
Defendant was indicted under section 5093 of Kirby’s Digest, charged with selling and being interested in the sale of liquor without license. The sole witness who testified in the case was the purchaser of the liquor. His testimony was in substance as follows: He resided a few miles from the city of Newport, and on the day of the alleged sale of the liquor was in that city, and there met defendant, with whom he was well acquáinted. He was preparing to leave the city for his home, and either met or overtook the defendant, and asked him if he knew where he could get anything to drink. Without anything further being said, so far as the testimony shows, they went to a house, and proceeded to a small room at the back thereof where a white woman and a colored woman were seated. Defendant went as far as the open door of this room, and the witness walked into the room, and there saw a pint of whisky upon a trunk. Without speaking to any one, he took the whisky and deposited his money on the trunk. Defendant remained at the door of the room, and then accompanied the witness to the outer door of- the house. Witness did not know whether or not defendant returned to the house. Witness' had never been to the house before, and when he asked the defendant if he knew where he could get anything to drink the defendant did not tell him whether he had any whisky or to whose house they were going; but, in the language of the witness, “they just went on to the house together.” He also testified that he and the defendant were good friends, and the reason why he asked him whether or not he knew where he could get anything to drink was that he thought defendant was liable to have some whisky because he looked like he had had a drink.
It is contended by counsel for the defendant that there was no evidence given by this witness connecting the defendant with the sale of the liquor, either directly or indirectly; that at the most the defendant only showed the witness where he could procure the ‘liquor, and thus only aided the purchaser, and not the seller, in the sale of this liquor. -
It is true that there was no direct testimony that the defendant owned the house where these parties went, or the whisky that was placed upon the trunk, or that the defendant secured the money which the witness deposited on the trunk therefor; nor was there any direct testimony that the defendant was connected with the owner of this whisky. But we are of the opinion that facts and circumstances were shown in evidence by this witness from which it could be reasonably inferred either that the defendant was the occupant of this house and owner of this whisky, or that he had some connection with the person who did own it. It was the province of the jury, not only to determine the facts directly established by the testimony, but also to determine the resultant facts that could be reasonably inferred from those directly proved.
The defendant was stationed near the house where the whisky was located, and from his general appearance the wit ness thought that he could tell him where he could procure some whisky. Upon the witness making known his desires in this regard, the defendant, without any comment, immediately took him to and into this house. Witness had never been to the house before, and the two women who were the sole occupants of the room where the whisky was did not appear surprised when the defendant brought him there. Without any further suggestion from any one, witness proceeded to the trunk where the pint of whisky was located, and deposited his money, presumably the correct amount, therefor, and took the whisky. During all this time the defendant remained stationed at the door of the room where he could see the actions of the witness.
An illegal sale of this liquor was made by some one. De- ■ fendant was the only agency that steered the witness to the place where the whisky was procured; he stood at the door when the whisky was taken, and saw the proper amount of money therefor deposited, and then accompanied the witness to the door of the house when, the transaction being thus fully completed, the witness departed without word or comment. From these facts and circumstances, we think the jury were warranted in finding that the defendant either sold the whisky himself or was connected with the owner thereof, and interested in its sale. Dixon v. State, 67 Ark. 495; Henry v. State, 71 Ark. 574; Dale v. State, 90 Ark. 582.
• The court instructed the jury in substance that they would be authorized in finding the defendant guilty if they believed from the evidence beyond a reasonable doubt that he unlawfully did sell or was interested in the sale of the liquor. It is urged that this instruction was erroneous because it fails to tell the jury what acts of the defendant they should consider as lawful and what acts as unlawful. The unlawful act, charged in the indictment, consisted in selling such liquor without license; and this unlawful act this instruction required the jury to find from the evidence that the defendant had committed before they would be warranted in finding him guilty. We can not see, therefore, wherein this instruction is objectionable.
The defendant requested the court to instruct the jury in effect that, before they would be warranted in finding the defendant guilty of this offense, they must find from the evi dence that he was directly or indirectly interested in the sale of the whisky, or was aiding the seller to make such sale. While this instruction was a proper statement of the law, we do not think the defendant was prejudiced by the court’s refusal to give it. The instruction which was given by the court, and is referred to above, embodied every principle covered by this instruction requested by the defendant, except probably that portion thereof which declared him guilty by aiding the seller. The effect of that instruction was to tell the jury that they must find from the evidence that the defendant was directly or indirectly interested in the sale. The defendant can not complain because the court failed to also instruct the jury that, although he did not directly or indirectly sell the whisky, the defendant would be guilty if, without any interest himself in the sale, he aided the seller in making it. The failure to give that portion of the instruction requested by the defendant was favorable to him.
Upon an examination of the whole case, we fail to find that any prejudicial error was committed by the trial court, and the judgment must accordingly be affirmed. | [
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Kirby, J.
Appellee brought suit for damages for personal injuries alleged to have been caused by appellant’s negligence in running him down with an automobile on the streets of the city of Hot Springs. Appellant denied that he was injured, or that he was struck by appellant’s automobile or caused any suffering and damages, and alleged contributory negligence on the part of appellee.
The testimony tended to show that appellee, a beggar upon his crutches, was walking “quartering” or diagonally across Central Avenue in Hot Springs on the day of the injury, and after crossing the street car track in front of a car, which stopped to take on passengers, he stopped within about six feet of the curb on the west side for about a minute, trying to decide whether he should go up or down the street for dinner, it being about 1 o’clock; that he was looking down the street and heard an automobile horn in his rear, and was immediately struck and knocked down; that everything seemed to be clear when he crossed the street; that he did not see the automobile, and heard nothing to indicate its approach until the horn sounded, and he was struck before he could move; that appellant was going down Central Avenue, and was seen 50 or 60 feet away from the place of the injury in his car going about 20 miles an hour, and that he apparently made no effort to stop; that there was not room between the place appellee was standing and the standing car for the automobile to pass without striking one or the other; that appellant had to run in ahead of the car there, the track running so close to the curb at that point.
Appellant testified that he was going south on the avenue to his place of business, the street car to his left going down, and he slowed up before he got to the crossing, saw appellee turn off, having crossed just in front of the car, and was running slowly to give him a chance to get out of the way; that appellee was walking across the street and stopped when he got within eight or ten feet of him, too close to stop the automobile, and he turned it aside and tried to pass between him and the car; that he could not have gone further to the left without running into the car; that the injury occurred in a narrow part of the street on a curve; that there was not room to go between appellee and the street car at the time appellee stopped, and the collision with him or the street car could not -be avoided.
Appellee was injured by the collision, his hand and head cut and bruised, and he testified that since the injury he has suffered from headache, which he never had before, and that he was unable to lie on his right side; that he worried a great deal over his condition, and was about hopeless as to ever recovering since the injury. There was other testimony as to the extent of his injury, which the doctor to whom appellant sent him for treatment testified was slight and not serious, and for the treatment of which he only charged appellant $4.90.
The evidence showed that appellee had been a cripple for five years; that he was farming when he became ill, and that he had no means of support, and could do no work except to sell shoe strings and pick up bottles and junk for a living.
The court gave several instructions at the request of appellee, including No. 11, as follows:
“The court instructs the jury that if you find that the defendant ran against the plaintiff with his automobile upon the public street, and injured him, a prima facie case of negligence against the defendant is thereby established, and in that case the law presumes that the defendant was negligent, and it devolves upon the defendant to prove that he was not negligent; and unless he does so, your verdict should be for the plaintiff, unless you find that the plaintiff was guilty of negligence which contributed to his injury.”
The court refused appellant’s requested instruction No. 6, as follows:
“The burden of proof is upon the plaintiff in this case to show by a preponderance of the evidence, not only that he was injured by the defendant, but that the defendant was guilty of negligence which caused the injury. Negligence is a fact, and must be proved; and unless the plaintiff has shown •by a preponderance of the evidence that the defendant omitted some duty he owed the plaintiff, and that the plaintiff was thereby injured, your verdict should be for the defendant.”
The jury returned a verdict against appellant for $150 damages, and he appealed.
The beggar on his crutches has the same right to the use of the streets of the city as has the rich man in his automoble. Each is bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof.' Hot Springs Street Rd. Co. v. Hildreth, 72 Ark. 573; Hannigan v. Wright, 63 Atl. (Del.) 234; Simeone v. Lindsay, 65 Atl. (Del.) 778.
Negligence and contributory negligence are matters to be proved, and the burden is on the one alleging injury from negligence to establish it, and upon the other alleging immunity because of contributory negligence to establish it, unless it is shown by the plaintiff’s testimony. Hot Springs Street Rd. Co. v. Hildreth, supra.
This case seems to have been tried upon a wrong theory of the law, that a pedestrian, in crossing the street, would be held to the same care in looking and listening for approaching automobiles as would a traveller on a highway crossing a railroad to look out for the approach of trains. There was no presumption of negligence arising from the fact that appellant ran against appellee with his automobile on a public street and injured him, and proof of such fact alone did not create a prima facie case of negligence, as the jury viere told in said instruction No. 11 given on appellee’s part, which was erroneous and prejudicial.
Appellant’s requested instruction No. 6, refused, was a correct statement of the law, and should have been given.
Since the case must be reversed for these errors, we have not found it necessary to examine the other instructions with a view to approving or disapproving them. We deem it unnecessary also to discuss the conduct of appellee’s attorney in making the statements objected to in the closing argument, for the reason that such statements will probably not be repeated on the trial anew.
For the errors indicated in the judgment is reversed, and the cause remanded for a new trial. | [
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BRANDON J. HARRISON, Judge
| TPr. F. David Chambers and Michelle Chambers appeal from the circuit court’s judgment in favor of Kenneth McDougald, wherein he was awarded the principal sum of $300,000 on a promissory note, plus prejudgment interest of $159,698.63. They argue that the circuit court erred in excluding their evidence that McDougald was the first to breach the parties’ purchase agreement that included the note. They also challenge the award of attorney’s fees to McDougald. We agree that the circuit court erred in excluding this evidence. The case is therefore reversed and remanded for a new trial.
In the summer of 2005, the Chamberses and McDougald were members of a limited liability company known as Bradley Timberland Resources, LLC (BTR). The Chamberses were the majority owners of BTR. McDougald approached the Cham-berses about selling his 15 percent interest in BTR to them. On July 22, 2005, the parties entered into a written purchase agreement for McDougald to sell his interest to the Chamberses. According to the 12terms of the agreement, the purchase price was $500,000, payable in several different forms and at different times. First, the Chamberses were to pay $35,418 in cash to McDougald upon execution of the agreement. Immediately upon this payment, McDougald was to have no further interest, whether ownership or management, in BTR. As another part of the payment scheme, the Chamberses were to convey a thirty-acre tract of land to McDougald, with McDougald responsible for securing the release of any encumbrances on this property. The parties further agreed that, as partial payment, the Chamberses were to assign to McDougald a note receivable from Roger George (the George note) payable to the Chamberses in the amount of $119,763.13. As for the remaining sum due under the agreement, the Chamberses were to pay $300,000 to McDougald in three equal payments of $100,000 due July 1 of 2007, 2008, and 2009. Finally, paragraph 7 of the agreement provided that McDougald was to continue his employment (as vice president and general manager) with Bradley Lumber Company (BLC), which was wholly owned by the Chamberses, for the period of the contract and to defer all salary due him until he and the Chamberses mutually agreed to disburse those deferred sums (Paragraph 7).
That same day, the Chamberses executed the promissory note at issue to secure their obligations under the purchase agreement. The note had an interest rate of 3 percent. It also contained a penalty-interest-rate provision in the event of a default as well as a provision for reasonable attorney’s fees.
McDougald had signed an employment contract with BLC in 2002. Although the term of the contract expired in January 2005, it contained a “roll over” provision stating | athat it would remain in effect until modified by the parties. McDougald continued his employment with BLC until July 2006.
On 15 June 2012, McDougald filed suit against the Chamberses to collect on the note, asserting that none of the $300,000 due had been paid. The Chamberses answered, admitting, execution of the note but denying that they were in default or that they had failed to make any payments. They later amended their answer to include a counterclaim asserting that McDougald had breached the purchase agreement by continuing to pay himself while working for BLC.
McDougald answered the counterclaim, denying its material allegations. He later filed an amended complaint seeking the deferred compensation the Chamberses owed him. In it, McDougald contended that the $300,000 note was part of the consideration he received from the Cham-berses for his interest in BTR. The Cham-berses answered the amended complaint, again admitting execution of the promissory note but denying the other material allegations.
The Chamberses amended their answer and counterclaim to assert that McDoug-ald had breached the contract by failing to defer his salary and by failing to remain employed by BLC until completion of the term of the note. The Chamberses also claimed that McDougald had breached his fiduciary duties by wrongfully removing and converting timber belonging to BTR and by neglecting to cut timber on BLC’s property, causing it to ruin and lose value. The Chamberses sought recoupment of the moneys McDougald received from payment of the George note, the moneys he paid himself as salary while employed at BLC, the cash payment specified in the purchase agreement, damages to the |4real property transferred to McDougald in the purchase agreement, and damages for the timber wrongfully removed or allowed to ruin.
McDougald responded to the counterclaim, denying the material allegations. Pleading affirmatively, McDougald argued that David Chambers agreed to McDoug-ald’s early retirement in July 2006. He also contended that the claims asserted by the Chamberses could be pressed only by BLC.
The Chamberses and McDougald each filed motions to nonsuit a portion of their claims. The Chamberses sought to dismiss all of their counterclaims against McDoug-ald while McDougald requested dismissal of his claim for deferred compensation. Orders were entered granting the nonsuits and dismissing the claims.
McDougald filed a motion in limine seeking to preclude the Chamberses from introducing evidence that he possibly breached the purchase agreement by terminating his employment with BLC. He argued that the right to the benefit of his employment rested with BLC, as did any claim for the breach. He also argued that the Chamberses could not assert defenses belonging to BLC. McDougald further contended that the employment provision was unenforceable because it lacked mutuality of obligation.
The Chamberses responded to the motion in limine, arguing that they, not BLC, were the only parties who could enforce the employment provision of the purchase agreement.
The Chamberses filed their own motion in limine where, among other things, they sought to exclude evidence that they had filed a counterclaim to recover moneys McDougald had paid himself while still employed at BLC and the moneys paid to |..¡McDougald under the George note. They also sought to exclude evidence that they had filed fraud and breach-of-fiduciary-duty claims against McDougald.
Although the parties had stipulated that evidence concerning the parties’ dismissed claims or counterclaims would be inadmissible, the circuit court granted McDoug-ald’s motion in limine, which prohibited the Chamberses from offering evidence of McDougald’s breach of his obligation to continue working for BLC or that he continued to pay himself while working at BLC. The court reasoned that because BLC was not named a party, the evidence' that McDougald may have breached the employment provision of the purchase agreement was inadmissible and not to be discussed before the jury.
A motion for reconsideration was filed by the Chamberses, arguing that the employment provision was a condition of the purchase agreement that qualified their performance (that is, paying the note). McDougald responded to the motion, again arguing that the Chamberses could not assert defenses that belonged to either BTR or BLC. The court denied the motion.
The case proceeded to a jury trial. The jury awarded McDougald $300,000 plus prejudgment interest at the rates specified in the promissory note. Judgment was entered on the jury’s verdict in the total sum of $459,698, including prejudgment interest, together with costs. McDougald was invited to ask for attorney’s fees.
McDougald sought $99,985 in attorney’s fees. The Chamberses resisted. The circuit court awarded attorney’s fees of $102,757. After the court denied the Chamberses’ motion for new trial, this appeal followed.
LThe parties’ arguments start with the standard of review. The Cham-berses argue that this case should be reviewed de novo because it involves the proper interpretation of a contract; McDougald argues that the circuit court excluded evidence, which we review under the abuse-of-discretion standard. We agree with the Chamberses. In deciding the motions in limine, the circuit court had to interpret the parties’ purchase agreement. In doing so, the court determined that Paragraph 7 was a contract between McDougald and BLC. Based on that construction of the agreement, the court granted McDougald’s motion and excluded evidence concerning the effect of Paragraph 7. When a contract is unambiguous, the circuit court applies the plain language of the parties’ terms and determines as a matter of law how to apply the contract. Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1; see also Fryer v. Boyett, 64 Ark.App. 7, 978 S.W.2d 304 (1998).
Next comes McDougald’s contention that the Chamberses have waived their arguments on appeal because they filed their own motion in limine in which they sought to exclude the very evidence that they now want to introduce. We reject this characterization of the Chamberses’ motion because the record shows that the purpose of the motion was to exclude the fact that the Chamberses had filed their counterclaim against McDougald, not the evidence pertaining to Paragraph 7.
This brings us to the merits. The Chamberses attempted to defend McDoug-ald’s claim on the note by asserting that McDougald breached Paragraph 7 of the parties’ purchase agreement. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Ark. Realtors Ass’n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845. As a general rule, a “first breach” by one party may release the other party from his obligations. Id. A relatively minor failure of performance by one party does' not justify the other in seeking to escape any responsibility under the terms of the contract; for one party’s obligation to perform to be discharged, the other party’s breach must be material. Id. Whether a breach is material is a question for the fact-finder. Spann v. Lovett & Co., 2012 Ark. App. 107, 389 S.W.3d 77.
We disagree with McDougald’s contention that this is a suit on the note, not an action for breach of contract. The note represents part of the Chamberses’ obligation under the written purchase agreement and receives its validity from that document. See Farmers Co-op. Ass’n v. Garrison, 248 Ark. 948, 454 S.W.2d 644 (1970). Moreover, McDougald acknowledged in his pleadings and at oral argument that the note was part of the consideration of the purchase price for his interest in BTR. This makes the terms of the purchase agreement important in the determination of the materiality of McDougald’s failure to fully perform his obligations under Paragraph 7, Boellner v. Clinical Study Centers, LLC, 2011 Ark. 83, 378 S.W.3d 745; Roberts Contracting, supra. The Chamberses proffered testimony that asserted that Paragraph 7 and McDougald’s continued employment with BLC was a material part of the consideration for their purchase of McDougald’s interest in BTR.
The circuit court excluded the evidence concerning Paragraph 7 on the basis that only BLC could enforce that claim and that it was not a party to this case. The court erred. Evidence that McDougald breached Paragraph 7 was also admissible on the question of whether McDougald could enforce the note because, if McDoug-ald was to enforce the note 18at all, it was to be according to the terms of the purchase agreement. That agreement required McDougald to continue his employment with BLC through the term of the note (until 2009). It also required McDoug-ald to defer his salary. The Chamberses argue that he did neither.
For their second point, the Chamberses argue that the circuit court’s award of attorney’s fees should be reversed. Because we reversed the underlying' judgment, we reverse the fee award, too. See Am. Transp. Corp. v. Exch. Capital Corp., 84 Ark.App. 28, 129 S.W.3d 312 (2003).
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Wood, J.
On the 20th day of October, 1903, one E W. Powell and his wife executed a deed to certain lots in Greene County to Hill, Fontaine & Company. The deed was also signed by the appellant, Winnie E. Hargett, who was then unmarried, and who was the daughter of E. W. Powell. This suit was brought by the appellant against the appellees to have appellees declared trustees for appellant for an undivided one- half interest in the lands and to have the deed cancelled as a cloud upon appellant’s title, and asking that a master be appointed with power to state an account as to rents, profits, taxes, etc. The complaint set up that appellant derived title by inheritance from her mother, Mary M. Powell, who was the wife of E. W. Powell, and that E. W. Powell also obtained possession to a one-half interest in the lands through mesne conveyances from Mary Powell. The complaint alleged that after the death of her mother appellant and her father continued to reside upon the lands as their home until the day the deed was executed by him as above mentioned; that she was a minor at the time, being only sixteen years of age, and that, although said deed purports to have been signed and acknowledged by her, in truth and in fact she had not signed the deed, nor did she authorize any person to sign her name to it, nor did she acknowledge it; that the deed as to her was wholly and entirely a forgery, and was null and void; that her father died on the 30th day of August, 1908.
She further alleged that, while her father was in possession of the lands, after the death of her mother, he fraudulently and wrongfully attempted to procure the title of appellant to the lands in controversy by letting the same forfeit for taxes and acquired title thereto through said forfeiture.
The answer was a denial of the allegations of the complaint, and set up that the plaintiff was of full age at the time the deed was executed, and that the defendants were innocent purchasers for value.
Two issues are presented by the pleadings; one of fact and one of law: First, was the appellant eighteen years old on October 20,1903, when the deed to appellees was executed? Second, the land in controversy being the homestead of appellant, conceding that she was 18 years of age, could she convey her homestead interest?
1. The first question is purely one of fact. The chancery court found that “Winnie Powell, on October 20, 1903, joined in the execution of said deed to Napoleon Hill and Nolan Fontaine, and at said time she was over eighteen years old, but further finds that she was under twenty-one years old, and that by her said deed she conveyed to said Napoleon Hill and Nolan Fontaine all her right, title and interest in and to” the lands in controversy, (describing them). He further found that the lands constituted the homestead of appellant at the time she joined in the execution of the deed.
The testimony concerning the age of appellant is conflicting. It could serve no useful purpose as a precedent to set it out in detail and to give our reasons for the conclusion we have reached. We have examined the record carefully, and are of the opinion that the preponderance of the evidence is in favor of the chancellors’s finding, and certainly it can not be said that his finding of facts is clearly against the weight of the evidence. This béing true, his judgment quieting the title of the grantee of appellees as against the appellant must be affirmed. Leonard v. Leonard, post p. 522; Greer v. Fontaine, 71 Ark. 605; Mooney v. Tyler, 68 Ark. 314; Whitehead v. Henderson, 67 Ark. 200; Hinkle v. Broadwater, 73 Ark. 489; Sulek v. McWilliams, 72 Ark. 67; Norman v. Pugh, 75 Ark. 52.
2. Section 6, art. 9 of the Constitution of 1874, provides that if ■ the owner of a homestead die leaving children said children will be entitled to the rents and profits of the homestead “till each of them arrives at twenty-one years of age — each child’s right to cease at twenty-one years of age — and the shares to go to the younger children.”
Section 10, art. 9, provides: “The homestead provided for in this article shall inure to the benefit of the minor children * * * after the decease of the parents.”
Section 3756 of Kirby’s Digest is as follows: “Females of the age of eighteen years shall be considered of full age for all purposes.”
This section of the statute is a part of the act of 1873. It is contended by the appellant that the above provision of the Constitution of 1874 repealed the statute of 1873 in so far as the right of females over eighteen years of age to abandon the homestead is concerned.
Females over eighteen years of age have no right to convey the homestead privilege granted under the Constitution to another so as to deprive other children of the rents and profits or the use and enjoyment of the land constituting the homestead between the time when such female has arrived at the age of eighteen years and the time when she shall arrive at the age of twenty-one for the reason that no child’s rights in the homestead under the Constitution cease until it arrives at twenty-one years of age, and the share that each child has in the homestead when it arrives at twenty-one years of age goes to the younger children.
The homestead right of female children does not cease until they arrive at twenty-one years of age, so far as the rights of other children are concerned; but when there is only one child, and that child a female, she may relinquish or abandon her homestead right after becoming of age, for in such case she has the only right in the homestead, and she may dispose of it as she pleases after she becomes of age; and, under the above statute (section 3756 Kirby’s Digest), she becomes of age for all purposes when she is eighteen years old. The homestead is a privilege which she may relinquish or abandon after arriving at that age so long as the rights of other children are not affected thereby. Of course, if there were other minor children, under the Constitution if she attempted to convey or relinquish her homestead right after becoming eighteen years old, she could not do so, for the rights of other children would be affected by her attempted relinquishment.
In this case, when the appellant conveyed the land in controversy to the appellee, she Was sui juris; and as'there were no other minor children to be affected thereby, her conveyance amounted to an abandonment or relinquishment of her homestead rights in favor of appellees.
The court did.not err in dismissing, for want of equity, her complaint, in which she set up a claim against appellees for rents and profits, etc.
The decree is correct, and is affirmed. | [
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Wood, J.,
(after stating the facts). The instruction assumes that, if appellant made an assault on Sherman Shores by striking him with a rock, this would be a felony. The instruction in this form ignores the testimony of appellant as follows: Sherman Shores “rode right up pretty close to me, got off his horse and made a step towards me with his knife in his hand, and I picked up a rock when he started towards me and hit him with the rock and ran.” It was a question for the jury as to whether the assault made by appellant on Sherman Shores was a felony. The court could not take that question from the jury, and say as matter of law that the assault of appellant on Sherman Shores, under the circumstances, was felonious. Yet that is what the court did when it told the jury that Will Shores had the right, after the assault was made upon Sherman Shores by appellant, “to pursue him (appellant) and use all reasonable means to prevent his escape,” i. e., to arrest the appellant. “A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.” Kirby’s Dig., § 2120. Unless appellant had made a felonious assault on Sherman Shores, Will Shores had no right to arrest him, and as we have stated it was a jury question, under the facts, as to whether the assault under the circumstances was felonious. The instruction in this respect was not a mere mistake in verbiage, but was an erroneous statement of a proposition of law that was misleading and prejudicial.
Again, the instruction assumes that Will Shores pursued appellant for the purpose of preventing his escape. It is doubtful whether the evidence warranted the court in submitting to the jury at all the question of whether or not Will Shores pursued appellant for the purpose of arresting him. But certainly, if there was any evidence that such was the purpose of Will Shores, there was also much evidence to warrant a finding that his purpose was not to arrest appellant, but to avenge what he considered the wrong to his brother. Therefore it was a question for the jury to say what was his purpose. To say, without any evidence to that effect, that Will Shores was pursuing appellant for the purpose of arresting him, and that he “would not be engaged in an unlawful act in so doing,” was tantamount to an assumption by the court that appellant had committed a felony in killing Will Shores, and its effect was to take away from appellant the right to have the jury consider his plea of .self-defense; and the evidence adduced by him in support thereof. The court could not indulge the presumption that the intention of Will Shores in pursuing appellant was innocent. For such a presumption would conflict with the presumption of innocence, which always and without limitations attends the accused through the whole case until overcome by proof. To presume the innocence of Will Shores was also to presume the guilt of appellant. Between conflicting presumptions, that which is in favor of the innocence of the accused prevails. Sharp v. Johnson, 22 Ark. 79; Holbrook v. State, 34 Ark. 517, 518.; McArthur v. State, 59 Ark. 431. See also Cash v. Cash, 67 Ark. 278.
While the court correctly charged the jury in other instructions as to’ the law of. self-defense, there was no instruction except the one under consideration on the question of the right of a .private person to arrest one who had committed a felony. We doubt whether an instruction on this question is applicable to the facts of this record. But, if so, then the law should be correctly declared. The instruction was calculated to mislead the jury, and was therefore prejudicial error, for which the judgment is reversed, and the cause remanded for new trial.
McCuuoch, C. J., dissenting. | [
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Fbauenthal, J.
This was an action instituted by the German Investment Company, the plaintiff below, the assignee of a note, against J. F. Westbrook, the maker, and D. R. Miller, the payee and indorser thereof. The suit was instituted before one of the justices of the peace of Pulaski County, in the township where D. R. Miller, one of the defendants, resided, and summons for J. F. Westbrook, the other defendant, was issued to the constable of Prairie County, where he resided, and service thereof was duly made upon him there in pursuance of section 4558 of Kirby’s Digest. On the return day of the summons against both defendants, neither made defense to the suit. Judgment by confession was rendered by the justice of the peace against defendant Miller, and by default against defendant Westbrook. Four days thereafter, defendant West-brook filed with said justice of the peace an affidavit and bond for appeal to.the circuit court from said judgment. The transcript was' duly lodged in the circuit court, which, upon motion, “quashed the service of summons had herein” on said West-brook, and adjudged that the cause as to him should be dismissed. From this judgment of dismissal the plaintiff has appealed.
The filing of the affidavit and bond for appeal by West-brook was such a substantial act as to constitute an appearance by him to the suit, and gave jurisdiction over his person to the circuit court upon the appeal. Whether or not service of the summons upon him in Prairie County, issued upon a suit instituted against him in a county not of his residence, was, under the circumstancés of this case, authorized by statute, the defendant Westbrook made himself a party to the proceeding by the act of filing his affidavit and bond for appeal, and could not thereafter object to the jurisdiction which the circuit court by this act acquired over his person. When the transcript was duly lodged in the circuit court, that court obtained jurisdiction over the subject-matter of the suit and the person of the defendant Westbrook. He could not then object in the crcuit court to the want of service of summons upon him in the justice of the peace court. He was precluded from raising the question as' to whether he had been properly served with summons in the justice of the peace court by the appeal which he prosecuted therefrom to the circuit court. Carden v. Bailey, 87 Ark. 280; Kansas City, S. & M. R. Co. v. Summers, 45 Ark. 295; Hopkins v. Harper, 46 Ark. 251; Holloway v. Holloway, 85 Ark. 431; Ball v. Kuykendall, 2 Ark. 195; McKee v. Murphy, 1 Ark. 55.
The court therefore erred in ordering the cause dismissed on account of any alleged improper service of the summons on Westbrook.
The judgment is reversed, and the cause remanded for new' trial. | [
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FrauenThar, J.
This was an action instituted in the Garland Chancery Court by the plaintiffs .below against Annie E. Tittle and G. G. Tatta, the defendants therein, seeking to obtain the specific performance of an alleged contract to deliver to plaintiffs a deed executed by said Annie E. Little to them for a lot in the city of Hot Springs, and which was held by said Latta in escrow. The complaint amongst other things, in substance, alleged that one Loretta E. Tombler, who was the sister of the said Annie E. Little and the aunt of the plaintiffs, was the owner of the lot mentioned in said deed and other real and personal property, and that she died leaving a will by which, after making certain specific bequests, she devised the remainder of her property to said Annie E. Little. The above will was duly filed in the probate court of said county, and by that court was admitted to probate. An appeal was taken from said order of the probate -court admitting said will to probate by M. C. Tombler, the husband of said Loretta E. Tombler, to the circuit ■court. During the pendency of said appeal the plaintiffs and said Annie E. Little entered into a written agreement whereby it was provided that, in consideration of making a settlement between -them of their rights in the property of said Loretta E. Tombler and also -of all matters of controversy between them growing out of and involved in said will, the said Annie E. Little would execute a deed to plaintiffs for said lot which would be accepted by them in full settlement of all their interest in the property -of said estate; and it was further provided that said ■deed would be held by said Latta in escrow pending the litigation involving the validity of said will, and if said will was declared by the courts to be the last will and testament of said Loretta E. Tombler, and the action of said probate court in admitting the same to probate affirmed, then the said Latta would turn the possession of said deed over to said plaintiffs. In pursuance of said agreement, said deed was executed by said Annie E. Little, and placed in escrow in the hands of said Latta. It was further alleged that subsequently the appeal from said order of the probate court admitting said will to probate was by the circuit court dismissed upon the motion of M. C. Tombler, the party who prosecuted said appeal, and that by reason thereof said will was finally established and the action of the probate court in admitting it to probate in effect affirmed. Thereafter the plaintiffs demanded from said Latta the possession and delivery of said deed, which was refused; and this suit was brought for the purpose of requiring him to deliver to them said deed.
The defendants, Annie E. Little and said Latta, interposed a demurrer to said complaint, which was by the court overruled; and, the defendants refusing to plead further, a decree was entered against them granting the relief asked for in said complaint ; and from this decree no appeal has been taken.
During the progress of the proceedings in this case in the lower court M. C. Tombler filed a petition in said court asking that he be permitted to intervene in said suit, and that he be made a party thereto and allowed to file an answer, and at ■the same time tendered that pleading. In that pleading he alleged amongst other things, in substance, that he had taken the appeal to the circuit court from the order of the probate court admitting said will to probate in good faith because he had rights in the property of the estate of Loretta E. Tombler adverse thereto; that during the pendency of said ■ appeal in the circuit court he and said Annie E. Little made a compromise of their respective claims in the property of said estate, under which the said Annie E. Little conveyed to him certain lands belonging to said estate, amongst which was the lot mentioned in the deed the possession of which plaintiffs were endeavoring by this suit to obtain, and that thereupon, by virtue of the terms- of said compromise agreement with Annie E. Little, he dismissed his appeal from the order probating said will. He further alleged that under the terms of the written agreement made between the plaintiffs and said Annie E. Little the plaintiffs were not entitled to the delivery and possession of said deed held by said Latta in escrow. He alleged that he was the legal -owner of said lot, and in event it was declared that he was not the owner thereof he claimed that he had equitable rights therein which he asked to be -enforced.
The -court refused to permit him to be made a party to the suit and to intervene therein, and from that order he has appealed to this court.
The question involved in this appeal i-s whether or not M. C. Tombler was a necessary or proper party to the determination of the matter involved in the litigation instituted by the plaintiffs. By section- 6006 of Kirby’s Digest, it is provided that “any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete 'determination and settlement of the question involved in the action;” and by section 6011 of Kirby’s Digest, it is provided that “the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others or by saving their rights. But when a determination of the controversy between the parties before the court can not be made without the presence of other parties the court must order them brought in.” These provisions furnish a criterion for determining when the court will proceed to a settlement of the matter in controversy between the parties actually before it, and when it must bring in other parties before proceeding to a final decree. If the parties before the court are the only persons who have an interest in the controversy that is actually involved in the suit, or if a final decree can be made without affecting the rights of others in the matter actually in controversy, then other persons are not necessary parties to such suit. Apperson v. Burgett, 33 Ark. 328.
This suit was instituted by the plaintiffs for the purpose of obtaining the specific performance of an alleged contract to deliver to them a deed, which had been deposited in escrow. It was in effect a suit for the possession of the deed, as if the plaintiffs had brought replevin therefor. It is well settled that the exercise of equity jurisdiction extends to suits to compel the delivery of deeds in favor of persons who are legally entitled to them. Where a deed has been delivered in escrow subject to a condition which has been fulfilled, a court of chancery is a proper forum in which to compel the delivery thereof to the person entitled to its possession. I Pom., Eq. Jur., § 185; 4 Kent, Com., § 454; Tharaldson v. Everts, 87 Minn. 168; Stanton v. Miller, 65 Barb. 58.
Where the enforcement of a contract is sought in the courts, as a general rule, the parties to the agreement are the only necessary parties to the suit; and therefore in a suit for the specific performance of a contract it is necessary to join as parties only those persons who are parties to the contract. The matter actually in controversy in such suits is the contract and its fulfillment. The estate itself is not actually involved in the controversy, and persons who claim an interest in the estate, but who are wholly unconnected with the contract which it is sought to have performed, are not necessary parties to such suit. Where the possession of the property is not sought by the proceeding, but simply the performance of a contract which it is alleged was made relative thereto, strangers to -the contract itself are not necessary parties to such suit. In the case of Willard v. Tayloe, 8 Wall. 571, the Supreme Court of the United States says: “The general rule is that the parties to the contract are the only proper parties to the suit for its performance.” In that case the case of Tasker v. Small, 3 Myl. & C. 69, is quoted with approval, wherein it is said: “When a bill for specific performance is filed by a person who has contracted to purchase the absolute legal and equitable interest in a mortgaged estate from the supposed owner of the equity of redemption, neither the mortgagee nor a person who claims an interest in the equity of redemption, but has not joined in the contract, can be made a defendant.”
In the case of Crook v. Brown, II Md. 158, it is held: “In suits for specific performance the general rule is that it is necessary to join as parties only those persons who are parties to the contract, and it is multifarious to unite in such bill a prayer for relief against third persons who claim an interest in the estate, but are unconnected with the contract.”
In the case of Moulton v. Chafee, 22 Fed. 26, it was held that strangers to the contract cannot properly be made parties in a suit for its performance upon the theory that in determining the question of title it is proper to join all parties who claim any interest in the estate and thus bind them by the decree. And in the case of Ashley v. Little Rock, 56 Ark. 391, it was held that in a suit seeking specific performance of a contract adverse claimants in possession of the property were not proper parties.
The effect of our Code provisions is that all persons should be made parties who have an interest in the controversy that is actually involved in the suit of such a nature that a final decree cannot be made without affecting their interest or leaving the controversy in such a condition that a complete determination thereof cannot be made without their presence; otherwise such persons are not necessary parties. 20 Ency. Pleading & Practice, 412.
In the case at bar the bill seeks to require the party holding a deed in escrow to deliver the same to one claiming to be entitled thereto under and in pursuance of a contract made to that effect. The appellant Tombler was not a party to that contract, and whatever rights or equities he may have in the property covered by that deed cannot be affected by a decree to which he is not a party and solely involving that contract to which he was a total stranger. He cannot be affected by that decree requiring the delivery of the deed to the plaintiffs by the person holding it, any more than he could be affected by the delivery thereof if it had been made voluntarily and without such decree. He has still the right, in any litigation to which he may be properly a party involving said lot, to question the legality of the right of plaintiffs to a vestiture of title by virtue of said deed,' on the ground that it was not completely executed and delivered, and he has also the right to assert any legal claim or equities which he may possess in the property or to seek to have the deed removed as a cloud upon his title. He cannot be and is not by virtue of said decree barred from questioning plaintiffs’ vestiture of title to the lot by virtue of said deed or from asserting any claims or equities he may have in the lot or to enforce any remedies to which he is entitled. He was therefore not a necessary party to the suit between the plaintiffs and defendants which sought only a specific performance of the contract for the delivery of the deed, and in which a complete determination of that controversy could be had without his presence.
We do not think, therefore, that the decree involved in this appeal should be reversed for the refusal to join the appellant as a party to the suit.
The decree is affirmed. | [
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PHILLIP T. WHITEAKER, Judge
11 Preferred Medical Associates, LLC (“PMA”), Dr. Adam Wozniak, and Dianna Owen appeal from a judgment holding them liable for breach of a commercial lease. We affirm.
I. Background
PMA is a limited-liability medical practice of which Dr. Adam Wozniak is a member and Dianna Owen is an employee. In February 2010, PMA was in the market for leasing office space. Dr. Simon Abraham practiced medicine in Mountain Home, Arkansas, under the name Abraham Medical Center. PMA negotiated a lease for office space in the same facility that housed Dr. Abraham’s practice, and the lease contemplated that the two doctors would coexist and share certain medical equipment. PMA agreed to pay a $20,000 deposit Land rent of $10,000 per month for a term of eighteen months. The lease was signed by Dr. Abraham and his wife, Annie Abraham, as lessors; by Dr. Wozniak individually and on behalf of PMA; and by Ms. Owen individually.
Five and a half months into the lease, appellants vacated the leased premises. As a result, the Abrahams sued appellants for breach of the lease and sought $125,000 in rent due under the remaining twelve and a half months of the lease term, plus incidental damages. Appellants responded that their decision to vacate was justified bé-cause Dr, Abraham’s conduct toward them amounted to a constructive eviction from the premises.
A bench trial began in January 2013, but the proceedings were halted when appellants discovered that the Abrahams did not own the leased premises. The Abrahams had previously created a revocable trust, the Abraham Family Trust (“the Trust”), and had funded the Trust with the leased premises. As a result, the Trust owned the facility where the leased premises was located. The Abrahams took the position that this information was not detrimental because they were the sole trustees of the Trust with full authority to execute a lease of Trust property. Appellants argued that, in light of this new information, the Abra-hams lacked standing to enforce the lease because they filed suit as individuals rather than as trustees. Appellants also argued that the lease contract was invalid because the Abrahams failed to identify themselves as trustees thereon. The trial court asked for briefs on the issue and, after considering the parties’ arguments, ruled that the lease was valid and enforceable.
|aThe trial resumed, and appellants presented evidence on their claim of constructive eviction. Dr. Wozniak and Ms. Owen testified that Dr. Abraham made such unreasonable demands and placed such unreasonable restrictions on them during their occupancy that he deprived them of the use and benefit of the leasehold. By contrast, Dr. Abraham testified that the lease arrangement was working fine, with only minor adjustments being required. After hearing the evidence, the court found that Dr. Abraham’s conduct did not rise to the level of constructive eviction, despite the “numerous relatively petty conflicts” that developed between the parties during their five and a half months of shared occupancy. The court therefore ruled that appellants breached the lease without justification and owed the remaining twelve and a half months of rent in the amount of $125,000, less the $20,000 deposit, for a total of $105,000. The court also found that Dr. Abraham acted reasonably to mitigate the damages and that all defendants, including the individual signatories on the lease, were jointly and severally liable for the damages award.
Appellants filed this appeal and present ten arguments for our consideration. For convenience, we have grouped their arguments into four categories: (1) standing to sue and authority to execute the lease; (2) constructive eviction; (3) mitigation of damages; and (4) liability of individual signatories.
II. Standards of Review
In an appeal from a bench trial, we will not reverse the circuit court’s findings of fact unless they are clearly erroneous or clearly against the preponderance of the evidence. Academy, Inc. v. Paradigm Bldg., LLC, 2017 Ark. App. 79, 513 S.W.3d 850. On questions of |4law, such as the issue of standing discussed below, our review is de novo. Bibbs v. Cmty. Bank, 101 Ark. App. 462, 278 S.W.3d 564 (2008).
III. Standing to Sue and Authority to Execute the Lease
Appellants argue first that the Abrahams lacked standing to sue because they filed their complaint in their individual capacities rather than as trustees. We disagree. The suit was for breach of a lease involving property owned by' the Trust estate. The Abrahams are the set-tlors and sole trustees of the Trust, and the Trust grants them the express authority to lease Trust property and “litigate any claim.” Moreover, our rules of civil procedure provide that the trustees of an express trust may sue in their own names without joining the party for whose benefit the action is being brought. Ark. R. Civ. P. 17(a) (2016). Rule 17(a) further contemplates that the name of the “real party in interest” may be substituted and that such substitution shall have the same effect as if the action had been commenced in that party’s name. See id.
In the present ease, the trial court substituted “The Abraham Family Trust, Simon Abraham and Annie Abraham, Trustees” as the plaintiff before entering final judgment. This was done without objection by appellants. Given these circumstances, we see no reason for reversal on this point.
Appellants also argue that they are excused from performing the lease because Dr. and Mrs. Abraham signed the lease without identifying themselves as trustees. We find this argument unpersuasive. The Abrahams, as trustees of the property in question, had the power under the Arkansas Trust Code to enter into the lease. Ark. Code Ann. § 287-3-816(9) (Repl. 2012). Similarly, the trust document in this case granted the Abrahams broad powers with Rrespect to the Trust property—they could lease or otherwise manage the property in the manner they deemed appropriate and “exercise any additional powers in the management of the trust property which an individual owner of such property could exercise.” Finally, our law assumes that persons in the Abrahams’ position have acted in accordance with their status as trustees, even if that status is not disclosed. See generally Oliver v. Culpepper, 209 Ark. 326, 190 S.W.2d 457 (1945); Lanigan v. Sweany, 53 Ark. 185, 13 S.W. 740 (1890).
The trial court, based on the above authorities and the evidence before it, saw no reason to disturb the assumption that the Abrahams, as trustees, executed a valid lease of the Trust property. Upon our review of the same evidence and authorities, we cannot say that the court clearly erred.
IV. Constructive Eviction
Appellants contend that Dr. Abraham constructively evicted them from the leased premises. Conduct by a landlord that effectively deprives the tenant of the use and benefit of the premises amounts to a constructive eviction. Fairpark, LLC v. Healthcare Essentials, Inc., 2011 Ark. App. 146, 381 S.W.3d 852. The landlord’s conduct must be such that it will prevent the tenant’s use of the premises for the particular purposes for which it was leased. Id. The particular acts or omissions by a landlord that amount to a constructive eviction cannot be defined by a general rule and depend on the facts of each case. See id.
IftAt trial, appellants presented evidence that the Abrahams interfered with their use of the leased premises by restricting their use of the leased space; failing to timely provide them with a key to the building; not allowing them to put up a sign outside the building; inhibiting their use and decoration of their office space; and otherwise preventing their full, quiet enjoyment of the leasehold. However, as the trial court noted, the evidence on this point was in conflict. Dr. Abraham said that he had received no serious complaints from appellants during their shared occupancy. In support of his testimony, he cited a letter written to him by Dr. Wozniak in which Dr. Wozniak stated that appellants were vacating the premises due to “unforeseen circumstances” and thanked Dr. Abraham for his “cooperation and hospitality.” Additionally, witness Sam Sparks, who was an employee of both Dr. Abraham and PMA, testified that he attended a meeting in July 2010 where appellants discussed moving PMA to another location. According to Sparks, the reason given by appellants was that profits were down; no other reason was mentioned.
When faced with these differing views, the trial court exercised its prerogative as fact-finder to resolve the conflicts in the evidence and did so in favor of the Abrahams. See Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47. We defer to the circuit court’s superior ability to determine the credibility of the witnesses and the weight to be accorded their testimony. See Academy, Inc., supra.
V. Mitigation of Damages
Appellants argue that Dr. Abraham did not mitigate his damages by re-renting the leased space after appellants had vacated the premises. A party cannot recover damages resulting from consequences that he could have reasonably avoided by reasonable care, effort, |7or expenditure. Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005). Reasonable diligence and ordinary care are all that is required. Id. Whether one acted reasonably in minimizing, mitigating, or avoiding damages is usually a question of fact. Id.
Dr. Abraham testified that he ran an ad in the paper seeking to rent the space vacated by appellants. He also said that he talked to several doctors, and to other people who knew doctors, to see if anyone currently in the area, or who might be moving to the area, needed office space. The court found these mitigation efforts to be reasonable, and appellants offer no convincing argument to the contrary. We therefore hold that the circuit court did not clearly err in its finding of fact on this issue.
VI. Liability of Individuals
As mentioned earlier, both Dr. Wozniak and Ms. Owen signed the lease as individuals. They argue on appeal that they cannot be held personally liable on the lease because the lease reflects no mutuality of contract.
Mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus neither party is bound unless both are bound. Estate of Bogar v. Welspun Pipes, Inc., 2014 Ark. App. 536, 444 S.W.3d 405. Dr. Wozniak and Ms. Owen insist that mutuality is wanting in this case because Dr. and Mrs. Abraham have no obligation on the lease, having executed it in their individual capacities. In light of our holding that the Abrahams had the authority to execute the lease on behalf of the Trust and presumably did so as trustees, they do have an obligation on the lease. Mutuality of contract therefore exists.
isMs. Owen also argues that the lease is unenforceable as to her because she gave no consideration for the lease. Her pleadings and testimony indicate otherwise. She filed a counterclaim stating that the “Plaintiffs and Defendants” entered into the lease, and that she, along with her co-defendants, was seeking a refund of the security deposit and the rent paid. She further alleged in a “grievance sheet” attached to her counterclaim that she was “paying her portion of the lease” and that her husband had put up the $20,000 deposit. She also testified at trial that she was “part of’ the lease.
Additionally, the lease provides in pertinent part:
Lessee covenants and agrees:
a. The undersigned agree to be personally and individually bound for all obligations contained in this lease.
Ms. Owen'is one of the “undersigned,” and she affixed her name to a lease that contemplated that she would be “personally and individually” liable thereon. Parties are presumed to have read and understood their contracts. McCaleb v. Nat’l Bank of Commerce, 25 Ark. App. 53, 752 S.W.2d 54 (1988).
Affirmed.
Klappenbach and Brown, JJ., agree.
. The lease was also signed by another PMA employee, Carmen Kruse. Ms. Kruse is not a party to this appeal.
. Appellants make additional arguments regarding the merger of legal and equitable interests in trust property and other matters that were either not raised below or are not germane to our analysis. We therefore decline to address the merits of those arguments. | [
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McCulloch, C. J.
This is an action instituted jointly by the plaintiffs, S. H. McCullough and his wife, Annie McCullough, against defendant railway company to recover damages on account of personal injuries to said Annie McCullough alleged to have been caused by negligence of defendant’s servants in the operation of a passenger train while she was a passenger. It is alleged, in substance, that Mrs. McCullough, together with her husband and children, took passage on á train at Hoxie, en route to Minturn, and that after the train reached the latter place and stopped for passengers to alight it was started up with a sudden jerk before the plaintiff could get off, and she was thrown down and severely injured. S. H. McCullough claimed damages resulting from loss of his wife’s services and for expenses of medical treatment, and Mrs. McCullough sued to recover damages sustained by reason of the suffering resulting from the injuries. The jury returned a verdict in favor of the plaintiffs, assessing their damages in the sum of a thousand dollars, and the defendant appealed.
No question has been raised either here or below as to the joinder of the two causes of action.
This is a companion case to St. Louis, Iron Mountain & Southern Railway Company v. Trotter, recently decided by this court, ante p. 183, where the facts were identical except as to the extent of the injuries, the plaintiff in that case, Ada Trotter, being a- daughter of Mrs. McCullough, and the facts are fully stated in the opinion in that case. The instructions of the court in that case were identical with those given in this, and the questions of law with respect thereto were settled in the opinion, so they need not be discussed here.
We will only discuss the additional questions raised in this case.
It is first insisted that the court erred in its ruling as to the competency of a juror who stated on his examination that he had heard Dr. Steel, a physician who treated Mrs. McCuL lough for her injuries and who was a witness in the case, say that she was hurt. He said that Dr. Steel’s remark made no impression on his mind about the case, and that he had no bias or prejudice either way, but could try the case upon its merits. The juror was competent, and no error was committed by the court in so ruling.
The next assignment is that the court erred in holding that S. H. McCullough was a competent witness to testify as to his wife’s injuries and the cause and extent thereof. He was a competent witness, so far as his own cause of action was concerned. Railway Company v. Amos, 54 Ark. 159. The objection was a general one.to his testimony. If defendant desired that the testimony should not be considered so far as it tended to sustain Mrs. McCullough’s cause of action, the court should have been asked specifically to instruct the jury to so limit it. When the general objection was made, the court, of its own- motion, made a statement to the jury which we construe to be a limitation to that effect. The court instructed the jury that “the testimony offered by the husband as to manner in which the injury occurred to the wife is not material, so far as she is concerned.” The jury .must have construed this to mean that they were not to consider the testimony in passing upon the wife’s cause of action.
It is contended that the verdict is excessive. The evidence tends to show that Mrs. McCullough was violently thrown down, and that three of her ribs were broken. She was in bed three weeks, and testified that she suffered great pain on account of the broken ribs and a soreness in her side, breast and shoulder, and at the time of the trial, which was about seven months after the injury, the suffering continued. There was other testimony to the effect that her ribs were broken, and that she was confined to her bed about three weeks. The testimony also showed that, in addition to doing general household work, she assisted her husband in doing farm work, such as hoeing and picking cotton, and that her injuries disabled her from doing that work. The proof also showed that the husband expended $40 in doctor’s bills for treatment of his wife. On the whole, we are unable to say that a thousand dollars is excessive compensation to both the husband and wife for the pain and suffering she endured and the decreased value of her services and the expenses of treatment.
Judgment affirmed. | [
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McCulloch, C: J.
This is an action instituted by the children of William Watson, deceased, as heirs at law of said decedent, to recover damages resulting from the killing of said decedent by one of defendant’s passenger trains at Bergman, Ark., on June 27, 1907. The plaintiffs alleged in their complaint that Watson was a widower at the time of his death; that he died intestate, leaving them as his only heirs at law, and that there has been no administration on his estate.
Watson intended to board a passenger train at Bergman, and as it came to the station 'he attempted to cross the track in front of the approaching engine, so as to get to the place where he could board the train when it stopped. The cow catcher or pilot of the engine struck him as he attempted to pass in front of it, and he fell over it and was carried along a considerable distance — probably 100 or 150 feet, when he rolled off, and was drawn under it and carried about 30 feet further. The train came to a stop, and the engine was backed, so as to get him'out, and he was found to be badly injured, and died in about two hours.
The surgeon who was called and saw him immediately after the engine was moved from over him described his injuries as follows: “I found a dislocation of the right hip, and the femur pushed up into his bowels; a dislocation of the exterior end of the clavicle, and it pushed up into his throat; contusions and lacerations about the face and head, and a laceration in the thick muscle part of the thigh, the muscles being torn loose. It was simply a mashing and tearing of the muscles, like you would take a board and saw across the leg, and the openings were filled with cinders, which were ground in until I could not wash them out.”
During the progress of the trial, the action was dismissed as to all the plaintiffs except Annie and Dee Watson, this being done, according to the recitals of the'record, by agreement of all the parties.
The trial resulted in a verdict for the plaintiffs, their damages being assessed separately; and judgment was rendered accordingly, from which this appeal is prosecuted.
The action as originally instituted properly joined as plaintiffs all the heirs at law of the decedent. There being no personal representative of decedent’s estate, the action could, under the statute, be brought in the name of the heirs at law. Kirby’s Digest § 6290. But all of the heirs should have been continued as parties. McBride v. Berman, 79 Ark. 62. The defendant, however, consented to the dismissal of the action by the other plaintiffs, and raised no objection to the right of the remaining plaintiffs to sue. The objection is raised here for the first time, and comes too late. Pettigrew v. Washington County, 43 Ark. 33; Driver v. Lanier, 66 Ark. 126; Hadley v. Bryan, 70 Ark. 197.
There was no evidence which would have authorized the jury in finding that the trainmen were guilty of negligence in striking deceased as he attempted to cross the track. The court, by giving an instruction requested by defendant, took that question from the jury. The language of some of the other instructions seems to indicate a submission of that question, but, when considered with the instruction plainly taking that question away from the jury, the language is, we think, referable to the question of negligence in failing to exercise care to prevent injuring Watson after he fell on the pilot and before he rolled off and was drawn under it. The evidence is that he was uninjured at that time and was carried about 150 feet, and that the trainmen were aware of his perilous position. If there had been any testimony tending to show negligence in failing to stop the engine before Watson rolled off the pilot, there should have been a submission to the jury of the question of negligence in that respect; but we fail to discover any evidence of negligence in that particular. The undisputed evidence is that the train, though approching the station, was going at an unusually rapid rate of speed, and that, as soon as the perilous position of Watson was discovered, all possible means were employed to stop the train. No effort was made on the part of plaintiff to show that the train, while going at that rate of speed, could have been stopped in the space Watson was carried along on the pilot. It was therefore error to submit that question of negligence to the jury.
The other ground of liability set out in the complaint was that the trainmen were negligent in moving the train after it had been stopped over deceased, so as to cause it to strike him and inflict the fatal wound. There was testimony tending to show that, as the engine was moving back over Watson’s body, he was struck by a rod or bolt under the pilot, and that additional wounds were thereby inflicted. In view of the fact .that the judgment must be reversed on other grounds, we deem it unnecessary to decide whether or not the evidence was legally sufficient to sustain a finding that the additional injury caused the death of Watson or contributed to it. On .this point the evidence is so close that on another trial there may be enough difference to change its effect.
The court gave the following instruction over defendant’s objections: “The burden of proof is upon defendant to show that it used reasonable care, caution and skill to avoid injuring deceased after his peril was discovered by its employees,” This was error. We have held in several cases that where the injured person has been guilty of contributory negligence, the .burden of proof is upon the plaintiff to show, in order to recover damages, that the employees in charge of the train discovered his perilous position in time to have avoided injury, and negligently failed to use proper means to avoid injuring him after discovering his peril. St. Louis & S. F. Rd. Co. v. Townsend, 69 Ark. 380; Chicago, R. I. & P. Ry. Co. v. Bunch, 82 Ark. 522; Jones v. St. Louis, I. M. & S. Ry. Co., 96 Ark. 366.
We find it unnecessary to pass on the other assignments of error; but for the errors indicated the judgment is reversed, and the cause remanded for a new trial. | [
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KAREN R'. BAKER, Associate Justice
hOn August 11, 2014, appellant, Rumal-do Rangel, entered a negotiated change of plea to one count of possession with the purpose to deliver methamphetamine. The circuit court accepted the plea and sentenced Rangel to two years and an additional term of three years’ suspended imposition of sentence. At the time of his plea, Rangel was not a naturalized citizen of the United States.
On November 20, 2015, Rangel filed a petition for writ of habeas corpus asserting that he was required to be provided with warnings regarding immigration and deportation pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Rangel alleged that he was not provided these warnings and therefore entitled to habeas relief. On June 14, 2016, the circuit court denied Rangel’s petition. Rangel timely appealed and presents one issue on appeal: the circuit court erred in denying Rangel’s petition for writ of habe-as corpus because Rangel was not given his Padilla warnings regarding immigration and deportation |2at his plea hearing.
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. The writ of habeas corpus will be issued only when the commitment is invalid on its face or the committing court lacked jurisdiction. Mackey v. Lockhart, 307 Ark. 321, 322, 819 S.W.2d 702, 703-04 (1991) (citing Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (1989)). Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Id.
With these standards in mind, we turn to our law regarding petitions for a writ of habeas corpus. “The writ of habeas corpus shall be granted forthwith by any of .the officers enumerated in § 16-112-102(a) to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority.” Ark. Code Ann. § 16-112-103(a)(l) (Repl. 2016). Further, Ark. Code Ann. § 16-112-118(b)(1)(B) provides:
(b)(1) If it appears that the prisoner is in custody by virtue of process from any court legally constituted or issued by any officer in the exercise of judicial proceedings before him or her, the prisoner can only be discharged in one (1) of the following cases:
(B) Where, though the original' imprisonment was lawful, yet, by some act, omission, or event which has taken place afterward, the party has become ^entitled to his or her dis-eharge[.]
Further, with regard to a writ pertaining to the release of a prisoner, Arkansas law is clear that a circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Neely v. McCastlain, 2009 Ark. 189, at 7, 306 S.W.3d 424, 428. Additionally, pursuant to Ark. Code Ann. § 5-4-101, “ ‘[suspension’ or ‘suspend imposition of sentence’ means a procedure in which a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence and without supervision.” In other words, SIS does not include physical custody. Finally, we have explained that a person on probation by definition is not in custody. Reeves v. State, 339 Ark. 304, 310, 5 S.W.3d 41, 44 (1999).
We move now to review the order at issue, the circuit court’s June 14, 2016 order denying Rangel’s habeas petition, which states in pertinent part, “the Court finds it has no jurisdiction over this case since the defendant is not in custody in the territorial jurisdiction of the court.... The defendant’s Petition for Habeas Corpus is denied with prejudice.” Rangel contends that the circuit court’s order is erroneous because he was not provided with the Padilla warnings regarding deportation and remains “aggrieved” by the SIS term and sentence and is thus entitled to habeas relief. The State responds that Rangel is not entitled to relief because he is not in custody. We agree with the State. Here, on June 6, 2016, the circuit court held a hearing on Rangel’s petition. At the hearing, the following colloquy occurred:
Defense Counsel: We are asking for the sentence part to be vacated, but, you know, it’s tricky because he’s already |4done his sentence. He’s already been deported as I have been informed.
The Prosecutor: Arkansas has laid out ... a requirement to be in custody on habeas corpus ... so the defendant is just not entitled to relief.
The Court: ..'. One of the questions I had was where is he now?
Defense Counsel: He is back in Mexico.
The Court: And you say he was deported?
Defense Counsel: He was deported; Your Honor; yes, sir.
The Court: That kind of adds a third reason not to; it’s moot.
Defense Counsel: It does. I don’t disagree with that, your Honor.
Here, the record clearly indicates that, despite Rangel’s SIS sentence, Rangel is not in custody, as defined by our laws. As discussed above, the circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court’s jurisdiction. See Pardue, 338 Ark. 606, 999 S.W.2d 198; Neely, 2009 Ark. 189, at 7, 306 S.W.3d 424. Therefore, we agree that the circuit court lacked jurisdiction to grant habeas relief. Accordingly, for the reasons discussed above, the circuit court did not err in denying Rangel habeas relief.
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McCulloch, C. J.
This is an appeal by the defendant from an adverse verdict and judgment in an action at law on account for building material alleged to -have been sold and delivered by the plaintiff to the defendant.
It is insisted that the court erred in refusing to give a certain instruction requested by the defendant, and also that the evidence is not legally sufficient to sustain the verdict.
None of the instructions is set out any where in the abstract or brief; even the one referred to as having been refused is not set out. Counsel merely refers to it by number and urges that the court erred in refusing to give it. It is not our duty to explore the transcript for the purpose of determining whether or not the court erred in refusing to give instruction. We must indulge the presumption either that the instruction was incorrect or that the court gave other instructions which covered it.
Neither does counsel abstract the testimony in the case. He merely states, very briefly, his conclusion as to the substance of the testimony. This is not sufficient to call for a review here as to the legal sufficiency of the testimony. The writer has taken the pains to read the record, and reaches the conclusion that the evidence was legally sufficient to warrant a submission of the questions of fact to the jury, but, under the rules of this court, before there can be a review of any question, there must be a sufficient abstract to enable the court to determine, without exploring the record, whether the grounds of attack upon a judgment are well founded. This has been said in so many cases that it is unnecessary to cite decisions which support it.
Therefore, on account of the insufficiency of the abstract, the judgment must be affirmed, and it is so ordered. | [
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McCurroch, C. J.
Appellant, Mack Johnson, killed his wife, Queenie Johnson, on the streets of Fort Smith, June 10, 1910, by cutting her with a knife, and he was indicted for murder in the first degree, and on trial by a jury was convicted of that crime and sentenced to be hanged. He was unable to employ counsel, and the court appointed two attorneys, who conducted his defense.
There was no denial of the fact that he killed his wife. The deed was done in the presence of several witnesses. His wife had deserted him, and appellant had accused her of infidelity and repeatedly threatened to kill her. Fie approached her standing on a street corner in company with another woman, and the three got on a street car together. In a moment after they got off the car he began cutting her, inflicting several wounds, from which she died immediately. Fie then fell or threw himself to the ground and drank from a bottle of carbolic acid, which he had somewhere about his person.
Appellant testified in his own behalf, and stated that he remembered “slashing” at his wife, but' could not remember whether he cut her or not — said he was heavily under the influence of morphine, which he had been taking all day. He testified further that his skull had been fractured twice, and that since then he had had “spells,” and took morphine on the advice of a physician to “keep down the spells.”
It appears that the onfy defense insisted on at the trial was that of insanity. The court instructed the jury correctly on all the degrees of homicide, and also on the law of insanity as a defense. No objections were made to any of the instructions, and no objection is made to any of them here by appellant’s counsel. The evidence abundantly sustains the verdict, and we discover no error in the instructions of the court. No abjections were made to the admission of testimony.
The only assignment of error is as to the selection of the jury. When the case was called for trial, twelve of the jurors of the regular panel of the petit jury were deliberating on another case which had been submitted, and the court, over appellant’s objection, directed that the trial proceed, and caused twelve jurors to be summoned from the bystanders to complete the panel, and the trial jury was drawn and selected from these and twelve other jurors of the regular panel. Appellant exercised only six of his peremptory challenges in the selection of the jury.
In York v. State, 91 Ark. 582, a felony case, where the trial court had, without sufficient legal grounds, excused five jurors from the regular panel, and caused bystanders to be summoned to take their places, the defendant accepted the jury without exhausting his challenges, and this court ruled that the error of the trial court was not prejudicial. Quoting from a previous decision, this court held that an accused has the right to the service of no particular juror, and that “when he has voluntarily taken his chance of acquittal at the hands of jurors whom he might have rejected, he must abide the issue.” Mabry v. State, 50 Ark. 492. We perceive no sound reason why the same rule should not prevail in capital cases.
In Bowman v. State, 93 Ark. 168, a capital case, the regular panel of jurors was exhausted after eleven jurors had been selected, and the court caused only one talesman to be summoned instead of two, as required by the statute. The court decided that the error was not prejudicial for the reason that the accused accepted the juror without exhausting his challenges.
After a careful examination of the record, we are of the opinion that there is no error, and that the judgment should be affirmed.
Appellant’s counsel have informally suggested to us that, since the judgment of conviction was rendered, appellant has been pronounced insane by the county physician and removed from the jail to the county hospital. It is conceded by the Attorney General that this is true. That, however, does not affect the adjudication of this court affirming the judgment of ■the trial court where no error is found in the record of the trial. Appellant pleaded insanity as a defense to the crime, but no plea of present insanity was interposed at the trial, nor was there any suggestion of present insanity as a reason why judgment should not be pronounced on the verdict of the jury. There is no provision in the statute for suspending proceedings in this count on account of appellant’s insanity, though ample protection is provided in that respect in the lower court. The circuit judge has the power to issue the writ of error coram nobis to set aside a judgment of conviction when it appears that the defendant was insane at the time of the' trial and the fact was not made known at the trial. Adler v. State, 35 Ark. 517; Howard v. State, 58 Ark. 229; Linton v. State, 72 Ark. 532.
The statute also provides that “when a defendant appears •for judgment * * * he may show for cause against judgment * * * that he is insane,” and that “if the court is of the opinion that there are reasonable grounds for believing that he is insane, the question of his insanity shall be determined by a jury of twelve qualified jurors, to be summoned and impaneled as directed by the court.” Kirby’s Digest, § 2240. If the insanity of the defendant be not brought to the attention of the court and inquired into before judgment is pronounced, the circuit judge may, after the expiration of the term, issue the writ of error coram nobis to set aside the judgment of conviction and suspend sentence in accordance with the statute above quoted.
The statute also provides another mode of inquiring into the insanity of a defendant after judgment. Kirby’s Digest, § 2454.
A plea of insanity interposed as a defense to the crime charged in an indictment and a verdict of guilty do not bar a subsequent plea of insanity at the time of trial or at the time of sentence. Ince v. State, 77 Ark. 418. Nor does the judgment of affirmance here operate as a bar to any of the proceedings indicated above, as this court, in affirming the judgment, only passes on the proceedings of the trial court presented in the record.
The judgment is therefore affirmed. | [
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Frauenthal, J.
This was a suit brought by B. F. Claxton, the plaintiff below, to recover a reward to which he claimed he was entitled, and which had been paid to the defendants. In the complaint it was in substance alleged that in 1909 one John Whitson was assassinated in Fulton County, and there was a great desire upon the part of the people of the county to bring to justice the perpetrators of the crime, who were at that time unknown. The county court of said county thereupon appropriated and set apart the sum of $500 as a reward, to be paid for the arrest and conviction of the murderers. It was further alleged that the plaintiff then went to work to ferret out the perpetrators of the crime, and finally discovered witnesses and evidence which led to the apprehension and conviction of Roy and Anderson Turner as the murderers; and in effect it was alleged that the plaintiff had fully complied with the terms and conditions of said offer of reward, and was entitled to same.
It was further alleged that the defendants were employed to and did prosecute said murderers of Whitson, and did use the witnesses and evidence obtained and furnished by the plaintiff in said prosecution, which resulted in their conviction of said crime; that the defendants thereupon wrongfully and without right applied to the county court of said county for said reward, and received payment thereof; and in effect it was alleged that the defendants had without right received the reward to which plaintiff was rightfully entitled. By this action the plaintiff sought to recover judgment against the defendants for the amount of said reward, which they had received.
.A demurrer was interposed to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained; and, the plaintiff refusing to plead further, the cause was dismissed.
In passing upon a question as to whether or not error was committed in sustaining a general demurrer to the complaint, it is the rule that if the facts stated, with every inference reasonably deducible therefrom, constitute a cause of action, then the demurrer should be overruled. Cox v. Smith, 93 Ark. 371.
Viewed in this way, the complaint in effect alleged that a reward was offered by a public agency for the arrest and conyiction of the perpetrators of a public crime. Moved by this cause, the plaintiff performed the service in seeking for evidence and witnesses who had knowledge of facts that would lead to the discovery of the criminals .and their conviction, and he had fully complied with the terms and conditions of the offer, and thereby had become entitled to the reward. The Fulton County Court interposed no objection to paying this reward to the person entitled thereto under the terms and conditions of the offer which it had made, but intended to pay it only to the person actually entitled thereto. At the time .of paying the reward to defendants, it did so because it thought from their representations that they were entitled to receive it under the terms of the offer. But, from the allegations made in the complaint, it would appear that the defendants were not entitled to the reward, but as a matter of fact and of right the plaintiff alone was entitled thereto.
The county court of Fulton County was in effect holding the amount of the reward for the person who, under the terms of the offer, was entitled to it. It raised no objections as to its legal liability to pay to such person the reward, and in all probability, if it had known that there were other claimants than the defendants for the reward, it would, have required the rival claimants first to establish their rights thereto before making payment to either. Although this was not done, the plaintiff can still assert his right in an action against the defendants, if he was in fact entitled to the reward, and the defendants received it without right.
It is urged that the order of the county court allowing said reward to defendants was in effect a judgment concluding the rights of all persons; but the plaintiff was not a party to that. proceeding, and his rights can not be affected by any action there taken.
It has been held by some courts that an action will not lie for the recovery of a reward by the person entitled thereto against the person to whom it has been paid wrongfully, through fraud or mistake. This ruling has been made upon the ground that no privity is shown to exist between the parties in relation to the money sought to be recovered. Sergeant v. Stryker, 16 N. J. L. 464. But other courts have held that the person rightfully entitled to a reward may by action recover the same from one to whom it has been wrongfully or erroneously paid. Stephens v. Brooks, 2 Bush 137; Williams v. Thweatt, 12 Rich. L. (S. C.) 478. See also Dawson v. Gurley, 22 Ark. 381.
This, we think, is the better and proper rule, and we are of the opinion that this is especially true where the reward is offered by a public agency; for in such case the fund is in effect • held for the person entitled thereto; and if one without right receives it, he will be liable to an action as for money had and received for the use of him who is actually entitled thereto.
Considering the facts alleged in the complaint, together with every reasonable inference to be drawn therefrom, we are of the opinion that it states a cause of action, and that the demurrer thereto should have been overruled. The judgment is accordingly reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings. | [
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McCurroch, C. J.
Plaintiffs (appellees) instituted this action against the Missouri & North Arkansas Railroad Company to recover damages done to their lands by reason of fire set out from a locomotive. They own a tract of land adjoining the railroad right-of-way, and the fire destroyed a peach orchard growing on the land. Eire was discovered in the grass growing on the right-of-way and on plaintiff’s land shortly after a train had passed. The wind was blowing in the direction of the land from the right-of-way, and the origin of the fire is not explained in any other way. Plaintiffs recovered judgment for their damages fixed by the jury, and the defendant appealed.
It is insisted in the first place that the evidence is not sufficient to sustain the finding that the fire was communicated from the engine. The fire was first discovered shortly after a train had. passed, the wind was blowing from the direction of the railroad track, and the origin of the fire is not accounted for in any other way. These circumstances warranted an inference that the fife escaped from the engine, and 'sustained the finding of -the jury. Railway Co. v. Dodd, 59 Ark. 317; St. Louis, I. M. & S. Ry. Co. v. Coombs, 76 Ark. 132; St. Louis, I. M. & S. Ry. Co. v. Dawson, 77 Ark. 434.
It is next contended that the court erred in allowing witnesses introduced by plaintiffs to testify as to the value of the fruit trees. The court in an instruction proposed by defendant’s counsel gave to the jury, as the measure of damages, “the difference between the market value of the land for the purposes to which it was devoted just preceding the fire and its market value for any purpose to which it may be reasonably devoted in the near future after it was burned over.” It was competent to prove by witnesses the value of the growing fruit trees which were destroyed, for the jury to consider in determining the injury done to the land. St. Louis & S. F. Rd. Co. v. Shore, 89 Ark. 418. The witnesses who testified were .asked to state the value of the land, and they stated the value of the trees as an element in determining the value of the land.
Another error of the court is assigned in modifying one of the instructions asked by defendant, by striking out the following after the words hereinbefore quoted as to the measure of damages: “In other words, it is the depreciation in value, per acre, of the market value of the land by reason of the destruction or injury by fire of the fruit trees thereon. In determining this depreciation in value, .if any you find, you will consider the number of trees injured or-burned only for the purpose of determining the number of acres of plaintiff’s land affected or injured by the fire.”
The instruction on the measure of damages was complete without the omitted words, and there was no prejudice in the modification, even though the part omitted had contained a correct statement of law. It was, however, not correct to declare that the number of trees injured or burned should be considered only for the purpose of determining the number of acres of land affected by the fire. That fact, as we have already stated, could be considered for the purpose of determining the extent of the injury to the lands, and it would have been error to give an instruction to the contrary.
Judgment affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended here, first, that the court erred in its remark to the jury relative to the proper construction to be placed upon said instruction No. 2 and in stating that the consignee’s refusal to accept the peaches in their damaged condition would not be a bar to plaintiff’s right to recover, etc.
It is true, our court has said: “A common carrier is liable in damages for a negligent delay in the transportation of property, but the owner can not, on account of unreasonable delay in the delivery, refuse to receive the goods and sue as for a conversion.” Chicago, R. I. & P. Ry. Co. v. Neusch, 99 Ark. 568; Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524.
This suit, however, was not for a conversion of the car of peaches, but for damages for the destruction of same, in effect, by delay and failure to ice in transit, causing them to heat and rot and rendering them worthless, according to plaintiff’s contention, and the court correctly declared the law as to the measure of damages.
It is also true that the peaches were not entirely without value, as the consignee’s agent concluded they were in refusing to accept them when tendered by the delivering line, and that they in fact were sold by said carrier for one hundred and fifty dollars.
But, even if the refusal to accept had been wrongful, the carrier could not have abandoned the shipment, or converted it to its own use without liability therefor. Chicago, R. I. & P. Ry. Co. v. Pfeifer, 90 Ark. 524.
Recognizing its obligation, it sold the damaged shipment, realizing therefor one hundred and fifty dollars, and there is no proof indicating that said amount was not the value. The carrier was then bound to the payment of the difference of the value of the peaches at their point of destination, if they had arrived in a sound and marketable condition, and their value as they did reach the market in the damaged condition, and if plaintiff had been able to establish his contention that they were utterly worthless on arrival because of the carrier’s negligence, he would, of course, have recovered the entire market value. The peaches having been shown to be worth one hundred and fifty dollars, his damages were necessarily that amount less than the market value of the shipment at the place of destination and any expense the carrier reasonably incurred in the sale and disposition of the fruit, the one hundred and fifty dollars belonging to him the same as if he had sold the shipment therefor Because plaintiff failed to establish his contention that the shipment of peaches was damaged in its full value, as his agent concluded when he refused to accept them, it does not follow that he could not, on that account, recover the damage he did prove, and the construction placed upon said instruction No. 2 lay the attorney in his argument to ‘the jury that under it they could not find for the plaintiff at all, if he refused to accept the shipment in its damaged condition, unless it was entirely worthless, was wrong, and the court committed no error in its interruption of such argument in the remark made at the time and objected to here.
2. If it be considered that the provision in the bill of lading requiring claims for damages to be reported by the consignee in writing to the delivering line within 36 hours after he has been notified of the arrival of the freight at the place of delivery, and if such notice is not there given that none of the carriers shall be liable, is a reasonable regulation, we see no reason why it should not have been pleaded in defendant’s answer as a bar to plaintiff’s right to recover. In other words, if there was a contract limiting the railroad company’s liability, and it wished to avail itself of such a defense, it should have set it up in its answer. Kansas City, Pittsburg & Gulf Rd. Co. v. Pace, 69 Ark. 257.
The question could not be raised by a demurrer, which does not reach the exhibits attached to the pleadings in cases at law, and the demurrer was properly overruled. It having been in fact treated as raised and the case having been tried on that issue, we do not think the company can escape liability on account' of it. The delivering carrier had notice of the damaged condition of the shipment of peaches upon its arrival, its agent being present when an examination thereof was made by the agent of the consignee, who refused to accept the shipment on account of its damaged condition, and who also gave its said agent.a copy of the telegram advising consignor that the shipment of peaches was damaged in their total value, and that he refused to accept them on that account. The copy of the message, of course, was in writing, and was a sufficient compliance with the said provision.
3. The contract of shipment, the bill of lading, was made with appellee, R. C. Cumbie, as evidenced by said bill of lading, and he had the right to bring suit thereon. Cantwell v. Pacific Express Co., 58 Ark. 490; Kirby’s Digest, § 6008.
If others were wrongfully joined with him in said complaint, they could have been stricken therefrom upon motion of appellee; and if the demurrer be considered as such motion, and properly raised the question, and should have been sustained, its only effect would have been to permit the suit to proceed in the name of said consignor in the bill of lading, who was entitled to sue and recover the whole amount of the damages, and no harm could have resulted to appellant from the court’s action thereon.
The judgment in the whole case is right, and is affirmed. | [
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Wood, J.,
(after stating the facts.) The argument of the attorneys was to the effect that Brock and Allgood had entered into a conspiracy to kill Parsons. This argument was based on the testimony of the witness Humphreys. The testimony of Humphreys was incompetent. Appellant had not been charged with entering into a conspiracy with Allgood to kill Parsons, nor had there been any proof of such conspiracy. In the absence of such allegation or proof, it was collateral to the issue and wholly incompetent for the State to attempt to prove by witness Humphreys that Allgood told him he was present when Brock killed Parsons. In order to avoid an interminable multiplication of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question. Wharton’s Criminal Evidence, § 484; McAlister v. State, 139 S. W. 684; 1 Greenleaf, Ev. § 449. See Drake v. State, 29 Tex. App. 269. See Williams v. State, 19 So. 826. The argument was improper and prejudicial.
The court also erred in permitting attorney Jones, in commenting upon instruction No. 5, set out in statement, to say: “The instruction means that, the killing being proved, the burden of proving that he was justified in doing it is on the defendant;, and if the defendant does not prove to your satisfaction that he is not guilty, you must convict him of murder.” The remarks of the counsel, sanctioned by the court in its refusal to sustain an objection to them, were a misinterpretation of the instruction that had been given by- the court, and were an incorrect statement of the law. It was a statement, too, in direct conflict with the instruction upon which the attorney was commenting.
The court correctly instructed the jury in the instruction that the burden rested upon the State to prove the crime charged, and that this burden did not, at any time, shift to the defendant, but, according to the construction which the attorney placed upon the instruction, with the sanction of the court, the' jury were told in effect that,.after the killing had been proved by the State, then the burden shifted to the defendant to prove that he was not guilty of the crime charged, and that he must make such proof, too, to the satisfaction of the jury. This was well calculated to confuse and mislead the jury, and to cause them to fail to understand the true meaning of the instruction.
The killing being proved, unless the evidence on the part of the State shows circumstances of mitigation, justification, or excuse, it devolves upon the appellant if he relies upon such circumstances to show them, but the burden is still .on the State to show that the defendant is guilty of every grade or degree of crime included in the indictment. The burden, in other words, in a charge for murder, never shifts to the defendant, but always remains on the State. Cogburn v. State, 76 Ark. 110.
There was no prejudicial error in the court's refusing to allow the constable, Oliver Smith, to testify as to what was said to him when he surrendered and confessed to the killing. This offered testimony was fully covered by the appellant in his testimony on the witness stand, and he received the benefit of it. Appellant, therefore, could not have been prejudiced by the refusal of the court to admit the testimony.
The judgment is reversed, and the cause remanded for a new trial. | [
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Kirby, J.,
(after stating the facts). It is contended here that the court erred in giving said instructions for the plaintiff, and in refusing to give certain instructions for the defendant, and that the amount of the verdict is excessive.
Appellant especially objected to that part of instruction number 3 which declares: “It is the duty of the railroad company to stop its trains at the station a sufficient length of time and to hold it still long enough to allow passengers to alight in safety;” and if that were all of the instruction, and nothing else had been given explanatory of it, the objection would not be ill-founded, but it further declares: “It is the duty of the passenger to leave the train with reasonable diligence after it stops, and it is negligence for the carrier to start the train after it stops and before the passengers have had a reasonable time in which to alight. ”
In Barringer v. St. Louis, I. M. & Ry. Co. 73 Ark. 551, the court said: “But the law is that it is the duty of carriers to allow their passengers a reasonable opportunity of getting on and off their trains, and they must stop at stations long enough for that purpose; (citing cases). A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. * * * It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known or should be known by its servants, for a passenger to get on or off its trains. ”
In Kansas City So. Ry. Co. v. Worthington, ante p. 128, the court said:
“ It is well settled, we think, that it is the duty of a railroad company as a carrier of passengers to stop its trains at a station which by its regulations it has designated as a place for stopping, and to there remain for a sufficient time to permit its passengers, in the exercise of ordinary diligence and care, to safely leave its trains. The passenger must not only be carried properly and safely, but he must be carried to the end of his journey for which he has paid his fare, and he must be put down at the usual stopping place at the end of such journey. ”
So this instruction, although it declares the duty of the railroad company to stop its trains at its stations a sufficient length of time to allow passengers to alight in safety, further explains that it is the duty of the passenger to leave the train with reasonable diligence after it stops, and only declares it negligence for the carrier to start its train after it stops and before the passengers have had a reasonable time in which to alight, and amounts to but saying that the passenger shall be given a reasonable opportunity to alight while in the exercise of reasonable diligence to do so, and the court committed no error in giving it.
We do not think appellant’s requested instruction numbered 3 was correct; but, if it had been, no prejudice resulted to it because of the court’s refusal to give it, since the court on its own motion correctly declared the law defining contributory negligence and relating to the defense thereof.
It is true that no witness testified that plaintiff would probably incur increased expense in the future during her life expectancy on account of the injury, but the physician thought the injury was permanent, and the testimony showed it would be accompanied with more or less pain, and especially during the periods of menstruation; and while increased expenses might, not be inferable because of it, no prejudice resulted to appellant unless the verdict is excessive.
It is contended also that the court erred in permitting the introduction of certain life or mortality tables not authenticated. The a,gent of a life insurance company testified that the tables were given by the National Life Insurance Company of the United States; that he did not know what tables they were, but that they were the same as use'd by the Equitable, the Missouri State Life and all others.
Life or mortality, tables are competent evidence, and it is the common practice to introduce them to prove the probable expectancy or duration of the life of the person injured, although it is not necessary to do so, since the jury may determine that from the age, health, habits and other facts which affect its probable continuance, etc. (Kansas City So. Ry. Co.v. Morris, 80 Ark. 533), and no error was committed in the introduction of these tables, which were shown to be in general use by the life insurance companies doing business in the State. Miss. & T. R. Co. v. Ayres, 16 Lea (Tenn.) 725; Central Railroad v. Richards, 62 Ga. 306; Pearl v. Ry., 115 Iowa 541, 88 N. W. 1078; Gulf, C. & O. Ry. v. Johnson, 10 Tex. Civ. App. 254, 31 S. W. 255; 8 Ency. of Evidence, p. 642.
It is strongly urged that the plaintiff was injured but slightly, if at all, and that the verdict is excessive. The testimony shows that the plaintiff was 17 years old at the time of the injury, well and healthy and walked erectly. As her father said, before the injury she was a stout portly woman, stood straight and walked straight, and worked at anything there was to do, hoeing, chopping or picking cotton, or any farm work of work about the house, with an earning capacity at manual labor of a dollar or more a day; since the injury she can not straighten up or stand straight or walk straight, and súffers continuously when attempting to do so, and, according to the physician, her injury is probably permanent, and her capacity to do manual labor destroyed.
Necessarily, her chances for contracting a happy marriage and fulfilling the destiny of woman are materially lessened, of not altogether blighted, and we can not say under the circumstances that, for an injury which caused a stout, healthy girl of 17 years, portly and erect before, two months’ suffering and confinement to her bed, leaving her bent and misshapen, unable to stand or walk straight and suffering pain continuously when attempting to do so, with prospect of no improvement and continued inability to perform manual labor throughout her life expectancy, the assessment of six thousand dollars damages by the jury was excessive. Finding no prejudicial error, the judgment is affirmed. | [
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McCulloch, C. J.
The plaintiff, State Bank of Decatur (a domestic corporation engaged in the banking business), instituted this action in the circuit court of Benton County against the Sanders Fruit & Manufacturing Company (another domestic corporation) and certain of its directors, to recover the amount of two promissory notes, each for $1,000, with interest, executed by said defendants to plaintiff, which said notes are alleged to have been surrendered to defendants by plaintiff through mistake. It appears from the record that separate actions were first instituted, but during the pendency of . the cases the pleadings were lost, and a complaint was substituted covering both actions and treating them as consolidated. No question, however, is made upon this point. A trial before a jury resulted in a verdict in favor of plaintiff against the defendants who were found to have signed the notes, and the latter have appealed to this court.
It appears from the evidence that in September, 1907, defendant Sanders Fruit & Manufacturing Company borrowed the sum of $1,000 from plaintiff bank and executed its note therefor. Payments have been made from time to time, which reduced the amount due on the note to the sum of $400. On November 25, 1907, the Sanders Company borrowed from the bank $1,000, and executed its note therefor with certain of its directors, who are defendants in this action, as joint makers or indorsers, and on January 8, 1908, the Sanders Company borrowed the further sum of $1,000 from the bank and executed its note with defendant Frazier, who was one of the directors, as joint maker or indorser. About June 1, 1910, after these notes became due and were unpaid negotiations began between the parties for a renewal thereof, and the evidence tends to show that the cashier of the bank proposed to the defendants, by written correspondence and verbally, that a renewal would be accepted in the form of a new note signed by the Sanders Company and indorsed by the directors, or some of them, for the full amount of the three notes, the accrued interest to be paid at the time of the renewal. The cashier of the bank sent to the defendants by mail a form of note to be executed reading, “We, or either of us, promise to pay,” etc. The directors of the Sanders Company, pursuant to the negotiations, held a meetingand, after erasing the words, “or either of us,” and inserting in lieu thereof, “as directors, ” executed the note for the Saunders Company and signed it in their official capacities as directors so as to make only the corporation liable on the note. One of these directors, the defendant Frazier, carried the note to the bank, together with a check for the accrued interest, and delivered the same to the cashier, saying, as the testimony tends to show, “Here is the note,” and asked for the old notes, which were then surrendered to him by the cashier. The cashier testified that the transaction was very hurriedly done on account of Frazier having to leave in a few minutes to catch a train, and that he (witness) did not take time to examine the note carefully, but glanced at it, and saw that the names of the directors' were signed, and, believing that the names were signed so as to bind them as indorsers or joint makers, he accepted the new note, and surrendered the old ones, and did not discover the mistake until some time thereafter. This occurred on June 17, 1910, and the alleged mistake was discovered by the cashier on July 8, 1910, when he wrote to the Sanders Company and each of the directors calling their attention to the fact that the renewal note as signed did not make them liable, and that a new note must be executed. The evidence adduced on the part of the defendant tended to show that they did not, in signing any of the notes, really intend to make themselves liable individually, but there is no testimony tending to show that their intention was ever communicated to the bank. The court, over the objection of the defendants, gave the following instruction:
“No. 3. The court charges you that if you find from the evidence that plaintiff held the notes sued on and offered to defendants to surrender the same for a new note to be signed by the defendant company and its directors, or some of them, and sent the defendants a note filled out to be executed and returned, and that defendants so changed the note and executed in form so that it was only the note of the defendant company, and presented the same to the plaintiff, without calling plaintiff’s attention to the changes, and that plaintiff, without observing or knowing that the note was signed only as the note of the company, surrendered the old notes, then such surrender of the old notes and acceptance of the new would not bind the plaintiff, and the title in the old notes and the right to recover thereon would remain in the plaintiff, and the new note would be void. If you find the foregoing facts by a preponderance of the evidence, you will find for the plaintiff. ”
The point of the objection to this instruction is that it declares as a matter of law that Frazier’s omission when he presented the note to call the attention of the cashier to the changes in the note, and the different method of signing it from what had been called for, constituted a fraudulent misrepresentation which would avoid- the acceptance of it by the bank; and that it permitted the jury to find for the plaintiff, even though the cashier was guilty of negligence in failing to examine the paper before he accepted it.
While the question is not free from doubt, we are of the opinion that neither of these objections is well taken, for, if the facts recited in the instruction were found by the jury to exist with reference to the acceptance of the note, then the bank was not bound by its acceptance, and had a right to rescind the contract and reclaim the surrendered notes. In other words, if the acceptance of the new note was made under cir cumstances recited in the instruction, the acceptance was made upon such a mistake of fact as would justify a rescission of the contract of renewal.
The following statement of the law taken from a decision of the Massachusetts court seems to be the one which should control in this case:
“ It is a general rule that where parties assume to contract and there is a mistake as to the existence or identity of the subject-matter, there is no contract, because of the want of mutual assent necessary to create one; for in the case of a contract for the sale of personal property, if there is such a mistake and the thing delivered is-not the thing sold, the purchaser may refuse to receive it or, if he receives it, may, upon discovery of the mistake, return it and recover back the price which he has paid.” Hecht v. Batchelor, 147 Mass. 335. To the same effect see, Bridgewater Iron Co. v. Enterprise Ins. Co., 134 Mass. 433; Gardner v. Lane, 12 Allen (Mass.) 39; Sherwood v. Walker, 66 Mich. 568; McKinnon v. Vollmar, 75 Wis. 82, 6 L. R. A 121; 1 Page on Contracts § 74; Mechem on Sales, § § 272 and 842.
The principle is announced by the above authorities in cases of sale of chattels, but we perceive no reason why it should not be controlling in a case like this, where there is a delivery of a written instrument intended as a renewal of a former contract, and where it is accepted under a mistake as to its identity. It is clearly a case of mistake as to identity, if the facts are found to exist as recited in the instruction, for the cashier accepted under a mistake the note of the Sanders Company when he had called for and thought he was accepting the note of that company bearing the, individual indorsement of the directors. The mistake therefore clearly involved the question of identity of the instrument accepted.
The argument of learned counsel for defendant is based upon a misconception as to the difference between reformation and rescission of a written contract on account of mistake of one of the parties. The difference is a very distinct one, for the reformation of a contract involves an effort to enforce it as reformed, whereas rescission involves an effort to abandon and recede from a contract which the party did not intend to make. One of the parties to a contract can not have it reformed on account of mistake which is not mutual, for to do so would be to enforce the reformed contract which the other party had not intended to make. But a different question is presented where one of the parties to a contract seeks to have it rescinded because of a mistake on his part, for that makes only a case of there being no contract between the parties on account of the fact that there has not been a meeting of the minds of the contracting parties. Nor does this violate the rule of evidence which forbids varying or contradicting the terms of a written instrument. The instrument did not become the evidence of the contract between the parties until it was accepted; and if it was accepted by a mistake as to its contents, it constituted a mistake as to the identity of the subject-matter, as much as if it had been the delivery of any article sold and purchased. The decisions of this court in Mcllroy v. Buckner, 35 Ark. 555, Colonial & U. S. Mortgage Co. v. Jeter, 7T Ark. 185, and other decisions of like import, holding that a party who signs ( a contract without reading it when he has an opportunity to do so can not plead such ignorance in avoidance, have no application to the question now before us, for, when a written instrument is signed by the parties, it becomes the sole evidence of the contract between them, and can not be varied or contradicted by parol testimony nor reformed save upon clear and satisfactory evidence of a mutual mistake as to its contents. In the present case that question is not involved, because no rights are asserted under this contract, the instrument was not one to be signed by the accepting party, and it did not become the sole evidence of the transaction between the parties.
The question of negligence on the part of the cashier in accepting the new note and surrendering the old one without examining the former is not 'nvolved in this case, for the reason that there is no evidence to the effect that the makers or indorsers of the old notes were injured thereby. The element of estoppel on account of negligence could not arise unless the status of the parties had been changed to their disadvantage, and this does not appear in the case: : We are therefore of the opinion that the instruction complained of was correct, and that the evidence warranted the finding for plaintiff in accordance with the law as therein declarfed. 1
The views already expressed disposes of the assignment of error relating to the court’s refusal of the first instruction asked by the defendants.
It appears from the testimony that on one of the notes, after being signed by all of the directors including the secretary and before its delivery to the cashier of the bank, the secretary added the abbreviation “Sec.” to his name so as to show that he, as well as the president, had signed for the purpose of attesting the signature of the corporation. There is no evidence that the bank knew of this change in the note after it was signed except that the word appeared in different ink from that of the original signatures. Be that, however, as it may, the testimony on the part of the secretary establishes the fact that he added the word pursuant to the common custom of signing the name of the corporation to add his own name as secretary. An alteration made by one of the obligors before delivery to the obligee for the purpose of expressing the real intention of the parties does not avoid the contract. 1 Cyc. p. 148; Foote v. Hambrick, 70 Miss. 157; Cole v. Hills, 44 N. H. 227. The mere fact that the abbreviation “Sec.” was in different ink does not of itself make it a manifest or ordinarily observable alteration so as to carry with it- notice to one who afterwards accepts it;, and, there being no other evidence of notice to the bank that the word had been added, even if the alteration should -be deemed material, it did not affect the liability of the other indorsers or makers of the note. State v. Churchill, 48 Ark. 426.
The court properly overruled the defendant’s motion to transfer the case to the chancery court. The case, as already stated, does not involve the question of reformation of the instrument sued on, and no grounds are stated in the answer which would warrant the interposition of a court of equity.
Judgment affirmed. | [
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Wood, J,
(after stating the facts). The appellee contends that the judgment must be affirmed because the bill of exceptions does not contain all the evidence. The bill of exceptions shows that the policy of insurance upon which the suit was based was introduced in evidence. The bill of exceptions shows that Henry Jackson was asked: Q. “Is this the policy which she carried?” A. .Yes, sir.” It also recites, “The policy of insurance was here introduced in evidence and read to the jury.”
The policy of insurance here referred to was not made an exhibit to the complaint; it was not a part of the record proper, and had to bé brought into the record by bill of exceptions. This has not been done. There is in the transcript what purports to be a policy of insurance issued by the appellant in favor of Fannie Williams in the sum of $250, but the bill of exceptions nowhere identifies this as the policy upon which this suit was grounded, and which was introduced in evidence at the trial. There is no call in the bill of exceptions for this policy to be copied by the clerk, and nothing whatever to identify the policy that appears in the transcript as the one that was introduced in evidence. The bill of exceptions must contain the evidence that was introduced at the trial, and we can not look to other parts of the transcript for such evidence.
The bill of exceptions, over the certificate of the judge, must contain, or in some manner call for and specifically identify, the evidence that was introduced at the trial, in order to authorize this court to consider it.
This court, in St. Louis, I. M. & S. Ry. Co. v. Godby, 45 Ark. 485, said: “A fair and liberal practice is adopted by the Supreme Court of the United States, in the case of Leftwitch v. Lecanu, 4 Wall. 187, and is as follows: “If a paper which is to constitute a part of a bill of exceptions is not incorporated in the body of the bill, it must be annexed to it, or so marked by letter, number or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.” See also Lesser v. Banks, 46 Ark. 482.
Appellant, in its abstract, copies what purports to be the policy that was introduced in evidence," and urges a reversal of the judgment for alleged error of the court in the admission of testimony, and in the giving of instructions based upon certain provisions contained in the policy, which they set out, but we can not accept this copy of the policy in the appellant’s abstract as the one that was introduced in evidence, and it is impossible for us to determine as to whether or not the court committed error in the particulars claimed by appellant unless we had before us the policy .that was introduced at the trial. This court has often ruled that “where the bill of exceptions fails to show that it contains all the evidence that was introduced at the trial, it will be presumed that there was evidence to sustain the verdict, and that the jury were correctly instructed. Jonesboro, Lake City & Eastern Ry. Co. v. Chicago Portrait Co., 81 Ark. 327.
The appellant contended in oral argument that, if the policy was not in the bill of exceptions, then there is nothing to show that appellee was entitled to recover. But the bill of exceptions does show that the policy was introduced in evidence, and all presumptions are in favor of the correctness of the proceedings in the trial court. The burden is on the appellant to show that error was committed in order to entitle it to a reversal.
Affirmed. | [
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Per Curiam.
Appellee moves to strike out the bill of exceptions on the ground that it was not properly certified by the trial judge. An examination of the bill of exceptions shows that within the time allowed by the court it was duly presented to the judge, who signed it, but immediately'following his signature added the words:- “Proper corrections to be made, if any necessary, ” and attested the latter by his initials.
We have held that a bill of exceptions must be an unqualified certificate of the trial judge that the matters and things therein contained are true. A qualified certificate is insufficient. Kansas City, S. & M. Rd. Co. v. Oyler, 51 Ark. 280; Sims v. Young, 81 Ark. 65; Huff v. Citizens’ Nat. Bank, 99 Ark. 97.
In Sims v. Young, supra, the trial judge certified the bill of exceptions as follows: “Wherefore, the defendant tenders this his bill of exceptions, together with the stenographer’s official report of the case, which is signed and sealed by the court and ordered to be made a part of the record. This bill of exceptions, presented on the 18th day of November, 1905, and the time for filing expires on tomorrow, the same is signed with the distinct understanding that any and all valid objections which may or can be urged by counsel for plaintiff may be done, and any and all corrections which should be made, shall be made.” The court held that this certificate was a qualified one and' insufficient for the purpose of bringing the record up for review.
In Huff v. Citizens’ Nat. Bank, supra, the judge signed the bill of exceptions and added, as in the present case, an indorsement of the words: “Signed subject to approval on examination.” This court held that the certificate was insufficient, saying that “it is not a sufficient certificate of the circuit judge that the bill of exceptions is correct, but, on the contrary, the certificate shows that a further examination of the same is to be made to test its accuracy..”
The present case can not be distinguished from those cited. The language of the indorsement is substantially the same as that of the trial judge in Sims v. Young, supra, where the judge certified that the bill of exceptions “is signed with the distinct understanding that any and all valid objections which may or can be urged by counsel for plaintiff may be done, and any and all corrections which should be made shall be made.” That was equivalent to certifying that all proper corrections would subsequently be made. It is insisted by counsel that the present case may be distinguished, because the statement which precedes the signature of the judge is to the effect that the bill of exceptions is “examined, found correct, and is by the court signed, sealed and made a part of the record in this cause.” It will be observed that substantially the same certificate was made in Sims v. Young, supra, the only difference being that the qualified certificate preceded the signature of the judge, while in the present case the signature was preceded by the unqualified certificate and then followed by the certificate qualifying it. The court is of the opinion, however, that this does not distinguish the two cases, for the indorsement made by the trial judge at the time he signed the bill of exceptions shows that he intended to qualify his certificate and leave the record open for correction.
The bill of exceptions is insufficient; and will be stricken out.
Appellant’s abstract and brief has been filed, and it is not insisted that there is any error appearing upon the face of the record outside of the bill of exceptions, so an affirmance of the judgment must necessarily follow, and it is so ordered. | [
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Hart, J.,
(after stating the facts.) These two cases were submitted by consent upon the same abstracts and briefs, and considered by the court at the same time.
Section 5461 of Kirby’s Digest, commonly known as the general welfare clause, gives to municipal corporations the power to make and publish such by-laws and ordinances, not inconsistent with the laws of the State, as to them shall seem necessary to provide for the safety, preserve the health, etc., of such corporations and the inhabitants thereof.
Section 5648 of Kirby’s Digest provides that, in order to better provide for the public welfare, comfort and convenience of their inhabitants, certain enlarged and additional powers are conferred upon cities of the first class.
Subdiv. 4 of the section authorizes such cities “to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety.”
The importance of securing to a community pure and wholesome food has led to the very general enactment of statutes and ordinances regulating the sale of such products. Impure and adulterated foods, especially milk and meats, are a prolific source of disease and a menace to the public health. Therefore, it is generally held that ordinances regulating the sale of milk and fresh meats are a valid exercise of the police power delegated to cities to protect health and prevent fraud. Many of the authorities on the subject are cited by counsel for appellee in their briefs, and many more will be found in the case notes to the following: St. Louis v. Messing, (Mo.) 1 L. R. A. (N. S.) 918, 4 Am. & Eng. Ann. Cas. 112; Commonwealth v. Wheeler, (Mass.) 18 Am. & Eng. Ann. Cas. 319; New Orleans v. Charouleau, (La.) 15 A. & E. Ann. Cas. 46; St. Louis v. Schuler, (Mo.) 1 L. R. A. (N. S.) 928; St. Louis v. Grafeman Dairy Co., 1 L. R. A. (N. S) 936; North American Cold Storage Co. v. Chicago, 211 U. S. 306, 15 A. & E. Ann. Cas. 276.
But counsel for appellants contend that the power delegated to cities to enact such ordinances under the sections of the statute above referred to was taken away by the passage of act No. 372 by the General Assembly of 1911. The act reads as follows:
“Section 1. That hereafter it shall be unlawful for any city council, member of an incorporation, corporation, city officer, or any other person either in an incorporated city or elsewhere, to hinder, or to interfere, or to impose a tax or a license, or to obstruct in any manner whatsoever, a,ny person in the selling or the offering for sale any fruits, vegetables, or any products of the farm, including meats from domestic animals or live stock.
“Sec. 2. The benefits of this act shall accrue only to those who produce the above mentioned articles of produce and offer them for sale, either in person or through a legally authorized agent.
“Sec. 3. All laws and parts of laws in conflict with this act are hereby repealed.
“Sec. 4. This act, being necessary for the immediate peace, health and safety of the people of the State of Arkansas, is to take effect and to be in force from the date of passage.
“Approved May'31, 1911.”
There is no express repeal of the sections of the statutes under which the ordinances in question were passed, and repeals by implication are not favored. “To produce this result, the two acts must be upon the same subject, and there must be a plain repugnancy between their provisions; in which case the latter act, without the repealing clause, operates, to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first.” Coats v. Hill, 41 Ark. 149.
It is manifest that the act of May 31,1911, does not cover the whole subject of the power of cities to prevent and regulate the carrying on of any trade, business or vocation of a tendency ■ dangerous to the morals, health or safety of the inhabitants thereof, and there is no indication that the Legislature intended to abandon the'policy of delegating to cities its police power in this respect.
The question then is, is there such a manifest repugnancy between the statutes that the latter operates as a repeal of the former?
It is not plain just what object the Legislature had in view when it passed the statute in question. The statute forbids the imposition of a tax or license. It was already the settled law of the State that no tax could be imposed upon an occupation; and that a license for revenue as well as regulation could not be required. Stamps v. Burk, 83 Ark. 351; Waters- Pierce Oil Co. v. Hot Springs, 85 Ark. 509; Helena v. Miller, 88 Ark. 263; 96 Ark. 199.
We have uniformly held that the power to regulate includes the power to license; and that the license fee demanded is not a tax upon an occupation, but a compensation for issuing the license, for keeping the record, and for municipal supervision over the business.
Judge Dillon says: “To regulate is to govern by or subject to certain rules or restrictions. It implies a power of restriction and restraint certainly within reasonable limits as to the manner of conducting a specific business, and also as to the building or erection in or upon which the business is to be conducted. By virtue of the power to regulate it has been held that the city council may by ordinance prohibit the carrying on of a business within certain specified portions of the city. By virtue of a similar power, it has been held that it is within the authority of the common council reasonably to limit the manner by prohibiting one or more methods. By the weight of authority, although the decisions are not uniform, another form of regulation which may be prescribed by virtue of the power to regulate is the power to require a license to follow particular trades or occupations with an accompanying prohibition in the event of failure to procure the license.” 2 Dillon on Municipal Corporations, (5 ed.), § 665. Our own cases are cited to sustain the latter proposition.
The language of the statute under consideration is “to hinder, or to interfere, or to impose a tax, or a license, or obstruct in any manner whatsoever.” We think the Legislature intended by the act to prevent municipal corporations from passing an ordinance requiring a license as a prerequisite to carrying on the business, and from hindering or obstructing the persons mentioned in the statute in the manner or method of selling their produce. That is to say, in the present case, the city could not demand a license as a means of regulating the business, and could not pass an ordinance preventing producers from going about the streets of the city to sell their products, or to otherwise limit or restrict them as to the time, place or method of making such sales. We do not think, however, that the stat-' ute took away all the powers of the city in respect to the regulation of the sale of meats and milk. It still has the power to enact ordinances to prevent or regulate the sale of impure articles of food. The purpose of the ordinances is to protect the inhabitants of the city from the sale of impure milk and meats. The city has the power to do this.
As a means to the end in view, it is necessary to have proper inspection of the milk and meat before it is sold, and the fee required to be paid the inspector is not required as a license or prerequisite to the right of the seller to carry on his business, but it is to cover the cost of inspection. It is a fee for services rendered by the inspector. The charge is made for specific services rendered by the inspector to the seller, and the inspection fees are not in the nature of a license fee, as that word is used in the statute. Norfolk v. Flynn, 101 Va. 473, 99 Am. St. Rep. 918.
The sections of the ordinance under which this suit is instituted are held to be valid and are severable from the other provisions of the ordinance. Therefore we have not examined and discussed all the provisions of the ordinance, and do not pass upon the validity of those not called in question by this action.
In the case of Vinsant v. Knox, 27 Ark. 276, it was held that the style of the laws as provided by sec. 19, art. 5 of the Constitution is essential to the validity of an act. The act under'consideration is “Be it enacted by the People of the State of Arkansas. ” The views already expressed render it unnecessary for us to decide whether the style of laws passed by the General Assembly has been changed by the amendment to our Constitution providing for the initiative and referendum.
The decree will be affirmed. | [
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McCulloch, C. J.
This is an action instituted by appellee to recover the value of a box of articles consigned as household goods over appellant’s railroad and alleged to have been lost in transit. Appellee shipped four boxes from Roswell, New Mexico, to Hartford, Arkansas, over the Eastern Railway Company of New Mexico as the initial carrier, and which were delivered to appellant company as connecting carrier at Amarillo, Texas, for transmission to Hartford. One of the boxes, which contained the articles described in the complaint, was lost by appellant’s servants, and was never delivered. The box contained household goods consisting of silverware, china, cut glass, and ten sofa pillows, and also appellee’s uniform as a member of a certain fraternal order. The value, as proved at the trial, aggregated the sum of $538.63, and appellee recovered judgment below for that amount.
The bill of lading issued by the initial carrier contained the following clause as one of the conditions upon which the consignment was accepted:
“Claim for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier will not be liable. ”
Nonperformance of this condition was pleaded by appellant in its answer, and according to the uncontradicted testimony appellee failed to comply with thé provision. Appellant’s agent at the point of delivery was apprised of the loss of the box, and demand was made upon him for its delivery, but no claim for damage, either in writing or otherwise, was ever presented, either at the point of delivery or at the point of origin. The action to recover damages was instituted about eight months after the time that the consignment should have been delivered. Counsel for appellee contends that, inasmuch as appellant’s agent at the point of delivery knew that the box was lost, the presentation of a claim was unnecessary, and in support of this contention he relies upon the decision of this court in Railway Company v. Ayers, 63 Ark. 331. The recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Cumbie, ante p. 172, is in line with the Ayers case. But there is a broad distinction between those cases and the present one. In the' former cases, the requirement was that notice of damage should be given, and this court held that formal notice was unnecessary where the carrier received notice of the facts from other sources. The Ayers case was an action to recover the value of live stock which died in transit and were found dead in the car by the carrier’s agent at the point of delivery. Judge Hughes, speaking for the court, said:
“ The cattle that were found dead in the car before the stock were removed and mingled with other cattle are not within this provision of the contract as to notice. The object in requiring the notice by the shipper of his intention to claim damages to be given before the cattle were removed and mingled with other cattle was to afford the railway company a fair opportunity to examine the cattle before they were removed and mingled with the other cattle. As to these that were dead, the company had all the opportunity it could have had to examine them.”
In the present case the requirement is not merely for notice to the carrier that damage has resulted, but it is that the claim for the “loss, damage or delay” shall be presented within the stipulated time. The purpose of the requirement is to give the carrier timely opportunity to investigate the claim for damage after the same has been presented. This involves the right to investigate the contents of lost packages and the value of lost articles as well as the facts bearing upon the question of its liability. The distinction is clearly pointed out by Judge Riddick in the opinion of the court in Western Union Telegraph Co. v. Moxley, 80 Ark. 554, and we are of the opinion that that decision is conclusive of the present case. It was held in that case that, where the contract required the presentation of claim for damages within a specified time, this requirement was not satisfied merely by giving notice of the negligence of the company’s servants. This court has in several cases held that a provision of this kind is reasonable and enforceable where' sufficient time is given for presenting the claim or notice. St. Louis & San Francisco Rd. Co. v. Hurst, 67 Ark. 407; St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 308. And in the last two cases cited above the court held that such stipulation in a contract was not invalidated by the act of Congress making the initial carrier of an interstate shipment liable for loss of a consignment.
Other questions are raised in the case, which need not be passed upon, inasmuch as appellee’s failure to present his claim within the stipulated time is conclusive of his right to recover. Judgment reversed, and cause dismissed. | [
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Hart, J.,
(after stating the facts). It is not contended by the defendant, Pendergrass, that either he or his co-defendants has paid the note. He relies for a reversal of the decree on the ground that the discharge of the executrix can not be established by oral evidence, and that the action should have been brought by Ida V. Lane, as executrix, instead of in her own name. This may be conceded as an abstract proposition of law, and still the plaintiff was entitled to a decree of foreclosure under the facts of this case.
The records show that the will was admitted to probate, and the plaintiff appointed executrix on the 9th day of May, 1906. She was the sole legatee under the will, and testified that no part of the mortgage debt has ever been paid. All the records of the probate court were introduced in evidence, and it does not appear that any claims were ever probated against the estate. While the testimony of the clerk was not competent to prove the discharge of the executrix, it was competent to show by him that there were no further record entries after that of July 31, 1908, and that two years had elapsed from that time to the time at which the clerk was testifying. Hence it may be said that the probate records show that no debts were ever probated against the estate, and that the plaintiff was the sole legatee under the will, and the chancellor is presumed to have considered only competent testimony. Therefore, it is apparent that, if the administration might be still considered open, the executrix has no contingent interest in the estate. Reed v. Ash, 30 Ark. 775.
There being no debts probated against the estate during the time in which they might have been legally exhibited and the plaintiff being the sole legatee under the will, it could make no difference to the defendant whether she brought suit as executrix or in her individual capacity. It is well settled that this court will 'not reverse for errors that are not prejudicial to the rights of the party appealing.
The decree will be affirmed. | [
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Frauenthal, J.
This was an action instituted by J. D. Asher, the plaintiff below, to recover damages for a personal injury which he sustained while in the defendant’s employment. The defendants resisted the recovery, chiefly upon the grounds (1) that the injury was due to a risk which the plaintiff had assumed, and (2) that it was caused by his own contributory , negligence. Upon a trial of the case, a verdict was returned in favor of the defendants.
The defendants were contractors, engaged in constructing a courthouse in- the town of Harrison, and employed plaintiff in July, 1909, as a laborer thereon. In September, 1909, he was directed by the defendants to work at a machine used for the purpose of mixing concrete. It had a hopper shaped like a half barrel, through which there passed a rod or shaft upon which steel blades were fastened. The machine 'was operated by the application of steam, which caused a revolution of the blades by which the cement, sand and water were properly mixed. One of the plaintiff’s duties was to clean the machine by removing the concrete which clung to the blades. This was done either by pouring water down through the machine, which would remove the mixture when not too hardened, and also by using a steel chisel or hook in knocking off such mixture when it had become more hardened on the blades.
There was testimony adduced upon the part of the plaintiff tending to prove that the machine was cleaned by pouring water into it while it was put slowly in motion, and that the concrete clinging to the blades would be removed by means of a chisel inserted by the hand either in the top or bottom of the machine. The testimony on the part of the defendants tended, however, to prove that while the machine was in motion the concrete clinging to the blades was removed with an iron hook or chisel used only at the bottom of the machine, and that it was only cleaned with a chisel inserted at the top when the machine was at rest.
It appears that on the afternoon of October 18, one of the blades broke, and another blade was put in and attached to the shaft by one of the defendants, and that at the time this repair was made the plaintiff was not present. The testimony upon the part of the plaintiff tended to prove that the new blade thus put in projected from the shaft farther than the other blades, so that it extended nearer the outer portion of the machine by a distance of from one to one and one-half inches. Plaintiff continued working at the machine during the remainder of the day, but did not. know or observe that the new blade extended farther than the other blades toward the outer part of the machine. On the following morning, the plaintiff endeavored to clean the machine while it was in motion with a steel chisel. He inserted the chisel with his right hand in the upper portion of the machine, and during the revolution of the blades his hand was caught and mangled so that two of his fingers were permanently injured.
There was a conflict in the testimony as to the cause of the injury. Upon the part of the plaintiff, the testimony tended to prove that, by reason of the new blade being negligently fastened to the shaft in such manner that it extended nearer to the outer portion of the machine than the other blades, his hand was thereby caught as the blade revolved. On the contrary, the testimony upon the part of the defendants tended to prove that the plaintiff was wearing a glove with a cuff attached, which was caught by the blade as plaintiff inserted his hand in the machine, and that this caused the injury. We are of the opinion that there was sufficient testimony adduced upon either side from which the jury might have been warranted in finding that the injury was due to either of these causes.
There are a number of errors assigned by counsel for the plaintiff why the judgment should be reversed, but we deem it only necessary for a proper determination of this appeal to notice certain of the instructions given which we think were so erroneous as to require a reversal.
The court at the request of defendants gave several instructions by which it charged the jury in effect that the plaintiff could not recover, even though he was injured by reason of the negligence of the defendants in furnishing a defective machine with which to work, if by the exercise of ordinary care he could have discovered the defect therein. One of these instructions was as follows:
“ 9. The law presumes that the laborer will use ordinary care to protect himself from receiving injury while at work; and although you may believe that defendants failed to place the blade in the machine in the proper manner, still, if you find from a preponderance of the evidence that the plaintiff by ordi nary care could have discovered that the blade was not properly placed, and thereby have protected himself from injury, your verdict will be for the defendants.”
The proposition presented by these instructions is whether or not the servant is required to make an inspection in order to discover defects in the tools or appliances furnished him by the master with which to work.
It is well settled that it is the duty of the master to exercise ordinary care to provide his servants with reasonably safe appliances and tools with which to work. This duty includes the one of making reasonable inspection to see that the appliances and tools thus furnished are safe. It therefore becomes the duty of the master to exercise ordinary care in discovering the defects in the appliances and tools that are furnished to the servant and in repairing them; and if he fails to perform this duty, then he is guilty of negligence, whereby, for a consequent injury therefrom, he may be liable. The servant is not ordinarily charged with the duty of inspecting the tools and appliances which are furnished him by the master in order to discover any defects or dangers therein that are latent. When a servant enters into the employment of any one, he assumes the ordinary risks and hazards which are incident to the service, and this includes all those defects and dangers which are obvious and patent. He assumes all the risks which he knows to exist and all those which are open and obvious. St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467; St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 295; Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367; Bryant Lumber Co. v. Stastney, 87 Ark. 321; St. Louis, I. M. & S. Ry. Co. v. Holmes, 88 Ark. 181; Ozan Lumber Co. v. Bryant, 90 Ark. 223.
But it is also well settled that a servant does not, when he enters the service of a master, or while he continues in that service, assume the risk of any dangers that arise from the negligence of the master unless he is actually aware of that negligence and appreciates the dangers arising therefrom. He has a right to rely upon the assumption that the master has performed his duty in exercising ordinary care to furnish him a safe tool or appliance with which to work, in the absence of any knowledge upon his part to the contrary. St. Louis, I. M. & S. Ry. Co. v. Tuohey, 67 Ark. 209; Ozan Lumber Co. v. Bryant, supra; St. Louis, I. M. & S. Ry. Co. v. Birch, 89 Ark. 427; St. Louis, 1. M. & S. Ry. Co. v. Holman, 90 Ark. 555; St. Louis, I. M. & S. Ry. Co. v. Corman, 92 Ark. 102; Labatt on Master & Servant, 279. He has a right to rely upon the assumption that the master has inspected the tools and appliances furnished him, and that, if there were any defects therein, the same have been properly repaired. The servant is not required to inspect such tools and appliances in order to discover latent defects. So far as his rights and duties are concerned, the question is not whether he exercised care to discover the defects, but rather as to whether the defects and dangers were known to him, or were so obvious or patent that they were or should have been seen by him. 26 Cyc. 1231; Texas & P. Ry. Co. v. Swearingen, 196 U. S. 51; Mt. Nebo Anthracite Coal Co. v. Williamson, 73 Ark. 530; Ozan Lumber Co. v. Bryant, supra; Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333; St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564.
If the defect in the appliance or tool was not open and patent, so as to be observable, but was a hidden and latent defect, then the servant would not assume any risk arising therefrom, nor would there rest upon him any duty to inspect such tool or appliance for such hidden defect. He therefore would not be guilty of contributory negligence by reason of a failure to exercise ordinary care to discover such hidden defect. Otherwise, the rule that the master must exercise ordinary care to discover such defects and repair them would be abrogated. If the master is only obligated to exercise ordinary care in discovering latent defects, and if the servant must also exercise the same degree of care in discovering the same defects or otherwise be precluded from a recovery, then his case would always be hopeless, although he was injured by such hidden defect. For if, by the exercise of ordinary care, the servant could not discover the latent defect, then the master could not have discovered it by the exercise of like care, and would therefore be free from negligence. If, on the other hand, the defect could have been discovered by the exercise of ordinary care, and the servant would be guilty of contributory negligence in failing to exercise that care, then he would be precluded from a recovery, notwithstanding the failure of the. master to exercise the same care; because it is a well settled principle that a servant guilty of contributory negligence can not recover, although the master was also guilty of negligence. The servant has a right to rely upon the performance by the master of the duty imposed upon him to exercise ordinary care in furnishing him with safe tools and appliances, unless the defect and the danger arising therefrom is actually known to the servant, or is so open, obvious and imminent that an ordinarily prudent person would not continue in the work. Unless the defect and danger arising therefrom is known to the servant, or is so obvious and patent that no prudent man would continue the work, the servant can not be precluded from a recovery for an injury growing out of such defect in the tools or appliances furnished him, due to the master’s negligence. He can not be defeated of a recovery under such circumstances on the ground of assumed risk, because he assumes no risk growing out of the negligence of the master of which he has no notice or knowledge. He can not be barred under such circumstances by the imputation of contributory negligence by reason of the failure to discover the defect which is not obvious and patent, because the duty of inspection for such defects is not imposed upon him, but upon the master. The standard for determining whether or not the plaintiff was guilty of contributory negligence in failing to discover the defect, if any, in the machine, and in working therewith, is whether such defect was open and patent and so obviously dangerous that an ordinarily prudent person would not have worked with it.
The court therefore erred in giving the above-quoted instruction and all instructions of a like nature.
The court also gave several instructions which in effect told the jury that in event there were two methods of cleaning the machine, and plaintiff adopted the one which was the less safe, when by using the other he probably would not have been injured, he could not recover. One of these instructions was as follows:
“22. I charge you that if the plaintiff, Asher, had the choice of two methods of cleaning the cement mixer in this case, the one while the machine was in action, the other while the machine was at rest, and that he chose to clean it while it was in motion, and that this was the more-dangerous way of the two, and that he was injured thereby, whereas, if he had chosen the safer way, he would probably have escaped injury, then his voluntary act in taking the more dangerous course would relieve the defendants from all liability for such injury, and your verdict will be for the defendants, but you must believe that the plaintiff had been instructed as to the two methods of cleaning the machine.”
The principle enunciated by thése instructions has been advanced and followed by some jurisdictions, but this court has steadily declined to adopt this rule. In the case of Headrick v. Williams Cooperage Co., 97 Ark. 553, this court said:
“Even though there may he two ways possibly open to the employee in which to perform his work, one of which turns out to be less dangerous than the other, and he adopted the other way, yet, if that way is not so dangerous that a person of ordinary prudence would not have undertaken it, the court should not say that the employee was guilty of negligence because he chose that way which was reasonably safe, but which was not the safer.” Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Kansas City S. R. Co. v. Henrie, 87 Ark. 443.
If either of two methods might be reasonably safe in performing a task in the course of a servant’s employment, then it can not be said as a matter of law that the servant is guilty of negligence precluding him from a recovery because he followed the method which proved to be the more dangerous. Under such circumstances, it becomes a question for the jury to determine whether the servant was guilty of negligence in pursuing the method adopted by him, although it turned out to be the more dangerous; and he would not be guilty of such negligence if the method so adopted by him was not so dangerous that a person of ordinary prudence would not have pursued it.
The above assignments of error are the ones which are pressed upon our attention; the other assignments of error made in the motion for new trial we do not deem it necessary to note, because upon another trial we do not think they will arise if the instructions are conformed to the principles herein announced.
For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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Kirby, J.,
(after stating the facts). It is contended that the verdict is not sustained by the testimony; that certain testimony was improperly admitted; that the court erred in giving, instructions numbered 2, 3 and 4 at plaintiff’s request; in giving instruction numbered 1 on its own motion; in refusing to give appellant’s instructions as requested, and in modifying and giving as modified two of same. We do not propose to review appellant's numerous objections, nor to set out all of the instructions given or refused, but will notice only such as are necessary to the decision herein.
Appellant’s instructions were requested upon the theory that the deceased was a simple trespasser upon its tracks, to whom it owed no duty, except not to injure him after his perilous position was discovered; and, since the undisputed testimony shows that the employees operating the train did not discover him at all, that it would not be liable.
The first instruction complained of tells the jury that if it finds from the preponderance of the evidence that deceased was killed by defendant’s train, it makes a prima facie case of negligence against the defendant, and to escape liability “the burden is upon the defendant to show, by a preponderance of the evidence, either that it was not guilty of negligence, or that the deceased was guilty of contributory negligence.”
Instruction No. 3 reads: “The burden of proof is upon the defendant to show, by a preponderance of the evidence in the whole case that the deceased was guilty of contributory negligence.”
Instruction No. 22 given for the appellant reads: “The defendant is not required to make proof of contributory neg ligence on the part of deceased if such contributory negligence appears from the evidence brought forward by the plaintiff.”
These instructions, taken together, give the correct rule as to the burden of proof upon the defense of contributory negligence, although it is generally better expressed in a different and the usual form, as said in the case of St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 107.
As we understand it, the chief objection was to the giving of such instruction at all, it being contended by appellant that deceased was a trespasser, that no presumption of negligence arose against it for injuring him, and that the burden of proof was upon plaintiff to show that there was a discovery of his peril and negligence of the company in failing to avoid injury after such discovery; but we do not agree to this contention.
It is undisputed that deceased purchased a round-trip ticket from his home, Newark, to Earnhardt, a flag station; that it was necessary for him to be at the station to return upon the passenger train due to arrive there at 5:50, which usually stopped at the tank to take water; that there was no place for passengers provided for by the company for the protection of passengers against the weather, and there was no place, other than the box cars where the section hands lived in which he took shelter, which could have been resorted to by such ‘passengers for the purpose, except the whisky warehouse, south of the cut or opening between the freight cars on the passing track and still west of the box cars on the right-of-way, in which the section men lived. Certainly, a passenger, who could not leave the station before the arrival of this expected train, would not be required to stand all day unprotected in' the cold, and necessarily he must resort to the only places available for such protection and return to the station for the train in time to embark.
If deceased had gone to the whisky warehouse and remained there, he would have, in coming to the train, doubtless, passed through this.same cut or opening between the cars on the passing track, which others were accustomed to use, and must have done so unless he went around such cars, going to the north or south. It is also true that, after crossing the passing track, there was room between the cars standing on it north towards the water tank and the main track for him to have safely gone to the place where he could have boarded the passenger train, without crossing the main track, but that fact was not easily ascertained in the night by a stranger to the place; and he came out of one of said section house box cars, the middle one, after the train had whistled for the road crossing, north of the water tank, and one of the section hands had said, “There is your train,” passed through the opening between the cars on the side-track hurriedly, expecting that the passenger train would stop for passengers at the water tank, still north of him, as was the custom, and was run down and killed by the extra freight train running backwards at from 12 to 35 miles an hour, after dark, and making very little noise, with no headlight, no light whatever, on the front end, according to some of the witnesses, and only a switchman's lantern, according to those of appellant. The evidence further was in conflict as to which side of the main track the station was on, the companion of deceased'having testified that they debarked that morning on the east side, or the side to which he was attempting to cross when struck, and there was some testimony that deceased had been drinking during the day, but all who saw him testified that he was not drunk. There is some ground, however, for the contention that if deceased had been in the exercise of reasonable care for his own safety he might have seen or heard the approaching train in time to have avoided the injury, since his companion discovered it, but it is certainly true that he could not and would not have been injured at all, if it had been the passenger train, which he had the right to expect and did think it was, when attempting to reach the station to embark.
Under the circumstances, deceased was not a trespasser, and was, within the meaning of the law, a passenger, having started to the train with a ticket already procured, and being upon the company's premises in the immediate vicinity of the place for taking the train, with the intention to board it on the return trip home, when it stopped for passengers, and to take water at the tank.
“This relation arises not merely when the passenger enters the train with the ticket already purchased, giving him a contract right to ride, but when he enters upon the premises of the carrier, with intention to take a train in due course.” Chicago, R. I. & P. Ry. Co. v. Stepp, 22 L. R. A. (N. S.) 350; Metcalf v. Yazoo & M. V. Ry., 28 L. R. A. (N. S.) 311; St. Louis & S.F. Ry. v. Kilpatrick, 67 Ark. 53.
A passenger has an invitation to come to the place of the stoppage of trains; and it is the duty of the railway company to anticipate the presence of persons about its stations when a train is arriving and to exercise ordinary care for their protection and safety. St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 315, 131 S.W. 869; Illinois Cent. Ry. Co. v. Daniels, 27 L. R. A. (N.S.) 131; Brackett v. Louisville & N. Ry. Co., 111 S. W. 710.
The court correctly declared the law to be that deceased was bound also to the exercise of ordinary or reasonable care; and if by the exercise of such care he could have seen the approaching cars in time to have avoided the injury to himself, and failed to do so, that no recovery could be had. It further told the jury, on appellant’s request, that it was the duty of deceased to look and listen for approaching trains, and continue to keep a lookout and listen for such cars up to the time he reached the place at the main track where he was struck, and that plaintiff could not recover if he failed to do so; and that if he saw or heard, or by the exercise of reasonable care could have seen or heard, the approaching cars upon the main line in time to have avoided the injury and failed 'to exercise such care, either by the failure to look, listen or stop, if necessary, before going upon or near the main line, the plaintiff could not recover. The instructions given upon the court’s own motion were also more favorable to the appellant than it was entitled to, all being given upon the theory that deceased was bound to the exercise of as much care in the crossing of this track at the time and place he attempted to cross it as a traveller would be upon a highway at a crossing of the railroad track, which is not the correct rule. St. Louis, I. M. & S. Ry. v. Tomlinson, 69 Ark. 496. But appellant can not complain that these instructions required a greater degree of care of deceased than he was held to by law.
In Arkansas Cent. Ry. Co. v. Williams, 99 Ark. 167, the court said: “Where it is uncertain as to whether or not there was a possibility for a traveller to have been able to hear or see the approaching train, either because the evidence is comiicting or because there is doubt as to the inference to be drawn from the facts proved, the question of contributory negligence is properly one to be submitted to the jury. ”
It has long been settled law that “where the situation is such from which different minds might draw different conclusions as to whether, under the particular circumstances, the plaintiff was guilty of contributory negligence, the question is properly one of fact for the jury to determine.” Missouri & N. A. Rd. Co. v. Clayton, 97 Ark. 347; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187; Aluminum Co. of N. A. v. Ramsey, 89 Ark. 523; St. Louis, I. M. & S. Ry. Co. v. Stacks, 97 Ark. 405; St. Louis, I. M. & S. Ry. Co. v. Hitt. 76 Ark. 227; Missouri & N. A. Rd. Co. v. Bratton, 85 Ark. 337.
There can be no doubt that the question of contributory negligence on the part of deceased was one that should have been submitted to the jury, and the running of appellant’s train backwards after dark, through this station, with no lights upon it, at a rate of speed of from 12 to 35 miles per hour at a time when the passenger train, that was accustomed to stop for passengers at the water tank, before reaching the place of injury, was due, was evidence of such negligence that the jury were warranted in finding that appellant failed to exercise that ordinary care for the protection of deceased that it was bound by law to use.
The objection to plaintiff’s instruction numbered 4 is not well taken, for it does not, as contended, assume a fact as proved which the evidence shows was not true, but at most allowed the jury, if it found that “the train was making no noise, to take that fact into consideration with the others included in the instruction, and all other facts and circumstances in evidence, in order to determine whether or not deceased acted as a reasonable, prudent person would have done in going upon the track as he did at the time of the injury, and a specific objection at the time would doubtless have resulted in it being conformed to appellant’s view of the law.
Appellant’s objection to the refusal of the court to give a great number of instructions asked by it, on the theory that deceased was a trespasser upon its tracks at the time of the injury, is met by the view already announced herein that the deceased was not a trespasser, and the instructions were there fore not applicable to the case, and the court committed no error in refusing to give them.
It is next contended that the court erred in admitting the testimony of certain witnesses as to the earning capacity of deceased and the testimony of an insurance agent, relative to the present value of an annuity of $25,000, it being assumed that deceased’s total contribution to his family during the remainder of his life expectancy would have amounted to that sum. An adult son of the deceased testified that he was familiar with his father’s business and the contributions made to his family, and, that, after deducting an amount that would represent his personal expenses, his net earnings and contributions to the family would be $900 to $1,000, and he later stated, without objection, that his father would contribute between $900 and $1,000 a year to the support of his family, but that $150 should be deducted from that sum as his personal expenses.
Another witness testified that he was familiar with deceased and his family, and had boarded with them, and knew their manner of living; that he was a man of experience, and, based upon this knowledge, he stated that he judged deceased’s average yearly contributions to his family, exclusive of his personal expenses, would be between $900 and $1,000.
Another witness, Nat Wilson, testified that he was intimate with deceased and his family, and that he was at his place frequently; that he was an industrious man, economical, and cared for his family; “seemed attentive to his family in most every way. ”
The objection to the introduction of this testimony was general, and presented no specific ground for its exclusion. The testimony was competent and relevant, and the court committed no error in its ruling in permitting its introduction. Railway Co. v. Sweet, 60 Ark. 550.
If the testimony of the insurance agent that the present value of an annuity of $25,000, the sum it was supposed deceased. would have contributed to his family, was $17,000 was not competent, its admission was not prejudicial, since the jury evidently disregarded it entirely and fixed the total damages at the sum of $4,500.
Certain remarks of counsel for appellee in the closing ar gument were objected to and are assigned as error here, but such of them as were open to objection were withdrawn, and the others did not transcend the scope of legitimate discussion in the fair presentation of the case to the jury. The last assignment is that the court erred in rendering judgment on the verdict, which, it is also contended, is excessive. The verdict was: “We, the jury, find for the plaintiff in the sum of $1,500 and for the minor children in the sum of $3,000, making a total of $4,500.”
This suit was brought by the widow and heirs of the deceased for damages for his wrongful death as authorized by section 6290 of Kirby’s Digest, there being no administrator of his estate appointed. It is true that the complaint does not allege that there was no personal representative of the deceased, but it shows that the widow and all his children were, parties, and the proof shows that no personal representative had been appointed, and that all the heirs of the deceased were parties, which supplied any defects in the averments of the complaint, and such suit could be maintained by them. St. Louis, I. M. & S. Ry. v. Harper, 44 Ark. 524; Healy v. Conner, 40 Ark. 352; St. Louis, I. M. & S. Ry. Co. v. Watson, 97 Ark. 405.
It is also true that said section provides: “The amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they may deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.”
And appellant especially urges that the damages awarded the minor children by the verdict are excessive. Two of them were girls, eleven and four years old, respectively, and one, a boy, six years of age at the bringing of the suit. They were entitled to maintenance and support by their father until their arrival at majority and pecuniary damages for such loss, as well as to any damage they may have suffered on account of the loss, of education and training because of his death. The widow was likewise damaged to the amount deceased would reasonably have contributed to her support during his and her life expectancy. Deceased was 44 years old, strong, in good health, industrious and economical, with a life expectancy of more than 25 years, and was kind to his family and considerate of their interests, providing for them as well as a poor man could, solicitous about the education of his children and contributing from $900 to $1,000 a year to their maintenance and support, at the time of his death, and, under the circumstances, we do not regard the verdict of $4,500 as excessive, considered as an entire sum or separately, as awarded by the jury.
Without regard to whether the amount should have' been divided by the jury, appellant can not complain that it was done, being concerned only with the payment, since all the persons who had a pecuniary interest arising out of the death of deceased were parties to the suit, and without regard to their division of the damages, it will be protected in the payment of the judgment rendered,
Finding no reversible error in,the case, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). 1. In the case of Western Union Telegraph Co. v. Griffin, 92 Ark. 219, the wife of Griffin was the daughter of A. A. Gordon, who lived at Banner, Miss. Griffin lived at Conway, Arkansas. Griffin’s wife died, and he sent to her father (his father-in-law) at Banner, Miss., the following telegram: “ Genie died very suddenly at 1 P. M. today. Come at once. Answer, my expense.”
The telegram was not delivered. Gordon, for that reason, did not attend the funeral, and Griffin sued the Telegraph Company, alleging that on account of the failure to deliver the message the addressee did not attend the funeral, and was not with the. plaintiff before and at the time of the funeral, which caused him great mental anguish, etc., and in consequence of which he suffered damages in the sum of $1,500. The jury awarded Griffin damages in the sum of $200, and this court affirmed the judgment. It was contended by appellant in that case that Griffin could not recover for mental anguish because his father-in-law was not present at the funeral to console him; that such damages would be too remote and speculative. The court, in affirming the judgment, necessarily overruled that contention.
The principle upon which such damages are recoverable was not announced in that case, but the attention of the court was specially directed to the contention of appellant that mental anguish because of the failure of a father-in-law to be present at a funeral to give consolation to his son-in-law was not an element of damages under our statute, and the court in that case expressly recognized such damages as an element of recovery. That case rules this.
There is much stronger reason, it seems to us, why the mother would suffer mental anguish on account of being de prived of the consolation that the presence of her eldest son could afford her at the funeral of his brother than in the case of the consolation that a father-in-law might afford his son-in-law by being present at and immediately after the funeral of the latter’s wife. For in the former case the relation is by blood, and is the most tender and affectionate that could be conceived, that of mother and child, while in the latter the relationship is only by affinity, and the bond of affection is not so strong.
In the case of Western Union Tel. Co. v. McMullen, 98 Ark. 847, a mother was away from her daughter; the daughter’s child was killed, and a telegram was sent to the grandmother of the child telling her of it, but it failed to reach her in time to attend the funeral of the child. Suit was brought by the grandmother for mental anguish on this account. In submitting that question to the jury, the court also submitted along with it the question as to whether or not it was an element of damages for the mother to be deprived of the opportunity of affording comfort to her daughter in the hour of her grief. The court, in passing upon whether or not this was error, said: “It is impossible to define everything that should be regarded as mental anguish or suffering. Of course, there can be no recovery for imaginary situations or conditions of anxiety caused thereby, but a recovery will be allowed for the mental suffering which the failure to deliver a telegram may reasonably be expected to produce to an ordinary human being, and under all the facts and circumstances of this case the court properly submitted to the jury the question of what mental anguish, if any, resulted to the appellee from the alleged negligence of appellant in not delivering the message. ”
The court seemed to recognize in the above case that mental anguish may result on account of being deprived of the consolation which the presence of a near relative may afford in an hour of grief caused by the death of another near relative. That suit, however, was by the sendee of the telegram, and there were other elements of recoverable damages, and what we said above could not be considered as authority for holding that the consolation of which one is deprived by the absence of a loved one in an hour of sorrow is an independent cause for damages under the statute. The case goes no further than to hold that where there are other elements that would support an award of damages for mental anguish the opportunity to afford consolation might be considered by the jury in connection with other circumstances. This is upon the principle announced in Western Union Tel. Co. v. Stratemeier, 32 N. E. 871, where it is said: “ It may be proper for the jury to be advised of the situation and surroundings of the plaintiff, so far as they may tend to aggravate or lessen the sorrow or disappointment resulting from the wrong complained of, but it is not proper to consider as a substantive element of damages any mental distress arising out of sympathy with the sorrow of others. ”
According to the decision in the Griffin case, supra, mental anguish may fairly be contemplated as the natural and proximate result of a failure on the part of the appellant to deliver the telegram to appellee promptly, as its contract required.
That an aged and widowed mother who had only two sons, one of whom had died, would suffer mental anguish by reason of being deprived of the consolation which the presence of the other and eldest son could afford her at the funeral and for a short time thereafter, might reasonably be anticipated by the appellant as one of the natural and proximate results of its negligent failure to deliver a telegram which would have brought the absent son to the side of his mother in the hour of her deep sorrow.
The above, however, is quite as far as we should go in applying the doctrine of a recovery for mental anguish under the statute.
As was said by Pollock, J. in Allsop v. Allsop, 5 H. & N. 536: “We ought to be careful not to introduce anew element of damages, recalling to what a large class of actions it would apply and what a dangerous use might be made of it.” A recovery of damages for being deprived of consolation should be allowed only to one who is in need of it, and who is entitled to receive it, and in no case should such a one be allowed to recover unless the one who is expected to afford consolation is related by the closest ties of blood or affinity, and holds such a tender and sacred relation to the living and the dead as to be able to give the needed consolation.
In the case of Western Union Tel. Co. v. McKenzie, 96 Ark. 218, we said; “It will thus be seen that the mental anguish for which a recovery can be had must not consist simply of annoyance or disappointment, or a suffering of the mind growing out of some imaginary situation, but it must be some actual distress of mind flowing from the real ills, sorrows and griefs of life. ”
This court has often announced that there could ,be no recovery under the statute for mental anguish caused by supposititious or imaginary conditions. See Western Union Tel. Co. v. Shenep, 83 Ark. 476; Western Union Tel. Co. v. Oastler, 90 Ark. 268; Western Union Tel. Co. v. Archie, 92 Ark. 59.
But, according to the decision of this court in Western Union Tel. Co. v. Griffin, supra, the mental suffering of a mother who has been deprived of the consolation of the presence of her eldest son at the funeral of another son, and for a short while thereafter, is not of a supposititious character, but is one of the real griefs of life.
II. On the question of notice, we are of the opinion that the telegram itself was sufficient on its face to charge the appellant with notice of any damages that might be reasonably expected to result from its negligence in failing to deliver it.
In Western Union Tel. Co. v. Toms, 99 Ark. 117, this court, quoting from Western Union Tel. Co. v. Moxley, 80 Ark. 554, held: '“That where a message on its face gives notice of a state of facts, as of physical injury, illness or death, from which the company may fairly infer that mental anguish will result to the sender or addressee from delay in its transmission or delivery, then the company will be liable for negligent delay. Special notice that the relationship between the parties is such that delay will cause mental anguish is unnecessary.”
And in Western Union Tel. Co. v. Shofner, 87 Ark. 303, we held that where a message on its face relates to sickness or death, it is sufficient to charge the telegraph company with notice of damages that might result from negligence in handling it.
III. The appellee testified that she suffered greatly be cause her son was not at the funeral, for she says, “I fully expected him to be with me, and I knew something serious had prevented him. ” This testimony, we think, shows that much of the mental anguish of the mother was because of anxiety for her absent son. It discloses that she thought “something serious had prevented him. ” Evidently the “something serious ” in her mind was that something of a serious nature had happened to him that prevented him from attending the funeral, whereas nothing whatever of a serious nature had happened to Dr. H. S. Garlington, and her fears were as to conditions that were wholly imaginary and fall within the rule of the cases above mentioned that do not allow recovery of damages for such conditions.
We are of the opinion therefore that the judgment xor $500 is excessive, and that the sum of $100 would be ample compensation for the mental anxiety she endured because of the absence of the consolation which the presence of her living son would have afforded her in the trying hour of her sorrow. If the appellee will remit the sum of $400 within the next ten days, the judgment will be affirmed; otherwise it must be reversed and remanded for a new trial. | [
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